Exhibit 10.50 (f-2)
FIRST AMENDMENT
TO
SPONSORS' SUPPORT AGREEMENT
THIS FIRST AMENDMENT (this "Amendment"), dated February 6, 1998, is made between
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ADVANCED MICRO DEVICES, INC., a corporation organized and existing under the
laws of the State of Delaware, United States of America, with its chief
executive office and principal place of business at Xxx XXX Xxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America ("AMD Inc."), AMD SAXONY HOLDING
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GMBH, Dresden, registered in the Commercial Register of the Dresden County
Court, HRB 13931 ("AMD Holding"; and, together with AMD Inc., collectively, the
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"Sponsors"), DRESDNER BANK LUXEMBOURG S.A., as Agent (and successor to Dresdner
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Bank AG ("Dresdner") in such capacity) under the Loan Agreement referred to
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below (in such capacity, the "Agent") for the Banks referred to below, and
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DRESDNER, as Security Agent under such Loan Agreement (in such capacity, the
"Security Agent"), for the Secured Parties referred to below.
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W I T N E S S E T H:
WHEREAS, AMD Saxony Manufacturing GmbH, Dresden, registered in the Commercial
Register of the Dresden Country Court HRB 13186 ("AMD Saxonia"), a wholly-owned
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Subsidiary (such and other capitalized terms being used in this Amendment with
the meanings set out in Section 1.1 of this Amendment) of AMD Holding, which is,
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in turn, a wholly-owned Subsidiary of AMD Inc., has been formed for the purpose
of constructing, owning, and operating (i) the Plant and (ii) the integrated
Design Center;
WHEREAS, in order to finance the construction of the Plant and the Design
Center, and start-up costs of the operation of the Plant, inter alia, (i) AMD
Saxonia has entered into the Loan Agreement providing, inter alia, for two
separate senior secured term and standby facilities aggregating up to DM
1,650,000,000 (one billion six hundred fifty million Deutsche Marks), and (ii)
the Sponsors, the Agent and the Security Agent have entered into that certain
Sponsors' Support Agreement dated 11 March 1997 (the "Sponsors' Support
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Agreement") providing (x) certain assurances to the Agent and Security Agent
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with respect to the completion of the Project, and (y) certain undertakings to
and for the benefit of the Secured Parties;
WHEREAS, AMD Saxonia wishes, with the consent of the Sponsors to, among other
things, replace the initial Approved Project Budget with another Approved
Project Budget;
WHEREAS, the Sponsors are willing to provide certain additional undertakings to
and for the benefit of the Secured Parties as provided in this Amendment and to
amend and supplement the Sponsors' Support Agreement on the terms and subject to
the conditions of this Amendment;
NOW, THEREFORE, the Sponsors, the Agent (for itself and on behalf of the Banks),
and the Security Agent (on behalf of the Secured Parties), agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions Capitalized terms not otherwise defined in this
Amendment are used with the definitions assigned to them in the Sponsors'
Support Agreement.
SECTION 1.2 Construction In this Amendment, unless the context requires
otherwise, references to Sections and Schedules are to Sections and Schedules of
the Sponsors' Support Agreement. Section headings are inserted for reference
only and shall be ignored in construing this Amendment.
ARTICLE II
AMENDMENTS
SECTION 2.1 The Sponsors' Support Agreement will be amended as more
particularly set out below. In all other respects, the Sponsors' Support
Agreement shall continue in full force and effect.
(i) In the introduction, in the first line, the words "(as amended)" shall be
added after "11 March 1997", and in the second line, the word "organised"
shall be deleted and replaced with the word "organized"; in the pre-
penultimate line, there shall be deleted the words "(in such capacity, the
"Agent")";
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(ii) In the recitals, there shall be included after the fourth paragraph, a new
recital as follows:
"WHEREAS, on 1 July 1997, Dresdner transferred its rights and
obligations as Agent to Dresdner Bank Luxembourg S.A. (in such
capacity as successor to Dresdner, the "Agent") pursuant to (S) 22.11
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of the Loan Agreement;"
(iii) In Section 1.1, the following changes shall be made:
(a) the following definitions shall be replaced as follows:
(1) ""Agent" has the meaning assigned to that term in the fifth
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recital to this Agreement."
(2) ""Approved Project Budget" means:
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(i) that certain Project Budget, in the form set out in
Schedule 6 to the Loan Agreement, which has been prepared
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by AMD Saxonia and approved by each Sponsor; and
(ii) at any time after such Project Budget has been updated,
amended, supplemented, or otherwise modified, and prior to
Completion, any such updated, amended, supplemented, or
modified Project Budget having been approved by each AMD
Company (such approval of each Sponsor not to be
unreasonably withheld or delayed) and the Agent (which
may, in its sole discretion, consult with the Technical
Advisor and the Banks' Auditor) in accordance with (S)18.2
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of the Loan Agreement.
The Approved Project Budget referred to in paragraph (i) above and
(subject to the requirements of (S)13.1(i)(d)(y)(1)) each
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subsequent Approved Project Budget from time to time in effect
shall itemise, separately from the other information set forth
therein, and on a Project Phase by Project Phase basis, the
aggregate Capital Expenditure then required to be made by AMD
Saxonia in order to complete each then uncompleted Project Phase of
the Project and to achieve Completion. All references herein to
the Approved Project Budget shall, at any time, refer to the
Approved Project Budget as then in effect."
(3) ""Business Day" means any day of the year on which banks are
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generally open for business in London, Frankfurt am Main, Dresden,
Luxembourg and, to the extent the same relates to any obligation
to be performed by AMD Inc., San Francisco."
(4) ""Cost Overruns" means, at any time, the difference at such time
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between Capital Expenditure estimated in the Approved Project
Budget and, if more, the actual Capital Expenditure incurred,
including Deemed Cost Overruns but excluding, for the purpose of
Sections 4.1, 4.2, 4.3 (i) and 4.4 only, Cash Funded Cost
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Overruns, if any, in each case calculated on a cumulative basis."
(5) ""Guaranty Decision" means the decision dated 2 July 1996 set out
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in Schedule 24 to the Loan Agreement concerning the guaranty
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application made by AMD Saxonia, including the following documents
as referred to therein:
(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, together
with
(iii) Notes relating to applications for guaranties and loans
of the Treuhandanstalt Berlin and/or Federal and State
guaranties for projects in the Accession Territory in
the edition dated 1993 F 12.10.1990,
together with the Memorandum of Understanding ("Gemeinsame
Feststellungen") dated 19 February 1997, the Amendment Decision of
the Guarantors of 12 December 1997 and a letter of confirmation
from C&L Deutsche Revision AG dated 5 January 1998."
(6) ""Management Plan" means the project concept attached as Schedule
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14 to the Loan Agreement, as the same may from time to time be
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further amended or modified by AMD Saxonia (with the consent of
each Sponsor, whose consent will not be unreasonably delayed or
withheld) in accordance with the terms of this Agreement and the
Loan Agreement and in effect."
(b) the following new definitions shall be added in alphabetical order:
(1) ""Cash Funded Cost Overrun" means at any time, any difference at
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such time between Capital Expenditure estimated in the Approved
Project Budget and, if more, Capital Expenditure incurred, but
only to the extent the same was originally funded by AMD Saxonia
from cash (other than Equity Capital, contributions to capital
reserves or subordinated loans made available by the Sponsors
pursuant to Sections 4.1 or 4.3(i) or the proceeds of Tranche B
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Advances) in the Fiscal Years 2000 and 2001 and in any event no
later than Financial Completion;"
(2) ""Class C Sponsors' Loans" has the meaning assigned to that term
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in Section 3.1."
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(3) ""Consolidated Net Income" has the meaning assigned to that term
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in the AMD Inc. Senior Secured Note Indenture."
(4) ""Contribution Date" means 31 January 1999."
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(5) ""Deemed Cost Overrun" has the meaning assigned to that term in
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Section 4.3 (ii)."
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(6) ""Liquidity Shortfall" has the meaning assigned to that term in
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Section 4.3 (ii);"
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(7) ""Minimum Liquidity" means, following the funding of a Cash Funded
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Cost Overrun and after the amount standing to the credit of the
reserve account established pursuant to (S) 19.4 of the Loan
Agreement has reached the full amount of the Minimum Reserve
Amount (within the meaning of the Loan Agreement) of DM
72,500,000, an amount of liquidity to be maintained by AMD Saxonia
of at least DM 100,000,000 (including the aforesaid Minimum
Reserve Amount of DM 72,500,000), as tested:
(i) at the end of the then current Fiscal Quarter, by
reference to the quarterly financial statements submitted
to the Agent pursuant to (S) 16.2.1 of the Loan Agreement;
and, in addition
(ii) on each of 30 June 2001 and 31 December 2001 (for amounts
funded during the immediately preceding full Fiscal
Quarter and thereafter up to and including the first such
testing date) DM 100,000,000 (including the aforesaid
Minimum Reserve Amount of DM 72,500,000) plus the amount
only of the scheduled repayment of the Facilities due on
such date."
(8) ""Stock Offering" means a public or private sale or other
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placement of stock of AMD Inc. in the capital markets (which, for
avoidance of doubt, shall not include (i) the issuance by AMD Inc.
of stock options (and/or the issuance by AMD Inc. of stock upon
the exercise of any existing or future such stock options) to any
of its or its affiliates' directors, officers and/or employees or
(ii) purchases of AMD Inc. stock by Fujitsu Limited in connection
with the Fujitsu AMD Semiconductor Limited joint venture between
AMD Inc. and Fujitsu Limited)."
(iv) In Section 2.1:
(a) para (i) shall be replaced as follows:
"(i) to the extent, but only to the extent, reflected in AMD
Saxonia's financial statements referred to in (S) 15.1.6 of the
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Loan Agreement (or, if not so reflected, as certified by AMD
Inc. to the Agent and the Security Agent as of the Loan
Agreement Effective Date), Equity Capital contributed by the
Sponsors to AMD Saxonia prior to the Loan Agreement Effective
Date shall be taken into account in determining whether the
Sponsors shall have complied with their obligations under this
Article II;" and
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(b) para (iii) (a) shall be replaced as follows:
"(iii) (a) any Sponsors' Loan made by either Sponsor pursuant to
this Agreement or the Sponsors' Loan Agreement before or
after the Loan Agreement Effective Date, including
without limitation, the additional Sponsors' Loan in an
amount of $34,000,000 made by AMD Inc. to AMD Saxonia on
26 September 1997 and referred to in Section 3.5 below;
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or"
(v) Section 3.1 shall be replaced as follows:
"SECTION 3.1 Undertaking to Make Class A, Class B and Class C Sponsors'
Loans. The Sponsors, jointly and severally, hereby undertake that either
Sponsor or both of the Sponsors will make Sponsors' Loans to AMD Saxonia:
(i) in an aggregate principal amount of at least DM 290,000,000 (two
hundred ninety million Deutsche Marks) for all such Sponsors' Loans,
the exact amount thereof being equal to the Deutsche Xxxx Equivalent
of $200,000,000 (two hundred million Dollars) for all such Sponsors'
Loans, as contemplated by Section 3.2 (the "Class A Sponsors' Loans");
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(ii) in an aggregate principal amount of up to an additional DM
145,000,000 (one hundred forty five million Deutsche Marks) as
contemplated by Section 3.3 (the "Class B Sponsors' Loans"); and
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(iii) in an aggregate principal amount of $70,000,000 (seventy million
Dollars) as contemplated by Section 3.4 (the "Class C Sponsors'
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Loans").
For the avoidance of doubt:
(i) the obligations of the Sponsors under the Sponsors' Loan Agreement are
intended to reflect, rather than to be in addition to, the obligations
of the Sponsors pursuant hereto;
(ii) with the exception of the additional Sponsors' Loan in an amount of
$34,000,000 made by AMD Inc. to AMD Saxonia on 26 September 1997 and
referred to in Section 3.5 below, Sponsors' Loans and/or contributions
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(to the extent, but only to the extent, not otherwise taken into
account in determining whether AMD Holding has complied with its
obligations under Article II) by AMD Holding to AMD Saxonia's capital
reserves made to AMD Saxonia prior to the Loan Agreement Effective
Date shall be taken into account, to the
extent, but only to the extent, reflected in AMD Saxonia's financial
statements referred to in (S) 15.1.6 of the Loan Agreement (or, if
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not so reflected, as certified by AMD Inc. to the Agent and the
Security Agent as of the Loan Agreement Effective Date) as Class A
Sponsors' Loans in determining whether the Sponsors shall have
complied with their obligations under this Article III;
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(iii) although the obligations of the Sponsors contained in this Article
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III are in addition to, and not in limitation of, their respective
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obligations contained elsewhere in this Agreement and in the other
Operative Documents, if the Agent shall have otherwise expressly
consented thereto in writing (which consent will not be unreasonably
withheld or delayed), the Sponsors shall be deemed to have complied
with their obligations to make Class A Sponsors' Loans, Class B
Sponsors' Loans and/or Class C Sponsors' Loans to the extent, but only
to the extent, that AMD Holding shall have made additional
contributions to AMD Saxonia's Equity Capital (or other contribution
to AMD Saxonia's capital reserves) which contributions are not
otherwise required to be made pursuant hereto or to any other
Operative Document;
(iv) the Sponsors shall not be relieved:
(a) of the foregoing obligation by virtue of any Equity Capital
(or other contribution to AMD Saxonia's capital reserves)
contributed or required to be contributed to AMD Saxonia
pursuant to Section 2.1 or (except as, and to the extent,
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provided in clause (iii) above) otherwise;
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(b) of any obligation to make Class A Sponsors' Loans (or to
contribute additional Equity Capital or other contributions to
AMD Saxonia's capital reserves in lieu thereof) by virtue of
any payment made by either Sponsor under the Sponsors'
Guaranty;
(c) of any obligation following Completion to make Class B
Sponsors' Loans until and unless the Sponsors shall have paid
all amounts payable under the Sponsors' Guaranty following a
demand for payment made by the Agent thereunder (it being
understood and agreed that the obligation of the Sponsors to
make Class B Sponsors' Loans shall be subject to the
occurrence of Completion); or
(d) of any obligation to make Class A Sponsors' Loans, Class B
Sponsors' Loans or Class C Sponsors' Loans by the additional
Sponsors' Loans in an amount of $34,000,000 made by AMD Inc.
to AMD Saxonia on 26 September 1997 and referred to in Section
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3.5 below;
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(v) each Class A Sponsors' Loan shall be denominated in Deutsche Marks and
the Deutsche Xxxx Equivalent thereof shall be calculated for the
purpose of determining whether the Sponsors have complied with their
obligations under Section 3.2; provided, however, that any Class A
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Sponsors' Loan may, with the consent of the Agent (such consent not
to be unreasonably delayed or withheld), be funded in Dollars but
for all purposes of this Agreement and the Sponsors' Loan Agreement
shall be deemed to have been funded in Deutsche Marks in an amount
which is equal to the Deutsche Xxxx Equivalent thereof;
(vi) Class C Sponsors' Loans may be made in either Dollars or in Deutsche
Marks at AMD Inc.'s option provided that:
(a) for the purpose of determining whether the Sponsors have complied
with their obligations under Section 3.4, any Class C Sponsors'
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Loans made in Deutsche Marks shall be deemed converted to Dollars
at the Agent's spot rate of exchange for the purchase of Dollars
with Deutsche Marks prevailing on the date two (2) Business Days
prior to the date such Class C Sponsors' Loans were made;
(b) if AMD Inc. and AMD Saxonia agree, any Class C Sponsors' Loans may
be denominated in Deutsche Marks but funded in Dollars and the
Deutsche Xxxx amount of such Class C Sponsors' Loans shall be
deemed to be the DM amount which is the equivalent of the Dollar
amount so funded determined at the Agent's spot rate of exchange
for the purchase of Dollars with Deutsche Marks prevailing on the
date two (2) Business Days prior to the date such Class C
Sponsors' Loans were made.
(vii) the Sponsors shall be relieved of their respective obligations to
make Class C Sponsors' Loans under Sections 3.1 and 3.4 if, but
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only if:
(a) the Sponsors shall have complied with each of their respective
obligations under Article II and, insofar as such obligations
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relate to Class A Sponsors' Loans (or additional contributions
to Equity Capital or AMD Saxonia's capital reserves in lieu
thereof), this Article III; and
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(b) following a demand for payment by the Agent under the
Sponsors' Guaranty, the Sponsors shall have paid all amounts
payable under the Sponsors' Guaranty.
(viii) the amounts set forth in this Section 3.1 are cumulative minimum
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aggregate amounts for both Sponsors, collectively; nothing
contained herein shall be deemed to preclude the Sponsors (or
either of them) from making additional Sponsors' Loans in order to
fulfil their respective obligations contained in Article IV, V,
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VI, or VII, or for any other reason."
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(vi) In Article III, there shall be added a new Section 3.4 and the
previous Section 3.4 will be renumbered 3.5 and shall be replaced
as follows:
"SECTION 3.4 Time of Class C Sponsors' Loans. The Class C Sponsors' Loans
will be made in cash and in Same Day Funds and will be made as follows:
(i) by the Contribution Date at the latest, if:
(a) AMD Inc.'s Consolidated Net Income for the Fiscal Year 1998 is
equal to or greater than $140,000,000; and
(b) AMD Inc. is permitted to fund the Class C Sponsors' Loans in full
pursuant to Section 4.07 of the AMD Inc. Senior Secured Note
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Indenture without utilizing any of the provisions contained in the
first proviso to Section 4.07 (iv) thereof; or
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(ii) if payment of the Class C Sponsors' Loans is not made in full in
accordance with sub-para (i) above:
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(a) AMD Inc. will by the Contribution Date at the latest make payment
to AMD Saxonia of such amount of the Class C Sponsors' Loans, if
any, as it is permitted to make pursuant to Section 4.07 of the
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AMD Inc. Senior Secured Note Indenture without utilizing any of
the provisions contained in the first proviso to Section 4.07 (iv)
thereof; and
(b) AMD Inc. will undertake a Stock Offering resulting in the receipt
by AMD Inc. of net cash proceeds to AMD Inc. of at least
$200,000,000 and make payment of an amount equal to the full
amount of the Class C Sponsors' Loans less any amount already
contributed under sub-para (ii) (a) above by 30 June 1999 at
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the latest; provided that:
(iii) if at any time during the Fiscal Year 1998 AMD Inc. is permitted,
pursuant to the terms of Section 4.07 of the AMD Inc. Senior Secured
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Note Indenture without utilizing any of the provisions contained in
the first proviso to Section 4.07 (iv) thereof, to do so and:
(a) AMD Inc. makes the Class C Sponsors' Loans in full out of the
proceeds of, and forthwith following, a Stock Offering
undertaken by it in such Fiscal Year; or
(b) AMD Inc. makes the Class C Sponsors' Loans in full, having
achieved Consolidated Net Income of not less than $140,000,000
to the end of AMD Inc.'s most recently ended Fiscal Quarter for
which financial statements are available,
the Sponsors will be relieved of any further obligation under
Sections 3.4 (i) and (ii) above.
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SECTION 3.5 Additional Sponsors' Loans. In addition to the Class A
Sponsors' Loans, the Class B Sponsors' Loans and the Class C Sponsors'
Loans, the Sponsors (or either of them) may, from time to time, at their
option make additional Sponsors' Loans in order to fulfil their respective
obligations contained herein or otherwise to provide additional funds to
AMD Saxonia.
For the avoidance of doubt, the additional Sponsors' Loan in an amount of
$34,000,000 made by AMD Inc. to AMD Saxonia on 26 September 1997:
(i) is hereby expressly agreed by the parties hereto to be an additional
Sponsors' Loan pursuant to the terms of this Section 3.5 and
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subordinated as a Junior Liability under the Sponsors' Subordination
Agreement; and
(ii) shall not relieve the Sponsors from any obligation to make Class A
Sponsors' Loans, Class B Sponsors' Loans or Class C Sponsors' Loans in
accordance with Sections 3.2, 3.3 and 3.4 above respectively."
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and Sections 3.6 and 3.7 shall be renumbered accordingly and any cross
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references thereto and to the previous Section 3.4 shall be changed
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accordingly.
(vii) In Section 4.1, the following shall be deleted:
"The Sponsors shall be required to provide AMD Saxonia with Same Day Funds
in the amount of the Sponsors' Applicable Share of any Cost Overrun:
(i) on or prior to the occasion of each drawdown of a Tranche B Advance,
and as a condition to the making thereof; and
(ii) promptly following any notice from the Agent or the Technical Advisor
to AMD Inc. to the effect that the Cost to Complete exceeds the funds
otherwise available to AMD Saxonia for such purpose (including,
without limitation, the Available Tranche A Amount, the Available
Tranche B Amount, and the balance, if any, of collected funds then on
deposit in the Operating Account, together with the then value of the
Cash Equivalent Investments acquired with the proceeds of the
Operating Account)."
(viii) Sections 4.3 (Time of Payment), 4.4 (Post Completion Adjustment), 4.5
(Determination of Cost Overruns) and 4.6 (Projected Total Cost) shall be
replaced as follows:
"SECTION 4.3 Time of Payment.
(i) The Sponsors shall be required to provide AMD Saxonia with Same Day
Funds in the amount of the Sponsors' Applicable Share of any Cost
Overrun (other than a Deemed Cost Overrun, as to which Section 4.3
(ii) shall apply):
(a) on or prior to the occasion of each drawdown of a Tranche B
Advance, and as a condition to the making thereof; and
(b) promptly following any notice from the Agent or the Technical
Advisor to AMD Inc. to the effect that the Cost to Complete
exceeds the funds otherwise available to AMD Saxonia for such
purpose (including, without limitation, the Available Tranche
A Amount, the Available Tranche B Amount, and the balance, if
any, of collected funds then on deposit in the Operating
Account, together with the then value of the Cash Equivalent
Investments acquired with the proceeds of the Operating
Account).
(ii) If at any time following the funding of a Cash Funded Cost Overrun,
there occurs a shortfall in Minimum Liquidity ("Liquidity Shortfall"),
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there shall be deemed to have occurred a Cost Overrun (a "Deemed Cost
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Overrun") in an amount equal to whichever is the lesser of:
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(a) the total of all the Cash Funded Cost Overruns funded prior to the
date of such Liquidity Shortfall less any Deemed Cost Overruns
funded prior to the date of such Liquidity Shortfall; and
(b) the Liquidity Shortfall,
and the Sponsors undertake, jointly and severally, to provide AMD
Saxonia with Same Day Funds promptly after the date of such Liquidity
Shortfall in an amount equal to the Sponsors' Applicable Share of such
Deemed Cost Overrun.
SECTION 4.4 Post Completion Adjustment. Following Completion, if:
(i) AMD Holding has made contributions to AMD Saxonia's Equity Capital (or
other contributions to AMD Saxonia's capital reserves), other than
contributions of the minimum Equity Capital referred to in Article II;
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or
(ii) a Sponsor has made Sponsors' Loans to AMD Saxonia (other than Class A
Sponsors' Loans, Class B Sponsors' Loans or Class C Sponsors' Loans),
in either case to enable AMD Saxonia to have sufficient funds to pay Cost
Overruns (the aggregate amount so contributed or lent to AMD Saxonia being
hereinafter called the "Sponsors' Cost Overrun Contribution"), then,
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provided that no Event of Default, Unmatured Event of Default or Event of
Termination has occurred and is continuing, AMD Saxonia shall, at the
request of a Sponsor, and with the consent of the Agent,
repay to such Sponsor Sponsors' Loans in an amount which is equal to the
excess, if any,
of:
(i) the Sponsors' Cost Overrun Contribution
over
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(ii) the Sponsors' Applicable Share of the Cost Overruns prior to
Completion.
The Agent shall be required to grant such consent unless it has actual
knowledge that an Event of Default, Unmatured Event of Default or Event of
Termination shall have occurred and be continuing.
SECTION 4.5 Determination of Cost Overruns. As soon as reasonably
practicable after a Cost Overrun has been identified by a Relevant AMD Inc.
Individual or by the Technical Advisor, the AMD Companies shall calculate
the amount of any Cost Overrun and furnish such calculation to the Agent
together with a statement as to the proposed method of funding such Cost
Overrun and such additional information as the Agent may reasonably
request; provided, however, that if the Technical Advisor, acting
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reasonably and in good faith at the request of the Agent, identifies and
calculates a Cost Overrun or disagrees with the AMD Companies'
identification or calculation thereof, the Technical Advisor's calculation
shall, for purposes of this Agreement, be conclusive and binding. The Agent
will promptly advise the AMD Companies and the Banks of any determination
by the Technical Advisor pursuant to the proviso to the preceding sentence.
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SECTION 4.6 Projected Total Cost. If, at any time, the Projected Total
Cost exceeds DM 3,846,000,000 (three billion eight hundred forty six
million Deutsche Marks), then, as soon as reasonably practicable (and, in
any case, within 10 Business Days) following receipt of a demand by the
Agent pursuant to (S) 21.2(xxiii) of the Loan Agreement, an Event of
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Default shall be deemed to have occurred unless AMD Inc. provides the Agent
with such evidence as shall be reasonably satisfactory to the Agent with
respect to the ability of AMD Inc. and AMD Saxonia to fund the entire
remaining Cost to Complete, after giving effect to the sum of (i) the
Available Tranche A Amount, plus (ii) the Available Tranche B Amount."
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(ix) SECTION 6.2 (Payment of Shortfall) shall be amended by replacing
paragraph (ii) (a) after "For the avoidance of doubt" by the following:
"(ii) (a) any prior Sponsors' Loans made by the Sponsors (or either of
them), including without limitation, the additional Sponsors' Loan
in an amount of $34,000,000 made by AMD Inc. to AMD Saxonia on 26
September 1997 and referred to in Section 3.5 above; "
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(x) In Article XIII (Covenants), Section 13.1 (i), there shall be deleted in
sub-paras (b) and (c) the words "(including source and application of
funds)".
(xi) All references to Dresdner Bank AG in its capacity as Agent, including its
address, as the case may be, shall be replaced by corresponding references
to Dresdner Bank Luxembourg S.A., including its address, as the case may
be, in such capacity.
ARTICLE III
REVISED BUDGET AND DISCLOSURE SCHEDULE
The parties hereto confirm that the Project Budget attached as Exhibit I hereto
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is, the "Approved Project Budget" for all purposes of the Sponsors' Support
Agreement until such time as there is another Approved Project Budget in
accordance with the terms of the Sponsors' Support Agreement. The parties hereto
agree that the Sponsors' Disclosure Schedule in Schedule II to the Sponsors'
Support Agreement shall be deleted and be replaced with the Sponsors' Disclosure
Schedule attached as Exhibit II hereto.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 Representations and Warranties Each of the Sponsors hereby
represents and warrants that:
(a) Organization; Corporate Power. It is duly incorporated and validly
existing under the laws of the jurisdiction of its organization, and has
all necessary power and authority to execute and deliver this Amendment and
to consummate the transactions contemplated by the Sponsors' Support
Agreement, as amended hereby;
(b) Corporate Authority; No Conflict. The execution and delivery by it of this
Amendment, and the performance by it of its obligations under the Sponsors'
Support Agreement, as amended by this Amendment, have been duly authorized
by all necessary corporate action (including any necessary shareholder
action) on its part, and do not and will not (i) violate any provision of
any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to it, or
of its charter or by-laws or (ii) result in a breach of, result in a
mandatory prepayment or acceleration of indebtedness evidenced by or
secured by, or constitute a default under, any indenture or loan or credit
agreement, or any other agreement or instrument to which it is a party or
by which it or its properties may be bound, or require the creation or
imposition of any encumbrance of any nature upon or with respect to any of
the properties now owned or hereafter acquired by it; and
(c) Valid and Binding Obligations. The Sponsors' Support Agreement, as amended
by this Amendment, constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms subject, however, to
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and, as to enforceability, by
general equitable principles.
SECTION 4.2 Repetition of Representation and Warranties. The representations
and warranties contained in Sections 12.1 and 12.2 of the Sponsors' Support
------------- ----
Agreement shall be repeated on the date hereof except to the extent any such
representation and warranty expressly relates solely to an earlier date.
SECTION 4.3 Miscellaneous.
(a) This Amendment is limited as specified and, except as expressly herein
provided, shall not constitute a modification, amendment or waiver of any
other provision of the Sponsors' Support Agreement or any provision of any
other Operative Document. Except as specifically amended by this Amendment,
the Sponsors' Support Agreement shall remain in full force and effect and
is hereby ratified and confirmed.
(b) This Amendment shall be an Operative Document under and for purposes of the
Sponsors' Support Agreement.
(c) The form and execution of this Amendment and all rights and obligations of
the parties arising hereunder shall be governed by the laws of the Federal
Republic of Germany.
(d) This Amendment has been executed in the English language.
(e) This Amendment may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and the
same instrument.
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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. Xxxxxxx
------------------------------
Its _____________________________
AMD SAXONY HOLDING GMBH
By /s/ Xxxxxx X. Xxxxxxx
------------------------------
Its _____________________________
DRESDNER BANK LUXEMBOURG S.A., as
Agent
/s/ illegible signature
_________________________________
DRESDNER BANK AG, as Security Agent
/s/ illegible signature
_________________________________
