Exhibit 10.43(h-2)
ACCESSION AGREEMENT AND SECOND AMENDMENT TO
SPONSORS' SUBORDINATION AGREEMENT
THIS ACCESSION AGREEMENT AND SECOND AMENDMENT (this "Amendment"),
dated 3 June 2002, is made among ADVANCED MICRO DEVICES, INC., a corporation
organised and existing under the laws of the State of Delaware, United States of
America, with its chief executive office and principal place of business at ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("AMD Inc.");
AMD SAXONY HOLDING GMBH, Dresden, registered in the Commercial Register of the
Dresden County Court, HRB 13931 ("AMD Holding," together with AMD Inc.,
collectively, the "Sponsors"); AMD SAXONY LLC, a limited liability company
organised and existing under the laws of the State of Delaware, United States of
America ("AMD Saxony LLC"); AMD SAXONY ADMIN GMBH, with its seat in Dresden
("AMD Admin," together with AMD Saxony LLC, collectively, the "Additional
Partner Companies"); AMD SAXONY MANUFACTURING GMBH, registered in the Commercial
Register of the Dresden County Court, HRB 13186 (proposed to be known as "AMD
Saxony LLC & Co. KG" following the Conversion Effective Date) ("AMD Saxonia");
DRESDNER BANK LUXEMBOURG S.A., as Agent (and successor to DRESDNER BANK AG
("Dresdner") in such capacity) under the Loan Agreement dated 11 March 1997, as
amended (as so amended, the "Loan Agreement") (in such capacity, the "Agent")
for the Banks from time to time party thereto; and Dresdner, as Security Agent
under such Loan Agreement (in such capacity, the "Security Agent") for the
Secured Parties referred to therein.
W I T N E S S E T H:
WHEREAS, AMD Saxonia has been formed for the purpose of constructing,
owning, and operating (i) the Plant and (ii) the integrated Design Center (the
construction, ownership, and operation of the Plant and the Design Center being
hereinafter called the "Project");
WHEREAS, pursuant to the Conversion Documents, AMD Saxonia proposes
to change its legal form to a Kommanditgesellschaft (a limited partnership
organised under the laws of the Federal Republic of Germany) with AMD Holding
and AMD Admin as its sole limited partners (Kommanditisten) and AMD Saxony LLC
as its sole general partner (Komplementar);
WHEREAS, with effect from the Conversion Effective Date, AMD Saxonia
wishes, with the consent of the Sponsors and the Additional Partner Companies
to, among other things, modify the interest rate on Sponsors' Loans and
Revolving Loans and to increase the amount of the Revolving Loan Facility; and
WHEREAS, with effect from the Conversion Effective Date, the
Additional Partner Companies desire to accede to, and the Sponsors, the
Additional Partner Companies, AMD Saxonia, the Agent and the Security Agent
desire to amend and supplement, the Sponsors' Subordination Agreement dated 11
March 1997, by and among AMD Inc., AMD Holding, AMD Saxony Manufacturing GmbH,
Dresdner Bank AG, as Security Agent, and Dresdner Bank Luxembourg S.A., as
Agent, as amended by the First Amendment to Sponsors' Subordination Agreement
dated 20 February 2001(as amended, the "Sponsors' Subordination Agreement"), on
the terms and subject to the conditions of this Amendment;
NOW, THEREFORE, the Sponsors, the Additional Partner Companies, AMD
Saxonia, the Agent (for itself and on behalf of the Banks), and the Security
Agent (on behalf of the Secured Parties), agree as follows:
ARTICLE I
Accession
Section 1.1 With effect from the Conversion Effective Date, the Additional
Partner Companies hereby accede to the Sponsors' Subordination Agreement, and
the Sponsors, AMD Saxonia, the Agent and Security Agent hereby consent to such
accession
ARTICLE II
Definitions
Section 2.1 Definitions. Capitalized terms not otherwise defined in this
Amendment are used with the definitions assigned to them in the Sponsors'
Subordination Agreement or the Sponsors' Support Agreement, as the case may be.
In addition, the following terms when used in this Amendment shall
have the following meaning:
"Agreed Terms" means, in respect of any document, that document
substantially in the form thereof which has been initialled (for the purposes of
identification) by or on behalf of AMD Saxonia and the Agent.
"Conversion Documents" means the following agreements and documents,
each in the Agreed Terms: (i) the Certificate of Formation of AMD Saxony LLC;
(ii) the AMD Admin Articles of Association; (iii) the Formation Protocol for AMD
Admin; (iv) the Application to the Commercial Register for Formation of AMD
Admin; (v) the Resolution of AMD Holding as Shareholder of AMD Admin for Section
181 German Civil Code Release; (vi) the List of Shareholders for AMD Admin;
(vii) the AMD Saxony LLC Agreement; (viii) the AMD Saxonia Partnership
Agreement; (ix) the Assignment and Trust Agreement between AMD Holding and AMD
Saxony LLC; (x) the Purchase and Assignment Agreement between AMD Holding and
AMD Admin; (xi) the Resolution of AMD Holding as Shareholder of AMD Saxonia for
Transfer of Fractional Share to AMD Saxony LLC; (xii) the Notification to AMD
Saxonia of Assignment of Fractional Share to AMD Admin; (xiii) the List of
Shareholders of AMD Saxonia (reflecting addition of AMD Admin); (xiv) the
Resolution of AMD Holding and AMD Saxony LLC as Shareholders of AMD Saxonia for
Transfer of Fractional Share to AMD Admin; (xv) the Notification to AMD Saxonia
of Assignment of Fractional Share to AMD
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Saxony LLC; (xvi) the List of Shareholders of AMD Saxonia (reflecting addition
of AMD Saxony LLC); (xvii) the Resolution of AMD Holding, AMD Admin and AMD
Saxony LLC as Shareholders of AMD Saxonia Approving Conversion to Limited
Partnership; (xviii) the Resolution of AMD Inc. as Shareholder of AMD Holding
Approving Conversion of AMD Saxonia; (xix) Application to the Commercial
Register for Conversion of AMD Saxonia to Limited Partnership; (xx) Application
to the Real Estate Register for Change in AMD Saxonia's Name; (xxi) the Transfer
Agreement for Transfer Back Of Fractional Share between AMD Holding and AMD
Saxony LLC; (xxii) Application to the Commercial Register for Transfer Back of
Fractional Share by AMD Saxony LLC to AMD Holding; (xxiii) Power of Attorney
regarding Removal of AMD Saxony LLC as General Partner of AMD Saxonia; and
(xxiv) any other agreement or document designated by the AMD Companies (with the
consent of the Agent) in addition to or in substitution for any of the
above-named documents or agreements as a "Conversion Document."
"Sponsors' Support Agreement" means the Sponsors' Support Agreement
between the Sponsors, the Additional Partner Companies, the Agent and the
Security Agent dated 11 March 1997, as amended by the First Amendment to
Sponsors' Support Agreement dated 6 February 1998, the Second Amendment to
Sponsors' Support Agreement dated 29 June 1999, the Third Amendment to Sponsors'
Support Agreement dated 20 February 2001 and the Accession Agreement and Fourth
Amendment to Sponsors' Support Agreement dated of even date herewith, and as the
same may at any time be amended or modified in accordance with the terms thereof
and in effect.
Section 2.2 Construction. In this Amendment, unless the context requires
otherwise, references to Sections and Schedules are to Sections and Schedules of
the Sponsors' Subordination Agreement. Section headings are inserted for
reference only and shall be ignored in construing this Amendment.
ARTICLE III
Amendments
Section 3.1 With effect from the Conversion Effective Date, the Sponsors'
Subordination Agreement will be amended and restated in its entirety in the form
attached as Appendix A.
ARTICLE IV
Miscellaneous
Section 4.1 Representations and Warranties. Each of the Sponsors, AMD Saxonia
and the Additional Partner Companies hereby represents and warrants, as of the
date hereof and as of the Conversion Effective Date, that:
(i) Organisation; Corporate Power. It is duly organised and validly existing
under the laws of the jurisdiction of its organisation, and has all necessary
power and authority to execute and deliver this Amendment and, following the
Conversion Effective Date, to consummate the transactions contemplated by the
Sponsors' Subordination Agreement, as amended hereby;
(ii) Corporate Authority; No Conflict. The execution and delivery by it of this
Amendment, and the performance by it, following the Conversion Effective Date,
of its obligations under the
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Sponsors' Subordination Agreement, as amended by this Amendment, have been duly
authorised by all necessary corporate action (including any necessary
shareholder action) on its part, and do not and will not (i) violate any
provision of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination, or award presently in effect having applicability to it,
or of its charter or by-laws; or (ii) result in a breach of, result in a
mandatory prepayment or acceleration of indebtedness evidenced by or secured by,
or constitute a default under, any indenture or loan or credit agreement, or any
other agreement or instrument to which it is a party or by which it or its
properties may be bound, or require the creation or imposition of any
encumbrance of any nature upon or with respect to any of the properties now
owned or hereafter acquired by it; and
(iii) Valid and Binding Obligations. Following the Conversion Effective Date,
the Sponsors' Subordination Agreement, as amended by this Amendment, shall
constitute its legal, valid, and binding obligation, enforceable against it in
accordance with its terms; subject, however, to applicable bankruptcy,
insolvency, reorganisation, moratorium, or similar laws affecting creditors'
rights generally and, as to enforceability, by general equitable principles.
Section 4.2 Miscellaneous.
(i) This Amendment is limited as specified and, except as expressly herein
provided, shall not constitute a modification, amendment or waiver of any other
provision of the Sponsors' Subordination Agreement or any provision of any other
Operative Document. Except as specifically amended by this Amendment, the
Sponsors' Subordination Agreement shall remain in full force and effect and is
hereby ratified and confirmed.
(ii) This Amendment shall be an Operative Document under and for purposes of
the Sponsors' Support Agreement.
(iii) This Amendment has been executed in the English language.
(iv) This Amendment may be executed in any number of counterparts and by
different parties on separate counterparts which when taken together shall
constitute one agreement.
(v) Sections 19, 20, and 21 of the Sponsors' Subordination Agreement shall
apply, mutatis mutandis, to this Amendment, as if set out herein in full.
[Remainder of the page intentionally left blank]
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IN WITNESS WHEREOF, each of the parties set out below has
caused this Amendment to be duly executed and delivered by its respective
officer or agent thereunto duly authorised as of the date first above written.
ADVANCED MICRO DEVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its Senior Vice President and Chief
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Financial Officer
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AMD SAXONY HOLDING GMBH
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
▇▇. ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
Its Managing Director (Geschaftsfuhrer)
AMD SAXONY MANUFACTURING GMBH
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
▇▇. ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
Its Managing Director (Geschaftsfuhrer)
AMD SAXONY LLC
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
▇▇. ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
Its Manager
AMD SAXONY ADMIN GMBH
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
▇▇. ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
Its Managing Director (Geschaftsfuhrer)
DRESDNER BANK LUXEMBOURG S.A.
as Agent
By: /s/ ▇▇▇▇▇▇▇▇▇
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Its Signatory under power of attorney
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DRESDNER BANK AG
as Security Agent
By: /s/ ▇▇▇▇▇▇▇▇▇
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Its Signatory under power of attorney
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[Signature page to the Accession Agreement and
Second Amendment to Sponsors' Subordination Agreement]
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APPENDIX A
AMENDED AND RESTATED
SPONSORS' SUBORDINATION AGREEMENT
A-1
Amended and Restated
SPONSORS' SUBORDINATION AGREEMENT
THIS SPONSORS' SUBORDINATION AGREEMENT, dated 11 March 1997, as amended, is made
between ADVANCED MICRO DEVICES, INC., a corporation organised and existing under
the laws of the State of Delaware, United States of America, with its chief
executive office and principal place of business at ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("AMD Inc."); AMD SAXONY HOLDING
GMBH, Dresden, registered in the Commercial Register of the Dresden County Court
HRB 13931 ("AMD Holding"; and, together with AMD Inc., collectively, the
"Sponsors"); AMD SAXONY LLC, a limited liability company organised and existing
under the laws of the State of Delaware, United States of America ("AMD Saxony
LLC"); AMD SAXONY ADMIN GMBH, with its seat in Dresden ("AMD Admin" and together
with AMD Saxony LLC, collectively, the "Additional Partner Companies"); AMD
SAXONY MANUFACTURING GMBH, registered in the Commercial Register of the Dresden
County Court, (proposed to be known as "AMD Saxony LLC & Co KG" Dresden
following the Conversion Effective Date) ("AMD Saxonia"); DRESDNER BANK
LUXEMBOURG S.A., as Agent (and successor to DRESDNER BANK AG ("Dresdner") in
such capacity) for the Banks under the Loan Agreement referred to below (in such
capacity, the "Agent") and DRESDNER, as Security Agent under such Loan Agreement
(in such capacity, the "Security Agent") for the Secured Parties referred to
below.
WITNESSETH:
WHEREAS, AMD Saxonia has been formed for the purpose of constructing, owning,
and operating (i) the Plant and (ii) the integrated Design Center (the
construction, ownership, and operation of the Plant and the Design Center being
hereinafter called the "Project");
WHEREAS, in order to finance the construction of the Plant and the Design
Center, and start-up costs of the operation of the Plant, (i) the Sponsors have
made substantial subordinated loans to, and AMD Holding has made substantial
equity investments in, AMD Saxonia, and (ii) AMD Saxonia has entered into a
Syndicated Loan Agreement, dated 11 March 1997, as amended, (the "Loan
Agreement"), with the banks from time to time party thereto (hereinafter
collectively called the "Banks" and individually called a "Bank"), Dresdner, as
Agent and Paying Agent (in such capacity, the "Paying Agent"), providing, inter
alia, for a senior secured term facility aggregating up to DM 1,500,000,000 (one
billion five hundred million Deutsche Marks);
WHEREAS, pursuant to the Conversion Documents, AMD Saxonia has changed its legal
form to a Kommanditgesellschaft (a limited partnership organised under the laws
of the Federal Republic of Germany) with AMD Holding and AMD Admin as its sole
limited partners (Kommanditisten) and AMD Saxony as its sole general partner
(Komplementar);
WHEREAS, the Sponsors and the Additional Partner Companies are entering into
this Agreement with AMD Saxonia, the Agent, and the Security Agent for the
benefit of the Banks and the Paying Agent (the Agent, the Security Agent, the
Banks and the Paying Agent being hereinafter collectively called the "Secured
Parties" and individually called a "Secured Party"), for the purpose, among
other things, of providing (i) certain assurances with respect to the completion
of the Project, and (ii) certain undertakings to and for the benefit of the
Secured Parties; and
WHEREAS, in extending or continuing to extend credit to AMD Saxonia under the
Loan Agreement, the Banks are relying on the undertakings of the Sponsors and
Additional Partner Companies contained herein;
NOW, THEREFORE, the Sponsors, the Additional Partner Companies, AMD Saxonia, the
Agent (for itself and on behalf of and the Banks), and the Security Agent (on
behalf of the Secured Parties), agree as follows:
SECTION 1. Definitions. Unless otherwise defined herein, terms used herein
have the meanings assigned to such terms in the Sponsors' Support Agreement. In
addition, the following terms (whether or not underlined) when used in this
Agreement, including its preamble and recitals, shall, except where the context
otherwise requires, have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):
"Additional Partner Companies" has the meaning assigned to such term in the
introduction to this Agreement.
"Agent" has the meaning assigned to such term in the introduction to this
Agreement.
"Agreement" means this Sponsors' Subordination Agreement, as the same may
at any time be amended or modified in accordance with the terms hereof and
in effect.
"AMD Admin" has the meaning assigned to such term in the introduction to
this Agreement.
"AMD Holding" has the meaning assigned to such term in the introduction to
this Agreement.
"AMD Holding Junior Liabilities" means all Junior Liabilities owing to AMD
Holding.
"AMD Inc." has the meaning assigned to such term in the introduction to
this Agreement.
"AMD Saxonia" has the meaning assigned to such term in the introduction to
this Agreement.
"AMD Saxony LLC" has the meaning assigned to such term in the introduction
to this Agreement.
"Bank" and "Banks" have the respective meanings assigned to such terms in
the second recital of this Agreement.
"Dresdner" has the meaning assigned to such term in the introduction to
this Agreement.
"Junior Liabilities" means all obligations and liabilities of AMD Saxonia
to any of the Additional Partner Companies or the Sponsors (including, in
the case of AMD Holding, any AMD Holding Junior Liabilities), including but
not limited to, any and all rights and claims arising in connection with
the capital accounts (Kapitalkonten), loan accounts (Darlehenskonten), and
the private accounts (Privatkonten) of any partner (Gesellschafter), any
claim to a distribution-quote (Auseinandersetzungsanspruch) including but
not limited to any compensation in case of termination (Auflosung), in
particular claims for liquidation proceeds (Liquidationserlos), withdrawal
(Ausscheiden) of a partner, repaid capital in case of a capital decrease
(Herabsetzung der Einlage oder der Pflichteinlage), repayment of capital
(Ruckzahlung von Einlagen) or any other pecuniary claims (geldwerte
Forderungen), howsoever created, arising, or evidenced, whether direct or
indirect, absolute or contingent, or now or hereafter existing, or due or
to become due.
"Loan Agreement" has the meaning assigned to such term in the second
recital of this Agreement.
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"Loan Agreement Termination Date" means the first date on or as of
which (i) all Primary Secured Obligations have been paid in full, and
(ii) the Banks have no commitments under or in connection with the Loan
Agreement.
"Paying Agent" has the meaning assigned to such term in the second
recital of this Agreement.
"Project" has the meaning assigned to such term in the first recital of
this Agreement.
"Secured Parties" and "Secured Party" have the respective meanings
assigned to such terms in the fourth recital of this Agreement.
"Security Agent" has the meaning assigned to such term in the
introduction to this Agreement.
"Senior Liabilities" means all obligations and liabilities of AMD
Saxonia to the Agent, the Security Agent, any Bank, the Paying Agent,
or either Guarantor (other than any arising solely by reason of any
pledge or assignment of any AMD Holding Junior Liabilities made to the
Security Agent pursuant to Section 2(b) hereof) under or arising out of
any Financing Document, howsoever created, arising, or evidenced,
whether direct or indirect, absolute or contingent, or now or hereafter
existing, or due or to become due, it being expressly understood and
agreed that the term "Senior Liabilities" shall include, without
limitation, any and all interest accruing on any of the Senior
Liabilities after the commencement of any proceedings referred to in
Section 4, notwithstanding any provision or rule of law which might
restrict the rights of the Security Agent, as against AMD Saxonia, any
Additional Partner Company, or any other Person, to collect such
interest.
"Sponsors" has the meaning assigned to such term in the introduction to
this Agreement.
"Sponsors' Support Agreement" means the Sponsors' Support Agreement
between the Sponsors, the Additional Partner Companies, the Agent and
the Security Agent dated 11 March 1997, as amended by the First
Amendment to Sponsors' Support Agreement dated 6 February 1998, the
Second Amendment to Sponsors' Support Agreement dated 29 June 1999, the
Third Amendment to Sponsors' Support Agreement dated 20 February 2001
and the Accession Agreement and Fourth Amendment to Sponsors' Support
Agreement dated of 3 June 2002, and as the same may at any time be
amended or modified in accordance with the terms thereof and in effect.
In this Agreement, unless the context requires otherwise, any reference to an
Operative Document or a Project Agreement (including, in each case, any
reference thereto as being in the form set out in a Schedule to the Loan
Agreement) shall be a reference to such Document or Agreement as it shall have
been, or from time to time may be, amended, varied, re-issued, replaced, novated
or supplemented, in each case, in accordance with its terms and this Agreement.
For the avoidance of doubt, any reference in the Agreement to stated capital
(Stammkapital), capital reserves or any other similar term relating to the
capital structure of a German limited liability company shall, following the
Conversion Effective Date (as defined in the Sponsors' Support Agreement), be
deemed to be a reference to the capital (Haftsummen and Pflichteinlagen) or
capital reserves of a limited partnership under German law, save to the extent
the context requires otherwise.
In this Agreement, unless the context requires otherwise, (i) any statutory
provisions shall be construed as references to those provisions as amended,
modified, re-enacted, or replaced from time to time; (ii) words importing a
gender include every gender; (iii) references to Sections and Schedules are to
Sections of and Schedules to this Agreement; and (iv) references to this
Agreement include its Schedules. Section headings are inserted for reference
only and shall be ignored in construing this
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Agreement. A time of day, unless otherwise specified, shall be construed as a
reference to Frankfurt am Main time.
SECTION 2. Obligations of the Sponsors and the Additional Partner Companies. The
Sponsors and Additional Partner Companies will, from time to time, (a) promptly
notify the Security Agent of the creation of any Junior Liabilities pursuant to
the Sponsors' Support Agreement, the Sponsors' Loan Agreement or the Revolving
Loan Facility Agreement, and (b) in the case of AMD Holding, and as collateral
security for all Senior Liabilities, indorse without recourse, deliver, and
pledge to the Security Agent any and all promissory notes or other instruments
evidencing any of the AMD Holding Junior Liabilities, in a manner satisfactory
to the Security Agent.
SECTION 3. Subordination. Except as expressly provided in this Agreement, or as
the Agent (acting on the instructions of an Instructing Group) may hereafter
otherwise expressly consent in writing, the payment of all Junior Liabilities
shall be postponed and subordinated to the payment in full of all Senior
Liabilities, and no payments or other distributions whatsoever in respect of any
Junior Liabilities shall be made, nor shall any property or assets of AMD
Saxonia be applied to the purchase or other acquisition or retirement of any
Junior Liabilities; provided, however, that as long as no Event of Default, nor
any Unmatured Event of Default nor, with respect to AMD Saxonia or any of the
Sponsors or Additional Partner Companies, any event which is of the type
described in Section 11.1 (e), (f), (g) or (h) of the AMD Inc. 1999 Loan and
Security Agreement has occurred and is continuing, there are excepted from the
foregoing provisions of this Section 3 (without duplication):
(i) those payments to either of the Sponsors made by AMD Saxonia
pursuant to Article II of the Management Service Agreement;
(ii) those payments to AMD Holding made by AMD Saxonia pursuant to
Article IV of the AMD Saxonia Wafer Purchase Agreement;
(iii) those payments to AMD Inc. made by AMD Saxonia in respect of
purchases of equipment in the ordinary course of business and
on an arm's length basis and not exceeding DM 50,000,000
(fifty million Deutsche Marks) in aggregate;
(iv) those payments to the Sponsors made by AMD Saxonia in
accordance with Section 6.3 of the Sponsors' Support Agreement;
(v) distributions in respect of the Junior Liabilities to the
extent such distributions constitute non cash credits
expressly permitted to be made under the Management Service
Agreement or the AMD Saxonia Wafer Purchase Agreement;
(vi) those payments to AMD Inc. made by AMD Saxonia pursuant to the
AMD Saxonia Hedging Agreement other than payments of premium
and other than payments in respect of the early termination
thereof;
(vii) with effect from 1 January 2002, payments of principal (but not
interest) under the Revolving Loan Facility Agreement;
(viii) the repayment of Sponsors' Loans in an amount equal to the
amount of any increase in AMD Saxonia's equity capital paid in
cash between 30 November 2000 and 31 December 2000;
(ix) those payments by AMD Saxonia to AMD Holding and AMD Admin of
such amounts as are necessary to pay income tax liabilities
which have become due and payable resulting from AMD Holding's
and AMD Admin's partnership interests in AMD Saxonia; and
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(x) those payments by AMD Saxonia to AMD Saxony LLC of costs and
expenses and compensation in connection with AMD Saxony LLC
acting as general partner of AMD Saxonia, up to a maximum
aggregate amount of $75,000 per annum (or such other amount as
may be agreed by AMD Saxonia and the Agent in writing).
and provided, further, that there are excepted from the foregoing terms of this
Section 3:
(A) performance by AMD Saxonia of its obligations (other than
payment obligations, if any) under the AMD Saxonia Wafer
Purchase Agreement, the AMD Saxonia Research Agreement or the
License Agreement; and
(B) 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.
Moreover, if the AMD Saxonia Wafer Purchase Agreement or the Management Service
Agreement terminates for any reason whatsoever, AMD Saxonia shall be permitted
to credit the amounts payable thereunder against the amounts receivable by it
thereunder strictly in accordance with the terms and provisions of each such
Operative Document.
In addition to, and without intending to derogate from, the foregoing provisions
of this Section 3, each of the Sponsors and Additional Partner Companies hereby
subordinates its claims arising under or in connection with the Sponsors'
Support Agreement, Sponsors' Loan Agreement and the Revolving Loan Facility
Agreement to all other present and future creditors of AMD Saxonia, but the
subordination under this sentence shall not apply to any such claims as long as
and to the extent that omitting such claims from the subordination under this
sentence will not result in or lead to an increase of an overindebtedness of AMD
Saxonia within the meaning of Sec. 19 Insolvency Act (InsO), to be determined on
the basis of AMD Saxonia's statement of affairs (Vermogensstatus) as per any
relevant point in time or, if applicable, in an opening or closing liquidation
balance sheet (Liquidationseroffnungs-, schlu(beta)bilanz). For the purposes of
determining whether a repayment of principal or the payment of interest by AMD
Saxonia is permitted under this paragraph the value of the assets and
liabilities of AMD Saxonia to be included in the relevant statement of affairs
shall always be determined by the managing directors and confirmed by the
Auditor in accordance with the applicable rules. The Sponsors and Additional
Partner Companies shall not be entitled to make payment claims under the
Sponsors' Support Agreement, Sponsors' Loan Agreement or the Revolving Loan
Facility Agreement as long as there is an overindebtedness of AMD Saxonia within
the above meaning, or as long as there is not a liquidation surplus, or in a
bankruptcy proceeding over the assets of AMD Saxonia, it being understood that
the Sponsors and Additional Partner Companies' claims shall rank behind all
other creditors in case of any insolvency proceeding which is governed by the
provisions of the Insolvency Act (Insolvenzordnung).
SECTION 4. Bankruptcy, Insolvency, etc. In the event of any dissolution,
winding up, liquidation, reorganization, or other similar proceedings relating
to AMD Saxonia or to its creditors, as such, or to its property (whether
voluntary or involuntary, partial or complete, and whether in bankruptcy,
insolvency, compromise proceedings (Vergleichsverfahren) or any other
marshalling of the assets and liabilities of AMD Saxonia, or any sale of all or
substantially all of the assets of AMD Saxonia, or otherwise), the Senior
Liabilities shall first be paid in full before any of the Sponsors and
Additional Partner Companies shall be entitled to receive and to retain any
payment or distribution in respect of the Junior Liabilities, and in order to
implement the foregoing, (a) each of the Sponsors and the Additional Partner
Companies hereby irrevocably agrees that in such event all payments and
distributions of any kind or character in respect of the Junior Liabilities to
which such Sponsor or Additional Partner Company would be entitled if the Junior
Liabilities were not subordinated, or, in the case of the AMD Holding Junior
Liabilities, subordinated and pledged or assigned, pursuant to this Agreement,
shall be made directly to the Security Agent; (b) upon the commencement and
during the continuance of any proceedings referred to in this Section 4, the
Security Agent shall have the
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right to require any or all of the Sponsors or the Additional Partner Companies
to claim, enforce, prove, or vote in respect of the Junior Liabilities in such
manner as is directed by the Security Agent and as is permitted by applicable
law, including, without limitation, to direct that all payments and
distributions of any kind or character in respect of the Junior Liabilities to
which such Sponsor or Additional Partner Company would be entitled if the Junior
Liabilities were not subordinated (or, in the case of the AMD Holding Junior
Liabilities, subordinated and (if applicable) pledged) pursuant to this
Agreement, shall be made directly to the Security Agent; provided, that if the
Security Agent shall not have required a Sponsor or Additional Partner Company
to claim, enforce, prove, or vote in respect of any of the Junior Liabilities on
or before the day which is 10 Business Days before a date on which the failure
to so claim, enforce, prove, or vote would invalidate or otherwise materially
adversely affect the rights of such Sponsor or Additional Partner Company, such
Sponsor or Additional Partner Company shall have the right to claim, enforce,
prove, or vote in respect of such Junior Liabilities in such Sponsor's or
Additional Partner Company's sole discretion; and (c) each Sponsor and
Additional Partner Company hereby irrevocably agrees that the Security Agent
may, at its sole discretion for purposes hereof, in the name of such Sponsor,
Additional Partner Company or otherwise, demand, ▇▇▇ for, collect, receive, and
receipt for any and all such payments or distributions, and file, prove, and
vote, or consent in any such proceedings with respect to, any and all claims of
such Sponsor or Additional Partner Company relating to the Junior Liabilities.
SECTION 5. Payments Held in Trust. In the event that any of the Sponsors or
Additional Partner Companies receives any payment or other distribution of any
kind or character from AMD Saxonia or from any other source whatsoever in
respect of any of the Junior Liabilities, other than as expressly permitted by
the terms of this Agreement, such payment or other distribution shall be
received in trust for the Security Agent, and promptly turned over by such
Sponsor or Additional Partner Company to the Security Agent. Each of the
Sponsors and Additional Partner Companies will ▇▇▇▇ its books and records, and
cause AMD Saxonia to ▇▇▇▇ its books and records, as to clearly indicate that the
Junior Liabilities are subordinated in accordance with the terms of this
Agreement, and will cause to be clearly inserted in any instrument which at any
time evidences any of the Junior Liabilities a statement to the effect that the
payment thereof is subordinated in accordance with the terms of this Agreement.
Each of the Sponsors and Additional Partner Companies will execute such further
documents or instruments and take such further action as the Security Agent may
reasonably request from time to time to carry out the intent of this Agreement.
SECTION 6. Application of Payments; No Subrogation. All payments and
distributions received by the Security Agent in respect of the Junior
Liabilities in accordance with the terms hereof, to the extent received in or
converted into cash, may be applied by the Security Agent first to the payment
of any and all expenses (including reasonable attorneys' fees and legal
expenses) paid or incurred by the Security Agent in enforcing this Agreement or
in endeavouring to collect or realize upon any of the Junior Liabilities or any
security therefor in accordance with the terms hereof, and any balance thereof
shall, solely as between the Sponsors, Additional Partner Companies and the
Security Agent, be applied by the Security Agent, in the manner provided by the
Loan Agreement, toward the payment of the Senior Liabilities remaining unpaid;
but, as between AMD Saxonia and its creditors, no such payments or distributions
of any kind or character shall be deemed to be payments or distributions in
respect of the Senior Liabilities; and, notwithstanding any such payments or
distributions received by the Security Agent in respect of the Junior
Liabilities and so applied by the Security Agent toward the payment of the
Senior Liabilities, each of the Sponsors and Additional Partner Companies shall
be subrogated to the then-existing rights of the Agent, the Security Agent, and
the Banks, if any, in respect of the Senior Liabilities only at such time as (i)
the Agent, the Security Agent, and the Banks shall have received payment of the
full amount of the Senior Liabilities, as provided for in Section 9, or (ii)
this Agreement shall terminate pursuant to Section 15. Each Secured Party shall,
at the relevant Sponsor's or Additional Partner Company's request and expense
made after such time, execute and deliver to such Sponsor or Additional Partner
Company appropriate documents (without recourse or warranty whatsoever) to
evidence the transfer by subrogation to such Sponsor or Additional Partner
Company of an interest in the Senior Liabilities resulting from the application
of payments in the
6
manner contemplated by this Section 6. The obligations of the Secured Parties
under the preceding sentence shall survive any termination of this Agreement.
SECTION 7. Waivers by the Sponsors and the Additional Partner Companies. Each
of the Sponsors and Additional Partner Companies hereby waives: (a) notice of
acceptance by the Agent, the Security Agent, or any Bank of this Agreement; (b)
notice of the existence or creation or non-payment of all or any of the Senior
Liabilities; and (c) all diligence in collection or protection of or realization
upon the Senior Liabilities or any thereof or any security therefor.
SECTION 8. Obligations of the Sponsors and the Additional Partner Companies.
None of the Sponsors or the Additional Partner Companies will, without the prior
written consent of the Security Agent: (a) transfer or assign, or attempt to
enforce or collect, any Junior Liabilities or any rights in respect thereof,
except (i) that AMD Inc. may assign any Senior Liability to AMD Holding, and
(ii) that the Sponsors and Additional Partner Companies may enforce or collect
any Junior Liabilities that are expressly permitted to be paid pursuant to
Section 3; provided, that nothing in this Agreement shall be deemed to prevent
AMD Inc. from seeking damages, equitable relief or otherwise enforcing any
rights it may have against AMD Saxonia arising out of (x) any tort or
infringement of AMD Inc. tangible or intangible property rights (including
without limitation rights under applicable patent, copyright and trade secret
laws and similar principles) to the extent such tort or infringement arises
after the date of termination of the AMD Holding Wafer Purchase Agreement or (y)
a breach by AMD Saxonia of its obligations under the License Agreement to the
extent, but only to the extent, such tort or infringement arises after the date
of termination of the AMD Holding Wafer Purchase Agreement; (b) take any
collateral security for any Junior Liabilities; (c) convert any Junior
Liabilities into Equity Capital of AMD Saxonia (it being understood and agreed
that (i) the Sponsors' Loans made by AMD Holding (but not AMD Inc.) may be
converted into Equity Capital of AMD Saxonia and (ii) for the avoidance of
doubt, a repayment permitted under Section 3 (viii) shall not be considered a
conversion hereunder); or (d) commence, or join with any other creditor
commencing, any bankruptcy, reorganisation, or insolvency proceedings with
respect to AMD Saxonia.
SECTION 9. Continuing Subordination. This Agreement shall in all respects be a
continuing agreement and shall remain in full force and effect (notwithstanding,
without limitation, the dissolution of any of the Sponsors or Additional Partner
Companies, or that at any time or from time to time all Senior Liabilities may
have been paid in full), but shall automatically terminate on the Loan Agreement
Termination Date.
SECTION 10. Rights of the Agent, the Security Agent, and the Banks. The Agent,
the Security Agent, and each Bank may, from time to time, at its sole discretion
and without notice to any of the Sponsors or Additional Partner Companies, take
any or all of the following actions without affecting its or their rights under
this Agreement: (a) retain or obtain a security interest in any property of any
Person to secure any of the Senior Liabilities; (b) retain or obtain the primary
or secondary obligations of any other obligor or obligors with respect to any of
the Senior Liabilities; (c) extend or renew for one or more periods (whether or
not longer than the original period), alter or exchange any of the Senior
Liabilities, or release or compromise any obligation of any nature of any
obligor with respect to any of the Senior Liabilities; (d) compromise, settle,
release, renew, extend, indulge, amend, change, waive, modify, or supplement in
any respect any of the terms or conditions of any of the Operative Documents;
and (e) release its lien on or security interest in, or surrender, release, or
permit any substitution or exchange for, all or any part of any property
securing any of the Senior Liabilities, or extend or renew for one or more
periods (whether or not longer than the original period) or release, compromise,
alter, or exchange any obligations of any nature of any obligor with respect to
any such property.
SECTION 11. Transfer of Obligations; Enforcement. The Security Agent, the Agent,
or any Bank may, from time to time, without notice to any of the Sponsors or
Additional Partner Companies, but subject, however, to the provisions of Section
26 of the Loan Agreement, assign or transfer any or all of the Senior
Liabilities or any interest therein; and, notwithstanding any such assignment or
transfer
7
or any subsequent assignment or transfer thereof, such Senior Liabilities shall
be and remain Senior Liabilities for purposes of this Agreement, and every
immediate and successive assignee or transferee of any of the Senior Liabilities
or of any interest therein, shall, to the extent of the interest of any such
assignee or transferee in the Senior Liabilities, be entitled to the benefits of
this Agreement to the same extent as if such assignee or transferee were the
transferor. The rights of the Secured Parties hereunder shall be exercisable
solely by the Security Agent on behalf of the Secured Parties, unless either the
Security Agent is not able pursuant to applicable law to realize the practical
benefits of such rights on behalf of the Secured Parties or the limitations set
forth in this sentence would otherwise materially adversely affect the rights of
the Secured Parties hereunder.
SECTION 12. Additional Provisions. None of the Agent, the Security Agent, or
the Banks shall be prejudiced in its rights under this Agreement by any act or
failure to act of any of AMD Saxonia or any of the Sponsors or Additional
Partner Companies, or any noncompliance of AMD Saxonia or any of the Sponsors or
Additional Partner Companies with any agreement or obligation, regardless of any
knowledge thereof which the Agent, the Security Agent, or such Bank may have or
with which the Agent, the Security Agent, or such Bank may be charged; and no
action of the Agent, the Security Agent, or any Bank permitted hereunder shall
in any way affect or impair the rights of the Agent, the Security Agent, or any
Bank, and the obligations of each of the Sponsors and Additional Partner
Companies, under this Agreement. For the purposes of this subordination, Senior
Liabilities shall include all obligations of AMD Saxonia under or in connection
with any of the Operative Documents to the Agent, the Security Agent, the Paying
Agent and each Bank, notwithstanding any right or power of any AMD Saxonia or
anyone else to assert any claim or defence as to the invalidity or
unenforceability of any such obligation, and no such claim or defence shall
affect or impair the agreements and obligations of the Sponsors and Additional
Partner Companies hereunder; provided, however, that Senior Liabilities shall
not include any obligations or liabilities of AMD Saxonia which a court of
competent jurisdiction shall have determined (which determination shall be final
and unappealable) are invalid or unenforceable.
SECTION 13. Cumulative Remedies; Modifications in Writing. The remedies
provided for herein are cumulative and are not exclusive of any remedies that
may be available to the Agent or the Security Agent at law, in equity, or
otherwise. No amendment, modification, supplement, termination, or waiver of or
to any provision of this Agreement, or consent to any departure by any of the
Sponsors, Additional Partner Companies or AMD Saxonia therefrom, shall be
effective unless the same shall be in writing and signed by or on behalf of the
Agent and the Security Agent.
SECTION 14. Severability of Provisions. In case any provision of this Agreement
is invalid or unenforceable, the validity or enforceability of the remaining
provisions hereof shall remain unaffected. The parties hereto shall have an
obligation to replace any invalid provision by a valid provision which
approximates best the economic purpose of the invalid provision.
SECTION 15. Termination. This Agreement and the obligations of the parties
hereunder shall terminate on the Loan Agreement Termination Date; provided, that
such obligations shall automatically revive and be reinstated if and to the
extent that AMD Saxonia shall subsequently have obligations to any of the
Secured Parties under or arising out of any of the Financing Documents.
SECTION 16. Assignment. This Agreement shall be binding upon and shall inure to
the benefit of each party hereto and their respective successors and assigns;
provided, however, that the Security Agent, the Agent, and the Banks may
transfer their rights under this Agreement, subject, however, to the provisions
of ss. 26 of the Loan Agreement; provided, further, that none of the Sponsors or
Additional Partner Companies or AMD Saxonia shall have the right to transfer or
assign its rights under this Agreement without the prior written consent of the
Agent and the Security Agent; and provided, further, that AMD Saxonia may assign
this Agreement to the Security Agent as security for the obligations of AMD
Saxonia under the Loan Agreement and the other Operative Documents.
Notwithstanding any such assignment or transfer or any subsequent assignment or
transfer thereof, Senior Liabilities shall be and remain Senior Liabilities for
the purposes of this Agreement, and every
8
immediate and successive assignee or transferee of any of the Senior Liabilities
or of any interest therein shall, to the extent of the interest of such assignee
or transferee in the Senior Liabilities, be entitled to the benefits of this
Agreement to the same extent as if such assignee or transferee were the
transferor, subject, however, to the provisions of Section 11; provided,
however, that, in addition to its rights under Section 11, unless the Security
Agent (acting on the instructions of an Instructing Group) shall otherwise
consent in writing, the Security Agent shall have an unimpaired right, prior and
superior to that of any such assignee or transferee, to enforce this Agreement
for the benefit of the Secured Parties as to those of the Senior Liabilities
which have not been so assigned or transferred.
SECTION 17. Notice. All notices, demands, instructions, and other
communications required or permitted to be given to or made upon any party
hereto shall be in writing and shall be personally delivered or sent by
registered or certified mail, postage pre-paid, return receipt requested, or by
pre-paid telex, TWX, or telegram, or by pre-paid courier service, or by
telecopier, and shall be deemed to be given for purposes of this Agreement on
the day that such writing is delivered or sent to the intended recipient thereof
in accordance with the provisions of this Section 17. Unless otherwise specified
in a notice sent or delivered in accordance with the foregoing provisions of
this Section 17, notices, demands, instructions, and other communications in
writing shall be given to or made upon the respective parties hereto at their
respective addresses (or to their respective telex, TWX or telecopier numbers)
indicated below.
To the Security Agent:
Dresdner Bank AG, as Security Agent
▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Betreuung Unternehmenskunden
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇-▇▇▇▇
To the Agent:
Dresdner Bank Luxembourg S.A., as Agent
▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇-▇▇▇-▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Direktion
Facsimile No.: (▇▇▇) ▇▇▇▇-▇▇▇
To AMD Inc.:
Advanced Micro Devices, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile No.: (1) (▇▇▇)▇▇▇ ▇▇▇▇
To AMD Holding:
AMD Saxony Holding GmbH
Wilschdorfer Landstrasse 101
01109 Dresden
Attention: Geschaftsfuhrer
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇▇
9
To AMD Saxony LLC:
One AMD Place
Mailstop 150
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Manager
Facsimile No.: (▇▇▇) ▇▇▇ ▇▇▇▇
To AMD Admin:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Geschaftsfuhrer
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇▇
To AMD Saxonia:
AMD Saxony Manufacturing GmbH
Wilschdorfer Landstrasse 101
01109 Dresden
Attention: Geschaftsfuhrer
Facsimile No.: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇▇
SECTION 18. Relationship to Other Agreements. The rights of the Agent and the
Security Agent pursuant to this Agreement are in addition to any other rights or
remedies which the Agent and the Security Agent may have under statutory law or
other agreements between one or more of the Agent, the Security Agent, the
Banks, the Sponsors, the Additional Partner Companies and AMD Saxonia. Where
such rights and remedies are in conflict with the provision of this Agreement,
the provision of this Agreement shall prevail.
SECTION 19. Governing Law. This Agreement and all rights and obligations of the
parties arising hereunder or in connection herewith shall be governed by the
Laws of the Federal Republic of Germany.
SECTION 20. Jurisdiction. Each of the Sponsors, Additional Partner Companies
and AMD Saxonia hereby submits to the exclusive jurisdiction of the courts in
Frankfurt am Main for any dispute arising out of or in connection with this
Agreement. AMD Inc. and AMD Saxony LLC state that Advanced Micro Devices GmbH,
whose address is ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Attention:
Legal Department, Tel: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇, Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇, Telex: 841523883, is
their accredited agent for service of process and hereby undertakes to maintain
an agent for service in Germany. The foregoing submission to jurisdiction shall
not (and shall not be construed so as to) limit the rights of the Agent or the
Security Agent to take suits, actions, or proceedings against a Sponsor or an
Additional Partner Company to enforce any judgment rendered by the courts in
Frankfurt am Main in any other court or entity of competent jurisdiction where
such Sponsor or Additional Partner Company has assets, nor shall the taking of
suits, actions, or proceedings to enforce any such judgment in one or more
jurisdictions preclude the taking of enforcement proceedings in any other
jurisdiction, whether concurrently or not.
SECTION 21. Use of English Language. This Agreement has been executed in the
English language. All certificates, reports, notices, and other documents and
communications given or delivered pursuant to this Agreement shall be in the
English language and, if reasonably requested by
10
the Agent, shall be accompanied by a certified German translation promptly
thereafter. In the event of any inconsistency, the English language version of
any such document shall control.
SECTION 22. Operative Document. This Agreement is an Operative Document executed
pursuant to the Loan Agreement.
[Remainder of this page intentionally left blank]
11
IN WITNESS WHEREOF, each of the parties set out below has caused this
Agreement to be duly executed and delivered by its respective officer or agent
thereunto duly authorised as of the date first above written.
ADVANCED MICRO DEVICES, INC.
By:________________________________________
Its________________________________________
AMD SAXONY HOLDING GMBH
By:________________________________________
Its Managing Director
AMD SAXONY LLC
By:________________________________________
Its Manager
AMD SAXONY ADMIN GMBH
By:________________________________________
Its Managing Director
AMD SAXONY MANUFACTURING GMBH
By:________________________________________
Its________________________________________
DRESDNER BANK LUXEMBOURG S.A.
as Agent
By:________________________________________
Its________________________________________
DRESDNER BANK AG
as Security Agent
By:________________________________________
Its________________________________________
[Signature page to the Sponsors' Subordination Agreement]
12
