Exhibit 10.43(f-5)
ACCESSION AGREEMENT AND FOURTH AMENDMENT
TO SPONSORS' SUPPORT AGREEMENT
*** Confidential treatment has been requested as to certain portions of
this agreement. Such omitted confidential information has been
designated by an asterisk and has been filed separately with the
Securities and Exchange Act of 1934, as amended, and the Commission's
rules and regulations promulgated under the Freedom of Information Act,
pursuant to a request for confidential treatment. ***
THIS ACCESSION AGREEMENT AND FOURTH AMENDMENT (this
"Amendment"), dated 3 June 2002, is made among 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., the "Sponsors"); AMD SAXONY LLC, a limited liability company
organised and existing under the laws of the State of Delaware, United States of
America ("AMD Saxony LLC"); AMD SAXONY ADMIN GmbH, with its seat in Dresden
("AMD Admin," and together with AMD SAXONY LLC, the "Additional Partner
Companies"); DRESDNER BANK LUXEMBOURG S.A., as Agent (and successor to Dresdner
Bank AG ("Dresdner") in such capacity) under the Loan Agreement dated 11 March
1997, as amended (as so amended, the "Loan Agreement") (in such capacity, the
"Agent") for the Banks from time to time party thereto; and DRESDNER, as
Security Agent under such Loan Agreement (in such capacity, the "Security
Agent"); for the Secured Parties referred to therein.
W I T N E S S E T H:
WHEREAS, AMD Saxony Manufacturing GmbH, Dresden (proposed to
be known as "AMD Saxony LLC & Co. KG" following the Conversion Effective Date),
registered in the Commercial Register of the Dresden County Court ("AMD
Saxonia"), has been formed for the purpose of constructing, owning, and
operating (i) the Plant and (ii) the integrated Design Center (the construction,
ownership, and operation of the Plant and the Design Center being hereinafter
called the "Project");
WHEREAS, pursuant to the Conversion Documents, AMD Saxonia
proposes to change its legal form to a Kommanditgesellschaft (a limited
partnership organized under the laws of the Federal Republic of Germany), with
AMD Holding and AMD Admin as its sole limited partners (Kommanditisten) and AMD
Saxony LLC as its sole general partner (Komplementar) (the "Conversion");
WHEREAS, upon the Conversion Effective Date, AMD Saxonia
wishes, with the consent of the Sponsors and the Additional Partner Companies
to, among other things, modify the interest rate on Sponsors' Loans and
Revolving Loans and to increase the amount of the Revolving Loan Facility; and
WHEREAS, with effect from the Conversion Effective Date, the
Additional Partner Companies desire to accede to, and the Sponsors, the
Additional Partner Companies, the Agent and the Security Agent desire to amend
and supplement, the Sponsors' Support Agreement dated 11 March 1997 by and among
AMD Inc., AMD Saxony Holding GmbH, Dresdner Bank AG, as Security Agent, and
Dresdner Bank Luxembourg S.A., as Agent, as amended by the First Amendment to
Sponsors' Support Agreement dated 6 February 1998, the Second Amendment to
Sponsors' Support Agreement dated 29 June 1999, and the Third Amendment to
Sponsors' Support Agreement dated 20 February 2001 (as amended, the "Sponsors'
Support Agreement"), on the terms and subject to the conditions of this
Amendment;
NOW, THEREFORE, the Sponsors, the Additional Partner
Companies, the Agent (for itself and on behalf of the Banks), and the Security
Agent (on behalf of the Secured Parties), agree as follows:
ARTICLE I
Accession
Section 1.1 With effect from the Conversion Effective Date, the Additional
Partner Companies hereby accede to the Sponsors' Support Agreement and AMD Inc.,
AMD Holding, the Agent and the Security Agent hereby consent to such accession.
ARTICLE II
Definitions
Section 2.1 Definitions. Capitalized terms not otherwise defined in this
Amendment are used with the definitions assigned to them in the Sponsors'
Support Agreement.
In addition, the following term when used in this Amendment
shall have the following meaning:
"Agreed Terms" means, in respect of any document, that document
substantially in the form thereof which has been initialled (for the
purposes of identification) by or on behalf of AMD Saxonia and the
Agent.
"Conversion Documents": means the following agreements and documents,
each in the Agreed Terms: (i) the Certificate of Formation of AMD
Saxony LLC; (ii) the AMD Admin Articles of Association; (iii) the
Formation Protocol for AMD Admin; (iv) the Application to the
Commercial Register for Formation of AMD Admin; (v) the Resolution of
AMD Holding as Shareholder of AMD Admin for Section 181 German Civil
Code Release; (vi) the List of Shareholders for AMD Admin; (vii) the
AMD Saxony LLC Agreement; (viii) the Partnership Agreement of AMD
Saxony LLC & Co. KG; (ix) the Assignment and Trust Agreement between
AMD Holding and AMD Saxony LLC; (x) the Purchase and Assignment
Agreement between AMD Holding and AMD Admin; (xi) the Resolution of AMD
Holding as Shareholder of AMD Saxonia for Transfer of Fractional Share
to AMD Saxony LLC; (xii) the Notification to AMD Saxonia of Assignment
of Fractional Share to AMD Admin; (xiii) the List of Shareholders of
AMD Saxonia (reflecting addition of AMD Admin); (xiv) the Resolution of
AMD Holding and AMD Saxony LLC as Shareholders of AMD Saxonia for
Transfer
2
of Fractional Share to AMD Admin; (xv) the Notification to AMD Saxonia
of Assignment of Fractional Share to AMD Saxony LLC; (xvi) the List of
Shareholders of AMD Saxonia (reflecting addition of AMD Saxony LLC);
(xvii) the Resolution of AMD Holding, AMD Admin and AMD Saxony LLC as
Shareholders of AMD Saxonia Approving Conversion to a Limited
Partnership; (xviii) the Resolution of AMD Inc. as Shareholder of AMD
Holding Approving Conversion of AMD Saxonia; (xix) Application to the
Commercial Register for Conversion of AMD Saxonia to a Limited
Partnership; (xx) Application to the Real Estate Register for Change in
AMD Saxonia's Name; (xxi) the Transfer Agreement for Transfer Back Of
Fractional Share between AMD Holding and AMD Saxony LLC; (xxii)
Application to the Commercial Register for Transfer Back of Fractional
Share by AMD Saxony LLC to AMD Holding; (xxiii) Power of Attorney
regarding Removal of AMD Saxony LLC as General Partner of AMD Saxonia;
and (xxiv) any other agreement or document designated by the AMD
Companies (with the consent of the Agent) in addition to or in
substitution for any of the above-named documents or agreements as a
"Conversion Document."
"Conversion Effective Date" means the date on which the Registration
takes effect.
"Limited Partnership" means a limited partnership
(Kommanditgesellschaft) under the laws of the Federal Republic of
Germany.
"Registration" means the registration of the Conversion with the
Commercial Register in Dresden.
Section 2.2 Construction. In this Amendment, unless the context requires
otherwise, references to Sections and Schedules are to Sections and Schedules of
the Sponsors' Support Agreement. Section headings are inserted for reference
only and shall be ignored in construing this Amendment.
ARTICLE III
Amendments
Section 3.1 With effect from the Conversion Effective Date, the Sponsors'
Support Agreement will be amended and restated in its entirety in the form
attached as Appendix A.
Section 3.2 With effect from the Conversion Effective Date, the current version
of the Disclosure Schedules shall be deleted and replaced with the new
Disclosure Schedules attached as Appendix B hereto.
ARTICLE IV
Miscellaneous
Section 4.1 Representations and Warranties. Each of the Sponsors, AMD Saxony LLC
and AMD Admin hereby represents and warrants, as of the date hereof and as of
the Conversion Effective Date, that:
(i) Organisation; Corporate Power. It is duly organised and validly
existing under the laws of the jurisdiction of its organisation, and has all
necessary power and authority to execute
3
and deliver this Amendment and, following the Conversion Effective Date, to
consummate the transactions contemplated by the Sponsors' Support Agreement, as
amended hereby;
(ii) Corporate Authority; No Conflict. The execution and delivery by it of this
Amendment, and the performance by it, following the Conversion Effective Date,
of its obligations under the Sponsors' Support Agreement, as amended by this
Amendment, have been duly authorised 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
(iii) Valid and Binding Obligations. Following the Conversion Effective Date,
the Sponsors' Support Agreement, as amended by this Amendment, shall constitute
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 4.2 Miscellaneous.
(i) This Amendment is limited as specified and, except as expressly herein
provided, shall not constitute a modification, amendment or waiver of any other
provision of the Sponsors' Support Agreement or any provision of any other
Operative Document. Except as specifically amended by this Amendment, the
Sponsors' Support Agreement shall remain in full force and effect and is hereby
ratified and confirmed.
(ii) This Amendment shall be an Operative Document under and for purposes of
the Sponsors' Support Agreement.
(iii) This Amendment has been executed in the English language.
(iv) This Amendment may be executed in any number of counterparts and by
different parties on separate counterparts which when taken together shall
constitute one agreement.
(v) Sections 16.1, 16.2, and 16.3 of the Sponsors' Support Agreement shall
apply, mutatis mutandis, to this Amendment, as if set out herein in full.
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.
4
ADVANCED MICRO DEVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
Its
AMD SAXONY HOLDING GMBH
By: /s/ ▇▇. ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------
▇▇. ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
Its Managing Director (Geschaftsfuhrer)
AMD SAXONY ADMIN GMBH
By: /s/ ▇▇. ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------
▇▇. ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
Its Managing Director (Geschaftsfuhrer)
AMD SAXONY LLC
By: /s/ ▇▇. ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------
▇▇. ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
Its Manager
DRESDNER BANK LUXEMBOURG S.A.,
as Agent
By: /s/ ▇▇▇▇▇▇▇▇▇
-----------------------------------------------
Its Signatory under power of attorney
DRESDNER BANK AG
as Security Agent
By: /s/ ▇▇▇▇▇▇▇▇▇
-----------------------------------------------
Its Signatory under power of attorney
5
APPENDIX A
AMENDED AND RESTATED SPONSORS' SUPPORT AGREEMENT
Amended and Restated
SPONSORS' SUPPORT AGREEMENT
Dated 11 March 1997
AS AMENDED ON 6 FEBRUARY 1998, 29 JUNE 1999, 20 FEBRUARY 2001
AND
3 JUNE 2002
between
ADVANCED MICRO DEVICES, INC.,
AMD SAXONY HOLDING GMBH,
AMD SAXONY LLC,
AMD SAXONY ADMIN GMBH
and
DRESDNER BANK AG,
as Security Agent,
and
DRESDNER BANK LUXEMBOURG S.A.,
as Agent
INDEX
ARTICLE I Definitions and Accounting Terms .............................. 2
ARTICLE II Contribution of Equity Capital ................................ 27
ARTICLE III Sponsors' Loans ............................................... 29
ARTICLE IV Project Costs ................................................. 34
ARTICLE V Completion Guaranty ........................................... 35
ARTICLE VI Subsidies Undertaking ......................................... 36
ARTICLE VII Pari Passu Undertaking ........................................ 38
ARTICLE VIII Security Documents ............................................ 38
ARTICLE IX Sponsors' Guaranty ............................................ 39
ARTICLE X Sponsors' Subordination Agreement; AMD Inc. Subordination
Agreement ..................................................... 40
ARTICLE XI Obligations Unconditional ..................................... 40
ARTICLE XII Representations and Warranties ................................ 41
ARTICLE XIII Covenants ..................................................... 58
ARTICLE XIV Costs and Expenses; Indemnities; Taxes; Etc. .................. 76
ARTICLE XV Miscellaneous ................................................. 81
ARTICLE XVI Governing Law, Jurisdiction, and Language ..................... 84
SCHEDULE I - [left intentionally blank]
SCHEDULE II - Sponsors' Disclosure Schedule
i
SPONSORS' SUPPORT AGREEMENT
THIS SPONSORS' SUPPORT AGREEMENT, dated 11 March 1997, as amended, is made among
ADVANCED MICRO DEVICES, INC., a corporation organized 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"), AMD Saxony LLC, a limited liability company organized and existing
under the laws of the State of Delaware, United States of America ("AMD Saxony
LLC"), AMD SAXONY ADMIN GMBH, with its seat in Dresden ("AMD Admin," and
together with AMD SAXONY LLC, the "Additional Partner Companies"), DRESDNER BANK
LUXEMBOURG S.A. ("Dresdner"), as Agent under the Loan Agreement referred to
below for the Banks referred to below (in such capacity, the "Agent"), and
DRESDNER BANK AG, as Security Agent under such Loan Agreement (in such capacity,
the "Security Agent") for the Secured Parties referred to below.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, AMD Saxony Manufacturing GmbH, Dresden (proposed to be known as "AMD
Saxony LLC & Co KG" following the Conversion Effective Date), registered in the
Commercial Register of the Dresden County Court ("AMD Saxonia"), has been formed
for the purpose of constructing, owning, and operating (i) the Plant and (ii)
the integrated Design Center (the construction, ownership, and operation of the
Plant and the Design Center being hereinafter called the "Project");
WHEREAS, in order to finance the construction of the Plant and the Design
Center, and start-up costs of the operation of the Plant, (i) the Sponsors have
made, and expect to make substantial subordinated loans to, and AMD Holding has
made, and from time to time may make, substantial equity investments in, AMD
Saxonia, and (ii) AMD Saxonia has entered into a Syndicated Loan Agreement,
dated 11 March 1997, as amended (as so amended, the "Loan Agreement"), with the
banks from time to time party thereto (hereinafter collectively called the
"Banks" and individually called a "Bank"), the Agent, Dresdner, as Paying Agent
(in such capacity, the "Paying Agent"), and Dresdner Bank AG, as Security Agent,
providing, inter alia, for a senior secured term facility aggregating up to DM
1,500,000,000 (one billion five hundred million Deutsche Marks);
WHEREAS, the Sponsors desire that the Project be constructed and completed and
are entering into this Agreement with the Agent (for the benefit of itself and
the Banks) and the Security Agent (for the benefit of the Secured Parties), for
the purpose, among other things, of providing (i) certain assurances with
respect to the completion of the Project, and (ii) certain undertakings to and
for the benefit of the Secured Parties;
WHEREAS, a condition precedent to the initial Advance is, inter alia, the
execution by the Sponsors of this Agreement and, in extending credit to AMD
Saxonia under the Loan Agreement, the Banks are relying on the undertakings of
the Sponsors contained herein;
WHEREAS, pursuant to the Conversion, AMD Saxonia has changed its legal form to a
Kommanditgesellschaft (a limited partnership organized under the laws of the
Federal Republic of Germany), with AMD Holding and AMD Admin as its sole limited
partners (Kommanditisten) and AMD Saxony LLC as its sole general partner
(Komplementar); and
WHEREAS, the Additional Partner Companies have acceded to this Agreement
pursuant to the Accession Agreement and Fourth Amendment to Sponsors' Support
Agreement dated 3 June 2002;
NOW, THEREFORE, the Sponsors, the Additional Partner Companies, the Agent (for
itself and on behalf of the Banks), and the Security Agent (on behalf of the
Secured Parties), agree as follows:
ARTICLE I
Definitions and Accounting Terms
SECTION 1.1 Definitions. Unless otherwise defined herein, the following terms
(whether or not underlined) when used in this Agreement, including its preamble
and recitals, shall, except where the context otherwise requires, have the
following meanings (such meanings to be equally applicable to the singular and
plural forms thereof):
"Advances" means all advances that the Banks make to AMD Saxonia
pursuant to the Loan Agreement.
"Affiliate" means, with respect to any Person, a Person which,
directly or indirectly, controls, is controlled by, or is under common control
with, such other Person; and, for purposes of this definition, the concept of
"control", with respect to any Person, signifies the possession of the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, the possession of voting
rights, by contract, or otherwise; provided, that none of the Agent, the
Security Agent, the Paying Agent, any of the Banks, nor any of their respective
Affiliates, shall be deemed to be Affiliates of (x) any AMD Company or (y) any
other Subsidiary of AMD Inc.
"Agent" has the meaning assigned to that term in the introduction
to this Agreement.
"Agreed Terms" means in respect of any document, the document
substantially in the form thereof which has been initialled (for the purposes of
identification) by or on behalf of AMD Saxonia and the Agent.
"Agreement" means this Sponsors' Support Agreement, as the same
may be amended or modified in accordance with the terms hereof and in effect.
"AMD Admin" has the meaning assigned to that term in the
introduction to this Agreement.
"AMD Admin Global Assignment Agreement" means the AMD Admin
Global Assignment Agreement between AMD Admin and the Security Agent dated 3
June 2002.
2
"AMD Admin Partnership Interest Pledge Agreement (AMD
Saxonia)" means the AMD Admin Partnership Interest Pledge Agreement (AMD
Saxonia) between AMD Admin and the Security Agent dated 3 June 2002.
"AMD Admin Pledge of Bank Accounts" means the AMD Admin Pledge
of Bank Accounts between AMD Admin and the Security Agent dated 3 June 2002.
"AMD Admin Security" means all collateral security furnished
pursuant to the AMD Admin Security Documents.
"AMD Admin Security Documents" means, collectively, the AMD
Admin Global Assignment Agreement, the AMD Admin Partnership Interest Pledge
Agreement (AMD Saxonia), the AMD Admin Pledge of Bank Accounts, and each other
instrument or document designated by the Agent (with the consent of each AMD
Company) as an AMD Admin Security Document under and for purposes of this
Agreement.
"AMD Companies" means AMD Saxonia, AMD Admin, AMD Holding, AMD
Saxony LLC and AMD Inc., collectively.
"AMD Holding" has the meaning assigned to that term in the
introduction to this Agreement.
"AMD Holding Assignment of Contractual Rights" means the AMD
Holding Assignment of Contractual Rights, in the form set out in Schedule 55 to
the Loan Agreement, between AMD Holding and the Security Agent.
"AMD Holding Assignment (U.S.A.)" means the AMD Holding
Assignment of, inter alia, rights under the Wafer Purchase Agreements, the
Sponsors' Loan Agreement, and the Revolving Loan Facility Agreement, in the form
set out in Schedule 56 to the Loan Agreement, between AMD Holding and the
Security Agent.
"AMD Holding Assignment of Current Assets" means the AMD
Holding Security Assignment of Current Assets, in the form set out in Schedule
52 to the Loan Agreement, between AMD Holding and the Security Agent.
"AMD Holding Charge of Bank Accounts" means the AMD Holding
Charge of Bank Accounts, in the form set out in Schedule 54 to the Loan
Agreement, between AMD Holding and the Security Agent.
"AMD Holding Global Assignment" means the AMD Holding Global
Assignment, in the form set out in Schedule 53 to the Loan Agreement, between
AMD Holding and the Security Agent.
"AMD Holding KG Partnership Interest Pledge Agreement (AMD
Saxonia)" means the AMD Holding KG Partnership Interest Pledge Agreement (AMD
Saxonia) between AMD Holding and the Security Agent dated 3 June 2002.
3
"AMD Holding Research Agreement" means the AMD Holding
Research, Design and Development Agreement, in the form set out in Schedule 34
to the Loan Agreement, between AMD Inc. and AMD Holding.
"AMD Holding Security" means all collateral security created
pursuant to the AMD Holding Security Documents.
"AMD Holding Security Documents" means, collectively, the AMD
Holding Assignment (U.S.A), the AMD Holding Assignment of Contractual Rights,
the AMD Holding Assignment of Current Assets, the AMD Holding Charge of Bank
Accounts, the AMD Holding Global Assignment, the AMD Holding Share Pledge
Agreement, the AMD Holding KG Partnership Interest Pledge Agreement (AMD
Saxonia), the AMD Holding Share Pledge Agreement (AMD Admin), and each other
instrument or document designated by the Agent (with the consent of each AMD
Company) as an AMD Holding Security Document under and for purposes of this
Agreement.
"AMD Holding Share Pledge Agreement" means the AMD Holding
Share Pledge Agreement, in the form set out in Schedule 51 to the Loan
Agreement, between AMD Holding and the Security Agent.
"AMD Holding Share Pledge Agreement (AMD Admin)" means the AMD
Holding Share Pledge Agreement (AMD Admin) between AMD Holding and the Security
Agent dated 3 June 2002.
"AMD Holding Wafer Purchase Agreement" means the AMD Holding
Wafer Purchase Agreement, in the form of Schedule 33 to the Loan Agreement,
between AMD Inc. and AMD Holding.
"AMD Inc." has the meaning assigned to that term in the
introduction to this Agreement.
"AMD Inc. Guaranty" means the AMD Inc. Guaranty in the form
set out in Schedule 27 to the Loan Agreement, executed by AMD Inc. in favour of
AMD Saxonia, the Agent, and the Security Agent for the benefit of the Secured
Parties.
"AMD Inc. 1999 Loan and Security Agreement" means the Loan and
Security Agreement, dated as of July 13, 1999, between, inter alia, AMD Inc.,
the lenders party thereto, and Bank of America National Trust and Savings
Association, as administrative agent, as amended by the First Amendment to Loan
and Security Agreement, dated as of July 30, 1999 and by the Second Amendment to
Loan and Security Agreement, dated as of February 12, 2001.
"AMD Inc. Pledge Agreement Over Membership Interests in AMD
Saxony LLC" means the AMD Inc. Pledge Agreement Over Membership Interests in AMD
Saxony LLC between AMD Inc. and the Security Agent dated 3 June 2002.
"AMD Inc. Primary Bank Credit Agreement" means, from time to
time:
(i) the AMD Inc. 1999 Loan and Security Agreement; or
4
(ii) if the agreement referred to in paragraph (i) above
is terminated or cancelled, then any secured or
unsecured revolving credit or term loan agreement
between or among AMD Inc., as borrower, and any bank
or banks, as lender(s), for borrowed monies to be
used for general corporate purposes of AMD Inc., with
an original term of not less than 4 years and an
original aggregate loan commitment of at least
$100,000,000 (one hundred million Dollars) or the
equivalent thereof in any other currency, and, if
there is more than one such revolving credit or term
loan agreement, then such agreement which involves
the greatest original aggregate loan commitment(s)
and, as between agreements having the same aggregate
original loan commitment(s), then the one which has
the most recent date; or
(iii) if the agreement referred to in paragraph (i) above
and all of the agreements, if any, which could apply
under paragraph (ii) above have been terminated or
cancelled, then so long as paragraph (ii) does not
apply as the result of one or more new agreements
being entered into, the agreement which is the last
such agreement under paragraph (i) or (ii) to be so
terminated or cancelled as in effect immediately
prior to such termination or cancellation.
"AMD Inc. Security" means all collateral security furnished
pursuant to the AMD Inc. Share Pledge Agreement and the AMD Inc. Pledge
Agreement Over Membership Interests in AMD Saxony LLC.
"AMD Inc. Senior Secured Note Indenture" means that certain
Indenture, dated as of August 1, 1996, between AMD Inc. and United States Trust
Company of New York, as trustee, relating to the issuance by AMD Inc. of
$400,000,000 (four hundred million Dollars) of its 11% Senior Secured Notes due
2003, as amended by the First Supplemental Indenture dated as of January 13,
1999, by the Second Supplemental Indenture dated as of April 8, 1999 and by the
Third Supplemental Indenture dated as of July 28, 2000.
"AMD Inc. Share Pledge Agreement" means the AMD Inc. Share
Pledge Agreement, in the form set out in Schedule 41 to the Loan Agreement,
between AMD Inc. and the Security Agent.
"AMD Inc. Subordination Agreement" means the AMD Inc.
Subordination Agreement, in the form set out in Schedule 42 to the Loan
Agreement, between AMD Inc., AMD Holding, and the Security Agent.
"AMD Saxonia" has the meaning assigned to that term in the
first recital of this Agreement.
"AMD Saxonia Assignment of Contractual Rights" means the AMD
Saxonia Assignment of Contractual Rights, in the form set out in Schedule 49 to
the Loan Agreement, between AMD Saxonia and the Security Agent.
5
"AMD Saxonia Assignment of Current Assets" means the AMD
Saxonia Security Assignment of Current Assets, in the form set out in Schedule
44 to the Loan Agreement, between AMD Saxonia and the Security Agent.
"AMD Saxonia Assignment of Fixed Assets" means the AMD Saxonia
Security Assignment of Fixed Assets, in the form set out in Schedule 45 to the
Loan Agreement, between AMD Saxonia and the Security Agent.
"AMD Saxonia Assignment of Insurances" means the AMD Saxonia
Assignment of Insurances, in the form set out in Schedule 46 to the Loan
Agreement, between AMD Saxonia and the Security Agent.
"AMD Saxonia Assignment (U.S.A)" means the AMD Saxonia
Assignment of, inter alia, rights under the AMD Saxonia Wafer Purchase
Agreement, the Sponsors' Loan Agreement, and the Revolving Loan Facility
Agreement and insurances, in the form set out in Schedule 50 to the Loan
Agreement, between AMD Saxonia and the Security Agent.
"AMD Saxonia Charge of Project Accounts" means the AMD Saxonia
Charge of Project Accounts, in the form set out in Schedule 48 to the Loan
Agreement, between AMD Saxonia and the Security Agent.
"AMD Saxonia Disclosure Schedule" means the Disclosure
Schedule attached to the Loan Agreement as Schedule 15, as it may be amended,
supplemented, or otherwise modified from time to time by AMD Saxonia with the
written consent of the Agent.
"AMD Saxonia/Dresdner Subsidy Agreement" means the
AMD/Dresdner Subsidy Agreement, in the form set out in Schedule 25 to the Loan
Agreement, between AMD Saxonia and Dresdner.
"AMD Saxonia Global Assignment" means the AMD Saxonia Global
Assignment, in the form set out in Schedule 47 to the Loan Agreement, between
AMD Saxonia and the Security Agent.
"AMD Saxonia Hedging Contract" means the Agreement, in the
form set out in Schedule 50a to the Loan Agreement, between AMD Saxonia and AMD
Inc.
"AMD Saxonia Land Charge" means the Grundschuld, in the form
set out in Schedule 43 to the Loan Agreement, between AMD Saxonia and the
Security Agent.
"AMD Saxonia Partnership Agreement" (AMD Saxonia
Gesellschaftsvertrag) means the AMD Saxonia Partnership Agreement between AMD
Holding, AMD Admin and AMD Saxony LLC dated 3 June 2002.
"AMD Saxonia Research Agreement" means the AMD Saxonia
Research, Design and Development Agreement, in the form set out in Schedule 36
to the Loan Agreement, between AMD Holding and AMD Saxonia.
6
"AMD Saxonia Security" means all collateral security created
pursuant to the AMD Saxonia Security Documents.
"AMD Saxonia Security Documents" means, collectively, the AMD
Saxonia Assignment (U.S.A), the AMD Saxonia Assignment of Contractual Rights,
the AMD Saxonia Assignment of Current Assets, the AMD Saxonia Assignment of
Fixed Assets, the AMD Saxonia Assignment of Insurances, the AMD Saxonia Charge
of Project Accounts, the AMD Saxonia Land Charge, the AMD Saxonia Global
Assignment, and each other instrument or document designated by the Agent (with
the consent of each AMD Company) as an AMD Saxonia Security Document under and
for purposes of this Agreement.
"AMD Saxonia Wafer Purchase Agreement" means the AMD Saxonia
Wafer Purchase Agreement, in the form set out in Schedule 35 to the Loan
Agreement, between AMD Holding and AMD Saxonia.
"AMD Saxony LLC" has the meaning assigned to that term in the
introduction to this Agreement.
"AMD Saxony LLC Partnership Interest Pledge Agreement (AMD
Saxonia)" means the AMD Saxony LLC Partnership Interest Pledge Agreement (AMD
Saxonia) between AMD Saxony LLC and the Security Agent dated 3 June 2002.
"AMD Saxony LLC Security" means all collateral security
furnished pursuant to the AMD Saxony LLC Security Documents.
"AMD Saxony LLC Security Agreement" means the AMD Saxony LLC
Security Agreement between AMD Saxony LLC and the Security Agent dated 3 June
2002.
"AMD Saxony LLC Security Documents" means, collectively, the
AMD Saxony LLC Security Agreement, the AMD Saxony LLC Partnership Interest
Pledge Agreement (AMD Saxonia), and each other instrument or document designated
by the Agent (with the consent of each AMD Company) as an AMD Saxony LLC
Security Document under and for purposes of this Agreement.
"Amendment Agreements" means the following agreements and
documents each dated 3 June 2002: (i) Amendment Agreement No. 4 to the
Syndicated Loan Agreement among AMD Saxonia, the Security Agent and the Agent;
(ii) the Accession Agreement and Fourth Amendment to Sponsors' Support Agreement
between the Sponsors, AMD Saxony LLC, AMD Admin, the Agent and the Security
Agent; (iii) the Third Amendment to the AMD Saxonia Wafer Purchase Agreement
between AMD Holding and AMD Saxonia; (iv) the Consent/Acknowledgement under the
AMD Holding Wafer Purchase Agreement executed by AMD Holding, AMD Inc. and the
Security Agent; (v) the Accession Agreement and Second Amendment to Sponsors'
Subordination Agreement between the Sponsors, AMD Saxony LLC, AMD Admin, AMD
Saxonia, the Agent and the Security Agent; (vi) the Accession Agreement and
Second Amendment to AMD Inc. Subordination Agreement between the Sponsors, AMD
Saxony LLC, AMD Admin, the Agent and the Security Agent; (vii) the First
Amendment to Revolving Loan Facility Agreement between the Sponsors and AMD
Saxonia; (viii) the Third Amendment to Sponsors' Loan Agreement between the
Sponsors and AMD Saxonia; (ix) the
7
First Amendment to AMD Saxonia Assignment (U.S.A.) between AMD Saxonia and the
Security Agent; and (x) the Clarification and Security Agreement between the AMD
Companies, the Security Agent and the Agent.
"Approved Project Budget" means:
(i) that certain Project Budget, in the form set out in
Schedule 6 to the Loan Agreement, which has been
prepared by AMD Saxonia and approved by each Sponsor;
and
(ii) at any time after such Project Budget has been
updated, amended, supplemented, or otherwise
modified, and prior to Completion, any such updated,
amended, supplemented, or modified Project Budget
having been approved by each AMD Company (such
approval of each Sponsor not to be unreasonably
withheld or delayed) and the Agent (which may, in its
sole discretion, consult with the Technical Advisor
and the Banks' Auditor) in accordance with ss. 18.2
of the Loan Agreement.
(iii) The Approved Project Budget referred to in paragraph
(i) above and (subject to the requirements of Section
13.1(i)(d)(y)(1)) each subsequent Approved Project
Budget from time to time in effect shall itemise,
separately from the other information set forth
therein, and on a Project Phase by Project Phase
basis, the aggregate Capital Expenditure then
required to be made by AMD Saxonia in order to
complete each then uncompleted Project Phase of the
Project and to achieve Completion. All references
herein to the Approved Project Budget shall, at any
time, refer to the Approved Project Budget as then in
effect.
"Approved Project Schedule" means:
(i) initially, that certain Project Schedule, in the form
set out in Schedule 7 to the Loan Agreement, which
has been prepared by AMD Saxonia and approved by each
Sponsor with respect to the schedule for completing
each Project Phase and for achieving Completion; and
(ii) at any time after such Project Schedule has been
updated, amended, supplemented, or otherwise
modified, and prior to Completion, any such updated,
amended, supplemented, or modified Project Schedule
having been approved by each AMD Company (such
approval of each Sponsor not to be unreasonably
withheld or delayed) and the Agent (which may, in its
sole discretion, consult with the Technical Advisor
and the Banks' Auditor) in accordance with ss. 18.2
of the Loan Agreement.
The initial Approved Project Schedule and (subject to the
requirements of Section 13.1(i)(d)(y)(2)) each subsequent
Approved Project Schedule from time to time in effect shall
itemise, separately from the other information set forth
therein, and on a Project Phase by Project Phase basis, the
then anticipated date for completing each then uncompleted
Project Phase and for achieving
8
Completion. All references herein to the Approved Project
Schedule shall, at any time, refer to the Approved Project
Schedule as then in effect.
"Assignment and Trust Agreement" means the agreement referred
to in (ix) of the definition of Conversion Documents.
"Auditor" means Ernst & Young Wirtschaftsprufungsgesellschaft
mbH or such other firm of auditors charged with duties relating to the Project
as may be appointed by AMD Saxonia with the consent of the Agent, such consent
not to be unreasonably delayed or withheld.
"Available Tranche A Amount" means, on any date, the excess,
if any, of:
(i) the Total Tranche A Commitment Amount on such date;
over
(ii) the aggregate unpaid principal amount of all Tranche A
Advances outstanding on such date.
"Bank" and "Banks" have the respective meanings assigned to
those terms in the second recital of this Agreement.
"Banks' Auditor" means BDO Deutsche Warentreuhand AG
Wirtschafts-prufungsgesellschaft or such other firm of auditors charged with
duties relating to the Project as may be appointed by the Banks with the consent
of AMD Saxonia, such consent not to be unreasonably delayed or withheld.
"Business Day" means any day of the year on which banks are
generally open for business in London, Frankfurt am Main, Dresden, Luxembourg
and, to the extent the same relates to any obligation to be performed by AMD
Inc. or AMD Saxony LLC, San Francisco.
"Capital Expenditure" means all acquisition or manufacturing
costs in respect of fixed and movable assets in accordance with ss. 266 2 A II
of the Commercial Code and all acquisition costs for intangible assets in
accordance with ss. 266 2 A I of the Commercial Code, to the extent the same
have a useful operational life of more than one year (not being expenditures
chargeable to the profit and loss account).
"Capitalised Lease Liabilities" means , with respect to any
Person, all monetary obligations of such Person under any leasing or similar
arrangement which, in accordance with GAAP, would be classified as fixed or
capitalised leases or finance leases, and, for purposes of this Agreement, the
amount of such obligations shall be the capitalised amount thereof, determined
in accordance with GAAP, and the stated maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without payment
of a penalty.
"Cash Equivalent Investment" means any security or other
instrument set out in Schedule 23 to the Loan Agreement.
9
"Class A Sponsors' Loans" has the meaning assigned to that
term in Section 3.1.
"Class C Sponsors' Loans" has the meaning assigned to that
term in Section 3.1.
"Completion" means the date on which the initial satisfaction
of all conditions set forth in the Technical Completion Certificate (Obligors)
and the Technical Completion Certificate (Technical Advisor), set out in
Schedules 9 and 10 to the Loan Agreement is confirmed to the Agent by the
submission of properly executed originals of such Certificates.
"Completion Certificates" means the Scheduled Project Phase
Completion Certificates and the Technical Completion Certificates.
"Consent and Agreement" means:
(i) in the case of the Sponsors, the Sponsors' Consent and
Agreement;
(ii) in the case of the Contractor, the Contractor's Consent
and Agreement;
(iii) in the case of an Equipment Supplier, each Equipment
Supplier's Consent and Agreement; and
(iv) in the case of a Service Supplier, each Service
Supplier's Consent and Agreement.
"Contingent Liabilities" means, with respect to any Person,
any agreement, undertaking, or arrangement by which such Person guarantees,
endorses, or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for payment to,
supply funds to, or otherwise invest in, a debtor, or otherwise to assure a
creditor against loss) the indebtedness, obligation, or other liability of any
other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person. The amount of any Person's obligation under any
Contingent Liability shall (subject to any limitation set forth therein) be
deemed to be the outstanding principal amount (or maximum principal amount, if
larger) of the indebtedness, obligation, or other liability guaranteed thereby.
"Contractor" means ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ GmbH & Co.,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, registered in the Commercial Register of
the Stuttgart County Court HRA 1208.
"Contractor's Consent and Agreement" means the Contractor's
Consent and Agreement, in the form set out in Schedule 39 to the Loan Agreement,
or in such other form as is consented to by the Security Agent from the
Contractor in favour of the Security Agent.
"Contractual Obligation" means, as to any Person, any
provision 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.
"Contribution Date" means 30 June 1999.
10
"Conversion" means the change in the legal form of AMD Saxonia
from a Gesellschaft mit beschrankter Haftung (a limited liability company
organized under the laws of the Federal Republic of Germany) to a Limited
Partnership in accordance with the Conversion Documents and the Registration.
"Conversion Documents": means the following agreements and
documents, each in the Agreed Terms: (i) the Certificate of Formation of AMD
Saxony LLC; (ii) the AMD Admin Articles of Association; (iii) the Formation
Protocol for AMD Admin; (iv) the Application to the Commercial Register for
Formation of AMD Admin; (v) the Resolution of AMD Holding as Shareholder of AMD
Admin for Section 181 German Civil Code Release; (vi) the List of Shareholders
for AMD Admin; (vii) the AMD Saxony LLC Agreement; (viii) the Partnership
Agreement of AMD Saxony LLC & Co., KG; (ix) the Assignment and Trust Agreement
between AMD Holding and AMD Saxony LLC; (x) the Purchase and Assignment
Agreement between AMD Holding and AMD Admin; (xi) the Resolution of AMD Holding
as Shareholder of AMD Saxonia for Transfer of Fractional Share to AMD Saxony
LLC; (xii) the Notification to AMD Saxonia of Assignment of Fractional Share to
AMD Admin; (xiii) the List of Shareholders of AMD Saxonia (reflecting addition
of AMD Admin); (xiv) the Resolution of AMD Holding and AMD Saxony LLC as
Shareholders of AMD Saxonia for Transfer of Fractional Share to AMD Admin; (xv)
the Notification to AMD Saxonia of Assignment of Fractional Share to AMD Saxony
LLC; (xvi) the List of Shareholders of AMD Saxonia (reflecting addition of AMD
Saxony LLC); (xvii) the Resolution of AMD Holding, AMD Admin and AMD Saxony LLC
as Shareholders of AMD Saxonia Approving Conversion to a Limited Partnership;
(xviii) the Resolution of AMD Inc. as Shareholder of AMD Holding Approving
Conversion of AMD Saxonia; (xix) Application to the Commercial Register for
Conversion of AMD Saxonia to a Limited Partnership; (xx) Application to the Real
Estate Register for Change in AMD Saxonia's Name; (xxi) the Transfer Agreement
for Transfer Back Of Fractional Share between AMD Holding and AMD Saxony LLC;
(xxii) Application to the Commercial Register for Transfer Back of Fractional
Share by AMD Saxony LLC to AMD Holding; (xxiii) Power of Attorney regarding
Removal of AMD Saxony LLC as General Partner of AMD Saxonia; and (xxiv) any
other agreement or document designated by the AMD Companies (with the consent of
the Agent) in addition to or in substitution for any of the above-named
documents or agreements as a "Conversion Document."
"Conversion Effective Date" means the date on which the
Registration takes effect.
"Design/Build Agreement" means the Design/Build Agreement for
the construction of the Plant and the Design Center, in the form set out in
Schedule 39 to the Loan Agreement, between the Contractor and AMD Saxonia.
"Design Center" means the research, design, and development
facilities constructed or to be constructed by AMD Saxonia and integrated with
the Plant for the purpose of designing and developing a broad spectrum of
state-of-the-art and other digital components such as micro-processors and
circuits for the telecommunications and multi-media sectors, and improvements
thereof.
11
"Deutsche ▇▇▇▇ Equivalent" means, with respect to any Class A
Sponsors' Loan, the amount, expressed in Deutsche Marks, which results from the
conversion of Dollars to Deutsche Marks at a spot rate of exchange equal to the
greater of (i) DM 1.45 for $1.00 and (ii) the Agent's spot rate of exchange,
expressed in Deutsche Marks, for the sale of Dollars for Deutsche Marks
prevailing on the date two (2) Business Days prior to the date such Class A
Sponsors' Loan is or was due to be made.
"Deutsche Marks" and the sign "DM" mean lawful money of the
Federal Republic of Germany from time to time.
"Disclosure Schedules" means the AMD Saxonia Disclosure
Schedule and the Sponsors' Disclosure Schedule, collectively.
"Dollars" and the sign "$" mean the lawful money of the United
States of America from time to time.
"Dresdner" has the meaning assigned to that term in the
introduction to this Agreement.
"Encumbrance" means, (i) when used with reference to any
Person organized and existing under the laws of the Federal Republic of Germany,
any security interest in property or in rights to secure payment of a debt or
performance of an obligation, including, but not limited to, mortgages
(Hypotheken), land charges (Grundschulden), annuity charges (Rentenschulden),
contractual and legal pledges (vertragliche und gesetzliche Pfandrechte)
including pledges or mortgages in favour of execution creditors
(Pfandungspfandrechte und Zwangshypotheken), transfers of title by way of
security (Sicherungsubereignungen), assignments of claims or other property or
rights by way of security (Sicherungsabtretungen und sonstige Ubertragungen ▇▇▇
▇▇▇▇▇▇ oder Rechten zur Sicherung), retention of title arrangements
(Eigentumsvorbehalt) including extended retentions of title (erweiterter und
verlangerter Eigentumsvorbehalt), and any other priority or preferential
arrangement of any kind or nature whatsoever, and (ii) when used with reference
to any other Person, any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge (including floating and fixed charges) against or interest in property to
secure payment of a debt or performance of an obligation, or other preferential
arrangement of any kind or nature whatsoever in respect of any property, but not
including the interest of a lessor under a lease which, in accordance with GAAP,
would be classified as an operating lease.
"Equipment Suppliers" means, collectively, each Person party
to a contract or other agreement with AMD Saxonia in the capacity of a supplier
of fixed or tangible current assets for the Project; it being understood and
agreed that AMD Inc. or an Affiliate thereof (other than AMD Saxonia) may be an
Equipment Supplier.
"Equipment Supplier's Consent and Agreement" means, with
respect to an Equipment Supplier, such Equipment Supplier's Consent and
Agreement, in the form set out in Schedule 40 to the Loan Agreement or Annex 3
to Schedule 49 or Annex 3 to Schedule 55 of the Loan Agreement, as the case may
be, or in such other form as is consented to by the Security
12
Agent, which pertains to a Material Equipment Supply Contract or which is
otherwise required pursuant to the terms of the Loan Agreement or the Security
Documents.
"Equipment Supply Contract" means each agreement (also in the form of
an order) between AMD Saxonia and suppliers (including AMD Inc. or one of its
Affiliates) relating to the acquisition by, and delivery to, AMD Saxonia of
fixed or tangible current assets for the Project but excluding Excepted Software
Agreements.
"Equity Capital" means (i) with respect to AMD Saxonia (a) at any time
prior to the Conversion Effective Date, registered stated capital (Stammkapital)
and (b) at any time on or after the Conversion Effective Date, capital
(Haftsummen and Pflichteinlagen) and (ii) with respect to AMD Holding registered
stated capital (Stammkapital).
"Euro" means the currency introduced at the start of the third stage
of economic and monetary union pursuant to the treaty establishing the European
Community, as amended by the treaty on European Union effective January 1, 1999.
"Event of Default" means an event which would entitle the Banks to
terminate their commitments and the loan facilities pursuant to ss. 21 of the
Loan Agreement.
"Event of Termination" means any event which would entitle a party to
an Operative Document to terminate such Operative Document in accordance with
the terms thereof; provided, however, that such event could reasonably be
expected to have a material adverse consequence to the entirety of the
transactions contemplated by the Operative Documents.
"Excepted Software Agreements" means software licences and software
service agreements entered into by AMD Saxonia and which are used exclusively:
(i) for financial planning, business administration systems and
similar ancillary administrative functions which are not linked
or connected with (a) the production process in the Plant; (b)
general bookkeeping and invoicing; and (c) production planning;
or
(ii) in the Design Center.
"Financing Documents" means, collectively, the Loan Agreement, this
Agreement, the Amendment Agreements, the Sponsors' Guaranty, the Sponsors'
Subordination Agreement, the AMD Inc. Subordination Agreement, the Sponsors'
Loan Agreement, the Revolving Loan Facility Agreement, the AMD Saxonia/Dresdner
Subsidy Agreement, the SAB/Dresdner Subsidy Agreement, the 65/35 Burgschaft, the
AMD Saxonia Hedging Contract, the Security Documents, each Consent and
Agreement, and each other instrument or document designated by the Agent (with
the consent of each AMD Company) as a Financing Document under and for purposes
of this Agreement.
"Fiscal Month" means any fiscal month of a Fiscal Year.
"Fiscal Quarter" means any fiscal quarter of a Fiscal Year.
13
"Fiscal Year" means any period of approximately 12 consecutive
calendar months ending on the last Sunday in December; references to a Fiscal
Year with a number corresponding to any calendar year (e.g., the "1997 Fiscal
Year") refer to the Fiscal Year ending on the last Sunday in December occurring
during such calendar year.
"GAAP" means, (x) in the case of AMD Saxonia, AMD Holding or AMD
Admin, or its respective financial statements, those generally accepted
accounting principles in general use by the accounting profession (Grundsatze
ordnungsgemasser Buchfuhrung und Bilanzierung) and in effect in Germany on the
date on which such financial statements are delivered pursuant to this Agreement
(it being expressly understood and agreed that AMD Saxonia's monthly and
quarterly financial statements, as the case may be, shall be prepared on the
basis of a Fiscal Month or a Fiscal Quarter (rather than on the basis of a
calendar month or a calendar quarter, as the case may be), but shall be
reconciled on an annual basis), and (y) in the case of AMD Inc. or AMD Saxony
LLC or their respective financial statements, generally accepted accounting
principles set forth from time to time in the opinions and 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 U.S. accounting profession), which are applicable to the
circumstances as of the date of determination.
"Governmental Approvals" means each and every authorization, consent,
approval, licence, permit, franchise, certificate, exemption or order of or
filing or registration with, any Governmental Authority or legal or regulatory
body, federal, state, local or foreign except for (i) routine or periodic
information reports which, if not filed, would not in any case or in the
aggregate, adversely affect the due authorization, execution, delivery,
validity, legality, or enforceability of any of the Operative Documents, (ii)
filings of certificates or articles of incorporation, registrations or
qualifications of a foreign corporation or similar corporate filings, and (iii)
returns and filings with respect to taxes.
"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.
"Guarantors" means the Federal Republic of Germany and the Free State
of Saxony in their respective capacities as guarantors pursuant to the 65/35
Burgschaft.
"Guaranty Decision" means the decision dated 2 July 1996 set out in
Schedule 24 to the Loan Agreement concerning the guaranty application made by
AMD Saxonia, including the following documents:
(i) the specimen credit agreement F 13.09.1990 (1993 Edition)
Federal/State or THA
(ii) the General Terms and Conditions applicable to the assumption of
Guaranties by the Federal Republic of Germany and the States of
the
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇) in the edition dated F 04.01.1993
Federal/State, together with
(iii) Notes relating to applications for guaranties and loans of the
Treuhandanstalt Berlin and/or Federal and State guaranties for
projects in the Accession Territory in the edition dated 1993 F
12.10.1990,
(iv) together with the Memorandum of Understanding ("Gemeinsame
Feststellungen") dated 19 February 1997, the Amendment Decision
of the Guarantors of 12 December 1997 and a letter of
confirmation from C&L Deutsche Revision AG dated 5 January 1998;
(v) the letter from Deutsche Revision AG to Dresdner Kleinwort
▇▇▇▇▇▇ dated 17 November 2000; and
(vi) the letter from C&L Deutsche Revision AG to Dresdner Kleinwort
▇▇▇▇▇▇▇▇▇▇▇ and Dresdner Bank AG dated 22 May 2002.
"Indebtedness" of any Person, means, without duplication:
(i) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures,
notes, or similar instruments;
(ii) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, guarantees, and bankers'
acceptances issued for the account of such Person, whether or
not drawn or paid;
(iii) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as
Capitalised Lease Liabilities;
(iv) all net liabilities of such Person under or in connection with
any interest rate, currency, commodity, or other hedging
contracts to which such Person is a party;
(v) all other items which, in accordance with GAAP, would be
included as liabilities on the liability side of the balance
sheet of such Person as of the date at which Indebtedness is to
be determined;
(vi) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred
purchase price of property or services, and indebtedness
(including pre-paid interest thereon) secured by an Encumbrance
on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall
have been assumed by such Person or is limited in recourse; and
(vii) all Contingent Liabilities of such Person in respect of any of
the foregoing.
15
For all purposes of this Agreement, the Indebtedness of any Person
shall include the Indebtedness of any partnership or unincorporated
joint venture in which such Person is a general partner or a joint
venturer, respectively.
"Information Memorandum" means the Information Memorandum, dated
September 1996, entitled "AMD Saxony Manufacturing GmbH, Dresden: DM
1,650,000,000 Information Memorandum Limited Recourse Financing", prepared and
furnished by the AMD Companies to the Agent, for distribution to prospective
lenders under the Loan Agreement, as such Information Memorandum may at any time
be amended or modified with the consent of each AMD Company and in effect.
"Instructing Group" means in respect of any matter, the Banks whose
votes are required to pass a resolution on such matter as determined in
accordance with ss. ss. 22.5 and 22.6 of the Loan Agreement.
"License Agreement" means the License Agreement, in the form set out
in Schedule 38 to the Loan Agreement, between AMD Inc., AMD Holding, and AMD
Saxonia.
"Limited Partnership" means a limited partnership
(Kommanditgesellschaft) under the laws of the Federal Republic of Germany.
"Loan Agreement" has the meaning assigned to that term in the second
recital of this Agreement.
"Loan Agreement Effective Date" means the date specified by the Agent
in a notice given to the parties hereto as being the first date on or as of
which (i) the Loan Agreement has been executed and delivered by each of the
respective parties thereto, and (ii) the Agent has received each of the
documents referred to in ss. ss 5.1.1 to 5.1.16 of the Loan Agreement, in each
case in the form, and with the substance, specified therein.
"Loan Agreement Termination Date" has the meaning assigned to that
term in Section 15.7.
"Management Plan" means the project concept attached as Schedule 14 to
the Loan Agreement, as the same may from time to time be further amended or
modified by AMD Saxonia (with the consent of each Sponsor, whose consent will
not be unreasonably delayed or withheld) in accordance with the terms of this
Agreement and the Loan Agreement and in effect.
"Management Service Agreement" means the Amended and Restated
Management Service Agreement, in the form set out in Schedule 37 to the Loan
Agreement, between AMD Inc., AMD Holding, and AMD Saxonia.
"Material Adverse Effect" means
(i) a material adverse change in, or a material adverse effect upon,
the operations, business, properties, condition (financial or
otherwise), or prospects of any AMD Company, or of AMD Inc. and
its Subsidiaries, taken as a whole;
16
(ii) with respect to the Contractor, a material adverse change in, or
a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise), or prospects of
the Contractor and its Subsidiaries, taken as a whole;
(iii) with respect to an Equipment Supplier, a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise), or prospects of
such Equipment Supplier and its Subsidiaries, taken as a whole;
(iv) with respect to a Service Supplier, a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise), or prospects of
such Service Supplier and its Subsidiaries, taken as a whole;
(v) a material impairment of the ability of any AMD Company, the
Contractor, any Equipment Supplier, or any Service Supplier to
perform its obligations under any Operative Document to which it
is or is to be a party; or
(vi) a material adverse effect upon (i) the legality, validity,
binding effect, or enforceability against any AMD Company, the
Contractor, any Equipment Supplier, or any Service Supplier of
any Operative Document, or (ii) the perfection or priority of
any Security granted under any of the Security Documents;
provided, however, that with respect to an event described in clause
(ii), (iii), (iv), or, with respect to the Contractor, an Equipment
Supplier, or a Service Supplier, clause (v) or (vi) above, such event
could reasonably be expected to have a material adverse consequence to
the entirety of the transactions contemplated by the Operative
Documents.
"Material AMD Inc. Subsidiary" means, at any time, any Subsidiary of
AMD Inc. having at such time (either on an individual basis or on a consolidated
basis for such Subsidiary and its Subsidiaries) either:
(i) total (gross) revenues for the preceding four Fiscal Quarter
period in excess of 5% of gross revenues for AMD Inc. and its
Subsidiaries on a consolidated basis for such period, or
(ii) total assets, as of the last day of the preceding Fiscal
Quarter, having a net book value in excess of 5% of total assets
for AMD Inc. and its Subsidiaries on a consolidated basis as of
such date,
in each case, based on the then most recent annual or quarterly
financial statements delivered to the Agent hereunder; provided,
however, that AMD Saxonia, AMD Saxony LLC, AMD Holding and AMD Admin
shall, for purposes of this Agreement, each be deemed to be a Material
AMD Inc. Subsidiary.
17
"Material Equipment Supply Contract" means each Equipment Supply
Contract:
(i) pursuant to which AMD Saxonia incurs obligations in
aggregate in excess of DM 3,750,000, or
(ii) which has an initial term in excess of 12 months, or
which has an indefinite term and, in either case, cannot
be terminated by AMD Saxonia on less than 12 months'
notice, or
(iii) which is listed in Part I of Schedule 40 to the Loan
Agreement.
"Material Service Contract" means each Service Contract (with the
exception of the AMD Saxonia Wafer Purchase Agreement, the Management Service
Agreement and employment contracts):
(i) pursuant to which AMD Saxonia incurs obligations in
aggregate in excess of DM 2,500,000 during the term of
the contract, or
(ii) which has an initial term in excess of 12 months, or
which has an indefinite term and, in either case, cannot
be terminated by AMD Saxonia on less than 12 months'
notice, or
(iii) which is listed in Part I of Schedule 40 to the Loan
Agreement.
"Minimum Liquidity Covenant" means the covenant described as
(Mindestliquiditatskennzahl) in Schedule 17 to the Loan Agreement, pursuant to
which AMD Saxonia has undertaken to ensure at all times from 1 July 2001 until
the payment in full of all Secured Obligations, the balance standing to the
credit of the Project Accounts shall be ***
"Minimum Liquidity Covenant Calculation Date" means, with effect
from 1 July 2001:
(i) the date as of which the Minimum Liquidity Covenant is,
or is required to be, calculated in any certificate of
compliance furnished by AMD Saxonia pursuant to ss.
16.2.1 of the Loan Agreement;
(ii) the date so referred to in a confirmation relating to
the financial covenants given by the Auditor pursuant
to ss. 16.2.2 of the Loan Agreement; and
(iii) each other date on which the Agent has reasonably
requested a calculation of the Minimum Liquidity Covenant
to be made.
"Operative Documents" means, collectively, the Project
Agreements, the Financing Documents, the AMD Inc. Primary Bank Credit Agreement,
the Management Plan, each Project Budget, each Project Schedule, each Approved
Project Budget, each Approved Project Schedule, the Information Memorandum, the
Completion Certificates, the Conversion
----------------------------
***Confidential information omitted and filed separately with the Securities and
Exchange Commission.
18
Documents, and each other instrument or document designated by the Agent (with
the consent of each AMD Company) as an Operative Document under and for purposes
of this Agreement.
"Opinion Reservations" means limitations on the enforceability of
legal documents as a matter of German law or the law of the United States of
America or one of its states and as incorporated as qualifications to an
enforceability opinion in the legal opinions delivered to and accepted by the
Agent under and pursuant to ss. 5.1.11 of the Loan Agreement or in the legal
opinions delivered to and accepted by the Agent under and pursuant to Amendment
No. 1 to the Loan Agreement dated 6 February, 1998, Amendment No. 2 to the Loan
Agreement dated 29 June, 1999, Amendment No. 3 to the Loan Agreement dated 20
February, 2001 and Amendment No. 4 to Loan Agreement dated 3 June 2002 .
"Organizational Documents" means, with respect to any AMD
Company, its certificate of incorporation, certificate of formation, Memorandum
and Articles of Association, charter, by-laws, and (except with respect to AMD
Inc.) all shareholder agreements, voting trusts, and similar arrangements
applicable to its capital.
"Paying Agent" has the meaning assigned to that term in the
second recital of this Agreement.
"Perform in Accordance with the Plans and Specifications" means,
for purposes of the Technical Completion tests, and when used for the period
from and after Technical Completion, the performance by the Plant, on a
substantially continuous basis substantially as intended under normal operating
conditions, of the functions for which it was designed in accordance with the
Plans and Specifications. In order to certify that the Plant is capable of
performing substantially as intended under normal operating conditions, the
Technical Advisor will during normal operations of the Plant (and without, to
the extent practicable, disrupting production at the Plant), observe the
operation of the Plant and its component parts to determine if the Plant and its
component parts (except for uninstalled spares):
(x) are in operation and performing normally; and
(y) demonstrate as a whole the operation of the principal
component parts of the Plant at production rates
consistent with the design capacity of the Plant (as
observed by the Technical Advisor from the operating
log sheets and such other data as may be reasonably
available and is demonstrated from AMD Saxonia's
operating reports, copies of which will be obtained by
the Technical Advisor).
The Technical Advisor will not be required to conduct specific
tests on individual pieces of the Plant or its component parts in
making this determination. In order to certify that the Plant has
met the tests, or has demonstrated performance equivalent to the
tests, set forth in the definition "Perform in Accordance with
the Plans and Specifications", the Technical Advisor will:
(i) in the case of demonstrated performance equivalent to
the tests of the Plant (or portion thereof), obtain and
rely on copies of, review, and analyze, AMD Saxonia's
operating data comprising, but not limited to,
19
daily log sheets, yield test results, and product
shipments and, based upon the foregoing, will determine
if the Plant (or such portion) has demonstrated its
required performance; and
(ii) in the case of a formal test run, observe the operations
during normal business hours to verify the operating
rates and time of operation and obtain and rely on copies
of and review and analyse AMD Saxonia's operating data
(as specified in clause (i) above) to independently
determine if the Plant (or portion thereof) has
demonstrated its required performance.
"Permitted Encumbrances" means, (i) in the case of AMD Saxonia,
AMD Saxony LLC, AMD Admin or AMD Holding, any Encumbrance arising by operation
of law in the ordinary course of business, Encumbrances arising in the ordinary
course of business as a result of a supplier retaining title to goods supplied
pending payment for such goods, and Encumbrances on the Security pursuant to the
Security Documents, and (ii) in the case of AMD Inc. or any Subsidiary of AMD
Inc. (other than AMD Saxonia, AMD Saxony LLC, AMD Admin or AMD Holding), a
"Permitted Lien" under, and as defined in, the AMD Inc. 1999 Loan and Security
Agreement (or the equivalent thereof in any other AMD Inc. Primary Bank Credit
Agreement).
"Person" means an individual or a corporation, partnership,
limited partnership, trust, incorporated or unincorporated association, joint
venture, joint stock company, government (or an agency or political subdivision
thereof), or other juridical entity of any kind.
"Plans and Specifications" means the plans and specifications to
be prepared by AMD Saxonia and approved by each of the Sponsors (which approval
shall not be unreasonably delayed or withheld), the Technical Advisor, and the
Agent for the fitting out of the Plant and the Design Center, as the same may be
amended by AMD Saxonia from time to time with the consent of each Sponsor and
the Agent (which consent, in the case of each Sponsor, shall not be unreasonably
delayed or withheld); provided, that amendments to the plans and specifications
which do not, individually or in the aggregate, reduce or adversely affect the
value of the Plant and the Design Center in any material respect or the capacity
and purpose of the Plant as set out in the plans and specifications as
originally approved by the Technical Advisor and the Agent for purposes of the
Operative Documents shall not require the consent of the Agent.
"Plant" means the advanced silicon wafer production facility
constructed or to be constructed by AMD Saxonia in or near Dresden, Germany to
manufacture integrated circuits in wafer form using high-volume semi-conductor
wafer fabrication processes.
"Primary Secured Obligations" means, at the time any
determination thereof is to be made, all Secured Obligations then owing and,
whether or not then owing, all Secured Obligations in respect of the principal
of and interest on the Advances.
"Project" has the meaning assigned to that term in the first
recital of this Agreement.
20
"Project Accounts" means the account or accounts referred to and
opened pursuant in ss. 19.1 of the Loan Agreement (including any sub-accounts
into which any such account may be divided), as such account may be renewed,
redesignated, or renumbered from time to time.
"Project Agreements" means, collectively, the Wafer Purchase
Agreements, the Research Agreements, the Management Service Agreement, the
License Agreement, the Design/Build Agreement, the Equipment Supply Contracts,
the Service Contracts, the AMD Inc. Guaranty, and each other instrument or
document designated by the Agent (with the consent of each AMD Company) as a
Project Agreement under and for purposes of this Agreement.
"Project Budget" means the budget, in the form set out in
Schedule 6 to the Loan Agreement, with such changes (if any) to its form as the
Agent may from time to time reasonably require, of projected Capital Expenditure
for the implementation of the Project and the Project Phases in the
implementation of the Project prior to Completion, including a detailed
projected sources and uses of funds statement, broken down for each Project
Phase on a Fiscal Quarter by Fiscal Quarter basis, as prepared by AMD Saxonia
and approved by each Sponsor in accordance with the Management Plan and the
Project Schedule, such approval not to be unreasonably withheld or delayed.
"Project Costs" means all Capital Expenditure and other costs
which are incurred by AMD Saxonia in connection with the Project.
"Project Phase" means each project phase set out in the Approved
Project Schedule contemplated for the implementation of the Project.
"Project Schedule" means the schedule, in the form set out in
Schedule 7 to the Loan Agreement, with such changes (if any) to its form as the
Agent may from time to time reasonably require, of Project Phases to be achieved
during the construction of the Project prior to Completion, as prepared by AMD
Saxonia and approved by each Sponsor, such approval not to be unreasonably
withheld or delayed.
"Registration" means the registration of the Conversion with the
Commercial Register in Dresden.
"Relevant AMD Inc. Individual" means any Vice President or more
senior officer of AMD Inc., some or all of whose responsibilities include the
Project.
"Requirements of Law" means, with respect 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 such Person or any of its property or to which such Person or any of its
property is subject.
"Research Agreements" means, collectively, the AMD Saxonia
Research Agreement and the AMD Holding Research Agreement.
"Revolving Loan Facility Agreement" means the $750,000,000
subordinated unsecured Revolving Loan Facility Agreement dated 20 February 2001
among AMD Inc., AMD
21
Holding, and AMD Saxonia, as amended by the First Amendment to the Revolving
Loan Facility Agreement dated 3 June 2002.
"Revolving Loans" means, the subordinated unsecured revolving
loans made by either Sponsor to AMD Saxonia under the terms of the Revolving
Loan Facility Agreement.
"SAB" means Sachsische Aufbaubank GmbH, a Gesellschaft mit
beschrankter Haftung organised and existing under the laws of Germany and
registered in Dresden, Germany, acting on behalf of the Free State of Saxony.
"SAB/Dresdner Subsidy Agreement" means the Agreement, in the form
set out in Schedule 26 to the Loan Agreement, between SAB and Dresdner.
"SAB Related Agreements" means the AMD Saxonia/Dresdner Subsidy
Agreement and the SAB/Dresdner Subsidy Agreement, collectively.
"Same Day Funds" means, at the time of any determination, funds
which are immediately available to AMD Saxonia.
"Scheduled Project Phase Completion Certificates" means the
Scheduled Project Phase Technical Completion Certificate (Obligors) and the
Scheduled Project Phase Technical Completion Certificate (Technical Advisor).
"Scheduled Project Phase Technical Completion" when used with
reference to a Project Phase, shall be deemed to have occurred when:
(i) all of the conditions set forth in the form of Scheduled
Project Phase Technical Completion Certificate (Obligors)
attached to the Loan Agreement as Schedule 9 thereto have
been satisfied in all material respects, all of the
statements appearing in said form of Certificate are true
and correct in all material respects, in each case with
respect to such Project Phase, and the Agent shall have
received a fully executed counterpart of such
Certificate; and
(ii) the Agent shall have received a fully executed
counterpart of the Scheduled Project Phase Technical
Completion Certificate (Technical Advisor).
"Scheduled Project Phase Technical Completion Certificate
(Obligors)" means a Certificate, in the form set out in Schedule 9 to the Loan
Agreement (appropriately completed), executed by the AMD Companies, and
delivered to the Agent.
"Scheduled Project Phase Technical Completion Certificate
(Technical Advisor)" means a Certificate, in the form set out in Schedule 10 to
the Loan Agreement (appropriately completed), executed by the Technical Advisor,
and delivered to the Agent.
22
"Secured Obligations" means all actual and contingent obligations of
AMD Saxonia to the Secured Parties under or arising out of the Financing
Documents and the Security Documents.
"Secured Parties" means the Agent, the Paying Agent, the Security
Agent, and the Banks, collectively.
"Security" means, collectively, the AMD Inc. Security, the AMD Holding
Security, the AMD Saxony LLC Security, the AMD Admin Security and the AMD
Saxonia Security.
"Security Agent" has the meaning assigned to that term in the
introduction to this Agreement.
"Security Documents" means, collectively, the AMD Saxonia Security
Documents, the AMD Holding Security Documents, the AMD Saxony LLC Security
Documents, the AMD Admin Security Documents, the AMD Inc. Pledge Agreement Over
Membership Interests in AMD Saxony LLC, the AMD Inc. Share Pledge Agreement, and
each other instrument or document designated by the Agent (with the consent of
each AMD Company) as a Security Document under and for purposes of this
Agreement.
"Service Contract" means each agreement (which may be in the form of
an accepted order) between AMD Saxonia and a Service Supplier relating to the
acquisition by, and delivery to, AMD Saxonia of services for the Project but
excluding Excepted Software Agreements.
"Service Suppliers" means, collectively, each Person party to a
contract or other agreement with AMD Saxonia in the capacity of a supplier of
services for the Plant or the Design Center.
"Service Supplier's Consent and Agreement" means, with respect to a
Service Supplier, such Service Supplier's Consent and Agreement, in the form set
out in Schedule 40 to the Loan Agreement or Annex 3 to Schedule 49 of the Loan
Agreement, as the case may be, or such other form as is consented to by the
Security Agent, which pertains to a Material Service Contract or which is
otherwise required pursuant to the terms of the Loan Agreement or the Security
Documents.
"65/35 Burgschaft" means the several maximum amount shortfall
guaranties issued by each of the Free State of Saxony (26%) and the Federal
Republic of Germany (39%) in accordance with the Guaranty Decision up to a
maximum aggregate amount of DM 975,000,000 (nine hundred and seventy five
million Deutsche Marks), together with 65% of the shortfall of interest and
costs, vested with a first right of satisfaction in favour of the Banks over all
security granted by each AMD Company as security for the Banks' risk of recovery
(but subject to a set-off of 65 % of payments (if any) made under the Sponsors'
Guaranty against the Guarantors' obligations under the aforesaid shortfall
guaranties).
"Sponsors" has the meaning assigned to that term in the introduction
to this Agreement.
23
"Sponsors' Consent and Agreement" means the Sponsors' Consent and
Agreement, in the form set out in Schedule 31 to the Loan Agreement, between the
Sponsors, the Agent, and the Security Agent.
"Sponsors' Disclosure Schedule" means the Disclosure Schedule attached
as Schedule II, as it may be amended, supplemented, or otherwise modified from
time to time by the Sponsors with the written consent of the Agent.
"Sponsors' Guaranty" means the Sponsors' Guaranty, in the form set out
in Schedule 32 to the Loan Agreement, executed by the Sponsors in favour of the
Agent and the Security Agent for the benefit of the Secured Parties.
"Sponsors' Loan Agreement" means the Sponsors' Loan Agreement, in the
form set out in Schedule 29 to the Loan Agreement, between the Sponsors, as
lenders, and AMD Saxonia, as borrower.
"Sponsors' Loans" means all loans made or to be made by AMD Inc. or
AMD Holding to AMD Saxonia in accordance with the terms of the Sponsors' Loan
Agreement, which loans are subordinated in accordance with the Sponsors'
Subordination Agreement.
"Sponsors' Subordination Agreement" means the Sponsors' Subordination
Agreement, in the form set out in Schedule 30 to the Loan Agreement, executed by
the Sponsors, AMD Saxonia, and the Security Agent.
"Sponsors' Warranty Date" means each of the following dates which
occurs prior to the exercise of rights by the Security Agent under any of the
Security Documents: (i) the Loan Agreement Effective Date, (ii) each date AMD
Saxonia delivers a notice of drawing for an Advance under the Loan Agreement,
(iii) each date the AMD Companies deliver each Scheduled Project Phase Technical
Completion Certificate (Obligors), (iv) the date of Technical Completion, (v)
the Conversion Effective Date and (vi) each date the Sponsors deliver the
certificate referred to in Section 13.1(i)(c).
"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).
"Subsidiary" means with respect to (i) any corporation organised and
existing under the laws of the Federal Republic of Germany, a subsidiary within
the meaning of the term "abhangiges Unternehmen" in ss. 17 of the German Stock
Corporation Act (Aktiengesetz); and (ii) any Person, a corporation, partnership,
limited partnership, limited liability company, trust, incorporated or
unincorporated association or other entity of which such Person or such Person
and/or such Person's other Subsidiaries own, directly or indirectly, more than
50% of the ordinary voting power for the election of directors or others
performing similar functions.
"Subsidies" has the meaning assigned to that term in Section 6.1.
24
"Substitution" means the substitution of AMD Admin as general partner
(Komplementar) of AMD Saxonia in place of AMD Saxony LLC in accordance with the
AMD Saxonia Partnership Agreement.
"Taxes" has the meaning assigned to that term in Section 14.5(a).
"Technical Advisor" means Fraunhofer Institut fur Siliziumtechnologie,
Itzehoe, or such other technical advisor as may be appointed by the Security
Agent with the consent of each AMD Company, which consent shall not be
unreasonably delayed or withheld.
"Technical Advisor's Report" means that certain report dated October
16, 1996 from the Technical Advisor to the Agent prepared for purposes of this
Agreement and the other Operative Documents and the transactions contemplated
hereby and thereby.
"Technical Completion" shall be deemed to have occurred when:
(i) all of the conditions set forth in the form of Technical
Completion Certificate (Obligors) attached to the Loan Agreement
as Schedule 9 thereto have been satisfied in all material
respects, all of the statements appearing in said form of
Certificate are true and correct in all material respects, and
the Agent shall have received a fully executed counterpart of
such Certificate; and
(ii) the Agent shall have received a fully executed counterpart of the
Technical Completion Certificate (Technical Advisor).
"Technical Completion Certificate (Obligors)" means a certificate, in
the form set out in Schedule 9 to the Loan Agreement (appropriately completed
and with the legal opinion therein referred to attached), executed by the AMD
Companies, and delivered to the Agent.
"Technical Completion Certificates" means the Technical Completion
Certificate (Obligors) and the Technical Completion Certificate (Technical
Advisor).
"Technical Completion Certificate (Technical Advisor)" means a
certificate, in the form set out in Schedule 10 to the Loan Agreement
(appropriately completed), executed by the Technical Advisor, and delivered to
the Agent.
"Total Revolving Loan Commitment Amount" means $ 750,000,000 (seven
hundred and fifty million Dollars) or the "Euro Equivalent" (under, and as
defined therein) thereof, or such reduced amount as shall have been agreed upon
by each of the Sponsors, AMD Saxonia, the Agent, and the Banks.
"Total Tranche A Commitment Amount" means DM 1,500,000,000 (one
billion five hundred million Deutsche Marks), as such amount shall be reduced by
any reductions to (but not utilizations of) the commitments of the Banks under
"Facility A" under the Loan Agreement.
"Tranche A Advances" means Advances made by the Banks or any Bank
pursuant to "Facility A" under the Loan Agreement.
25
"Unmatured Event of Default" means an 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.
"Wafer" has the meaning assigned to that term in the AMD Saxonia Wafer
Purchase Agreement.
"Wafer Purchase Agreements" means, collectively, the AMD Saxonia Wafer
Purchase Agreement and the AMD Holding Wafer Purchase Agreement.
SECTION 1.2 Accounting and Financial Determinations. Unless otherwise specified,
all accounting terms used herein shall be interpreted, all accounting
determinations and computations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared in accordance
with, GAAP. When used herein, the term "financial statements" shall include the
notes and schedules thereto, but need not include such notes or schedules when
used with reference to such statements of any Person as of any date other than
the end of a Fiscal Year of such Person. In the determination of any periods
pursuant to any provision hereof, unless otherwise specified, the term "from"
means "from (and including)", the term "to" means "to (and excluding)", and the
term "until" means "until (and excluding)".
SECTION 1.3 Construction. In this Agreement, unless the context requires
otherwise, any reference to:
"assets" includes any asset, property, or right and includes uncalled
capital;
"including" or "includes" means including or includes without
limitation;
"law" and/or "regulation" includes any constitutional provision,
treaty, convention, statute, act, law, decree, ordinance, subsidiary
or subordinate legislation, order, rule, or regulation having the
force of law, and any rule of civil or common law or equity;
"order" includes any judgment, injunction, decree, determination, or
award of any court, arbitration, or administrative tribunal;
"tax" includes any tax, levy, duty, charge, impost, fee, deduction, or
withholding of any nature now or hereafter imposed, levied, collected,
withheld, or assessed by any taxing or other authority and includes
any interest, penalty, or other charge payable or claimed in respect
thereof, and "taxation" shall be construed accordingly; and
"winding-up" includes any winding-up, liquidation, dissolution, or
comparable process in any jurisdiction.
SECTION 1.4 Miscellaneous. In this Agreement, unless the context requires
otherwise, any reference to an Operative Document or a Project Agreement
(including, in each case, any reference thereto as being in the form set out in
a Schedule to the Loan Agreement) shall be a reference to such Document or
Agreement as it shall have been, or from time to time be,
26
amended, varied, re-issued, replaced, novated or supplemented, in each case, in
accordance with its terms and this Agreement. For the avoidance of doubt, any
reference in the Agreement to stated capital (Stammkapital), capital reserves or
any other similar term relating to the capital structure of a German limited
liability company shall, following the Conversion Effective Date, be deemed to
be a reference to the capital (Haftsummen and Pflichteinlagen) or capital
reserves of a limited partnership under German law, save to the extent the
context requires otherwise.
In this Agreement, unless the context requires otherwise, (i) any statutory
provisions shall be construed as references to those provisions as amended,
modified, re-enacted, or replaced from time to time; (ii) words importing a
gender include every gender; (iii) references to Sections and Schedules are to
Sections of and Schedules to this Agreement; and (iv) references to this
Agreement include its Schedules. Section headings are inserted for reference
only and shall be ignored in construing this Agreement. A time of day, unless
otherwise specified, shall be construed as a reference to Frankfurt am Main
time.
ARTICLE II
Contribution of Equity Capital
SECTION 2.1 Undertaking to Contribute. AMD Holding hereby undertakes to
contribute to AMD Saxonia, and AMD Inc. hereby undertakes to cause AMD Holding
to so contribute to AMD Saxonia (and AMD Inc. shall, to the extent necessary,
contribute sufficient funds, or otherwise cause sufficient funds to be made
available, to AMD Holding as shall be necessary to enable AMD Holding to so
contribute to AMD Saxonia), Equity Capital at the times and in the amounts set
forth in Section 2.2. For the avoidance of doubt:
(i) to the extent, but only to the extent, reflected in AMD Saxonia's
financial statements referred to in ss. 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), Equity
Capital contributed by the Sponsors to AMD Saxonia prior to the Loan
Agreement Effective Date shall be taken into account in determining
whether the Sponsors shall have complied with their obligations
under this Article II;
(ii) 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;
(iii) the Sponsors shall not be relieved of the foregoing obligations by
virtue of:
(a) any Sponsors' Loan made by either Sponsor pursuant to this
Agreement or the Sponsors' Loan Agreement or any Revolving Loan
made by either Sponsor pursuant to this Agreement or the
Revolving Loan Facility Agreement before or after the Loan
Agreement Effective Date, including without limitation, 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 3.5 below; or
(b) any payment made by either Sponsor under the Sponsors' Guaranty;
and
27
(iv) the amounts set forth in Section 2.2 below are minimum aggregate
amounts of Equity Capital to be received by AMD Saxonia; nothing
contained herein shall be deemed to preclude AMD Holding from making
additional contributions to AMD Saxonia's stated capital or capital
reserves in order to fulfil the obligations of the Sponsors
contained in Article IV, V, or VI, or for any other reason.
SECTION 2.2 Time of Contribution. The Equity Capital to be contributed to AMD
Saxonia under this Article II is due and payable to AMD Saxonia as follows:
(i) one or more instalments aggregating DM 108,750,000 (one hundred
eight million seven hundred fifty thousand Deutsche Marks) on or
before the date of the initial Advance under the Loan Agreement; it
being understood and agreed that, to the extent, but only to the
extent, reflected in AMD Saxonia's financial statements referred to
in ss. 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), all contributions to the Equity
Capital of AMD Saxonia prior to Loan Agreement Effective Date shall
be considered contributions to its Equity Capital for purposes of
this Section 2.2(i); and
(ii) in addition to the Equity Capital contributed or to be contributed
pursuant to Section 2.2(i) hereof, one or more additional
instalments aggregating DM 108,750,000 (one hundred eight million
seven hundred fifty thousand Deutsche Marks) by the earlier to occur
of:
(a) the acceleration of the Advances under the Loan Agreement
following the occurrence of an Event of Default (it being
understood and agreed that if, at the time of any such
acceleration, the Primary Secured Obligations are less than the
amount otherwise required to be contributed to AMD Saxonia under
this Section 2.2(ii), such contribution shall be made in an
amount which, when added to the aggregate amount of all
Sponsors' Loans and/or other contributions to AMD Saxonia's
Equity Capital or capital reserves then concurrently made, is
equal to the Primary Secured Obligations at such time); and
(b) December 31 1997;
provided, however, that such Equity Capital shall be required to be
contributed in whole or in part at any time prior to such dates if,
but only to the extent that, the ratio of:
(x) the sum of
(1) the then aggregate outstanding principal amount of
Sponsors' Loans,
plus
28
(2) the then aggregate amount of AMD Saxonia's Equity
Capital and capital reserves,
to
(y) the then aggregate outstanding principal amount of the
Advances, is less than 25:75.
SECTION 2.3 Form of Contribution. The Equity Capital under this Article II shall
be contributed in cash and in Same Day Funds to AMD Saxonia.
ARTICLE III
Sponsors' Loans
SECTION 3.1 Undertaking to Make Class A and Class C Sponsors' Loans. 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 3.2 (the "Class A Sponsors'
Loans");
(ii) [left intentionally blank]
(iii) in an aggregate principal amount of $70,000,000 (seventy million
Dollars) as contemplated by Section 3.4 (the "Class C Sponsors'
Loans").
For the avoidance of doubt:
(i) the obligations of the Sponsors under the Sponsors' Loan Agreement
are intended to reflect, rather than to be in addition to, the
obligations of the Sponsors pursuant hereto;
(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 3.5 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) 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 ss.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 III;
29
(iii) although the obligations of the Sponsors contained in this Article
III 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 be
unreasonably withheld or delayed), the Sponsors shall be deemed to
have complied with their obligations to make Class A 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 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) [left intentionally blank]
(d) of any obligation to make Class A 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 3.5 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 3.2; 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'
Loan 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 3.4, 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
30
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 3.1 and 3.4 if, but
only if:
(a) the Sponsors shall have complied with each of their respective
obligations under Article II 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), this Article III; 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 3.1 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, or
VI, or for any other reason.
SECTION 3.2 Time of Class A Sponsors' Loans. The Class A Sponsors' Loans will be
made in cash and in Same Day Funds and will be made as follows:
(i) at least DM 145,000,000 (one hundred forty five million Deutsche
Marks) for all such Class A Sponsors' Loans, the exact amount
thereof being equal to the Deutsche ▇▇▇▇ Equivalent of $100,000,000
(one hundred million Dollars) for all such Class A Sponsors' Loans,
by the earlier to occur of:
(a) the acceleration of the Advances under the Loan Agreement
following the occurrence of an Event of Default (it being
understood and agreed that if, at the time of any such
acceleration, the Primary Secured Obligations are less than
the amount otherwise required to be lent to AMD Saxonia under
this Section 3.2(i), the amount of such Class A Sponsors'
Loans shall be an amount which, when added to the aggregate
amount of all Sponsors' Loans and/or other contributions to
AMD Saxonia's Equity Capital or capital reserves then
concurrently made, is equal to the Primary Secured Obligations
at such time); and
(b) December 31, 1998; and
31
(ii) at least a further DM 145,000,000 (one hundred forty five million
Deutsche Marks) for all such Class A Sponsors' Loans, the exact
amount thereof being equal to the Deutsche ▇▇▇▇ Equivalent of
$100,000,000 (one hundred million Dollars) for all such Class A
Sponsors' Loans, by the earlier to occur of:
(a) the acceleration of the Advances under the Loan Agreement
following the occurrence of an Event of Default (it being
understood and agreed that if, at the time of any such
acceleration, the Primary Secured Obligations are less than
the amount otherwise required to be lent to AMD Saxonia under
this Section 3.2(ii), the amount of such Class A Sponsors'
Loans shall be an amount which, when added to the aggregate
amount of all Sponsors' Loans and/or other contributions to
AMD Saxonia's Equity Capital or capital reserves then
concurrently made, is equal to the Primary Secured Obligations
at such time); and
(b) December 31, 1999;
provided, however, that such Class A Sponsors' Loans shall be required to
be made in whole or in part at any time prior to the aforesaid dates if,
but only to the extent that, the ratio of:
(x) the sum of
(1) the then aggregate outstanding principal amount of
Sponsors' Loans,
plus
(2) the then aggregate amount of AMD Saxonia's Equity
Capital and capital reserves,
to
(y) the then aggregate outstanding principal amount of the
Advances under the Loan Agreement, is less than 25:75.
SECTION 3.3 [left intentionally blank]
SECTION 3.4 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 in full, pursuant to Section
4.07 of the AMD Inc. Senior Secured Note Indenture (prior to giving effect to
the Third Supplemental Indenture dated as of July 28, 2000), without utilizing
any of the provisions contained in the first proviso to Section 4.07(iv)
thereof, by the Contribution Date at the latest.
SECTION 3.5 Additional Sponsors' Loans. In addition to the Class A Sponsors'
Loans and the Class C Sponsors' Loans, the Sponsors (or either of them) may,
from time to time, at their
32
option make additional Sponsors' Loans in order to fulfil their respective
obligations contained herein or otherwise to provide additional funds to AMD
Saxonia.
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:
(i) is hereby expressly agreed by the parties hereto to be an
additional Sponsors' Loan pursuant to the terms of this Section
3.5 and subordinated as a Junior Liability (under, and as defined
in, the Sponsors' Subordination Agreement); and
(ii) shall not relieve the Sponsors from any obligation to make Class
A Sponsors' Loans or Class C Sponsors' Loans in accordance with
Sections 3.2, and 3.4 above respectively.
SECTION 3.6 Terms of Sponsors' Loans. The making of Sponsors' Loans will be made
on the terms, and shall be subject to the conditions, contained in the Sponsors'
Loan Agreement which, as provided in Section 3.1, is intended to reflect, rather
than to be in addition to, the obligations of the Sponsors contained in this
Article III.
SECTION 3.7 Undertaking to Make Revolving Loans/Terms of Revolving Loans. The
Sponsors hereby jointly and severally undertake that either Sponsor or both
Sponsors will make available to AMD Saxonia an unsecured, subordinated revolving
loan facility in an aggregate principal amount of $750,000,000 (seven hundred
fifty million Dollars) with a term of no earlier than 31 March, 2007 and bearing
interest at a rate per annum of 4%, on and subject to the terms and conditions
contained in the Revolving Loan Facility Agreement, which is intended to
reflect, rather than to be in addition to, the obligations of the Sponsors
contained in this Article III, to the extent applicable to Revolving Loans.
SECTION 3.8 Time of Revolving Loans. Revolving Loans will be made in cash and in
Same Day Funds:
(i) in such amounts as shall be required from time to time to ensure
that as from 1 July 2001, the Minimum Liquidity Covenant is
complied with at all times and, in any event, upon first written
demand by the Security Agent at any time and from time to time
immediately following a Minimum Liquidity Covenant Calculation
Date in such amounts as may be necessary to remedy any shortfall
in the Minimum Liquidity Covenant at any time and from time to
time; and
(ii) in such amounts as shall be required from time to time and, in
any event, upon the first written demand of AMD Saxonia at any
time and from time to time to finance AMD Saxonia's general
corporate funding requirements, including working capital, cash
expenses and other capital requirements of AMD Saxonia.
The Sponsors shall be relieved of their respective obligations to make Revolving
Loans available to AMD Saxonia if, but only if:
(x) the Sponsors shall have complied with each of their respective
obligations under Article II and, insofar as such obligations
relate to Class A Sponsors' Loans (or
33
additional contributions to Equity Capital or AMD Saxonia's
capital reserves in lieu thereof), this Article III; and
(y) following a demand for payment by the Agent under the Sponsors'
Guaranty, the Sponsors shall have paid all amounts payable under
the Sponsors' Guaranty.
In addition to the Revolving Loans contemplated to be made under Section 3.7,
the Sponsors (or either of them) may, from time to time, at their option make
additional Revolving Loans in order to fulfil their respective obligations
contained herein or otherwise to provide additional funds to AMD Saxonia, it
being expressly understood and agreed that any such Revolving Loans shall be
optional rather than compulsory, and that in no event shall the Sponsors (or
either of them) be obligated to advance Revolving Loans such that the total
amount of outstanding Revolving Loans would exceed the Total Revolving Loan
Commitment Amount.
SECTION 3.9 Subordination of Sponsors' Loans and Revolving Loans. The Sponsors'
Loans and the Revolving Loans will be subordinated on the terms and conditions
contained in the Sponsors' Subordination Agreement.
ARTICLE IV
Project Costs
SECTION 4.1 Project Costs. In addition to, and not in limitation of, their other
obligations contained in this Agreement and the other Operative Documents, the
Sponsors, jointly and severally, hereby undertake to provide AMD Saxonia with
Same Day Funds (whether, in the case of AMD Holding, by contribution to AMD
Saxonia's Equity Capital (or other contributions to AMD Saxonia's capital
reserves), or, in the case of either Sponsor, through Sponsors' Loans or
Revolving Loans) sufficient to cover all Project Costs (after taking into
account the Available Tranche A Amount). The Sponsors shall be relieved of any
further obligations under this Article IV if, but only if:
(i) the Sponsors shall have complied with each of their respective
obligations under Article II 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; and
(ii) following a demand by the Agent for payment under the Sponsors'
Guaranty, the Sponsors shall have paid all amounts payable under
the Sponsors' Guaranty.
SECTION 4.2 [left intentionally blank]
SECTION 4.3 Form of Contribution. The Sponsors may comply with their respective
obligations under this Article IV by making:
(i) in the case of either Sponsor, Revolving Loans pursuant to the
terms and conditions of the Revolving Loan Facility Agreement;
and/or
(ii) in the case of AMD Holding, a cash increase in the Equity Capital
(or other contributions to AMD Saxonia's capital reserves) of AMD
Saxonia; and/or
34
(iii) in the case of either Sponsor, further Sponsors' Loans to AMD
Saxonia.
SECTION 4.4 No Double Recovery under Revolving Loan Facility Agreement and
Sponsors' Guaranty. If, during the continuance of an Event of Default (unless
such Event of Default is subsequently cured or waived with the concurrence of
the Agent or the Security Agent, AMD Inc., and AMD Saxonia), and following the
exercise of rights by the Agent or the Security Agent under either the AMD
Holding Share Pledge Agreement, the AMD Inc. Share Pledge Agreement, the AMD
Saxonia Assignment (U.S.A.), the AMD Inc. Pledge Agreement Over Membership
Interests in AMD Saxony LLC, the AMD Holding Share Pledge Agreement (AMD Admin),
the AMD Saxony LLC Partnership Interest Pledge Agreement (AMD Saxonia), the AMD
Holding KG Partnership Interest Pledge Agreement (AMD Saxonia) or the AMD Admin
Partnership Interest Pledge Agreement (AMD Saxonia), the Agent seeks to make
borrowings under, or to cause such borrowings to be made under, the Revolving
Loan Facility Agreement, the Agent's right to make such borrowings or to cause
such borrowings to be made, shall be limited mutatis mutandis to the amount set
forth in Section 2.1 of the Sponsors' Guaranty and any such borrowings (to the
extent paid to AMD Saxonia and not subsequently repaid to AMD Inc. or its
successor in interest) shall, pro tanto, reduce the amount available to be
recovered from the Sponsors under the Sponsors' Guaranty.
ARTICLE V
Completion Guaranty
SECTION 5.1 Completion Guaranty. The Sponsors (jointly and severally), hereby
agree to cause AMD Saxonia:
(i) to complete each Project Phase as soon as contemplated by the
Approved Project Schedule (it being understood and agreed that
the completion date for one or more Project Phases (other than
the final Project Phase) may be deferred for up to six (6) months
in the aggregate for all such deferrals on a cumulative basis
provided that no such deferral may affect the final deadline for
Completion);
(ii) to achieve Completion as soon as contemplated by the Approved
Project Schedule and, in any event, on or before 31 December
2000; and
(iii) to take all such action, including, without limitation, all
actions before Governmental Authorities, as shall be necessary or
appropriate to enable AMD Saxonia to complete each Project Phase
and to achieve Completion as aforesaid.
For the avoidance of doubt, the obligations of the Sponsors contained in this
Article V are in addition to, and not in limitation of, their respective
obligations contained elsewhere in this Agreement and in the other Operative
Documents; provided, however, that the Sponsors shall be relieved of their
respective obligations under this Article V if, but only if:
(i) the Sponsors shall have complied with each of their respective
obligations under Article II 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 and
35
(ii) following a demand for payment by the Agent under the Sponsors'
Guaranty, the Sponsors shall have paid all amounts payable under
the Sponsors' Guaranty.
SECTION 5.2 Notice of Scheduled Project Phase Technical Completion and
Completion. Upon the occurrence of each of the following, the Agent shall
promptly advise the Sponsors, AMD Saxonia, and the Banks thereof:
(i) Scheduled Project Phase Technical Completion for each Project
Phase, and
(ii) Completion.
SECTION 5.3 No Double Recovery Under Article V and Sponsors' Guaranty. In the
event that the Sponsors default in the payment and performance of their
obligations under this Article V and, following any such default, the Agent
institutes litigation or other adversary proceedings designed to compel the
Sponsors to perform such obligations or to pay damages for such failure, the
right of recovery against the Sponsors under this Article V is limited mutatis
mutandis to the amount set forth in Section 2.1 of the Sponsors' Guaranty and
any recovery by the Agent from the Sponsors hereunder shall, pro tanto, reduce
the amount available to be recovered from the Sponsors under the Sponsors'
Guaranty.
For the avoidance of doubt, the obligations of the Sponsors under this Section
5.1 constitute a primary guarantee obligation (Garantievertrag) and not a surety
guarantee (Burgschaft).
ARTICLE VI
Subsidies Undertaking
SECTION 6.1 Subsidies. The Project will be supported by the following subsidies
and grants from the Free State of Saxony (hereinafter, the "Subsidies"):
(i) a dedicated purpose investment grant in an aggregate amount of DM
476,687,000 (four hundred seventy six million six hundred eighty
seven thousand Deutsche Marks) which, together with the
investment subsidies in an aggregate amount of DM 23,813,000
(twenty three million eight hundred thirteen thousand Deutsche
Marks), totals an aggregate amount of DM 500,500,000 (five
hundred million five hundred thousand Deutsche Marks); and
(ii) a dedicated purpose interest subsidy in an amount of DM
300,000,000 (three hundred million Deutsche Marks),
which, in each case, will be paid to AMD Saxonia by Dresdner Bank AG in Dresden,
in its capacity as house bank.
SECTION 6.2 Payment of Shortfall. The granting of the Subsidies is contingent on
the adherence by the Sponsors and AMD Saxonia to particular conditions,
requirements, and covenants. If, for any reason whatsoever, any AMD Company or
any Affiliate of any AMD Company breaches any such conditions, requirements, or
covenants, and, accordingly, causes the Subsidies not to be paid or, as a result
of any such breach, the Subsidies are required to be repaid
36
(in either such case the amount thereof being hereinafter called a "Shortfall"),
then, without delay following its or their receipt of a demand therefor by the
Agent, either:
(i) AMD Holding shall contribute Equity Capital (or other
contributions to AMD Saxonia's capital reserves) to AMD Saxonia,
and AMD Inc. shall cause AMD Holding to so contribute to AMD
Saxonia (and AMD Inc. shall, to the extent necessary, contribute
sufficient funds, or otherwise cause sufficient funds to be made
available, to AMD Holding as shall be necessary to enable AMD
Holding to so contribute to AMD Saxonia); and/or
(ii) one or both Sponsors shall make Sponsors' Loans to AMD Saxonia,
in either case in an aggregate amount (and, if the Subsidies have not yet been
provided, as and when the Subsidies, but for such breach, would have otherwise
been provided) equal to the Shortfall.
For the avoidance of doubt:
(i) the obligations of the Sponsors contained in this Article VI are
in addition to, and not in limitation of, their obligations
contained elsewhere in this Agreement and in the other Operative
Documents, and shall survive Completion; and
(ii) the Sponsors shall not be relieved of the foregoing obligations
by virtue of:
(a) any prior Sponsors' Loans made by the Sponsors (or either of
them), including without limitation, 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 3.5
above and the Class C Sponsors' Loan in an amount of
$70,000,000 made by AMD Inc. to AMD Saxonia on 30 June 1999
and referred to in Section 3.4 above;
(b) any prior contributions of Equity Capital (or other
contributions to AMD Saxonia's capital reserves) by AMD
Holding;
(c) any prior Revolving Loans made by the Sponsors (or either of
them); or
(d) any payment made by either Sponsor under the Sponsors'
Guaranty;
provided, however, that the Sponsors shall have no liability as aforesaid in
respect of any Subsidies which fail to be provided at any time after the
foreclosure by the Security Agent upon any security provided by the Security
Documents, unless such failure is attributable to any such breach by AMD Inc. or
any of its Affiliates (other than AMD Saxonia or AMD Holding, if then Affiliates
of AMD Inc.) occurring after such foreclosure.
SECTION 6.3 Bridging of AMD Saxonia's Receipt of the Subsidies.
(a) It is understood and agreed that the Sponsors (jointly and
severally) will, in the case of AMD Holding, contribute
Equity Capital (or other
37
contributions to AMD Saxonia's capital reserves), or, in the
case of either Sponsor, make Sponsors' Loans, to AMD
Saxonia, in either case as and to the extent that AMD
Saxonia requires such funds prior to and in anticipation of
its receipt of the Subsidies. If any such contribution or
Sponsors' Loan is made for such purpose prior to AMD
Saxonia's receipt of the Subsidies (or any portion thereof)
then, to the extent that AMD Saxonia subsequently receives
the proceeds of such Subsidies, and provided that no Event
of Default, Unmatured Event of Default or Event of
Termination shall have occurred and be continuing, AMD
Saxonia shall, to the extent permitted by applicable law,
repay Sponsors' Loans to the extent of the aggregate amount
of the proceeds of the Subsidy so received, but without
interest.
(b) The Sponsors' obligations to make contributions or loans
under Section 6.3 (a) shall terminate from the date of any
foreclosure over the shares of AMD Holding, the membership
interests of AMD Saxony LLC, the shares in AMD Admin or over
the partnership interests in AMD Saxonia under the Security
Documents.
ARTICLE VII
Pari Passu Undertaking
SECTION 7.1 [left intentionally blank]
ARTICLE VIII
Security Documents
SECTION 8.1 AMD Inc. Share Pledge Agreement and AMD Inc. Pledge Agreement
Over Membership Interests in AMD Saxony LLC. AMD Inc. has granted a first
priority security interest in the AMD Inc. Security pursuant to and on the terms
and conditions set forth in the AMD Inc. Share Pledge Agreement and the AMD Inc.
Pledge Agreement Over Membership Interests in AMD Saxony LLC.
SECTION 8.2 AMD Holding Security Documents. AMD Holding has granted a first
priority security interest in the AMD Holding Security pursuant to and on the
terms and conditions set forth in the AMD Holding Security Documents.
SECTION 8.3 AMD Saxony LLC Security Documents. AMD Saxony LLC has granted a
first priority security interest in the AMD Saxony LLC Security pursuant to and
on the terms and conditions set forth in the AMD Saxony LLC Security Documents.
SECTION 8.4 AMD Admin Security Documents. AMD Admin has granted a first
priority security interest in the AMD Admin Security pursuant to and on the
terms and conditions set forth in the AMD Admin Security Documents.
38
ARTICLE IX
Sponsors' Guaranty
SECTION 9.1 Sponsors' Guaranty. Without intending to derogate from the
provisions of the Sponsors' Guaranty (and, in the event of any inconsistency
with this Section 9.1, the Sponsors' Guaranty shall prevail), the Sponsors
(jointly and severally), have agreed to guarantee, on the terms and subject to
the conditions of the Sponsors' Guaranty, the full and prompt payment when due,
whether by acceleration or otherwise, of all Secured Obligations of AMD Saxonia
to the Secured Parties under or in connection with the Financing Documents and
the Security Documents; provided, however, that as provided in the Sponsors'
Guaranty, the cumulative right of recovery against the Sponsors with respect to
the Sponsors' Guaranty is limited to an amount equal to the greater of:
(x) thirty five percent (35%) of the aggregate amount of all Guaranteed
Obligations (as defined in the Sponsors' Guaranty); and
(y) DM 217,500,000 (two hundred and seventeen million five hundred
thousand Deutsche Marks),
plus (as and to the extent provided in the Sponsors' Guaranty) interest on such
amount, if not paid when due, and plus costs and expenses of enforcement
provided, that the maximum aggregate amount payable by the Sponsors pursuant to
the Sponsors' Guaranty shall be DM 600,000,000. In furtherance of the foregoing,
the Sponsors have undertaken, pursuant to the terms of the Sponsors' Guaranty,
to pay to the Agent, upon first written demand following the occurrence of an
Event of Default and acceleration of the Advances an amount equal to the greater
of:
(i) thirty five percent (35%) of the aggregate amount of all Guaranteed
Obligations (as defined in the Sponsors' Guaranty); and
(ii) DM 217,500,000 (two hundred and seventeen million five hundred
thousand Deutsche Marks),
plus (as and to the extent provided in the Sponsors' Guaranty) interest on such
amount, if not paid when due, and plus costs and expenses of enforcement
provided, that the maximum aggregate amount payable by the Sponsors pursuant to
the Sponsors' Guaranty shall be DM 600,000,000.
For the avoidance of doubt, the obligations of the Sponsors under the Sponsors'
Guaranty:
(i) constitute a primary guarantee obligation (Garantievertrag) and not
a surety guarantee (Burgschaft), and are in addition to, and not in
limitation of, the other obligations of the Sponsors hereunder and
under the other Operative Documents; and
(ii) are continuing obligations and shall remain in full force and
effect until whichever is the earlier of (1) satisfaction in full
of all Secured
39
Obligations and (2) payment in full by either Sponsor of all
amounts payable under the Sponsors' Guaranty.
ARTICLE X
Sponsors' Subordination Agreement; AMD Inc. Subordination Agreement
SECTION 10.1 Sponsors' Subordination Agreement. The Sponsors and the Additional
Partner Companies hereby agree to subordinate the payment of the Junior
Liabilities (under, and as defined in, the Sponsors' Subordination Agreement) to
the payment in full of all Senior Liabilities (under, and as defined in, the
Sponsors' Subordination Agreement), on the terms and subject to the conditions
of the Sponsors' Subordination Agreement.
SECTION 10.2 AMD Inc. Subordination Agreement. AMD Inc. hereby agrees to
subordinate the payment of the Junior Liabilities (under, and as defined in, the
AMD Inc. Subordination Agreement) to the payment in full of all Senior
Liabilities (under, and as defined in, the AMD Inc. Subordination Agreement), on
the terms and subject to the conditions of the AMD Inc. Subordination Agreement.
ARTICLE XI
Obligations Unconditional
SECTION 11.1 Absolute and Unconditional Nature of Obligations. The obligation of
the Sponsors and the Additional Partner Companies to perform their respective
obligations under this Agreement, and the right of AMD Saxonia or the Agent or
the Security Agent, as applicable, to receive the proceeds of each payment to be
made to or for the account of AMD Saxonia as provided herein and in each of the
other Operative Documents, shall be absolute, irrevocable, and unconditional, it
being the intention of the parties hereto that all obligations of the Sponsors
and the Additional Partner Companies under or in connection with this Agreement
shall be paid and performed in all events in the manner and at the times herein
provided, irrespective of and without prejudice to, in particular, any rights or
remedies that are available to the other parties hereto and thereto under any
agreements or any applicable laws. The Sponsors and the Additional Partner
Companies shall be entitled to setoff, and to raise rights of retention, in
respect of their respective payment claims hereunder and under the other
Operative Documents only to the extent their respective counterclaims are
undisputed or have been the subject of a final binding arbitral or court
decision.
ARTICLE XII
Representations and Warranties
SECTION 12.1 Representations and Warranties of AMD Inc. AMD Inc. hereby
represents and warrants to the Agent and the Security Agent as follows:
(i) Organization; Corporate Power.
AMD Inc. and each Material AMD Inc. Subsidiary:
(a) is a corporation, limited partnership or limited liability
company, as the case may be, duly organized, validly
existing, and (where the concept has
40
a technical meaning) in good standing under the laws of the
jurisdiction of its incorporation;
(b) is duly qualified or licensed and (where the concept has a
technical meaning) in good standing as a foreign corporation
authorized to do business in each other jurisdiction where,
because of the nature of its activities or properties in such
jurisdiction, such qualification or licensing is required,
(c) has all requisite corporate power and authority to own,
operate, and lease its assets and properties and to carry on
the business in which it is engaged and in which it proposes
to engage;
(d) that is an AMD Company, has all requisite corporate power and
authority:
(x) to execute, deliver, and perform its obligations under
each of the Operative Documents to which it is a party;
and
(y) to assign, and grant a security interest in, the
Security in the manner and for the purpose contemplated
by the Security Documents to which it is a party; and
(e) is in compliance with all Requirements of Law
except, in each case referred to in clause (b), (c), or (e), to the
extent that the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
(ii) Corporate Authority; No Conflict.
The execution, delivery, and performance by each AMD Company of each
Operative Document to which any such AMD Company is a party, and the
grant by such AMD Company of a security interest in the Security in
the manner and for the purpose contemplated by the Security
Documents to which such AMD Company is a party, have been duly
authorised by all necessary corporate action (including any
necessary shareholder action) on the part of such AMD Company, and
do not:
(a) violate any provision of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination, or award
presently in effect binding on such AMD Company, or of the
Organizational Documents of such AMD Company;
(b) result in a breach of, result in a mandatory prepayment or
acceleration of indebtedness evidenced or secured by, or
constitute a default under, any indenture or loan or credit
agreement, or any other agreement or
41
instrument, to which such AMD Company is a party or by which
such AMD Company or its properties are bound; or
(c) result in, or require (in either case except as contemplated
by the Operative Documents), 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 any of the AMD
Companies (other than any right of set-off or banker's lien or
attachment that the Agent, the Security Agent, or any Bank may
have under the Operative Documents or applicable law), and
none of the AMD Companies is in default under or in violation
of its Organizational Documents, any of the Operative
Documents to which it is a party, or any such law, rule,
regulation, order, writ, judgment, injunction, decree,
determination, award, indenture, agreement, or instrument,
which default or violation, individually or in the aggregate,
could reasonably be expected to have a Material Adverse
Effect.
(iii) Valid and Binding Obligations.
Each Operative Document which has been executed and delivered by an
AMD Company constitutes the legal, valid, and binding obligation of
such AMD Company, enforceable against such AMD Company in accordance
with its respective terms, subject, however, to the Opinion
Reservations.
(iv) Sponsor Security Documents.
(a) The provisions of each of the Security Documents which has
been executed and delivered by a Sponsor are effective to
create in favor of the Security Agent for the benefit of the
Secured Parties, a legal, valid, and enforceable first
priority Encumbrance on all rights, title, and interest of
such Sponsor in the Security described therein, subject only
to Permitted Encumbrances; and all necessary filings and
recordings have been made in the requisite offices in all of
the jurisdictions necessary or appropriate to perfect or
continue perfected with such priority such Encumbrance on such
Security.
(b) Each Security Document which has been executed and delivered
by a Sponsor is effective to grant to the Security Agent a
legal, valid, and enforceable security interest on all rights,
title, and interest of the relevant Sponsor in the Security
described therein. When each such Security Document is duly
recorded or filed in the applicable recording or filing
office(s), if any, and the recording or filing fees and taxes,
if any, in respect thereof are paid and compliance is
otherwise had with the formal requirements of applicable law
applicable to the recording and filing of security
documentation generally, such Security is subject to a legal,
valid, enforceable, and perfected first priority Encumbrance.
42
(v) Financial Information; No Material Adverse Change.
(a) The audited consolidated balance sheet of AMD Inc. and its
Subsidiaries dated December 31, 1995, the unaudited
consolidated balance sheet of AMD Inc. and its
Subsidiaries for the Fiscal Quarter ending on or about
December 30, 1996, and in each case the related
consolidated statements of income or operations,
shareholders' equity and cash flows for the fiscal period
ended on such dates:
(x) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby,
except as otherwise expressly noted therein, subject
to ordinary, good faith year-end audit adjustments,
in the case of quarterly financial statements;
(y) are complete and accurate in all material respects
and fairly present the consolidated financial
condition of AMD Inc. and its Subsidiaries as of the
dates thereof and results of operations and cash
flows for the periods covered thereby; and
(z) except as specifically disclosed in the Disclosure
Schedules, show all material indebtedness and other
liabilities, direct or contingent, of AMD Inc. and
its consolidated Subsidiaries as of the date
thereof, including liabilities for taxes, material
commitments, and Contingent Liabilities.
(b) Since December 31, 1995, there has been no Material
Adverse Effect, except as may be specifically disclosed in
the Disclosure Schedules.
(c) From July 13, 1999 to and including the effective date of
the Third Amendment to this, there has been no "Enhanced
Covenant Period" (under, and as defined in the AMD Inc.
1999 Loan and Security Agreement) in effect.
(vi) Litigation.
Except as specifically disclosed in the Disclosure Schedules,
there are no actions, suits, proceedings, claims, or disputes
pending, or to the best knowledge of AMD Inc., threatened or
contemplated, at law, in equity, in arbitration or before any
Governmental Authority, against any AMD Company or any other
Subsidiary of AMD Inc. or any of their respective properties
which:
(a) purport to affect or pertain to this Agreement or any
other Operative Document, or the entirety of the
transactions contemplated hereby or thereby; or
(b) if determined adversely to such AMD Company or such other
Subsidiary, would reasonably be expected to have a
Material Adverse Effect.
43
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, or performance of this Agreement or any
other Operative Document, or directing that the transactions
provided for herein or therein not be consummated as herein or
therein provided.
(vii) No Default or Termination.
No Event of Default or Unmatured Event of Default, and, to the
best of AMD Inc.'s knowledge, no Event of Termination, exists.
None of the AMD Companies nor any other Subsidiary of AMD Inc.
is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with
all such defaults, could reasonably be expected to have a
Material Adverse Effect.
(viii) No Burdensome Restrictions.
None of the AMD Companies nor any other Subsidiary of AMD Inc.
is a party to or bound by any Contractual Obligation other
than the Operative Documents, or subject to any restriction in
any Organizational Document, or any Requirement of Law, which
could reasonably be expected to have a Material Adverse
Effect.
(ix) Title to Properties; Encumbrances.
Each AMD Company and each other Material AMD Inc. Subsidiary
has good record and marketable title in fee simple to, or
valid leasehold interests in (or the equivalent for the
relevant jurisdiction), all real property necessary or used in
the ordinary conduct of their respective businesses, except
for such defects in title as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect. The property of each AMD Company and each other
Material AMD Inc. Subsidiary is subject to no Encumbrances,
other than Permitted Encumbrances.
(x) Subsidiaries; Material AMD Inc. Subsidiaries.
(a) As of the Loan Agreement Effective Date, AMD Inc. has no
Subsidiaries other than those specifically disclosed in
the Disclosure Schedules and has no equity investments
in any other Person other than those specifically
disclosed in the Disclosure Schedules;
(b) As of the Loan Agreement Effective Date, there are no
Material AMD Inc. Subsidiaries other than those
specifically disclosed in the Disclosure Schedules;
(c) AMD Inc. is the direct legal and beneficial owner of
100% of the issued and outstanding shares of capital
stock of AMD Holding, all of which shares have been
validly issued;
44
(d) AMD Inc. is the direct legal and beneficial owner of
100% of the membership interests of AMD Saxony LLC;
(e) AMD Holding is the direct legal and beneficial owner of
100% of the issued and outstanding shares of capital
stock of AMD Admin, all of which shares have been
validly issued;
(f) 100% of the capital partnership interests
(Kapitalanteile) in AMD Saxonia are held by AMD Admin
(as to Euro 250), AMD Holding (as to at least 99.99%
(rounded to two decimal points) and AMD Saxony LLC
(prior to a Substitution (if any)) (as to Euro 250 prior
to its re-transfer of a fractional interest pursuant to
the Conversion Documents, and as to 0% following such
re-transfer), each of which holds no investment in any
other person (except that AMD Admin is a wholly-owned
subsidiary of AMD Holding). AMD Holding and AMD Saxony
LLC are, in turn, wholly-owned subsidiaries of AMD Inc.;
(g) AMD Holding has no Subsidiaries other than AMD Saxonia
and AMD Admin, and has no equity investments in any
other Person;
(h) AMD Saxony LLC has no equity investments or interests in
any other Person other than its general partnership
interest in AMD Saxonia;
(i) AMD Admin has no Subsidiaries and, other than its Euro
250 partnership interest in AMD Saxonia, has no equity
investments in any Person; and
(j) AMD Saxonia has no Subsidiaries and has no equity
investments in any other Person.
(xi) Insurance.
Except as specifically disclosed in the Disclosure Schedules,
properties of each Sponsor and each "Restricted Subsidiary"
(under, and as defined in, the AMD Inc. 1999 Loan and Security
Agreement) are insured with financially sound and reputable
insurance companies not Affiliates of AMD Inc., 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 such Sponsor
or such "Restricted Subsidiary" (as so defined) operates.
(xii) Copyrights, Patents, Trademarks and Licenses, Etc.
Each AMD Company and each other Material AMD Inc. Subsidiary
owns or is licensed or otherwise has the right to use all of
the patents, trademarks, service marks, trade names,
copyrights, contractual franchises, authorizations, and other
rights that are reasonably necessary for the operation of its
respective businesses, without conflict with the rights of any
other Person, except for such conflicts which would not,
individually or in the aggregate, reasonably be expected to
have
45
a Material Adverse Effect. Except as specifically disclosed in
the Disclosure Schedules, to the best knowledge of AMD Inc.:
(a) no slogan or other advertising device, product, process,
method, substance, part, or other material now employed,
or now contemplated to be employed, by any AMD Company
or any other Subsidiary of AMD Inc. infringes upon any
rights held by any other Person;
(b) no claim or litigation regarding any of the foregoing is
pending or, to the best knowledge of AMD Inc.,
threatened; and
(c) no patent, invention, device, application, principle, or
any statute, law, rule, regulation, standard, or code is
pending or, to the best knowledge of AMD Inc., proposed,
which, in any case described in (a), (b), or (c) above, could
reasonably be expected to have a Material Adverse Effect.
(xiii) Taxes.
Each Sponsor and each "Restricted Subsidiary" (under, and as
defined in, the AMD Inc. 1999 Loan and Security Agreement)
have filed all material US Federal, German, and other tax
returns and reports required to be filed, and have paid all
material US Federal, German, and other 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. There is no
proposed tax assessment against either Sponsor or any
"Restricted Subsidiary" (as so defined) that would, if made,
have a Material Adverse Effect.
(xiv) Governmental Approvals with Respect to the Operative
Documents.
As of the date this representation and warranty is made or
reaffirmed, as the case may be, all Governmental Approvals
(including, without limitation, from the United States of
America, the European Union, the Federal Republic of Germany,
and the Free State of Saxony) necessary for the due
authorization, execution, delivery, and performance by each of
the AMD Companies of, the legality or validity of the
obligations of each of the AMD Companies under, or the
enforceability against each of the AMD Companies of, each of
the Operative Documents to which it is a party and the due and
timely payment by each of the AMD Companies of amounts owing
under each of the Operative Documents have been listed on
Schedule 20 to the Loan Agreement and, except as otherwise
noted therein, all of such Governmental Approvals have been
duly obtained or effected, and are in full force and effect,
on the Conversion Effective Date.
46
(xv) Governmental Approvals with Respect to the Plant and the
Design Center.
As at the date this representation and warranty is made or
reaffirmed, as the case may be, all Governmental Approvals
necessary for the construction, ownership, use, and operation
by AMD Saxonia of the Plant and the Design Center or which are
required in order that the Plant and the Design Center may be
operated for their intended purposes and Perform in Accordance
with the Plans and Specifications, have been listed on
Schedule 20 to the Loan Agreement, and all of such
Governmental Approvals (except those listed in Part B of
Schedule 20 to the Loan Agreement) have been duly obtained or
effected, are sufficient for all purposes thereof, and are in
full force and effect on such date (and, in the case of
Government Approvals that have expired, each AMD Company has
timely applied for renewal thereof and such Governmental
Approvals have been administratively extended under applicable
law); and AMD Inc. reasonably believes, after due inquiry,
that the Governmental Approvals set forth in Schedule 20 to
the Loan Agreement, together with all Governmental Approvals,
if any, that may be required in connection with the
transactions contemplated by the Operative Documents
subsequent to the date on which this representation and
warranty is made or reaffirmed, as the case may be, will be
obtained at such time or times as may be necessary to avoid
material delay in, or material restrictions on the use or
operation of, the Plant and the Design Center.
(xvi) Interruption of Business.
Neither the business nor the properties of an AMD Company are
presently affected by any fire, explosion, accident, strike,
lockout, or other dispute, drought, storm, hail, earthquake,
embargo, Act of God, or of the public enemy, or other casualty
(whether or not covered by insurance) which impairs, or, if
such event or condition were to continue for more than thirty
(30) additional days would be likely to impair, such AMD
Company's ability to perform its obligations under the
Operative Documents.
(xvii) Prior Activities, etc.
Prior to the Loan Agreement Effective Date, neither AMD
Holding nor AMD Saxonia has engaged in any business, conducted
any operations or activities, nor incurred any obligations or
liabilities (contingent or otherwise), other than (a) as
described in the Disclosure Schedules, and (b) its
obligations, if any, under the Operative Documents, and
activities reasonably incidental thereto. Prior to the
Conversion Effective Date, neither AMD Saxony LLC nor AMD
Admin has engaged in any business, conducted any operations or
activities, nor incurred any obligations or liabilities
(contingent or otherwise), other than its obligations, if any,
under the Operative Documents, and activities reasonably
incidental thereto.
47
(xviii) Status of AMD Holding, AMD Saxony LLC, AMD Admin, and AMD Saxonia, etc.
(a) AMD Holding is not a "Restricted Subsidiary" under, and for the
purposes of, the AMD Inc. 1999 Loan and Security Agreement;
(b) AMD Saxony LLC is not a "Restricted Subsidiary" under, and for
purposes of, the AMD Inc. 1999 Loan and Security Agreement;
(c) AMD Admin is not a "Restricted Subsidiary" under, and for purposes
of, the AMD Inc. 1999 Loan and Security Agreement; and
(d) AMD Saxonia is not a "Restricted Subsidiary" under, and for the
purposes of, the AMD Inc. 1999 Loan and Security Agreement.
(xix) Accuracy of Information.
As of the date this representation and warranty is made or reaffirmed,
as the case may be, all factual information then or theretofore
furnished by or on behalf of any AMD Company to the Agent or any Bank or
the Technical Advisor for purposes of or in connection with any
Operative Document or any transaction contemplated thereby (including
the Information Memorandum, true and complete copies of which were
furnished to the Agent in connection with the execution and delivery of
this Agreement) is true and accurate (taken as a whole) in all material
respects on the date as of which such information is dated or certified,
and on such date such information (taken as a whole) was not incomplete
by omitting to state any material fact necessary to make such
information not misleading. Insofar as any such information includes
assumptions, estimates, or projections, such assumptions, estimates, or
projections have been made in good faith, with due care, and with a
diligent application of engineering, construction, and accounting
expertise reasonably available within AMD Inc. and its Subsidiaries (it
being understood that although any projections and forecasts furnished
by an AMD Company represent such AMD Company's best estimates and
assumptions as to future performance, which such AMD Company believes to
be fair and reasonable as of the time made in the light of current and
reasonably foreseeable business conditions, such projections and
forecasts as to future events are not to be viewed as facts and that
actual results during the period or periods covered thereby may differ
from the projected or forecasted results). Without limiting the
generality of the foregoing, as of the Loan Agreement Effective Date, no
new information has become available which was not provided to the
Technical Advisor prior to the Loan Agreement Effective Date and which,
had it been so provided, could reasonably be expected to have caused the
Technical Advisor to express an unfavourable opinion with respect to the
Project in the Technical Advisor's Report.
(xx) Warranties of AMD Saxonia, AMD Saxony LLC, AMD Admin and AMD Holding.
Each of the representations and warranties made by AMD Saxonia, AMD
Saxony LLC, AMD Admin, or AMD Holding in any Operative Document to which
it is a
48
party (other than the representation and warranty of AMD Holding
contained in Section 12.2(xi) and the representation and warranty of AMD
Saxonia contained in ss. 15.1.10 of the Loan Agreement) is true and
accurate in all material respects on each Sponsors' Warranty Date,
except to the extent that any such representation or warranty expressly
relates solely to an earlier date, and except, in the case of any
representation or warranty made on a Sponsors' Warranty Date described
in clause (vi) of the definition thereof, as otherwise provided in the
certificate referred to therein.
SECTION 12.2 Representations and Warranties of the Sponsors. The Sponsors,
jointly and severally, hereby represent and warrant to the Agent and the
Security Agent as follows (save in respect of Section 12.2 (xi) which is
warranted only by AMD Holding):
(i) Organisation; Corporate Power.
(a) Each of AMD Holding and AMD Admin is a Gesellschaft mit beschrankter
Haftung duly organised and existing under the laws of the Federal
Republic of Germany and registered in Dresden, Germany and AMD
Saxonia is a Limited Partnership duly organised and existing under
the laws of the Federal Republic of Germany;
(b) AMD Saxony LLC is a limited liability company duly organized and
existing under the laws of the State of Delaware, United States of
America;
(c) 100% of the capital partnership interests (Kapitalanteile) in AMD
Saxonia are held by AMD Admin (as to Euro 250), AMD Holding (as to
at least 99.99% (rounded to two decimal points) and AMD Saxony LLC
(prior to a Substitution (if any)) (as to Euro 250 prior to its
re-transfer of a fractional interest pursuant to the Conversion
Documents, and as to 0% following such re-transfer), each of which
holds no investment in any other person (except that AMD Admin is a
wholly-owned subsidiary of AMD Holding). AMD Holding and AMD Saxony
LLC are, in turn, wholly-owned subsidiaries of AMD Inc.;
(d) Each of AMD Holding, AMD Admin, AMD Saxony LLC, and AMD Saxonia:
(1) is duly qualified or licensed as a foreign corporation
authorised to do business in each other jurisdiction where,
because of the nature of its activities or properties in such
jurisdiction, such qualification or licensing is required,
(2) has all requisite corporate power and authority to own,
operate, and lease its assets and properties and to carry on
the business in which it is engaged and in which it proposes to
engage;
(3) has all requisite corporate power and authority
49
(x) to execute, deliver, and perform its obligations under
each of the Operative Documents to which it is a party;
and
(y) to assign, and grant a security interest in, the Security
in the manner and for the purpose contemplated by the
Security Documents to which it is or is to be a party; and
(4) is in compliance with all Requirements of Law,
except, in each case referred to in clause (1), (2), or (4), to
the extent that the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
(ii) Corporate Authority; No Conflict.
The execution, delivery, and performance by each of AMD Holding, AMD
Admin, AMD Saxony LLC, and AMD Saxonia of each Operative Document to
which any such AMD Company is a party, and the grant by each such AMD
Company of a security interest in the Security in the manner and for
the purpose contemplated by the Security Documents to which such AMD
Company is a party, have been duly authorised by all necessary
corporate action (including any necessary shareholder action) on the
part of such AMD Company, and do not:
(a) violate any provision of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination, or award presently in
effect binding on such AMD Company, or of the Organizational
Documents of such AMD Company;
(b) result in a breach of, result in a mandatory prepayment or
acceleration of indebtedness evidenced or secured by, or
constitute a default under, any indenture or loan or credit
agreement, or any other agreement or instrument, to which such AMD
Company is a party or by which such AMD Company or its properties
are bound; or
(c) result in, or require (in each case except as contemplated by the
Operative Documents), 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 either of such AMD
Companies (other than any right of set-off or banker's lien or
attachment that the Agent, the Security Agent, or any Bank may
have under the Operative Documents or applicable law), and neither
of such AMD Companies is in default under or in violation of its
Organizational Documents, any of the Operative Documents to which
it is a party, or any such law, rule, regulation, order, writ,
judgment, injunction, decree, determination, award, indenture,
agreement, or instrument, which default or violation, individually
or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
50
(iii) Valid and Binding Obligations.
Each Operative Document (which has been executed and delivered by
any of AMD Holding, AMD Admin, AMD Saxony LLC, or AMD Saxonia)
constitutes the legal, valid, and binding obligation of such AMD
Company, enforceable against such AMD Company in accordance with its
respective terms, subject, however, to the Opinion Reservations.
(iv) AMD Holding Security Documents.
(a) The provisions of each of the AMD Holding Security Documents
which has been executed and delivered by AMD Holding are
effective to create in favor of the Security Agent for the
benefit of the Secured Parties, a legal, valid, and enforceable
first priority Encumbrance in all rights, title, and interest
of AMD Holding in the AMD Holding Security described therein,
subject only to Permitted Encumbrances; and all necessary
filings and recordings have been made in the requisite offices
in all jurisdictions necessary or appropriate to perfect or
continue perfected with such priority such Encumbrance on such
Security.
(b) Each AMD Holding Security Document which has been executed and
delivered by AMD Holding is effective to grant to the Security
Agent a legal, valid, and enforceable security interest in all
rights, title, and interest of AMD Holding in the AMD Holding
Security described therein. When each such Security Document is
duly recorded or filed in the applicable recording or filing
office(s), if any, and the recording or filing fees and taxes,
if any, in respect thereof are paid and compliance is otherwise
had with the formal requirements of law applicable to the
recording and filing of security documentation generally, such
AMD Holding Security is subject to a legal, valid, enforceable,
and perfected first priority Encumbrance.
(v) AMD Saxony LLC Security Documents.
(a) The provisions of each of the AMD Saxony LLC Security Documents
which has been executed and delivered by AMD Saxony LLC are
effective to create in favour of the Security Agent for the
benefit of the Secured Parties, a legal, valid, and enforceable
first priority Encumbrance in all rights, title, and interest
of AMD Saxony LLC in the AMD Saxonia LLC Security described
therein, subject only to Permitted Encumbrances; and all
necessary filings and recordings have been made in the
requisite offices in all jurisdictions necessary or appropriate
to perfect or continue perfected with such priority such
Encumbrance on such Security.
(b) Each AMD Saxony LLC Security Document which has been executed
and delivered by AMD Saxony LLC is effective to grant to the
Security Agent a legal, valid, and enforceable security
interest in all rights, title, and
51
interest of AMD Saxony LLC in the AMD Saxony LLC Security
described therein. When each such Security Document is duly
recorded or filed in the applicable recording or filing
office(s), if any, and the recording or filing fees and
taxes, if any, in respect thereof are paid and compliance is
otherwise had with the formal requirements of law applicable
to the recording and filing of security documentation
generally, such AMD Saxony LLC Security is subject to a
legal, valid, enforceable, and perfected first priority
Encumbrance.
(vi) AMD Admin Security Documents.
(a) The provisions of each of the AMD Admin Security Documents
which has been executed and delivered by AMD Admin are
effective to create in favour of the Security Agent for the
benefit of the Secured Parties, a legal, valid, and
enforceable first priority Encumbrance in all rights, title,
and interest of AMD Admin in the AMD Admin Security described
therein, subject only to Permitted Encumbrances; and all
necessary filings and recordings have been made in the
requisite offices in all jurisdictions necessary or
appropriate to perfect or continue perfected with such
priority such Encumbrance on such Security.
(b) Each AMD Admin Security Document which has been executed and
delivered by AMD Admin is effective to grant to the Security
Agent a legal, valid, and enforceable security interest in
all rights, title, and interest of AMD Admin in the AMD Admin
Security described therein. When each such Security Document
is duly recorded or filed in the applicable recording or
filing office(s), if any, and the recording or filing fees
and taxes, if any, in respect thereof are paid and compliance
is otherwise had with the formal requirements of law
applicable to the recording and filing of security
documentation generally, such AMD Admin Security is subject
to a legal, valid, enforceable, and perfected first priority
Encumbrance.
(vii) Financial Information; No Material Adverse Change.
(a) The audited consolidated balance sheet of AMD Holding and its
Subsidiaries as at 31 December 1996, and the audited balance
sheet of AMD Saxonia as at 31 December 1996, and in each case
the related consolidated statements of income or operations,
shareholders' equity and cash flows for the period from
incorporation to such date:
(x) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as
otherwise expressly noted therein, subject to ordinary,
good faith year-end audit adjustments;
52
(y) are complete and accurate in all material respects and
fairly present the consolidated financial condition of
AMD Holding and AMD Saxonia, or the financial condition
of AMD Saxonia, as the case may be, as of the date
thereof and their results of operations and cash flows
for the period covered thereby; and
(z) except as specifically disclosed in the Disclosure
Schedules, show all material indebtedness and other
liabilities, direct or contingent, of AMD Holding and AMD
Saxonia as of the date thereof, including liabilities for
taxes, material commitments, and Contingent Liabilities.
(b) Since the respective dates of organisation of AMD Holding, AMD
Admin, AMD Saxony LLC, and AMD Saxonia, there has been no
Material Adverse Effect with respect to AMD Holding, AMD
Admin, AMD Saxony LLC, or AMD Saxonia, as the case may be,
except as may be specifically disclosed in the Disclosure
Schedules.
(viii) Litigation.
Except as specifically disclosed in the Disclosure Schedules, there
are no actions, suits, proceedings, claims, or disputes pending, or
to the best knowledge of the Sponsors, threatened or contemplated,
at law, in equity, in arbitration or before any Governmental
Authority, against AMD Holding, AMD Admin, AMD Saxony LLC, or AMD
Saxonia or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any other
Operative Document, or the entirety of the transactions
contemplated hereby or thereby; or
(b) if determined adversely to such AMD Company would reasonably
be 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,
or performance of this Agreement or any other Operative Document,
or directing that the transactions provided for herein or therein
not be consummated as herein or therein provided.
(ix) No Default or Termination.
No Event of Default or Unmatured Event of Default, and, to the best
of the Sponsors' knowledge, no Event of Termination, exists. None
of AMD Holding, AMD Admin, AMD Saxony LLC, and AMD Saxonia is in
default under or with respect to any Contractual Obligation in any
respect which, individually or together with all such defaults,
could reasonably be expected to have a Material Adverse Effect.
53
(x) No Burdensome Restrictions.
None of AMD Holding, AMD Admin, AMD Saxony LLC, and AMD Saxonia is
a party to or bound by any Contractual Obligation (other than the
Operative Documents), or subject to any restriction in any
Organizational Document, or any Requirement of Law, which could
reasonably be expected to have a Material Adverse Effect.
(xi) Solvency.
Neither AMD Holding nor AMD Admin is insolvent as a matter of
German law. AMD Saxony LLC is not insolvent as a matter of the law
of the State of Delaware.
(xii) Title to Properties; Encumbrances.
AMD Saxonia has good record and marketable title in fee simple to,
or valid leasehold interests in (or the equivalent for the relevant
jurisdiction), 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, reasonably be expected to
have a Material Adverse Effect. None of AMD Holding, AMD Admin, or
AMD Saxony LLC has any real property or leasehold interests. The
property of each of AMD Holding, AMD Admin, AMD Saxony LLC, and AMD
Saxonia is subject to no Encumbrances, other than Permitted
Encumbrances.
(xiii) Subsidiaries; Material AMD Inc. Subsidiaries.
(a) 100% of the capital partnership interests (Kapitalanteile) in
AMD Saxonia are held by AMD Admin (as to Euro 250), AMD
Holding (as to at least 99.99% (rounded to two decimal points)
and AMD Saxony LLC (prior to a Substitution (if any)) (as to
Euro 250 prior to its re-transfer of a fractional interest
pursuant to the Conversion Documents, and as to 0% following
such re-transfer), each of which holds no investment in any
other person (except that AMD Admin is a wholly-owned
subsidiary of AMD Holding). AMD Holding and AMD Saxony LLC
are, in turn, wholly-owned subsidiaries of AMD Inc.;
(b) AMD Holding has no Subsidiaries other than AMD Saxonia and AMD
Admin, and has no equity investments in any other Person;
(c) AMD Saxony LLC has no equity investments or interests in any
other Person other than its general partnership interest in
AMD Saxonia;
(d) AMD Admin has no Subsidiaries and, other than its Euro 250
partnership interest in AMD Saxonia, has no equity investments
in any other Person; and
54
(e) AMD Saxonia has no Subsidiaries and has no equity investments
in any other Person.
(xiv) Insurance.
Except as specifically disclosed in the Disclosure Schedules,
properties of AMD Holding, AMD Admin and AMD Saxony LLC are insured
with financially sound and reputable insurance companies not
Affiliates of AMD Inc., 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 each of AMD Holding, AMD Admin and AMD Saxony LLC operates.
(xv) Copyrights, Patents, Trademarks and Licenses, Etc.
Each of AMD Holding, AMD Admin, AMD Saxony LLC and AMD Saxonia owns
or is licensed or otherwise has the right to use all of the
patents, trademarks, service marks, trade names, copyrights,
contractual 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,
except for such conflicts, if any, which would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect. Except as specifically disclosed in the Disclosure
Schedules, to the best knowledge of the Sponsors:
(a) no slogan or other advertising device, product, process,
method, substance, part, or other material now employed, or
now contemplated to be employed, by AMD Holding, AMD Admin,
AMD Saxony LLC or AMD Saxonia infringes upon any rights held
by any other Person;
(b) no claim or litigation regarding any of the foregoing is
pending or, to the best knowledge of the Sponsors, threatened;
and
(c) no patent, invention, device, application, principle, or any
statute, law, rule, regulation, standard, or code is pending
or, to the best knowledge of the Sponsors, proposed
which, in any case described in (a), (b), or (c) above, could
reasonably be expected to have a Material Adverse Effect.
(xvi) Taxes.
Each of AMD Holding, AMD Admin and AMD Saxony LLC has filed all
material U.S. Federal, German and other tax returns and reports
required to be filed, and has paid all material U.S. Federal,
German and other taxes, assessments, fees, and other governmental
charges levied or imposed upon it or its 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. There
is no proposed tax
55
assessment against AMD Holding, AMD Admin or AMD Saxony LLC that
would, if made, have a Material Adverse Effect.
(xvii) Governmental Approvals with Respect to the Operative Documents.
As of the date on which this representation and warranty is made or
reaffirmed, as the case may be, all Governmental Approvals
(including, without limitation, from the United States of America,
the European Union, the Federal Republic of Germany, and the Free
State of Saxony) necessary for the due authorization, execution,
delivery, and performance by each of AMD Holding, AMD Admin, AMD
Saxony LLC and AMD Saxonia of, the legality or validity of the
obligations of each of such AMD Companies under, or the
enforceability against each of such AMD Companies of, each of the
Operative Documents to which it is a party and the due and timely
payment by each of such AMD Companies of amounts owing under each
of the Operative Documents have been listed on Schedule 20 to the
Loan Agreement and, except as otherwise noted therein, all of such
Governmental Approvals have been duly obtained or effected, and are
in full force and effect on the Conversion Effective Date.
(xviii) Governmental Approvals with Respect to the Plant and the Design
Center.
As of the date on which this representation and warranty is made or
reaffirmed, as the case may be, all Governmental Approvals
necessary for the construction, ownership, use, and operation by
AMD Saxonia of the Plant and the Design Center or which are
required in order that the Plant and the Design Center may be
operated for their intended purposes and Perform in Accordance with
the Plans and Specifications, have been listed on Schedule 20 to
the Loan Agreement, and all of such Governmental Approvals (except
those listed in Part B of Schedule 20 to the Loan Agreement) have
been duly obtained or effected, are sufficient for all purposes
thereof, and are in full force and effect on such date (and, in the
case of Governmental Approvals that have expired, each of AMD
Holding, AMD Admin, AMD Saxony LLC and AMD Saxonia has timely
applied for renewal thereof and such Governmental Approvals have
been administratively extended under applicable law); and the
Sponsors reasonably believe, after due inquiry, that the
Governmental Approvals set forth in Schedule 20 to the Loan
Agreement, together with all Governmental Approvals, if any, that
may be required in connection with the transactions contemplated by
the Operative Documents subsequent to the date on which this
representation and warranty is made or reaffirmed, as the case may
be, will be obtained at such time or times as may be necessary to
avoid material delay in, or material restrictions on the use or
operation of, the Plant and the Design Center.
(xix) Interruption of Business.
Neither the business nor the properties of AMD Holding, AMD Admin,
AMD Saxony LLC or AMD Saxonia are presently affected by any fire,
explosion, accident, strike, lockout, or other dispute, drought,
storm, hail, earthquake,
56
embargo, Act of God, or of the public enemy, or other casualty
(whether or not covered by insurance) which impairs, or, if such
event or condition were to continue for more than thirty (30)
additional days would be likely to impair, such AMD Company's
ability to perform its obligations under the Operative Documents.
(xx) Prior Activities, etc.
Prior to the Loan Agreement Effective Date, neither AMD Holding nor
AMD Saxonia has engaged in any business, conducted any operations
or activities, nor incurred any obligations or liabilities
(contingent or otherwise), other than (i) as described in the
Disclosure Schedules, and (ii) its obligations, if any, under the
Operative Documents, and activities reasonably incidental thereto.
Prior to the Conversion Effective Date, neither AMD Saxony LLC nor
AMD Admin has engaged in any business, conducted any operations or
activities, not incurred any obligations or liabilities (contingent
or otherwise), other than its obligations, if any, under the
Operative Documents, and activities reasonably incidental thereto.
(xxi) Status of AMD Holding, AMD Admin, AMD Saxony LLC, and AMD Saxonia,
etc.
(a) AMD Holding is not a "Restricted Subsidiary" under, and for
the purposes of, the AMD Inc. 1999 Loan and Security
Agreement;
(b) AMD Saxony LLC is not a "Restricted Subsidiary" under, and for
the purposes of, the AMD Inc. 1999 Loan and Security
Agreement;
(c) AMD Admin is not a "Restricted Subsidiary" under, and for the
purposes of, the AMD Inc. 1999 Loan and Security Agreement;
and
(d) AMD Saxonia is not a "Restricted Subsidiary" under, and for
the purposes of, the AMD Inc. 1999 Loan and Security
Agreement.
(xxii) Accuracy of Information.
As of the date this representation and warranty is made or
reaffirmed, as the case may be, all factual information then or
theretofore furnished by or on behalf of AMD Holding, AMD Admin,
AMD Saxony LLC or AMD Saxonia to the Agent or any Bank or the
Technical Advisor for purposes of or in connection with any
Operative Document or any transaction contemplated thereby
(including the Information Memorandum, true and complete copies of
which were furnished to the Agent in connection with the execution
and delivery of this Agreement) is true and accurate (taken as a
whole) in all material respects on the date as of which such
information is dated or certified, and on such date such
information (taken as a whole) was not incomplete by omitting to
state any material fact necessary to make such information not
misleading. Insofar as any such information includes assumptions,
estimates, or projections, such assumptions, estimates, or
projections have been or will be made in good faith, with due care,
and with a diligent application of engineering, construction, and
accounting expertise reasonably
57
available within AMD Inc. and its Subsidiaries (it being understood
that although any projections and forecasts furnished by an AMD
Company represent such AMD Company's best estimates and assumptions
as to future performance, which such AMD Company believes to be
fair and reasonable as of the time made in the light of current and
reasonably foreseeable business conditions, such projections and
forecasts as to future events are not to be viewed as facts and
that actual results during the period or periods covered thereby
may differ from the projected or forecasted results). Without
limiting the generality of the foregoing, as of the Loan Agreement
Effective Date, no new information has become available which was
not provided to the Technical Advisor prior to the Loan Agreement
Effective Date and which, had it been so provided, could reasonably
be expected to have caused the Technical Advisor to express an
unfavourable opinion with respect to the Project in the Technical
Advisor's Report.
(xxiii) Warranties made by AMD Saxonia.
Each of the representations and warranties made by AMD Saxonia in
any Operative Document to which it is a party (other than the
representation and warranty contained in ss. 15.1.10 of the Loan
Agreement) is true and accurate in all material respects on each
Sponsors' Warranty Date, except to the extent that any such
representation or warranty expressly relates solely to an earlier
date, and except, in the case of any representation or warranty
made on a Sponsors' Warranty Date described in clause (vi) of the
definition thereof, as otherwise provided in the certificate
referred to therein.
SECTION 12.3 Repetition of Representations and Warranties. The representations
and warranties contained in Sections 12.1 and 12.2 shall be repeated on each
Sponsors' Warranty Date, except to the extent that any such representation and
warranty expressly relates solely to an earlier date, and except, in the case of
the Sponsors' Warranty Date described in clause (vi) of the definition thereof,
as otherwise set forth in the certificate referred to therein.
ARTICLE XIII
Covenants
SECTION 13.1 Affirmative Covenants of AMD, Inc. AMD Inc. agrees, so long as any
Primary Secured Obligations shall remain outstanding or any Bank shall have any
commitment under or arising out of the Loan Agreement, that it will, and will
cause each other AMD Company to, unless in either case the Security Agent shall
have enforced any of the Security or the Agent (acting on the instructions of an
Instructing Group) shall have otherwise consented in writing:
(i) furnish to the Agent (with copies for each of the Banks):
(a) as soon as possible and in any event within ten (10)
Business Days after a Relevant AMD Inc. Individual shall
have obtained actual knowledge of the occurrence of an Event
of Default, an Unmatured Event of Default or an Event of
Termination, the statement of an authorised officer of AMD
58
Inc. setting forth the details thereof which has occurred
and the action (if any) which AMD Inc. or any other AMD
Company proposes to take with respect thereto;
(b) as soon as available, and in any event within forty-five
(45) days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of AMD Inc., (x) consolidated
financial statements consisting of a consolidated balance
sheet of AMD Inc. as at the end of such Fiscal Quarter and a
consolidated statement of income and statement of
shareholders' equity and cashflows of AMD Inc. for such
Fiscal Quarter and for the Fiscal Year through such Fiscal
Quarter, setting forth in comparative form the corresponding
figures for the corresponding periods of the preceding
Fiscal Year, all in reasonable detail and certified (subject
to ordinary good faith year end audit adjustments) by an
authorised financial officer of AMD Inc. as being complete
and accurate in all material respects, and as fairly
presenting in accordance with GAAP, consistently applied,
the financial position and results of operations of AMD Inc.
and its Subsidiaries, and (y) consolidating financial
statements consisting of a consolidating balance sheet of
AMD Inc. as at the end of such Fiscal Quarter and a
consolidating statement of income and statement of
shareholders' equity and cashflows of AMD Inc. for such
Fiscal Quarter and for the Fiscal Year through such Fiscal
Quarter, setting forth in comparative form the corresponding
figures for the corresponding periods of the preceding
Fiscal Year, all in reasonable detail and certified (subject
to ordinary good faith year end audit adjustments) by an
authorised financial officer of AMD Inc. as being complete
and accurate in all material respects, and as having been
developed and used in connection with the financial
statements referred to in clause (x) above;
(c) as soon as available, and in any event within ninety (90)
days after the end of each Fiscal Year of AMD Inc., (x)
financial statements consisting of a consolidated balance
sheet of AMD Inc. as at the end of such Fiscal Year and a
consolidated statement of income and statement of
shareholders' equity and cashflows of AMD Inc. for such
Fiscal Year, setting forth in comparative form the
corresponding figures for the preceding Fiscal Year, all in
reasonable detail and certified by independent certified
public accountants of recognised national standing and by an
authorised financial officer of AMD Inc. as fairly
presenting in accordance with GAAP, consistently applied,
the financial position and results of operations of AMD Inc.
and its Subsidiaries, and (y) a certificate from each
Sponsor confirming, as of the date of such certificate,
that, except as otherwise therein set forth, each of the
representations and warranties made by each AMD Company in
any Operative Document to which it is a party is true and
accurate in all material respects on the date of such
certificate, except to the extent that any such
representation or warranty expressly relates solely to an
earlier date;
59
(d) (x) in connection with the completion of any Scheduled
Project Phase, (1) a Scheduled Project Phase Technical
Completion Certificate (AMD Companies), and (2) a Scheduled
Project Phase Technical Completion Certificate (Technical
Advisor), and (y) as soon as available, and in any event
within ten (10) days after the completion of any Scheduled
Project Phase, (1) a Project Budget and (2) a Project
Schedule relating to the Project, setting forth in
reasonable detail a description of all of the Capital
Expenditures which have been made during each Scheduled
Project Phase (other than the final Project Phase) with
respect to the Project to the date thereof and those which
are anticipated to be made during each Project Phase prior
to Completion; provided, however, that if, at any time prior
to Completion, any AMD Company or the Agent (acting on the
instructions of an Instructing Group), determines that it is
appropriate to amend, supplement, or otherwise modify the
Approved Project Budget, or the Approved Project Schedule,
the parties hereto hereby agree to discuss in good faith any
such proposed amendment, supplement, or modification;
provided, further, that (a) neither the Agent nor the Banks
shall be obligated in any matter, as a result of any such
discussions or otherwise, to agree to any amendments,
supplements, or other modifications to the Approved Project
Budget or Approved Project Schedule which would reduce or
relax the then required financial performance of AMD Saxonia
with respect to the Project, and (b) each of the Agent and
the Banks reserve(s) all rights hereunder in the event that
such discussions fail to produce an amendment or other
supplement to, or modification of, the Approved Project
Budget or the Approved Project Schedule. In the event (but
only in such event) that AMD Saxonia (with the consent of
each Sponsor) and the Agent agree to amend, supplement, or
otherwise modify any Approved Project Budget or any Approved
Project Schedule, as the case may be, then such amended,
supplemented, or otherwise modified Approved Project Budget
or Approved Project Schedule, as the case may be, shall
thereafter be the "Approved Project Budget" or the "Approved
Project Schedule" for all purposes hereof until further
changed, if at all, pursuant to this Section 13.1(i)(d);
(e) promptly following AMD Inc.'s or such other AMD Company's
receipt or transmission thereof, and unless otherwise
concurrently delivered by another AMD Company to the Agent
under an Operative Document, a copy of each notice, report,
schedule, certificate, financial statement, or other
document furnished pursuant to any of the Operative
Documents if such notice, report, schedule, certificate,
financial statement, or other document could reasonably be
considered material to the Agent or any Bank in connection
with the Operative Documents and the entirety of the
transactions contemplated thereby;
(f) promptly following the occurrence of (x) any change in the
identification of the applicable AMD Inc. Primary Bank
Credit Agreement pursuant to the definition thereof
contained in Section 1.1, or (y) any consent or
60
waiver or amendment or modification with respect to the
incorporated covenants, related definitions, or ancillary
provisions of the AMD Inc. Primary Bank Credit Agreement,
notice of such change and the basis therefor or of such
consent or waiver or amendment or modification and the basis
therefor; and
(g) such other information with respect to the business affairs,
financial condition, and/or operations of AMD Inc. and its
Subsidiaries (including AMD Saxonia) and Affiliates as the
Agent or any Bank (acting through the Agent) may from time
to time reasonably request for purposes of the transactions
contemplated by the Operative Documents.
(ii) pay and perform all of its obligations under each of the Operative
Documents to which it is a party in the manner and at the time
contemplated therein.
(iii) cause each of AMD Holding and AMD Saxony LLC at all times to be a
wholly-owned Subsidiary of AMD Inc. and cause AMD Admin at all
times to be a wholly-owned Subsidiary of AMD Holding and cause the
capital partnership interests in AMD Saxonia at all times to be
held by AMD Admin (as to Euro 250) and AMD Holding (as to at least
99.99% (rounded to two decimal points)) (except for the temporary
transfer of a partnership interest of AMD Saxonia to AMD Saxony LLC
pursuant to the Assignment and Trust Agreement and except in
connection with the Substitution (if any)).
(iv) cause AMD Saxony LLC to retransfer to AMD Holding, its partnership
interest of Euro 250 in AMD Saxonia in accordance with the
Assignment and Trust Agreement and to ensure that, at no time
thereafter, shall AMD Saxony LLC acquire or become entitled to
acquire a capital partnership interest in AMD Saxonia.
(v) promptly following a request by the Agent or any Bank (acting
through the Agent) to do so, permit the Agent, the Technical
Advisor, the Auditor, or any of their respective representatives to
have reasonable access during normal business hours to the Plant or
the Design Center and to such books and records of AMD Saxonia as
may be necessary or reasonably desirable (in the good faith
discretion of the Agent or any Bank) to verify compliance by each
AMD Company with its obligations under the Operative Documents to
which it is a party; provided, that such access shall be exercised
in a manner which does not disrupt the operations of the Plant or
the Design Center, in any material respect.
(vi) prior to Completion, cause AMD Saxonia to use Sponsors' Loans,
equity contributions under Article II, Advances and Revolving Loans
solely to pay Project Costs incurred to complete the Project in
accordance with the Plans and Specifications.
(vii) following the Conversion, promptly execute, and cause each of AMD
Holding, AMD Admin and AMD Saxony LLC to promptly execute, a
declaration of
61
liability substantially in the same form attached as Appendix Four
to the SAB/Dresdner Subsidy Agreement, amended to reflect the
addition of the Additional Partner Companies.
(viii) in respect of Product Liability Insurance and Business Interruption
Insurance as required in ss. 17.8 of the Loan Agreement and
Schedule 22 of the Loan Agreement, procure and maintain such
insurance policies and otherwise comply in all respects with
respect to such insurances with ss. 17.8 of the Loan Agreement and
Schedule 22 of the Loan Agreement, including delivery of
certificates from its Insurance Brokers as required therein, as if
each of the obligations referred to in ss. 17.8 of the Loan
Agreement and Schedule 22 of the Loan Agreement with regard to such
insurances were expressed to be those of AMD Inc.
(ix) make or cause to be made prompt payment of all premiums and premium
installments payable under each Product Liability Insurance and
Business Interruption Insurance policy as required in Schedule 22
of the Loan Agreement.
SECTION 13.2 Negative Covenants of AMD Inc. AMD Inc. agrees, so long as any
Primary Secured Obligation shall remain outstanding or any Bank shall have any
commitment under or arising out of the Loan Agreement, that it will not, and not
permit any other AMD Company to, unless in either case the Security Agent shall
have enforced any of the Security or the Agent (acting on the instructions of an
Instructing Group) shall have otherwise consented in writing:
(i) terminate, amend or modify, or agree to the termination, amendment
or modification, of any Operative Document, other than (w) the AMD
Inc. Primary Bank Credit Agreement (which may be amended, modified,
or terminated in accordance with Section 13.3), (x) the Equipment
Supply Contracts that are not Material Equipment Supply Contracts,
(y) the Service Contracts that are not Material Service Contracts,
or (z) in the case of the Project Budget, the Approved Project
Budget, the Project Schedule, the Approved Project Schedule, and
the Management Plan, as expressly provided hereunder; provided,
that AMD Inc. may terminate the AMD Holding Wafer Purchase
Agreement or the AMD Holding Research Agreement only in accordance
with the express termination provisions thereof; provided, further,
that AMD Holding may terminate the AMD Saxonia Wafer Purchase
Agreement or the AMD Saxonia Research Agreement only in accordance
with the express termination provisions thereof; and provided,
further, that the AMD Saxonia Hedging Contract may be terminated
only in accordance with the express termination provisions thereof.
The foregoing notwithstanding, AMD Saxonia may amend or modify, or
agree to the amendment or modification of, the Design/Build
Agreement, any Material Equipment Supply Contract, any Material
Service Contract, or the Plans and Specifications to the extent
such amendment or modification does not, individually or in the
aggregate, decrease or adversely affect (x) the value or use of the
Plant and the Design Center (or of the rights of the Banks with
respect thereto) in any material respect, or (y) the capacity of
the Plant to perform, on a substantially continuous basis, the
functions for which it was specifically designed in accordance with
the plans and specifications as originally approved
62
by the Technical Advisor and the Agent for purposes of the Operative
Documents; provided, that prior to Completion no such amendment or
modification will, individually or in the aggregate, be inconsistent
with the Approved Project Budget or the Approved Project Schedule.
(ii) create, incur, or suffer to exist any Encumbrance with respect to
its rights under or in respect of the Sponsors' Loan Agreement or
the Revolving Loan Facility Agreement.
(iii) permit AMD Holding, AMD Saxony LLC, AMD Admin or AMD Saxonia to
amend their respective Organizational Documents (except in
connection with the Substitution (if any)).
(iv) permit to subsist or enter into any other agreements which (by their
terms) conflict with, or prohibit AMD Inc., from complying with its
obligations as set out in this Agreement or any other Operative
Document.
SECTION 13.3 Incorporated Covenants of AMD, Inc. AMD Inc. agrees, so long as any
Primary Secured Obligation shall remain outstanding or any Bank shall have any
commitment under or arising out of the Loan Agreement, that it will, unless the
Security Agent shall have enforced any of the Security or the Agent (acting on
the instructions of an Instructing Group) shall have otherwise consented in
writing, duly keep, perform, and observe, for the benefit of the Agent, the
Security Agent, and the Secured Parties, each and every affirmative, negative,
and informational covenant contained in the AMD Inc. Primary Bank Credit
Agreement (to the extent that such covenants are applicable to AMD Inc.
thereunder), all of which covenants, together with related definitions and
ancillary provisions, are hereby incorporated herein by reference as if such
terms were set forth herein in full; provided, however, that:
(i) with respect to the AMD Inc. Primary Bank Credit Agreement referred
to in clause (i) of the definition thereof:
(a) any references to the "Agent" shall be deemed to be
references to the Agent (except where such term is used in
Article 6, Sections 7.1, 7.2 (a), 9.5 (b) and (c) (second
sentence), 9.11, 9.14, 9.15 and 9.22 (a) thereof);
(b) any references to the "Lenders" shall be deemed to be
references to the Banks (except where such term is used in
Article 6, Sections 7.1, 7.2 (a), 9.5 (b) and (c) (second
sentence), 9.15 and 9.22 (a) thereof);
(c) any references to the "Majority Lenders" shall be deemed to
be references to an Instructing Group (except where such
term is used in Article 6, or Section 9.5 (b) and 9.22 (a)
thereof);
(d) any references to the "Agreement" shall be deemed to be
references to this Agreement (except where such term is used
in Article 6 and Sections 7.2 (b), 7.2 (d), 7.2 (e), 9.8,
9.13, 9.15 and 9.22 (a) thereof);
63
(e) any references to the "Loan Documents" shall be deemed to be
references to the Operative Documents (except where such
term is used in Article 6 and Section 7.2 (e) and 9.22 (a)
thereof);
(f) any references to an "Event of Default" shall be deemed to
be references to an Event of Default (except where such term
is used in Article 6 and Sections 7.2 (d), 7.2 (e), 9.5 (c)
and 9.8 (vi) (A) thereof);
(g) any references to a "Default" shall be deemed to be
references to an Unmatured Event of Default (except where
such term is used in Article 6 and Sections 7.2 (d) and 7.2
(e) thereof);
(h) any references to a "Material Adverse Effect" shall be
deemed to be references to a Material Adverse Effect; and
(i) any references to "so long as any of the Obligations remain
outstanding or this Agreement is in effect" shall be deemed
to be references to "So long as any Bank shall have any
commitment to make Advances under the Loan Agreement or any
of the Primary Secured Obligations shall remain unpaid or
unsatisfied";
(ii) [intentionally deleted]
(iii) with respect to the AMD Inc. Primary Bank Credit Agreement referred
to in clause (ii) of the definition thereof, such modifications to
the provisions incorporated in this Agreement as shall be
appropriate to make them applicable to this Agreement and consistent
with the Project shall be deemed to be made; and
The provisions and definitions of the applicable AMD Inc. Primary Bank Credit
Agreement, as incorporated by reference in this Agreement, shall continue to be
binding on AMD Inc. after giving effect to any consent or waiver with respect to
such provisions or to any amendment or modification thereof, in each case given
or made in accordance with the terms of and by the parties to the applicable AMD
Inc. Primary Bank Credit Agreement.
SECTION 13.4 Affirmative Covenants of the Sponsors. The Sponsors, jointly and
severally, agree, so long as any Primary Secured Obligations shall remain
outstanding or any Bank shall have any commitment under or arising out of the
Loan Agreement, that each of AMD Holding, AMD Admin, and (prior to the
Substitution (if any)), AMD Saxony LLC will (and, at all times prior to the
exercise of rights by the Security Agent under any of the Security Documents,
AMD Inc. will cause each of AMD Holding, AMD Admin, and (prior to the
Substitution (if any)) AMD Saxony LLC to), unless the Agent (acting on the
instructions of an Instructing Group) shall have otherwise consented in writing:
(i) duly and punctually pay and perform all of its obligations under
each of the Operative Documents to which it is a party in the manner
and at the time contemplated therein.
64
(ii) pay or discharge (a) all taxes, assessments, and governmental
charges or levies imposed upon it or upon its income or profits or
any property belonging to it prior to the date on which penalties
attach thereto, and (b) all lawful claims prior to the time they
become an Encumbrance upon any property of any of AMD Holding, AMD
Admin or AMD Saxony LLC, as the case may be, and other than taxes,
assessments, charges, levies, or claims included in clauses (a) and
(b) above which are not, individually or collectively, substantial
in aggregate amount; provided, that (after providing notice thereof
to the Agent) neither AMD Holding, nor AMD Saxony LLC, nor AMD Admin
shall be required to pay or discharge any such tax, assessment,
charge, levy, or claim while the same is being contested by it in
good faith and by appropriate proceedings and adequate book reserves
have been established with respect thereto, and so long as the lien
or charge resulting from the nonpayment or non-discharge of such
tax, assessment, charge, levy, or claim shall not, individually or
in the aggregate, have a Material Adverse Effect.
(iii) cause AMD Saxonia to preserve and maintain its existence as a
Limited Partnership, rights, privileges, and franchises in the
jurisdiction of its incorporation, and cause AMD Saxonia to not have
operations in any other jurisdiction.
(iv) comply in all material respects with all laws, rules, regulations,
and governmental orders (Federal, state, local, and foreign) having
applicability to it or to the business or businesses at any time
conducted by each of AMD Holding, AMD Admin, and AMD Saxony LLC
except to the extent that any such noncompliance, individually or in
the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
(v) promptly following each of AMD Holding's, AMD Admin's and AMD Saxony
LLC's, as the case may be, receipt or transmission thereof, unless
otherwise concurrently delivered by another AMD Company to the Agent
under an Operative Document, furnish to the Agent a copy of each
notice, report, schedule, certificate, financial statement, or other
document furnished pursuant to any of the Operative Documents if
such notice, report, schedule, certificate, financial statement, or
other document could reasonably be considered material to the Agent
or any Bank in connection with the Operative Documents or the
entirety of the transactions contemplated thereby.
(vi) promptly following a request from the Security Agent to do so and at
AMD Holding's, AMD Admin's or AMD Saxony LLC's, as the case may be,
own expense, take all such lawful action as the Security Agent may
reasonably request to enforce or secure the performance by each
other AMD Company under any Operative Document to which AMD Holding,
AMD Admin or AMD Saxony LLC is a party of such AMD Company's
respective obligations under and in connection with the applicable
Operative Document in accordance with the respective terms thereof,
and exercise any right of termination or remedy available to AMD
Holding, AMD Admin or AMD Saxony LLC thereunder or in
65
connection therewith to the extent and in the manner reasonably
directed by the Security Agent, including, without limitation, the
institution of legal or administrative actions or proceedings to
compel or enforce performance by each other AMD Company of its
respective obligations thereunder, or to recover any payment due AMD
Holding, AMD Admin or AMD Saxony LLC thereunder.
(vii) keep, or cause to be kept, adequate records and books of account, in
which complete entries are to be made reflecting its business and
financial transactions, such entries to be made in accordance with
GAAP consistently applied in the case of financial transactions or
as otherwise required by applicable rules and regulations of any
governmental agency or regulatory authority (federal, state, local
or foreign) having jurisdiction over AMD Holding, AMD Admin and AMD
Saxony LLC, or the transactions contemplated by this Agreement or
the other Operative Documents to which it is or will be a party.
(viii) maintain, obtain or effect all Governmental Approvals which may at
any time or from time to time be necessary for the due
authorization, execution, delivery, performance, legality, validity,
or enforceability of each of the Operative Documents to which it is
or will be a party.
(ix) prior to Completion, cause AMD Saxonia to use Sponsors' Loans,
equity contributions under Article II, Advances and Revolving Loans
solely to pay Project Costs to complete the Project in accordance
with the Plans and Specifications.
(x) cause each of AMD Holding and AMD Admin to promptly pay proceeds
from any tax refunds to AMD Saxonia.
(xi) furnish to the Agent (with copies for each of the Banks):
(a) as soon as available, and in any event within ninety (90)
days after the end of each calendar year, financial
statements of each of AMD Holding and AMD Admin consisting
of a balance sheet of each of AMD Holding and AMD Admin as
at the end of such calendar year and a profit and loss
statement and cash flow statement of each of AMD Holding and
AMD Admin for such calendar year, setting forth in
comparative form the corresponding figures for the preceding
calendar year (to the extent applicable), all in reasonable
detail and certified by independent certified public
accountants of recognised national standing and by an
authorised financial officer of each of AMD Holding and AMD
Admin as fairly presenting in accordance with GAAP,
consistently applied, the financial position and results of
operations of each of AMD Holding and AMD Admin;
(b) as soon as available, and in any event within ninety (90)
days after the end of each Fiscal Year of AMD Saxony LLC,
financial statements consisting of a balance sheet of AMD
Saxony LLC as at the end of such Fiscal Year
66
and a statement of income and statement of shareholders'
equity and cashflows of AMD Saxony LLC for such Fiscal Year,
setting forth in comparative form the corresponding figures
for the preceding Fiscal Year, all in reasonable detail and
certified by independent certified public accountants of
recognised national standing and by an authorised financial
officer of AMD Saxony LLC as fairly presenting in accordance
with GAAP, consistently applied, the financial position and
results of operations of AMD Saxony LLC.
(xii) following the Conversion, promptly execute a declaration of
liability substantially in the same form attached as Appendix Four
to the SAB/Dresdner Subsidy Agreement, amended to reflect the
addition of the Additional Partner Companies and promptly deliver or
cause to be delivered, to the Agent the original executed version of
the Power of Attorney referred to in para (xxiii) of the definition
of Conversion Documents which shall be held by the Agent in
accordance with the Operative Documents.
SECTION 13.5 Negative Covenants of the Sponsors. The Sponsors, jointly and
severally, agree, so long as any Primary Secured Obligation shall remain
outstanding or any Bank shall have any commitment under or arising out of the
Loan Agreement, that none of AMD Holding, AMD Admin or (prior to the
Substitution (if any)) AMD Saxony LLC will (and AMD Inc. will not, at any time
prior to the exercise of rights by the Security Agent under any of the Security
Documents, permit AMD Holding, AMD Admin or (prior to the Substitution (if any))
AMD Saxony LLC to), unless the Agent (acting on the instructions of an
Instructing Group) shall have otherwise consented in writing:
(i) terminate, amend or modify, or agree to the termination, amendment
or modification, of any Operative Document, other than (w) the AMD
Inc. Primary Bank Credit Agreement (which may be amended, modified
or terminated in accordance with Section 13.3), (x) the Equipment
Supply Contracts that are not Material Equipment Supply Contracts,
(y) the Service Contracts that are not Material Service Contracts,
or (z) in the case of the Project Budget, the Approved Project
Budget, the Project Schedule, the Approved Project Schedule, and the
Management Plan, as expressly provided hereunder; provided, that AMD
Inc. may terminate the AMD Holding Wafer Purchase Agreement or the
AMD Holding Research Agreement only in accordance with the express
termination provisions thereof; provided, further, that AMD Holding
may terminate the AMD Saxonia Wafer Purchase Agreement or the AMD
Saxonia Research Agreement only in accordance with the express
termination provisions thereof; and provided, further, that the AMD
Saxonia Hedging Contract may be terminated only in accordance with
the express termination provisions thereof. The foregoing
notwithstanding, AMD Saxonia may amend or modify, or agree to the
amendment or modification of, the Design/Build Agreement, any
Material Equipment Supply Contract, any Material Service Contract,
or the Plans and Specifications to the extent such amendment or
modification does not, individually or in the aggregate, decrease or
adversely affect (x) the value or use of the Plant and the Design
Center (or of the rights of the Banks with respect
67
thereto) in any material respect, or (y) the capacity of the Plant
to perform, on a substantially continuous basis, the functions for
which it was specifically designed in accordance with the plans
and specifications as originally approved by the Technical Advisor
and the Agent for purposes of the Operative Documents; provided,
that, prior to Completion, no such amendment or modification will,
individually or in the aggregate, be inconsistent with the
Approved Project Budget or the Approved Project Schedule.
(ii) engage in any activities other than those contemplated by the
Operative Documents to which it is a party or the transactions
contemplated thereby and activities reasonably incidental thereto.
(iii) create, incur, assume, or suffer to exist any Encumbrance in,
upon, or with respect to any of its properties or assets, whether
now owned or hereafter acquired, or assign or otherwise convey any
right to receive income to secure any obligation, except as
contemplated by (1) the AMD Holding Security Documents, (2) the
AMD Saxony LLC Security Documents, (3) the AMD Admin Security
Documents and (4) for Permitted Encumbrances.
(iv) create, incur, assume, or suffer to exist any Indebtedness,
whether current or funded, except current accounts and other
amounts payable in the ordinary course of business, and except to
the extent contemplated by the Operative Documents.
(v) create, incur, assume, or suffer to exist any obligations as
lessee for the rental or hire of real or personal property of any
kind whatsoever.
(vi) assume, guarantee, or endorse, or otherwise become directly or
contingently liable in respect of, any obligation of any Person,
except pursuant to the Operative Documents to which it is a party.
(vii) merge with or into or consolidate with any Person, or, acquire,
lease, or purchase, all or substantially all of the assets or
stock of any class of, or any partnership or joint venture
interest in, any Person, or create or acquire any Subsidiary,
except, with respect to AMD Holding, for the acquisition of AMD
Saxonia and AMD Admin.
(viii) sell, lease, assign, transfer, or otherwise dispose of any of its
assets, including its accounts receivable, except as contemplated
by the Operative Documents or in connection with the Conversion
and the Substitution (if any); or issue or sell any shares of any
class of its capital stock to any Person except, with respect to
AMD Holding and AMD Saxony LLC, to AMD Inc. and except, with
respect to AMD Admin, to AMD Holding.
(ix) make any loan or advance or extend any credit to any Person other
than AMD Saxonia or as contemplated by the AMD Holding Wafer
Purchase Agreement, or purchase or otherwise acquire the capital
stock or obligation of, or any investment in, any Person other
than AMD Saxonia, in each case other than Cash Equivalent
68
Investments which have been pledged to the Security Agent pursuant
to the AMD Holding Security Documents.
(x) apply for or become liable with respect to any letter of credit or
acceptance financing; or enter into or become liable with respect
to any interest or currency swap, hedge, exchange, or other
similar obligation.
(xi) purchase any shares of, or interest in, any Person, other than,
with respect to AMD Holding, shares of, or interest in, AMD
Saxonia or AMD Admin, and, with respect to AMD Saxony LLC, the
re-transfer of Euro 250 capital interest (Pflichteinlage) in AMD
Saxonia in connection with the Conversion, or redeem any of its
shares, declare or pay any dividend thereon or make any
distribution to its shareholders, except for any such distribution
made as a result of the transactions contemplated by Section 6.3
or as otherwise contemplated by the Operative Documents; or in the
case of AMD Saxony LLC, AMD Admin or AMD Holding, accept any
distributions, or accept any payments of profits (Gewinnanspruch)
including but not limited to, any and all rights and claims
arising in connection with the capital accounts (Kapitalkonten),
loan accounts (Darlehenskonten), and the private accounts
(Privatkonten) of any partner (Gesellschafter), any claim to a
distribution-quote (Auseinandersetzungsanspruch) including but not
limited to any compensation in case of termination (Auflosung), in
particular claims for liquidation proceeds (Liquidationserlos),
withdrawal (Ausscheiden) of a partner, repaid capital in case of a
capital decrease (Herabsetzung der Einlage oder der
Pflichteinlage), repayment of capital (Ruckzahlung von Einlagen)
or any other pecuniary claims (geldwerte Forderungen) from AMD
Saxonia, except for any such distribution or payment of profits
made as a result of the transactions contemplated by Section 6.3
or as otherwise contemplated by the Operative Documents.
(xii) except as provided in the Management Service Agreement, pay any
salary, compensation, or bonus of any character to any officer,
director, or employee of AMD Holding or any Affiliate thereof, or
of AMD Admin or any Affiliate thereof or of AMD Saxony LLC or any
Affiliate thereof or provide any such Person with any medical,
surgical, dental, hospital, disability, unemployment, retirement,
pension, vacation, or insurance benefit of any kind or adopt,
establish, or maintain any plan, fund, or program to provide any
such benefit.
(xiii) enter into any transaction with AMD Inc. or an Affiliate thereof
(other than AMD Saxonia) on a basis materially less favourable to
AMD Holding, AMD Admin or AMD Saxony LLC, as the case may be, than
would be the case if such transaction had been effected with a
Person other than AMD Inc. or an Affiliate thereof.
(xiv) open or maintain a bank account with any Person, except for demand
or other deposit accounts at the Agent and at Security Agent.
(xv) amend or modify the Organizational Documents of AMD Saxonia, AMD
Saxony LLC or AMD Admin.
69
(xvi) issue any power of attorney or other contract or agreement giving
any Person power or control over the day-to-day operations of AMD
Holding's business, AMD Admin's business or AMD Saxony LLC's
business, as the case may be, except as contemplated by the
Operative Documents.
(xvii) commence, or join with any other creditor in commencing, any
bankruptcy, reorganization, or insolvency proceeding with respect
to AMD Saxonia or AMD Inc.
(xviii) enter into any agreement other than as contemplated by the
Operative Documents to which it is or will be a party or under any
instrument or document delivered or to be delivered by it
hereunder or thereunder, or in connection herewith or therewith.
(xix) make any significant change in accounting treatment or reporting
practices, except as required by GAAP, or change its Fiscal Year.
(xx) create, incur, assume, or suffer to exist any Encumbrance with
respect to its rights under or in respect of the Sponsors' Loan
Agreement or the Revolving Loan Facility Agreement, except as set
forth in the Security Documents.
(xxi) permit AMD Saxony LLC to conduct any activities other than as
general partner of AMD Saxonia, nor permit AMD Admin to conduct
any activities other than as limited partner of AMD Saxonia (and
as substitute general partner of AMD Saxonia, following the
Substitution (if any)), nor permit AMD Holding to conduct any
activities other than as limited partner of AMD Saxonia or as
contemplated by the Operative Documents.
SECTION 13.6 Affirmative Covenants of the Additional Partner Companies. The
Additional Partner Companies, jointly and severally, agree, so long as any
Primary Secured Obligations shall remain outstanding or any Bank shall have any
commitment under or arising out of the Loan Agreement, that each of AMD Admin
and (prior to the Substitution (if any)) AMD Saxony LLC will, unless the
Security Agent shall have enforced any of the Security or the Agent (acting on
the instructions of an Instructing Group) shall have otherwise consented in
writing:
(i) furnish to the Agent (with copies for each of the Banks):
(a) as soon as available, and in any event within ninety (90)
days after the end of each calendar year, financial
statements of AMD Admin consisting of a balance sheet of AMD
Admin as at the end of such calendar year and a profit and
loss statement and cash flow statement of AMD Admin for such
calendar year, setting forth in comparative form the
corresponding figures for the preceding calendar year (to the
extent applicable), all in reasonable detail and certified by
independent certified public accountants of recognised
national standing and by an authorised financial officer of
each of AMD Admin as fairly presenting in accordance with
GAAP, consistently applied, the financial position and
results of operations of AMD Admin;
70
(b) as soon as available, and in any event within ninety (90)
days after the end of each Fiscal Year of AMD Saxony LLC,
financial statements consisting of a balance sheet of AMD
Saxony LLC as at the end of such Fiscal Year and a statement
of income and statement of shareholders' equity and cashflows
of AMD Saxony LLC for such Fiscal Year, setting forth in
comparative form the corresponding figures for the preceding
Fiscal Year (to the extent applicable), all in reasonable
detail and certified by independent certified public
accountants of recognised national standing and by an
authorised financial officer of AMD Saxony LLC as fairly
presenting in accordance with GAAP, consistently applied, the
financial position and results of operations of AMD Saxony
LLC;
(c) promptly following the Additional Partner Companies' receipt
or transmission thereof, and unless otherwise concurrently
delivered by another AMD Company to the Agent under an
Operative Document, a copy of each notice, report, schedule,
certificate, financial statement, or other document furnished
pursuant to any of the Operative Documents if such notice,
report, schedule, certificate, financial statement, or other
document could reasonably be considered material to the Agent
or any Bank in connection with the Operative Documents and
the entirety of the transactions contemplated thereby; and
(d) such other information with respect to the business affairs,
financial condition, and/or operations of the Additional
Partner Companies as the Agent or any Bank (acting through
the Agent) may from time to time reasonably request for
purposes of the transactions contemplated by the Operative
Documents.
(ii) pay and perform all of its obligations under each of the Operative
Documents to which it is a party in the manner and at the time
contemplated therein.
(iii) ensure that 100% of the capital partnership interests
(Kapitalanteile) in AMD Saxonia shall be held by AMD Admin (as to
Euro 250), AMD Holding (as to at least 99.99% (rounded to two
decimal points) and AMD Saxony LLC (prior to a Substitution (if
any)) (as to Euro 250 prior to its re-transfer of a fractional
interest pursuant to the Conversion Documents, and as to 0%
following such re-transfer), each of which shall hold no
investment in any other person (except that AMD Admin is a
wholly-owned subsidiary of AMD Holding) and that AMD Holding and
AMD Saxony LLC shall be, in turn, wholly-owned subsidiaries of AMD
Inc.
(iv) with respect to AMD Saxony LLC, retransfer to AMD Holding its
capital interest (Pflichteinlage) of Euro 250 in AMD Saxonia in
accordance with the Assignment and Trust Agreement.
(v) pay or discharge (a) all taxes, assessments, and governmental
charges or levies imposed upon it or upon its income or profits or
any property belonging to it prior to the date on which penalties
attach thereto, and (b) all lawful claims prior to the
71
time they become an Encumbrance upon any property of any of the
Additional Partner Companies, and other than taxes, assessments,
charges, levies, or claims included in clauses (a) and (b) above
which are not, individually or collectively, substantial in
aggregate amount; provided, that (after providing notice thereof
to the Agent) neither AMD Saxony LLC nor AMD Admin shall be
required to pay or discharge any such tax, assessment, charge,
levy, or claim while the same is being contested by it in good
faith and by appropriate proceedings and adequate book reserves
have been established with respect thereto, and so long as the
lien or charge resulting from the nonpayment or non-discharge of
such tax, assessment, charge, levy, or claim shall not,
individually or in the aggregate, have a Material Adverse Effect.
(vi) cause AMD Saxonia to preserve and maintain its existence as a
Limited Partnership, rights, privileges, and franchises in the
jurisdiction of its incorporation, and cause AMD Saxonia to not
have operations in any other jurisdiction.
(vii) comply in all material respects with all laws, rules, regulations,
and governmental orders (federal, state, local, and foreign)
having applicability to it or to the business or businesses at any
time conducted by each of the Additional Partner Companies except
to the extent that any such noncompliance, individually or in the
aggregate, could not reasonably be expected to have a Material
Adverse Effect.
(viii) promptly following a request from the Security Agent to do so and
at the Additional Partner Companies' own expense, take all such
lawful action as the Security Agent may reasonably request to
enforce or secure the performance by each other AMD Company under
any Operative Document to which the Additional Partner Companies
are a party of such AMD Company's respective obligations under and
in connection with the applicable Operative Document in accordance
with the respective terms thereof, and exercise any right of
termination or remedy available to the Additional Partner
Companies thereunder or in connection therewith to the extent and
in the manner reasonably directed by the Security Agent,
including, without limitation, the institution of legal or
administrative actions or proceedings to compel or enforce
performance by each other AMD Company of its respective
obligations thereunder, or to recover any payment due the
Additional Partner Companies thereunder.
(ix) keep, or cause to be kept, adequate records and books of account,
in which complete entries are to be made reflecting its business
and financial transactions, such entries to be made in accordance
with GAAP consistently applied in the case of financial
transactions or as otherwise required by applicable rules and
regulations of any governmental agency or regulatory authority
(federal, state, local or foreign) having jurisdiction over the
Additional Partner Companies, or the transactions contemplated by
this Agreement or the other Operative Documents to which it is or
will be a party.
72
(x) maintain, obtain or effect all Governmental Approvals which may at
any time or from time to time be necessary for the due
authorization, execution, delivery, performance, legality, validity,
or enforceability of each of the Operative Documents to which it is
or will be a party.
(xi) with respect to AMD Admin, promptly pay proceeds from any tax
refunds to AMD Saxonia.
(xii) following the Conversion, promptly execute a declaration of
liability substantially in the same form attached as Appendix Four
to the SAB/Dresdner Subsidy Agreement, amended to reflect the
addition of the Additional Partner Companies and promptly deliver or
cause to be delivered, to the Agent the original executed version of
the Power of Attorney referred to in para (xxiii) of the definition
of Conversion Documents which shall be held by the Agent in
accordance with the Operative Documents.
SECTION 13.7 Negative Covenants of the Additional Partner Companies. The
Additional Partner Companies, jointly and severally agree, so long as any
Primary Secured Obligation shall remain outstanding or any Bank shall have any
commitment under or arising out of the Loan Agreement, that neither AMD Admin
nor (prior to the Substitution (if any)) AMD Saxony LLC will, unless the
Security Agent shall have enforced any of the Security or the Agent (acting on
the instructions of an Instructing Group) shall have otherwise consented in
writing:
(i) terminate, amend or modify, or agree to the termination, amendment
or modification, of any Operative Document to which it is a party.
(ii) engage in any activities other than those contemplated by the
Operative Documents to which it is a party or the transactions
contemplated thereby and activities reasonably incidental thereto.
(iii) create, incur, assume, or suffer to exist any Encumbrance in, upon,
or with respect to any of its properties or assets, whether now
owned or hereafter acquired, or assign or otherwise convey any right
to receive income to secure any obligation, except as contemplated
by (1) the AMD Saxony LLC Security Documents, (2) the AMD Admin
Security Documents and (3) for Permitted Encumbrances.
(iv) create, incur, assume, or suffer to exist any Indebtedness, whether
current or funded, except current accounts and other amounts payable
in the ordinary course of business, and except to the extent
contemplated by the Operative Documents.
(v) create, incur, assume, or suffer to exist any obligations as lessee
for the rental or hire of real or personal property of any kind
whatsoever.
(vi) assume, guarantee, or endorse, or otherwise become directly or
contingently liable in respect of, any obligation of any Person,
except pursuant to the Operative Documents to which it is a party.
73
(vii) merge with or into or consolidate with any Person, or, acquire,
lease, or purchase, all or substantially all of the assets or stock
of any class of, or any partnership or joint venture interest in,
any Person, or create or acquire any Subsidiary, except for AMD
Saxonia.
(viii) sell, lease, assign, transfer, or otherwise dispose of any of its
assets, including its accounts receivable, except as contemplated by
the Operative Documents or in connection with the Conversion and the
Substitution (if any); or issue or sell any shares of any class of
its capital stock to any Person except, with respect to AMD Saxony
LLC, to AMD Inc. and except, with respect to AMD Admin, to AMD
Holding in accordance with the Conversion Documents.
(ix) make any loan or advance or extend any credit to any Person other
than AMD Saxonia, or purchase or otherwise acquire the capital stock
or obligation of, or any investment in, any Person other than AMD
Saxonia, and in each case other than Cash Equivalent Investments
which have been pledged to the Security Agent pursuant to the
relevant Security Documents.
(x) apply for or become liable with respect to any letter of credit or
acceptance financing; or enter into or become liable with respect to
any interest or currency swap, hedge, exchange, or other similar
obligation.
(xi) purchase any shares of, or interest in, any Person, other than, with
respect to AMD Saxony LLC, the re-transfer of Euro 250 partnership
interest in AMD Saxonia in connection with the Conversion, or redeem
any of its shares, declare or pay any dividend thereon or make any
distribution to its shareholders, except for any such redemption or
distribution made as a result of the transactions contemplated by
Section 6.3 or as otherwise contemplated by the Operative Documents;
or accept any distributions or accept any payments of profits
(Gewinnanspruch) including but not limited to, any and all rights
and claims arising in connection with the capital accounts
(Kapitalkonten), loan accounts (Darlehenskonten), and the private
accounts (Privatkonten) of any partner (Gesellschafter), any claim
to a distribution-quote (Auseinandersetzungsanspruch) including but
not limited to any compensation in case of termination (Auflosung),
in particular claims for liquidation proceeds (Liquidationserlos),
withdrawal (Ausscheiden) of a partner, repaid capital in case of a
capital decrease (Herabsetzung der Einlage oder der Pflichteinlage),
repayment of capital (Ruckzahlung von Einlagen) or any other
pecuniary claims (geldwerte Forderungen) from AMD Saxonia, except
for any such distribution or payment of profits made as a result of
the transactions contemplated by Section 6.3 or as otherwise
contemplated by the Operative Documents.
(xii) pay any salary, compensation, or bonus of any character to any
officer, director, or employee of the Additional Partner Companies
or provide any such Person with any medical, surgical, dental,
hospital, disability, unemployment, retirement, pension, vacation,
or insurance benefit of any kind or adopt, establish, or maintain
any plan, fund, or program to provide any such benefit.
74
(xiii) enter into any transaction with AMD Inc. or an Affiliate thereof
(other than AMD Saxonia) on a basis materially less favourable to
the Additional Partner Companies than would be the case if such
transaction had been effected with a Person other than AMD Inc. or
an Affiliate thereof.
(xiv) open or maintain a bank account with any Person, except for demand
or other deposit accounts at the Agent and at Security Agent.
(xv) amend or modify the Organizational Documents of AMD Saxonia or the
Additional Partner Companies.
(xvi) issue any power of attorney or other contract or agreement giving
any Person power or control over the day-to-day operations of the
Additional Partner Companies' business, except as contemplated by
the Operative Documents.
(xvii) commence, or join with any other creditor in commencing, any
bankruptcy, reorganization, or insolvency proceeding with respect to
AMD Saxonia or AMD Inc.
(xviii) enter into any agreement other than as contemplated by the Operative
Documents to which it is or will be a party or under any instrument
or document delivered or to be delivered by it hereunder or
thereunder, or in connection herewith or therewith.
(xix) make any significant change in accounting treatment or reporting
practices, except as required by GAAP, or change its Fiscal Year.
(xx) with respect to AMD Saxony LLC, conduct any activities other than as
general partner of AMD Saxonia or with respect to AMD Admin, conduct
any activities other than as limited partner of AMD Saxonia (and as
substitute general partner of AMD Saxonia, following the
Substitution (if any)).
SECTION 13.8 Recourse to AMD Inc. for Breach of Covenant. It is expressly
understood and agreed by the parties hereto that the obligations of AMD Saxonia
under the Loan Agreement are intended to be limited recourse obligations from
the perspective of AMD Inc. and that the covenants of the Sponsors and the
Additional Partner Companies contained in this Article XIII are not intended to
represent a guaranty of AMD Saxonia's obligations under the Loan Agreement.
Accordingly, (i) neither AMD Inc. nor its assets (other than its interests in
AMD Holding and AMD Saxony LLC) shall be exposed to liability (whether in
damages or otherwise) for breach of any covenant contained in this Article XIII
to the extent that such damages would otherwise result in AMD Inc. incurring
greater financial exposure than the aggregate amount otherwise agreed to be
payable by AMD Inc. pursuant to this Agreement and the other Operative
Documents, and (ii) neither AMD Holding nor any Additional Partner Company shall
have any right of contribution against AMD Inc. arising from any payment made by
AMD Holding or such Additional Partner Company under this Agreement or the
Sponsors' Guaranty to the extent that AMD Inc. provides funds for the purpose of
such payment by contributions to AMD Holding's or such Additional Partner
Company's stated capital or capital reserves and/or by loans to AMD Holding or
such Additional Partner Company; provided, however, that the provisions of
75
this Section 13.8 shall not be construed to absolve AMD Inc. for its liability,
whether in damages or otherwise, for actions or omissions constituting fraud or
misrepresentation or breach of warranty; and provided, further that the
provisions of this Section 13.8 shall not preclude the Security Agent from
seeking temporary relief (if otherwise available) for any prospective breach by
AMD Inc. of its covenants contained in this Article XIII.
ARTICLE XIV
Costs and Expenses; Indemnities; Taxes; Etc.
SECTION 14.1 Costs and Expenses. The Sponsors, jointly and severally, agree to
pay (to the extent not previously paid by AMD Saxonia promptly following a
demand by the Agent therefor, it being understood and agreed that the Agent will
demand such payment for the costs and expenses of the preparation of this
Agreement) all costs and expenses (including reasonable legal fees and expenses)
of the Agent, the Security Agent, and the Paying Agent in connection with the
negotiation, preparation, execution, and delivery of this Agreement, any
amendments or modifications of (or supplements to) this Agreement, and any and
all other documents furnished pursuant hereto or in connection herewith, as well
as all costs and expenses (including, without limitation, reasonable attorneys'
fees and expenses) if any, in connection with the enforcement of this Agreement
or any other agreement furnished by them prior to the enforcement by the
Security Agent of any of the Security pursuant hereto or in connection herewith.
SECTION 14.2 General Indemnity. The Sponsors, jointly and severally, hereby
agree to indemnify, exonerate, and hold the Agent, the Security Agent, and the
Paying Agent, and each of the officers, directors, employees of the Agent, the
Security Agent, and the Paying Agent (herein collectively called the
"Indemnitees") free and harmless from and against any and all actions, claims,
losses, liabilities, damages, and expenses, including, without limitation,
reasonable legal fees and expenses (herein collectively called the "Indemnified
Liabilities"), which may be incurred by or asserted against the Indemnitees or
any Indemnitee as a result of, or arising out of, or relating to, or in
connection with:
(i) the failure by either Sponsor or the relevant Additional Partner
Company to comply with its respective obligations under this
Agreement, the Conversion Documents, the Amendment Agreements, the
Sponsors' Guaranty, the Sponsors' Loan Agreement and the Revolving
Loan Facility Agreement (subject, in the case of Indemnified
Liabilities arising from Article XIII, to the provisions of Section
13.8);
(ii) the inaccuracy by either Sponsor of any of its representations and
warranties contained in any of the Operative Documents to which it
is a party as and when made or reaffirmed as the case may be
(provided that AMD Inc. shall have no liability under this Section
14.2 in respect of any inaccuracy by AMD Holding of the
representation and warranty contained in Section 12.2 (xi)); and
(iii) any investigation, litigation, or proceeding related to this
Agreement or the consummation of the transactions contemplated
hereby, whether or not any such Indemnitee is a party thereto, and,
to the extent that the foregoing undertaking may be unenforceable
for any reason, the Sponsors, jointly and severally, hereby
76
agree to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
In no event shall AMD Inc. indemnify the Indemnitees against any liabilities of
AMD Saxony LLC or, following the Substitution, AMD Admin, arising solely by
virtue of AMD Saxony LLC, or, following the Substitution, AMD Admin, being
generally liable for the obligations of AMD Saxonia as the general partner of
AMD Saxonia.
SECTION 14.3 Undertaking to Contribute. AMD Inc. hereby undertakes that in the
event:
(i) Either: (A) a liability is imposed on AMD Saxonia, AMD Holding or
AMD Admin as a result of the German tax authorities
re-characterising interest on the Sponsors' Loans or Revolving Loans
as dividends; or (B) a liability is imposed on AMD Saxonia, AMD
Holding or AMD Admin as a result of the German tax authorities
ruling that AMD Saxonia, AMD Holding or AMD Admin, as the case may
be, is not sufficiently profitable (any such liability referred to
in (A) and (B) being together, the "Liabilities"), and, in the case
of either (A) or (B)
(ii) AMD Saxonia, AMD Holding and/or AMD Admin make payments to the
German tax authorities in respect of the Liabilities as required by
German law,
AMD Inc. shall advance Sponsors' Loans to AMD Saxonia or contribute Equity
Capital (or other contributions to AMD Saxonia's capital reserves) to AMD
Holding (and AMD Inc. shall to the extent necessary and depending on where the
Liability arises, contribute sufficient funds or otherwise cause sufficient
funds to be made available, to AMD Holding as shall be necessary to enable AMD
Holding to so contribute to AMD Saxonia and AMD Inc. shall cause AMD Holding to
do the same) in an amount equal to the amounts paid by AMD Saxonia (including
payments by AMD Saxonia to AMD Holding or AMD Admin) in respect of the
Liabilities, as follows:
To the extent AMD Saxonia has drawn all amounts available for drawing under the
Revolving Loan Facility Agreement prior to the payment of such Liabilities, such
Sponsors' Loans or Equity Capital contribution shall be made at the same time as
the payment of the Liabilities.
To the extent AMD Saxonia has not drawn all amounts available for drawing under
the Revolving Loan Facility Agreement prior to the payment of such Liabilities,
such Sponsors' Loans or Equity Capital contribution shall be made at the time
that AMD Saxonia draws all amounts available for drawing under the Revolving
Loan Facility Agreement.
SECTION 14.4 SAB Related Agreements Indemnity. The Sponsors, jointly and
severally, hereby agree to indemnify, exonerate, and hold the Agent, and each of
the officers, directors, employees of the Agent (herein collectively called the
"SAB Indemnitees") free and harmless from and against any and all actions,
claims, losses, liabilities, damages, and expenses, including, without
limitation, reasonable legal fees and expenses (herein collectively called the
"Indemnified SAB Liabilities"), which may be incurred by or asserted against the
SAB Indemnitees or any SAB Indemnitee as a result of, or arising out of, or
relating to, or in
77
connection with, the SAB Related Agreements (other than any such Indemnified SAB
Liabilities finally determined by a court of competent jurisdiction to have
resulted from the gross negligence or wilful misconduct of an SAB Indemnitee),
and, to the extent that the foregoing undertaking may be unenforceable for any
reason, the Sponsors, jointly and severally, hereby agree to make the maximum
contribution to the payment and satisfaction of each of the Indemnified SAB
Liabilities which is permissible under applicable law.
SECTION 14.5 Payments Free and Clear of Taxes, etc. Each of the Sponsors and
Additional Partner Companies hereby agree that:
(a) All payments by such Sponsor or Additional Partner Company
hereunder shall be made to the Person entitled thereto in Same
Day Funds, free and clear of and without deduction for any
present or future income, excise, stamp, or franchise taxes and
other taxes, fees, duties, withholdings, or other charges of any
nature whatsoever imposed by any taxing authority on such
payments, but excluding taxes imposed on or measured by such
Person's net income or receipts or the net income or receipts of
any branch thereof (such non-excluded items being called
"Taxes"). In the event that any withholding or deduction from any
payment to be made by either of the Sponsors or the Additional
Partner Companies hereunder is required in respect of any Taxes
pursuant to any applicable law, rule, or regulation, then such
Sponsor or Additional Partner Company will, subject to Section
14.5(d),
(i) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(ii) promptly forward to such Person (with a copy to the
Security Agent) an official receipt or other documentation
satisfactory to the Security Agent evidencing such payment
to such authority; and
(iii) pay to such Person such additional amount or amounts as is
necessary to ensure that the net amount actually received
by such Person will equal the full amount such Person
would have received had no such withholding or deduction
been required.
Moreover, if any Taxes are directly asserted against any Person
entitled to receive a payment under this Agreement with respect
to any payment received by such Person hereunder, such Person may
pay such Taxes and the Sponsors or Additional Partner Companies
will promptly pay such additional amounts (including any
penalties, interest, or expenses, but only (in the case of
penalties or interest) to the extent not resulting from a
negligent or wilful failure to pay any or all of such Taxes by
such Person, as the case may be) as is necessary in order that
the net amount received by such Person after the payment of such
Taxes (including any Taxes on such additional amount) shall equal
the amount such Person would have received had no such Taxes been
asserted.
78
(b) The additional amount or amounts that either Sponsor or
Additional Partner Company shall be required to pay
pursuant to clause (iii) of Section 14.5(a) shall be
reduced, to the extent permitted by applicable law, by the
amount of the offsetting tax benefits, if any, as
determined by the relevant Person in the exercise of its
sole discretion, which such Person actually receives and
utilises as a result of such Sponsor's or Additional
Partner Company's payment under clause (i) of Section
14.5(a) to the relevant authority (it being expressly
understood and agreed that such Person shall be required
to use commercially reasonable efforts to claim or utilise
any such benefit which may be available to it unless it
believes in good faith that to do so would be inconsistent
with its internal tax and other policies or if, in its
good faith judgment, it would be disadvantaged in any
respect with respect to its tax position or planning).
(c) Subject to the relevant Person complying with Section
14.5(d) below, if any of the Sponsors or Additional
Partner Companies fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the
applicable recipient hereunder the required receipts or
other required documentary evidence, such Sponsor or
Additional Partner Company shall indemnify such Person for
any incremental Taxes, interest, or penalties that may
become payable by such Person as a result of any such
failure.
(d) Each Person entitled to receive a payment hereunder that
is entitled to claim an exemption (either on its own
account or for the account of the relevant Sponsor or
Additional Partner Company) in respect of all or a portion
of any Taxes which are otherwise required to be paid or
deducted or withheld pursuant to this Section 14.5 in
respect of any payments made by a Sponsor or Additional
Partner Company hereunder shall, within a reasonable time
after receiving a written request from such Sponsor or
Additional Partner Company, provide such Sponsor or
Additional Partner Company with such certificates as may
be appropriate in order to obtain the benefits of such
exemption.
(e) Without prejudice to the survival of any other agreement
of the Sponsors or the Additional Partner Companies
hereunder, the agreements and obligations of the Sponsors
or Additional Partner Companies contained in this Section
14.5 shall survive the payment in full of the principal of
and interest on the loans and other financial
accommodations made to AMD Saxonia under the Loan
Agreement.
SECTION 14.6 Judgment. The Sponsors and Additional Partner Companies hereby
agree that:
(a) If, for the purposes of obtaining a judgment in any court,
it is necessary to convert a sum due hereunder in Deutsche
Marks into another currency, the rate of exchange used
shall be that at which in accordance with normal banking
procedures the Security Agent could purchase Deutsche
Marks
79
with such other currency on the Business Day preceding
that on which final judgment is given.
(b) The obligation of each of the Sponsors or the Additional
Partner Companies in respect of any sum due from it to the
Security Agent, the Agent, the Paying Agent, or any Bank
hereunder shall, notwithstanding any judgment in a
currency other than Deutsche Marks be discharged only to
the extent that on the Business Day following receipt by
the Security Agent, the Agent, the Paying Agent, or such
Bank, as the case may be, of any sum adjudged to be so due
in such other currency, the Security Agent, the Agent, the
Paying Agent, or such Bank, as the case may be, may, in
accordance with normal banking procedures, purchase
Deutsche Marks with such other currency; in the event that
the Deutsche Marks so purchased are less than the sum
originally due to the Security Agent, the Agent, the
Paying Agent, or any Bank, in Deutsche Marks, such Sponsor
or Additional Partner Company, as a separate obligation
and notwithstanding any such judgment, hereby indemnifies
and holds harmless the Security Agent, the Agent, the
Paying Agent, and each Bank against such loss, and if the
Deutsche Marks so purchased exceed the sum originally due
to the Security Agent, the Agent, or such Bank in Deutsche
Marks, the Security Agent, the Agent, the Paying Agent, or
such Bank, as the case may be, shall remit to the relevant
Sponsor or Additional Partner Company such excess.
SECTION 14.7 License Agreement. With respect to the License Agreement,
(a) AMD Inc. hereby waives, and agrees to cause each of its
Subsidiaries other than AMD Saxonia to waive, any and all
rights, claims and/or causes of action such Person now has
or in the future may have against AMD Saxonia, its
successors and assigns, the Agent, the Security Agent, the
Paying Agent, any Bank, any receiver appointed to operate
the Plant, or a third party purchaser of the capital
stock, or of all or substantially all of the assets, of
AMD Saxonia (herein collectively referred to as the
"Beneficiaries" and individually as a "Beneficiary"),
based on: (i) its use, in any manner whatsoever, of any
Non-Proprietary Know-how or of Information Residuals (as
such terms are defined in the License Agreement); (ii) its
use, within the scope of the license granted in Section
3(a) of the License Agreement, of the Developed
Intellectual Property (as defined in the License
Agreement), or (iii) its use, in any manner whatsoever, of
Post Research Agreement AMD Saxonia Developed Improvements
or Post Research Agreement AMD Saxonia Developed
Intellectual Property (as such terms are defined in the
License Agreement). The preceding sentence
notwithstanding, AMD Inc. does not waive any rights,
claims or causes of action based on the infringement
and/or misappropriation of any patents, copyrights, mask
works, trademarks and trade secrets, whether registered or
not, which are owned by AMD Inc. or by an Affiliate of AMD
Inc. other than AMD Saxonia and
80
not licensed to AMD Saxonia under the License Agreement;
provided, however, that the use of Information Residuals
(as so defined) shall not be deemed to constitute an
infringement and/or misappropriation of any intellectual
property rights of AMD Inc. or any of its Subsidiaries
(other than AMD Saxonia).
(b) each Sponsor hereby acknowledges and agrees that,
following the termination of the AMD Saxonia Wafer
Purchase Agreement, the operation of the Plant by AMD
Saxonia, its successors and assigns, or by a Beneficiary
shall not, absent a separate infringement or other
unlawful violation, under the License Agreement or
otherwise, of a proprietary, substantial, and identifiable
right of AMD Inc., or any of its Subsidiaries other than
AMD Saxonia, constitute: (i) a breach of the terms of the
License Agreement or of any of the Service Agreements (as
defined in the License Agreement), or (ii) an infringement
upon any intellectual property right of AMD Inc. or its
Subsidiaries other than AMD Saxonia; and
(c) except where such failure was due to a breach by AMD
Saxonia of its covenants to cooperate with AMD Inc., if
AMD Inc. fails to complete the document removal process
set forth in Section 9 of the License Agreement within the
period required therein following the termination of the
AMD Saxonia Research Agreement, AMD Inc. and its
Subsidiaries other than AMD Saxonia shall be deemed to
have waived any and all rights, claims and/or causes of
action they have or in the future may have against AMD
Saxonia, its successors and assigns, or against a
Beneficiary based on the disclosure or use, for any
purpose, by such Person of any documentation left in the
Plant on the grounds that such documentation or the
information contained therein is proprietary to AMD Inc.
or its Affiliates or Subsidiaries other than (in either
case) AMD Saxonia.
ARTICLE XV
Miscellaneous
SECTION 15.1 No Waiver; Modifications in Writing. No failure or delay on the
part of the Agent or the Security Agent in exercising any right, power, or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power, or remedy preclude any other or
further exercise thereof or the exercise of any other right, power, or remedy.
The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Agent or the Security Agent at law or
otherwise. No amendment, modification, supplement, termination, or waiver of or
to any provision of this Agreement, or consent to any departure by either
Sponsor therefrom, shall be effective unless the same shall be in writing and
signed by or on behalf of the Agent and the Security Agent. Any waiver of any
provision of this Agreement, and any consent to any departure by either Sponsor
from the terms of any provision of this Agreement, shall be effective only in
the specific instance and for the specific purpose for which given. No notice to
or demand on either Sponsor in any case shall entitle such Sponsor to any other
or further notice or demand in similar or other circumstances.
81
SECTION 15.2 Severability of Provisions. In case any provision of this Agreement
is invalid or unenforceable, the validity or enforceability of the remaining
provisions hereof shall remain unaffected. The parties hereto shall have an
obligation to replace any invalid or unenforceable provision by a valid and
enforceable provision which approximates best the economic purpose of the
invalid provision.
SECTION 15.3 Termination. This Agreement and the obligations of the parties
hereunder shall terminate on the day that AMD Saxonia has paid in full all of
the Primary Secured Obligations, and the Banks shall have no other or further
commitments under the Loan Agreement; provided, that such obligations shall
automatically revive and be reinstated if and to the extent that AMD Saxonia
shall subsequently have obligations to any Secured Party under or in connection
with any of the Operative Documents.
SECTION 15.4 Assignment. This Agreement shall be binding upon and shall inure to
the benefit of each party hereto and their respective successors and assigns;
provided that neither AMD Inc. nor AMD Holding nor the Additional Partner
Companies shall have the right to transfer or assign their respective rights
under this Agreement without the prior written consent of the Agent and the
Security Agent.
SECTION 15.5 Notice. All notices, demands, instructions, and other
communications required or permitted to be given to or made upon any party
hereto shall be in writing and shall be personally delivered or sent by
registered or certified mail, postage pre-paid, return receipt requested, or by
pre-paid telex, TWX, or telegram, or by pre-paid courier service, or by
telecopier, and shall be deemed to be given for purposes of this Agreement on
the day that such writing is delivered or sent to the intended recipient thereof
in accordance with the provisions of this Section 15.5. Unless otherwise
specified in a notice sent or delivered in accordance with the foregoing
provisions of this Section 15.5, notices, demands, instructions, and other
communications in writing shall be given to or made upon the respective parties
hereto at their respective addresses (or to their respective telex, TWX or
telecopier numbers) indicated below.
To the Security Agent:
Dresdner Bank AG, as Security Agent
▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Betreuung Unternehmenskunden
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇-▇▇▇▇
To the Agent:
Dresdner Bank Luxembourg S.A., as Agent
▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇-▇▇▇-▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Direktion
Facsimile No.: (▇▇▇) ▇▇▇▇-▇▇▇
82
To AMD Inc.:
Advanced Micro Devices, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile No.: (1) (▇▇▇) ▇▇▇-▇▇▇▇
To AMD Holding:
AMD Saxony Holding GmbH
Wilschdorfer Landstrasse 101
01109 Dresden
Attention: Geschaftsfuhrer
Facsimile No.: 49 351 277 91300
To AMD Admin:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Geschaftsfuhrer
Facsimile No.: 49 351 277 91300
To AMD Saxony LLC:
One AMD Place
Mailstop 150
Sunnyvale, California 94088
Attention: Manager
Facsimile No.: (▇▇▇) ▇▇▇ ▇▇▇▇
SECTION 15.6 Relationship to Other Agreements. The rights of the Agent and the
Security Agent pursuant to this Agreement are in addition to any other rights or
remedies which the Agent and the Security Agent may have under statutory law or
other agreements between one or more of the Agent, the Security Agent, the
Banks, and AMD Inc. or AMD Holding or the Additional Partner Companies.
SECTION 15.7 Effectiveness of Agreement; Survival; Expiry of Obligation. This
Agreement shall not be effective for any purpose whatsoever prior to the
execution and delivery of the Loan Agreement by each of AMD Saxonia and the
Agent. Subject to Section 15.3 hereof, the obligations of the Sponsors under
this Agreement shall terminate, except as otherwise provided herein, upon the
payment in full of all of the Primary Secured Obligations to the Secured Parties
under or in connection with the Financing Documents and the Security Documents,
and the expiration or termination of all of their respective commitments
thereunder (the "Loan Agreement Termination Date"); provided, however, that the
obligations of the Sponsors contained in Article XIV hereof shall survive any
termination of this Agreement. Except as provided in Section 2.4 of the
Sponsors' Guaranty, the obligations of the Sponsors under the Sponsors' Guaranty
shall expire on the Loan Agreement Termination Date.
83
SECTION 15.8 EMU. European Economic and Monetary Union anticipate the
introduction of a single currency and the substitution of the national
currencies of Member States participating in Monetary Union. On the date on
which the Deutsche ▇▇▇▇ is replaced by the single currency, conversion into such
currency shall take effect. The denomination of the original currency shall be
retained for so long as this is legally permissible. Conversions shall be based
on the officially fixed rate of conversion. Neither the introduction of the
single currency nor the substitution of the national currencies of the Member
States participating in European Monetary Union nor the fixing of the official
rate of conversion nor any economic consequences that arise from any of the
aforementioned events or in connection with European Monetary Union shall give
rise to any right to terminate prematurely, contest, cancel, rescind, modify, or
renegotiate this Agreement or any of its provisions or to raise any other
objections and/or exceptions or to assert any claims for compensation. This
Agreement shall continue in full force and effect in accordance with its terms.
ARTICLE XVI
Governing Law, Jurisdiction, and Language
SECTION 16.1 Governing Law. The form and execution of this Agreement and all
rights and obligations of the parties arising hereunder shall be governed by the
Laws of the Federal Republic of Germany.
SECTION 16.2 Jurisdiction. Each of AMD Inc., AMD Admin, AMD Saxony LLC and AMD
Holding hereby submits to the exclusive jurisdiction of the courts in Frankfurt
am Main for any dispute arising out of or in connection with this Agreement. AMD
Inc. and AMD Saxony LLC state that Advanced Micro Devices GmbH, whose address is
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Attention: Legal Department,
Tel: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇, Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇, Telex: 841523883, is their respective
accredited agent for service of process and hereby undertake to maintain an
agent for service in Germany. The foregoing submission to jurisdiction shall not
(and shall not be construed so as to) limit the rights of the Agent or the
Security Agent to take suits, actions, or proceedings against a Sponsor or AMD
Admin or AMD Saxony LLC to enforce any judgment rendered by the courts in
Frankfurt am Main in any other court or entity of competent jurisdiction where
such Sponsor or AMD Admin or AMD Saxony LLC, as the case may be, has assets, nor
shall the taking of suits, actions, or proceedings to enforce any such judgment
in one or more jurisdictions preclude the taking of enforcement proceedings in
any other jurisdiction, whether concurrently or not.
SECTION 16.3 Use of English Language. This Agreement has been executed in the
English language. All certificates, reports, notices, and other documents and
communications given or delivered pursuant to this Agreement shall be in the
English language and, if reasonably requested by the Agent, shall be accompanied
by a certified German translation thereof. In the event of any inconsistency,
the English language version of any such document shall control.
84
IN WITNESS WHEREOF, each of the parties set out below has caused this Agreement
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_______________________________
Its______________________________
AMD SAXONY HOLDING GMBH
By_______________________________
Its______________________________
AMD SAXONY ADMIN GMBH
By_______________________________
Its______________________________
AMD SAXONY LLC
By_______________________________
Its______________________________
DRESDNER BANK LUXEMBOURG S.A.,
as Agent
By_______________________________
Its______________________________
85
DRESDNER BANK AG,
as Security Agent
By___________________________
Its__________________________
86