Exhibit 10.43(o-2)
ACCESSION AGREEMENT AND SECOND AMENDMENT TO
AMD INC. SUBORDINATION AGREEMENT
THIS ACCESSION AGREEMENT AND SECOND AMENDMENT (this "Amendment"),
dated 3 June 2002, is made among ADVANCED MICRO DEVICES, INC., a corporation
organised and existing under the laws of the State of Delaware, United States of
America, with its chief executive office and principal place of business at Xxx
XXX Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America ("AMD Inc.");
AMD SAXONY HOLDING GMBH, Dresden, registered in the Commercial Register of the
Dresden County Court, HRB 13931 ("AMD Holding," together with AMD Inc.,
collectively, the "Sponsors"); AMD SAXONY LLC, a limited liability company
organised and existing under the laws of the State of Delaware, United States of
America ("AMD Saxony LLC"); AMD SAXONY ADMIN GMBH, with its seat in Dresden
("AMD Admin," together with AMD Saxony LLC, collectively, the "Additional
Partner Companies"); DRESDNER BANK LUXEMBOURG S.A., as Agent (and successor to
DRESDNER BANK AG ("Dresdner") in such capacity) under the Loan Agreement dated
11 March 1997, as amended (as so amended, the "Loan Agreement") (in such
capacity, the "Agent") for the Banks from time to time party thereto; and
Dresdner, as Security Agent under such Loan Agreement (in such capacity, the
"Security Agent") for the Secured Parties referred to therein.
W I T N E S S E T H:
WHEREAS, AMD Saxony Manufacturing GmbH, Dresden (proposed to be known
as "AMD Saxony LLC & Co. KG" following the Conversion Effective Date),
registered in the Commercial Register of the Dresden Country Court ("AMD
Saxonia"), has been formed for the purpose of constructing, owning and operating
(i) the Plant and (ii) the integrated Design Center (the construction, ownership
and operation of the Plant and the Design Center hereinafter called the
"Project");
WHEREAS, pursuant to the Conversion Documents, AMD Saxonia proposes to
change its legal form to a Kommanditgesellschaft (a limited partnership
organised under the laws of the Federal Republic of Germany) with AMD Holding
and AMD Admin as its sole limited partners (Kommanditisten) and AMD Saxony LLC
as its sole general partner (Komplementar);
WHEREAS, with effect from the Conversion Effective Date, AMD Saxonia
wishes, with the consent of the Sponsors and Additional Partner Companies to,
among other things, modify the interest rate on Sponsors' Loans and Revolving
Loans and to increase the amount of the Revolving Loan Facility; and
WHEREAS, with effect from the Conversion Effective Date, the
Additional Partner Companies desire to accede to, and the Sponsors, the
Additional Partner Companies, the Agent and the Security Agent desire to amend
and supplement, the AMD Inc. Subordination Agreement dated 11 March 1997 by and
among AMD Inc., AMD Holding, Dresdner Bank AG, as Security Agent, and Dresdner
Bank Luxembourg S.A., as Agent, as amended by the First Amendment to the AMD
Inc. Subordination Agreement dated 20 February, 2001 (as amended,
the "AMD Inc. Subordination Agreement"), on the terms and subject to the
conditions of this Amendment;
NOW, THEREFORE, the Sponsors, the Additional Partner Companies, the
Agent (for itself and on behalf of the Banks), and the Security Agent (on behalf
of the Secured Parties), agree as follows:
ARTICLE I
Accession
Section 1.1 With effect from the Conversion Effective Date, the Additional
Partner Companies hereby accede to the AMD Inc. Subordination Agreement, and the
Sponsors, the Agent and the Security Agent hereby consent to such accession.
ARTICLE II
Definitions
Section 2.1 Definitions. Capitalized terms not otherwise defined in this
Amendment are used with the definitions assigned to them in the AMD Inc.
Subordination Agreement or the Sponsor's Support Agreement, as the case may be.
In addition, the following terms when used in this Amendment shall
have the following meaning:
"Agreed Terms" means, in respect of any document, that document
substantially in the form thereof which has been initialed (for the purposes of
identification) by or on behalf of AMD Saxonia and the Agent.
"Conversion Documents" means the following agreements and documents,
each in the Agreed Terms: (i) the Certificate of Formation of AMD Saxony LLC;
(ii) the AMD Admin Articles of Association; (iii) the Formation Protocol for AMD
Admin; (iv) the Application to the Commercial Register for Formation of AMD
Admin; (v) the Resolution of AMD Holding as Shareholder of AMD Admin for Section
181 German Civil Code Release; (vi) the List of Shareholders for AMD Admin;
(vii) the AMD Saxony LLC Agreement; (viii) the 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; (xx) Application to the Real Estate Register for Change in
AMD Saxonia's
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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."
"Sponsors' Support Agreement" means the Sponsors' Support Agreement
between the Sponsors, the Additional Partner Companies, the Agent and the
Security Agent dated 11 March 1997, as amended by the First Amendment to
Sponsors' Support Agreement dated 6 February 1998, the Second Amendment to
Sponsors' Support Agreement dated 29 June 1999, the Third Amendment to Sponsors'
Support Agreement dated 20 February 2001 and the Accession Agreement and Fourth
Amendment to Sponsors' Support Agreement dated of even date herewith, and as the
same may at any time be amended or modified in accordance with the terms thereof
and in effect.
Section 2.2 Construction. In this Amendment, unless the context requires
otherwise, references to Sections and Schedules are to Sections and Schedules of
the AMD Inc. Subordination Agreement. Section headings are inserted for
reference only and shall be ignored in construing this Amendment.
ARTICLE III
Amendments
Section 3.1 With effect from the Conversion Effective Date, the AMD Inc.
Subordination Agreement will be amended and restated in its entirety in the form
attached as Appendix A.
ARTICLE IV
Miscellaneous
Section 4.1 Representations and Warranties. Each of the Sponsors and Additional
Partner Companies hereby represents and warrants, as of the date hereof and as
of the Conversion Effective Date, that:
(i) Organisation; Corporate Power. It is duly incorporated and validly
existing under the laws of the jurisdiction of its organisation, and has all
necessary power and authority to execute and deliver this Amendment and,
following the Conversion Effective Date, to consummate the transactions
contemplated by the AMD Inc. Subordination Agreement, as amended hereby;
(ii) Corporate Authority; No Conflict. The execution and delivery by it of this
Amendment, and the performance by it, following the Conversion Effective Date,
of its obligations under the AMD Inc. Subordination Agreement, as amended by
this Amendment, have been duly authorised by all necessary corporate action
(including any necessary shareholder action) on its part, and do not and will
not (i) violate any provision of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination, or award presently in effect having
applicability to it, or of its charter or by-laws; or (ii) result in a breach
of, result in a mandatory prepayment or acceleration of indebtedness evidenced
by or secured by, or constitute a default under, any
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indenture or loan or credit agreement, or any other agreement or instrument to
which it is a party or by which it or its properties may be bound, or require
the creation or imposition of any encumbrance of any nature upon or with respect
to any of the properties now owned or hereafter acquired by it; and
(iii) Valid and Binding Obligations. Following the Conversion Effective Date,
the AMD Inc. Subordination Agreement, as amended by this Amendment, shall
constitute its legal, valid and binding obligation, enforceable against it in
accordance with its terms; subject, however, to applicable bankruptcy,
insolvency, reorganisation, moratorium, or similar laws affecting creditors'
rights generally and, as to enforceability, by general equitable principles.
Section 4.2 Miscellaneous.
(i) This Amendment is limited as specified and, except as expressly herein
provided, shall not constitute a modification, amendment or waiver of any other
provision of the AMD Inc. Subordination Agreement or any provision of any other
Operative Document. Except as specifically amended by this Amendment, the AMD
Inc. Subordination Agreement shall remain in full force and effect and is hereby
ratified and confirmed.
(ii) This Amendment shall be an Operative Document under and for purposes of
the Sponsors' Support Agreement.
(iii) This Amendment has been executed in the English language.
(iv) This Amendment may be executed in any number of counterparts and by
different parties on separate counterparts which when taken together shall
constitute one agreement.
(v) Sections 19, 20, and 21 of the AMD Inc. Subordination Agreement shall
apply, mutatis mutandis, to this Amendment, as if set out herein in full.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, each of the parties set out below has
caused this Amendment to be duly executed and delivered by its respective
officer or agent thereunto duly authorised as of the date first above written.
ADVANCED MICRO DEVICES, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Its Senior Vice President and Chief
----------------------------------------
Financial Officer
----------------------------------------
AMD SAXONY HOLDING GMBH
By: /s/ Xxxx-Xxxxxxx Xxxxx
----------------------------------------
Xx. Xxxx-Xxxxxxx Xxxxx
Its Managing Director (Geschaftsfuhrer)
AMD SAXONY LLC
By: /s/ Xxxx-Xxxxxxx Xxxxx
----------------------------------------
Xx. Xxxx-Xxxxxxx Xxxxx
Its Manager
AMD SAXONY ADMIN GMBH
By: /s/ Xxxx-Xxxxxxx Xxxxx
----------------------------------------
Xx. Xxxx-Xxxxxxx Xxxxx
Its Managing Director (Geschaftsfuhrer)
DRESDNER BANK LUXEMBOURG S.A.
as Agent
By: /s/ Xxxxxxxxx
----------------------------------------
Its Signatory under power of attorney
----------------------------------------
DRESDNER BANK AG
as Security Agent
By: /s/ Xxxxxxxxx
----------------------------------------
Its Signatory under power of attorney
----------------------------------------
[Signature page to the Accession Agreement
and Second Amendment to AMD Inc. Subordination Agreement]
5
APPENDIX A
AMENDED AND RESTATED
AMD INC. SUBORDINATION AGREEMENT
A-1
Amended and Restated
AMD INC. SUBORDINATION AGREEMENT
THIS AMD INC. SUBORDINATION AGREEMENT, dated 11 March 1997, as amended, is made
between ADVANCED MICRO DEVICES, INC., a corporation organised and existing under
the laws of the State of Delaware, United States of America, with its chief
executive office and principal place of business at Xxx XXX Xxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America ("AMD Inc."); AMD SAXONY HOLDING
GMBH, Dresden, registered in the Commercial Register of the Dresden County Court
HRB 13931 ("AMD Holding"; and, together with AMD Inc., collectively, the
"Sponsors"); AMD SAXONY LLC, a limited liability company organised and existing
under the laws of the State of Delaware, United States of America ("AMD Saxony
LLC"); AMD SAXONY ADMIN GMBH, with its seat in Dresden ("AMD Admin" and together
with AMD Saxony LLC, collectively, the "Additional Partner Companies"); DRESDNER
BANK LUXEMBOURG S.A., as Agent (and successor to DRESDNER BANK AG ("Dresdner")
in such capacity) under the Loan Agreement referred to below (in such capacity,
the "Agent") and DRESDNER, as Security Agent under such Loan Agreement (in such
capacity, the "Security Agent") for the Secured Parties referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, AMD Saxony Manufacturing GmbH, registered in the Commercial Register of
the Dresden County Court (proposed to be known as "AMD Saxony LLC & Co KG"
following the Conversion Effective Date) ("AMD Saxonia"), has been formed for
the purpose of constructing, owning, and operating (i) the Plant and (ii) the
integrated Design Center (the construction, ownership, and operation of the
Plant and the Design Center being hereinafter called the "Project");
WHEREAS, in order to finance the construction of the Plant and the Design
Center, and start-up costs of the operation of the Plant, (i) the Sponsors have
made substantial subordinated loans to, and AMD Holding has made substantial
equity investments in, AMD Saxonia, and (ii) AMD Saxonia has entered into a
Syndicated Loan Agreement, dated 11 March 1997, as amended (the "Loan
Agreement"), with the banks from time to time party thereto (hereinafter
collectively called the "Banks" and individually called a "Bank"), Dresdner, as
Paying Agent (in such capacity, the "Paying Agent"), providing, inter alia, for
a senior secured term facility aggregating up to DM 1,500,000,000 (one billion
five hundred million Deutsche Marks);
WHEREAS, pursuant to the Conversion Documents, AMD Saxonia has changed its legal
form to a Kommanditgesellschaft (a limited partnership organised under the laws
of the Federal Republic of Germany) with AMD Holding and AMD Admin as its sole
limited partners (Kommanditisten) and AMD Saxony LLC as its sole general partner
(Komplementar);
WHEREAS, the Sponsors and Additional Partner Companies are entering this
Agreement with the Agent and the Security Agent for the benefit of the Banks and
the Paying Agent (hereinafter collectively called the "Secured Parties" and
individually called a "Secured Party"), for the purpose, among other things, of
providing (i) certain assurances with respect to the completion of the Project,
and (ii) certain undertakings to and for the benefit of the Secured Parties; and
WHEREAS, in extending or continuing to extend credit to AMD Saxonia under the
Loan Agreement, the Banks are relying on the undertakings of the Sponsors and
Additional Partner Companies contained herein;
NOW, THEREFORE, the Sponsors, the Additional Partner Companies, the Agent (for
itself and on behalf of and the Banks), and the Security Agent (on behalf of the
Secured Parties), agree as follows:
SECTION 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
Agreement, including its preamble and recitals, shall, except where the context
otherwise requires, have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):
"Additional Partner Companies" has the meaning assigned to such term in
the introduction to this Agreement.
"Agent" has the meaning assigned to such term in the introduction to
this Agreement.
"Agreement" means this AMD Inc. Subordination Agreement, as the same
may at any time be amended or modified in accordance with the terms hereof and
in effect.
"AMD Admin" has the meaning assigned to such term in the introduction
to this Agreement.
"AMD Holding" has the meaning assigned to such term in the introduction
to this Agreement.
"AMD Inc." has the meaning assigned to such term in the introduction to
this Agreement.
"AMD Saxonia" has the meaning assigned to such term in the first
recital of this Agreement.
"AMD Saxony LLC" has the meaning assigned to such term in the
introduction to this Agreement.
"Bank" and "Banks" have the respective meanings assigned to such term
in the second recital of this Agreement.
"Dresdner" has the meaning assigned to such term in the introduction to
this Agreement.
"Junior Liabilities" means all obligations and liabilities of AMD
Holding and the Additional Partner Companies to AMD Inc., howsoever created,
arising, or evidenced, whether direct or indirect, absolute or contingent or now
or hereafter existing, or due or to become due.
"Loan Agreement" has the meaning assigned to such term in the second
recital of this Agreement.
"Loan Agreement Termination Date" means the first date on or as of
which (i) all Primary Secured Obligations under the Loan Agreement have been
paid in full, and (ii) the Banks have no commitments under or in connection with
the Loan Agreement.
"Paying Agent" has the meaning assigned to that term in the second
recital of this Agreement.
"Project" has the meaning assigned to such term in the first recital to
this Agreement.
"Security Agent" has the meaning assigned to such term in the
introduction to this Agreement.
"Secured Parties" and "Secured Party" have the respective meanings
assigned to such terms in the fourth recital of this Agreement.
2
"Senior Liabilities" means all obligations and liabilities of AMD
Holding or any Additional Partner Company to the Agent, the Security Agent, any
Bank, the Paying Agent, or either Guarantor under or arising out of any
Financing Document, howsoever created, arising, or evidenced, whether direct or
indirect, absolute or contingent or now or hereafter existing, or due or to
become due, it being expressly understood and agreed that the term "Senior
Liabilities" shall include, without limitation, any and all interest accruing on
any of the Senior Liabilities after the commencement of any proceedings referred
to in Section 4 hereof, notwithstanding any provision or rule of law which might
restrict the rights of the Security Agent, as against AMD Holding, any
Additional Partner Company, or any other Person, to collect such interest.
"Sponsors" has the meaning assigned to such term in the introduction to
this Agreement.
"Sponsors' Support Agreement" means the Sponsors' Support Agreement
between the Sponsors, the Additional Partner Companies, the Agent and the
Security Agent dated 11 March 1997, as amended by the First Amendment to
Sponsors' Support Agreement dated 6 February 1998, the Second Amendment to
Sponsors' Support Agreement dated 29 June 1999, the Third Amendment to Sponsors'
Support Agreement dated 20 February 2001 and the Accession Agreement and Fourth
Amendment to Sponsors' Support Agreement dated of even date herewith, and as the
same may at any time be amended or modified in accordance with the terms thereof
and in effect.
In this Agreement, unless the context requires otherwise, any reference to an
Operative Document or a Project Agreement (including, in each case, any
reference thereto as being in the form set out in a Schedule to the Loan
Agreement) shall be a reference to such Document or Agreement as it shall have
been, or from time to time be, amended, varied, re-issued, replaced, novated or
supplemented, in each case, in accordance with its terms and this Agreement. For
the avoidance of doubt, any reference in the Agreement to stated capital
(Stammkapital), capital reserves or any other similar term relating to the
capital structure of a German limited liability company shall, following the
Conversion Effective Date (as defined in the Sponsors' Support Agreement), be
deemed to be a reference to the capital (Haftsummen and Pflichteinlagen) or
capital reserves of a limited partnership under German law, save to the extent
the context requires otherwise.
In this Agreement, unless the context requires otherwise, (i) any statutory
provisions shall be construed as references to those provisions as amended,
modified, re-enacted, or replaced from time to time; (ii) words importing a
gender include every gender; (iii) references to Sections and Schedules are to
Sections of and Schedules to this Agreement; and (iv) references to this
Agreement include its Schedules. Section headings are inserted for reference
only and shall be ignored in construing this Agreement. A time of day, unless
otherwise specified, shall be construed as a reference to Frankfurt am Main
time.
SECTION 2. Obligations of AMD Inc. AMD Inc. will, from time to time, promptly
notify the Security Agent of the creation of any Junior Liabilities pursuant to
the Sponsors' Loan Agreement.
SECTION 3. Subordination. Except as expressly provided in this Agreement, or as
the Agent (acting on the instructions of an Instructing Group) may hereafter
otherwise expressly consent in writing, the payment of all Junior Liabilities
shall be postponed and subordinated to the payment in full of all Senior
Liabilities, and no payments or other distributions whatsoever in respect of any
Junior Liabilities shall be made, nor shall any property or assets of AMD
Holding or any Additional Partner Company be applied to the purchase or other
acquisition or retirement of any Junior Liabilities; provided, however, that as
long as no Event of Default nor any Unmatured Event of Default nor with respect
to AMD Inc. any event which is of the type described in Section 11.1 (e), (f),
(g) or (h) of the AMD Inc. 1999 Loan and Security Agreement has occurred and is
continuing, there are excepted from the terms of the provisions of this Section
3 (without duplication):
3
(i) those payments to AMD Inc. made by AMD Holding pursuant to
Article II of the Management Service Agreement or pursuant to
Article IV of the AMD Holding Wafer Purchase Agreement, in
either case without duplication and to the extent not paid by
AMD Saxonia pursuant thereto;
(ii) [intentionally left blank]; and
(iii) those payments to AMD Inc. made by AMD Holding in accordance
with Section 6.3 of the Sponsors' Support Agreement;
and provided, further, that there are excepted from the terms of the
foregoing provisions of this Section 3:
(A) distributions in respect of the Junior Liabilities to the
extent such distributions constitute non cash credits expressly
permitted to be made under the Management Service Agreement or
the AMD Holding Wafer Purchase Agreement; and
(B) performance by AMD Holding of its obligations (other than
payment obligations, if any) under the AMD Holding Wafer
Purchase Agreement, the AMD Holding Research Agreement, or the
License Agreement.
Moreover, if the AMD Holding Wafer Purchase Agreement or the Management Service
Agreement terminates for any reason whatsoever, AMD Holding shall be entitled to
credit the amounts payable thereunder against the amounts receivable by it
thereunder strictly in accordance with the terms and provisions of each such
Operative Document.
SECTION 4. Bankruptcy, Insolvency, etc. In the event of any dissolution, winding
up, liquidation, reorganization, or other similar proceedings relating to AMD
Holding or an Additional Partner Company, or to their respective creditors, as
such, or to their respective property (whether voluntary or involuntary, partial
or complete, and whether in bankruptcy, insolvency, compromise proceedings or
any other marshalling of the assets and liabilities of AMD Holding or an
Additional Partner Company, or any sale of all or substantially all of the
assets of AMD Holding or an Additional Partner Company or otherwise), the Senior
Liabilities shall first be paid in full before AMD Inc. shall be entitled to
receive and to retain any payment or distribution in respect of the Junior
Liabilities, and in order to implement the foregoing, (a) AMD Inc. hereby
irrevocably agrees that in such event all payments and distributions of any kind
or character in respect of the Junior Liabilities to which AMD Inc. would be
entitled if the Junior Liabilities were not subordinated pursuant to this
Agreement, shall be made directly to the Security Agent; (b) upon the
commencement and during the continuance of any proceedings referred to in this
Section 4, the Security Agent shall have the right to require AMD Inc. to claim,
enforce, prove, or vote in respect of the Junior Liabilities in such manner as
is directed by the Security Agent and is permitted by applicable law, including,
without limitation, to direct that all payments and distributions of any kind or
character in respect of the Junior Liabilities to which AMD Inc. would be
entitled if the Junior Liabilities were not subordinated pursuant to this
Agreement, shall be made directly to the Security Agent; provided, that if the
Security Agent shall not have required AMD Inc. to claim, enforce, prove, or
vote in respect of any of the Junior Liabilities on or before the day which is
10 Business Days before a date on which the failure to so claim, enforce, prove,
or vote would invalidate or otherwise materially adversely affect the rights of
AMD Inc., AMD Inc. shall have the right to claim, enforce, prove, or vote in
respect of such Junior Liabilities in AMD Inc.'s sole discretion; and (c) AMD
Inc. hereby irrevocably agrees that, for purposes hereof, the Security Agent
may, at its sole discretion for purposes hereof, in the name of AMD Inc. or
otherwise, demand, xxx for, collect, receive, and receipt for any and all such
payments or distributions, and file, prove, and vote, or consent in any such
proceedings with respect to, any and all claims of AMD Inc. relating to the
Junior Liabilities. Notwithstanding anything to the contrary in the foregoing,
this Section 4 shall not apply with respect to Junior Liabilities of AMD Saxony
LLC to AMD Inc. which arise following a Substitution.
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SECTION 5. Payments Not to be Commingled. In the event that AMD Inc. receives
any payment or other distribution of any kind or character from AMD Holding, or
an Additional Partner Company, or from any other source whatsoever in respect of
any of the Junior Liabilities, other than as expressly permitted by the terms of
this Agreement, such payment or other distribution shall not be commingled with
other assets of AMD Inc. and shall be promptly turned over by AMD Inc. to the
Security Agent. AMD Inc. will xxxx its books and records, and cause AMD Holding
or the applicable Additional Partner Company, as the case may be, to xxxx its
books and records, as to clearly indicate that the Junior Liabilities are
subordinated in accordance with the terms of this Agreement, and will cause to
be clearly inserted in any instrument which at any time evidences any of the
Junior Liabilities a statement to the effect that the payment thereof is
subordinated in accordance with the terms of this Agreement. AMD Inc. will
execute such further documents or instruments and take such further action as
the Security Agent may reasonably request from time to time to carry out the
intent of this Agreement.
SECTION 6. Application of Payments; No Subrogation. All payments and
distributions received by the Security Agent in respect of the Junior
Liabilities in accordance with the terms thereof, to the extent received in or
converted into cash, may be applied by the Security Agent first to the payment
of any and all expenses (including reasonable attorneys' fees and legal
expenses) paid or incurred by the Security Agent in enforcing this Agreement or
in endeavouring to collect or realize upon any of the Junior Liabilities or any
security therefor in accordance with the terms hereof, and any balance thereof
shall, solely as between AMD Inc. and the Security Agent, be applied by the
Security Agent, in the manner provided by the Loan Agreement, toward the payment
of the Senior Liabilities remaining unpaid; but, as between AMD Holding and its
creditors or an Additional Partner Company and its creditors, no such payments
or distributions of any kind or character shall be deemed to be payments or
distributions in respect of the Senior Liabilities; and, notwithstanding any
such payments or distributions received by the Security Agent in respect of the
Junior Liabilities and so applied by the Security Agent toward the payment of
the Senior Liabilities, AMD Inc. shall be subrogated to the then-existing rights
of the Agent, the Security Agent, and the Banks, if any, in respect of the
Senior Liabilities only at such time as the Agent, the Security Agent, and the
Banks, shall have received payment of the full amount of the Senior Liabilities,
as provided for in Section 9, or (ii) this Agreement shall terminate pursuant to
Section 15. Each Secured Party shall, at AMD Inc.'s request and expense made
after such time, execute and deliver to AMD Inc. appropriate documents (without
recourse or warranty whatsoever) to evidence the transfer by subrogation to AMD
Inc. of an interest in the Senior Liabilities resulting from the application of
payments in the manner contemplated by this Section 6. The obligations of the
Secured Parties under the preceding sentence shall survive any termination of
this Agreement.
SECTION 7. Waivers by AMD Inc. AMD Inc. hereby waives: (a) notice of acceptance
by the Agent, the Security Agent, or any Bank, of this Agreement; (b) notice of
the existence or creation or non-payment of all or any of the Senior
Liabilities; and (c) all diligence in collection or protection of or realization
upon the Senior Liabilities or any thereof or any security therefor.
SECTION 8. Obligations of AMD Inc. AMD Inc. will not, without the prior written
consent of the Security Agent: (a) transfer or assign, or attempt to enforce or
collect, any Junior Liabilities or any rights in respect thereof except as
expressly permitted to be paid pursuant to Section 3 above; provided, that
nothing in this Agreement shall be deemed to prevent AMD Inc. from seeking
damages, equitable relief, or otherwise enforcing any rights it may have against
AMD Holding or any Additional Partner Company arising out of (x) any tort or
infringement of AMD Inc. tangible or intangible property rights (including
without limitation rights under applicable patent, copyright and trade secret
laws and similar principles) to the extent, but only to the extent, such tort or
infringement arises after the date of termination of the AMD Holding Wafer
Purchase Agreement or (y) any breach by AMD Holding of its obligations under the
License Agreement to the extent, but only to the extent, that such breach arises
after the date of termination of the AMD Holding Wafer Purchase Agreement; (b)
take any collateral security for any Junior Liabilities or (c) commence, or join
with any other
5
creditor commencing, any bankruptcy, reorganisation, or insolvency proceedings
with respect to AMD Holding or any Additional Partner Company. Nothing in this
Agreement shall prevent AMD Inc. from forgiving all or any portion of the Junior
Liabilities or from converting all or any portion of such Junior Liabilities
into, or exchanging such Junior Liabilities for, equity of AMD Holding or equity
of AMD Saxony LLC, and any such equity shall not be deemed to be a distribution
or payment on such Junior Liabilities for purposes of this Agreement.
SECTION 9. Continuing Subordination. This Agreement shall in all respects be a
continuing agreement and shall remain in full force and effect (notwithstanding,
without limitation, the dissolution of AMD Inc. or that at any time or from time
to time all Senior Liabilities may have been paid in full), but shall
automatically terminate on the Loan Agreement Termination Date.
SECTION 10. Rights of the Agent, the Security Agent, and the Banks. The Agent,
the Security Agent, and each Bank may, from time to time, at its sole discretion
and without notice to AMD Inc., take any or all of the following actions without
affecting its or their rights under this Agreement: (a) retain or obtain a
security interest in any property of any Person to secure any of the Senior
Liabilities; (b) retain or obtain the primary or secondary obligations of any
other obligor or obligors with respect to any of the Senior Liabilities; (c)
extend or renew for one or more periods (whether or not longer than the original
period), alter or exchange any of the Senior Liabilities, or release or
compromise any obligation of any nature of any obligor with respect to any of
the Senior Liabilities; (d) compromise, settle, release, renew, extend, indulge,
amend, change, waive, modify, or supplement in any respect any of the terms or
conditions of any of the Operative Documents; and (e) release its lien on or
security interest in, or surrender, release, or permit any substitution or
exchange for, all or any part of any property securing any of the Senior
Liabilities, or extend or renew for one or more periods (whether or not longer
than the original period) or release, compromise, alter, or exchange any
obligations of any nature of any obligor with respect to any such property.
SECTION 11. Transfer of Obligations; Enforcement. The Security Agent, the Agent,
or any Bank may, from time to time, without notice to AMD Inc., but subject
however, to the provisions of Section 26 of the Loan Agreement, assign or
transfer any or all of the Senior Liabilities or any interest therein; and,
notwithstanding any such assignment or transfer or any subsequent assignment or
transfer thereof, such Senior Liabilities shall be and remain Senior Liabilities
for purposes of this Agreement, and every immediate and successive assignee or
transferee of any of the Senior Liabilities or of any interest therein, shall,
to the extent of the interest of any such assignee or transferee in the Senior
Liabilities, be entitled to the benefits of this Agreement to the same extent as
if such assignee or transferee were the transferor. The rights of the Secured
Parties hereunder shall be exercisable solely by the Security Agent on behalf of
the Secured Parties, unless either the Security Agent is not able pursuant to
applicable law to realize the practical benefits of such rights on behalf of the
Secured Parties or the limitations set forth in this sentence would otherwise
materially adversely affect the rights of the Secured Parties hereunder.
SECTION 12. Additional Provisions. None of the Agent, the Security Agent, or the
Banks shall be prejudiced in its rights under this Agreement by any act or
failure to act of any of AMD Holding, any Additional Partner Company, or AMD
Inc., or any noncompliance of AMD Holding, any Additional Partner Company, or
AMD Inc. with any agreement or obligation, regardless of any knowledge thereof
which the Agent, the Security Agent, or such Bank may have or with which the
Agent, the Security Agent, or such Bank may be charged; and no action of the
Agent, the Security Agent, or any Bank permitted hereunder shall in any way
affect or impair the rights of the Agent, the Security Agent, or any Bank, and
the obligations of AMD Inc., under this Agreement. For the purposes of this
subordination, Senior Liabilities shall include all obligations of AMD Holding
and the Additional Partner Companies under or in connection with any of the
Operative Documents to the Agent, the Security Agent, and each Bank,
notwithstanding any right or power of any AMD Holding, any Additional Partner
Company, or anyone else to assert any claim or defence as to the invalidity or
unenforceability of any such obligation, and no such claim or defence shall
affect or impair the agreements and obligations of AMD Inc. hereunder; provided,
however, that Senior Liabilities shall
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not include any obligations or liabilities of AMD Holding or any Additional
Partner Company which a court of competent jurisdiction shall have determined
(which determination shall be final and unappealable) are invalid or
unenforceable.
SECTION 13. Cumulative Remedies; Modifications in Writing. The remedies provided
for herein are cumulative and are not exclusive of any remedies that may be
available to the Agent or the Security Agent at law, in equity, or otherwise. No
amendment, modification, supplement, termination, or waiver of or to any
provision of this Agreement, or consent to any departure by AMD Inc., an
Additional Partner Company, or AMD Holding therefrom, shall be effective unless
the same shall be in writing and signed by or on behalf of the Agent and the
Security Agent.
SECTION 14. Severability of Provisions. In case any provision of this Agreement
is invalid or unenforceable, the validity or enforceability of the remaining
provisions hereof shall remain unaffected. The parties hereto shall have an
obligation to replace any invalid provision by a valid provision which
approximates best the economic purpose of the invalid provision.
SECTION 15. Termination. This Agreement and the obligations of the parties
hereunder shall terminate on the Loan Agreement Termination Date; provided, that
such obligations shall automatically revive and be reinstated if and to the
extent that AMD Holding or any Additional Partner Company shall subsequently
have obligations to any of the Secured Parties under or arising out of any of
the Financing Documents.
SECTION 16. Assignment. This Agreement shall be binding upon and shall inure to
the benefit of each party hereto and their respective successors and assigns;
provided, however, that the Security Agent, the Agent, and the Banks may
transfer their rights under this Agreement, subject, however, to the provisions
of Section 26 of the Loan Agreement; provided, further, that none of AMD Inc.,
an Additional Partner Company or AMD Holding shall have the right to transfer or
assign its rights under this Agreement without the prior written consent of the
Agent and the Security Agent; and provided, further, that AMD Holding or an
Additional Partner Company may assign this Agreement to the Security Agent as
security for the obligations of AMD Holding under the Loan Agreement and the
other Operative Documents. Notwithstanding any such assignment or transfer or
any subsequent assignment or transfer thereof, Senior Liabilities shall be and
remain Senior Liabilities for the purposes of this Agreement, and every
immediate and successive assignee or transferee of any of the Senior Liabilities
or of any interest therein shall, to the extent of the interest of such assignee
or transferee in the Senior Liabilities, be entitled to the benefits of this
Agreement to the same extent as if such assignee or transferee were the
transferor, subject, however, to the provisions of Section 11; provided,
however, that, in addition to its rights under Section 11, unless the Security
Agent (acting on the instructions of an Instructing Group) shall otherwise
consent in writing, the Security Agent shall have an unimpaired right, prior and
superior to that of any such assignee or transferee, to enforce this Agreement
for the benefit of the Secured Parties as to those of the Senior Liabilities
which have not been so assigned or transferred.
SECTION 17. Notice. All notices, demands, instructions, and other communications
required or permitted to be given to or made upon any party hereto shall be in
writing and shall be personally delivered or sent by registered or certified
mail, postage pre-paid, return receipt requested, or by pre-paid telex, TWX, or
telegram, or by pre-paid courier service, or by telecopier, and shall be deemed
to be given for purposes of this Agreement on the day that such writing is
delivered or sent to the intended recipient thereof in accordance with the
provisions of this Section 17. Unless otherwise specified in a notice sent or
delivered in accordance with the foregoing provisions of this Section 17,
notices, demands, instructions, and other communications in writing shall be
given to or made upon the respective parties hereto at their respective
addresses (or to their respective telex, TWX or telecopier numbers) indicated
below.
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To the Security Agent:
Dresdner Bank AG, as Security Agent
Xxxxx Xxxxx 0
00000 Xxxxxxx
Xxxxxxxxx: Betreuung Unternehmenskunden
Facsimile No.: (00) 000 000-0000
To the Agent:
Dresdner Bank Luxembourg S.A., as Agent
00, xxx xx Xxxxxx-xxx-Xxxxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxx: Direktion
Facsimile No.: (000) 0000-000
To AMD Inc.:
Advanced Micro Devices, Inc.
Xxx XXX Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (1) (000)000 0000
To AMD Holding:
AMD Saxony Holding GmbH
Wilschdorfer Landstrasse 101
01109 Dresden
Attention: Geschaftsfuhrer
Facsimile No.: (00) 000 000 00000
To AMD Saxony LLC:
One AMD Place
Mailstop 150
Xxxxxxxxx, XX 00000
Attention: Manager
Facsimile No.: (000) 000 0000
To AMD Admin:
Xxxxxxxxxxxx Xxxxxxxxxxx 000
00000 Xxxxxxx
Xxxxxxxxx: Geschaftsfuhrer
Facsimile No.: (00) 000 000 00000
SECTION 18. Relationship to Other Agreements. The rights of the Agent and the
Security Agent pursuant to this Agreement are in addition to any other rights or
remedies which the Agent and the
8
Security Agent may have under statutory law or other agreements between one or
more of the Agent, the Security Agent, the Banks, AMD Inc., AMD Holding, and the
Additional Partner Companies. Where such rights and remedies are in conflict
with the provision of this Agreement, the provision of this Agreement shall
prevail.
SECTION 19. Governing Law. The form and execution of this Agreement and all
rights and obligations of the parties arising hereunder shall be governed by the
Laws of the Federal Republic of Germany.
SECTION 20. Jurisdiction. AMD Inc., AMD Holding and the Additional Partner
Companies hereby submit to the exclusive jurisdiction of the courts in Frankfurt
am Main for any dispute arising out of or in connection with this Agreement. AMD
Inc. and AMD Saxony LLC state that Advanced Micro Devices GmbH,
Xxxxxxxxxxxxxxxxxx 000x, 00000 Xxxxxx, Xxxxxxx, Tel.: x00 00 000 000,
Fax: x00 00 000 000, is their 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 or the Security Agent to take suits, actions, or proceedings
against a Sponsor or an Additional Partner Company to enforce any judgment
rendered by the courts in Frankfurt am Main in any other court or entity of
competent jurisdiction where such Sponsor or Additional Partner Company 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 21. Use of English Language. This Agreement has been executed in the
English language. All certificates, reports, notices, and other documents and
communications given or delivered pursuant to this Agreement shall be in the
English language and, if reasonably requested by the Agent, a certified German
translation thereof shall be furnished promptly thereafter. In the event of any
inconsistency, the English language version of any such document shall control.
SECTION 22. Operative Document. This Agreement is an Operative Document executed
pursuant to the Loan Agreement.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, each of the parties set out below has caused this
Agreement to be duly executed and delivered by its respective officer or agent
thereunto duly authorised as of the date first above written.
ADVANCED MICRO DEVICES, INC.
By:______________________________________________
Its _____________________________________________
AMD SAXONY HOLDING GMBH
By:______________________________________________
Its Managing Director
AMD SAXONY LLC
By:______________________________________________
Its Manager
AMD SAXONY ADMIN GMBH
By:______________________________________________
Its Managing Director
DRESDNER BANK LUXEMBOURG S.A.
as Agent
By:______________________________________________
Its _____________________________________________
DRESDNER BANK AG
as Security Agent
By:______________________________________________
Its _____________________________________________
[Signature page to the AMD Inc. Subordination Agreement]
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