EX-10.I.F



 





EXECUTION
COPY




Exhibit 10(i)(F)




Dated 31 July 2006




for




QIMONDA AG




coordinated by




CITIGROUP GLOBAL MARKETS LIMITED

CREDIT SUISSE, LONDON BRANCH

J.P. MORGAN PLC

ABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLAND

DEUTSCHE BANK AG

BAYERISCHE HYPO- UND VEREINSBANK AG




with




CITIBANK INTERNATIONAL PLC

acting as Agent




 






MULTICURRENCY

REVOLVING CREDIT FACILITY AGREEMENT

EURO 250,000,000




 








 









 








CONTENTS




	 	 	 	 	 	 	 
	Clause	Page	 
	1.

	 	DEFINITIONS AND INTERPRETATIONS
	 	 	1	 
	2.

	 	THE FACILITY
	 	 	18	 
	3.

	 	PURPOSE
	 	 	20	 
	4.

	 	CONDITIONS PRECEDENT
	 	 	21	 
	5.

	 	DRAWDOWN
	 	 	24	 
	6.

	 	OPTIONAL CURRENCY
	 	 	25	 
	7.

	 	REPAYMENT
	 	 	26	 
	8.

	 	PREPAYMENT AND CANCELLATION
	 	 	28	 
	9.

	 	INTEREST AND ASSOCIATED COSTS
	 	 	30	 
	10.

	 	TERMS
	 	 	32	 
	11.

	 	SUBSTITUTE BASIS
	 	 	33	 
	12.
13.

	 	DEFAULT INTEREST AND INDEMNITY

PAYMENTS
	 	 	35

37	 
	14.

	 	TAXES
	 	 	39	 
	15.

	 	INCREASED COSTS
	 	 	42	 
	16.

	 	ILLEGALITY
	 	 	44	 
	17.

	 	REPRESENTATIONS AND WARRANTIES
	 	 	45	 
	18.

	 	UNDERTAKINGS
	 	 	51	 
	19.

	 	GUARANTEE
	 	 	60	 
	20.

	 	EVENTS OF DEFAULT
	 	 	63	 
	21.

	 	THE AGENT, THE MANDATED LEAD ARRANGER AND THE LENDERS
	 	 	66	 
	22.

	 	FEES
	 	 	70	 
	23.

	 	EXPENSES
	 	 	71	 
	24.

	 	STAMP DUTIES
	 	 	72	 
	25.

	 	WAIVERS; REMEDIES CUMULATIVE
	 	 	73	 
	26.

	 	NOTICES
	 	 	74	 
	27.

	 	ASSIGNABILITY, TRANSFER, SUBSTITUTION
	 	 	75	 
	28.

	 	CURRENCY INDEMNITY
	 	 	79	 
	29.

	 	PRO RATA SHARING
	 	 	80	 
	30.

	 	SET-OFF
	 	 	81	 
	31.

	 	MISCELLANEOUS
	 	 	82	 
	SCHEDULE 1 Part 1 LENDERS’ COMMITMENTS	 	 	88	 
	SCHEDULE 2 DRAWDOWN NOTICE	 	 	89	 
	SCHEDULE 3 ACCESSION AGREEMENT	 	 	90	 
	SCHEDULE 4 FURTHER CONDITIONS PRECEDENT	 	 	91	 
	SCHEDULE 5 FACILITY OFFICES	 	 	92	 
	SCHEDULE 6 TRANSFER AGREEMENT	 	 	93	 






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	Clause	Page	 
	SCHEDULE 7 ASSOCIATED COSTS FORMULAE

	 	 	97	 
	SCHEDULE 8 MATERIAL SUBSIDIARIES

	 	 	100	 
	SCHEDULE 9 PROFESSIONAL MARKET PARTIES

	 	 	101	 
	SCHEDULE 10 FORM OF ANNUAL PROJECTIONS

	 	 	102	 
	SCHEDULE 11 SUBORDINATION

	 	 	105	 






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THIS
AGREEMENT is dated 31 July 2006 and made between





	(1)	 	QIMONDA AG, a company incorporated under the laws of Germany registered with the commercial
register of the local court of München under HRB 142545 (the “Company”);






	(2)	 	THE PERSONS listed in Part 2 of Schedule 1 (The Original Borrowers) as borrowers
(collectively and subject to any resignation in accordance with Clause 27.3 (Resignation of
Borrowers) of this Agreement, the “Original Borrowers”);






	(3)	 	QIMONDA AG as original guarantor (the “Original Guarantor”);






	(4)	 	CITIGROUP GLOBAL MARKETS LIMITED, CREDIT SUISSE, LONDON BRANCH, J.P. MORGAN PLC, ABN AMRO
BANK N.V., NIEDERLASSUNG DEUTSCHLAND, DEUTSCHE BANK AG. AND BAYERISCHE HYPO- UND
VEREINSBANK AG (whether acting together or individually, the “Mandated Lead Arranger”);






	(5)	 	THE FINANCIAL INSTITUTIONS listed in Part 1 of Schedule 1 (Lenders’ Commitments) as lenders
(the “Original Lenders”);






	(6)	 	CITIBANK INTERNATIONAL PLC as agent of the Lenders (the “Agent”).





IT IS AGREED as follows:




SECTION 1

DEFINITIONS





	1.	 	DEFINITIONS AND INTERPRETATIONS






	1.1	 	Definitions
	 
	 	 	In this Agreement:
	 
	 	 	“Acceptable Bank” means:






	 	(a)	 	a bank or financial institution which has a rating for its long-term unsecured
and non-credit enhanced debt obligations of A+ or higher by Standard & Poor’s Rating
Services, a division of the McGraw-Hill Companies, Inc., or A+ or higher by Fitch
Ratings Ltd and A1 or higher by Moody’s Investor Services Limited; or
	 
	 	(b)	 	any other bank or financial institution approved by the Agents.






“Accession Agreement” means an agreement substantially in the form of Schedule 3 (Accession
Agreement).




“Additional Borrower” means any company which has become a Borrower in accordance with
Clause 27.2 (Additional Borrowers).




“Additional Guarantor” means a member of the Group (other than the Original Guarantor) which
becomes an Additional Guarantor in accordance with Clause 19.6 (Additional Guarantors) of
this Agreement and is not released as a Guarantor in accordance with Clause 19.8 (Release of
Guarantors) of this Agreement.




“Additional Guarantor Event” means:




	 	(a)	 	the incurrence by a Subsidiary of the Company of any Financial Indebtedness
(other than pursuant to (i) an Existing Facility or (ii) a Subsidised Financing, the
terms of which prohibit the granting of guarantees by such Subsidiary); or




1









 












	 	(b)	 	the refinancing of any Existing Facility by a Subsidiary of the Company or a
change of borrower of such facility; or
	 
	 	(c)	 	where any Subsidiary is required to give a Guarantee to the Lenders under the
Finance Documents in circumstances where the aggregate Net PPE of Qimonda B.V. and its
Subsidiaries (calculated on an unconsolidated basis and excluding intra-Group items)
represent less than 662/3% of the consolidated Net PPE of the Group as contemplated in
Clause 18.4(h) (Senior Bonds Issue).






“Additional Obligor” means an Additional Borrower or an Additional Guarantor.




“Advance” means the principal amount drawn down by a Borrower pursuant to a Drawdown Notice
in respect of the Facility or the principal amount outstanding thereunder, as the context
may require.




“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 Citibank International plc, or such other bank as may from time to time be
appointed in its place pursuant to the provisions of Clause 21.14 (Resignation and Removal).




“Agent’s Spot Rate of Exchange” shall have the meaning given to it in Clause 6.3 (Agent’s
Spot Rate of Exchange).




“Annual Projections” in relation to the Group means:




	 	(a)	 	in relation to the period beginning on 1 October 2006 and ending 30 September
2007, the base case model in the agreed form to be delivered by the Company to the
Agent pursuant to Clause 4.1 (Conditions Precedent to first Advance); and
	 
	 	(b)	 	in relation to any other period, any annual projections delivered by the
Company to the Agent in respect of that period pursuant to Clause 18.2(e) (Annual
Projections).






“ASCI” means the Dutch Act on the Supervision of the Credit System 1992 (Wet toezicht
kredietwezen 1992) as amended, restated or re-enacted from time to time.




“Associated Costs” means in relation to an Advance or an Unpaid Sum:




	 	(a)	 	in relation to a Lender or Lenders lending from a Facility Office in the UK,
the percentage rate per annum caused by the fee imposed on such Lender or Lenders by
the Financial Services Authority of the UK and the cash ratio deposit requirements
(including any special deposit requirements) of the Bank of England, if any, and
determined by the Agent in accordance with Schedule 7 (Associated Costs Formulae); and
	 
	 	(b)	 	in relation to a Lender or Lenders which are required to comply with the
regulations of the European Central Bank or the European System of Central Banks, the
percentage rates per annum notified to the Agent as being the cost, expressed as a
percentage rate per annum, incurred by that or, as the case may be, those Lender(s) in
making, maintaining or funding its/their respective share of the Advance or the Unpaid
Sum as a result of compliance with any applicable reserve requirements imposed by the
European Central Bank or the European System of Central Banks, such notification to the
Agent to be made on the first day of each Term (or as soon as possible thereafter).
Paragraphs 9. to 11. of Schedule 7 (Associated Costs Formulae) shall apply mutatis
mutandis.






“Availability Period” means the period from the Closing Date until the date falling one
month prior to the Final Maturity Date (both dates inclusive).




“Borrowers” means the Original Borrowers and the Additional Borrowers.



2









 






“Business Day” means




	 	(a)	 	if on that day a payment in or a purchase of or a rate determination for a
currency (other than Euro) is to be made, a day (other than a Saturday or a Sunday) on
which banks are open for general business in London and, if on that day a payment in or
a purchase of a currency (other than Euro) is to be made, in the principal financial
centre of the country of that currency; or
	 
	 	(b)	 	if on that day a payment in or a purchase of or a rate determination for Euro
is to be made, a TARGET Day,






and otherwise, a day (other than a Saturday or a Sunday) on which banks are open for general
business in London.




“Cash and Cash Equivalents” means at any time and on a consolidated basis, the aggregate
amount of:




	 	(a)	 	cash in hand or on deposit;
	 
	 	(b)	 	certificates of deposit maturing within three months after the relevant date of
calculation;
	 
	 	(c)	 	any investment in marketable debt obligations issued or guaranteed by the
government of the United States of America, the United Kingdom, any member state of the
European Economic Area immediately prior to 1 January 2004 or any Participating Member
State or by an instrumentality or agency of any of them having an equivalent credit
rating, maturing within three months after the relevant date of calculation and not
convertible or exchangeable to any other security;
	 
	 	(d)	 	commercial paper not convertible or exchangeable to any other security:






	 	(i)	 	for which a recognised trading market exists;
	 
	 	(ii)	 	issued by an issuer incorporated in the United States of
America, the United Kingdom, any member state of the European Economic Area
immediately prior to 1 January 2004 or any Participating Member State;
	 
	 	(iii)	 	which matures within three months after the relevant date of
calculation; and
	 
	 	(iv)	 	which has a credit rating of either A-1 or higher by Standard &
Poor’s Rating Services, a division of the McGraw-Hill Companies, Inc., or F-1
or higher by Fitch Ratings Ltd or P-1 or higher by Moody’s Investor Services
Limited, or, if no rating is available in respect of the commercial paper, the
issuer of which has, in respect of its long-term unsecured and non-credit
enhanced debt obligations, an equivalent rating;






	 	(e)	 	sterling bills of exchange eligible for rediscount at the Bank of England and
accepted by an Acceptable Bank (or their dematerialised equivalent);
	 
	 	(f)	 	any investment accessible within 30 days in money market funds which have a
credit rating of either A-1 or higher by Standard & Poor’s Rating Services, a division
of the McGraw-Hill Companies, Inc., or F-1 or higher by Fitch Rating Ltd or P-1 or
higher by Moody’s Investor Services Limited and which invest substantially all their
assets in securities of the types described in paragraphs (b) to (e) above; or
	 
	 	(g)	 	any other debt security approved by the Majority Lenders,






in each case to which any member of the Group is beneficially entitled at that time and
which is not issued or guaranteed by any member of the Group or subject to any Encumbrance.



3









 






“Change of Control” means any Person or group of Persons acting in concert (other than
Infineon Technologies AG or any of its Affiliates) which does not have control of the
Company on the date hereof gaining direct or indirect control of the Company.




For the purposes of this definition:




“control” of the Company means:




	 	(i)	 	the power (whether by way of ownership of shares, proxy,
contract, agency or otherwise) to:






	 	(A)	 	cast, or control the casting of, more than 35%
of the voting shares (Stammaktien) of the Company; or
	 
	 	(B)	 	appoint or remove all, or the majority, of the
directors or other equivalent officers of the Company or appoint or
remove all or a majority of the members of the part of the supervisory
board (Aufsichtsrat); or
	 
	 	(C)	 	give directions or cause directions to be given
with respect to the operating and financial policies of the Company
with which the directors or other equivalent officers of the Company
are obliged to comply.






	 	(ii)	 	the holding and owning legally and beneficially of more than
35% of the issued share capital of the Company (excluding any part of that
issued share capital that carries no right to participate beyond a specified
amount in a distribution of either profits or capital).






“acting in concert” means a group of Persons who, pursuant to an agreement or
understanding (whether formal or informal), actively co-operate, through the
acquisition by any of them, either directly or indirectly, of shares in the Company,
to obtain or consolidate control of the Company.




“Closing Date” means the date of completion of the IPO.




“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.




“Commencement Date” means the earlier of:




	 	(a)	 	the date following three (3) months after the date of this Agreement; and
	 
	 	(b)	 	the Closing Date.






“Commitment” means:




	 	(a)	 	for an Original Lender the amount in Euro set opposite the name of each Lender
in Schedule 1 (Lenders’ Commitments) under the heading “Commitments” and the amount of
any other commitment it acquires; and
	 
	 	(b)	 	for any other Lender, the amount of any commitment it had upon becoming a
Lender and the amount of any other commitment it acquires,






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




“Compliance Certificate” shall have the meaning given to it in Clause 18.5 (Financial
Covenants).




“Covenant Test Date” shall have the meaning given to it in Clause 18.5 (Financial
Covenants).



4









 




“CTA” means the contractual trust arrangement in respect of pension liabilities of one or
more Group Companies.



“Default Rate” shall have the meaning given to it in Clause 12.1(a).



“Designated Term” has the meaning as set forth in Clause 12.1(a).



“Drawdown Date” means the date specified in the Drawdown Notice pursuant to Clause 5.1
(Drawdown Notice), at which the relevant Advance is to be made.



“Drawdown Notice” shall mean a notice of borrowing, substantially in the form as specified
in Schedule 2 (Drawdown Notice).



“EBIT” means, on a consolidated basis, earnings of the Group before interest, taxes and
extraordinary items.



“Encumbrance” means any mortgage, pledge, lien, charge (whether fixed or floating),
assignment, hypothecation, security interest, title retention, and any other preferential
right in rem (including any trust arrangement of similar effect) (dingliche Sicherheit)
whether relating to existing or future assets or revenues.



“Environmental Laws” means all or any laws, statute, rule, regulation, treaty, by-law, code
of practice, order, notice, decision of the courts or of any Governmental Authority or
agency or any other regulatory or other body in any jurisdiction relating to Environmental
Matters and which is binding on any member of the Group.



“Environmental Matters” means (a) the generation, deposit, disposal, keeping, treatment,
transportation, transmission, handling, importation, exportation, processing, collection,
sorting, presence or manufacture of any waste; (b) defective premises, health and safety at
work or elsewhere, and (c) the pollution, conservation or protection of the environment
(both natural and built) or of man or any living organisms supported by the environment or
any other matter whatsoever affecting the environment or any part of it.



“ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended
from time to time and the rules and regulations promulgated thereunder.



“ERISA Affiliate” means any person treated as a single employer with any Obligor under
section 414(b), (c), (m) or (o) of the Code or, solely for the purposes of section 302 of
ERISA or section 412 of the Code, under any other provision of section 414 of the Code.



“ERISA Event” means:




	 	 	 	 	 
	(a)

	 	(i)
	 	the occurrence of a reportable event, within the meaning of section 4043(c)
of ERISA, with respect to any Plan unless the 30-day notice requirement with respect to
such event has been waived by the PBGC; or
	 

	 	(ii)
	 	the requirements of section 4043(b) of ERISA applied with
respect to a contributing sponsor, as defined in section 4001(a)(13) of ERISA,
of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of
section 4043(c) of ERISA is reasonably expected to occur with respect to such
Plan within the following 30 days;







	(b)	 	the application for a minimum funding waiver with respect to a Plan;
	 
	(c)	 	the provision by the administrator of any Plan of a notice of intent to
terminate such Plan pursuant to section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in section 4041(e) of ERISA);




5









 












	(d)	 	the cessation of operations at a facility of any Obligor or any ERISA Affiliate
in the circumstances described in section 4062(e) of ERISA;






	(e)	 	the withdrawal by any Obligor or any ERISA Affiliate from a Plan during a plan
year for which it was a substantial employer, as defined in section 4001(a)(2) of
ERISA;






	(f)	 	the conditions for imposition of a lien under section 302(f) of ERISA shall
have been met with respect to any Plan;






	(g)	 	the adoption of an amendment to a Plan requiring the provision of security to
such Plan pursuant to section 307 of ERISA; or






	(h)	 	the institution by the PBGC of proceedings to terminate a Plan pursuant to
section 4042 of ERISA, or the occurrence of any event or condition described in section
4042 of ERISA that constitutes grounds for the termination of, or the appointment of a
trustee to administer, such Plan.




“EURIBOR” means, in relation to an Advance denominated in Euro, the interest rate appearing
on the relevant Reuters screen or if such page is not available the relevant Telerate screen
or such other page as may replace such pages, expressed as an annual interest rate,
determined by the Banking Federation of the European Union, for deposits in Euro, as of
11:00 a.m. Brussels time, on the Interest Rate Determination Date for a period corresponding
to the relevant Term.



“Euro”
and “€” shall mean the lawful currency of the member states of the European
Monetary Union.



“Event of Default” means any of the events specified as such in Clause 20.1 (Events of
Default).



“Existing Facilities” means:





	(a)	 	the €124,000,000 non-recourse project financing facility granted to Qimonda
Portugal S.A. on 28 April 2005 by the European Investment Bank; and






	(b)	 	the $33,688,000 notes issued on 28 January 2000 and payable to a governmental
entity by Qimonda Richmond LLC.




“Existing Guarantees” means Guarantees as in effect on the date of this Agreement and given
in respect of the Financial Indebtedness of:





	(a)	 	Advanced Mask Technology Center GmbH & Co. KG, namely:






	 	(i)	 	a payment guarantee for external loan financing in the amount
of €18,666,667;
	 
	 	(ii)	 	guarantees relating to subsidies from governmental or
supranational institutions in the amount of €2,484,256; and






	(b)	 	Maskhouse Building Administration GmbH & Co. KG, as a payment guarantee for
external loan financing in the amount of €23,203,125.




“Extended Final Maturity Date” means the date falling on the fourth anniversary of the
Commencement Date.



“Extending Lenders” shall have the meaning given in Clause 7.4(a)(iv)(A).



“Extension Notice” means the written notice given or to be given by the Company to the Agent
pursuant to Clause 7.4(a)(i).




6









 







“Extension Transitory Period” means the period of time from and including the Notification
Date to and including the Initial Final Maturity Date.



“Facility” means the revolving loan facility described in Clause 2.1 (Facility).



“Facility Office” means the office(s) notified by a Lender to the Agent:





	(a)	 	on or before the date it becomes a Lender; or
	 
	(b)	 	by not less than five Business Days’ notice,




as the office(s) through which it will perform all or any of its obligations under this
Agreement.



“Fee Letter” means both (i) the letter dated on or around the date of this Agreement between
the Company and the Agent relating to the upfront fee referred to in Clause 22.1 (Upfront
Fee), and (ii) the letter dated on or around the date of this Agreement between the Company
and the Agent relating to the agency fee referred to in Clause 22.3 (Agency Fee).



“Final Maturity Date” means the later of (a) the Initial Final Maturity Date and (b) subject
to an extension to that date pursuant to Clause 7.4(a) (Extension), the Extended Final
Maturity Date.



“Finance Documents” means this Agreement, an Accession Agreement, the Subordination
Agreement, a Transfer Agreement (as defined in Clause 27.4 (Assignment and Transfer by the
Lenders)), the Fee Letter and any other document designated as such by the Agent and the
Company.



“Finance Party” means the Mandated Lead Arranger, a Lender and the Agent which expression
shall include each of the same severally.



“Financial Indebtedness” means any indebtedness incurred by a Person in respect of:





	(a)	 	borrowed money (including without limitation amounts raised under any
debenture, bond, note or other similar instrument and under any acceptance credit,
whether for own account or account of any other Person);






	(b)	 	the deferred purchase price of assets or services which in accordance with
applicable generally accepted accounting principles would be shown to be a liability on
the liability side of a balance sheet where payment is outstanding for more than 180
days and such extension of payment has been entered into primarily as a method of
raising finance;






	(c)	 	granting guarantees, suretyships or the entering into of similar obligations
and arrangements securing Financial Indebtedness of another Person;






	(d)	 	capital leases as determined in accordance with applicable generally accepted
accounting principles;






	(e)	 	any derivative transaction protecting against or benefiting from fluctuations
in any rate or price entered into with banks or financial institutions other than, for
the avoidance of doubt, derivative transactions where the relevant person has no
indebtedness or financial obligation other than an initial transaction premium or fee
payable in the ordinary course of business (and, except for non-payment of an amount,
only the net liability calculated on the basis of the then marked to market value of
the derivative transaction will be taken into regard to calculate its amount);






	(f)	 	amounts raised under any other transaction having the commercial effect of a
borrowing or raising of money; or




7









 












	(g)	 	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 in calculating the amount of Financial Indebtedness, no amount shall be taken into
account more than once in the same calculation.



“Finco” means a special purpose finance vehicle subject to the provisions of Clause 18.4(k)
(Finco Ring-fencing) and which is a direct Subsidiary of the Company.



“Fiscal Year” means the fiscal year of the Group running from 1 October of one year through
30 September of the next following year.



“Governmental Authority” means any federal, state or local court or governmental agency,
authority, instrumentality or regulatory body, whether domestic or foreign, with appropriate
jurisdiction.



“Group” or “Group Companies” means the Company and its fully consolidated Subsidiaries, and
“Group Company” or “member of the Group” means any one of them.



“Guarantee” means the guarantee granted by the Original Guarantor pursuant to Clause 19
(Guarantee) and each Guarantee which will be granted by the Additional Guarantors pursuant
to Clause 19 (Guarantee) upon the execution of a duly executed Accession Agreement,
substantially in the form of Schedule 3 (Accession Agreement).



“Guarantors” means the Original Guarantor and the Additional Guarantors.



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



“IFRS” means International Financial Reporting Standards.



“Infineon Loans” means the following shareholder loans granted by Infineon Technologies
Holding B.V. in favour of the Company in the following amounts:





	(a)	 	US$345,000,000 as of 27 June 2006;






	(b)	 	US$130,000,000 as of 27 June 2006; and






	(c)	 	US$90,000,000 as of 28 June 2006.




“Information Package” means the following documents approved by the Company and delivered to
the Mandated Lead Arrangers prior to the date hereof in connection with syndication of the
Facility established hereby:





	(a)	 	the Annual Projections referred to in paragraph (a) of the definition of
“Annual Projections”; and






	(b)	 	the offering memorandum issued in connection with the IPO.




“Initial Final Maturity Date” means the date falling three (3) years from the Commencement
Date.



“Initial Minimum Tangible Net Worth” shall have the meaning given to it in Clause
18.5(b)(iii).



“Insufficiency” means, with respect to any Plan, the amount, if any, of its unfunded benefit
liabilities, as defined in section 4001(a)(18) of ERISA.



“Interest Rate” means the sum of the relevant Reference Interest Rate and the Margin.




8









 







“Interest Rate Determination Date” means the second Business Day prior to the commencement
of a Term, and in relation to Pound Sterling as Optional Currency, the day of the
commencement of a Term.



“Intra-Group Debt” means any Financial Indebtedness owed by one member of the Group to
another member of the Group.



“IPO” means a listing of or the admission to trading of not less than 15% of the ordinary
share capital of the Company on the New York Stock Exchange, Inc. or any other stock
exchange in the U.S. or the European Union or any other similar sale or issue by way of
flotation or public offering or any equivalent circumstances in relation to the Company.



“Joining Lender” means, unless otherwise stated, the Joining Lender referred to in Clause
27.4 (Assignment and Transfer by the Lenders).



“Joint Venture” means any joint venture entity, whether a company, unincorporated firm,
undertaking, association, joint venture or partnership or any entity in which any member of
the Group has an interest and which is not a Subsidiary of that member of the Group.



“Lender’s Affiliated Company” means a Subsidiary of a Lender or the Person the Subsidiary of
which is such Lender, or any other Subsidiary of that Person.



“Lender” means:





	(a)	 	any Original Lender; and






	(b)	 	any bank, financial institution, trust, fund or other entity which has become a
party to this Agreement in accordance with Clause 27.4 (Assignment and Transfer by the
Lenders),




which in each case has not ceased to be a party to this Agreement in accordance with its
terms.



“LIBOR” means, in relation to an Advance denominated in US Dollars or in an Optional
Currency (other than Euro), the interest rate appearing on the relevant Reuters page or, if
such page is not available, the relevant Telerate screen, or such other page as may replace
such pages, expressed as an annual interest rate for deposits in such Optional Currency as
of 11:00 a.m. on the Interest Rate Determination Date for a period corresponding to the
relevant Term.



“Majority Lenders” means, at any time, Lenders:





	(a)	 	whose participation in the Advances then outstanding
aggregate more than 662/3

per cent of all the Advances then outstanding; or






	(b)	 	if there are no Advances then outstanding, whose Commitments then aggregate
more than 662/3 per cent of the Total Commitments; or






	(c)	 	if there are no Advances then outstanding and the Total Commitments have been
reduced to nil, whose Commitments aggregated more than 662/3 per cent of the Total
Commitments immediately before the reduction.




“Margin” shall have the meaning given to it in Clause 9.2 (Margin).



“Marketable Securities” means, at any time and on a consolidated basis, the aggregate fair
value of all marketable securities treated as such in accordance with US GAAP, provided that
in respect of the calculation of Minimum Liquidity for the purposes of Clause 18.5(b)(ii)
and Clause 4.2(b), such marketable securities shall exclude any equity securities or any
securities which are convertible or exchangeable into equity securities.



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




9









 









	(a)	 	the business, operations, property or condition (financial or otherwise) of the
Company or the Group taken as a whole which adversely affects the ability of an Obligor
to perform its payment obligations under the Finance Documents; or






	(b)	 	the validity or enforceability of the rights or remedies of any Finance Party
under any of the Finance Documents.




“Material Subsidiary” means any fully consolidated Subsidiary of the Company from time to
time





	(a)	 	the value of the total assets (in the case of a Subsidiary which itself has
Subsidiaries, total consolidated assets) of which exceeds 5% of the total consolidated
assets of the Group, as determined from the most recent (where available) audited
(consolidated) financial statements of such Subsidiary and of the Group; or






	(b)	 	the turnover of which (in case of a Subsidiary which itself has Subsidiaries
consolidated turnover) exceeds 10% of the consolidated turnover of the Group, as
determined from the most recent (where available) audited (consolidated) financial
statements of such Subsidiary and of the Group.




The Subsidiaries which, as of 31 March 2006, qualify as Material Subsidiaries are listed in
Schedule 8 (Material Subsidiaries).



“Minimum Liquidity” means the sum of Cash and Cash Equivalents and Marketable Securities.



“Minimum Tangible Net Worth” shall have the meaning given to it in Clause 18.5(b)(iii).



“Multiemployer Plan” means a multiemployer plan, as defined in section 4001(a)(3) of ERISA,
to which any Obligor or any ERISA Affiliate is making or accruing an obligation to make
contributions.



“Net PPE” in relation to a Group Company, means at any time and on a consolidated basis, the
aggregate net book value of all property, plant and equipment treated as such in accordance
with the generally accepted accounting principles applicable in the Relevant Jurisdiction
excluding any assets that have been encumbered as permitted under paragraphs (h) and (i) of
the definition of “Permitted Encumbrances”.



“Non-Extending Lenders” shall have the meaning given in Clause 7.4(a)(iv)(B).



“Notification Date” means the date falling twenty (20) days after delivery of the Extension
Notice by the Company to the Agent.



“Obligors” means the Borrowers and the Guarantors.



“OECD” means the Organization for Economic Cooperation and Development founded by treaty as
of 14 December 1960.



“Optional Currency” means US Dollars and, with the prior approval of the Lenders, any
currency other than Euro which is for the time being freely transferable and convertible
into Euro and deposits of which are readily available and freely dealt in the European
Interbank Market.



“Original Borrowers” means each of the Persons listed in Part 2 of Schedule 1 (The Original
Borrowers) (collectively and subject to resignation in accordance with Clause 27.3
(Resignation of Borrowers) of this Agreement) each in its capacity as borrower.



“Original Euro Amount” of an Advance is the amount of such Advance in Euro if it had been
drawn and had remained denominated throughout its Term in Euro.



“Original Guarantor” means Qimonda AG.




10









 







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



“Permitted Encumbrances” means:





	(a)	 	Encumbrances arising in the ordinary course of business solely by operation of
law (or by an agreement evidencing the same) and not as a result of any default or
omission by any member of the Group;
	 
	(b)	 	Encumbrances existing on the date hereof and disclosed to the Mandated Lead
Arranger prior to the date of this Agreement;
	 
	(c)	 	Encumbrances existing over the assets of any Person which becomes subject to
Clause 18.4(a) (Negative Pledge) after the date of this Agreement (which Encumbrances
were existing at the time at which such Person became subject to Clause 18.4(a)
(Negative Pledge));
	 
	(d)	 	Encumbrances existing over assets acquired by any member of the Group after the
date of this Agreement (which Encumbrances were existing at the time of the acquisition
of such assets) and which will be unconditionally discharged and released no later than
six months following such acquisition;
	 
	(e)	 	Encumbrances created or permitted to exist with the consent of the Majority
Lenders;
	 
	(f)	 	Encumbrances arising in connection with a retention of title arrangement
entered into in the ordinary course of business under customary general business
conditions;
	 
	(g)	 	Encumbrances provided to lenders under any subsidised financing or export
financing scheme operated in a member country of the OECD in compliance with standard
market practice;
	 
	(h)	 	Encumbrances created by a Finco to secure Financial Indebtedness incurred by
that Finco for the financing of a specific project or projects on a non-recourse basis
where no member of the Group has any contractual liability, actual or contingent, in
respect of such Financial Indebtedness save for a pledge over the shares in such Finco
to the extent that is customarily required for such project financings of this nature;
	 
	(i)	 	Encumbrances created by a member of the Group (other than the Company, a
Material Subsidiary or any Holding Company of a Material Subsidiary) for the financing
of a specific project or projects on a non-recourse basis where no member of the Group
has any contractual liability, actual or contingent, in respect of such Financial
Indebtedness provided that the aggregate total assets of the Group that have been
encumbered pursuant to this paragraph (i) shall not at any time exceed 5% of the
consolidated total assets of the Group for the term of the Facility;
	 
	(j)	 	Encumbrances arising under the general business conditions of any financial
institution with whom any member of the Group maintains a banking relationship in the
ordinary course of business;
	 
	(k)	 	Encumbrances arising under any cash management, netting or set-off arrangement
or framework/master agreements relating to derivatives transactions entered into by a
member of the Group in the ordinary course of its financing arrangements;
	 
	(l)	 	Encumbrances created in connection with asset backed securitisation
transactions to the extent that Clause 18.4(b) (Disposals) allows the sale and transfer
of receivables and/or inventories and that such sale and transfer may be considered an
Encumbrance under applicable law and/or applicable generally accepted accounting
principles;




11









 






	(m)	 	Encumbrances arising from or related to a disposal of assets to any person
whose core business is the leasing business (Leasinggesellschaften) to the extent that
such disposal of assets is allowed under Clause 18.4(b) (Disposals) and the amount of
indebtedness being secured does not exceed Euro 150,000,000;
	 
	(n)	 	Encumbrances created to secure the refinancing of any indebtedness permitted to
be secured by the provisions of subparagraphs (a) to (m) above to the extent that the
relevant assets have already been subject to an Encumbrance securing the indebtedness
arising from the preceding financing (and the amount of the indebtedness is not
increased); and
	 
	(o)	 	any Encumbrances created or subsisting to secure any obligations incurred in
order to comply with the requirements of section 8a of the German Altersteilzeitgesetz
or pursuant to section 7d of the German Social Security Code (Sozialgesetzbuch IV) (in
each case if and to the extent the obligations so secured constitute Financial
Indebtedness); and
	 
	(p)	 	Encumbrances securing Financial Indebtedness the amount of which (when
aggregated with the amount of any other Financial Indebtedness which has the benefit of
an Encumbrance not allowed under the preceding sub-paragraphs) does not exceed Euro
75,000,000 or its equivalent at any time.




“Permitted Financial Indebtedness” means Financial Indebtedness:





	(a)	 	under the Finance Documents;
	 
	(b)	 	of the Company that is subordinated to the Facility in accordance with the
terms set out in Schedule 11 (Subordination);
	 
	(c)	 	under Existing Facilities (i) as in effect on the date of this Agreement and
(ii) any refinancing thereof to the extent a guarantee has been granted by the relevant
borrower and guarantor Group Companies in favour of the Lenders pursuant to an
Additional Guarantor Event;
	 
	(d)	 	which is unsecured bank or financial institutional debt, the outstanding
principal amount of which when aggregated with the then outstanding principal amount
under the Finance Documents (at paragraph (a)) and the aggregate actual and contingent
liabilities or guarantees given in respect of Financial Indebtedness of any Joint
Venture (under paragraph (c) of the definition of “Permitted Guarantees”) does not at
any time exceed Euro 500,000,000 (or its equivalent) for the Group as a whole, provided
that (i) the aggregate outstanding principal amount of such Financial Indebtedness
incurred by Subsidiaries of the Company (other than Subsidiaries which have incurred
any such Financial Indebtedness pursuant to any Subsidised Financing) does not exceed
Euro 150,000,000 (or its equivalent) at any time and the borrowers and guarantors of
such Financial Indebtedness have granted Guarantees in favour of the Lenders pursuant
to an Additional Guarantor Event and (ii) the borrowers and guarantors of such
Subsidised Financing have also granted Guarantees in favour of the Lenders in respect
of the Finance Documents, to the extent that the terms of such Subsidised Financing do
not prohibit the granting of such Guarantees;
	 
	(e)	 	arising under customary foreign exchange transactions and other hedging
agreements entered into in the ordinary course of trading activities for such member of
the Group for the protection against fluctuation in interest rate, currency rates and
commodity prices and not for speculative purposes;
	 
	(f)	 	of a Finco pursuant to an unsecured capital markets bonds or notes issue and
guaranteed by the Company on a subordinated basis to the Facility (in accordance with
the terms set out in Schedule 11 (Subordination)) provided the bond or note proceeds
arising pursuant to such issue are to be lent directly by such Finco to the Company and
not to any other member of the




12









 






	 	 	Group (but the Company shall be permitted to on-lend such monies to such Group
Companies);
	 
	(g)	 	under the Senior Bonds Issue the proceeds of such issue are lent directly to
the Company as set out in Clause 18.4(h) (Senior Bonds Issue);
	 
	(h)	 	arising under customary unsecured local current accounts and overdraft
facilities for cash management purposes and letter of credit facilities by a bank in
the region in which that member of the Group is incorporated or operates provided that
the aggregate amount of Financial Indebtedness arising thereunder does not at any time
exceed Euro 25,000,000 (or its equivalent) for the Group as a whole; or
	 
	(i)	 	arising under letter of credit facilities by a bank on an unsecured basis in
the region in which that member of the Group is incorporated or operates provided that
the aggregate amount of Financial Indebtedness arising thereunder does not at any time
exceed Euro 10,000,000 (or its equivalent) for the Group as a whole.




“Permitted Guarantees” means guarantees or counter-indemnities:





	(a)	 	contained in the Finance Documents;
	 
	(b)	 	given to landlords in connection with the rental or leasing of real property by
a Group Company;
	 
	(c)	 	of the Financial Indebtedness of a Joint Venture (provided that the actual or
contingent liability of such Group Company under any such guarantee as a percentage of
the total amount of such Financial Indebtedness guaranteed does not exceed the
percentage shareholding in such Joint Venture held by such Group Company) up to an
aggregate amount of Euro 100,000,000 (or its equivalent) provided further that the
aggregate actual and contingent liability under guarantees outstanding under this
paragraph (other than the Existing Guarantees as in effect as at the date of the
Agreement, to the extent that such guaranteed amounts are not increased (provided that
any increases in such amounts following the date of this Agreement shall count towards
the overall basket contained within this sub-paragraph)), when aggregated with the
total amount of Financial Indebtedness permitted under paragraphs (a) and (d) of the
definition of “Permitted Financial Indebtedness”, does not at any time exceed Euro
500,000,000 (or its equivalent) for the Group as a whole and to the extent that such
guarantee is given by a Subsidiary of the Company, the conditions set out in provisos
in paragraph (d) of the definition of “Permitted Financial Indebtedness” have been met;
	 
	(d)	 	given in favour of a governmental or government-controlled body or
supranational institution or other similar credit agency in respect of any Subsidised
Financing;
	 
	(e)	 	in respect of the payment of customs duties or taxes;
	 
	(f)	 	given in connection with the receipt or repayment of any public subsidies;
	 
	(g)	 	given in respect of paragraph (d) of Permitted Financial Indebtedness, to the
extent that such guarantee (or an alternative guarantee satisfactory to the Lenders) is
at the same time extended equally and rateably to the Lenders in respect of all amounts
outstanding under the Facility pursuant to Clause 19 (Guarantee); or
	 
	(h)	 	granted by any Group Company which are not permitted by the other paragraphs in
this definition, where the aggregate actual and contingent liability for Financial
Indebtedness under such guarantees does not, when aggregated with the total Financial
Indebtedness outstanding at that time under paragraph (c) of the definition of
“Permitted Loans”, at any time exceed Euro 25,000,000 (or its equivalent).




13









 










“Permitted Loans” means:





	(a)	 	any Intra-Group Debt incurred by way of loan provided that upon the occurrence
of a Senior Bonds Issue, any Intra-Group Debt loans made by the Company shall be made
on a basis subordinated to the Facility in accordance with the terms
set out in Schedule II (Subordination);






	(b)	 	any trade credit extended by a Group Company to its customers in the ordinary
course of its trading activities; or






	(c)	 	loans made by a Group Company where the aggregate principal amount of Financial
Indebtedness incurred by the relevant borrowers (other than any Group Company) under
all such loans by all Group Companies does not, when aggregated with the total amount
of all actual and contingent liability under guarantees outstanding at that time under
paragraph (h) of the definition of “Permitted Guarantees”, at any time exceed Euro
25,000,000 (or its equivalent).




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



“Plan” means an employee benefit plan as defined in section 3(3) of ERISA (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or to the minimum funding
standards of section 302 of ERISA or section 412 of the Code:





	 	(i)	 	maintained by any Obligor or any ERISA Affiliate; or
	 
	 	(ii)	 	to which any Obligor or any ERISA Affiliate is required to make
any payment or contribution.




“Pound Sterling” means the lawful currency of the United Kingdom for the time being.



“Qimonda B.V.” means Qimonda Holding B.V., a company incorporated under the laws of the
Netherlands, with its corporate seat in Rotterdam, the Netherlands.



“Reference Banks” means Citibank, N.A., London Branch,
Credit Suisse, London Branch and
JPMorgan Chase Bank, N.A. and, in relation to Schedule 7 (Associated Costs Formulae) only,
Citibank, N.A., London Branch, Credit Suisse, London Branch and JPMorgan Chase Bank, N.A.
or, in each case, such other banks as may be appointed by the Agent in consultation with the
Company.



“Reference Interest Rate” shall mean (i) EURIBOR in relation to Advances denominated in
Euro, (ii) LIBOR in relation to Advances denominated in US Dollars and an Optional Currency
(other than Euro) or (iii) the relevant rate determined by the Agent pursuant to Clause 9.4
(Alternative Determination).



“Relevant Jurisdiction” means in relation to any Obligor the jurisdiction in which it is
incorporated.



“Repeated Representations and Warranties” means the representations and warranties set forth
in Clauses 17.1 (Status) through 17.9 (Financial Statements), 17.11 (Litigation) through
17.13 (Pari Passu Ranking), 17.16 (ASCI-Representation) and 17.17 (United States Laws).



“Rollover Advance” means one or more Advances:





	(a)	 	made or to be made on the same day on which one or more maturing Advances is or
are due to be repaid the aggregate amount of which is equal to or less than the
aggregate amount of the maturing Advance(s),






	(b)	 	made or to be made in the same currency as the maturing Advance(s), and




14









 












	(c)	 	made or to be made to a Borrower for the purpose of refinancing the maturing
Advance(s).




“Senior Bonds Issue” means the issuance by the Company or a Finco of senior unsecured bonds
or notes (and in the case of an issuance by a Finco, supported by a senior guarantee from
the Company).



“Senior Debt” means, at any time and on a consolidated basis, the aggregate at such time of
all Financial Indebtedness which is shown as short-term and current maturities as well as
long-term maturities in the relevant consolidated quarterly financial statements of the
Group including without limitation any capital markets debt securities offering by any
member of the Group but excluding (i) any Intra-Group Debt and (ii) any debt subordinated to
the indebtedness of members of the Group under the Facility and subordinated in accordance
with the terms set out in Schedule 11 (Subordination).



“Share” shall mean the proportion which a Commitment of a Lender bears to the Total
Commitments from time to time.



“Shareholders’ Equity” means, as at the Closing Date and on a consolidated basis, ordinary
share capital, additional paid-in capital, retained earnings and accumulated other
comprehensive loss or income in respect of the Group (including without limitation the
aggregate net primary proceeds received by the Company in respect of the IPO).



“Subordination Agreement” means the agreement between Infineon Technologies Holding B.V.,
the Agent and the Company entered or to be entered into in respect of the subordination of
the Infineon Loans to the Facility.



“Subsidiary” means any corporation, partnership, association or entity





	(a)	 	which is controlled, directly or indirectly, by a Person or closely connected
to such Person within the meaning of sections 16, 17 and 18 German Stock Corporation
Act; or






	(b)	 	more than half of the issued share capital of which is owned, directly or
indirectly, by a Person; or






	(c)	 	more than half of the voting rights of which is owned, directly or indirectly,
by a Person.




“Subsidised Financing” means any financing incurred on concessionary terms by a governmental
or government-controlled body or supranational institution or other similar agency.



“Substitute Basis” shall have the meaning given to it by Clause 11.2 (Suspension).



“Suspension Notice” shall have the meaning given to it in Clause 11.1 (Market Disturbance).



“Tangible Net Worth” means, at any time and on a consolidated basis, the sum of:





	(a)	 	Shareholders’ Equity; and






	(b)	 	net income of the Company generated since 31 March 2006 to the extent such
income is retained by the Company.




“TARGET” means Trans-European Automated Real-time Gross Settlement Express Transfer payment
system.



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



“Taxes” (which term shall include “Taxation”) shall mean all current or future taxes,
levies, imposts, duties, charges or official fees of any kind, including any interest, fines
or penalties and all payments in relation to such current or future taxes, duties, charges
or official fees of any kind.




15









 









“Term” means each period determined in accordance with Clause 10 (Terms).




“Total Commitments” means the aggregate amount in Euro set opposite the name of all Lenders
in Part 2 of Schedule 1 (Lenders’ Commitments) under the heading Commitments to the extent
not cancelled, transferred or reduced under this Agreement being Euro 250,000,000 (in words:
two hundred and fifty million) at the date of this Agreement.




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




“US Additional Obligor” means an Additional Obligor incorporated or organised under the laws
of the United States of America, any state of the United States of America or the District
of Columbia.




“US Bankruptcy Code” means Title II of the United States Code entitled Bankruptcy, as
amended, or any successor thereof.




“US Dollars” or “US$” means the lawful currency of the United States of America.




“US GAAP” means the generally accepted accounting principles applicable in the United States
of America.




“Withdrawal Liability” has the meaning specified in Part I of Subtitle E of title IV of ERISA.




	1.2	 	Construction






	 	(a)	 	In this Agreement, unless expressly otherwise stated herein or the contrary
intention appears, a reference to:






	 	(i)	 	an “authorisation” includes an authorisation, consent,
approval, resolution, license, exemption, filing and registration;
	 
	 	(ii)	 	“on a consolidated basis” shall be construed so as to mean “on
the basis of the relevant consolidated financial statements (Konzernabschluss)
of the Company”;
	 
	 	(iii)	 	“control” shall be construed in line with the meaning of the
term “controlled” in the definition of “Subsidiary” above;
	 
	 	(iv)	 	an event or circumstance shall be construed to be of “material
adverse relevance” if it materially adversely affects






	 	(A)	 	the financial condition or business of any of
the Obligors, a Material Subsidiary or the Group as a whole which gives
grounds to conclude that any Obligor is likely to be unable to perform
any of its payment obligations under any Finance Document;
	 
	 	(B)	 	the ability of any of the Obligors to perform
its respective payment obligations under any Finance Document; or
	 
	 	(C)	 	the validity or enforceability of any of the
Finance Documents, or the rights and remedies of the Lenders
thereunder;






	 	(v)	 	a “month” is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in the next
calendar month (and reference to “months” shall be construed accordingly) save
that






	 	(A)	 	if the numerically corresponding day is not a
Business Day, that period shall end on the next Business Day in the
calendar month in which that period is




16









 






	 	 	 	to end if there is one, or if there is not, on the immediately
preceding Business Day; and
	 
	 	(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.






The rules set out under paragraphs (A) and (B) will only apply to the last
month of any period.




	 	(vi)	 	a “regulation” shall be construed so as to include any present
or future directive, regulation, requirement binding on the Borrowers;
	 
	 	(vii)	 	a “Finance Document” or another document is a reference to
that Finance Document or other document as amended or supplemented;
	 
	 	(viii)	 	a “time of day” is, unless otherwise stated, a reference to London time.






	 	(b)	 	Unless the contrary intention 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.
	 
	 	(c)	 	The headings in this Agreement are for convenience only and are to be ignored
in construing this Agreement.
	 
	 	(d)	 	Words importing the plural shall include the singular and vice versa.






	1.3	 	Accounting Terms
	 
	 	 	Except as otherwise expressly provided in this Agreement, all accounting terms used herein
shall be interpreted, and all financial statements and certificates and reports as to
financial matters required to be delivered to the Lenders under this Agreement shall be
prepared in accordance with US GAAP save for any unconsolidated financial statements which
shall be prepared in accordance with the generally accepted accounting principles applicable
in the Relevant Jurisdiction, in each case consistently applied. Changes in application are
permitted if disclosed in notes to the relevant financial statements.






17









 







SECTION 2

THE FACILITY





	2.	 	THE FACILITY
	 
	2.1	 	Facility
	 
	 	 	Subject to the terms of this Agreement, the Lenders make available to the Borrowers a
multicurrency revolving loan facility in an aggregate principal amount equal to the Total
Commitments, with an extension option. No Lender is obliged to contribute to an aggregate
principal amount exceeding its Commitment.
	 
	2.2	 	Severability of Finance Parties’ Obligations
	 
	 	 	The obligations of each Finance Party under the Finance Documents are several. Failure of a
Finance Party to carry out those obligations does not relieve any other Finance Party of its
obligations under the Finance Documents. No Finance Party is responsible for the obligations
of any other Finance Party under the Finance Documents.
	 
	 	 	Joint liability, or joint and several liability (gesamtschuldnerische Haftung) of the
Finance Parties is hereby excluded.
	 
	2.3	 	Severability of Finance Parties’ Rights
	 
	 	 	The rights of each Finance Party hereunder are created vis-à-vis each of them as separate
and independent rights. Each Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights thereunder. The formation of jointly owned assets
(Gesamthandsvermögen) is hereby excluded.
	 
	2.4	 	Liability of the Borrowers
	 
	 	 	The obligations of each Borrower under the Finance Documents are separate and independent
from the obligations of any other Borrower (except insofar as such other Borrower is a
Guarantor).
	 
	2.5	 	Obligors’ Agent






	 	(a)	 	Each Obligor (other than the Company) by its execution of this Agreement or a
Accession Agreement irrevocably appoints the Company to act on its behalf as its agent
in relation to the Finance Documents and irrevocably authorises:






	 	(i)	 	the Company on its behalf to supply all information concerning
itself contemplated by this Agreement to the Finance Parties and to give and
receive all notices, consents and instructions (including, in the case of a
Borrower, Drawdown Notice), to agree, accept and execute on its behalf all
documents in connection with the Finance Documents (including accession
documents, amendments, supplements and variations of and consents under the
Finance Documents) and to execute any further Finance Document and to take any
such other action as may be necessary or desirable under or in connection with
the Finance Documents, in each case capable of being given, made or effected by
such Obligor notwithstanding that they may affect such Obligor (including,
without limitation on, by increasing the obligations of such Obligor however
fundamentally, whether by increasing the liabilities guaranteed by such Obligor
or otherwise), without further reference to or the consent of that Obligor; and
	 
	 	(ii)	 	each Finance Party to give any notice, demand or other
communication to that Obligor pursuant to the Finance Documents to the Company,




18









 






	 	and in each case such Obligor shall be bound as though the Obligor itself had taken
the relevant action.






	 	(b)	 	Each Obligor agrees that every act, omission, agreement, undertaking,
settlement, waiver, amendment, supplement, variation, notice or communication given or
made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document
on behalf of another Obligor or in connection with any Finance Document (whether or not
known to any other Obligor and whether occurring before or after such other Obligor
became an Obligor under any Finance Document) shall be binding for all purposes on that
Obligor as if that Obligor had expressly made, given or concurred therewith. In the
event of any conflict between any notices or other communications of the Obligors’
Agent and any other Obligor, those of the Obligors’ Agent shall prevail.
	 
	 	(c)	 	The respective liabilities of each of the Obligors under the Finance Documents
shall not be in any way affected by:






	 	(i)	 	any actual or purported irregularity in any act done, or
failure to act, by the Company;
	 
	 	(ii)	 	the Company acting (or purporting to act) in any respect
outside any authority conferred upon it by any Obligor; or
	 
	 	(iii)	 	any actual or purported failure by, or inability of, the
Company to inform any Obligor of receipt by it of any notification under the
Finance Documents.










19









 











SECTION 3

PURPOSE





	3.	 	PURPOSE






	 	(a)	 	Each Borrower shall apply all amounts borrowed by it under the Facility for
working capital requirements and/or general corporate purposes of the Group.
	 
	 	(b)	 	Without affecting the obligations of the Borrowers in any way, no Finance Party
is bound to monitor or verify the application of any Advance in accordance with this
provision.










20









 











SECTION 4

CONDITIONS PRECEDENT





	4.	 	CONDITIONS PRECEDENT
	 
	4.1	 	Conditions Precedent to first Advance
	 
	 	 	The first Drawdown Notice shall not be delivered by a Borrower to the Agent until the Agent
has confirmed in writing to the Lenders (with a copy to the Company), that it has received
all of the documents and other evidence set out below and that each is in form and substance
satisfactory to the Agent (which confirmation the Agent shall give to the Lenders and the
Company promptly after being so satisfied).






	 	(a)	 	Copies of the current articles of association certified by authorised
signatories to be true and up-to-date copies and such other corporate documents
relating to the Company and each Obligor, as the Agent may reasonably request.
	 
	 	(b)	 	Certified extracts of the commercial register relating to the Company and each
Obligor of most recent date, where applicable.
	 
	 	(c)	 	Copies of a resolution of the board of directors (Vorstand) or the managing
board (bestuur) and a written resolution of the Company in its capacity as sole
shareholder of Qimonda B.V., or other authorisations, corporate or official, if any,
relating to each Obligor necessary in each Relevant Jurisdiction for the approval of,
the entry into and performance of the Finance Documents and the transactions
contemplated thereby by each Obligor and for the validity and enforceability of the
Finance Documents in such jurisdictions.
	 
	 	(d)	 	Specimen signatures to evidence the authority of the person or persons acting
for each Obligor to sign the Finance Documents, Drawdown Notices and any other notices
or other communications to be given by or on behalf of each Obligor hereunder.
	 
	 	(e)	 	A legal opinion from Hengeler Mueller addressing due execution, incorporation
and capacity to the Finance Documents as they relate to the Company.
	 
	 	(f)	 	A legal opinion from Shearman & Sterling, Frankfurt, addressing enforceability
of the Finance Documents.
	 
	 	(g)	 	A legal opinion from De Brauw Blackstone Westbroek N.V., addressing capacity,
due execution, incorporation and enforceability as they relate to Qimonda B.V.
	 
	 	(h)	 	In respect of any Drawdown Notice delivered before the satisfaction of the
condition subsequent in Clause 18.9 (Condition Subsequent), evidence satisfactory to
the Agent and the Mandated Lead Arrangers that the Group has at the date of such
evidence Minimum Liquidity of not less than Euro 1,000,000,000.
	 
	 	(i)	 	The most recent audited and unaudited consolidated financial statements of the
Group and the most recent audited/unaudited unconsolidated financial statements of each
Obligor.
	 
	 	(j)	 	Original executed copies of each Finance Document.
	 
	 	(k)	 	Evidence that the fees, costs and expenses then due from the members of the
Group pursuant to Clauses 22 (Fees) and 23 (Expenses) have been or will be paid by the
first Drawdown Date.
	 
	 	(l)	 	The initial Annual Projections.




21









 






	 	(m)	 	The reduction of the total commitments under the agreement dated 24 September
2004 in respect of US$400,000,000/Euro 400,000,000 term and revolving credit facilities
to Infineon Technologies AG and other borrowers, to the amount of US$345,000,000/Euro
300,000,000.
	 
	 	(n)	 	The Group structure chart.
	 
	 	(o)	 	Evidence satisfactory to the Agent of the completion of the IPO, including
without limitation a copy of the cross-receipt or receipts, as the case may be,
delivered in connection with the closing of the IPO confirming the receipt by the
underwriters of the American depository shares delivered in such offering and the
receipt by the Company of the proceeds from such offering due to it on the Closing Date
and a copy of the offering memorandum issued in relation thereto or any other similar
document evidencing the completion of the IPO on any applicable exchange in the U.S. or
the European Union.






	 	 	Each of the documents specified in paragraphs (a) to (d), (i), (n) and (o) above shall be
certified by a duly authorised officer of the Company, where applicable, as being correct,
complete and in full force and effect as at a date not earlier than the date of this
Agreement.
	 
	4.2	 	Conditions Precedent to each Advance
	 
	 	 	Each Lender shall only be obliged to contribute to an Advance if the following further
conditions are met:






	 	(a)	 	as part of the Drawdown Notice for an Advance the Agent has received a
confirmation of the relevant Borrower stating that on:






	 	(i)	 	both the date thereof and the Drawdown Date, the Repeated
Representations and Warranties are correct in all material respects;
	 
	 	(ii)	 	both the date thereof and the Drawdown Date, no Event of
Default (and (in case of an Advance other than a Rollover Advance) no event
which with the giving of notice or lapse of time or the making of any
determination under the Finance Documents or any combination of any of the
foregoing would constitute such an Event of Default) has occurred and is
continuing unwaived or unremedied or would result from the making of such
Advance;
	 
	 	(iii)	 	both the date thereof and the Drawdown Date, such Borrower is
not and following the Advance will not be in breach of its borrowing limits;
and
	 
	 	(iv)	 	the next Covenant Test Date, to the best of such Borrower’s
knowledge and belief, such Borrower shall be in compliance with the financial
covenants set out in Clause 18.5 (Financial Covenants) and, for the avoidance
of doubt, such Borrower shall be permitted to include any proceeds drawn under
the Facility in its calculation.






	 	(b)	 	other than in respect of a Rollover Advance, the relevant Borrower has
furnished evidence satisfactory to the Agent that it has Minimum Liquidity (excluding
any principal amounts outstanding under the Facility) in an aggregate amount of Euro
300,000,000.
	 
	 	(c)	 	in case an Additional Guarantor has acceded hereto according to Clause 19.6
(Additional Guarantors), the Agent has received evidence satisfactory that the further
conditions precedent as set forth in Schedule 4 (Further Conditions Precedent) have
been complied with.






	4.3	 	Conditions relating to Optional Currencies






	 	(a)	 	A currency other than the US Dollar will constitute an Optional Currency in
relation to an Advance if:










22









 












	 	(i)	 	it is readily available in the amount required and freely
convertible into Euro in the relevant interbank market on the Interest Rate
Determination Date and the Drawdown Date for that Advance; and
	 
	 	(ii)	 	no more than five currencies are and will be outstanding
following such Advance; and
	 
	 	(iii)	 	it is or has been approved by the Agent (acting on the
instructions of the Lenders) on or prior to receipt by the Agent of the
relevant Drawdown Notice for that Advance.






	 	(b)	 	If the Agent has received a written request from a Borrower for a currency to
be approved under paragraph (a)(iii) above, the Agent will confirm to such Borrower:






	 	(i)	 	whether or not the Lenders have granted their approval; and
	 
	 	(ii)	 	if approval has been granted, the minimum amount for any
subsequent drawdown in that currency, provided that the minimum amount for any
drawdown in US Dollars shall be US Dollars 10,000,000 and for any drawdown in
Euro shall be Euro 10,000,000 and further provided that the minimum amount for
any drawdown in any Optional Currency other than US Dollars and Euro shall be
the respective equivalent in the relevant Optional Currency at the time of such
Agent’s confirmation of the minimum amounts for drawdowns in US Dollars or Euro
rounded upwards to the nearest practicable round amount.






	4.4	 	Maximum number of Advances
	 
	 	 	A Borrower may not deliver a Drawdown Notice in relation to an Advance if as a result of the
proposed drawdown more than ten Advances would be outstanding.





23









 





SECTION 5

DRAWDOWN





	5.	 	DRAWDOWN
	 
	5.1	 	Drawdown Notice
	 
	 	 	Subject to the terms of this Agreement and upon the satisfaction of the conditions precedent
as specified in Clause 4 (Conditions Precedent) above an Advance will be made during the
relevant Availability Period if the Agent receives, not later than 10 a.m. three Business
Days (in relation to Advances denominated in Euro) or 2 p.m. four Business Days (in relation
to Advances denominated in US Dollars or an Optional Currency (other than Euro)) before the
proposed Drawdown Date, a duly completed Drawdown Notice, substantially in the form of
Schedule 2 (Drawdown Notice).
	 
	5.2	 	Completion of Requests for Advances
	 
	 	 	A Drawdown Notice will not be regarded as having been duly completed unless the following
has been specified in respect of the proposed Advance:






	 	(a)	 	the Drawdown Date, which must be a Business Day within the relevant
Availability Period;
	 
	 	(b)	 	the principal amount of the Advance which must be (i) at least Euro 10,000,000
(or, in each case, any other amount agreed between the relevant Borrower and the Agent)
or, if the Advance is to be denominated in an Optional Currency, an amount complying
with Clause 4.3(b)(ii), and/or (ii) the balance of the undrawn Total Commitments;
	 
	 	(c)	 	the currency which must be Euro or, in each case, an Optional Currency and the
choice of which must not lead to a situation in which the outstanding Advances are
denominated in more than five currencies;
	 
	 	(d)	 	the duration of the Term selected, which must comply with Clause 10 (Terms);
	 
	 	(e)	 	the relevant Borrower and the account to which the Advance is to be transferred
by the Agent, and






	 	 	subject to the terms of this Agreement, each such notice may only request one Advance and
shall be irrevocable and the relevant Borrower submitting the Drawdown Notice shall be bound
to borrow in accordance with such notice. At no time shall the aggregate of all outstanding
Advances exceed the Total Commitments.
	 
	5.3	 	Lender’s Participations
	 
	 	 	If the conditions set out above have been met, the Agent shall promptly notify each Lender
of the relevant Borrower, the amount and the currency of the Advance, the Drawdown Date, the
Term, such Lender’s participation in the amount of the Advance, which shall be equivalent to
its Share. Each Lender shall make its participation available to the Agent in each Advance
through its Facility Office in time to enable the Agent to make the Advance available on the
Drawdown Date in accordance with this Agreement.
	 
	 	 	On the Drawdown Date the Agent shall transfer the amounts received without undue delay to
such account as specified in the relevant Borrower’s Drawdown Notice.




24









 











SECTION 6

OPTIONAL CURRENCY





	6.	 	OPTIONAL CURRENCY
	 
	6.1	 	Selection of currency
	 
	 	 	A Borrower shall select the currency of an Advance in a Drawdown Notice.
    
	 
	6.2	 	Unavailability of a currency
	 
	 	 	If, prior to 9:30 a.m. on the Interest Rate Determination Date relative to an Advance to be
denominated in an Optional Currency (other than US Dollars), the Agent receives a notice
from a Lender






	 	(a)	 	that it is not possible for that Lender to fund its participation in the
Advance for that Term in that Optional Currency in the ordinary course of business in
the relevant interbank market, or
	 
	 	(b)	 	that the use of the proposed Optional Currency might contravene any law or
regulation,






	 	 	then the Agent shall give notice to the relevant Borrower before 10:00 a.m. on such Interest
Rate Determination Date. In this event, any Lender that gives notice pursuant to this Clause
6.2 (Unavailability of a currency) will be required to participate in the Advance in Euro in
an amount equal to that Lender’s Share in the Original Euro Amount, as applicable, and its
Share will be treated as a separate Advance denominated in Euro during that Term provided
that any separate Advance made in accordance with this clause shall not be included in
determining compliance with the limits in Clause 4.3(a)(ii) or 4.4 (Maximum number of
Advances).
	 
	6.3	 	Agent’s Spot Rate of Exchange
	 
	 	 	In this Agreement the “Agent’s Spot Rate of Exchange” means the spot rate of exchange as
reasonably determined by the Agent for the purchase of the relevant Optional Currency with
Euro as of 11.00 a.m. one Business Day prior to the relevant Interest Rate Determination
Date in the European foreign exchange market.
	 
	6.4	 	Conversion into Optional Currency
	 
	 	 	If an Advance is to be drawn down in an Optional Currency, each Lender will make available
to the Agent an amount in such Optional Currency determined by converting such Lender’s
participation in the Original Euro Amount on the basis of the Agent’s Spot Rate of Exchange
relative to such Advance into that Optional Currency.
	 
	6.5	 	Notification of Rates and Amounts
	 
	 	 	The Agent shall promptly notify the Lenders and the relevant Borrower of the Agent’s Spot
Rate of Exchange (as to which the Agent’s determination shall be conclusive except in the
case of manifest error) and of Optional Currency amounts payable hereunder as soon as they
are ascertained.




25









 











SECTION 7

REPAYMENT





	7.	 	REPAYMENT
	 
	7.1	 	Repayment
	 
	 	 	Each Advance shall be repaid by the relevant Borrowers in accordance with Clause 13
(Payments) in the currency in which the Advances may be denominated on the last day of the
relevant Term for such Advance and by the latest on the Final Maturity Date.
	 
	7.2	 	Reborrowing
	 
	 	 	During the relevant Availability Period any amount repaid or prepaid under the Facility and
not cancelled pursuant to Clause 8 (Prepayment and Cancellation), may be redrawn.
	 
	7.3	 	Netting of Payments
	 
	 	 	In case of a Rollover Advance, each Lender shall only be obliged to advance any excess or,
as the case may be, the relevant Borrower shall only be obliged to pay any shortfall,
between the maturing Advance and the Advance to be made.
	 
	7.4	 	Extension Option






	 	(a)	 	Extension






	 	(i)	 	The Company may, by delivering to the Agent an Extension
Notice, request each Lender to extend the Initial Final Maturity Date to the
Extended Final Maturity Date, such notice to be delivered to the Agent not
earlier than ninety (90) days and not later than forty-five (45) days before
the first anniversary of the Commencement Date. Upon receiving such notice
from the Company requesting the extension of the Initial Final Maturity Date,
the Agent will promptly notify the Lenders.
	 
	 	(ii)	 	Each Lender shall notify the Agent by no later than the
Notification Date whether or not it is willing to extend the Initial Final
Maturity Date in respect of its Commitment. If a Lender fails so to notify the
Agent such Lender shall be deemed to have notified the Agent that it is not so
willing.
	 
	 	(iii)	 	If following an Extension Notice given pursuant to paragraph
(a)(i), all Lenders have notified the Agent that they are willing to extend the
Initial Final Maturity Date, the Agent shall notify the Company and the Lenders
accordingly whereupon the Initial Final Maturity Date shall be so extended with
binding effect for all parties to this Agreement to the Extended Final Maturity
Date.
	 
	 	(iv)	 	If following an Extension Notice given pursuant to paragraph
(a)(i), only some but not all of the Lenders are willing to extend the Initial
Final Maturity Date, then the Agent shall notify the Company and the Lenders
accordingly whereupon (subject to Clause 7.4(b) below):






	 	(A)	 	subject always to sub-paragraph (B) below, the Initial Final Maturity Date in respect of
the Commitments of such Lenders which are willing to extend the Initial
Final Maturity Date (the “Extending Lenders”) shall be extended with
binding effect for all parties to this Agreement (including for the
avoidance of doubt, the Non-Extending Lenders) to the Extended Final
Maturity Date; and
	 
	 	(B)	 	the Initial Final Maturity Date in respect of
the Commitment of all other Lenders (the “Non-Extending Lenders”) shall
not be extended, whereupon the Company may require any such Lender at
any time during the Extension




26









 





	 	 	 	Transitory Period to assign and transfer at par its Commitment (or
any part thereof), together with any rights arising out of its
respective participation in Advances outstanding, to any Lender or
new bank or other financial institution or Fund which is willing to accept
such assignment and transfer in accordance with Clause 27.4
(Assignment and Transfer by the Lenders) and subsequent to such
assignment and transfer to extend the Initial Final Maturity Date to
the Extended Final Maturity Date and such Lenders are deemed to be
Extending Lenders thereafter.






	 	(b)	 	General






	 	(i)	 	Nothing herein shall oblige any Lender to agree to extend the
Initial Final Maturity Date.
	 
	 	(ii)	 	In respect of the making of any Advances where the last day of
its Term would fall after the Initial Final Maturity Date but before or on the
Extended Final Maturity, the Company may only request such an Advance if (x)
all Lenders are Extending Lenders or (y) the Drawdown Date falls on or after
the Initial Final Maturity Date and the Drawdown Notice is only addressed to
the Extending Lenders.
	 
	 	(iii)	 	The Commitments of each Lender which is not an Extending
Lender and which has not been transferred, shall be cancelled and reduced to
zero on the Initial Final Maturity Date, and any Advances together with any
other sums owed to any such Lender under this Agreement shall be repaid in full
on or prior to the Initial Final Maturity Date.
	 
	 	(iv)	 	The Final Maturity Date shall not be extended beyond the date
falling four (4) years after the Commencement Date.
	 
	 	(v)	 	The Company may only make one (1) request for the extension of
the Final Maturity Date.










27









 











SECTION 8

PREPAYMENT AND CANCELLATION





	8.	 	PREPAYMENT AND CANCELLATION
	 
	8.1	 	Change of control
	 
	 	 	Upon the occurrence of a Change of Control:






	 	(a)	 	the Company shall promptly notify the Agent upon becoming aware of that event
and the Agent shall promptly notify the Lenders thereof;
	 
	 	(b)	 	prior to the expiry of the one month period referred to in paragraph (c) below,
no Borrower may submit a Drawdown Notice (except for a Rollover Advance); after the
expiry of this period, each Borrower may submit a Drawdown Notice provided however that
only such Lenders from which the Agent has not received a Termination Notice pursuant
to paragraph (c) below shall be obliged to participate in such Advance (and only in the
amount of their respective Commitments);
	 
	 	(c)	 	each Lender may within a period of one month following receipt of the
notification by the Agent under paragraph (a) above, send to the Agent a notification
addressed to the Company stating that such Lender (such Lender a “Terminating Lender”)
cancels its Commitments under this Agreement and declares its participation in the
outstanding Advances (together with accrued interest and all other amounts accrued
under the Finance Documents in respect of its participations) due and payable (such
notice a “Termination Notice” (Kündigung)). The Agent shall promptly forward each
Termination Notice received by it to the Company.
	 
	 	(d)	 	The Commitments of the relevant Terminating Lender shall be cancelled and all
outstanding Advances and amounts in respect of such Lender’s participations shall
become due and payable 30 days after receipt of the Termination Notice by the Company.






	8.2	 	Voluntary Cancellation
	 
	 	 	Each Borrower may, by giving not less than 5 Business Days’ prior written notice to the
Agent, cancel the undrawn amount of the Total Commitments in whole or in part (but, if in
part, in a minimum amount of Euro 5,000,000) without penalty.
	 
	8.3	 	Voluntary Prepayment
	 
	 	 	Each Borrower may, by giving not less than 5 Business Days’ prior written notice to the
Agent, prepay amounts drawn under the Facility in whole or in part (but, if in part, in a
minimum amount of Euro 5,000,000).
	 
	8.4	 	Right of repayment and cancellation
	 
	 	 	If:






	 	(a)	 	any Borrower is required to pay to a Lender any additional amounts under Clause
14 (Taxes); or
	 
	 	(b)	 	any Borrower is required to pay to a Lender any amount under Clause 15.1
(Increased Costs)






	 	 	then, without prejudice to the obligations of such Borrower under those Clauses 14 (Taxes)
and 15 (Increased Costs), such Borrower may, whilst the circumstances continue, serve a
notice of repayment on that Lender through the Agent. On the date specified in such notice
(which shall not be earlier than the date falling fifteen (15) Business Days after the date
of service of the notice):




28









 












	 	(i)	 	such Borrower shall repay that Lender’s participation in all
the Advances; and
	 
	 	(ii)	 	that Lender’s undrawn Commitments shall be cancelled (without
premium or penalty).






	8.5	 	Cancellation upon End of Availability Period
	 
	 	 	The Total Commitments then undrawn shall automatically be cancelled in whole at the end of
the last day of the relevant Availability Period.
	 
	8.6	 	Automatic Cancellation
	 
	 	 	If the Closing Date has not occurred by 30 November 2006, the Commitments of each Lender in
relation to the Facility shall be automatically cancelled.
	 
	8.7	 	Restrictions






	 	(a)	 	Any notice of prepayment or cancellation under this Agreement shall be
irrevocable and binding on the Borrowers. The Agent shall notify the Lenders promptly
of receipt (however, in the case of a prepayment notice, not later than two Business
Days after receipt) of any such notice.
	 
	 	(b)	 	Any cancellation or prepayment pursuant to Clause 8.2 (Voluntary Cancellation)
and Clause 8.3 (Voluntary Prepayment) shall be applied against the relevant Commitment
of each Lender pro rata.
	 
	 	(c)	 	All prepayments under this Agreement shall be made together with all accrued
interest on the amount prepaid and, subject to compensation of break costs in
accordance with Clause 12.3 (Indemnity), without premium or penalty.
	 
	 	(d)	 	No prepayment or cancellation is permitted except in accordance with the
express terms of this Agreement.
	 
	 	(e)	 	No amount prepaid pursuant to Clause 8.1 (Change of control) above may
subsequently be reborrowed.
	 
	 	(f)	 	No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.










29









 











SECTION 9

INTEREST AND ASSOCIATED COSTS





	9.	 	INTEREST AND ASSOCIATED COSTS
	 
	9.1	 	Interest Rate
	 
	 	 	Each Advance shall bear interest for the applicable Term payable in arrears at the Interest
Rate which shall be expressed as an annual Interest Rate.
	 
	 	 	Interest shall accrue from day to day and be calculated on the basis of the actual number of
days elapsed in the relevant Term (plus any additional days in case of an extension of a
Term pursuant to Clause 10.3 (Non-Business Day)) divided by 360 or 365, depending on the
market convention in the relevant market.
	 
	9.2	 	Margin
	 
	 	 	The Margin shall be 1.75 per cent. per annum for Advances outstanding during each relevant
Term commencing from the date of this Agreement until the date of receipt of the first
Compliance Certificate to be delivered after the date of this Agreement. In relation to any
relevant Term commencing after the date of receipt of the first Compliance Certificate by
the Agent and after the date falling one year after the Commencement Date, the Margin shall
correspond to the percentage rate per annum in column 2 below, set opposite the range into
which the average of EBIT for the respective two preceding calendar quarters ending on 31
March or 30 September of each year (as the case may be) as shown in the Compliance
Certificate relating to the most recent of such periods falls:





	 	 	 
	Column 1	 	Column 2
	Average EBIT (in Euro millions):
	 	Margin (in % p.a.)
	 
	 	 
	< 0
	 	1.75
	 
	 	 
	3 0 to < 175
	 	1.50
	 
	 	 
	3 175
	 	1.25







	 	 	The Company shall confirm EBIT for the relevant two quarters in writing setting out in
reasonable detail the respective calculation in the relevant Compliance Certificate.
	 
	 	 	Any reduction or increase to the Margin (other than the increase applicable from the date
falling one year after the Closing Date which shall take effect in relation to all relevant
Terms commencing on and after such date) shall take effect in relation to all relevant Terms
commencing after the date on which the Agent receives the relevant Compliance Certificate.
	 
	9.3	 	Due Dates
	 
	 	 	Except as otherwise provided in this Agreement, accrued interest on each Advance and for
each Term relative thereto shall be payable by the Borrowers to the Agent for account of the
Lenders, on the last day of each Term and also in the case of any Advance with a Term longer
than six months, at six months intervals after the first day of the Term for so long as the
relevant Advance is outstanding.




30









 






	9.4	 	Alternative Determination
	 
	 	 	In the event that the Agent cannot determine LIBOR for a Term relative to an Advance
denominated in US Dollars or an Optional Currency (other than Euro) as set forth in Clause 1
(Definitions and Interpretations), the Reference Interest Rate for such Term shall be the
interest rate reasonably determined by the Agent by calculating on the Interest Rate
Determination Date the arithmetic mean (rounded up to 4 decimal places) of offers for
deposits in US Dollars or such Optional Currency (other than Euro), as applicable, quoted to
leading banks in the London Interbank Market and obtained at or about 11.00 a.m. from the
Reference Banks for such Term.
	 
	 	 	In the event that the Agent cannot determine EURIBOR for a Term relative to an Advance
denominated in Euro, the Reference Interest Rate for such Term shall be the interest rate
reasonably determined by the Agent by calculating on the Interest Rate Determination Date
the arithmetic mean (rounded up to 4 decimal places) of offers for deposits in Euro quoted
to leading banks in the European Interbank Market and obtained at or about 11.00 a.m.
Brussels time from the Reference Banks for such Term.
	 
	9.5	 	Absence of Quotation
	 
	 	 	In the event that the Reference Interest Rate must be determined pursuant to Clause 9.4
(Alternative Determination) above, and none, or only one, of the Reference Banks supplies a
rate hereunder by 11:30 a.m. Brussels or London time, as the case may be, on the Interest
Rate Determination Date, or in case another market disturbance, as referred to in Clause
11.1 (Market Disturbance) below, has occurred, the Reference Interest Rate shall be
determined on a Substitute Basis as provided for in Clause 11.2 (Suspension) below.
	 
	9.6	 	Notification
	 
	 	 	The Agent shall without undue delay inform the Lenders and the Borrowers on the Interest
Rate Determination Date of the Interest Rate it has determined for each Term and the
interest payable in relation to each Advance.
	 
	9.7	 	Associated Costs






	 	(a)	 	Each Borrower shall pay the amount of any Associated Costs together with
accrued interest in accordance with Clause 9.3 (Due Dates) above.
	 
	 	(b)	 	Each Lender will use reasonable endeavours to avoid incurring such Associated
Costs.
	 
	 	(c)	 	The relevant Lender shall calculate its Associated Costs on an accurate basis
in accordance with market practices from time to time and shall provide evidence of
such calculations and the amount of such Associated Costs as soon as reasonably
practicable after it becomes aware of its Associated Costs. In relation to Lenders
which are subject to Associated Costs in the United Kingdom such calculation shall be
determined according to Schedule 7 (Associated Costs Formulae).










31









 











SECTION 10

TERMS





	10.	 	TERMS
	 
	10.1	 	Selection of Term
	 
	 	 	Unless the Lenders and the relevant Borrower have agreed otherwise, the duration of each
Term shall be one, two, three, six or twelve months at the option of such Borrower or, with
the prior consent of the Lenders, any other period. Drawings for a one-month Term may be
selected for no more than twelve times each twelve month period. The relevant Borrower may
select a Term for an Advance in the relevant Drawdown Notice for such Advance. No Borrower
shall select a Term which extends over the Final Maturity Date.
	 
	10.2	 	Duration of Term
	 
	 	 	The Term in relation to an Advance shall commence on the relevant Drawdown Date or on the
last day of its preceding Term and shall end on the last day of the specified or agreed
duration of the Term.
	 
	10.3	 	Non-Business Day
	 
	 	 	In the event that the last day of a Term would fall on a day other than a Business Day, then
the following Business Day shall be the last day of such Term and the Term shall be extended
accordingly, unless the last day of such Term would therefore fall in the next calendar
month, in which case the last day of such Term shall be the immediately preceding Business
Day and the Term shall be shortened accordingly; in the case that the last day of a Term
falls in a month that does not have a day numerically corresponding to the respective
Drawdown Date, then the last day of such Term shall be the immediately preceding Business
Day and the Term shall be shortened accordingly. If the last day of a Term would fall on a
date after the Final Maturity Date, the last day of such Term shall be the Final Maturity
Date and the Term shall end on the Final Maturity Date.






32










 







SECTION 11

SUBSTITUTE BASIS





	11.	 	SUBSTITUTE BASIS
	 
	11.1	 	Market Disturbance
	 
	 	 	Unless expressly otherwise agreed in this Agreement, if:






	 	(a)	 	none, or only one, of the Reference Banks has furnished a quotation to the
Agent for the purpose of determining the applicable Reference Interest Rate, as the
case may be, to an Advance in accordance with Clause 9.4 (Alternative Determination) by
11.30 a.m. Brussels or London time, as the case may be, on the Interest Rate
Determination Date; or
	 
	 	(b)	 	at any time prior to the commencement of the Term relative to an Advance but
not later than 11.30 a.m. Brussels or London time, as the case may be, on the Interest
Rate Determination Date, the Agent (after consultation with the Reference Banks) shall
have reasonably determined that by reason of circumstances affecting the European
Interbank Market (in case of Euro) or the London Interbank Market (in case of US
Dollars and an Optional Currency other than Euro), adequate and fair means do not exist
for ascertaining the applicable EURIBOR or LIBOR, as the case may be, to such Advance
during such Term; or
	 
	 	(c)	 	at any time prior to the commencement of the Term relative to an Advance the
Agent shall have received written notification from Lenders representing at least 45
per cent of the aggregate amount of the Total Commitments






	 	(i)	 	that matching deposits of equal duration to that of such Term
are not readily available in the European Interbank Market (in case of Euro) or
the London Interbank Market (in case of US Dollars and an Optional Currency
other than Euro) in sufficient amounts in the ordinary course of business to
fund their participations in such Advance during such Term; or
	 
	 	(ii)	 	that, by reason of circumstances affecting the European
Interbank Market (in case of Euro) or the London Interbank Market (in case of
US Dollars and an Optional Currency other than Euro), Euro, US Dollars or the
relevant Optional Currency is not freely available in the European Interbank
Market (in case of Euro) or the London Interbank Market (in case of US Dollars
and an Optional Currency other than Euro) for Advances for the relevant Term;
or
	 
	 	(iii)	 	that, by reason of circumstances affecting the European
Interbank Market (in case of Euro), or the London Interbank Market (in case of
US Dollars and an Optional Currency other than Euro) generally, the cost to
them of deposits obtained in such market to fund their participations in such
Advance is in excess of the relevant EURIBOR or LIBOR for the relevant Term;






	 	 	 	the Agent shall promptly give written notice (the “Suspension Notice”) of such
determination or notification to the Borrowers and to each of the Lenders.






	11.2	 	Suspension
	 
	 	 	During the period of ten days after the giving of such Suspension Notice, the Agent and the
relevant Borrower shall negotiate in good faith upon an alternative basis (a “Substitute
Basis”) for such Advance. Such Substitute Basis may (without limitation) include an
alternative Term and an alternative Reference Interest Rate. lf such Substitute Basis is
agreed between the relevant Borrower and the Agent with the consent of all Lenders, it shall
apply in accordance with its terms for so long as the circumstances as referred to in Clause
11.1 (Market Disturbance) above prevail. lf such Substitute Basis is not agreed between the
relevant Borrower and the Agent with the consent of all Lenders by the




33









 






	 	 	end of such ten-day period the respective Advance shall not be made and no further Drawdown
Notices for an Advance in the currency of the affected Advances may be delivered by such
Borrower until the circumstances as referred to in Clause 11.1 (Market Disturbance) above no
longer prevail.






	11.3	 	Notification
	 
	 	 	The Agent shall promptly notify the Borrowers and the Lenders if these circumstances no
longer prevail.






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SECTION 12

DEFAULT INTEREST AND INDEMNITY





	12.	 	DEFAULT INTEREST AND INDEMNITY
	 
	12.1	 	Default Interest Rate
	 
	 	 	Without prejudice to any further rights of the Lenders, in particular Clause 12.3
(Indemnity), the defaulting Obligor shall for the period an amount is due but unpaid
(overdue):






	 	(a)	 	pay default interest for all principal sums overdue and any other sums overdue
other than interest pursuant to the provisions of this Agreement, at a rate (the
“Default Rate”) determined by the Agent to be 1% per annum above the higher of (i) the
Interest Rate applicable to the overdue amount immediately before the due date (if of
principal), and (ii) the rate of interest which would have been payable if such overdue
amount had, during the period of non-payment thereof, constituted an Advance made
hereunder in the currency of such overdue amount for successive terms of any duration
of up to three months as the Agent may determine from time to time (each a “Designated
Term”), provided that, if the Agent determines that (aa) deposits in the currency of
the overdue amount are not at the relevant time available to leading banks in the
European or London, as the case may be, Interbank Markets, or (bb) in case of (ii)
above a rate of interest cannot be determined pursuant to Clause 9.1 (Interest Rate) or
9.4 (Alternative Determination), the Default Rate will be determined by reference to
the weighted arithmetic mean (rounded up to 4 decimal places) of the costs of funds to
the Lenders from whatever sources they may reasonably select plus the Margin.
	 
	 	(b)	 	The right of the Lenders to claim further damages remains unaffected.






	12.2	 	First Demand Payment
	 
	 	 	All damages and default interest payments shall be made by the defaulting Obligor without
undue delay upon first written demand of the Agent.
	 
	12.3	 	Indemnity
	 
	 	 	The Obligors shall compensate the Lenders for any loss, damage, costs and expenses actually
suffered or incurred (unless stated otherwise below, including losses of Margin or losses
resulting from refinancing incurred by the Lenders in the provision or maintenance of the
relevant Advances for the relevant Terms) to the extent such loss, damage, costs or expenses
have not been covered by any compensation paid pursuant to Clause 12.1 (Default Interest
Rate) which have been incurred by the Lenders because:






	 	(a)	 	the defaulting Obligor has failed to pay a sum due pursuant to this Agreement
on the due date; or
	 
	 	(b)	 	an Event of Default described in the provisions of Clause 20 (Events of
Default) has occurred, or
	 
	 	(c)	 	of the receipt or recovery by any Finance Party of all or any part of its Share
of an Advance or an overdue sum other than on the last day of a Term relating to that
Advance or of the Designated Term relating to the overdue sum; or
	 
	 	(d)	 	an Advance requested by one of the Obligors cannot be made because the Obligors
have failed to satisfy a condition precedent or the Obligor who requested the Advance
refuses to accept the Advance.






	 	 	In the case of (c) and (d) above, the amount payable by the Obligors upon request by the
Agent, to each Lender through the Agent, shall in any event be the amount by which (a) the
amount of interest




35









 






	 	 	(excluding the Margin) which, (aa) in accordance with the terms of this Agreement, would
otherwise be payable to the Lenders on their respective Shares of that Advance for its Term
or (bb), as the case may be, on the relevant amount so received or recovered for the
remainder of the relevant Term or Designated Term exceeds (b) the amount of interest which
each Lender is able to obtain by placing an amount equal to its Share of the relevant
Advance or overdue sum on deposit in the European or London Interbank Market, as the case
may be, for the remainder of the relevant Term or Designated Term, as soon as reasonably
practicable after it becomes aware that the relevant Advance is not being made or, as the
case may be, of the relevant receipt or recovery.
	 
	 	 	This Clause 12.3 (Indemnity) shall also apply, in the event a repayment or prepayment of an
Advance or a Lender’s participation in an Advance is made pursuant to Clause 16
(Illegality), provided however that no indemnity pursuant to this Clause 12.3 (Indemnity) is
due and payable if the illegality pursuant to Clause 16 (Illegality) is due to a violation
of the provisions with respect to which a Legal Change (as defined in Clause 16
(Illegality)) has occurred, committed by the relevant Lender negligently or intentionally.






36









 








SECTION 13

PAYMENTS





	13.	 	PAYMENTS
	 
	13.1	 	Place
	 
	 	 	All payments owed by the Obligors pursuant to this Agreement plus VAT, if applicable, shall
be made to the Agent in the relevant currency in immediately available funds to the account
at such office or bank in the principal financial centre of the country of that currency as
notified by the Agent to the Obligors.
	 
	13.2	 	No Set-Off, Counterclaim or Retention
	 
	 	 	All payments to be made by the Obligors shall be made in full, without any deductions and to
the exclusion of any set-off, counterclaim, right of bailment, retention or lien,
restriction or condition, on the respective due dates at such times as the Agent may specify
to the Obligors as being customary in the relevant currency in the place for payment.
	 
	13.3	 	Discharging Effect
	 
	 	 	The Obligors shall be released from their obligation to make any particular payment only
once the paid sum has been unconditionally credited to the account designated in Clause 13.1
(Place) above and only in so far as the amount paid is sufficient to satisfy the Obligor’s
payment obligations on any date at which payment is due pursuant to this Agreement.
	 
	13.4	 	Extensions
	 
	 	 	Whenever any payment hereunder shall become due on a day which is not a Business Day, the
due date thereof shall be extended to the next Business Day unless expressly otherwise
agreed in this Agreement. During any extension of the due date for payment of any principal
of the Advances hereunder interest shall be payable on such principal at the rate payable
during the Term of the respective Advance.
	 
	13.5	 	Appropriation
	 
	 	 	If the Agent receives a payment insufficient to discharge all the amounts then due and
payable by the Obligors under this Agreement, the Agent shall apply that payment towards the
obligations of the Obligors under this Agreement in the following order:






	 	(a)	 	first, in or towards payment pro rata of any unpaid costs and expenses of the
Agent under the Finance Documents;
	 
	 	(b)	 	secondly, in or towards payment pro rata of any unpaid fees under the Finance
Documents;
	 
	 	(c)	 	thirdly, in or towards payment pro rata of any accrued interest due but unpaid
under the Finance Documents;
	 
	 	(d)	 	fourthly, in or towards payment pro rata of any principal due but unpaid under
the Finance Documents;
	 
	 	(e)	 	fifthly, in or towards payment pro rata of any other sums due but unpaid under
the Finance Documents.






	 	 	The Agent shall vary the order set out in paragraphs (c) to (e) above if so directed by all
Lenders. Any contrary instruction given by any of the Obligors shall have no effect.




37









 












	13.6	 	Distribution






	 	(a)	 	The Agent shall, without prejudice to other provisions of this Agreement,
distribute the appropriate share of principal, interest and other payments owed
pursuant to this Agreement to the relevant Lenders in accordance to their respective
Shares and in like funds, as they are received by the Agent.
	 
	 	(b)	 	The Agent may apply any amount received by it from any Person for any of the
Obligors in or towards payments (on the date and in the currency and funds of receipt)
of any amount due from such Obligor under this Agreement or in or towards the purchase
of any amount of any currency to be so applied.






38









 








SECTION 14

TAXES





	14.	 	TAXES
	 
	14.1	 	No Tax Deduction
	 
	 	 	All payments by the Obligors under the Finance Documents shall be made free and clear of,
and without deduction or withholdings for or on account of, any Taxes, except to the extent
that the Obligor by whom the payment is to be made is required by law to make payment
subject to deduction or withholdings for or on account of any Taxes.
	 
	14.2	 	Gross-up
	 
	 	 	In the event that with respect to any payments made by any of the Obligors, any of the
Obligors or any of the Lenders or the Agent is obliged by law to deduct or withhold or
retain Taxes, the Obligor concerned shall:






	 	(a)	 	pay any such Taxes by their due date to the appropriate authority; and
	 
	 	(b)	 	indemnify and keep harmless the Finance Parties in relation to all such Taxes;
and
	 
	 	(c)	 	make such additional payments to the relevant Finance Party or Parties as may
be necessary to ensure that the net amount remaining after the said deduction or
withholdings or retention, corresponds with the full amount which it or they would have
received had payment not been made subject to Taxes.






	14.3	 	Tax Certificates
	 
	 	 	Upon written request from the relevant Obligor through the Agent each Finance Party shall
complete and deliver as soon as it can reasonably do so in the ordinary course of its
business to the relevant Obligor or the relevant Tax authorities such certificates or
applications under the laws of the Relevant Jurisdiction or any applicable double taxation
treaty (or arrangements of similar effect) as will be necessary to assist the Obligors to
make payments under this Agreement without deduction or withholdings for or on account of
Tax.
	 
	14.4	 	Tax Receipts
	 
	 	 	Each of the Obligors shall deliver to the Agent for the relevant Lender evidence reasonably
satisfactory to that Lender (including all relevant Tax receipts when and as available) that
the payment has been duly remitted to the appropriate authority by submitting accounts
statements within 15 days of the payment being made and any relevant Tax receipts without
undue delay once such evidence is available to it.
	 
	14.5	 	Tax Credits
	 
	 	 	If:






	 	(a)	 	any of the Obligors pays any additional amounts under Clause 14.2(c) (Gross-up)
above or makes a payment under Clause 14.6 (Tax Indemnity) below; and
	 
	 	(b)	 	any Lender obtains a refund of Tax, or credit against Tax on its overall net
income, by reason of the payment of such additional amount or such payment under Clause
14.6 (Tax Indemnity) below; and
	 
	 	(c)	 	the Lender is able to identify the Tax credit as being attributable to the
payment of such additional amount or such payment under Clause 14.6 (Tax Indemnity)
below,





39









 











	 	 	then the Lender shall reimburse such Obligor such amount promptly after the Tax assessment
related thereto for that year, if any, has become final, as it shall determine, such
determination to be made reasonably, to be the proportion of the Tax credit as will leave
the Lender after the reimbursement, in no better or worse position than it would have been
in if such payment had not been required. No Lender shall be under an obligation as to
whether to claim any Tax credit if such claim may, in the sole discretion of such Lender,
have an adverse effect on its business, operations or financial condition (other than minor
administrative costs) providing reasoned explanation and, if it does claim, each Lender
shall have the absolute discretion as to the extent, order and manner in which it does so.
No Lender is, or shall be, obliged to disclose any information regarding its Tax affairs or
computations to any of the Obligors.






	14.6	 	Tax Indemnity






	 	(a)	 	Except as provided by paragraph (b) below, the Company shall, or shall procure
that an Obligor shall, on demand by the Agent, indemnify a Finance Party against any
loss, liability or cost which that Finance Party (in its absolute discretion)
determines will be or has been (directly or indirectly) suffered for or on account of
Tax by that Finance Party in respect of a Finance Document.
	 
	 	(b)	 	Paragraph (a) above shall not apply:






	 	(i)	 	with respect to any Tax assessed on a Finance Party under the
laws of the jurisdiction in which:






	 	(A)	 	that Finance Party is incorporated or, if
different, the jurisdiction (or jurisdictions) in which that Finance
Party is treated as resident for Tax purposes; or
	 
	 	(B)	 	that Finance Party’s Facility Office is located
in respect of amounts received or receivable in that jurisdiction,






	 	 	 	if that Tax is imposed on or calculated by reference to the overall net
income received or receivable by that Finance Party. Any sum deemed to be
received or receivable, including, for the avoidance of doubt, any amount
treated as income but not actually received by the Finance Party (such as a
deduction pursuant to Clause 14.1 (No Tax Deduction) above), is not income
received or receivable for this purpose; or






	 	(ii)	 	if and to the extent that a loss, liability or cost is
compensated for by an increased payment pursuant to Clause 14.2 (Gross-up)
above.






	 	(c)	 	A Finance Party making, or intending to make, a claim under paragraph (a) above
shall promptly notify the Agent of the event which will give, or has given, rise to the
claim, following which the Agent shall notify the Company.
	 
	 	(d)	 	A Finance Party shall, on receiving a payment from an Obligor under paragraph
(a) above, notify the Agent.






	14.7	 	VAT






	 	(a)	 	All amounts set out in, or expressed to be payable under, a Finance Document by
any party to a Finance Party which (in whole or in part) constitute the consideration
for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such
supply, and accordingly, subject to paragraph (c) below, if VAT is chargeable on any
supply made by any Finance Party to any party under a Finance Document, that party
shall pay to the Finance Party (in addition to and at the same time as paying the
consideration) an amount equal to the




40









 






	 	 	 	amount of the VAT (and such Finance Party shall promptly provide an appropriate VAT
invoice to such party).






	 	(b)	 	If VAT is chargeable on any supply made by any Finance Party (the “Supplier”)
to any other Finance Party (the “Recipient”) under a Finance Document, and any party
(the “Relevant Party”) is required by the terms of any Finance Document to pay an
amount equal to the consideration for such supply to the Supplier (rather than being
required to reimburse the Recipient in respect of that consideration), such Relevant
Party shall also pay to the Supplier (in addition to and at the same time as paying
such amount) an amount equal to the amount of such VAT. The Recipient shall promptly
pay to the Relevant Party an amount equal to any credit or repayment from the relevant
Tax authority which it reasonably determines relates to the VAT chargeable on that
supply.
	 
	 	(c)	 	Where a Finance Document requires any party to reimburse a Finance Party for
any costs or expenses, that party shall also at the same time pay and indemnify the
Finance Party against all VAT incurred by the Finance Party in respect of the costs or
expenses to the extent that the Finance Party determines in its sole discretion that
neither it nor any other member of any group of which it is a member for VAT purposes
is entitled to credit or repayment from the relevant Tax authority in respect of the
VAT.






41









 








SECTION 15

INCREASED COSTS





	15.	 	INCREASED COSTS
	 
	15.1	 	Increased Costs
	 
	 	 	If the result of any change in, or introduction of, law, regulation, treaty or official
directive or request (whether or not having the force of law, but if not, being of a type
with which that Lender or Lender’s Affiliated Company is expected or required to comply) or
any change in the interpretation or application thereof by a governmental body or regulatory
authority, in any case after the date hereof or compliance by any Lender or any Lender’s
Affiliated Company with the same (including without limitation those relating to Taxation,
reserve, special deposit, cash ratio, liquidity or capital adequacy requirements, any
requirement relating to the manner in which the Lender or any Lender’s Affiliated Company is
required to allocate financial resources to provide for the making of or in relation to any
Advance or any other form of banking or monetary controls) is that:






	 	(a)	 	the cost to any Lender or any Lender’s Affiliated Company of contributing to or
funding such Lender’s participation in any Advance or of maintaining such Lender’s
Commitment hereunder is increased relative to the amount of costs otherwise applicable;
or
	 
	 	(b)	 	any amount payable to the Agent or to a Lender or any Lender’s Affiliated
Company or the effective return to the Agent or to a Lender or any Lender’s Affiliated
Company hereunder is reduced relative to the amount otherwise applicable; or
	 
	 	(c)	 	the Agent or a Lender or any Lender’s Affiliated Company makes any payment or
forgoes any interest or other return on, or calculated by reference to, any amount
received or receivable by it from any of the Obligors hereunder;






	 	 	then and in each such case:






	 	(i)	 	such Lender shall notify the Obligors through the Agent in
writing of such event promptly upon its becoming aware of the same; and
	 
	 	(ii)	 	from time to time upon demand by the Lender through the Agent,
the Obligors shall pay to such Lender such amount determined by such Lender as
shall compensate the Lender or any Lender’s Affiliated Company for such
increased costs, reduction, payment or forgone interest or other return.






	15.2	 	Exceptions
	 
	 	 	Clause 15.1 (Increased Costs) does not apply to any increased cost:






	 	(a)	 	compensated for under Clause 14 (Taxes); or
	 
	 	(b)	 	Associated Costs according to Clause 9.7 (Associated Costs); or
	 
	 	(c)	 	attributable to any change in the rate of tax on the overall net income of a
Lender or any Lender’s Affiliated Company (or the overall net income of a division or
branch of the Lender or any Lender’s Affiliated Company) imposed in the jurisdiction in
which its principal office or Facility Office for the time being is situated; or
	 
	 	(d)	 	attributable to the implementation or application of or compliance with the
“International Convergence of Capital Measurement and Capital Standards, a Revised
Framework” published by the Basel Committee on Banking Supervision in June 2004 in the
form existing on the date of this Agreement (“Basel II”) or any other law or regulation
which implements




42









 






	 	 	 	Basel II (whether such implementation, application or compliance is by a government,
regulator, Finance Party or any of its Affiliates).







43









 








SECTION 16

ILLEGALITY





	16.	 	ILLEGALITY
	 
	 	 	lf any change in, or introduction of, any law, regulation or treaty, or any change in the
interpretation or application thereof by a governmental body or regulatory authority after
the date hereof (hereinafter referred to as “Legal Changes”), shall make it unlawful or
contrary to any regulation for any Lender to make available or fund or maintain its
Commitment or its participation in any outstanding Advance or to give effect to its
obligations as contemplated hereby, the following provisions shall apply:
	 
	16.1	 	Termination
	 
	 	 	Such Lender may terminate its Commitment and its participation in the outstanding Advances
by notice to the Agent effective as from the date of which performance becomes unlawful or
contrary to any regulation or at the end of the applicable Terms, whichever is the earlier,
such notice stating exactly which contractual obligations became illegal, the date on which
such illegality will arise and which Legal Changes have given rise to the illegality. The
Agent shall without undue delay upon receipt of such notice of termination inform the
Obligors thereof.
	 
	16.2	 	Repayment and Prepayment
	 
	 	 	Each of the Obligors shall repay or prepay (as the case may be) such Lender’s participation
in the outstanding Advances plus accrued interest and any other sums outstanding pursuant to
this Agreement, at the end of the applicable Terms or, in the event termination is effective
pursuant to Clause 16.1 (Termination) before the end of a Term, at such earlier date (unless
the Obligors are notified of termination after such earlier date in which case payment shall
be made within five Business Days of the respective Obligor’s receipt of such notice). Upon
effective termination all obligations of the terminating Lender pursuant to this Agreement
shall end and the Total Commitments shall be reduced by the amount of the terminated
Commitment.
	 
	16.3	 	Mitigation
	 
	 	 	If, in relation to any Lender, circumstances arise which would or would upon the giving of
notice result in:






	 	(a)	 	an increase in any sum payable to it or for its account pursuant to Clause 14.2
(Gross-up) or Clause 14.6 (Tax Indemnity), as relevant;
	 
	 	(b)	 	a claim for indemnification pursuant to Clause 15 (Increased Costs); or
	 
	 	(c)	 	the reduction of its Commitment and its participation in the outstanding
Advances or any repayment or prepayment by any Obligor pursuant to this Clause 16
(Illegality),






	 	 	then such Lender shall promptly upon becoming aware of such circumstances notify the Agent
thereof and, in consultation with the Agent and the relevant Obligor and to the extent that
it can do so lawfully, take such reasonable steps as may be open to it (including a change
of its Facility Office or the transfer of its rights and obligations hereunder to any of
such Lender’s Affiliated Companies being a bank or financial institution or any other bank
or financial institution acceptable to the relevant Obligor and willing to participate in
the Facility) to mitigate the effects of such circumstances, provided (i) that such Lender
shall be under no obligation to take any such action if to do so might in its opinion have
an adverse effect upon its financial, operation or business condition (other than any minor
costs and expenses) (ii) and that the Obligors shall pay the costs of such transfer
including the costs pursuant to Clause 27.4(b).






44









 








SECTION 17

REPRESENTATIONS AND WARRANTIES





	17.	 	REPRESENTATIONS AND WARRANTIES
	 
	 	 	Each Obligor hereby represents and warrants (gewährleisten und sichern zu) pursuant to
Clauses 17.1 (Status) through 17.20 (Immunity) (United States Laws) to each of the Finance Parties in
respect of itself and its respective fully consolidated Subsidiaries (where such
representations and warranties are also given in respect of such Subsidiaries or any of them
pursuant to the provisions set forth below), and each Lender hereby represents and warrants
(gewährleistet und sichert zu) pursuant to Clause 17.22 (Representation and Warranty of
Lenders) to each Obligor, that on the date of this Agreement:
	 
	17.1	 	Status






	 	(a)	 	The Company is a stock corporation (Aktiengesellschaft) incorporated under the
laws of the Federal Republic of Germany, registered in the commercial register of the
local court of München under HRB 142545, has the capacity to sue and be sued in its own
name and has the power to own its property and assets and to carry on its business as
it is now being conducted. The equity as shown in the articles of association has been
fully paid in.
	 
	 	(b)	 	Qimonda B.V. is a private company with limited liability (Besloten Venoutschap)
incorporated and duly organised and validly existing under the laws of the Netherlands,
has the capacity to sue and be sued in its own name and has the power to own its
property and to carry on business as it is now being audited.
	 
	 	(c)	 	Each Additional Guarantor, if any, is a company duly incorporated or
established under the laws of the Relevant Jurisdiction, duly organised and validly
existing under the laws of the Relevant Jurisdiction, has the capacity to sue and be
sued in its own name and has the power to own its property and assets and to carry on
its business as it is now being conducted.






	17.2	 	Powers and Authority
	 
	 	 	Each Obligor has the authority to enter into and execute the Finance Documents, to accept
the Facility and to perform its respective obligations pursuant to the Finance Documents,
and in this regard all decisions and resolutions of each Obligor and its respective
shareholders necessary in each Relevant Jurisdiction have been taken.
	 
	17.3	 	Insolvency Proceedings
	 
	 	 	No dissolution, liquidation, insolvency (in respect of an Obligor or a Material Subsidiary
incorporated in The Netherlands including (without limitation) bankruptcy (faillissement),
suspension of payments (surseance van betaling) and special measures (bijzondere
voorzieningen) in the interest of all the creditors (gezamenlijke schuldeisers) as referred
to in Chapter X of ASCI and the filing of a notice under Section
36(2) of the Dutch 1990 Tax Collection Act (Invorderingswet 1990)
separately or in conjunction with section 60 of the Dutch Act on
the Financing of Social Insurances (Wet financiering sociale
verzekeringen) composition,
creditors’ recession or similar proceedings in relation to the Obligors or any Material
Subsidiary are pending, have been applied for or are threatened. No Obligor is overindebted
(überschuldet), unable to pay its debts as they fall due (Zahlungsunfähig), is imminently at
risk to be unable to pay its debts as they fall due (drohende Zahlungsunfähigkeit) within
the meaning of sections 17 to 19 of the German Insolvency Code (Insolvenzordnung) or has
filed for insolvency (Antrag auf Eröffnung des Insolvenzverfahrens) or the board of
directors of any Obligor is required by law to file for insolvency or the competent court
takes any of the actions set out in Section 21 of the German Insolvency Code or institutes
insolvency proceedings against any Obligor (Antrag auf Eröffnung des Invsolvenzverfahrens).
This Clause shall not apply to a solvent liquidation of any Material Subsidiary (other than
an Obligor) provided that any assets of the so liquidated Material Subsidiary will be
transferred to a member of the Group.




45









 












	17.4	 	Legal Validity
	 
	 	 	The obligations of the Obligors created in the Finance Documents are legally valid and
binding obligations of the Obligors under the laws of each Relevant Jurisdiction enforceable
in such jurisdictions in accordance with the terms and conditions of the Finance Documents
except as may be limited by bankruptcy or insolvency laws or similar laws affecting
creditors’ rights generally; and the Finance Documents are in proper form for enforcement in
the courts of each Relevant Jurisdiction. The choice of laws of the Federal Republic of
Germany as the laws governing the Finance Documents constitutes a valid choice of laws under
the laws of each Relevant Jurisdiction and the courts of each Relevant Jurisdiction will
observe and give effect to such choice of law except as may be limited by mandatory
overruling principles of general application.
	 
	17.5	 	Non-Conflict
	 
	 	 	The entry into and performance by it of, and the transactions contemplated by, the Finance
Documents do not conflict with:






	 	(a)	 	any law or regulation applicable to it in the Relevant Jurisdiction, in each
case in a manner or to an extent which has material adverse relevance; or
	 
	 	(b)	 	its constitutional documents; or
	 
	 	(c)	 	any agreement or instrument binding upon it or any Material Subsidiary or any
of its or any Material Subsidiary’s assets, in each case in a manner or to an extent
which has a Material Adverse Effect.






	17.6	 	No Default
	 
	 	 	No event (i) which constitutes an Event of Default has occurred and is continuing unwaived
or unremedied or (ii) which, with the giving of notice or lapse of time or the making of any
determination under the Finance Documents or any combination of any of the foregoing or
expiry of any grace period, the making of any determination under the relevant document or
any combination of any of the foregoing, would constitute an Event of Default, has occurred
and is continuing unwaived or unremedied or (iii) which constitutes a default under or in
respect of any material agreement or document to which any of the Obligors is a party or by
which any of the Obligors is bound (other than the Finance Documents) has occurred and is
continuing unwaived or unremedied which has a Material Adverse Effect.
	 
	17.7	 	Consents
	 
	 	 	All authorisations, notarisations and other matters, official or otherwise, required by the
Obligors under the laws of each Relevant Jurisdiction in connection with the entry into,
performance, validity and enforceability of the Finance Documents and the transactions
contemplated hereby have been obtained by the Obligors or have been effected and are in full
force and effect.
	 
	17.8	 	No filing and stamp Taxes
	 
	 	 	Under the laws of its Relevant Jurisdictions it is not necessary that any Finance Documents
be filed, recorded or enrolled with any court or other authority in that jurisdiction or
that any stamp, registration, notarial or similar Taxes or fees be paid on or in relation to
the Finance Documents or the transactions contemplated by the Finance Documents.
	 
	17.9	 	Financial Statements
	 
	 	 	The most recent unconsolidated financial statements of each of the Obligors and the most
recent consolidated financial statements of the Group (in each case audited if available)
truly and fairly represent the financial condition of the relevant Obligor or of the Group,
as the case may be, as at the




46









 






	 	 	end of and for the period ended on the date to which such accounts were prepared. The
financial condition of the relevant Obligor or the Group has not deteriorated in comparison
with the most recent financial statements in a manner which has a Material Adverse Effect.






	17.10	 	Information
	 
	 	 	Except as disclosed in writing to all Lenders prior to the date of this Agreement all
financial and factual information furnished by the Company in writing as part of the
Information Package in connection with this Agreement was true, complete and accurate in all
material respects as at the date it was provided, or as at the date it was prepared, as
applicable, and there were no facts or matters the omission of which would have made any
statement or information contained therein misleading; all forecasts contained therein were
arrived at after due and careful consideration, were fair and reasonable and based on the
best information available to the Company at the time such forecasts were prepared; neither
of the Company is aware of any facts or matters not disclosed to the Lenders before the date
hereof which, if disclosed, would have materially adversely affected the decision of any
Lender considering whether to enter into the Finance Documents.
	 
	17.11	 	Litigation
	 
	 	 	Except as disclosed in writing to all Lenders prior to the date of this Agreement
(including, for the avoidance of doubt, by way of disclosure furnished by the Company as
part of the Information Package) no arbitration, litigation or other proceedings are
currently in progress or, to the best of its knowledge, credibly threatened against any of
the Obligors or any Material Subsidiary which (i) are reasonably likely to be adversely
determined and (ii) if adversely determined, are reasonably likely to have a Material
Adverse Effect.
	 
	17.12	 	No Encumbrances
	 
	 	 	Unless permitted by this Agreement, and with the exception of Permitted Encumbrances, no
Encumbrance of any asset or future asset, or the present or future revenues of any of the
Obligors or of any member of the Group exists and the execution and performance of the
Finance Documents will not result in the creation of such Encumbrances.
	 
	17.13	 	Pari Passu Ranking
	 
	 	 	The obligations of the Obligors hereunder rank at least pari passu with all their other
unsecured and unsubordinated obligations save as provided by mandatory applicable laws of
insolvency, liquidation or similar laws of general application.
	 
	17.14	 	Tax Liabilities






	 	(a)	 	Each Obligor and each Material Subsidiary has complied with all Taxation laws
in all material respects in all jurisdictions in which it is subject to Taxation and
has paid all Taxes due and payable by it except (i) for such Taxes which are contested
in good faith by appropriate proceedings, (ii) for those Taxes which have not been paid
due to an administrative error and which will be paid without undue delay upon gaining
knowledge of such administrative error.
	 
	 	(b)	 	No claims are being asserted against any of them with respect to Taxes which
have a Material Adverse Effect.






	17.15	 	No Withholding
	 
	 	 	Under the laws in force in the Relevant Jurisdiction at the date of this Agreement, no
Obligor is required to make any deduction or withholdings for or on account of Tax from any
payment it may make under any Finance Document which cannot be avoided by the relevant
Finance Party or Finance Parties by complying with Clause 14.3 (Tax Certificates).




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	17.16	 	ASCI-Representation
	 
	 	 	Qimonda B.V. does not violate the ASCI.
	 
	17.17	 	United States Laws






	 	(a)	 	In this Clause 17.17 (United States Laws):
	 
	 	 	 	“Anti-Terrorism Law” means each of:






	 	(i)	 	Executive Order No. 13224 of September 23, 2001 – Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten To
Commit, or Support Terrorism (the “Executive Order”);
	 
	 	(ii)	 	the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law
107-56 (commonly known as the USA Patriot Act (the “Patriot Act”));
	 
	 	(iii)	 	the Money Laundering Control Act of 1986, Public Law 99-570;
and
	 
	 	(iv)	 	any similar law enacted in the United States of America
subsequent to the date of this Agreement;






	 	 	 	“holding company”, “affiliate” and “subsidiary company” have the meanings given to
them in the United States Public Utility Holding Company Act of 1935, as amended;
	 
	 	 	 	“investment company” has the meaning given to it in the United States Investment
Company Act of 1940, as amended (the “Investment Company Act”);
	 
	 	 	 	“public utility” has the meaning given to it in the United States Federal Power Act
of 1920, as amended; and
	 
	 	 	 	“Restricted Party” means any person listed:






	 	(i)	 	in the Annex to the Executive Order;
	 
	 	(ii)	 	on the “Specially Designated National and Blocked Persons” list
maintained by the Office of Foreign Assets Control of the United States
Department of the Treasury, or
	 
	 	(iii)	 	in any successor list to either of the foregoing.






	 	(b)	 	No US Additional Obligor is:






	 	(i)	 	a holding company, an affiliate of a holding company or a
subsidiary company of a holding company, or subject to regulation, under the
United States Public Utility Holding Company Act of 1935, as amended;
	 
	 	(ii)	 	a public utility, or subject to regulation, under the United
States Federal Power Act of 1920, as amended;
	 
	 	(iii)	 	required to register as an investment company; or
	 
	 	(iv)	 	subject to regulation under any United States Federal or State
law or regulation that limits its ability to incur or guarantee indebtedness.






	 	(c)	 	No US Additional Obligor is engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock within the meaning of Regulation U of
the Board of




48









 






	 	 	 	Governors of the Federal Reserve System of the United States of America as in effect
from time to time (“Margin Stock”), and no proceeds of any Advance will be used to
purchase or carry out Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock.






	 	(d)	 	To the best of their respective knowledge, no US Additional Obligor or any of
its Subsidiaries:






	 	(i)	 	is, or is controlled by, a Restricted Party;
	 
	 	(ii)	 	has received funds or other property from a Restricted Party;
or
	 
	 	(iii)	 	is in breach of or is the subject of any action or
investigation under any Anti-Terrorism Law.






	 	(e)	 	Each US Additional Obligor and each of its Subsidiaries, have taken reasonable
measures to ensure compliance with the Anti-Terrorism Laws.
	 
	 	(f)	 	Each Mandated Lead Arranger hereby notifies the Obligors that pursuant to the
requirements of the Patriot Act, each Mandated Lead Arranger and each Lender is
required to obtain, verify and record information that identifies the Obligors, which
information includes the name, address, tax identification number and other information
regarding such Obligor that will allow such Mandated Lead Arranger or such Lender to
identify each Obligor in accordance with the Patriot Act. This notice is given in
accordance with the requirements of the Patriot Act and is effective as to each
Mandated Lead Arranger and each Lender.






	17.18	 	Material Adverse Changes
	 
	 	 	There has been no change in the business, assets, financial condition or operations of the
Group (taken as a whole) since the date of the financial statements delivered pursuant to
Clause 4.1(i), which has, or is reasonably likely to have, a Material Adverse Effect.
	 
	17.19	 	Employee Benefit Plans – In relation to any US Additional Obligor only:






	 	(a)	 	No ERISA Event has occurred or is reasonably expected to occur that has
resulted in or is reasonably expected to result in a material liability of it or its
Subsidiaries or any ERISA Affiliate.
	 
	 	(b)	 	Schedule B (Actuarial Information) to the most recent annual report (Form 5500
Series) for each Plan that has been filed with the Employee Benefits Security
Administration of the United States of America, is complete and accurate and fairly
presents the funding status of such Plan, and since the date of such Schedule B there
has been no material adverse change in such funding status.
	 
	 	(c)	 	Neither it, nor any of its Subsidiaries, nor any ERISA Affiliate has incurred
or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan
to the extent such incurrence would have or be reasonably likely to have a Material
Adverse Effect.
	 
	 	(d)	 	Neither it, nor any of its Subsidiaries, nor any ERISA Affiliate has been
notified in writing by the sponsor of a Multiemployer Plan that such Multiemployer Plan
is in reorganisation or has been terminated, within the meaning of Title IV of ERISA,
and no such Multiemployer Plan is reasonably expected to be in reorganisation or to be
terminated, within the meaning of Title IV of ERISA.




49









 












	17.20	 	Immunity
	 
	 	 	The execution by it of each Finance Document constitutes, and the exercise by it of its
rights and performance of its obligations under each Finance Document will constitute,
private and commercial acts performed for private and commercial purposes.
	 
	17.21	 	Repetition
	 
	 	 	The Repeated Representations and Warranties shall be repeated on the date of each Drawdown
Notice and on each Drawdown Date by reference to the facts and circumstances then existing,
provided that in relation to a Rollover Advance the representation and warranty set out in
Clause 17.6(ii) shall not be repeated.
	 
	17.22	 	Representation and Warranty of Lenders
	 
	 	 	Each Lender represent and warrants that it qualifies as a professional market party within
the meaning of Schedule 9 (Professional Market Parties) and that it is aware of the
consequences of making such a representation (such as the absence of protection under the
ASCI).






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SECTION 18

UNDERTAKINGS





	18.	 	UNDERTAKINGS
	 
	18.1	 	Duration
	 
	 	 	The undertakings in this Clause 18 (Undertakings) remain in force from the date of this
Agreement for so long as any amount is or may be outstanding under this Agreement or under
the Guarantee, or any Commitment is in force.
	 
	18.2	 	Information Undertakings
	 
	 	 	The Obligors will furnish, or cause to be furnished, to the Agent (in case of (a) through
(c) with a sufficient number of copies for the Lenders on the basis of one copy for each
Lender) and in the case of Clause 18.2(e) (Annual Projections), to those Lenders that have
requested to receive the relevant Annual Projections in writing:






	 	(a)	 	Annual Financial Statements
	 
	 	 	 	As soon as available, and in any event within 180 days after the close of each
Fiscal Year the unconsolidated financial statements of each Obligor, and, in case of
the Company, its consolidated financial statements as of the end of such Fiscal
Year, including balance sheet, profit and loss account, report and notes (Anhang)
for such Fiscal Year; all such financial information described above to be audited
by independent certified public accountants of recognised national standing and
whose opinion shall be to the effect that such financial statements have been
prepared in accordance with generally accepted accounting principles applicable in
the Relevant Jurisdiction (in each case consistently applied except for changes
which are disclosed in the notes to the relevant financial statements) and shall not
be limited as to the scope of the audit or qualified in any manner.
	 
	 	(b)	 	Interim Reports
	 
	 	 	 	As soon as practicable, but in any event within 30 days of the end of each quarter,
except for the last quarter of the Fiscal Year in which a time period of 60 days
shall apply, the consolidated financial statements of the Group, if available
audited.
	 
	 	(c)	 	Shareholder Information
	 
	 	 	 	All documents dispatched by the Company or any publicly listed Obligor to its
shareholders (or any class of them) or creditors generally (or any class of them)
pursuant to the provisions of applicable laws or regulations at the same time as
they are despatched.
	 
	 	(d)	 	Notices
	 
	 	 	 	Upon any of the Obligors obtaining knowledge thereof, each of them will give written
notice to the Agent promptly of






	 	(i)	 	the occurrence of an event or condition constituting an Event
of Default (or any event which with giving of notice or lapse of time or the
making of any determination under the Finance Documents or any combination of
any of the foregoing would constitute such an Event of Default), specifying the
nature and existence thereof and what action the respective Obligor proposes to
take with respect thereto,
	 
	 	(ii)	 	(except as already disclosed prior to the date of this
Agreement or as part of the information furnished pursuant to (a) through (c)
above) the occurrence of any of the following with respect to any Material
Subsidiary:




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	 	(A)	 	the pendency or commencement of any
arbitration, litigation or other proceedings against it which (i) are
reasonably likely to be adversely determined and (ii) if adversely
determined, are reasonably likely to have a Material Adverse Effect;
	 
	 	(B)	 	the intention of any solvent liquidation of a
Material Subsidiary, and






	 	(iii)	 	any incorrectness, untruthfulness or misleading nature in any
material respect of any representation, warranty or material statement as and
when made by any of the Obligors in, or in connection with, this Agreement or
in any accounts, certificate, statement or opinion delivered by or on behalf of
any of the Obligors hereunder or in connection herewith.






	 	(e)	 	Annual Projections






	 	(i)	 	Not later than 30 days after the beginning of each of its
Fiscal Years (but in any case not earlier than the date on which the Company
has received a duly signed N.D.A. from the relevant Lender), of the Annual
Projections of the Group for such Fiscal Year.
	 
	 	(ii)	 	Each Annual Projections shall be in a form satisfactory to the
Agent and attached in the agreed form to Schedule 10 (Form of Annual
Projections) and, shall be prepared in accordance with US GAAP, consistently
applied, and shall have been approved by the board of directors of the Company.
	 
	 	 	 	The Company will send a binding form for a non-disclosure agreement
(“N.D.A”) in respect of the Annual Projections to each Lender which has
requested a copy of the Annual Projections within 5 Business Days of such
request, which shall be signed by such Lenders and returned to the Company.
The provisions of this paragraph shall apply to each year in which Annual
Projections are to be furnished for the term of the Facility.






	 	(f)	 	Other Information
	 
	 	 	 	Promptly after any request, such other information regarding the business,
properties or financial condition of any Obligor as the Agent or any of the Lenders
through the Agent may reasonably request in accordance with market practice or
regulatory requirements.
	 
	 	(g)	 	“Know your customer” checks






	 	(i)	 	If:






	 	(A)	 	the introduction of or any change in (or in the
interpretation, administration or application of) any law or regulation
made after the date of this Agreement;
	 
	 	(B)	 	any change in the status of an Obligor after
the date of this Agreement; or
	 
	 	(C)	 	a proposed assignment or transfer by a Lender
of any of its rights and obligations under this Agreement to a party
that is not a Lender prior to such assignment or transfer;






obliges the Agent or any Lender (or, in the case of sub-paragraph (C) above,
any prospective new Lender) to comply with “know your customer” or similar
identification procedures in circumstances where the necessary information
is not already available to it, each Obligor shall promptly upon the request
of the Agent or any Lender supply, or procure the supply of, such
documentation and other evidence



52









 







as is reasonably requested by the Agent (for itself or on behalf of any
Lender) or any Lender (for itself or, in the case of the event described in
sub-paragraph (C) above, on behalf of any prospective new Lender) in order
for the Agent, such Lender or, in the case of the event described in
sub-paragraph (C) above, any prospective new Lender to carry out and be
satisfied it has complied with all necessary “know your customer” or other
similar checks under all applicable laws and regulations pursuant to the
transactions contemplated in the Finance Documents.




	 	(ii)	 	Each Lender shall promptly upon the request of the Agent
supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the Agent (for itself) in order for the Agent to carry
out and be satisfied it has complied with all necessary “know your customer” or
other similar checks under all applicable laws and regulations pursuant to the
transactions contemplated in the Finance Documents.






	18.3	 	General Undertakings






	 	(a)	 	Preservation of Existence and Licences
	 
	 	 	 	Each Obligor will do all things necessary (and will ensure that each member of the
Group will do all things necessary) to preserve and keep in full force and effect
its existence, rights, licences, permits, trade names, patents and intellectual
rights and properties necessary to conduct its business the absence of which would
have a Material Adverse Effect. For the avoidance of doubt, nothing in this clause
shall prejudice the ability to convey, sell, lease, transfer or otherwise dispose of
any of the foregoing, or to create or permit to subsist any Encumbrance over any of
the foregoing, if otherwise in compliance with the other provisions of this
Agreement.
	 
	 	(b)	 	Books and Records
	 
	 	 	 	Each Obligor will keep complete and accurate books and records of its transactions
in accordance with good accounting practices on the basis of generally accepted
accounting principles applicable in the Relevant Jurisdiction, as the case may be
(including the establishment and maintenance of appropriate reserves).
	 
	 	(c)	 	Compliance with Laws
	 
	 	 	 	Each Obligor will comply with all applicable laws, rules, regulations and orders
binding on it including all Environmental Laws, and all applicable restrictions
imposed by all Governmental Authorities unless failure to comply with such would not
have a Material Adverse Effect. Each Obligor will obtain from time to time such
authorisations as may be required in respect of this Agreement under the laws or
regulations of the Relevant Jurisdiction to enable the relevant Obligor to perform
its obligations hereunder and upon the Agent’s request promptly supply the Agent
with copies thereof.
	 
	 	(d)	 	Insurance
	 
	 	 	 	Each Obligor will at all times maintain in full force and effect insurance
(including worker’s compensation insurance, liability insurance, casualty insurance
and business interruption insurance) in such amounts, covering such risks and
liabilities and with such deductibles or self-insurance retentions as are customary
or industry practice for enterprises conducting similar business as the Obligors
unless failure to maintain such would not have a Material Adverse Effect.




53









 






	 	(e)	 	Pari Passu Ranking
	 
	 	 	 	Each Obligor undertakes for so long as any amount available under this Agreement is
outstanding or the Advances or any part thereof remains outstanding or any other sum
is payable pursuant to this Agreement, that its obligations pursuant to this
Agreement will rank at least pari passu with all other unsecured and unsubordinated
obligations of the relevant Obligor, save those obligations preferred by any
bankruptcy, insolvency, liquidation or other similar laws of general application.
	 
	 	(f)	 	Subsidised Financing
	 
	 	 	 	The Company shall use all commercially reasonable endeavours (unless to do so would
incur a material commercial or financial disadvantage to the Company) to ensure that
Subsidised Financings entered or to be entered into by a Subsidiary do not or will
not contain terms prohibiting the granting of Guarantees in favour of the Lenders in
respect of the Finance Documents and the Company shall deliver to the Agent a
statement in relation to any Subsidised Financings entered into after the date of
this Agreement stating whether the commercial terms therein are more favourable than
what would have been obtainable in the general commercial market for such financings
and whether the terms therein would permit the granting of a Guarantee to the
Lenders in respect of the Finance Documents.






	18.4	 	Covenants






	 	(a)	 	Negative Pledge
	 
	 	 	 	No Obligor will, and the Company will ensure that no member of the Group will,
contract, create, incur, assume or permit to exist any Encumbrance for Financial
Indebtedness with respect to any of its property, revenues or assets of any kind
(whether real or personal, tangible or intangible), whether now owned or hereafter
acquired, except for the Permitted Encumbrances.
	 
	 	(b)	 	Disposals
	 
	 	 	 	No Obligor will, and the Company will ensure that no member of the Group will sell,
transfer or otherwise dispose of, in one transaction or a series of transactions,
all or any part of its business or assets which is material with respect to the
assets of the Group as a whole whether now owned or hereafter acquired, including,
without limitation, inventory, receivables, leasehold interests, and securities but
excluding:






	 	(i)	 	any inventory or other assets sold, transferred or disposed of,
in the ordinary course of business on an arm’s length basis (which, for the
avoidance of doubt, includes the sale and transfer of receivables and/or
inventories on a non-recourse basis, e.g. as part of an asset backed
securitisation (and for the purposes of any asset backed securitisation, the
term “non-recourse” will not preclude the substitution, from time to time, of
receivables off-balance sheet with receivables of a similar value on-balance
sheet)); or
	 
	 	(ii)	 	disposals of assets which are obsolete for the purposes of the
operations of the business of the disposing member of the Group, or of assets
in exchange for comparable or superior assets, in each case on normal
commercial terms and on an arm’s length basis; or
	 
	 	(iii)	 	disposals the net proceeds of which are timely reinvested in
comparable assets or applied towards the repayment of indebtedness incurred in
connection with the acquisition of such comparable assets; or




54









 






	 	(iv)	 	disposals of assets made in compliance with mandatory
requirements stipulated by competent Governmental Authorities, including by
antitrust authorities in connection with the approval process for acquisitions;
or
	 
	 	(v)	 	the sale, transfer or other disposal of assets by a member of
the Group to another member of the Group; or
	 
	 	(vi)	 	other disposals of assets on an arm’s length basis either in
one transaction or in a series of transactions the aggregate book value of
which must not exceed 10% of the book value of the consolidated assets of the
Group per annum as shown in the respective most recent consolidated financial
statements as of the end of the third quarter of each relevant calendar year
provided that the aggregate book value of such disposed assets does not exceed
Euro 750,000,000 during the term of this Agreement; or
	 
	 	(vii)	 	disposals of assets to (i) the CTA to ensure proper coverage
of pension liabilities towards those employees of the Group Companies whose
pension liabilities have been assumed by the CTA as of the date of this
Agreement or (ii) any other trust arrangement in order to secure any
obligations incurred in order to comply with the requirements of section 8a of
the German Altersteilzeitgesetz or pursuant to section 7d of the German Social
Security Code (Sozialgesetzbuch IV); or
	 
	 	(viii)	 	any disposals not falling within (i) to (vii) above with the prior written
consent of the Majority Lenders.






	 	(c)	 	Third Party Transactions
	 
	 	 	 	No Obligor will, and the Company will ensure that no other member of the Group will,
enter into any transaction or series of transactions, whether or not in the ordinary
course of business, with any Person which is not a member of the Group, other than
on arm’s length terms.
	 
	 	(d)	 	Merger






	 	(i)	 	No Obligor will, and the Company will ensure that no member of
the Group will, enter into any demerger, merger or corporate reconstruction.
	 
	 	(ii)	 	The above paragraph (i) shall not apply to any demerger, merger
or corporate reconstruction (x) among members of the Group or (y) where the
relevant member of the Group remains to be the surviving entity, provided that
there is no reason to believe that the creditworthiness of the surviving entity
will materially deteriorate as a result of such demerger, merger,
transformation or corporate reconstruction.






	 	(e)	 	Change of business
	 
	 	 	 	No Obligor will and the Company will ensure that no Material Subsidiary will make
any substantial changes to the general nature of its business from that carried on
at the date of this Agreement.
	 
	 	(f)	 	Financial Indebtedness
	 
	 	 	 	Save for Permitted Financial Indebtedness, no Obligor shall (and the Company shall
ensure that no member of the Group will) incur or allow to remain outstanding any
Financial Indebtedness.
	 
	 	(g)	 	Loans and guarantees




55









 






	 	 	 	Save for Permitted Loans and Permitted Guarantees, no Obligor shall (and the Company
shall ensure that no member of the Group will) be a creditor in respect of any
Financial Indebtedness or grant or agree to grant or permit to exist any guarantee
or counter-indemnity in respect of any liability or obligation of any Person.
	 

	 	(h)	 	Senior Bonds Issue
	 
	 	 	 	If a Senior Bonds Issue shall occur, the Company should procure that: (i) Qimonda
B.V. shall be the only Borrower under the Facility and all amounts borrowed by the
Company or any other Additional Borrower are to be repaid in full prior to the
occurrence of the Senior Bonds Issue; (ii) all proceeds from a Senior Bonds Issue by
a Finco shall be lent directly to Company and not to any other member of the Group
(but the Company shall be permitted to on-lend such monies to such Group Companies,
subject to sub-paragraph (iii) below); and (iii) all
Intra-Group Debt loans from the
Company will be subordinated to the Facility (in accordance with the terms set out
in Schedule 11 (Subordination)); (iv) the aggregate Net PPE of Qimonda B.V. and its
Subsidiaries when aggregated with the Net PPE of any Subsidiary of the Company that
has granted a Guarantee in favour of the Lenders in respect of the Finance Documents
(in each case calculated on an unconsolidated basis and excluding intra-Group items)
shall represent not less than 66
2/3% of the consolidated Net PPE of the Group; and (v)
the Company shall use all commercially reasonable efforts (unless to do so would
incur undue commercial or tax disadvantage or prohibited under applicable laws) to
ensure that Qimonda B.V. acquires the legal title to the shares in Inotera Memories
Inc. which are currently held on trust for the Company by Infineon Technologies AG,
as soon as practicable after the date of such Senior Bonds Issue and that Qimonda
B.V. shall hold such shares for the term of the Facility thereafter.
	 
	 	(i)	 	Dividends
	 
	 	 	 	The Company shall not propose, declare, make or pay any dividends or other
distributions of income or the payment to its shareholders (whether in cash or in
kind or other) for any Fiscal Year unless (x) it has positive net income for that
Fiscal Year and (y) such payment shall not be in excess of fifty per cent 50% of the
positive net income for that Fiscal Year.
	 
	 	(j)	 	Infineon Loans
	 
	 	 	 	The Company shall procure that the Infineon Loans (i) shall not be repaid by any
amounts drawn under the Facility but can be repaid out of (1) the proceeds of a new
capital markets securities issuance or (2) free cash (calculated on the basis of
Minimum Liquidity, provided that this amount shall not be less than Euro
1,000,000,000 after any repayment (whether in whole or in part) of the Infineon
Loans), and (ii) shall be subordinated to the Facility pursuant to the Subordination
Agreement.
	 
	 	(k)	 	Finco Ring-fencing
	 
	 	 	 	Notwithstanding any other provision of the Finance Documents, no Obligor will, and
each Obligor will procure that none of its Subsidiaries will (or will commit any
person to enter any agreement under which it is obliged to):






	 	(i)	 	declare or pay, directly or indirectly, any dividends or make
any distribution in favour of any Finco;
	 
	 	(ii)	 	make any loan to or grant any financial accommodation to any
Finco;
	 
	 	(iii)	 	pay any interest or other amount to any Finco under or in
connection with any loan received from any Finco, or pay any amount to or
transfer monies to any Finco whatsoever;




56









 






	 	(iv)	 	sell, transfer, lease out, lend or otherwise dispose of any
asset to any Finco; or
	 
	 	(v)	 	grant any guarantee or enter into any participation or purchase
arrangements in relation to any obligation of any Finco,






except for a Senior Bonds Issue or such other capital markets debt issue permitted
under “Permitted Financial Indebtedness”.




	18.5	 	Financial Covenants






	 	(a)	 	The terms used in this Clause 18.5 (Financial Covenants), unless otherwise
defined herein, shall have the same meaning as the financial terminology used in the
preparation of the most recent published audited consolidated financial statements of
the Company.
	 
	 	(b)	 	The Company shall ensure that the following financial covenants are and will be
complied with at all times and confirm such compliance in writing setting out in
reasonable detail the relevant calculation (the “Compliance Certificate”) within 60
days after 30 September of each year and 30 days after 31 March of each year, as the
case may be, as at 30 September and 31 March of each year (each such date a “Covenant
Test Date”), provided that the first Covenant Test Date shall be on 30 September 2006:






	 	(i)	 	the Senior Debt to Shareholders’ Equity ratio does not exceed
30%;
	 
	 	(ii)	 	the Minimum Liquidity must exceed Euro 300,000,000, and Cash
and Cash Equivalents must comprise 50% or more of this amount;
	 
	 	(iii)	 	the Minimum Tangible Net Worth shall not at any time be less
than:






	 	(A)	 	in respect of the first Covenant Test Date on
30 September 2006:






	 	(1)	 	the Tangible Net Worth of the
Company as at 30 September 2006; less
	 
	 	(2)	 	Euro 500,000,000






(the “Initial Minimum Tangible Net Worth”); and




	 	(B)	 	in respect of any other Covenant Test Date, the
sum of:






	 	(1)	 	the Initial Minimum Tangible
Net Worth;
	 
	 	(2)	 	the aggregate net primary
proceeds received by the Company in respect of the IPO (to the
extent that the Closing Date has not occurred by the first
Covenant Test Date);
	 
	 	(3)	 	50% of aggregated positive net
income since the Closing Date; and
	 
	 	(4)	 	33.33% of the aggregated
issuance of capital stock since the Closing Date,






provided that the figures for net income in respect of a Covenant Test Date
falling on 31 March of each year, shall be calculated by reference to the
Fiscal Year end position as shown in the last audited annual financial
statements of the Group.




Each of the above shall be calculated on the basis of the relevant consolidated
quarterly financial statements of the Group.



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	 	(c)	 	The Company shall procure that each set of financial statements of an Obligor
delivered pursuant to Clause 18.2(a) and (b) is prepared using generally accepted
accounting principles applicable in the Relevant Jurisdiction, in each case
consistently applied unless changes in application are disclosed in notes to the
relevant financial statements. In the event of a change in generally accepted
accounting principles applicable in the Relevant Jurisdiction the Company shall notify
the Agent that there has been such change and shall deliver to the Agent:






	 	(i)	 	a description of any change necessary for those consolidated
financial statements to reflect the generally accepted accounting principles
applicable in the Relevant Jurisdiction upon which the Company’s consolidated
financial statements were prepared prior to such change; and
	 
	 	(ii)	 	sufficient information, in form and substance as may be
reasonably required by the Agent, to enable the Lenders to determine whether
Clause 18.5(b) has been complied with and make an accurate comparison between
the financial position indicated in those consolidated financial statements and
the Company’s consolidated financial statements prior to such change.






Any reference in this Agreement to those consolidated financial statements shall be
construed as a reference to those consolidated financial statements as adjusted to
reflect the basis upon which the Company’s consolidated financial statements were
prepared prior to such change unless the Company and the Agent (acting upon the
instructions of the Majority Lenders) have agreed that such changes are irrelevant
for the purposes of Clause 18.5(b) or are sufficiently compensated by amendments to
that Clause agreed upon by the Company and the Agent (acting upon the instructions
of the Majority Lenders).




	18.6	 	Payment of Taxes
	 
	 	 	Each of the Obligors will pay and discharge:






	 	(a)	 	all Taxes, assessments and governmental charges or levies imposed upon it, or
upon its income or profits, or upon any of its properties, before they shall become
delinquent, and
	 
	 	(b)	 	all lawful claims (including claims for labour, materials and supplies) which,
if unpaid, might give rise to an Encumbrance upon any of its properties,






provided, however, that the Obligors shall not be required to pay any such Tax, assessment,
charge, levy or claim which is being contested in good faith by appropriate proceedings and
as to which adequate reserves therefor have been established in accordance with generally
accepted accounting principles applicable in the Relevant Jurisdiction unless the failure to
make any such payment




	 	(i)	 	would give rise to an immediate right to foreclose on an
Encumbrance securing such amounts or
	 
	 	(ii)	 	would have a Material Adverse Effect.






	18.7	 	ASCI-Undertaking
	 
	 	 	Qimonda B.V. undertakes to ensure that it will always be in compliance with the ASCI.
	 
	18.8	 	United States Laws






	 	(a)	 	No US Additional Obligor may use any Advance, directly or indirectly, for any
purpose that would result in a violation of Regulation U or X of the Board of Governors
of the United States Federal Reserve System.




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	 	(b)	 	No US Additional Obligor may use any part of any Advance to acquire any
security in a transaction that is subject to section 13 or 14 of the United States
Securities Exchange Act of 1934.
	 
	 	(c)	 	No US Additional Obligor shall become an “investment company”, or an
“affiliated person” of, or “promotes” or “principal underwriter” for, an “investment
company” as such terms are defined in the Investment Company Act.
	 
	 	(d)	 	Each US Additional Obligor must promptly upon becoming aware of it notify the
Agent of:






	 	(i)	 	any ERISA Event; and
	 
	 	(ii)	 	the termination (or any circumstances reasonably likely to
result in the termination) of any Plan or a complete or partial withdrawal
from, or any circumstances reasonably likely to result in the complete or
partial withdrawal from any Multiemployer Plan,






in each case to the extent such occurrence is reasonably expected to have a Material
Adverse Effect.




	 	(e)	 	Each US Additional Obligor and its respective ERISA Affiliates must ensure that
no event or condition exists at any time in relation to a Plan which is reasonably
likely to result in the imposition of an Encumbrance under ERISA on any of its assets
which is reasonably likely to have a Material Adverse Effect.






	18.9	 	Condition Subsequent
	 
	 	 	The Company shall deliver or shall cause to be delivered to the Agent, within one (1) month
after the Closing Date, evidence satisfactory to the Agent and the Mandated Lead Arrangers
that the Group has at the date of such evidence Minimum Liquidity of not less than Euro
1,000,000,000.




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SECTION 19

GUARANTEE





	19.	 	GUARANTEE
	 
	 	 	Each Guarantor hereby irrevocably and unconditionally guarantees jointly and severally to
the Lenders (the “Guarantee”), the due and punctual payment of all amounts payable pursuant
to or in connection with this Agreement by the Borrowers, including, without limitation,
principal and interest, when and as the same shall become due and payable, whether at
maturity, upon declaration or otherwise, under or in connection with the Agreement, and the
prompt performance by the Borrower of all their other obligations under the Agreement (the
“Obligations”).
	 
	19.1	 	Abstractness, Waiver of Defences






	 	(a)	 	The intent and purpose of this Guarantee is to ensure that the Finance Parties,
under any and all circumstances, whether factual or legal, and regardless of the
reasons for which the Borrower may fail to effect payment, shall receive the amounts
payable as interest and principal as and when due (including any additional amounts
payable pursuant to or in connection with this Agreement) as contemplated in this
Agreement.
	 
	 	(b)	 	This Guarantee and the obligations of each of the Guarantors hereunder shall be
independent and not contingent upon the legal relationship existing between the
Borrowers and the Finance Parties and in particular not contingent upon the validity
and the enforceability of the Finance Parties’ claims against the Borrowers for payment
of interest and principal (including any additional amounts pursuant to or in
connection with this Agreement) as contemplated in this Agreement.
	 
	 	(c)	 	The obligations of the Guarantors under this Guarantee will not be affected and
shall subsist regardless of any defences the Borrowers may assert, and each Guarantor
hereby waives any right it may have to assert such defence, to claim relief or of first
requiring any Finance Party to proceed against or enforce any other right or security
or claim payment from any person before claiming from the Guarantors under this
Guarantee.






	19.2	 	Continuing Guarantee
	 
	 	 	This Guarantee is a continuing guarantee and will extend to the ultimate balance of all sums
payable by the Borrowers under this Agreement, regardless of any intermediate payment or
discharge in whole or in part, and it shall remain in force, notwithstanding any dissolution
or change in the structure or legal form of the Borrowers or any transfer or assignment by a
Finance Party pursuant this Agreement.
	 
	19.3	 	Exercise of Guarantee, First Demand Payment
	 
	 	 	Upon first written demand of a Finance Party each of the Guarantors shall pay without undue
delay all amounts required to achieve the intent and purpose described above, without any
deductions and to the exclusion of any set-off, counterclaim, right of bailment, retention
or lien, restriction or condition or any other right which affects or limits the obligations
of such Guarantor to pay promptly upon such demand, except to the extent that such Guarantor
is required by law to make payment subject to deduction of any Taxes.
	 
	19.4	 	Reinstatement
	 
	 	 	If at any time any payment made under the Agreement is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of a Borrower, each
Guarantor’s obligations under this Guarantee with respect to such payment shall be
reinstated at such time as though such payment had not been made. Each Guarantor agrees that
it will indemnify the Finance Parties on demand for all reasonable costs and expenses
(including, but not limited to, reasonable fees of counsel) incurred by a Finance Party in
connection with such rescission or restoration, including any such costs




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	 	 	and expenses incurred in defending against any claim alleging that such payment must be
rescinded or must be otherwise restored or returned under applicable insolvency, bankruptcy
or reorganization laws.






	19.5	 	Subordination
	 
	 	 	Each Guarantor undertakes, as a separate and independent obligation, that it will not
exercise or enforce against any Borrower any and all claims or rights






	 	(a)	 	such Guarantor might have against such Borrower as a consequence of making
payments under this Guarantee;
	 
	 	(b)	 	the Guarantor might have against such Borrower as a consequence of having
procured that such Borrower is able to make payments under this Agreement;






until the payments, as and when due under the Agreement, have been made in full and there
has elapsed any period during which any amount paid by such Borrower under this Agreement
might be recoverable under any bankruptcy, insolvency or similar law of any jurisdiction
applicable to such Borrower.




	19.6	 	Additional Guarantors






	 	(a)	 	The Company shall ensure that at any time upon the occurrence of an Additional
Guarantor Event in relation to a member of the Group, such member of the Group or
another member of the Group that has borrowed or guaranteed such additional Financial
Indebtedness (or in relation to sub-paragraph (c) of the definition of “Additional
Guarantor Event”, such Subsidiary of the Company that has been nominated to grant a
Guarantee pursuant to Clause 18.4(h) (Senior Bonds Issue)) in each case which triggers
an Additional Guarantor Event, shall accede as Additional Guarantors (if and when the
relevant member of the Group can do so without violation of any applicable corporate or
other laws), in each case by delivering to the Agent an Accession Agreement
(substantially in the form attached as Schedule 3 (Accession Agreement)) duly executed.
	 
	 	(b)	 	Upon execution and delivery of an Accession Agreement, the relevant member of
the Group will irrevocably and unconditionally guarantee the full payment of interest,
principal and any other amount due hereunder in accordance with this Clause 19
(Guarantee) and shall become an Additional Guarantor.
	 
	 	(c)	 	The Borrowers shall procure that, at the same time as an Accession Agreement is
delivered to the Agent, there is also delivered to the Agent all those documents listed
in Schedule 4 (Further Conditions Precedent) and other documents as the Agent may
reasonably require in each case in form and substance satisfactory to the Agent.
	 
	 	(d)	 	The execution of an Accession Agreement constitutes confirmation by the
Additional Guarantor concerned that the representations and warranties set out in
Clause 17 (Representations and Warranties) to be made by it on the date of the
Accession Agreement are correct, as if made with reference to the facts and
circumstances then existing.
	 
	 	(e)	 	The Company herewith irrevocably and unconditionally agrees to accept service
of process in connection with the Finance Documents for each Additional Guarantor
incorporated outside the Federal Republic of Germany in respect of legal actions
instituted before the courts in the Federal Republic of Germany.






	19.7	 	US Additional Obligors






	 	(a)	 	In this Clause 19.7 (US Additional Obligors):




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	 	 	 	“fraudulent transfer law” means any applicable United States bankruptcy and State
fraudulent transfer and conveyance statue and any related case law;
	 
	 	 	 	terms used in this Clause 19.7 (US Additional Obligors) are to be construed in
accordance with the fraudulent transfer laws.
	 
	 	(b)	 	Each US Additional Obligor acknowledges that:






	 	(i)	 	it will receive valuable direct or indirect benefits as a
result of the transactions financed by the Finance Documents;
	 
	 	(ii)	 	those benefits will constitute reasonably equivalent value and
fair consideration for the purpose of any fraudulent transfer law; and
	 
	 	(iii)	 	each Finance Party has acted in good faith in connection with
the guarantee given by that US Additional Obligor and the transactions
contemplated by the Finance Documents.






	 	(c)	 	Each Finance Party agrees that each US Additional Obligor’s liability under
this Clause 19 (Guarantee) is limited so that no obligations of, or transfer by, any US
Additional Obligor under this Clause 19 (Guarantee) is subject to avoidance and
turnover under any fraudulent transfer law.
	 
	 	(d)	 	Each US Additional Obligor represents and warrants to each Finance Party that:






	 	(i)	 	the aggregate amount of its debts (including its obligations
under the Finance Documents) is less than the aggregate value (being the lesser
of fair valuation and present fair saleable value) of its assets;
	 
	 	(ii)	 	its capital is not unreasonably small to carry on its business
as it is being conducted;
	 
	 	(iii)	 	it has not incurred and does not intend to incur debts beyond
its ability to pay as they mature; and
	 
	 	(iv)	 	it has not made a transfer or incurred any obligation under any
Finance Document with the intent to hinder, delay or defraud any of its present
or future creditors.






	 	(e)	 	Each representation and warranty in this Clause 19.7 (US Additional Obligors):






	 	(i)	 	is deemed to be repeated by each US Additional Obligor on the
date of each Drawdown Notice and on the first day of each Term; and
	 
	 	(ii)	 	is, when repeated, applied to the circumstances existing at the
time of repetition.






	19.8	 	Release of Guarantors
	 
	 	 	Upon receipt by the Agent of financial information from the Borrowers demonstrating to the
satisfaction of the Agent that an Additional Guarantor could be released from being a
Guarantor, then, if the Agent is satisfied that there are no unpaid amounts due or owing
from that Additional Guarantor, the Agent, on behalf of the Finance Parties shall, at the
expense of the Company, promptly release that Additional Guarantor from its obligations as a
Guarantor under the Finance Documents.




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SECTION 20

EVENTS OF DEFAULT





	20.	 	EVENTS OF DEFAULT
	 
	20.1	 	Events of Default
	 
	 	 	Each of the events set out below is an Event of Default (whether or not caused by any reason
whatsoever within the control of either of the Obligors or of any other person):






	 	(a)	 	any of the Obligors fails to pay any amount payable by it hereunder or under
any Finance Document on the due date therefor and, in case of failure to pay such
amount on the due date due to technical errors beyond the control of such Obligor, such
amount is not paid within three Business Days of the due date; or
	 
	 	(b)	 	any of the Obligors fail to comply with any of its obligations under Clauses
18.3(e), 18.4(a), 18.4(b), 18.4(d), 18.4(e), 18.4(h), 18.4(j) or 18.9; or
	 
	 	(c)	 	any representation, warranty or material statement made by any of the Obligors
in, or in connection with, this Agreement or the Finance Documents or in any accounts,
certificate, statement or opinion delivered by or on behalf of any of the Obligors
hereunder or in connection herewith is incorrect, untrue or misleading in any material
respect when made; or
	 
	 	(d)	 	any of the Obligors fails to comply with any of its respective covenants,
undertakings or any other material provision of this Agreement or the Finance Documents
(other than those referred to in paragraphs (a) or (b) above) unless such failure is
(i) capable of remedy and (ii) is remedied within 22 Business Days after the Agent
giving notice thereof to the relevant Obligor; or
	 
	 	(e)	 	any Financial Indebtedness of any of the Obligors or any Material Subsidiary
(other than Financial Indebtedness owed hereunder or to another member of the Group) in
an aggregate amount of more than Euro 30,000,000 (or its equivalent in any other
currency) is not paid when due (beyond any applicable grace period), or becomes or is
capable of becoming prematurely due and payable (beyond any applicable grace period)
for reason of the occurrence of an event of default (howsoever defined); or
	 
	 	(f)	 	any Obligor or any Material Subsidiary is unable to pay its debts as they fall
due (Zahlungsunfähigkeit) or, for any of the reasons set out in Clauses 17 through 19
(inclusive) of the German Insolvenzordnung, any such member of the Group files for
insolvency (Antrag auf Eröffnung eines Insolvenzverfahrens) or the board of directors
of any such member of the Group is required by law to file for insolvency or the
competent court takes any of the actions set out in Clause 21 of the German
Insolvenzordnung (Anordnung von Sicherungsmaßnahmen) or the competent court institutes
insolvency proceedings against any such member of the Group (Eröffnung des
Insolvenzverfahrens); or
	 
	 	(g)	 	with respect to any Obligor or a Material Subsidiary:






	 	(i)	 	any order (provisional or final) is made or applied for or
resolution passed for the suspension of payments (in respect of an Obligor or a
Material Subsidiary incorporated in The Netherlands including special measures
(bijzondere voorzieningen) in the interest of all the creditors (gezamenlijke
schuldeisers) as referred to in Chapter X of ASCI) or dissolution, termination
of existence, liquidation, winding-up, bankruptcy, insolvency, judicial
management or curatorship; or
	 
	 	(ii)	 	a moratorium in respect of all or any class of debts or a
composition or an arrangement with creditors or any similar proceeding or
arrangement by which their




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	 	 	 	assets are submitted to the control of their creditors is ordered, declared
or applied for; or
	 
	 	(iii)	 	a liquidator, trustee, administrator, receiver, arranger or
similar officer is appointed in respect of all or a substantial part of their
assets; or
	 
	 	(iv)	 	becomes or is declared insolvent or is unable, or admits its
inability to pay its debts as they fall due or becomes insolvent within the
terms of any applicable law; or
	 
	 	(v)	 	Qimonda B.V. gives notice under Section 36 of the Dutch 1990
Tax Collection Act (Invorderingswet 1990) or Section 16d of the Dutch Social
Insurance Coordination Act (Coördinatiewet Sociale Verzekeringen); or
	 
	 	(vi)	 	anything having a substantially similar effect to any of the
events specified in paragraphs (f) (i) to (iv) shall occur under the laws of
any applicable jurisdiction;






which, in any such case, is not frivolous or vexatious and in case of the
appointment of a receiver or similar officer under (iii) above such appointment is
not discharged, withdrawn, cancelled or otherwise terminated within 30 days of the
Agent notifying the Company of such event (however, this Clause 20.1(g) shall not
apply to a solvent liquidation of any Material Subsidiary (other than an Obligor)
provided that any assets of the so liquidated Material Subsidiary will be
transferred to a member of the Group); or




	 	(h)	 	any expropriation, attachment, sequestration, distress or execution or any
analogous process in any jurisdiction affects any asset or assets or is in relation to
any indebtedness of an Obligor having an aggregate value of at least Euro 30,000,000
(or its equivalent in other currencies) and is not discharged within 30 days; or
	 
	 	(i)	 	after the date of this Agreement:






	 	(a)	 	a Borrower (other than the Company) ceases to be a wholly owned
Subsidiary of the Company; or
	 
	 	(b)	 	a Borrower, together with any member of the Group, cease to own
at least a majority of the outstanding shares in a Material Subsidiary as on
the date hereof or, if later, the date such Material Subsidiary was acquired;
or






	 	(j)	 	any authorisation or notarisation or other requirement necessary in any
Relevant Jurisdiction to enable the Obligors to comply with their material obligations
under the Finance Documents is adversely modified, revoked or withheld or does not
remain in full force and effect; or
	 
	 	(k)	 	at any time it is unlawful under the laws of any Relevant Jurisdiction for any
of the Obligors to perform its obligations under the Finance Documents; or
	 
	 	(l)	 	at any time, any Finance Document ceases in total or in part to be valid,
binding and enforceable, or is repudiated or disaffirmed by an Obligor (or any relevant
party) or an Obligor (or any relevant party) rescinds or purports to rescind or
repudiates or purports to repudiate a Finance Document or evidences an intention to
rescind or repudiate a Finance Document; or
	 
	 	(m)	 	(i)     in respect of a US Additional Obligor, any ERISA Event shall have occurred
and the sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have occurred and then exist (or the liability of
the Obligors and the ERISA Affiliates related to such ERISA Event) exceeds Euro
30,000,000 (or its equivalent in other currencies).





64









 












	 	(ii)	 	any US Additional Obligor or any ERISA Affiliate shall have
been notified in writing by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan in an amount that,
when aggregated with all other amounts required to be paid to Multiemployer
Plans by the US Additional Obligors and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds Euro
30,000,000 (or its equivalent in other currencies) or requires payments
exceeding Euro 30,000,000 (or its equivalent in other currencies) per annum;
or






	 	(n)	 	any event or series of events occurs which has a Material Adverse Effect.






	20.2	 	Section 490 German Civil Code
	 
	 	 	Without prejudice to the provisions of this Agreement, section 490 para. 1 of the German
Civil Code (Bürgerliches Gesetzbuch) shall be disapplied.
	 
	20.3	 	Acceleration






	 	(a)	 	In the case of any such Event of Default and at any time thereafter if any such
event shall then be continuing unremedied or unwaived, the Agent may, and shall, if so
directed by the Majority Lenders, by written notice to the Borrowers:






	 	(i)	 	declare (kündigen) that the obligations of the Agent and the
Lenders hereunder and the Commitments, in whole or in part, shall be cancelled,
forthwith whereupon the same shall be so cancelled forthwith; and/or
	 
	 	(ii)	 	declare (kündigen) the Advances, in whole or in part,
immediately due and payable whereupon the same shall become immediately due and
payable together with all interest accrued thereon and all other amounts
payable hereunder; and/or
	 
	 	(iii)	 	declare (kündigen) the Advances, in whole or in part, due and
payable on demand whereupon the same shall become due and payable upon receipt
of such demand at the time set forth therein together with all interest accrued
thereon and all other amounts payable hereunder.






	20.4	 	US Bankruptcy Code
	 
	 	 	Notwithstanding Clause 8 (Prepayment and Cancellation), upon the actual or deemed entry of
an order for relief under the US Bankruptcy Code with respect to any US Additional Obligor,
the Facility shall cease to be available to such US Additional Obligor, all Advances
outstanding to such US Additional Obligor shall become immediately due and payable.




65









 











SECTION 21

THE AGENT, THE MANDATED LEAD ARRANGER AND THE LENDERS





	21.	 	THE AGENT, THE MANDATED LEAD ARRANGER AND THE LENDERS
	 
	21.1	 	Appointment
	 
	 	 	Citibank International plc is hereby appointed Agent. Each Lender irrevocably (except for a
revocation for serious cause (aus wichtigem Grund)) authorises the Agent on such Lender’s
behalf to perform such duties and to exercise such rights and powers under this Agreement as
are specifically delegated to the Agent by the terms of this Agreement, together with such
rights and powers as are reasonably incidental thereto. The Agent, however, must not
commence any legal action or proceedings on behalf of any Lender without such Lender’s prior
written approval. The Agent shall have only those duties which are expressly specified in
this Agreement. The Agent’s duties hereunder are solely of a mechanical and administrative
nature.
	 
	21.2	 	Majority Lenders’ Directions
	 
	 	 	In the exercise of any right or power and as to any matter not expressly provided for by
this Agreement, the Agent may act or refrain from acting in accordance with the instructions
of the Majority Lenders and shall be fully protected in so doing. Any such instructions
shall be binding on all the Lenders. In the absence of any such instructions, the Agent may
act or refrain from acting as it shall see fit.
	 
	21.3	 	Relationship






	 	(a)	 	The relationship between the Agent and each Lender is that of principal and
agent only. Nothing herein shall constitute the Agent a trustee or fiduciary for any
Lender, the Borrowers or any other Person.
	 
	 	(b)	 	The Agent shall not in any respect be agent of the Borrowers by virtue of this
Agreement.
	 
	 	(c)	 	The Agent shall not be liable to the Borrowers for any breach by the Mandated
Lead Arranger or by any Lender of this Agreement or be liable to any Lender or the
Mandated Lead Arranger for any breach by any of the Borrowers hereof.






	21.4	 	Delegation
	 
	 	 	The Agent may act hereunder through its officers, employees or agents.
	 
	21.5	 	Documentation
	 
	 	 	Neither the Agent, nor the Mandated Lead Arranger nor any of their officers, employees or
agents shall be responsible to any Lender or to each other for






	 	(a)	 	the valid execution, genuineness, validity, enforceability or sufficiency of
this Agreement or any other document in connection herewith, or
	 
	 	(b)	 	the collectability of amounts payable hereunder, or
	 
	 	(c)	 	the accuracy of any statements (whether written or oral) made in or in
connection with this Agreement, the invitation telefax sent by the Mandated Lead
Arranger to the Lenders or any other information supplied by the Borrowers in
connection with any of the Finance Documents.




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	21.6	 	Events of Default
	 
	 	 	The Agent shall not be required to ascertain or inquire as to the performance or observance
by the Borrowers of the terms of this Agreement or any other document in connection
herewith. The Agent shall not be deemed to have knowledge of the occurrence of any Event of
Default (or event which with lapse of time or the making of any determination under the
Finance Documents or any combination of any of the foregoing, notice, determination of
materiality or other condition may constitute such an Event of Default) other than in the
case of a payment default of which the Agent gained actual knowledge unless the Agent has
received written notice from a party hereto describing such Event of Default or event and
stating that such notice is a “Notice of Default”. If the Agent receives such a Notice of
Default, the Agent shall promptly give notice thereof to the Lenders.
	 
	21.7	 	Exoneration
	 
	 	 	Neither the Agent nor any of its officers, employees or agents shall be liable to any Lender
for any action taken or omitted under or in connection with this Agreement unless caused by
its or their gross negligence or wilful misconduct.
	 
	21.8	 	Reliance






	 	(a)	 	The Agent may rely on any communication or document reasonably believed by it
to be genuine and correct.
	 
	 	(b)	 	The Agent may in connection with the fulfilment of its role as Agent under and
in connection with the Finance Documents engage, pay for and rely on legal or other
professional advisers selected by it and shall be protected in so relying.






	21.9	 	Credit Approval
	 
	 	 	Each of the Lenders severally represents and warrants to the Agent and the Mandated Lead
Arranger that it has made its own independent investigation and assessment of the financial
condition and affairs of the Borrowers and their related entities in connection with its
participation in this Agreement and has not relied exclusively on any information provided
to such Lender by the Agent or the Mandated Lead Arranger in connection herewith. Each
Lender represents, warrants and undertakes to the Agent and the Mandated Lead Arranger that
it shall continue to make its own independent appraisal of the creditworthiness of the
Borrowers and their related entities while the Advances are outstanding or its Commitment is
in force.
	 
	21.10	 	Information






	 	(a)	 	The Agent shall promptly furnish each Lender with a copy of any documents
received by it under Clause 18.2 (Information Undertakings) (but the Agent shall not be
obliged to review or check the accuracy or completeness thereof) and, if requested by
any Lender, with a copy of all documents received by the Agent under Clause 4
(Conditions Precedent) other than the Fee Letter and the mandate letter.
	 
	 	(b)	 	Neither the Agent nor the Mandated Lead Arranger shall have any duty either
initially or on a continuing basis to provide any Lender with any credit or other
information with respect to the financial condition or affairs of the Borrowers or any
related entities whether coming into its possession or that of any related entities of
the Agent or the Mandated Lead Arranger before the entry into of this Agreement or at
any time thereafter.
	 
	 	(c)	 	The Agent shall not have any duty, unless specifically requested to do so by a
Lender, to request any certificates or other documents from the Borrowers hereunder.




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	 	(d)	 	The Agent need not disclose any information relating to the Borrowers or any
related entities if such disclosure would or might in the opinion of the Agent
constitute a breach of any law or any duty of secrecy or confidence.






	21.11	 	Agent and Mandated Lead Arranger Individually






	 	(a)	 	Each of the Agent and the Mandated Lead Arranger, if a Lender, shall have the
same rights and powers hereunder as any other Lender and may exercise the same as
though it were not the Agent or the Mandated Lead Arranger.
	 
	 	(b)	 	The Agent and the Mandated Lead Arranger may accept deposits from, lend money
to and generally engage in any kind of banking, trust, advisory or other business
whatsoever with the Company and its related entities and accept and retain any fees
payable by the Company or any of its related entities for its own account in connection
herewith without liability to account therefor to any Lender.






	21.12	 	Indemnity
	 
	 	 	Each Lender agrees to indemnify the Agent on demand (to the extent not reimbursed by the
Company under this Agreement) for any and all liabilities, losses, damages, penalties,
actions, judgements, costs, expenses or disbursements of any kind whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to or arising out
of its acting as the Agent under this Agreement or performing its duties hereunder or any
action taken or omitted by the Agent hereunder (including, without limitation, the charges
and expenses referred to in Clause 23 (Expenses) and all stamp taxes on or in connection
with this Agreement). Such indemnification by each Lender shall be pro rata to its
Commitment or (as the case may be) participation in the Advances. Notwithstanding the
foregoing, no Lender shall be liable for any portion of the foregoing resulting from the
Agent’s gross negligence or wilful misconduct.
	 
	21.13	 	Legal Restrictions
	 
	 	 	The Agent may refrain from doing anything which would or might in its opinion (i) be
contrary to the law of any jurisdiction or any official directive or (ii) render it liable
to any person or (iii) violate its duty of secrecy as a bank, and may do anything which in
its opinion is necessary to comply with any such law or directive.
	 
	21.14	 	Resignation and Removal
	 
	 	 	The Agent may, after prior consultation with the Company, resign by giving written notice
thereof to the Lenders and the Company. In addition, the Majority Lenders may, by giving at
least 30 days’ notice to the Agent, the other Lenders and the Company, as appropriate,
remove the Agent. In either such event, after prior consultation with the Company, the
Majority Lenders may appoint a successor to such Agent. Any successor Agent appointed
hereunder must be a Lender or a Lender’s Affiliated Company at the time of its appointment.
If the Majority Lenders have not, within 30 days after such notice of resignation or
removal, appointed a successor Agent which shall have accepted such appointment, the
retiring or removed Agent shall have the right to appoint a successor Agent. The resignation
or removal of the retiring or removed Agent and the appointment of any successor Agent shall
both become effective upon the successor notifying all the parties thereto in writing that
it accepts such appointment, whereupon the successor Agent shall succeed to the position of
the retiring or removed Agent and the term “Agent” herein shall mean such successor Agent.
This Clause 21.14 (Resignation and Removal) shall continue to the benefit of a retiring or
removed Agent in respect of any action taken or omitted by it hereunder while it was Agent.




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	21.15	 	Recovery of Payments
	 
	 	 	Unless the Agent shall have received written notice from a Lender or a Borrower not less
than two Business Days prior to the date upon which such Lender or such Borrower (the “party
liable”) is to pay an amount to the Agent for transfer to any Borrower or any Lender
respectively (the “payee”) that the party liable will not make that amount available to the
Agent, the Agent may assume that the party liable has paid such amount to the Agent on the
due date in accordance herewith. In reliance upon such assumption, the Agent may (but shall
not be obliged to) make available a corresponding sum to the payee(s). In the event that
such payment is not made to the Agent, the payee(s) shall forthwith on demand repay such sum
to the Agent together with interest on such amount until its repayment (calculated from the
date of payment to the date of receipt) at a rate determined by the Agent reflecting its
cost of funds. The provisions of this Clause 21.15 (Recovery of Payments) are without
prejudice to any rights the Agent and the payee may have against the party liable.
	 
	21.16	 	Facility Offices
	 
	 	 	The Agent may treat each Lender named as a party as entitled to payment hereunder and as
acting hereunder through its office specified in Schedule 5 (Facility Offices) to this
Agreement until it has received written notice from the Lender concerned to the contrary not
less than five Business Days prior to the relevant payment.
	 
	21.17	 	Exemption from section 181 German Civil Code
	 
	 	 	The Agent and the Mandated Lead Arranger are hereby granted exemption from the restriction
of section 181 of the German Civil Code or any similar restriction of the applicable laws of
any other country.
	 
	21.18	 	Confidentiality
	 
	 	 	In acting as the Agent or Mandated Lead Arranger for the Lenders, the Agent or Mandated Lead
Arranger’s agency and syndication divisions shall be treated as separate entities from any
other of their relevant divisions or departments. Furthermore, notwithstanding the foregoing
provisions of this Clause 21 (The Agent, the Mandated Lead Arranger and the Lenders), in the
event that the Agent or any of the Mandated Lead Arranger should act for the Borrowers in
any capacity in relation to any matter other than those directly or indirectly related to
its capacity as Agent for the Lenders or as Mandated Lead Arranger thereunder, then any
information given by the Borrowers to the Agent or the Mandated Lead Arranger in such other
capacity shall be treated as confidential by the Agent or the Mandated Lead Arranger.




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SECTION 22

FEES





	22.	 	FEES
	 
	22.1	 	Upfront Fee
	 
	 	 	The Company shall pay to the Agent for the pro rata account of the Lenders an upfront fee as
agreed in the Fee Letter.
	 
	22.2	 	Commitment Fee






	 	(a)	 	The Company shall pay to the Agent for the account of each Lender a commitment
fee computed at the rate of 0.625 per cent. per annum on the basis of the actual days
elapsed divided by 360 during the period from the earlier of (x) the date falling one
(1) month after the date of this Agreement and (y) the date on which the Agent received
all the conditions precedent documents in form and substance satisfactory to it in
accordance with Clause 4.1 (Conditions Precedent to first Advance), up to and including
the last day of the relevant Availability Period on the amount of the undrawn and
uncancelled Commitments. Accrued commitment fee is payable in Euro quarterly in arrears
and on the last day of the Availability Period.
	 
	 	(b)	 	In case the Total Commitments or the entire Commitments of a particular Lender
are cancelled, any commitment fee owed in relation to such cancelled Commitments will
be payable on the date on which such cancellation becomes effective.






	22.3	 	Agency Fee
	 
	 	 	The Company shall pay to the Agent for its own account an agency fee as agreed in the Fee Letter.
	 
	22.4	 	VAT
	 
	 	 	Any fee referred to in this Clause 22 (Fees) is exclusive of any value added or turnover tax
or any other Tax which might be chargeable in connection with that fee. If any value added
tax or other Tax is so chargeable, it shall be paid by the Obligors in addition to such fees
at the same time as it pays the relevant fee.




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SECTION 23

EXPENSES





	23.	 	EXPENSES
	 
	 	 	The Company shall forthwith on demand pay to each Finance Party the amount of all costs and
expenses (including reasonable legal fees) incurred by it in connection with the enforcement
of, or the preservation of any rights under, any Finance Document or in connection with any
amendment, waiver, consent or suspension of rights (or any proposal of any of the foregoing)
requested by or on behalf of any Obligor and relating to a Finance Document or a document
referred to in any Finance Document.




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SECTION 24

STAMP DUTIES





	24.	 	STAMP DUTIES
	 
	 	 	The Company shall, or shall procure that each Obligor shall, pay and forthwith on demand
indemnify each Finance Party against any cost, loss or liability it incurs in respect of,
any stamp, registration and similar Tax which is or becomes payable in connection with the
entry into, performance or enforcement of this Agreement or any of the Finance Documents or
the transactions contemplated by the Finance Documents.




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SECTION 25

WAIVERS; REMEDIES CUMULATIVE





	25.	 	WAIVERS; REMEDIES CUMULATIVE
	 
	 	 	No failure to exercise and no delay in exercising on the part of any Finance Party, any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. No waiver by any Finance
Party shall be effective unless it is in writing. The rights and remedies of each Finance
Party herein provided are cumulative and not exclusive of any rights or remedies provided by
law.




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SECTION 26

NOTICES





	26.	 	NOTICES






	 	(a)	 	Any correspondence, reports, announcements, consultations, documentation and
communication between the parties to this Agreement shall be in the English or the
German language and shall be in writing, by mail, or by telefax.
	 
	 	(b)	 	Without prejudice to any future change of address, all correspondence from any
Obligor to the Lenders shall be sent to the Agent at the following address:
	 
	 	 	 	CITIBANK INTERNATIONAL PLC

33 Canada Square

London E14 5LB

United Kingdom

Phone: + 44 207 500 4245/4254

Fax: +44 208 636 3824/3825

Attn: Ian Hayton/Howard Batson/Sonia Gosparini
	 
	 	 	 	All correspondence from the Lenders or the Agent to the Borrowers shall be sent to
the following address:
	 
	 	 	 	QIMONDA AG

Gustav Heinemann Ring 212

81739 München

Germany

Phone: +49 89 234 26380

Fax: +49 89 234 955 6557

Attn: Head of Finance and Treasury
	 
	 	(c)	 	All correspondence from the Agent to the Lenders shall be sent to the addresses
listed in Schedule 5 (Facility Offices) until the Agent has received written notice
from the Lender concerned to the contrary not less than five Business Days prior to the
relevant correspondence.






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SECTION 27

ASSIGNABILITY, TRANSFER, SUBSTITUTION





	27.	 	ASSIGNABILITY, TRANSFER, SUBSTITUTION
	 
	27.1	 	Assignments and Transfers by the Obligors
	 
	 	 	The Obligors are not entitled to assign or transfer all or any of their rights, benefits and
obligations hereunder.
	 
	27.2	 	Additional Borrowers






	 	(a)	 	Subject to compliance with Clause 18.2(g) (“Know your customer” checks) and
Clause 18.4(h) (Senior Bonds Issue), the Company may request that any of its wholly
owned Subsidiaries becomes an Additional Borrower. That Subsidiary shall become an
Additional Borrower if:






	 	(i)	 	the Additional Borrower is a Subsidiary of the Company but is
not incorporated in the same jurisdiction as an existing Original Borrower of
the Facility and all the Lenders have approved the addition of that Subsidiary;
or
	 
	 	(ii)	 	the Additional Borrower is a Subsidiary of the Company and is
incorporated in the same jurisdiction as an existing Original Borrower and the
Majority Lenders have approved the addition of that Subsidiary; and
	 
	 	(iii)	 	the Company and that relevant Subsidiary deliver to the Agent
a duly completed and executed Accession Document designating the relevant
Subsidiary as an Additional Borrower; and
	 
	 	(iv)	 	the Company confirms to the Agent that no Default is continuing
or would occur as a result of that Subsidiary becoming an Additional Borrower;
and
	 
	 	(v)	 	the Agent has received all of the documents and other evidence
listed in Schedule 4 (Further Conditions Precedent) in relation to that
Additional Borrower, each in form and substance satisfactory to the Agent.






	 	(b)	 	The Agent shall notify the Company and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to it) all the
documents and other evidence referred to in paragraph (a)(v) above.






	27.3	 	Resignation of Borrowers






	 	(a)	 	The Company may request at any time that a Borrower ceases to be a Borrower
(the “Resigning Borrower”) by delivering to the Agent a respective notice of
resignation.
	 
	 	(b)	 	The Agent shall accept such notice of resignation and notify the Company and
the Lenders of its acceptance if:






	 	(i)	 	no Event of Default (or event which with giving of notice or
lapse of time or the making of any determination under the Finance Documents or
any combination of any of the foregoing would constitute an Event of Default)
is continuing or would result from the acceptance of such notice;
	 
	 	(ii)	 	no amount is due or owing from the Resigning Borrower under any
Finance Document; and
	 
	 	(iii)	 	no further Advance has been requested by the Resigning
Borrower;




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	 	 	 	whereupon the Resigning Borrower shall cease to be a Borrower and shall have no
further rights or obligations as Borrower under the Finance Documents.






	27.4	 	Assignment and Transfer by the Lenders






	 	(a)	 	A Lender may, with the prior written consent of the Company which shall not be
unreasonably withheld or delayed, at any time:






	 	(i)	 	assign all or any part of its rights hereunder or
	 
	 	(ii)	 	transfer in accordance with Clause 27.4(d) all or any part of
its rights and obligations hereunder,






	 	 	 	to other (x) banks or financial institutions or (y) a trust fund or other entity
which is regularly engaged in or established for the purpose of making, purchasing
or investing in or securitising loans, securities or other financial assets (“Fund”)
provided that each transferee is (i) a minimum of investment grade as measured by
one of the recognized rating agencies and (ii) (if on the date on which a transferee
becomes a Lender it is a requirement of Dutch law that the transferee is a PMP) a
PMP within the meaning of Schedule 9 (Professional Market Parties). An amount of
principal and the amount of interest accrued thereon may not be assigned or
transferred separately.
	 
	 	 	 	Any such consent shall be deemed to have been given unless notice to the contrary is
received within 10 Business Days of the request therefor.
	 
	 	 	 	No consent is required for a transfer or an assignment (i) in case such transfer or
assignment is effected after an Event of Default has occurred, or (ii) in case such
transfer or assignment is made to a Lender’s Affiliated Company being a bank or a
Fund and (if on the date on which a transferee becomes a Lender it is a requirement
of Dutch law that the transferee is a PMP) a PMP within the meaning of Schedule 9
(Professional Market Parties), subject to Clause 27.6 (Obligors’ Protection).
	 
	 	(b)	 	A Lender may, with the prior written consent of the Company, which shall not be unreasonably withheld or delayed, at any time:






	 	(i)	 	assign all or any part of its rights hereunder or
	 
	 	(ii)	 	transfer in accordance with Clause 27.4(d) all or any part of
its rights and obligations hereunder,






	 	 	 	to other banks, financial institutions or Funds not falling within
Clause 27.4(a), provided (if on the date on which a transferee becomes a Lender it
is a requirement of Dutch law that the transferee is a PMP) such other bank,
financial institution or securitisation vehicle qualifies as a PMP within the
meaning of Schedule 9 (Professional Market Parties).
	 
	 	 	 	Any such consent shall be deemed to have been given unless notice to the contrary is
received within 10 Business Days of the request therefor.
	 
	 	 	 	No consent is required for a transfer or an assignment (i) in case such transfer or
assignment is effected after an Event of Default has occurred, or (ii) in case such
transfer or assignment is made to a Lender’s Affiliated Company being a bank and (if
on the date on which a transferee becomes a Lender it is a requirement of Dutch law
that the transferee is a PMP) a PMP within the meaning of Schedule 9 (Professional
Market Parties), subject to Clause 27.6 (Obligors’ Protection).
	 
	 	(c)	 	Unless and until an assignee (the “Assignee”) has agreed with the Agent and the
Lenders in writing that it shall be under the same obligations towards each of them as
it would have been under if it had been a party hereto, neither the Agent nor any
Lender shall be obliged to




76









 






	 	 	 	recognise such Assignee as having the rights against it which such Assignee would
have had if it had been a party hereto. For the purposes of this Clause 27.4
(Assignment and Transfer by the Lenders), each Lender hereby authorises the Agent to
execute on its behalf any agreement with any Assignee pursuant to which such
Assignee agrees that it shall be under the same obligations towards each of the
Lenders as it would have been had it been a party hereto.
	 
	 	(d)	 	If any Lender wishes to transfer its rights, benefits and obligations hereunder
to another bank or financial institution (the “Joining Lender”) in accordance with
Clause 27.4(a)(ii) or Clause 27.4(b)(ii), then such transfer shall be effected by the
delivery to the Agent of a duly completed and duly executed agreement substantially in
the form set out in Schedule 6 (a “Transfer Agreement”) whereupon:






	 	(i)	 	the Borrowers, the Guarantors, the Agent and such Lender shall,
to the extent provided in such Transfer Agreement, each be released from
further obligations to the other hereunder and their respective rights against
each other shall be cancelled (such rights and obligations being referred to in
this Clause 27.4(d) as “discharged rights and obligations”);
	 
	 	(ii)	 	the Borrowers, the Guarantors and the Joining Lender thereto
shall each assume obligations towards, and acquire rights from, each other
which differ from the discharged rights and obligations only insofar as the
obligations so assumed and the rights so acquired by the Borrowers and the
Guarantors are owed to and constituted by claims against such Joining Lender
and not such Lender, and
	 
	 	(iii)	 	the Agent, the Mandated Lead Arranger, such Joining Lender and
the other Lenders shall acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed had such Joining
Lender been an original party hereto with the obligations assumed by it as a
result of such transfer.






	 	(e)	 	The transfer or assignment by a Lender of part of its rights and benefits or
obligations hereunder shall be in a minimum amount of Euro 1,000,000 and thereafter
whole multiples thereof (provided that a Lender may always transfer any remaining
amount of its rights and obligations which may be less than Euro 1,000,000).
	 
	 	(f)	 	Any transfer or assignment of any of the rights and benefits of any Lender
hereunder shall be at no cost to the Borrowers and accordingly each Assignee or each
Joining Lender which delivers an assignment agreement or a Transfer Agreement to the
Agent shall pay to the Agent a registration fee of Euro 1,000 in respect of the
assignment or transfer effected, such fee to be payable on delivery of such assignment
agreement or Transfer Agreement.
	 
	 	(g)	 	The Agent shall promptly notify the Company of any assignment or transfer
pursuant to this Clause 27.4 (Assignment and Transfer by the Lenders).






	27.5	 	Change of Facility Office
	 
	 	 	Each Lender may at any time and at its expense change its Facility Office, but such Lender
shall give the Agent prior written notice thereof and until receipt of such notice the Agent
may assume that no such change has occurred.
	 
	27.6	 	Obligors’ Protection
	 
	 	 	If:






	 	(a)	 	a Lender assigns or transfers any of its rights and obligations hereunder or
changes its Facility Office; and




77









 






	 	(b)	 	an Obligor would be obliged to make a payment to the Assignee or Joining Lender
or Lender acting through its new Facility Office under Clause 9.7(a), 14.2 (Gross-up)
or 15.1 (Increased Costs) above,






	 	 	then the Assignee or Joining Lender or Lender acting through its new Facility Office is only
entitled to receive payment under those Clauses to the same extent as the Lender making the
assignment or transfer or Lender acting through its previous Facility Office would have been
if the assignment, transfer or change had not occurred.
	 
	27.7	 	Disclosure
	 
	 	 	Each Lender may only disclose any information about this Agreement and any information in
the possession of such Lender relating to the Borrowers and/or their Subsidiaries (i) to any
proposed assignee, transferee or subparticipant or any proposed substitute therefore, and
(ii) to their legal, tax and financial advisors as well as (iii) to any Person to which any
Lender is legally required to disclose such information provided however, that (a) in case
of disclosure of any such information and/or the Information Package to a Person listed
under (i) above, such Person has signed a confidentiality agreement customarily used in
transactions of this nature and (b) in case of disclosure to a Person not being a bank or
not being subject to banking secrecy requirements such Person has signed a confidentiality
agreement pursuant to which any information about this Agreement and any information in the
possession of such Lender relating to the Borrowers and/or their Subsidiaries must be kept
confidential unless disclosure is required by any law or regulation applicable to such
Person. Each Lender shall notify the Borrowers promptly of any disclosure made in accordance
with this clause, and shall, if requested by the Borrowers, supply a copy of any
confidentiality undertaking entered into as aforesaid.
	 
	27.8	 	Reference Banks
	 
	 	 	If a Reference Bank (or, where a Reference Bank is not a party hereto but an Affiliate of
such Reference Bank is a party hereto, such Affiliate) ceases to be a party hereto, the
Agent upon instruction of the Majority Lenders shall after consultation with the Company
appoint another party hereto or Affiliate of another party hereto to replace that Reference
Bank.






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SECTION 28

CURRENCY INDEMNITY





	28.	 	CURRENCY INDEMNITY






	 	(a)	 	Payment made by a Borrower or, if payment is made by a Guarantor under the
Guarantee, by the Guarantor to the Lenders on the basis of any judgement in a currency
(hereinafter referred to as the “Judgement Currency”) other than the currency in which
the payment was due (hereinafter referred to as the “Required Currency”) shall only
discharge such Borrower’s or, if payment is made by such Guarantor, such Guarantor’s
obligation to the extent of the amount in the Required Currency that the Lenders,
immediately upon receipt of such payment, would be able to purchase with the amount so
received on a recognised foreign exchange market. In the event that such amount in the
Judgement Currency is less than the amount due in the Required Currency pursuant to the
provisions of this Agreement, then such Borrower or Guarantor, respectively, shall be
liable to pay the difference; such obligation of such Borrower and such Guarantor,
respectively, being a separate and independent obligation, forming the basis of a
separate cause of action.
	 
	 	(b)	 	The Borrowers and the Guarantors waive any rights they may have in any
jurisdiction to pay any amount hereunder in a currency other than that in which it is
expressed to be payable hereunder.





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SECTION 29

PRO RATA SHARING





	29.	 	PRO RATA SHARING






	 	(a)	 	Except for payments to a Lender from the Agent which were received by the Agent
for the account of such Lender in accordance with this Agreement, if a Lender shall at
any time receive satisfaction by way of payment or foreclosure of any collateral or
security or a declaration of set-off made by such Lender of all or a part of any amount
payable by the Borrowers or the Guarantors hereunder or under the Guarantee (the
“Amount Payable”) in a proportion which, in relation to any amounts received by any
other Lender or Lenders, represents more than its percentage participation for the time
being in the Amount Payable, then such Lender shall promptly purchase from the other
Lenders such participation in the Amount Payable including the claims for payment of
interest maintained by those other Lenders as may be necessary to cause the purchasing
Lender to share the amount in excess of its percentage participation for the time being
in the Amount Payable rateably with the other Lenders. Each of the Lenders hereby
agrees to sell and transfer a participation in an Amount Payable, including the claims
for payment of interest as may be necessary to give effect to this provision.
	 
	 	(b)	 	Notwithstanding Clause 29(a), no portion of any payment or satisfaction of all
or part of any Amount Payable to such Lender hereunder received in connection with or
as a result of legal proceedings brought by or in the name of such Lender shall be
payable pursuant to Clause 29(a), to any other Lender where each other Lender has had
an opportunity to join in such proceedings yet has declined to do so. Each Lender shall
give prior written notice to each other Lender of its intention to institute legal
proceedings in any jurisdiction.
	 
	 	(c)	 	If at any time any Lender (the “Refunding Lender”) shall be required to refund
any amount which has been paid to or received by it on account of any part of any
Amount Payable by the Borrowers or the Guarantors hereunder and in respect of which it
has paid an amount to any other Lender pursuant to Clause 29(a), such other Lender
shall against re-transfer of the purchased participation in an Amount Payable including
the claims for payment of interest repay a proportionate amount of the sum so refunded
together with such amount (if any) as is necessary to reimburse the Refunding Lender
the appropriate portion of any interest it shall have been obliged to pay when
refunding such amount as aforesaid for the period whilst such other Lender held the
amounts to be refunded.
	 
	 	(d)	 	If a Lender receives satisfaction as set forth in Clause 29(a), it shall give
notice thereof to the Agent. The Agent shall then calculate the amount to be paid
pursuant to Clause 29(a). Such Lender shall pay this amount within the time period set
forth by the Agent to the Agent which will then distribute the amount among the other
Lenders. Each of the Lenders hereby authorises the Agent to assign to the Lender
receiving such satisfaction and to accept the assignment of, such participation in
Amounts Payable including claims for payment of interest on their behalf as set forth
in Clause 29(a). The Agent shall confirm the assignments to all Lenders in writing
every time such assignments take place. Clause 29(d) sentences 1 through 3 apply
mutatis mutandis in case of a refund pursuant to Clause 29(c).






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SECTION 30

SET-OFF





	30.	 	SET-OFF
	 
	 	 	Each Lender may set off any matured obligation owed by a Borrower under this Agreement
against any obligation owed by the Lender to such Borrower regardless of the place of
payment, booking branch or currency of either obligation. If the obligations are in
different currencies, the Lender may convert either obligation at a market rate of exchange
applicable on the day of set-off for the purpose of set-off.






81









 








SECTION 31

MISCELLANEOUS





	31.	 	MISCELLANEOUS
	 
	31.1	 	Amendments
	 
	 	 	Any alteration, amendment to or waiver of any provision of this Agreement shall be in
writing and requires the consent of the Obligors and of the Majority Lenders provided,
however, that (i) any alteration or amendment of the definition of the term “Majority
Lenders” or “Margin”, any change of a payment date, any change of the currency of any amount
payable hereunder, a change of a Commitment (except as permitted by this Agreement), a
decrease of any amount payable hereunder, an extension of the Final Maturity Date, or any
alteration or amendment to Clauses 2.2 (Severability of Finance Parties’ Obligations), 2.3
(Severability of Finance Parties’ Rights), 4.2 (Conditions Precedent to each Advance), 4.3
(Conditions relating to Optional Currencies), 19 (Guarantee), 27.1 (Assignments and
Transfers by the Obligors), 27.4 (Assignment and Transfer by the Lenders) or this Clause
31.1 (Amendments) or any other provision requiring the consent of all Lenders may only be
agreed with the consent of all Lenders and (ii) any change, alteration or amendment of the
rights or obligations of the Agent under this Agreement may only be agreed with the consent
of the Agent. Oral agreements shall have no legal effect.
	 
	31.2	 	Governing Law
	 
	 	 	The form and content of this Agreement, as well as the rights and obligations of the
Lenders, the Obligors, the Agent and the Mandated Lead Arranger shall be construed according
to the laws of the Federal Republic of Germany in every respect.
	 
	31.3	 	Waiver of Trial by Jury
	 
	 	 	In relation to any proceedings before any United States court (whether state or federal)
each party to this agreement waives any right it may have to a jury trial of any claim or
cause of action in connection with any finance document or any transaction contemplated by
any finance document. This Agreement may be filed in any such proceedings as a written
consent to trial by the court.
	 
	31.4	 	Severability
	 
	 	 	Should any provision of this Agreement be or become wholly or partly, invalid, then the
remaining provisions shall remain valid. Invalid provisions shall be replaced in accordance
with the intent of the parties and the purpose of this Agreement.
	 
	31.5	 	Jurisdiction
	 
	 	 	The applicable place of jurisdiction for all disputes arising out of or in connection with
the Finance Documents shall be Frankfurt am Main, Germany. However, the Finance Parties may,
at their option, commence proceedings before any competent court of law in the Federal
Republic of Germany and/or in any other country in which assets of the Obligors are
situated. In the latter case the laws of Federal Republic of Germany shall, pursuant to
Clause 31.2 (Governing Law), also be applicable.
	 
	31.6	 	Process Agent
	 
	 	 	Qimonda B.V. irrevocably and unconditionally appoints the Company to accept service of
process in connection with the Finance Documents in respect of legal actions instituted
before the courts in the Federal Republic of Germany, and the Company hereby irrevocably
accepts such appointment.




82









 






	31.7	 	Confirmation pursuant to Section 8 German Money Laundering Act (Geldwäschegesetz)
	 
	 	 	The Borrowers hereby confirm to the Lenders that all loans to be drawn by any of them under
this Agreement will solely be drawn for its own account and that, accordingly, each Borrower
qualifies as economic beneficiary (wirtschaftlich Berechtigter) under Section 8
Geldwäschegesetz.
	 
	31.8	 	Schedules
	 
	 	 	The Schedules form part of this Agreement.
	 
	31.9	 	Counterparts
	 
	 	 	This Agreement has been executed in the English language in counterparts. One execution copy
shall be provided to each of the Obligors, the Agent, the Mandated Lead Arranger and to each
of the Lenders. Each executed copy shall have the effect of an original.






83









 









Munich,
this 31 July 2006




The Obligors:




QIMONDA AG




	 	 	 	 	 	 	 	 	 	 	 
	as Company, Original Borrower and Original
Guarantor	 	 	 	 	 	 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 
	By

	 	 	 	 	 	By	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Signature:

	 	/s/ Nicole Lau	 	 	 	Signature:	 	/s/ Peter Dreischhoff	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	Nicole Lau	 	 	 	Name:	 	Peter Dreischhoff	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	QIMONDA HOLDING B.V.	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	as Original Borrower	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By

	 	 	 	 	 	By	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Signature:

	 	/s/ Nicole Lau	 	 	 	Signature:	 	/s/ Torsten Klee	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	Nicole Lau 	 	 	 	Name:	 	Torsten Klee	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	The Mandated Lead Arrangers:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	CITIGROUP GLOBAL MARKETS LIMITED	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	as Mandated Lead Arranger	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Melissa
Bacani
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	CREDIT SUISSE, LONDON BRANCH	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	as Mandated Lead Arranger	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Craig Klaasmeyer
	 	  /s/ Thomas Muoio 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 





84









 






	 	 	 	 	 	 	 	 	 	 	 
	J.P. MORGAN PLC	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	as Mandated Lead Arranger	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	/s/ Jay-Michael Baslow	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	ABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLAND	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	as Mandated Lead Arranger	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	/s/ Grunwald  /s/ ppa Steidl	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	DEUTSCHE BANK AG	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	as Mandated Lead Arranger	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	/s/ von
Wickede  /s/ Lechler	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	BAYERISCHE HYPO- UND VEREINSBANK AG	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	as Mandated Lead Arranger	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	/s/ K. Höfler  /s/ R. Bergler	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 





85









 






	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	The Agent:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	CITIBANK INTERNATIONAL PLC	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	as Agent	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	/s/ M. Bacani	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	The Original Lenders:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	CITIBANK NA, LONDON BRANCH	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	as Lender	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	/s/ M. Bacani	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	CREDIT SUISSE, LONDON BRANCH	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	as Lender	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	/s/ Craig
Klaasmeyer  /s/ Thomas Muoio	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A.	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	as Lender	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	/s/ Jay-Michael Baslow	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 





86









 






	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	ABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLAND	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	as Lender	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	/s/ Grunwald  /s/ ppa Steidl	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	DEUTSCHE BANK LUXEMBOURG S.A.	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	as Lender	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	/s/ Budzisch  /s/ Lauer	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	HVB BANQUE
LUXEMBOURG SOCIÉTÉ ANONYME	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	as Lender	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	/s/ Erwin
Moos  /s/ Scherer	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 






87









 








SCHEDULE 1

PART 1

LENDERS’ COMMITMENTS




Lenders’ Commitments

(all amounts in Euro)




	 	 	 	 	 
	Lender	 	Allocation Amounts in Euro
	Citibank NA, London Branch
	 	 	41,666,666.67	 
	 
	 	 	 	 
	Credit Suisse, London Branch
	 	 	41,666,666.67	 
	 
	 	 	 	 
	JPMorgan Chase Bank, N.A.
	 	 	41,666,666.67	 
	 
	 	 	 	 
	ABN AMRO Bank, N.V., Niederlassung Deutschland
	 	 	41,666,666.67	 
	 
	 	 	 	 
	Deutsche Bank Luxembourg S.A.
	 	 	41,666,666.66	 
	 
	 	 	 	 
	HVB Banque
Luxembourg Société Anonyme
	 	 	41,666,666.66	 
	 
	 	 	 	 
	Total
	 	 	250,000,000.00	 






PART 2

THE ORIGINAL BORROWERS




Qimonda AG




Qimonda Holding B.V.




88









 





SCHEDULE 2

DRAWDOWN NOTICE




Drawdown Notice




[Letterhead of Borrower]




	 	 	 
	To:

	 	Citibank International plc
	 

	 	[address]
	 
	 	 
	Date:

	 	[ • ]





Pursuant to Clause 5.1 (Drawdown Notice) of the Euro 250,000,000 Facility Agreement dated [ • ]
2006 between Qimonda AG and Qimonda B.V. as Borrowers and the Finance Parties (the “Agreement”), we
hereby request the following Advance under the Facility on our behalf:




	 	 	 	 	 
	(a)

	 	Drawdown Date:
	 	[ • ]
	 
	 	 	 	 
	(b)

	 	Amount /Original Euro Amount of Advance:
	 	[ • ]
	 
	 	 	 	 
	(c)

	 	Currency:
	 	[ • ]
	 
	 	 	 	 
	(d)

	 	Term:
	 	[ • ] months
	 
	 	 	 	 
	(e)

	 	The account to which the Advance is to be transferred
	 	[ • ]
	 
	 	 	 	 
	(f)

	 	Borrower:
	 	[ • ]





We hereby confirm that on both on the date hereof and on the Drawdown Date:





	 	(i)	 	the Repeated Representations and Warranties are correct in all material
respects;
	 
	 	(ii)	 	no Event of Default [(or any event which with giving of notice or lapse of time
or the making of any determination under the Finance Documents or any
combination of any of the foregoing would constitute such an Event of
Default)][only to be inserted in case of an Advance other than a Rollover Advance] has
occurred and is continuing unremedied or unwaived or would result from the making of
this Advance;
	 
	 	(iii)	 	the Borrower is not and following the Advance will not be in breach of its
borrowing limits;
	 
	 	(iv)	 	[only to be inserted in case of an Advance other than a Rollover Advance] the
Borrower has Minimum Liquidity in excess of Euro 300,000,000 (excluding any outstanding
principal amounts under the Facility).




We further confirm that to the best of our knowledge and belief, we will be in compliance with the
financial covenants set out in Clause 18.5 (Financial Covenants) on the next Covenant Test Date
(taking into account any proceeds drawn under the Facility).




 





(authorised signature of Borrower)





89









 








SCHEDULE 3

ACCESSION AGREEMENT




[Letterhead of proposed Guarantor/Borrower]




	 	 	 
	To:

	 	Citibank International plc
	 

	 	[address]
	 
	 	 
	Date:

	 	[ • ]





We refer to Clause 19.6 (Additional Guarantors) of the Euro 250,000,000 Facility Agreement dated
[ • ] 2006 between, amongst others, Qimonda AG and Qimonda B.V. as Original Borrowers and the
Finance Parties (the “Agreement”) as set forth therein.



We, [name of company] of [Registered Office] (Registered no. [ • ]) agree to become an
Additional [Guarantor]/[Borrower] and will irrevocably and unconditionally guarantee the full
payment of interest, principal and any other amount due hereunder in accordance with and to be
bound by the terms of the Agreement as an Additional [Guarantor] /[Borrower] in accordance with
Clause [19.6 (Additional Guarantors)] [Clause 27.2 (Additional Borrowers)].



[Add appropriate limitation of guarantee wording where required under applicable laws]



We, [name of company] herewith irrevocably and unconditionally appoint [ • ] (the “Process
Agent”) to accept service of process in connection with the Finance Documents, in respect of legal
actions instituted before the courts in the Federal Republic of Germany.



The form and content of this Accession Agreement [(including the Guarantee)], shall be construed
according to the laws of the Federal Republic of Germany in every respect.



This is a Finance Document.



Our address for notices for the purposes of Clause 26 (Notices) is:



[ • ]




 





(authorised signature of Additional Guarantor/Borrower)





90









 








SCHEDULE 4

FURTHER CONDITIONS PRECEDENT




to be delivered by an Additional Obligor





	1.	 	Certified copies of the current articles of association and such other corporate documents
relating to the Additional Obligor as the Agent may reasonably request;
	 
	2.	 	Certified extracts of the Commercial Register relating to the Additional Obligor of most
recent date (where applicable);
	 
	3.	 	Copies of all authorisations, corporate or official, if any, relating to the Additional
Obligor necessary under the laws of the Relevant Jurisdiction for the approval of, the entry
into and performance by the Additional Obligor of the Accession Agreement and the transactions
contemplated thereby and for the validity and enforceability of the Finance Documents;
	 
	4.	 	Evidence of the authority of the person or persons acting for the Additional Obligor to sign
the Accession Agreement and any other notices or other communications to be given by or on
behalf of the Additional Obligor hereunder together with an authenticated specimen signature
of such persons;
	 
	5.	 	A certificate of a director of the Additional Obligor certifying the Relevant Jurisdiction in
relation to the Additional Obligor and that entering into the Agreement as Additional Obligor
in full would not cause any borrowing limit binding on it to be exceeded;
	 
	6.	 	A copy of the latest financial statements of the Additional Obligor;
	 
	7.	 	A legal opinion from external legal advisors of recognised standing to the Additional Obligor
addressing due execution, incorporation and capacity of such Additional Obligor and
enforceability of the Finance Documents as they relate to such Additional Obligor.
	 
	8.	 	In relation to each US Additional Obligor:






	 	(a)	 	A solvency certificate issued by each US Additional Obligor and addressed to
the Agent confirming the solvency of such US Additional Obligor immediately following
entry by it into any Finance Document to which it is a party.
	 
	 	(b)	 	A copy of a good standing certificate (including verification of tax status) or
the equivalent certificate in the applicable jurisdiction with respect to each US
Additional Obligor, issued as of a recent date of the date of each Finance Document to
which it is a party by the Secretary of State or other appropriate official of that US
Additional Obligor’s jurisdiction of incorporation or organisation.




Each of the documents specified in paragraphs 1 to 6 above shall be certified by a duly authorised
officer of the relevant Additional Obligor as being correct, complete and in full force and effect
as at a date not earlier than the date of the Accession Agreement.





91









 









SCHEDULE 5

FACILITY OFFICES




Citibank NA, London Branch

5th Floor

Citigroup Centre

33 Canada Square

London E14 5LB




Telephone: +44 20 7986 6938

Telefax: +44 20 7986 8278




Credit Suisse, London Branch

One Cabot Square

London E14 4QJ




Telephone: +44 20 7883 8879

Telefax: +44 20 7888 8391




JPMorgan Chase Bank, N.A.

125 London Wall

London EC2Y 5AJ




Telephone: +44 207 777 2000

Telefax: +44 207 325 0439




ABN AMRO Bank N.V., Niederlassung Deutschland

Theodor-Heuss-Allee 80

60486 Frankfurt am Main




Telephone: +49 (0) 69 2690 00

Telefax: +49 (0) 69 2690 2109




Deutsche Bank Luxembourg S.A.

2, boulevard Konrad Adenauer

1115 Luxembourg




Telephone: +352 42122 329

Telefax: + 352 42122 287




HVB Banque
Luxembourg

Société Anonyme

4, Rue Alphonse Weicker

L-2721 Luxembourg




Telephone:
+ 352 2721 2182

Telefax: + 352 2721 4544




92









 





SCHEDULE 6

TRANSFER AGREEMENT




between




[Lender]




and




[Joining Lender]




PREAMBLE




Whereas:





	1.	 	By the Euro 250,000,000 Facility Agreement dated [•] 2006 between Qimonda AG and
Qimonda B.V. as Borrowers (the “Borrowers”) and the Finance Parties as set forth therein (the
“Agreement”), the Lenders made available to the Borrowers a multicurrency revolving credit
facility in the total amount of Euro 250,000,000. The Lender has assumed a Lender’s Commitment
in the amount of Euro [•].
	 
	2.	 	The Lender has, pursuant to Clause 27.4 (Assignment and Transfer by the Lenders) of the
Agreement, the right to transfer to a third party its legal position as Lender including all
its rights and obligations arising pursuant to the provisions of the Agreement, wholly or in
part, in amounts of no less than Euro 1,000,000 or whole number (non-fractional) multiples
thereof (provided that a Lender may always transfer any remaining amount of its rights and
obligations which may be less than Euro 1,000,000).
	 
	3.	 	The Lender is desirous of transferring its legal position as Lender by way of assumption of
contract (Vertragsübernahme) in the amount of Euro [•] to the Joining Lender, and the
Joining Lender is desirous of assuming this legal position of the Lender, including all rights
and obligations.




In consideration of the above, the parties to this Transfer Agreement hereby agree as follows
(capitalised terms shall have the meaning given to them in the Agreement):





	1.	 	Purchase, Assignment and Assumption
	 
	 	 	Subject to the payment to the Agent of a fee in the amount of Euro [•],
	 
	1.1	 	The Joining Lender herewith purchases from the Lender the “Assigned Claims” (as defined
below) at the transfer price set out in Appendix 1.
	 
	1.2	 	The Lender herewith assigns to the Joining Lender [all of] its rights under the Agreement, in
particular including the claim for payment of principal and interest and all other rights by
contract and operation of law, as against the Borrowers (the “Assigned Claims”) as set forth
in Appendix 1.
	 
	1.3	 	The Joining Lender herewith assumes [all of] the obligations of the Lender [with respect to
the amount set forth in Appendix 1] pursuant to the Agreement, as against the Borrowers.
	 
	1.4	 	Upon effective joinder by final and irrevocable consent of the Borrowers, the Lender shall be
released from the obligations pursuant to its Lender’s Commitment to the Borrowers on the one
hand and to the Lenders on the other hand.




93









 






	2.	 	Confirmations and Assurances
	 
	2.1	 	The Joining Lender confirms that (i) it has received a copy of the Agreement and all other
documentation and information required by it in connection with the transaction contemplated
by this Transfer Agreement and (ii) (if on the date on which it becomes a Lender it is a
requirement of Dutch law that the Joining Lender is a PMP) it qualifies as a PMP within the
meaning of Schedule 9 (Professional Market Parties) of the Agreement, and that it is aware of
the consequences of making such representation (such as the absence of protection under the
ASCI).
	 
	2.2	 	The Joining Lender confirms that it has made and will continue to make its own assessment of
the validity, enforceability and sufficiency of the Agreement and the Transfer Agreement and
has not relied and will not rely on the Lender, the Mandated Lead Arranger, the Agent or any
statements made by any of them in that respect.
	 
	2.3	 	The Joining Lender confirms that it has made and will continue to make its own credit
assessment of the Borrowers and has not relied and will not rely on the Lender, the Mandated
Lead Arranger, the Agent or any statements made by any of them in that respect.
	 
	2.4	 	The Lender assures and guarantees the Joining Lender that;






	 	(a)	 	the Assigned Claims currently exist and are not subject to any objection,
	 
	 	(b)	 	the Assigned Claims are assignable and the Joining Lender becomes the owner
thereof pursuant to this Transfer Agreement.






	 	 	The Lender hereby confirms that it has fulfilled its obligations arising out of the
Agreement with respect to the transferred position until the date hereof. The Lender gives
no representation or warranty and assumes no responsibility with respect to the validity or
enforceability of the Agreement or any document related thereto and assumes no
responsibility for the financial condition of the Borrowers or any party to the Agreement or
for the performance and observance by the Borrowers or any other party of any of its
obligations under the Agreement and all such representations and warranties, whether
expressed or implied by law or otherwise, are hereby excluded.
	 
	3.	 	Miscellaneous
	 
	3.1	 	The Lender shall inform the Agent without undue delay of the following;






	 	(i)	 	the conclusion of this Transfer Agreement by the Lender and the Joining Lender;
	 
	 	(ii)	 	that obligations relating to the Assigned Claims can only be satisfied by
performance to the Joining Lender.






	3.2	 	The Joining Lender herewith empowers the Agent to exercise such rights, attorneys and
discretions as required pursuant to the provisions of the Agreement.
	 
	3.3	 	The Agent shall be exempted from the restrictions of Section 181 of the German Civil Code.
	 
	3.4	 	Alterations and amendments to this Transfer Agreement shall be in writing. The requirement
for writing can only be waived by written declaration. Oral agreements shall be of no effect.
	 
	3.5	 	This Transfer Agreement is subject to the laws of the Federal Republic of Germany. Any action
in relation to the execution or performance of this Transfer Agreement for any reason
whatsoever shall be subject to the jurisdiction of Frankfurt am Main.
	 
	3.6	 	Should any provision of this Transfer Agreement be or become wholly or partly invalid, then
the remaining provisions shall remain valid. Invalid provisions shall be construed in
accordance with the intent of the parties and the commercial purpose of this Transfer
Agreement.




94









 






	3.7	 	This Transfer Agreement is executed in two counterparts, one executed copy being provided to
each party. Each executed copy shall have the effect of an original.





Signed on [•], in [•]




[THE LENDER]




 






[THE JOINING LENDER]




 






95









 





Appendix 1

to Transfer Agreement



[In relation to each Advance in which the Lender participated and in relation to which it desires
to transfer its rights and obligations: please note that the precise denomination of the amounts to
be transferred (Advance/Amount) is essential for the validity of the transfer under German law]





	(A)	 	Participation in Advances transferred






	 	(a)	 	Advance 1 (Drawdown Date, Term)






	 	(i)	 	Amount of claims assigned under this Advance
	 
	 	(ii)	 	Currency of claims assigned under this Advance
	 
	 	(iii)	 	Interest Payment Date






	 	(b)	 	Advance 2 (Drawdown Date, Term) (etc.)






	(B)	 	Commitments transferred






	 	 	 	 	 	 	 
	 	 	 • Transferred Commitment	 	[                                        ]
	 
	 	 	 	 	 	 
	 	 	Facility Office of Joining Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	[                                        ]	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	[                                        ]	 	 
	 
	 	 	 	 	 	 
	 

	 	Phone:
	 	[                                        ]	 	 
	 
	 	 	 	 	 	 
	 

	 	Fax.:
	 	[                                        ]	 	 
	 
	 	 	 	 	 	 
	 

	 	Attn.:
	 	[                                        ]	 	 






96









 






SCHEDULE 7

ASSOCIATED COSTS FORMULAE





	1.	 	The Associated Costs are an addition to the interest rate to compensate Lenders for the cost
of compliance with the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of its
functions).
	 
	2.	 	On the first day of each Term (or as soon as possible thereafter) the Agent shall calculate,
as a percentage rate, a rate (the “Additional Cost Rate”) for each Lender lending from a
Facility Office in the United Kingdom, in accordance with the paragraphs set out below. The
Associated Costs will be calculated by the Agent as a weighted average of the Lenders’
Additional Cost Rates (weighted in proportion to the percentage participation of each Lender
in the relevant Advance) and will be expressed as a percentage rate per annum.
	 
	3.	 	The Additional Cost Rate for any Lender lending from a Facility Office in the United Kingdom
will be calculated by the Agent as follows:






	 	(a)	 	in relation to a sterling Advance:





	 	 	 	 	 
	 

	 	AB
+ C (B – D) + Ex0.01
	 	per cent. Per annum
	 

	 	 

100 – (A + C)
	 







	 	(b)	 	in relation to an Advance in any currency other than sterling:





	 	 	 	 	 
	 

	 	Ex0.01
	 per cent. per annum
	 

	 	300
	 	 






     Where:




	 	A	 	is the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio
requirements.
	 
	 	B	 	is the percentage rate of interest (excluding the Margin and the Associated
Costs and, if the Advance is an Unpaid Sum, the additional rate of interest specified
in paragraph (a) of Clause 12.1 (Default Interest Rate)) payable for the relevant Term
on the Advance.
	 
	 	C	 	is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special Deposits with the
Bank of England.
	 
	 	D	 	is the percentage rate per annum payable by the Bank of England to the Agent on
interest bearing Special Deposits.
	 
	 	E	 	is designed to compensate Lenders for amounts payable under the Fees Rules and
is calculated by the Agent as being the average of the most recent rates of charge
supplied by the Reference Banks to the Agent pursuant to paragraph 6 below and
expressed in pounds per £1,000,000.






	4.	 	For the purposes of this Schedule:






	 	(a)	 	“Eligible Liabilities” and “Special Deposits” have the meanings given to them
from time to time under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;




97









 






	 	(b)	 	“Fees Rules” means the rules on periodic fees contained in the FSA Supervision
Manual or such other law or regulation as may be in force from time to time in respect
of the payment of fees for the acceptance of deposits;
	 
	 	(c)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Rules under the
activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fees Rules but taking into account any applicable discount
rate); and
	 
	 	(d)	 	“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules.






	5.	 	In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A
negative result obtained by subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
	 
	6.	 	If requested by the Agent, each Reference Bank shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Agent, the rate of charge
payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules
in respect of the relevant financial year of the Financial Services Authority (calculated for
this purpose by that Reference Bank as being the average of the Fee Tariffs applicable to that
Reference Bank for that financial year) and expressed in pounds per £1,000,000 of the Tariff
Base of that Reference Bank.
	 
	7.	 	Each Lender shall supply any information required by the Agent for the purpose of calculating
its Additional Cost Rate. In particular, but without limitation, each Lender shall supply the
following information on or prior to the date on which it becomes a Lender:






	 	(a)	 	the jurisdiction of its Facility Office; and
	 
	 	(b)	 	any other information that the Agent may reasonably require for such purpose.






	 	 	Each Lender shall promptly notify the Agent of any change to the information provided by it
pursuant to this paragraph.
	 
	8.	 	The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Reference Bank for the purpose of E above shall be determined by the Agent based upon the
information supplied to it pursuant to paragraphs 6 and 7 above and on the assumption that,
unless a Lender notifies the Agent to the contrary, each Lender’s obligations in relation to
cash ratio deposits and Special Deposits are the same as those of a typical bank from its
jurisdiction of incorporation with a Facility Office in the same jurisdiction as its Facility
Office.
	 
	9.	 	The Agent shall have no liability to any person if such determination results in an
Additional Cost Rate which over or under compensates any Lender and shall be entitled to
assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 6
and 7 above is true and correct in all respects.
	 
	10.	 	The Agent shall distribute the additional amounts received as a result of the Associated Cost
to the Lenders on the basis of the Additional Cost Rate for each Lender based on the
information provided by each Lender and each Reference Bank pursuant to paragraphs 6 and 7
above.
	 
	11.	 	Any determination by the Agent pursuant to this Schedule 7 (Associated Costs Formulae) in
relation to a formula, the Associated Cost, an Additional Cost Rate or any amount payable to a
Lender shall, in the absence of manifest error, be conclusive and binding on all Parties.




98









 






	12.	 	The Agent may from time to time, after consultation with the Company and the Lenders,
determine and notify to all Parties any amendments which are required to be made to this
Schedule in order to comply with any change in law, regulation or any requirements from time
to time imposed by the Bank of England or the Financial Services Authority (or, in any case,
any other authority which replaces all or any of its functions) and any such determination
shall, in the absence of manifest error, be conclusive and binding on all Parties.




99









 











SCHEDULE 8

MATERIAL SUBSIDIARIES




of QIMONDA AG

(as of 31 March 2006)




Qimonda Dresden GmbH & Co. OHG




Qimonda Portugal S.A.




Qimonda North America Corp.




Qimonda Richmond LLC




Qimonda Technologies Suzhou Co. Ltd.




100









 





SCHEDULE 9

PROFESSIONAL MARKET PARTIES



For the purposes of Clauses 17.22 (Representation and Warranty of Lenders) and 27 (Assignability,
Transfer, Substitution) hereof, professional market parties (“PMP”) are professional market parties
as defined in the Dutch 1992 Banking Act Exemption regulation (Vrijstellingsregeling Wtk 1992)
which includes (among others) (i) legal entities which are authorised or regulated to operate in
the financial markets (including credit institutions, investment firms, other authorised or
regulated financial institutions, insurance companies, collective investment schemes and their
management companies, pension funds and their management companies and commodity dealers), (ii)
entities which are not so authorised or regulated but whose corporate purpose is solely to invest
in securities (iii) national and regional governments, central banks and international and
supranational institutions, (iv) legal entities which have at least two of (A) an average of at
least 250 employees during the financial year preceding the date they extend credit to Qimonda B.V.
or acquire an interest or a subparticipation in any loan made to Qimonda B.V. in accordance with
Clause 27 (Assignability, Transfer, Substitution) hereof, (B) a total balance sheet of more than
EUR 43,000,000 or (C) an annual net turnover of more than EUR 50,000,000, as shown in their annual
or consolidated accounts of the financial year preceding the date they extend credit to Qimonda
B.V. or acquire an interest or a subparticipation in any loan made to Qimonda B.V. in accordance
with Clause 27 (Assignability, Transfer, Substitution) hereof, (v) companies and natural persons
which have registered as professional market parties with the Netherlands Authority for the
Financial Markets (Autoriteit Financiële Markten), (vi) enterprises with consolidated total assets
of at least EUR 500,000,000 on their most recent year end balance sheet date, (vii) enterprises (A)
with consolidated equity of at least EUR 10,000,000 on their most recent year end balance sheet
date, and (B) which have been active on the financial markets at least twice a month (on average)
during the last two years preceding the date they extend credit to Qimonda B.V. or acquire an
interest or a subparticipation in any loan made to Qimonda B.V. in accordance with Clause 27
(Assignability, Transfer, Substitution) hereof, and (viii) natural persons (A) with net assets of
at least EUR 10,000,000 as of the end of the calendar year preceding the date they extend credit to
Qimonda B.V. or acquire an interest or a subparticipation in any loan made to Qimonda B.V. in
accordance with Clause 27 (Assignability, Transfer, Substitution) hereof, and (B) who have been
active on the financial markets at least twice a month (on average) during the last two years
preceding the date they extend credit to Qimonda B.V. or acquire an interest or a subparticipation
in any loan made to Qimonda B.V. in accordance with Clause 27 (Assignability, Transfer,
Substitution) hereof.





101











 







SCHEDULE 10

FORM OF ANNUAL PROJECTIONS




Qimonda AG

Consolidated Statements of Operations




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Forecast	 	 	Forecast	 	 	Forecast	 	 	Forecast	 	 	Forecast	 
	 	 	Q1	 	 	Q2	 	 	Q3	 	 	Q4	 	 	 	 
	 	 	FY[___/___]
	 	 	FY[___/___]
	 	 	FY[___/___]	 	 	FY[___/___]	 	 	FY[___/___]	 
	 	 	[date]	 	 	[date]	 	 	[date]	 	 	[date]	 	 	[date]	 
	 	 	€ millions	 	 	€ millions	 	 	€ millions	 	 	€ millions	 	 	€ millions	 
	Total net sales
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cost of goods sold
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gross profit
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	in % of sales
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	R&D expenses
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	in % of sales
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	S, G&A expenses
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	in % of sales
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Other operating income
(expense), net
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Operating (loss) income
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	in % of sales
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Interest income (expense), net
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Other income, net
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(Loss) income fr. continuing
op. before income taxes
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	in % of sales
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Income tax benefit (payment)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Net (loss) income
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	in % of sales
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	EBIT
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	in % of sales
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	EBIT DA
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	in % of sales
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






102









 






Qimonda AG

Consolidated Statements of Cash Flows




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Forecast	 	 	Forecast	 	 	Forecast	 	 	Forecast	 	 	Forecast	 
	 	 	Q1	 	 	Q2	 	 	Q3	 	 	Q4	 	 	 	 
	 	 	FY[___/___]
	 	 	FY[___/___]
	 	 	FY[___/___]	 	 	FY[___/___]	 	 	FY[___/___]	 
	 	 	[date]	 	 	[date]	 	 	[date]	 	 	[date]	 	 	[date]	 
	 	 	€ millions	 	 	€ millions	 	 	€ millions	 	 	€ millions	 	 	€ millions	 
	Net (loss) income
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Net cash provided
by (used in)
operating
activities
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Net cash used in
investing
activities
thereof purchases
of property, plant
and equipment
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Free Cash Flow
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Net cash provided
by financing
activities
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Net increase
(decrease) in cash
and cash
equivalents
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cash and cash
equivalents at
beginning of period
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cash and cash
equivalents at end
of period
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






103









 






Qimonda AG




Consolidated Balance Sheet




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Forecast	 	 	Forecast	 	 	Forecast	 	 	Forecast	 
	 	 	Q1	 	 	Q2	 	 	Q3	 	 	Q4	 
	 	 	FY[___/___]
	 	 	FY[___/___]
	 	 	FY[___/___]
	 	 	FY[___/___]
	 
	 	 	[date]	 	 	[date]	 	 	[date]	 	 	[date]	 
	 	 	€ millions	 	 	€ millions	 	 	€ millions	 	 	€ millions	 
	Cash and cash equivalents/Marketable Securities
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Accounts receivables, net

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
Inventories
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Deferred income taxes-current
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Other current assets
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total current assets
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Property, plant and equipment, net
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Other long-term investments, net
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Restricted cash
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Deferred income taxes-non current
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Other assets
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total non current assets
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total assets
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Short-term debt and current maturities
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Accounts payable
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Accrued liabilities
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Deferred income taxes-current
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Other current liabilities
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total current liabilities
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Long-term debt, excluding current maturities
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Deferred income taxes-non current
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Other non-current liabilities
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Total non current liabilities
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total liabilities
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total shareholders’ equity
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total liabilities and shareholders’ equity
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 






104









 








SCHEDULE 11

SUBORDINATION



The claims
of the subordinated creditors of the
[Company]/[relevant member of the Group] for payment of principal or interest or any
other amounts arising under the subordinated Financial Indebtedness shall be subordinated to the
claims of all other creditors of the [Company]/[relevant member of the Group]. Such subordination shall mean that in any event of
liquidation, bankruptcy or other proceedings to avoid bankruptcy any payment which might become due
under the subordinated Financial Indebtedness shall be made only after all claims against the
[Company]/[relevant member of the Group] have been satisfied. Any right to set-off claims arising from the subordinated Financial
Indebtedness in such insolvency situation against claims of the [Company]/[relevant member of the Group] shall be excluded. The
subordinated Financial Indebtedness is an unsecured obligation of the [Company]/[relevant member of the Group] ranking at least pari
passu with all other present and future unsecured and subordinated obligations of the [Company]/[relevant member of the Group], save
for such obligations as may be preferred by applicable law.



The subordination shall be subject to the condition subsequent (auflösende Bedingung) of the
exercise of the cancellation, repayment in full or termination of a €250,000,000 revolving
credit facility granted by certain lenders in favour of the Company
on [l] July 2006.





105