GUARANTEE AGREEMENT

Exhibit 10.2

Execution Copy

 

GUARANTEE AGREEMENT

 

dated 21 April 2004

as amended by Amendment Agreements dated 10 October 2006 and 25 February 2009

between

ADVANCED MICRO DEVICES, INC.

and

THE FOUNDRY COMPANY

as Guarantors

AMD FAB 36 LIMITED LIABILITY COMPANY & CO. KG

as Borrower

DRESDNER BANK AG in Berlin

as Security Agent

DRESDNER BANK AG, NIEDERLASSUNG LUXEMBURG

as Facility Agent

and

AMD NETHERLANDS TECHNOLOGIES B.V.

Milbank, Tweed, Hadley & McCloy LLP

Frankfurt

CONTENTS

 

 

THIS GUARANTEE AGREEMENT is made between:

 

(1)	Advanced Micro Devices, Inc. , a corporation organised under the laws of the state of Delaware, United States of America, having its principal place of business in Sunnyvale, California, United States of America (“ AMD Inc. ”);

 

(2)	The Foundry Company , an exempted company incorporated under the laws of the Cayman Islands, with its registered and principal office at Maple Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY-1104, Cayman Islands] (“ FoundryCo ”);

 

(3)	AMD Fab 36 Limited Liability Company & Co. KG , a German limited partnership with its business address at Wilschdorfer Landstrasse 101, 01109 Dresden, Germany, registered at the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) in Dresden under HRA 5255 (the “ Borrower ”);

 

(4)	Dresdner Bank AG in Berlin as Security Agent under German law pursuant to and in accordance with Clause 24.1 ( Appointment of the Facility Agent and the Security Agent ) of the Facility Agreement (the “ Security Agent ”);

 

(5)	Dresdner Bank AG, Niederlassung Luxemburg as Facility Agent for the Lenders pursuant to and in accordance with Clause 24.1 ( Appointment of the Facility Agent and the Security Agent ) of the Facility Agreement (the “ Facility Agent ”); and

 

(6)

AMD Netherlands Technologies B.V., a limited liability company organized under the laws of The Netherlands with its business address at Locatellikade 1, 1076AZ Amsterdam, The Netherlands, registered at the Chamber of Commerce ( Kamer van Koophandel ) of Amsterdam under number file number 34316285 (“ Dutch BV 1 ”).

WHEREAS :

AMD Inc. and FoundryCo enter into this Guarantee Agreement in favour of the other parties hereto in order to ensure that the Finance Parties shall receive payment of all amounts expressed to be payable by the Borrower under the Facility Agreement, any other Finance Document to which it is a party or the Subsidy Agreements in the currency and at the place provided therein at its stated or accelerated maturity and irrespective of the factual or legal circumstances and motives by reason of which the Borrower may fail to pay any of the Guarantors’ Liabilities (as each are defined below).

IT IS AGREED as follows:

 

1.	DEFINITIONS AND INTERPRETATION

 

1.1	Definitions

In this Guarantee Agreement:

“ Agent ” means “ Agent ” (Agent), as this term is defined in the Facility Agreement.

“ AMD Saxony Group ” means AMD Saxony LLC, Delaware, United States of America, AMD Saxony Holding GmbH, Dresden, and all of their Subsidiaries.

“ Amendment Date ” means “ Änderungsdatum ” (Amendment Date) as this term is defined in the Facility Agreement.

 

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“ Assignment Agreement ” means “ Abtretung von Wesentlichen US-Verträgen ” (Assignment of Material US Contracts), as this term is defined in the Facility Agreement.

“ Auditor ” means “ Wirtschaftsprüfer ” (Auditor), as this term is defined in the Facility Agreement.

“ Authorisation ” means “ Genehmigung ” (Authorisation), as this term is defined in the Facility Agreement.

“ Base Financial Statements ” means “ Basis-Abschlüsse ” (Base Financial Statements), as this term is defined in the Facility Agreement.

“ Borrower ” means AMD Fab 36 Limited Liability Company & Co. KG.

“ Business Day ” means “ Bankarbeitstag ” (Business Day), as this term is defined in the Facility Agreement.

“ Business Plan ” means “ Geschäftsplan ” (Business Plan), as this term is defined in the Facility Agreement.

“ Cash Shortfalls ” means “ Barmittel-Defizite ” (Cash Shortfalls), as this term is defined in the Facility Agreement.

“ Charged Assets ” means “ Besichertes Vermögen ” (Charged Assets), as this term is defined in the Facility Agreement.

“ Collateral Security ” means any Security provided or assumed by a person in favour of the Security Agent securing the Guarantor’s Liabilities, whether generally or to a limited extent only and whether created or entered into before, on or after the date of this Guarantee Agreement.

“ Commitment ” means “ Kreditzusage ” (Commitment), as this term is defined in the Facility Agreement.

“ Compliance Certificate ” means a certificate substantially in the form set out in Schedule 1 ( Form of Compliance Certificate ).

“ Credit Rating ” means “ Rating ” (Credit Rating), as this term is defined in the Facility Agreement.

“ Dangerous Substance ” means “ Gefährliche Substanzen ” (Dangerous Substance), as this term is defined in the Facility Agreement.

“ Default ” means “ Kündigungstatbestand ” (Default), as this term is defined in the Facility Agreement.

“ Environment ” means “ Umwelt ” (Environment), as this term is defined in the Facility Agreement.

“ Environmental Claim ” means “ Umweltansprüche ” (Environmental Claim), as this term is defined in the Facility Agreement.

“ Environmental Contamination ” means each of the following and their consequences:

 

(a)

any release, discharge, emission, leakage or spillage of any Dangerous Substance at or from any site owned, leased, occupied or used by the Guarantor into any part of the Environment; or

 

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(b)

any accident, fire, explosion or sudden event at any site owned, leased, occupied or used by the Guarantor which is directly or indirectly caused by or attributable to any Dangerous Substance; or

 

(c)

any other pollution of the Environment arising at or from any site owned or occupied by the Guarantor.

“ Environmental Law ” means “ Umweltrecht ” (Environmental Law), as this term is defined in the Facility Agreement.

“ Environmental License ” means “ Umweltgenehmigung ” (Environmental License), as this term is defined in the Facility Agreement.

“ Equipment ” means “ Anlagen ” (Equipment), as this term is defined in the Facility Agreement.

“ EU Notification Approval ” means “ EU-Genehmigung ” (EU Notification Approval), as this term is defined in the Facility Agreement.

“ Event of Default ” means “ Kündigungsgrund ” (Event of Default), as this term is defined in the Facility Agreement.

“ Exit Agreement ” means “ Ausscheidensvereinbarung ” (Exit Agreement), as this term is defined in the Amendment Agreement.

“ Facility ” means “ Kredit ” (Facility), as this term is defined in the Facility Agreement.

“ Facility Agreement ” means a term loan facility agreement of up to EUR700,000,000 dated 21 April 2004, as amended from time to time, made amongst, inter alia , the Borrower, the Lenders, Dresdner Bank AG, Niederlassung Luxemburg as Facility Agent and Dresdner Bank AG in Berlin as Security Agent and Reporting Agent (the “ Facility Agreement ”).

“ Federal/State Guarantee ” means “ Bundes/Landesbürgschaft ” (Federal/State Guarantee), as this term is defined in the Facility Agreement.

“ Federal/State Guarantor Decision ” means “ Bürgschaftsentscheidung ” (Federal/State Guarantor Decision), as this term is defined in the Facility Agreement.

“ Federal/State Guarantors ” means “ Bundes-/Landesbürgen ” (Federal/State Guarantors), as this term is defined in the Facility Agreement.

“ Finance Documents ” means this Guarantee Agreement, the Facility Agreement, any Fee Letter, any other Security Document and any other document designated as such by the Facility Agent and the Borrower and “ Finance Document ” means any of them.

“ Facility Office ” means “ Kreditgeschäftsstelle ” (Facility Office), as this term is defined in the Facility Agreement.

 

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“ Fee Letters ” means “ Gebührenvereinbarungen ” (Fee Letters), as this term is defined in the Facility Agreement.

“ Finance Party ” means “ Finanzierungspartei ” (Finance Party), as this term is defined in the Facility Agreement.

“ Financial Indebtedness ” means “ Finanzverbindlichkeit ” (Financial Indebtedness), as this term is defined in the Facility Agreement.

“ FoundryCo Group ” means “ FoundryCo Gruppe ” (FoundryCo Group), as this term is defined in the Facility Agreement.

“ FoundryCo Group Permitted Business ” means, in relation to FoundryCo and the FoundryCo Group collectively, the business of a silicon foundry, including the design, development, manufacture, marketing and sales of integrated circuits, together with any activity which is ancillary or incidental to any of the above.

“ Funding Agreement ” means “ Finanzausstattungsvertrag ” (Funding Agreement), as this term is defined in the Facility Agreement.

“ General Partner ” means “ Komplementär ” (General Partner), as this term is defined in the Facility Agreement.

“ German Subsidiaries ” means, collectively or, where the context requires, individually, each Subsidiary of FoundryCo (other than a member of the AMD Saxony Group) incorporated, established or formed in Germany.

“ Group ” means “ Gruppe ” (Group), as this term is defined in the Facility Agreement.

“ Group Consolidated Cash ” means for any fiscal month of AMD Inc. the amount of all cash, cash equivalents and short-term investments of AMD Inc. (other than amounts which are “restricted cash” within the meaning of US GAAP, including cash and cash equivalents which are the subject of Security in favour of any party (other than Transaction Security); this exclusion shall however not apply to Security in favour of any relevant account bank constituted by (i) application of standard terms and conditions of financial institutions, (ii) other standard and customary terms and conditions or (iii) operation of law, in each case in respect of accounts which are not subject to any requirement to maintain a minimum balance on such accounts), FoundryCo and all of their respective Subsidiaries for any periods during which the consolidated results of FoundryCo must be consolidated with those of AMD Inc. for the purposes of the financial statements referred to in paragraph (a) of Clause 11.1 ( Financial Statements ) in accordance with US GAAP, calculated employing the same method applied in calculating the annual audited and quarterly unaudited consolidated financial statements of AMD Inc. in accordance with the terms of the Guarantee Agreement, less the aggregate amount of all outstandings under any third-party revolving credit facility agreement (or third party term loan agreement for borrowed money with an original maturity of up to one (1) year) of AMD Inc. and any member of the Group.

“ Group Permitted Business ” means, in relation to AMD Inc. and the Group collectively, the design, development, manufacture, marketing and sales of integrated circuits, together with any activity which is ancillary or incidental to any of the above, and includes the FoundryCo Group Permitted Business.

 

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“ Group Structure Chart ” means “ Schaubild zur Gruppenstruktur ” (Group Structure Chart), as this term is defined in the Facility Agreement.

“ Guarantee ” means the irrevocable and unconditional guarantee issued by the Guarantors pursuant to the terms of this Guarantee Agreement.

“ Guaranteed Liabilities ” means all and any sums that may now be, or might at any time in the future become, due, owing, incurred or payable, whether actually or contingently, by the Borrower to the Finance Parties under or pursuant to the Facility Agreement or any other Finance Document to which the Borrower is a party including, without limitation, on account of principal, interest, fees, expenses, indemnity payments, losses or damages and irrespective of:

 

(a)

the capacity (whether as principal, agent, trustee, beneficiary, partner or otherwise) of the Borrower or any Finance Party;

 

(b)

whether the Borrower is liable as principal debtor or as surety;

 

(c)

whether the Borrower is liable alone or jointly and/or severally with any other person; and

 

(d)

whether originally owing to a Finance Party or purchased or otherwise acquired by it in accordance with the terms of the Facility Agreement.

“ Guarantors ” means AMD Inc. and FoundryCo, and “Guarantor” means any of them.

“ Guarantors’ Liabilities ” means the Guaranteed Liabilities and the Indemnified Liabilities.

“ Indemnified Liabilities ” means all and any sums that may now be, or might at any time in the future become, due, owing, incurred or payable, whether actually or contingently, by the Borrower under or pursuant to the Subsidy Agreements as a result of any repayment claim brought by the Federal Republic of Germany or the Free State of Saxony ( Freistaat Sachsen ) in connection with any public allowances or grants ( Investitionszuschüsse / Investitionszulagen ) provided to the Borrower including, without limitation, on account of principal, interest, fees, expenses, indemnity payments, losses or damages and irrespective of:

 

(a)

the capacity (whether as principal, agent, trustee, beneficiary, partner or otherwise) of the Borrower or the Security Agent;

 

(b)

whether the Borrower is liable as principal debtor or as surety; and

 

(c)

whether the Borrower is liable alone or jointly and/or severally with any other person.

“ Information Memorandum ” means “ Information Memorandum ” (Information Memorandum), as this term is defined in the Facility Agreement.

“ Insolvency ” in relation to any person, refers to that person undergoing or being subject to any winding-up, bankruptcy, receivership, administration, re-organisation, scheme of arrangement or composition, moratorium, assignment for the benefit of creditors or any analogous event or proceeding.

“ Insurance Adviser ” means “ Versicherungsberater ” (Insurance Adviser), as this term is defined in the Facility Agreement.

 

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“ Insurance Report ” means “ Versicherungsbericht ” (Insurance Report), as this term is defined in the Facility Agreement.

“ Intellectual Property ” means “ Geistiges Eigentum ” (Intellectual Property), as this term is defined in the Facility Agreement.

“ Intellectual Property Rights ” means “ Immaterialgüterrechte ” (Intellectual Property Rights), as this term is defined in the Facility Agreement.

“ Interest Period ” means “ Zinsperiode ” (Interest Period), as this term is defined in the Facility Agreement.

“ Lender ” means “ Kapitalgeber ” (Lender), as this term is defined in the Facility Agreement.

“ License Agreement ” means “ Lizenzvertrag ” (License Agreement), as this term is defined in the Facility Agreement.

“ Limited Partners ” means “ Kommanditisten ” (Limited Partners), as this term is defined in the Facility Agreement.

“ Loan ” means “ Kreditbetrag ” (Loan), as this term is defined in the Facility Agreement.

“ Majority Lenders ” means “ Kreditgebermehrheit ” (Majority Lenders), as this term is defined in the Facility Agreement.

“ Management Plan ” means “ Managementplan ” (Management Plan), as this term is defined in the Facility Agreement.

“ Material Adverse Effect ” means “ Wesentliche Nachteilige Veränderung ” (Material Adverse Effect), as this term is defined in the Facility Agreement.

“ Material Subsidiaries ” means, collectively or, where the context requires, individually:

 

(a)

the Borrower;

 

(b)

AMD Saxony Limited Liability Company & Co. KG; and

 

(c)

any other member of the Group and the FoundryCo Group, including each Subsidiary of a Guarantor, which meets any of the following requirements:

 

(i)

a Guarantor’s and its Subsidiaries’ investment in and advances to such other member of the Group or the FoundryCo Group exceed five (5)  per cent . of the total assets of the Group or the FoundryCo Group, respectively, each consolidated as of the end of the most recently completed fiscal year;

 

(ii)

a Guarantor’s and its Subsidiaries’ proportionate share of the total assets (after intercompany eliminations) of such other member of the Group or the FoundryCo Group exceeds five (5)  per cent . of the total assets of the Group or the FoundryCo Group, respectively, each consolidated as of the end of the most recently completed fiscal year; or

 

(iii)

a Guarantor’s and its Subsidiaries’ earnings from continuing operations before income taxes, extraordinary items and the cumulative effect of a

 

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change in accounting principles of such other member of the Group or the FoundryCo Group exceeds five (5)  per cent . of such earnings of the Group or the FoundryCo Group, respectively, each consolidated for the most recently completed fiscal year.

“ Month ” means “ Monat ” (Month), as this term is defined in the Facility Agreement.

“ New German KG ” means “ Neu-KG ” (New German KG) as this term is defined in the Facility Agreement.

“ Obligor ” means “ Verpflichteter ” (Obligor), as this term is defined in the Facility Agreement.

“ Original Lenders ” means “ Ursprüngliche Kreditgeber ” (Original Lenders), as this term is defined in the Facility Agreement.

“ Other Surety ” means any person (other than the Guarantors, the Borrower or the Security Agent) who is a party to any Collateral Security.

“ Participation ” means “Beteiligung” (Participation), as this term is defined in the Facility Agreement.

“ Participation Agreement ” means “ Beteiligungsvereinbarung ” (Participation Agreement), as this term is defined in the Facility Agreement.

“ Partnership Agreement ” means “ Gesellschaftsvertrag ” (Partnership Agreement), as this term is defined in the Facility Agreement.

“ Partnership Interest Pledges ” means “ Verpfändung der Gesellschaftsanteile ” (Partnership Interest Pledges), as this term is defined in the Facility Agreement.

“ Permitted Business ” means “ Zulässiger Geschäftsbetrieb ” (Permitted Business), as this term is defined in the Facility Agreement.

“ Permitted Indebtedness ” means “ Zulässige Verbindlichkeiten ” (Permitted Indebtedness), as this term is defined in the Facility Agreement.

“ Permitted Security ” means “ Zulässige Sicherheiten ” (Permitted Security), as this term is defined in the Facility Agreement.

“ Project ” means “ Projekt ” (Project), as this term is defined in the Facility Agreement.

“ Project Documents ” means “ Projektdokumente ” (Project Documents), as this term is defined in the Facility Agreement.

“ Protected Party ” means “ Geschützte Partei ” (Protected Party), as this term is defined in the Facility Agreement.

“ Qualifying Lenders ” means “ Qualifizierte Kreditgeber ” (Qualifying Lenders), as this term is defined in the Facility Agreement.

“ Quarter Date ” means “ Quartalstag ” (Quarter Date), as this term is defined in the Facility Agreement.

 

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“ Relevant GAAP ” means:

 

(a)

in respect of the Borrower, German GAAP;

 

(b)

in respect of each of the Guarantors, US GAAP; and

in respect of any other member of the Group or the FoundryCo Group (either alone or including its Subsidiaries on a consolidated basis) the generally accepted accounting principles and practices of its jurisdiction of incorporation, formation or establishment.

“ Relevant Subsidiaries ” means, collectively or, where the context requires, individually, New German KG, the General Partner, AMD Fab 36 Holding GmbH, AMD Fab 36 Admin GmbH and the Borrower.

“ Repeating Representations ” means each of the representations set out in Clause 10.2 ( Status ) to Clause 10.8 ( Governing Law and Enforcement ) (inclusive), Clause 10.11 ( No Default ) to Clause 10.23 ( No Security ) (inclusive) and Clause 10.27 ( Management Plans ) to Clause 10.32 ( Security from the Borrower ) (inclusive).

“ Reporting Agent ” means “ Berichtsagentin ” (Reporting Agent), as this term is defined in the Facility Agreement.

“ Revolving Credit Agreement ” means “ Gesellschafter-Barkreditvertrag ” (Revolving Credit Agreement), as this term is defined in the Facility Agreement.

“ SEC ” means the United States Securities and Exchange Commission.

“ Security ” means “Sicherheiten” (Security), as this term is defined in the Facility Agreement.

“ Security Document ” means “ Sicherheitendokument ” (Security Document), as this term is defined in the Facility Agreement.

“ Share Pledges ” means “Anteilsverpfändungen” (Share Pledges), as this term is defined in the Facility Agreement.

“ Signing Date ” means “ Tag der Unterzeichnung ” (Signing Date), as this term is defined in the Facility Agreement.

“ Site ” means “ Betriebsgrundstück ” (Site), as this term is defined in the Facility Agreement.

“ Subordinated Loan ” means “ Nachrangige Darlehen ” (Subordinated Loan), as this term is defined in the Facility Agreement.

“ Subordinated Loan Agreement ” means “ Gesellschafter-Tilgungskreditvertrag ” (Subordinated Loan Agreement), as this term is defined in the Facility Agreement.

“ Subordination Agreement ” means “ Nachrang- und Kapitalbelassungsvereinbarung ” (Subordination Agreement), as this term is defined in the Facility Agreement.

“ Subsidiary ” means “ Tochtergesellschaft ” (Subsidiary), as this term is defined in the Facility Agreement.

 

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“ Subsidy Agreement ” means “ Zuschußvertrag ” (Subsidy Agreement), as this term is defined in the Facility Agreement.

“ Step Plan ” means “ Ablaufplan ” (Step Plan), as this term is defined in the Facility Agreement.

“ Tax ” means “ Steuern ” (Tax), as this term is defined in the Facility Agreement.

“ Tax Credit ” means “ Steuergutschrift ” (Tax Credit), as this term is defined in the Facility Agreement.

“ Tax Deduction ” means “ Steuerabzug ” (Tax Deduction), as this term is defined in the Facility Agreement.

“ Tax Payment ” means “ Steuerzahlung ” (Tax Payment), as this term is defined in the Facility Agreement.

“ Technical Completion ” means “ Technische Fertigstellung ” (Technical Completion), as this term is defined in the Facility Agreement.

“ Transaction Document ” means “ Transaktionsdokument ” (Transaction Document), as this term is defined in the Facility Agreement.

“ Transaction Security ” means “ Transaktionssicherheiten ” (Transaction Security), as this term is defined in the Facility Agreement.

“ Treaties ” means “ Abkommen ” (Treaties), as this term is defined in the Facility Agreement.

“ US GAAP ” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), as applicable.

“ Utilization Request ” means “ Ziehungsnotiz ” (Utilization Request), as this term is defined in the Facility Agreement.

 

1.2	Interpretation

 

(a)

Any reference in this Guarantee Agreement to:

 

(i)

the “ Security Agent ”, “ Facility Agent ”, the “ Borrower ” or the “ Guarantor ” shall be construed so as to include its successors in title, permitted assigns and permitted transferees;

 

(ii)

the “ Facility Agreement ” or any other agreement or instrument is a reference to the Facility Agreement or other agreement or instrument as amended, supplemented, restated, novated or otherwise modified from time to time;

 

(iii)

a “ person ” includes any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) or two or more of the foregoing;

 

(iv)

a provision of law is a reference to that provision as amended or re-enacted;

 

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and

 

(v)

unless a contrary indication appears, a time of day is a reference to Frankfurt am Main time.

 

(b)

Section, Clause and Schedule headings are for ease of reference only.

 

(c)

A capitalised term used in this Guarantee Agreement or in any notice given under or in connection with this Guarantee Agreement and not otherwise defined herein has the meaning ascribed to such term in the Facility Agreement.

 

2.

GUARANTEE

 

(a)

The Guarantors hereby irrevocably and unconditionally guarantee, jointly and severally ( als Gesamtschuldner ), the due and punctual payment in full to the Lenders (acting through the Security Agent), without set-off or deduction, of the Guaranteed Liabilities in accordance with, and in the currency or respective currencies in which the same are payable under, the terms of the relevant Finance Documents. Payment shall be made within three (3) Business Days of demand made with a Guarantor to such account in Germany as the Security Agent shall specify in writing.

 

(b)

The Guarantors hereby irrevocably and unconditionally undertake, jointly and severally ( als Gesamtschuldner ), to indemnify, within three (3) Business Days of demand by the Borrower or the Security Agent, the Borrower and any other party to this Guarantee Agreement against any cost, loss or liability incurred by that party as a result of any repayment claim brought by the Federal Republic of Germany or the Free State of Saxony ( Freistaat Sachsen ) in connection with any public allowances or grants ( Investitionszuschüsse / Investitionszulagen ) provided to the Borrower pursuant to a Subsidy Agreement.

 

(c)

FoundryCo hereby irrevocably and unconditionally guarantees the due and punctual payment in full to Dutch BV 1 of all amounts owing to Dutch BV 1 under the Wafer Supply Agreement, without set-off or deduction, in accordance with, and in the currency or respective currencies in which the same are payable under, the terms of the Wafer Supply Agreement. FoundryCo undertakes to make payment to Dutch BV 1 within three (3) Business Days of written demand by the Security Agent made with FoundryCo, to such account in Germany as the Security Agent shall specify in writing.

 

3.	PAYMENT ON FIRST DEMAND

Each of the Guarantors undertakes to effect payment hereunder promptly upon receipt of the Security Agent’s first written demand and its confirmation in writing that the amount claimed corresponds to the Guarantors’ Liabilities.

 

4.	PRIMARY OBLIGATION

The Guarantee constitutes the Guarantors’ primary obligation ( Garantie) (and not a surety guarantee obligation ( Bürgschaft )) to make payment to the Security Agent in accordance with the terms of this Guarantee Agreement, under any and all circumstances, regardless of the validity, legality or enforceability of the Facility Agreement or any other Finance Document. Demands may be made under this Guarantee Agreement from time to time and may be enforced irrespective of whether any steps or proceedings are or will be taken against the Borrower or any Other Surety to recover amounts claimed under this Guarantee Agreement.

 

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5.	CONTINUING SECURITY

This Guarantee Agreement shall be a continuing security until all of the Guarantors’ Liabilities have been paid, discharged or performed in full and shall not be satisfied by any intermediate discharge or payment of or on account of the Guarantors’ Liabilities or any of them or any settlement of accounts between the Finance Parties and the Borrower or any Other Surety or the Federal Republic of Germany, the Free State of Saxony ( Freistaat Sachsen ), the Agents and the Borrower.

 

6.	UNCONDITIONAL GUARANTEE

 

6.1	Absolute Payment Obligation

The Guarantors’ liability hereunder shall be absolute and unconditional in all circumstances and shall not be discharged, impaired or otherwise affected by any defences, exceptions, rights of withholding or counterclaims which may be available to the Borrower, including without limitation, any one or more of the following (whether occurring with or without the consent of, or notice to, any person):

 

(a)

the Facility Agreement or any Collateral Security being or becoming wholly or partially illegal, void, voidable, subject to a right of rescission ( Anfechtung ) or unenforceable for any reason whatsoever;

 

(b)

any absence or insufficiency of corporate resolutions relating to the Facility Agreement;

 

(c)

any inadequate representation of the Borrower;

 

(d)

any absence of licenses or other authorisations or any factual or legal restrictions or limitations existing or introduced in the country of incorporation, establishment or formation of the Borrower;

 

(e)

the Security Agent holding, taking, renewing or extending any Collateral Security at any time;

 

(f)

any variation, amendment, modification, replacement, termination, waiver, release, discharge, exchange, assignment or transfer of, or other dealing with, the Facility Agreement, this Guarantee Agreement or any Collateral Security (however fundamental and including, without limitation, any increase in any amount due or owing thereunder or in the rate of interest or any other sum payable thereunder or any prejudice to or loss of any rights of subrogation);

 

(g)

any time, credit or other indulgence being granted to, or any release of or composition or other arrangement with, the Borrower or any Other Surety;

 

(h)

any inability, omission or neglect (intentional or otherwise) on the part of the Security Agent to take or perfect, or on the part of the Borrower or any other person to give, any Collateral Security agreed or intended to be taken or given or any such inability, omission or neglect on the part of the Security Agent to enforce the Agreement or any Collateral Security;

 

(i)

any right of set-off ( Aufrechnung ), right of withholding or retention ( Zurückbehaltungsrecht ) or similar rights of the Borrower or any third party on behalf of the Borrower;

 

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(j)

any acquiescence, negligence or mistake on the part of an Agent;

 

(k)

the Lenders or any Agent being able to raise any right of combination of accounts, set-off or similar rights in view of any Guarantor’s Liabilities; and

 

(l)

any other act, fact, event or omission which but for this provision might operate to discharge, impair or otherwise affect the Guarantors’ liability hereunder.

 

6.2	Unrestricted Right of Enforcement

The Guarantors’ obligations hereunder are in addition to and not in substitution for any Collateral Security which the Security Agent may now or hereafter hold. This Guarantee Agreement may be enforced without the Security Agent first having recourse to any such Collateral Security and without having to take any steps or proceedings or exhaust any rights against the Borrower or any Other Surety, or may be enforced for any balance due to the Security Agent after having resorted to any one or more such means of obtaining payment and discharge of all or any part of the Guarantors’ Liabilities.

 

7.

TAXES

 

7.1

Indemnity

 

(a)

The Guarantors, as joint and several debtors ( als Gesamtschuldner ), shall (within three (3) Business Days of demand by the Security Agent) pay to the Protected Party an amount equal to the loss, liability or cost that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of withholding Tax, stamp duty, registration and other similar Taxes by that Protected Party in respect of a Finance Document.

 

(b)

Paragraph (a) above shall not apply:

 

(i)

with respect to any Tax assessed on a Lender:

 

(A)

under the law of the jurisdiction in which that Lender is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Lender is treated as resident for tax purposes; or

 

(B)

under the law of the jurisdiction in which that Lender’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,

if in either case that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Lender; or

 

(ii)

to the extent a loss, liability or cost:

 

(A)

is compensated for by an increased payment under Clause 7.2 ( Gross-up ); or

 

(B)

would have been compensated for by an increased payment under Clause 7.2 ( Gross-up ) but was not so compensated solely because one of the exclusions in paragraph (d) of Clause 7.2 ( Gross-up ) applied.

 

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(c)

A Protected Party making, or intending to make, a claim pursuant to paragraph (a) above shall promptly notify the Security Agent of the event which will give, or has given, rise to the claim, following which the Security Agent shall notify each of the Guarantors.

 

(d)

A Protected Party shall, on receiving a payment from a Guarantor under this Clause 7.1, notify the Security Agent.

 

7.2

Gross-Up

 

(a)

Each of the Guarantors shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

 

(b)

Each of the Guarantors shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Security Agent accordingly. Similarly, a Lender shall notify the Security Agent on becoming so aware in respect of a payment payable to that Lender. If the Security Agent receives such notification from a Lender it shall notify each Guarantor.

 

(c)

If a Tax Deduction is required by law to be made by a Guarantor in respect of a payment to a Lender, the amount of the payment due from that Guarantor to that Lender shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

 

(d)

A Guarantor is not required to make an increased payment to a Lender under paragraph (c) above for a Tax Deduction in respect of any payment which is capable of attracting a Tax Deduction, if on the date on which the payment falls due:

 

(i)

the payment relates to a Tax referred to in paragraph (b) of Clause 7.1 ( Indemnity );

 

(ii)

the payment could have been made to the relevant Lender without the Tax Deduction if it was a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under the Facility Agreement in (or in the interpretation, administration or application of) any law or Treaty, or any published practice or concession of any relevant taxing authority; or

 

(iii)

the Guarantor is able to demonstrate that the payment could have been made to that Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (g) below, including timely providing the documents allowing the Guarantor to make the payment without a Tax Deduction.

 

(e)

If a Guarantor is required to make a Tax Deduction, that Guarantor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

 

(f)

Within thirty (30) days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the relevant Guarantor shall deliver to the Security Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment has been paid to the relevant taxing authority.

 

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(g)

A Lender and the relevant Guarantor shall co-operate in completing any procedural formalities necessary for the Guarantor to obtain authorisation to make a payment to that Lender without a Tax Deduction, and such Lender shall provide to the applicable party or parties on a timely basis the necessary documents allowing the Guarantor to make the payment without a Tax Deduction.

 

(h)

Any difference in the amount which is owed by a Guarantor under paragraph (c) above will not be covered by the Federal/State Guarantee. Any such amount which is paid by that Guarantor and not recovered by it under Clause 7.3 ( Tax Credit ) is deemed to reduce the principal amount owed by the Guarantor in relation to the Federal/State Guarantor.

 

7.3	Tax Credit

 

(a)

If a Guarantor makes a Tax Payment and the relevant Lender determines that:

 

(i)

a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and

 

(ii)

that Lender has obtained, utilised and retained that Tax Credit, or could have obtained, utilised or retained that Tax Credit had it claimed such benefit according to the applicable procedural rules within the provisions of paragraph (c) below,

the Lender shall pay an amount to that Guarantor which that Lender determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Guarantor. Upon the request of the Guarantor, the relevant Lender will use its reasonable endeavours (to the extent commercially practicable and legally permitted) to recover such Tax Credit.

 

(b)

If such a Tax Credit by reference to which a Lender has made a payment to the relevant Guarantor under paragraph (a) above is subsequently disallowed or cancelled, the Guarantor must reimburse any payment made under paragraph (a) above to the relevant Lender.

 

(c)

If a Guarantor makes a Tax Payment, the relevant Lender shall take reasonable steps to claim a Tax Credit unless in the opinion of that Lender the making of such claim might have an adverse effect on its business, operations, property, condition or prospects (financial or otherwise). The relevant Guarantor shall bear any costs incurred by a Lender in making such a claim.

 

7.4	Lenders’ Confirmation

After the Amendment Date, each Lender shall promptly give notice to the Guarantors (through the Security Agent) if it becomes aware that circumstances have occurred as a result of which it is not a Qualifying Lender.

 

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8.	CURRENCY INDEMNITY

If any amount is received by the Security Agent in a currency other than that in which the relevant obligation or liability of that Guarantor was payable (the “ Required Currency ”) (whether pursuant to a judgment, in the Insolvency of that Guarantor or otherwise), such obligation or liability shall be discharged only to the extent that an Agent is able, upon receipt of such amount, to purchase the Required Currency with such other currency in accordance with the usual banking procedures of the Security Agent. If the amount in the Required Currency which may be so purchased is, after deducting any costs of exchange and any other related costs, less than the amount of the relevant obligation or liability, the relevant Guarantor shall, as a separate and independent obligation and notwithstanding any time or other indulgence granted to that Guarantor or any other act, matter or thing, forthwith pay to the Security Agent the amount of the shortfall.

 

9.	CLAIMS BY GUARANTOR

 

9.1	Limitation on Exercise of Rights

So long as any of the Guarantors’ Liabilities remain outstanding or capable of arising each of the Guarantors waives all rights of subrogation and indemnity against the Borrower and any Other Surety and agrees that it shall not exercise any rights which it may have by reason of performance by it of its obligations hereunder and under the other Finance Documents and it shall not, except as may be directed by the Security Agent:

 

(a)

make or enforce any claim or right against the Borrower or any Other Surety whether in respect of any payment hereunder or otherwise and whether by way of defence, set-off, counterclaim, subrogation, contribution, indemnity or otherwise, except as specifically permitted under the Subordination Agreement;

 

(b)

claim the benefit of any set-off, counterclaim, proof, dividend, composition or payment to which an Agent may now or hereafter be entitled from or against the Borrower or any Other Surety, except as specifically permitted under the Subordination Agreement;

 

(c)

claim the benefit of or participate in any Collateral Security now or hereafter held by the Security Agent or any share therein;

 

(d)

prove or claim in competition to the Security Agent in the Insolvency of the Borrower or any Other Surety so as to diminish any distribution, dividend or payment which, but for such proof or claim, the Security Agent would be entitled to receive and the Guarantor shall not claim or receive the benefit of any distribution, dividend or payment arising out of or relating thereto;

 

(e)

call on an Agent to sue or take proceedings against the Borrower or any Other Surety or raise a defence, set-off or counterclaim of the Guarantor, the Borrower or any Other Surety in reduction of the relevant Guarantor’s liability hereunder;

 

(f)

otherwise have or exercise any rights of subrogation or as surety in competition with an Agent.

 

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9.2	Payments under the Project Documents

Subject to the terms of the Subordination Agreement, nothing contained in this Guarantee Agreement shall prevent FoundryCo from receiving any payments due to it pursuant to the Project Documents.

 

10.	REPRESENTATIONS AND WARRANTIES

 

10.1	Representations and Warranties

 

(a)

Each of the Guarantors makes the representations and warranties set out in Clause 10.11 ( No Default ), Clause 10.13 ( Good Title to Assets ), Clause 10.14 ( Intellectual Property Rights ), Clause 10.21 ( Taxation ) to Clause 10.23 ( No Security or Guarantees ) (inclusive), paragraphs (b) to (d) (inclusive) of Clause 10.24 ( Information Memorandum ) to Clause 10.28 ( Change in Business ) (inclusive), Clause 10.30 ( Material Disclosures ) and Clause 10.32 ( Security from the Borrower ) below applicable to it on behalf of itself, and makes all other representations and warranties set out in this Clause 10, except where noted otherwise, on behalf of itself and each of its Subsidiaries.

 

(b)

The Finance Parties have entered into the Facility Agreement in reliance on these representations and warranties.

 

10.2

Status

 

(a)

AMD Inc. is a corporation, the FoundryCo is an exempted company and each Relevant Subsidiary is a corporation, limited liability company or a limited partnership ( KG ), duly incorporated, established or formed and validly existing under the law of the jurisdiction of its place of incorporation, establishment or formation.

 

(b)

Each of the Guarantors and each Relevant Subsidiary has the power to own its assets and carry on its business as it is currently being conducted.

 

(c)

As of the Signing Date and the Amendment Date, one hundred (100)  per cent . of the capital partnership interests ( Kapitalanteile ) in the Borrower are held by the Limited Partners and, subject to the terms of the Exit Agreement, Leipziger Messe GmbH.

 

(d)

Neither Limited Partner holds partner or equity interests in any other person (except that AMD Fab 36 Admin GmbH is a wholly-owned Subsidiary of AMD Fab 36 Holding GmbH).

 

(e)

AMD Fab 36 Holding GmbH and the General Partner are, indirectly, wholly-owned Subsidiaries of FoundryCo.

 

10.3	No Winding-Up

Save as otherwise disclosed in writing to the Facility Agent, no administrator, receiver, insolvency trustee, bankruptcy examiner, liquidator or similar officer or official has been appointed with respect to a Guarantor, any Material Subsidiary or any Relevant Subsidiary or any of their assets and (to the best of its knowledge and belief) no petition by a third party or proceeding for any such appointment is pending nor has any resolution for any such appointment been passed.

 

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10.4	Binding Obligations

The obligations expressed to be assumed by a Guarantor and each Relevant Subsidiary in each Transaction Document to which it is a party are, subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered in accordance with the terms of the Facility Agreement and the conditions precedent set forth in the Finance Documents, legal, valid, binding and enforceable obligations.

 

10.5	Non-Conflict with Other Obligations

The entry into and performance by the Guarantors and any other member of the Group or the FoundryCo Group that is a party to a Transaction Documents of, and the transactions contemplated by, the Transaction Documents to which any of the Guarantors and/or such other member of the Group or the FoundryCo Group is a party do not and will not conflict with:

 

(a)

any law or regulation applicable to it;

 

(b)

its constitutional documents;

 

(c)

any material agreement or instrument binding upon it or any material part of its assets,

nor (except as provided in any Security Documents to which the Guarantor and/or such other member of the Group or the FoundryCo Group is a party) result in the creation of, or oblige the Guarantor or such other member of the Group or the FoundryCo Group or any of its Subsidiaries to create, any Security (other than Permitted Security) over any material part of its or any of its Subsidiaries’ assets.

 

10.6	Power and Authority

Each of the Guarantors and any other member of the Group or the FoundryCo Group that is a party to a Transaction Document has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Transaction Documents to which it is a party and the transactions contemplated by those Transaction Documents.

 

10.7	Validity and Admissibility in Evidence

All Authorisations (not including the EU Notification Approval) required by each of the Guarantors and any other member of the Group or the FoundryCo Group that is a party to a Transaction Document:

 

(a)

to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party;

 

(b)

to make the Transaction Documents to which it is a party admissible in evidence in its jurisdiction of incorporation, establishment or formation; and

 

(c)

to enable it to create any Security expressed to be created by it by or pursuant to, or as the case may be, any Security expressed to have been created by it and to be evidenced in, any Security Document to which it is a party and to ensure that such Security has the priority and ranking it is expressed to have,

 

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have been obtained or effected and are in full force and effect, save for (i) any filings, registrations or notarisations required in relation to the Security Documents to which it is a party, which filings, registrations or notarisations will be made promptly after execution of the relevant documents and in any event within applicable time limits, or (ii) such filings, registrations or notarisations which have been obtained and effected.

 

10.8	Governing Law and Enforcement

 

(a)

the choice of German law as the governing law of the Finance Documents to which each of the Guarantors and any other member of the Group or the FoundryCo Group is a party (or, in respect of any Security Document to which it is a party, the choice of the relevant governing law of that Security Document) will be recognised and enforced in its jurisdiction of incorporation, establishment or formation, subject to the requirements for or exceptions to the recognition and enforcement of provisions governed by foreign laws generally applicable in such jurisdiction.

 

(b)

Any judgment obtained in Germany in relation to the Finance Document to which each of the Guarantor and any other member of the Group or the FoundryCo Group is a party (or, in respect of any Security Document to which it is a party, any judgm