EUR700,000,000 TERM LOAN FACILITY AGREEMENT

Exhibit 10.1

[Convenience Translation with selected schedules only]

 

EUR700,000,000

TERM LOAN FACILITY

AGREEMENT

 

dated 21 April 2004

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

for

AMD FAB 36 LIMITED LIABILITY COMPANY & CO. KG

the Borrower

ABN AMRO BANK N.V.,

COMMERZBANK AKTIENGESELLSCHAFT, DEUTSCHE BANK

LUXEMBOURG S.A., DRESDNER KLEINWORT, KFW, LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE

and

LANDESBANK BADEN-WÜRTTEMBERG

(as legal successor of Landesbank Sachsen-Girozentrale)

as Mandated Lead Arrangers

DRESDNER BANK AG, NIEDERLASSUNG LUXEMBURG

as Facility Agent

with

DRESDNER BANK AG in Berlin

as Security Agent and Reporting Agent

CONTENTS

 

 

II

 

 

III

THIS AGREEMENT is made between:

 

(1)	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 ”);

 

(2)

ABN AMRO Bank N.V. , Commerzbank Aktiengesellschaft , Deutsche Bank Luxembourg S.A. , Dresdner Kleinwort , the investment banking division of Dresdner Bank AG , KfW , Landesbank Hessen-Thüringen Girozentrale and Landesbank Baden-Württemberg as legal successor of Landesbank Sachsen-Girozentrale , as Mandated Lead Arrangers (the “ Mandated Lead Arrangers ”);

 

(3)	The financial institutions listed on the signature pages hereof;

 

(4)	Dresdner Bank AG, Niederlassung Luxemburg as Facility Agent for the Lenders (the “ Facility Agent ”); and

 

(5)	Dresdner Bank AG in Berlin as Security Agent for the Lenders (the “ Security Agent ”) and as Reporting Agent for the Lenders (the “ Reporting Agent ”).

IT IS AGREED as follows:

SECTION 1

INTERPRETATION

 

1.	DEFINITIONS AND INTERPRETATION

 

1.1	Definitions

In this Agreement:

“ Account Pledges ” means the following agreements providing for first ranking pledges over:

 

(a)

all bank accounts of the Borrower dated 20 April 2004;

 

(b)

all bank accounts of AMD Fab 36 Holding GmbH dated 20 April 2004;

 

(c)

all bank accounts of AMD Fab 36 Admin GmbH dated 20 April 2004;

 

(d)

the Escrow Account; and

 

(e)

the Cash Reserve Account.

“ Affiliate ” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

“ Agent ” means the Facility Agent, the Security Agent and/or the Reporting Agent, as the context requires.

 

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“ AMD Fab 36 Admin GmbH ” means a German limited liability company ( Gesellschaft mit beschränkter Haftung ) 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 HRB 22350.

“ AMD Fab 36 Holding GmbH ” means a German limited liability company ( Gesellschaft mit beschränkter Haftung ) 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 HRB 21270.

“ AMD Fab 36 Holding’s Assignment of Receivables ” means the assignment agreement dated 20 April 2004, as amended by the Security Amendment Agreement, providing for the assignment to the Security Agent of the claims of AMD Fab 36 Holding GmbH under the Cost Plus Reimbursement Agreement.

“ AMD Fab 36 LLC ” means a Delaware limited liability company with its business address at One AMD Place, Sunnyvale, CA 94088, United States, registered with the State of Delaware on 18 July 2003 and having its registered business address at 1209 Orange Street, Wilmington, 19801 Delaware, United States, of which the organizational identification number in the State of Delaware assigned by the Division of Corporations, as of the date hereof, is 3683217.

“ AMD Inc. ” means 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.

“ Amendment Agreement ” means the amendment agreement dated 25 February 2009 relating to changes of this Agreement, the Guarantee Agreement, the Subordination Agreement and the Security Agency Agreement entered into between the Borrower, the Lenders, the Security Agent, the Reporting Agent, AMD Inc., FoundryCo, New German KG and others.

“ Amendment Date ” means the date of the Amendment Agreement.

“ Assignment of the AMD Call Options ” means the assignment agreements dated 20 April 2004, as amended by the Security Amendment Agreement, providing for the assignment to the Security Agent of rights under the Purchase Agreements over all the partner or equity interests ( Gesellschaftsanteile ) in the partnership of the Borrower.

“ Assignments of Claims ” means the following assignment agreements providing for the assignment to the Security Agent of all the claims against the Borrower of:

 

(a)

AMD Inc. dated 20 April 2004 (as amended by the Security Amendment Agreement);

 

(b)

FoundryCo dated on or about the Amendment Date;

 

(c)

New German KG dated on or about the Amendment Date;

 

(d)

AMD Fab 36 Holding GmbH dated 20 April 2004;

 

(e)

AMD Fab 36 Admin GmbH dated 20 April 2004;

 

(f)

the General Partner dated 20 April 2004; and

 

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(g)

LM Beteiligungsgesellschaft mbH dated 20 April 2004.

“ Assignment of Insurance Claims ” means the assignment agreement dated 20 April 2004 providing for the assignment to the Security Agent of all of the Borrower’s claims under any insurance policies (with the exception of personal liability insurances and contractors‘ all risks insurances until completion of the building phase) it has taken out in relation to the Project.

“ Assignment of Material German Contracts ” means the assignment agreement dated 20 April 2004, as amended by the Security Amendment Agreement, providing for the assignment to the Security Agent of all the Material Contracts governed by German law entered into by the Borrower (but excluding the Partnership Agreement).

“ Assignment of Material US Contracts ” means the assignment agreement dated 20 April 2004, as amended on or about the Amendment Date, providing for the assignment to the Security Agent of claims and contractual rights under all the Material Contracts governed by the law of a state of the United States of America entered into by the Borrower.

“ Assignments of Receivables ” means the Borrower’s Assignment of Receivables, AMD Fab 36 Holding’s Assignment of Receivables and the Dutch BV 1 Assignment of Receivables, and “ Assignment of Receivables ” shall mean any of them.

“ Assignment of Service Agreement Claims ” means the assignment agreement dated on or about the Amendment Date, providing for the Assignment to the Security Agent of all claims of New German KG against AMD Fab 36 Holding GmbH under the Service Agreement.

“ Assignment of Warranties ” means the assignment agreement dated 20 April 2004 providing for the assignment to the Security Agent of warranty claims (including any underlying Security) under the warranty provided by the Project Engineer.

“ ATIC ” means Advanced Technology Investment Company, a company organised under the laws of the Emirate of Abu Dhabi, having its registered and principal office at P.O. Box 45005, Abu Dhabi, United Arab Emirates.

“ Auditors ” means Ernst & Young or another international auditing firm of similar repute and standing.

“ Authorisation ” means an authorisation, consent, approval, resolution, license, exemption, filing or registration.

“ Availability Period ” means the period from and including the Signing Date to and including 28 September 2007.

“ Available Commitment ” means a Lender’s Commitment minus:

 

(a)

the amount of its participation in any Outstandings; and

 

(b)

in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date.

“ Available Facility ” means the aggregate for the time being of each Lender’s Available Commitment.

 

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“ Base Currency ” means EUR.

“ Base Currency Amount ” means in relation to a Loan, the amount specified in the Utilisation Request delivered by the Borrower for that Utilisation (or, if the amount requested is denominated in USD, the amount converted into the Base Currency at the Facility Agent’s Spot Rate of Exchange on the date which is four (4) Business Days before the Utilisation Date or, if later, the date the Facility Agent receives the Utilisation Request), as adjusted to reflect any repayment, prepayment, consolidation or division of such Loan.

“ Base Financial Statements ” means:

 

(a)

the audited financial statements of the Borrower for the financial year ended 31 December 2003 audited by Ernst & Young AG;

 

(b)

the audited consolidated financial statements of AMD Inc. for the financial year ended 28 December 2003 audited by Ernst & Young LLP; and

 

(c)

the opening balance sheet of FoundryCo as per 7 October 2008.

“ Borrower’s Assignment of Receivables ” means the assignment agreement dated 20 April 2004, as amended by the Security Amendment Agreement, providing for the assignment to the Security Agent of the Borrower’s claims under the Cost Plus Reimbursement Agreement.

“ Break Costs ” means the amount (if any) by which:

 

(a)

the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period,

exceeds:

 

(b)

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the European interbank market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

“ Business Day ” means a day (other than a Saturday or Sunday) on which banks are open for general business in Frankfurt am Main, Berlin, Dresden, London, Luxembourg, and

 

(a)

(in relation to any date for payment or purchase of Euro) any Target Day; or

 

(b)

(in relation to any date for payment or purchase of Dollar) a day (other than a Saturday or Sunday) on which banks are open for general business in New York.

“ Business Plan ” means the financial model dated 4 November 2003 for the period beginning on 1 January 2003 and ending on 31 December 2012, including profit and loss accounts, balance sheets and cash flow projections relating to the Project, in the agreed form set out in Schedule 7 ( The Business Plan ), together with a favourable opinion of Arthur D. Little dated 4 November 2003.

 

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“ Call Option ” means an agreement dated 20 April 2004, as amended by amendment agreement dated 19 April 2005, providing for call options in favour of the Security Agent in respect of the partner or equity interests ( Gesellschaftsanteile ) in the partnership of the Borrower or in the Participations held by Leipziger Messe GmbH and LM Beteiligungsgesellschaft mbH.

“ Cash ” has the meaning ascribed to such term in paragraph (a) of Clause 19.1 ( Financial Definition s).

“ Cash Equivalents ” has the meaning ascribed to such term in paragraph (a) of Clause 19.1 ( Financial Definition s).

“ Cash Reserve Account ” means an interest-bearing escrow account maintained by the Borrower with the Security Agent into which amounts are to be paid pursuant to Clause 20.35 ( Balancing Payments to and from Cash Reserve Account ) in the currency and in the amounts set out therein which are to be utilized exclusively for the purpose described therein.

“ Cash Reserve Account Pledge ” means an agreement providing for a first ranking pledge over the Cash Reserve Account.

“ Cash Shortfall ” means a Cash shortfall of the Borrower (whether in respect of operating or non-operating costs), including without limitation a Cash shortfall from cost overruns from capital expenditures or arising from reclamations of public allowances or grants ( Investitionszulagen / Investitionszuschüsse ) by the Federal/State Guarantor.

“ Change of Control ” means:

 

(a)

the direct or indirect acquisition by any person (as such term is used in Section 13 (d) and Section 14 (d) (2) of the Exchange Act) or related persons constituting a group (as such term is used in Rule 13d-5 under the Exchange Act) other than the Abu Dhabi government, ATIC or a direct or indirect wholly-owned Subsidiary of ATIC of:

 

(i)

beneficial ownership of issued and outstanding shares of voting stock of any Guarantor, the result of which acquisition is that such person or such group possesses in excess of thirty-five (35)  per cent . of the combined voting power of all then-issued and outstanding voting stock of such Guarantor; or

 

(ii)

the power to elect, appoint or cause the election or appointment of at least a majority of the members of the board of directors of a Guarantor; or

 

(b)

AMD Inc., ATIC or the Abu Dhabi Government, directly or indirectly, together or any of them individually cease to own 50.1 per cent. or more of the combined voting stock or voting power attributable to all issued and outstanding voting stock of FoundryCo.; or

 

(c)

the direct or indirect acquisition by any person or a group of persons of beneficial ownership of issued and outstanding shares of voting stock of ATIC, the result of which acquisition is that the Abu Dhabi Government possesses less than 50.1  per cent . of the combined voting power of all then-issued and outstanding voting stock of ATIC; or

 

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(d)

the Abu Dhabi Government ceases to maintain the power to elect, appoint or cause the election or appointment of at least a majority of the members of the board of directors of ATIC.

For the purpose of this definition, “ Abu Dhabi Government ” means the Government of the Emirate of Abu Dhabi, and any political subdivision or agency thereof, or any legal entity which is a separate legal person, sovereign, corporate or otherwise, and which is an organ of the Government of the Emirate of Abu Dhabi or political subdivision thereof, or, with respect to any corporate person, a (directly or indirectly) wholly-owned Subsidiary of the Government of the Emirate of Abu Dhabi or political subdivision thereof.

“ Charged Assets ” means any assets of the Borrower that are secured in favour of the Security Agent pursuant to the Security Documents or any of them.

“ Closing ” means the date on which all of the initial conditions precedent set forth in Part I ( Initial Conditions Precedent ) of Schedule 2 ( Conditions Precedent ) are satisfied, or waived, in accordance with Clause 4.1 ( Initial Conditions Precedent ).

“ Commitment ” means:

 

(a)

in relation to an Original Lender, the amount set opposite its name under the heading “Commitment” in Schedule 1 ( The Original Lenders ) and the amount of any other such Commitment transferred to it under this Agreement; and

 

(b)

in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,

to the extent not cancelled, reduced or transferred by it under this Agreement.

“ Compliance Certificate ” means a certificate substantially in the form set out in Schedule 6 ( Form of Compliance Certificate ).

“ Confidentiality Undertaking ” means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 8 ( LMA Form of Confidentiality Undertaking ) or in any other form agreed between the Borrower and the Facility Agent.

“ Cost Plus Reimbursement Agreement ” means the following agreements:

 

(a)

Cost Plus Reimbursement Agreement dated 21 April 2004 entered into between the Borrower and AMD Fab 36 Holding GmbH, as amended by amendment agreement dated 28 September 2006 and on or about the Amendment Date; and

 

(b)

Cost Plus Reimbursement Agreement dated 21 April 2004 entered into between AMD Fab 36 Holding GmbH and AMD Inc., as amended by amendment agreement dated 28 September 2006 and as amended and entered into between AMD Fab 36 Holding GmbH and Dutch BV 1 on or about the Amendment Date.

“ Credit Rating ” means any corporate credit rating/corporate family rating assigned to AMD Inc. by Standard & Poor’s or Moody’s, respectively.

“ Dangerous Substance ” means any radioactive emissions and any natural or artificial substance (in whatever form) the generation, transportation, storage, treatment, use or disposal of which (whether alone or in combination with any other substance) gives rise to a risk of causing substantial harm to man or any other living organism or damaging the Environment or public health or welfare, including (without limitation) any controlled, special, hazardous, toxic, radioactive or dangerous waste.

 

6

“ Debt Issue ” means any issue after the Signing Date of public or privately placed debt securities of the Borrower.

“ Default ” means an Event of Default or any event or circumstance specified in Clause 21 ( Events of Default ) that would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

“ Dutch BV 1 ” means 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 Assignment of Receivables ” means the assignment agreement dated on or about the Amendment Date, providing for the assignment to the Security Agent of the rights and claims of Dutch BV 1 against FoundryCo under the Guarantee Agreement.

“ EPC Contract ” means the agreement ( Generalübernehmervertrag ) dated 20 November 2003 made between the Borrower and the Project Engineer pertaining to the design and construction of the Project.

“ Environment ” means the media of air, water and land (wherever occurring) and in relation to the media of air and water includes, without limitation, the air and water within buildings and the air and water within other natural or man-made structures above or below ground and any water contained in any underground strata.

“ Environmental Claim ” means any claim by any person:

 

(a)

in respect of any loss or liability suffered or incurred by that person as a result of or in connection with any violation of Environmental Law; or

 

(b)

that arises as a result of or in connection with Environmental Contamination and that could give rise to any remedy or penalty (whether interim or final) that may be enforced or assessed by private legal action or public legal action or administrative order or proceedings including, without limitation, any such claim that arises from injury to persons or property.

“ 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 Borrower into any part of the Environment; or

 

(b)

any accident, fire, explosion or sudden event at any site owned, leased, occupied or used by the Borrower 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 Borrower.

 

7

“ Environmental Law ” means all laws, regulations, directives, codes of practice, circulars, guidance notices, instructions and the like issued by a governmental authority and having legal effect concerning the protection of human health, the Environment, the conditions of the work place or the generation, transportation, storage, treatment or disposal of Dangerous Substances.

“ Environmental License ” means any permit, license, authorisation, consent or other approval required by any Environmental Law.

“ Equipment ” means any equipment and tools (including any information technology software or hardware which is embedded or installed in, or essential for the working of, that equipment) to be owned by the Borrower and to be installed on the Site for the development and production of microprocessors on silicon wafers and which is required by the Borrower to implement the Project in accordance with the Business Plan.

“ Equity Issue ” means any issue of partnership interests or shares by the Borrower or any issue or grant of rights to subscribe for, or to convert any security into, partnership interests or shares in the Borrower.

“ Escrow Account ” means an interest-bearing escrow account (with two sub-accounts denominated in EUR and USD, respectively) to be maintained by the Borrower with the Security Agent (alternatively Cash Equivalents may be invested into a non-interest-bearing deposit account with the Security Agent), funded by Utilisations and utilised solely for the purpose set out in Clause 3 ( Purpose ) and Clause 7.4 ( Mandatory Prepayment from the Escrow Account ).

“ EU Notification Approval ” means the unconditional approval of the European Union in respect of the Federal/State Guarantee and in connection with any public allowances or grants ( Investitionszulagen/Investitionszuschüsse ) provided to the Borrower pursuant to a Subsidy Agreement, including a written confirmation by the European Union regarding its approval in respect of the Reorganisation.

“ EURIBOR ” means, in relation to any Loan:

 

(a)

the Screen Rate; or

 

(b)

(if no Screen Rate is available for the Interest Period of that Loan) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request quoted by the Reference Banks to leading banks in the European interbank market,

as of the Specified Time on the Quotation Day for the offering of deposits in Euro for a period comparable to the Interest Period of the relevant Loan.

“ EUR Outstandings ” means, at any time, the aggregate of the amounts of the outstanding Loans denominated in EUR.

“ Event of Default ” has the meaning ascribed to such term in Clause 21.1 ( Acceleration ).

“ Excess Contributed Capital Amount ” means the amount, from time to time, of capital in the Borrower contributed by FoundryCo or its Affiliates in excess of the amount required to be contributed prior to first Utilisation pursuant to Part II ( Conditions Precedent to first Utilisation ) of Schedule 2 ( Conditions Precedent ).

 

8

“ Exchange Act ” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission from time to time promulgated thereunder.

“ Existing Indebtedness ” means the Financial Indebtedness or other indebtedness of the Borrower outstanding prior to the date of initial Utilisation, but does not include Financial Indebtedness arising under the Revolving Credit Agreement or a Subordinated Loan Agreement.

“ Existing Security ” means the Security granted or existing over the assets of the Obligors that is existing prior to the date of initial Utilisation.

“ Exit Agreement ” means the exit agreement ( Ausscheidensvereinbarung ) dated on or amout the Amendment Date made between AMD Inc., the Free State of Saxony, LM Beteiligungsgesellschaft mbH, Leipziger Messe GmbH, AMD Fab 36 Holding GmbH, AMD Fab 36 Admin GmbH, AMD Fab 36 LLC and the Borrower providing for the transfer by Leipziger Messe GmbH and LM Beteiligungsgesellschaft mbH of their partnership interests in the Borrower to AMD Fab 36 Holding GmbH, AMD Fab 36 Admin GmbH and the General Partner, respectively, and of the interest of Leipziger Messe GmbH in the silent participation between the Borrower and the Limited Partners to AMD Fab 36 Holding GmbH and AMD Fab 36 Admin GmbH.

“ Extended Termination Date ” means a date up to three (3) years after the Termination Date proposed by the Borrower and approved by each Lender and the Federal/State Guarantors as the date by which all Loans must be repaid following an extension of the Termination Date for the Loans pursuant to Clause 6.3 ( Extension of Termination Date ) but not later than the date which is the tenth (10 ^th ) anniversary of the Signing Date or, if that is not a Business Day, the immediately preceding Business Day.

“ Facility ” means the term loan facility made available under this Agreement as described in Clause 2 ( The Facility ).

“ Facility Agent’s Spot Rate of Exchange ” means the Facility Agent’s spot rate of exchange for the purchase of the relevant currency with the Base Currency in the European foreign exchange market at or about 12.00 noon on a particular day.

“ Facility Amount ” means the higher of (i) seven hundred million (700,000,000) EUR and (ii) the amount of the Outstandings.

“ Facility Office ” means the office or offices notified by a Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five (5) Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.

“ Federal/State Guarantee ” means the guarantees granted by the Federal/State Guarantors for the benefit of the Lenders and the Agents (after realisation of all Transaction Security, subject however to a limited right of advance appropriation in favour of the Finance Parties in relation to the Security constituted by the Cash Reserve Account Pledge) in respect of eighty (80)  per cent . of all losses (except certain currency-related losses) sustained by the Lenders and the Agents in respect of the Finance Documents in accordance with the terms set out in the Federal/State Guarantors Decision.

 

9

“ Federal/State Guarantors ” means:

 

(a)

the Federal Republic of Germany; and

 

(b)

the Free State of Saxony ( Freistaat Sachsen ).

“ Federal/State Guarantors Decision ” means the decision of the Federal/State Guarantors and of PwC Deutsche Revision Aktiengesellschaft Wirtschaftsprüfungsgesellschaft (“ PwC ”) based on the inter-ministerial committee meetings ( interministerielle Sitzungen ) dated 6/17 November 2003 and based on the letters of PwC in connection therewith dated 17 March 2004, 7 April 2004 and 8 April 2004 ( Bürgschaftsentscheidung ), as set out in Schedule 12 ( Federal/State Guarantors Decision ), as further amended by the letters of PwC dated 3 and 20 January 2005, 20 and 22 December 2005, 6 February 2006, 11 October 2006, 10 February 2009 (in relation to the Reorganisation) and 10 February 2009 (in relation to the withdrawal of Leipziger Messe GmbH as limited partner in the Borrower and related matters).

“ Fee Letters ” means the letter dated 28 November 2003 made between the Mandated Lead Arrangers, the Borrower and the Guarantor and the letter dated 16 April 2004 made between the Facility Agent and the Borrower setting out any of the fees referred to in Clause 11 ( Fees ), and “ Fee Letter ” means any of them.

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

“ Finance Parties ” means the Facility Agent, the Security Agent, the Reporting Agent, the Mandated Lead Arrangers and the Lenders and “ Finance Party ” means any of them.

“ Financial Indebtedness ” means any indebtedness for or in respect of:

 

(a)

moneys borrowed;

 

(b)

any amount raised by acceptance under any acceptance credit facility;

 

(c)

any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

 

(d)

the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with German GAAP, be treated as a finance or capital lease;

 

(e)

receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

 

(f)

any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing; however, for the avoidance of doubt, this does not include any deferred payment arrangements with trade creditors as customary in the industry or endorsement of negotiable instruments for deposit or collection;

 

(g)

any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);

 

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(h)

any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and

 

(i)

(without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.

“ Fiscal Quarter ” means each of those periods of approximately thirteen weeks ending on 31 March, 30 June, 30 September and 31 December in each financial year.

“ FoundryCo ” means 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 Group ” means FoundryCo and its Subsidiaries from time to time and “ member of the FoundryCo Group ” shall be construed accordingly.

“ Funding Agreement ” means the Funding Agreement dated on or about the Amendment Date of which a draft has been deposited with the SEC by AMD Inc.

“ General Partner ” means AMD Fab 36 LLC or, upon substitution of the former by AMD Fab 36 Admin GmbH as general partner of the Borrower, the latter.

“ German GAAP ” means generally accepted accounting principles generally used by the accounting profession and in effect in Germany from time to time ( Grundsätze ordnungsmässiger Buchführung ).

“ German Qualifying Lender ” means:

 

(a)

a Lender which is:

 

(i)

a company resident in Germany for German tax purposes;

 

(ii)

a partnership each member of which is a company resident in Germany for German tax purposes; or

 

(iii)

a company not so resident in Germany which carries on a trade or business in Germany through a branch or agency and which brings into account interest payable in respect of any relevant Loan in computing its chargeable profits (within the meaning given by Section 49(1) No. 2(a) of the German Income Tax Code),

but only if the Lender described in this paragraph (a) (and further, (A) in the case of a partnership, each member of the partnership, and (B) in the case of a company which carries on a trade or business in Germany through a branch or agency, the branch or agency) is entitled to receive any and all payments under the Finance Documents (subject to completion of any procedural formalities) without a Tax Deduction; or

 

(b)

a German Treaty Lender.

“ German Treaty ” means a double taxation agreement with Germany which makes provision for full exemption of tax imposed by Germany on interest.

 

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“ German Treaty Lender ” means a Lender which:

 

(a)

is treated as a resident of a German Treaty State for the purposes of the German Treaty;

 

(b)

does not carry on business in Germany through a permanent establishment with which that Lender’s participation in a Loan is effectively connected; and

 

(c)

is entitled under the German Treaty (subject to the completion of any necessary procedural formalities) to receive any and all payments under the Finance Documents without a Tax Deduction (as defined in Clause 12.1 ( Definitions ).

“ German Treaty State ” means a jurisdiction to which a German Treaty applies.

“ Germany ” means the Federal Republic of Germany.

“ Global Assignment of Receivables ” means the assignment agreement dated 20 April 2004, as amended by the Security Amendment Agreement, providing for the assignment to the Security Agent of all existing and future claims of the Borrower for goods and services provided, or based on other legal grounds, that it holds against all of its debtors with the exception of such claims which have been assigned under the other Security Documents.

“ Group ” means AMD Inc., FoundryCo and their respective Subsidiaries from time to time, and “ member of the Group ” shall be construed accordingly.

“ 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 of 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 18.1 ( 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 Structure Chart ” means the chart entitled “The Foundry Company - Legal Structure (1)” showing all members of the FoundryCo Group and their respective shareholdings in each of their Subsidiaries, to be provided pursuant to the terms of the Amendment Agreement.

“ Guarantee Agreement ” means a guarantee agreement entered into on 21 April 2004, as amended on 10 October 2006 and as further amended on the Amendment Date and made between AMD Inc., FoundryCo, Dutch BV 1, the Borrower, the Security Agent and the Facility Agent (acting for the Lenders) containing the irrevocable and unconditional joint and several guarantee granted by the Guarantors for the benefit of each Finance Party in

 

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respect of the punctual performance by the Borrower of all its payment obligations under the Finance Documents (up to the Facility Amount and all interest and other amounts payable under the Finance Documents to which the Borrower is a party), including an indemnity in relation to repayment claims made in connection with any public allowances or grants ( Investitionszulagen/Investitionszuschüsse ).

“ Guarantors ” means AMD Inc. and FoundryCo.

“ Holding Company ” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.

“ Information Memorandum ” means the information memorandum dated 10 February 2004 concerning the Borrower and certain members of the Group, prepared by Dresdner Kleinwort Wasserstein using information provided by the Borrower and the Guarantor in relation to the Project, agreed between the Mandated Lead Arrangers and the Borrower, approved by the Borrower and distributed by Dresdner Kleinwort Wasserstein on behalf of the Mandated Lead Arrangers and the Borrower prior to the Signing Date to the Original Lenders.

“ Initial Margin ” means two (2.00)  per cent. per annum .

“ Insurance Adviser ” means Willis Limited, Aon Risk Services Inc. of Northern California Insurance Services or any person who replaces them as Insurance Adviser from time to time with the consent of the Majority Lenders and the Borrower.

“ Insurance Proceeds ” means the total cash proceeds of any insurance claim intended to compensate for damage to any asset of the Borrower (excluding proceeds received in respect of insurance claims for (i) interruption of business or (ii) loss of inventory) received by it in EUR (or if not received in EUR, it’s equivalent in EUR based on the Facility Agent’s Spot Rate of Exchange on the date of receipt), after deducting:

 

(a)

any reasonable out of pocket costs and expenses incurred by the Borrower or any other member of the FoundryCo Group acting on behalf of the Borrower in relation to such a claim;

 

(b)

any reasonable costs incurred by the Borrower or any other member of the FoundryCo Group acting on behalf of the Borrower in connection with the adjustment or settlement of any such claim;

 

(c)

the unpaid balance of any Permitted Indebtedness which must be repaid by the seller on such loss (together with any premium, interest, penalties or fees required to be paid in connection therewith);

 

(d)

proceeds relating to third party claims which are applied towards meeting such claims; and

 

(e)

Taxes paid (or reasonably estimated to be payable) by the Borrower or any other member of the FoundryCo Group acting on behalf of the Borrower in respect of such claims.

“ Insurance Report ” means the report referred to in paragraph (c) of the definition of “ Report ”.

 

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“ Intellectual Property ” means any and all rights and interests existing now or in the future in any part of the world in or relating to registered and unregistered trade marks and service marks, domain names, patents, registered designs, utility models, trade names, business names, registered or unregistered copyrights in published works, inventions registered or unregistered, data base rights, know-how, any other intellectual property rights and any applications for any of the foregoing and any goodwill therein.

“ Intellectual Property Rights ” means any rights of an Obligor to Intellectual Property.

“ Interest Period ” means, in relation to a Loan, each period determined in accordance with Clause 9 ( Interest Periods ) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.6 ( Default Interest and Penalty ).

“ Joint Venture ” means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.

“ Land Charge ” means all documents to be executed by the Borrower required for the creation of a first ranking land charge in chapter III over all real property of the Borrower located at Wilschdorfer Landstrasse, 01109 Dresden, partial area of approximately 199,000 square meters of the parcel ( Flurstück ) 121/5 in the communal district Wilschdorf, currently file 851 of the land register at the land registry Dresden for Wilschdorf and the security purpose agreement ( Zweckbestimmungserklärung ) in relation to such land charge.

“ Lender ” means:

 

(a)

any Original Lender; and

 

(b)

any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 22 ( Changes to the Lenders ),

which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

“ LIBOR ” means, in relation to any Loan:

 

(a)

the applicable Screen Rate; or

 

(b)

(if no Screen Rate is available for the currency or Interest Period of that Loan) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request quoted by the Reference Banks to leading banks in the London interbank market,

as of the Specified Time on the Quotation Date for the offering of deposits in Dollar for a period comparable to the Interest Period of the Relevant Loan.

“ License Agreement ” means the perpetual license agreement dated on or about the Amendment Date and made amongst AMD Inc., FoundryCo, Dutch BV 1, AMD Fab 36 Holding GmbH and the Borrower, all listed in Schedule 13 ( Project Documents ).

“ Limited Partners ” means:

 

(a)

AMD Fab 36 Holding GmbH (an indirectly wholly-owned Subsidiary of FoundryCo) with a minimum holding of at least fifty point one (50.1) per cent. of the capital in the Borrower; and

 

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(b)

AMD Fab 36 Admin GmbH (a wholly-owned, direct Subsidiary of AMD Fab 36 Holding GmbH).

“ LMA ” means the Loan Market Association.

“ LMB Share Transfer Agreement ” means the notarial share sale and transfer agreement dated on or about the Amendment Date between Leipziger Messe GmbH as seller and New German KG as purchaser in respect of the sale and transfer of all shares in LM Beteiligungsgesellschaft mbH.

“ Loan ” means a loan made or to be made by way of a cash advance under the Facility or the principal amount outstanding for the time being of that loan.

“ Majority Lenders ” means:

 

(a)

if there are no Outstandings, a Lender or Lenders whose Commitments aggregate more than 66  2 / 3 % of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66  2 / 3 % of the Total Commitments immediately prior to the reduction); or

 

(b)

at any other time, a Lender or Lenders whose participations in the Outstandings aggregate more than 66  2 / 3 % of all the Outstandings.

“ Management Plan ” means each management plan delivered by the Borrower to the Facility Agent pursuant to paragraph (c) of Clause 18.1 ( Financial Statements ).

“ Management Service Agreement ” means the agreement dated 31 October 2003, as amended on or about the Amendment Date and made amongst the Borrower and AMD Saxony Limited Liability Company & Co. KG and listed in Schedule 13 ( Project Documents ).

“ Mandatory Cost ” means the percentage rate per annum calculated by the Facility Agent in accordance with Schedule 4 ( Mandatory Cost Formula ).

“ Margin ” means the percentage rate per annum determined in accordance with Clause 8.2 ( Margin Ratchets ) to Clause 8.4 ( No Margin Ratchets in Events of Default ).

“ Material Adverse Effect ” means a material adverse effect on:

 

(a)

the business, assets, condition (financial or otherwise) or operation of any Obligor;

 

(b)

the ability of any Obligor to perform or comply with its obligations under the Finance Documents; or

 

(c)

the validity, legality or enforceability of the Finance Documents or any rights or remedies of any Finance Party under the Finance Documents (including the perfection or priority of any material part of any Security created pursuant to the Security Documents).

“ Material Contracts ” means the documents listed in Schedule 16 ( The Material Contracts ) as at the date of this Agreement, and any other documents designated as such by the Majority Lenders (acting through the Facility Agent) and the Borrower, and “ Material Contract ” means any of them.

 

15

“ Minimum Cash ” has the meaning ascribed to such term in Clause 20.18 ( Minimum Cash Balances ).

“ Minimum Reserve Cost ” means, in respect of a Lender, any Mandatory Cost, including the cost (if any) of its complying with any reserve asset, liquidity or other regulatory requirements affecting it, expressed as a percentage rate per annum .

“ Month ” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

 

(a)

(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

(b)

if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

 

(c)

for the purpose of determining the last day of an Interest Period, if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

The above rules (a) to (c) will only apply to the last Month of any period.

“ Moody’s ” means Moody’s Investors Service, Inc.

“ Net Proceeds ” means, in relation to:

 

(a)

any disposal of an asset by the Borrower, the total Cash or Cash Equivalent proceeds of such disposal in EUR (or if not received in EUR, its equivalent in EUR based on the Facility Agent’s Spot Rate of Exchange on the date of receipt) received by the Borrower, after deducting:

 

(i)

any reasonable out of pocket costs and expenses incurred by the Borrower in respect of such disposal;

 

(ii)

the unpaid balance on the date of such disposal of any Permitted Indebtedness which must be repaid by the Borrower on such disposal (together with any premium, interest, penalties or fees required to be paid in connection therewith); and

 

(iii)

Taxes paid (or reasonably estimated to be payable) in connection with such disposal; and/or

 

(b)

any Debt Issue or any Equity Issue, the total Cash or Cash Equivalent proceeds of such Debt Issue or any Equity Issue received by the Borrower, after deducting:

 

(i)

any reasonable out of pocket costs and expenses incurred by the Borrower in respect of such issue (including underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses); and

 

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(ii)

Taxes paid (or reasonably estimated to be payable) by the Borrower in connection with such issue.

“ New German KG ” means AMD Management Services 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 7256.

“ Obligor ” means the Borrower or any of the Guarantors.

“ Original Lender ” means any of the financial institutions listed in Schedule 1 ( The Original Lenders ).

“ Outstandings ” means, at any time, the sum of the EUR Outstandings and, converted for that purpose into EUR at the Facility Agent’s Spot Rate of Exchange at the relevant time, the USD Outstandings (which amounts will also include, without double-counting, any sums deposited into the Escrow Account).

“ Participating Member State ” means any member state of the European Communities that adopts or has adopted the EUR as its lawful currency in accordance with legislation of the European Union relating to European Monetary Union.

“ Participation ” means each of the interests of the silent partners in the silent participation ( stille Gesellschaft ) between the Borrower and the Limited Partners.

“ Participation Agreement ” means the agreement ( Vertrag über die Errichtung einer stillen Gesellschaft ) dated 21 April 2004, as amended on 19 April 2005 and by the Exit Agreement and as further amended by an amendment agreement dated on or about the Amendment Date, and made between the Borrower and Leipziger Messe GmbH and the Limited Partners.

“ Partnership Agreement ” means the partnership agreement ( Kommanditgesellschaftsvertrag ) of the Borrower dated 21 April 2004, as amended on 19 April 2005 and by the Exit Agreement and as further amended by an amendment agreement dated on or about the Amendment Date.

“ Partnership Interest Pledges ” means the agreements providing for first ranking pledges over the partner or equity interests ( Gesellschaftsanteile ) in the partnership of the Borrower granted by:

 

(a)

AMD Fab 36 Holding GmbH dated 20 April 2004;

 

(b)

AMD Fab 36 Admin GmbH dated 20 April 2004;

 

(c)

the General Partner dated 20 April 2004, as amended by the Security Amendment Agreement, and

 

(d)

LM Beteiligungsgesellschaft mbH dated 20 April 2004,

relating to all present and future partnership interests held by such partners.

“ Party ” means a party to this Agreement and includes its successors in title, permitted assigns and permitted transferees.

 

17

“ Permitted Business ” means, in relation to the Borrower, 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.

“ Permitted Disposal ” means:

 

(a)

disposals made on arm’s length terms in the ordinary course of trading of the disposing entity;

 

(b)

disposals of assets exchanged for or replaced by other assets comparable or superior as to type, value and quality;

 

(c)

disposals on arm’s length terms of any surplus or obsolete or worn-out assets which in the reasonable opinion of the Borrower are not required for the efficient operation of the business of the Borrower;

 

(d)

use of cash where such use is not otherwise prohibited by the Finance Documents;

 

(e)

disposals constituted by the creation of any Permitted Security;

 

(f)

disposals where the proceeds are applied in accordance with the terms of Clause 7.2 (Mandatory Prepayment from Asset Disposals); or

 

(g)

disposals, other than any permitted under paragraphs (a) to (f) above, where the higher of the book value or the consideration received (when aggregated with the higher of the book value or the consideration received for any other sale, lease, transfer or other disposal falling within this paragraph (g)) does not exceed twenty-five million (25,000,000) EUR (or its equivalent in another currency or currencies at the date of such disposal) in any financial year.

“ Permitted Distributions ” means:

 

(a)

provided that no:

 

(i)

Default has occurred (only to the extent that the occurrence of such Default is not dependent on a determination under any of the Finance Documents); or

 

(ii)

Event of Default has occurred,

and is continuing (unless otherwise determined by the Majority Lenders), (A) distributions by the Borrower in amounts necessary to permit the Limited Partners, or any Holding Company of the Limited Partners on their behalf, to pay when due and payable any amount of German income taxes required to be paid by the Limited Partners on their income on the annual profits of the partnership as partners of the Borrower and on the annual profits from the Participation and (B) provided that the Credit Rating at the date of such distribution is B3 or better by Moody’s and B- or better by Standard & Poor’s, distributions (by way of dividends, repurchase, redemption or otherwise) by the Borrower to AMD Fab 36 Holding GmbH or any Holding Company or Affiliate thereof on its behalf, in amounts not exceeding, in the aggregate, the Excess Contributed Capital Amount other than Excess Contributed Capital Amounts which have been made available pursuant to paragraph (b) (iv) below;

 

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(b)

provided that no Default or Event of Default has occurred and is continuing (unless otherwise determined by the Majority Lenders):

 

(i)

payments of principal under the Revolving Credit Agreement made in compliance with the provisions of the Subordination Agreement, any payment in accordance therewith being subject to a Credit Rating at the date of such payment of B3 or better by Moody’s and B- or better by Standard & Poor’s, or other relevant payments permitted under the Subordination Agreement; and

 

(ii)

payments made to the General Partner in an aggregate amount of up to the equivalent of USD75,000 per annum (plus applicable VAT).

“ Permitted Indebtedness ” means any Financial Indebtedness:

 

(a)

arising under or permitted pursuant to the Finance Documents or Project Documents;

 

(b)

to the extent that such Financial Indebtedness is subordinated on terms acceptable to the Majority Lenders (acting reasonably) or pursuant to the Subordination Agreement;

 

(c)

other indebtedness arising under any Existing Indebtedness, provided that such Financial Indebtedness and/or indebtedness is repaid or prepaid before the date of initial Utilisation;

 

(d)

arising under the Revolving Credit Agreement or a Subordinated Loan Agreement;

 

(e)

arising under and permitted by Clause 20.25 (Treasury Transactions);

 

(f)

to which the Majority Lenders shall have given their prior written consent;

 

(g)

in respect of current accounts payable and accrued expenses incurred in the ordinary course of business;

 

(h)

from the first Utilisation Date, incurred for leasing arrangements over assets in the ordinary course of business in an aggregate amount not exceeding in each case:

 

(i)

twenty-five million (25,000,000) EUR up to and including 31 December 2007;

 

(ii)

fifty million (50,000,000) EUR up to and including 31 December 2008; and

 

(iii)

seventy-five million (75,000,000) EUR thereafter;

 

(i)

without double counting, arising under any guarantee or indemnity referred to in paragraph (b) of the definition of “Permitted Loans and Guarantees”; or

 

(j)

not falling within paragraphs (a) to (i) above provided that the aggregate amount of Financial Indebtedness, performance bonds, surety bonds and contingent obligations incurred in the ordinary course of business by the Borrower falling within this paragraph (j) does not exceed ten million (10,000,000) EUR (or its equivalent in another currency or currencies on the date it was incurred) at any time.

 

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“ Permitted Loans and Guarantees ” means:

 

(a)

any loan, credit or other financial accommodation arising under or permitted pursuant to the Transaction Documents; and

 

(b)

any guarantee or indemnity given by the Borrower in the ordinary course of business in respect of indebtedness or Financial Indebtedness pursuant to paragraphs (c), (e) (to the extent not exceeding the ten million (10,000,000) EUR limit set out in paragraph (j), of the definition of “ Permitted Indebtedness ”) or (g), or any performance bonds, surety bonds or contingent obligations pursuant to paragraph (j), of the definition of “ Permitted Indebtedness ” with a term not exceeding the due date of any such indebtedness or Financial Indebtedness, performance bonds, surety bonds or contingent obligations, as applicable.

“ Permitted Security ” means:

 

(a)

any of the Security created pursuant to the Security Documents together with such other Security as the Facility Agent may by notice to the Borrower pursuant to this Agreement or a Security Document demand that the Borrower provides for all or any part of its obligations under the Finance Documents;

 

(b)

any Existing Security, provided that such Security is released before the date of initial Utilisation;

 

(c)

any Security arising by operation of law and in the ordinary course of trading, provided that any such Security is discharged within twenty (20) days after having arisen;

 

(d)

any Security imposed by court order, other than one applied for by the Borrower, provided that the amounts secured thereunder relate to:

 

(i)

overdue amounts; and

 

(ii)

for which the Borrower contests in good faith;

 

(e)

any retention of title arrangement entered into by the Borrower in the normal course of its trading activities on the counterparty’s standard or usual terms to the extent that such terms are customary;

 

(f)

any Security over or affecting any asset acquired by the Borrower after the date of this Agreement if:

 

(i)

the Security was not created in contemplation of the acquisition of that asset by it;

 

(ii)

the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by it; and

 

(iii)

the Security is removed or discharged within two (2) months of the date of acquisition of such asset;

 

(g)

any pledge over a deposit or any guarantee (up to an aggregate amount not exceeding five (5)  per cent. of the guaranteed maximum price under the EPC Contract) to collateralise the Borrower’s obligations under the EPC Contract; provided that , the Security Agent benefits from a second-ranking pledge over such deposit or from a similar second ranking security interest; and

 

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(h)

any Security created in relation to any indebtedness permitted pursuant to paragraph (j) of the definition of “ Permitted Indebtedness ”.

“ Prime Bank ” means a financial institution with a rating of not lower than A3 (Moody’s Investor Services, Inc.) or A- (Standard & Poor’s Corporation).

“ Project ” means the construction and operation of a 300mm silicon wafer microprocessor fabrication facility located at Wilschdorfer Landstrasse, 01109 Dresden to be owned and operated by the Borrower with a planned total capital expenditure (including, without limitation, construction costs) by 31 December 2007 of approximately two billion, four hundred million (2,400,000,000) EUR.

“ Project Documents ” means the documents listed in Schedule 13 ( The Project Documents ) as at the Amendment Date, and any other documents entered into by either Obligor that are not Finance Documents, are required in relation to the Project and are designated as such by the Facility Agent and the Borrower, and “ Project Document ” means any of them.

“ Project Engineer ” means M+W Zander Facility Engineering GmbH or any person who replaces them as Project Engineer from time to time with the consent of the Majority Lenders and the Borrower.

“ Project Works ” means the design, development and construction of the Project at the Site and any other works contemplated in the Project Documents in relation to the Project.

“ Purchase Agreement ” means the purchase agreement dated 21 April 2004, as amended on 19 April 2005 and , by the Exit Agreement, on or about the Amendment Date, made between Leipziger Messe GmbH, AMD Fab 36 Holding GmbH, AMD Fab 36 Admin GmbH and FoundryCo, concerning partner or equity interests ( Gesellschaftsanteile ) in the partnership of the Borrower ( “Kaufvertrag über Kommanditgesellschaftsanteile” ) and the purchase agreement dated 21 April 2004, as amended on 19 April 2005 and , by the Exit Agreement, on or about the Amendment Date, made between Leipziger Messe GmbH, AMD Fab 36 Holding GmbH, AMD Fab 36 Admin GmbH, FoundryCo and the Borrower concerning the Participation ( “Kaufvertrag über stille Beteiligungen” ).

“ Qualifying Lender ” means in respect of any payment by the Borrower or any Guarantor which is capable of attracting a Tax Deduction (as defined in Clause 12.1 ( Definitions )), a Lender which is beneficially entitled to a payment of interest under a Finance Document and which is both a German Qualifying Lender and a US Qualifying Lender.

“ Quarter Date ” means the last day of each Fiscal Quarter.

“ Quotation Date ” means, in relation to any period for which an interest rate is to be determined, (i) (if the currency is Euro) two TARGET Days before the first day of that period and (ii) (if the currency is Dollar) two Business Days before the first day of that period, in each case unless market practice differs in the European interbank market (or if the currency is Dollar, in the London interbank market), in which case the Quotation Day will be determined by the Facility Agent in accordance with market practice in the relevant interbank market (and if quotations would normally be given by leading banks in the relevant interbank market on more than one day, the Quotation Day will be the last of those days).

 

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“ Real Estate Appraiser ” means Angermann & Lüders GmbH & Co. KG or any person who replaces them as Real Estate Appraiser from time to time with the consent of the Majority Lenders and the Borrower.

“ Reference Banks ” means Commerzbank Aktiengesellschaft, Landesbank Baden-Württemberg and Dresdner Bank AG and the principal offices of such other banks as may be appointed by the Facility Agent in consultation with the Borrower.

“ Relevant Invoice ” means, in relation to a Utilisation Request, each invoice in relation to which that Utilisation Request has been given, as identified in such Utilisation Request and relating to the purchase of Equipment and the payment of costs for Services incurred by the Borrower for the purposes of implementing the Project (in accordance with the Business Plan).

“ Relevant Period ” has the meaning given to it in Clause 19.1 ( Financial Definitions ).

“ Reorganisation ” has the meaning ascribed to that term in the Amendment Agreement and made between, inter alia , the Borrower, the Guarantors, the Lenders, the Facility Agent and the Security Agent.

“ Repayment Date ” means each of the dates specified in the table in Clause 6.1 ( Repayment of the Loans ).

“ Repayment Instalment ” means, in relation to each Repayment Date, the amount by which the aggregate principal amount of the EUR Outstandings and the USD Outstandings is to be reduced on that Repayment Date in accordance with paragraph (a) of Clause 6.1 ( Repayment of the Loans ), as reduced, if applicable, in accordance with Clause 7.1 ( Illegality ) to Clause 7.4 ( Mandatory Prepayment from the Escrow Account ) (inclusive), or Clause 7.7 ( Voluntary Prepayment of the Loans ) to 7.10 ( Right of Repayment and Cancellation in Particular Circumstances ) (inclusive).

“ Repeating Representations ” means each of the representations set out in Clause 17.2 ( Status ) to Clause 17.8 ( Governing Law and Enforcement ) (inclusive), Clause 17.11 ( No Default ) to Clause 17.23 ( No Security ) (inclusive) and Clause 17.27 ( Management Plans ) to Clause 17.31 ( Compliance with Laws and Regulations ) (inclusive).

“ Reports ” means:

 

(a)

the report of the Technical Appraiser dated 26 September 2003 concerning the projected fair market value of the Equipment;

 

(b)

the report of Arthur D. Little dated 4 November 2003 concerning Project costs, feasibility, state of technology and realisation;

 

(c)

the report of Willis Limited dated 5 April 2004 confirming that the contemplated insurance cover for the business and assets of the Borrower is sufficient, and the report of Aon Risk Services Inc. of Northern California Insurance Services dated 21 August 2006 setting out the insurance cover for the business and assets of the Borrower in accordance with the requirements of Schedule 17 ( Required Insurance );

 

(d)

the market research report from Gartner Dataquest, Inc. dated 8 August 2003; and

 

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(e)

the report of the Real Estate Appraiser dated 10 September 2003 concerning the real estate/property and site of the Borrower,

each such Report, other than that set out in paragraph (d) above, being addressed to, or permitted to be relied upon by, the Finance Parties, and “ Report ” shall be construed accordingly.

“ Required Insurance ” means the insurance cover under the policies taken out pursuant to the contracts set out in Schedule 17 ( Required Insurance ).

“ Revolving Credit Agreement ” means the revolving credit agreement in an amount of EUR 750,000,000 dated 21 April 2004, as amended on or about the Amendment Date, and made between FoundryCo and the Borrower.

“ Screen Rate ” means:

 

(a)

in relation to EURIBOR, the percentage rate per annum determined by the Banking Federation of the European Union for the relevant period, and

 

(b)

in relation to LIBOR, the British Bankers’ Association Interest Settlement Rate for the relevant currency and period,

displayed on the appropriate page of the Telerate screen. If the agreed page is replaced or service ceases to be available, the Facility Agent may specify another page or service displaying the appropriate rate after consultation with the Borrower and the Lenders.

“ SEC ” means the United States Securities and Exchange Commission or other successor United States governmental authority.

“ Security ” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

“ Security Agency Agreement ” means the security agency agreement dated 20 April 2004, as amended on or about the Amendment Date, made, inter alia , between the Borrower, the Guarantors, the General Partner, LM Beteiligungsgesellschaft, AMD Fab 36 Admin GmbH, AMD Fab 36 Holding GmbH and the Finance Parties.

“ Security Amendment Agreement ” means the global amendment agreement dated on or about the Amendment Date made between, inter alia , the Borrower, AMD Inc., the General Partner, LM Beteiligungsgesellschaft mbH, AMD Fab 36 Admin GmbH, AMD Fab 36 Holding GmbH and the Finance Parties, in respect of certain changes made to the Security Documents.

“ Security Assignment ” means the assignment agreements dated 20 April 2004 providing for the assignment to the Security Agent of the fixed and current assets of the Borrower.

“ Security Documents ” means:

 

(a)

the Guarantee Agreement;

 

(b)

the Federal/State Guarantee;

 

(c)

the Partnership Interest Pledges;

 

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(d)

the Share Pledges;

 

(e)

the Land Charge;

 

(f)

the Security Assignment;

 

(g)

the Assignments of Receivables;

 

(h)

the Global Assignment of Receivables;

 

(i)

the Assignment of Warranties;

 

(j)

the Assignment of Material German Contracts;

 

(k)

the Assignment of Material US Contracts;

 

(l)

the Assignment of Insurance Claims;

 

(m)

the Account Pledges;

 

(n)

the Assignments of Claims;

 

(o)

the Call Option;

 

(p)

the Assignment of the AMD Call Options;

 

(q)

the Assignment of Service Agreement Claims;

 

(r)

the Subordination Agreement;

 

(s)

the Security Agency Agreement;

 

(t)

the Security Amendment Agreement; and

 

(u)

any other document evidencing or creating Security over any asset of the Borrower to secure any obligation of the Borrower to a Finance Party under the Finance Documents or any of them.

“ Security Providers ” means the Federal/State Guarantors and the Obligors (or Subsidiaries of the Obligors), and “ Security Provider ” means any of them.

“ Selection Notice ” means a notice substantially in the form set out in Part II of Schedule 3 ( Requests ) given in accordance with Clause 9 ( Interest Periods ).

“ Services ” means the installation and commissioning of the Equipment and any additional building and installation services associated therewith.

“ Services Agreement ” means the service level agreement concerning certain administrative services to be provided by New German KG dated on or about the Amendment Date and made between New German KG, AMD Fab 36 Holding GmbH and the Borrower.

 

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“ Share Pledges ” means the following agreements providing for (save for Permitted Security) first ranking pledges over:

 

(a)

the shares of AMD Fab 36 Holding GmbH dated 20 April 2004 and certain future shares of AMD Fab 36 Holding GmbH dated on or about the Amendment Date;

 

(b)

the shares of AMD Fab 36 Admin GmbH dated 20 April 2004, as amended on or about the Amendment Date;

 

(c)

the limited liability interests of the General Partner dated 20 April 2004, as amended on or about the Amendment Date; and

 

(d)

the shares of LM Beteiligungsgesellschaft mbH dated 20 April 2004 and certain future shares of LM Beteiligungsgesellschaft mbH dated on or about the Amendment Date,

relating to all present and future shares held by such partners.

“ Signing Date ” means the date of this Agreement.

“ Site ” means the real property purchased and buildings to be erected at Wilschdorfer Landstrasse, 01109 Dresden in relation to the Project, registered with the Wilschdorf land register at the Dresden local court, district ( Gemarkung ) of Wilschdorf, folio 1019, parcel ( Flurstück ) no. 121/6.

“ Specified Time ” means a time determined in accordance with Schedule 9 ( Timetables ).

“ Standard & Poor’s ” means Standard & Poor’s Corporation.

“ Step Plan ” means the step plan prepared by AMD Inc. in the agreed form, describing the measures to be implemented for the purposes of the Reorganisation, to be provided in accordance with the terms of the Amendment Agreement.

“ Subordinated Loan ” means any loan made to, or debt instrument issued by, the Borrower, under a Subordinated Loan Agreement, the Revolving Credit Agreement or any other document or instrument, which is subordinated to the rights and claims of the Finance Parties in accordance with the Subordination Agreement.

“ Subordinated Loan Agreement ” means any agreement pursuant to which FoundryCo (or a direct or indirect wholly-owned Subsidiary of FoundryCo) provides or has acquired a subordinated loan to the Borrower, which subordinated loan will be subject to the restrictions imposed by Clause 20.20 ( Subordinated Loans ) and Clause 20.21 ( Distributions ).

“ Subordination Agreement ” means the subordination agreement dated 20 April 2004, as amended on or about the Amendment Date, made amongst, inter alia , the Borrower, the Guarantors, the General Partner, the Limited Partners and the Finance Parties in relation to the equity and subordinated debt of the Borrower and other claims of the Affiliates of the Borrower.

“ Subsidiary ” means, in relation to any company, corporation or partnership:

 

(a)

a company, corporation or partnership which is “ controlled ”, directly or indirectly, by and therefore is a “ dependent enterprise ”( abhängiges Unternehmen ) of the first

 

25

mentioned company, partnership or corporation, in the case of the latter, within the meaning of Sec. 17 Stock Corporation Act ( Aktiengesetz ), or which is a “ subsidiary ” ( Tochterunternehmen ) within the meaning of Sec. 290 Commercial Code ( Handelsgesetzbuch ) of such company, corporation or partnership;

 

(b)

a company, corporation or partnership more than half of the issued share capital of which is beneficially owned, directly or indirectly, by the first mentioned company, corporation or partnership or more than half of the dividend of which is declared from time to time by the first mentioned company;

 

(c)

a partnership in which:

 

(i)

there is a participation of more than fifty (50)  per cent . in the assets of such partnership by the first mentioned company, corporation or partnership; or

 

(ii)

the first mentioned company, corporation or partnership has the power to (A) cast, or control the casting of, more than fifty (50)  per cent . of the maximum number of votes that might be cast at a general meeting, (B) appoint or remove all, or the majority of, the directors or other equivalent officers, or (C) give directions with respect to the operating and financial policies which the directors or other equivalent officers thereof are obliged to comply with; or

 

(d)

in the case of a limited partnership, a partnership in which the general partner has control and the first mentioned company, corporation or partnership has control of the general partner,

and, for this purpose, a company, corporation or partnership shall be treated as being controlled by another if that other company, corporation or partnership is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.

“ Subsidy Agreement ” means any agreement made by the Borrower or any administrative decision ( Bescheid ) addressed to the Borrower in relation to grants and/or allowances ( Investitionszulagen/Investitionszuschüsse ) in connection with the Project and any statutory or other obligations imposed on the Borrower associated therewith.

“ TARGET ” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system commonly known as “TARGET2” which utilises a single shared platform and which was launched on 19 November 2007.

“ TARGET Day ” means any day on which TARGET is open for the settlement of payments in EUR.

“ Tax ” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

“ Technical Adviser ” means Fraunhofer Institut Siliziumtechnologie (ISIT), Fraunhoferstraße 1, 25524 Itzehoe, or any person who replaces them as Technical Adviser from time to time with the consent of the Majority Lenders and the Borrower.

 

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“ Technical Appraiser ” means Emerald Technology Valuations LLC or any person who replaces them as Technical Appraiser from time to time with the consent of the Majority Lenders and the Borrower.

“ Technical Completion ” means attainment of the following:

 

(a)

a certificate issued by the Technical Adviser confirming that the Borrower has in place a wafer fabrication process that is suitable for 300mm, high volume production of advanced, competitive microprocessors;

 

(b)

a certificate issued by the Technical Adviser confirming that the Borrower has achieved a minimum of 325 wafer starts per week on average over a period of four (4) consecutive weeks (the “ Average WSPW ”), and a seventy-five (75)  per cent . average process yield over the same period of four (4) consecutive weeks (the “ Average Yield ”); and

 

(c)

cumulative capital expenditures (less write-offs for technically obsolete or unsuitable equipment) of the Borrower greater or equal to one billion (1,000,000,000) EUR, as confirmed by the Auditors.

“ Termination Date ” means 31 March 2011.

“ Total Commitments ” means the aggregate of the Commitments, being seven hundred million (700,000,000) EUR at the Signing Date.

“ Transaction Documents ” means the Finance Documents and the Project Documents and any other document designated as such by the Facility Agent and the Borrower, and “ Transaction Document ” means any of them.

“ Transaction Security ” means any Security for all or any part of the obligations of the Borrower under the Finance Documents or any of them expressed to be created by or pursuant to, or to be evidenced in, the Security Documents or any of them.

“ Transfer Certificate ” means a certificate substantially in one of the forms set out in Schedule 5 ( Form of Transfer Certificates ) or any other form agreed between the Facility Agent and the Borrower.

“ Transfer Date ” means, in relation to a transfer, the later of:

 

(a)

the proposed Transfer Date specified in the Transfer Certificate; and

 

(b)

the date on which the Facility Agent executes the Transfer Certificate.

“ Treasury Transaction ” means any currency or interest purchase, cap or collar agreement, forward rate agreement, interest rate or currency future or option contract, foreign exchange or currency purchase or sale agreement, interest rate swap, currency swap or combined interest rate and currency swap agreement and any other similar agreement.

“ Treaties ” means the German Treaty and the US Treaty, and “ Treaty ” means any of them.

“ Treaty State ” means a jurisdiction having both a German Treaty and a US Treaty.

“ Unpaid Sum ” means any sum due and payable but unpaid by the Borrower under the Finance Documents.

 

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“ 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.

“ USD Outstandings ” means, at any time, the aggregate of the outstanding Loans denominated in USD.

“ US Qualifying Lender ” means:

 

(a)

a Lender incorporated under the laws of the United States or any political sub-division thereof, but only if the Lender is entitled to receive any and all payments under the Finance Documents (subject to completion of any procedural formalities) without a Tax Deduction; or

 

(b)

a US Treaty Lender.

“ US Treaty ” means a double taxation agreement with the United States which makes provision for full exemption of tax imposed by the United States on interest.

“ US Treaty Lender ” means a Lender which:

 

(a)

is treated as a resident of a US Treaty State for the purposes of the US Treaty;

 

(b)

does not carry on business in the United States through a permanent establishment with which that Lender’s participation in a Loan is effectively connected; and

 

(c)

is entitled under the US Treaty (subject to the completion of any necessary procedural formalities) to receive any and all payments under the Finance Documents without a Tax Deduction (as defined in Clause 12.1 ( Definitions ).

“ US Treaty State ” means a jurisdiction to which a US Treaty applies.

“ Utilisation ” means a utilisation of the Facility.

“ Utilisation Date ” means the date of a Utilisation, being the date on which the relevant Loan is made or to be made.

“ Utilisation Request ” means a notice substantially in the form set out in Part I of Schedule 3 ( Requests ).

“ VAT ” means value added tax and any other tax of a similar nature.

 

1.2	Interpretation

 

(a)

Any reference in this Agreement to:

 

(i)

assets ” includes present and future properties, revenues and rights of every description;

 

(ii)

the “ Facility Agent ”, any “ Mandated Lead Arranger ”, the “ Reporting Agent ”, the “ Security Agent ”, any “ Finance Party ”, any “ Lender ”, any “ Obligor ” or any “ Party ” shall be construed so as to include its successors in title, permitted assigns and permitted transferees;

 

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(iii)

“ Dresdner Kleinwort ” is a reference to Dresdner Kleinwort, the investment banking division of Dresdner Bank AG;

 

(iv)

the “ European interbank market ” means the interbank market for EUR operating in Participating Member States;

 

(v)

a “ Finance Document ” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, supplemented, modified, renewed, extended, restated or novated;

 

(vi)

“ indebtedness ” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

(vii)

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;

 

(viii)

a “ regulation ” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

 

(ix)

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

 

(x)

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)

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

 

(d)

If there is any conflict between this Agreement and any other Finance Document, the provisions of this Agreement will prevail.

 

(e)

A Default (other than an Event of Default) is “ continuing ” if it has not been remedied or waived and an Event of Default is “ continuing ” if it has not been remedied or waived.

 

1.3	Currency definitions

 

In this Agreement:

 

(a)

“ EUR ” and “ Euro ” denote the single currency of the Participating Member States;

 

(b)

“ USD ” and “ Dollar ” denote the lawful currency of the United States; and

 

(c)

“ GBP ” and “ Sterling ” denote the lawful currency of the United Kingdom.

 

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SECTION 2

THE FACILITY

 

2.	THE FACILITY

 

2.1	The Facility

Subject to the terms of this Agreement, the Lenders make available to the Borrower a term loan facility to be utilised in either EUR or USD in an aggregate amount the Base Currency Amount of which is equal to the Total Commitments.

 

2.2	Finance Parties’ Rights and Obligations

 

(a)

The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

 

(b)

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt. The creation of jointly held assets ( Gesamthandsvermögen ) is excluded.

 

(c)

A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.

 

3.

PURPOSE

The Borrower shall:

 

(a)

by way of Utilisations during the Availability Period; and/or

 

(b)

for up to a twelve (12) Month period after the expiry of the Availability Period, by way of cash withdrawals from the Escrow Account,

apply all amounts borrowed by it under the Facility in or towards the payment of the Relevant Invoices (unless the Utilisation(s) are made for the purposes of being deposited into the Escrow Account).

 

4.	CONDITIONS OF UTILISATION

 

4.1	Initial Conditions Precedent

The Borrower will ensure that within five (5) Business Days of the Signing Date, the Facility Agent will have received all of the documents and other evidence listed in Part I ( Initial Conditions Precedent ) of Schedule 2 ( Conditions Precedent ) in form and substance satisfactory to the Facility Agent. The Facility Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.

 

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4.2	Conditions Precedent to First Utilisation

 

(a)

The Borrower may not deliver the first Utilisation Request unless the Facility Agent has received all of the documents and other evidence listed in Part II ( Conditions Precedent to First Utilisation ) of Schedule 2 ( Conditions Precedent ) in form and substance satisfactory to the Facility Agent. The Facility Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.

 

(b)

Unless the Borrower is also able to satisfy the requirements of paragraph (a) of Part III ( Further Conditions Precedent ) of Schedule 2 ( Conditions Precedent ), it may only deliver the first Utilisation Request in respect of a Base Currency Amount of no more than four hundred million (400,000,000) EUR.

 

4.3	Further Conditions Precedent

The Lenders will only be obliged to comply with Clause 5.4 ( Lenders’ Participation ) if on the date of any further Utilisation Request and on the proposed Utilisation Date, and the Facility Agent will only be obliged to permit a withdrawal from the Escrow Account (other than as required for investments in permitted Cash Equivalents) if on the date of a request for such withdrawal and on the date of such withdrawal:

 

(a)

the Facility Agent has received all of the documents and other evidence required by Part III ( Further Conditions Precedent ) of Schedule 2 ( Conditions Precedent ), to the extent applicable, in form and substance satisfactory to the Facility Agent;

 

(b)

the sum of the (i) Base Currency Amount of the proposed Utilisation, (ii) the total EUR Outstandings and (iii) the total USD Outstandings (converted for that purpose into EUR at the Facility Agent’s Spot Rate of Exchange on the date falling four (4) Business Days before the proposed Utilisation Date or, if later, the date on which the relevant Utilisation Request is submitted to the Facility Agent) of all prior Utilisations does not exceed seven hundred million (700,000,000) EUR (less the amount of any prepayments or cancellations);

 

(c)

no Default is continuing or would result from the proposed Loan; and

 

(d)

the Repeating Representations made or deemed to be made are true, accurate and correct in all material respects as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true, accurate and correct in all material respects on the date originally made or deemed to be made.

 

4.4	Maximum Number of Loans

 

(a)

The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation more than twenty (20) Loans would be outstanding.

 

(b)

The Borrower may not deliver more than two (2) Utilisation Requests in any single Month.

 

(c)

The Borrower may not request that a Loan be divided if, as a result of the proposed division, there would be outstanding more Loans than provided for in paragraph (a) above.

 

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SECTION 3

UTILISATION

 

5.	UTILISATION

 

5.1	Delivery of a Utilisation Request

The Borrower may utilise the Facility by delivery to the Facility Agent of a duly completed Utilisation Request not later than at the Specified Time.

 

5.2	Completion of a Utilisation Request

 

(a)

Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

 

(i)

the proposed Utilisation Date is a Business Day within the Availability Period; however, on or before the expiry of the Availability Period, any portion or all of the undrawn Commitments may, at the option of the Borrower, either be:

 

(A)

drawn down and deposited into the Escrow Account for future application solely towards the purpose set out in Clause 3 ( Purpose ); or

 

(B)

cancelled;

 

(ii)

the currency and amount of the Utilisation comply with Clause 5.3 ( Currency and Amount );

 

(iii)

the proposed Interest Period complies with Clause 9 ( Interest Periods ); and

 

(iv)

it provides payment instructions.

 

(b)

Only one Loan may be requested in each Utilisation Request.

 

5.3	Currency and Amount

 

(a)

The currency specified in a Utilisation Request must be EUR or USD.

 

(b)

The amount of the proposed Loan must be an amount that is not more than that of the Available Facility and which is a minimum of seven and one half million (7,500,000) EUR (or ten million (10,000,000) USD if the currency selected is USD) and is an integral multiple of two and one half million (2,500,000) EUR (or five million (5,000,000) USD if the currency selected is USD) or, if less, the Available Facility (in case the currency specified in the Utilisation Request is USD, to be determined on the basis of the Facility Agent’s Spot Rate of Exchange on the date falling four (4) Business Days before the proposed Utilisation Date), and in any event such that its Base Currency Amount is less or equal to the Available Facility.

 

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5.4	Lenders’ Participation

 

(a)

If the conditions set out in this Agreement have been met each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

 

(b)

The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to the making of such Loan.

 

(c)

The Facility Agent shall determine the Base Currency Amount of each Loan which is to be made in USD and notify each Lender of the amount, currency and the Base Currency Amount of each Loan and the amount of its participation in that Loan, in each case by the Specified Time.

 

5.5	Cancellation of the Facility

If, prior to the date on which it receives a Utilisation Request, the Facility Agent receives a notice of cancellation of the whole or part of the Available Facility which is to take effect under Clause 7.8 ( Voluntary Cancellation ) on a date falling on or after such date (but before the Loan requested in that Utilisation Request has been made), such Available Facility shall be treated, for the purpose of Clause 5.3 ( Currency and Amount ), as if it had already been reduced by the amount of such cancellation (as specified in such notice). Nothing in this Clause 5.5 shall be treated as reducing any Lender’s Available Commitment under the Facility for the purposes of Clause 11.1 ( Commitment Fee ) prior to the date on which such cancellation would otherwise take effect pursuant to such cancellation notice.

 

5.6	Cancellation of a Lender’s Commitment

If a Lender’s Commitment is cancelled under Clause 7.1 ( Illegality ) or Clause 7.10 ( Right of Repayment and Cancellation in Particular Circumstances ) after the Facility Agent has received a Utilisation Request but before the Loan requested in that Utilisation Request has been made, then, unless the commitment to advance an amount equal to the proportion which such Lender’s Commitment bore to the Total Commitments immediately prior to such cancellation taking effect (the “ Affected/Subject Lender’s Proportion ”) is assumed by, either:

 

(a)

another Lender or other Lenders, to the extent not exceeding such Lender’s or Lenders’ Available Commitment; or

 

(b)

an Eligible Transferee (as defined in and in accordance with Clause 7.1 ( Illegality ) or Clause 7.10 ( Right of Repayment and Cancellation in Particular Circumstances ), as the case may be) procured by the Borrower,

within one (1) day of receipt of such Utilisation Request, that Loan shall be reduced by the amount of the Affected/Subject Lender’s Proportion.

 

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5.7	Selection of Currency

The Borrower shall select the currency of a Loan in a Utilisation Request. A selection of USD as the currency for a Loan is not possible when

 

(a)

at the time of the selection, the Group Consolidated Cash, as shown in the most recent financial statements and certificates to be provided to the Facility Agent pursuant to the terms of the Guarantee Agreement amounts to less than five hundred million (500,000,000) USD; or

 

(b)

if the requirements for disapplying paragraph (a) of Clause 20.35 ( Balancing Payments to and from Cash Reserve Account ) pursuant to paragraph (b) of Clause 20.35 are not fulfilled, an amount of less than the equivalent (in USD) of 5  per cent of total USD Outstandings after the proposed Utilisation has been paid into and is standing to the credit of the Cash Reserve Account.

 

5.8	Unavailability of Currency

If before any Quotation Day:

 

(a)

a Lender notifies the Facility Agent that USD is not readily available to it in the amount required; or

 

(b)

a Lender notifies the Facility Agent that compliance with its obligation to participate in a Loan in USD would contravene a law or regulation applicable to it,

the Facility Agent will give notice to the Borrower to that effect by 11 a.m. on that Quotation Day. In this event, any Lender that gives notice pursuant to this Clause 5.8 will be required to participate in the Loan in the Base Currency (in an amount equal to that Lender’s proportion of the Base Currency Amount) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest Period.

 

5.9	No Re-conversion

Loans denominated in USD cannot be reconverted to EUR, except as provided in Clause 20.36 ( Reconversion of USD Outstandings ).

 

5.10	Facility Agent’s Calculations

Each Lender’s participation in a Loan will be determined in accordance with paragraph (b) of Clause 5.4 ( Lenders’ participation ).

 

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SECTION 4

REPAYMENT, PREPAYMENT AND CANCELLATION

 

6.

REPAYMENT

 

6.1	Repayment of the Loans

 

(a)

Subject to the other provisions of this Agreement, the Borrower shall repay on each Repayment Date an amount or amounts such that the amount of all the EUR Outstandings and all the USD Outstandings is reduced by an amount equal to the percentage of the aggregate amount of all such Loans as calculated in paragraph (b) below.

 

(b)

The Borrower shall reduce the amount of all the EUR Outstandings and USD Outstandings by an amount equal to the percentage of the aggregate amount of all such Loans on 29 September 2007 which is specified in Column B and appears opposite the relevant Repayment Date in the table below:

 

 

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(c)

Each repayment which is to be made under paragraph (b) above on a Repayment Date shall be made:

 

(i)

firstly, by repaying on such Repayment Date EUR Outstandings and USD Outstandings having Interest Periods ending on such Repayment Date in accordance with paragraph (d) below, if applicable; and

 

(ii)

secondly, by repaying the other Loans in accordance with paragraph (d) below, if applicable.

 

(d)

If the aggregate amount of all the Outstandings having an Interest Period ending on a Repayment Date exceeds the Repayment Instalment due on that date, then the Borrower may, by not less than four (4) Business Days’ prior notice to the Facility Agent, select which of those Loans will be wholly or partially repaid to enable the repayment required under paragraph (b) above to occur; provided that , if the Borrower fails to give such notice, the Facility Agent shall select the Loans to be wholly or partially repaid as aforesaid.

 

(e)

The Borrower may not reborrow any part of the Facility which is repaid.

 

(f)

EUR Outstandings shall be repaid in EUR. USD Outstandings shall be repaid in USD. The same applies to prepayments and payments of interest.

 

6.2	Supplemental Cash Reserves

If on any scheduled Repayment Date the Credit Rating is Caa2 or lower by Moody’s or CCC or lower by Standard & Poor’s, the Borrower shall, in accordance with the directions of the Facility Agent (acting on the instructions of the Majority Lenders), ensure that the Cash reserves to be held in accordance with Clause 20.18 ( Minimum Cash Balances ) shall be increased as provided in paragraphs (a) and (b) of that Clause.

 

6.3	Extension of Termination Date

 

(a)

The Borrower may at any time after the end of the Availability Period, provided that the aggregate value of all Outstandings is no more than EUR420,000,000, by written notice (the “ Renewal Request ”) request that the Termination Date be extended to the Extended Termination Date in accordance with a new proposed repayment schedule (“the New Repayment Schedule ”) replacing the table set out in paragraph (b) of Clause 6.1 ( Repayment of the Loans ) (the “ Extension ”), provided such Renewal Request is received by the Facility Agent no earlier than one hundred and twenty (120) days and no later than ninety (90) days prior to the date on which the Borrower wants the Extension to take effect (the “ Effective Date ”).

 

(b)

The Facility Agent shall promptly notify each Lender and the Federal/State Guarantors of its receipt of a Renewal Request. Each Lender shall have the right, in its absolute discretion, to accept or decline any Renewal Request and the Federal/State Guarantors shall have the right to veto the Extension. A Lender and

 

36

the Federal/State Guarantors which agree(s) to the Extension as requested by a Renewal Request shall notify the Facility Agent of its agreement within sixty (60) days after the date on which the Facility Agent has notified the Lenders and the Federal/State Guarantors (the “ Renewal Decision Date ”). If a Lender or the Federal/State Guarantors do not so notify the Facility Agent, it/they will be deemed to have declined or vetoed the Extension.

 

(c)

If all the Lenders, together with the Federal/State Guarantors, agree to the Extension, then:

 

(i)

on the Effective Date, the date for the repayment of the participations in the Loans of the Lenders as at the Termination Date will be extended to the Extended Termination Date in accordance with the New Repayment Schedule; and

 

(ii)

the Borrower shall, on the first (1 st ) Business Day after the Effective Date, pay to the Facility Agent for each Lender an extension fee in an amount which shall have been agreed amongst the Borrower and the Lenders prior to the Renewal Decision Date.

 

(d)

If any Lender or the Federal/State Guarantors decline to agree to or vetoes the Extension, the Borrower shall, on the Termination Date, repay in full the Loans.

 

(e)

A Renewal Request is irrevocable and may not be withdrawn.

 

7.	PREPAYMENT AND CANCELLATION

 

7.1	Illegality

 

(a)

A Lender must notify the Facility Agent promptly if it becomes aware that it is unlawful in any applicable jurisdiction for that Lender (an “ Affected Lender ”) to perform any of its obligations under a Finance Document or to fund or maintain its share in any Loan to the Borrower.

 

(b)

After notification under paragraph (a) above and upon the Facility Agent promptly notifying the Borrower:

 

(i)

the Borrower must repay or prepay the share of the Affected Lender in each Loan made to it on the date specified in paragraph (c) below; and

 

(ii)

the Commitment of the Affected Lender in the relevant Facility will be immediately cancelled.

 

(c)

The date for repayment or prepayment of an Affected Lender’s share in a Loan will be the earliest of the following dates:

 

(i)

the last day of the Interest Period for that Loan occurring after the Facility Agent has notified the Borrower;

 

(ii)

the date specified by the Affected Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law); and

 

(iii)

the next Repayment Date.

 

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(d)

Upon the occurrence of the events set out in paragraphs (a) and (b) above, so long as:

 

(i)

no Event of Default shall have occurred and be continuing; and

 

(ii)

the Borrower has obtained a commitment from another Lender or bank, financial institution, trust, fund or other entity which intends to become a Party in accordance with Clause 22 ( Changes to the Lenders ) that is a Qualifying Lender (an “ Eligible Transferee ”) to purchase at par the Affected Lender’s Loans and assume the Affected Lender’s Commitments and all other obligations of the Affected Lender under the relevant Finance Documents,

the Borrower may request of the Affected Lender, and the Affected Lender shall in good faith consider such request, that it transfer all of its Loans and Commitments to such Eligible Transferee in accordance with Clause 22.5 ( Procedure for Transfer ); provided that , prior to or concurrently with such replacement:

 

(iii)

the Borrower or the Eligible Transferee shall have paid to the Affected Lender all amounts due to it under this Agreement;

 

(iv)

the Borrower or the Eligible Transferee shall have paid to the Facility Agent the transfer fee of two thousand (2,000) EUR required under Clause 22.3 ( Assignment and Transfer Fee ); and

 

(v)

all the requirements for such transfer set out in Clause 22.5 ( Procedure for Transfer ) shall have been fulfilled.

 

7.2	Mandatory Prepayment from Asset Disposals

 

(a)

Subject to paragraphs (b) and (c) below, the Borrower shall ensure that the Net Proceeds arising from the disposal of any asset (including Equipment) by the Borrower are paid to the Facility Agent promptly upon the receipt and applied in prepayment of the EUR Outstandings and the USD Outstandings in accordance with Clause 7.5 ( Application of Prepayments ).

 

(b)

Paragraph (a) shall not apply to Net Proceeds arising from any disposal referred to in paragraph (a) above:

 

(i)

to the extent that such Net Proceeds are promptly upon receipt re-invested in:

 

(A)

similar or like assets (including Equipment) of a comparable or superior quality, type or value in the ordinary course of business; or

 

(B)

other capital expenditure provided in the Business Plan (as modified by subsequent Management Plans),

within a period of one hundred and eighty (180) days from the date of receipt of such Net Proceeds by the Borrower; provided however , that the Borrower shall be deemed to have applied Net Proceeds in accordance with this Clause 7.2 prior to the expiration of such one hundred and eighty (180) days if and to the extent it has presented to the Facility Agent one or more bona fide purchase orders for property or assets to be used in connection with the Project;

 

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(ii)

to the extent arising from Permitted Disposals; or

 

(iii)

if the Net Proceeds per disposal do not exceed ten million (10,000,000) EUR (or its equivalent in another currency on the date of such disposal) or, when aggregated with the Net Proceeds received from any other disposals of assets made in the immediately preceding twelve (12) calendar month period (excluding the Net Proceeds from disposals falling within sub-paragraphs (i) or (ii) above), do not exceed thirty million (30,000,000) EUR (or its equivalent in another currency on date of such disposals).

 

(c)

The Borrower shall be entitled, during the period of one hundred and eighty (180) days from the date of receipt of such Net Proceeds, to apply such Net Proceeds in accordance with paragraph (b)(i) above. Any amounts not so applied during such one hundred and eighty (180) day period shall thereafter be paid to the Facility Agent and applied in prepayment of the EUR Outstandings and the USD Outstandings in accordance with Clause 7.5 ( Application of Prepayments ).

 

7.3	Mandatory Prepayment from Insurance Proceeds

 

(a)

Subject to paragraphs (b) and (c) below, the Borrower shall ensure that any Insurance Proceeds received by it are paid to the Facility Agent promptly upon the receipt of such Insurance Proceeds and applied in prepayment of the EUR Outstandings and the USD Outstandings in accordance with Clause 7.5 ( Application of Prepayments ).

 

(b)

Paragraph (a) shall not apply to any Insurance Proceeds unless the Insurance Proceeds exceed five million (5,000,000) EUR (or its equivalent in another currency upon the date of their receipt) or, when aggregated with the Insurance Proceeds received by it from claims made in the immediately preceding twelve (12) calendar month period (excluding the Insurance Proceeds from disposals falling within paragraphs (c) below), exceed twenty-five million (25,000,000) EUR (or its equivalent in another currency upon the date of their receipt).

 

(c)

Paragraph (a) shall not apply to any Insurance Proceeds to the extent that such Insurance Proceeds are applied towards:

 

(i)

the replacement and/or reinstatement of the assets with similar or like assets (including Equipment) of a comparable or superior quality, type or value and/or repair of the assets in respect of which the relevant insurance claim was made (or to refinance any expenditure incurred in the replacement, reinstatement and/or repair of such assets); or

 

(ii)

other capital expenditure provided in the Business Plan (as modified by subsequent Management Plans),

in either case, within a period of one hundred and eighty (180) days from the date of receipt of such Insurance Proceeds by the Borrower (or the Borrower has entered into binding agreements to apply such Insurance Proceeds within such one hundred and eighty (180) day period).

 

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(d)

The Borrower shall be entitled, during the period of one hundred and eighty (180) days from the date of its receipt of such Insurance Proceeds, to apply such Insurance Proceeds in accordance with paragraph (c) above. Any sums not so applied during the one hundred and eighty (180) day period shall thereafter be paid to the Facility Agent and applied in prepayment of the EUR Outstandings and the USD Outstandings in accordance with Clause 7.5 ( Application of Prepayments ).

 

7.4	Mandatory Prepayment from the Escrow Account

On the date falling twelve (12) Months after the end of the Availability Period, any and all sums remaining in the Escrow Account shall be immediately applied in prepayment of the EUR Outstandings and the USD Outstandings in accordance with Clause 7.5 ( Application of Prepayments ), and the Facility Agent shall be entitled to take all action necessary to effect such application.

 

7.5	Application of Prepayments

 

(a)

Any amounts paid to the Facility Agent in accordance with Clause 7.2 ( Mandatory Prepayment from Asset Disposals ), Clause 7.3 ( Mandatory Prepayment from Insurance Proceeds ) and Clause 7.4 ( Mandatory Prepayment from the Escrow Account ) shall be applied in prepayment of the EUR Outstandings and the USD Outstandings and reduce the Borrower’s repayment obligations in inverse order of maturity, and pro rata (the relevant ratio to be calculated on the basis of the Facility Agent’s Spot Rate of Exchange) in respect of EUR Outstandings and USD Outstandings in each case.

 

(b)

Any mandatory prepayment of the Loans in accordance with this Clause 7 shall:

 

(i)

firstly, be applied to outstanding Loans in the order provided therefor in the applicable provision of this Clause 7; and

 

(ii)

secondly, reduce (and there shall be a corresponding cancellation in) the Available Facility.

 

(c)

For the purpose of determining the Lenders’ Available Commitments and for determining the Current Limit (as that term is defined in Clause 20.35 ( Balancing Payments to and from Cash Reserve Account ) at any relevant time, prepayments as applied to USD Outstandings shall be taken into account with the EUR equivalent of the relevant amount to be prepaid converted into USD on the basis of the Facility Agent’s Spot Rate of Exchange on the date of prepayment.

Any cancellation, except in the case of a cancellation pursuant to Clause 7.1 ( Illegality ) or Clause 7.10 ( Right of Repayment and Cancellation in Particular Circumstances ), shall reduce the Commitments of the Lenders rateably. No amount so cancelled may be reborrowed.

 

7.6	Date for Prepayment

If the provisions of Clause 7.1 ( Illegality ) (subject to the limitations of paragraph (c) of Clause 7.1) to Clause 7.3 ( Mandatory Prepayment from Insurance Proceeds ) (inclusive) would require the prepayment of a Loan otherwise than on the last day of an Interest Period relating to that Loan, the Borrower may, by written notice to the Facility Agent (to be received not less than five (5) Business Days prior to the date on which such prepayment

 

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would be required to be made (but for this Clause 7.6)), request that the amount of such prepayment be applied by the Facility Agent in prepayment of the relevant Loan on the last day of the then current Interest Period relating to that Loan.

 

7.7	Voluntary Prepayment of the Loans

 

(a)

Effective from and after the date of Closing, the Borrower may prepay the whole or any part of any Loan (but, if in part, being an amount that reduces the amount of the relevant Loan by a minimum amount of seven and one half million (7,500,000) EUR (or ten million (10,000,000) USD in case of Loans denominated in USD) and represents an integral multiple of two and one half million (2,500,000) EUR (or five million (5,000,000) USD in case of Loans denominated in USD), or, if less, the remaining amount of that Loan) on the last day of any Interest Period applicable to such Loan, upon at least ten (10) Business Days’ irrevocable written notice to the Facility Agent and specifying the principal amount of such prepayment and the Business Day on which such prepayment shall occur, upon:

 

(i)

the payment of the prepayment fee set out in Clause 7.8 ( Prepayment Fee ); and

 

(ii)

the payment of all accrued but unpaid interest in respect of the principal amount of the Loan prepaid.

 

(b)

Any prepayment under this Clause 7.7 made in EUR shall be immediately applied in satisfaction of the EUR Outstandings, and any prepayment made in USD shall be immediately applied in satisfaction of the USD Outstandings, in each case on a pro rata basis across all scheduled repayment amounts in the relevant currency.

 

(c)

For the purpose of determining the Lenders’ Available Commitments and for determining the Current Limit (as that term is defined in Clause 20.35 ( Balancing Payments to and from Cash Reserve Account ) at any relevant time, prepayments in respect of USD Outstandings shall be taken into account with the EUR equivalent of the relevant amount to be prepaid converted into USD on the basis of the Facility Agent’s Spot Rate of Exchange on the date of prepayment.

 

7.8	Prepayment Fee

 

(a)

If the Borrower prepays for any reason (whether voluntarily or otherwise) any of the outstanding Loans prior to the scheduled date on which such principal amount falls due, the Borrower shall pay to the Facility Agent, for the account of the Lenders, a prepayment fee determined in accordance with the following table; provided that, no such prepayment fee will be required in respect of a prepayment pursuant to Clause 7.1 ( Illegality ):

 

 

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(b)

For the purposes of paragraph (a) above, the Utilisation Date of any Loans drawn under the Facility and paid into the Escrow Account shall be the date on which such funds are withdrawn from the Escrow Account; provided that, the total prepayment fee due in respect of any such Loan will be reduced by the aggregate amount of Margin paid in respect of that Loan while held in the Escrow Account.

 

7.9	Voluntary Cancellation

 

(a)

Effective from and after the date of Closing, the Borrower may cancel the whole or any part of the Available Facility (being a minimum amount of seven and one half million (7,500,000) EUR and representing an integral multiple of two and one half million (2,500,000) EUR or, if less, the remaining amount of the Available Facility) upon at least ten (10) Business Days’ irrevocable written notice to the Facility Agent and upon payment of the cancellation fee set out in paragraph (b) below. Any amount so cancelled may not be reinstated.

 

(b)

If the Available Facility is cancelled at any time (whether pursuant to this Clause 7.8 or otherwise), the Borrower shall pay to the Facility Agent, for the account of the Lenders, a cancellation fee in EUR determined in accordance with the following table; provided that , no such cancellation fee will be required in respect of any portion of the Available Facility that is cancelled pursuant to Clause 7.1 ( Illegality ):

 

 

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(c)

Any cancellation under this Clause 7.9 shall reduce the Commitments of the Lenders rateably.

 

7.10	Right of Repayment and Cancellation in Particular Circumstances

 

(a)

If:

 

(i)

any sum payable to any Lender by the Borrower is required to be increased under paragraph (c) of Clause 12.2 ( Tax Gross-Up ); or

 

(ii)

any Lender claims indemnification from the Borrower under Clause 12.3 ( Tax Indemnity ) or Clause 13.1 ( Increased Costs ); or

 

(iii)

any Lender notifies the Facility Agent of its Minimum Reserve Cost,

the Borrower may, whilst (in the case of paragraphs (i) and (ii) above) the circumstance giving rise to the requirement or indemnification continues or (in the case of paragraph (iii) above) that Minimum Reserve Cost is greater than zero, give the Facility Agent at least seven (7) Business Days’ prior written notice of cancellation of the Commitments of that Lender (the “ Subject Lender ”) and its intention to procure the repayment of the Subject Lender’s participation in the Loans.

 

(b)

On receipt of a notice referred to in paragraph (a) above, any Available Commitment of the Subject Lender shall immediately be reduced to zero.

 

(c)

On the last day of each Interest Period which ends after the Borrower has given notice under paragraph (a) above (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay the Subject Lender’s participation in the Loan to which such Interest Period relates.

 

(d)

Upon the occurrence of the events set out in this Clause 7.10, so long as:

 

(i)

no Event of Default shall have occurred and be continuing; and

 

(ii)

the Borrower has obtained a commitment from another Lender or bank, financial institution, trust, fund or other entity which intends to become a Party in accordance with Clause 22 ( Changes to the Lenders ) that is a Qualifying Lender (an “ Eligible Transferee ”) to purchase at par the Subject Lender’s Loans and assume the Subject Lender’s Commitments and all other obligations of the Subject Lender under the relevant Finance Documents,

the Borrower may request of the Subject Lender, and the Subject Lender shall in good faith consider such request, that it transfer all of its Loans and Commitments to such Eligible Transferee in accordance with Clause 22.5 ( Procedure for Transfer ); provided that , prior to or concurrently with such replacement:

 

(iii)

the Borrower or the Eligible Transferee shall have paid to the Subject Lender all amounts due to it under this Agreement;

 

(iv)

the Borrower or the Eligible Transferee shall have paid to the Facility Agent the transfer fee of two thousand (2,000) EUR required under Clause 22.3 ( Assignment and Transfer Fee ); and

 

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(v)

all the requirements for such transfer set out in Clause 22.5 ( Procedure for Transfer ) shall have been fulfilled.

 

7.11	Restrictions

 

(a)

Any notice of cancellation or prepayment given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

(b)

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and subject to Break Costs, if any.

 

(c)

The Borrower may not reborrow any part of the Facility that has been prepaid or repaid.

 

(d)

Subject to applicable laws, the Borrower shall not repay or prepay all or any part of the Loans and it shall not cancel all or any part of the Commitments, except at the times and in the manner expressly provided for in this Agreement.

 

(e)

No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

(f)

If the Facility Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.

 

(g)

Any reduction or cancellation of a Commitment