Exhibit 10.43 (a-4)
*** 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
Commission pursuant to Rule 24b-2 under the Securities 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.
***
AMENDMENT AGREEMENT NO. 4
dated
June 3, 2002
by and among
AMD SAXONY MANUFACTURING GMBH
and
DRESDNER BANK AG
and
the other
BANKS and FINANCIAL INSTITUTIONS
named herein
and
DRESDNER BANK LUXEMBOURG S.A.
-----------------------
TO THE
SYNDICATED LOAN AGREEMENT
dated
11 March 1997 (As Amended)
AND OTHER OPERATIVE DOCUMENTS
-----------------------
INDEX
Page
Preamble ........................................................ 1
ss. 1 Definitions ..................................................... 2
ss. 2 Conversion to a Limited Partnership ............................. 4
ss. 3 Amendment of the Loan Agreement ................................. 4
ss. 4 Condition Precedent ............................................. 5
ss. 5 Covenants ....................................................... 7
ss. 6 Representations and Warranties .................................. 8
ss. 7 Miscellaneous ................................................... 10
Schedules
Schedule 1 The Amended and Restated Syndicated Loan Agreement
Schedule 2 Amendment Agreement to Sponsors' Support Agreement
Schedule 3 Amendment Agreement to the AMD Saxonia Wafer Purchase Agreement
Schedule 4 Consent/Acknowledgement under the AMD Holding Wafer Purchase
Agreement
Schedule 5 Amendment Agreement to Sponsors' Subordination Agreement
Schedule 6 Amendment Agreement to AMD Inc. Subordination Agreement
Schedule 7 Amendment Agreement to Revolving Loan Facility Agreement
Schedule 8 Amendment Agreement to Sponsors' Loan Agreement
Schedule 9 Amendment Agreement to AMD Saxonia Assignment (U.S.A)
Schedule 10 Clarification and Security Agreement
Schedule 11 AMD Inc. Pledge Agreement over Membership Interests in AMD
Saxony LLC
Schedule 12 AMD Saxony LLC Security Agreement
Schedule 13 AMD Saxony LLC Pledge Agreement over KG Partnership Interest in
AMD Saxonia
Schedule 14 AMD Holding Pledge Agreement over GmbH-share in AMD Admin
Schedule 15 AMD Admin Global Assignment Agreement
Schedule 16 AMD Admin Pledge Agreement over KG Partnership Interest in AMD
Saxonia
Schedule 17 AMD Admin Pledge of Bank Accounts
Schedule 18 AMD Holding Pledge Agreement over KG Partnership Interest in
AMD Saxonia
Schedule 19 Legal Opinion of O'Melveny & ▇▇▇▇▇ LLP (U.S.A.)
Schedule 20 Legal Opinion of ▇▇▇▇, Stiefenhofer & ▇▇▇▇
Schedule 21 Legal Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Schedule 22 Legal Opinion of White & Case, ▇▇▇▇▇▇▇▇▇
Schedule 23 Fairness Opinion from Ernst & Young relating to Management Plan
AMENDMENT AGREEMENT TO THE SYNDICATED LOAN AGREEMENT
DATED 11 MARCH 1997 (AS AMENDED)
by and between
1. AMD SAXONY MANUFACTURING GMBH, Dresden, registered in the Commercial
Register of the Dresden Local Court under HRB 13186 (presumably to be known
as "AMD Saxony LLC & Co. KG" following the Registration), - hereinafter
referred to as "AMD Saxonia" -
2. DRESDNER BANK AG,
- hereinafter referred to as "Security Agent" -
3. the other Banks and Financial Institutions named on the signature pages
herein
- the parties referred to at 3 and 4 hereinafter each referred to as
a "Bank" or together as the "Banks", as the case may be -
and
4. DRESDNER BANK LUXEMBOURG S.A.
- hereinafter referred to as "Agent" or
"Paying Agent", as the case may be -
PREAMBLE
1. AMD Saxonia, Dresdner Bank AG (in its capacity as Security Agent), the
Banks and Dresdner Bank Luxembourg S.A. (in its capacity as Agent and
Paying Agent) are party to the Loan Agreement (as defined below) with
respect to loan facilities totalling DM 1,500,000,000 for the purpose of
co-financing the Project Costs defined therein.
2. 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 Saxony Holding
GmbH ("AMD Holding") and AMD Saxony Admin GmbH ("AMD Admin") as
its sole limited partners (Kommanditisten) and AMD Saxony LLC ("AMD Saxony
LLC") as its sole general partner (Komplementar);
3. The parties hereto have agreed to make certain changes to the Syndicated
Loan Agreement dated 11 March 1997, as amended on 6 February 1998, 29 June
1999 and 20 February 2001 (hereinafter the "Loan Agreement"), and to the
Operative Documents referred to therein, to reflect the Conversion and to
make certain other amendments, all in accordance with the terms of this
Agreement.
ss. 1
Definitions
1.1 The terms defined in the Loan Agreement will have the same meanings when
used in this Agreement, except where the context otherwise requires. In
addition, the following terms shall have the meaning set forth below:
"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.
"Agreement" means this amendment agreement.
"Amendment Agreements" means those agreements and documents described in ▇▇.▇▇.
4.1.1 through 4.1.9 below.
"Conversion" means the change in the legal form of AMD Saxonia from a
Gesellschaft mit beschrankter Haftung (a limited liability company) 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
2
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.
"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 at the Local Court in Dresden.
1.2 Unless the context requires otherwise, any reference to an Operative
Document or a Project Agreement shall be a reference to such Document or
Agreement as it shall have been, or from time to time be, amended,
supplemented or replaced in accordance with the terms of the Loan Agreement
and the respective Operative Document or Project Agreement.
3
ss. 2
Conversion to a Limited Partnership
2.1 Subject to ss. 4 and ss. 5.2, the Agent, the Security Agent and the Banks
consent to and approve the Conversion in accordance with the terms and
conditions of the Conversion Documents.
ss. 3
Amendment of the Loan Agreement
3.1 With effect from the Conversion Effective Date, and subject to ss.4 and ss.
5.2:
3.1.1 the Loan Agreement is hereby amended in accordance with the
changes marked as set out in Schedule 1 of this Agreement; and
3.1.2 Schedules 1, 14, 22 and 62 of the Loan Agreement are hereby
deleted and replaced with Schedules 1, 14, 22 and 62 as set out
in Schedule 1 of this Agreement and the documents noted under the
heading "Schedule 24" (as included in Schedule 1 of this
Agreement) are to be added to the end of Schedule 24 of the Loan
Agreement.
3.2 Save to the extent amended by ss. 3.1 above, the provisions of the Loan
Agreement, together with the Schedules thereto, remain in full force and
effect.
ss. 4
Condition Precedent
4.1 ▇▇.▇▇. 2 and 3 of this Agreement are subject to the condition precedent of
the Agent having confirmed to the Banks in writing that it has received the
documents set out in ss. 4.1.1 through ss. 4.1.27. The documents set out in
ss. 4.1.18 through ss. 4.1.20, and ss. 4.1.27 must be satisfactory to the
Agent in terms of content and form. The agreements specified in ss. 4.1.1
through ss. 4.1.17, and in ss. 4.1.26 must have been entered into and/or
executed in a legally binding manner and
4
their validity may not be subject to any conditions (except conditions as
to the occurrence of the Registration):
4.1.1 Amendment Agreement to Sponsors' Support Agreement pursuant to
Schedule 2;
4.1.2 Amendment Agreement to the AMD Saxonia Wafer Purchase Agreement
pursuant to Schedule 3;
4.1.3 Consent/Acknowledgement under the AMD Holding Wafer Purchase
Agreement pursuant to Schedule 4;
4.1.4 Amendment Agreement to Sponsors' Subordination Agreement pursuant
to Schedule 5;
4.1.5 Amendment Agreement to AMD Inc. Subordination Agreement pursuant
to Schedule 6;
4.1.6 Amendment Agreement to Revolving Loan Facility Agreement pursuant
to Schedule 7;
4.1.7 Amendment Agreement to Sponsors' Loan Agreement pursuant to
Schedule 8;
4.1.8 Amendment Agreement to AMD Saxonia Assignment (U.S.A.) pursuant
to Schedule 9;
4.1.9 Clarification and Security Agreement pursuant to Schedule 10;
4.1.10 AMD Inc. Pledge Agreement over Membership Interests in AMD Saxony
LLC pursuant to Schedule 11;
4.1.11 AMD Saxony LLC Security Agreement pursuant to Schedule 12;
4.1.12 AMD Saxony LLC Pledge Agreement over KG Partnership Interest in
AMD Saxonia pursuant to Schedule 13;
5
4.1.13 AMD Holding Pledge Agreement over GmbH-share in AMD Admin
pursuant to Schedule 14;
4.1.14 AMD Admin Global Assignment Agreement pursuant to Schedule 15;
4.1.15 AMD Admin Pledge Agreement over KG Partnership Interest in AMD
Saxonia pursuant to Schedule 16;
4.1.16 AMD Admin Pledge of Bank Accounts pursuant to Schedule 17;
4.1.17 AMD Holding Pledge Agreement over KG Partnership Interest in AMD
Saxonia pursuant to Schedule 18;
4.1.18 Written Acknowledgement of Sachsische Aufbaubank GmbH regarding
the amendment of the Loan Agreement and the other Operative
Documents contemplated herein;
4.1.19 Written Approval of the Guarantors regarding the amendment of the
Loan Agreement and the other Operative Documents contemplated
herein;
4.1.20 Written Acceptance of the Guaranty Decision executed by AMD Inc.
and AMD Saxonia;
4.1.21 Legal Opinion of the Law Office O'Melveny & ▇▇▇▇▇ LLP, Counsel to
AMD Inc, under U.S. law pursuant to Schedule 19;
4.1.22 Legal Opinion of the Law Office ▇▇▇▇, Stiefenhofer & ▇▇▇▇,
Counsel to the AMD Companies pursuant to Schedule 20;
4.1.23 Legal Opinion of the Law Office ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Counsel to the
Agent and to the Banks pursuant to Schedule 21;
4.1.24 Legal Opinion of the Law Office White & Case, ▇▇▇▇▇▇▇▇▇, Counsel
to the Agent and to the Banks pursuant to Schedule 22;
6
4.1.25 Fairness Opinion from Ernst & Young relating to Management Plan
pursuant to Schedule 23;
4.1.26 Certified copies of the Conversion Documents duly executed and in
notarial form (as appropriate) and/or certified by the Secretary
of State of the State of Delaware (as appropriate);
4.1.27 Evidence that the increase of the Total Revolving Loan Commitment
Amount has been consented to by the banks under the Loan and
Security Agreement of 13 July 1999, as amended.
ss. 5
Covenants
5.1 AMD Saxonia undertakes with the Agent and the Banks to cause certificates
in the form attached as Annexes I and II to Schedule 22 to the Loan
Agreement to be delivered to the Agent by AMD Inc.'s Insurance Broker
within 60 days following the Conversion Effective Date, at the Agent's
request.
5.2 AMD Saxonia hereby undertakes with the Agent and the Banks that:
5.2.1 it will promptly notify the Agent of the execution of the
Conversion Documents; and
5.2.2 it will not make any application for Registration prior to the
Agent having given to the Banks the written confirmation referred
to in ss. 4.1.
5.3 Any breach by AMD Saxonia of its obligations under ss. 5.2 shall constitute
an event which entitles the Banks to terminate the Loan Agreement pursuant
to Section 21 thereof.
5.4 AMD Saxonia undertakes to furnish the Agent promptly (and in any event
within twenty days of the Registration) with a certified Commercial
Registry extract for AMD Saxonia following the Registration.
7
5.5 The Agent undertakes that it shall provide to the Banks the written
confirmation referred to in ss. 4.1 promptly following its receipt of the
documents referred to in ss. 4.1.1 through ss. 4.1.27 in accordance with
ss. 4.1 and to inform AMD Saxonia accordingly.
ss. 6
Representations and Warranties
6.1 AMD Saxonia represents and warrants to the Banks, as of the date hereof and
as of the Conversion Effective Date, as follows:
6.1.1 AMD Saxonia has taken all necessary steps and obtained all
necessary consents to enter into this Agreement, and, when
entered into, will have taken all necessary steps and have
obtained all necessary consents to enter into the Conversion
Documents to which it is party, the Amendment Agreements to which
it is a party and each other document referred to in ss. 4.1 to
which it is a party in a legally binding manner and to exercise
its rights thereunder.
6.1.2 The execution by AMD Saxonia of this Agreement and the execution
by each of AMD Inc., AMD Saxonia, AMD Holding, AMD Saxony LLC and
AMD Admin of the Conversion Documents, the Amendment Agreements
and each other document referred to in ss. 4.1 to which it is
party, and the compliance by each of them of their obligations
thereunder and the exercise by each of them of their rights
thereunder:
(i) does not and, in the case of the Conversion Documents, the
Amendment Agreements and each of the documents referred to
in ss. 4.1 when entered into by it, will not violate any
provision of applicable law, any judgment or any
requirements or any approvals of any authority or the like
or contractual obligations or any other obligations
applicable to each of AMD Inc., AMD Saxonia, AMD Holding,
AMD Saxony LLC and AMD Admin;
(ii) does not and, in the case of the Conversion Documents, the
Amendment Agreements and each of the documents referred to
8
in ss. 4.1 when entered into by it, will not result in the
termination or acceleration of any other obligations of
each of AMD Inc., AMD Saxonia, AMD Holding, AMD Saxony LLC
and AMD Admin;
(iii) subject to securities to be furnished, if necessary, in
accordance with Secs. 204, 22 UmwG (German Act on
Transformation of Companies), does not and, in the case of
the Conversion Documents, the Amendment Agreements and each
of the documents referred to in ss. 4.1 when entered into
by it, will not result in an obligation of any of AMD Inc.,
AMD Saxonia, AMD Holding, AMD Saxony LLC and AMD Admin to
create any security in favor of any third party, save as
contemplated in the Security Documents or in the Loan
Agreement (as amended by this Agreement).
6.1.3 This Agreement, the Conversion Documents, the Amendment
Agreements and each other document referred to in ss. 4.1 to
which AMD Inc., AMD Saxonia, AMD Holding, AMD Saxony LLC and AMD
Admin is a party constitutes, or when entered into by it, will
constitute, its legally binding obligations which are enforceable
in accordance with their terms, subject to the reservations made
in the Legal Opinions. Those reservations comprise limitations on
the enforceability of legal documents which are governed by
German law or by U.S. federal or state law if and to the extent
that express reservations have been made in this respect in the
Legal Opinions to be delivered to and to be approved by the Agent
pursuant to ss. 4.1.21 through ss. 4.1.24.
9
ss. 7
Miscellaneous
7.1 This Agreement is part of the Loan Agreement. All references in the Loan
Agreement and in the Operative Documents and all statements and
declarations relating thereto shall apply in the same manner to this
Agreement.
7.2 Without prejudice to the foregoing, AMD Saxonia hereby ratifies and
confirms that its obligations under the Loan Agreement, as amended, shall
continue in full force and effect following the Conversion.
7.3 This Agreement and all documents referred to herein shall be deemed
Operative Documents within the meaning of the Loan Agreement.
7.4 This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts which when taken together shall
constitute one agreement.
7.5 Paragraphs 25.1, 27, 28 and 29 of the Loan Agreement shall apply mutatis
mutandis to this Agreement.
7.6 The references in the Operative Documents to the General Terms and
Conditions of the Security Agent shall relate to the version applicable
from time to time.
10
AMD SAXONY MANUFACTURING GMBH
/s/ ▇▇. ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------
▇▇. ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
Its Managing Director (Geschaftsfuhrer)
DRESDNER BANK AG,
(as Security Agent and Lending Bank)
/s/ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Its Signatory under power of attorney
Other Lending Banks:
KREDITANSTALT FUR WIEDERAUFBAU
/s/ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Its Signatory under power of attorney
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK
/s/ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Its Signatory under power of attorney
LANDESBANK BADEN-WURTTEMBERG
/s/ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Its Signatory under power of attorney
LANDESBANK SACHSEN GIROZENTRALE
/s/ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Its Signatory under power of attorney
11
BAYERISCHE LANDESBANK GIROZENTRALE
/s/ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Its Signatory under power of attorney
HVB BANQUE LUXEMBOURG SOCIETE ANONYME
/s/ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Its Signatory under power of attorney
BAYERISCHE HYPO- UND VEREINSBANK AG; MUNCHEN
/s/ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Its Signatory under power of attorney
BHF-BANK AKTIENGESELLSCHAFT
/s/ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Its Signatory under power of attorney
COMMERZBANK AKTIENGESELLSCHAFT, Filiale Dresden
/s/ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Its Signatory under power of attorney
DEUTSCHE POSTBANK ▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Its Signatory under power of attorney
HAMBURGISCHE LANDESBANK - GIROZENTRALE -
/s/ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Its Signatory under power of attorney
IKB DEUTSCHE INDUSTRIEBANK AG
/s/ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Its Signatory under power of attorney
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇
------------------------------------------
Its Signatory under power of attorney
ABN AMRO BANK (DEUTSCHLAND) AG, Frankfurt
/s/ ▇▇▇▇▇▇▇▇▇
------------------------------------------
Its Signatory under power of attorney
CREDITANSTALT AG, Wien
/s/ ▇▇▇▇▇▇▇▇▇
------------------------------------------
Its Signatory under power of attorney
THE SUMITOMO MITSUI BANKING CORPORATION, Niederlassung Dusseldorf
/s/ ▇▇▇▇▇▇▇▇▇
------------------------------------------
Its Signatory under power of attorney
DRESDNER BANK LUXEMBOURG S.A.
(as Agent and Paying Agent)
/s/ ▇▇▇▇▇▇▇▇▇
------------------------------------------
Its Signatory under power of attorney
13
English translation of the legally
binding German Loan Agreement as amended. Amended and Restated
Translation prepared for convenience only. --------------------
SYNDICATED LOAN AGREEMENT
Dated 11 March 1997,
as amended by Supplemental Agreements dated 6 February 1998, 29 June 1999,
20 February 2001 and 3 June 2002
among
AMD SAXONY MANUFACTURING GMBH
(proposed to be renamed "AMD Saxony LLC & Co KG")
-as Borrower-
and
DRESDNER BANK AG
- as Security Agent -
and
THE OTHER BANKS AND FINANCIAL INSTITUTIONS
named herein
-as Lenders-
and
DRESDNER BANK LUXEMBOURG S.A.
- as Agent and Paying Agent -
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇/Doser Amereller ▇▇▇▇▇
Frankfurt
INDEX
-----
Paragraph Page
--------- ----
ss.1 Definitions and Interpretation ................................. 2
ss.2 Facilities ..................................................... 11
ss.3 Purpose ........................................................ 12
ss.4 Utilization of the Facilities .................................. 12
ss.5 Conditions to Drawing .......................................... 14
ss.6 Interest, Commitment Fee, Payments ............................. 20
ss.7 Term and Repayment ............................................. 24
ss.8 Security ....................................................... 25
ss.9 Illegality ..................................................... 29
ss.10 Market Disruption; Alternative Method of Calculation ........... 29
ss.11 Increased Costs ................................................ 30
ss.12 Indemnity ...................................................... 31
ss.13 No Deductions or Withholdings .................................. 32
ss.14 Continuity Clause .............................................. 33
ss.15 Representations and Warranties ................................. 33
ss.16 Reporting and Information Requirements ......................... 37
ss.17 Covenants ...................................................... 39
ss.18 Project Budget; Project Schedule ............................... 46
ss.19 Project Accounts ............................................... 46
ss.20 Consent of the Banks ........................................... 47
ss.21 Termination of the Facilities by the Banks ..................... 48
ss.22 Agency Provisions .............................................. 53
ss.23 Administration of Security ..................................... 56
ss.24 Paying Agent ................................................... 58
ss.25 Costs .......................................................... 59
ss.26 Assignment; Sub-participations ................................. 60
ss.27 Miscellaneous .................................................. 61
ss.28 Governing Law .................................................. 65
ss.29 Jurisdiction ................................................... 65
i
Schedules
Schedule 1 Commitments of the Banks
Schedule 2 Drawdown Schedule
Schedule 3 Drawdown Notice
Schedule 4 Interest Rate Notice
Schedule 5 Notice of Prepayment
Schedule 6 Project Budget
Schedule 7 Project Schedule / Project Phases
Schedule 8 Quarterly Status Report
Schedule 9 [Scheduled Project Phase] Technical Completion Certificate (Obligors)
Schedule 10 [Scheduled Project Phase] Technical Completion Certificate (Technical Advisor)
Schedule 11 [left intentionally blank]
Schedule 12 [left intentionally blank]
Schedule 13 [left intentionally blank]
Schedule 14 Management Plan
Schedule 15 Disclosure Schedule
Schedule 16 Statement of Use and Source of Funds
Schedule 17 Financial Covenants
Schedule 18 Certificate of Compliance (Financial Covenants)
Schedule 19 Statement to Report of the Technical Advisor
Schedule 20 Governmental Approvals, Permits and Measures
Schedule 21 Confirmation of Auditor
Schedule 22 Insurance Provisions
Schedule 23 Cash Equivalent Investments
Schedule 24 Guaranty Decision
Schedule 25 AMD/Dresdner Subsidy Agreement
Schedule 26 SAB/Dresdner Subsidy Agreement
Schedule 27 AMD Inc. Guaranty
Schedule 28 Sponsors' Support Agreement
Schedule 29 Sponsors' Loan Agreement
Schedule 30 Sponsors' Subordination Agreement
Schedule 31 Sponsors' Consent and Agreement
Schedule 32 Sponsors' Guaranty
Schedule 33 AMD Holding Wafer Purchase Agreement
Schedule 34 AMD Holding Research, Design and Development Agreement
Schedule 35 AMD Saxonia Wafer Purchase Agreement
Schedule 36 AMD Saxonia Research, Design and Development Agreement
Schedule 37 Management Service Agreement
Schedule 38 License Agreement
Schedule 39 Design/Build Agreement; Contractors' Consent and Agreement
Schedule 40 Material Equipment Supply/Service Contracts; Consent and Agreement
Schedule 41 AMD Inc. Share Pledge Agreement
Schedule 42 AMD Inc. Subordination Agreement
ii
Schedules (Continued)
Schedule 43 AMD Saxonia Land Charge
Schedule 44 AMD Saxonia Security Assignment of Current Assets
Schedule 45 AMD Saxonia Security Assignment of Fixed Assets
Schedule 46 AMD Saxonia Assignment of Insurances
Schedule 47 AMD Saxonia Global Assignment
Schedule 48 AMD Saxonia Charge of Project Accounts
Schedule 49 AMD Saxonia Assignment of Contractual Rights
Schedule 50 AMD Saxonia Assignment (U.S.A.)
Schedule 50a AMD Saxonia Hedging Agreement
Schedule 51 AMD Holding Share Pledge Agreement
Schedule 52 AMD Holding Security Assignment of Current Assets
Schedule 53 AMD Holding Global Assignment
Schedule 54 AMD Holding Charge of Bank Accounts
Schedule 55 AMD Holding Assignment of Contractual Rights
Schedule 56 AMD Holding Assignment (U.S.A.)
Schedule 57 Legal Opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (Indenture, Credit Agreement)
Schedule 58 Legal Opinion of O'Melveny & ▇▇▇▇▇ LLP
Schedule 59 Legal Opinion of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
Schedule 60 Legal Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Schedule 61 Legal Opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇ Ewerwahn
Schedule 62 General Terms and Conditions
Scheduel 63 Maximum 65/35 Guaranty Amount
iii
SYNDICATED LOAN AGREEMENT
-------------------------
between
1. AMD SAXONY MANUFACTURING GMBH (proposed to be renamed "AMD Saxony LLC & Co
KG"), Dresden, registered in the Commercial Register of the Dresden County
Court,
- hereinafter referred to as "AMD Saxonia" -
- as Borrower -
2. DRESDNER BANK AG,
- hereinafter also referred to as "Security Agent", as the case may be -
3. The Banks and financial institutions listed in Schedule 1
- the parties referred to at 2 and 3 hereinafter each referred to as a
"Bank" or together as the "Banks", as the case may be -
- as Lenders -.
and
4. DRESDNER BANK LUXEMBOURG S.A.
- hereinafter referred to as the "Agent" or the "Paying Agent", as the
case may be -
PREAMBLE
--------
1. AMD Saxonia owns and operates a fabrication facility in Dresden for
the manufacture of microchip silicon wafers (the "Fabrication
Facility") together with an integrated research and development center
(the "Design Center") (which together are referred to as the
"Project"). Prior to its conversion to a limited partnership, AMD
Saxonia was a wholly owned subsidiary of AMD Saxony Holding GmbH
domiciled in Dresden, registered in the Commercial Register of the
Dresden County Court under HRB 13931 ("AMD Holding") whose sole
shareholder is Advanced Micro Devices, Inc., a Delaware corporation of
▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - 3453 ("AMD Inc.").
2. The investment cost required for implementation of the Project has
been partially financed in an amount of up to DM 1,500,000,000 through
the credit facilities made available to AMD Saxonia on and subject to
the terms and conditions of this syndicated loan agreement (the
"Agreement").
3. AMD Inc. made available to AMD Saxonia, via AMD Holding, equity in the
form of ordinary share capital in an aggregate amount of DM
217,550,000, together with subordinated loans pursuant to the terms of
the Sponsors' Support Agreement and the
Sponsors' Loan Agreement, totalling in aggregate DM 645,000,000 as at
31 December 1999. Furthermore, AMD Inc. has undertaken to make
available to AMD Saxonia subordinated revolving loans in an aggregate
amount of US$750,000,000 pursuant to the Revolving Loan Facility
Agreement (as defined below) to finance the general corporate funding
requirements of AMD Saxonia.
4. The Free State of Saxony has agreed to provide regional aid for the
Project comprising (i) a dedicated purpose investment grant in an
aggregate amount of DM 476,687,000 (which together with investment
subsidies in an aggregate amount of DM 23,813,000 totals an aggregate
amount of DM 500,500,000), and (ii) a dedicated purpose interest
subsidy in an amount of DM 300,000,000 which in each case will be paid
to AMD Saxonia by Dresdner Bank AG in Dresden, in its capacity as
house bank.
5. Pursuant to the Conversion Documents, AMD Saxonia has changed its
legal form to a Limited Partnership.
6. The Banks have agreed to make available to AMD Saxonia the facilities
referred to above on and subject to the following terms and
conditions.
IT IS AGREED AS FOLLOWS:
ss. 1
Definitions and Interpretation
1.1 Definitions of terms not defined above are as follows:
Agreed Terms:
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.
AMD/Dresdner Subsidy Agreement (AMD/Dresdner Zuschussvertrag):
the agreement between AMD Saxonia and Dresdner Bank AG in its capacity as
house bank to AMD Saxonia, in the form set out in Schedule 25.
-----------
AMD Admin:
AMD Saxony Admin GmbH, a limited liability company, with its seat in
Dresden, a wholly-owned subsidiary of AMD Holding.
AMD Companies (AMD-Gesellschaften):
together AMD Saxonia, AMD Holding, AMD Saxony LLC, AMD Admin and AMD Inc.
AMD Holding Wafer Purchase Agreement:
the agreement between AMD Holding and AMD Inc., in the form set out in
Schedule 33.
-----------
AMD K6 microprocessor:
the Microsoft Windows compatible general purpose microprocessor under
development by AMD Inc. to compete with Intel Corporation's Pentium Pro
microprocessor.
2
AMD Saxonia Partnership Agreement (AMD Saxonia Gesellschaftsvertrag):
the partnership agreement of AMD Saxonia between AMD Holding, AMD Admin and
AMD Saxony LLC dated 3 June 2002.
AMD Saxonia Wafer Purchase Agreement:
the agreement between AMD Saxonia and AMD Holding, in the form set out in
Schedule 35.
AMD Saxony LLC:
a limited liability company organised under the laws of the State of
Delaware, United States of America, a wholly-owned subsidiary of AMD Inc.
Amendment Agreements (Nachtragsvereinbarungen):
the following agreements and documents, each dated 3 June 2002:
(i) the Amendment Agreement No. 4 to this Syndicated Loan Agreement
between AMD Saxonia, the Security Agent, the Banks and the Agent;
(ii) the Accession Agreement and Fourth Amendment to the 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 the 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 the AMD Inc.
Subordination Agreement between the Sponsors, AMD Saxony LLC, AMD
Admin, the Agent and the Security Agent;
(vii) the First Amendment to the Revolving Loan Facility Agreement between
the Sponsors and AMD Saxonia;
(viii) the Third Amendment to the Sponsors' Loan Agreement between the
Sponsors and AMD Saxonia;
(ix) the First Amendment to the 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 Agent and the Security Agent.
3
Assignment and Trust Agreement:
the agreement referred to in (ix) of the definition of Conversion
Documents.
Available Revolving Loan Facility Amount:
means, on any date, any amount (which must be positive) of:
(i) the Total Revolving Loan Commitment Amount on such date;
less
(ii) the aggregate unpaid principal amount of all Revolving Loans
outstanding on such date.
Auditor (Wirtschaftsprufer):
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 withheld.
Banks' Auditor (Wirtschaftsprufer der Banken):
BDO Deutsche Warentreuhand AG Wirtschaftsprufungsgesellschaft 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 withheld.
Banking Day (Bankarbeitstag):
each day on which banks are generally open for business in London,
Frankfurt am Main, Dresden and Luxembourg.
Capital Expenditure (Investitionskosten):
acquisition and manufacturing costs in respect of fixed and movable assets
in accordance with ss. 266 2 A II of the Commercial Code and 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).
Completion (Fertigstellung):
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 is
confirmed to the Agent by the submission of properly executed originals of
such Certificates.
Conversion (Umwandlung):
the change in legal form of AMD Saxonia from a Gesellschaft mit
beschrankter Haftung (a limited liability company) to a Limited Partnership
in accordance with the Conversion Documents and the Registration.
Conversion Documents (Umwandlungsdokumente):
means the following agreements and documents, each in the Agreed Terms:
4
(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 relating
to the releases of the managing director from the restrictions of
Section 181 German Civil Code;
(vi) the List of Shareholders for AMD Admin;
(vii) the AMD Saxony LLC Agreement;
(viii) the AMD Saxonia Partnership Agreement;
(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 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 Limited Partnership;
5
(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 (Umwandlungsstichtag):
the date on which the Registration takes effect.
Disclosure Schedule:
the list of matters disclosed by AMD Saxonia set out in Schedule 15.
Drawdown Notice (Auszahlungsverlangen):
a Drawdown Notice in the form of the specimen set out in Schedule 3.
Drawdown Schedule (Auszahlungsplan):
the drawdown schedule set out in Schedule 2, as the same may be revised in
accordance with the Project Budget.
Equipment Supply Contract (Liefervertrag):
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.
Event of Default (Kundigungsgrund):
any event which would entitle a party to an Operative Document, possibly
after the giving or expiry of notice and/or lapse of time, to terminate the
relevant Operative Document.
Euro:
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.
Excepted Software Agreements (Ausgenommene Softwarevertrage):
means software licenses and software service agreements entered into by AMD
Saxonia which are used exclusively:
6
(i) for financial planning, business administration systems and similar
ancillary administrative functions and which are not linked to, or
connected with (a) the production process in the Fabrication
Facility; (b) general bookkeeping and invoicing and (c) production
planning; or
(ii) in the Design Center.
Facilities (Kredite):
as defined in ss. 2.1.
Guarantors (▇▇▇▇▇▇):
the Federal Republic of Germany and the Free State of Saxony in their
respective capacities as guarantors pursuant to the 65/35 Guaranty.
Guaranty Decision (Burgschaftsentscheidung):
the decision dated 2 July 1996 set out in Schedule 24 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
Accession Territory (States) in the edition dated F 04.01.1993
Federal/State;
(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) the Memorandum of Understanding ("Gemeinsame Feststellungen") of 19
February 1997, the Amendment Decision of 12 December 1997 and the
letter from C&L Deutsche Revision AG dated 5 January 1998;
(v) the letters from C&L Deutsche Revision AG to Dresdner Kleinwort
▇▇▇▇▇▇ and Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇, respectively, dated 17
November 2000 and 7 February 2001; and
(vi) the letter from C&L Deutsche Revision AG to Dresdner Kleinwort
▇▇▇▇▇▇▇▇▇▇▇/Dresdner Bank AG dated 22 May 2002.
65/35 Guaranty (65/35 Burgschaft):
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
65% of the Facilities (in aggregate DM 975,000,000), together with the
shortfall of interest and costs, vested with a first right of satisfaction
in favor of the Banks over all security granted by the AMD Companies as
security for the Banks' risk of recovery (but subject to a set off of 65%
of payments made (if any) under the Sponsors' Guaranty in the form of
Schedule 32, as
7
amended, to this Agreement against the Guarantors' obligations under the
aforesaid shortfall guaranties).
Insurance Advisor (Versicherungsberater):
▇▇▇▇▇▇ Ltd., London or such other insurance advisor as may from time to
time be appointed by the Agent with the consent of AMD Saxonia, which
consent shall not be unreasonably withheld.
Interest Period (Zinsperiode):
the interest periods to be designated for individual advances, in each case
in accordance with ▇▇.▇▇. 6.1 to 6.4.
Lending Office (kreditausreichende Geschaftsstelle):
the lending office of each Bank referred to in Schedule 1 to this
Agreement.
LIBOR-Rate (LIBOR-Satz):
the LIBOR-rate so defined in ss. 6.1.1.
Limited Partnership (Kommanditgesellschaft):
a limited partnership (Kommanditgesellschaft) under the laws of the Federal
Republic of Germany.
Management Plan:
the management plan in the form set out in Schedule 14.
Material Service Contract (wesentlicher Leistungsvertrag):
each Service Contract
(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.
Material Equipment Supply Contract (wesentlicher Liefervertrag):
is 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.
8
Minimum Liquidity Covenant (Mindestliquiditatskennzahl):
as defined in Schedule 17, ss. 4.
Operative Documents (Transaktionsdokumente):
each of the following:
(i) the Project Agreements;
(ii) this Agreement, the Sponsors' Support Agreement, the Sponsors' Loan
Agreement in the form set out in Schedule 29, the Security Documents,
the Sponsors' Consent and Agreement in the form set out in Schedule
31, the AMD Saxonia Hedging Agreement in the form set out in Schedule
50a, the AMD/Dresdner Subsidy Agreement, the SAB/Dresdner Subsidy
Agreement, the Sale and Settlement Agreement between AMD Saxonia and
the City of Dresden dated 11 June 1996, together with amendments
dated 25 October 1996 and 28 February 1997, and the Revolving Loan
Facility Agreement;
(iii) the Loan and Security Agreement dated as of July 13, 1999, as
amended, between, inter alia, AMD Inc. and the Bank of America
National Trust and Savings Association, the Management Plan, the
Project Budget, the Project Schedule, the Plans and Specifications,
the Information Memorandum of AMD Saxonia of September 1996, the
[Scheduled Project Phase] Technical Completion Certificates
(Obligors), the [Scheduled Project Phase] Technical Completion
Certificates (Technical Advisor), in the form set out in Schedules 9
and 10, the Statement of the Use and Source of Funds, in the form set
out in the Schedule 16, and each Consent and Agreement required
pursuant to the agreements referred to in this definition in the form
set out in Part II of Schedule 40, Annex 3 to Schedule 49, Annex 3 to
Schedule 55 or in such other form to which the Agent has consented;
(iv) each of the Conversion Documents and each of the Amendment
Agreements; and
(v) all other Operative Documents within the meaning of the Sponsors'
Support Agreement and each other instrument or document designated by
the Agent (with the consent of AMD Saxonia) as an Operative Document
under this Agreement or the Sponsors' Support Agreement.
Plans and Specifications (Plane und Spezifikationen):
the plans and specifications to be prepared by AMD Saxonia and to be
approved by the Technical Advisor, the Agent and each Sponsor for the
fitting out of the Plant and the Design Center, as the same may be amended
from time to time with the consent of each of the AMD Companies and the
Agent. Amendments which do not reduce or affect the value of the Plant and
the Design Center or the capacity and purpose of the Plant as set out in
the Plans and Specifications originally approved, shall not require the
consent of the Agent.
Power of Attorney (Vollmacht):
the document referred to in (xxiii) of the definition of Conversion
Documents.
9
Project Accounts (Projektkonten):
as defined in ss. 19.1.
Project Agreements (Projektvertrage):
the AMD Saxonia Wafer Purchase Agreement, the AMD Holding Wafer Purchase
Agreement, the AMD Saxonia Research, Design and Development Agreement, in
the form set out in Schedule 36, the AMD Holding Research, Design and
Development Agreement, in the form set out in Schedule 34, the Management
Service Agreement, in the form set out in Schedule 37, the License
Agreement, in the form set out in Schedule 38, the Design/Build Agreement,
in the form set out in Schedule 39, the Equipment Supply Contracts, the
Service Contracts, the AMD Inc. Guaranty, in the form set out in Schedule
27 and each other instrument or document designated by the Agent (with the
consent of AMD Saxonia) as a Project Agreement for the purposes of this
Agreement.
Project Budget (Projektbudget):
the budget set out in Schedule 6, including such amendments thereto made
with the consent of the Agent in accordance with ss. 18.2 of this
Agreement.
Project Costs (Projektkosten):
all Capital Expenditure and other costs which are incurred by AMD Saxonia
in connection with the Project.
Project Phase (Projektabschnitt):
each project phase set out in the Project Schedule contemplated for the
implementation of the Project.
Project Schedule (Projektzeitplan):
the timetable in the form set out in Schedule 7, including amendments
thereto made with the consent of the Agent in accordance with ss. 18.2 of
this Agreement.
Reference Rate (Basissatz):
the reference rate so defined in ss. 6.1.1.
Reference Banks (Referenzbanken):
the Agent together with Commerzbank AG and ABN AMRO Bank (Deutschland) AG
or such other Banks designated by the Agent in their stead, subject to the
approval of AMD Saxonia, such approval not to be unreasonably withheld.
Registration (Eintragung):
the registration of the Conversion with the Commercial Register in Dresden.
Revolving Loans:
the subordinated unsecured revolving loans made by the Sponsors under the
terms of the Revolving Loan Facility Agreement.
10
Revolving Loan Facility Agreement:
the $750,000,000 subordinated unsecured Revolving Loan Facility
Agreement dated 20 February 2001 between AMD Inc., AMD Holding, and AMD
Saxonia, as amended by the First Amendment to the Revolving Loan
Facility Agreement dated 3 June 2002.
SAB/Dresdner Subsidy Agreement (SAB/Dresdner Zuwendungsvertrag):
the agreement between the Sachsische Aufbaubank GmbH, Dresden and
Dresdner Bank AG, Dresden in its capacity as house bank to AMD Saxonia,
in the form set out in Schedule 26.
Security Documents (Sicherheitenvertrage):
the agreements and other documents referred to in ss. 8.1.
Service Contract (Leistungsvertrag):
each contract in respect of services to be performed in favor of AMD
Saxonia (with the exception of the AMD Saxonia Wafer Purchase
Agreement, the Management Service Agreement as set out in Schedule 37
and employment contracts) which is not an Equipment Supply Contract but
excluding Excepted Software Agreements.
Sponsors (Sponsoren):
together, AMD Inc. and AMD Holding.
Sponsors' Support Agreement:
the agreement entered into between AMD Inc., AMD Holding, AMD Saxony
LLC, AMD Admin, the Agent and the Security Agent entitled "Sponsors"
Support Agreement".
Subsidy Agreement (Zuschussvertrag/Zuwendungsvertrag):
together, the AMD/Dresdner Subsidy Agreement and the SAB/Dresdner
Subsidy Agreement.
Substitution (Komplementarwechsel):
the substitution of AMD Admin as general partner of AMD Saxonia in
place of AMD Saxony LLC, pursuant to the AMD Saxonia Partnership
Agreement.
Technical Advisor (Technischer Berater):
Fraunhofer Institut fur Siliziumtechnologie, Itzehoe, or such other
technical advisor as may be appointed by the Agent with the consent of
AMD Saxonia, which consent shall not be unreasonably withheld.
Total Revolving Loan Commitment Amount:
means US$750,000,000 (seven hundred and fifty million US Dollars) or
the "Euro Equivalent" (under, and as defined in, the Revolving Loan
Facility Agreement) thereof, or such reduced amount as shall have been
agreed upon by each of the Sponsors, AMD Saxonia, the Agent, and the
Banks.
US GAAP:
the generally accepted accounting principles as set forth from time to
time in the opinions and pronouncements of the United States Accounting
Principles Board and the American
11
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.
1.2 The terms referred to in the introduction to this Agreement, in the
Preamble and in ss. 1.1 above shall, except where the context otherwise
requires, have the same meanings when used in this Agreement. Unless
the context requires otherwise, such terms shall also have such
meanings when used in agreements, written notifications, confirmations
and other documents which are issued pursuant to the terms of 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 this
Agreement) shall be a reference to such Document or Agreement as it
shall have been, or from time to time be, amended, varied, re-issued,
replaced, novated or supplemented, in each case, in accordance with its
terms and this Agreement. Any reference in this Agreement to the stated
capital (Stammkapital) of AMD Saxonia shall, following the Conversion
Effective Date, be deemed to be a reference to the capital (Haftsummen
and Pflichteinlagen) of a Limited Partnership. Any reference to any
other term which, in connection with AMD Saxonia, relates to the
capital structure of a German limited liability company shall,
following the Conversion Effective Date, be deemed to be a reference to
that term which corresponds thereto in the context of the capital
structure of a partnership.
ss. 2
Facilities
2.1 The Banks hereby agree to make available to AMD Saxonia a long term
investment loan in an amount of up to DM 1,500,000,000 (in words: one
billion five hundred million Deutsche Marks) (hereinafter "Facility A"
or the "Facilities", as the case may be). The Facilities will be made
available by each of the Banks in an amount corresponding to its
commitment as set out in Schedule 1, as amended.
2.2 Each Bank shall make available its respective commitment under the
Facilities pursuant to ss. 2.1 and Schedule 1, separately and
independently from each other Bank, through its Lending Office. AMD
Saxonia may draw the Facilities from all the Banks only in the
proportion of their respective commitments in accordance with ss. 2.1
and Schedule 1. No Bank shall be liable to provide or make available
any advance in respect of amounts to be provided or made available by
the other Banks; any joint and several liability of the Banks is hereby
excluded. The Paying Agent shall be obliged to distribute to AMD
Saxonia the advances to be made by the other Banks only to the extent
that the Paying Agent has in fact received payment of such advances.
Each Bank shall have a claim against AMD Saxonia in the amount of
advances made by such Bank, secured pro rata by the security to be
granted in accordance with the terms and conditions of this Agreement.
12
2.3 The failure by any Bank to comply with its obligations under this
Agreement shall not affect either the enforceability of this Agreement
as a whole or the obligations of any other party. In such case, AMD
Saxonia shall have a claim solely against the defaulting Bank.
ss. 3
Purpose
3.1 Facility A shall be used only for the purpose of the partial financing
of the Project Costs. Utilization of Facility A to finance Project
Costs which are not Capital Expenditure is permitted only up to a
maximum amount of DM 100,000,000 and only in respect of costs incurred
before 1 January 1999.
3.2 The use and source of funds in respect of each Project Phase shall be
evidenced by furnishing to the Agent a statement of the use and source
of funds, in the form set out in Schedule 16, certified by the Auditor,
such statement to be delivered simultaneously with the Scheduled
Project Phase Technical Completion Certificates pursuant to Schedules 9
and 10 for the relevant Project Phase and in any event promptly after
the expiry of each calendar quarter, save as may, in individual cases,
be otherwise agreed with the Agent.
ss. 4
Utilization of the Facilities
4.1 To the extent that all the conditions precedent set out in ss.5 are
satisfied, the Facilities may be drawn on and subject to the following
terms and conditions by the delivery to the Paying Agent, with a copy
to the Agent, of a written Drawdown Notice to be received by the Paying
Agent, in the case of the first Drawdown Notice at least ten (10)
Banking Days before the drawdown date and, in the case of any other
Drawdown Notice five (5) Banking Days before the drawdown date, set out
in such notice:
4.2 Facility A
Prior to Completion, advances shall be made up to the cumulative limit
in each Project Phase set out in the Drawdown Schedule in accordance
with the Project Schedule. Such limit and any advances drawn after
Completion shall not, however, without the prior written consent of the
Guarantors, be greater than the maximum guaranty amount for any
calendar year prescribed by the Guarantors pursuant to Schedule 63.
Advances shall be in minimum amounts of DM 15,000,000 and in integral
multiples of DM 5,000,000 or in an equal amount to the undrawn portion
of Facility A. No more than one advance may be made in any calendar
month.
Drawdowns in any Project Phase are permitted only in the amount of
Project Costs which have been incurred during the same Project Phase,
as the same are documented by invoices and other supporting evidence to
be furnished together with the Drawdown Notice, as required below.
Drawdowns in a current Project Phase are however permitted in respect
of Project Costs which are shown to have been incurred in respect of an
invoice for goods or services performed or delivered, submitted in the
last thirty days prior to the end of a prior Project Phase and which
have been included in full in the first Drawdown
13
Notice of such current Project Phase. The preceding two sentences shall
not apply to drawdowns requested following Completion.
Drawdown Notices, and the confirmation contained therein from AMD
Saxonia in the form set out in Schedule 3, shall be furnished to the
Agent and the Paying Agent at the same time. The following documents
shall be furnished to the Agent together with relevant Drawdown Notice:
(i) written confirmation of the Managing Directors
Geschaftsfuhrung) of AMD Saxonia and an authorized
representative of AMD Inc. that the conditions precedent
referred to in ▇▇.▇▇. 5.2.2 to 5.2.4 with respect to it have
been satisfied at the time of the Drawdown Notice;
(ii) in respect of drawdowns requested prior to Completion only,
unless the Agent has waived the same, copies of invoices and a
description in reasonable detail of the deliveries and
services performed in respect of amounts which are at least
equal to the amount proposed to be drawn. Project Costs which
are not Capital Expenditure may be supported by evidence other
than invoices, in such form as is reasonably satisfactory to
the Agent;
(iii) in respect of drawdowns requested prior to Completion only,
written confirmation of the Auditor that the amounts invoiced
are, or were, to the extent already paid, due and any
contractually agreed retentions and other deductions, such as
discounts, have been deducted in each case, in the form set
out in Schedule 21, as amended.
Amounts drawn and subsequently repaid may not be reborrowed.
4.2.2 [left intentionally blank]
4.2.3 [left intentionally blank]
4.3 Drawings of the Facilities are not permitted after 29 June 2001.
4.4 Drawings under the Facilities shall be permitted only to the extent
that the making of an advance would not result in the total amount
advanced by the Banks exceeding by more than three times the total
amount paid up on the ordinary share capital of AMD Saxonia and the
total amount of subordinated loans advanced to AMD Saxonia (but
excluding, for this purpose, Revolving Loans) and/or cash contributions
made to the reserves and not repaid in accordance with Section 6.3
second sentence of the Sponsors' Support Agreement and used for Project
Costs.
4.5 Advances under the Facilities will be made available to AMD Saxonia by
the Paying Agent crediting AMD Saxonia's *** with the Agent.
--------------------
*** Confidential information omitted and filed separately with the Securities
and Exchange Commission.
14
4.6 The Banks shall be entitled to reject Drawdown Notices from AMD Saxonia
if and to the extent that AMD Saxonia has assigned or charged its
claims under this Agreement to any third party or if such claims have
been subject to an attachment order without the consent of the Banks or
if AMD Saxonia is in default in the payment of any amount due or is in
breach of a material obligation, under this Agreement.
ss. 5
Conditions to Drawing
5.1 Initial utilization of the Facilities is subject to the satisfaction of
the conditions set out in ss. 4 and all the following conditions
(including those set out in ss. 5.2) at the date of the Drawdown Notice
and written confirmation from the Agent and/or the Paying Agent that it
has received a duly completed Drawdown Notice and confirmation from the
Agent that it has received the documents referred to in ss. 5.1.1 to
5.1.16.
5.1.1 Written confirmation of the Chief Financial Officer of AMD Inc. ***
5.1.2 Written confirmation from AMD Saxonia and AMD Inc. that as at the date
of the initial Drawdown Notice all material governmental approvals,
consents and measures which are necessary for the implementation and
ongoing operation of the Project in accordance with the Plans and
Specifications and the Operative Documents are available, or have been
taken, as the case may be, which, according to the progress of the
Project are appropriate and there is no reason to believe that the
same will be revoked, restricted or made subject to conditions or that
governmental approvals, consents and measures necessary at a later
stage of the Project will not be obtained or taken in a timely
fashion. Schedule 20 contains a list of all material approvals,
consents and measures within the meaning referred to above. To the
extent applicable as aforesaid and if any Bank should so reasonably
require, AMD Saxonia shall furnish the Agent with certified copies of
all relevant documents required for the performance of the Operative
Documents, and of the governmental approvals, consents and measures
necessary for the operation of the Fabrication Facility and the Design
Center.
5.1.3 Confirmation from AMD Inc. that as at the date of the initial Drawdown
Notice all consents or approvals necessary from third party creditors
in relation to the indebtedness or contingent liabilities of AMD Inc.
and in relation to the execution, delivery and performance by each of
the AMD Companies of their existing obligations and the subject matter
of the Operative Documents have been obtained.
5.1.4 Receipt of an extract from the Land Register confirming that AMD
Saxonia has been registered in the Register as the owner of parcels
referred to as nos. Folio 851 parcels nos. 150/2, 121/2, 122, 123, 124,
125/2, 126, 127, 128/2, 129/3, 130, 131, 132, 133/1, 134, 135, 136,
137, 138, 139, 140, 141, 142, 143, 143a, 144, 145, 146, 147, 148, 149,
151/2, 152, 153, 154/2, 155, 156, 157, 158, 159, 160/1, 160/2, 161,
162, 694/1 in the County Court of Dresden von Wilschdorf and that the
land charge to be granted in accordance with ss. 8.1.6 has been
registered and that there are no prior registered charges.
--------------------
*** Confidential information omitted and filed separately with the Securities
and Exchange Commission.
15
5.1.5 All fees to be borne by AMD Saxonia pursuant to this Agreement and the
other Operative Documents, to which the Agent, the Security Agent, the
Paying Agent or the Banks are party, and other payments relating to
costs incurred pursuant to ss. 25.1 which are due have been paid.
5.1.6 The Agent has received the following duly executed legally binding
documents whose effectiveness is not conditional (save solely in
respect of any condition relating to this Agreement):
(i) all Security Documents pursuant to ss. 8 with the exception of
such Consents and Agreements required in accordance with this
Agreement and the Security Documents set out in Schedules 49
and 55 which are to be furnished together with the relevant
contracts when the same are entered into
(ii) Sponsors' Support Agreement, in the form set out in Schedule
28
(iii) AMD Saxonia Wafer Purchase Agreement, in the form set out in
Schedule 35.
(iv) AMD Holding Wafer Purchase Agreement, in the form set out in
Schedule 33.
(v) AMD Saxonia Research, Design and Development Agreement, in the
form set out in Schedule 36.
(vi) AMD Holding Research, Design and Development Agreement, in the
form set out in Schedule 34.
(vii) Management Service Agreement, in the form set out in Schedule
37.
(viii) License Agreement in the form set out in Schedule 38.
(ix) Sponsors' Loan Agreement, in the form set out in Schedule 29.
(x) Sponsors' Consent and Agreement, in the form set out in
Schedule 31.
(xi) Design/Build Agreement including Contractor's Consent and
Agreement, in the form set out in Schedule 39.
(xii) copies, certified by a lawyer as true copies, of Material
Equipment Supply Contracts and Material Service Contracts (to
the extent executed as at the date of the initial Drawdown
Notice), including relevant Consents and Agreements in the
form set out in Schedule 40 Part II, Annex 3 of Schedule 49 or
in such other form as the Agent has consented to as well as
all other Consents and Agreements required in accordance with
the Security Documents in the form set out in Schedules 49 and
55.
(xiii) AMD/Dresdner Subsidy Agreement (Zuschussvertrag).
(xiv) SAB/Dresdner Subsidy Agreement (Zuwendungsvertrag).
16
(xv) AMD Saxonia Hedging Agreement in the form set out in Schedule
50a.
(xvi) confirmation in writing from the State Ministry of Saxony for
Economics and Labour that it has received a Letter from the
European Commission confirming its non-objection to the
interest subsidies to be paid under the Subsidy Agreements.
(xvii) Sale and Settlement Agreement between AMD Saxonia and the City
of Dresden dated 11 June 1996, together with amendments dated
25 October 1996 and 28 February 1997.
5.1.7 The Agent has received from AMD Saxonia, AMD Holding and AMD Inc.
respectively, confirmation that, as at the date of relevant Drawdown
Notice, subject to any disclosure to the contrary in the Disclosure
Schedule set out in Schedule 15, (i) its representations and warranties
in the Operative Documents are true and accurate in all material
respects as at such date; (ii) none of the events referred to in ss. 21
has occurred and is continuing, (iii) each of the Operative Documents
to which it is a party is legally binding on it and in full force and
effect and (iv) there has been no breach by AMD Saxonia of such
Operative Documents.
5.1.8 The Agent has been furnished with the following documents:
(i) Documents relating to AMD Inc.
(a) a certificate of incorporation of AMD Inc. together
with any amendments thereto duly certified by the
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇;
(b) a certificate of the Secretary of State of the State
Delaware, USA, referring to the certificate of
incorporation of AMD Inc. and any amendments and
confirming that the same are the only charter
documents furnished to the Secretary of State
concerning AMD Inc., that AMD Inc. is incorporated in
the State of Delaware, USA, and is in good standing
and at the date of the certificate all franchise
taxes due up to that date have been paid;
(c) a certificate signed by the Secretary of State of the
State of California, USA, in customary form,
confirming that under Californian law, AMD Inc.
satisfies all the conditions for intra-state business
and as at the date of the confirmation is entitled to
engage in intra-state business, subject to any
required permits of the State of California otherwise
required;
(d) a duly signed confirmation of the Recorder of Deeds
of New Castle County, Delaware, USA, in customary
form, confirming that a certified copy of the
certificate of incorporation of AMD Inc. together
with all amendments referred to in the certificate
delivered pursuant to ss. 5.1.8 (b), has been
furnished to his office;
(e) a duly signed confirmation of the Secretary of the
Franchise Tax Board of the State of California, USA,
in customary form, confirming that AMD
17
Inc. is in good standing, has no unpaid tax
obligations known to the Franchise Tax Board and is
entitled to carry on business in the State of
California; the provision of such confirmation shall
not, however, be necessary to the extent that such
confirmation cannot be provided for the reasons
disclosed in the Disclosure Schedule, provided the
decisions concerning the tax assessments have been
challenged bona fide in appropriate proceedings and
provision has been made therefor in accordance with
US GAAP.
The date of the documents referred to above shall not be more than one
month prior to the date of the initial Drawdown Notice.
(ii) Documents relating to AMD Holding
(a) certified copy of the Commercial Registry extract and
the articles of incorporation of AMD Holding in the
form certified by the County Court. The date of the
Commercial Registry extract shall not be more than
one month prior to the date of the Drawdown Notice;
(b) confirmation of the Managing Directors
(Geschaftsfuhrung) of AMD Holding that the matters
set out in the documents referred to in (a) are true
and accurate in all respects as they relate to the
actual facts;
(c) audited financial statements of AMD Holding,
including notes to the statements and a management
report, together with an unqualified report by the
Auditors for the year ended 31 December 1996.
(iii) Documents relating to AMD Saxonia
(a) certified copy of the Commercial Registry extract and
the articles of incorporation of AMD Saxonia in the
form certified by the County Court; the date of the
Commercial Registry extract shall not be more than
one month prior to the date of the initial Drawdown
Notice;
(b) written confirmation of the Managing Directors
(Geschaftsfuhrung) of AMD Saxonia that the documents
referred to in (a) are true and accurate in all
respects as they relate to the actual facts.
(c) audited financial statements of AMD Saxonia including
notes to the statements and a management report,
together with an unqualified report by the Auditors
for the year ended 31 December 1996.
5.1.9 The Agent has received from AMD Inc. confirmation in the form of
Schedule 3, dated as of the date of the initial Drawdown Notice,
stating that there is attached (i) a written resolution of its Board of
Directors authorizing execution of the Operative Documents and (ii) a
copy of its by-laws in effect at the date of the initial Drawdown
Notice and (iii) a list of its agents and officers who have signed the
Operative Documents and the documents relating thereto as authorized
signatories.
18
5.1.10 The Agent has received an opinion acceptable to it from a recognized
reputable first class US financial advisory firm confirming that the
Operative Documents to which AMD Inc. is a party are fair to AMD Inc.
from a financial point of view.
5.1.11 The Agent has received the following legal opinions:
(i) legal opinion (including an Exhibit A thereto in a form
satisfactory to the Agent) of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
counsel to AMD Inc., in the form set out in Schedule 57,
relating to the Senior Secured Note Indenture dated 1 August
1996 and the Credit Agreement dated 19 July 1996 each as
referred to in ss. 15.1.13, dated not more than 21 calendar
after the date hereof;
(ii) legal opinion of O'Melveny & ▇▇▇▇▇ LLP, counsel to the AMD
Companies, of even date herewith, in the form set out in
Schedule 58, together with confirmation in accordance with
Schedule 58 from O'Melveny & ▇▇▇▇▇ LLP that the statements
referred to in the legal opinion continue to be true and
accurate as at a date not more than ten calendar days prior to
the date of the initial Drawdown Notice;
(iii) legal opinion of ▇▇▇▇, Stiefenhofer & ▇▇▇▇, counsel to the AMD
Companies including an opinion relating to the completeness of
the schedule of required governmental approvals, permits and
measures (Schedule 20) as well as relating to the status of
such required approvals, permits and measures in accordance
with the progress of the Project, in a form updated from that
set out in Schedule 59 satisfactory to the Banks dated not
more than ten calendar days prior to the date of the initial
Drawdown Notice; and
(iv) legal opinion of Doser Amereller ▇▇▇▇▇ / ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel to the Agent and the Banks of even date herewith, in
the form set out in Schedule 60, together with confirmation
from Doser Amereller ▇▇▇▇▇/▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ that the
statements referred to in the legal opinion continue to be
true and accurate as at a date not more than ten calendar days
prior to the date of the initial Drawdown Notice;
(v) legal opinions of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇
Ewerwahn, counsel to the Agent and the Banks of even date
herewith in the form set out in Schedule 61, together with
confirmation from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇
Ewerwahn that the statements referred to in the legal opinion
continue to be true and accurate as at a date not more than
ten calendar days prior to the date of the initial Drawdown
Notice.
5.1.12 The Agent has received a technical report (Technical Report) from the
Technical Advisor, in form and substance satisfactory to the Agent
together with an updated confirmation from the Technical Advisor that
the Technical Report continues to be true and accurate in all material
respects together with the confirmation in writing from AMD Saxonia in
the form set out in Schedule 19;
19
5.1.13 The Agent has received confirmations from AMD Saxonia's Insurance
Brokers in the form of Annexes I and II of Schedule 22 as well as
confirmation from the Insurance Advisor in form and substance
satisfactory to the Agent evidencing, in particular, that AMD Saxonia
has taken out insurances in the scope required pursuant to ss. 17.8 and
Schedule 22.
5.1.14 AMD Saxonia has registered its stated capital of at least DM
217,500,000 in the Commercial Register of which an amount of at least
DM 108,750,000 has been paid up, at the latest on the date of the
initial Drawdown Notice and that a sum in this amount has been credited
to a Project Account in accordance with ss. 19.
5.1.15 The Technical Advisor has received the Plans and Specifications in form
and substance satisfactory to the Technical Advisor and the Agent has
received confirmation in writing, to that effect.
5.1.16 The conditions to initial drawing referred to in the AMD/Dresdner
Subsidy Agreement and the SAB/Dresdner Subsidy Agreement relating to
the payment of grants and subsidies have been satisfied.
5.2 Each of the following conditions must be satisfied on each drawing
(including the first) of the Facilities:
5.2.1 the Agent and the Paying Agent have received a Drawdown Notice and the
Agent has received the documents to be submitted simultaneously with
such notice pursuant to ss. 4.1. Each Drawdown Notice shall in
particular contain confirmation that the conditions referred to in ss.
5.2.2 to ss. 5.2.4 below are true and accurate;
5.2.2 the representations and warranties given by each of the AMD Companies
in each of the Operative Documents are true and accurate in all
material respects as at the date of the Drawdown Notice and will be
true and accurate as at the date of drawing, save to the extent that
their content relates solely to an earlier date;
5.2.3 as at the date of the Drawdown Notice and as at the date of drawing,
none of the events referred to in ss. 21 which would entitle the Banks
to terminate this Agreement has occurred;
5.2.4 as at the date of the Drawdown Notice and as at the date of drawing no
event which has a "Material Adverse Effect" within the meaning of the
Sponsors' Support Agreement has occurred;
5.2.5 the Agent has received a copy certified by a lawyer of each Material
Equipment Supply Contract and each Material Service Contract entered
into by such date, together with the written Consent and Agreements of
the other contracting party relating to the transfer of the relevant
contracts in the form set out in Part II of Schedule 40 or in such
other form to which the Agent shall have consented together with all
Consents and Agreements required pursuant to the Security Documents set
out in Schedules 49 and 55 which have not already been obtained;
20
5.2.6 the Agent has received evidence reasonably requested by it that all the
governmental approvals, permits and measures necessary according to the
progress of the Project have been granted and, or taken, in accordance
with Part B of Schedule 20 as well as, at the beginning of each Project
Phase, a legal opinion acceptable to it from ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
relating to the completeness and the legal validity of such approvals,
permits and measures;
5.2.7 the Agent has received at the beginning of each then current Project
Phase confirmation in the form of the Scheduled Project Phase Technical
Completion Certificates in accordance with Schedules 9 and 10 stating
that the relevant preceding Project Phase has been completed;
5.2.8 the Agent has received at the end of each calendar year confirmations
from AMD Saxonia's Insurance Brokers in the form of Annexes I and II of
Schedule 22 as well as confirmation of the Insurance Advisor pursuant
to ss. 5.1.13;
5.2.9 the Agent has received all evidence reasonably requested by it relating
to compliance with or the enforceability of AMD Saxonia's obligations
under this Agreement and the Security Documents.
ss. 6
Interest, Commitment Fee, Payments
6.1 AMD Saxonia may elect, by a notification in a Drawdown Notice and/or an
interest rate notice, whether a variable rate, a fixed rate or a
combination of variable and fixed rates should apply to drawings under
Facility A.
The rate of interest applicable to each advance drawn and the Interest
Period applicable thereto as determined in accordance with ss. 6.2
shall be, at AMD Saxonia's option:
(i) in respect of a fixed rate, the sum of the Reference Rate and
the margin,
(ii) in respect of a variable rate, the sum of the LIBOR-Rate and
the margin.
6.1.1 The Reference Rate is the arithmetic mean (rounded up to the fourth
decimal place) of the fixed rates per annum for DM interest rate swaps
(fixed rate as against 6 months LIBOR) in an amount equal to the
relevant advance for the Interest Period requested by AMD Saxonia, as
corresponds to the rate quoted by the Reference Banks at 11.00 a.m.
(London time) as the offered rate on the second Banking Day prior to
the relevant Interest Period, as determined by the Paying Agent.
The LIBOR-Rate is the DM interest rate per annum in the London
Interbank Market which in accordance with "Telerate Screen" page 3750
(or such other page as may be substituted for page 3750 on that system
for the purpose of displaying offered rates for DM deposits) is quoted
as the offered rate at 11.00 a.m. (London time) on the second Banking
Day prior to the relevant Interest Period for such Interest Period.
21
To the extent that no interest rate is displayed on the relevant
"Telerate Screen" page at the relevant time on any day for the
determination of the interest rate, the rate determined by the Paying
Agent shall be the arithmetic mean (rounded to the fourth decimal
place) quoted to the Paying Agent by the Reference Banks as the DM
interest rate per annum at which the Reference Banks offer to prime
banks in the London Interbank Market on the relevant date at 11.00 a.m.
London time for deposits for the relevant period and in an amount
comparable to the relevant advance.
If any Reference Bank does not notify such a rate to the Paying Agent
for any relevant period, the LIBOR-Rate and/or the Reference Rate as
applicable shall be determined on the basis of the rates notified by
the other Reference Banks.
6.1.2 The margin applicable to Facility A prior to 31 December 2001 shall be
one percent (1.00%) per annum. After 31 December 2001, the margin shall
be calculated by reference to:
(a) the rating of the public long-term senior unsecured
debt securities of AMD Inc. by ▇▇▇▇▇'▇ Investor
Services, Inc.(or any successor or other undertaking
which has assumed the relevant functions of ▇▇▇▇▇'▇
Investor Service, Inc. which is a rating agency of
international repute) in effect at the relevant time;
and
(b) the ratio (expressed as a percentage of utilization)
of outstanding advances under Facility A to DM
1,500,000,000,-,
in each case, corresponding to the interest rate set out in the right
hand column of the following table:
========================================== ===================================== ===========================
Rating Utilization percentage Margin
========================================== ===================================== ===========================
less than "investment grade (Baa3)" 70% or more 1.00% per annum;
or no rating
------------------------------------------ ------------------------------------- ---------------------------
less than "investment grade (Baa3)" at least 50% but less than 70% 0.90% per annum;
or no rating
------------------------------------------ ------------------------------------- ---------------------------
less than "investment grade (Baa3)" less than 50% 0.75% per annum;
or no rating
------------------------------------------ ------------------------------------- ---------------------------
"investment grade (Baa3)" 70% or more 0.75% per annum;
or better
------------------------------------------ ------------------------------------- ---------------------------
"investment grade (Baa3)" at least 50% but less than 70% 0.70% per annum; and
or better
------------------------------------------ ------------------------------------- ---------------------------
"investment grade (Baa3)" less than 50% 0.55% per annum.
or better
========================================== ===================================== ===========================
22
Adjustments to the margin in respect of each advance shall be made at
the beginning of the next Interest Period and/or at the next interest
payment date as set out in ss. 6.6, as the case may be.
AMD Saxonia shall ensure that the Interest Periods elected by it always
correspond with the repayment schedule in ss. 7.2 of this Agreement. To
the extent that any advance must be prepaid prior to the Interest
Period agreed therefor in order to comply with such repayment schedule,
the provisions of ss. 7.5 shall apply accordingly.
6.2 In respect of a variable interest rate, the Interest Periods shall be
1, 3, 6 or 12 months (to the extent available). The Interest Periods in
respect of fixed interest rates shall be of a duration of integral
multiples of one year or of such duration as AMD Saxonia and the Agent
may agree in order to match the dates on which repayment instalments
are made in accordance with ss. 7.2 but shall not in any event exceed
five nor be less than two years.
Upon the Agent's request, AMD Saxonia will consolidate individual
outstanding advances so that not more than ten separate advances are
outstanding at any one time.
6.3 AMD Saxonia will notify the Agent, with a copy to the Paying Agent, in
an irrevocable Drawdown Notice and/or an interest rate notice to be
received at the latest by the fifth Banking Day prior to an Interest
Period of the relevant interest rate (variable or fixed rate), the
amount for which the specified interest rate shall apply and the
duration of the relevant Interest Period. If the Agent has not received
in the time specified therefor an interest rate notice in the form set
out in Schedule 4 for the next Interest Period, the relevant advance
shall be for an Interest Period of the same duration as the previous
Interest Period and bear interest on the same interest rate basis
applicable to such Period.
6.4 The first Interest Period for each advance will commence on the date of
drawing. Each succeeding Interest Period will commence on the
expiration of the immediately preceding Interest Period. If the last
day of an Interest Period does not fall on a Banking Day, the Interest
Period shall be deemed to end on the next following Banking Day or if
the Interest Period relates to an advance bearing interest at a
variable rate and the next following Banking Day would otherwise fall
in the next calendar month, such Interest Period shall be deemed to end
on the immediately preceding Banking Day. If an Interest Period for any
advance would otherwise extend beyond a due date for payment pursuant
to ss. 7.2 of this Agreement, the relevant Interest Period shall be
deemed to end on the relevant due date.
6.5 Interest in respect of the variable interest rate shall be calculated
on the basis of the actual number of days elapsed and a 360 day year.
Interest in respect of the fixed interest rate shall be calculated on
the basis of a 30 day month and a 360 day year.
6.6 Interest shall be paid on the last day of an interest period. In the
case of an Interest Period for a variable rate advance of more than 3
months interest shall be due and payable at the end of every 3 months.
In the case of a fixed rate advance, interest shall be
23
paid on the last day of each calendar quarter or, if such day is not a
Banking Day, on the next succeeding Banking Day.
6.7 AMD Saxonia shall be in default (Verzug), without any requirement for
notice, if it has failed to make payments which are due hereunder on
the relevant due date or if it does not make such payments in full. AMD
Saxonia shall pay default interest on the outstanding amount of the
overdue payment at the rate equal to 4 percentage points per annum
above the applicable discount rate of the German Bundesbank, or the
equivalent rate following introduction of the single currency under
European Monetary Union, from the due date until receipt by the Paying
Agent of the outstanding amounts. Should there be no such rate
following introduction of the single currency, the Banks shall
determine the applicable rate in accordance with ss. 315 BGB. If AMD
Saxonia is in default of payment of interest, AMD Saxonia shall pay to
the Banks liquidated damages. The amount of such liquidated damages
shall correspond to a rate of interest of 4 percentage points above the
applicable discount rate of the German Bundesbank (or the equivalent
rate following introduction of the single currency under European
Monetary Union) from the due date until receipt by the Paying Agent of
the overdue interest amounts. Should there be no such rate following
introduction of the single currency, the Banks shall determine the
applicable rate in accordance with ss. 315 BGB.
6.8 AMD Saxonia agrees to pay to the Paying Agent for the account of each
Bank as from the date of execution of this Agreement until the end of
the availability period pursuant to ss. 4.2 a commitment fee at the
rate of 0,2% per annum on such Bank's commitment of the unused portion
of the Facilities calculated on the basis of the actual days elapsed
and on the basis of a 360 day year. The commitment fee shall be
calculated on a quarterly basis and shall be payable at the end of each
calendar quarter for that quarter.
6.9 All payments to be made by AMD Saxonia to the Banks pursuant to the
terms of this Loan Agreement shall at all times be made to the Paying
Agent's account no. *** with Dresdner Bank in Frankfurt or such other
account as may be specified by the Paying Agent on the relevant due
date. The Security Agent is hereby also authorised to debit the
relevant amounts due from AMD Saxonia's account no. *** with the
Security Agent in Dresden on or after the due date and to pay the same
to the Agent for distribution to the individual Banks. Payments made
otherwise than in accordance with this provision shall not constitute
good discharge in favour of AMD Saxonia.
6.10 AMD Saxonia shall not be entitled to assert any rights of set off or
retention against the claims of the Banks for payment hereunder.
ss. 7
Term and Repayment
7.1 The Facilities shall be for a term expiring on 31 December 2005.
7.2 The Facilities shall be amortized, commencing on 30 June 2001,
--------------------
*** Confidential information omitted and filed separately with the Securities
and Exchange Commission.
24
in semi-annual repayments in the percentages set out below on the last
Banking Day of the relevant six month period:
=========================================== ===============================================================
Percentage of the aggregate principal amount
of the Facilities outstanding at the end of the availability
Instalments period pursuant to ss. 4.2
=========================================== ===============================================================
first and second instalment 6.50% each
------------------------------------------- ---------------------------------------------------------------
third and fourth instalment 13.50% each
------------------------------------------- ---------------------------------------------------------------
fifth and sixth instalment 14.25% each
------------------------------------------- ---------------------------------------------------------------
seventh and eighth instalment 10.50% each
------------------------------------------- ---------------------------------------------------------------
ninth and tenth instalment 5.25% each
=========================================== ===============================================================
Each scheduled repayment of the Facilities shall be made, together with
all interest accrued at the due date for repayment and with all other
amounts due under this Agreement at such date.
7.3 AMD Saxonia is entitled to prepay the outstanding amount of the
Facilities, in whole or in part, but not in an amount of less than DM
10,000,000 or, if higher, an integral multiple of DM 5,000,000 or the
total amount outstanding provided that it shall have notified the
Paying Agent (with a copy to the Agent) at least five Banking Days in
advance by notice in writing, substantially in the form of Schedule 5.
Each repayment shall include accrued interest up to the date of
repayment.
7.4 At the latest on 15 August 2002, AMD Saxonia shall make a prepayment of
the outstanding Facilities in an amount equal to the excess (if any)
of:
7.4.1 all drawdowns under the Facilities made after Completion,
over
7.4.2 Capital Expenditure incurred between 1 January 2001 and 1 July 2002, as
set out in the Statement as to the Use and Sources of Funds submitted
pursuant to ss. 16.2.6 (ii) for such period, signed by the Auditor.
7.5 Prepayments shall be applied to payments pursuant to ss. 7.2 in inverse
order of maturity. In the event that the Banks incur a loss arising
from a repayment (save for a repayment at the end of an Interest
Period) by virtue of the fact that the reinvestment of any advances
repaid by AMD Saxonia is only possible at interest rates lower than
those agreed with AMD Saxonia, AMD Saxonia shall indemnify the Banks in
respect of reinvestment losses so incurred as a result of prepayment.
In such circumstances, the Banks shall be entitled to make a claim for
the reinvestment loss which is equal to the difference between the rate
of interest which would have been payable by AMD Saxonia for the
relevant remaining term of the Interest Period on the basis of the
applicable rates and the rate available to the Banks for such period as
the reinvestment rate. For this purpose, the reinvestment rate for the
remaining term and/or the remaining term of the Interest Period
25
is capital market rate corresponding to the offered rate for German
Pfandbriefe/Kommunalobligationen (Inhaberschuldverschreibungen) of an
equivalent maturity in the interbank market, determined in accordance
with ss. 6.1. The difference in interest rates shall be discounted to net
present value at a discount rate equivalent to the reinvestment rate. The
Banks shall be entitled to make a claim for any loss incurred by them
which is higher. AMD Saxonia shall have the right to prove that damages
have not been incurred or not in the amount claimed. All notices in
relation to a prepayment shall be irrevocable.
ss. 8
Security
8.1 The Facilities are secured by the 65/35 Guaranty in the form known to the
Banks and AMD Saxonia, as set out in Schedule 24 including in particular
deeds of guaranty in the form set out in the specimen annexed thereto. A
copy of the Guaranty Decision is also set out in Schedule 24 and the
terms of such Decision constitute a material term of this Agreement. All
terms and conditions of the Guaranty Decision to be incorporated herein
are hereby agreed by the parties notwithstanding that the same are not
expressly set out in this Agreement; this shall apply in particular to
the obligation to agree to amendments to this Agreement only with the
consent of the Guarantors. AMD Saxonia undertakes to observe and comply
with all relevant conditions of the Guaranty Decision directly applicable
to it and to do all things to enable AMD Inc. to observe and comply with
all obligations incumbent on it in connection with the Guaranty Decision.
The Guarantors are entitled to appoint authorized representatives for the
purpose of administering the 65/35 Guaranty. In addition, AMD Saxonia
shall grant, or procure that there is granted, in favor of the Banks and
the Security Agent the following security as security for all claims of
the Banks as well as any potential claims of the Guarantors arising under
or in connection with this Agreement:
8.1.1 a joint and several guaranty by the Sponsors in an amount of up to the
greater of (i) thirty five percent (35%) of all amounts outstanding under
this Agreement, and (ii) DM 217,500,000, in each case plus interest
thereon and costs and expenses, but subject to a maximum amount of DM
600,000,000, as set out in the Sponsors' Guaranty in the form of Schedule
32, as amended;
8.1.2 a subordination agreement between AMD Saxonia, the Sponsors, the Agent
and the Security Agent, in the form set out in Schedule 30;
8.1.3 a guaranty by AMD Inc. of obligations of AMD Holding under certain
Operative Documents, in the form set out in Schedule 27;
8.1.4 a pledge of all shares in AMD Holding held by AMD Inc. in the form set as
out in Schedule 41;
8.1.5 a subordination agreement between AMD Holding, AMD Inc., the Agent and
the Security Agent, in the form set out in Schedule 42.
26
8.1.6 a first priority land charge over real property registered in the Land
Registry of the Dresden County Court, Dresden von Wilschdorf parcels
numbers Folio 851 parcels nos. 150/2, 121/2, 122, 123, 124, 125/2, 126,
127, 128/2, 129/3, 130, 131, 132, 133/1, 134, 135, 136, 137, 138, 139,
140, 141, 142, 143, 143a, 144, 145, 146, 147, 148, 149, 151/2, 152, 153,
154/2, 155, 156, 157, 158, 159, 160/1, 160/2, 161, 162, 694/1 of AMD
Saxonia in respect of an amount of DM 1,650,000,000 together with
interest in an amount of 15% per annum together with a lump sum payment
in an amount of 5% of the total charge amount as an immediately
enforceable charge without prior charges in Section III of the Register
in favor of the Security Agent together with a personal acknowledgement
of enforceability by AMD Saxonia to be granted in the form set out in
Schedule 43;
8.1.7 a security assignment of the current assets of AMD Saxonia (raw
materials, supplemental and operational materials, finished and
unfinished products as well as trading products), in the form set out in
Schedule 44;
8.1.8 a security assignment of fixed assets of AMD Saxonia, in the form set out
in Schedule 45;
8.1.9 a security assignment of insurance claims of AMD Saxonia, in the form set
out in Schedule 46;
8.1.10 a global assignment of all receivables of AMD Saxonia not otherwise
assigned from the supply of equipment and other services and from other
claims against debtors other than the Sponsors, in the form set out in
Schedule 47;
8.1.11 a pledge of all amounts standing to the credit of AMD Saxonia in the
Project Accounts in the form set out in Schedule 48;
8.1.12 an assignment of AMD Saxonia's rights under the Design/Build Agreement in
the form set out in Schedule 39, the Equipment Supply Contracts, the
Service Contracts and other contracts not governed by the laws of the
United States of America or any state thereof together with an offer to
transfer such contracts as required by Schedule 49 and with Consents and
Agreements in the form of Annex 3 to Schedule 49 as therein required. AMD
Saxonia is hereby authorized by the Security Agent to enforce on its
behalf rights in its name under the agreements referred to above as
against the relevant obligor for as long as no circumstances exist which
entitle the Banks to terminate this Agreement; AMD Saxonia hereby accepts
such authorization;
8.1.13 an assignment of claims and contractual rights of AMD Saxonia under the
AMD Saxonia Wafer Purchase Agreement, the Equipment Supply Contracts, the
Service Contracts and rights under other contracts governed by the laws
of the United States of America or any state thereof, in the form set out
in Schedule 50;
8.1.14 a pledge of all shares in AMD Saxonia held by AMD Holding, in the form
set out in Schedule 51;
27
8.1.15 a security assignment of current assets of AMD Holding (raw materials,
supplemental and operational materials, finished and unfinished products
as well as trading products), in the form set out in Schedule 52;
8.1.16 a global assignment of all receivables of AMD Holding not otherwise
assigned from the supply of equipment and other services and of other
claims against all debtors, with the exception of AMD Inc., in the form
set out in Schedule 53;
8.1.17 a pledge of all amounts standing to the credit of AMD Holding in bank
accounts, in the form set out in Schedule 54;
8.1.18 an assignment of AMD Holding's rights under contracts not governed by
laws of the United States of America or any state thereof and an offer to
transfer such contracts, pursuant to the form set out in Schedule 55
together with Consents and Agreements in the form set out in Annex 3 to
Schedule 55 as therein required; AMD Holding will be authorized by the
Security Agent to enforce on its behalf rights in its name under the
agreements referred to above as against the relevant obligor for so long
as no circumstances exist which entitle the Banks to terminate this
Agreement;
8.1.19 an assignment of claims and contractual rights of AMD Holding under the
AMD Holding Wafer Purchase Agreement and other contracts governed by the
laws of the United States of America or any state thereof, in the form
set out in Schedule 56;
8.1.20 the AMD Inc. Pledge Agreement over Membership Interests in AMD Saxony LLC
dated 3 June 2002 between AMD Inc. and the Security Agent;
8.1.21 the AMD Saxony LLC Security Agreement dated 3 June 2002 between AMD
Saxony LLC and the Security Agent;
8.1.22 the AMD Saxony LLC KG Partnership Interest Pledge Agreement in AMD
Saxonia dated 3 June 2002 between AMD Saxony LLC and the Security Agent;
8.1.23 the AMD Holding Share Pledge Agreement over GmbH shares in AMD Admin
dated 3 June 2002 between AMD Holding and the Security Agent;
8.1.24 the AMD Admin Global Assignment Agreement dated 3 June 2002 between AMD
Admin and the Security Agent;
8.1.25 the AMD Admin Pledge of Bank Accounts dated 3 June 2002 between AMD Admin
and the Security Agent;
8.1.26 the AMD Admin KG Partnership Interest Pledge Agreement in AMD Saxonia
dated 3 June 2002 between AMD Admin and the Security Agent;
8.1.27 the AMD Holding KG Partnership Interest Pledge Agreement in AMD Saxonia
dated 3 June 2002 between AMD Holding and the Security Agent; and
28
8.1.28 the Clarification and Security Agreement dated 3 June 2002 between the
AMD Companies, the Security Agent and the Agent.
8.2 AMD Saxonia undertakes that, in the event of any material deterioration
of the security as a whole, in particular as a result of reduction in
value and/or loss, it will on the request of the Agent grant additional
security or repay the Facilities accordingly. AMD Saxonia undertakes to
charge real property which is not presently charged or which is acquired
in the future if the same is or intended to be used for operational
purposes.
8.3 If AMD Saxonia is of the opinion that the realizable value of the
security as a whole (with the exception of the 65/35 Guaranty) exceeds at
any time by a material amount the total outstanding claims of the Banks
under this Agreement, otherwise than temporarily, AMD Saxonia may by
notice to the Security Agent, including supporting material, require the
release of security. The Security Agent will pass a copy of such notice
to the Guarantors for their comment.
Following receipt of the Guarantors' comments, the Security Agent and the
Banks will release security to the extent a material
over-collateralization has been adequately demonstrated.
The Security Agent shall be obliged to agree to a release if and to the
extent that the realizable value as determined in accordance with the
individual Security Documents of all Security provided by AMD Saxonia
exceeds 120% of the secured claims of the Banks other than temporarily.
The choice of the securities released shall be at the discretion of the
Security Agent and of the Banks, as the case may be.
8.4 In the event that the Banks are entitled to terminate the Facilities
pursuant to ss. 21 of this Agreement, AMD Saxonia hereby authorizes the
Agent, on behalf of the Banks, to satisfy on its behalf all obligations
of, and to discharge all claims against it (including those arising under
extended retention of title clauses), at the expense of AMD Saxonia. AMD
Saxonia waives its rights pursuant to ss. 267 II BGB and undertakes to
reimburse the Agent promptly after request by the Agent all reasonable
costs and expenses which the Agent may have incurred in connection with
the exercise of its rights to satisfy obligations and discharge claims as
aforesaid.
ss. 9
Illegality
If it becomes illegal or unlawful pursuant to domestic or foreign legislation or
it becomes contrary to any requirement of any domestic or foreign authority or
public body for any Bank to comply with its outstanding obligations - in whole
or in part - under this Agreement such Bank may immediately after it has become
aware thereof inform AMD Saxonia through the Agent. After receipt of such
notification, the Facilities made available by the relevant Bank affected by the
illegality or unlawfulness shall be cancelled without notice or on such
reasonable notice as may be determined by the relevant Bank and specified in the
notification referred to, as the case may be. In such case, AMD Saxonia shall
repay to the Paying Agent for distribution to the relevant Bank all outstanding
amounts under the affected Facilities at the date such notice
29
becomes effective, together with accrued interest and all other amounts due at
the date of such notice.
ss. 10
Market Disruption; Alternative Method of Calculation
10.1 The Paying Agent shall immediately notify AMD Saxonia and the Banks if
any of the following events occur in relation to any interest period:
(i) the Paying Agent, after consultation with the Reference Banks,
determines that due to circumstances affecting the London
interbank market, the LIBOR rate or the reference rate cannot be
adequately and reasonably determined; or
(ii) in the case of a LIBOR rate, no interest rate for the relevant
interest period appears on the Telerate Monitor and less than two
(2) Reference Banks provide the Paying Agent with a LIBOR rate or
in the case of the reference rate, less than two Reference Banks
provide the Paying Agent with a reference rate; or
(iii) a majority of Banks, as determined pursuant to ss. 22.5, inform
the Paying Agent (with a copy to the Agent) that in respect of the
relevant interest period no DM funds in the required amount are
available in the London interbank market or that the average of
the LIBOR-rates appearing on the Telerate Monitor do not
adequately reflect the cost to such Banks of making or maintaining
their respective participations in the relevant advance for such
interest period.
Following receipt of such notification no further advances may be made
until an alternative method of calculation pursuant to ss. 10.2 is agreed
upon or such notice is revoked by further notification from the Paying
Agent to AMD Saxonia and the Banks.
10.2 As soon as notification pursuant to ss. 10.1 has been made, AMD Saxonia
and the Paying Agent, in coordination with the Banks, will negotiate in
good faith for a maximum period of thirty days with a view to setting an
alternative method of refinancing the affected advances as well as the
applicable interest rate, the interest period and the payment dates. To
the extent that instead of a LIBOR rate, a reference rate can be
determined or instead of a reference rate, a LIBOR rate can be
determined, AMD Saxonia shall be entitled to require that the rate which
is available shall apply to the relevant advance. If agreement as to the
alternative interest rate is reached between the Banks and AMD, the
alternative calculation method agreed shall apply for all relevant
advances. If no agreement in respect of an alternative method of
calculation is achieved within thirty days and agreed upon in writing or
if AMD Saxonia does not require an alternative available Reference Rate
or LIBOR-Rate, the following shall apply:
(i) to the extent that the Facilities have not been drawn, no drawing
will be permitted. AMD Saxonia shall then be obliged to pay
immediately all amounts due to the Paying Agent for distribution
to the Banks pursuant to the terms of this Agreement;
30
(ii) to the extent that the Facilities have already been drawn, AMD
Saxonia and the Agent (in consultation with the Paying Agent) may
determine a repayment date for the entire outstanding amount of
the Facilities affected of not less than thirty days. Repayment
shall be effected on such day together with interest in an amount
equivalent to the costs of the Banks of making or maintaining
their respective participations in the relevant advance for such
interest period together with the margin to the Paying Agent for
distribution to the Banks. In the event that such costs of the
Banks cannot be determined, the applicable rate shall be
determined in accordance with ss. 315 BGB.
ss. 11
Increased Costs
11.1 If a Bank or its Lending Office determines that the introduction of or a
change of any law applicable to it or change in interpretation of any
such law or the application or compliance with any regulation of any
public body results or will result:
(i) in the affected Bank being obliged to pay any tax or other payment
relating to any advance made by it or to any payment to be made by
AMD Saxonia to it, or
(ii) the affected Bank being subject to any other measure which leads
to an increase in the costs of that Bank in funding advances or
that the amount or the effective return in relation to any payment
which the affected Bank receives pursuant to this Agreement is
reduced, or
(iii) the affected Bank being subject to additional costs which arise
from its commitment under the Facility,
such Bank shall be entitled to inform AMD Saxonia through the Agent. AMD
Saxonia shall then be obliged on request and irrespective of whether
advances made are repaid to the affected Bank to pay such amount to the
Paying Agent for the account of the affected Bank as is demonstrated to
be necessary to compensate the affected Bank for the relevant increase in
costs or reduction of payment. The foregoing shall apply only to the
extent that the affected Bank has informed AMD Saxonia, via the Agent, of
the relevant circumstance in respect of paragraphs (i) to (iii).
11.2 An increase in costs or reduction of payment referred to in ss. 11.1 does
not include:
(i) any tax on overall net income of any Bank or a branch thereof;
(ii) any tax required to be deducted or withheld from any amount
payable by AMD Saxonia which AMD Saxonia has paid in accordance
with ss. 13;
(iii) any amount relating to any reserve amount, special deposits,
equity, cost ratio, liquidity or capital adequacy requirement or
any other form of banking or monetary control resulting from any
law or regulation in effect at the date of this Agreement.
31
11.3 For as long as the circumstances referred to in 11.1 above continue, AMD
Saxonia shall be entitled by written notice to the Paying Agent, with a
copy to the Agent, to repay all outstanding advances made by the affected
Bank on thirty days notice expiring at the end of an interest period and
to cancel the Facilities only as they relate to the affected Bank.
ss. 12
Indemnity
12.1 Without prejudice in particular to the provisions of ss. 6.7, ss. 7.5,
ss. 10 and ss. 11, AMD Saxonia shall be obliged to hold harmless from and
to indemnify each Bank and the Paying Agent on demand in respect of all
losses, obligations, damage, costs and expenses (including loss of
profit) under or arising out of this Agreement which are suffered by a
Bank or the Paying Agent as result of:
(i) the occurrence of circumstances which entitle the Banks to
terminate this Agreement or breach by AMD Saxonia of its
obligations under this Agreement;
(ii) the failure to draw down funds under the Facilities following a
Drawdown Notice;
(iii) any amounts prepaid otherwise than in accordance with the terms of
this Agreement (in particular also pursuant to ss. 10 and ss. 11).
12.2 The obligation to hold harmless and indemnify includes also all costs and
expenses which a Bank incurs as result of the redeployment of funds which
are obtained for the purposes of refinancing its commitment under the
Facilities as well as all interest, fees and costs which arise as a
result of the funding of the amounts not drawn.
12.3 The Paying Agent will maintain books of account in accordance with
customary banking practice which will at all relevant times record the
amounts owed by AMD Saxonia pursuant to this Agreement. In the event of
disputes or other questions in connection with this Agreement, the
contents of the Paying Agent's books of account as they relate to the
obligations of AMD Saxonia pursuant to this Agreement and the amount
thereof shall be conclusive, save in the case of manifest error. AMD
Saxonia's ability to prove any error in the contents of such books of
account shall remain unaffected.
ss. 13
No Deductions or Withholdings
13.1 All sums payable by AMD Saxonia under this Agreement shall be paid in
full without set off or withholding in respect of tax or other
deductions. The right to set off or the enforcement of any rights of
retention or other claims is hereby excluded. To the extent that AMD
Saxonia or a third party is obliged by law to make deductions or
withholdings or to retain money for tax or other reasons, AMD Saxonia
shall be obliged to make a payment of the difference together with the
relevant amount in such additional amount as will ensure that the
relevant Bank or the Paying Agent (as applicable) receives the full
amount which would otherwise have been received by it if the relevant
deduction or withholding had not been made. AMD Saxonia shall be obliged
to furnish the Paying Agent, with a copy to the Agent, immediately with
copies of all the relevant documents
32
confirming that the amount deducted or withheld has been paid to the
relevant tax or other authority in the full amount.
13.2 If AMD Saxonia becomes aware that deductions or withholdings within the
meaning of 13.1 are required, AMD Saxonia shall notify the Paying Agent,
with a copy to the Agent, immediately giving details and information
relating to the relevant regulations.
13.3 If any Bank receives the benefit of a tax credit or a relief or remission
of tax resulting from the receipt of any additional amount under ss. 13.1
such Bank shall promptly reimburse to AMD Saxonia such part of that
benefit as will leave such Bank after such payment in no more and no less
favourable a position than would have applied if no such benefit or
relief had been received. The relevant Bank shall be obliged to take all
reasonable steps to claim such credit, relief or remission from or
against its tax liabilities even if this results in an obligation to make
a reimbursement to AMD Saxonia. The Banks shall not, however, be obliged
to permit AMD Saxonia to inspect its books in connection with the
obligation referred to above nor to take any particular steps in relation
to their tax affairs.
13.4 No additional amount will be payable to a Bank under ss. 13.1 to the
extent that such additional amount becomes payable as a result only of a
change in the Lending Office of the relevant Bank, unless (i) such change
is requested by AMD Saxonia, or (ii) under the relevant laws,
regulations, treaties or rules in effect at the time of the change in
Lending Office, such additional amount would not have been payable.
13.5 If AMD Saxonia is obliged to pay an additional amount under ss. 13.1, AMD
Saxonia may prepay in whole (but not in part) (without prejudice to ss.
12.1) the amount made available to it under this Agreement by the
affected Bank, on AMD Saxonia giving not less than five Banking Days'
prior written notice to the Paying Agent (with a copy to the Agent) and
the affected Bank, provided that such notice is given within thirty (30)
days of AMD Saxonia becoming aware that it would be obliged to pay such
amount; prepayments under this ss. 13.5 shall not be permitted after the
expiry of such period. The liability of such Bank to make any further
advances available to AMD Saxonia shall be cancelled on the giving of
such notice.
ss. 14
Continuity Clause
European Economic and Monetary Union anticipates the introduction of a single
currency and the substitution of the national currencies of Member States
participating in such 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 such 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 such Monetary Union shall give rise to any right to terminate
prematurely, contest, cancel, rescind, modify, or renegotiate this Agreement or
any of
33
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; in particular, interest rates which have
been set for an interest period shall remain unchanged for such interest period,
subject to any mandatory provisions.
ss. 15
Representations and Warranties
15.1 AMD Saxonia represents and warrants to the Banks as follows:
15.1.1 AMD Saxonia is a duly organised and existing Limited Partnership; each
of AMD Holding and AMD Admin is a duly organised and existing limited
liability company (Gesellschaft mit beschankter Haftung) under the laws
of the Federal Republic of Germany. AMD Saxony LLC is a duly organised
and existing limited liability company under the laws of the State of
Delaware, United States of America;
15.1.2 each AMD Company has taken all necessary steps and obtained all
necessary consents to enter into legally binding obligations pursuant
to the Operative Documents and the Security Documents and to exercise
its respective rights thereunder;
15.1.3 the certified Commercial Registry extracts furnished to the Agent and
the notarially certified articles of association of AMD Saxonia, AMD
Admin and AMD Holding, and a copy of the Certificate of Formation of
AMD Saxony LLC, certified by the Secretary of State of the State of
Delaware, the Conversion Documents and the other documents to be
furnished pursuant to ss. 16.5 reflect in all respects the actual
position existing on the date furnished to the Agent;
15.1.4 the execution of the Operative Documents by each of the AMD Companies
and the compliance by each of them of their obligations thereunder and
the exercise by each of them of their rights thereunder:
(i) do not violate any provision of applicable law, any judgment
or any requirements or any approvals of any authority or the
like or contractual obligations applicable to them or any
other obligations;
(ii) will not result in the termination or acceleration of any of
their other respective obligations;
(iii) will not result in an obligation of any of them to create or
grant any security in favor of any third party, save as
contemplated in the Security Documents or in this Agreement.
15.1.5 All Operative Documents entered into by the AMD Companies constitute
the legally valid and binding obligations of AMD Saxonia, AMD Holding,
AMD Saxony LLC, AMD Admin, and/or AMD Inc., respectively, enforceable
in accordance with their terms, subject, however, to the Opinion
Reservations. For this purpose, "Opinion Reservations" means
limitations on the enforceability of legal documents which are subject
to German law or the law of the United States of America or one of its
states to the extent that in
34
respect of these circumstances qualifications are expressly made in the
legal opinions which were furnished to the Agent pursuant to ss. 5.1.11
and which were approved by the Agent or in the legal opinions delivered
to and accepted by the Agent under and pursuant to one of the Amendment
Agreements to the Loan Agreement dated 6 February, 1998, 29 June, 1999,
20 February, 2001 and 3 June 2002. The granting of the security
pursuant to ss. 8.1.1 to ss. 8.1.28 (inclusive) will be effective to
grant to the Security Agent and / or the Banks a first priority
security interest in each case, subject to retentions of title
permitted in accordance with this Agreement. At the date of entering
into this Agreement, AMD Saxonia does not own any real property, save
for the real property referred to in ss. 8.1.6;
15.1.6 The audited consolidated financial statements of AMD Holding and the
audited financial statements of AMD Saxonia each as at 31 December 1996
which have been furnished to the Agent, together with the relevant cash
flow statements as at such date were, and the financial statements to
be delivered pursuant to ss. 16.2.1 will be, prepared in accordance
with generally accepted accounting principles consistently applied; in
accordance with these principles they fairly represent, and, in the
case of the financial statements to be delivered pursuant to ss.
16.2.1, will fairly represent, the consolidated financial position of
AMD Holding and AMD Saxonia respectively without qualification and make
provision for all material indebtedness and other liabilities, actual
or contingent, of AMD Holding and AMD Saxonia save to the extent set
out in Schedule 15. Since their respective dates of organisation, there
has been no material adverse change in the business or financial
position of AMD Saxonia, AMD Admin, (prior to a Substitution) AMD
Saxony LLC and AMD Holding;
15.1.7 The audited financial statements of AMD Saxonia to be delivered in
accordance with ss. 5.1.8 (iii) and ss. 16.2.2 were prepared in
accordance with generally accepted accounting principles consistently
applied. They are in accordance with those principles, true and
accurate in all material respects and fairly represent the financial
position of AMD Saxonia without qualification; in particular, provision
has been made for all material indebtedness and all other liabilities,
actual or contingent. Since the date of the latest audited accounts
there has been no material adverse change in the business or financial
position of AMD Saxonia;
15.1.8 There are no actions, suits, proceedings, claims or disputes or
administrative proceedings pending or threatened against AMD Saxonia,
AMD Saxony LLC (prior to a Substitution), AMD Admin or AMD Holding or
the assets or other sources of income of AMD Saxonia, AMD Saxony LLC
(prior to a Substitution), AMD Admin or AMD Holding which if an
unfavourable outcome was reasonably probable, could reasonably be
expected to have a material adverse effect on the financial position of
AMD Saxonia, AMD Saxony LLC (prior to a Substitution), AMD Admin or AMD
Holding;
15.1.9 To the best of its knowledge and belief, no Event of Default in
relation to any of the Operative Documents exists on the Conversion
Effective Date;
35
15.1.10 None of AMD Holding, AMD Saxony LLC (prior to a Substitution), AMD
Admin or AMD Saxonia is insolvent or incapable of paying its debts as
they fall due; none is in liquidation and no steps have been commenced
for the dissolution of any of them;
15.1.11 100% 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) (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.;
15.1.12 The ordinary share capital of AMD Holding has been paid up in full and
that of AMD Saxonia (prior to the Conversion Effective Date) has been
paid up in accordance with the provisions of the Sponsors' Support
Agreement; there have been no repayments of capital. AMD Saxonia has
no equity participations in other companies;
15.1.13 AMD Holding, AMD Saxony LLC, AMD Admin or AMD Saxonia are"Unrestricted
Subsidiaries" and not "Restricted Subsidiaries" within the meaning of
the Loan and Security Agreement of July 13, 1999, as amended, between,
inter alia, AMD Inc. and the Bank of America National Trust and
Savings Association, as agent;
15.1.14 The assets and rights of AMD Saxonia, AMD Saxony LLC, AMD Admin and
AMD Holding are not subject to encumbrances nor has any security been
granted in favor of third parties in respect thereof save in respect
of customary retention of title in favor of suppliers agreed in the
ordinary course of business. No agreements with respect to extended or
prolonged retention of title nor current account or group retention of
title agreements have been concluded with material suppliers;
15.1.15 The operation and assets of AMD Holding, AMD Saxony LLC, AMD Admin and
AMD Saxonia are fully insured against all risks customarily insured
against by similar businesses and on similar terms. All insurances
have been entered into with first class reputable insurance companies
which are not affiliates of AMD Inc. The insurances in force from time
to time in accordance with the progress of the Project will at a
minimum satisfy the requirements set out in ss. 17.8 and Schedule 22;
15.1.16 AMD Saxonia, AMD Saxony LLC, AMD Admin and AMD Holding have submitted
all necessary tax filings within a reasonable time of the relevant due
date and in any event before penalties attach thereto. None of AMD
Saxonia, AMD Saxony LLC, AMD Admin or AMD Holding is in default in
relation to the payment of any tax claims or any other public law
claims, other than those referred to in ss. 15.1.17, which are due
except for these which are being contested in good faith by
appropriate proceedings and for which proper provision has been made
in accordance with German generally accepted accounting principles or
US GAAP (as applicable). There is no proposed tax assessment against
AMD Saxonia, AMD Saxony LLC, AMD Admin or AMD Holding which would, if
made, have a material adverse effect on the financial position of AMD
Holding, AMD Saxony LLC, AMD Admin or AMD Saxonia, respectively;
36
15.1.17 All governmental or public law approvals, consents and measures
(including those from the European Union) necessary for the proper
implementation of the Project and the compliance by AMD Saxonia, AMD
Saxony LLC, AMD Admin and AMD Holding of their obligations pursuant to
the Operative Documents including in particular all such approvals,
consents and measures necessary to ensure the legally binding nature
of all governmental subsidies and grants in connection with the
Project have been obtained, save for those set out in Part B to
Schedule 20 and there are no grounds to believe that they could be
revoked or cancelled or made subject to material restrictions;
15.1.18 All governmental or public law approvals, consents and measures set
out in Part A of Schedule 20 have been obtained or taken and there is
no reason to believe that (i) the same would be revoked, cancelled,
limited or made subject to conditions of a material adverse nature nor
that (ii) the governmental approvals consents and measures set out in
Part B of Schedule 20 will not ultimately be available on a timely
basis;
15.1.19 The business of each of AMD Saxonia, AMD Saxony LLC, AMD Admin and AMD
Holding is not subject to any unusual limitations of a material nature
which might affect compliance by them of their obligations pursuant to
the Operative Documents;
15.1.20 Neither AMD Saxonia nor AMD Holding has engaged in any business or
operation or incurred liabilities save in connection with their
incorporation, the Project and the Operative Documents. Neither AMD
Saxony LLC nor AMD Admin has engaged in any business or operation or
incurred any liabilities save in connection with their incorporation,
the Conversion Documents and the Operative Documents to which they are
a party;
15.1.21 The factual information furnished by AMD Saxonia, AMD Saxony LLC, AMD
Admin or AMD Holding to the Agent or to the Banks in connection with
any of the Operative Documents or the subject matter thereof
(including the Information Memorandum dated September 1996) is true
and accurate in all material respects and have not become misleading
as a result of the omission of any material fact. All assumptions,
estimates and projections contained therein have been made with due
care and attention; and
15.1.22 AMD Saxonia has not entered into any Material Equipment Supply
Contracts or Material Service Contracts other than those notified to
the Agent in writing, together with copies of the relevant contract or
orders.
15.2 The above representations and warranties (with the exception of the
representation in ss. 15.1.4) shall be deemed repeated in full on the
date of each Drawdown Notice, on the completion of each Project Phase
pursuant to the Project Schedule, the Conversion Effective Date, and
each submission of AMD Saxonia's annual financial statements by
reference to the facts and circumstances then existing.
37
ss. 16
Reporting and Information Requirements
16.1 AMD Saxonia will as soon as possible and in any event within five
Banking Days after becoming aware thereof inform the Agent of the
occurrence of an Event of Default within the meaning of ss. 21 or any
other Event of Default which in the reasonable opinion of an experienced
third party would affect the legal or risk position of the Banks under
this Agreement in a manner which is more than immaterial by notice in
writing setting out the relevant circumstances and describing the
measures within its powers which AMD Saxonia proposes to take in
relation thereto.
16.2 AMD Saxonia undertakes to keep the Agent regularly informed of its
financial affairs during the term of the Facilities. In particular, it
is agreed as follows:
16.2.1 AMD Saxonia will as soon as possible and in any event within sixty (60)
days of the end of each quarter of each financial year or, in the case
of the last quarter of a financial year, within ninety (90) days of such
quarter, furnish the Agent with (i) quarterly financial statements
(balance sheet and profit and loss statement as well as a cash flow
statement) for the relevant quarter and the period of the four preceding
financial quarters including a comparative statement for the four
financial quarters preceding such period together with (ii) a
certificate of compliance in respect of the financial covenants as set
out in Schedule 18, in each case in a form reasonably satisfactory to
the Agent. The quarterly financial statements to be delivered hereunder
shall be prepared in accordance with generally accepted accounting
principles applicable in Germany as consistently applied.
16.2.2 AMD Saxonia will as soon as possible and at the latest within ninety
(90) days after the end of each financial year furnish to the Agent
audited financial statements prepared by the Auditor confirming that the
financial statements are unqualified and including notes to the
statements and a management report, together with an audited cash flow
statement including comparative figures for the preceding financial year
and an updated Management Plan. At the same time, AMD Saxonia will
furnish the Agent with confirmation of the Auditor that the quarterly
financial statements furnished at the end of a financial quarter
correspond with the audited annual financial statements and AMD
Saxonia's books of account (including a reconciliation statement) and
whether the financial covenants set out in Schedule 17 have been
properly calculated and have been complied with in the relevant
financial year, together with a confirmation in accordance with ss.
15.2.
16.2.3 AMD Saxonia will furnish to the Agent, simultaneously with the annual
financial statements and other documents pursuant to ss. 16.2.1 and ss.
16.2.2 written confirmation that as at the end of the relevant balance
sheet date no Event of Default within the meaning of ss. 21.2 has
occurred or, alternatively, which events have lead to such an Event of
Default during the relevant balance sheet period. If such Event of
Default has occurred, written notice thereof in accordance with ss. 16.1
shall be given to the Agent, together with written confirmation that,
except as stated therein, to AMD Saxonia's knowledge no other Events of
Default have occurred.
38
16.2.4 AMD Saxonia will furnish to the Agent immediately after receipt all
reports and similar documents prepared by the auditors or other
independent firms of accountants and which relate to audits undertaken
as of the end of a financial year or any interim audits.
16.2.5 [left intentionally blank]
16.2.6 AMD Saxonia will furnish to the Agent the following:
(i) within thirty (30) days after the end of each calendar quarter a
status report in the form set out in Schedule 8, as amended;
(ii) within sixty (60) days of the end of each quarter of each
financial year, or in the case of the last quarter of a
financial year within ninety (90) day of such quarter and within
ninety (90) days after the end of each Project Phase a Statement
as to the Use and Source of Funds and compliance with the
reimbursement obligations of the AMD Saxonia Wafer Purchase
Agreement in accordance with Schedule 16, as amended, signed by
the Auditor; and
(iii) at the latest by 28 February 2002, a status report as of 31
December 2001 relating to the Project prepared by the Technical
Advisor updating (and in form similar to) the Technical
Appraisal of the Technical Advisor dated 5 October 2000.
16.3 AMD Saxonia will inform the Agent promptly in writing in the event that
production in the Fabrication Facility or research activity in the
Design Center is not undertaken at any time after first commercial
shipment of Products (as defined in the AMD Saxonia Wafer Purchase
Agreement) for a period of more than five (5) successive days or if
legal administrative or arbitration proceedings are instituted or
threatened against AMD Saxonia, AMD Saxony LLC, AMD Admin or AMD Holding
which may have a material adverse affect on the assets or ability of AMD
Saxonia, AMD Saxony LLC, AMD Admin or AMD Holding to comply with their
respective obligations under the Operative Documents.
16.4 AMD Saxonia will inform and keep the Agent informed in a reasonable
manner of all circumstances relating to the operations of AMD Saxonia,
AMD Saxony LLC, and AMD Admin and their respective other activities as
well as its economic situation to the extent required by the Agent or
any Bank or to the extent the same may have a material adverse effect on
the financial position of AMD Saxonia, AMD Saxony LLC or AMD Admin or
the viability of the Project. This obligation also applies to
circumstances affecting any affiliate of AMD Saxonia and which may
materially adversely affect the operations or other activities or
economic position of AMD Saxonia, AMD Saxony LLC or AMD Admin or the
assets which are the subject matter of the Security Documents.
16.5 On any change to the Commercial or Land Registry extracts or the
Conversion Documents furnished to the Agent, AMD Saxonia will promptly
inform the Agent of the relevant event by providing copies of the
documents to be filed with the Commercial or Land Registry or Secretary
of State of the State of Delaware and, following filing, AMD Saxonia
will provide the Agent with certified copies of the new extracts.
39
ss. 17
Covenants
17.1 [left intentionally blank]
17.2 AMD Saxonia will comply in all material respects with all relevant laws
and other regulations and administrative directives applicable to it and
will on a timely basis comply with all reasonable requirements of the
fiscal authorities.
17.3 AMD Saxonia will at all times promptly enforce to the full extent
reasonable all its rights under the Operative Documents and at the
Agent's request will take all reasonable steps to so do. AMD Saxonia
hereby irrevocably appoints the Agent to take all measures and to enter
into all undertakings which the Agent regards as necessary following the
occurrence of an event which entitles the Banks to terminate this
Agreement.
17.4 AMD Saxonia undertakes to complete the Project in accordance with:
(i) the timetable contained in the Project Schedule (save that the
completion date of any Project Phase (other than last) may be
deferred for up to six (6) months in aggregate for all such
deferrals) provided that Completion shall be no later than 31
December 2000; and
(ii) the Plans and Specifications.
17.5 AMD Saxonia will on a timely basis and to the full extent comply with
its obligations pursuant to the Operative Documents and particular, take
all steps to enable AMD Inc. and/or AMD Holding and/or AMD Saxony LLC
and/or AMD Admin to comply with its respective obligations under the
Sponsors' Support Agreement, in particular in connection with the
increase of AMD Saxonia's capital (Haftsummen and Pflichteinlagen) as
well as the contribution of other capital by the Sponsors. If AMD
Saxonia intends not to comply with its obligations pursuant to the
Operative Documents it will immediately inform the Agent thereof in
writing.
17.6 AMD Saxonia will permit the Agent, the Banks' Auditor and the Technical
Advisor as well as all other advisors of the Agent who are bound by a
professional duty of confidence at all reasonable times to inspect its
properties and to examine the financial and other records of AMD Saxonia
and to discuss the affairs of AMD Saxonia, AMD Saxony LLC, AMD Admin and
AMD Holding to the extent relevant to this Agreement and the risk
position of the Banks hereunder with the management and competent
employees. AMD Saxonia will provide unrestricted access to its relevant
records and those of AMD Holding, AMD Saxony LLC and AMD Admin and make
available a reasonable number of copies thereof at reasonable request.
All such inspections and examinations shall be performed in such manner
as not to unreasonably disrupt AMD Saxonia's normal business operations
and its manufacture of the products described in the preamble to this
Agreement.
40
17.7 AMD Saxonia will at all times maintain proper books of account and
prepare its records in accordance with general accepted book keeping and
accounting principles in Germany as consistently applied. The balance
sheet assumptions will be applied consistently by reference to generally
accepted valuation principles.
17.8 AMD Saxonia will at all times maintain insurance which in type (all
buildings, machines, other equipment, stock, business interruption,
third party liability and the like), scope and amount is at least equal
to the insurance cover of a comparable business and which, in addition,
satisfies the requirements of the Operative Documents. In particular,
AMD Saxonia undertakes to maintain the insurances referred to in
Schedule 22 in the scope and on the terms and conditions therein
referred to, save that AMD Saxonia shall be under no obligation to
maintain insurance with respect to the risk of earthquake and floods,
provided that it shall have first furnished to the Agent confirmation
with respect thereto in writing from a third party (acceptable to the
Agent) in form and substance satisfactory to the Banks and the
Guarantors. The persons referred to in Schedule 22 shall be named in all
contracts of insurance as an additional insured and the Security Agent
as "loss payee" in accordance with Schedule 22. At the end of each
financial year, AMD Saxonia will furnish to the Agent a complete list of
the above insurances for the next succeeding financial year giving the
details referred to in Schedule 22 together with confirmation from its
insurance brokers and the Insurance Advisor that AMD's insurance cover
complies with the said requirements.
17.9 AMD Saxonia will construct the Plant and the Design Center in such a way
as will ensure that the Plans and Specifications are complied with.
17.10 AMD Saxonia will at all times ensure that it has obtained and/or taken
and will maintain and/or take on a timely basis all necessary
governmental approvals, permits and measures required for performance by
it of its obligations under the Operative Documents to which it is
party.
17.11 AMD Saxonia will make payment of all fees and other amounts due in
connection with the 65/35 Guaranty promptly. The Guarantors through
their authorized representatives, C&L Deutsche Revision AG, Dusseldorf,
are entitled to payment of one-off and regular fees together with
commitment fees and processing fees in connection with the 65/35
Guaranty in accordance with the following provisions (as a genuine
contract for the direct benefit of third parties):
(i) AMD Saxonia shall after acceptance, and for the duration, of the
65/35 Guaranty pay the following guaranty fees:
on the issue of the guaranty commitment, 0.25% of the
maximum guaranty amount in relation to the guaranteed
indebtedness, whereby the calculation of the fee will
be determined in accordance with the drawdowns (in
accordance with Section 5 of the Guaranty Decision)
so that the fee due on the issue of the documents
relating the Guaranty Decision are calculated only by
reference to the first drawdown and the first fees
due in respect of the following drawdowns are due
when
41
suchdrawdowns are included in the terms of the Guaranty
and/or in the case of special guaranty issues on the
issue of the Guaranty.
following the issue of the guaranty, on 1 April and 1
October of each year in respect of each half year
commencing on such dates, 0.25% of the Guaranty amount
outstanding at such times (the maximum amount referred
to in the Guaranty in respect of the guaranteed
indebtedness less payments of principal).
(ii) AMD Saxonia undertakes to pay the following amounts to the
Guarantors, in the event that the Guarantors shall so request:
on any extension of the guaranty commitment, a
commitment fee up to an amount of 0.25% of the extended
guaranty commitment,
in the event of material amendments to a guaranty which
has been approved but not yet issued, a processing fee
in an amount of up to DM 25,000;
(iii) the processing fee for material amendments to an approved but
unissued guaranty is payable to C&L Deutsche Revision AG,
Dusseldorf to its Account ▇▇. ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Girozentrale, Dusseldorf. Other current fees together with the
commitment fee are payable to C&L Treuarbeit Deutsche Revision AG,
Dusseldorf to their trust account "Bundesminister der Finanzen"
Account No. 30 151 12 at Westdeutsche Landesbank Girozentrale,
Dusseldorf quoting the reference number of the guaranty.
17.12 AMD Saxonia undertakes to comply with and to fulfill all covenants and
other ancillary requirements applicable to it in connection with the
grant of the subsidies. This obligation applies in particular to
covenants and ancillary requirements which are dealt with in the SAB/
Dresdner Subsidy Agreement and the AMD/Dresdner Subsidy Agreement
together with the schedules to these documents. AMD Saxonia also
undertakes to ensure that AMD Companies undertake all steps applicable to
them under the covenants and other ancillary requirements in connection
with the subsidies. AMD Saxonia undertakes furthermore to ensure that all
obligations undertaken by it in connection with the granting of other
state aid (in particular investment allowances) are fulfilled.
17.13 AMD Saxonia undertakes to enter into the Equipment Supply Contracts and
Service Supply Contracts in accordance with the timetable set out in the
Project Schedule and to ensure that equipment or goods delivered pursuant
thereto are subject to retention of title only to the extent customary
and in the ordinary course of business. AMD Saxonia will use its best
endeavors to ensure that retention of title arrangements are not entered
into with material suppliers and in any event that no current account,
group or extended or prolonged retention of title agreements are entered
into. The Equipment Supply Contracts entered into by AMD Saxonia shall
not in the aggregate require the making of
42
advance payments by AMD Saxonia in excess of an aggregate amount of DM
20,000,000.
17.14 AMD Saxonia undertakes to hedge at least 50% of all variable interest
rate advances with interest rate caps with the Agent or other Banks and
to inform the Paying Agent thereof. Any advances for which AMD Saxonia
has elected a fixed interest rate pursuant to ss. 6.3 shall be deemed
hedged for the purposes of this ss. 17.14. All rights arising out of
contracts entered into by AMD Saxonia to hedge interest rate shall be
assigned to the Security Agent in accordance with the Global Assignment
in the form set out in Schedule 47; to the extent an assignment is not
possible, the Banks shall be granted other appropriate security rights.
17.15 AMD Saxonia undertakes that, until satisfaction in full of all claims of
the Banks under this Agreement, it will not, without the consent of the
Agent and, in the case of (ii), (v), (ix) and (x) without the consent of
the Guarantors:
(i) grant in favor of third parties any security as security for its
own obligations or those of a third party save as contemplated or
permitted by the Operative Documents and save for customary
retention of title rights in favor of suppliers permitted pursuant
to ss. 17.13. AMD Saxonia's right to further encumber real
property already subject to land charges in favor of the Banks
shall remain unaffected (ss. 1136 BGB);
(ii) incur indebtedness for borrowed money or incur liabilities save
for such liabilities contemplated in the Operative Documents and
liabilities in the ordinary course of business;
(iii) save in respect of the lease agreement in respect of premises at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇/▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, dated 7/13.08.1996
entered into with Siemens Technopark GmbH Dresden & Co.
Grundstucksverwaltung OHG or any extension thereof, incur any
other obligations as lessee, save to the extent that such
obligations arise under agreements entered into in the ordinary
course of business in connection with the operation of the
Fabrication Facility and of the Design Center and do not exceed in
aggregate more than DM 50,000,000;
(iv) establish any subsidiaries or acquire interests in any other
undertakings or enter into any merger agreements;
(v) dispose of any assets or rights and/or remove such assets from the
location of the Fabrication Facility and the Design Center save to
the extent (a) contemplated by and permitted in the Operative
Documents (b) the disposal is of assets replaced by assets of at
least equal or greater cost in the ordinary course of business
which are acquired within six months of the sale of the original
assets (or such longer period as is reasonably necessary in the
light of the market availability of the relevant asset and
provided that AMD Saxonia has entered into contractually binding
agreements for the replacement of the original assets within three
months of the sale of such assets), or (c) the aggregate book
value of which does not exceed
43
DM 25,000,000 in any calendar year or (d) the disposal is of
assets with an individual acquisition cost of less than DM 50,000
or of stores supplies in the ordinary course of business;
(vi) make any loans to or deposit funds with any third party, purchase
or acquire securities or other financial instruments, save to the
extent the same:
(a) are assets held in the bank accounts charged pursuant to ss.
8 or such other accounts opened with the consent of the
Agent, which are charged to the Banks,
(b) constitute trade credit,
(c) constitute the payment of amounts due under the AMD Saxonia
Wafer Purchase Agreement in respect of deliveries
thereunder, or
(d) are bona fide employee loans which are in aggregate not in
excess of DM 5,000,000,
(e) relate to the payment of amounts in respect of AMD Saxonia's
stated capital which shall be transferred promptly to a
Project Account pursuant to ss. 19, or
(f) are (for the avoidance of doubt) employee salary funds
withheld by AMD Saxonia for employees to acquire stock of
AMD Inc. in connection with an employee stock purchase plan;
(vii) make any payments (i) in connection with 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), (ii) in connection
with claims for distribution-quota (Auseinandersetzungsanspruche),
including but not limited to, any compensation in case of
termination (Auflosung), in particular claims for liquidation
proceeds (Liquidationserlos) and the withdrawal (Ausscheiden) of a
partner; (iii) in connection with a repayment of capital in the
case of a capital reduction (Herabsetzung der Einlage oder der
Pflichteinlage), repayment of capital (Ruckzahlung von Einlagen)
or (iv) in connection with any other pecuniary claims (geldwerte
Forderungen) to AMD Holding, AMD Saxony LLC or AMD Admin or (v) to
make any other payment to AMD Inc. or to any affiliate of AMD
Inc., save to the extent such payments are permitted pursuant to
Section 3 of the Sponsors' Subordination Agreement, in the form
set out in Schedule 30 or Section 6.3 of the Sponsors' Support
Agreement;
(viii) make payments pursuant to the Operative Documents (and, in
particular, not to make any repayment of interest or principal on
the Sponsors' Loans and the Revolving Loans) save in accordance
with the terms of such Operative Documents;
44
(ix) undertake only business compatible with the purpose set out in the
first paragraph of the preamble to this Agreement;
(x) incur any expenditure (including Capital Expenditure) which is not
of the type contemplated in the Operative Documents and which is
not incurred in the ordinary course of business;
(xi) terminate or amend any of the Operative Documents, save for
(a) Equipment Supply Contracts which are not Material Equipment
Supply Contracts;
(b) Service Contracts which are not Material Service Contracts;
(c) amendments to the agreement set out in Schedule 39
(Design/Build Agreement), the Material Equipment Supply
Contracts, the Material Service Contracts and the Plans and
Specifications which adversely affect the value of the
Project, the Fabrication Plant and the Design Center or
their purpose, or the production capacity or other
characteristics required or agreed in the AMD Saxonia Wafer
Purchase Agreement in a manner which is immaterial only and
which are in accordance with the Project Budget and the
Project Schedule are however permitted without the consent
of the Banks;
(d) the Project Budget and the Project Schedule which may be
amended in accordance with the provisions of ss. 18.
(xii) agree to any changes to the AMD Saxonia Partnership Agreement, in
particular changes of its fiscal year, or grant any general powers
of attorney with respect to the business of AMD Saxonia, except as
otherwise permitted in the Operative Documents;
(xiii) enter into any agreement compliance with which would be contrary
to any of the obligations of AMD Saxonia pursuant to the Operative
Documents;
(xiv) [left intentionally blank]
(xv) at any time during the currency of this Agreement manufacture in
any quarter microchip silicon wafers containing microprocessors
other than general purpose microprocessors and related products in
such number as would, prior to Completion, be in excess of 25% or
after Completion, be in excess of 35% of all wafers produced by
AMD Saxonia during the relevant quarter.
17.16 AMD Saxonia undertakes until the satisfaction in full of all claims of
the Banks under this Agreement to ensure that the financial covenants set
out in Schedule 17 are complied with at all times and/or to the extent
AMD Saxonia has no direct influence on compliance with such financial
covenants, to use its best endeavors to ensure that they are so complied
with.
45
17.17 AMD Saxonia undertakes to keep and maintain its fixed and current
assets exclusively within the area of the Plant and Design Center shown
in Schedules 44 and 45.
17.18 [left intentionally blank]
17.19 AMD Saxonia undertakes, as a genuine contract for the direct benefit of
third parties, to permit an examination at any time by the Guarantor or
an authorized representative of the Guarantor as to whether there is
any possibility of a claim being made pursuant to the 65/35 Guaranty or
as to whether circumstances exist or have existed which would make such
a claim possible. AMD Saxonia furthermore undertakes (as a genuine
contract for the direct benefit of third parties) to provide to the
Guarantors all information requested by them in connection with the
65/35 Guaranty. AMD Saxonia is aware that the examination and
information rights referred to above exist also in favor of the Banks,
however, only to the extent such documentation relates to the
guaranteed Facilities. AMD Saxonia hereby relieves and discharges the
Banks from their duty of confidentiality as against the Guarantors and
their authorized representatives, to the extent that the aforesaid
rights in favor of the Banks are exercised. AMD Saxonia undertakes, as
a genuine contract for the direct benefit of third parties, to bear the
costs of all examinations by the Guarantors referred to above.
17.20 [left intentionally blank]
17.21 AMD Saxonia undertakes not to enter into any confidentiality and
non-competition undertakings with its employees, officers or
contracting parties other than in the form agreed with the Agent prior
to entering into this Agreement or save as may be otherwise agreed with
the Agent.
17.22 AMD Saxonia will at the request of the Agent use its best endeavors to
obtain from any contracting parties a Consent and Agreement, to the
extent that such Consent and Agreement is not required to have been
already obtained, for contracts required to be assigned to the Banks in
accordance with this Agreement or the Security Documents, in the form
set out in Part II of Schedule 40 or such other form as shall have been
consented to by the Agent, if the Agent deems the same to be necessary
to ensure the unrestricted continuation of the Project in the event of
enforcement of its security and AMD Saxonia does not demonstrate the
contrary and will make an offer to the Agent enabling it to assume the
contract in accordance with the provisions of ss. 3 of the Security
Document referred to in Schedule 49.
17.23 AMD Saxonia will make borrowings under the Revolving Loan Facility
Agreement (in accordance with the terms thereof):
(i) as and to the extent necessary to comply at all times after 1
July 2001 with the Minimum Liquidity Covenant (taking into
account cash then on deposit in the Project Accounts and Cash
Equivalent Investments (under and as defined in Schedule 23)
then held); and
(ii) as and to the extent and at the times necessary such that AMD
Saxonia shall have sufficient funds to finance its general
corporate funding requirements, taking into
46
account amounts then available for drawing under Facility A
hereunder and other amounts then available to it, including
without limitation amounts theretofore paid to AMD Saxonia under
the AMD Saxonia Wafer Purchase Agreement.
AMD Saxonia undertakes not to reduce or agree to reduce the Total
Revolving Loan Commitment Amount to less than US$750,000,000 (seven
hundred and fifty million US Dollars) without the consent of the Agent.
ss. 18
Project Budget; Project Schedule
18.1 Prior to Completion, the Project will be implemented pursuant to the
Project Budget and the Project Schedule.
18.2 Within fourteen (14) days after the end of each Project Phase described
in the Project Schedule, AMD Saxonia will furnish to the Agent the
Scheduled Project Phase Technical Completion Certificates signed by the
AMD Companies and the Technical Advisor in accordance with Schedules 9
and 10 together with a confirmation pursuant to ss. 15.2. At the same
time, AMD Saxonia will furnish an updated Management Plan approved by
the Sponsors setting out all projected future Capital Expenditure in
connection with the Project. Prior to Completion, AMD Saxonia will
consult and agree with the Agent on a timely basis any amendments or
variations to the Project Budget or the Project Schedule which it
regards as necessary. Project Budgets and Project Schedules amended
with the consent of the Agent, who may consult with the Technical
Advisor, the Auditor and the Banks' Auditors with regard thereto, shall
be regarded as Project Budgets and Project Schedules within the meaning
of this Agreement.
ss. 19
Project Accounts
19.1 AMD Saxonia undertakes to ensure that - without prejudice to ss. 17.15
(vi) (e) - all payments under the Operative Documents or otherwise in
connection with the Project which are made to it or to be paid by it
are effected only through one or more of the accounts maintained with
the Security Agent (such accounts herein referred to as "Project
Accounts").
19.2 Amounts standing to the credit of the Project Accounts may be used only
in the ordinary course of business of AMD Saxonia (including for the
purpose of financing Capital Expenditure), for the settlement of
financing costs and for the repayment of the Facilities, the payment of
interest and the repayment of principal under the Revolving Loan
Facility Agreement (to the extent permitted under the Sponsors'
Subordination Agreement set out in Schedule 30, as amended).
19.3 Cash standing to the credit of the Project Accounts may be invested in
the securities and assets set out in Schedule 23 which shall be
maintained in a custody account maintained solely with the Security
Agent forming part of a Project Account or in other custody accounts
opened with the consent of the Agent and charged to the Banks.
47
19.4 [left intentionally blank].
19.5 The Banks shall be entitled to set off any claims due against AMD
Saxonia against the amount standing to the credit of any of the Project
Accounts; it shall be sufficient for this purpose for the Agent to
issue a declaration of set off.
19.6 All credits securities and assets standing to the credit of the Project
Accounts shall be charged in favor of the Banks as security for their
claims under this Agreement pursuant to ss. 8.
ss. 20
Consent of the Banks
20.1 In all cases in which AMD Saxonia requires the consent of the Agent,
the Security Agent or the Banks pursuant to the provisions of this
Agreement, the Agent, the Security Agent and/or the Banks shall be
entitled to withhold their consent only if the legal or risk exposure
of the Banks would otherwise be affected in a manner which is material.
In this regard circumstances shall be regarded as material which
relate, in particular, to:
(i) the interests of the Banks in receiving payments under this
Agreement and the other Operative Documents in a timely and
complete manner or which would affect their ability to realize
sufficient proceeds from the realization of security;
(ii) the shareholding or capital structure of AMD Inc., AMD Holding,
AMD Admin, AMD Saxony LLC and AMD Saxonia, except in connection
with the Substitution (if any);
(iii) the obligations of the Sponsors, AMD Saxony LLC and AMD Admin
pursuant to the Sponsors' Support Agreement;
(iv) the viability of the Project by reference, in particular, to the
obligations of AMD Inc. under the AMD Holding Wafer Purchase
Agreement and the AMD Holding Research, Design and Development
Agreement in the form set out in Schedule 34 or AMD Holding under
the AMD Saxonia Wafer Purchase Agreement and the AMD Saxonia
Research, Design and Development Agreement in the form set out in
Schedule 36; or
(v) the compliance in full or the ability to comply with the
conditions of the Guaranty Decision, the 65/35 Guaranty and the
AMD/Dresdner Subsidy Agreement.
20.2 Each consent of the Banks shall be in writing. The parties agree that
the consent of the Banks shall not be deemed to have been given unless
expressly given in writing and that consents should be given on a
timely basis taking into account the interests of AMD Saxonia and the
other Banks. The Agent shall be authorized to give such consent unless
such consent relates to the duties of the Paying Agent. In such case,
the Paying Agent may give such consent.
48
ss. 21
Termination of the Facilities by the Banks
21.1 The Banks shall be entitled to terminate the Facilities for good cause,
in whole or in part, and without notice or subject to such notice as
they may determine and,
(i) to refuse to make available to AMD Saxonia advances under the
Facilities and/or
(ii) to require the immediate repayment of all outstanding advances
together with accrued interest and other fees and amounts payable
by AMD Saxonia pursuant to this Agreement and/or
(iii) to require the payment of damages including any loss of profit
pursuant to ss. 12 which the Banks may suffer following
termination between the time of termination and the expiry of the
relevant Interest Period and/or
(iv) to realize the security provided by or on behalf of AMD Saxonia,
21.2 There shall be good cause for termination within the meaning of the
aforesaid ss. 21.1 and of ss. 19 of the General Terms and Conditions of
the Agent, in particular, if any of the following events has occurred
and is continuing and if in the opinion of the Banks, exercising the
standard of care customary in commercial relations, the legal or risk
position of the Banks is materially adversely affected thereby:
(i) AMD Saxonia shall be in default in any payment of interest or
principal under this Agreement for more than three months;
(ii) the information provided by AMD Saxonia in respect of its
financial position is incorrect or incomplete in any material
respect;
(iii) AMD Saxonia, AMD Admin or AMD Holding ceases payment of its
creditors or composition, insolvency or similar proceedings are
applied for in respect of all of the assets of AMD Saxonia, AMD
Admin or AMD Holding or a material part of the assets of AMD
Saxonia, AMD Admin or AMD Holding are subject to mandatory
attachment or AMD Saxonia, AMD Admin or AMD Holding enters into
negotiations with respect to any extra-judicial composition
proceedings;
(iv) AMD Saxonia, AMD Holding or AMD Inc. are in default of any
payment due to the Banks pursuant to the Sponsors' Support
Agreement or any other Operative Document for more than five (5)
Banking Days following receipt of written notice of default;
(v) the Facilities are not used for the purposes set out in ss. 3;
(vi) any representation and warranty pursuant to ss. 15 including any
deemed repetition thereof, was incorrect in any material respect
at the time it was given;
49
(vii) any condition precedent for utilization of the Facilities
pursuant to ss. 5 subsequently ceases to be complied with
without the previous consent of the Banks;
(viii) any of the obligations or covenants pursuant to ss. ss. 17 or
18 are breached, whether or not as a result of action by AMD
Saxonia, and cannot be complied with or remedied or, to the
extent the breach is capable of remedy, the breach is not
remedied within seven (7) Banking Days after the Agent has
given AMD Saxonia written notice thereof;
(ix) AMD Holding, AMD Saxony LLC, AMD Admin or AMD Inc. does not
comply with any material provision of the Sponsors' Support
Agreement, the Sponsors' Loan Agreement in the form set out in
Schedule 29, as amended, the Revolving Loan Facility Agreement
or of any other Operative Documents to which it is a party
and, to the extent, the breach is capable of remedy, and, is
not remedied within seven (7) Banking Days after the Agent has
given written notice thereof; Articles I and III and Sections
4.1, 4.3, 6.2, 13.1 (i) (a) to (d) and (f), 13.1 (iii) and
(iv), 13.2, 13.3, 13.4 (i) to (viii) and (x), 13.5, 13.6 and
13.7 of the Sponsors' Support Agreement shall without
prejudice to the generality of the foregoing be regarded as
material;
(x) if AMD Inc. undertakes a "Stock Offering" within the meaning
of the Sponsors' Support Agreement in the Fiscal Year 1998
and, if permitted under the Indenture referred to in ss. 21.2
(xvi) of this Agreement (without utilizing any of the
provisions contained in the first proviso to Section 4.07 (iv)
thereof), AMD Inc. fails to contribute the full amount of the
"Class C Sponsors Loans" within the meaning of the Sponsors'
Support Agreement forthwith following receipt of proceeds from
the "Stock Offering" referred to above; the events referred to
in (ix) above shall remain unaffected;
(xi) AMD Saxonia is in breach of any material provision of this
Agreement, the Security Documents, the AMD Saxonia Research,
Design and Development Agreement in the form set out in
Schedule 36 or the AMD Saxonia Wafer Purchase Agreement;
(xii) any of the Operative Documents is or becomes invalid or
unenforceable or its validity or enforceability is challenged
by AMD Saxonia, any of the Sponsors, AMD Saxony LLC or AMD
Admin, or the Power of Attorney is revoked by AMD Saxony LLC,
AMD Admin or AMD Holding.
(xiii) receivership, composition or insolvency proceedings against
the assets of the contractor for the Fabrication Facility and
the Design Center or against a supplier are commenced or there
is a material adverse change in the financial position of such
general contractor or such supplier and any such event could
reasonably be expected to have a material adverse effect on
the Project, unless AMD Saxonia has cured the relevant event
by entering into adequate substitute arrangements satisfactory
to the Agent within 45 days;
50
(xiv) a material adverse change in the financial condition of AMD
Saxonia, AMD Holding, AMD Saxony LLC, AMD Admin or AMD Inc., or
AMD Inc. on a consolidated basis, and as result there is likely
to be a material adverse effect on the Project;
(xv) AMD Saxonia, AMD Holding, or AMD Inc. are in default with any
payment obligation in favor of a third party in an aggregate
amount of more than DM 15,000,000, or AMD Saxony LLC (except
with regard to any payment obligation of AMD Saxonia which is a
liability of AMD Saxony LLC by virtue of its general
partnership interest) or AMD Admin are in default with any
payment obligation in favor of a third party in an aggregate
amount of more than Euro 100,000;
(xvi) The occurrence of an "Event of Default" within the meaning of
the Loan and Security Agreement of 13 July 1999, as amended,
between, inter alia, AMD Inc. and Bank of America National
Trust & Savings Association as "Administrative Agent".
(xvii) any action under this Agreement requiring consent is undertaken
without the necessary consent unless the refusal to grant
consent is unlawful or in contravention of the terms of this
Agreement;
(xviii) the insurances to be maintained pursuant to ss. 17.8 are not
maintained in full force and effect;
(xix) any material governmental approvals, consents or permits are
not granted, are revoked or are made subject to conditions or
if any governmental regulations or decrees are passed relating
to the Project which will prejudice the viability of the
Project and which are not either set aside by adequate action
of AMD Saxonia to discharge the effects of such regulations or
decrees or if AMD Saxonia has not suggested a course of action
reasonably satisfactory to the Agent within 30 days thereof;
(xx) any statement made to the Banks by AMD Saxonia, AMD Holding,
AMD Saxony LLC, AMD Admin or AMD Inc. in connection with the
Project is inaccurate or incomplete in any material respect to
the extent that such statement is of material significance for
the viability of the Project or for the compliance by AMD
Saxonia, AMD Holding, AMD Saxony LLC, AMD Admin or AMD Inc.
with its obligations under the Operative Documents;
(xxi) AMD Saxony LLC, AMD Admin and AMD Holding cease to be the sole
partners of AMD Saxonia (except in connection with the
Substitution (if any)), AMD Holding ceases to have a capital
partnership interest (Kapitalanteil) of at least 99.99%
(rounded to two decimal points) in AMD Saxonia, (except in
connection with the Assignment and Trust Agreement), there is
any change in the Euro 250 partnership interest of AMD Admin,
(save in connection with the Substitution (if any)), AMD
Holding or AMD Saxony LLC ceases to be a wholly-owned
51
subsidiary of AMD Inc. or AMD Admin ceases to be a
wholly-owned subsidiary of AMD Holding.
(xxii) AMD Saxonia's ordinary share capital is not fully paid in by
31 December 1997 in an amount of at least DM 217,500,000 or
subordinated shareholder loans or Revolving Loans or equity
are or is, as the case may be, not made available in
accordance with the Sponsors' Support Agreement and/or the
Revolving Loan Facility Agreement;
(xxiii) projections in the current Management Plan (delivered pursuant
to ss. 16.2.2) show that AMD Saxonia will be unable, at any
time during the period from the date of such Management Plan
to 31 December, 2005, to comply with the Minimum Liquidity
Covenant, after taking into account:
(a) the Available Revolving Loan Facility Amount; and
(b) other cash resources available to AMD Saxonia,
unless within 10 Banking Days after receipt of written
notice from the Agent, AMD Inc. provides the Agent with
such evidence as shall be reasonably satisfactory to the
Banks in the exercise of their due discretion with respect
to the ability of AMD Inc. and AMD Saxonia to fund the
amount necessary to ensure compliance with the Minimum
Liquidity Covenant as aforesaid.
(xxiv) the terms or conditions of the 65/35 Guaranty or of the
Guaranty Decision or the Subsidy Agreement are not complied
with or breached or the 65/35 Guaranty is no longer available
in full, or investment or interest grants or investments
subsidies or other material state assistance is not available
in the amount promised and AMD Inc. does not make available
compensation pursuant to the Operative Documents, or AMD
Saxonia, AMD Holding or AMD Inc. breaches the terms and
conditions of other state assistance material to the Project
and as a result thereof it is likely that the same will not be
available in their full amount or are revoked or cancelled;
(xxv) [left intentionally blank]
(xxvi) any of financial covenants set out in Schedule 17 are not
complied with;
(xxvii) the Agent becomes aware that AMD Saxonia has breached any
other material contractual obligations;
(xxviii) other circumstances occur or become known which may prejudice
the ability of AMD Saxonia to repay the Facility;
(xxix) the Agent has not received by 31 March 2000 written
confirmation from the Technical Advisor to the effect that
the conditions required for Completion in the
52
Technical Completion Certificate (Technical Advisor) as set out in
Schedule 10 can be satisfied prior to 31 December 2000;
(xxx) Proceedings shall have been applied for or commenced in respect
of AMD Inc. or AMD Saxony LLC:
(a) seeking (i) to have an order for relief entered, or (ii)
seeking a declaration that AMD Inc. or AMD Saxony LLC is
insolvent or (iii) a declaration or finding, or seeking
dissolution, winding-up, charter revocation or forfeiture,
liquidation, reorganisation, arrangement, adjustment,
composition or other similar relief with respect to AMD Inc.
or AMD Saxony LLC, its assets or its debts under any law
relating to bankruptcy, insolvency, relief of debtors or
protection of creditors, termination of legal entities or
any other similar law now or hereafter in effect; or
(b) seeking appointment of a receiver, trustee, liquidator,
assignee, sequestrator or other custodian for all or any
substantial part of its property in a non-bankruptcy
proceeding and such proceeding shall result in the entry,
making or grant of any such order for appointment; and
(c) which in either of (a) or (b) above are not dismissed within
60 days of the commencement of such proceedings or such
appointment.
(xxxi) AMD Inc. or AMD Saxony LLC shall: voluntarily suspend
transaction of its business, cease payment of its creditors,
make a general assignment for the benefit of its creditors;
apply for or institute any of the proceedings described in ss.
21.2 (xxx) hereof, or (whether or not any such proceeding have
been applied for or commenced) shall consent to or acquiesce in
any such order for relief, declaration, finding or relief
described in ss. 21.2 (xxx), or to the taking of possession by
any such custodian described in ss. 21.2 (xxx) of all or any
substantial part of its property, dissolve, wind-up, revoke or
forfeit its charter (or other constituent documents) or
liquidate itself or any substantial part of its property, or
shall take any corporate or similar action in furtherance of any
of the foregoing.
The Banks shall not be entitled to rely upon any of the aforesaid events if the
circumstances giving rise thereto have been remedied within ten (10) Banking
Days following receipt of written notice from the Agent. This shall not apply to
the events referred to in (i), (ii), (iii), (viii) (ix), (x), (xiii), (xiv),
(xvii), (xviii), (xx), (xxi), (xxii), (xxvi), (xxx) and (xxxi) above. The Agent
will consult with the Guarantors before terminating on the grounds of the Events
of Default referred to in (viii) and (xv) and (xxiii). Termination on the
grounds of the Event of Default referred to in (xxvi) is permitted only in
agreement with the Guarantors.
ss. 22
Agency Provisions
22.1 The Banks have agreed to participate in the profits and risks of the
Facilities in the form of a disclosed consortium. Any joint and several
liability, the Banks is excluded; each Bank is liable only for the
relevant commitment undertaken by it pursuant to ss. 2 and
53
Schedule 1. Each Bank shall immediately inform the Agent in respect of
any breach of the Operative Documents of which it becomes aware. A
corresponding obligation shall apply to the Agent in the performance of
its duties pursuant to ss. 22.3.
22.2 The Agent is acting on behalf of the Banks under this Agreement. The
Banks hereby appoint the Agent to act on their behalf as Agent in
relation to the rights and obligations of the Banks under this
Agreement, with exception of rights and obligations pursuant to ss. 24,
and the other Operative Documents pursuant to the terms thereof under
the following terms and conditions. Each of the Banks hereby
irrevocably authorizes the Agent to give on their behalf all
contractually binding declarations in connection with the
implementation in this Agreement and the other Operative Documents and
to pursue their rights and obligations in accordance therewith. The
Agent shall be exempted from the restrictions of ss. 181 BGB. The Agent
shall be authorized to delegate authority to entities within its group
or to persons subject to a professional duty of confidence and revoke
the same free from any restrictions pursuant to ss. 181 BGB. Dresdner
Bank AG shall in its capacity as house bank pursuant to the Subsidy
Agreements, exercise its rights thereunder exclusively in accordance
with the terms of such agreements.
22.3 In addition, the Agent shall have the following duties:
22.3.1 verification of satisfaction of the conditions precedent pursuant to
ss. 5.
22.3.2 negotiations with AMD Saxonia, the Sponsors, AMD Saxony LLC and AMD
Admin as well as changes and additions to this Agreement and the other
Operative Documents including any changes to the method of payment;
22.3.3 prompt circulation to the Banks of Drawdown Notices submitted by AMD
Saxonia to the Agent (together with confirmation from the Agent that it
has received the documents to be furnished pursuant to ss. 4.1.1 (i) -
(iii) and ss. 4.1.2 (i) - (iii), as the case may be), as well as
circulation to each of the Banks of the documents to be furnished by
AMD Saxonia or in individual cases, required by the Banks or any of
them pursuant to ss. 16 and other information which is required to be
circulated to all the Banks in accordance with the terms of this
Agreement or the Operative Documents;
22.3.4 prompt notification of the Banks of all material circumstances coming
to the attention of the Agent in connection with the implementation of
this Agreement which affect the enforcement of the rights of all or any
of the Banks such as in particular the occurrence of an event pursuant
to ss. 21;
22.3.5 distribution of all requisite information in connection with the 65/35
Guaranty to the Guarantors and consultation with them;
22.3.6 the convening and conduct of meetings of the Banks;
22.3.7 implementation of resolutions of the Banks;
54
22.3.8 monitoring of compliance with the provisions of this Agreement and the
other Operative Documents without prejudice to the obligations of the
Banks pursuant to ss. 22.1, sentence 3;
22.3.9 instruction of, and consultation with, the Technical Advisor, the
Insurance Advisor, the Banks' Auditor and other advisors, for example
lawyers.
22.4 If the Agent issues a material instruction within the meaning of ss.
22.3.4 each Bank, including the Agent, shall be entitled to require the
convening of a meeting of the consortium. In addition, a meeting of the
consortium can be required at any time by 25% of the votes of the
Banks. Convening of the meeting shall be made in writing, by telex or
by fax, setting out the agenda and subject to five (5) Banking Days
notice or in urgent cases with such notice as is appropriate to the
urgency of the matter. Meetings shall take place in Frankfurt am Main
or such other location as is mutually agreed. Resolutions may be passed
by way of written resolution if in the Agent's opinion, given the
nature of the matter to be determined, a written resolution is
appropriate and the Banks do not decline a written resolution procedure
pursuant to the majority of Banks (in accordance with ss. 22.6).
22.5 Each Bank shall have voting rights corresponding to the amounts drawn
under the commitments made available by it, or if the Facilities have
not been drawn, corresponding to its respective commitment pursuant to
ss. 2.1 and Schedule 1. Only those Banks represented in meetings -
including Banks authorized by written proxy on behalf of other Banks -
shall be entitled to vote. In respect of written resolutions, account
shall be taken only of those votes of the Banks whose written response
to the matter to be voted on has been received before the expiry five
(5) Banking Days after dispatch of the resolutions by the Agent and
whether received as an original or by telex or telefax. Abstentions
will not be counted. Resolutions shall be binding on the Agent as
between the members of the consortium inter se.
22.6 Resolutions of the Banks relating to amendments to the provisions of
this ss. 22, changes of the amounts due to the Banks pursuant to the
provisions of this Agreement or any other Operative Agreement, or any
amendment to the due date relating to payment obligations of AMD
Saxonia, the release of the land charge referred to in ss. 8.1.6 or the
waiver - in whole or in part - of rights under the 65/35 Guaranty
require the consent of all the Banks. Resolutions relating to the
termination, in whole or in part of this Agreement or the commencement
of legal proceedings or administration, composition or insolvency
proceedings against AMD Saxonia, AMD Holding, AMD Admin, AMD Saxony LLC
or AMD Inc. or to changes to the Security Documents or the payment
obligations of the Sponsors pursuant to the terms of the Sponsors'
Support Agreement or the release and realization of securities (other
than referred to in the first sentence of this clause) require a
majority of 75% of the votes of the Banks. In addition a majority of
75% of votes of the Banks is required for resolutions which concern:
(i) a decision of the Banks pursuant to ss. 21;
55
(ii) the consent of the Banks to any change of the AMD Saxonia Wafer
Purchase Agreement, the AMD Holding Wafer Purchase Agreement,
the AMD Saxonia Research, Design and Development Agreement
(Schedule 36), the AMD Holding Research, Design and Development
Agreement (Schedule 34), the Management Service Agreement
(Schedule 37) and the License Agreement (Schedule 38);
(iii) the consent of the Banks to any change of the Project Budget or
the Project Schedule or the Drawdown Schedule;
(iv) a change in the Technical Advisor, the Insurance Advisor, the
Auditor, the Banks' Auditor or any other advisor of the Banks,
and
(v) a waiver of any of the conditions to drawing.
Otherwise, resolutions shall be passed with a majority of the votes of
the Banks; this applies in particular to resolutions which concern the
consent of the Banks pursuant to ss. 20 or the approval of the Plans
and Specifications or any changes thereto.
22.7 The Agent undertakes to consult with the other Banks prior to taking
any material decisions or steps pursuant to the terms of this
Agreement. At the request of the Banks, the Agent undertakes to furnish
further information in respect of particular issues and to obtain such
information from the AMD Companies pursuant to ss. 16.4 of this
Agreement or the provisions of the Operative Documents. In urgent
cases, the Agent may make determinations within the proper exercise of
its discretion without obtaining a resolution of the Banks. In such
case, the Agent will immediately inform the other Banks of the measures
taken by it. To the extent that the relevant measures can be revoked
and the Banks pass a resolution for such revocation, the Agent shall
undertake all steps to revoke the measures taken by it.
22.8 Each of the Banks (including the Agent) shall comply with its
obligations under this Agreement and under the other Operative
Documents with the customary care and attention pursuant to ss. 347
HGB. The Agent shall not assume any additional liability in particular
with reference to the legality, enforceability or value of the claims
of the Banks and all the security. Without prejudice to its other
obligations pursuant to this Agreement, the Agent is not obliged on its
own volition to undertake inquiries or investigations with respect to
breaches of this Agreement or as to the existence of any grounds for
termination.
22.9 Each of the other Banks agrees to hold harmless and indemnify the Agent
in respect of all claims or obligations which arise or are asserted
against the Agent in the implementation of this Agreement save to the
extent the same arise from the Agent's gross negligence or wilful
default and to compensate it for expenses incurred and not otherwise
reimbursed. The amount of the indemnity and/or the obligation to
compensate costs shall correspond to the commitments of each of the
Banks in respect of the Facilities. Costs will be paid to the Agent on
first demand in proportion of the commitments of the other Banks.
22.10 Each Bank confirms that it has independently verified the
creditworthiness of AMD Saxonia and the Sponsors and all Operative
Documents and all other documents relating
56
thereto in all respects and independently. If any Bank is of the
opinion that the documents made available to it in connection with the
Operative Documents do not comply with the contractual requirements
such Bank shall be obliged to inform the Agent immediately thereof.
22.11 The Agent is entitled, on giving 60 days' notice, to transfer its
rights and obligations as Agent to the Paying Agent. Resignation by the
Agent from its role as Agent is possible only subject to 60 days'
notice. If the Banks have not passed a resolution with the required
majority (according to ss. 22.6) by the seventh Banking Day before the
end of this period, the Agent shall appoint as its successor a Bank
resident in Germany. The Agent may be dismissed with a majority of at
least 75% of the votes of all the Banks. It shall be a condition of the
Agent's dismissal that the function of the house bank within the
meaning of the Subsidy Agreement and the function of the Paying Agent
is assumed by another bank or financial institution. The Banks will
consult with AMD Saxonia in advance in respect of any change in the
Agent.
ss. 23
Administration of Security
23.1 The Banks hereby irrevocably authorize the Security Agent, free from
the restrictions pursuant to ss. 181 BGB, to enter into all agreements
necessary for the granting of the accessory security. Without prejudice
to the restrictions governing the relationship of the members of the
Bank consortium inter se the Security Agent is further authorized to
enter into all necessary agreements for the granting of security
pursuant to ss. 8 in their name, to amend and to supplement the same
and to exercise all rights of control, administration and disposition
arising under the Security Documents also in relation to the accessory
security in its own name and free from the restrictions set out in ss.
181 BGB. As between the Banks (internally), a resolution passed with a
majority of 75% of the votes of the Banks shall be required in respect
of the release of any security, whether in whole or in part save to the
extent unanimity is required pursuant to ss. 22.6. The Security Agent
shall be released from all restrictions pursuant to ss. 181 BGB in
connection with all action taken in respect of the security.
23.2 The Security Agent shall be authorized to delegate administration of
the security to another financial institution and to undertake all
steps in relation thereto in the name of the other Banks. The
provisions of this ss. 23 shall apply in their entirety to any
successor of the Security Agent. The Security Agent shall be liable to
the other Banks only for the exercise of due care and attention in the
selection of a successor. The Security Agent will inform AMD Saxonia
and the Banks in writing prior to any transfer of its administrative
duties and consult with AMD Saxonia and the Banks concerning the
transfer of such duties. The Security Agent can be dismissed by way of
resolution passed with a majority of 75% of the votes of the Banks
provided that steps are taken to ensure that the administration of the
security is assumed by another bank or financial institution.
23.3 Each Bank shall be entitled at any time to require information from the
Security Agent relating to the administration of the security. Without
prejudice thereto, the Security Agent shall in any event keep the other
Banks informed thereof in accordance with the
57
proper exercise of its discretion. In addition, the provisions of the
German Civil Code relating to the relationship of agents (▇▇.▇▇. 662 et
seq. BGB) shall apply to the relationship between the Security Agent
and the other Banks.
23.4 The Security Agent shall not be liable or responsible for the validity
and enforceability of the Security Documents nor shall the Security
Agent assume any liability as to whether the relevant status of the
security is sufficient to secure the claims of the Banks under this
Agreement. In this context, each Bank shall be responsible for
examining the documentation delivered to it and shall inform the
Security Agent of any concerns it may have so that any such concerns
may be taken account of by a mutually acceptable arrangement.
23.5 The Security Agent will perform its obligations in relation to the
administration of the security with the customary standard of care in
accordance with ss. 347 HGB. The Security Agent shall not bear any
liability in respect of possible shortfalls which may arise as a result
of a breach of their obligations by any of the obligors under the
Security Documents. Each Bank hereby agrees to indemnify and keep
harmless the Security Agent with respect to all claims which may arise
or be made against the Security Agent arising from the proper
acceptance and administration of the security, save to the extent the
same arise from the Security Agent's gross negligence or wilful default
and to indemnify the Security Agent in respect of any costs incurred by
it and not otherwise reimbursed, in each case in proportion in which
the individual commitments of the relevant Banks bear to the
Facilities. The Security Agent shall be reimbursed for all costs on
first demand in accordance with the commitments of the Banks.
23.6 Realization of the security granted pursuant to the Operative Documents
shall be effected to the extent such security is non-accessory security
by the Security Agent in its own name but for the account of the Banks.
The Security Agent is hereby authorized to realize the accessory
security in its own name and in the name and on behalf of the other
Banks.
23.7 The Banks shall agree by way of resolution passed with a majority of
75% of their votes on measures to implement any realization of the
security. However, in urgent cases the Security Agent may make such
decisions unilaterally in accordance with the proper exercise of its
discretion; in such event, the Security Agent will immediately inform
the other Banks of the steps taken. In the event that unanimity is not
be achieved, the Banks will determine the relevant steps to be taken
for realization by way of majority decision (in accordance with ss.
22.6). In all other respects, the conditions for or procedure of
realization of security shall be as set out in the individual Security
Documents.
23.8 Proceeds from the realization of security shall be distributed in the
following order of priority:
(i) in satisfaction of the costs and other expenses of the Agent,
including any taxes incurred by the Agent in the administration
and realization of the security pursuant to its obligations
hereunder;
58
(ii) in payment of accrued interest; and
(iii) in payment of the claims of the Banks under the Facilities in
accordance with this Agreement, and in satisfaction of any other
claims of the Banks under or in connection with the Operative
Documents pro rata in accordance with the outstanding advances of
the Banks.
The Guarantors shall, without prejudice to the first right of
satisfaction in favor of the Banks as security for their shortfall
risk, be subrogated by operation of law to the relevant portion of the
guaranteed claims which is secured pro rata by the security granted in
respect thereof. To the extent the security does not pass to the
Guarantors by operation of law, the same shall be transferred pro rata
to the Guarantors following payment by them.
Any remaining amount not otherwise required out of the proceeds of
realization of the security shall be paid to AMD Saxonia.
Subject to the consent of the Guarantors, the Banks shall be entitled
to amend the above order of distribution at any time.
23.9 AMD Saxonia has agreed to pay to the Security Agent a fee in respect of
the administration of the security by it in an amount and on terms as
to payment set out in a letter of even date between AMD Saxonia and the
Security Agent.
ss. 24
Paying Agent
24.1 The Paying Agent is hereby appointed with the duties of the Paying
Agent in respect of all rights and obligations of the Banks under this
Agreement and the other Operative Documents subject to the following
terms and conditions. The Banks hereby irrevocably appoint the Paying
Agent to do all acts and things in connection with the making of
payments under this Agreement and the other Operative Documents and to
give all necessary statements and declarations in their name and to
enforce and undertake all things on their behalf to the extent the same
have not been delegated to the Agent. The Paying Agent is exempted from
the restrictions of ss. 181 BGB. The Paying Agent is authorized to
delegate authority and to revoke the same free from the restrictions of
ss. 181 BGB.
24.2 The Paying Agent will exercise the standard of care customary in
commercial relations in accordance with ss. 347 HGB in the performance
of its obligations under this Agreement and the other Operative
Documents.
24.3 The Banks hereby undertake to make available the relevant amounts of
advances to be made available by them as requested by the Paying Agent
in accordance with ss. 4 by 11.00 a.m. (London time) at the latest on
the drawdown date and make the same available to the account notified
to them by the Paying Agent. The Paying Agent will make available to
AMD Saxonia the amounts so provided with value for the same day.
59
24.4 The Paying Agent will pay to the Banks all interest, payments of
principal and other payments due to the Banks pursuant to this
Agreement on the relevant due date and to the accounts notified to the
Paying Agent by individual Banks. To the extent that amounts are paid
to the Banks without the Paying Agent having received a corresponding
payment in full from AMD Saxonia on the same day, the Paying Agent may
debit the relevant Bank accordingly.
24.5 AMD Saxonia shall pay to the Paying Agent in respect of the performance
of its duties under this Agreement a fee, the amount and the terms as
to payment of which are set out in a letter of even date from the
Paying Agent to AMD Saxonia.
24.6 The Banks hereby undertake to hold harmless and to indemnify the Paying
Agent against all claims which may arise or be made against the Paying
Agent in connection with the performance of its duties under this
Agreement, save to the extent the same arise from the Paying Agent's
gross negligence or wilful default and to reimburse all expenses borne
by the Paying Agent and not otherwise reimbursed. Each Bank shall
indemnify the Paying Agent and reimburse costs in an amount equal to
the commitment of the relevant Bank under the Facilities. All costs
shall be payable to the Paying Agent on first demand and in accordance
with the commitments of the Banks.
24.7 The Paying Agent may resign on 60 days' notice. If no resolution of the
Banks has been passed by the seventh Banking Day before the expiry of
such notice period in respect of a successor to the Paying Agent with
the required majority (in accordance with ss. 22.6) the Paying Agent
shall be entitled to appoint as its successor a credit institute
domiciled in Germany or Luxembourg. The Paying Agent can be dismissed
by way of resolution passed with a majority of 75% of the votes of the
Banks provided that steps are taken to ensure that the administration
of the security is assumed by another bank or financial institution.
24.8 The department of the Paying Agent shall, with regard to the assumption
of the paying agent's duties for the Banks, be regarded as a entity
separate from the Paying Agent's other departments.
ss. 25
Costs
25.1 AMD Saxonia shall bear all expenses, fees and other external costs
incurred by the Agent, the Paying Agent and the Security Agent in
connection with the preparation, amendment and implementation of the
Operative Documents and the granting of the security and/or perfection
including in particular the reasonable costs of the Technical Advisor,
the Insurance Advisor and the Banks' Auditor and the reasonable fees,
costs and expenses of auditors and lawyers instructed by the Agent in
connection with the verification, valuation, administration and
realization of the security or otherwise in connection with the
Operative Documents. AMD Saxonia's obligations to reimburse costs shall
also remain unaffected in those cases in which the Banks have paid the
costs of the parties referred to above pursuant to such Banks'
obligations to indemnify or otherwise reimburse such costs.
60
25.2 In the event of any payment received by a Bank either as a result of
set off by such Bank or by AMD Saxonia or as a result of any other
performance by AMD Saxonia as a result of which such Bank's claims are
paid in excess of the proportion due to it in respect of its
commitments in ss. 2 and Schedule 1, such Bank shall be obliged to make
a payment to the Paying Agent for the account of the other Banks such
as to place such other Banks in the position they would have been in
had they received payment in proportion to their Commitments pursuant
to ss. 2 and Schedule 1. To the extent any Bank pays such excess amount
to the other Banks, such Bank shall have a claim against AMD Saxonia in
an amount equal to the excess. This provision shall apply to any
payment received from or on account of AMD Saxonia. This provision does
not, however, apply in favor of a Bank which declined to participate in
proceedings initiated by the other Banks which have led to successful
claims being made under the Operative Documents. If any Bank is obliged
to repay to AMD Saxonia any amount received from any of the other
Banks, the other Banks shall be obliged to repay the amounts received
by them to the Bank obliged to repay.
ss. 26
Assignment; Sub-participations
26.1 The Banks are not entitled prior to 1 July 2001 to assign, whether in
whole or in part, their rights under this Agreement. Assignments and
sub-participations to affiliated companies within the meaning of ss. 15
of the Stock Corporation Act are permitted at any time - to the extent
not made by a Bank in Germany to an enterprise outside Germany - as
well as assignments to third parties following termination of this
Agreement. After 1 July 2001, the Banks are entitled to assign their
rights and claims under this Agreement with the consent of AMD Saxonia
and the Agent, which consent may be withheld only for good cause. Each
Bank is entitled moreover at any time to grant sub-participations to
other banks or credit institutions in an amount up to 50% of its
respective commitment on and subject to the following terms and
conditions:
(i) sub-participations require the consent of AMD Saxonia and the
Agent. Consent may be withheld only for good cause;
(ii) the sub-participant shall not be granted rights as against AMD
Saxonia or as against the other Banks and no contractual
relationship between the sub-participant, AMD Saxonia or the
other Banks shall be permitted to exist;
(iii) implementation of this Agreement shall be effected exclusively
as between AMD Saxonia, the Agent and the Paying Agent and/or
the relevant Bank.
ss. 27
Miscellaneous
27.1 The failure by any of the Banks to exercise any of their rights
hereunder, (whether in whole or in part), in particular any failure to
exercise their right to terminate this Agreement, shall not constitute
a waiver by the Banks of such right nor shall they be estopped from
doing so. All rights pursuant to this Agreement shall have effect
61
individually and without prejudice to any other rights at law or under
contract in favor the Banks.
27.2 All amendments and supplements to this Agreement and the other Operative
Documents must be in writing unless they are required by law to be
notarially certified. This requirement shall apply also to any
amendments, release or waiver of the requirement for such written form as
well as all consents of the Banks contemplated under this Agreement.
27.3 The provisions of ss. 22 to 24 and all rights and duties relating thereto
may be amended without the consent of AMD Saxonia this shall not apply to
the provisions set out in the last sentence of each of ss. 22.11 and
ss. 23.2.
27.4 The invalidity or unenforceability of one or more provisions of this
Agreement shall not affect the remaining provisions of this Agreement.
The invalid or unenforceable provision shall be substituted by a
provision which approximates most closely to the economic purpose of the
void or unenforceable provision.
27.5 AMD Saxonia shall not be entitled to assign its rights under this
Agreement to any third party or to dispose of such rights in any other
way without the prior written consent of the Banks.
27.6 Each of the Banks shall inform the Agent with a copy to the Paying Agent
at least five (5) Banking Days prior to any change in its Lending Office.
27.7 All correspondence or notifications under in connection with this
Agreement shall be served personally at the following addresses (or such
other address notified in writing by the recipient to the other party) or
by registered letter, courier or fax:
to the Agent and Paying Agent:
Dresdner Bank Luxembourg S.A.
▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇-▇▇▇-▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Agencies
Facsimile No.: (▇▇▇) ▇▇▇▇ ▇▇▇▇▇
to the Banks:
Dresdner Bank AG
▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇/Frau ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
62
Kreditanstalt fur ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇ - ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
Attention: Herrn ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/Herrn ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇ ▇▇ ▇▇ ▇▇▇▇
DZ BANK AG Deutsche Zentral-Genossenschaftsbank
Am ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Frankfurt am Main
Attention: Herrn ▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇/Frau ▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇
Landesbank Baden-Wurttemberg
▇▇▇▇▇▇▇▇▇▇▇▇. ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Landesbank Sachsen
Girozentrale
▇▇▇▇▇▇▇▇▇▇▇. ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇ ▇▇▇▇▇▇▇/Herrn ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇ ▇▇ ▇▇▇
Bayerische Landesbank
Girozentrale
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Frau ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇▇
HVB Banque Luxembourg Societe Anonyme
▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attention: Frau ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/Frau ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇▇ ▇▇▇▇
BHF-BANK Aktiengesellschaft
Filiale Leipzig
▇▇▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇. ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/Frau ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇▇ ▇▇▇
63
Commerzbank Aktiengesellschaft
Filiale Dresden
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇/Herrn ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Deutsche Postbank ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇-Allee 114-126
53113 Bonn
Attention: Herrn ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇/Herrn ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇▇
Hamburgische Landesbank
- Girozentrale -
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇
IKB Deutsche Industriebank ▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇ ▇▇▇▇▇▇▇▇, Telefax: ▇▇▇▇-▇▇▇▇-▇▇▇▇
Frau Katharina van der Sant, Telefax:
▇▇▇▇-▇▇▇▇-▇▇▇▇
Landesbank Rheinland-Pfalz
- ▇▇▇▇▇▇▇▇▇▇▇▇ -
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ - ▇▇
▇▇▇▇▇ Mainz
Attention: Herrn ▇▇▇▇▇▇ ▇▇▇▇▇▇/Herrn ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇▇ ▇▇ ▇▇▇▇/-2599
ABN AMRO Bank (Deutschland) ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇▇▇
Attention: Frau ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇
Creditanstalt AG
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇-▇▇▇▇ ▇▇▇▇
Attention: Herrn Dr. ▇▇▇▇▇▇ ▇▇▇▇▇/Frau ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇ ▇▇▇▇▇ ▇▇▇▇▇/71191 50730
64
The Sumitomo Mitsui Banking Corporation, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇▇▇ ▇▇▇▇
Facsimile No.: (49) 211 3619 ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇- ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇
Sederanger 4
80538 Munchen
Attention: Frau ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/Frau ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇ ▇▇▇ ▇▇▇▇▇
to AMD Saxonia:
AMD Saxony Manufacturing GmbH
Wilschdorfer ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No: (▇▇) ▇▇▇ ▇▇▇ ▇▇ ▇▇▇
to the Security Agent:
DRESDNER BANK AG
Ostra Allee 9
01067 Dresden
z. Hd.: Herrn ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇/Frau ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
27.8 The German language counterpart of this Agreement is binding.
27.9 To the extent this Agreement does not provide to the contrary this
Agreement shall be governed by the General Terms and Conditions of the
Agent set out in Schedule 62, save that all references to a "Bank" shall
be deemed to be references to the "Banks" within the meaning of this
Agreement and all references to a "customer" shall be deemed to be
references to AMD Saxonia.
27.10 All press statements or other announcements relating to this Agreement
shall require the prior written consent of the Agent which consent shall
not be unreasonably withheld. The withholding of consent by the Agent
shall be deemed to be unreasonable to the extent that the disclosure of
information relating to this Agreement is required by any law, regulation
or official requirement or as required by any recognized securities
supervisory authority or securities exchange.
ss. 28
Governing Law
This Agreement shall be governed by the law of the Federal Republic of
Germany.
65
ss. 29
Jurisdiction
The courts of Frankfurt am Main shall have exclusive jurisdiction in respect of
the resolution of all disputes under or in connection with this Agreement.
Frankfurt am Main 11 March 1997
AMD SAXONY MANUFACTURING GMBH
(proposed to be renamed "AMD Saxony LLC & Co KG")
_______________________________
DRESDNER BANK AG
(as Security Agent and Bank)
_______________________________
Other Banks:
KREDITANSTALT FUR WIEDERAUFBAU
_______________________________
_______________________________
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK
_______________________________
_______________________________
LANDESBANK BADEN-WURTTEMBERG
_______________________________
_______________________________
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
_______________________________
_______________________________
BAYERISCHE LANDESBANK GIROZENTRALE
_______________________________
_______________________________
HVB BANQUE LUXEMBOURG SOCIETE ANONYME
_______________________________
_______________________________
BHF-BANK AKTIENGESELLSCHAFT
_______________________________
_______________________________
COMMERZBANK AKTIENGESELLSCHAFT, Dresden Branch
_______________________________
_______________________________
DEUTSCHE POSTBANK ▇▇ ▇▇▇▇
_______________________________
_______________________________
▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇▇▇ -
_______________________________
_______________________________
IKB DEUTSCHE INDUSTRIEBANK AG
_______________________________
_______________________________
LANDESBANK RHEINLAND-PFALZ - GIROZENTRALE -
_______________________________
_______________________________
ABN AMRO BANK (DEUTSCHLAND) AG, Frankfurt
_______________________________
_______________________________
CREDITANSTALT AG, Wien
_______________________________
_______________________________
THE SUMITOMO MITSUI BANKING CORPORATION, Dusseldorf Branch
_______________________________
_______________________________
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇- ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇
_______________________________
_______________________________
DRESDNER BANK LUXEMBOURG S.A.
(as Agent and Paying Agent)
_______________________________
_______________________________
69
Schedule 1
Banks' Commitments
The Banks and their Lending Offices Commitments
▇▇
▇▇▇▇▇▇▇▇ BANK AG,
Dresden ........................................................ 190,909,090.91
KREDITANSTALT FUR WIEDERAUFBAU,
Frankfurt am Main .............................................. 186,363,636.36
LANDESBANK BADEN-WURTTEMBERG,
Stuttgart ...................................................... 181,818,181.82
LANDESBANK SACHSEN - GIROZENTRALE -,
Leipzig ........................................................ 100,000,000.00
BAYERISCHE LANDESBANK - GIROZENTRALE -,
Munchen ........................................................ 90,909,090.91
HVB BANQUE LUXEMBOURG SOCIETE ANONYME,
Luxembourg ..................................................... 90,909,090.91
DZ BANK AG DEUTSCHE ZENTRAL- GENOSSENSCHAFTSBANK,
Frankfurt am Main .............................................. 86,363,636.36
THE SUMITOMO BANK MITSUI BANKING CORPORATION,
Niederlassung Dusseldorf, Dusseldorf ........................... 72,727,272.73
BHF-BANK AKTIENGESELLSCHAFT,
Leipzig ........................................................ 68,181,818.18
COMMERZBANK AKTIENGESELLSCHAFT Filiale Dresden,
Dresden ........................................................ 68,181,818.18
DEUTSCHE POSTBANK ▇▇ ▇▇▇▇
Bonn ........................................................... 68,181,818.18
HAMBURGISCHE LANDESBANK - GIROZENTRALE -,
Hamburg ........................................................ 68,181,818.18
IKB DEUTSCHE INDUSTRIEBANK AG,
Dusseldorf ..................................................... 68,181,818.18
LANDESBANK RHEINLAND-PFALZ - GIROZENTRALE -,
Mainz .......................................................... 68,181,818.18
ABN AMRO BANK (DEUTSCHLAND) AG,
Berlin ......................................................... 45,454,545.46
CREDITANSTALT AG,
Wien ........................................................... 31,818,181.82
SCHEDULE 63-1
The Banks and their Lending Offices Commitments
BAYERISCHE HYPO- UND VEREINSBANK AG,
Munchen ...................................................... 13,636,363.64
----------------
1,500,000,000.00
================