Exhibit 10.50(f-4)
Redacted Version
THIRD AMENDMENT
TO
SPONSORS' SUPPORT AGREEMENT
*** Confidential treatment has been requested as to certain portions of this
agreement. Such omitted confidential information has been designated by an
asterisk and has been filed separately with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended, and the Commission's rules and regulations promulgated under the
Freedom of Information Act, pursuant to a request for confidential treatment.
THIS THIRD AMENDMENT (this "Amendment"), dated 20 February 2001, 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
--------
GMBH, Dresden, registered in the Commercial Register of the Dresden County
Court, HRB 13931 ("AMD Holding"; and, together with AMD Inc., collectively, the
-----------
"Sponsors"), DRESDNER BANK LUXEMBOURG S.A., as Agent (and successor to Dresdner
--------
Bank AG in such capacity) under the Loan Agreement referred to below (in such
capacity, the "Agent") for the Banks referred to below, and DRESDNER BANK AG, 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, Dresden, registered in the Commercial
Register of the Dresden Country Court HRB 13186 ("AMD Saxonia"), a wholly-owned
-----------
Subsidiary of AMD Holding, which is, 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 a Syndicated Loan Agreement, dated 11 March 1997, as
amended, (the "Loan Agreement") with the Agent, the Security Agent and the Banks
from time to time party thereto providing, inter alia, for a senior secured term
facility aggregating up to DM 1,500,000,000 (one billion five hundred 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, as
amended, (the "Sponsors' Support Agreement") providing (x)
---------------------------
1
certain assurances to the Agent and Security Agent with respect to the
completion of the Project, and (y) certain undertakings to and for the benefit
of the Secured Parties;
WHEREAS, AMD Saxonia, the Agent, the Security Agent and the Banks wish, with the
consent of the Sponsors to, among other things, amend the Loan Agreement and the
Sponsors' Support Agreement;
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 Amendments. The Sponsors' Support Agreement shall be amended and
restated in the form set out in Schedule 1 to this Amendment Agreement.
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ARTICLE III
Revised Budget and Disclosure Schedule
SECTION 3.1 Budget and Disclosure Schedule. The parties hereto confirm that the
Project Budget attached as Schedule 2 hereto is, the "Approved Project Budget"
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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 Schedule 3
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hereto.
ARTICLE IV
2
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
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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.
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(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.
[Remainder of page intentionally left blank]
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
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Its Senior Vice President and Chief Financial Officer
AMD SAXONY HOLDING GMBH
By /s/ Xxxxxx X. XxXxx
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Its Managing Director
DRESDNER BANK LUXEMBOURG S.A., as
Agent
/s/ Xxxxxx Xxxxxx /s/ Xxxxxx von Finckenstein
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DRESDNER BANK AG, as Security Agent
/s/ Xxxxxx Xxxxxx /s/ Xxxxxx von Finckenstein
----------------- ---------------------------
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Schedule 1
Amended and restated Sponsors' Support Agreement
5
SPONSORS' SUPPORT AGREEMENT
Dated 11 March 1997
AS AMENDED ON 6 FEBRUARY 1998, 29 JUNE 1999
AND
20 February 2001
between
ADVANCED MICRO DEVICES, INC.,
AMD SAXONY HOLDING GMBH,
and
DRESDNER BANK AG,
as Security Agent,
and
DRESDNER BANK LUXEMBOURG S.A.,
as Agent
1
INDEX
ARTICLE I Definitions and Accounting Terms..................................
ARTICLE II Contribution of Equity Capital....................................
ARTICLE III Sponsors' Loans...................................................
ARTICLE IV Project Costs.....................................................
ARTICLE V Completion Guaranty...............................................
ARTICLE VI Subsidies Undertaking.............................................
ARTICLE VII [left intentionally blank]........................................
ARTICLE VIII AMD Inc. Share Pledge Agreement;
AMD Holding Security Documents
ARTICLE IX Sponsors' Guaranty................................................
ARTICLE X Sponsors' Subordination Agreement;
AMD Inc. Subordination Agreement
ARTICLE XI Obligations Unconditional.........................................
ARTICLE XII Representations and Warranties....................................
ARTICLE XIII Covenants.........................................................
ARTICLE XIV Costs and Expenses; Indemnities; Taxes; Etc.......................
ARTICLE XV Miscellaneous.....................................................
ARTICLE XVI Governing Law, Jurisdiction, and Language.........................
SCHEDULE I - [left intentionally blank]
SCHEDULE II - Sponsors' Disclosure Schedule
2
SPONSORS' SUPPORT AGREEMENT
THIS SPONSORS' SUPPORT AGREEMENT, dated 11 March 1997, as amended, is made
between 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
-----------
"Sponsors"), and DRESDNER BANK LUXEMBOURG S.A. ("Dresdner"), as Agent under the
-------- --------
Loan Agreement referred to below for the Banks referred to below (in such
capacity, the "Agent"), and DRESDNER BANK AG, 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, Dresden, registered in the Commercial
Register of the Dresden County Court HRB 13186 ("AMD Saxonia"), a wholly-owned
-----------
Subsidiary (such and other capitalised terms being used herein with the meanings
provided in Section 1.1) of AMD Holding, which is, 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 (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 have
made, and expect to make substantial subordinated loans to, and AMD Holding has
made, and from time to time may make, substantial equity investments in, AMD
Saxonia, and (ii) AMD Saxonia has entered into a Syndicated Loan Agreement,
dated 11 March 1997, as amended (as so amended, the "Loan Agreement"), with the
--------------
banks from time to time party thereto (hereinafter collectively called the
"Banks" and individually called a "Bank"), the Agent, Dresdner, as Paying Agent
----- ----
(in such capacity, the "Paying Agent"), and Dresdner Bank AG, as Security 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, the Sponsors desire that the Project be constructed and completed and
are entering into this Agreement with the Agent (for the benefit of itself and
the Banks) and the Security Agent (for the benefit of the Secured Parties), 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
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WHEREAS, a condition precedent to the initial Advance is, inter alia, the
----- ----
execution by the Sponsors of this Agreement and, in extending credit to AMD
Saxonia under the Loan Agreement, the Banks are relying on the undertakings of
the Sponsors contained herein;
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 and Accounting Terms
SECTION 1.1 Definitions. Unless otherwise defined herein, 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):
"Advances" means all advances that the Banks make to AMD Saxonia
--------
pursuant to the Loan Agreement.
"Affiliate" means, with respect to any Person, a Person which,
---------
directly or indirectly, controls, is controlled by, or is under common control
with, such other Person; and, for purposes of this definition, the concept of
"control", with respect to any Person, signifies the possession of the power to
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direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, the possession of voting
rights, by contract, or otherwise; provided, that none of the Agent, the
--------
Security Agent, the Paying Agent, any of the Banks, nor any of their respective
Affiliates, shall be deemed to be Affiliates of (x) any AMD Company or (y) any
other Subsidiary of AMD Inc.
"Agent" has the meaning assigned to that term in the introduction to
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this Agreement.
"Agreement" means this Sponsors' Support Agreement, as the same may
---------
be amended or modified in accordance with the terms hereof and in effect.
"AMD Companies" means AMD Saxonia, AMD Holding, and AMD Inc.,
-------------
collectively.
"AMD Holding" has the meaning assigned to that term in the
-----------
introduction to this Agreement.
"AMD Holding Assignment (U.S.A.)" means the AMD Holding Assignment
-------------------------------
of, inter alia, rights under the Wafer Purchase Agreements, the Sponsors' Loan
Agreement, and the Revolving Loan Facility Agreement, in the form set out in
Schedule 56 to the Loan Agreement, between AMD Holding and the Security Agent.
4
"AMD Holding Assignment of Contractual Rights" means the AMD Holding
--------------------------------------------
Assignment of Contractual Rights, in the form set out in Schedule 55 to the Loan
-----------
Agreement, between AMD Holding and the Security Agent.
"AMD Holding Assignment of Current Assets" means the AMD
-----------------------------------------------
Holding Security Assignment of Current Assets, in the form set out in
Schedule 52 to the Loan Agreement, between AMD Holding and the Security Agent.
-----------
"AMD Holding Charge of Bank Accounts" means the AMD Holding Charge
-----------------------------------
of Bank Accounts, in the form set out in Schedule 54 to the Loan Agreement,
-----------
between AMD Holding and the Security Agent.
"AMD Holding Global Assignment" means the AMD Holding Global
-----------------------------
Assignment, in the form set out in Schedule 53 to the Loan Agreement, between
-----------
AMD Holding and the Security Agent.
"AMD Holding Research Agreement" means the AMD Holding Research,
------------------------------
Design and Development Agreement, in the form set out in Schedule 34 to the Loan
-----------
Agreement, between AMD Inc. and AMD Holding.
"AMD Holding Security" means all collateral security created
--------------------
pursuant to the AMD Holding Security Documents.
"AMD Holding Security Documents" means, collectively, the AMD
------------------------------
Holding Assignment (U.S.A), the AMD Holding Assignment of Contractual Rights,
the AMD Holding Assignment of Current Assets, the AMD Holding Charge of Bank
Accounts, the AMD Holding Global Assignment, the AMD Holding Share Pledge
Agreement, and each other instrument or document designated by the Agent (with
the consent of each AMD Company) as an AMD Holding Security Document under and
for purposes of this Agreement.
"AMD Holding Share Pledge Agreement" means the AMD Holding Share
----------------------------------
Pledge Agreement, in the form set out in Schedule 51 to the Loan Agreement,
-----------
between AMD Holding and the Security Agent.
"AMD Holding Wafer Purchase Agreement" means the AMD Holding Wafer
------------------------------------
Purchase Agreement, in the form of Schedule 33 to the Loan Agreement, between
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AMD Inc. and AMD Holding.
"AMD Inc." has the meaning assigned to that term in the introduction
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to this Agreement.
"AMD Inc. Guaranty" means the AMD Inc. Guaranty in the form set out
-----------------
in Schedule 27 to the Loan Agreement, executed by AMD Inc. in favour of AMD
-----------
Saxonia, the Agent, and the Security Agent for the benefit of the Secured
Parties.
"AMD Inc. 1999 Loan and Security Agreement" means the Loan and
-----------------------------------------
Security Agreement, dated as of July 13, 1999, between, inter alia, AMD Inc.,
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the lenders party thereto, and
5
Bank of America National Trust and Savings Association, as administrative agent,
as amended by the First Amendment to Loan and Security Agreement, dated as of
July 30, 1999 and by the Second Amendment to Loan and Security Agreement, dated
as of February 12, 2001.
"AMD Inc. Primary Bank Credit Agreement" means, from time to time:
--------------------------------------
(i) the AMD Inc. 1999 Loan and Security Agreement; or
(ii) if the agreement referred to in paragraph (i) above is
-------------
terminated or cancelled, then any secured or unsecured
revolving credit or term loan agreement between or among AMD
Inc., as borrower, and any bank or banks, as lender(s), for
borrowed monies to be used for general corporate purposes of
AMD Inc., with an original term of not less than 4 years and
an original aggregate loan commitment of at least
$100,000,000 (one hundred million Dollars) or the equivalent
thereof in any other currency, and, if there is more than one
such revolving credit or term loan agreement, then such
agreement which involves the greatest original aggregate loan
commitment(s) and, as between agreements having the same
aggregate original loan commitment(s), then the one which has
the most recent date; or
(iii) if the agreement referred to in paragraph (i) above and all
-------------
of the agreements, if any, which could apply under paragraph
---------
(ii) above have been terminated or cancelled, then so long as
----
paragraph (ii) does not apply as the result of one or more
--------------
new agreements being entered into, the agreement which is the
last such agreement under paragraph (i) or (ii) to be so
------------- ----
terminated or cancelled as in effect immediately prior to
such termination or cancellation.
"AMD Inc. Security" means all collateral security furnished pursuant
-----------------
to the AMD Inc. Share Pledge Agreement.
"AMD Inc. Senior Secured Note Indenture" means that certain
--------------------------------------
Indenture, dated as of August 1, 1996, between AMD Inc. and United States Trust
Company of New York, as trustee, relating to the issuance by AMD Inc. of $
400,000,000 (four hundred million Dollars) of its 11% Senior Secured Notes due
2003, as amended by the First Supplemental Indenture dated as of January 13,
1999, by the Second Supplemental Indenture dated as of April 8, 1999 and by the
Third Supplemental Indenture dated as of July 28, 2000.
"AMD Inc. Share Pledge Agreement" means the AMD Inc. Share Pledge
-------------------------------
Agreement, in the form set out in Schedule 41 to the Loan Agreement, between AMD
-----------
Inc. and the Security Agent.
"AMD Inc. Subordination Agreement" means the AMD Inc. Subordination
--------------------------------
Agreement, in the form set out in Schedule 42 to the Loan Agreement, between AMD
-----------
Inc., AMD Holding, and the Security Agent.
6
"AMD Saxonia" has the meaning assigned to that term in the first
----------- -----
recital of this Agreement.
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"AMD Saxonia Assignment (U.S.A)" means the AMD Saxonia Assignment
------------------------------
of, inter alia, rights under the AMD Saxonia Wafer Purchase Agreement, the
----- ----
Sponsors'Loan Agreement, and the Revolving Loan Facility Agreement, in the
form set out in Schedule 50 to the Loan Agreement, between AMD Saxonia and the
-----------
Security Agent.
"AMD Saxonia Assignment of Contractual Rights" means the AMD Saxonia
--------------------------------------------
Assignment of Contractual Rights, in the form set out in Schedule 49 to the Loan
-----------
Agreement, between AMD Saxonia and the Security Agent.
"AMD Saxonia Assignment of Current Assets" means the AMD Saxonia
----------------------------------------
Security Assignment of Current Assets, in the form set out in Schedule 44 to the
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Loan Agreement, between AMD Saxonia and the Security Agent.
"AMD Saxonia Assignment of Fixed Assets" means the AMD Saxonia
--------------------------------------
Security Assignment of Fixed Assets, in the form set out in Schedule 45 to the
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Loan Agreement, between AMD Saxonia and the Security Agent.
"AMD Saxonia Assignment of Insurances" means the AMD Saxonia
------------------------------------
Assignment of Insurances, in the form set out in Schedule 46 to the Loan
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Agreement, between AMD Saxonia and the Security Agent.
"AMD Saxonia Charge of Project Accounts" means the AMD Saxonia
--------------------------------------
Charge of Project Accounts, in the form set out in Schedule 48 to the Loan
-----------
Agreement, between AMD Saxonia and the Security Agent.
"AMD Saxonia/Dresdner Subsidy Agreement" means the AMD/Dresdner
--------------------------------------
Subsidy Agreement, in the form set out in Schedule 25 to the Loan Agreement,
-----------
between AMD Saxonia and Dresdner.
"AMD Saxonia Disclosure Schedule" means the Disclosure Schedule
-------------------------------
attached to the Loan Agreement as Schedule 15, as it may be amended,
-----------
supplemented, or otherwise modified from time to time by AMD Saxonia with the
written consent of the Agent.
"AMD Saxonia Global Assignment" means the AMD Saxonia Global
-----------------------------
Assignment, in the form set out in Schedule 47 to the Loan Agreement, between
-----------
AMD Saxonia and the Security Agent.
"AMD Saxonia Hedging Contract" means the Agreement, in the form set
-----------------------------
out in Schedule 50a to the Loan Agreement, between AMD Saxonia and AMD Inc.
------------
"AMD Saxonia Land Charge" means the Grundschuld, in the form set out
-----------------------
in Schedule 43 to the Loan Agreement, between AMD Saxonia and the Security
-----------
Agent.
7
"AMD Saxonia Research Agreement" means the AMD Saxonia Research,
------------------------------
Design and Development Agreement, in the form set out in Schedule 36 to the Loan
-----------
Agreement, between AMD Holding and AMD Saxonia.
"AMD Saxonia Security" means all collateral security created
--------------------
pursuant to the AMD Saxonia Security Documents.
"AMD Saxonia Security Documents" means, collectively, the AMD
------------------------------
Saxonia Assignment (U.S.A), the AMD Saxonia Assignment of Contractual Rights,
the AMD Saxonia Assignment of Current Assets, the AMD Saxonia Assignment of
Fixed Assets, the AMD Saxonia Assignment of Insurances, the AMD Saxonia Charge
of Project Accounts, the AMD Saxonia Land Charge, the AMD Saxonia Global
Assignment, and each other instrument or document designated by the Agent (with
the consent of each AMD Company) as an AMD Saxonia Security Document under and
for purposes of this Agreement.
"AMD Saxonia Wafer Purchase Agreement" means the AMD Saxonia Wafer
------------------------------------
Purchase Agreement, in the form set out in Schedule 35 to the Loan Agreement,
-----------
between AMD Holding and AMD Saxonia.
"Approved Project Budget" means:
-----------------------
(i) that certain Project Budget, in the form set out in
Schedule 6 to the Loan Agreement, which has been prepared 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 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 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.
"Approved Project Schedule" means:
-------------------------
(i) initially, that certain Project Schedule, in the form set out
in Schedule 7 to the Loan Agreement, which has been prepared
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by AMD Saxonia and approved
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by each Sponsor with respect to the schedule for completing
each Project Phase and for achieving Completion; and
(ii) at any time after such Project Schedule has been updated,
amended, supplemented, or otherwise modified, and prior to
Completion, any such updated, amended, supplemented, or
modified Project Schedule 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 of the Loan Agreement.
----
The initial Approved Project Schedule and (subject to the requirements of (S)
13.1(i)(d)(y)(2)) each subsequent Approved Project Schedule 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 then anticipated date for
completing each then uncompleted Project Phase and for achieving Completion.
All references herein to the Approved Project Schedule shall, at any time, refer
to the Approved Project Schedule as then in effect.
"Auditor" means Ernst & Young Wirtschaftsprufungsgesellschaft mbH or
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such other firm of auditors charged with duties relating to the Project as may
be appointed by AMD Saxonia with the consent of the Agent, such consent not to
be unreasonably delayed or withheld.
"Available Tranche A Amount" means, on any date, the excess, if any,
--------------------------
of:
(i) the Total Tranche A Commitment Amount on such date;
over
----
(ii) the aggregate unpaid principal amount of all Tranche A
Advances outstanding on such date.
"Banks' Auditor" means BDO Deutsche Warentreuhand AG Wirtschafts-
----------------
prufungsgesellschaft or such other firm of auditors charged with duties relating
to the Project as may be appointed by the Banks with the consent of AMD Saxonia,
such consent not to be unreasonably delayed or withheld.
"Bank" and "Banks" have the respective meanings assigned to those
---- -----
terms in the second recital of this Agreement.
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"Business Day" means any day of the year on which banks are
------------
generally open for business in London, Frankfurt am Main, Dresden, Luxembourg
and, to the extent th e same relates to any obligation to be performed by AMD
Inc., San Francisco.
"Capital Expenditure" means all acquisition or manufacturing costs
-------------------
in respect of fixed and movable assets in accordance with (S) 266 2 A II of the
Commercial Code and all acquisition costs for intangible assets in accordance
with (S) 266 2 A I of the Commercial Code, to the extent the same
9
have a useful operational life of more than one year (not being expenditures
chargeable to the profit and loss account).
"Capitalised Lease Liabilities" means , with respect to any Person,
-----------------------------
all monetary obligations of such Person under any leasing or similar arrangement
which, in accordance with GAAP, would be classified as fixed or capitalised
leases or finance leases, and, for purposes of this Agreement, the amount of
such obligations shall be the capitalised amount thereof, determined in
accordance with GAAP, and the stated maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Cash Equivalent Investment" means any security or other instrument
--------------------------
set out in Schedule 23 to the Loan Agreement.
-----------
"Class A Sponsors' Loans" has the meaning assigned to that term in
-----------------------
Section 3.1.
-----------
"Class C Sponsors' Loans" has the meaning assigned to that term in
-----------------------
Section 3.1.
-----------
"Completion" means the date on which the initial satisfaction of all
----------
conditions set forth in the Technical Completion Certificate (Obligors) and the
Technical Completion Certificate (Technical Advisor), set out in Schedules 9 and
-----------
10 to the Loan Agreement is confirmed to the Agent by the submission of properly
--
executed originals of such Certificates.
"Completion Certificates" means the Scheduled Project Phase
-----------------------
Completion Certificates and the Technical Completion Certificates.
"Consent and Agreement" means:
---------------------
(i) in the case of the Sponsors, the Sponsors' Consent and
Agreement;
(ii) in the case of the Contractor, the Contractor's Consent and
Agreement;
(iii) in the case of an Equipment Supplier, each Equipment
Supplier's Consent and Agreement; and
(iv) in the case of a Service Supplier, each Service Supplier's
Consent and Agreement.
"Contingent Liabilities" means, with respect to any Person, any
----------------------
agreement, undertaking, or arrangement by which such Person guarantees,
endorses, or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for payment to,
supply funds to, or otherwise invest in, a debtor, or otherwise to assure a
creditor against loss) the indebtedness, obligation, or other liability of any
other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person. The amount of any Person's obligation under any
Contingent Liability shall (subject to any limitation set forth therein) be
deemed to be the
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outstanding principal amount (or maximum principal amount, if larger) of the
indebtedness, obligation, or other liability guaranteed thereby.
"Contractor" means Xxxxxxxx & Xxxxx GmbH & Co., Xxxxxxxxxxxxxxx 00,
----------
70499 Stuttgart, registered in the Commercial Register of the Stuttgart County
Court HRA 1208.
"Contractor's Consent and Agreement" means the Contractor's Consent
----------------------------------
and Agreement, in the form set out in Schedule 39 to the Loan Agreement, or in
-----------
such other form as is consented to by the Security Agent from the Contractor in
favour of the Security Agent.
"Contractual Obligation" means, as to any Person, any provision of
----------------------
any security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust, or other instrument, document, or agreement
to which such Person is a party or by which it or any of its property is bound.
"Contribution Date" means 30 June 1999.
-----------------
"Design/Build Agreement" means the Design/Build Agreement for the
----------------------
construction of the Plant and the Design Center, in the form set out in Schedule
--------
39 to the Loan Agreement, between the Contractor and AMD Saxonia.
--
"Design Center" means the research, design, and development
-------------
facilities constructed or to be constructed by AMD Saxonia and integrated with
the Plant for the purpose of designing and developing a broad spectrum of state-
of-the-art and other digital components such as micro-processors and circuits
for the telecommunications and multi-media sectors, and improvements thereof.
"Deutsche Xxxx Equivalent" means, with respect to any Class A
------------------------
Sponsors' Loan, the amount, expressed in Deutsche Marks, which results from the
conversion of Dollars to Deutsche Marks at a spot rate of exchange equal to the
greater of (i) DM 1.45 for $1.00 and (ii) the Agent's spot rate of exchange,
expressed in Deutsche Marks, for the sale of Dollars for Deutsche Marks
prevailing on the date two (2) Business Days prior to the date such Class A
Sponsors' Loan is or was due to be made.
"Deutsche Marks" and the sign "DM" mean lawful money of the Federal
-------------- --
Republic of Germany from time to time.
"Disclosure Schedules" means the AMD Saxonia Disclosure Schedule and
--------------------
the Sponsors' Disclosure Schedule, collectively.
"Dollars" and the sign "$" mean the lawful money of the United
------- -
States of America from time to time
"Dresdner" has the meaning assigned to that term in the introduction
-------- ------------
to this Agreement.
11
"Encumbrance" means, (i) when used with reference to any Person
-----------
organized and existing under the laws of the Federal Republic of Germany, any
security interest in property or in rights to secure payment of a debt or
performance of an obligation, including, but not limited to, mortgages
(Hypotheken), land charges (Grundschulden), annuity charges (Rentenschulden),
contractual and legal pledges (vertragliche und gesetzliche Pfandrechte)
including pledges or mortgages in favour of execution creditors
(Pfandungspfandrechte und Zwangshypotheken), transfers of title by way of
security (Sicherungsubereignungen), assignments of claims or other property or
rights by way of security (Sicherungsabtretungen und sonstige Ubertragungen xxx
Xxxxxx oder Rechten zur Sicherung), retention of title arrangements
(Eigentumsvorbehalt) including extended retentions of title (erweiterter und
verlangerter Eigentumsvorbehalt), and any other priority or preferential
arrangement of any kind or nature whatsoever, and (ii) when used with reference
to any other Person, any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge (including floating and fixed charges) against or interest in property to
secure payment of a debt or performance of an obligation, or other preferential
arrangement of any kind or nature whatsoever in respect of any property, but not
including the interest of a lessor under a lease which, in accordance with GAAP,
would be classified as an operating lease.
"Equipment Suppliers" means, collectively, each Person party to a
-------------------
contract or other agreement with AMD Saxonia in the capacity of a supplier of
fixed or tangible current assets for the Project; it being understood and agreed
that AMD Inc. or an Affiliate thereof (other than AMD Saxonia) may be an
Equipment Supplier.
"Equipment Supplier's Consent and Agreement" means, with respect to
------------------------------------------
an Equipment Supplier, such Equipment Supplier's Consent and Agreement, in the
form set out in Schedule 40 to the Loan Agreement or Annex 3 to Schedule 49 or
-----------
Annex 3 to Schedule 55 of the Loan Agreement, as the case may be, or in such
-----------
other form as is consented to by the Security Agent, which pertains to a
Material Equipment Supply Contract or which is otherwise required pursuant to
the terms of the Loan Agreement or the Security Documents.
"Equipment Supply Contract" means each agreement (also in the form
-------------------------
of an order) between AMD Saxonia and suppliers (including AMD Inc. or one of its
Affiliates) relating to the acquisition by, and delivery to, AMD Saxonia of
fixed or tangible current assets for the Project but excluding Excepted Software
Agreements.
"Equity Capital" means registered stated capital (Stammkapital).
--------------
"Event of Default" means an event which would entitle the Banks to
----------------
terminate their commitments and the loan facilities pursuant to (S) 21 of the
--
Loan Agreement.
"Event of Termination" means any event which would entitle a party
--------------------
to an Operative Document to terminate such Operative Document in accordance with
the terms thereof; provided, however, that such event could reasonably be
-------- -------
expected to have a material adverse consequence to the entirety of the
transactions contemplated by the Operative Documents.
12
"Excepted Software Agreements" means software licences and software
----------------------------
service agreements entered into by AMD Saxonia and which are used exclusively:
(i) for financial planning, business administration systems and
similar ancillary administrative functions which are not
linked or connected with (a) the production process in the
Plant; (b) general bookkeeping and invoicing; and (c)
production planning); or
(ii) in the Design Center.
"Financing Documents" means, collectively, the Loan Agreement, this
-------------------
Agreement, the Sponsors' Guaranty, the Sponsors' Subordination Agreement, the
AMD Inc. Subordination Agreement, the Sponsors' Loan Agreement, the Revolving
Loan Facility Agreement, the AMD Saxonia/Dresdner Subsidy Agreement, the
SAB/Dresdner Subsidy Agreement, the 65/35 Burgschaft, the AMD Saxonia Hedging
Contract, the Security Documents, each Consent and Agreement, and each other
instrument or document designated by the Agent (with the consent of each AMD
Company) as a Financing Document under and for purposes of this Agreement.
"Fiscal Month" means any fiscal month of a Fiscal Year.
------------
"Fiscal Quarter" means any fiscal quarter of a Fiscal Year.
--------------
"Fiscal Year" means any period of approximately 12 consecutive
-----------
calendar months ending on the last Sunday in December; references to a Fiscal
Year with a number corresponding to any calendar year (e.g., the "1997 Fiscal
Year") refer to the Fiscal Year ending on the last Sunday in December occurring
during such calendar year.
"GAAP" means, (x) in the case of AMD Saxonia or AMD Holding or its
----
respective financial statements, those generally accepted accounting principles
in general use by the accounting profession (Grundsatze ordnungsgemasser
Buchfuhrung und Bilanzierung) and in effect on the Loan Agreement Effective
Date in Germany (it being expressly understood and agreed that AMD Saxonia's and
AMD Holding's monthly and quarterly financial statements shall be prepared on
the basis of a Fiscal Month or a Fiscal Quarter (rather than on the basis of a
calendar month or a calendar quarter, as the case may be), but shall be
reconciled on an annual basis), and (y) in the case of AMD Inc. or its financial
statements, generally accepted accounting principles set forth from time to time
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
"Governmental Approvals" means each and every authorization,
----------------------
consent, approval, licence, permit, franchise, certificate, exemption or order
of or filing or registration with, any Governmental Authority or legal or
regulatory body, federal, state, local or foreign except for (i) routine or
periodic information reports which, if not filed, would not in any case or in
the aggregate, adversely affect the due authorization, execution, delivery,
validity, legality, or enforceability of any
13
of the Operative Documents, (ii) filings of certificates or articles of
incorporation, registrations or qualifications of a foreign corporation or
similar corporate filings, and (iii) returns and filings with respect to taxes.
"Governmental Authority" means any nation or government, any state
----------------------
or other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory, or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guarantors" means the Federal Republic of Germany and the Free
----------
State of Saxony in their respective capacities as guarantors pursuant to the
65/35 Burgschaft.
"Guaranty Decision" means the decision dated 2 July 1996 set out in
-----------------
Schedule 24 to the Loan Agreement concerning the guaranty application made by
-----------
AMD Saxonia, including the following documents:
(i) the specimen credit agreement F 13.09.1990 (1993 Edition)
Federal/State or THA
(ii) the General Terms and Conditions applicable to the assumption
of Guaranties by the Federal Republic of Germany and the
States of the Accession Territory (States) in the edition
dated F 04.01.1993 Federal/State, 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,
(iv) 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; and
(v) the letter from Deutsche Revision AG to Dresdner Kleinwort
Xxxxxx dated 17 November 2000.
"Indebtedness" of any Person, means, without duplication:
------------
(i) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures,
notes, or similar instruments;
(ii) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, guarantees, and
bankers' acceptances issued for the account of such Person,
whether or not drawn or paid;
14
(iii) all obligations of such Person as lessee under leases which
have been or should be, in accordance with GAAP, recorded as
Capitalised Lease Liabilities;
(iv) all net liabilities of such Person under or in connection
with any interest rate, currency, commodity, or other hedging
contracts to which such Person is a party;
(v) all other items which, in accordance with GAAP, would be
included as liabilities on the liability side of the balance
sheet of such Person as of the date at which Indebtedness is
to be determined;
(vi) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred
purchase price of property or services, and indebtedness
(including pre-paid interest thereon) secured by an
Encumbrance on property owned or being purchased by such
Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or
is limited in recourse; and
(vii) all Contingent Liabilities of such Person in respect of any
of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or unincorporated joint venture in which
such Person is a general partner or a joint venturer, respectively.
"Information Memorandum" means the Information Memorandum, dated
----------------------
September 1996, entitled "AMD Saxony Manufacturing GmbH, Dresden: DM
1,650,000,000 Information Memorandum Limited Recourse Financing", prepared and
furnished by the AMD Companies to the Agent, for distribution to prospective
lenders under the Loan Agreement, as such Information Memorandum may at any time
be amended or modified with the consent of each AMD Company and in effect.
"Instructing Group" means in respect of any matter, the Banks whose
-----------------
votes are required to pass a resolution on such matter as determined in
accordance with (S)(S) 22.5 and 22.6 of the Loan Agreement.
---- ----
"License Agreement" means the License Agreement, in the form set out
-----------------
in Schedule 38 to the Loan Agreement, between AMD Inc., AMD Holding, and AMD
-----------
Saxonia.
"Loan Agreement" has the meaning assigned to that term in the second
-------------- ------
recital of this Agreement.
-------
"Loan Agreement Effective Date" means the date specified by the
-----------------------------
Agent in a notice given to the parties hereto as being the first date on or as
of which (i) the Loan Agreement has been executed and delivered by each of the
respective parties thereto, and (ii) the Agent has received each
15
of the documents referred to in (S)(S) 5.1.1 to 5.1.16 of the Loan Agreement, in
----- ------
each case in the form, and with the substance, specified therein.
"Loan Agreement Termination Date" has the meaning assigned to that
-------------------------------
term in Section 15.7.
------------
"Management Plan" means the project concept attached as Schedule 14
--------------- -----------
to the Loan Agreement, as the same may from time to time be 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.
"Management Service Agreement" means the Amended and Restated
----------------------------
Management Service Agreement, in the form set out in Schedule 37 to the Loan
-----------
Agreement, between AMD Inc., AMD Holding, and AMD Saxonia.
"Material Adverse Effect" means
-----------------------
(i) a material adverse change in, or a material adverse effect
upon, the operations, business, properties, condition
(financial or otherwise), or prospects of any AMD Company, or
of AMD Inc. and its Subsidiaries, taken as a whole;
(ii) with respect to the Contractor, a material adverse change in,
or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise), or prospects
of the Contractor and its Subsidiaries, taken as a whole;
(iii) with respect to an Equipment Supplier, a material adverse
change in, or a material adverse effect upon, the operations,
business, properties, condition (financial or otherwise), or
prospects of such Equipment Supplier and its Subsidiaries,
taken as a whole;
(iv) with respect to a Service Supplier, a material adverse change
in, or a material adverse effect upon, the operations,
business, properties, condition (financial or otherwise), or
prospects of such Service Supplier and its Subsidiaries,
taken as a whole;
(v) a material impairment of the ability of any AMD Company, the
Contractor, any Equipment Supplier, or any Service Supplier
to perform its obligations under any Operative Document to
which it is or is to be a party; or
(vi) a material adverse effect upon (i) the legality, validity,
binding effect, or enforceability against any AMD Company,
the Contractor, any Equipment Supplier, or any Service
Supplier of any Operative Document, or (ii) the perfection or
priority of any Security granted under any of the Security
Documents;
16
provided, however, that with respect to an event described in clause (ii),
-------- ------- -----------
(iii), (iv), or, with respect to the Contractor, an Equipment Supplier, or a
----- -----
Service Supplier, clause (v) or (vi) above, such event could reasonably be
---------- ----
expected to have a material adverse consequence to the entirety of the
transactions contemplated by the Operative Documents.
"Material AMD Inc. Subsidiary" means, at any time, any Subsidiary of
----------------------------
AMD Inc. having at such time (either on an individual basis or on a consolidated
basis for such Subsidiary and its Subsidiaries) either:
(i) total (gross) revenues for the preceding four Fiscal Quarter
period in excess of 5% of gross revenues for AMD Inc. and its
Subsidiaries on a consolidated basis for such period, or
(ii) total assets, as of the last day of the preceding Fiscal
Quarter, having a net book value in excess of 5% of total
assets for AMD Inc. and its Subsidiaries on a consolidated
basis as of such date,
in each case, based on the then most recent annual or quarterly financial
statements delivered to the Agent hereunder; provided, however, that AMD Saxonia
-------- -------
and AMD Holding shall, for purposes of this Agreement, each be deemed to be a
Material AMD Inc. Subsidiary.
"Material Equipment Supply Contract" means each Equipment Supply
----------------------------------
Contract:
(i) pursuant to which AMD Saxonia incurs obligations in aggregate
in excess of DM 3,750,000, or
(ii) which has an initial term in excess of 12 months, or which
has an indefinite term and, in either case, cannot be
terminated by AMD Saxonia on less than 12 months' notice, or
(iii) which is listed in Part I of Schedule 40 to the Loan
-----------
Agreement.
"Material Service Contract" means each Service Contract (with the
-------------------------
exception of the AMD Saxonia Wafer Purchase Agreement, the Management Service
Agreement and employment contracts):
(i) pursuant to which AMD Saxonia incurs obligations in aggregate
in excess of DM 2,500,000 during the term of the contract, or
(ii) which has an initial term in excess of 12 months, or which
has an indefinite term and, in either case, cannot be
terminated by AMD Saxonia on less than 12 months' notice, or
(iii) which is listed in Part I of Schedule 40 to the Loan
-----------
Agreement.
17
"Minimum Liquidity Covenant" means the covenant described as
--------------------------
(Mindestliquiditatskennzahl) in Schedule 17 to the Loan Agreement, pursuant to
-----------
which AMD Saxonia has undertaken to ensure at all times from 1 July 2001 until
the payment in full of all Secured Obligations, the balance standing to the
credit of the Project Accounts shall be ***
"Minimum Liquidity Covenant Calculation Date" means, with effect
-------------------------------------------
from 1 July 2001:
(i) the date as of which the Minimum Liquidity Covenant is, or is
required to be, calculated in any certificate of compliance
furnished by AMD Saxonia pursuant to (S) 16.2.1 of the Loan
------
Agreement;
(ii) the date so referred to in a confirmation relating to the
financial covenants given by the Auditor pursuant to
(S) 16.2.2 of the Loan Agreement; and
------
(iii) each other date on which the Agent has reasonably requested a
calculation of the Minimum Liquidity Covenant to be made.
"Operative Documents" means, collectively, the Project Agreements,
-------------------
the Financing Documents, the AMD Inc. Primary Bank Credit Agreement, the AMD
Inc. Senior Secured Note Indenture, the Management Plan, each Project Budget,
each Project Schedule, each Approved Project Budget, each Approved Project
Schedule, the Information Memorandum, the Completion Certificates, and each
other instrument or document designated by the Agent (with the consent of each
AMD Company) as an Operative Document under and for purposes of this Agreement.
"Opinion Reservations" means limitations on the enforceability of
--------------------
legal documents as a matter of German law or the law of the United States of
America or one of its states and as incorporated as qualifications to an
enforceability opinion in the legal opinions delivered to and accepted by the
Agent under and pursuant to (S) 5.1.11 of the Loan Agreement.
------
"Organizational Documents" means, with respect to any AMD Company,
------------------------
its certificate of incorporation, Memorandum and Articles of Association,
charter, by-laws, and (ex cept with respect to AMD Inc.) all shareholder
agreements, voting trusts, and similar arrangements applicable to any of its
authorised shares of capital stock.
"Paying Agent" has the meaning assigned to that term in the second
------------ ------
recital of this Agreement.
-------
"Perform in Accordance with the Plans and Specifications" means, for
-------------------------------------------------------
purposes of the Technical Completion tests, and when used for the period from
and after Technical Completion, the performance by the Plant, on a substantially
continuous basis substantially as intended under normal operating conditions, of
the functions for which it was designed in accordance with the Plans and
Specifications. In order to certify that the Plant is capable of performing
substantially as intended under normal operating conditions, the Technical
Advisor will during normal operations of the Plant
-------------------------
*** CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
18
(and without, to the extent practicable, disrupting production at the Plant),
observe the operation of the Plant and its component parts to determine if the
Plant and its component parts (except for uninstalled spares):
(x) are in operation and performing normally; and
(y) demonstrate as a whole the operation of the principal
component parts of the Plant at production rates consistent
with the design capacity of the Plant (as observed by the
Technical Advisor from the operating log sheets and such other
data as may be reasonably available and is demonstrated from
AMD Saxonia's operating reports, copies of which will be
obtained by the Technical Advisor).
The Technical Advisor will not be required to conduct specific tests on
individual pieces of the Plant or its component parts in making this
determination. In order to certify that the Plant has met the tests, or has
demonstrated performance equivalent to the tests, set forth in the definition
"Perform in Accordance with the Plans and Specifications", the Technical Advisor
will:
(i) in the case of demonstrated performance equivalent to the
tests of the Plant (or portion thereof), obtain and rely on
copies of, review, and analyze, AMD Saxonia's operating data
comprising, but not limited to, daily log sheets, yield test
results, and product shipments and, based upon the foregoing,
will determine if the Plant (or such portion) has
demonstrated its required performance; and
(ii) in the case of a formal test run, observe the operations
during normal business hours to verify the operating rates
and time of operation and obtain and rely on copies of and
review and analyse AMD Saxonia's operating data (as specified
in clause (i) above) to independently determine if the Plant
----------
(or portion thereof) has demonstrated its required
performance.
"Permitted Encumbrances" means, (i) in the case of AMD Saxonia or AMD
----------------------
Holding, any Encumbrance arising by operation of law in the ordinary course of
business, Encumbrances arising in the ordinary course of business as a result of
a supplier retaining title to goods supplied pending payment for such goods, and
Encumbrances on the Security pursuant to the Security Documents, and (ii) in the
case of AMD Inc. or any Subsidiary of AMD Inc. (other than AMD Saxonia or AMD
Holding), a "Permitted Lien" under, and as defined in, the AMD Inc. 1999 Loan
and Security Agreement (or the equivalent thereof in any other AMD Inc. Primary
Bank Credit Agreement).
"Person" means an individual or a corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, joint stock company,
government (or an agency or political subdivision thereof), or other juridical
entity of any kind.
"Plans and Specifications" means the plans and specifications to be
------------------------
prepared by AMD Saxonia and approved by each of the Sponsors (which approval
shall not be unreasonably delayed or
19
withheld), the Technical Advisor, and the Agent for the fitting out of the Plant
and the Design Center, as the same may be amended by AMD Saxonia from time to
time with the consent of each Sponsor and the Agent (which consent, in the case
of each Sponsor, shall not be unreasonably delayed or withheld); provided, that
--------
amendments to the plans and specifications which do not, individually or in the
aggregate, reduce or adversely affect the value of the Plant and the Design
Center in any material respect or the capacity and purpose of the Plant as set
out in the plans and specifications as originally approved by the Technical
Advisor and the Agent for purposes of the Operative Documents shall not require
the consent of the Agent.
"Plant" means the advanced silicon wafer production facility
-----
constructed or to be constructed by AMD Saxonia in or near Dresden, Germany to
manufacture integrated circuits in wafer form using high-volume semi-conductor
wafer fabrication processes.
"Primary Secured Obligations" means, at the time any determination
---------------------------
thereof is to be made, all Secured Obligations then owing and, whether or not
then owing, all Secured Obligations in respect of the principal of and interest
on the Advances.
"Project" has the meaning assigned to that term in the first recital
------- ----- -------
of this Agreement.
"Project Accounts" means the account or accounts referred to and
----------------
opened pursuant in (S) 19.1 of the Loan Agreement (including any sub-accounts
-----
into which any such account may be divided), as such account may be renewed,
redesignated, or renumbered from time to time.
"Project Agreements" means, collectively, the Wafer Purchase
------------------
Agreements, the Research Agreements, the Management Service Agreement, the
License Agreement, the Design/Build Agreement, the Equipment Supply Contracts,
the Service Contracts, the AMD Inc. Guaranty, and each other instrument or
document designated by the Agent (with the consent of each AMD Company) as a
Project Agreement under and for purposes of this Agreement.
"Project Budget" means the budget, in the form set out in Schedule 6
-------------- ----------
to the Loan Agreement, with such changes (if any) to its form as the Agent may
from time to time reasonably require, of projected Capital Expenditure for the
implementation of the Project and the Project Phases in the implementation of
the Project prior to Completion, including a detailed projected sources and uses
of funds statement, broken down for each Project Phase on a Fiscal Quarter by
Fiscal Quarter basis, as prepared by AMD Saxonia and approved by each Sponsor in
accordance with the Management Plan and the Project Schedule, such approval not
to be unreasonably withheld or delayed.
"Project Costs" means all Capital Expenditure and other costs which
-------------
are incurred by AMD Saxonia in connection with the Project.
"Project Phase" means each project phase set out in the Approved
-------------
Project Schedule contemplated for the implementation of the Project.
"Project Schedule" means the schedule, in the form set out in
----------------
Schedule 7 to the Loan Agreement, with such changes (if any) to its form as the
----------
Agent may from t ime to time reasonably require, of Project Phases to be
achieved during the construction of the Project prior to Completion,
20
as prepared by AMD Saxonia and approved by each Sponsor, such approval not to be
unreasonably withheld or delayed.
"Relevant AMD Inc. Individual" means any Vice President or more
----------------------------
senior officer of AMD Inc., some or all of whose responsibilities include the
Project.
"Requirements of Law" means, with respect to any Person, any law
-------------------
(statutory or common), treaty, rule, or regulation or determination of an
arbitrator or of a Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.
"Research Agreements" means, collectively, the AMD Saxonia Research
-------------------
Agreement and the AMD Holding Research Agreement.
"Revolving Loans" means, the subordinated unsecured revolving loans
---------------
made by either Sponsor to AMD Saxonia under the terms of the Revolving Loan
Facility Agreement.
"Revolving Loan Facility Agreement" means, the $ 500,000,000
---------------------------------
subordinated unsecured Revolving Loan Facility Agreement dated 20 February 2001
between AMD Inc., AMD Holding and AMD Saxonia.
"SAB" means Sachsische Aufbaubank GmbH, a Gesellschaft mit
---
beschrankter Haftung organised and existing under the laws of Germany and
registered in Dresden, Germany, acting on behalf of the Free State of Saxony.
"SAB Related Agreements" means the AMD Saxonia/Dresdner Subsidy
----------------------
Agreement and the SAB/Dresdner Subsidy Agreement, collectively.
"SAB/Dresdner Subsidy Agreement" means the Agreement, in the form
------------------------------
set out in Schedule 26 to the Loan Agreement, between SAB and Dresdner.
-----------
"Same Day Funds" means, at the time of any determination, funds
--------------
which are immediately available to AMD Saxonia.
"Scheduled Project Phase Completion Certificates" means the
-----------------------------------------------
Scheduled Project Phase Technical Completion Certificate (Obligors) and the
Scheduled Project Phase Technical Completion Certificate (Technical Advisor).
"Scheduled Project Phase Technical Completion" when used with
--------------------------------------------
reference to a Project Phase, shall be deemed to have occurred when:
(i) all of the conditions set forth in the form of Scheduled
Project Phase Technical Completion Certificate (Obligors)
attached to the Loan Agreement as Schedule 9 thereto have
----------
been satisfied in all material respects, all of the
statements appearing in said form of Certificate are true and
correct in all material respects, in each case with respect
to such Project Phase, and the
21
Agent shall have received a fully executed counterpart of
such Certificate; and
(ii) the Agent shall have received a fully executed counterpart of
the Scheduled Project Phase Technical Completion Certificate
(Technical Advisor).
"Scheduled Project Phase Technical Completion Certificate (Obligors)"
------------------------------------------------------------------
means a Certificate, in the form set out in Schedule 9 to the Loan Agreement
----------
(appropriately completed), executed by the AMD Companies, and delivered to the
Agent.
"Scheduled Project Phase Technical Completion Certificate (Technical
-------------------------------------------------------------------
Advisor)" means a Certificate, in the form set out in Schedule 10 to the Loan
-------- -----------
Agreement (appropriately completed), executed by the Technical Advisor, and
delivered to the Agent.
"Secured Obligations" means all actual and contingent obligations of
-------------------
AMD Saxonia to the Secured Parties under or arising out of the Financing
Documents and the Security Documents.
"Secured Parties" means the Agent, the Paying Agent, the Security
---------------
Agent, and the Banks, collectively.
"Security" means, collectively, the AMD Inc. Security, the AMD
--------
Holding Security, and the AMD Saxonia Security.
"Security Agent" has the meaning assigned to that term in the
--------------
introduction to this Agreement.
------------
"Security Documents" means, collectively, the AMD Saxonia Security
------------------
Documents, the AMD Holding Security Documents, the AMD Inc. Share Pledge
Agreement, and each other instrument or document designated by the Agent (with
the consent of each AMD Company) as a Security Document under and for purposes
of this Agreement.
"Service Suppliers" means, collectively, each Person party to a
-----------------
contract or other agreement with AMD Saxonia in the capacity of a supplier of
services for the Plant or the Design Center.
"Service Supplier's Consent and Agreement" means, with respect to a
----------------------------------------
Service Supplier, such Service Supplier's Consent and Agreement, in the form set
out in Schedule 40 to the Loan Agreement or Annex 3 to Schedule 49 of the Loan
----------- -----------
Agreement, as the case may be, or such other form as is consented to by the
Security Agent, which pertains to a Material Service Contract or which is
otherwise required pursuant to the terms of the Loan Agreement or the Security
Documents.
"Service Contract" means each agreement (which may be in the form of
----------------
an accepted order) between AMD Saxonia and a Service Supplier relating to the
acquisition by, and delivery to, AMD Saxonia of services for the Project but
excluding Excepted Software Agreements.
"65/35 Burgschaft" means the several maximum amount shortfall
----------------
guaranties issued by each of the Free State of Saxony (26%) and the Federal
Republic of Germany (39%) in
22
accordance with the Guaranty Decision up to a maximum aggregate amount of DM
975,000,000 (nine hundred and seventy five million Deutsche Marks), together
with 65% of the shortfall of interest and costs, vested with a first right of
satisfaction in favour of the Banks over all security granted by each AMD
Company as security for the Banks' risk of recovery (but subject to a set-off of
65 % of payments (if any) made under the Sponsors' Guaranty against the
Guarantors' obligations under the aforesaid shortfall guaranties).
"Sponsors" has the meaning assigned to that term in the introduction
-------- ------------
to this Agreement.
"Sponsors' Consent and Agreement" means the Sponsors' Consent and
-------------------------------
Agreement, in the form set out in Schedule 31 to the Loan Agreement, between the
-----------
Sponsors, the Agent, and the Security Agent.
"Sponsors' Disclosure Schedule" means the Disclosure Schedule attached
-----------------------------
as Schedule II, as it may be amended, supplemented, or otherwise modified from
-----------
time to time by the Sponsors with the written consent of the Agent.
"Sponsors' Guaranty" means the Sponsors' Guaranty, in the form set out
------------------
in Schedule 32 to the Loan Agreement, executed by the Sponsors in favour of the
-----------
Agent and the Security Agent for the benefit of the Secured Parties.
"Sponsors' Loan Agreement" means the Sponsors' Loan Agreement, in the
------------------------
form set out in Schedule 29 to the Loan Agreement, between the Sponsors, as
-----------
lenders, and AMD Saxonia, as borrower.
"Sponsors' Loans" means all loans made or to be made by AMD Inc. or
---------------
AMD Holding to AMD Saxonia in accordance with the terms of the Sponsors' Loan
Agreement, which loans are subordinated in accordance with the Sponsors'
Subordination Agreement.
"Sponsors' Subordination Agreement" means the Sponsors' Subordination
---------------------------------
Agreement, in the form set out in Schedule 30 to the Loan Agreement, executed by
-----------
the Sponsors, AMD Saxonia, and the Security Agent.
"Sponsors' Warranty Date" means each of the following dates which
-----------------------
occurs prior to the exercise of rights by the Security Agent under any of the
Security Documents: (i) the Loan Agreement Effective Date, (ii) each date AMD
Saxonia delivers a notice of drawing for an Advance under the Loan Agreement,
(iii) each date the AMD Companies deliver each Scheduled Project Phase Technical
Completion Certificate (Obligors), (iv) the date of Technical Completion, and
(v) each date the Sponsors deliver the certificate referred to in Section
-------
13.1(i)(c).
----------
"Stock Offering" means a public or private sale or other 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).
23
"Subsidiary" means with respect to (i) any Person organised and
----------
existing under the laws of the Federal Republic of Germany, a subsidiary within
the meaning of the term "abhangiges Unternehmen" in (S) 17 of the German Stock
Corporation Act (Aktiengesetz); and (ii) any other Person, a corporation or
other entity of which such Person or such Person and/or such Person's other
Subsidiaries own, directly or indirectly, more than 50% of the ordinary voting
power for the election of directors or others performing similar functions.
"Subsidies" has the meaning assigned to that term in Section 6.1.
--------- -----------
"Taxes" has the meaning assigned to that term in Section 14.5(a).
----- ---------------
"Technical Advisor" means Fraunhofer Institut fur
-----------------
Siliziumtechnologie, Itzehoe, or such other technical advisor as may be
appointed by the Security Agent with the consent of each AMD Company, which
consent shall not be unreasonably delayed or withheld.
"Technical Advisor's Report" means that certain report dated October
--------------------------
16, 1996 from the Technical Advisor to the Agent prepared for purposes of this
Agreement and the other Operative Documents and the transactions contemplated
hereby and thereby.
"Technical Completion" shall be deemed to have occurred when:
--------------------
(i) all of the conditions set forth in the form of Technical
Completion Certificate (Obligors) attached to the Loan
Agreement as Schedule 9 thereto have been satisfied in all
----------
material respects, all of the statements appearing in said
form of Certificate are true and correct in all material
respects, and the Agent shall have received a fully executed
counterpart of such Certificate; and
(ii) the Agent shall have received a fully executed counterpart of
the Technical Completion Certificate (Technical Advisor).
"Technical Completion Certificates" means the Technical Completion
---------------------------------
Certificate (Obligors) and the Technical Completion Certificate (Technical
Advisor).
"Technical Completion Certificate (Obligors)" means a certificate,
-------------------------------------------
in the form set out in Schedule 9 to the Loan Agreement (appropriately completed
----------
and with the legal opinion therein referred to attached), executed by the AMD
Companies, and delivered to the Agent.
"Technical Completion Certificate (Technical Advisor)" means a
----------------------------------------------------
certificate, in the form set out in Schedule 10 to the Loan Agreement
-----------
(appropriately completed), executed by the Technical Advisor, and delivered to
the Agent.
"Total Tranche A Commitment Amount" means DM 1,500,000,000 (one
---------------------------------
billion five hundred million Deutsche Marks), as such amount shall be reduced by
any reductions to (but not utilizations of) the commitments of the Banks under
"Facility A" under the Loan Agreement.
"Tranche A Advances" means Advances made by the Banks or any Bank
------------------
pursuant to "Facility A" under the Loan Agreement.
24
"Total Revolving Loan Commitment Amount" means $ 500,000,000 (five
--------------------------------------
hundred million Dollars) or the "Euro Equivalent" (under, and as defined
therein) thereof, or such reduced amount as shall have been agreed upon by each
of the Sponsors, AMD Saxonia, the Agent, and the Banks.
"Unmatured Event of Default" means an event or circumstance which,
--------------------------
with the giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied) constitute an Event of Default.
"Wafer" has the meaning assigned to that term in the AMD Saxonia
-----
Wafer Purchase Agreement.
"Wafer Purchase Agreements" means, collectively, the AMD Saxonia
-------------------------
Wafer Purchase Agreement and the AMD Holding Wafer Purchase Agreement.
SECTION 1.2 Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein shall be interpreted, all accounting
determinations and computations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared in accordance
with, GAAP. When used herein, the term "financial statements" shall include the
notes and schedules thereto, but need not include such notes or schedules when
used with reference to such statements of any Person as of any date other than
the end of a Fiscal Year of such Person. In the determination of any periods
pursuant to any provision hereof, unless otherwise specified, the term "from"
means "from (and including)", the term "to" means "to (and excluding)", and the
term "until" means "until (and excluding)".
SECTION 1.3 Construction. In this Agreement, unless the context requires
otherwise, any reference to:
"assets" includes any asset, property, or right and includes
------
uncalled capital;
"including" or "includes" means including or includes without
--------- --------
limitation;
"law" and/or "regulation" includes any constitutional provision,
--- ----------
treaty, convention, statute, act, law, decree, ordinance, subsidiary or
subordinate legislation, order, rule, or regulation having the force of law, and
any rule of civil or common law or equity;
"order" includes any judgment, injunction, decree, determination, or
-----
award of any court, arbitration, or administrative tribunal;
"tax" includes any tax, levy, duty, charge, impost, fee, deduction,
---
or withholding of any nature now or hereafter imposed, levied, collected,
withheld, or assessed by any taxing or other authority and includes any
interest, penalty, or other charge payable or claimed in respect thereof, and
"taxation" shall be construed accordingly; and
--------
25
"winding-up" includes any winding-up, liquidation, dissolution, or
----------
comparable process in any jurisdiction.
SECTION 1.4 Miscellaneous. In this Agreement, 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; (iv) references to Sections and Schedules are to Sections of and
Schedules to this Agreement; and (v) 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.
ARTICLE II
Contribution of Equity Capital
SECTION 2.1 Undertaking to Contribute. AMD Holding hereby undertakes to
contribute to AMD Saxonia, and AMD Inc. hereby undertakes to cause AMD Holding
to so contribute to AMD Saxonia (and AMD Inc. shall, to the extent necessary,
contribute sufficient funds, or otherwise cause sufficient funds to be made
available, to AMD Holding as shall be necessary to enable AMD Holding to so
contribute to AMD Saxonia), Equity Capital at the times and in the amounts set
forth in Section 2.2. For the avoidance of doubt:
-----------
(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 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;
----------
(ii) the obligations of the Sponsors contained in this Article II are in
addition to, and not in limitation of, their respective obligations
contained elsewhere in this Agreement and in the other Operative
Documents;
(iii) the Sponsors shall not be relieved of the foregoing obligations by
virtue of:
(a) any Sponsors' Loan made by either Sponsor pursuant to this
Agreement or the Sponsors' Loan Agreement or any Revolving
Loan made by either Sponsor pursuant to this Agreement or the
Revolving Loan Facility 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; or
-----------
26
(b) any payment made by either Sponsor under the Sponsors'
Guaranty; and
(iv) the amounts set forth in Section 2.2 below are minimum aggregate
-----------
amounts of Equity Capital to be received by AMD Saxonia; nothing
contained herein shall be deemed to preclude AMD Holding from making
additional contributions to AMD Saxonia's stated capital or capital
reserves in order to fulfil the obligations of the Sponsors
contained in Article IV, V, VI, or VII, or for any other reason.
---------- - -- ---
SECTION 2.2 Time of Contribution. The Equity Capital to be contributed to AMD
Saxonia under this Article II is due and payable to AMD Saxonia as follows:
----------
(i) one or more instalments aggregating DM 108,750,000 (one hundred
eight million seven hundred fifty thousand Deutsche Marks) on or
before the date of the initial Advance under the Loan Agreement; it
being understood and agreed that, 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 not so reflected, as
------
certified by AMD Inc. to the Agent and the Security Agent as of the
Loan Agreement Effective Date), all contributions to the Equity
Capital of AMD Saxonia prior to Loan Agreement Effective Date shall
be considered contributions to its Equity Capital for purposes of
this Section 2.2(i); and
--------------
(ii) in addition to the Equity Capital contributed or to be contributed
pursuant to Section 2.2(i) hereof, one or more additional
--------------
instalments aggregating DM 108,750,000 (one hundred eight million
seven hundred fifty thousand Deutsche Marks) by the earlier to occur
of:
(a) the acceleration of the Advances under the Loan Agreement
following the occurrence of an Event of Default (it being
understood and agreed that if, at the time of any such
acceleration, the Primary Secured Obligations are less than
the amount otherwise required to be contributed to AMD
Saxonia under this Section 2.2(ii), such contribution shall
---------------
be made in an amount which, when added to the aggregate
amount of all Sponsors' Loans and/or other contributions to
AMD Saxonia's Equity Capital or capital reserves then
concurrently made, is equal to the Primary Secured
Obligations at such time); and
(b) December 31 1997;
provided, however, that such Equity Capital shall be required to be
-------- -------
contributed in whole or in part at any time prior to such dates if,
but only to the extent that, the ratio of:
(x) the sum of
(1) the then aggregate outstanding principal amount of
Sponsors' Loans,
27
plus
----
(2) the then aggregate amount of AMD Saxonia's Equity
Capital and capital reserves,
to
--
(y) the then aggregate outstanding principal amount of the
Advances,
is less than 25:75.
SECTION 2.3 Form of Contribution. The Equity Capital under this Article II
----------
shall be contributed in cash and in Same Day Funds to AMD Saxonia.
ARTICLE III
Sponsors' Loans
SECTION 3.1 Undertaking to Make Class A 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");
-----
(ii) [left intentionally blank]
(iii) in an aggregate principal amount of $70,000,000 (seventy million
Dollars) as contemplated by Section 3.4 (the "Class C Sponsors'
-----------------
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 (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
------
28
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) as Class A Sponsors' Loans in determining whether the Sponsors
shall have complied with their obligations under this Article III;
-----------
(iii) although the obligations of the Sponsors contained in this Article
-------
III are in addition to, and not in limitation of, their respective
---
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 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,
-----------
provided in clause (iii) above) otherwise;
-----------
(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) [left intentionally blank]
(d) of any obligation to make Class A 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 3.5 below;
-----------
(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
----------- -------- -------
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:
29
(a) for the purpose of determining whether the Sponsors have complied
with their obligations under Section 3.4, any Class C Sponsors'
-----------
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 only
------------ ---
if:
(a) the Sponsors shall have complied with each of their respective
obligations under Article II and, insofar as such obligations
----------
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
-----------
(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
-----------
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, VI, or VII, or for
---------- - -- ---
any other reason.
SECTION 3.2 Time of Class A Sponsors' Loans. The Class A Sponsors' Loans will
be made in cash and in Same Day Funds and will be made as follows:
(i) at least DM 145,000,000 (one hundred forty five million Deutsche
Marks) for all such Class A Sponsors' Loans, the exact amount thereof
being equal to the Deutsche Xxxx Equivalent of $100,000,000 (one
hundred million Dollars) for all such Class A Sponsors' Loans, by the
earlier to occur of:
(a) the acceleration of the Advances under the Loan Agreement
following the occurrence of an Event of Default (it being
understood and agreed that if, at the time of any such
acceleration, the Primary Secured Obligations are less than the
amount otherwise required to be lent to AMD Saxonia under this
Section 3.2(i), the amount of such Class A Sponsors' Loans shall
--------------
be an
30
amount which, when added to the aggregate amount of all Sponsors'
Loans and/or other contributions to AMD Saxonia's Equity Capital
or capital reserves then concurrently made, is equal to the
Primary Secured Obligations at such time); and
(b) December 31, 1998; and
(ii) at least a further DM 145,000,000 (one hundred forty five million
Deutsche Marks) for all such Class A Sponsors' Loans, the exact amount
thereof being equal to the Deutsche Xxxx Equivalent of $100,000,000
(one hundred million Dollars) for all such Class A Sponsors' Loans, by
the earlier to occur of:
(a) the acceleration of the Advances under the Loan Agreement
following the occurrence of an Event of Default (it being
understood and agreed that if, at the time of any such
acceleration, the Primary Secured Obligations are less than the
amount otherwise required to be lent to AMD Saxonia under this
Section 3.2(ii), the amount of such Class A Sponsors' Loans shall
---------------
be an amount which, when added to the aggregate amount of all
Sponsors' Loans and/or other contributions to AMD Saxonia's
Equity Capital or capital reserves then concurrently made, is
equal to the Primary Secured Obligations at such time); and
(b) December 31, 1999;
provided, however, that such Class A Sponsors' Loans shall be required to
-------- -------
be made in whole or in part at any time prior to the aforesaid dates if,
but only to the extent that, the ratio of:
(x) the sum of
(1) the then aggregate outstanding principal amount of
Sponsors' Loans,
plus
----
(2) the then aggregate amount of AMD Saxonia's Equity
Capital and capital reserves,
to
--
(y) the then aggregate outstanding principal amount of the
Advances under the Loan Agreement,
is less than 25:75.
SECTION 3.3 [left intentionally blank]
31
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 in full, pursuant to
Section 4.07 of the AMD Inc. Senior Secured Note Indenture (prior to giving
------------
effect to the Third Supplemental Indenture dated as of July 28, 2000), without
utilizing any of the provisions contained in the first proviso to Section
-------
4.07(iv) thereof, by the Contribution Date at the latest.
--------
SECTION 3.5 Additional Sponsors' Loans. In addition to the Class A 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
-----------
subordinated as a Junior Liability (under, and as defined in, the
Sponsors' Subordination Agreement); and
(ii) shall not relieve the Sponsors from any obligation to make Class A
Sponsors' Loans or Class C Sponsors' Loans in accordance with Sections
--------
3.2, and 3.4 above respectively.
---- ---
SECTION 3.6 Terms of Sponsors' Loans. The making of Sponsors' Loans will be
made on the terms, and shall be subject to the conditions, contained in the
Sponsors' Loan Agreement which, as provided in Section 3.1, is intended to
-----------
reflect, rather than to be in addition to, the obligations of the Sponsors
contained in this Article III.
-----------
SECTION 3.7 Undertaking to make Revolving Loans/Terms of Revolving Loans. The
Sponsors hereby jointly and severally undertake that either Sponsor or both
Sponsors will make available to AMD Saxonia an unsecured, subordinated revolving
loan facility in an aggregate principal amount of $ 500,000,000 (five hundred
million Dollars) with a term of no earlier than 31 March, 2006 and bearing
interest at a rate not in excess of 1% (one per cent) per annum over the
Applicable Rate (as defined in the Revolving Loan Facility Agreement), on and
subject to the terms and conditions contained in the Revolving Loan Facility
Agreement, which is intended to reflect, rather than to be in addition to, the
obligations of the Sponsors contained in this Article III, to the extent
-----------
applicable to Revolving Loans.
SECTION 3.8 Time of Revolving Loans. Revolving Loans will be made in cash and
in Same Day Funds:
(i) in such amounts as shall be required from time to time to ensure that
as from 1 July 2001, the Minimum Liquidity Covenant is complied with
at all times and, in any event, upon first written demand by the
Security Agent at any time and from time to
32
time immediately following a Minimum Liquidity Covenant Calculation
Date in such amounts as may be necessary to remedy any shortfall in
the Minimum Liquidity Covenant at any time and from time to time; and
(ii) in such amounts as shall be required from time to time and, in any
event, upon the first written demand of AMD Saxonia at any time and
from time to time to finance AMD Saxonia's general corporate funding
requirements, including working capital, cash expenses and other
capital requirements of AMD Saxonia.
The Sponsors shall be relieved of their respective obligations to make Revolving
Loans available to AMD Saxonia if, but only if:
(x) the Sponsors shall have complied with each of their respective
obligations under Article II and, insofar as such obligations 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
-----------
(y) following a demand for payment by the Agent under the Sponsors'
Guaranty, the Sponsors shall have paid all amounts payable under the
Sponsors' Guaranty.
In addition to the Revolving Loans contemplated to be made under Section 3.7,
-----------
the Sponsors (or either of them) may, from time to time, at their option make
additional Revolving Loans in order to fulfil their respective obligations
contained herein or otherwise to provide additional funds to AMD Saxonia, it
being expressly understood and agreed that any such Revolving Loans shall be
optional rather than compulsory, and that in no event shall the Sponsors (or
either of them) be obligated to advance Revolving Loans such that the total
amount of outstanding Revolving Loans would exceed the Total Revolving Loan
Commitment Amount.
SECTION 3.9 Subordination of Sponsors' Loans and Revolving Loans. The
Sponsors' Loans and the Revolving Loans will be subordinated on the terms and
conditions contained in the Sponsors' Subordination Agreement.
33
ARTICLE IV
Project Costs
SECTION 4.1 Project Costs. In addition to, and not in limitation of, their
other obligations contained in this Agreement and the other Operative Documents,
the Sponsors, jointly and severally, hereby undertake to provide AMD Saxonia
with Same Day Funds (whether, in the case of AMD Holding, by contribution to AMD
Saxonia's Equity Capital (or other contributions to AMD Saxonia's capital
reserves), or, in the case of either Sponsor, through Sponsors' Loans or
Revolving Loans) sufficient to cover all Project Costs (after taking into
account the Available Tranche A Amount). The Sponsors shall be relieved of any
further obligations under this Article IV if, but only if:
(i) the Sponsors shall have complied with each of their respective
obligations under Article II and, insofar as such obligations relate
----------
to Class A Sponsors' Loans (or additional contributions to Equity
Capital or AMD Saxonia's capital reserves in lieu thereof), Article
-------
III; and
---
(ii) following a demand by the Agent for payment under the Sponsors'
Guaranty, the Sponsors shall have paid all amounts payable under the
Sponsors' Guaranty.
SECTION 4.2 [left intentionally blank]
SECTION 4.3 Form of Contribution. The Sponsors may comply with their
respective obligations under this Article IV by making:
----------
(i) in the case of either Sponsor, Revolving Loans pursuant to the terms
and conditions of the Revolving Loan Facility Agreement; and/or
(ii) in the case of AMD Holding, a cash increase in the Equity Capital (or
other contributions to AMD Saxonia's capital reserves) of AMD Saxonia;
and/or
(iii) in the case of either Sponsor, further Sponsors' Loans to AMD
Saxonia.
SECTION 4.4 No Double Recovery under Revolving Loan Facility Agreement and
Sponsors' Guaranty. If, during the continuance of an Event of Default (unless
such Event of Default is subsequently cured or waived with the concurrence of
the Agent or the Security Agent, AMD Inc., and AMD Saxonia), and following the
exercise of rights by the Agent or the Security Agent under either the AMD
Holding Share Pledge Agreement, the AMD Inc. Share Pledge Agreement, or the AMD
Saxonia Assignment (U.S.A.), the Agent seeks to make borrowings under, or to
cause such borrowings to be made under, the Revolving Loan Facility Agreement,
the Agent's right to make such borrowings or to cause such borrowings to be
made, shall be limited mutatis mutandis to the amount set forth in Section 2.1
-----------
of the Sponsors' Guaranty and any such borrowings (to the extent paid to AMD
Saxonia and not subsequently repaid to AMD Inc. or its successor in interest)
shall, pro tanto, reduce the amount available to be recovered from the Sponsors
under the Sponsors' Guaranty.
34
ARTICLE V
Completion Guaranty
SECTION 5.1 Completion Guaranty. The Sponsors (jointly and severally), hereby
agree to cause AMD Saxonia:
(i) to complete each Project Phase as soon as contemplated by the Approved
Project Schedule (it being understood and agreed that the completion
date for one or more Project Phases (other than the final Project
Phase) may be deferred for up to six (6) months in the aggregate for
all such deferrals on a cumulative basis provided that no such
deferral may affect the final deadline for Completion);
(ii) to achieve Completion as soon as contemplated by the Approved Project
Schedule and, in any event, on or before 31 December 2000; and
(iii) to take all such action, including, without limitation, all actions
before Governmental Authorities, as shall be necessary or appropriate
to enable AMD Saxonia to complete each Project Phase and to achieve
Completion as aforesaid.
For the avoidance of doubt, the obligations of the Sponsors contained in this
Article V are in addition to, and not in limitation of, their respective
---------
obligations contained elsewhere in this Agreement and in the other Operative
Documents; provided, however, that the Sponsors shall be relieved of their
-------- -------
respective obligations under this Article V if, but only if:
---------
(i) the Sponsors shall have complied with each of their respective
obligations under Article II and, insofar as such obligations relate
----------
to Class A Sponsors' Loans (or additional contributions to Equity
Capital or AMD Saxonia's capital reserves in lieu thereof), Article
-------
III and
---
(ii) following a demand for payment by the Agent under the Sponsors'
Guaranty, the Sponsors shall have paid all amounts payable under the
Sponsors' Guaranty.
SECTION 5.2 Notice of Scheduled Project Phase Technical Completion and
Completion. Upon the occurrence of each of the following, the Agent shall
promptly advise the Sponsors, AMD Saxonia, and the Banks thereof:
(i) Scheduled Project Phase Technical Completion for each Project Phase,
and
(ii) Completion.
SECTION 5.3 No Double Recovery Under Article V and Sponsors' Guaranty. In the
event that the Sponsors default in the payment and performance of their
obligations under this Article V and, following any such default, the Agent
---------
institutes litigation or other adversary proceedings designed to compel the
Sponsors to perform such obligations or to pay damages for such failure, the
right of
35
recovery against the Sponsors under this Article V is limited mutatis
--------- -------
mutandis to the amount set forth in Section 2.1 of the Sponsors' Guaranty and
-------- -----------
any recovery by the Agent from the Sponsors hereunder shall, pro tanto, reduce
--- -----
the amount available to be recovered from the Sponsors under the Sponsors'
Guaranty.
For the avoidance of doubt, the obligations of the Sponsors under this Section
-------
5.1 constitute a primary guarantee obligation (Garantievertrag) and not a surety
---
guarantee (Burgschaft).
ARTICLE VI
Subsidies Undertaking
SECTION 6.1 Subsidies. The Project will be supported by the following
subsidies and grants from the Free State of Saxony (hereinafter, the
"Subsidies"):
---------
(i) a dedicated purpose investment grant in an aggregate amount of DM
476,687,000 (four hundred seventy six million six hundred eighty seven
thousand Deutsche Marks) which, together with the investment subsidies
in an aggregate amount of DM 23,813,000 (twenty three million eight
hundred thirteen thousand Deutsche Marks), totals an aggregate amount
of DM 500,500,000 (five hundred million five hundred thousand
Deutsche Marks); and
(ii) a dedicated purpose interest subsidy in an amount of DM 300,000,000
(three hundred million Deutsche Marks),
which, in each case, will be paid to AMD Saxonia by Dresdner Bank AG in Dresden,
in its capacity as house bank.
SECTION 6.2 Payment of Shortfall. The granting of the Subsidies is contingent
on the adherence by the Sponsors and AMD Saxonia to particular conditions,
requirements, and covenants. If, for any reason whatsoever, any AMD Company or
any Affiliate of any AMD Company breaches any such conditions, requirements, or
covenants, and, accordingly, causes the Subsidies not to be paid or, as a result
of any such breach, the Subsidies are required to be repaid (in either such case
the amount thereof being hereinafter called a "Shortfall"), then, without delay
---------
following its or their receipt of a demand therefor by the Agent, either:
(i) AMD Holding shall contribute Equity Capital (or other contributions to
AMD Saxonia's capital reserves) to AMD Saxonia, and AMD Inc. shall
cause AMD Holding to so contribute to AMD Saxonia (and AMD Inc. shall,
to the extent necessary, contribute sufficient funds, or otherwise
cause sufficient funds to be made available, to AMD Holding as shall
be necessary to enable AMD Holding to so contribute to AMD Saxonia);
and/or
(ii) one or both Sponsors shall make Sponsors' Loans to AMD Saxonia,
36
in either case in an aggregate amount (and, if the Subsidies have not yet been
provided, as and when the Subsidies, but for such breach, would have otherwise
been provided) equal to the Shortfall.
For the avoidance of doubt:
(i) the obligations of the Sponsors contained in this Article VI are in
----------
addition to, and not in limitation of, their obligations contained
elsewhere in this Agreement and in the other Operative Documents, and
shall survive Completion; and
(ii) the Sponsors shall not be relieved of the foregoing obligations by
virtue of:
(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 and the
-----------
Class C Sponsors' Loan in an amount of $ 70,000,000 made by AMD
Inc. to AMD Saxonia on 30 June 1999 and referred to in Section
-------
3.4 above;
---
(b) any prior contributions of Equity Capital (or other contributions
to AMD Saxonia's capital reserves) by AMD Holding;
(c) any prior Revolving Loans made by the Sponsors (or either of
them); or
(d) any payment made by either Sponsor under the Sponsors' Guaranty;
provided, however, that the Sponsors shall have no liability as aforesaid in
-------- -------
respect of any Subsidies which fail to be provided at any time after the
foreclosure by the Security Agent upon any security provided by the Security
Documents, unless such failure is attributable to any such breach by AMD Inc. or
any of its Affiliates (other than AMD Saxonia or AMD Holding, if then Affiliates
of AMD Inc.) occurring after such foreclosure.
SECTION 6.3 Bridging of AMD Saxonia's Receipt of the Subsidies.
(a) It is understood and agreed that the Sponsors (jointly and
severally) will, in the case of AMD Holding, contribute Equity
Capital (or other contributions to AMD Saxonia's capital
reserves), or, in the case of either Sponsor, make Sponsors'
Loans, to AMD Saxonia, in either case as and to the extent that
AMD Saxonia requires such funds prior to and in anticipation of
its receipt of the Subsidies. If any such contribution or
Sponsors' Loan is made for such purpose prior to AMD Saxonia's
receipt of the Subsidies (or any portion thereof) then, to the
extent that AMD Saxonia subsequently receives the proceeds of
such Subsidies, and provided that no Event of Default, Unmatured
Event of Default or Event of Termination shall have occurred and
be continuing, AMD Saxonia shall, to the extent permitted by
applicable law, repay Sponsors' Loans to the extent of the
aggregate amount of the proceeds of the Subsidy so received, but
without interest.
37
(b) The Sponsors' obligations to make contributions or loans under
Section 6.3 (a) shall terminate from the date of any foreclosure
---------------
over the shares of AMD Holding or AMD Saxonia under the Security
Documents.
ARTICLE VII
Pari Passu Undertaking
SECTION 7.1 [left intentionally blank]
ARTICLE VIII
AMD Inc. Share Pledge Agreement; AMD Holding Security Documents
SECTION 8.1 AMD Inc. Share Pledge Agreement. AMD Inc. has granted a first
priority security interest in the AMD Inc. Security pursuant to and on the terms
and conditions set forth in the AMD Inc. Share Pledge Agreement.
SECTION 8.2 AMD Holding Security Documents. AMD Holding has granted a first
priority security interest in the AMD Holding Security pursuant to and on the
terms and conditions set forth in the AMD Holding Security Documents.
ARTICLE IX
Sponsors' Guaranty
SECTION 9.1 Sponsors' Guaranty. Without intending to derogate from the
provisions of the Sponsors' Guaranty (and, in the event of any inconsistency
with this Section 9.1, the Sponsors' Guaranty shall prevail), the Sponsors
-----------
(jointly and severally), have agreed to guarantee, on the terms and subject to
the conditions of the Sponsors' Guaranty, the full and prompt payment when due,
whether by acceleration or otherwise, of all Secured Obligations of AMD Saxonia
to the Secured Parties under or in connection with the Financing Documents and
the Security Documents; provided, however, that as provided in the Sponsors'
-------- -------
Guaranty, the cumulative right of recovery against the Sponsors with respect to
the Sponsors' Guaranty is limited to an amount equal to the greater of:
(x) thirty five per cent. (35 %) of the aggregate amount of all Guaranteed
Obligations (as defined in the Sponsors' Guaranty); and
(y) DM 217,500,000 (two hundred and seventeen million five hundred
thousand Deutsche Marks),
plus (as and to the extent provided in the Sponsors' Guaranty) interest on such
amount, if not paid when due, and plus costs and expenses of enforcement
provided, that the maximum aggregate
--------
38
amount payable by the Sponsors pursuant to the Sponsors' Guaranty shall be DM
600,000,000. In furtherance of the foregoing, the Sponsors have undertaken,
pursuant to the terms of the Sponsors' Guaranty, to pay to the Agent, upon first
written demand following the occurrence of an Event of Default and acceleration
of the Advances an amount equal to the greater of:
(i) thirty five per cent. (35 %) of the aggregate amount of all Guaranteed
Obligations (as defined in the Sponsors' Guaranty); and
(ii) DM 217,500,000 (two hundred and seventeen million five hundred
thousand Deutsche Marks),
plus (as and to the extent provided in the Sponsors' Guaranty) interest on such
amount, if not paid when due, and plus costs and expenses of enforcement
provided, that the maximum aggregate amount payable by the Sponsors pursuant to
--------
the Sponsors' Guaranty shall be DM 600,000,000.
For the avoidance of doubt, the obligations of the Sponsors under the Sponsors'
Guaranty:
(a) constitute a primary guarantee obligation (Garantievertrag) and not a
surety guarantee (Buergschaft), and are in addition to, and not in
limitation of, the other obligations of the Sponsors hereunder and
under the other Operative Documents; and
(b) are continuing obligations and shall remain in full force and effect
until whichever is the earlier of (1) satisfaction in full of all
Secured Obligations and (2) payment in full by either Sponsor of all
amounts payable under the Sponsors' Guaranty.
ARTICLE X
Sponsors' Subordination Agreement; AMD Inc. Subordination Agreement
SECTION 10.1 Sponsors' Subordination Agreement. The Sponsors hereby agree to
subordinate the payment of the Junior Liabilities (under, and as defined in, the
Sponsors' Subordination Agreement) to the payment in full of all Senior
Liabilities (under, and as defined in, the Sponsors' Subordination Agreement),
on the terms and subject to the conditions of the Sponsors' Subordination
Agreement.
SECTION 10.2 AMD Inc. Subordination Agreement. AMD Inc. hereby agrees to
subordinate the payment of the Junior Liabilities (under, and as defined in, the
AMD Inc. Subordination Agreement) to the payment in full of all Senior
Liabilities (under, and as defined in, the AMD Inc. Subordination Agreement), on
the terms and subject to the conditions of the AMD Inc. Subordination Agreement.
ARTICLE XI
Obligations Unconditional
39
SECTION 11.1 Absolute and Unconditional Nature of the Sponsors' Obligations.
The obligation of the Sponsors to perform their respective obligations under
this Agreement, and the right of AMD Saxonia or the Agent or the Security Agent,
as applicable, to receive the proceeds of each payment to be made to or for the
account of AMD Saxonia as provided herein and in each of the other Operative
Documents, shall be absolute, irrevocable, and unconditional, it being the
intention of the parties hereto that all obligations of the Sponsors under or in
connection with this Agreement shall be paid and performed in all events in the
manner and at the times herein provided, irrespective of and without prejudice
to, in particular, any rights or remedies that are available to the other
parties hereto and thereto under any agreements or any applicable laws. The
Sponsors shall be entitled to setoff, and to raise rights of retention, in
respect of their respective payment claims hereunder and under the other
Operative Documents only to the extent their respective counterclaims are
undisputed or have been the subject of a final binding arbitral or court
decision.
ARTICLE XII
Representations and Warranties
SECTION 12.1 Representations and Warranties of AMD Inc. AMD Inc. hereby
represents and warrants to the Agent and the Security Agent as follows:
(i) Organization; Corporate Power.
AMD Inc. and each Material AMD Inc. Subsidiary:
(a) is a corporation duly incorporated, validly existing, and (where
the concept has a technical meaning) in good standing under the
laws of the jurisdiction of its incorporation;
(b) is duly qualified or licensed and (where the concept has a
technical meaning) in good standing as a foreign corporation
authorized to do business in each other jurisdiction where,
because of the nature of its activities or properties in such
jurisdiction, such qualification or licensing is required,
(c) has all requisite corporate power and authority to own, operate,
and lease its assets and properties and to carry on the business
in which it is engaged and in which it proposes to engage;
(d) that is an AMD Company, has all requisite corporate power and
authority:
(x) to execute, deliver, and perform its obligations under each
of the Operative Documents to which it is a party; and
(y) to assign, and grant a security interest in, the Security in
the manner and for the purpose contemplated by the Security
Documents to which it is a party; and
(e) is in compliance with all Requirements of Law
40
except, in each case referred to in clause (b), (c), or (e), to the
---------- --- ---
extent that the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
(ii) Corporate Authority; No Conflict.
The execution, delivery, and performance by each AMD Company of each
Operative Document to which any such AMD Company is a party, and the
grant by such AMD Company of a security interest in the Security in
the manner and for the purpose contemplated by the Security Documents
to which such AMD Company is a party, have been duly authorised by all
necessary corporate action (including any necessary shareholder
action) on the part of such AMD Company, and do not:
(a) violate any provision of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination, or award presently
in effect binding on such AMD Company, or of the Organizational
Documents of such AMD Company;
(b) result in a breach of, result in a mandatory prepayment or
acceleration of indebtedness evidenced or secured by, or
constitute a default under, any indenture or loan or credit
agreement, or any other agreement or instrument, to which such
AMD Company is a party or by which such AMD Company or its
properties are bound; or
(c) result in, or require (in either case except as contemplated by
the Operative Documents), 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 any of the AMD
Companies (other than any right of set-off or banker's lien or
attachment that the Agent, the Security Agent, or any Bank may
have under the Operative Documents or applicable law), and none
of the AMD Companies is in default under or in violation of its
Organizational Documents, any of the Operative Documents to which
it is a party, or any such law, rule, regulation, order, writ,
judgment, injunction, decree, determination, award, indenture,
agreement, or instrument, which default or violation,
individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
(iii) Valid and Binding Obligations.
Each Operative Document which has been executed and delivered by an
AMD Company constitutes the legal, valid, and binding obligation of
such AMD Company, enforceable against such AMD Company in accordance
with its respective terms, subject, however, to the Opinion
Reservations.
(iv) Sponsor Security Documents.
41
(a) The provisions of each of the Security Documents which has been
executed and delivered by a Sponsor are effective to create in
favor of the Security Agent for the benefit of the Secured
Parties, a legal, valid, and enforceable first priority
Encumbrance on all rights, title, and interest of such Sponsor in
the Security described therein, subject only to Permitted
Encumbrances; and all necessary filings and recordings have been
made in the requisite offices in all of the jurisdictions
necessary or appropriate to perfect or continue perfected with
such priority such Encumbrance on such Security.
(b) Each Security Document which has been executed and delivered by a
Sponsor is effective to grant to the Security Agent a legal,
valid, and enforceable security interest on all rights, title,
and interest of the relevant Sponsor in the Security described
therein. When each such Security Document is duly recorded or
filed in the applicable recording or filing office(s), if any,
and the recording or filing fees and taxes, if any, in respect
thereof are paid and compliance is otherwise had with the formal
requirements of applicable law applicable to the recording and
filing of security documentation generally, such Security is
subject to a legal, valid, enforceable, and perfected first
priority Encumbrance.
(v) Financial Information; No Material Adverse Change.
(a) The audited consolidated balance sheet of AMD Inc. and its
Subsidiaries dated December 31, 1995, the unaudited consolidated
balance sheet of AMD Inc. and its Subsidiaries for the Fiscal
Quarter ending on or about December 30, 1996, and in each case
the related consolidated statements of income or operations,
shareholders' equity and cash flows for the fiscal period ended
on such dates:
(x) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise
expressly noted therein, subject to ordinary, good faith
year-end audit adjustments, in the case of quarterly
financial statements;
(y) are complete and accurate in all material respects and
fairly present the consolidated financial condition of AMD
Inc. and its Subsidiaries as of the dates thereof and
results of operations and cash flows for the periods covered
thereby; and
(z) except as specifically disclosed in the Disclosure
Schedules, show all material indebtedness and other
liabilities, direct or contingent, of AMD Inc. and its
consolidated Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments, and Contingent
Liabilities.
42
(b) Since December 31, 1995, there has been no Material Adverse
Effect, except as may be specifically disclosed in the
Disclosure Schedules.
(c) From July 13, 1999 to and including the effective date of the
Third Amendment to this, there has been no "Enhanced Covenant
Period" (under, and as defined in the AMD Inc. 1999 Loan and
Security Agreement) in effect.
(vi) Litigation.
Except as specifically disclosed in the Disclosure Schedules, there
are no actions, suits, proceedings, claims, or disputes pending, or to
the best knowledge of AMD Inc., threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, against
any AMD Company or any other Subsidiary of AMD Inc. or any of their
respective properties which:
(a) purport to affect or pertain to this Agreement or any other
Operative Document, or the entirety of the transactions
contemplated hereby or thereby; or
(b) if determined adversely to such AMD Company or such other
Subsidiary, would reasonably be expected to have a Material
Adverse Effect.
No injunction, writ, temporary restraining order, or any order of any
nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery, or
performance of this Agreement or any other Operative Document, or
directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
(vii) No Default or Termination.
No Event of Default or Unmatured Event of Default, and, to the best of
AMD Inc.'s knowledge, no Event of Termination, exists. None of the AMD
Companies nor any other Subsidiary of AMD Inc. is in default under or
with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, could reasonably be
expected to have a Material Adverse Effect.
(viii) No Burdensome Restrictions.
None of the AMD Companies nor any other Subsidiary of AMD Inc. is a
party to or bound by any Contractual Obligation other than the
Operative Documents, or subject to any restriction in any
Organizational Document, or any Requirement of Law, which could
reasonably be expected to have a Material Adverse Effect.
(ix) Title to Properties; Encumbrances.
Each AMD Company and each other Material AMD Inc. Subsidiary has good
record and marketable title in fee simple to, or valid leasehold
interests in (or the equivalent
43
for the relevant jurisdiction), all real property necessary or used in
the ordinary conduct of their respective businesses, except for such
defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The property
of each AMD Company and each other Material AMD Inc. Subsidiary is
subject to no Encumbrances, other than Permitted Encumbrances.
(x) Subsidiaries; Material AMD Inc. Subsidiaries.
(a) As of the Loan Agreement Effective Date, AMD Inc. has no
Subsidiaries other than those specifically disclosed in the
Disclosure Schedules and has no equity investments in any other
Person other than those specifically disclosed in the Disclosure
Schedules;
(b) As of the Loan Agreement Effective Date, there are no Material
AMD Inc. Subsidiaries other than those specifically disclosed in
the Disclosure Schedules;
(c) AMD Inc. is the direct legal and beneficial owner of 100% of the
issued and outstanding shares of capital stock of AMD Holding,
all of which shares have been validly issued;
(d) AMD Holding is the direct legal and beneficial owner of 100% of
the issued and outstanding shares of capital stock of AMD
Saxonia, all of which shares have been validly issued;
(e) AMD Holding has no Subsidiaries other than AMD Saxonia, and has
no equity investments in any other Person; and
(f) AMD Saxonia has no Subsidiaries and has no equity investments in
any other Person.
(xi) Insurance.
Except as specifically disclosed in the Disclosure Schedules,
properties of each Sponsor and each "Restricted Subsidiary" (under,
and as defined in, the AMD Inc. 1999 Loan and Security Agreement) are
insured with financially sound and reputable insurance companies not
Affiliates of AMD Inc., in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where
such Sponsor or such "Restricted Subsidiary" (as so defined) operates.
(xii) Copyrights, Patents, Trademarks and Licenses, Etc.
Each AMD Company and each other Material AMD Inc. Subsidiary owns or
is licensed or otherwise has the right to use all of the patents,
trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations, and other rights that are reasonably
necessary for the operation of its respective businesses,
44
without conflict with the rights of any other Person, except for such
conflicts which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Except as
specifically disclosed in the Disclosure Schedules, to the best
knowledge of AMD Inc.:
(a) no slogan or other advertising device, product, process, method,
substance, part, or other material now employed, or now
contemplated to be employed, by any AMD Company or any other
Subsidiary of AMD Inc. infringes upon any rights held by any
other Person;
(b) no claim or litigation regarding any of the foregoing is pending
or, to the best knowledge of AMD Inc., threatened; and
(c) no patent, invention, device, application, principle, or any
statute, law, rule, regulation, standard, or code is pending or,
to the best knowledge of AMD Inc., proposed,
which, in any case described in (a), (b), or (c) above, could
- - -
reasonably be expected to have a Material Adverse Effect.
(xiii) Taxes.
Each Sponsor and each "Restricted Subsidiary" (under, and as defined
in, the AMD Inc. 1999 Loan and Security Agreement) have filed all
material US Federal, German, and other tax returns and reports
required to be filed, and have paid all material US Federal, German,
and other taxes, assessments, fees, and other governmental charges
levied or imposed upon them or their properties, income, or assets
otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings and for which adequate reserves
have been provided in accordance with GAAP. There is no proposed tax
assessment against either Sponsor or any "Restricted Subsidiary" (as
so defined) that would, if made, have a Material Adverse Effect.
(xiv) Governmental Approvals with Respect to the Operative Documents.
As of the date this representation and warranty is made or reaffirmed,
as the case may be, all Governmental Approvals (including, without
limitation, from the European Union, the Federal Republic of Germany,
and the Free State of Saxony) necessary for the due authorization,
execution, delivery, and performance by each of the AMD Companies of,
the legality or validity of the obligations of each of the AMD
Companies under, or the enforceability against each of the AMD
Companies of, each of the Operative Documents to which it is a party
and the due and timely payment by each of the AMD Companies of amounts
owing under each of the Operative Documents have been listed on
Schedule 20 to the Loan Agreement and, except as otherwise noted
-----------
therein, all of such Governmental Approvals have been duly
45
obtained or effected, and are in full force and effect, on the Loan
Agreement Effective Date.
(xv) Governmental Approvals with Respect to the Plant and the Design
Center.
As at the date this representation and warranty is made or reaffirmed,
as the case may be, all Governmental Approvals necessary for the
construction, ownership, use, and operation by AMD Saxonia of the
Plant and the Design Center or which are required in order that the
Plant and the Design Center may be operated for their intended
purposes and Perform in Accordance with the Plans and Specifications,
have been listed on Schedule 20 to the Loan Agreement, and all of such
-----------
Governmental Approvals (except those listed in Part B of Schedule 20
------ -----------
to the Loan Agreement) have been duly obtained or effected, are
sufficient for all purposes thereof, and are in full force and effect
on such date (and, in the case of Government Approvals that have
expired, each AMD Company has timely applied for renewal thereof and
such Governmental Approvals have been administratively extended under
applicable law); and AMD Inc. reasonably believes, after due inquiry,
that the Governmental Approvals set forth in Schedule 20 to the Loan
-----------
Agreement, together with all Governmental Approvals, if any, that may
be required in connection with the transactions contemplated by the
Operative Documents subsequent to the date on which this
representation and warranty is made or reaffirmed, as the case may be,
will be obtained at such time or times as may be necessary to avoid
material delay in, or material restrictions on the use or operation
of, the Plant and the Design Center.
(xvi) Interruption of Business.
Neither the business nor the properties of an AMD Company are
presently affected by any fire, explosion, accident, strike, lockout,
or other dispute, drought, storm, hail, earthquake, embargo, Act of
God, or of the public enemy, or other casualty (whether or not covered
by insurance) which impairs, or, if such event or condition were to
continue for more than thirty (30) additional days would be likely to
impair, such AMD Company's ability to perform its obligations under
the Operative Documents.
(xvii) Prior Activities, etc.
Prior to the Loan Agreement Effective Date, neither AMD Holding nor
AMD Saxonia has engaged in any business, conducted any operations or
activities, nor incurred any obligations or liabilities (contingent or
otherwise), other than (a) as described in the Disclosure Schedules,
and (b) its obligations, if any, under the Operative Documents, and
activities reasonably incidental thereto.
(xviii)Status of AMD Holding and AMD Saxonia, etc.
(a) AMD Holding is an "Unrestricted Subsidiary" under, and for
purposes of, the AMD Inc. Senior Secured Note Indenture and is
not a "Restricted Subsidiary" under, and for the purposes of, the
AMD Inc. 1999 Loan and Security Agreement; and
46
(b) AMD Saxonia is an "Unrestricted Subsidiary" under, and for
purposes of, the AMD Inc. Senior Secured Note Indenture and is
not a "Restricted Subsidiary" under, and for the purposes of, the
AMD Inc. 1999 Loan and Security Agreement;
(xix) Accuracy of Information.
As of the date this representation and warranty is made or reaffirmed,
as the case may be, all factual information then or theretofore
furnished by or on behalf of any AMD Company to the Agent or any Bank
or the Technical Advisor for purposes of or in connection with any
Operative Document or any transaction contemplated thereby (including
the Information Memorandum, true and complete copies of which were
furnished to the Agent in connection with the execution and delivery
of this Agreement) is true and accurate (taken as a whole) in all
material respects on the date as of which such information is dated or
certified, and on such date such information (taken as a whole) was
not incomplete by omitting to state any material fact necessary to
make such information not misleading. Insofar as any such information
includes assumptions, estimates, or projections, such assumptions,
estimates, or projections have been made in good faith, with due care,
and with a diligent application of engineering, construction, and
accounting expertise reasonably available within AMD Inc. and its
Subsidiaries (it being understood that although any projections and
forecasts furnished by an AMD Company represent such AMD Company's
best estimates and assumptions as to future performance, which such
AMD Company believes to be fair and reasonable as of the time made in
the light of current and reasonably foreseeable business conditions,
such projections and forecasts as to future events are not to be
viewed as facts and that actual results during the period or periods
covered thereby may differ from the projected or forecasted results).
Without limiting the generality of the foregoing, as of the Loan
Agreement Effective Date, no new information has become available
which was not provided to the Technical Advisor prior to the Loan
Agreement Effective Date and which, had it been so provided, could
reasonably be expected to have caused the Technical Advisor to express
an unfavourable opinion with respect to the Project in the Technical
Advisor's Report.
(xx) Warranties of AMD Saxonia and AMD Holding.
Each of the representations and warranties made by AMD Saxonia or AMD
Holding in any Operative Document to which it is a party (other than
the representation and warranty of AMD Holding contained in Section
-------
12.2(ix) and the representation and warranty of AMD Saxonia contained
--------
in (S) 15.1.10 of the Loan Agreement) is true and accurate in all
-------
material respects on each Sponsors' Warranty Date, except to the
extent that any such representation or warranty expressly relates
solely to an earlier date, and except, in the case of any
representation or warranty made on a Sponsors' Warranty Date described
in clause (vi) of the definition thereof, as otherwise provided in the
-----------
certificate referred to therein.
47
SECTION 12.2 Representations and Warranties of the Sponsors. The Sponsors,
jointly and severally, hereby represent and warrant to the Agent and the
Security Agent as follows (save in respect of Section 12.2 (ix) which is
-----------------
warranted by AMD Holding only):
(i) Organization; Corporate Power.
Each of AMD Holding and AMD Saxonia:
(a) is a Gesellschaft mit beschrankter Haftung duly organised and
existing under the laws of the Federal Republic of Germany and
registered in Dresden, Germany;
(b) is duly qualified or licensed as a foreign corporation authorized
to do business in each other jurisdiction where, because of the
nature of its activities or properties in such jurisdiction, such
qualification or licensing is required,
(c) has all requisite corporate power and authority to own, operate,
and lease its assets and properties and to carry on the business
in which it is engaged and in which it proposes to engage;
(d) has all requisite corporate power and authority
(x) to execute, deliver, and perform its obligations under each
of the Operative Documents to which it is a party; and
(y) to assign, and grant a security interest in, the Security in
the manner and for the purpose contemplated by the Security
Documents to which it is or is to be a party; and
(e) is in compliance with all Requirements of Law,
except, in each case referred to in clause (b), (c), or (e), to the
---------- --- -
extent that the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
(ii) Corporate Authority; No Conflict.
The execution, delivery, and performance by each of AMD Holding and
AMD Saxonia of each Operative Document to which either such AMD
Company is a party, and the grant by each such AMD Company of a
security interest in the Security in the manner and for the purpose
contemplated by the Security Documents to which such AMD Company is a
party, have been duly authorised by all necessary corporate action
(including any necessary shareholder action) on the part of such AMD
Company, and do not:
(a) violate any provision of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination, or award presently
in effect binding on
48
such AMD Company, or of the Organizational Documents of such AMD
Company;
(b) result in a breach of, result in a mandatory prepayment or
acceleration of indebtedness evidenced or secured by, or
constitute a default under, any indenture or loan or credit
agreement, or any other agreement or instrument, to which such
AMD Company is a party or by which such AMD Company or its
properties are bound; or
(c) result in, or require (in each case except as contemplated by the
Operative Documents), 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 either of such AMD
Companies (other than any right of set-off or banker's lien or
attachment that the Agent, the Security Agent, or any Bank may
have under the Operative Documents or applicable law), and
neither of such AMD Companies is in default under or in violation
of its Organizational Documents, any of the Operative Documents
to which it is a party, or any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination, award,
indenture, agreement, or instrument, which default or violation,
individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
(iii) Valid and Binding Obligations.
Each Operative Document (which has been executed and delivered by
either AMD Holding or AMD Saxonia) constitutes the legal, valid, and
binding obligation of such AMD Company, enforceable against such AMD
Company in accordance with its respective terms, subject, however, to
the Opinion Reservations.
(iv) AMD Holding Security Documents.
(a) The provisions of each of the AMD Holding Security Documents
which has been executed and delivered by AMD Holding are
effective to create in favor of the Security Agent for the
benefit of the Secured Parties, a legal, valid, and enforceable
first priority Encumbrance in all rights, title, and interest of
AMD Holding in the AMD Holding Security described therein,
subject only to Permitted Encumbrances; and all necessary filings
and recordings have been made in the requisite offices in all
jurisdictions necessary or appropriate to perfect or continue
perfected with such priority such Encumbrance on such Security.
(b) Each AMD Holding Security Document which has been executed and
delivered by AMD Holding is effective to grant to the Security
Agent a legal, valid, and enforceable security interest in all
rights, title, and interest of AMD Holding in the AMD Holding
Security described therein. When each such Security Document is
duly recorded or filed in the applicable recording or
49
filing office(s), if any, and the recording or filing fees and
taxes, if any, in respect thereof are paid and compliance is
otherwise had with the formal requirements of applicable law
applicable to the recording and filing of security documentation
generally, such AMD Holding Security is subject to a legal,
valid, enforceable, and perfected first priority Encumbrance.
(v) Financial Information; No Material Adverse Change.
(a) The audited consolidated balance sheet of AMD Holding and its
Subsidiaries as at 31 December 1996, and the audited balance
sheet of AMD Saxonia as at 31 December 1996, and in each case the
related consolidated statements of income or operations,
shareholders' equity and cash flows for the period from
incorporation to such date:
(x) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise
expressly noted therein, subject to ordinary, good faith
year-end audit adjustments;
(y) are complete and accurate in all material respects and
fairly present the consolidated financial condition of AMD
Holding and AMD Saxonia, or the financial condition of AMD
Saxonia, as the case may be, as of the date thereof and
their results of operations and cash flows for the period
covered thereby; and
(z) except as specifically disclosed in the Disclosure
Schedules, show all material indebtedness and other
liabilities, direct or contingent, of AMD Holding and AMD
Saxonia as of the date thereof, including liabilities for
taxes, material commitments, and Contingent Liabilities.
(b) Since the respective dates of incorporation of AMD Holding and
AMD Saxonia, there has been no Material Adverse Effect with
respect to AMD Holding or AMD Saxonia, except as may be
specifically disclosed in the Disclosure Schedules.
(vi) Litigation.
Except as specifically disclosed in the Disclosure Schedules, there
are no actions, suits, proceedings, claims, or disputes pending, or to
the best knowledge of the Sponsors, threatened or contemplated, at
law, in equity, in arbitration or before any Governmental Authority,
against AMD Holding or AMD Saxonia or any of their respective
properties which:
(a) purport to affect or pertain to this Agreement or any other
Operative Document, or the entirety of the transactions
contemplated hereby or thereby; or
50
(b) if determined adversely to such AMD Company would reasonably be
expected to have a Material Adverse Effect.
No injunction, writ, temporary restraining order, or any order of any
nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery, or
performance of this Agreement or any other Operative Document, or
directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
(vii) No Default or Termination.
No Event of Default or Unmatured Event of Default, and, to the best of
the Sponsors' knowledge, no Event of Termination, exists. Neither AMD
Holding nor AMD Saxonia is in default under or with respect to any
Contractual Obligation in any respect which, individually or together
with all such defaults, could reasonably be expected to have a
Material Adverse Effect.
(viii) No Burdensome Restrictions.
Neither AMD Holding nor AMD Saxonia is a party to or bound by any
Contractual Obligation (other than the Operative Documents), or
subject to any restriction in any Organizational Document, or any
Requirement of Law, which could reasonably be expected to have a
Material Adverse Effect.
(ix) Solvency.
AMD Holding is not insolvent as a matter of German law.
(x) Title to Properties; Encumbrances.
AMD Saxonia has good record and marketable title in fee simple to, or
valid leasehold interests in (or the equivalent for the relevant
jurisdiction), all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could
not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. AMD Holding has no real property or
leasehold interests. The property of each of AMD Holding and AMD
Saxonia is subject to no Encumbrances, other than Permitted
Encumbrances.
(xi) Subsidiaries; Material AMD Inc. Subsidiaries.
(a) AMD Holding is the direct legal and beneficial owner of 100% of
the issued and outstanding shares of capital stock of AMD
Saxonia, all of which shares have been validly issued;
(b) AMD Holding has no Subsidiaries other than AMD Saxonia, and has
no equity investments in any other Person; and
51
(c) AMD Saxonia has no Subsidiaries and has no equity investments in
any other Person.
(xii) Insurance.
Except as specifically disclosed in the Disclosure Schedules,
properties of AMD Holding are insured with financially sound and
reputable insurance companies not Affiliates of AMD Inc., in such
amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and
owning similar properties in localities where AMD Holding operates.
(xiii) Copyrights, Patents, Trademarks and Licenses, Etc.
Each of AMD Holding and AMD Saxonia owns or is licensed or otherwise
has the right to use all of the patents, trademarks, service marks,
trade names, copyrights, contractual franchises, authorizations, and
other rights that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other
Person, except for such conflicts, if any, which would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Except as specifically disclosed in the
Disclosure Schedules, to the best knowledge of the Sponsors:
(a) no slogan or other advertising device, product, process, method,
substance, part, or other material now employed, or now
contemplated to be employed, by AMD Holding or AMD Saxonia
infringes upon any rights held by any other Person;
(b) no claim or litigation regarding any of the foregoing is pending
or, to the best knowledge of the Sponsors, threatened; and
(c) no patent, invention, device, application, principle, or any
statute, law, rule, regulation, standard, or code is pending or,
to the best knowledge of the Sponsors, proposed
which, in any case described in (a), (b), or (c) above, could
- - -
reasonably be expected to have a Material Adverse Effect.
(xiv) Taxes.
AMD Holding has filed all material German and other tax returns and
reports required to be filed, and has paid all material German and
other taxes, assessments, fees, and other governmental charges levied
or imposed upon it or its properties, income, or assets otherwise due
and payable, except those which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment
against AMD Holding that would, if made, have a Material Adverse
Effect.
52
(xv) Governmental Approvals with Respect to the Operative Documents.
As of the date on which this representation and warranty is made or
reaffirmed, as the case may be, all Governmental Approvals (including,
without limitation, from the European Union, the Federal Republic of
Germany, and the Free State of Saxony) necessary for the due
authorization, execution, delivery, and performance by each of AMD
Holding and AMD Saxonia of, the legality or validity of the
obligations of each of such AMD Companies under, or the enforceability
against each of such AMD Companies of, each of the Operative Documents
to which it is a party and the due and timely payment by each of such
AMD Companies of amounts owing under each of the Operative Documents
have been listed on Schedule 20 to the Loan Agreement and, except as
-----------
otherwise noted therein, all of such Governmental Approvals have been
duly obtained or effected, and are in full force and effect, on the
Loan Agreement Effective Date.
(xvi) Governmental Approvals with Respect to the Plant and the Design
Center.
As of the date on which this representation and warranty is made or
reaffirmed, as the case may be, all Governmental Approvals necessary
for the construction, ownership, use, and operation by AMD Saxonia of
the Plant and the Design Center or which are required in order that
the Plant and the Design Center may be operated for their intended
purposes and Perform in Accordance with the Plans and Specifications,
have been listed on Schedule 20 to the Loan Agreement, and all of such
-----------
Governmental Approvals (except those listed in Part B of Schedule 20
------ -----------
to the Loan Agreement) have been duly obtained or effected, are
sufficient for all purposes thereof, and are in full force and effect
on such date (and, in the case of Government Approvals that have
expired, each of AMD Holding and AMD Saxonia has timely applied for
renewal thereof and such Governmental Approvals have been
administratively extended under applicable law); and the Sponsors
reasonably believe, after due inquiry, that the Governmental Approvals
set forth in Schedule 20 to the Loan Agreement, together with all
-----------
Governmental Approvals, if any, that may be required in connection
with the transactions contemplated by the Operative Documents
subsequent to the date on which this representation and warranty is
made or reaffirmed, as the case may be, will be obtained at such time
or times as may be necessary to avoid material delay in, or material
restrictions on the use or operation of, the Plant and the Design
Center.
(xvii) Interruption of Business.
Neither the business nor the properties of AMD Holding or AMD Saxonia
are presently affected by any fire, explosion, accident, strike,
lockout, or other dispute, drought, storm, hail, earthquake, embargo,
Act of God, or of the public enemy, or other casualty (whether or not
covered by insurance) which impairs, or, if such event or condition
were to continue for more than thirty (30) additional days would be
likely to impair, such AMD Company's ability to perform its
obligations under the Operative Documents.
53
(xviii) Prior Activities, etc.
Prior to the Loan Agreement Effective Date, neither AMD Holding nor
AMD Saxonia has engaged in any business, conducted any operations or
activities, nor incurred any obligations or liabilities (contingent or
otherwise), other than (i) as described in the Disclosure Schedules,
and (ii) its obligations, if any, under the Operative Documents, and
activities reasonably incidental thereto.
(xix) Status of AMD Holding and AMD Saxonia, etc.
(a) AMD Holding is an "Unrestricted Subsidiary" under, and for
purposes of, the AMD Inc. Senior Secured Note Indenture and is
not a "Restricted Subsidiary" under, and for purposes of, the AMD
Inc. 1999 Loan and Security Agreement; and
(b) AMD Saxonia is an "Unrestricted Subsidiary" under, and for
purposes of, the AMD Inc. Senior Secured Note Indenture and is
not a "Restricted Subsidiary" under, and for purposes of, the AMD
Inc. 1999 Loan and Security Agreement.
(xx) Accuracy of Information.
As of the date this representation and warranty is made or reaffirmed,
as the case may be, all factual information then or theretofore
furnished by or on behalf of AMD Holding or AMD Saxonia to the Agent
or any Bank or the Technical Advisor for purposes of or in connection
with any Operative Document or any transaction contemplated thereby
(including the Information Memorandum, true and complete copies of
which were furnished to the Agent in connection with the execution and
delivery of this Agreement) is true and accurate (taken as a whole) in
all material respects on the date as of which such information is
dated or certified, and on such date such information (taken as a
whole) was not incomplete by omitting to state any material fact
necessary to make such information not misleading. Insofar as any
such information includes assumptions, estimates, or projections, such
assumptions, estimates, or projections have been or will be made in
good faith, with due care, and with a diligent application of
engineering, construction, and accounting expertise reasonably
available within AMD Inc. and its Subsidiaries (it being understood
that although any projections and forecasts furnished by an AMD
Company represent such AMD Company's best estimates and assumptions as
to future performance, which such AMD Company believes to be fair and
reasonable as of the time made in the light of current and reasonably
foreseeable business conditions, such projections and forecasts as to
future events are not to be viewed as facts and that actual results
during the period or periods covered thereby may differ from the
projected or forecasted results). Without limiting the generality of
the foregoing, as of the Loan Agreement Effective Date, no new
information has become available which was not provided to the
Technical Advisor prior to the Loan Agreement Effective Date and
which, had it been so provided, could reasonably be expected to have
caused the
54
Technical Advisor to express an unfavourable opinion with respect to
the Project in the Technical Advisor's Report.
(xxi) Warranties made by AMD Saxonia.
Each of the representations and warranties made by AMD Saxonia in any
Operative Document to which it is a party (other than the
representation and warranty contained in (S) 15.1.10 of the Loan
-------
Agreement) is true and accurate in all material respects on each
Sponsors' Warranty Date, except to the extent that any such
representation or warranty expressly relates solely to an earlier
date, and except, in the case of any representation or warranty made
on a Sponsors' Warranty Date described in clause (vi) of the
-----------
definition thereof, as otherwise provided in the certificate referred
to therein.
SECTION 12.3 Repetition of Representations and Warranties. The representations
and warranties contained in Sections 12.1 and 12.2 shall be repeated on each
------------- ----
Sponsors' Warranty Date, except to the extent that any such representation and
warranty expressly relates solely to an earlier date, and except, in the case of
the Sponsors' Warranty Date described in clause (vi) of the definition thereof,
-----------
as otherwise set forth in the certificate referred to therein.
ARTICLE XIII
Covenants
SECTION 13.1 Affirmative Covenants of AMD, Inc. AMD Inc. agrees, so long as
any Primary Secured Obligations shall remain outstanding or any Bank shall have
any commitment under or arising out of the Loan Agreement, that it will, and
will cause each other AMD Company to, unless in either case the Security Agent
shall have enforced any of the Security or the Agent (acting on the instructions
of an Instructing Group) shall have otherwise consented in writing:
(i) furnish to the Agent (with copies for each of the Banks):
(a) as soon as possible and in any event within ten (10) Business
Days after a Relevant AMD Inc. Individual shall have obtained
actual knowledge of the occurrence of an Event of Default, an
Unmatured Event of Default or an Event of Termination, the
statement of an authorised officer of AMD Inc. setting forth the
details thereof which has occurred and the action (if any) which
AMD Inc. or any other AMD Company proposes to take with respect
thereto;
(b) as soon as available, and in any event within forty-five (45)
days after the end of each of the first three Fiscal Quarters of
each Fiscal Year of AMD Inc., (x) consolidated financial
statements consisting of a consolidated balance sheet of AMD Inc.
as at the end of such Fiscal Quarter and a consolidated statement
of income and statement of shareholders' equity and cashflows of
55
AMD Inc. for such Fiscal Quarter and for the Fiscal Year through
such Fiscal Quarter, setting forth in comparative form the
corresponding figures for the corresponding periods of the
preceding Fiscal Year, all in reasonable detail and certified
(subject to ordinary good faith year end audit adjustments) by an
authorised financial officer of AMD Inc. as being complete and
accurate in all material respects, and as fairly presenting in
accordance with GAAP, consistently applied, the financial
position and results of operations of AMD Inc. and its
Subsidiaries, and (y) consolidating financial statements
consisting of a consolidating balance sheet of AMD Inc. as at the
end of such Fiscal Quarter and a consolidating statement of
income and statement of shareholders' equity and cashflows of AMD
Inc. for such Fiscal Quarter and for the Fiscal Year through such
Fiscal Quarter, setting forth in comparative form the
corresponding figures for the corresponding periods of the
preceding Fiscal Year, all in reasonable detail and certified
(subject to ordinary good faith year end audit adjustments) by an
authorised financial officer of AMD Inc. as being complete and
accurate in all material respects, and as having been developed
and used in connection with the financial statements referred to
in clause (x) above;
----------
(c) as soon as available, and in any event within ninety (90) days
after the end of each Fiscal Year of AMD Inc., (x) financial
statements consisting of a consolidated balance sheet of AMD Inc.
as at the end of such Fiscal Year and a consolidated statement of
income and statement of shareholders' equity and cashflows of AMD
Inc. for such Fiscal Year, setting forth in comparative form the
corresponding figures for the preceding Fiscal Year, all in
reasonable detail and certified by independent certified public
accountants of recognised national standing as fairly presenting
in accordance with GAAP, consistently applied, the financial
position and results of operations of AMD Inc. and its
Subsidiaries, and (y) a certificate from each Sponsor confirming,
as of the date of such certificate, that, except as otherwise
therein set forth, each of the representations and warranties
made by each AMD Company in any Operative Document to which it is
a party is true and accurate in all material respects on the date
of such certificate, except to the extent that any such
representation or warranty expressly relates solely to an earlier
date;
(d) (x) in connection with the completion of any Scheduled Project
Phase, (1) a Scheduled Project Phase Technical Completion
Certificate (AMD Companies), and (2) a Scheduled Project Phase
Technical Completion Certificate (Technical Advisor), and (y) as
soon as available, and in any event within ten (10) days after
the completion of any Scheduled Project Phase, (1) a Project
Budget and (2) a Project Schedule relating to the Project,
setting forth in reasonable detail a description of all of the
Capital Expenditures which have been made during each Scheduled
Project Phase (other than the final Project Phase) with respect
to the Project to the date thereof and those which are
anticipated to be made during each Project Phase prior to
Completion; provided, however, that if, at any time prior to
-------- -------
Completion, any
56
AMD Company or the Agent (acting on the instructions of an
Instructing Group), determines that it is appropriate to amend,
supplement, or otherwise modify the Approved Project Budget, or
the Approved Project Schedule, the parties hereto hereby agree to
discuss in good faith any such proposed amendment, supplement, or
modification; provided, further, that (a) neither the Agent nor
-----------------
the Banks shall be obligated in any matter, as a result of any
such discussions or otherwise, to agree to any amendments,
supplements, or other modifications to the Approved Project
Budget or Approved Project Schedule which would reduce or relax
the then required financial performance of AMD Saxonia with
respect to the Project, and (b) each of the Agent and the Banks
reserve(s) all rights hereunder in the event that such
discussions fail to produce an amendment or other supplement to,
or modification of, the Approved Project Budget or the Approved
Project Schedule. In the event (but only in such event) that AMD
Saxonia (with the consent of each Sponsor) and the Agent agree to
amend, supplement, or otherwise modify any Approved Project
Budget or any Approved Project Schedule, as the case may be, then
such amended, supplemented, or otherwise modified Approved
Project Budget or Approved Project Schedule, as the case may be,
shall thereafter be the "Approved Project Budget" or the
-----------------------
"Approved Project Schedule" for all purposes hereof until further
-------------------------
changed, if at all, pursuant to this Section 13.1(i)(d);
------------------
(e) promptly following AMD Inc.'s or such other AMD Company's receipt
or transmission thereof, and unless otherwise concurrently
delivered by another AMD Company to the Agent under an Operative
Document, a copy of each notice, report, schedule, certificate,
financial statement, or other document furnished pursuant to any
of the Operative Documents if such notice, report, schedule,
certificate, financial statement, or other document could
reasonably be considered material to the Agent or any Bank in
connection with the Operative Documents and the entirety of the
transactions contemplated thereby;
(f) promptly following the occurrence of (x) any change in the
identification of the applicable AMD Inc. Primary Bank Credit
Agreement pursuant to the definition thereof contained in Section
-------
1.1, or (y) any consent or waiver or amendment or modification
---
with respect to the incorporated covenants, related definitions,
or ancillary provisions of the AMD Inc. Primary Bank Credit
Agreement or of the AMD Inc. Senior Secured Note Indenture,
notice of such change and the basis therefor or of such consent
or waiver or amendment or modification and the basis therefor;
and
(g) such other information with respect to the business affairs,
financial condition, and/or operations of AMD Inc. and its
Subsidiaries (including AMD Saxonia) and Affiliates as the Agent
or any Bank (acting through the Agent) may from time to time
reasonably request for purposes of the transactions contemplated
by the Operative Documents.
57
(ii) pay and perform all of its obligations under each of the Operative
Documents to which it is a party in the manner and at the time
contemplated therein.
(iii) cause AMD Holding at all times to be a wholly owned Subsidiary of
AMD Inc. and cause AMD Saxonia at all times to be a wholly owned
Subsidiary of AMD Holding.
(iv) promptly following a request by the Agent or any Bank (acting through
the Agent) to do so, permit the Agent, the Technical Advisor, the
Auditor, or any of their respective representatives to have reasonable
access during normal business hours to the Plant or the Design Center
and to such books and records of AMD Saxonia as may be necessary or
reasonably desirable (in the good faith discretion of the Agent or any
Bank) to verify compliance by each AMD Company with its obligations
under the Operative Documents to which it is a party; provided, that
--------
such access shall be exercised in a manner which does not disrupt the
operations of the Plant or the Design Center, in any material respect.
(v) prior to Completion, cause AMD Saxonia to use Sponsors' Loans, equity
contributions under Article II, Advances and Revolving Loans solely to
----------
pay Project Costs incurred to complete the Project in accordance with
the Plans and Specifications.
SECTION 13.2 Negative Covenants of AMD Inc. AMD Inc. agrees, so long as any
Primary Secured Obligation shall remain outstanding or any Bank shall have any
commitment under or arising out of the Loan Agreement, that it will not, and not
permit any other AMD Company to, unless in either case the Security Agent shall
have enforced any of the Security or the Agent (acting on the instructions of an
Instructing Group) shall have otherwise consented in writing:
(i) terminate, amend or modify, or agree to the termination, amendment or
modification, of any Operative Document, other than (w) the AMD Inc.
Primary Bank Credit Agreement or the AMD Inc. Senior Secured Note
Indenture (each of which may be amended, modified, or terminated in
accordance with Section 13.3), (x) the Equipment Supply Contracts that
------------
are not Material Equipment Supply Contracts, (y) the Service Contracts
that are not Material Service Contracts, or (z) in the case of the
Project Budget, the Approved Project Budget, the Project Schedule, the
Approved Project Schedule, and the Management Plan, as expressly
provided hereunder; provided, that AMD Inc. may terminate the AMD
--------
Holding Wafer Purchase Agreement or the AMD Holding Research Agreement
only in accordance with the express termination provisions thereof;
provided, further, that AMD Holding may terminate the AMD Saxonia
-------- -------
Wafer Purchase Agreement or the AMD Saxonia Research Agreement only in
accordance with the express termination provisions thereof; and
provided, further, that the AMD Saxonia Hedging Contract may be
-------- -------
terminated only in accordance with the express termination provisions
thereof. The foregoing notwithstanding, AMD Saxonia may amend or
modify, or agree to the amendment or modification of, the Design/Build
Agreement, any Material Equipment Supply Contract, any Material
Service Contract, or the Plans and
58
Specifications to the extent such amendment or modification does not,
individually or in the aggregate, decrease or adversely affect (x) the
value or use of the Plant and the Design Center (or of the rights of
the Banks with respect thereto) in any material respect, or (y) the
capacity of the Plant to perform, on a substantially continuous basis,
the functions for which it was specifically designed in accordance
with the plans and specifications as originally approved by the
Technical Advisor and the Agent for purposes of the Operative
Documents; provided, that prior to Completion no such amendment or
--------
modification will, individually or in the aggregate, be inconsistent
with the Approved Project Budget or the Approved Project Schedule.
(ii) create, incur, or suffer to exist any Encumbrance with respect to its
rights under or in respect of the Sponsors' Loan Agreement or the
Revolving Loan Facility Agreement.
(iii) permit AMD Holding or AMD Saxonia to amend their respective
Organizational Documents.
(iv) permit to subsist or enter into any other agreements which (by their
terms) conflict with, or prohibit AMD Inc., from complying with its
obligations as set out in this Agreement or any other Operative
Document.
SECTION 13.3 Incorporated Covenants of AMD, Inc. AMD Inc. agrees, so long as
any Primary Secured Obligation shall remain outstanding or any Bank shall have
any commitment under or arising out of the Loan Agreement, that it will, unless
the Security Agent shall have enforced any of the Security or the Agent (acting
on the instructions of an Instructing Group) shall have otherwise consented in
writing, duly keep, perform, and observe, for the benefit of the Agent, the
Security Agent, and the Secured Parties, each and every affirmative, negative,
and informational covenant contained in each of (x) the AMD Inc. Senior Secured
Note Indenture, and (y) the AMD Inc. Primary Bank Credit Agreement (to the
extent that such covenants are applicable to AMD Inc. thereunder), all of which
covenants, together with related definitions and ancillary provisions, are
hereby incorporated herein by reference as if such terms were set forth herein
in full; provided, however, that:
-------- -------
(i) with respect to the AMD Inc. Primary Bank Credit Agreement referred to
in clause (i) of the definition thereof:
----------
(a) any references to the "Agent" shall be deemed to be references to
the Agent (except where such term is used in Article 6, Sections
---------- --------
7.1, 7.2 (a), 9.5 (b) and (c) (second sentence), 9.11, 9.14, 9.15
---- -------- ------- --- ----- ----- ----
and 9.22 (a) thereof);
--------
(b) any references to the "Lenders" shall be deemed to be references
to the Banks (except where such term is used in Article 6,
----------
Sections 7.1, 7.2 (a), 9.5 (b) and (c) (second sentence), 9.15
------------- -------- ------- --- ----
and 9.22 (a) thereof);
--------
(c) any references to the "Majority Lenders" shall be deemed to be
references to an Instructing Group (except where such term is
used in Article 6, or Section 9.5 (b) and 9.22 (a) thereof);
---------- ---------------- --------
59
(d) any references to the "Agreement" shall be deemed to be
references to this Agreement (except where such term is used in
Article 6 and Sections 7.2 (b), 7.2 (d), 7.2 (e), 9.8, 9.13, 9.15
--------- ----------------- -------- -------- ---- ----- ----
and 9.22 (a) thereof);
--------
(e) any references to the "Loan Documents" shall be deemed to be
references to the Operative Documents (except where such term is
used in Article 6 and Section 7.2 (e) and 9.22 (a) thereof);
---------- --------------- --------
(f) any references to an "Event of Default" shall be deemed to be
references to an Event of Default (except where such term is used
in Article 6 and Sections 7.2 (d), 7.2 (e), 9.5 (c) and 9.8 (vi)
--------- ----------------- -------- ------- --------
(A) thereof);
---
(g) any references to a "Default" shall be deemed to be references to
an Unmatured Event of Default (except where such term is used in
Article 6 and Sections 7.2 (d) and 7.2 (e) thereof);
---------- ---------------- --------
(h) any references to a "Material Adverse Effect" shall be deemed to
be references to a Material Adverse Effect; and
(i) any references to "so long as any of the Obligations remain
outstanding or this Agreement is in effect" shall be deemed to be
references to "So long as any Bank shall have any commitment to
make Advances under the Loan Agreement or any of the Primary
Secured Obligations shall remain unpaid or unsatisfied";
(ii) with respect to the AMD Inc. Senior Secured Note Indenture:
(a) [left intentionally blank];
(b) the references to "this Indenture" and "the Trustee" contained in
Section 4.06 thereof shall be deemed to be references to "this
------------
Agreement" and "the Security Agent and the Agent", respectively;
(c) [left intentionally blank]
(d) the reference to "the Holders of the Notes" contained in Section
-------
4.15 thereof shall be deemed to be a reference to "the Agent and
----
the Banks";
(e) the reference to "the Notes, this Indenture and the Collateral
Documents pursuant to a supplemental indenture or other documents
or instruments in form reasonably satisfactory to the Trustee"
contained in clause (ii) of Section 5.01 thereof shall be deemed
----------- ------------
to be a reference to "each of the Operative Documents to which
AMD Inc. is a party pursuant to one or more documents or
instruments in form reasonably satisfactory to the Agent"; and
(f) the references to "this Indenture" contained in Section 5.02
------------
thereof shall be deemed to be references to "this Agreement"; and
the reference to "the
60
obligation to pay the principal of, premium, if any, and
interest, if any, on the Notes" contained in Section 5.02 thereof
------------
shall be deemed to be a reference to "its obligations under each
of the Operative Documents to which it is a party"; and
(iii) with respect to the AMD Inc. Primary Bank Credit Agreement referred
to in clause (ii) of the definition thereof, such modifications to the
-----------
provisions incorporated in this Agreement as shall be appropriate to
make them applicable to this Agreement and consistent with the Project
shall be deemed to be made; and
The provisions and definitions of the applicable AMD Inc. Primary Bank Credit
Agreement, and the AMD Inc. Senior Secured Note Indenture, as incorporated by
reference in this Agreement, shall continue to be binding on AMD Inc. after
giving effect to any consent or waiver with respect to such provisions or to any
amendment or modification or (in the case of the AMD Inc. Senior Secured Note
Indenture only) termination thereof, in each case given or made in accordance
with the terms of and by the parties to the applicable AMD Inc. Primary Bank
Credit Agreement or the AMD Inc. Senior Secured Note Indenture.
SECTION 13.4 Affirmative Covenants of the Sponsors. The Sponsors, jointly and
severally, agree, so long as any Primary Secured Obligations shall remain
outstanding or any Bank shall have any commitment under or arising out of the
Loan Agreement, that AMD Holding will (and, at all times prior to the exercise
of rights by the Security Agent under any of the Security Documents, AMD Inc.
will cause AMD Holding to), unless the Agent (acting on the instructions of an
Instructing Group) shall have otherwise consented in writing:
(i) duly and punctually pay and perform all of its obligations under each
of the Operative Documents to which it is a party in the manner and at
the time contemplated therein.
(ii) pay or discharge (a) all taxes, assessments, and governmental charges
or levies imposed upon it or upon its income or profits or any
property belonging to it prior to the date on which penalties attach
thereto, and (b) all lawful claims prior to the time they become an
Encumbrance upon any property of AMD Holding, and other than taxes,
assessments, charges, levies, or claims included in clauses (a) and
-----------
(b) above which are not, individually or collectively, substantial in
---
aggregate amount; provided, that (after providing notice thereof to
--------
the Agent) AMD Holding shall not be required to pay or discharge any
such tax, assessment, charge, levy, or claim while the same is being
contested by it in good faith and by appropriate proceedings and
adequate book reserves have been established with respect thereto, and
so long as the lien or charge resulting from the nonpayment or non-
discharge of such tax, assessment, charge, levy, or claim shall not,
individually or in the aggregate, have a Material Adverse Effect.
61
(iii) cause AMD Saxonia to preserve and maintain its corporate existence,
rights, privileges, and franchises in the jurisdiction of its
incorporation, and cause AMD Saxonia to not have operations in any
other jurisdiction.
(iv) comply in all material respects with all laws, rules, regulations, and
governmental orders (Federal, state, local, and foreign) having
applicability to it or to the business or businesses at any time
conducted by AMD Holding except to the extent that any such
noncompliance, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
(v) promptly following AMD Holding's receipt or transmission thereof,
unless otherwise concurrently delivered by another AMD Company to the
Agent under an Operative Document, furnish to the Agent a copy of each
notice, report, schedule, certificate, financial statement, or other
document furnished pursuant to any of the Operative Documents if such
notice, report, schedule, certificate, financial statement, or other
document could reasonably be considered material to the Agent or any
Bank in connection with the Operative Documents or the entirety of the
transactions contemplated thereby.
(vi) promptly following a request from the Security Agent to do so and at
AMD Holding's own expense, take all such lawful action as the Security
Agent may reasonably request to enforce or secure the performance by
each other AMD Company under any Operative Document to which AMD
Holding is a party of such AMD Company's respective obligations under
and in connection with the applicable Operative Document in accordance
with the respective terms thereof, and exercise any right of
termination or remedy available to AMD Holding thereunder or in
connection therewith to the extent and in the manner reasonably
directed by the Security Agent, including, without limitation, the
institution of legal or administrative actions or proceedings to
compel or enforce performance by each other AMD Company of its
respective obligations thereunder, or to recover any payment due AMD
Holding thereunder.
(vii) keep, or cause to be kept, adequate records and books of account, in
which complete entries are to be made reflecting its business and
financial transactions, such entries to be made in accordance with
GAAP consistently applied in the case of financial transactions or as
otherwise required by applicable rules and regulations of any
governmental agency or regulatory authority (federal, state, local or
foreign) having jurisdiction over AMD Holding, or the transactions
contemplated by this Agreement or the other Operative Documents to
which it is or will be a party.
(viii) maintain, obtain or effect all Governmental Approvals which may at
any time or from time to time be necessary for the due authorization,
execution, delivery, performance, legality, validity, or
enforceability of each of the Operative Documents to which it is or
will be a party.
62
(ix) prior to Completion, cause AMD Saxonia to use Sponsors' Loans, equity
contributions under Article II, Advances and Revolving Loans solely to
pay Project Costs to complete the Project in accordance with the Plans
and Specifications.
SECTION 13.5 Negative Covenants of the Sponsors. The Sponsors, jointly and
severally, agree, so long as any Primary Secured Obligation shall remain
outstanding or any Bank shall have any commitment under or arising out of the
Loan Agreement, that AMD Holding will not (and AMD Inc. will not, at any time
prior to the exercise of rights by the Security Agent under any of the Security
Documents, permit AMD Holding to), unless the Agent (acting on the instructions
of an Instructing Group) shall have otherwise consented in writing:
(i) terminate, amend or modify, or agree to the termination, amendment or
modification, of any Operative Document, other than (w) the AMD Inc.
Primary Bank Credit Agreement or the AMD Inc. Senior Secured Note
Indenture (each of which may be amended, modified or terminated in
accordance with Section 13.3), (x) the Equipment Supply Contracts that
------------
are not Material Equipment Supply Contracts, (y) the Service Contracts
that are not Material Service Contracts, or (z) in the case of the
Project Budget, the Approved Project Budget, the Project Schedule, the
Approved Project Schedule, and the Management Plan, as expressly
provided hereunder; provided, that AMD Inc. may terminate the AMD
--------
Holding Wafer Purchase Agreement or the AMD Holding Research Agreement
only in accordance with the express termination provisions thereof;
provided, further, that AMD Holding may terminate the AMD Saxonia
-------- -------
Wafer Purchase Agreement or the AMD Saxonia Research Agreement only in
accordance with the express termination provisions thereof; and
provided, further, that the AMD Saxonia Hedging Contract may be
-------- -------
terminated only in accordance with the express termination provisions
thereof. The foregoing notwithstanding, AMD Saxonia may amend or
modify, or agree to the amendment or modification of, the Design/Build
Agreement, any Material Equipment Supply Contract, any Material
Service Contract, or the Plans and Specifications to the extent such
amendment or modification does not, individually or in the aggregate,
decrease or adversely affect (x) the value or use of the Plant and the
Design Center (or of the rights of the Banks with respect thereto) in
any material respect, or (y) the capacity of the Plant to perform, on
a substantially continuous basis, the functions for which it was
specifically designed in accordance with the plans and specifications
as originally approved by the Technical Advisor and the Agent for
purposes of the Operative Documents; provided, that, prior to
--------
Completion, no such amendment or modification will, individually or in
the aggregate, be inconsistent with the Approved Project Budget or the
Approved Project Schedule.
(ii) engage in any activities other than those contemplated by the
Operative Documents to which it is a party or the transactions
contemplated thereby and activities reasonably incidental thereto.
(iii) create, incur, assume, or suffer to exist any Encumbrance in, upon,
or with respect to any of its properties or assets, whether now owned
or hereafter acquired, or assign or
63
otherwise convey any right to receive income to secure any obligation,
except (1) as contemplated by the AMD Holding Security Documents, and
(2) for Permitted Encumbrances.
(iv) create, incur, assume, or suffer to exist any Indebtedness, whether
current or funded, except current accounts and other amounts payable
in the ordinary course of business, and except to the extent
contemplated by the Operative Documents.
(v) create, incur, assume, or suffer to exist any obligations as lessee
for the rental or hire of real or personal property of any kind
whatsoever.
(vi) assume, guarantee, or endorse, or otherwise become directly or
contingently liable in respect of, any obligation of any Person,
except pursuant to the Operative Documents to which it is a party.
(vii) merge with or into or consolidate with any Person, or, acquire,
lease, or purchase, all or substantially all of the assets or stock of
any class of, or any partnership or joint venture interest in, any
Person, or create or acquire any Subsidiary, except for the
acquisition of AMD Saxonia.
(viii) sell, lease, assign, transfer, or otherwise dispose of any of its
assets, including its accounts receivable, except as contemplated by
the Operative Documents; or issue or sell any shares of any class of
its capital stock to any Person except to AMD Inc.
(ix) make any loan or advance or extend any credit to any Person other than
AMD Saxonia or as contemplated by the AMD Holding Wafer Purchase
Agreement, or purchase or otherwise acquire the capital stock or
obligation of, or any investment in, any Person other than AMD
Saxonia, in each case other than Cash Equivalent Investments which
have been pledged to the Security Agent pursuant to the AMD Holding
Security Documents.
(x) apply for or become liable with respect to any letter of credit or
acceptance financing; or enter into or become liable with respect to
any interest or currency swap, hedge, exchange, or other similar
obligation.
(xi) purchase any shares of any Person, other than AMD Saxonia, or redeem
any of its shares, declare or pay any dividend thereon or make any
distribution to its shareholders, except for any such redemption or
distribution made as a result of the transactions contemplated by
Section 6.3.
-----------
(xii) except as provided in the Management Service Agreement, pay any
salary, compensation, or bonus of any character to any officer,
director, or employee of AMD Holding or any Affiliate thereof or
provide any such Person with any medical, surgical, dental, hospital,
disability, unemployment, retirement, pension, vacation, or insurance
benefit of any kind or adopt, establish, or maintain any plan, fund,
or program to provide any such benefit.
64
(xiii) enter into any transaction with AMD Inc. or an Affiliate thereof
(other than AMD Saxonia) on a basis materially less favourable to AMD
Holding than would be the case if such transaction had been effected
with a Person other than AMD Inc. or an Affiliate thereof.
(xiv) open or maintain a bank account with any Person, except for demand
or other deposit accounts at the Agent and at Security Agent.
(xv) amend or modify the Organizational Documents of AMD Saxonia.
(xvi) issue any power of attorney or other contract or agreement giving
any Person power or control over the day-to-day operations of AMD
Holding's business, except as contemplated by the Operative Documents.
(xvii) commence, or join with any other creditor in commencing, any
bankruptcy, reorganization, or insolvency proceeding with respect to
AMD Saxonia or AMD Inc.
(xviii)enter into any agreement other than as contemplated by the
Operative Documents to which it is or will be a party or under any
instrument or document delivered or to be delivered by it hereunder or
thereunder, or in connection herewith or therewith.
(xix) make any significant change in accounting treatment or reporting
practices, except as required by GAAP, or change its Fiscal Year.
(xx) create, incur, assume, or suffer to exist any Encumbrance with respect
to its rights under or in respect of the Sponsors' Loan Agreement or
the Revolving Loan Facility Agreement, except as set forth in the
Security Documents.
SECTION 13.6 Recourse to AMD Inc. for Breach of Covenant. It is expressly
understood and agreed by the parties hereto that the obligations of AMD Saxonia
under the Loan Agreement are intended to be limited recourse obligations from
the perspective of AMD Inc. and that the covenants of the Sponsors contained in
this Article XIII are not intended to represent a guaranty of AMD Saxonia's
------------
obligations under the Loan Agreement. Accordingly, (i) neither AMD Inc. nor its
assets (other than its interests in AMD Holding) shall be exposed to liability
(whether in damages or otherwise) for breach of any covenant contained in this
Article XIII to the extent that such damages would otherwise result in AMD Inc.
------------
incurring greater financial exposure than the aggregate amount otherwise agreed
to be payable by AMD Inc. pursuant to this Agreement and the other Operative
Documents, and (ii) AMD Holding shall have no right of contribution against AMD
Inc. arising from any payment made by AMD Holding under this Agreement or the
Sponsors' Guaranty to the extent that AMD Inc. provides funds for the purpose of
such payment by contributions to AMD Holding's stated capital or capital
reserves and/or by loans to AMD Holding; provided, however, that the provisions
-------- -------
of this Section 13.6 shall not be construed to absolve AMD Inc. for its
------------
liability, whether in damages or otherwise, for actions or omissions
constituting fraud or misrepresentation or breach of warranty; and provided,
--------
further that the provisions of this Section 13.6 shall not preclude the Security
------- ------------
Agent from seeking temporary relief (if otherwise available) for any prospective
breach by AMD Inc. of its covenants contained in this Article XIII.
------------
65
ARTICLE XIV
Costs and Expenses; Indemnities; Taxes; Etc.
SECTION 14.1 Costs and Expenses. The Sponsors, jointly and severally, agree to
pay (to the extent not previously paid by AMD Saxonia promptly following a
demand by the Agent therefor, it being understood and agreed that the Agent will
demand such payment for the costs and expenses of the preparation of this
Agreement) all costs and expenses (including reasonable legal fees and expenses)
of the Agent, the Security Agent, and the Paying Agent in connection with the
negotiation, preparation, execution, and delivery of this Agreement, any
amendments or modifications of (or supplements to) this Agreement, and any and
all other documents furnished pursuant hereto or in connection herewith, as
well as all costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) if any, in connection with the enforcement of this
Agreement or any other agreement furnished by them prior to the enforcement by
the Security Agent of any of the Security pursuant hereto or in connection
herewith.
SECTION 14.2 General Indemnity. The Sponsors, jointly and severally, hereby
agree to indemnify, exonerate, and hold the Agent, the Security Agent, and the
Paying Agent, and each of the officers, directors, employees of the Agent, the
Security Agent, and the Paying Agent (herein collectively called the
"Indemnitees") free and harmless from and against any and all actions, claims,
-----------
losses, liabilities, damages, and expenses, including, without limitation,
reasonable legal fees and expenses (herein collectively called the "Indemnified
-----------
Liabilities"), which may be incurred by or asserted against the Indemnitees or
-----------
any Indemnitee as a result of, or arising out of, or relating to, or in
connection with:
(i) the failure by either Sponsor to comply with its respective
obligations under this Agreement, the Sponsors' Guaranty, the
Sponsors' Loan Agreement and the Revolving Loan Facility Agreement
(subject, in the case of Indemnified Liabilities arising from Article
-------
XIII, to the provisions of Section 13.6);
---- ------------
(ii) the inaccuracy by either Sponsor of any of its representations and
warranties contained in any of the Operative Documents to which it is
a party as and when made or reaffirmed as the case may be (provided
that AMD Inc. shall have no liability under this Section 14.2 in
------------
respect of any inaccuracy by AMD Holding of the representation and
warranty contained in Section 12.2 (ix)); and
-----------------
(iii) any investigation, litigation, or proceeding related to this
Agreement or the consummation of the transactions contemplated hereby,
whether or not any such Indemnitee is a party thereto, and, to the
extent that the foregoing undertaking may be unenforceable for any
reason, the Sponsors, jointly and severally, hereby agree to make the
maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
SECTION 14.3 Undertaking to Contribute. AMD Inc. hereby undertakes that in the
event:
66
(i) a liability is imposed on AMD Saxonia and/or AMD Holding as a result
of the German tax authorities recharacterising interest on the
Sponsors' Loans as dividends; or
(ii) a liability is imposed on AMD Saxonia and/or AMD Holding as a result
of the German tax authorities ruling that AMD Saxonia and/or AMD
Holding is not sufficiently profitable (the "Liabilities"),
-----------
and in either case (x) provided all remedies and/or appeals under the provisions
of the German and U.S.A. (Income and Capital) Tax Treaty, to the extent
applicable, have been exhausted and (y) only to the extent that AMD Saxonia is
not able to repay the Advances in the amounts and at the times scheduled, that
it will contribute Equity Capital (or other contributions to AMD Saxonia's
capital reserves) to AMD Holding (and AMD Inc. shall to the extent necessary and
depending on where the Liability arises, contribute sufficient funds or
otherwise cause sufficient funds to be made available, to AMD Holding as shall
be necessary to enable AMD Holding to so contribute to AMD Saxonia and AMD Inc.
shall cause AMD Holding to do the same) in an amount not exceeding the
Liabilities that, when added to amounts then available to AMD Saxonia, is
sufficient to pay the Primary Secured Obligations.
SECTION 14.4 SAB Related Agreements Indemnity. The Sponsors, jointly and
severally, hereby agree to indemnify, exonerate, and hold the Agent, and each of
the officers, directors, employees of the Agent (herein collectively called the
"SAB Indemnitees") free and harmless from and against any and all actions,
---------------
claims, losses, liabilities, damages, and expenses, including, without
limitation, reasonable legal fees and expenses (herein collectively called the
"Indemnified SAB Liabilities"), which may be incurred by or asserted against the
----------------------------
SAB Indemnitees or any SAB Indemnitee as a result of, or arising out of, or
relating to, or in connection with, the SAB Related Agreements (other than any
such Indemnified SAB Liabilities finally determined by a court of competent
jurisdiction to have resulted from the gross negligence or wilful misconduct of
an SAB Indemnitee), and, to the extent that the foregoing undertaking may be
unenforceable for any reason, the Sponsors, jointly and severally, hereby agree
to make the maximum contribution to the payment and satisfaction of each of the
Indemnified SAB Liabilities which is permissible under applicable law.
SECTION 14.5 Payments Free and Clear of Taxes, etc. Each of the Sponsors
hereby agrees that:
(a) All payments by such Sponsor hereunder shall be made to the Person
entitled thereto 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 such
Person'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 payment to be made by
either of the Sponsors hereunder is required in respect of any
67
Taxes pursuant to any applicable law, rule, or regulation, then such
Sponsor will, subject to Section 14.5(d),
---------------
(i) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(ii) promptly forward to such Person (with a copy to the Security
Agent) an official receipt or other documentation satisfactory
to the Security Agent evidencing such payment to such
authority; and
(iii) pay to such Person such additional amount or amounts as is
necessary to ensure that the net amount actually received by
such Person will equal the full amount such Person would have
received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against any Person
entitled to receive a payment under this Agreement with respect to any
payment received by such Person hereunder, such Person may pay such
Taxes and the Sponsors 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 such Person, as
the case may be) as is necessary in order that the net amount received
by such Person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such Person would have
received had no such Taxes been asserted.
(b) The additional amount or amounts that either Sponsor shall be required
to pay pursuant to clause (iii) of Section 14.5(a) shall be reduced,
------------ ---------------
to the extent permitted by applicable law, by the amount of the
offsetting tax benefits, if any, as determined by the relevant Person
in the exercise of its sole discretion, which such Person actually
receives and utilises as a result of such Sponsor's payment under
clause (i) of Section 14.5(a) to the relevant authority (it being
---------- ---------------
expressly understood and agreed that such Person 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 Person complying with Section 14.5(d) below,
---------------
if either of the Sponsors fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the applicable
recipient hereunder the required receipts or other required
documentary evidence, such Sponsor shall indemnify such Person for any
incremental Taxes, interest, or penalties that may become payable by
such Person as a result of any such failure.
(d) Each Person entitled to receive a payment hereunder that is entitled
to claim an exemption (either on its own account or for the account of
the relevant Sponsor) in
68
respect of all or a portion of any Taxes which are otherwise required
to be paid or deducted or withheld pursuant to this Section 14.5 in
------------
respect of any payments made by a Sponsor hereunder shall, within a
reasonable time after receiving a written request from such Sponsor,
provide such Sponsor 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 the
Sponsors hereunder, the agreements and obligations of the Sponsors
contained in this Section 14.5 shall survive the payment in full of
------------
the principal of and interest on the loans and other financial
accommodations made to AMD Saxonia under the Loan Agreement.
SECTION 14.6 Judgment. The Sponsors hereby agree 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 each of the Sponsors in respect of any sum due from
it to 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 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, 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 the Security Agent, the Agent, the
Paying Agent, or any Bank, in Deutsche Marks, such Sponsor, as a
separate obligation and notwithstanding any such judgment, hereby
indemnifies and holds harmless 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 the Security
Agent, the Agent, or such Bank in Deutsche Marks, the Security Agent,
the Agent, the Paying Agent, or such Bank, as the case may be, shall
remit to the relevant Sponsor such excess.
SECTION 14.7 License Agreement. With respect to the License Agreement,
(a) AMD Inc. hereby waives, and agrees to cause each of its Subsidiaries
other than AMD Saxonia to waive, any and all rights, claims and/or
causes of action such Person now has or in the future may have against
AMD Saxonia, its successors and assigns, the Agent, the Security
Agent, the Paying Agent, any Bank, any receiver appointed to operate
the Plant, or a third party purchaser of the capital stock, or of all
or substantially all of the assets, of AMD Saxonia (herein
collectively referred to as the "Beneficiaries" and individually as a
-------------
"Beneficiary"), based on: (i) its use, in any manner whatsoever, of
-----------
any Non-Proprietary Know-how or of Information Residuals
69
(as such terms are defined in the License Agreement); (ii) its use,
within the scope of the license granted in Section 3(a) of the License
------------
Agreement, of the Developed Intellectual Property (as defined in the
License Agreement), or (iii) its use, in any manner whatsoever, of
Post Research Agreement AMD Saxonia Developed Improvements or Post
Research Agreement AMD Saxonia Developed Intellectual Property (as
such terms are defined in the License Agreement). The preceding
sentence notwithstanding, AMD Inc. does not waive any rights, claims
or causes of action based on the infringement and/or misappropriation
of any patents, copyrights, mask works, trademarks and trade secrets,
whether registered or not, which are owned by AMD Inc. or by an
Affiliate of AMD Inc. other than AMD Saxonia and not licensed to AMD
Saxonia under the License Agreement; provided, however, that the use
of Information Residuals (as so defined) shall not be deemed to
constitute an infringement and/or misappropriation of any intellectual
property rights of AMD Inc. or any of its Subsidiaries (other than AMD
Saxonia).
(b) each Sponsor hereby acknowledges and agrees that, following the
termination of the AMD Saxonia Wafer Purchase Agreement, the operation
of the Plant by AMD Saxonia, its successors and assigns, or by a
Beneficiary shall not, absent a separate infringement or other
unlawful violation, under the License Agreement or otherwise, of a
proprietary, substantial, and identifiable right of AMD Inc., or any
of its Subsidiaries other than AMD Saxonia, constitute: (i) a breach
of the terms of the License Agreement or of any of the Service
Agreements (as defined in the License Agreement), or (ii) an
infringement upon any intellectual property right of AMD Inc. or its
Subsidiaries other than AMD Saxonia; and
(c) except where such failure was due to a breach by AMD Saxonia of its
covenants to cooperate with AMD Inc., if AMD Inc. fails to complete
the document removal process set forth in Section 9 of the License
---------
Agreement within the period required therein following the termination
of the AMD Saxonia Research Agreement, AMD Inc. and its Subsidiaries
other than AMD Saxonia shall be deemed to have waived any and all
rights, claims and/or causes of action they have or in the future may
have against AMD Saxonia, its successors and assigns, or against a
Beneficiary based on the disclosure or use, for any purpose, by such
Person of any documentation left in the Plant on the grounds that such
documentation or the information contained therein is proprietary to
AMD Inc. or its Affiliates or Subsidiaries other than (in either case)
AMD Saxonia.
ARTICLE XV
Miscellaneous
SECTION 15.1 No Waiver; Modifications in Writing. No failure or delay on the
part of 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 right, power, or remedy.
The
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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 or
otherwise. No amendment, modification, supplement, termination, or waiver of or
to any provision of this Agreement, or consent to any departure by either
Sponsor therefrom, shall be effective unless the same shall be in writing and
signed by or on behalf of the Agent and the Security Agent. Any waiver of any
provision of this Agreement, and any consent to any departure by either Sponsor
from the terms of any provision of this Agreement, shall be effective only in
the specific instance and for the specific purpose for which given. No notice
to or demand on either Sponsor in any case shall entitle such Sponsor to any
other or further notice or demand in similar or other circumstances.
SECTION 15.2 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 or unenforceable provision by a valid
and enforceable provision which approximates best the economic purpose of the
invalid provision.
SECTION 15.3 Termination. This Agreement and the obligations of the parties
hereunder shall terminate on the day that AMD Saxonia has paid in full all of
the Primary Secured Obligations, and the Banks shall have no other or further
commitments under the Loan Agreement; provided, that such obligations shall
--------
automatically revive and be reinstated if and to the extent that AMD Saxonia
shall subsequently have obligations to any Secured Party under or in connection
with any of the Operative Documents.
SECTION 15.4 Assignment. This Agreement shall be binding upon and shall inure
to the benefit of each party hereto and their respective successors and assigns;
provided that neither AMD Inc. nor 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.
SECTION 15.5 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 15.5. Unless otherwise
-------------
specified in a notice sent or delivered in accordance with the foregoing
provisions of this Section 15.5, 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.
To the Security Agent:
Dresdner Bank AG, as Security Agent
Xxxxx Xxxxx 0
00
00000 Xxxxxxx
Attention: 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.: 49 351 277 91300
SECTION 15.6 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 Security Agent may have under statutory law or
other agreements between one or more of the Agent, the Security Agent, the
Banks, and AMD Inc. or AMD Holding.
SECTION 15.7 Effectiveness of Agreement; Survival; Expiry of Obligation. This
Agreement shall not be effective for any purpose whatsoever prior to the
execution and delivery of the Loan Agreement by each of AMD Saxonia and the
Agent. Subject to Section 15.3 hereof, the obligations of the Sponsors under
------------
this Agreement shall terminate, except as otherwise provided herein, upon the
payment in full of all of the Primary Secured Obligations to the Secured Parties
under or in connection with the Financing Documents and the Security Documents,
and the expiration or termination of all of their respective commitments
thereunder (the "Loan Agreement Termination Date"); provided, however, that the
------------------------------- -------- -------
obligations of the Sponsors contained in Article XIV hereof shall survive any
-----------
termination of this Agreement. Except as provided in Section 2.4 of the
-----------
Sponsors' Guaranty, the obligations of the Sponsors
72
under the Sponsors' Guaranty shall expire on the Loan Agreement Termination
Date.
SECTION 15.8 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 Agreement or any of its provisions or to raise any other
objections and/or exceptions or to assert any claims for compensation. This
Agreement shall continue in full force and effect in accordance with its terms.
ARTICLE XVI
Governing Law, Jurisdiction, and Language
SECTION 16.1 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 16.2 Jurisdiction. Each of AMD Inc. and AMD Holding hereby submits 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. states that
Advanced Micro Devices GmbH, whose address is Xxxxxxxxxxxxxxxxxx 000x, 00000
Xxxxxx, Xxxxxxx, Attention: Legal Department, Tel: x00 00 000 000, Fax: +49 89
406 490, Telex: 841523883, 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 or the Security Agent to take suits, actions, or
proceedings against a Sponsor to enforce any judgment rendered by the courts in
Frankfurt am Main in any other court or entity of competent jurisdiction where
such Sponsor 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 16.3 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, shall be accompanied
by a certified German translation thereof. In the event of any inconsistency,
the English language version of any such document shall control.
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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
__________________________________________
DRESDNER BANK AG, as Agent and Security Agent
__________________________________________
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SCHEDULE I
to
Sponsors' Support Agreement
[left intentionally blank]
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