EXHIBIT 10.50(a-4)
Redacted Version
AMENDMENT AGREEMENT NO. 3
February 20, 2001
by and between
AMD SAXONY MANUFACTURING GMBH
and
AMD SAXONY HOLDING GMBH
and
DRESDNER BANK AG
and
the Other
BANKS and FINANCIAL INSTITUTIONS
named herein
and
DRESDNER BANK LUXEMBOURG S.A.
_______________________________________
TO THE
SYNDICATED LOAN AGREEMENT
dated
11 March 1997 (As Amended)
AND OTHER OPERATIVE DOCUMENTS
_______________________________________
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇/Doser Amereller ▇▇▇▇▇
Frankfurt
INDEX
-----
Page
Preamble
(S) 1 Definitions
(S) 2 Amendment of the Loan Agreement
(S) 3 Amendment of the Security Documents
(S) 4 Condition Precedent
(S) 5 Representations and Warranties
(S) 6 Miscellaneous
2
Schedules
Schedule 1 Marked Version of the Loan Agreement
Schedule 2 Amendment Agreement to Sponsors` Support Agreement
Schedule 3 Amendment Agreement to the AMD Saxonia Wafer Purchase
Agreement
Schedule 4 Amendment Agreement to the AMD Holding Wafer Purchase
Agreement
Schedule 5 Amendment Agreement to Sponsors` Guaranty
Schedule 6 Amendment Agreement to Sponsors` Subordination Agreement
Schedule 7 Amendment Agreement to AMD Inc. Subordination Agreement
Schedule 8 Marked Version of the AMD Saxonia Security Assignment of
Current Assets
Schedule 9 Marked Version of the AMD Holding SecurityAssignment of
Current Assets
Schedule 10 Marked Version of the AMD Saxonia Assignment of Contractual
Rights
Schedule 11 Revolving Loan Facility Agreement
Schedule 12 Legal Opinion of O'Melveny & ▇▇▇▇▇ LLP
Schedule 13 Legal Opinion of ▇▇▇▇, Stiefenhofer & ▇▇▇▇
Schedule 14 Legal Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇/Doser Amereller ▇▇▇▇▇
Schedule 15 Legal Opinion of White & Case, ▇▇▇▇▇▇▇▇▇
*** 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.
3
AMENDMENT AGREEMENT TO THE SYNCIDATED LOAN AGREEMENT
----------------------------------------------------
DATED 11 MARCH 1997 (AS AMENDED)
--------------------------------
by and between
1. AMD SAXONY MANUFACTURING GMBH, Dresden, registered in the Commercial
Register of the Dresden Amtsgericht [Local Court] HRB 13186,
- hereinafter referred to as "AMD Saxonia" -
2. AMD SAXONY HOLDING GMBH, Dresden, registered in the Commercial Register of
the Dresden Amtsgericht HRB 13931
- hereinafter referred to as "AMD Holding" -
3. DRESDNER BANK AG,
- hereinafter referred to as "Security Agent" -
4. the other Banks and Financial Institutions named on the signature pages
herein
- the parties referred to at 3 and 4 hereinafter each referred
to as a "Bank" or together as the "Banks", as the case may be -
and
5. DRESDNER BANK LUXEMBOURG S.A.
- hereinafter referred to as "Agent"
or "Paying Agent", as the case may be -
PREAMBLE
--------
1. On 11 March 1997, AMD Saxonia, Dresdner Bank AG (in its capacity as Agent
and Security Agent), the Banks and Dresdner Bank Luxembourg S.A. (in its
capacity as Paying Agent) entered into a Syndicated Loan Agreement with
respect to loan facilities totalling DM 1,650,000,000 for the purpose of
co-financing the Project Costs defined therein. On 1 July 1997, Dresdner
Bank AG assigned its rights and duties from its role as Agent to Dresdner
Bank Luxembourg S.A. pursuant to (S) 22.11 of the Syndicated Loan
Agreement.
4
2. In view of substantial technological changes and the increased financing
requirements resulting therefrom, the financing obligations of AMD Holding
and of AMD Inc. agreed in connection with the Syndicated Loan Agreement as
well as other provisions of the Syndicated Loan Agreement and of the
related documentation were changed and supplemented on 6 February 1998
within the framework of Supplemental Agreements to the Syndicated Loan
Agreement and the Operative Documents referred to therein.
3. As a result of changes in the AMD Inc. Senior Secured Note Indenture, the
Syndicated Loan Agreement as well as the Sponsors' Support Agreement and
the Sponsors' Loan Agreement as amended on 6 February 1998 were again
changed and supplemented on 29 June 1999.
4. In view of the development that has meanwhile occurred in the
microprocessor production area and the further technical development of
the manufacturing processes, additional investments are required which
exceed the scope envisaged so far in the Syndicated Loan Agreement.
5. The parties hereto agreed, inter alia, on the following changes in
accordance with the terms of this Amendment Agreement. Facility B provided
for in the Syndicated Loan Agreement as a reserve for Cost Overruns will
not be drawn by AMD Saxonia but will be cancelled so that the total loan
facility granted under the Syndicated Loan Agreement will be reduced by DM
150,000,000 to DM 1,500,000,000. The total additional investment
requirements remaining as expected will be funded . as follows:
(i) from the Cash Flow of AMD Saxonia which will be generated within the
framework of the reimbursement obligations in accordance with the
terms of the AMD Holding and AMD Saxonia Wafer Purchase Agreements
as amended; and
(ii) by an additional interim financing to be provided by the Sponsors.
to AMD Saxonia in the form of a subordinated revolving loan facility
in an amount of up to US$ 500,000,000 (which may be provided in Euro
or in US$).
The Sponsors' Guaranty will not expire after Completion of the Project but
continue to apply for the whole term of the Syndicated Loan Agreement and
amount to the greater of (i) thirty-five per cent (35%) of the outstanding
amount of
5
the loan and (ii) DM 217,500,000 plus interest thereon and costs, but
subject to a maximum amount of DM 600,000,000.
6. The parties hereto also agreed to make certain changes to the Syndicated
Loan Agreement as amended on 6 February 1998 and 29 June 1999 and in the
Operative Documents referred to therein in accordance with the terms of
this Amendment Agreement.
7. In view of the circumstances and stipulations made in paragraphs 4, 5 and
6 of the Preamble, the parties hereto agreed to change the Syndicated Loan
Agreement as amended on 6 February 1998 and 29 June 1999 (hereinafter the
"Loan Agreement") and the Operative Documents referred to therein in
accordance with the following provisions.
(S) 1
Definitions
1.1 The individual terms defined in the Loan Agreement will have the same
meanings when used in this Amendment Agreement, except where the context
otherwise requires.
1.2 Unless the context requires otherwise, any reference to an Operative
Document or a Project Agreement shall be a reference to such Document or
Agreement as it shall have been, or from time to time be, amended,
supplemented or replaced in accordance with the terms of the Loan
Agreement and the respective Operative Document or Project Agreement.
(S) 2
Amendment of the Loan Agreement
2.1 Subject to (S) 4, the Loan Agreement (including Schedules 1, 2, 6, 7, 8,
9, 10, 14, 16, 17, 18, 21, 24 and 63) hereby is and will be amended and
supplemented in accordance with the amendments marked in the version of
the Loan Agreement (including the Schedules) attached hereto as Schedule
--------
1.
-
6
2.2 Schedules 1, 2, 6, 8, 14 and 16 of the Loan Agreement hereby are and will
be deleted and be replaced by the Schedules 1, 2, 6,8, 14 and 16 referred
to in para. 2.1; Schedule 21 Part I hereby is and will be deleted without
substitution; Schedule 21 Part II hereby is and will be amended and
supplemented in accordance with Schedule 21 referred to in para. 2.1;
Schedules 11, 12 and 13 of the Loan Agreement hereby are and will be
deleted without substitution.
2.3 The land charge to be created pursuant to (S) 8.1.6 of the Loan Agreement
has been extended by notarial declaration of 14 April 1999 to cover the
real property registered in the Land Registry of Wilschdorf (folio 925),
parcels numbers 706 and 707.
2.4 Pursuant to (S) 8.1.6 of the Loan Agreement, AMD Saxonia is obligated to
create a first priority land charge. The land charge has, however, been
registered in the Land Registry of Wilschdorf (folio 851) ranking after a
real servitude in favor of the Energieversorgungscenter Dresden-
Wilschdorf; the same holds true for the real property parcel number 707
(folio 925) which is encumbered with a prior-ranking land charge in the
amount of DM 2.8 million in favor of the City of Dresden. The parties
hereto take note of this situation without, however, releasing AMD Saxonia
from its obligation to create a first priority land charge.
2.5 In addition to the real property referred to in (S)(S) 5.1.4 and 8.1.6 of
the Loan Agreement and in para. 2.3 above, AMD Saxonia acquired other real
property in Boxdorf which is registered in the Land Registry, parcel
number 426 (folio 649). The portion of the real property which will remain
with AMD Saxonia after an intended partial sale and which will probably
have the parcel number 710/3 shall also be encumbered by AMD Saxonia with
a first priority land charge. However, in view of the small size and/or
the small value of such piece of real property, the latter will not be
included in the collective land charge which is already encumbering the
other real property of AMD Saxonia. Therefore, AMD Saxonia undertakes to
create on such piece of real property a first priority land charge in
favor of the Security Agent, in accordance with (S) 8.1.6, with personal
submission to foreclosure and with the amount of the land charge, which
may not be lower than the value of the piece of real property, being
determined by AMD Saxonia and the Security Agent by mutual agreement. The
Banks authorize the Security Agent to do so.
7
2.6 The remaining provisions of the Loan Agreement together with the Schedules
remain in force to their full extent.
2.7 Any reference in the Operative Documents to an Operative Document shall be
a reference to the Operative Document as amended.
(S) 3
Amendment of the Security Documents
3.1 Subject to (S) 4, the following Security Documents together with the
Schedules hereby are and will be amended and supplemented as follows:
(i) the AMD Saxonia Security Assignment of Current Assets dated 25
September 1997 in accordance with the amendments marked in the
version attached hereto as Schedule 8;
----------
(ii) the AMD Holding Security Assignment of Current Assets dated 25
September 1997 in accordance with the amendments marked in the
version attached hereto as Schedule 9; and
---------------
(iii) the AMD Saxonia Assignment of Contractual Rights dated 25 September
1997 in accordance with the amendments marked in the version
attached hereto as Schedule 10.
-----------
3.2 The Security Documents referred to in paragraphs 3.1 (i) through (iii)
together with the Schedules shall, in all other respects, remain in force
to the full extent.
(S) 4
Condition Precedent
4.1 The validity of this Amendment Agreement is subject to the condition
precedent of the Agent having confirmed to the Banks in writing that it
received the documents set out in (S) 4.1.1 through (S) 4.1.14. The
documents set out in paragraphs 4.1.8 through 4.1.14 must be satisfactory
to the Agent in terms of content and form. The documents specified in (S)
4.1.1 through (S) 4.1.10 must have been entered into and/or
8
executed in a legally binding manner and their validity may not be subject
to any conditions (except conditions the occurrence of which is connected
with this Amendment Agreement):
4.1.1 Amendment Agreement to Sponsors' Support Agreement pursuant to
Schedule 2;
----------
4.1.2 Amendment Agreement to the AMD Saxonia Wafer Purchase Agreement
pursuant to Schedule 3;
----------
4.1.3 Amendment Agreement to the AMD Holding Wafer Purchase Agreement
pursuant to Schedule 4;
----------
4.1.4 Amendment Agreement to Sponsors' Guaranty pursuant to Schedule 5;
----------
4.1.5 Amendment Agreement to Sponsors' Subordination Agreement pursuant
to Schedule 6;
----------
4.1.6 Amendment Agreement to AMD Inc. Subordination Agreement pursuant to
Schedule 7;
----------
4.1.7 Revolving Loan Facility Agreement pursuant to Schedule 11;
-----------
4.1.8 Written Confirmation of AMD Inc. Regarding the Unchanged Validity
of the AMD Inc. Guaranty of 11 March 1997;
4.1.9 Written Acceptance Confirmation of AMD Inc. and of AMD Saxonia
regarding the amendment decision of the Guarantors.of 17 November
2000;
4.1.10 Written Approval of Sachsische Aufbaubank GmbH regarding the
Amendment of the Loan Agreement and the other Operative Documents
referred to therein;
4.1.11 Legal Opinion of the Law Office O'Melveny & ▇▇▇▇▇ LLP, Counsel to
AMD Inc,. pursuant to Schedule 12 concerning, inter alia, the
-----------
Senior Secured Note Indenture of 1 August 1996 (as amended)
referred to in (S) 15.1.13 of the Loan Agreement and the Loan and
Security Agreement of 13 July 1999 (as amended) likewise referred
to therein;
9
4.1.12 Legal Opinion of the Law Office ▇▇▇▇, Stiefenhofer & ▇▇▇▇, Counsel
to the AMD Companies pursuant to Schedule 13;
-----------
4.1.13 Legal Opinion of the Law Office ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇/Doser Amereller
▇▇▇▇▇, Counsel to the Agent and to the Banks pursuant to Schedule
--------
14;
--
4.1.14 Legal Opinion of the Law Office White & Case, ▇▇▇▇▇▇▇▇▇, Counsel
to the Agent and to the Banks pursuant to Schedule 15.
-----------
(S) 5
Representations and Warranties
5.1 AMD Saxonia and AMD Holding represents and warrant to the Banks as follows:
5.1.1 AMD Saxonia and AMD Holding have taken all necessary steps and
obtained all necessary consents to enter into this Amendment
Agreement and the Amendment Agreements to the Operative Documents
and other documents referred to in (S) 3.1 and (S) 4.1.1 through (S)
4.1.9 in a legally binding manner and to exercise its respective
rights thereunder.
5.1.2 the execution of this Amendment Agreement and of the Amendment
Agreements to the Operative Documents referred to in (S) 3.1 and (S)
4.1.1 through (S) 4.1.9 by AMD Saxonia, AMD Holding and AMD Inc. and
the compliance by each of them of their obligations thereunder and
the exercise by each of them of their rights thereunder:
(i) do not violate any provision of applicable law, any judgment
or any requirements or any approvals of any authority or the
like or contractual obligations or any other obligations
applicable to AMD Companies;
(ii) will not result in the termination or acceleration of any
other obligations of AMD Companies;
(iii) will not result in an obligation of AMD Companies to create
any security in favor of any third party, save as contemplated
in the
10
Security Documents or in the Loan Agreement (as amended by
this Amendment Agreement).
5.1.3 All Operative Documents entered into by AMD Companies and referred
to in (S) 3.1 and (S) 4.1.1 through (S) 4.1.9 constitute legally
binding obligations of AMD Saxonia, AMD Holding and/or AMD Inc.
which are enforceable in accordance with their terms, subject, to
the reservations made in the Legal Opinions. Those reservations
comprise limitations on the enforceability of legal documents which
are governed by German law or by U.S. federal or state law if and
to the extent that express reservations have been made in this
respect in the Legal Opinions to be delivered to and to be approved
by the Agent pursuant to (S) 4.1.11 through (S) 4.1.14.
(S) 6
Miscellaneous
6.1 Pursuant to (S) 22.6 (iii) of the Loan Agreement, the Banks hereby agree
to the naming by the Agent (with the consent of AMD Saxonia) of an
insurance advisor other than Fenchurch Insurance Brokers Ltd., London.
6.2 This Amendment Agreement is part of the Loan Agreement. All references in
the Loan Agreement and in the Operative Documents and all statements and
declarations relating thereto shall apply in the same manner to this
Amendment Agreement.
6.3 This Amendment Agreement and all documents referred to herein shall be
deemed Operative Documents within the meaning of the Loan Agreement.
6.4 The parties hereto may sign several duplicate originals of this Amendment
Agreement which, in each case, will together be deemed to be the original.
6.5 Paragraphs 25.1, 27, 28 and 29 of the Loan Agreement shall apply mutatis
mutandis to this Amendment Agreement.
6.6 The references in the Operative Documents to the General Terms and
Conditions of the Security Agent shall relate to the version applicable
from time to time.
11
AMD SAXONY MANUFACTURING GMBH
/s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------
Managing Director
February 20, 2001
AMD SAXONY HOLDING GMBH
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Managing Director
February 20, 2001
DRESDNER BANK AG,
(as Security Agent and Lending Bank)
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
Other Lending Banks:
KREDITANSTALT FUR WIEDERAUFBAU
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
LANDESBANK BADEN-WURTTEMBERG
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
12
SACHSEN LB LANDESBANK SACHSEN GIROZENTRALE
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
BAYERISCHE LANDESBANK GIROZENTRALE
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
HYPOVEREINSBANK LUXEMBOURG SOCIETE ANONYME
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
BHF-BANK AKTIENGESELLSCHAFT
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
COMMERZBANK AKTIENGESELLSCHAFT Filiale Dresden
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
DSL BANK DEUTSCHE SIEDLUNGS- UND LANDESRENTENBANK
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
HAMBURGISCHE LANDESBANK - GIROZENTRALE -
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
13
IKB DEUTSCHE INDUSTRIEBANK AG
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
LANDESBANK RHEINLAND-PFALZ - GIROZENTRALE
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
ABN AMRO BANK (DEUTSCHLAND) AG, Frankfurt
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
CREDITANSTALT AG
(formerly CREDITANSTALT-BANKVEREIN)
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
THE SUMITOMO BANK, LIMITED, Niederlassung Dusseldorf
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
BANK AUSTRIA CREDITANSTALT DEUTSCHLAND AG
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
DRESDNER BANK LUXEMBOURG S.A.
(as Agent and Paying Agent)
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ von Finckenstein
----------------------------------------------
14
Schedule 1
Marked Version of the Loan Agreement
(including Schedules 1, 2, 6, 7, 8, 9, 10, 14, 16, 17, 18, 21, 24 and 63)
15
English translation of the legally
binding German Loan Agreement as amended.
Translation prepared for convenience only.
SYNDICATED LOAN AGREEMENT
11 March 1997,
as amended by Supplemental Agreements dated 6 February 1998, 29 June 1999
and
20 February 2001
between
AMD SAXONY MANUFACTURING GMBH
-as Borrower-
and
DRESDNER BANK AG
- as Security Agent -
and
THE OTHER BANKS AND FINANCIAL INSTITUTIONS
named herein
-as Lenders-
and
DRESDNER BANK LUXEMBOURG S.A.
- as Agent and Paying Agent -
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇/Doser Amereller ▇▇▇▇▇
Frankfurt
INDEX
-----
Paragraph Page
--------- ----
(S) 1 Definitions and Interpretation 6
(S) 2 Facilities 13
(S) 3 Purpose 14
(S) 4 Utilisation of the Facilities 14
(S) 5 Conditions to Drawing 16
(S) 6 Interest, Commitment Fee, Payments 23
(S) 7 Term and Repayment 27
(S) 8 Security 28
(S) 9 Illegality 31
(S) 10 Market Disruption; Alternative method of Calculation 32
(S) 11 Increased Costs 33
(S) 12 Indemnity 34
(S) 13 No Deductions or Withholdings 35
(S) 14 Continuity Clause 36
(S) 15 Representations and Warranties 36
(S) 16 Reporting and Information Requirements 40
(S) 17 Covenants 42
(S) 18 Project Budget; Project Schedule 49
(S) 19 Project Accounts 50
(S) 20 Consent of the Banks 50
(S) 21 Termination of the Facilities by the Banks 51
(S) 22 Agency Provisions 56
(S) 23 Administration of Security 59
(S) 24 Paying Agent 62
(S) 25 Costs 63
(S) 26 Assignment; Sub-participations 64
(S) 27 Miscellaneous 64
(S) 28 Governing Law 69
(S) 29 Jurisdiction 69
2
Schedules
Schedule 1 Commitments of the Banks
Schedule 2 Drawdown Schedule
Schedule 3 Drawdown Notice
Schedule 4 Interest Rate Notice
Schedule 5 Notice of Prepayment
Schedule 6 Project Budget
Schedule 7 Project Schedule / Project Phases
Schedule 8 Quarterly Status Report
Schedule 9 [Scheduled Project Phase] Technical Completion Certificate
(Obligors)
Schedule 10 [Scheduled Project Phase] Technical Completion Certificate
(Technical Advisor)
Schedule 11 [left intentionally blank]
Schedule 12 [left intentionally blank]
Schedule 13 [left intentionally blank]
Schedule 14 Management Plan
Schedule 15 Disclosure Schedule
Schedule 16 Statement of Use and Source of Funds
Schedule 17 Financial Covenants
Schedule 18 Certificate of Compliance (Financial Covenants)
Schedule 19 Statement to Report of the Technical Advisor
Schedule 20 Governmental Approvals, Permits and Measures
Schedule 21 Confirmation of Auditor
Schedule 22 Insurance Provisions
Schedule 23 Cash Equivalent Investments
Schedule 24 Guaranty Decision
Schedule 25 AMD/Dresdner Subsidy Agreement
Schedule 26 SAB/Dresdner Subsidy Agreement
Schedule 27 AMD Inc. Guaranty
Schedule 28 Sponsors' Support Agreement
Schedule 29 Sponsors' Loan Agreement
Schedule 30 Sponsors' Subordination Agreement
Schedule 31 Sponsors' Consent and Agreement
Schedule 32 Sponsors' Guaranty
Schedule 33 AMD Holding Wafer Purchase Agreement
Schedule 34 AMD Holding Research, Design and Development Agreement
Schedule 35 AMD Saxonia Wafer Purchase Agreement
Schedule 36 AMD Saxonia Research, Design and Development Agreement
Schedule 37 Management Service Agreement
Schedule 38 License Agreement
Schedule 39 Design/Build Agreement; Contractors' Consent and Agreement
Schedule 40 Material Equipment Supply/Service Contracts; Consent and
Agreement
Schedule 41 AMD Inc. Share Pledge Agreement
3
Schedule 42 AMD Inc. Subordination Agreement
Schedule 43 AMD Saxonia Land Charge
Schedule 44 AMD Saxonia Security Assignment of Current Assets
Schedule 45 AMD Saxonia Security Assignment of Fixed Assets
Schedule 46 AMD Saxonia Assignment of Insurances
Schedule 47 AMD Saxonia Global Assignment
Schedule 48 AMD Saxonia Charge of Project Accounts
Schedule 49 AMD Saxonia Assignment of Contractual Rights
Schedule 50 AMD Saxonia Assignment (U.S.A.)
Schedule 50a AMD Saxonia Hedging Agreement
Schedule 51 AMD Holding Share Pledge Agreement
Schedule 52 AMD Holding Security Assignment of Current Assets
Schedule 53 AMD Holding Global Assignment
Schedule 54 AMD Holding Charge of Bank Accounts
Schedule 55 AMD Holding Assignment of Contractual Rights
Schedule 56 AMD Holding Assignment (U.S.A.)
Schedule 57 Legal Opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (Indenture,
Credit Agreement)
Schedule 58 Legal Opinion of O'Melveny & ▇▇▇▇▇ LLP
Schedule 59 Legal Opinion of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
Schedule 60 Legal Opinion of Doser Amereller ▇▇▇▇▇/▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Schedule 61 Legal Opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇
Ewerwahn
Schedule 62 General Terms and Conditions
Scheduel 63 Maximum 65/35 Guaranty Amount
4
SYNDICATED LOAN AGREEMENT
-------------------------
between
1. AMD SAXONY MANUFACTURING GMBH, Dresden, registered in the Commercial
Register of the Dresden County Court HRB 13186,
- hereinafter referred to as "AMD Saxonia" -
- as Borrower -
2. DRESDNER BANK AG in Dresden,
- hereinafter also referred to as "Security Agent", as the case may be -
3. The Banks and financial institutions listed in Schedule 1
- the parties referred to at 2 and 3 hereinafter each referred to
as a "Bank" or together as the "Banks", as the case may be -
- as Lenders -.
and
4. DRESDNER BANK LUXEMBOURG S.A.
- hereinafter referred to as the "Agent" or the "Paying Agent",
as the case may be -
PREAMBLE
--------
1. AMD Saxonia proposes to construct, own and operate a fabrication facility
in Dresden for the manufacture of microchip silicon wafers (the
"Fabrication Facility") together with an integrated research and
development center (the "Design Center") (which together are referred to as
the "Project"). AMD Saxonia is a wholly owned subsidiary of AMD Saxony
Holding GmbH domiciled in Dresden, registered in the Commercial Register of
the Dresden County Court under HRB 13931 ("AMD Holding") whose sole
shareholder is Advanced Micro Devices, Inc., a Delaware corporation of ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - 3453 ("AMD Inc.").
2. The investment cost required for implementation of the Project is to be
partially financed in an amount of up to DM 1,500,000,000 through the
credit facilities made available to AMD Saxonia on and subject to the terms
and conditions of this syndicated loan agreement (the "Agreement").
3. AMD Inc. has made available to AMD Saxonia, via AMD Holding, equity in the
form of ordinary share capital in an aggregate amount of DM 217,550,000,
together with subordinated loans pursuant to the terms of the Sponsors'
Support Agreement and the Sponsors' Loan Agreement, totalling in aggregate
DM 645,000,000 as at 31 December 1999. Furthermore, AMD Inc. has undertaken
to make available to AMD Saxonia
5
subordinated revolving loans in an aggregate amount of US$ 500,000,000
pursuant to the Revolving Loan Facility Agreement (as defined below) to
finance the general corporate funding requirements of AMD Saxonia.
4. The Free State of Saxony has agreed to provide regional aid for the Project
comprising (i) a dedicated purpose investment grant in an aggregate amount
of DM 476,687,000 (which together with investment subsidies in an aggregate
amount of DM 23,813,000 totals an aggregate amount of DM 500,500,000), and
(ii) a dedicated purpose interest subsidy in an amount of DM 300,000,000
which in each case will be paid to AMD Saxonia by Dresdner Bank AG in
Dresden, in its capacity as house bank.
5. The Banks have agreed to make available to AMD Saxonia the facilities
referred to above on and subject to the following terms and conditions.
IT IS AGREED AS FOLLOWS:
(S) 1
Definitions and Interpretation
1.1 Definitions of terms not defined above are as follows:
AMD/Dresdner Subsidy Agreement (AMD/Dresdner Zuschussvertrag):
the agreement between AMD Saxonia and Dresdner Bank AG in its capacity as
house bank to AMD Saxonia, in the form set out in Schedule 25.
-----------
AMD Companies (AMD-Gesellschaften):
together AMD Saxonia, AMD Holding and AMD Inc.
AMD Holding Wafer Purchase Agreement:
the agreement between AMD Holding and AMD Inc., in the form set out in
Schedule 33.
-----------
AMD K6 microprocessor:
the Microsoft Windows compatible general purpose microprocessor under
development by AMD Inc. to compete with Intel Corporation's Pentium Pro
microprocessor.
AMD Saxonia Wafer Purchase Agreement:
the agreement between AMD Saxonia and AMD Holding, in the form set out in
Schedule 35.
-----------
6
Available Revolving Loan Facility Amount:
means, on any date, any amount (which must be positive) of:
(i) the Total Revolving Loan Commitment Amount on such date;
less
(ii) the aggregate unpaid principal amount of all Revolving Loans
outstanding on such date.
Auditor (Wirtschaftsprufer):
Ernst & Young Wirtschaftsprufungsgesellschaft mbH or 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 withheld.
Banks' Auditor (Wirtschaftsprufer der Banken):
BDO Deutsche Warentreuhand AG Wirtschaftsprufungsgesellschaft 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 withheld.
Banking Day (Bankarbeitstag):
each day on which banks are generally open for business in London,
Frankfurt am Main, Dresden and Luxembourg.
Capital Expenditure (Investitionskosten):
acquisition and manufacturing costs in respect of fixed and movable assets
in accordance with (S) 266 2 A II of the Commercial Code and acquisition
costs for intangible assets in accordance with (S) 266 2 A I of the
Commercial Code, to the extent the same have a useful operational life of
more than one year (not being expenditures chargeable to the profit and
loss account).
Completion (Fertigstellung):
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 is
----------- --
confirmed to the Agent by the submission of properly executed originals of
such Certificates.
Disclosure Schedule:
the list of matters disclosed by AMD Saxonia set out in Schedule 15.
-----------
Drawdown Notice (Auszahlungsverlangen):
a Drawdown Notice in the form of the specimen set out in Schedule 3.
----------
Drawdown Schedule (Auszahlungsplan):
the drawdown schedule set out in Schedule 2, as the same may be revised in
----------
accordance with the Project Budget.
Equipment Supply Contract (Liefervertrag):
7
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.
Event of Default (Kundigungsgrund):
any event which would entitle a party to an Operative Document, possibly
after the giving or expiry of notice and/or lapse of time, to terminate the
relevant Operative Document.
Excepted Software Agreements (Ausgenommene Softwarevertrage):
means software licences and software service agreements entered into by AMD
Saxonia which are used exclusively:
(i) for financial planning, business administration systems and similar
ancillary administrative functions and which are not linked to, or
connected with (a) the production process in the Fabrication
Facility; (b) general bookkeeping and invoicing and (c) production
planning; or
(ii) in the Design Center.
Facilities (Kredite):
as defined in (S) 2.1.
Guarantors (▇▇▇▇▇▇):
the Federal Republic of Germany and the Free State of Saxony in their
respective capacities as guarantors pursuant to the 65/35 Guaranty.
Guaranty Decision (Burgschaftsentscheidung):
the decision dated 2 July 1996 set out in Schedule 24 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;
(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) the Memorandum of Understanding ("Gemeinsame Feststellungen") of 19
February 1997, the Amendment Decision of 12 December 1997 and the
letter from C&L Deutsche Revision AG dated 5 January 1998; and
8
(v) the letters from C&L Deutsche Revision AG to Dresdner Kleinwort
▇▇▇▇▇▇ and Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇, respectively, dated 17
November 2000 and 7 February 2001.
65/35 Guaranty (65/35 Burgschaft):
the several maximum amount shortfall guaranties issued by each of the Free
State of Saxony (26%) and the Federal Republic of Germany (39%) in
accordance with the Guaranty Decision up to a maximum aggregate amount of
65 % of the Facilities (in aggregate DM 975,000,000), together with the
shortfall of interest and costs, vested with a first right of satisfaction
in favour of the Banks over all security granted by the AMD Companies as
security for the Banks' risk of recovery (but subject to a set off of 65%
of payments made (if any) under the Sponsors' Guaranty in the form of
Schedule 32, as amended, to this Agreement against the Guarantors'
------------
obligations under the aforesaid shortfall guaranties).
Insurance Advisor (Versicherungsberater):
Fenchurch Insurance Brokers Ltd., London or such other insurance advisor as
may from time to time be appointed by the Agent with the consent of AMD
Saxonia, which consent shall not be unreasonably withheld.
Interest Period (Zinsperiode):
the interest periods to be designated for individual advances, in each case
in accordance with (S)(S) 6.1 to 6.4.
Lending Office (kreditausreichende Geschaftsstelle):
the lending office of each Bank referred to in Schedule 1 to this
----------
Agreement.
LIBOR-Rate (LIBOR-Satz):
the LIBOR-rate so defined in (S) 6.1.1.
Management Plan:
the management plan in the form set out in Schedule 14.
-----------
Material Service Contract (wesentlicher Leistungsvertrag):
each Service Contract
(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.
-----------
9
Material Equipment Supply Contract (wesentlicher Liefervertrag):
is 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.
------------
Minimum Liquidity Covenant (Mindestliquiditatskennzahl):
as defined in Schedule 17, (S) 4.
Operative Documents (Transaktionsdokumente):
each of the following:
(i) the Project Agreements;
(ii) this Agreement, the Sponsors' Support Agreement, the Sponsors' Loan
Agreement in the form set out in Schedule 29, the Security Documents,
-----------
the Sponsors' Consent and Agreement in the form set out in Schedule
--------
31, the AMD Saxonia Hedging Agreement in the form set out in Schedule
-- --------
50a, the AMD/Dresdner Subsidy Agreement, the SAB/Dresdner Subsidy
---
Agreement, the Sale and Settlement Agreement between AMD Saxonia and
the City of Dresden dated 11 June 1996, together with amendments
dated 25 October 1996 and 28 February 1997, and the Revolving Loan
Facility Agreement;
(iii) the Loan and Security Agreement dated as of July 13, 1999, as
amended, between, inter alia, AMD Inc. and the Bank of America
National Trust and Savings Association, the AMD Inc. Senior Secured
Note Indenture dated as of 1 August 1996, as amended, between AMD
Inc. and United States Trust Company of New York, as trustee, the
Management Plan, the Project Budget, the Project Schedule, the Plans
and Specifications, the Information Memorandum of AMD Saxonia of
September 1996, the [Scheduled Project Phase] Technical Completion
Certificates (Obligors), the [Scheduled Project Phase] Technical
Completion Certificates (Technical Advisor), in the form set out in
Schedules 9 and 10, the Statement of the Use and Source of Funds, in
----------- --
the form set out in the Schedule 16, and each Consent and Agreement
-----------
required pursuant to the agreements referred to in this definition in
the form set out in Part II of Schedule 40, Annex 3 to Schedule 49,
----------- -----------
Annex 3 to Schedule 55 or in such other form to which the Agent has
-----------
consented; and
(iv) all other Operative Documents within the meaning of the Sponsors'
Support Agreement and each other instrument or document designated by
the Agent (with the consent of AMD Saxonia) as an Operative Document
under this Agreement or the Sponsors' Support Agreement.
10
Plans and Specifications (Plane und Spezifikationen):
the plans and specifications to be prepared by AMD Saxonia and to be
approved by the Technical Advisor, the Agent and each Sponsor for the
fitting out of the Plant and the Design Center, as the same may be amended
from time to time with the consent of each of the AMD Companies and the
Agent. Amendments which do not reduce or affect the value of the Plant and
the Design Center or the capacity and purpose of the Plant as set out in
the Plans and Specifications originally approved, shall not require the
consent of the Agent.
Project Accounts (Projektkonten):
as defined in (S) 19.1.
Project Agreements (Projektvertrage):
the AMD Saxonia Wafer Purchase Agreement, the AMD Holding Wafer Purchase
Agreement, the AMD Saxonia Research, Design and Development Agreement, in
the form set out in Schedule 36, the AMD Holding Research, Design and
-----------
Development Agreement, in the form set out in Schedule 34, the Management
-----------
Service Agreement, in the form set out in Schedule 37, the License
-----------
Agreement, in the form set out in Schedule 38, the Design/Build Agreement,
-----------
in the form set out in Schedule 39, the Equipment Supply Contracts, the
-----------
Service Contracts, the AMD Inc. Guaranty, in the form set out in Schedule
--------
27 and each other instrument or document designated by the Agent (with the
--
consent of AMD Saxonia) as a Project Agreement for the purposes of this
Agreement.
Project Budget (Projektbudget):
the budget set out in Schedule 6, including such amendments thereto made
----------
with the consent of the Agent in accordance with (S) 18.2 of this
Agreement.
Project Costs (Projektkosten):
all Capital Expenditure and other costs which are incurred by AMD Saxonia
in connection with the Project.
Project Phase (Projektabschnitt):
each project phase set out in the Project Schedule contemplated for the
implementation of the Project.
Project Schedule (Projektzeitplan):
the timetable in the form set out in Schedule 7, including amendments
----------
thereto made with the consent of the Agent in accordance with (S) 18.2 of
this Agreement.
Reference Rate (Basissatz):
the reference rate so defined in (S) 6.1.1.
Reference Banks (Referenzbanken):
the Agent together with Commerzbank AG and ABN AMRO Bank (Deutschland) AG
or such other Banks designated by the Agent in their stead, subject to the
approval of AMD Saxonia, such approval not to be unreasonably withheld.
11
Revolving Loans:
the subordinated unsecured revolving loans made by the Sponsors under the
terms of the Revolving Loan Facility Agreement.
Revolving Loan Facility Agreement:
the US$ 500,000,000 subordinated unsecured revolving loan facility
agreement dated 20 February 2001 between AMD Inc., AMD Holding and AMD
Saxonia.
SAB/Dresdner Subsidy Agreement (SAB/Dresdner Zuwendungsvertrag):
the agreement between the Sachsische Aufbaubank GmbH, Dresden and Dresdner
Bank AG, Dresden in its capacity as house bank to AMD Saxonia, in the form
set out in Schedule 26.
-----------
Security Documents (Sicherheitenvertrage):
the agreements and other documents referred to in (S) 8.1.
Service Contract (Leistungsvertrag):
each contract in respect of services to be performed in favour of AMD
Saxonia (with the exception of the AMD Saxonia Wafer Purchase Agreement,
the Management Service Agreement as set out in Schedule 37 and employment
-----------
contracts) which is not an Equipment Supply Contract but excluding Excepted
Software Agreements.
Sponsors (Sponsoren):
together, AMD Inc. and AMD Holding.
Sponsors' Support Agreement:
the agreement entered into between AMD Inc., AMD Holding, the Agent and the
Security Agent entitled "Sponsors' Support Agreement", in the form set out
in Schedule 28.
-----------
Subsidy Agreement (Zuschussvertrag/Zuwendungsvertrag):
together, the AMD/Dresdner Subsidy Agreement and the SAB/Dresdner Subsidy
Agreement.
Technical Advisor (Technischer Berater):
Fraunhofer Institut fur Siliziumtechnologie, Itzehoe, or such other
technical advisor as may be appointed by the Agent with the consent of AMD
Saxonia, which consent shall not be unreasonably withheld.
Total Revolving Loan Commitment Amount:
means US$ 500,000,000 (five hundred million US 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.
US GAAP:
the generally accepted accounting principles as set forth from time to time
in the opinions and pronouncements of the United States Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the
12
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.
1.2 The terms referred to in the introduction to this Agreement, in the
Preamble and in (S) 1.1 above shall, except where the context otherwise
requires, have the same meanings when used in this Agreement. Unless the
context requires otherwise, such terms shall also have such meanings when
used in agreements, written notifications, confirmations and other
documents which are issued pursuant to the terms of this Agreement. Unless
the context requires otherwise, any reference to an Operative Document or a
Project Agreement shall be a reference to such Document or Agreement as it
shall have been, or from time to time be, amended, varied, re-issued,
replaced, novated or supplemented, in each case, in accordance with its
terms and this Agreement.
(S) 2
Facilities
2.1 The Banks hereby agree to make available to AMD Saxonia a long term
investment loan in an amount of up to DM 1,500,000,000 (in words: one
billion five hundred million Deutsche Marks) (hereinafter "Facility A" or
the "Facilities", as the case may be). The Facilities will be made
available by each of the Banks in an amount corresponding to its commitment
as set out in Schedule 1, as amended.
----------
2.2 Each Bank shall make available its respective commitment under the
Facilities pursuant to (S) 2.1 and Schedule 1, separately and independently
----------
from each other Bank, through its Lending Office. AMD Saxonia may draw the
Facilities from all the Banks only in the proportion of their respective
commitments in accordance with (S) 2.1 and Schedule 1. No Bank shall be
----------
liable to provide or make available any advance in respect of amounts to be
provided or made available by the other Banks; any joint and several
liability of the Banks is hereby excluded. The Paying Agent shall be
obliged to distribute to AMD Saxonia the advances to be made by the other
Banks only to the extent that the Paying Agent has in fact received payment
of such advances. Each Bank shall have a claim against AMD Saxonia in the
amount of advances made by such Bank, secured pro rata by the security to
be granted in accordance with the terms and conditions of this Agreement.
2.3 The failure by any Bank to comply with its obligations under this Agreement
shall not affect either the enforceability of this Agreement as a whole or
the obligations of any other party. In such case, AMD Saxonia shall have a
claim solely against the defaulting Bank.
(S) 3
Purpose
3.1 Facility A shall be used only for the purpose of the partial financing of
the Project Costs. Utilisation of Facility A to finance Project Costs which
are not Capital Expenditure is
13
permitted only up to a maximum amount of DM 100,000,000 and only in
respect of costs incurred before 1 January 1999.
3.2 The use and source of funds in respect of each Project Phase shall be
evidenced by furnishing to the Agent a statement of the use and source of
funds, in the form set out in Schedule 16, certified by the Auditor, such
-----------
statement to be delivered simultaneously with the Scheduled Project Phase
Technical Completion Certificates pursuant to Schedules 9 and 10 for the
----------- --
relevant Project Phase and in any event promptly after the expiry of each
calendar quarter, save as may, in individual cases, be otherwise agreed
with the Agent.
(S) 4
Utilisation of the Facilities
4.1 To the extent that all the conditions precedent set out in (S)5 are
satisfied, the Facilities may be drawn on and subject to the following
terms and conditions by the delivery to the Paying Agent, with a copy to
the Agent, of a written Drawdown Notice to be received by the Paying
Agent, in the case of the first Drawdown Notice at least ten (10) Banking
Days before the drawdown date and, in the case of any other Drawdown
Notice five (5) Banking Days before the drawdown date, set out in such
notice:
4.1.1 Facility A
----------
Prior to Completion, advances shall be made up to the cumulative limit in
each Project Phase set out in the Drawdown Schedule in accordance with
the Project Schedule. Such limit and any advances drawn after Completion
shall not, however, without the prior written consent of the Guarantors,
be greater than the maximum guaranty amount for any calendar year
prescribed by the Guarantors pursuant to Schedule 63. Advances shall be
in minimum amounts of DM 15,000,000 and in integral multiples of DM
5,000,000 or in an equal amount to the undrawn portion of Facility A. No
more than one advance may be made in any calendar month.
Drawdowns in any Project Phase are permitted only in the amount of
Project Costs which have been incurred during the same Project Phase, as
the same are documented by invoices and other supporting evidence to be
furnished together with the Drawdown Notice, as required below. Drawdowns
in a current Project Phase are however permitted in respect of Project
Costs which are shown to have been incurred in respect of an invoice for
goods or services performed or delivered, submitted in the last thirty
days prior to the end of a prior Project Phase and which have been
included in full in the first Drawdown Notice of such current Project
Phase. The preceding two sentences shall not apply to drawdowns requested
following Completion.
Drawdown Notices, and the confirmation contained therein from AMD Saxonia
in the form set out in Schedule 3, shall be furnished to the Agent and
----------
the Paying Agent at the same time. The following documents shall be
furnished to the Agent together with relevant Drawdown Notice:
14
(i) written confirmation of the Managing Directors (Geschaftsfuhrung)
of AMD Saxonia and an authorised representative of AMD Inc. that
the conditions precedent referred to in (S)(S) 5.2.2 to 5.2.4 with
respect to it have been satisfied at the time of the Drawdown
Notice;
(ii) in respect of drawdowns requested prior to Completion only, unless
the Agent has waived the same, copies of invoices and a description
in reasonable detail of the deliveries and services performed in
respect of amounts which are at least equal to the amount proposed
to be drawn. Project Costs which are not Capital Expenditure may be
supported by evidence other than invoices, in such form as is
reasonably satisfactory to the Agent;
(iii) in respect of drawdowns requested prior to Completion only, written
confirmation of the Auditor that the amounts invoiced are, or were,
to the extent already paid, due and any contractually agreed
retentions and other deductions, such as discounts, have been
deducted in each case, in the form set out in Schedule 21, as
-----------
amended.
Amounts drawn and subsequently repaid may not be reborrowed.
4.1.2 [left intentionally blank]
4.1.3 [left intentionally blank]
4.2 Drawings of the Facilities are not permitted after 29 June 2001.
4.3 Drawings under the Facilities shall be permitted only to the extent that
the making of an advance would not result in the total amount advanced by
the Banks exceeding by more than three times the total amount paid up on
the ordinary share capital of AMD Saxonia and the total amount of
subordinated loans advanced to AMD Saxonia (but excluding, for this
purpose, Revolving Loans) and/or cash contributions made to the reserves
and not repaid in accordance with Section 6.3 second sentence of the
Sponsors' Support Agreement and used for Project Costs.
4.4 Advances under the Facilities will be made available to AMD Saxonia by
the Paying Agent crediting AMD Saxonia's *** with the Agent.
4.5 The Banks shall be entitled to reject Drawdown Notices from AMD Saxonia
if and to the extent that AMD Saxonia has assigned or charged its claims
under this Agreement to any third party or if such claims have been
subject to an attachment order without the consent of the Banks or if AMD
Saxonia is in default in the payment of any amount due or is in breach of
a material obligation, under this Agreement.
----------------
*** CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
15
(S) 5
Conditions to Drawing
5.1 Initial utilisation of the Facilities is subject to the satisfaction of
the conditions set out in (S) 4 and all the following conditions
(including those set out in (S) 5.2) at the date of the Drawdown Notice
and written confirmation from the Agent and/or the Paying Agent that it
has received a duly completed Drawdown Notice and confirmation from the
Agent that it has received the documents referred to in (S) 5.1.1 to
5.1.16.
5.1.1 Written confirmation of the Chief Financial Officer of AMD Inc. ***
5.1.2 Written confirmation from AMD Saxonia and AMD Inc. that as at the date of
the initial Drawdown Notice all material governmental approvals, consents
and measures which are necessary for the implementation and ongoing
operation of the Project in accordance with the Plans and Specifications
and the Operative Documents are available, or have been taken, as the
case may be, which, according to the progress of the Project are
appropriate and there is no reason to believe that the same will be
revoked, restricted or made subject to conditions or that governmental
approvals, consents and measures necessary at a later stage of the
Project will not be obtained or taken in a timely fashion. Schedule 20
-----------
contains a list of all material approvals, consents and measures within
the meaning referred to above. To the extent applicable as aforesaid and
if any Bank should so reasonably require, AMD Saxonia shall furnish the
Agent with certified copies of all relevant documents required for the
performance of the Operative Documents, and of the governmental
approvals, consents and measures necessary for the operation of the
Fabrication Facility and the Design Center.
5.1.3 Confirmation from AMD Inc. that as at the date of the initial Drawdown
Notice all consents or approvals necessary from third party creditors in
relation to the indebtedness or contingent liabilities of AMD Inc. and in
relation to the execution, delivery and performance by each of the AMD
Companies of their existing obligations and the subject matter of the
Operative Documents have been obtained.
5.1.4 Receipt of an extract from the Land Register confirming that AMD Saxonia
has been registered in the Register as the owner of parcels referred to
as nos. Folio 851 parcels nos. 150/2, 121/2, 122, 123, 124, 125/2, 126,
127, 128/2, 129/3, 130, 131, 132, 133/1, 134, 135, 136, 137, 138, 139,
140, 141, 142, 143, 143a, 144, 145, 146, 147, 148, 149, 151/2, 152, 153,
154/2, 155, 156, 157, 158, 159, 160/1, 160/2, 161, 162, 694/1 in the
County Court of Dresden von Wilschdorf and that the land charge to be
granted in accordance with (S) 8.1.6 has been registered and that there
are no prior registered charges.
5.1.5 All fees to be borne by AMD Saxonia pursuant to this Agreement and the
other Operative Documents, to which the Agent, the Security Agent, the
Paying Agent or the Banks are party, and other payments relating to costs
incurred pursuant to (S) 25.1 which are due have been paid.
-----------------
*** CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
16
5.1.6 The Agent has received the following duly executed legally binding
documents whose effectiveness is not conditional (save solely in respect
of any condition relating to this Agreement):
(i) all Security Documents pursuant to (S) 8 with the exception of
such Consents and Agreements required in accordance with this
Agreement and the Security Documents set out in Schedules 49 and
------------
55 which are to be furnished together with the relevant contracts
--
when the same are entered into
(ii) Sponsors' Support Agreement, in the form set out in Schedule 28
-----------
(iii) AMD Saxonia Wafer Purchase Agreement, in the form set out in
Schedule 35.
-----------
(iv) AMD Holding Wafer Purchase Agreement, in the form set out in
Schedule 33.
-----------
(v) AMD Saxonia Research, Design and Development Agreement, in the
form set out in Schedule 36.
-----------
(vi) AMD Holding Research, Design and Development Agreement, in the
form set out in Schedule 34.
-----------
(vii) Management Service Agreement, in the form set out in Schedule 37.
-----------
(viii) License Agreement in the form set out in Schedule 38.
-----------
(ix) Sponsors' Loan Agreement, in the form set out in Schedule 29.
-----------
(x) Sponsors' Consent and Agreement, in the form set out in Schedule
--------
31.
--
(xi) Design/Build Agreement including Contractor's Consent and
Agreement, in the form set out in Schedule 39.
-----------
(xii) copies, certified by a lawyer as true copies, of Material
Equipment Supply Contracts and Material Service Contracts (to the
extent executed as at the date of the initial Drawdown Notice),
including relevant Consents and Agreements in the form set out in
Schedule 40 Part II, Annex 3 of Schedule 49 or in such other form
----------- -----------
as the Agent has consented to as well as all other Consents and
Agreements required in accordance with the Security Documents in
the form set out in Schedules 49 and 55.
------------ --
(xiii) AMD/Dresdner Subsidy Agreement (Zuschussvertrag).
(xiv) SAB/Dresdner Subsidy Agreement (Zuwendungsvertrag).
(xv) AMD Saxonia Hedging Agreement in the form set out in Schedule 50a.
------------
(xvi) confirmation in writing from the State Ministry of Saxony for
Economics and Labour that it has received a Letter from the
European Commission confirming
17
its non-objection to the interest subsidies to be paid under the
Subsidy Agreements.
(xvii) Sale and Settlement Agreement between AMD Saxonia and the City of
Dresden dated 11 June 1996, together with amendments dated 25
October 1996 and 28 February 1997.
5.1.7 The Agent has received from AMD Saxonia, AMD Holding and AMD Inc.
respectively, confirmation that, as at the date of relevant Drawdown
Notice, subject to any disclosure to the contrary in the Disclosure
Schedule set out in Schedule 15, (i) its representations and warranties
-----------
in the Operative Documents are true and accurate in all material respects
as at such date; (ii) none of the events referred to in (S) 21 has
occurred and is continuing, (iii) each of the Operative Documents to
which it is a party is legally binding on it and in full force and effect
and (iv) there has been no breach by AMD Saxonia of such Operative
Documents.
5.1.8 The Agent has been furnished with the following documents:
(i) Documents relating to AMD Inc.
------------------------------
(a) a certificate of incorporation of AMD Inc. together with any
amendments thereto duly certified by the ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇;
(b) a certificate of the Secretary of State of the State
Delaware, USA, referring to the certificate of incorporation
of AMD Inc. and any amendments and confirming that the same
are the only charter documents furnished to the Secretary of
State concerning AMD Inc., that AMD Inc. is incorporated in
the State of Delaware, USA, and is in good standing and at
the date of the certificate all franchise taxes due up to
that date have been paid;
(c) a certificate signed by the Secretary of State of the State
of California, USA, in customary form, confirming that under
Californian law, AMD Inc. satisfies all the conditions for
intra-state business and as at the date of the confirmation
is entitled to engage in intra-state business, subject to
any required permits of the State of California otherwise
required;
(d) a duly signed confirmation of the Recorder of Deeds of New
Castle County, Delaware, USA, in customary form, confirming
that a certified copy of the certificate of incorporation of
AMD Inc. together with all amendments referred to in the
certificate delivered pursuant to (S) 5.1.8 (b), has been
furnished to his office;
(e) a duly signed confirmation of the Secretary of the Franchise
Tax Board of the State of California, USA, in customary
form, confirming that AMD Inc. is in good standing, has no
unpaid tax obligations
18
known to the Franchise Tax Board and is entitled to carry
on business in the State of California; the provision of
such confirmation shall not, however, be necessary to the
extent that such confirmation cannot be provided for the
reasons disclosed in the Disclosure Schedule, provided the
decisions concerning the tax assessments have been
challenged bona fide in appropriate proceedings and
provision has been made therefor in accordance with US
GAAP.
The date of the documents referred to above shall not be more than one
month prior to the date of the initial Drawdown Notice.
(ii) Documents relating to AMD Holding
---------------------------------
(a) certified copy of the Commercial Registry extract and the
articles of incorporation of AMD Holding in the form
certified by the County Court. The date of the Commercial
Registry extract shall not be more than one month prior to
the date of the Drawdown Notice;
(b) confirmation of the Managing Directors (Geschaftsfuhrung)
of AMD Holding that the matters set out in the documents
referred to in (a) are true and accurate in all respects
as they relate to the actual facts;
(c) audited financial statements of AMD Holding, including
notes to the statements and a management report, together
with an unqualified report by the Auditors for the year
ended 31 December 1996.
(iii) Documents relating to AMD Saxonia
---------------------------------
(a) certified copy of the Commercial Registry extract and the
articles of incorporation of AMD Saxonia in the form
certified by the County Court; the date of the Commercial
Registry extract shall not be more than one month prior to
the date of the initial Drawdown Notice;
(b) written confirmation of the Managing Directors
(Geschaftsfuhrung) of AMD Saxonia that the documents
referred to in (a) are true and accurate in all respects
as they relate to the actual facts.
(c) audited financial statements of AMD Saxonia including
notes to the statements and a management report, together
with an unqualified report by the Auditors for the year
ended 31 December 1996.
5.1.9 The Agent has received from AMD Inc. confirmation in the form of Schedule
--------
3, dated as of the date of the initial Drawdown Notice, stating that
-
there is attached (i) a written resolution of its Board of Directors
authorising execution of the Operative Documents and (ii) a copy of its
by-laws in effect at the date of the initial Drawdown Notice and (iii) a
list of its agents and officers who have signed the Operative Documents
and the documents relating thereto as authorised signatories.
19
5.1.10 The Agent has received an opinion acceptable to it from a recognised
reputable first class US financial advisory firm confirming that the
Operative Documents to which AMD Inc. is a party are fair to AMD Inc.
from a financial point of view.
5.1.11 The Agent has received the following legal opinions:
(i) legal opinion (including an Exhibit A thereto in a form
satisfactory to the Agent) of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
counsel to AMD Inc., in the form set out in Schedule 57, relating
-----------
to the Senior Secured Note Indenture dated 1 August 1996 and the
Credit Agreement dated 19 July 1996 each as referred to in (S)
15.1.13, dated not more than 21 calendar after the date hereof;
(ii) legal opinion of O'Melveny & ▇▇▇▇▇ LLP, counsel to the AMD
Companies, of even date herewith, in the form set out in Schedule
--------
58, together with confirmation in accordance with Schedule 58 from
-- -----------
O'Melveny & ▇▇▇▇▇ LLP that the statements referred to in the legal
opinion continue to be true and accurate as at a date not more
than ten calendar days prior to the date of the initial Drawdown
Notice;
(iii) legal opinion of ▇▇▇▇, Stiefenhofer & ▇▇▇▇, counsel to the AMD
Companies including an opinion relating to the completeness of the
schedule of required governmental approvals, permits and measures
(Schedule 20) as well as relating to the status of such required
-----------
approvals, permits and measures in accordance with the progress of
the Project, in a form updated from that set out in Schedule 59
-----------
satisfactory to the Banks dated not more than ten calendar days
prior to the date of the initial Drawdown Notice; and
(iv) legal opinion of Doser Amereller ▇▇▇▇▇ / ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel
to the Agent and the Banks of even date herewith, in the form set
out in Schedule 60, together with confirmation from Doser
-----------
Amereller ▇▇▇▇▇/▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ that the statements referred to
in the legal opinion continue to be true and accurate as at a date
not more than ten calendar days prior to the date of the initial
Drawdown Notice;
(v) legal opinions of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇
Ewerwahn, counsel to the Agent and the Banks of even date herewith
in the form set out in Schedule 61, together with confirmation
-----------
from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇ Ewerwahn that the
statements referred to in the legal opinion continue to be true
and accurate as at a date not more than ten calendar days prior to
the date of the initial Drawdown Notice.
5.1.12 The Agent has received a technical report (Technical Report) from the
Technical Advisor, in form and substance satisfactory to the Agent
together with an updated confirmation from the Technical Advisor that
the Technical Report continues to be true and accurate in all material
respects together with the confirmation in writing from AMD Saxonia in
the form set out in Schedule 19;
-----------
20
5.1.13 The Agent has received confirmations from AMD Saxonia's Insurance
Brokers in the form of Annexes I and II of Schedule 22 as well as
-----------
confirmation from the Insurance Advisor in form and substance
satisfactory to the Agent evidencing, in particular, that AMD Saxonia
has taken out insurances in the scope required pursuant to (S) 17.8 and
Schedule 22.
-----------
5.1.14 AMD Saxonia has registered its stated capital of at least DM 217,500,00
in the Commercial Register of which an amount of at least DM 108,750,000
has been paid up, at the latest on the date of the initial Drawdown
Notice and that a sum in this amount has been credited to a Project
Account in accordance with (S) 19.
5.1.15 The Technical Advisor has received the Plans and Specifications in form
and substance satisfactory to the Technical Advisor and the Agent has
received confirmation in writing, to that effect.
5.1.16 The conditions to initial drawing referred to in the AMD/Dresdner
Subsidy Agreement and the SAB/Dresdner Subsidy Agreement relating to the
payment of grants and subsidies have been satisfied.
5.2 Each of the following conditions must be satisfied on each drawing
(including the first) of the Facilities:
5.2.1 the Agent and the Paying Agent have received a Drawdown Notice and the
Agent has received the documents to be submitted simultaneously with
such notice pursuant to (S) 4.1. Each Drawdown Notice shall in
particular contain confirmation that the conditions referred to in (S)
5.2.2 to (S) 5.2.4 below are true and accurate;
5.2.2 the representations and warranties given by each of the AMD Companies in
each of the Operative Documents are true and accurate in all material
respects as at the date of the Drawdown Notice and will be true and
accurate as at the date of drawing, save to the extent that their
content relates solely to an earlier date;
5.2.3 as at the date of the Drawdown Notice and as at the date of drawing,
none of the events referred to in (S) 21 which would entitle the Banks
to terminate this Agreement has occurred;
5.2.4 as at the date of the Drawdown Notice and as at the date of drawing no
event which has a "Material Adverse Effect" within the meaning of the
Sponsors' Support Agreement has occurred;
5.2.5 the Agent has received a copy certified by a lawyer of each Material
Equipment Supply Contract and each Material Service Contract entered
into by such date, together with the written Consent and Agreements of
the other contracting party relating to the transfer of the relevant
contracts in the form set out in Part II of Schedule 40 or in such other
-----------
form to which the Agent shall have consented together with all Consents
and Agreements required pursuant to the Security Documents set out in
Schedules 49 and 55 which have not already been obtained;
------------ --
21
5.2.6 the Agent has received evidence reasonably requested by it that all the
governmental approvals, permits and measures necessary according to the
progress of the Project have been granted and, or taken, in accordance
with Part B of Schedule 20 as well as, at the beginning of each Project
-----------
Phase, a legal opinion acceptable to it from ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
relating to the completeness and the legal validity of such approvals,
permits and measures;
5.2.7 the Agent has received at the beginning of each then current Project
Phase confirmation in the form of the Scheduled Project Phase Technical
Completion Certificates in accordance with Schedules 9 and 10 stating
----------- --
that the relevant preceding Project Phase has been completed;
5.2.8 the Agent has received at the end of each calendar year confirmations
from AMD Saxonia's Insurance Brokers in the form of Annexes I and II of
Schedule 22 as well as confirmation of the Insurance Advisor pursuant to
-----------
(S) 5.1.13;
5.2.9 the Agent has received all evidence reasonably requested by it relating
to compliance with or the enforceability of AMD Saxonia's obligations
under this Agreement and the Security Documents.
(S) 6
Interest, Commitment Fee, Payments
6.1 AMD Saxonia may elect, by a notification in a Drawdown Notice and/or an
interest rate notice, whether a variable rate, a fixed rate or a
combination of variable and fixed rates should apply to drawings under
Facility A.
The rate of interest applicable to each advance drawn and the Interest
Period applicable thereto as determined in accordance with (S) 6.2 shall
be, at AMD Saxonia's option:
(i) in respect of a fixed rate, the sum of the Reference Rate and the
margin,
(ii) in respect of a variable rate, the sum of the LIBOR-Rate and the
margin.
6.1.1 The Reference Rate is the arithmetic mean (rounded up to the fourth
--------------
decimal place) of the fixed rates per annum for DM interest rate swaps
(fixed rate as against 6 months LIBOR) in an amount equal to the
relevant advance for the Interest Period requested by AMD Saxonia, as
corresponds to the rate quoted by the Reference Banks at 11.00 a.m.
(London time) as the offered rate on the second Banking Day prior to the
relevant Interest Period, as determined by the Paying Agent.
The LIBOR-Rate is the DM interest rate per annum in the London Interbank
----------
Market which in accordance with "Telerate Screen" page 3750 (or such
other page as may be substituted for page 3750 on that system for the
purpose of displaying offered rates for DM deposits) is quoted as the
offered rate at 11.00 a.m (London time) on the second Banking Day prior
to the relevant Interest Period for such Interest Period.
22
To the extent that no interest rate is displayed on the relevant
"Telerate Screen" page at the relevant time on any day for the
determination of the interest rate, the rate determined by the Paying
Agent shall be the arithmetic mean (rounded to the fourth decimal place)
quoted to the Paying Agent by the Reference Banks as the DM interest
rate per annum at which the Reference Banks offer to prime banks in the
London Interbank Market on the relevant date at 11.00 a.m. London time
for deposits for the relevant period and in an amount comparable to the
relevant advance.
If any Reference Bank does not notify such a rate to the Paying Agent
for any relevant period, the LIBOR-Rate and/or the Reference Rate as
applicable shall be determined on the basis of the rates notified by the
other Reference Banks.
6.1.2 The margin applicable to Facility A prior to 31 December 2001 shall be
one percent (1.00%) per annum. After 31 December 2001, the margin shall
be calculated by reference to:
(a) the rating of the public long-term senior unsecured debt securities
of AMD Inc. by ▇▇▇▇▇'▇ Investor Services, Inc. (or any successor or
other undertaking which has assumed the relevant functions of
▇▇▇▇▇'▇ Investor Service, Inc. which is a rating agency of
international repute) in effect at the relevant time; and
(b) the ratio (expressed as a percentage of utilization) of outstanding
advances under Facility A to DM 1,500,000,000,-,
in each case, corresponding to the interest rate set out in the right
hand column of the following table:
=======================================================================================
Rating Utilisation percentage Margin
=======================================================================================
less than "investment grade 70% or more 1.00% per annum;
(Baa3)" or no rating
---------------------------------------------------------------------------------------
less than "investment grade at least 50% but less than 70% 0.90% per annum;
(Baa3)" or no rating
---------------------------------------------------------------------------------------
less than "investment grade less than 50% 0.75% per annum;
(Baa3)" or no rating
---------------------------------------------------------------------------------------
"investment grade (Baa3)" or 70% or more 0.75% per annum;
better
---------------------------------------------------------------------------------------
"investment grade (Baa3)" or at least 50% but less than 70% 0.70% per annum; and
better
---------------------------------------------------------------------------------------
"investment grade (Baa3)" or less than 50% 0.55% per annum.
better
=======================================================================================
23
Adjustments to the margin in respect of each advance shall be made at the
beginning of the next Interest Period and/or at the next interest payment
date as set out in (S) 6.6, as the case may be.
AMD Saxonia shall ensure that the Interest Periods elected by it always
correspond with the repayment schedule in (S) 7.2 of this Agreement. To the
extent that any advance must be prepaid prior to the Interest Period agreed
therefor in order to comply with such repayment schedule, the provisions of
(S) 7.5 shall apply accordingly.
6.2 In respect of a variable interest rate, the Interest Periods shall be 1, 3,
6 or 12 months (to the extent available). The Interest Periods in respect
of fixed interest rates shall be of a duration of integral multiples of one
year or of such duration as AMD Saxonia and the Agent may agree in order to
match the dates on which repayment instalments are made in accordance with
(S) 7.2 but shall not in any event exceed five nor be less than two years.
Upon the Agent's request, AMD Saxonia will consolidate individual
outstanding advances so that not more than ten separate advances are
outstanding at any one time.
6.3 AMD Saxonia will notify the Agent, with a copy to the Paying Agent, in an
irrevocable Drawdown Notice and/or an interest rate notice to be received
at the latest by the fifth Banking Day prior to an Interest Period of the
relevant interest rate (variable or fixed rate), the amount for which the
specified interest rate shall apply and the duration of the relevant
Interest Period. If the Agent has not received in the time specified
therefor an interest rate notice in the form set out in Schedule 4 for the
----------
next Interest Period, the relevant advance shall be for an Interest Period
of the same duration as the previous Interest Period and bear interest on
the same interest rate basis applicable to such Period.
6.4 The first Interest Period for each advance will commence on the date of
drawing. Each succeeding Interest Period will commence on the expiration of
the immediately preceding Interest Period. If the last day of an Interest
Period does not fall on a Banking Day, the Interest Period shall be deemed
to end on the next following Banking Day or if the Interest Period relates
to an advance bearing interest at a variable rate and the next following
Banking Day would otherwise fall in the next calendar month, such Interest
Period shall be deemed to end on the immediately preceding Banking Day. If
an Interest Period for any advance would otherwise extend beyond a due date
for payment pursuant to (S) 7.2 of this Agreement, the relevant Interest
Period shall be deemed to end on the relevant due date.
6.5 Interest in respect of the variable interest rate shall be calculated on
the basis of the actual number of days elapsed and a 360 day year. Interest
in respect of the fixed interest rate shall be calculated on the basis of a
30 day month and a 360 day year.
6.6 Interest shall be paid on the last day of an interest period. In the case
of an Interest Period for a variable rate advance of more than 3 months
interest shall be due and payable at the end of every 3 months. In the case
of a fixed rate advance, interest shall
24
be paid on the last day of each calendar quarter or, if such day is not a
Banking Day, on the next succeeding Banking Day.
6.7 AMD Saxonia shall be in default (Verzug), without any requirement for
notice, if it has failed to make payments which are due hereunder on the
relevant due date or if it does not make such payments in full. AMD Saxonia
shall pay default interest on the outstanding amount of the overdue payment
at the rate equal to 4 percentage points per annum above the applicable
discount rate of the German Bundesbank, or the equivalent rate following
introduction of the single currency under European Monetary Union, from the
due date until receipt by the Paying Agent of the outstanding amounts.
Should there be no such rate following introduction of the single currency,
the Banks shall determine the applicable rate in accordance with (S) 315
BGB. If AMD Saxonia is in default of payment of interest, AMD Saxonia shall
pay to the Banks liquidated damages. The amount of such liquidated damages
shall correspond to a rate of interest of 4 percentage points above the
applicable discount rate of the German Bundesbank (or the equivalent rate
following introduction of the single currency under European Monetary
Union) from the due date until receipt by the Paying Agent of the overdue
interest amounts. Should there be no such rate following introduction of
the single currency, the Banks shall determine the applicable rate in
accordance with (S) 315 BGB.
6.8 AMD Saxonia agrees to pay to the Paying Agent for the account of each Bank
as from the date of execution of this Agreement until the end of the
availability period pursuant to (S) 4.2 a commitment fee at the rate of
0,2% per annum on such Bank's commitment of the unused portion of the
Facilities calculated on the basis of the actual days elapsed and on the
basis of a 360 day year. The commitment fee shall be calculated on a
quarterly basis and shall be payable at the end of each calendar quarter
for that quarter.
6.9 All payments to be made by AMD Saxonia to the Banks pursuant to the terms
of this Loan Agreement shall at all times be made to the Paying Agent's
account no. *** with Dresdner Bank in Frankfurt or such other account as
may be specified by the Paying Agent on the relevant due date. The Security
Agent is hereby also authorised to debit the relevant amounts due from AMD
Saxonia's account no. *** with the Security Agent in Dresden on or after
the due date and to pay the same to the Agent for distribution to the
individual Banks. Payments made otherwise than in accordance with this
provision shall not constitute good discharge in favour of AMD Saxonia.
6.10 AMD Saxonia shall not be entitled to assert any rights of set off or
retention against the claims of the Banks for payment hereunder.
(S) 7
Term and Repayment
7.1 The Facilities shall be for a term expiring on 31 December 2005.
7.2 The Facilities shall be amortized, commencing on 30 June 2001,
----------------
*** CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
25
in semi-annual repayments in the percentages set out below on the last
Banking Day of the relevant six month period:
--------------------------------------------------------------------------------------------
Instalments Percentage of the aggregate principal
amount of the Facilities outstanding at
the end of the availability period
pursuant to (S) 4.2
============================================================================================
first and second instalment 6.50 % each
--------------------------------------------------------------------------------------------
third and fourth instalment 13.50 % each
--------------------------------------------------------------------------------------------
fifth and sixth instalment 14.25 % each
--------------------------------------------------------------------------------------------
seventh and eighth instalment 10.50 % each
--------------------------------------------------------------------------------------------
ninth and tenth instalment 5.25 % each
--------------------------------------------------------------------------------------------
Each scheduled repayment of the Facilities shall be made, together with
all interest accrued at the due date for repayment and with all other
amounts due under this Agreement at such date.
7.3 AMD Saxonia is entitled to prepay the outstanding amount of the
Facilities, in whole or in part, but not in an amount of less than DM
10,000,000 or, if higher, an integral multiple of DM 5,000,000 or the
total amount outstanding provided that it shall have notified the Paying
Agent (with a copy to the Agent) at least five Banking Days in advance by
notice in writing, substantially in the form of Schedule 5. Each
----------
repayment shall include accrued interest up to the date of repayment.
7.4 At the latest on 15 August 2002, AMD Saxonia shall make a prepayment of
the outstanding Facilities in an amount equal to the excess (if any) of:
7.4.1 all drawdowns under the Facilities made after Completion,
over
----
7.4.2 Capital Expenditure incurred between 1 January 2001 and 1 July 2002, as
set out in the Statement as to the Use and Sources of Funds submitted
pursuant to (S) 16.2.6 (ii) for such period, signed by the Auditor.
7.5 Prepayments shall be applied to payments pursuant to (S) 7.2 in inverse
order of maturity. In the event that the Banks incur a loss arising from
a repayment (save for a repayment at the end of an Interest Period) by
virtue of the fact that the reinvestment of any advances repaid by AMD
Saxonia is only possible at interest rates lower than those agreed with
AMD Saxonia, AMD Saxonia shall indemnify the Banks in respect of
reinvestment losses so incurred as a result of prepayment. In such
circumstances, the Banks shall be entitled to make a claim for the
reinvestment loss which is equal to the difference between the rate of
interest which would have been payable by AMD Saxonia for the relevant
remaining term of the Interest Period on the basis of the applicable
rates and the rate available to the Banks for such period as the
reinvestment rate. For this
26
purpose, the reinvestment rate for the remaining term and/or the
remaining term of the Interest Period is capital market rate
corresponding to the offered rate for German
Pfandbriefe/Kommunalobligationen (Inhaberschuldverschreibungen) of an
equivalent maturity in the interbank market, determined in accordance
with (S) 6.1. The difference in interest rates shall be discounted to net
present value at a discount rate equivalent to the reinvestment rate. The
Banks shall be entitled to make a claim for any loss incurred by them
which is higher. AMD Saxonia shall have the right to prove that damages
have not been incurred or not in the amount claimed. All notices in
relation to a prepayment shall be irrevocable.
(S) 8
Security
8.1 The Facilities are secured by the 65/35 Guaranty in the form known to the
Banks and AMD Saxonia, as set out in Schedule 24 including in particular
-----------
deeds of guaranty in the form set out in the specimen annexed thereto. A
copy of the Guaranty Decision is also set out in Schedule 24 and the
-----------
terms of such Decision constitute a material term of this Agreement. All
terms and conditions of the Guaranty Decision to be incorporated herein
are hereby agreed by the parties notwithstanding that the same are not
expressly set out in this Agreement; this shall apply in particular to
the obligation to agree to amendments to this Agreement only with the
consent of the Guarantors. AMD Saxonia undertakes to observe and comply
with all relevant conditions of the Guaranty Decision directly applicable
to it and to do all things to enable AMD Inc. to observe and comply with
all obligations encumbent on it in connection with the Guaranty Decision.
The Guarantors are entitled to appoint authorised representatives for the
purpose of administering the 65/35 Guaranty. In addition, AMD Saxonia
shall grant, or procure that there is granted, in favour of the Banks and
the Security Agent the following security as security for all claims of
the Banks as well as any potential claims of the Guarantors arising under
or in connection with this Agreement:
8.1.1 a joint and several guaranty by the Sponsors in an amount of up to the
greater of (i) thirty five per cent. (35%) of all amounts outstanding
under this Agreement, and (ii) DM 217,500,000, in each case plus interest
thereon and costs and expenses, but subject to a maximum amount of DM
600,000,000, as set out in the Sponsors' Guaranty in the form of Schedule
--------
32, as amended;
--
8.1.2 a subordination agreement between AMD Saxonia, the Sponsors, the Agent
and the Security Agent, in the form set out in Schedule 30;
-----------
8.1.3 a guaranty by AMD Inc. of obligations of AMD Holding under certain
Operative Documents, in the form set out in Schedule 27;
-----------
8.1.4 a pledge of all shares in AMD Holding held by AMD Inc. in the form set as
out in Schedule 41;
-----------
8.1.5 a subordination agreement between AMD Holding, AMD Inc., the Agent and
the Security Agent, in the form set out in Schedule 42.
-----------
27
8.1.6 a first priority land charge over real property registered in the Land
Registry of the Dresden County Court, Dresden von Wilschdorf parcels
numbers Folio 851 parcels nos.150/2, 121/2, 122, 123, 124, 125/2, 126,
127, 128/2, 129/3, 130, 131, 132, 133/1, 134, 135, 136, 137, 138, 139,
140, 141, 142, 143, 143a, 144, 145, 146, 147, 148, 149, 151/2, 152, 153,
154/2, 155, 156, 157, 158, 159, 160/1, 160/2, 161, 162, 694/1 of AMD
Saxonia in respect of an amount of DM 1,650,000,000 together with
interest in an amount of 15 % per annum together with a lump sum payment
in an amount of 5 % of the total charge amount as an immediately
enforceable charge without prior charges in Section III of the Register
in favour of the Security Agent together with a personal acknowledgement
of enforceability by AMD Saxonia to be granted in the form set out in
Schedule 43;
-----------
8.1.7 a security assignment of the current assets of AMD Saxonia (raw
materials, supplemental and operational materials, finished and
unfinished products as well as trading products), in the form set out in
Schedule 44;
-----------
8.1.8 a security assignment of fixed assets of AMD Saxonia, in the fom set out
in Schedule 45;
-----------
8.1.9 a security assignment of insurance claims of AMD Saxonia, in the form set
out in Schedule 46;
-----------
8.1.10 a global assignment of all receivables of AMD Saxonia not otherwise
assigned from the supply of equipment and other services and from other
claims against debtors other than the Sponsors, in the form set out in
Schedule 47;
-----------
8.1.11 a pledge of all amounts standing to the credit of AMD Saxonia in the
Project Accounts in the form set out in Schedule 48;
-----------
8.1.12 an assignment of AMD Saxonia's rights under the Design/Build Agreement in
the form set out in Schedule 39, the Equipment Supply Contracts, the
Service Contracts and other contracts not governed by the laws of the
United States of America or any state thereof together with an offer to
transfer such contracts as required by Schedule 49 and with Consents and
-----------
Agreements in the form of Annex 3 to Schedule 49 as therein required. AMD
-----------
Saxonia is hereby authorised by the Security Agent to enforce on its
behalf rights in its name under the agreements referred to above as
against the relevant obligor for as long as no circumstances exist which
entitle the Banks to terminate this Agreement; AMD Saxonia hereby accepts
such authorisation.
8.1.13 an assignment of claims and contractual rights of AMD Saxonia under the
AMD Saxonia Wafer Purchase Agreement , the Equipment Supply Contracts,
the Service Contracts and rights under other contracts governed by the
laws of the United States of America or any state thereof, in the form
set out in Schedule 50.
-----------
8.1.14 a pledge of all shares in AMD Saxonia held by AMD Holding, in the form
set out in Schedule 51;
-----------
28
8.1.15 a security assignment of current assets of AMD Holding (raw materials,
supplemental and operational materials, finished and unfinished products
as well as trading products), in the form set out in Schedule 52.
-----------
8.1.16 a global assignment of all receivables of AMD Holding not otherwise
assigned from the supply of equipment and other services and of other
claims against all debtors, with the exception of AMD Inc., in the form
set out in Schedule 53;
-----------
8.1.17 a pledge of all amounts standing to the credit of AMD Holding in bank
accounts, in the form set out in Schedule 54;
-----------
8.1.18 an assignment of AMD Holding's rights under contracts not governed by
laws of the United States of America or any state thereof and an offer
to transfer such contracts, pursuant to the form set out in Schedule 55
-----------
together with Consents and Agreements in the form set out in Annex 3 to
Schedule 55 as therein required; AMD Holding will be authorised by the
-----------
Security Agent to enforce on its behalf rights in its name under the
agreements referred to above as against the relevant obligor for so long
as no circumstances exist which entitle the Banks to terminate this
Agreement.
8.1.19 an assignment of claims and contractual rights of AMD Holding under the
AMD Holding Wafer Purchase Agreement and other contracts governed by the
laws of the United States of America or any state thereof, in the form
set out in Schedule 56.
-----------
8.2. AMD Saxonia undertakes that, in the event of any material deterioration
of the security as a whole, in particular as a result of reduction in
value and/or loss, it will on the request of the Agent grant additional
security or repay the Facilities accordingly. AMD Saxonia undertakes to
charge real property which is not presently charged or which is acquired
in the future if the same is or intended to be used for operational
purposes.
8.3 If AMD Saxonia is of the opinion that the realisable value of the
security as a whole (with the exception of the 65/35 Guaranty) exceeds
at any time by a material amount the total outstanding claims of the
Banks under this Agreement, otherwise than temporarily, AMD Saxonia may
by notice to the Security Agent, including supporting material, require
the release of security. The Security Agent will pass a copy of such
notice to the Guarantors for their comment.
Following receipt of the Guarantors' comments, the Security Agent and
the Banks will release security to the extent a material over-
collateralisation has been adequately demonstrated.
The Security Agent shall be obliged to agree to a release if and to the
extent that the realisable value as determined in accordance with the
individual Security Documents of all Security provided by AMD Saxonia
exceeds 120% of the secured claims of the Banks other than temporarily.
The choice of the securities released shall be at the discretion of the
Security Agent and of the Banks, as the case may be.
8.4 In the event that the Banks are entitled to terminate the Facilities
pursuant to (S) 21 of this Agreement, AMD Saxonia hereby authorises the
Agent, on behalf of the Banks, to
29
satisfy on its behalf all obligations of, and to discharge all claims
against it (including those arising under extended retention of title
clauses), at the expense of AMD Saxonia. AMD Saxonia waives its rights
pursuant to (S) 267 II BGB and undertakes to reimburse the Agent promptly
after request by the Agent all reasonable costs and expenses which the
Agent may have incurred in connection with the exercise of its rights to
satisfy obligations and discharge claims as aforesaid.
(S) 9
Illegality
If it becomes illegal or unlawful pursuant to domestic or foreign legislation or
it becomes contrary to any requirement of any domestic or foreign authority or
public body for any Bank to comply with its outstanding obligations - in whole
or in part - under this Agreement such Bank may immediately after it has become
aware thereof inform AMD Saxonia through the Agent. After receipt of such
notification, the Facilities made available by the relevant Bank affected by the
illegality or unlawfulness shall be cancelled without notice or on such
reasonable notice as may be determined by the relevant Bank and specified in the
notification referred to, as the case may be. In such case, AMD Saxonia shall
repay to the Paying Agent for distribution to the relevant Bank all outstanding
amounts under the affected Facilities at the date such notice becomes effective,
together with accrued interest and all other amounts due at the date of such
notice.
(S) 10
Market Disruption; Alternative Method of Calculation
10.1 The Paying Agent shall immediately notify AMD Saxonia and the Banks if any
of the following events occur in relation to any interest period:
(i) the Paying Agent, after consultation with the Reference Banks,
determines that due to circumstances affecting the London interbank
market, the LIBOR rate or the reference rate cannot be adequately
and reasonably determined; or
(ii) in the case of a LIBOR rate, no interest rate for the relevant
interest period appears on the Telerate Monitor and less than two
(2) Reference Banks provide the Paying Agent with a LIBOR rate or in
the case of the reference rate, less than two Reference Banks
provide the Paying Agent with a reference rate; or
(iii) a majority of Banks, as determined pursuant to (S) 22.5, inform the
Paying Agent (with a copy to the Agent) that in respect of the
relevant interest period no DM funds in the required amount are
available in the London interbank market or that the average of the
LIBOR-rates appearing on the Telerate Monitor do not adequately
reflect the cost to such Banks of making or maintaining their
respective participations in the relevant advance for such interest
period.
30
Following receipt of such notification no further advances may be made
until an alternative method of calculation pursuant to (S) 10.2 is agreed
upon or such notice is revoked by further notification from the Paying
Agent to AMD Saxonia and the Banks.
10.2 As soon as notification pursuant to (S) 10.1 has been made, AMD Saxonia and
the Paying Agent, in coordination with the Banks, will negotiate in good
faith for a maximum period of thirty days with a view to setting an
alternative method of refinancing the affected advances as well as the
applicable interest rate, the interest period and the payment dates. To the
extent that instead of a LIBOR rate, a reference rate can be determined or
instead of a reference rate, a LIBOR rate can be determined, AMD Saxonia
shall be entitled to require that the rate which is available shall apply
to the relevant advance. If agreement as to the alternative interest rate
is reached between the Banks and AMD, the alternative calculation method
agreed shall apply for all relevant advances. If no agreement in respect of
an alternative method of calculation is achieved within thirty days and
agreed upon in writing or if AMD Saxonia does not require an alternative
available Reference Rate or LIBOR-Rate, the following shall apply:
(i) to the extent that the Facilities have not been drawn, no drawing will
be permitted. AMD Saxonia shall then be obliged to pay immediately all
amounts due to the Paying Agent for distribution to the Banks pursuant
to the terms of this Agreement;
(ii) to the extent that the Facilities have already been drawn, AMD Saxonia
and the Agent (in consultation with the Paying Agent) may determine a
repayment date for the entire outstanding amount of the Facilities
affected of not less than thirty days. Repayment shall be effected on
such day together with interest in an amount equivalent to the costs
of the Banks of making or maintaining their respective participations
in the relevant advance for such interest period together with the
margin to the Paying Agent for distribution to the Banks. In the event
that such costs of the Banks cannot be determined, the applicable rate
shall be determined in accordance with (S) 315 BGB.
(S) 11
Increased Costs
11.1 If a Bank or its Lending Office determines that the introduction of or a
change of any law applicable to it or change in interpretation of any such
law or the application or compliance with any regulation of any public body
results or will result:
(i) in the affected Bank being obliged to pay any tax or other payment
relating to any advance made by it or to any payment to be made by AMD
Saxonia to it, or
(ii) the affected Bank being subject to any other measure which leads to an
increase in the costs of that Bank in funding advances or that the
amount or the effective return in relation to any payment which the
affected Bank receives pursuant to this Agreement is reduced, or
31
(iii) the affected Bank being subject to additional costs which arise from
its commitment under the Facility,
such Bank shall be entitled to inform AMD Saxonia through the Agent. AMD
Saxonia shall then be obliged on request and irrespective of whether
advances made are repaid to the affected Bank to pay such amount to the
Paying Agent for the account of the affected Bank as is demonstrated to be
necessary to compensate the affected Bank for the relevant increase in
costs or reduction of payment. The foregoing shall apply only to the extent
that the affected Bank has informed AMD Saxonia, via the Agent, of the
relevant circumstance in respect of paragraphs (i) to (iii).
11.2 An increase in costs or reduction of payment referred to in (S) 11.1 does
not include:
(i) any tax on overall net income of any Bank or a branch thereof;
(ii) any tax required to be deducted or withheld from any amount payable
by AMD Saxonia which AMD Saxonia has paid in accordance with (S) 13;
(iii) any amount relating to any reserve amount, special deposits, equity,
cost ratio, liquidity or capital adequacy requirement or any other
form of banking or monetary control resulting from any law or
regulation in effect at the date of this Agreement.
11.3 For as long as the circumstances referred to in 11.1 above continue, AMD
Saxonia shall be entitled by written notice to the Paying Agent, with a
copy to the Agent, to repay all outstanding advances made by the affected
Bank on thirty days notice expiring at the end of an interest period and to
cancel the Facilities only as they relate to the affected Bank.
(S) 12
Indemnity
12.1 Without prejudice in particular to the provisions of (S) 6.7, (S) 7.5, (S)
10 and (S) 11, AMD Saxonia shall be obliged to hold harmless from and to
indemnify each Bank and the Paying Agent on demand in respect of all
losses, obligations, damage, costs and expenses (including loss of profit)
under or arising out of this Agreement which are suffered by a Bank or the
Paying Agent as result of:
(i) the occurrence of circumstances which entitle the Banks to terminate
this Agreement or breach by AMD Saxonia of its obligations under
this Agreement;
(ii) the failure to draw down funds under the Facilities following a
Drawdown Notice;
(iii) any amounts prepaid otherwise than in accordance with the terms of
this Agreement (in particular also pursuant to (S) 10 and (S) 11).
32
12.2 The obligation to hold harmless and indemnify includes also all costs and
expenses which a Bank incurs as result of the redeployment of funds which
are obtained for the purposes of refinancing its commitment under the
Facilities as well as all interest, fees and costs which arise as a result
of the funding of the amounts not drawn.
12.3 The Paying Agent will maintain books of account in accordance with
customary banking practice which will at all relevant times record the
amounts owed by AMD Saxonia pursuant to this Agreement. In the event of
disputes or other questions in connection with this Agreement, the contents
of the Paying Agent's books of account as they relate to the obligations of
AMD Saxonia pursuant to this Agreement and the amount thereof shall be
conclusive, save in the case of manifest error. AMD Saxonia's ability to
prove any error in the contents of such books of account shall remain
unaffected.
33
(S) 13
No Deductions or Withholdings
13.1 All sums payable by AMD Saxonia under this Agreement shall be paid in full
without set off or withholding in respect of tax or other deductions. The
right to set off or the enforcement of any rights of retention or other
claims is hereby excluded. To the extent that AMD Saxonia or a third party
is obliged by law to make deductions or withholdings or to retain money for
tax or other reasons, AMD Saxonia shall be obliged to make a payment of the
difference together with the relevant amount in such additional amount as
will ensure that the relevant Bank or the Paying Agent (as applicable)
receives the full amount which would otherwise have been received by it if
the relevant deduction or withholding had not been made. AMD Saxonia shall
be obliged to furnish the Paying Agent, with a copy to the Agent,
immediately with copies of all the relevant documents confirming that the
amount deducted or withheld has been paid to the relevant tax or other
authority in the full amount.
13.2 If AMD Saxonia becomes aware that deductions or withholdings within the
meaning of 13.1 are required, AMD Saxonia shall notify the Paying Agent,
with a copy to the Agent, immediately giving details and information
relating to the relevant regulations.
13.3 If any Bank receives the benefit of a tax credit or a relief or remission
of tax resulting from the receipt of any additional amount under (S) 13.1
such Bank shall promptly reimburse to AMD Saxonia such part of that benefit
as will leave such Bank after such payment in no more and no less
favourable a position than would have applied if no such benefit or relief
had been received. The relevant Bank shall be obliged to take all
reasonable steps to claim such credit, relief or remission from or against
its tax liabilities even if this results in an obligation to make a
reimbursement to AMD Saxonia. The Banks shall not, however, be obliged to
permit AMD Saxonia to inspect its books in connection with the obligation
referred to above nor to take any particular steps in relation to their tax
affairs.
13.4 No additional amount will be payable to a Bank under (S) 13.1 to the extent
that such additional amount becomes payable as a result only of a change in
the Lending Office of the relevant Bank, unless (i) such change is
requested by AMD Saxonia, or (ii) under the relevant laws, regulations,
treaties or rules in effect at the time of the change in Lending Office,
such additional amount would not have been payable.
13.5 If AMD Saxonia is obliged to pay an additional amount under (S)13.1, AMD
Saxonia may prepay in whole (but not in part) (without prejudice to (S)
12.1) the amount made available to it under this Agreement by the affected
Bank, on AMD Saxonia giving not less than five Banking Days' prior written
notice to the Paying Agent (with a copy to the Agent) and the affected
Bank, provided that such notice is given within thirty (30) days of AMD
Saxonia becoming aware that it would be obliged to pay such amount;
prepayments under this (S)13.5 shall not be permitted after the expiry of
such period. The liability of such Bank to make any further advances
available to AMD Saxonia shall be cancelled on the giving of such notice.
34
(S) 14
Continuity Clause
European Economic and Monetary Union anticipates the introduction of a single
currency and the substitution of the national currencies of Member States
participating in such Monetary Union. On the date on which the Deutsche ▇▇▇▇ 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 such 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 such 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; in particular, interest rates which
have been set for an interest period shall remain unchanged for such interest
period, subject to any mandatory provisions.
(S) 15
Representations and Warranties
15.1 AMD Saxonia represents and warrants to the Banks as follows:
15.1.1 each of AMD Saxonia and AMD Holding is a duly organised and existing
company under the laws of the Federal Republic of Germany;
15.1.2 each of AMD Saxonia and AMD Holding have taken all necessary steps and
obtained all necessary consents to enter into legally binding
obligations pursuant to the Operative Documents and the Security
Documents and to exercise its respective rights thereunder;
15.1.3 the certified Commercial Registry extracts furnished to the Agent and
the notarially certified articles of association of AMD Saxonia and AMD
Holding and the other documents to be furnished pursuant to (S) 16.5
reflect in all respects the actual position existing on the date
furnished to the Agent;
15.1.4 the execution of the Operative Documents by AMD Saxonia, AMD Holding and
AMD Inc. and the compliance by each of them of their obligations
thereunder and the exercise by each of them of their rights thereunder:
(i) do not violate any provision of applicable law, any judgment or any
requirements or any approvals of any authority or the like or
contractual obligations applicable to them or any other
obligations;
(ii) will not result in the termination or acceleration of any of their
other respective obligations;
35
(iii) will not result in an obligation of any of them to create or
grant any security in favour of any third party, save as
contemplated in the Security Documents or in this Agreement.
15.1.5 All Operative Documents entered into by the AMD Companies constitute the
legally valid and binding obligations of AMD Saxonia, AMD Holding and/or
AMD Inc., respectively, enforceable in accordance with their terms,
subject, however, to the Opinion Reservations. For this purpose,
"Opinion Reservations" means limitations on the enforceability of legal
documents which are subject to German law or the law of the U.S.A. or
one of its states to the extent that in respect of these circumstances
qualifications are expressly made in the legal opinions which are to be
furnished to the Agent pursuant to (S) 5.1.11 and which are to be
approved by the Agent. The granting of the security pursuant to (S)
8.1.1 to (S) 8.1.19 (inclusive) will be effective to grant to the
Security Agent and / or the Banks a first priority security interest in
each case, subject to retentions of title permitted in accordance with
this Agreement. At the date of entering into this Agreement, AMD Saxonia
does not own any real property, save for the real property referred to
in (S) 8.1.6.
15.1.6 The audited consolidated financial statements of AMD Holding and the
audited financial statements of AMD Saxonia each as at 31 December 1996
which have been furnished to the Agent, together with the relevant cash
flow statements as at such date were, and the financial statements to be
delivered pursuant to (S) 16.2.1 will be, prepared in accordance with
generally accepted accounting principles consistently applied; in
accordance with these principles they fairly represent, and, in the case
of the financial statements to be delivered pursuant to (S) 16.2.1, will
fairly represent, the consolidated financial position of AMD Holding and
AMD Saxonia respectively without qualification and make provision for
all material indebtedness and other liabilities, actual or contingent,
of AMD Holding and AMD Saxonia save to the extent set out in Schedule
--------
15. Since their respective dates of incorporation, there has been no
--
material adverse change in the business or financial position of AMD
Saxonia and AMD Holding.
15.1.7 The audited financial statements of AMD Saxonia to be delivered in
accordance with (S) 5.1.8 (iii) and (S) 16.2.2 were prepared in
accordance with generally accepted accounting principles consistently
applied. They are in accordance with those principles, true and accurate
in all material respects and fairly represent the financial position of
AMD Saxonia without qualification; in particular, provision has been
made for all material indebtednes and all other liabilities, actual or
contingent. Since the date of the latest audited accounts there has been
no material adverse change in the business or financial position of AMD
Saxonia.
15.1.8 There are no actions, suits, proceedings, claims or disputes or
administrative proceedings pending or threatened against AMD Saxonia or
AMD Holding or the assets or other sources of income of AMD Saxonia or
AMD Holding which if an unfavourable outcome was reasonably probable,
could reasonably be expected to have a material adverse effect on the
financial position of AMD Saxonia or AMD Holding.
36
15.1.9 To the best of its knowledge and belief, no Event of Default in
relation to any of the Operative Documents exists at the time of
entering into this Agreement.
15.1.10 Neither AMD Holding nor AMD Saxonia is insolvent or incapable of paying
its debts as they fall due; neither is in liquidation and no steps have
been commenced for the dissolution of either of them.
15.1.11 AMD Saxonia is a wholly owned and the only subsidiary of AMD Holding
which is, in turn, a wholly owned subsidiary of AMD Inc.
15.1.12 The ordinary share capital of AMD Holding has been paid up in full and
the stated ordinary share capital of AMD Saxonia has been paid up in
accordance with the provisions of the Sponsors' Support Agreement;
there have been no repayments of capital. AMD Saxonia has no other
equity participations.
15.1.13 AMD Holding and AMD Saxonia are "Unrestricted Subsidiaries" and not
"Restricted Subsidiaries" within the meaning of the Advanced Micro
Devices Inc. 11% Senior Secured Note Indenture dated 1 August 1996, as
amended, between AMD Inc. and the United States Trust Company of New
York or the Loan and Security Agreement of July 13, 1999, as amended,
between AMD Inc. and the Bank of America National Trust and Savings
Association.
15.1.14 The assets and rights of AMD Saxonia and AMD Holding are not subject to
encumbrances nor has any security been granted in favour of third
parties in respect thereof save in respect of customary retention of
title in favour of suppliers agreed in the ordinary course of business.
No agreements with respect to extended or prolonged retention of title
nor current account or group retention of title agreements have been
concluded with material suppliers.
15.1.15 The operation and assets of AMD Holding and AMD Saxonia are fully
insured against all risks customarily insured against by similar
businesses and on similar terms. All insurances have been entered into
with first class reputable insurance companies which are not affiliates
of AMD Inc. The insurances in force from time to time in accordance
with the progress of the Project will at a minimum satisfy the
requirements set out in (S) 17.8 and Schedule 22.
-----------
15.1.16 AMD Saxonia and AMD Holding have submitted all necessary tax filings
within a reasonable time of the relevant due date and in any event
before penalties attach thereto. Neither AMD Saxonia nor AMD Holding is
in default in relation to the payment of any tax claims or any other
public law claims, other than those referred to in (S) 15.1.17, which
are due except for these which are being contested in good faith by
appropriate proceedings and for which proper provision has been made in
accordance with German generally accepted accounting principles. There
is no proposed tax assessment against AMD Saxonia or AMD Holding which
would, if made, have a material adverse effect on the financial
position of AMD Holding or AMD Saxonia.
15.1.17 All governmental or public law approvals, consents and measures
(including those from the European Union) necessary for the proper
implementation of the Project and the
37
compliance by AMD Saxonia and AMD Holding of their obligations pursuant
to the Operative Documents including in particular all such approvals,
consents and measures necessary to ensure the legally binding nature of
all governmental subsidies and grants in connection with the Project
have been obtained, save for those set out in Part B to Schedule 20 and
-----------
there are no grounds to believe that they could be revoked or cancelled
or made subject to material restrictions.
15.1.18 All governmental or public law approvals, consents and measures set out
in Part A of Schedule 20 have been obtained or taken and there is no
-----------
reason to believe that (i) the same would be revoked, cancelled,
limited or made subject to conditions of a material adverse nature nor
that (ii) the governmental approvals consents and measures set out in
Part B of Schedule 20 will not ultimately be available on a timely
-----------
basis.
15.1.19 The business of AMD Saxonia and AMD Holding is not subject to any
unusual limitations of a material nature which might affect compliance
by them of their obligations pursuant to the Operative Documents.
15.1.20 Neither AMD Saxonia nor AMD Holding has engaged in any business or
operation or incurred liabilities save in connection with their
incorporation, the Project and the Operative Documents.
15.1.21 The factual information furnished by AMD Saxonia or AMD Holding to the
Agent or to the Banks in connection with any of the Operative Documents
or the subject matter thereof (including the Information Memorandum
dated September 1996) is true and accurate in all material respects and
have not become misleading as a result of the omission of any material
fact. All assumptions, estimates and projections contained therein have
been made with due care and attention.
15.1.22 AMD Saxonia has not entered into any Material Equipment Supply
Contracts or Material Service Contracts other than those notified to
the Agent in writing, together with copies of the relevant contract or
orders.
15.2 The above representations and warranties (with the exception of the
representation in (S) 15.1.4) shall be deemed repeated in full on the
date of each Drawdown Notice, on the completion of each Project Phase
pursuant to the Project Schedule, and each submission of AMD Saxonia's
annual financial statements by reference to the facts and circumstances
then existing.
(S) 16
Reporting and Information Requirements
16.1 AMD Saxonia will as soon as possible and in any event within five
Banking Days after becoming aware thereof inform the Agent of the
occurrence of an Event of Default within the meaning of (S) 21 or any
other Event of Default which in the reasonable opinion of an
experienced third party would affect the legal or risk position of the
Banks under this Agreement in a manner which is more than immaterial by
notice in writing
38
setting out the relevant circumstances and describing the measures
within its powers which AMD Saxonia proposes to take in relation
thereto.
16.2 AMD Saxonia undertakes to keep the Agent regularly informed of its
financial affairs during the term of the Facilities. In particular, it
is agreed as follows:
16.2.1 AMD Saxonia will as soon as possible and in any event within sixty (60)
days of the end of each quarter of each financial year or, in the case
of the last quarter of a financial year, within ninety (90) days of such
quarter, furnish the Agent with (i) quarterly financial statements
(balance sheet and profit and loss statement as well as a cash flow
statement) for the relevant quarter and the period of the four preceding
financial quarters including a comparative statement for the four
financial quarters preceding such period together with (ii) a
certificate of compliance in respect of the financial covenants as set
out in Schedule 18, in each case in a form reasonably satisfactory to
-----------
the Agent. The quarterly financial statements to be delivered hereunder
shall be prepared in accordance with generally accepted accounting
principles applicable in Germany as consistently applied.
16.2.2 AMD Saxonia will as soon as possible and at the latest within ninety
(90) days after the end of each financial year furnish to the Agent
audited financial statements prepared by the Auditor confirming that the
financial statements are unqualified and including notes to the
statements and a management report, together with an audited cash flow
statement including comparative figures for the preceding financial year
and an updated Management Plan. At the same time, AMD Saxonia will
furnish the Agent with confirmation of the Auditor that the quarterly
financial statements furnished at the end of a financial quarter
correspond with the audited annual financial statements and AMD
Saxonia's books of account (including a reconciliation statement) and
whether the financial covenants set out in Schedule 17 have been
-----------
properly calculated and have been complied with in the relevant
financial year, together with a confirmation in accordance with (S)
15.2.
16.2.3 AMD Saxonia will furnish to the Agent, simultaneously with the annual
financial statements and other documents pursuant to (S) 16.2.1 and (S)
16.2.2 written confirmation that as at the end of the relevant balance
sheet date no Event of Default within the meaning of (S) 21.2 has
occurred or, alternatively, which events have lead to such an Event of
Default during the relevant balance sheet period. If such Event of
Default has occurred, written notice thereof in accordance with (S) 16.1
shall be given to the Agent, together with written confirmation that,
except as stated therein, to AMD Saxonia's knowledge no other Events of
Default have occurred.
16.2.4 AMD Saxonia will furnish to the Agent immediately after receipt all
reports and similar documents prepared by the auditors or other
independent firms of accountants and which relate to audits undertaken
as of the end of a financial year or any interim audits.
16.2.5 [left intentionally blank]
16.2.6 AMD Saxonia will furnish to the Agent the following:
39
(i) within thirty (30) days after the end of each calendar quarter a
status report in the form set out in Schedule 8, as amended;
----------
(ii) within sixty (60) days of the end of each quarter of each financial
year, or in the case of the last quarter of a financial year within
ninety (90) day of such quarter and within ninety (90) days after
the end of each Project Phase a Statement as to the Use and Source
of Funds and compliance with the reimbursement obligations of the
AMD Saxonia Wafer Purchase Agreement in accordance with Schedule 16,
-----------
as amended, signed by the Auditor; and
(iii) at the latest by 28 February 2002, a status report as of 31 December
2001 relating to the Project prepared by the Technical Advisor
updating (and in form similar to) the Technical Appraisal of the
Technical Advisor dated 5 October 2000.
16.3 AMD Saxonia will inform the Agent promptly in writing in the event that
production in the Fabrication Facility or research activity in the Design
Center is not undertaken at any time after first commercial shipment of
Products (as defined in the AMD Saxonia Wafer Purchase Agreement) for a
period of more than five (5) successive days or if legal administrative or
arbitration proceedings are instituted or threatened against AMD Saxonia or
AMD Holding which may have a material adverse affect on the assets or
ability of AMD Saxonia or AMD Holding to comply with its obligations under
the Operative Documents.
16.4 AMD Saxonia will inform and keep the Agent informed in a reasonable manner
of all circumstances relating to the operations of AMD Saxonia and its
other activities as well as its economic situation to the extent required
by the Agent or any Bank or to the extent the same may have a material
adverse effect on AMD Saxonia's financial position or the viability of the
Project. This obligation also applies to circumstances affecting any
affiliate of AMD Saxonia and which may materially adversely affect the
operations or other activities or economic position of AMD Saxonia or the
assets which are the subject matter of the Security Documents.
16.5 On any change to the Commercial or Land Registry extracts furnished to the
Agent, AMD Saxonia will promptly inform the Agent of the relevant event by
providing copies of the documents to be filed with the Commercial or Land
Registry and, following filing, AMD Saxonia will provide the Agent with
certified copies of the new extracts.
(S) 17
Covenants
17.1 [left intentionally blank]
17.2 AMD Saxonia will comply in all material respects with all relevant laws and
other regulations and administrative directives applicable to it and will
on a timely basis comply with all reasonable requirements of the fiscal
authorities.
40
17.3 AMD Saxonia will at all times promptly enforce to the full extent
reasonable all its rights under the Operative Documents and at the Agent's
request will take all reasonable steps to so do. AMD Saxonia hereby
irrevocably appoints the Agent to take all measures and to enter into all
undertakings which the Agent regards as necessary following the occurrence
of an event which entitles the Banks to terminate this Agreement.
17.4 AMD Saxonia undertakes to complete the Project in accordance with:
(i) the timetable contained in the Project Schedule (save that the
completion date of any Project Phase (other than last) may be deferred
for up to six (6) months in aggregate for all such deferrals) provided
that Completion shall be no later than 31 December 2000; and
(ii) the Plans and Specifications.
17.5 AMD Saxonia will on a timely basis and to the full extent comply with its
obligations pursuant to the Operative Documents and particular, take all
steps to enable AMD Inc. and/or AMD Holding to comply with its respective
obligations under the Sponsors' Support Agreement, in particular in
connection with the increase of AMD Saxonia's ordinary share capital as
well as the contribution of other equity capital by the Sponsors. If AMD
Saxonia intends not to comply with its obligations pursuant to the
Operative Documents it will immediately inform the Agent thereof in
writing.
17.6 AMD Saxonia will permit the Agent, the Banks' Auditor and the Technical
Advisor as well as all other advisors of the Agent who are bound by a
professional duty of confidence at all reasonable times to inspect its
properties and to examine the financial and other records of AMD Saxonia
and to discuss the affairs of AMD Saxonia and AMD Holding to the extent
relevant to this Agreement and the risk position of the Banks hereunder
with the management and competent employees. AMD Saxonia will provide
unrestricted access to its relevant records and those of AMD Holding and
make available a reasonable number of copies thereof at reasonable request.
All such inspections and examinations shall be performed in such manner as
not to unreasonably disrupt AMD Saxonia's normal business operations and
its manufacture of the products described in the preamble to this
Agreement.
17.7 AMD Saxonia will at all times maintain proper books of account and prepare
its records in accordance with general accepted book keeping and accounting
principles in Germany as consistently applied. The balance sheet
assumptions will be applied consistently by reference to generally accepted
valuation principles.
17.8 AMD Saxonia will at all times maintain insurance which in type (all
buildings, machines, other equipment, stock, business interruption, third
party liability and the like), scope and amount is at least equal to the
insurance cover of a comparable business and which, in addition, satisfies
the requirements of the Operative Documents. In particular, AMD Saxonia
undertakes to maintain the insurances referred to in Schedule 22 in the
-----------
scope and on the terms and conditions therein referred to, save that AMD
Saxonia shall be under no obligation to maintain insurance with respect to
the risk of
41
earthquake and floods, provided that it shall have first furnished to the
Agent confirmation with respect thereto in writing from a third party
(acceptable to the Agent) in form and substance satisfactory to the Banks
and the Guarantors. The persons referred to in Schedule 22 shall be named
-----------
in all contracts of insurance as an additional insured and the Security
Agent as "loss payee" in accordance with Schedule 22. At the end of each
-----------
financial year, AMD Saxonia will furnish to the Agent a complete list of
the above insurances for the next succeeding financial year giving the
details referred to in Schedule 22 together with confirmation from its
-----------
insurance brokers and the Insurance Advisor that AMD's insurance cover
complies with the said requirements.
17.9 AMD Saxonia will construct the Plant and the Design Center in such a way
as will ensure that the Plans and Specifications are complied with.
17.10 AMD Saxonia will at all times ensure that it has obtained and/or taken
and will maintain and/or take on a timely basis all necessary
governmental approvals, permits and measures required for performance by
it of its obligations under the Operative Documents to which it is party.
17.11 AMD Saxonia will make payment of all fees and other amounts due in
connection with the 65/35 Guaranty promptly. The Guarantors through their
authorised representatives, C&L Deutsche Revision AG, Dusseldorf, are
entitled to payment of one-off and regular fees together with commitment
fees and processing fees in connection with the 65/35 Guaranty in
accordance with the following provisions (as a genuine contract for the
direct benefit of third parties):
(i) AMD Saxonia shall after acceptance, and for the duration, of the
65/35 Guaranty pay the following guaranty fees:
- on the issue of the guaranty commitment, 0.25 % of the maximum
guaranty amount in relation to the guaranteed indebtedness,
whereby the calculation of the fee will be determined in
accordance with the drawdowns (in accordance with Section 5 of
the Guaranty Decision) so that the fee due on the issue of the
documents relating the Guaranty Decision are calculated only by
reference to the first drawdown and the first fees due in respect
of the following drawdowns are due when such drawdowns are
included in the terms of the Guaranty and/or in the case of
special guaranty issues on the issue of the Guaranty.
- following the issue of the guaranty,on 1 April and 1 October of
each year in respect of each half year commencing on such dates,
0.25 % of the Guaranty amount outstanding at such times (the
maximum amount referred to in the Guaranty in respect of the
guaranteed indebtedness less payments of principal).
(ii) AMD Saxonia undertakes to pay the following amounts to the
Guarantors, in the event that the Guarantors shall so request:
42
- on any extension of the guaranty commitment, a commitment fee up
to an amount of 0.25 % of the extended guaranty commitment,
- in the event of material amendments to a guaranty which has been
approved but not yet issued, a processing fee in an amount of up
to DM 25,000;
(iii) the processing fee for material amendments to an approved but
unissued guaranty is payable to C&L Deutsche Revision AG,
Dusseldorf to its Acount No. 31 308 12, Westdeutsche Landesbank
Girozentrale, Dusseldorf. Other current fees together with the
commitment fee are payable to C&L Treuarbeit Deutsche Revision AG,
Dusseldorf to their trust account "Bundesminister der Finanzen"
Account No.: 30 151 12 at Westdeutsche Landesbank Girozentrale,
Dusseldorf quoting the reference number of the guaranty.
17.12 AMD Saxonia undertakes to comply with and to fullfill all covenants and
other ancillary requirements applicable to it in connection with the
grant of the subsidies. This obligation applies in particular to
covenants and ancillary requirements which are dealt with in the SAB/
Dresdner Subsidy Agreement and the AMD/Dresdner Subsidy Agreement
together with the schedules to these documents. AMD Saxonia also
undertakes to ensure that AMD Companies undertake all steps applicable to
them under the covenants and other ancillary requirements in connection
with the subsidies. AMD Saxonia undertakes futhermore to ensure that all
obligations undertaken by it in connection with the granting of other
state aid (in particular investment allowances) are fulfilled.
17.13 AMD Saxonia undertakes to enter into the Equipment Supply Contracts and
Service Supply Contracts in accordance with the timetable set out in the
Project Schedule and to ensure that equipment or goods delivered pursuant
thereto are subject to retention of title only to the extent customary
and in the ordinary course of business. AMD Saxonia will use its best
endeavours to ensure that retention of title arrangements are not entered
into with material suppliers and in any event that no current account,
group or extended or prolonged retention of title agreements are entered
into. The Equipment Supply Contracts entered into by AMD Saxonia shall
not in the aggregate require the making of advance payments by AMD
Saxonia in excess of an aggregate amount of DM 20,000,000.
17.14 AMD Saxonia undertakes to hedge at least 50 % of all variable interest
rate advances with interest rate caps with the Agent or other Banks and
to inform the Paying Agent thereof. Any advances for which AMD Saxonia
has elected a fixed interest rate pursuant to (S) 6.3 shall be deemed
hedged for the purposes of this (S) 17.14. All rights arising out of
contracts entered into by AMD Saxonia to hedge interest rate shall be
assigned to the Security Agent in accordance with the Global Assignment
in the form set out in Schedule 47; to the extent an assignment is not
-----------
possible, the Banks shall be granted other appropriate security rights.
43
17.15 AMD Saxonia undertakes that, until satisfaction in full of all claims of
the Banks under this Agreement, it will not, without the consent of the
Agent and, in the case of (ii), (v), (ix) and (x) without the consent of
the Guarantors:
(i) grant in favour of third parties any security as security for its
own obligations or those of a third party save as contemplated or
permitted by the Operative Documents and save for customary
retention of title rights in favour of suppliers permitted
pursuant to (S) 17.13. AMD Saxonia's right to further encumber
real property already subject to land charges in favour of the
Banks shall remain unaffected ((S) 1136 BGB);
(ii) incur indebtedness for borrowed money or incur liabilities save
for such liabilities contemplated in the Operative Documents and
liabilities in the ordinary course of business;
(iii) save in respect of the lease agreement in respect of premises at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇/▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, dated 7/13.08.1996
entered into with Siemens Technopark GmbH Dresden & Co.
Grundstucksverwaltung OHG or any extension thereof, incur any
other obligations as lessee, save to the extent that such
obligations arise under agreements entered into in the ordinary
course of business in connection with the operation of the
Fabrication Facility and of the Design Center and do not exceed in
aggregate more than DM 50,000,000;
(iv) establish any subsidiaries or acquire interests in any other
undertakings or enter into any merger agreements;
(v) dispose of any assets or rights and/or remove such assets from the
location of the Fabrication Facility and the Design Center save to
the extent (a) contemplated by and permitted in the Operative
Documents (b) the disposal is of assets replaced by assets of at
least equal or greater cost in the ordinary course of business
which are acquired within six months of the sale of the original
assets (or such longer period as is reasonably necessary in the
light of the market availability of the relevant asset and
provided that AMD Saxonia has entered into contractually binding
agreements for the replacement of the original assets within three
months of the sale of such assets), or (c) the aggregate book
value of which does not exceed DM 25,000,000 in any calendar year
or (d) the disposal is of assets with an individual acquisition
cost of less than DM 50,000 or of stores supplies in the ordinary
course of business;
(vi) make any loans to or deposit funds with any third party, purchase
or acquire securities or other financial instruments, save to the
extent the same:
(a) are assets held in the bank accounts charged pursuant to (S)
8 or such other accounts opened with the consent of the
Agent, which are charged to the Banks,
(b) constitute trade credit,
44
(c) constitute the payment of amounts due under the AMD Saxonia
Wafer Purchase Agreement in respect of deliveries
thereunder, or
(d) are bona fide employee loans which are in aggregate not in
excess of DM 5,000,000,
(e) relate to the payment of amounts in respect of AMD Saxonia's
stated capital which shall be transferred promptly to a
Project Account pursuant to (S) 19, or
(f) are (for the avoidance of doubt) employee salary funds
withheld by AMD Saxonia for employees to acquire stock of
AMD Inc. in connection with an employee stock purchase plan;
(vii) make any payments of dividends or other repayment of capital to AMD
Holding or to make any other payment AMD Inc. or to any affiliate of
AMD Inc., save to the extent such payments are permitted pursuant to
Section 3 of the Sponsors' Subordination Agreement, in the form set
out in Schedule 30 or Section 6.3 of the Sponsors' Support
-----------
Agreement;
(viii) make payments pursuant to the Operative Documents (and, in
particular, not to make any repayment of interest or principal on
the Sponsors' Loan) save in accordance with the terms of such
Operative Documents;
(ix) undertake only business compatible with the purpose set out in the
first paragraph of the preamble to this Agreement;
(x) incur any expenditure (including Capital Expenditure) which is not
of the type contemplated in the Operative Documents and which is not
incurred in the ordinary course of business;
(xi) terminate or amend any of the Operative Documents, save for
(a) Equipment Supply Contracts which are not Material Equipment
Supply Contracts;
(b) Service Contracts which are not Material Service Contracts;
(c) amendments to the agreement set out in Schedule 39
-----------
(Design/Build Agreement), the Material Equipment Supply
Contracts, the Material Service Contracts and the Plans and
Specifications which adversely affect the value of the
Project, the Fabrication Plant and the Design Center or
their purpose, or the production capacity or other
characteristics required or agreed in the AMD Saxonia Wafer
Purchase Agreement in a manner which is immaterial only and
which are in accordance with the Project Budget and the
Project Schedule are however permitted without the consent
of the Banks;
45
(d) the Project Budget and the Project Schedule which may be
amended in accordance with the provisions of (S) 18.
(xii) agree to any changes to the articles of incorporation of AMD
Saxonia, in particular changes of its fiscal year, or grant any
general powers of attorney with respect to the business of AMD
Saxonia except as otherwise permitted in the Operative Documents;
(xiii) enter into any agreement compliance with which would be contrary
to any of the obligations of AMD Saxonia pursuant to the Operative
Documents;
(xiv) [left intentionally blank]
(xv) at any time during the currency of this Agreement manufacture in
any quarter microchip silicon wafers containing microprocessors
other than general purpose microprocessors and related products in
such number as would, prior to Completion, be in excess of 25% or
after Completion, be in excess of 35 % of all wafers produced by
AMD Saxonia during the relevant quarter.
17.16 AMD Saxonia undertakes until the satisfaction in full of all claims of
the Banks under this Agreement to ensure that the financial covenants set
out in Schedule 17 are complied with at all times and/or to the extent
-----------
AMD Saxonia has no direct influence on compliance with such financial
covenants, to use its best endeavours to ensure that they are so complied
with.
17.17 AMD Saxonia undertakes to keep and maintain its fixed and current assets
exclusively within the area of the Plant and Design Center shown in
Schedules 44 and 45.
------------ --
17.18 [left intentionally blank]
17.19 AMD Saxonia undertakes, as a genuine contract for the direct benefit of
third parties, to permit an examination at any time by the Guarantor or
an authorised representative of the Guarantor as to whether there is any
possibility of a claim being made pursuant to the 65/35 Guaranty or as to
whether circumstances exist or have existed which would make such a claim
possible. AMD Saxonia furthermore undertakes (as a genuine contract for
the direct benefit of third parties) to provide to the Guarantors all
information requested by them in connection with the 65/35 Guaranty. AMD
Saxonia is aware that the examination and information rights referred to
above exist also in favour of the Banks, however, only to the extent such
documentation relates to the guaranteed Facilities. AMD Saxonia hereby
relieves and discharges the Banks from their duty of confidentiality as
against the Guarantors and their authorised representatives, to the
extent that the aforesaid rights in favour of the Banks are exercised.
AMD Saxonia undertakes, as a genuine contract for the direct benefit of
third parties, to bear the costs of all examinations by the Guarantors
referred to above.
17.20 [left intentionally blank]
46
17.21 AMD Saxonia undertakes not to enter into any confidentiality and non-
competition undertakings with its employees, officers or contracting
parties other than in the form agreed with the Agent prior to entering
into this Agreement or save as may be otherwise agreed with the Agent.
17.22 AMD Saxonia will at the request of the Agent use its best endeavours to
obtain from any contracting parties a Consent and Agreement, to the
extent that such Consent and Agreement is not required to have been
already obtained, for contracts required to be assigned to the Banks in
accordance with this Agreement or the Security Documents, in the form set
out in Part II of Schedule 40 or such other form as shall have been
-----------
consented to by the Agent, if the Agent deems the same to be necessary to
ensure the unrestricted continuation of the Project in the event of
enforcement of its security and AMD Saxonia does not demonstrate the
contrary and will make an offer to the Agent enabling it to assume the
contract in accordance with the provisions of (S) 3 of the Security
Document referred to in Schedule 49.
-----------
17.23 AMD Saxonia will make borrowings under the Revolving Loan Facility
Agreement (in accordance with the terms thereof):
(i) as and to the extent necessary to comply at all times after 1 July
2001 with the Minimum Liquidity Covenant (taking into account cash
then on deposit in the Project Accounts and Cash Equivalent
Investments (under and as defined in Schedule 23) then held); and
-----------
(ii) as and to the extent and at the times necessary such that AMD
Saxonia shall have sufficient funds to finance its general
corporate funding requirements, taking into account amounts then
available for drawing under Facility A hereunder and other amounts
then available to it, including without limitation amounts
theretofore paid to AMD Saxonia under the AMD Saxonia Wafer
Purchase Agreement.
AMD Saxonia undertakes not to reduce or agree to reduce the Total
Revolving Loan Commitment Amount to less than US$ 500,000,000 (five
hundred million US Dollars) without the consent of the Agent.
(S) 18
Project Budget; Project Schedule
18.1 Prior to Completion, the Project will be implemented pursuant to the
Project Budget and the Project Schedule.
18.2 Within fourteen (14) days after the end of each Project Phase described
in the Project Schedule, AMD Saxonia will furnish to the Agent the
Scheduled Project Phase Technical Completion Certificates signed by the
AMD Companies and the Technical Advisor in accordance with Schedules 9
-----------
and 10 together with a confirmation pursuant to (S) 15.2. At the same
--
time, AMD Saxonia will furnish an updated Management Plan
47
approved by the Sponsors setting out all projected future Capital
Expenditure in connection with the Project. Prior to Completion, AMD
Saxonia will consult and agree with the Agent on a timely basis any
amendments or variations to the Project Budget or the Project Schedule
which it regards as necessary. Project Budgets and Project Schedules
amended with the consent of the Agent, who may consult with the Technical
Advisor, the Auditor and the Banks' Auditors with regard thereto, shall be
regarded as Project Budgets and Project Schedules within the meaning of
this Agreement.
(S) 19
Project Accounts
19.1 AMD Saxonia undertakes to ensure that - without prejudice to (S) 17.15 (vi)
(e) - all payments under the Operative Documents or otherwise in connection
with the Project which are made to it or to be paid by it are effected only
through one or more of the accounts maintained with the Security Agent
(such accounts herein referred to as "Project Accounts").
19.2 Amounts standing to the credit of the Project Accounts may be used only in
the ordinary course of business of AMD Saxonia (including for the purpose
of financing Capital Expenditure), for the settlement of financing costs
and for the repayment of the Facilities, the payment of interest and the
repayment of principal under the Revolving Loan Facility Agreement (to the
extent permitted under the Sponsors' Subordination Agreement set out in
Schedule 30, as amended).
-----------
19.3 Cash standing to the credit of the Project Accounts may be invested in the
securities and assets set out in Schedule 23 which shall be maintained in a
-----------
custody account maintained solely with the Security Agent forming part of a
Project Account or in other custody accounts opened with the consent of the
Agent and charged to the Banks.
19.4 [left intentionally blank].
19.5 The Banks shall be entitled to set off any claims due against AMD Saxonia
against the amount standing to the credit of any of the Project Accounts;
it shall be sufficient for this purpose for the Agent to issue a
declaration of set off.
19.6 All credits securities and assets standing to the credit of the Project
Accounts shall be charged in favour of the Banks as security for their
claims under this Agreement pursuant to (S) 8.
(S) 20
Consent of the Banks
20.1 In all cases in which AMD Saxonia requires the consent of the Agent, the
Security Agent or the Banks pursuant to the provisions of this Agreement,
the Agent, the Security Agent and/or the Banks shall be entitled to
withhold their consent only if the legal or
48
risk exposure of the Banks would otherwise be affected in a manner which is
material. In this regard circumstances shall be regarded as material which
relate, in particular, to:
(i) the interests of the Banks in receiving payments under this
Agreement and the other Operative Documents in a timely and complete
manner or which would affect their ability to realise sufficient
proceeds from the realisation of security;
(ii) the shareholding structure of AMD Inc. AMD Holding and AMD Saxonia;
(iii) the obligations of the Sponsors pursuant to the Sponsors' Support
Agreement;
(iv) the viability of the Project by reference, in particular, to the
obligations of AMD Inc. under the AMD Holding Wafer Purchase
Agreement and the AMD Holding Research, Design and Development
Agreement in the form set out in Schedule 34 or AMD Holding under
-----------
the AMD Saxonia Wafer Purchase Agreement and the AMD Saxonia
Research, Design and Development Agreement in the form set out in
Schedule 36; or
-----------
(v) the compliance in full or the ability to comply with the conditions
of the Guaranty Decision, the 65/35 Guaranty and the AMD/Dresdner
Subsidy Agreement.
20.2 Each consent of the Banks shall be in writing. The parties agree that the
consent of the Banks shall not be deemed to have been given unless
expressly given in writing and that consents should be given on a timely
basis taking into account the interests of AMD Saxonia and the other Banks.
The Agent shall be authorised to give such consent unless such consent
relates to the duties of the Paying Agent. In such case, the Paying Agent
may give such consent.
(S) 21
Termination of the Facilities by the Banks
21.1 The Banks shall be entitled to terminate the Facilities for good cause, in
whole or in part, and without notice or subject to such notice as they may
determine and,
(i) to refuse to make available to AMD Saxonia advances under the
Facilities and/or
(ii) to require the immediate repayment of all outstanding advances
together with accrued interest and other fees and amounts payable by
AMD Saxonia pursuant to this Agreement and/or
(iii) to require the payment of damages including any loss of profit
pursuant to (S) 12 which the Banks may suffer following termination
between the time of termination and the expiry of the relevant
Interest Period and/or
(iv) to realise the security granted by AMD Saxonia,
49
21.2 There shall be good cause for termination within the meaning of the
aforesaid (S) 21.1 and of (S) 19 of the General Terms and Conditions of the
Agent, in particular, if any of the following events has occurred and is
continuing and if in the opinion of the Banks, exercising the standard of
care customary in commercial relations, the legal or risk position of the
Banks is materially adversely affected thereby:
(i) AMD Saxonia shall be in default in any payment of interest or
principal under this Agreement for more than three months;
(ii) the information provided by AMD Saxonia in respect of its financial
position is incorrect or incomplete in any material respect;
(iii) AMD Saxonia, AMD Inc. or AMD Holding ceases payment of its creditors
or composition, insolvency or similar proceedings are applied for in
respect of all of the assets of AMD Saxonia, AMD Inc. or AMD Holding
or a material part of the assets of AMD Saxonia, AMD Inc. or AMD
Holding are subject to mandatory attachment - and which in the case
of involuntary proceedings or attachment against AMD Inc. have not
been fully discharged within 60 days - or AMD Saxonia, AMD Inc.or
AMD Holding enters into negotiations with respect to any extra-
judicial composition proceedings;
(iv) AMD Saxonia, AMD Holding or AMD Inc. are in default of any payment
due to the Banks pursuant to the Sponsors's Support Agreement or any
other Operative Document for more than five (5) Banking Days
following receipt of written notice of default;
(v) the Facilities are not used for the purposes set out in (S) 3;
(vi) any representation and warranty pursuant to (S) 15 including any
deemed repetition thereof, was incorrect in any material respect at
the time it was given;
(vii) any condition precedent for utilisation of the Facilities pursuant
to (S) 5 subsequently ceases to be complied with without the
previous consent of the Banks;
(viii) any of the obligations or covenants pursuant to (S)(S) 17 or 18 are
breached, whether or not as a result of action by AMD Saxonia, and
cannot be complied with or remedied or, to the extent the breach is
capable of remedy, the breach is not remedied within seven (7)
Banking Days after the Agent has given AMD Saxonia written notice
thereof;
(ix) AMD Holding or AMD Inc. does not comply with any material provision
of the Sponsors' Support Agreement, the Sponsors' Loan Agreement in
the form set out in Schedule 29, as amended, the Revolving Loan
-----------
Facility Agreement or of the other Operative Documents to which it
is a party and, to the extent, the breach is capable of remedy, and,
is not remedied within seven (7) Banking Days after the Agent has
given written notice thereof; Articles I and III and
50
Sections 4.1, 4.3, 6.2, 13.1 (i) (a) to (d) and (f), 13.1 (iii),
13.2., 13.3., 13.4 (i) to (viii) and 13.5 of the Sponsors' Support
Agreement shall without prejudice to the generality of the foregoing
be regarded as material;
(x) if AMD Inc. undertakes a "Stock Offering" within the meaning of the
Sponsors' Support Agreement in the Fiscal Year 1998 and, if
permitted under the Indenture referred to in (S) 21.2 (xvi) of this
Agreement (without utilizing any of the provisions contained in the
first proviso to Section 4.07 (iv) thereof), AMD Inc. fails to
contribute the full amount of the "Class C Sponsors Loans" within
the meaning of the Sponsors' Support Agreement forthwith following
receipt of proceeds from the "Stock Offering" referred to above; the
events referred to in (ix) above shall remain unaffected;
(xi) AMD Saxonia is in breach of any material provision of this
Agreement, the Security Documents, the AMD Saxonia Research, Design
and Development Agreement in the form set out in Schedule 36 or the
-----------
AMD Saxonia Wafer Purchase Agreement;
(xii) any of the Operative Documents is or becomes invalid or
unenforceable or its validity or enforceability is challenged by AMD
Saxonia or any of the Sponsors;
(xiii) receivership, composition or insolvency proceedings against the
assets of the contractor for the Fabrication Facility and the Design
Center or against a supplier are commenced or there is a material
adverse change in the financial position of such general contractor
or such supplier and any such event could reasonably be expected to
have a material adverse effect on the Project, unless AMD Saxonia
has cured the relevant event by entering into adequate substitute
arrangements satisfactory to the Agent within 45 days;
(xiv) a material adverse change in the financial condition of AMD Saxonia,
AMD Holding or AMD Inc., or AMD Inc. on a consolidated basis, and as
result there is likely to be a material adverse effect on the
Project;
(xv) AMD Saxonia, AMD Holding or AMD Inc. are in default with any payment
obligation in favour of a third party in an aggregate amount of more
than DM 15,000,000;
(xvi) the occurrence of an "Event of Default" within the meaning of the
Loan and Security Agreement of 13 July 1999, as amended, between,
inter alia, AMD Inc. and Bank of America National Trust & Savings
Association as "Administrative Agent" or there is an "Event of
Default" within the meaning of the Indenture of 1 August 1996, as
amended, between AMD Inc. and United States Trust Company of New
York as "trustee";
51
(xvii) any action under this Agreement requiring consent is undertaken
without the necessary consent unless the refusal to grant consent
is unlawful or in contravention of the terms of this Agreement;
(xviii) the insurances to be maintained pursuant to (S) 17.8 are not
maintained in full force and effect;
(xix) any material governmental approvals, consents or permits are not
granted, are revoked or are made subject to conditions or if any
governmental regulations or decrees are passed relating to the
Project which will prejudice the viability of the Project and which
are not either set aside by adequate action of AMD Saxonia to
discharge the effects of such regulations or decrees or if AMD
Saxonia has not suggested a course of action reasonably
satisfactory to the Agent within 30 days thereof;
(xx) any statement made to the Banks by AMD Saxonia, AMD Holding or AMD
Inc. in connection with the Project is inaccurate or incomplete in
any material respect to the extent that such statement is of
material significance for the viability of the Project or for the
compliance by AMD Saxonia, AMD Holding or AMD Inc. with its
obligations under the Operative Documents;
(xxi) AMD Saxonia ceases to be a wholly owned subsidiary of AMD Holding
or AMD Holding ceases to be a wholly owned subsidiary of AMD Inc.
(xxii) AMD Saxonia's ordinary share capital is not fully paid in by 31
December 1997 in an amount of at least DM 217,500,000 or
subordinated shareholder loans or Revolving Loans or equity are or
is, as the case may be, not made available in accordance with the
Sponsors' Support Agreement and/or the Revolving Loan Facility
Agreement.
(xxiii) projections in the current Management Plan (delivered pursuant to
(S) 16.2.2) show that AMD Saxonia will be unable, at any time
during the period from the date of such Management Plan to 31
December, 2005, to comply with the Minimum Liquidity Covenant,
after taking into account:
(a) the Available Revolving Loan Facility Amount; and
(b) other cash resources available to AMD Saxonia,
unless within 10 Banking Days after receipt of written notice from
the Agent, AMD Inc. provides the Agent with such evidence as shall
be reasonably satisfactory to the Banks in the exercise of their
due discretion with respect to the ability of AMD Inc. and AMD
Saxonia to fund the amount necessary to ensure compliance with the
Minimum Liquidity Covenant as aforesaid.
(xxiv) the terms or conditions of the 65/35 Guaranty or of the Guaranty
Decision or the Subsidy Agreement are not complied with or breached
or the 65/35 Guaranty is no longer available in full, or investment
or interest grants or
52
investments subsidies or other material state assistance is not
available in the amount promised and AMD Inc. does not make
available compensation pursuant to the Operative Documents, or AMD
Saxonia, AMD Holding or AMD Inc. breaches the terms and conditions
of other state assistance material to the Project and as a result
thereof it is likely that the same will not be available in their
full amount or are revoked or cancelled;
(xxv) [left intentionally blank]
(xxvi) any of financial covenants set out in Schedule 17 are not complied
-----------
with;
(xxvii) the Agent becomes aware that AMD Saxonia has breached any other
material contractual obligations;
(xxviii) other circumstances occur or become known which may prejudice the
ability of AMD Saxonia to repay the Facility;
(xxix) the Agent has not received by 31 March 2000 written confirmation
from the Technical Advisor to the effect that the conditions
required for Completion in the Technical Completion Certificate
(Technical Advisor) as set out in Schedule 10 can be satisfied
-----------
prior to 31 December 2000.
The Banks shall not be entitled to rely upon any of the aforesaid events if the
circumstances giving rise thereto have been remedied within ten (10) Banking
Days following receipt of written notice from the Agent. This shall not apply to
the events referred to in (i), (ii), (iii), (viii) (ix), (x), (xiii), (xiv),
(xvii), (xviii), (xx), (xxi), (xxii), (xxvi) above. The Agent will consult with
the Guarantors before terminating on the grounds of the Events of Default
referred to in (viii) and (xv) and (xxiii). Termination on the grounds of the
Event of Default referred to in (xxv) is permitted only in agreement with the
Guarantors.
(S) 22
Agency Provisions
22.1 The Banks have agreed to participate in the profits and risks of the
Facilities in the form of a disclosed consortium. Any joint and several
liability, the Banks is excluded; each Bank is liable only for the relevant
commitment undertaken by it pursuant to (S) 2 and Schedule 1. Each Bank
----------
shall immediately inform the Agent in respect of any breach of the
Operative Documents of which it becomes aware. A corresponding obligation
shall apply to the Agent in the performance of its duties pursuant to (S)
22.3.
22.2 The Agent is acting on behalf of the Banks under this Agreement. The Banks
hereby appoint the Agent to act on their behalf as Agent in relation to the
rights and obligations of the Banks under this Agreement, with exception of
rights and obligations pursuant to (S) 24, and the other Operative
Documents pursuant to the terms thereof under the following terms and
conditions. Each of the Banks hereby irrevocably authorizes the Agent to
give on their behalf all contractually binding declarations in connection
with
53
the implementation in this Agreement and the other Operative Documents
and to pursue their rights and obligations in accordance therewith. The
Agent shall be exempted from the restrictions of (S) 181 BGB. The Agent
shall be authorised to delegate authority to entities within its group
or to persons subject to a professional duty of confidence and revoke
the same free from any restrictions pursuant to (S) 181 BGB. Dresdner
Bank AG shall in its capacity as house bank pursuant to the Subsidy
Agreements, exercise its rights thereunder exclusively in accordance
with the terms of such agreements.
22.3 In addition, the Agent shall have the following duties:
22.3.1 verification of satisfaction of the conditions precedent pursuant to (S)
5.
22.3.2 negotiations with AMD Saxonia and the Sponsors as well as changes and
additions to this Agreement and the other Operative Documents including
any changes to the method of payment;
22.3.3 prompt circulation to the Banks of Drawdown Notices submitted by AMD
Saxonia to the Agent (together with confirmation from the Agent that it
has received the documents to be furnished pursuant to (S) 4.1.1 (i) -
(iii) and (S) 4.1.2 (i) - (iii), as the case may be), as well as
circulation to each of the Banks of the documents to be furnished by AMD
Saxonia or in individual cases, required by the Banks or any of them
pursuant to (S) 16 and other information which is required to be
circulated to all the Banks in accordance with the terms of this
Agreement or the Operative Documents;
22.3.4 prompt notification of the Banks of all material circumstances coming to
the attention of the Agent in connection with the implementation of this
Agreement which affect the enforcement of the rights of all or any of
the Banks such as in particular the occurrence of an event pursuant to
(S) 21;
22.3.5 distribution of all requisite information in connection with the 65/35
Guaranty to the Guarantors and consultation with them;
22.3.6 the convening and conduct of meetings of the Banks;
22.3.7 implementation of resolutions of the Banks;
22.3.8 monitoring of compliance with the provisions of this Agreement and the
other Operative Documents without prejudice to the obligations of the
Banks pursuant to (S) 22.1, sentence 3;
22.3.9 instruction of, and consultation with, the Technical Advisor, the
Insurance Advisor, the Banks' Auditor and other advisors, for example
lawyers.
22.4 If the Agent issues a material instruction within the meaning of (S)
22.3.4 each Bank, including the Agent, shall be entitled to require the
convening of a meeting of the consortium. In addition, a meeting of the
consortium can be required at any time by 25% of the votes of the Banks.
Convening of the meeting shall be made in writing, by telex or by fax,
setting out the agenda and subject to five (5) Banking Days notice or in
urgent
54
cases with such notice as is appropriate to the urgency of the matter.
Meetings shall take place in Frankfurt am Main or such other location as
is mutually agreed. Resolutions may be passed by way of written
resolution if in the Agent's opinion, given the nature of the matter to
be determined, a written resolution is appropriate and the Banks do not
decline a written resolution procedure pursuant to the majority of Banks
(in accordance with (S) 22.6).
22.5 Each Bank shall have voting rights corresponding to the amounts drawn
under the commitments made available by it, or if the Facilities have
not been drawn, corresponding to its respective commitment pursuant to
(S) 2.1 and Schedule 1. Only those Banks represented in meetings -
----------
including Banks authorised by written proxy on behalf of other Banks -
shall be entitled to vote. In respect of written resolutions, account
shall be taken only of those votes of the Banks whose written response
to the matter to be voted on has been received before the expiry five
(5) Banking Days after dispatch of the resolutions by the Agent and
whether received as an original or by telex or telefax. Abstentions will
not be counted. Resolutions shall be binding on the Agent as between the
members of the consortium inter se.
22.6 Resolutions of the Banks relating to amendments to the provisions of
this (S) 22, changes of the amounts due to the Banks pursuant to the
provisions of this Agreement or any other Operative Agreement, or any
amendment to the due date relating to payment obligations of AMD
Saxonia, the release of the land charge referred to in (S) 8.1.6 or the
waiver - in whole or in part - of rights under the 65/35 Guaranty
require the consent of all the Banks. Resolutions relating to the
termination, in whole or in part of this Agreement or the commencement
of legal proceedings or administration, composition or insolvency
proceedings against AMD Saxonia, AMD Holding or AMD Inc. or to changes
to the Security Documents or the payment obligations of the Sponsors
pursuant to the terms of the Sponsors' Support Agreement or the release
and realisation of securities (other than referred to in the first
sentence of this clause) require a majority of 75 % of the votes of the
Banks. In addition a majority of 75 % of votes of the Banks is required
for resolutions which concern:
(i) a decision of the Banks pursuant to (S) 21;
(ii) the consent of the Banks to any change of the AMD Saxonia Wafer
Purchase Agreement, the AMD Holding Wafer Purchase Agreement, the
AMD Saxonia Research, Design and Development Agreement (Schedule
36), the AMD Holding Research, Design and Development Agreement
(Schedule 34), the Management Service Agreement (Schedule 37) and
the License Agreement (Schedule 38);
(iii) the consent of the Banks to any change of the Project Budget or
the Project Schedule or the Drawdown Schedule;
(iv) a change in the Technical Advisor, the Insurance Advisor, the
Auditor, the Banks' Auditor or any other advisor of the Banks,
and
55
(v) a waiver of any of the conditions to drawing.
Otherwise, resolutions shall be passed with a majority of the votes of
the Banks; this applies in particular to resolutions which concern the
consent of the Banks pursuant to (S) 20 or the approval of the Plans and
Specifications or any changes thereto.
22.7 The Agent undertakes to consult with the other Banks prior to taking any
material decisions or steps pursuant to the terms of this Agreement. At
the request of the Banks, the Agent undertakes to furnish further
information in respect of particular issues and to obtain such
information from the AMD Companies pursuant to (S) 16.4 of this
Agreement or the provisions of the Operative Documents. In urgent cases,
the Agent may make determinations within the proper exercise of its
discretion without obtaining a resolution of the Banks. In such case,
the Agent will immediately inform the other Banks of the measures taken
by it. To the extent that the relevant measures can be revoked and the
Banks pass a resolution for such revocation, the Agent shall undertake
all steps to revoke the measures taken by it.
22.8 Each of the Banks (including the Agent) shall comply with its
obligations under this Agreement and under the other Operative Documents
with the customary care and attention pursuant to (S) 347 HGB. The Agent
shall not assume any additional liability in particular with reference
to the legality, enforceability or value of the claims of the Banks and
all the security. Without prejudice to its other obligations pursuant to
this Agreement, the Agent is not obliged on its own volition to
undertake inquiries or investigations with respect to breaches of this
Agreement or as to the existence of any grounds for termination.
22.9 Each of the other Banks agrees to hold harmless and indemnify the Agent
in respect of all claims or obligations which arise or are asserted
against the Agent in the implementation of this Agreement save to the
extent the same arise from the Agent's gross negligence or wilful
default and to compensate it for expenses incurred and not otherwise
reimbursed. The amount of the indemnity and/or the obligation to
compensate costs shall correspond to the commitments of each of the
Banks in respect of the Facilities. Costs will be paid to the Agent on
first demand in proportion of the commitments of the other Banks.
22.10 Each Bank confirms that it has independently verified the
creditworthiness of AMD Saxonia and the Sponsors and all Operative
Documents and all other documents relating thereto in all respects and
independently. If any Bank is of the opinion that the documents made
available to it in connection with the Operative Documents do not comply
with the contractual requirements such Bank shall be obliged to inform
the Agent immediately thereof.
22.11 The Agent is entitled, on giving 60 days' notice, to transfer its rights
and obligations as Agent to the Paying Agent. Resignation by the Agent
from its role as Agent is possible only subject to 60 days(S) notice. If
the Banks have not passed a resolution with the required majority
(according to (S) 22.6) by the seventh Banking Day before the end of
this period, the Agent shall appoint as its successor a Bank resident in
Germany. The
56
Agent may be dismissed with a majority of at least 75 % of the votes of
all the Banks. It shall be a condition of the Agent's dismissal that the
function of the house bank within the meaning of the Subsidy Agreement
and the function of the Paying Agent is assumed by another bank or
financial institution. The Banks will consult with AMD Saxonia in
advance in respect of any change in the Agent.
(S) 23
Administration of Security
23.1 The Banks hereby irrevocably authorise the Security Agent, free from the
restrictions pursuant to (S) 181 BGB, to enter into all agreements
necessary for the granting of the accessory security. Without prejudice
to the restrictions governing the relationship of the members of the
Bank consortium inter se the Security Agent is further authorised to
enter into all necessary agreements for the granting of security
pursuant to (S) 8 in their name, to amend and to supplement the same and
to exercise all rights of control, administration and disposition
arising under the Security Documents also in relation to the accessory
security in its own name and free from the restrictions set out in (S)
181 BGB. As between the Banks (internally), a resolution passed with a
majority of 75 % of the votes of the Banks shall be required in respect
of the release of any security, whether in whole or in part save to the
extent unanimity is required pusuant to (S) 22.6. The Security Agent
shall be released from all restrictions pursuant to (S) 181 BGB in
connection with all action taken in respect of the security.
23.2 The Security Agent shall be authorised to delegate administration of the
security to another financial institution and to undertake all steps in
relation thereto in the name of the other Banks. The provisions of this
(S) 23 shall apply in their entirety to any successor of the Security
Agent. The Security Agent shall be liable to the other Banks only for
the exercise of due care and attention in the selection of a successor.
The Security Agent will inform AMD Saxonia and the Banks in writing
prior to any transfer of its administrative duties and consult with AMD
Saxonia and the Banks concerning the transfer of such duties. The
Security Agent can be dismissed by way of resolution passed with a
majority of 75 % of the votes of the Banks provided that steps are taken
to ensure that the administration of the security is assumed by another
bank or financial institution.
23.3 Each Bank shall be entitled at any time to require information from the
Security Agent relating to the administration of the security. Without
prejudice thereto, the Security Agent shall in any event keep the other
Banks informed thereof in accordance with the proper exercise of its
discretion. In addition, the provisions of the German Civil Code
relating to the relationship of agents ((S)(S) 662 et seq. BGB) shall
apply to the relationship between the Security Agent and the other
Banks.
23.4 The Security Agent shall not be liable or responsible for the validity
and enforceability of the Security Documents nor shall the Security
Agent assume any liability as to whether the relevant status of the
security is sufficient to secure the claims of the Banks under this
Agreement. In this context, each Bank shall be responsible for examining
the
57
documentation delivered to it and shall inform the Security Agent of any
concerns it may have so that any such concerns may be taken account of
by a mutually acceptable arrangement.
23.5 The Security Agent will perform its obligations in relation to the
administration of the security with the customary standard of care in
accordance with (S) 347 HGB. The Security Agent shall not bear any
liability in respect of possible shortfalls which may arise as a result
of a breach of their obligations by any of the obligors under the
Security Documents. Each Bank hereby agrees to indemnify and keep
harmless the Security Agent with respect to all claims which may arise
or be made against the Security Agent arising from the proper acceptance
and administration of the security, save to the extent the same arise
from the Security Agent's gross negligence or wilful default and to
indemnify the Security Agent in respect of any costs incurred by it and
not otherwise reimbursed, in each case in proportion in which the
individual commitments of the relevant Banks bear to the Facilities. The
Security Agent shall be reimbursed for all costs on first demand in
accordance with the commitments of the Banks.
23.6 Realisation of the security granted pursuant to the Operative Documents
shall be effected to the extent such security is non-accessory security
by the Security Agent in its own name but for the account of the Banks.
The Security Agent is hereby authorised to realise the accessory
security in its own name and in the name and on behalf of the other
Banks.
23.7 The Banks shall agree by way of resolution passed with a majority of 75
% of their votes on measures to implement any realisation of the
security. However, in urgent cases the Security Agent may make such
decisions unilaterally in accordance with the proper exercise of its
discretion; in such event, the Security Agent will immediately inform
the other Banks of the steps taken. In the event that unanimity is not
be achieved, the Banks will determine the relevant steps to be taken for
realisation by way of majority decision (in accordance with (S) 22.6).
In all other respects, the conditions for or procedure of realisation of
security shall be as set out in the individual Security Documents.
23.8 Proceeds from the realisation of security shall be distributed in the
following order of priority:
(i) in satisfaction of the costs and other expenses of the Agent,
including any taxes incurred by the Agent in the administration
and realisation of the security pursuant to its obligations
hereunder;
(ii) in payment of accrued interest; and
(iii) in payment of the claims of the Banks under the Facilities in
accordance with this Agreement, and in satisfaction of any other
claims of the Banks under or in connection with the Operative
Documents pro rata in accordance with the outstanding advances of
the Banks.
The Guarantors shall, without prejudice to the first right of
satisfaction in favour of the Banks as security for their shortfall
risk, be subrogated by operation of law to the relevant portion of the
guaranteed claims which is secured pro rata by the security granted in
respect thereof. To the extent the security does not pass to the
Guarantors by operation of law, the same shall be transferred pro rata
to the Guarantors following payment by them.
Any remaining amount not otherwise required out of the proceeds of
realisation of the security shall be paid to AMD Saxonia.
Subject to the consent of the Guarantors, the Banks shall be entitled to
amend the above order of distribution at any time.
23.9 AMD Saxonia has agreed to pay to the Security Agent a fee in respect of
the administration of the security by it in an amount and on terms as to
payment set out in a letter of even date between AMD Saxonia and the
Security Agent.
(S) 24
Paying Agent
24.1 The Paying Agent is hereby appointed with the duties of the Paying Agent
in respect of all rights and obligations of the Banks under this
Agreement and the other Operative Documents subject to the following
terms and conditions. The Banks hereby irrevocably appoint the Paying
Agent to do all acts and things in connection with the making of
payments under this Agreement and the other Operative Documents and to
give all necessary statements and declarations in their name and to
enforce and undertake all things on their behalf to the extent the same
have not been delegated to the Agent. The Paying Agent is exempted from
the restrictions of (S) 181 BGB. The Paying Agent is authorised to
delegate authority and to revoke the same free from the restrictions of
(S) 181 BGB.
24.2 The Paying Agent will exercise the standard of care customary in
commercial relations in accordance with (S) 347 HGB in the performance
of its obligations under this Agreement and the other Operative
Documents.
24.3 The Banks hereby undertake to make available the relevant amounts of
advances to be made available by them as requested by the Paying Agent
in accordance with (S) 4 by 11.00 a.m. (London time) at the latest on
the drawdown date and make the same available to the account notified to
them by the Paying Agent. The Paying Agent will make available to AMD
Saxonia the amounts so provided with value for the same day.
24.4 The Paying Agent will pay to the Banks all interest, payments of
principal and other payments due to the Banks pursuant to this Agreement
on the relevant due date and to the accounts notified to the Paying
Agent by individual Banks. To the extent that amounts are paid to the
Banks without the Paying Agent having received a
59
corresponding payment in full from AMD Saxonia on the same day, the
Paying Agent may debit the relevant Bank accordingly.
24.5 AMD Saxonia shall pay to the Paying Agent in respect of the performance
of its duties under this Agreement a fee, the amount and the terms as to
payment of which are set out in a letter of even date from the Paying
Agent to AMD Saxonia.
24.6 The Banks hereby undertake to hold harmless and to indemnify the Paying
Agent against all claims which may arise or be made against the Paying
Agent in connection with the performance of its duties under this
Agreement, save to the extent the same arise from the Paying Agent's
gross negligence or wilful default and to reimburse all expenses borne
by the Paying Agent and not otherwise reimbursed. Each Bank shall
indemnify the Paying Agent and reimburse costs in an amount equal to the
commitment of the relevant Bank under the Facilities. All costs shall be
payable to the Paying Agent on first demand and in accordance with the
commitments of the Banks.
24.7 The Paying Agent may resign on 60 days' notice. If no resolution of the
Banks has been passed by the seventh Banking Day before the expiry of
such notice period in respect of a successor to the Paying Agent with
the required majority (in accordance with (S) 22.6) the Paying Agent
shall be entitled to appoint as its successor a credit institute
domiciled in Germany or Luxembourg. The Paying Agent can be dismissed by
way of resolution passed with a majority of 75 % of the votes of the
Banks provided that steps are taken to ensure that the administration of
the security is assumed by another bank or financial institution.
24.8 The department of the Paying Agent shall, with regard to the assumption
of the paying agent's duties for the Banks, be regarded as a entity
separate from the Paying Agent's other departments.
(S) 25
Costs
25.1 AMD Saxonia shall bear all expenses, fees and other external costs
incurred by the Agent, the Paying Agent and the Security Agent in
connection with the preparation, amendment and implementation of the
Operative Documents and the granting of the security and/or perfection
including in particular the reasonable costs of the Technical Advisor,
the Insurance Advisor and the Banks' Auditor and the reasonable fees,
costs and expenses of auditors and lawyers instructed by the Agent in
connection with the verification, valuation, administration and
realisation of the security or otherwise in connection with the
Operative Documents. AMD Saxonia's obligations to reimburse costs shall
also remain unaffected in those cases in which the Banks have paid the
costs of the parties referred to above pursuant to such Banks'
obligations to indemnify or otherwise reimburse such costs.
25.2 In the event of any payment received by a Bank either as a result of set
off by such Bank or by AMD Saxonia or as a result of any other
performance by AMD Saxonia as a result of which such Bank's claims are
paid in excess of the proportion due to it in respect of
60
its commitments in (S) 2 and Schedule 1, such Bank shall be obliged to
----------
make a payment to the Paying Agent for the account of the other Banks
such as to place such other Banks in the position they would have been
in had they received payment in proportion to their Commitments pursuant
to (S) 2 and Schedule 1. To the extent any Bank pays such excess amount
----------
to the other Banks, such Bank shall have a claim against AMD Saxonia in
an amount equal to the excess. This provision shall apply to any payment
received from or on account of AMD Saxonia. This provision does not,
however, apply in favour of a Bank which declined to participate in
proceedings initiated by the other Banks which have led to successful
claims being made under the Operative Documents. If any Bank is obliged
to repay to AMD Saxonia any amount received from any of the other Banks,
the other Banks shall be obliged to repay the amounts received by them
to the Bank obliged to repay.
(S) 26
Assignment; Sub-participations
26.1 The Banks are not entitled prior to 1 July 2001 to assign, whether in
whole or in part, their rights under this Agreement. Assignments and
sub-participations to affiliated companies within the meaning of (S) 15
of the Stock Corporation Act are permitted at any time - to the extent
not made by a Bank in Germany to an enterprise outside Germany - as well
as assignments to third parties following termination of this Agreement.
After 1 July 2001, the Banks are entitled to assign their rights and
claims under this Agreement with the consent of AMD Saxonia and the
Agent, which consent may be withheld only for good cause. Each Bank is
entitled moreover at any time to grant sub-participations to other banks
or credit institutions in an amount up to 50 % of its respective
commitment on and subject to the following terms and conditions:
(i) sub-participations require the consent of AMD Saxonia and the
Agent. Consent may be withheld only for good cause;
(ii) the sub-participant shall not be granted rights as against AMD
Saxonia or as against the other Banks and no contractual
relationship between the sub-participant, AMD Saxonia or the other
Banks shall be permitted to exist;
(iii) implementation of this Agreement shall be effected exclusively as
between AMD Saxonia, the Agent and the Paying Agent and/or the
relevant Bank.
(S) 27
Miscellaneous
27.1 The failure by any of the Banks to exercise any of their rights
hereunder, (whether in whole or in part), in particular any failure to
exercise their right to terminate this Agreement, shall not constitute a
waiver by the Banks of such right nor shall they be estopped from doing
so. All rights pursuant to this Agreement shall have effect
61
individually and without prejudice to any other rights at law or under
contract in favour the Banks.
27.2 All amendments and supplements to this Agreement and the other Operative
Documents must be in writing unless they are required by law to be
notarially certified. This requirement shall apply also to any
amendments, release or waiver of the requirement for such written form
as well as all consents of the Banks contemplated under this Agreement.
27.3 The provisions of (S) 22 to 24 and all rights and duties relating
thereto may be amended without the consent of AMD Saxonia this shall not
apply to the provisions set out in the last sentence of each of (S)
22.11 and (S) 23.2.
27.4 The invalidity or unenforceability of one or more provisions of this
Agreement shall not affect the remaining provisions of this Agreement.
The invalid or unenforceable provision shall be substituted by a
provision which approximates most closely to the economic purpose of the
void or unenforceable provision.
27.5 AMD Saxonia shall not be entitled to assign its rights under this
Agreement to any third party or to dispose of such rights in any other
way without the prior written consent of the Banks.
27.6 Each of the Banks shall inform the Agent with a copy to the Paying Agent
at least five (5) Banking Days prior to any change in its Lending
Office.
27.7 All correspondence or notifications under in connection with this
Agreement shall be served personally at the following addresses (or such
other address notified in writing by the recipient to the other party)
or by registered letter, courier or fax:
to the Agent and Paying Agent:
Dresdner Bank Luxembourg S.A.
▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇-▇▇▇-▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Direktion
Facsimile No.: (▇▇▇) ▇▇▇▇ ▇▇▇
to the Banks:
Dresdner Bank AG
▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Betreuung Unternehmenskunden
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
62
Kreditanstalt fur ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇ - ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
Attention: Abteilung K II a
Facsimile No.: (▇▇) ▇▇ ▇▇ ▇▇ ▇▇▇▇
DG Bank Deutsche Genossenschaftsbank
Am ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Frankfurt am Main
Attention: Herrn ▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇/Frau ▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇
Landesbank Baden-Wurttemberg
▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇▇▇ ▇▇▇▇▇▇ (Corporate Finance)
Sachsen LB Landesbank Sachsen
Girozentrale
▇▇▇▇▇▇▇▇▇▇▇. ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Herrn Dr. Carlhans ▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇ ▇▇ ▇▇▇
Bayerische Landesbank
Girozentrale
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Frau ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇
HypoVereinsbank Luxembourg Societe Anonyme
▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇▇ ▇▇▇▇
BHF-Bank Aktiengesellschaft
Niederlassung Leipzig
▇▇▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇. ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇▇ ▇▇▇▇▇▇▇▇/Frau ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇▇ ▇▇▇
63
Commerzbank AG
Filiale Dresden
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Deutsche Postbank AG
(formerly: DSL Bank Deutsche Siedlungs- und Landesrentenbank)
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇-Allee 114-126
53113 Bonn
Attention: Herrn ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Hamburgische Landesbank
Girozentrale
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇▇▇/Herrn ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇
IKB Deutsche Industriebank ▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇ ▇▇▇▇▇▇▇▇, Telefax: ▇▇▇▇-▇▇▇▇-▇▇▇▇
Frau Katharina van der Sant, Telefax: ▇▇▇▇-▇▇▇▇-▇▇▇▇
Landesbank Rheinland-Pfalz
Girozentrale
Grosse Bleiche 54 - 56
55098 Mainz
Attention: Herrn ▇▇▇▇▇▇ ▇▇▇▇▇▇/Herrn ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇▇ ▇▇ ▇▇▇▇
ABN AMRO Bank (Deutschland) AG
Niederlassung Berlin
Unter den Linden 42
10105 Berlin
Attention: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇) ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Creditanstalt AG
▇▇▇▇▇▇▇▇▇ ▇
▇-▇▇▇▇ ▇▇▇▇
Attention: Herrn Dr. ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇) ▇ ▇▇▇ ▇▇ ▇▇
64
The Sumitomo Bank, Limited, Dusseldorf Branch
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ - ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇▇ ▇▇▇
Bank Austria Creditanstalt Deutschland ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Herrn ▇▇▇▇▇
to AMD Saxonia:
AMD Saxony Manufacturing GmbH
Wilschdorfer Landstrasse 101
01109 Dresden
Attention: Geschaftsfuhrer
Facsimile No: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇▇
to the Security Agent
Dresdner Bank AG
Ostra Allee 9
01067 Dresden
z. Hd.: Betreuung Unternehmenskunden
Telefax: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
27.8 The German language counterpart of this Agreement is binding.
27.9 To the extent this Agreement does not provide to the contrary this
Agreement shall be governed by the General Terms and Conditions of the
Agent set out in Schedule 62, save that all references to a "Bank" shall
-----------
be deemed to be references to the "Banks" within the meaning of this
Agreement and all references to a "customer" shall be deemed to be
references to AMD Saxonia.
27.10 All press statements or other announcements relating to this Agreement
shall require the prior written consent of the Agent which consent shall
not be unreasonably withheld. The withholding of consent by the Agent
shall be deemed to be unreasonable to the extent that the disclosure of
information relating to this Agreement is required by any law,
regulation or official requirement or as required by any recognised
securities supervisory authority or securities exchange.
(S) 28
Governing Law
This Agreement shall be governed by the law of the Federal Republic of Germany.
65
(S) 29
Jurisdiction
The courts of Frankfurt am Main shall have exclusive jurisdiction in respect of
the resolution of all disputes under or in connection with this Agreement.
Frankfurt am Main 11 March 1997
AMD SAXONY MANUFACTURING GMBH
__________________________________
Managing Directors (Geschaftsfuhrer)
DRESDNER BANK AG
(as Security Agent and Bank)
_____________________________________
Other Banks:
KREDITANSTALT FUR WIEDERAUFBAU
_____________________________________
_____________________________________
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
____________________________________
____________________________________
LANDESBANK BADEN-WURTTEMBERG
_____________________________________
_____________________________________
▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
____________________________________
____________________________________
BAYERISCHE LANDESBANK GIROZENTRALE
____________________________________
____________________________________
HYPOVEREINSBANK LUXEMBOURG SOCIETE ANONYME
____________________________________
____________________________________
BHF-BANK AKTIENGESELLSCHAFT
____________________________________
____________________________________
COMMERZBANK AG, Dresden Branch
_____________________________________
_____________________________________
DEUTSCHE POSTBANK AG
(formerly: DSL BANK DEUTSCHE SIEDLUNGS- UND LANDESRENTENBANK)
_____________________________________
_____________________________________
HAMBURGISCHE LANDESBANK - GIROZENTRALE -
_____________________________________
______________________________________
67
IKB DEUTSCHE INDUSTRIEBANK AG
_____________________________________
_____________________________________
LANDESBANK RHEINLAND-PFALZ - GIROZENTRALE -
_____________________________________
_____________________________________
ABN AMRO BANK (DEUTSCHLAND) AG, Frankfurt
____________________________________
____________________________________
CREDITANSTALT AG
____________________________________
____________________________________
THE SUMITOMO BANK, LIMITED, Dusseldorf Branch
____________________________________
____________________________________
BANK AUSTRIA CREDITANSTALT DEUTSCHLAND AG
____________________________________
____________________________________
DRESDNER BANK LUXEMBOURG S.A.
(as Agent and Paying Agent)
____________________________________
68
Schedule 1
Banks' Commitments
I. THE BANKS AND THEIR LENDING OFFICES COMMITMENTS
▇▇
▇▇▇▇▇▇▇▇ BANK AG, 190,909,090.91
Frankfurt am Main
KREDITANSTALT FUR WIEDERAUFBAU, 186,363,636.36
Frankfurt am Main
LANDESBANK BADEN-WURTTEMBERG, 181,818,181.82
Stuttgart
SACHSEN LB LANDESBANK SACHSEN GIROZENTRALE, 100,000,000.00
Leipzig
BAYERISCHE LANDESBANK GIROZENTRALE, 90,909,090.91
Munchen
HYPOVEREINSBANK LUXEMBOURG SOCIETE ANONYME, 90,909,090.91
Luxembourg
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, 86,363,636.36
Frankfurt am Main
THE SUMITOMO BANK, LIMITED, Niederlassung Dusseldorf, 72,727,272.73
Dusseldorf
BHF-BANK AKTIENGESELLSCHAFT, 68,181,818.18
Leipzig
COMMERZBANK AG Filiale Dresden, 68,181,818.18
Dresden
DEUTSCHE POSTBANK AG, 68,181,818.18
Bonn
HAMBURGISCHE LANDESBANK - GIROZENTRALE -, 68,181,818.18
Hamburg
69
IKB DEUTSCHE INDUSTRIEBANK AG, 68,181,818.18
Dusseldorf
LANDESBANK RHEINLAND-PFALZ - GIROZENTRALE -, 68,181,818.18
Mainz
ABN AMRO BANK (DEUTSCHLAND) AG, 45,454,545.46
Berlin
CREDITANSTALT AG, 31,818,181.82
Wien
BANK AUSTRIA CREDITANSTALT DEUTSCHLAND AG, 13,636,363.64
Munchen
----------------
1,500,000,000.00
70
Schedule 2
(Drawdown Schedule)
-------------------------------------------------------------------------------------------------
Project Phase Period Facility A per Project Cumulative Facility A
Phase (MDM) (MDM)
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Planning/ Design *** *** ***
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Shell *** *** ***
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Clean Room *** *** ***
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
First Equipment *** *** ***
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Qualification/First Silicon *** *** ***
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Technical Completion *** *** ***
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
*** *** ***
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
----------------
*** CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
71
Schedule 17
Financial Covenants
The financial covenants for AMD Saxony Manufacturing GmbH ("AMD Saxonia")
will be determined on the basis of the quarterly financial statements of
AMD Saxonia and other information provided by the management pursuant to
(S) 16.2.1 and the audited annual financial statements of AMD Saxonia and
the Auditor's confirmation pursuant to (S) 16.2.2 of this Agreement.
1. Definitions
Rolling Quarter Basis:
refers to the calculation of a ratio or of an amount at the end of a Fiscal
Quarter in each case covering the Fiscal Quarter in question and the three
preceding Fiscal Quarters
Tangible Net Worth:
Equity
plus 45 % of special items with equity portion ((S)(S) 273, in conjunction
with (S) 247, 3 Commercial Code)
plus Subordinated Shareholder Loans (less capitalised interest)
less capitalised start-up and business expansion expenses ((S) 269
Commercial Code)
less payments on account for fixed and Current Assets ((S) 266 2A II No.
3, 266 2 B I No.4 Commercial Code)
less accruals for deferred tax released from reserves ((S) 274 2 S 1
Commercial Code)
less intangible assets ((S) 266 2 A I Commercial Code)
= Tangible Net Worth
Equity:
subscribed share capital ((S) 266, 3A I Commercial Code) less amounts not
paid-up ((S) 272, 1S 3 Commercial Code)
plus additional capital reserves ((S) 266, 3A II Commercial Code)
plus revenue reserves ((S) 266, 3A, III Commercial Code)
plus/less retained profit/accumulated losses ((S) 266, 3A, IV Commercial
Code)
plus/less net income/net loss for the year ((S) 266, 3A, V Commercial
Code)
= Equity
72
Modified EBIT:
net income for the year ((S) 275, 2, No. 20 Commercial Code) or net income
during the period under consideration, as the case may be
plus taxes on income ((S) 275, 2, No. 18 Commercial Code)
plus other taxes ((S)275, 2, No. 19 Commercial Code)
plus interest and other expenses ((S) 275, 2, No. 13 Commercial Code)
(including interest on Revolving Loans made to AMD Saxonia by AMD
Inc. pursuant to the Sponsors' Support Agreement and the Revolving
Loan Facility Agreement, Interest Expense on Bank Debt and
capitalised interest to the extent capitalised on Subordinated
Shareholder Loans)
= Modified EBIT
Subordinated Shareholder Loans:
all shareholder loans made to AMD Saxonia by AMD Holding and AMD Inc.
pursuant to the Sponsors' Support Agreement and the Sponsors' Loan
Agreement in the form set out in Schedule 29, as amended, but, for the
purpose of this Schedule 17 only, excluding revolving loans made to AMD
Saxonia by AMD Inc. pursuant to the Sponsors' Support Agreement and the
Revolving Loan Facility Agreement.
Fiscal Quarter:
each quarterly fiscal accounting period of AMD Saxonia ending on or about
the last day of March, June, September or the last Sunday in December.
Current Assets:
Inventory ((S) 266, 2 B I Commercial Code), accounts receivable and other
assets ((S) 266, 2 B II Commercial Code), other marketable securities
included in the current assets ((S) 266, 2 B III No. 3 Commercial Code),
cheques, balances at the Bundesbank and Post Office, and cash at bank ((S)
266 2 B IV Commercial Code)
Interest Expense on Bank Debt:
all interest payments (cash or capitalised), commisions, fees, discounts
and other financial charges incurred in respect of indebtedness for
borrowings from banks.
73
Interest Cover Ratio:
the ratio of Modified EBIT to Interest Expense on Bank Debt, plus interest
expense under the Revolving Loan Facility Agreement to the extent paid in
cash or set off against other claims.
2. Financial Covenants
2.1 Minimum Tangible Net Worth
The Tangible Net Worth shall not at the end of any fiscal year be less than
the amounts set out below:
End of a Fiscal Year Amount in DM millions
27 December 1998 ***
26 December 1999 ***
31 December 2000 ***
30 December 2001 ***
29 December 2002 ***
28 December 2003 ***
26 December 2004 ***
25 December 2005 ***
2.2 Maximum Capital Expenditure:
[intentionally left blank]
2.3 Minimum Interest Cover Ratio
The Interest Cover Ratio calculated on a Rolling Quarter Basis shall not at
the end of any Fiscal Quarter be less than the amount set out below:
End of the Fiscal Quarter Interest Cover Ratio
30 December 2001 1,70
31 March 2002 1,70
30 June 2002 1,90
29 September 2002 2,00
29 December 2002 2,20
30 March 2003 2,40
29 June 2003 2,60
28 September 2003 2,80
----------------
*** CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
74
28 December 2003 3,00
28 March 2004 3,00
27 June 2004 3,00
26 September 2004 3,00
26 December 2004 3,00
27 March 2005 3,00
26 June 2005 3,00
25 September 2005 3,00
25 December 2005 3,00
2.4 Fixed Charge Cover Ratio:
[left intentionally blank]
2.5 Maximum Inventory Turnover:
[left intentionally blank]
3. Excess Cash:
[left intentionally blank]
4 Minimum Liquidity Covenant:
At all times from 1 July 2001, AMD Saxonia shall maintain cash in the
Project Accounts, including Cash Equivalent Investments pursuant to
Schedule 23, in an amount ***.
----------------
*** CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
75
