EXHIBIT 10.50(e)
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AMD INC. GUARANTY
(GARANTIEVERTRAG)
DATED 11 MARCH 1997
BETWEEN
ADVANCED MICRO DEVICES, INC.,
AMD SAXONY MANUFACTURING GMBH,
AND
DRESDNER BANK AG
AS AGENT AND SECURITY AGENT
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AMD INC. GUARANTY (GARANTIEVERTRAG)
THIS AMD INC. GUARANTY, dated 11 March 1997, is made by ADVANCED MICRO DEVICES,
INC., a corporation organised and existing under the laws of the State of
Delaware, United States of America, with its chief executive office and
principal place of business at Xxx XXX Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
Xxxxxx Xxxxxx of America ("AMD Inc."), in favour of AMD SAXONY MANUFACTURING
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GMBH, Dresden, registered in the Commercial Register of the Dresden County Court
HRB 13186 ("AMD Saxonia"), and DRESDNER BANK AG ("Dresdner"), as Agent (in such
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capacity, the "Agent") for the Banks under the Loan Agreement and as Security
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Agent (in such capacity, the "Security Agent") for the Secured Parties under
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such Loan Agreement.
WHEREAS, AMD Saxonia, a wholly-owned Subsidiary (such and other capitalised
terms being used herein with the meanings provided in Section 1.1) of AMD Saxony
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Holding GmbH, domiciled in Dresden, registered in the Commercial Register of the
Dresden County Court HRB 13931 ("AMD Holding"; and, together with AMD Inc.,
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collectively, the "Sponsors"), which is, in turn, a wholly-owned Subsidiary of
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AMD Inc., has been formed for the purpose of constructing, owning, and operating
(i) the Plant and (ii) the integrated Design Center (the construction,
ownership, and operation of the Plant and the Design Center being hereinafter
called the "Project");
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WHEREAS, in order to finance the construction of the Plant and the Design
Center, and start-up costs of the operation of the Plant, (i) the Sponsors
expect to make substantial subordinated loans to, and AMD Holding expects to
make substantial equity investments in, AMD Saxonia, and (ii) AMD Saxonia has
entered into a Syndicated Loan Agreement, dated 11 March 1997 (the "Loan
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Agreement"), with the banks from time to time party thereto (hereinafter
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collectively called the "Banks" and individually called a "Bank"), Dresdner, as
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Agent and Security Agent, and Dresdner Bank Luxembourg S.A., as Paying Agent (in
such capacity, the "Paying Agent"), providing, inter alia, for two separate
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senior secured term and standby facilities aggregating up to DM1,650,000,000
(one billion six hundred fifty million Deutsche Marks);
WHEREAS, AMD Inc. desires that the Project be constructed and completed and is
executing and delivering this Guaranty in favour of AMD Saxonia, the Agent and
the Security Agent for the benefit of the Banks and the Paying Agent (the Agent,
the Security Agent, the Banks and the Paying Agent hereinafter collectively
called the "Secured Parties" and individually called a "Secured Party"), for the
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purpose, among other things, of providing (i) certain assurances with respect to
the completion of the Project, and (ii) certain undertakings to and for the
benefit of AMD Saxonia and the Secured Parties;
WHEREAS, a condition precedent to the initial Advance is, inter alia, the
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execution by AMD Inc. of this Guaranty, and, in extending credit to AMD Saxonia
under the Loan Agreement, the Banks are relying on the undertakings of AMD Inc.
contained herein;
WHEREAS, AMD Inc. has duly authorized the execution, delivery, and performance
of this Guaranty; and
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WHEREAS, it is in the best interests of AMD Inc. to execute this Guaranty
inasmuch as AMD Inc. will derive substantial benefits from the loans and other
financial accommodations made from time to time to AMD Saxonia by the Banks
pursuant to the Loan Agreement;
NOW, THEREFORE, in order to induce the Banks to make the loans and other
financial accommodations to AMD Saxonia pursuant to the Loan Agreement, AMD Inc.
hereby agrees, for the benefit of AMD Saxonia and the Secured Parties, as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Definitions. Unless otherwise defined herein, terms used herein
have the meanings assigned to such terms in the Sponsors' Support Agreement. In
addition, the following terms (whether or not underlined) when used in this
Guaranty, including its preamble and recitals, shall, except where the context
otherwise requires, have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):
"Agent" has the meaning assigned to such term in the introduction to this
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Guaranty.
"AMD Holding" has the meaning assigned to such term in the first recital of
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this Guaranty.
"AMD Inc." has the meaning assigned to such term in the introduction to
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this Guaranty.
"AMD Saxonia" has the meaning assigned to such term in the introduction to
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this Guaranty.
"Bank" and "Banks" have the respective meanings assigned to such terms in
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the second recital of this Guaranty.
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"Dresdner" has the meaning assigned to such term in the introduction to
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this Guaranty.
"Guaranty" means this AMD Inc. Guaranty, as the same may at any time be
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amended or modified in accordance with the terms hereof and in effect.
"Loan Agreement" has the meaning assigned to such term in the second
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recital of this Guaranty.
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"Obligations" means all obligations of AMD Holding to AMD Saxonia or any
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Secured Party under or arising out of (i) the AMD Saxonia Wafer Purchase
Agreement, (ii) the AMD Saxonia Research Agreement, (iii) the Management Service
Agreement, (iv) the License Agreement, and (v) each other Operative Document to
which AMD Holding is or is to be a party other than (v) the Sponsors' Support
Agreement, (w) the Sponsors' Guaranty, (x) the AMD Holding Wafer Purchase
Agreement, (y) the AMD Holding Research Agreement, and (z) the AMD Holding
Security Documents.
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"Paying Agent" has the meaning assigned to such term in the second recital
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of this Guaranty.
"Project" has the meaning assigned to such term in the first recital of
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this Guaranty.
"Security Agent" has the meaning assigned to such term in the introduction
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to this Guaranty.
"Secured Parties" and "Secured Party" have the respective meanings assigned
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to such terms in the third recital of this Guaranty.
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"Sponsors" has the meaning assigned to such term in the first recital of
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this Guaranty.
"Sponsors' Support Agreement" means the Sponsors' Support Agreement, of
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even date herewith, between the Sponsors, the Agent, and the Security Agent, as
the same may at any time be amended or modified in accordance with the terms
thereof and in effect.
SECTION 1.2 Miscellaneous. In this Guaranty, unless the context requires
otherwise, (i) any reference to an Operative Document shall be to such Operative
Document as the same may have been or from time to time may be amended, varied,
re-issued, replaced, novated, or supplemented, in each case, in accordance with
the terms thereof and hereof, and in effect; (ii) any statutory provisions shall
be construed as references to those provisions as amended, modified, re-enacted,
or replaced from time to time; (iii) words importing a gender include every
gender; and (iv) references to Sections are to Sections of this Guaranty.
Section headings are inserted for reference only and shall be ignored in
construing this Guaranty.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1 Guaranty. AMD Inc. hereby absolutely, unconditionally, and
irrevocably (all of the following guaranteed and indemnified obligations being
collectively called the "Guaranteed Obligations")
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(a) guarantees the full and punctual payment and performance when due,
whether at stated maturity, by required prepayment, declaration,
acceleration, demand, or otherwise, of all Obligations of AMD Holding
now or hereafter existing, whether for principal, interest, fees,
expenses, or otherwise, howsoever created, arising, or evidenced,
whether direct or indirect, absolute or contingent or now or hereafter
existing or due or to become due (including in all cases all such
amounts which would become due but for the operation of the automatic
stay under Section 362(a) of the United States Bankruptcy Code, 11
U.S.C. '362(a), and the operation of Sections 502(b) and 506(b) of the
United States Bankruptcy Code, 11 U.S.C. (S)502(b) and (S)506(b)), and
(b) indemnifies and holds harmless AMD Saxonia and each Secured Party for
any and all costs and expenses (including reasonable attorney's fees
and expenses) incurred by AMD Saxonia, or such Secured Party, as the
case may be, in enforcing any rights under this Guaranty.
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This Guaranty constitutes a guaranty of payment and performance when due and not
of collection, and AMD Inc. specifically agrees that it shall not be necessary
or required that AMD Saxonia, the Security Agent, the Agent, the Paying Agent,
or any Bank exercise any right, assert any claim, or demand or enforce any
remedy whatsoever against AMD Holding (or any other Person) before or as a
condition to the obligations of AMD Inc. hereunder. For the avoidance of doubt,
the obligations of AMD Inc. under this Guaranty constitute a primary guaranty
obligation (Garantievertrag) and not a surety guaranty obligation (Burgschaft).
Notwithstanding any term or provision of this Guaranty to the contrary, (i) the
provisions of Section 13.6 of the Sponsors' Support Agreement shall be
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applicable to this Guaranty mutatis mutandis, and (ii) AMD Inc. shall not be
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exposed to double exposure under this Guaranty, on the one hand, and the AMD
Holding Wafer Purchase Agreement or the AMD Holding Research Agreement, as the
case may be, on the other hand, with respect to any Guaranteed Obligations
arising under the AMD Saxonia Wafer Purchase Agreement or the AMD Saxonia
Research Agreement, as the case may be, to the extent, but only to the extent,
that such Guaranteed Obligations correspond to obligations of AMD Inc. to AMD
Holding under the AMD Holding Wafer Purchase Agreement or the AMD Holding
Research Agreement, as the case may be, which have been or concurrently are
being performed in accordance with the terms thereof; it being understood and
agreed that only one recovery shall be allowed by the Secured Parties in respect
of the foregoing, and (iii) AMD Inc. shall have no liability hereunder for any
failure of AMD Holding to comply with its obligations under the Sponsors'
Subordination Agreement or the License Agreement to the extent, but only to the
extent, that such failure occurs after the Agent or the Security Agent has
enforced its rights under the Security Documents. Subject to the foregoing, AMD
Inc. shall pay the Guaranteed Obligations upon a demand in writing from the
Agent or AMD Saxonia following a default by AMD Holding in the performance of
any Guaranteed Obligation (taking into account any applicable grace period).
SECTION 2.2 EMU. European Economic and Monetary Union anticipate the
introduction of a single currency and the substitution of the national
currencies of Member States participating in Monetary Union. On the date on
which the Deutsche Xxxx is replaced by the single currency, conversion into such
currency shall take effect. The denomination of the original currency shall be
retained for so long as this is legally permissible. Conversions shall be based
on the officially fixed rate of conversion. Neither the introduction of the
single currency nor the substitution of the national currencies of the Member
States participating in European Monetary Union nor the fixing of the official
rate of conversion nor any economic consequences that arise from any of the
aforementioned events or in connection with European Monetary Union shall give
rise to any right to terminate prematurely, contest, cancel, rescind, modify, or
renegotiate this Guaranty or any of its provisions or to raise any other
objections and/or exceptions or to assert any claims for compensation. This
Guaranty shall continue in full force and effect in accordance with its terms.
SECTION 2.3 Guaranty Absolute. This Guaranty shall in all respects be a
continuing, absolute, unconditional, and irrevocable guaranty of payment, and
shall remain in full force and effect until all Advances under the Loan
Agreement have been repaid in full, and the commitments of the Banks under and
in connection with the Operative Documents shall have terminated. AMD Inc.
guarantees that, subject to Section 2.1, the Guaranteed Obligations will be paid
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and performed strictly in accordance with the terms of the Operative Document
under which they arise, regardless of any law, regulation, or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of AMD Saxonia, the Security Agent, the Agent, or any Bank
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with respect thereto. The liability of AMD Inc. under this Guaranty shall be
continuing, absolute, unconditional, and irrevocable irrespective of:
(a) any lack of validity, legality, or enforceability of any Operative
Document;
(b) the failure of AMD Saxonia, the Security Agent, the Agent, the Paying
Agent, or any Bank
(i) to assert any claim or demand or to enforce any right or remedy
against AMD Holding or any other Person (including any other
guarantor) under or in connection with the provisions of any
Operative Document, or otherwise, or
(ii) to exercise any right or remedy against any other guarantor of,
or collateral securing, any Guaranteed Obligations;
(c) any change in the time, manner, or place of payment or performance of,
or in any other term of, all or any of the Guaranteed Obligations, or
any other extension, compromise, or renewal of any Guaranteed
Obligation;
(d) any reduction, limitation, impairment, or termination of any Guaranteed
Obligations for any reason, including any claim of waiver, release,
surrender, alteration, right of retention or compromise, and shall not
be subject to (and AMD Inc. hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment, or termination whatsoever
by reason of the invalidity, illegality, non-genuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence
affecting, any Guaranteed Obligations;
(e) any amendment to, rescission, waiver, or other modification of, or any
consent to departure from, any of the terms of any Operative Document;
(f) any addition, exchange, release, surrender, or non-perfection of any
collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by AMD Saxonia, the
Security Agent, the Agent, the Paying Agent, or any Bank securing any
of the Guaranteed Obligations; or
(g) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, AMD Holding, any surety (Bhrge), or
any guarantor.
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SECTION 2.4 Reinstatement, etc. AMD Inc. agrees this Guaranty shall continue
to be effective or be reinstated, as the case may be, if at any time any payment
(in whole or in part) of any of the Guaranteed Obligations is rescinded or must
otherwise be restored by AMD Saxonia or any Secured Party, upon the insolvency,
bankruptcy, or reorganization of AMD Holding, or otherwise, as though such
payment had not been made.
SECTION 2.5 Waiver, etc. AMD Inc. hereby waives promptness, diligence, notice
of acceptance, and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that AMD Saxonia, the Security
Agent, the Agent, or any Bank protect, secure, perfect, or insure any security
interest or lien, or any property subject thereto, or exhaust any right or take
any action against AMD Holding or any other Person (including any other
guarantor) or any collateral securing any Guaranteed Obligations. AMD Inc.
hereby further waives its right to deposit (Hinterlegung) under (S)372 of the
German Civil Code.
SECTION 2.6 Subrogation, etc. AMD Inc. will not exercise any rights which it
may acquire by reason of any payment made hereunder, whether by way of
subrogation, reimbursement, or otherwise, until all Advances under the Loan
Agreement have been repaid in full, and the commitments of the Banks under or
arising out of the Operative Documents shall have terminated. Any amount paid to
AMD Inc. on account of any payment made hereunder prior to such time shall not
be commingled with assets of AMD Inc. and shall immediately be paid to the
Security Agent and credited and applied against the Guaranteed Obligations in
accordance with the terms of the applicable Operative Document pursuant to which
such Guaranteed Obligations are outstanding; provided, however, that if
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(a) AMD Inc. has made payment to the Security Agent of all or any part of
the Guaranteed Obligations, and
(b) all Advances under the Loan Agreement have been repaid in full and the
commitments of the Banks under or arising out of the Operative
Documents shall have terminated,
AMD Saxonia, the Security Agent, the Agent, the Paying Agent, and each Bank
agree that, at AMD Inc.'s request and expense, AMD Saxonia, the Security Agent,
the Agent, the Paying Agent, or such Bank (as the case may be) will execute and
deliver to AMD Inc. appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to
AMD Inc. of an interest in the Guaranteed Obligations resulting from such
payment by AMD Inc. In furtherance of the foregoing, for so long as any
Advances under the Loan Agreement remain unpaid or the Banks have any
commitments under any of the Operative Documents, AMD Inc. shall refrain from
taking any action or commencing any proceeding against AMD Holding (or its
successors or assigns, whether in connection with a bankruptcy proceeding, or
otherwise) to recover any amounts in respect of payments made under this
Guaranty to AMD Saxonia, the Security Agent, the Paying Agent, the Agent, or any
Bank.
SECTION 2.7 Successors, Transferees, and Assigns. This Guaranty shall:
(a) be binding upon AMD Inc., and its successors, transferees, and assigns;
and
(b) inure to the benefit of and be enforceable by AMD Saxonia and each
Secured Party, and each of their respective successors, transferees,
and assigns.
Without limiting the generality of the foregoing clause (b), (i) AMD Saxonia may
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assign or otherwise transfer (in whole or in part) its rights against AMD
Holding under and in connection with the Operative Documents to the Security
Agent, and (ii) each Bank may assign or otherwise transfer (in whole or in part)
the loans and financial accommodations made by it to AMD Saxonia under the Loan
Agreement to any other Person, and such other Person, for purposes of this
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Guaranty, shall thereupon become vested with all rights and benefits in respect
thereof granted to the transferring Bank under any Operative Document (including
this Guaranty) or otherwise, subject, however, to any contrary provisions in
such assignment or transfer, and to the provisions of Section 26 of the Loan
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Agreement.
SECTION 2.8 Payments Free and Clear of Taxes, etc. AMD Inc. hereby agrees
that:
(a) All payments by AMD Inc. hereunder shall be made to AMD Saxonia as
provided in the Loan Agreement or to the Security Agent at its
principal office in Frankfurt am Main in Same Day Funds, free and clear
of and without deduction for any present or future income, excise
stamp, or franchise taxes and other taxes, fees, duties, withholdings,
or other charges of any nature whatsoever imposed by any taxing
authority on such payments, but excluding taxes imposed on or measured
by AMD Saxonia's, the Security Agent's, the Agent's, the Paying
Agent's, or any Bank's net income or receipts or the net income or
receipts of any branch thereof (such non-excluded items being called
"Taxes"). In the event that any withholding or deduction from any
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payment to be made by AMD Inc. hereunder is required in respect of any
Taxes pursuant to any applicable law, rule, or regulation, then AMD
Inc. will, subject to Section 2.8(d),
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(i) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(ii) promptly forward to AMD Saxonia or the Security Agent, as
applicable, an official receipt or other documentation
satisfactory to AMD Saxonia and the Security Agent evidencing
such payment to such authority; and
(iii) pay to AMD Saxonia and the Security Agent such additional
amount or amounts as is necessary to ensure that the net amount
actually received hereunder by AMD Saxonia, the Security Agent,
the Agent, the Paying Agent, or such Bank, as the case may be,
will equal the full amount AMD Saxonia, the Security Agent, the
Agent, the Paying Agent, or such Bank, as the case may be,
would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against AMD Saxonia, the
Security Agent, the Agent, the Paying Agent, or any Bank with respect
to any payment received by AMD Saxonia or the Security Agent hereunder
(as the case may be), AMD Saxonia, the Security Agent, the Agent, the
Paying Agent, or such Bank may pay such Taxes and AMD Inc. will
promptly pay such additional amounts (including any penalties,
interest, or expenses, but only (in the case of penalties or interest)
to the extent not resulting from a negligent or wilful failure to pay
any or all of such Taxes by AMD Saxonia, the Security Agent, the
Agent, or such Bank, as the case may be) as is necessary in order that
the net amount received by AMD Saxonia, the Security Agent, the Agent,
or such Bank after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount AMD Saxonia, the
Security Agent, the Agent, the Paying Agent, or such Bank would have
received had no such Taxes been asserted.
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(b) The additional amount or amounts that AMD Inc. shall be required to pay
pursuant to clause (iii) of Section 2.8(a) shall be reduced, to the
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extent permitted by applicable law, by the amount of the offsetting tax
benefits, if any, as determined by the relevant recipient of such
payment in the exercise of its sole discretion, which such recipient
actually receives and utilises as a result of AMD Inc.'s payment under
clause (i) of Section 2.8(a) to the relevant authority (it being
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expressly understood and agreed that such recipient shall be required
to use commercially reasonable efforts to claim or utilise any such
benefit which may be available to it unless it believes in good faith
that to do so would be inconsistent with its internal tax and other
policies or if, in its good faith judgment, it would be disadvantaged
in any respect with respect to its tax position or planning).
(c) Subject to the relevant recipient complying with Section 2.8(d) below,
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if AMD Inc. fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to AMD Saxonia or the Security Agent the
required receipts or other required documentary evidence, AMD Inc.
shall indemnify AMD Saxonia, the Security Agent, the Agent, the Paying
Agent, and each Bank for any incremental Taxes, interest, or penalties
that may become payable by AMD Saxonia, the Security Agent, the Agent,
the Paying Agent, or any Bank as a result of any such failure.
(d) Each recipient of a payment that is entitled to claim an exemption
(either on its own account or for the account of AMD Inc.) in respect
of all or a portion of any Taxes which are otherwise required to be
paid or deducted or withheld pursuant to this Section 2.8 in respect of
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any payments made by AMD Inc. hereunder shall, within a reasonable time
after receiving a written request from AMD Inc., provide AMD Inc. with
such certificates as may be appropriate in order to obtain the benefits
of such exemption.
(e) Without prejudice to the survival of any other agreement of AMD Inc.
hereunder, the agreements and obligations of AMD Inc. contained in this
Section 2.8 shall survive the payment and performance in full of all
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Guaranteed Obligations.
SECTION 2.9 Judgment. AMD Inc. hereby agrees that:
(a) If, for the purposes of obtaining a judgment in any court, it is
necessary to convert a sum due hereunder in Deutsche Marks into another
currency, the rate of exchange used shall be that at which in
accordance with normal banking procedures the Security Agent could
purchase Deutsche Marks with such other currency on the Business Day
preceding that on which final judgment is given.
(b) The obligation of AMD Inc. in respect of any sum due from it to AMD
Saxonia, the Security Agent, the Agent, the Paying Agent, or any Bank
hereunder shall, notwithstanding any judgment in a currency other than
Deutsche Marks, be discharged only to the extent that on the Business
Day following receipt by AMD Saxonia, the Security Agent, the Agent,
the Paying Agent, or such Bank, as the case may be, of any sum adjudged
to be so due in such other currency,
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AMD Saxonia, the Security Agent, the Agent, the Paying Agent, or such
Bank, as the case may be, may, in accordance with normal banking
procedures, purchase Deutsche Marks with such other currency; in the
event that the Deutsche Marks so purchased are less than the sum
originally due to AMD Saxonia, the Security Agent, the Agent, the
Paying Agent, or any Bank, in Deutsche Marks, AMD Inc., as a separate
obligation and notwithstanding any such judgment, hereby indemnifies
and holds harmless AMD Saxonia, the Security Agent, the Agent, the
Paying Agent, and each Bank against such loss,and if the Deutsche
Marks so purchased exceed the sum originally due to AMD Saxonia, the
Security Agent, the Agent, the Paying Agent, or such Bank in Deutsche
Marks, AMD Saxonia, the Security Agent, the Agent, the Paying Agent,
or such Bank, as the case may be, shall remit to AMD Inc. such excess.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1 No Waiver; Modifications in Writing. In addition to, and
not in limitation of, Sections 2.3 and 2.5 hereof, no failure or delay on the
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part of AMD Saxonia or the Agent or the Security Agent in exercising any right,
power, or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power, or remedy preclude any
other or further exercise thereof or the exercise of any other rights, power, or
remedy. The remedies provided for herein are cumulative and are not exclusive
of any remedies that may be available to AMD Saxonia or the Agent or the
Security Agent at law, in equity, or otherwise. No amendment, modification,
supplement, termination, or waiver of or to any provision of this Guaranty, or
consent to any departure by AMD Inc. therefrom, shall be effective unless the
same shall be in writing and signed by or on behalf of AMD Saxonia, the Agent,
and the Security Agent. Any waiver of any provision of this Guaranty, and any
consent to any departure by AMD Inc. from the terms of any provision of this
Guaranty, shall be effective only in the specific instance and for the specific
purpose for which given. No notice to or demand on AMD Inc. in any case shall
entitle AMD Inc. to any other or further notice or demand in similar or other
circumstances.
SECTION 3.2 Severability of Provisions. Any provision of this
Guaranty which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. AMD Inc. shall have an obligation to replace any invalid
provision by a valid provision which approximates best the economic purpose of
the invalid provision.
SECTION 3.3 Termination. The obligations of AMD Inc. hereunder shall
terminate on the day that all Advances under the Loan Agreement have been repaid
in full and the commitments of the Banks under or arising out of the Operative
Documents shall have terminated; provided that such obligations shall
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automatically revive and be reinstated if and to the extent that AMD Saxonia
shall subsequently have obligations under or arising out of any of the Financing
Documents.
SECTION 3.4 Binding on Successors, Transferees, and Assigns;
Assignment of Guaranty. In addition to, and not in limitation of, Section 2.7,
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this Guaranty shall be binding upon AMD Inc. and its successors, transferees,
and assigns, shall inure to the benefit of AMD Saxonia, the
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Security Agent, the Agent, the Paying Agent, and each Bank, and their respective
successors, transferees, and assigns, and shall be enforceable by AMD Saxonia
and by the Security Agent, for the benefit of itself, the Agent, and each Bank
and their respective successors, transferees, and assigns (to the full extent
provided pursuant to Section 2.7), in each case subject to Section 26 of the
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Loan Agreement; provided, however, that AMD Inc. may not assign any of
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its obligations hereunder without the prior written consent of the Security
Agent. The rights of the Secured Parties hereunder shall be exercisable solely
by the Security Agent on behalf of the Secured Parties unless either the
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Security Agent is not able pursuant to applicable law to realise the practical
benefits of such rights on behalf of the Secured Parties or the limitation set
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forth in this sentence would otherwise materially adversely affect the rights of
the Secured Parties hereunder.
SECTION 3.5 Notice. All notices, demands, instructions, and other
communications required or permitted to be given to or made upon any of the
Persons listed below shall be in writing and shall be personally delivered or
sent by registered or certified mail, postage pre-paid, return receipt
requested, or by pre-paid telex, TWX, or telegram, or by pre-paid courier
service, or by telecopier, and shall be deemed to be given for purposes of this
Guaranty on the day that such writing is delivered or sent to the intended
recipient thereof in accordance with the provisions of this Section 3.5. Unless
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otherwise specified in a notice sent or delivered in accordance with the
foregoing provisions of this Section 3.5, notices, demands, instructions, and
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other communications in writing shall be given to or made upon the respective
parties hereto at their respective addresses (or to their respective telex, TWX
or telecopier numbers) indicated below.
To the Security Agent:
Dresdner Bank AG, as Security Agent
Xx. Xxxx-Ring 10
01067 Dresden
Attention: Direktion
Facsimile No.: (00) 000 000-0000
To the Agent:
Dresdner Bank AG, as Agent
Xx. Xxxx-Ring 10
01067 Dresden
Attention: Direktion
Facsimile No.: (00) 000 000-0000
To AMD Inc.:
Advanced Micro Devices, Inc.
Xxx XXX Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (1) (000) 000-0000
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To AMD Saxonia:
AMD Saxony Holding GmbH
Washingtonstrasse 16 A/B
01139 Dresden
Attention: Geschaftsfuhrer
Facsimile No.: (00) 000 0000 000
SECTION 3.6 Relationship to Other Agreements. The rights of AMD Saxonia, the
Agent, and the Security Agent pursuant to this Guaranty are in addition to any
other rights or remedies which AMD Saxonia, the Agent, and the Security Agent
may have under statutory law or other agreements between one or more of AMD
Saxonia, the Agent, the Security Agent, the Paying Agent, the Banks, and AMD
Inc. Where such rights and remedies are in conflict with the provisions of this
Guaranty, the provisions of this Guaranty shall prevail.
SECTION 3.7 Setoff. In addition to, and not in limitation of, any rights of
AMD Saxonia, the Security Agent, the Agent, or any Bank under applicable law,
AMD Saxonia, the Security Agent, the Paying Agent, the Agent, and each Bank
shall, upon the acceleration of the Advances under the Loan Agreement following
the occurrence of any Event of Default, or upon the occurrence and during the
continuance of any event with respect to AMD Inc. of the type described in
Section 8.01(f) or (g) of the AMD Inc. 1996 Bank Credit Agreement, have the
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right to appropriate and apply to the payment of the obligations of AMD Inc.
owing to it hereunder, any and all balances, credits, deposits, accounts, or
moneys of AMD Inc. then or thereafter maintained with AMD Saxonia, the Security
Agent, the Paying Agent, the Agent, or such Bank and any and all property of
every kind or description of or in the name of AMD Inc. now or hereafter, for
any reason or purpose whatsoever, in the possession or control of AMD Saxonia,
the Security Agent, the Paying Agent, the Agent, or such Bank, or any agent or
bailee for AMD Saxonia, the Security Agent, the Paying Agent, the Agent, or such
Bank.
SECTION 3.8 Governing Law; etc. This Guaranty and all rights and obligations
of the parties arising under or in connection herewith shall be governed by the
Laws of the Federal Republic of Germany.
SECTION 3.9 Jurisdiction. AMD Inc. hereby submits to the exclusive
jurisdiction of the courts in Frankfurt am Main for any dispute arising out of
or in connection with this Guaranty. AMD Inc. states that Advanced Micro Devices
GmbH whose address is Xxxxxxxxxxxxxxx0x 000x, 00000 Xxxxxx, Xxxxxxx, Tel.: +49
00 000 000, Fax: x00 00 000 000, is its accredited agent for service of process
and hereby undertakes to maintain an agent for service in Germany. The foregoing
submission to jurisdiction shall not (and shall not be construed so as to) limit
the rights of the Agent, the Security Agent or AMD Saxonia to take suits,
actions, or proceedings against AMD Inc. to enforce any judgment rendered by the
courts in Frankfurt am Main in any other court or entity of competent
jurisdiction where AMD Inc. has assets, nor shall the taking of suits, actions,
or proceedings to enforce any such judgment in one or more jurisdictions
preclude the taking of enforcement proceedings in any other jurisdiction,
whether concurrently or not.
SECTION 3.10 Operative Document. This Guaranty is an Operative Document
executed pursuant to the Loan Agreement.
SECTION 3.11 Place of Performance and Payment. The place of performance and
payment (Zahlungs-und Erfhllungsort) under this Guaranty shall be Frankfurt am
Main.
SECTION 3.12 Use of English Language. This Guaranty has been executed in the
English language. All certificates, reports, notices, and other documents and
communications given or delivered pursuant to this Guaranty shall be in the
English language and a certified German translation thereof shall be delivered
promptly thereafter if reasonably requested by the Agent. In the event of any
inconsistency, the English language version of any such document shall control.
ADVANCED MICRO DEVICES, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Its
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12
AMD SAXONY MANUFACTURING GMBH
/s/ Xxxx X. Xxxxxxx
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DRESDNER BANK AG,
as Agent and Security Agent
/s/ Xx. Xxxx-Xxxxxx Xxxxxx /s/ Xxxxx-Xxxxxxxx
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