Exhibit 10.43 (h-1)
FIRST AMENDMENT
TO
SPONSORS' SUBORDINATION AGREEMENT
THIS FIRST AMENDMENT (this "Amendment"), dated 20 February 2001, is made between
ADVANCED MICRO DEVICES, INC., a corporation organized and existing under the
laws of the State of Delaware, United States of America, with its chief
executive office and principal place of business at One AMD Place, Sunnyvale,
California 94088, United States 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 MANUFACTURING GMBH, Dresden, registered in the
Commercial Register of the Dresden County Court HRB 13186 ("AMD Saxonia"),
DRESDNER BANK LUXEMBOURG S.A., as Agent (and successor to Dresdner Bank AG in
such capacity) under the Loan Agreement referred to below (in such capacity, the
"Agent") for the Banks referred to below, and DRESDNER BANK AG, as Security
Agent under such Loan Agreement (in such capacity, the "Security Agent"), for
the Secured Parties referred to below.
W I T N E S S E T H:
WHEREAS, AMD Saxonia, a wholly-owned Subsidiary of AMD Holding, which is, in
turn, a wholly-owned Subsidiary of AMD Inc., has been formed for the purpose of
constructing, owning, and operating (i) the Plant and (ii) the integrated Design
Center;
WHEREAS, in order to finance the construction of the Plant and the Design
Center, and start-up costs of the operation of the Plant, inter alia, (i) AMD
Saxonia has entered into a Syndicated Loan Agreement, dated 11 March 1997, as
amended, (the "Loan Agreement") with the Agent, the Security Agent and the Banks
from time to time party thereto providing, inter alia, for a senior secured term
facility aggregating up to DM 1,500,000,000 (one billion five hundred million
Deutsche Marks), and (ii) the Sponsors, the Agent and the Security Agent have
entered into that certain Sponsors' Support Agreement dated 11 March 1997, as
amended, (the "Sponsors' Support Agreement") providing (x) certain assurances to
the Agent and Security Agent with respect to the completion of the Project, and
(y) certain undertakings to and for the benefit of the Secured Parties;
WHEREAS, AMD Saxonia, the Agent, the Security Agent and the Banks wish, with the
consent of the Sponsors to, among other things, amend the Loan Agreement, the
Sponsors' Support Agreement and the Sponsors' Subordination Agreement;
WHEREAS, the Sponsors are willing to provide certain additional undertakings to
and for the benefit of the Secured Parties as provided in this Amendment and to
amend and supplement the Sponsors' Subordination Agreement on the terms and
subject to the conditions of this Amendment;
NOW, THEREFORE, the Sponsors, the Agent (for itself and on behalf of the Banks),
and the Security Agent (on behalf of the Secured Parties), agree as follows:
ARTICLE I
Definitions
SECTION 1.1 Definitions. Capitalized terms not otherwise defined in this
Amendment are used with the definitions assigned to them in the Sponsors'
Support Agreement.
SECTION 1.2 Construction. In this Amendment, unless the context requires
otherwise, references to Sections and Schedules are to Sections and Schedules of
the Sponsors' Support Agreement. Section headings are inserted for reference
only and shall be ignored in construing this Amendment.
ARTICLE II
Amendments
SECTION 2.1 Amendments. The Sponsors' Subordination Agreement shall be amended
and restated in the form set out in Schedule 1 to this Amendment Agreement.
ARTICLE III
Miscellaneous
SECTION 3.1 Representations and Warranties. Each of the Sponsors hereby
represents and warrants that:
(a) Organization; Corporate Power. It is duly incorporated and validly existing
under the laws of the jurisdiction of its organization, and has all
necessary power and authority to execute and deliver this Amendment and to
consummate the transactions contemplated by the Sponsors' Subordination
Agreement, as amended hereby;
(b) Corporate Authority; No Conflict. The execution and delivery by it of this
Amendment, and the performance by it of its obligations under the Sponsors'
Subordination Agreement, as amended by this Amendment, have been duly
authorized by all necessary corporate action (including any necessary
shareholder action) on its part, and do not and will not (i) violate any
provision of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to
it, or of its charter or by-laws or (ii) result in a breach of, result in a
mandatory prepayment or acceleration of indebtedness evidenced by or
secured by, or constitute a default under, any indenture or loan or credit
agreement, or any other agreement or instrument to which it is a party or
by which it or its properties may be bound, or require the creation or
imposition of any encumbrance of any nature upon or with respect to any of
the properties now owned or hereafter acquired by it; and
(c) Valid and Binding Obligations. The Sponsors' Subordination Agreement, as
amended by this Amendment, constitutes its legal, valid and binding
obligation,
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enforceable against it in accordance with its terms subject, however, to
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and, as to enforceability, by
general equitable principles.
SECTION 3.2 Repetition of Representation and Warranties. The representations and
warranties contained in Sections 12.1 and 12.2 of the Sponsors' Support
Agreement shall be repeated on the date hereof except to the extent any such
representation and warranty expressly relates solely to an earlier date.
SECTION 3.3 Miscellaneous.
(a) This Amendment is limited as specified and, except as expressly herein
provided, shall not constitute a modification, amendment or waiver of any
other provision of 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.
(b) This Amendment shall be an Operative Document under and for purposes of the
Sponsors' Support Agreement.
(c) The form and execution of this Amendment and all rights and obligations of
the parties arising hereunder shall be governed by the laws of the Federal
Republic of Germany.
(d) This Amendment has been executed in the English language.
(e) This Amendment may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and the
same instrument.
[Remainder of 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/ Robert J. Rivet
-------------------
Its Senior Vice President and Chief Financial Officer
AMD SAXONY HOLDING GMBH
By /s/ Thomas M. McCoy
-------------------
Its Managing Director
AMD SAXONY MANUFACTURING GMBH
By /s/ James Doran
---------------
Its Managing Director
DRESDNER BANK LUXEMBOURG S.A., as
Agent
/s/ Marcus Nelgen /s/ Robert von Finckenstein
- ---------------------------------------------
DRESDNER BANK AG, as Security Agent
/s/ Marcus Nelgen /s/ Robert von Finckenstein
- ----------------------------------------------
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Schedule 1
Amended and restated Sponsors' Subordination Agreement
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 One AMD Place, Sunnyvale,
California 94088, United States 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 MANUFACTURING GMBH, Dresden, registered in the
Commercial Register of the Dresden County Court HRB 13186 ("AMD Saxonia"), and
DRESDNER BANK LUXEMBOURG S.A. ("Dresdner"), as Agent (in such capacity, the
"Agent") for the Banks under the Loan Agreement referred to below and DRESDNER
BANK AG, as Security Agent (in such capacity, the "Security Agent") for the
Secured Parties under such Loan Agreement.
W I T N E S S E T H :
WHEREAS, AMD Saxonia, a wholly-owned Subsidiary (such and other capitalised
terms being used herein with the meanings provided in Section 1.1), of AMD
Holding, which is, in turn, a wholly-owned Subsidiary of AMD Inc., has been
formed for the purpose of constructing, owning, and operating (i) the Plant and
(ii) the integrated Design Center (the construction, ownership, and operation of
the Plant and the Design Center being hereinafter called the "Project");
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
expect to make substantial subordinated loans to, and AMD Holding expects to
make 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 DM1,500,000,000 (one
billion five hundred million Deutsche Marks);
WHEREAS, the Sponsors desire that the Project be constructed and completed and
are entering into this Agreement with AMD Saxonia, the Agent, 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, a condition precedent to the initial Advance is, inter alia, the
execution by the Sponsors of this Agreement, and, in extending credit to AMD
Saxonia under the Loan Agreement, the Banks are relying on the undertakings of
the Sponsors contained herein;
NOW, THEREFORE, the Sponsors, 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):
"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 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.
"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 either of the Sponsors (including, in the case of AMD Holding, any AMD
Holding Junior Liabilities), 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.
"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 third 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 or any other Person, to collect
such interest.
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"Sponsors" has the meaning assigned to such term in the introduction to
this Agreement.
"Sponsors' Support Agreement" means the Sponsors' Support Agreement, of
even date herewith, between the Sponsors, the Agent, and the Security
Agent, 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, (i) any reference to
an Operative Document shall be to such Operative Document as the same may have
been or from time to time may be amended, varied, re-issued, replaced, novated
or supplemented, in each case in accordance with the terms thereof and hereof,
and in effect; (ii) any statutory provisions shall be construed as references to
those provisions as amended, modified, re-enacted, or replaced from time to
time; (iii) words importing a gender include every gender; and (iv) references
to Sections are to Sections of this Agreement. Section headings are inserted for
reference only and shall be ignored in construing this Agreement. A time of day,
unless otherwise specified, shall be construed as a reference to Frankfurt am
Main time.
SECTION 2. Obligations of Sponsors. The Sponsors 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 either
Sponsor 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 DM50,000,000 (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;
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(vii) with effect from 1 January 2002, payments of principal and
interest under the Revolving Loan Facility Agreement; and
(viii) the repayment of Sponsors' Loans in an amount equal to the amount
of any increase in AMD Saxonia's equity capital paid in in cash
between 30 November 2000 and 31 December 2000;
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 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. 63
Act on Limited Liability Companies (GmbHG), 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-, schlussbilanz). 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 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' 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 either of the Sponsors 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 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 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 right to
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require either or both of the Sponsors 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 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 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, such Sponsor shall have the right to claim, enforce, prove, or
vote in respect of such Junior Liabilities in such Sponsor's sole discretion;
and (c) each Sponsor hereby irrevocably agrees that the Security Agent may, at
its sole discretion for purposes hereof, in the name of such Sponsor or
otherwise, demand, sue 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 relating to the
Junior Liabilities.
SECTION 5. Payments Held in Trust. In the event that either of the Sponsors
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 to the Security Agent. Each of
the Sponsors will mark its books and records, and cause AMD Saxonia to mark 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 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 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 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 request and expense made after such time, execute and
deliver to such Sponsor appropriate documents (without recourse or warranty
whatsoever) to evidence the transfer by subrogation to such Sponsor of an
interest in the Senior Liabilities resulting from the application of payments in
the 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. Each of the Sponsors 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.
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SECTION 8. Obligations of the Sponsors. Neither of the Sponsors 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 AMD Inc. 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 of AMD Saxonia and
(ii) for the avoidance of doubt, a repayment permitted under Section 3 (ix)
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 either of the Sponsors 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 either of the Sponsors, 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 either of the Sponsors,
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 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.
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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 either of the Sponsors, or any
noncompliance of AMD Saxonia or either of the Sponsors 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, 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 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 either of the
Sponsors 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 Section 26 of the Loan Agreement; provided, further, that neither of the
Sponsors nor 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 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-
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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
Ostra Allee 9
01067 Dresden
Attention: Betreuung Unternehmenskunden
Facsimile No.: (49) 351 489-1300
To the Agent:
Dresdner Bank Luxembourg S.A., as Agent
26, rue du Marche-aux-Herbes
L-2097 Luxembourg
Attention: Direktion
Facsimile No.: (352) 4760-824
To AMD Inc.:
Advanced Micro Devices, Inc.
One AMD Place
Sunnyvale, California 94088
Attention: General Counsel
Facsimile No.: (1) (408)774 7399
To AMD Holding:
AMD Saxony Holding GmbH
Wilschdorfer Landstrasse 101
01109 Dresden
Attention: Geschaftsfuhrer
Facsimile No.: (49) 351 277 91300
To AMD Saxonia:
AMD Saxony Manufacturing GmbH
Wilschdorfer Landstrasse 101
01109 Dresden
Attention: Geschaftsfuhrer
Facsimile No.: (49) 351 277 91300
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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, 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 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. states that
Advanced Micro Devices GmbH, whose address is Rosenheimerstrasse 143b, 81671
Munich, Germany, Attention: Legal Department, Tel: +49 89 450 530, Fax: +49 89
406 490, Telex: 841523883, is its accredited agent for service of process and
hereby undertakes to maintain an agent for service in Germany. The foregoing
submission to jurisdiction shall not (and shall not be construed so as to) limit
the rights of the Agent or the Security Agent to take suits, actions, or
proceedings against a Sponsor to enforce any judgment rendered by the courts in
Frankfurt am Main in any other court or entity of competent jurisdiction where
such Sponsor has assets, nor shall the taking of suits, actions, or proceedings
to enforce any such judgment in one or more jurisdictions preclude the taking of
enforcement proceedings in any other jurisdiction, whether concurrently or not.
SECTION 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 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.
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
_____________________________________________
AMD SAXONY MANUFACTURING GMBH
_____________________________________________
DRESDNER BANK AG, as Agent and Security Agent
_____________________________________________
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