Exhibit 10.43 (l-4)
THIRD AMENDMENT TO AMD SAXONIA
WAFER PURCHASE AGREEMENT
THIS THIRD AMENDMENT to AMD Saxonia Wafer Purchase Agreement
(this "Third Amendment"), dated as of 3 June 2002, is made between AMD SAXONY
HOLDING GMBH, Dresden, registered in the Commercial Register of the Dresden
County Court, HRB 13931 ("AMD Holding"), and AMD SAXONY MANUFACTURING GMBH,
Dresden, registered in the Commercial Register of the Dresden Country Court HRB
13186 (to be known as "AMD Saxony LLC & Co. KG" following the Conversion
Effective Date) ("AMD Saxonia").
RECITALS
WHEREAS, AMD Saxonia is an indirect wholly-owned Subsidiary
(such and other capitalised terms having the meanings assigned thereto in the
AMD Saxonia Wafer Purchase Agreement (as defined below)) of Advanced Micro
Devices, Inc., a corporation organised and existing under the laws of the State
of Delaware, United States of America ("AMD Inc.");
WHEREAS, AMD Inc., AMD Holding and AMD Saxonia are involved in
a project pursuant to which AMD Saxonia has constructed, and owns and operates
inter alia the Plant located in Dresden, Germany, to manufacture Wafers using
high-volume semiconductor wafer fabrication processes;
WHEREAS, AMD Inc. and AMD Holding are party to the AMD Holding
Wafer Purchase Agreement dated as of 11 March 1997, as amended by the First
Amendment to the AMD Holding Wafer Purchase Agreement dated as of 20 February
2001 (as amended, supplemented or otherwise modified from time to time, the "AMD
Holding Wafer Purchase Agreement"), pursuant to which, among other things, AMD
Inc. has agreed to purchase from AMD Holding, and AMD Holding has agreed to
supply on an exclusive basis to AMD Inc., all Wafers as are ordered from time to
time by AMD Inc. from AMD Holding, in each case on the terms and conditions of
the AMD Holding Wafer Purchase Agreement;
WHEREAS, AMD Holding and AMD Saxonia are party to that certain
AMD Saxonia Wafer Purchase Agreement dated as of 11 March 1997, as amended by
the First Amendment to AMD Saxonia Wafer Purchase Agreement dated as of 8
February 1998 and the Second Amendment to AMD Saxonia Wafer Purchase Agreement,
by and between AMD Holding and AMD Saxonia, dated as of 20 February 2001 (as so
amended, the "AMD Saxonia Wafer Purchase Agreement"), pursuant to which AMD
Holding has the exclusive right to purchase Wafers from AMD Saxonia in order to
enable AMD Holding to fulfill its obligations under the AMD Holding Wafer
Purchase Agreement, and AMD Saxonia has agreed on such exclusive basis, to
manufacture and sell Wafers to AMD Holding;
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WHEREAS, the parties now desire to amend the AMD Saxonia Wafer
Purchase Agreement to revise certain definitions, all on the terms and
conditions more particularly set forth in this Third Amendment; and
WHEREAS, pursuant to the Conversion Documents (as defined in
the Sponsors' Support Agreement dated March 11, 1997 among the Sponsors, AMD
Saxony Admin GmbH, with its seat in Dresden ("AMD Admin"), AMD Saxony LLC ("AMD
Saxony LLC"), Dresdner Bank Luxembourg S.A. as Agent and Dresdner Bank AG as
Security Agent, as amended by the First Amendment dated February 6, 1998, the
Second Amendment dated June 29, 1999, the Third Amendment dated February 20,
2001 and the Accession Agreement and Fourth Amendment dated 3 June 2002 (the
"Sponsors' Support Agreement")), AMD Saxonia proposes to change its legal form
to a Kommanditgesellschaft (a limited partnership organized under the laws of
the Federal Republic of Germany), with AMD Holding and AMD Admin as its sole
limited partners (Kommanditisten) and AMD Saxony LLC as its sole general partner
(Komplementar);
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, intending to be legally bound hereby, the parties hereto agree
as follows:
ARTICLE I
Amendments
Section 1.1 With effect from the Conversion Effective Date (as
defined in the Sponsors' Support Agreement), the AMD Saxonia Wafer Purchase
Agreement is hereby amended as more particularly set out below. In all other
respects, the AMD Saxonia Wafer Purchase Agreement shall remain in full force
and effect.
(a) Section 1.01(47), the definition of "Person", shall be deleted
and replaced with the following:
""Person" means an individual, partnership, limited
partnership, limited liability company, joint venture,
trustee, trust, corporation, unincorporated association or
other entity, or a government, state or agency or political
subdivision thereof;"
(b) Section 1.01(65)(d), pertaining to Total Costs, shall be
deleted and replaced with the following:
"(d) Total Costs shall include all interest expense paid or
accrued by AMD Saxonia, including all interest expense
relating to loans to AMD Saxonia from third parties.
Notwithstanding the above or anything herein to the contrary,
with effect from 1 January 2002, Total Costs shall not include
any interest expense (whether such interest is paid or
capitalised) relating to loans to AMD Saxonia from AMD Holding
or AMD Inc. ("Intercompany Loans") nor shall total costs
include any imputed interest expense on any such Intercompany
Loans that have been repaid."
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(c) Section 1.01(65)(e), pertaining to Total Costs, shall be
deleted and replaced with the following:
"(e) Notwithstanding anything herein to the contrary with
effect from 1 January 2002, Total Costs shall not include any
trade tax (Gewerbesteuer)."
(d) New Section 1.01(65)(j) shall be added as follows:
"(j) For the avoidance of doubt, Total Costs shall also
include all expense reimbursements paid by AMD Saxonia to AMD
Saxony LLC, but shall not include compensation paid by AMD
Saxonia to AMD Saxony LLC for acting as general partner of AMD
Saxonia."
ARTICLE II
Representations and Warranties
Section 2.1 Each of AMD Holding and AMD Saxonia, severally and for
itself alone, hereby represents and warrants, as of the date hereof and as of
the Conversion Effective Date, to the other as follows:
(a) 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 Third Amendment
and, following the Conversion Effective Date, to consummate the transactions
contemplated by the AMD Saxonia Wafer Purchase Agreement as amended by this
Third Amendment;
(b) Corporate Authority; No Conflict. The execution and delivery
by it of this Third Amendment, and the performance by it, following the
Conversion Effective Date, of its obligations under the AMD Saxonia Wafer
Purchase Agreement as amended by this Third Amendment have been duly authorised
by all necessary corporate action (including any necessary shareholder action)
on its part, and do not and will not (i) violate any provision of any law, rule,
regulation, order, writ, judgment, injunction, decree, determination, or award
presently in effect having applicability to it, or of its charter or by-laws; or
(ii) result in a breach of, result in a mandatory prepayment or acceleration of
indebtedness evidenced by or secured by, or constitute a default under, any
indenture or loan or credit agreement, or any other agreement or instrument to
which it is a party or by which it or its properties may be bound, or require
the creation or imposition of any encumbrance of any nature upon or with respect
to any of the properties now owned or hereafter acquired by it; and
(c) Valid and Binding Obligations. Following the Conversion
Effective Date, the AMD Saxonia Wafer Purchase Agreement, as amended by this
Third 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.
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ARTICLE III
Miscellaneous
Section 3.1 Miscellaneous.
(a) This Third Amendment is limited as specified and, except as
specifically set forth herein, shall not constitute a modification, amendment,
or waiver of any other provision of the AMD Saxonia Wafer Purchase Agreement or
any provision of any other Operative Document. Except as specifically amended by
this Third Amendment, the AMD Saxonia Wafer Purchase Agreement shall remain in
full force and effect and is hereby ratified and confirmed.
(b) Without prejudice to the foregoing, AMD Saxonia hereby ratifies
and confirms that its obligations under the AMD Saxonia Wafer Purchase
Agreement, as amended, shall continue in full force and effect following the
Conversion.
(c) This Third Amendment shall be an Operative Document under and
for purposes of the Sponsors' Support Agreement 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 (as amended, the "Sponsors' Support Agreement").
(d) This Third Amendment is in the English language, which language
shall be controlling in all respects.
(e) This Third Amendment may be executed in any number of
counterparts and by different parties on separate counterparts which when taken
together shall constitute one agreement.
(f) Sections 5.07, 5.08, 5.09, and 5.10 of the AMD Saxonia Wafer
Purchase Agreement shall apply, mutatis mutandis, to this Amendment, as if set
out herein in full.
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IN WITNESS OF THE FOREGOING, AMD Holding and AMD Saxonia have
caused this Amendment to be executed by their authorised representatives as of
the date first written above.
AMD SAXONY HOLDING GMBH
By: /s/ Xxxx-Xxxxxxx Xxxxx
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Xx. Xxxx-Xxxxxxx Xxxxx
Its Managing Director (Geschaftsfuhrer)
AMD SAXONY MANUFACTURING GMBH
By: /s/ Xxxx-Xxxxxxx Xxxxx
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Xx. Xxxx-Xxxxxxx Xxxxx
Its Managing Director (Geschaftsfuhrer)
