Exhibit 10.50(L-3)
Redacted Version
SECOND AMENDMENT TO AMD SAXONIA WAFER PURCHASE AGREEMENT
*** Confidential treatment has been requested as to certain portions of this
agreement. Such omitted confidential information has been designated by an
asterisk and has been filed separately with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended, and the Commission's rules and regulations promulgated under the
Freedom of Information Act, pursuant to a request for confidential treatment.
This Second Amendment to AMD Saxonia Wafer Purchase Agreement (this
"Second Amendment"), dated as of February 20, 2001 is between:
(1) AMD Saxony Holding GmbH, a Gesellschaft mit beschrankter Haftung organized
and existing under the laws of Germany and registered in Dresden, Germany
("AMD Holding");
(2) AMD Saxony Manufacturing GmbH, a Gesellschaft mit beschrankter Haftung
organized and existing under the laws of Germany and registered in Dresden,
Germany ("AMD Saxonia");
RECITALS
WHEREAS, AMD Saxonia is a wholly-owned Subsidiary (such and other
capitalized terms having the meaning assigned thereto in the AMD Saxonia Wafer
Purchase Agreement (as defined below)) of AMD Holding, which in turn is a
wholly-owned Subsidiary of Advanced Micro Devices, Inc., a corporation organized
and existing under the laws of the State of Delaware, United States of America
("AMD Inc.");
WHEREAS, AMD Inc., AMD Holding and AMD Saxonia are involved in a
project pursuant to which AMD Saxonia is constructing, and owns and operates
inter alia the Plant located in Dresden, Germany, to manufacture Wafers using
high-volume semiconductor wafer fabrication processes;
WHEREAS, AMD Inc. and AMD Holding are party to the AMD Holding Wafer
Purchase Agreement (as amended, supplemented or otherwise modified from time to
time, the "AMD Holding Wafer Purchase Agreement"), pursuant to which, among
other things, AMD Inc. has agreed to purchase from AMD Holding, and AMD Holding
has agreed to supply on an exclusive basis to AMD Inc., all Wafers as are
ordered from time to time by AMD Inc. from AMD Holding, in each case on the
terms and conditions of the AMD Holding Wafer Purchase Agreement;
WHEREAS, AMD Holding and AMD Saxonia are party to that certain AMD
Saxonia Wafer Purchase Agreement dated as of March 11, 1997, as amended by the
First Amendment to AMD Saxonia Wafer Purchase Agreement dated as of February 8,
1998 (as so amended, the "AMD Saxonia Wafer Purchase Agreement") pursuant to
which AMD Holding has the exclusive right to purchase Wafers from AMD Saxonia in
order to enable AMD Holding to fulfill its obligations under the AMD Holding
Wafer Purchase Agreement, and AMD Saxonia has agreed on such exclusive basis, to
manufacture and sell Wafers to AMD Holding;
WHEREAS, the parties now desire to amend the AMD Saxonia Wafer
Purchase Agreement to revise certain pricing and cost reimbursement obligations
and to make certain other amendments, all on the terms and conditions more
particularly set forth in this Second Amendment.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE I
Amendments
Section 1.1 The AMD Saxonia Wafer Purchase Agreement shall be amended and
restated in the form set out in Schedule A to this Second Amendment.
ARTICLE II
Representations and Warranties
Section 2.1 Each of AMD Holding and AMD Saxonia, severally and for itself
alone, hereby represents and warrants to the other as follows:
(a) Organization; Corporate Power. It is duly incorporated and validly
existing under the laws of the jurisdiction of its organization, and
has all necessary power and authority to execute and deliver this
Second Amendment and to consummate the transactions contemplated by
the AMD Saxonia Wafer Purchase Agreement as amended by this Second
Amendment;
(b) Corporate Authority; No Conflict. The execution and delivery by it of
this Second Amendment, and the performance by it of its obligations
under the AMD Saxonia Wafer Purchase Agreement as amended by this
Second Amendment have been duly authorized by all necessary corporate
action (including any necessary shareholder action) on its part, and
do not and will not (i) violate any provision of any law, rule,
regulation, order, writ,
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judgment, injunction, decree, determination or award presently in
effect having applicability to it, or of its charter or by-laws or
(ii) result in a breach of, result in a mandatory prepayment or
acceleration of indebtedness evidenced by or secured by, or constitute
a default under, any indenture or loan or credit agreement, or any
other agreement or instrument to which it is a party or by which it or
its properties may be bound, or require the creation or imposition of
any encumbrance of any nature upon or with respect to any of the
properties now owned or hereafter acquired by it; and
(c) Valid and Binding Obligations. The AMD Saxonia Wafer Purchase
Agreement, as amended by this Second Amendment, constitutes its legal,
valid and binding obligation, enforceable against it in accordance
with its terms subject, however, to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and, as to enforceability, by general equitable principles.
ARTICLE III
Miscellaneous
Section 3.1 Miscellaneous.
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(a) This Second Amendment is limited as specified and, except as
specifically set forth herein, shall not constitute a modification,
amendment or waiver of any other provision of the AMD Saxonia Wafer
Purchase Agreement or any provision of any other Operative Document.
Except as specifically amended by this Second Amendment, the AMD
Saxonia Wafer Purchase Agreement shall remain in full force and effect
and is hereby ratified and confirmed.
(b) This Second Amendment shall be an Operative Document under and for
purposes of the Sponsors' Support Agreement.
(c) This Second Amendment shall be governed by, and shall be construed in
accordance with, the internal laws of the State of California, without
regard to its conflicts of laws principles.
(d) This Second Amendment is in the English language, which language shall
be controlling in all respects.
(e) This Second Amendment may be executed in one or more counterparts and
by different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed an original but all
such counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple counterparts
and attached
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to a single counterpart so that all signature pages are physically
attached to the same document.
[remainder of page intentionally left blank]
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IN WITNESS OF THE FOREGOING, AMD Holding and AMD Saxonia have caused this
Second Amendment to be executed by their authorized representatives as of
the date first written above.
AMD SAXONY HOLDING GMBH
By: /s/ Thomas M. McCoy
----------------------
Its: Managing Director
AMD SAXONY MANUFACTURING GMBH
By: /s/ James Doran
-----------------------
Its: Managing Director
S-1
Schedule A
----------
Amended and Restated
AMD Saxonia Wafer Purchase Agreement.
Schedule A-1
Schedule A
Amended and Restated
AMD SAXONIA WAFER PURCHASE AGREEMENT
as amended by the First Amendment
to AMD Saxonia Wafer Purchase Agreement
dated as of February 6,1998
and by the Second Amendment to
AMD Saxonia Wafer Purchase Agreement
dated as of February 20, 2001
between
AMD SAXONY HOLDING GMBH
and
AMD SAXONY MANUFACTURING GMBH
AMD SAXONIA WAFER PURCHASE AGREEMENT (as amended)
This AMD Saxonia Wafer Purchase Agreement (as amended, supplemented or
otherwise modified from time to time, this "Agreement") dated as of March 11,
1997 is between:-
(1) AMD Saxony Holding GmbH, a Gesellschaft mit beschrankter Haftung
organized and existing under the laws of Germany and registered in
Dresden, Germany ("AMD Holding"); and
(2) AMD Saxony Manufacturing GmbH, a Gesellschaft mit beschrankter
Haftung organized and existing under the laws of Germany and
registered in Dresden, Germany ("AMD Saxonia").
RECITALS
WHEREAS, AMD Saxonia is a wholly-owned Subsidiary (such and other
capitalized terms having the meaning assigned thereto in Section 1.01) of AMD
Holding, which in turn is a wholly-owned Subsidiary of Advanced Micro Devices,
Inc., a corporation organized and existing under the laws of the State of
Delaware, United States of America ("AMD Inc.");
WHEREAS, AMD Inc., AMD Holding and AMD Saxonia are currently involved in
the initial planning stages of a project pursuant to which AMD Saxonia will
construct, own and operate inter alia the Plant to be located in or near
Dresden, Germany, to manufacture Wafers using high-volume semiconductor wafer
fabrication processes;
WHEREAS, concurrently herewith, AMD Inc. and AMD Holding are entering into
the AMD Holding Wafer Purchase Agreement (as amended, supplemented or otherwise
modified from time to time, the "AMD Holding Wafer Purchase Agreement"),
pursuant to which, among other things, AMD Inc. will agree to purchase from AMD
Holding, and AMD Holding will agree to supply on an exclusive basis to AMD Inc.,
all Wafers as are ordered from time to time by AMD Inc. from AMD Holding, in
each case on the terms and conditions of the AMD Holding Wafer Purchase
Agreement;
WHEREAS, on the terms and conditions of this Agreement, including the
payment terms of Article III, AMD Holding wishes the exclusive right to purchase
Wafers from AMD Saxonia in order to enable AMD Holding to fulfill its
obligations under the AMD Holding Wafer Purchase Agreement, and AMD Saxonia is
willing, on such exclusive basis, to manufacture and sell Wafers to AMD Holding,
all on the terms and conditions of this Agreement: and
WHEREAS, concurrently herewith, (i) AMD Inc. and AMD Holding are entering
into the AMD Holding Research Agreement, (ii) AMD Inc., AMD Holding and AMD
Saxonia are entering into the License Agreement and the amendment and
restatement of the Management Service Agreement referred to in the definition
thereof, and (iii) AMD Holding and AMD
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Saxonia are entering into the AMD Saxonia Research Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
Interpretation
--------------
Section 1.01. Definitions. The following terms shall, unless the context
-----------
requires otherwise, have the respective meanings assigned to them as follows:
(1) "AAA" has the meaning assigned to it in Section 7.10;
(2) "Actual Volume" means, with respect to any Month, the actual number of
Wafers Shipped by AMD Saxonia to AMD Holding during that Month;
(3) "Advance Payment Adjustment Amount" has the meaning assigned to it in
Section 3.05
(4) "Affiliate" means, with respect to any Person, a Person which,
directly or indirectly, controls, is controlled by, or is under common
control with, such other Person; and, for purposes of this definition,
the concept of "control," with respect to any Person, signifies the
possession of the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, the possession of voting rights, by contract, or
otherwise; provided that FASL shall be deemed to be an Affiliate of
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AMD Inc. for purposes of this Agreement;
(5) "Agent" means Dresdner Bank Luxembourg S.A., as Agent under the Loan
Agreement, including any successor to Dresdner Bank Luxembourg S.A. in
that capacity;
(6) "Agreement" has the meaning assigned to it in the introduction to this
Agreement;
(7) "AMD Holding" has the meaning assigned to it in the introduction to
this Agreement;
(8) "AMD Holding Research Agreement" means that certain AMD Holding
Research, Design and' Development Agreement entered into concurrently
herewith between AMD Inc. and AMD Holding, as such agreement may be
amended, supplemented or otherwise modified from time to time;
(9) "AMD Holding Wafer Purchase Agreement" has the meaning assigned to it
in the Recitals to this Agreement;
(10) "AMD Inc." has the meaning assigned to it in the Recitals to this
Agreement;
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(11) "AMD Saxonia" has the meaning assigned to it in the introduction to
this Agreement;
(12) "AMD Saxonia Research Agreement" means that certain AMD Saxonia
Research, Design and Development Agreement entered into concurrently
herewith between AMD Holding and AMD Saxonia, as such agreement may be
amended, supplemented or otherwise modified from time to time;
(13) "Applicable Percentage" has the meaning assigned to it in Section
3.03(b);
(14) "Banks" means the banks from time to time party to the Loan Agreement;
(15) "Banks' Auditor" shall have the meaning assigned to it in the Loan
Agreement;
(16) "Budgeted Start-up Costs" means DM *** which is the amount of
aggregate Start-up Costs as determined in the Management Plan;
(17) "Business Day" means any day of the year on which banks are open for
the purpose of conducting a commercial banking business in each of
Frankfurt, Dresden, San Francisco, and London, and when used with
reference to payment in any currency, on which dealings are carried
out in the London Interbank Market with respect to such currency;
(18) "Completion Date" means the date on which Completion (as defined in
the Sponsors' Support Agreement) takes place;
(19) "Design Center" means the research, design and development facility,
owned and operated by AMD Saxonia and associated with the Plant, to be
used for the purpose of designing and developing a broad spectrum of
state-of-the-art and other digital components such as micro-processors
and circuits for the telecommunications and multi-media sectors, and
improvements thereof;
(20) "Dispute" has the meaning assigned to it in Section 7.10;
(21) "Dollars" means the lawful money of the United States of America from
time to time;
(22) "DM" means the lawful currency from time to time of Germany;
(23) "Effective Date" means the earlier of (i) December 28, 1998, which day
is the first day of AMD Saxonia's first Fiscal Quarter of its Fiscal
Year 1999, or (ii) the first day of AMD Saxonia's Fiscal Quarter which
commences immediately following the first commercial shipment of
Products;
- -------------------------
*** CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
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(24) "Excess Start-up Costs" means the excess, if any, of Start-up Costs
over Budgeted Start-up Costs;
(25) "FASL" means Fujitsu AMD Semiconductor Limited, a joint venture
organized under the laws of Japan between AMD Inc. and Fujitsu
Limited;
(26) "Fiscal Month" means each monthly fiscal accounting period of AMD
Saxonia, ending on or about the last day of each calendar month and
corresponding with the fiscal accounting period of AMD Inc.;
(27) "Fiscal Quarter" means each quarterly fiscal accounting period of AMD
Saxonia, ending on or about the last day of March, June, September or
the last Sunday in December and corresponding with the fiscal
accounting period of AMD Inc.;
(28) "Fiscal Year" means each annual fiscal period of AMD Saxonia, ending
on the last Sunday in December;
(29) "Force Majeure" means with respect to AMD Saxonia or AMD Holding, as
the case may be, an event which is not within the reasonable control
of the Person seeking to rely on the existence of Force Majeure, where
the adverse effect of such event on such Person's compliance with its
obligations under this Agreement is not preventable by such Person
using all reasonable care and diligence. Such events may include,
without limitation, the following: acts of war (whether declared or
undeclared), invasion, armed conflict, acts of one or more enemy of
the United States of America, Germany or any other country or
jurisdiction; blockade or embargo, revolution, riot, bombs,
insurrection or other civil disturbance, sabotage, terrorism or the
threat of any of the foregoing, nuclear explosion, radioactive or
chemical contamination or ionizing radiation, strikes, lockouts,
industrial action or labor disputes, any effect of the natural
elements including without limitation lightning, fire, earthquake,
flood, strike and other unusual or extreme adverse weather or
environmental conditions or actions of the elements, epidemic or
plague, loss of or damage to the Plant and/or machinery, equipment or
materials at, for or in transit to the Plant, acts of God and any
events or circumstances analogous to any of the above;
(30) "German GAAP" means accounting principles and practices generally
accepted in Germany, consistently applied throughout the periods
involved;
(31) "Germany" means the Federal Republic of Germany;
(32) "Governmental Authority" means any German domestic or foreign
government, court or governmental body, department, agency,
commission, authority or instrumentality;
(33) "Improvements" means any development, enhancement, improvements,
upgrades, modifications and updates (including error corrections),
translations and derivative works;
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(34) "Initial Termination Date" has the meaning assigned to it in Section
6.01(a);
(35) "Intellectual Property" has the meaning assigned to it in Section
4.01;
(36) "Know-how" means know-how, show-how, methods, techniques, procedures,
formulations, formulae, assembly, installation, operating and quality
control procedures and manuals, quality control standards, technical
information, technical and product specifications, equipment
requirements, writings, plans, drawings, designs, layouts, data,
equipment descriptions, masks, mask works, systems, toolings,
software, data, copyrightable material, trade secrets, inventions
(whether patentable or not), improvements, developments, discoveries
and any other information or intellectual property rights which may
not lie within, may only partially lie within or may lie completely
within the domain of public knowledge;
(37) "Law" means all present and future laws, regulations, ordinances,
permits or other requirements having legal effect;
(38) "License Agreement" means the License Agreement among AMD Inc., AMD
Holding and AMD Saxonia entered into concurrently herewith, as such
License Agreement may be amended, supplemented or otherwise modified
from time to time;
(39) "Loan Agreement" means the Loan Agreement, dated March 11, 1997 among
AMD Saxonia, the Banks, the Agent, the Security Agent and the Paying
Agent, as such Loan Agreement may be amended, supplemented or
otherwise modified from time to time;
(40) "Loan Agreement Termination Date" means the first day on which (i) all
Secured Obligations (under, and as defined in, the Sponsors' Support
Agreement) have been paid in full, and (ii) the Banks have no
commitments under the Loan Agreement);
(41) "Management Plan" means that certain Management Plan of AMD Saxonia
dated February 1997;
(42) "Management Service Agreement" means, together, that certain
Management Service Agreement dated as of January 1, 1996 and that
certain letter agreement dated April 9, 1996 between AMD Inc. and AMD
Saxonia, as amended and restated among AMD Inc., AMD Holding and AMD
Saxonia as of the date hereof (a copy of which amendment and
restatement is attached hereto as Exhibit III), and as such amended
and restated agreement may be further amended, supplemented or
otherwise modified from time to time;
(43) "Month" means any Fiscal Month of AMD Saxonia commencing on or after
the Effective Date; provided that no Month shall extend beyond, and
the final Month shall end on, the Termination Date;
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(44) "New York Convention" has the meaning assigned to it in Section 7.10;
(45) "Paying Agent" means Dresdner Bank Luxembourg S.A., as paying agent
under the Loan Agreement, including any successor to Dresdner Bank
Luxembourg S.A. in that capacity;
(46) "Period" means any Fiscal Quarter of AMD Saxonia commencing on or
after the Effective Date; provided that no Period shall extend beyond,
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and the final Period shall end on, the Termination Date;
(47) "Person" means an individual, partnership, joint venture, trustee,
trust, corporation, unincorporated association or other entity, or a
government, state or agency or political subdivision thereof;
(48) "Plant" means the advanced production facility to be constructed,
owned and operated by AMD Saxonia in or near Dresden, Germany to
manufacture Wafers using high-volume semiconductor wafer fabrication
processes;
(49) "Product" means a Wafer containing identical individual integrated
circuits meeting Specifications that have been supplied by or on
behalf of AMD Holding to AMD Saxonia in accordance with Sections 2.01
and 4.01(a);
(50) "Production Problems" means any circumstances other than those
resulting from Force Majeure pertaining to AMD Saxonia, which prevent
or delay the manufacture or shipment of a Product by AMD Saxonia,
including any temporary or permanent inability to apply or continue to
apply Intellectual Property in the manufacture of such Product;
(51) "Qualified Personnel" has the meaning assigned to it in Section 4.02;
(52) "Security Agent" means Dresdner Bank AG, as security agent under the
Loan Agreement, including any successor to Dresdner Bank AG in such
capacity;
(53) "Selling Price Per Wafer" has the meaning assigned to it in Section
3.03(b);
(54) "Shipped" means, with respect to any Products and any Month, Products
delivered by AMD Saxonia F.O.B. Dresden, Germany pursuant to Section
3.09 during that Month in accordance with this Agreement;
(55) "Specifications" means, with respect to a Product, the tooling, masks,
mask-works, specifications, blueprints, drawings, assembly
instructions and other instructions required for the manufacture of
that Product;
(56) "Sponsors' Support Agreement" means the Sponsors' Support Agreement
entered into concurrently herewith among AMD Inc., AMD Holding, the
Agent, and the Security Agent, as such agreement may be amended,
supplemented or otherwise modified from time to time;
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(57) "Start-up Cost Adjustment Certification" means certification in the
form of a certificate substantially in the form of Exhibit I to this
Agreement;
(58) "Start-up Costs" means the aggregate amount of Total Costs incurred by
AMD Saxonia prior to the Effective Date;
(59) "Start-up Cost Savings" means the excess, if any, of Budgeted Start-up
Costs over Start-up Costs;
(60) "Subsidiary" means, with respect to any Person, any other Person of
which more than 50% of the total voting power of shares of stock or
other ownership interest entitled to vote in the election of
directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof;
(61) "Surcharge" has the meaning assigned to it in Section 3.07;
(62) "Technical Advisor" has the meaning assigned to it in the Sponsors'
Support Agreement;
(63) "Technical Documentation" for any Know-how means manuals and other
documentation in which such Know-how is recorded and all
specifications, programs, software, formulae, drawings, sketches,
plans, blueprints, design materials, manuals and other technical or
organizational documentation for such Know-how;
(64) "Termination Date" has the meaning assigned to it in Section 6.01;
(65) "Total Costs" means, for any Month, all costs incurred, paid or
accrued by AMD Saxonia and included for that Month in the "Results
from ordinary activities" (Ergebnis der gewohnlichen
Geschaftstatigkeit) in accordance with German GAAP (i.e., (S) 275 of
the German Commercial Code (Handelsgesetzbuch), an English translation
of which is attached as Exhibit II to this Agreement) plus
extraordinary expenses plus all taxes other than corporation tax
(Korperschaftsteuer), solidarity levy (Solidaritatszuschlag) and
value added tax (Umsatzsteuer), all as shown in the statutory income
statement of AMD Saxonia; provided that
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(a) German GAAP, solely for purposes of this definition, shall be
applied according to the accounting options specified under items
(i) through (x) of this definition below regardless of whether
German GAAP is so applied in the statutory income statement of
AMD Saxonia;
(b) Total Costs shall be reduced by any revenue or income (other than
revenue under this Agreement and the AMD Saxonia Research
Agreement) accrued or received by AMD Saxonia, which revenue or
income shall include any interest accrued or received by AMD
Saxonia including
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income earned on deposits and investments, as well as net
payments received in respect of hedging transactions;
(c) Total Costs shall not include any AMD Saxonia costs reimbursed by
AMD Inc. pursuant to Article 11 of the AMD Saxonia Research
Agreement;
(d) Total Costs shall include all interest expense paid or accrued by
AMD Saxonia, including without limitation all interest expense
relating to loans to AMD Saxonia from third parties and from
Affiliates of AMD Saxonia.
(e) Without limiting the generality of clause (d) of this definition,
interest expense shall include interest at the rate of 7% per
annum (calculated on the basis of actual days and months and
compounded monthly) on each Sponsors' Loan and accrued but unpaid
interest at the rate of 1% over the Applicable Rate on each
Revolving Loan from the date made, irrespective of whether such
Sponsors' Loan is made as a loan or as an equity contribution,
whether such Sponsors' Loan or such Revolving Loan bears interest
at such rate, whether such interest has been waived or
capitalized or whether the obligation to pay such interest has
been deferred or subordinated. The expressions Applicable Rate,
Revolving Loan and Sponsors' Loan shall each have the meaning
ascribed thereto in the Sponsors' Support Agreement;
(f) Total Costs shall be reduced by the amount of any grants,
allowances, interest subsidies, and expense reimbursements
received by AMD Saxonia from the Republic of Germany, the
Sachsiche Aufbaubank, the Free State of Saxony, the City of
Dresden, or from any other Governmental Authority, and such
reduction shall be made in the manner specified in (iv) or (v)
below (as applicable);
(g) Total Costs in a Month in which amounts are paid by AMD Holding
to AMD Saxonia pursuant to Section 3.07 below shall be reduced by
such amount; provided that such Total Costs shall not be reduced
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by the amount of the Surcharge;
(h) Total Costs for any Month after the Effective Date shall be
increased by the amount of the Total Costs in the immediately
preceding Month. (if any) if no Products were shipped during such
preceding Month (and the parties hereto acknowledge that the
amount by which the Total Costs shall be increased pursuant to
this clause (h) therefore corresponds to the aggregate Total
Costs for all immediately preceding consecutive Months in which
no Products were Shipped, in each case without giving effect to
this clause (h));
(i) For the avoidance of doubt, Total Costs for each Month shall
neither be (a) decreased for that Month by the amount by which
the inventory at the end
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of that Month exceeds the amount of the inventory at the end of
the immediately preceding Month, nor (b) increased for that Month
by the amount by which the inventory at the end of that Month is
less than the amount of the inventory at the end of the
immediately preceding Month.
With reference to clause (a) of this definition above,
(i) Start-up Costs will not be capitalized;
(ii) depreciation of fixed assets will be applied on a straight-
line basis on the assumption of useful lives of 25 years
for buildings (shell), ten years for other non-movables
(i.e., installations (Betriebsvorrichtungen) including,
without limitation, the "clean room") and five years for
movables (machinery, tools and other equipment) (these
depreciation schedules may be adjusted due to changes in
the official depreciation schedules);
(iii) exceptional depreciation in order to state fixed assets at
a lower value, and reversals of such depreciation in the
case that the reasons for an exceptional depreciation no
longer exist, will be included;
(iv) revenues from investment grants (Investitionszuschuesse)
and allowances (Investitionszulagen) will be allocated
chronologically to the investments in buildings, machinery,
tools and other equipment to which they relate for the AMD
Saxonia Fiscal Years 1996 to 2005. They will be amortized
parallel to the depreciation of the corresponding fixed
assets and so will reduce these depreciation costs;
(v) Without limiting the generality of clause (a) of this
definition, such amortization shall occur regardless of
whether AMD Saxonia elects to treat some or all of such
grants and allowances as income in the year received for
purposes of AMD Saxonia's statutory financial statements;
(vi) All grants, allowances, interest subsidies, or expense
reimbursements described in clause (f) of this definition
but which are not investment grants
(Investitionszuschuesse) or allowances
(Investitionszulagen) will reduce Total Costs in the Month
received by the full amount received in that Month;
(vii) write-downs on current assets due to obsoleteness or
solvency reasons will be included;
(viii) inventory will be valued at the lower valuation limit
according to German Income Tax Regulation (R 33
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Einkommensteuerrichtlinien) in effect on the date of this
Agreement;
(ix) (viii) if there is a fiscal unit (Organschaft) implemented
for trade tax purposes, the portion of trade taxes
(Gewerbeertragsteuer) paid by AMD Holding and attributable
to the trading profit and capital of AMD Saxonia will be
included;
(x) deferred taxes (latente Steuern specified in (S) 274 of the
German Commercial Code (Handelsgesetzbuch)) will not be
included; and
(xi) accruals for repairs and maintenance expenses, necessary
demolition and/or dismantlement, environmental obligations
and other future expenses (so-called
Aufwandsruckstellungen, (S) 249 Section 2 of the German
Commercial Code (Handelsgesetzbuch)) will be included to
the extent they are made in the statutory financial
statements of AMD Saxonia;
(66) "Wafer" means a silicon wafer onto which many identical individual
integrated circuits have been etched or otherwise imprinted; and
(67) "Wafer Fabrication Plant" means (a) the Plant, (b) for so long as such
plant is owned or controlled (including under lease) by AMD Inc. or
one or more of its Subsidiaries, AMD Inc.'s plant located in Austin,
Texas and known as "Fab 25", and (c) any other high volume
semiconductor wafer fabrication plant constructed or otherwise
acquired by AMD Inc. and/or one or more of its Subsidiaries after the
date hereof which produces Wafers containing Microsoft-compatible
general purpose microprocessors.
Section 1.02. Construction of Certain Terms.
-----------------------------
(a) Unless otherwise specifically provided, (i) references to the singular
shall include the plural and vice versa, and references by way of masculine
pronoun or adjective shall include references by way of the feminine; (ii)
references to Articles, Sections and Subsections shall be to Articles, Sections
and Subsections of this Agreement; (iii) accounting terms are to be construed in
accordance with German GAAP; (iv) save where expressly stated to the contrary,
all references to money, costs and payments in this Agreement are to money,
costs and payments in DM; and (v) references to days in this Agreement shall be
to calendar days.
(b) The index to and headings in this Agreement are inserted for
convenience only and are to be ignored in construing this Agreement.
ARTICLE II
Manufacture of Products
Section 2.01. Manufacture by AMD Saxonia of Products for Sale to AMD
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Holding.
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(a) On the terms and subject to the conditions of this Agreement, AMD
Saxonia hereby agrees to manufacture and sell Products to AMD Holding; provided
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that prior to the Completion Date AMD Saxonia (i) shall be required only to use
its reasonable efforts to manufacture and sell such Products in accordance with
the requirements of this sentence, and (ii) shall not be required to take any
steps hereunder to manufacture and sell such Products to the extent such steps
at such time could reasonably be expected to delay Completion (as defined in the
Loan Agreement) of the Plant. AMD Saxonia further agrees that, during the term
of this Agreement, unless AMD Inc., AMD Holding and, prior to the Loan Agreement
Termination Date, the Agent, otherwise consent thereto, it shall not, directly
or indirectly, (i) market, distribute or sell any Products or any other goods or
services to any Person other than AMD Holding, AMD Inc. or one or more of AMD
Inc.'s other Subsidiaries under any circumstances, or (ii) engage in any
activities other than (v) construction of the Plant and the Design Center, (w)
provision of the services contemplated by the AMD Saxonia Research Agreement,
(x) manufacture and sale of Products to be Shipped pursuant to this Agreement
and (y) activities reasonably incidental to any of the foregoing.
(b) On the terms and subject to the conditions of this Agreement, AMD
Holding hereby agrees to purchase from AMD Saxonia and pay for the Products
Shipped to it pursuant to the terms of this Agreement.
(c) AMD Holding shall from time to time provide, or shall arrange for AMD
Inc. to provide, to AMD Saxonia technical assistance as required in Article IV,
including disclosure to AMD Saxonia of such of the Know-how and Specifications
of AMD Inc. and its Subsidiaries, or which AMD Inc. or its Subsidiaries have the
right to use, as is necessary or, in the reasonable opinion of AMD Saxonia,
desirable, to enable AMD Saxonia to manufacture Products on a timely basis, in
accordance with the Specifications for the relevant Product, as required by AMD
Inc. under the AMD Holding Wafer Purchase Agreement. Any disclosure of Know-how
and Specifications (including without limitation by way of technical assistance
pursuant to Article IV) to AMD Saxonia by or on behalf of AMD Holding (including
without limitation any such disclosure arranged by AMD Holding as contemplated
hereby) shall be subject to the License Agreement.
(d) AMD Saxonia shall, as soon as is reasonably practicable (i) after the
disclosure to it of the Know-how and Specifications for a Product as
contemplated in Subsection 2.01 (c) and Article IV, and (ii) without at any time
prior to the Completion Date being required to take any steps hereunder to
manufacture and sell such Products to the extent such steps at such time could
reasonably be expected to delay Completion (as defined in the Loan Agreement) of
the Plant, submit to AMD Holding (or as directed by AMD Holding) for approval
pre-production samples of the Product. AMD Holding shall communicate its
approval or disapproval of any such samples no later than two weeks after such
samples are submitted to AMD Holding for such approval (and shall be deemed to
have approved such samples under this Section 2.01 (d) for all purposes of this
Agreement if it has not communicated any such disapproval within such two week
period). AMD Saxonia shall not commence manufacture of such Product until AMD
Holding has approved or is deemed to have approved the samples. Approval shall
not be unreasonably withheld or delayed by AMD Holding (each of the parties
hereto agrees that, for this purpose, disapproval by AMD Holding because of any
reasonable disapproval by AMD Inc. of such samples pursuant to the AMD Holding
Wafer Purchase Agreement, shall not be deemed
11
unreasonable) and, once given, shall constitute irrevocable confirmation that
the Products manufactured in conformity with the samples (or differing only
within normal silicon computer chip industry limits) will comply with the
Specifications and will meet the requirements of quality specified in Section
2.03, except in respect of defects in such samples or future production which
are not capable of being revealed on reasonable inspection by AMD Holding.
(e) Each of AMD Holding and AMD Saxonia shall nominate one or more senior
managers or representatives (which representatives, in the case of AMD Holding,
may include or be senior managers of AMD Inc.) who shall be responsible for
liaising in connection with the manufacture and development of the Products.
Section 2.02. Compliance with Laws and Required Permits.
-----------------------------------------
(a) AMD Saxonia shall, at its cost and expense, use commercially
reasonable efforts to (i) comply with all applicable Laws relating to the
manufacture and sale of the Products, and (ii) obtain all requisite consents,
authorizations, permits and approvals for the manufacturing and sale to AMD
Holding and the sale by AMD Holding to AMD Inc. of the Products from each
Governmental Authority having jurisdiction over the manufacture and sale of the
Products by AMD Saxonia and AMD Holding; provided, however, that AMD Saxonia
shall not be responsible for obtaining any consents, authorizations, permits or
approvals in connection with the import of Products into any territory outside
Germany.
Section 2.03. Quantity of Products; Inspection and Rejection; Replacement
-----------------------------------------------------------
Products. Without prejudice to AMD Holding's obligation to make payment for
- --------
Products Shipped pursuant to Section 3.10:
(a) AMD Saxonia shall use all reasonable efforts to ensure that each
Product Shipped meets the Specifications for that Product. In order to assist
AMD Saxonia in such efforts and for the purpose of assuring to AMD Holding the
quality of the Products required under this Agreement, AMD Saxonia shall permit
the duly authorized representatives of AMD Holding and/or AMD Inc., at any time
during normal working hours and on reasonable notice, to inspect any premises of
AMD Saxonia, and shall use all reasonable efforts to permit such
representatives, at such time and on such notice, to inspect any premises of any
third party where any of the Products, or any labeling or packaging for them,
are manufactured or stored by or for AMD Saxonia.
(b) AMD Holding shall promptly notify AMD Saxonia in writing should the
quality of the Products Shipped vary materially from the typical quality of the
four previous shipments or, in the case of the first four shipments, from the
quality of the previous shipments. In such event, AMD Saxonia shall use its
reasonable commercial efforts to restore the quality of the Products delivered
hereunder to again meet such typical quality as soon as reasonably possible.
ARTICLE III
Purchase Price and Delivery of Products
---------------------------------------
Section 3.01. Descriptive Overview of Product Pricing. Without derogating
---------------------------------------
from Sections 3.02 through 3.12 hereunder:
12
It is the intention of the parties hereto that from and after the Effective
Date AMD Holding shall purchase Products which it orders from AMD Saxonia and
are Shipped by AMD Saxonia in accordance with the requirements of this
Agreement. The purchase price for the Products will be set at a price per Wafer
equal to the Selling Price Per Wafer, which will be determined on a "cost-plus"
basis for any Month.
For all Products Shipped during any Month, AMD Holding shall make payments
to AMD Saxonia based on the Selling Price Per Wafer. In the event no shipments
of Products are made during any Month following the Effective Date, AMD Holding
shall at the end of such Month make advance payments to AMD Saxonia, against
Products to be Shipped during the following Month, in an amount corresponding to
the Applicable Percentage (as defined in Section 3.03(b)) of AMD Saxonia's Total
Costs incurred in that Month. Such advance payments shall be included as Total
Costs in the next Month in which Products are Shipped.
Within 25 days after the end of each Month (other than one in which no
Products are Shipped), AMD Saxonia shall determine the Selling Price Per Wafer
for such Month on the basis of its Total Costs actually incurred during that
Month and the Applicable Percentage in accordance with Section 3.03. The
parties acknowledge that this pricing mechanism may have the result of dictating
a high price per Wafer for any Month in which only relatively few Wafers are
Shipped and that after the Effective Date it will result in a full cost
reimbursement during each year (except for the first twelve Months after the
Effective Date during which the Applicable Percentage is 75%).
In the event Start-up Cost Savings are realized or Excess Start-up Costs
are incurred prior to the Effective Date, these will be compensated in eight
equal quarterly-payments after the Effective Date pursuant to Section 3.04.
Section 3.02. Intentionally Deleted.
---------------------
Section 3.03. Definition of Selling Price Per Wafer.
-------------------------------------
(a) Promptly, but in any event not later than 25 days after the end of
each Month, the Selling Price Per Wafer for that Month shall be calculated in
accordance with the formula contained in Section 3.03(b). Such calculation shall
be based on the Total Costs actually incurred during such Month and the Actual
Volume for such Month.
(b) For any Month the "Selling Price Per Wafer" shall be calculated in
accordance with the following formula:-
Selling Price Applicable
Per Wafer = TC x Percentage
----------------
AV
where:
"Applicable
Percentage" shall be (i) 75% in the case of the first twelve Months,
(ii) 105% in the case of the next twelve Months and (iii)
110% in the case of each subsequent Month;
13
"AV" means the Actual Volume for that Month;
"TC" is AMD Saxonia's Total Costs for or in respect of that Month.
Section 3.04. Payment in First Eight Periods to reflect certain Excess
--------------------------------------------------------
Costs or Costs Savings.
- ----------------------
(a) In the first eight Periods only, one-eighth the amount of any (i)
Excess Start-up Costs shall be paid by AMD Holding to AMD Saxonia no later than
30 days after the end of each such Period, and (ii) Start-up Cost Savings shall
be credited by AMD Saxonia against amounts owed or to be owed by AMD Holding
under this Agreement.
(b) The amount of Excess Start-up Costs and Start-up Cost Savings shall be
determined in any event not later than 60 days after the Effective Date. In the
event Start-up Costs have not been conclusively determined prior to the date 30
days after the end of the first Period, such Start-up Costs shall be estimated
for purposes of the payment contemplated for that first Period under Section
3.04(a), and the payment required under Section 3.04(a) for the next Period
shall be increased or decreased by the shortfall or excess, respectively, in the
amount of the payment for that first Period from the amount it would have been
if it had been made based on actual instead of estimated Start-up Costs.
Section 3.05. Advance Payment Adjustment to Reimburse Total Costs in
------------------------------------------------------
Certain Months during which no Wafers are Shipped. For any Month after the
- -------------------------------------------------
Effective Date during which no Products are Shipped, promptly after the end but
in any event not later than 30 days after such Month, AMD Holding shall make an
advance payment in the amount of AMD Saxonia's Total Costs (without giving
effect to clause (h) of the definition thereof) during that Month multiplied by
the Applicable Percentage for that Month (the "Advance Payment Adjustment
Amount") against the first Wafers Shipped in the succeeding Month in which
Wafers are Shipped.
Section 3.06. Intentionally Deleted.
---------------------
Section 3.07. Annual Compensation for Certain Administrative Costs. AMD
----------------------------------------------------
Holding shall compensate AMD Saxonia for any administrative costs, including
without limitation bookkeeping, legal and accounting costs, incurred by AMD
Saxonia from time to time for the direct benefit of AMD Holding, as follows.
The parties agree that the amount payable by AMD Holding to AMD Saxonia under
this Section 3.07 shall be DM 50,000 per annum for each Fiscal Year (and pro-
rated for any portion of a Fiscal Year) from the date hereof until the Effective
Date, payable no later than 30 days after the end of each Fiscal Year. In
addition, AMD Holding shall compensate AMD Saxonia for any such costs,
determined in accordance with German GAAP, incurred by AMD Saxonia on or after
the Effective Date, plus a surcharge thereon of 7.5% (the "Surcharge"), no later
than 30 days after the end of each Fiscal Year.
Section 3.08. Intentionally Deleted.
---------------------
14
Section 3.09. Shipping Terms. AMD Saxonia shall deliver the Products
--------------
purchased hereunder F.O.B. Dresden, Germany. AMD Holding will arrange and be
responsible for and pay all freight, trucking, insurance and other charges
incurred in connection with the shipment of the Products from Dresden, Germany,
to such place or places of delivery as specified by AMD Holding.
Section 3.10. Payments; Set Off.
-----------------
(a) AMD Holding shall pay to AMD Saxonia the Selling Price Per Wafer for
all Products Shipped by AMD Saxonia and, to the extent paid by AMD Saxonia, the
costs and expenses for freight and insurances, unconditionally within 30 days
after receipt of invoices denominated in DM from AMD Saxonia in accordance with
this Section 3.10. AMD Saxonia shall be entitled to issue invoices to AMD
Holding on a monthly basis. Payment for all other amounts due hereunder from
either party (including any adjustment amount) shall be unconditionally due on
or before the date specified in this Agreement for such amount.
(b) All amounts under this Agreement not paid when due from AMD Holding
shall bear interest at the rate of 7.0% per annum from the date due until paid,
calculated on the basis of actual days and months elapsed. Such interest shall
be due and payable at the end of each calendar month. In no event shall the
interest charged exceed the maximum amount permitted under law.
(c) The obligations of AMD Holding under this Agreement are intended by
the parties to be absolute and unconditional under any and all circumstances
except to the extent expressly stated in this Agreement, and are intended to be
independent of the rights and obligations of AMD Saxonia and AMD Holding or of
any of their Affiliates or of any third party under this Agreement or any other
agreement or arrangement in each case except as expressly stated in this
Agreement.
(d) The parties hereto hereby expressly acknowledge, agree, and understand
that the payment by AMD Holding of all amounts payable by it hereunder as
required by this Agreement shall in no way be prevented, delayed, or otherwise
affected as a result of any dispute between the parties (or between any of the
parties and their Affiliates) or by any breach of this Agreement or any other
agreement entered into in connection herewith and/or any adverse change in the
financial or economic condition of AMD Saxonia or any Affiliate thereof,
including without limitation AMD Saxonia's or any such Affiliate's liquidation
or bankruptcy, or any kind of insolvency proceeding in respect thereof.
(e) Except as otherwise expressly provided herein, no obligations of AMD
Holding under this Agreement shall be subject to any counterclaim, set-off,
deduction, withholding, or defense based upon (and without prejudice to) any
claim that AMD Holding may have against AMD Saxonia, any of its Affiliates, or
any other Person, or released, discharged, or in any way affected for any reason
or through any circumstances whatsoever (other than as required by any mandatory
non-waivable requirements of law) including, without limitation, (i) any breach
of any representation or warranty on the part of AMD Saxonia under or in
connection with this Agreement or any other agreement entered into in connection
herewith or any failure of AMD Saxonia to perform any of its agreements,
covenants, or other obligations hereunder or
15
thereunder, or (ii) any other circumstance which might constitute a legal or
equitable discharge or defense of AMD Holding; provided that, as between AMD
Holding and AMD Saxonia (and without prejudice to any rights of subrogation that
may arise), payment or performance by AMD Inc. or any other Person of any
obligation of AMD Holding hereunder shall constitute payment or performance (as
applicable) of such obligation hereunder.
(f) Any amounts that are due from AMD Saxonia to AMD Holding hereunder
shall be payable only in the form of credit against amounts owed or to be owed
by AMD Holding to AMD Saxonia under this Agreement, except to the extent
expressly provided in Section 4.04. Any amount that is due from AMD Holding to
AMD Saxonia hereunder may be set-off against any payment then due (whether as a
credit or otherwise) under Sections 3.03, 3.04, 3.10 or 6.02, Article IV or the
Management Service Agreement, from AMD Saxonia to AMD Holding.
Section 3.11. Method of Payment. Payments under this Agreement from AMD
-----------------
Holding to AMD Saxonia, if made other than by set-off permitted by Section 3.10,
shall be made by wire transfer deposited into ***or such other account of AMD
Saxonia specified by AMD Saxonia with the prior written consent of the Agent (a
copy of which consent shall be delivered by AMD Saxonia to AMD Holding) with.
not less than 15 days written notice to AMD Holding, and all such payments shall
be made in DM or the Dollar equivalent thereof, or a combination of DM and
Dollar equivalents, in each case at the option of AMD Saxonia. As used herein,
Dollar equivalents shall be calculated as the amount, expressed in Dollars,
resulting from the conversion of DM to Dollars at the Agent's spot rate of
exchange as in effect on the date of the relevant invoice.
Section 3.12. Intentionally Deleted.
---------------------
Section 3.13. Adjustments for Changes in Laws or German GAAP. In the
----------------------------------------------
event that there is a change in applicable Law or in German GAAP, and such
change results in (i) payments due from AMD Holding to AMD Saxonia, or due from
AMD Saxonia to AMD Holding (as the case may be), being materially different in
aggregate amount or (ii) the timing of the receipt of such payments being
materially different from the payments contemplated by this Article III without
giving effect to such change, the affected party shall promptly notify the other
party, AMD Inc. and the Agent, and AMD Holding and AMD Saxonia shall negotiate
in good faith with a view to agreeing to such reasonable amendments to this
Article III and the definitions used therein (which amendments shall be made
only with the prior written consent of the Agent), as are necessary as a result
of such change. In order to restore the position contemplated by this Article
III in the event AMD Holding and AMD Saxonia fail to reach agreement on such
amendments within 30 days of becoming aware of such change, or if the Agent
reasonably withholds its consent to any proposed amendments, all payments under
this Article III shall be calculated without giving effect to such change.
Section 3.14. Product Warranty. Subject to Section 3.15, AMD Saxonia
----------------
represents and warrants that all Products sold to AMD Holding pursuant to this
Agreement shall conform in
- ------------------------
*** CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
16
all material respects to the Specifications for such Products and, if expressly
agreed by AMD Saxonia in writing in advance, to any specific changes thereto.
Section 3.15. Disclaimer. THE WARRANTY CONTAINED IN SECTION 3.14 IS THE
----------
SOLE AND EXCLUSIVE WARRANTY AS TO THE PRODUCTS AND IS EXPRESSLY IN LIEU OF ANY
EXPRESS OR IMPLIED WARRANTIES, IN FACT OR IN LAW, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY SIMILAR
WARRANTIES IMPLIED BY APPLICABLE LAW. REPAIR OR REPLACEMENT OF DEFECTIVE
PRODUCTS SHALL BE AMD HOLDING'S EXCLUSIVE REMEDY WITH RESPECT TO DEFECTIVE
PRODUCTS. AMD SAXONIA ASSUMES NO LIABILITY IN TORT OR STRICT LIABILITY, NOR
SHALL AMD SAXONIA BE LIABLE TO AMD HOLDING OR ANY SUBSIDIARY OR AFFILIATE
THEREOF FOR LOSS OR USE OF PRODUCTS OR ANY OTHER INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES INCURRED BY AMD HOLDING OR ANY SUBSIDIARY OR AFFILIATE
THEREOF. IN NO EVENT SHALL THE LIABILITY OF AMD SAXONIA ARISING IN CONNECTION
WITH ANY PRODUCTS SOLD HEREUNDER EXCEED THE ACTUAL AMOUNT PAID BY AMD HOLDING TO
AMD SAXONIA FOR PRODUCTS INVOLVED IN SUCH CLAIM.
Section 3.16. Limitation of Liability. In furtherance of the parties'
-----------------------
selection of California law to govern this Agreement, the parties hereby
expressly exclude rescission (Wandlung) and price reduction (Minderung) as
remedies for defective Products and agree that in no event shall German Civil
Code Paragraph 462 be applicable. To the extent permissible under applicable
law, AMD Saxonia assumes no liability in tort or strict liability, nor shall AMD
Saxonia be liable to AMD Holding, AMD Inc. or any AMD Inc. Affiliate for loss
of use of Products or any other incidental, special, indirect or consequential
damages or lost profits incurred by AMD Holding, AMD Inc. or an AMD Inc.
Affiliate. Without prejudice to Section 3.15, in no event shall the liability
of AMD Saxonia arising in connection with any Products sold hereunder exceed
the actual amount paid by AMD Holding to AMD Saxonia for Products involved in
such claim.
ARTICLE IV
Technical Assistance
--------------------
Section 4.01. Provision of Know-how and Advice by or on Behalf of AMD
-------------------------------------------------------
Holding to AMD Saxonia.
- ----------------------
(a) AMD Holding shall from time to time disclose, or shall arrange for AMD
Inc. to disclose, to AMD Saxonia such of the Know-how and Specifications of AMD
Inc. and its Subsidiaries, and any Improvements to such Know-how and
Specifications made by AMD Inc. or one or more of its Subsidiaries after such
disclosure, as is necessary or, in the judgment of AMD Saxonia, reasonably
desirable to enable AMD Saxonia to manufacture Products on an efficient and
timely basis in accordance with the Specifications for the relevant Product
(such Know-how, Specifications and Improvements together being the "Intellectual
Property"). Without limiting the generality of the foregoing, AMD Holding shall
from time to time provide, or shall arrange for AMD Inc. to provide, one (1)
copy (or if requested by AMD Saxonia, two
17
(2) copies), on a non-exclusive basis, of any Technical Documentation for such
Intellectual Property in the possession of AMD Inc. or one or more of its
Subsidiaries.
(b) To the extent necessary or, in the judgment of AMD Saxonia, reasonably
desirable, AMD Holding shall from time to time advise, or shall arrange for AMD
Inc. to advise, AMD Saxonia, upon AMD Saxonia's request in writing, in relation
to (i) the configuration of the equipment installed or to be installed at the
Plant and used for the production of each Product, the Specifications for which
are disclosed to AMD Saxonia hereunder, and (ii) the requirements for such
configuration, the installation of the equipment and the machinery in the Plant
necessary for the manufacture of such Products and the calibration and testing
of such equipment and machinery.
(c) AMD Holding shall from time to time permit, or shall arrange for AMD
Inc. to permit, AMD Saxonia to make such number of copies of the Technical
Documentation, or any part thereof, provided or disclosed to it hereunder or in
connection herewith as AMD Saxonia may require for the purposes of this
Agreement.
(d) AMD Holding shall from time to time notify, or shall arrange for AMD
Inc. to notify, AMD Saxonia promptly of any material errors in the Intellectual
Property or Technical Documentation provided or disclosed to AMD Saxonia
hereunder or in connection herewith upon AMD Inc. or one or more of its other
Subsidiaries becoming aware thereof and, to the extent AMD Inc. or one or more
of its Subsidiaries develops or obtains a correction for such error, shall
promptly provide, or shall arrange for AMD Inc. to promptly provide, to AMD
Saxonia the Intellectual Property and/or Technical Documentation to enable AMD
Saxonia to correct such error.
(e) Without derogating from AMD Holding's obligation to provide, or to
arrange for AMD Inc. to provide, disclosure to AMD Saxonia of such of the Know-
how and Specifications of AMD Inc. and its Subsidiaries, or which AMD Inc. or
its Subsidiaries have the right to use, as is necessary to enable AMD Saxonia to
manufacture Products hereunder, but notwithstanding any other provision of this
Section 4.01, AMD Holding shall not be required to disclose or arrange for AMD
Inc. to disclose any Intellectual Property or Technical Documentation which AMD
Inc. and its Subsidiaries do not have a right to disclose or the disclosure of
which would require the payment of compensation to a third party.
Section 4.02. Expert Support. Training and Technical Assistance.
--------------------------------------------------
(a) AMD Holding shall, upon AMD Saxonia's request in writing, provide, or
arrange for AMD Inc. to provide, to AMD Saxonia, at the Plant, technical
discussions, lectures, guidance and/or technical training in order to enable AMD
Saxonia to use, on a continuing basis for the purposes of this Agreement, the
Intellectual Property and Technical Documentation disclosed or to be disclosed
to AMD Saxonia hereunder or in connection herewith. Such discussions, lectures,
guidance and training shall be by AMD Holding and/or AMD Inc. personnel who are
qualified to provide advice with respect to the relevant Intellectual Property
and Technical Documentation ("Qualified Personnel").
18
(b) The timing of visits of such AMD Holding and/or AMD Inc. personnel
shall be arranged by agreement between AMD Holding and AMD Saxonia.
(c) AMD Holding shall, upon AMD Saxonia's request in writing, provide, or
arrange for AMD Inc. to provide, to AMD Saxonia, at the Plant, all technical
assistance necessary to remedy a Production Problem.
Section 4.03. Access to Comparable Plants. AMD Holding shall arrange for
---------------------------
AMD Inc. to permit AMD Saxonia to send, at the expense of AMD Saxonia or as
otherwise agreed by AMD Inc., employees of AMD Saxonia to visit AMD Inc.'s Wafer
Fabrication Plants, including in particular AMD Inc.'s plant in Austin, Texas
known as "Fab 25" for so long as such plant is owned or controlled by AMD Inc.
or one or more of its Subsidiaries, at reasonable times for the purpose of
witnessing and training in the use of any of the Intellectual Property and
Technical Documentation provided or disclosed to it hereunder. AMD Holding shall
upon AMD Saxonia's request in writing, provide, or arrange for AMD Inc. to
provide, to such AMD Saxonia employees at such Wafer Fabrication Plants
technical discussions, lectures, guidance and/or technical training by Qualified
Personnel in order to enable such AMD Saxonia employees to understand the usage
being made at such Wafer Fabrication Plants of the relevant Intellectual
Property and Technical Documentation.
Section 4.04. Charge for Technical Assistance.
-------------------------------
(a) As compensation in full for the performance of the services
contemplated under this Article IV, AMD Saxonia shall reimburse AMD Holding for
(i) all reasonable out-of-pocket expenses incurred by AMD Holding or AMD Inc.,
as the case may be, in connection with providing such services, plus (ii) the
reasonable salaries and other remuneration of the relevant personnel involved.
In this regard, AMD Holding shall issue quarterly invoices to AMD Saxonia
itemizing in detail the basis for each invoiced amount. Prior to the Effective
Date, all such invoiced amounts shall, notwithstanding Section 3.10, be paid by
AMD Saxonia within thirty (30) days of its receipt of the relevant invoice.
Payments shall be made in DM by wire transfer. From and after the Effective Date
and subject to Section 6.02(c), payments shall be made only in the form of
credits against amounts owed or to be owed by AMD Holding to AMD Saxonia under
this Agreement.
(b) The parties agree that any invoiced amounts to be paid or credited by
AMD Saxonia under this Section 4.04 shall not duplicate amounts charged for
services provided directly by AMD Inc. pursuant to the Management Service
Agreement.
(c) The foregoing notwithstanding, (i) in no event shall the aggregate
amounts to be paid by AMD Saxonia under this Section 4.04 and under the
Management Service Agreement prior to the Effective Date exceed DM 135,000,000
(One Hundred Thirty-Five Million), and (ii) the parties agree that, without
prejudice to the License Agreement, any Intellectual Property provided in any
form to AMD Saxonia for its use hereunder is provided at no charge.
ARTICLE V
19
Accounting Reports: Other Reports:
----------------------------------
Right of Inspection By or On Behalf of AMD Holding
--------------------------------------------------
Section 5.01. Annual Accounting Reports from AMD Saxonia. AMD Holding
------------------------------------------
and its duly authorized representatives (which may include duly authorized
representatives of AMD Inc.) and, if the Loan Agreement Termination Date has not
yet taken place, the Agent shall at all reasonable times have access to the
books and accounts kept by AMD Saxonia and annually upon the closing of the
Fiscal Year all such books and accounts shall be audited by Ernst & Young GmbH
or such other firm of independent and internationally known public accountants
as may be selected by AMD Saxonia with the approval of AMD Holding and, if the
Loan Agreement Termination Date has not yet taken place, the Agent (the consent
of the Agent not to be unreasonably withheld). A copy of each such report of
audit, together with a reconciliation of AMD Saxonia's fiscal year figures to
the statutory financial statements of AMD Saxonia, shall be sent promptly to AMD
Holding and, prior to the Loan Agreement Termination Date, the Agent. AMD
Holding and its duly authorized representatives (which may include duly
authorized representatives of AMD Inc.) shall also have the right to examine and
inspect at any reasonable time all properties and operations of AMD Saxonia to
which this Agreement relates.
Section 5.02. Intentionally Deleted
Section 5.03. Accountants' Certification: Officer's Certificate.
-------------------------------------------------
(a) The amount of Excess Start-up Cost or Start-up Cost Savings shall be
determined promptly, but in no event later than 60 days, after the Effective
Date pursuant to Section 3.04(b). Such determination shall be evidenced by a
Start-up Cost Adjustment Certification duly signed by AMD Saxonia and duly
signed by AMD Saxonia's certified public accountants.
(b) Promptly, but in no event later than 30 days after the end of each
Period, if any amounts are charged by AMD Inc. to AMD Saxonia under the
Management Service Agreement or Section 4.04 during such Period, AMD Saxonia
shall provide AMD Holding and, if the Loan Agreement Termination Date has not
yet taken place, the Agent with a Certificate certifying the amounts invoiced
and/or paid or credited under the Management Service Agreement and Section 4.04.
Promptly, but in no event later than 60 days, after the end of each Fiscal Year,
AMD Saxonia shall provide AMD Holding and, if the Loan Agreement Termination
Date has not yet taken place, the Agent with a certificate duly signed and
certified by AMD Saxonia's certified public accountant confirming the amounts
invoiced and/or paid or credited under the Management Service Agreement and
Section 4.04.
Section 5.04. Intentionally deleted.
---------------------
ARTICLE VI
Effectiveness; Termination
--------------------------
Section 6.01. Effectiveness: Termination.
--------------------------
(a) This Agreement shall become effective on the date hereof and (unless
otherwise extended as hereinafter provided) shall terminate on the date (the
"Initial Termination Date")
20
which is the earlier of (i) the Loan Agreement Termination Date and (ii) the
Termination Date. At the option of AMD Holding, exercised by giving notice to
AMD Saxonia and AMD Inc. at least six months prior to the Loan Agreement
Termination Date, and provided that no Termination Event has occurred and is
continuing, this Agreement may be extended for one additional three year term.
At the option of AMD Saxonia, exercised by giving notice to AMD Holding and AMD
Inc. at least six months prior to the Loan Agreement Termination Date, and
provided that no Termination Event has occurred and is continuing, the initial
term of this Agreement may be extended for one additional three year term (to
the extent not previously extended by AMD Holding pursuant to the preceding
sentence).
(b) Each of the events described in this Section 6.01(b), whether or not
such events directly or indirectly affect AMD Saxonia or AMD Holding, shall
constitute a Termination Event. If a Termination Event has occurred and is
continuing, AMD Saxonia (or, if prior to the Loan Agreement Termination Date,
the Security Agent on behalf of AMD Saxonia pursuant to and in accordance with
the Security Documents (as defined in the Sponsors' Support Agreement)) may, by
notice to AMD Holding and AMD Inc. and, if prior to the Loan Agreement
Termination Date, with the consent of the Agent, which consent shall be
communicated by the Agent to both AMD Holding and AMD Inc., terminate this
Agreement in case of any of the Termination Events described in clauses (vii)
through (xv) below. In addition, this Agreement shall automatically terminate
(without any requirement for any action by any party hereto) immediately upon
the occurrence of the Termination Event described in clauses (i) through (vi)
below, and in the case of any other Termination Event shall terminate on the
date any such notice is given (the date of any such automatic or other
termination being the "Termination Date"). The Termination Events are as
follows:
(i) the expropriation or condemnation of the Plant or any
substantial part of the assets or business of AMD Saxonia or AMD Holding by any
Governmental Authority, or the involuntary suspension, or curtailment below
seventy-five percent of capacity, by AMD Saxonia of the operation of the Plant
for six months or more as a result of any change in or introduction of any Law,
or any change in the interpretation or application thereof, in each case
occurring after the date hereof;
(ii) AMD Inc. or AMD Holding being required by any Governmental
Authority to divest itself of all or a substantial portion of its direct or
indirect interest in AMD Saxonia, or AMD Saxonia being required by any
Governmental Authority to divest itself or all or a substantial portion of the
Plant;
(iii) the destruction of the Plant or a substantial portion thereof
and a decision by AMD Saxonia not to rebuild the same after having received
insurance proceeds in respect of such destruction in an amount at least equal to
the depreciated book value of such Plant or substantial portion thereof;
(iv) obligations of AMD Saxonia being accelerated following lapse of
any applicable grace periods as a result of the occurrence of an event described
in Section 21 of the Loan Agreement which would allow the Banks to terminate the
Loan Agreement, and/or the Agent, Security Agent or any of the Banks exercising
remedies pursuant to any of the Security Documents (as defined in the Loan
Agreement);
21
(v) the involuntary (including without limitation as a result of
enforcement of any rights of security granted in shares of AMD Holding and/or
AMD Saxonia or performance of any undertakings to transfer such shares made to
secure obligations of AMD Holding and/or AMD Saxonia) transfer of a controlling
interest in AMD Holding and/or AMD Saxonia from AMD Inc. and its Subsidiaries to
one or more third parties;
(vi) the involuntary dissolution or winding up of the business of
AMD Holding and/or AMD Saxonia;
(vii) failure by AMD Holding or AMD Inc. to make any payment required
from it hereunder or under the AMD Inc. Guaranty, AMD Holding Wafer Purchase
Agreement, AMD Saxonia Research Agreement, AMD Holding Research Agreement or
Sponsors' Support Agreement within 45 days of the date due therefor, or default
by AMD Holding or AMD Inc. in the performance of or compliance with any other
term contained in this Agreement or any such other agreement and such default
shall not have been remedied or waived within 30 days after receipt of notice
from AMD Saxonia or, if the Loan Agreement Termination Date has not yet taken
place, the Agent of such default;
(viii) any of AMD Holding's representations or warranties made herein
or in any statement or certificate at any time given by AMD Holding in writing
pursuant to this Agreement being false in any material respect on the date as of
which made, or any of AMD Inc.'s representations or warranties made in the AMD
Holding Wafer Purchase Agreement or the AMD Holding Research Agreement or in any
statement or certificate at any time given by AMD Inc. in writing pursuant to
any thereof being false in any material respect on the date as of which made;
(ix) bankruptcy (Konkursverfahren), composition
(Vergleichsverfahren) or enforcement proceedings (Gesamtvollstreckungsverfahren)
are instituted against the assets (Vermogen) of AMD Holding and not withdrawn
or denied within 30 days of the date the application for such proceedings is
made; or the institution of such proceedings is denied for lack of assets to
cover the costs of such proceedings;
(x) execution is issued (Einleitung der Zwangsvollstreckung)
against all or a substantial part of the assets of AMD Holding unless such
execution is withdrawn within three weeks of the issuance thereof; realization
of such execution; or the realization of execution on the equity shares of AMD
Saxonia owned by AMD Holding;.
(xi) the discontinuance of payments generally (Zahlungseinstellung)
by AMD Holding;
(xii) the adoption of a resolution by the managing directors
(Geschaftsfuehrer) of AMD Holding for the institution of liquidation
proceedings (Liquidationsverfahrens) for AMD Holding;
(xiii) a court having jurisdiction in the premises entering a decree
or order for relief in respect of AMD Inc. in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, which decree or order is not stayed; or any other similar relief being
granted under any applicable federal or state law;
22
(xiv) a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over AMD Inc. or over all or a
substantial part of its property, having been entered; or the involuntary
appointment of an interim receiver; trustee or other custodian of AMD Inc. for
all or a substantial part of its property; or the issuance of a warrant of
attachment, execution or similar process against any substantial part of the
property of AMD Inc.; and the continuance of any such events in this clause
(xiv) for 90 days unless stayed, dismissed, bonded or discharged; or
(xv) AMD Inc. having an order for relief entered with respect to it
or commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consenting to the entry of an
order for relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or consenting to the appointment
of or taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; the making by AMD Inc. of any assignment for
the benefit of creditors; or the inability or failure by AMD Inc. or the
admission by AMD Inc. in writing of its inability to pay its debts as such debts
become due; or the Board of Directors of AMD Inc. (or any committee thereof)
adopting any resolution or otherwise authorizing action to approve any of the
foregoing.
Section 6.02. Rights Upon Termination.
-----------------------
(a) Promptly, but in no event later than 20 days following the Termination
Date,
(i) the Selling Price Per Wafer for the Month ending on the
Termination Date shall be calculated in accordance with Section 3.03;
(ii) in the event that the Termination Date occurs before all of
the Excess Start-up Costs or the Start-up Cost Savings, whichever the case may
be, has been paid in accordance with Section 3.04, the amount of any unpaid
Excess Start-up Costs or Start-up Costs Savings shall be calculated in
accordance with Section 3.04; and
(iii) if no Products were Shipped in the Month ending on the
Termination Date, the final Advance Payment Adjustment Amount for that Month
shall be calculated in accordance with Section 3.05.
(b) Upon termination of this Agreement for any reason, AMD Holding shall
purchase all inventory and work-in-process of AMD Saxonia as of the Termination
Date. The purchase price shall be equal to the value thereof as shown in the
books of AMD Saxonia in accordance with German GAAP.
(c) Upon termination of this Agreement for any reason, any amounts due
from AMD Holding to AMD Saxonia pursuant to Sections 3.03, 3.04, 3.05, 3.07,
3.10, and/or 6.02 (b) (including any amounts calculated in respect thereof
pursuant to Sections 6.02(a) and (b)) shall be aggregated, and any amounts due
(whether in the form of an obligation to pay or credit) from AMD Saxonia to AMD
Holding pursuant to Sections 3.03, 3.04, 3.10 and 4.04 (including any amounts
calculated in respect thereof pursuant to Sections 6.02(a)) and the Management
Service Agreement shall be aggregated. If the aggregate amount payable by AMD
Holding exceeds the
23
aggregate amount payable and/or to be credited by AMD Saxonia, then each party's
obligation to make payment of any such amount will be automatically satisfied
and discharged and replaced by an obligation upon AMD Holding to pay to AMD
Saxonia the excess of the larger aggregate amount over the smaller aggregate
amount. If the aggregate amount payable by AMD Saxonia exceeds the aggregate
amount payable by AMD Holding, then each party's obligation to make payment of
any such amount will be automatically discharged and the amount of such excess
shall be additional compensation, to be retained by AMD Saxonia for the early
termination of this Agreement, and AMD Saxonia shall have no obligation to pay
such amount to AMD Holding.
Section 6.03. Survival. The provisions of Sections 3.14, 3.15, 3.16,
--------
6.02, 7.09, 7.10, 7.11 and 7.13 shall survive any termination of this Agreement.
ARTICLE VII
Miscellaneous
-------------
Section 7.01. Representations and Warranties General. Each of AMD Holding
--------------------------------------
and AMD Saxonia hereby represents and warrants to the other as follows:
(a) Organization; Corporate Power. It is duly incorporated and validly
existing under the laws of the jurisdiction of its organization, and has all
necessary power and authority to (i) own its assets and to carry on the business
in which it is engaged; and (ii) execute, deliver and perform its obligations
under this Agreement;
(b) Corporate Authority; No Conflict. The execution, delivery and
performance by it of this Agreement have been duly authorized by all necessary
corporate action (including any necessary shareholder action) on its part, and
do not and will not (i) violate any provision of any law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award presently in
effect having applicability to it, or of its charter or bylaws or (ii) result in
a breach of, result in a mandatory prepayment or acceleration of indebtedness
evidenced by or secured by, or constitute a default under, any indenture or loan
or credit agreement, or any other agreement or instrument to which it is a party
or by which it or its properties may be bound, or require the creation or
imposition of any encumbrance of any nature upon or with respect to any of the
properties now owned or hereafter acquired by it, and it is not in default under
or in violation of its charter or by-laws or any law, rule, regulation, order,
writ, judgment, injunction, decree, determination, award, indenture or
instrument, which default or violation, individually or in the aggregate, would
reasonably be expected to have a material adverse effect on its financial
condition, business, operations, or prospects;
(c) Valid and Binding Obligations. This Agreement constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
terms subject, however, to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and, as to
enforceability, by general equitable principles; and
24
(d) No Litigation. No litigation, arbitration proceedings or governmental
proceedings are pending or to its knowledge, threatened, which pertain to this
Agreement or any of the transactions contemplated thereby.
AMD Holding acknowledges that it has no right to terminate this Agreement or
offset payments hereunder because of any breach by AMD Saxonia of the
representations and warranties contained herein.
Section 7.02. Force Majeure.
-------------
(a) A party to this Agreement shall not be liable for the consequences of
any failure to perform, or default in performing, any of its obligations, other
than its payment obligations, under this Agreement if that party can show that
such failure is caused by Force Majeure.
(b) Where there has been any such failure, the said failure shall not be
considered non-compliance with any term or condition of this Agreement, and all
the obligations (other than payment obligations) and times which because of such
failure could not be fulfilled shall be deemed to have been suspended while the
failure continues. In addition, the party for whom such obligations and/or times
have been suspended shall be entitled to take reasonable steps during the
pendency of the relevant Force Majeure to limit its losses resulting from such
Force Majeure, and following the termination of such Force Majeure such
obligations and/or times shall continue to be suspended for such further
reasonable period as is necessary for such party to restore its capacity to
perform such obligations and/or meet such times.
Section 7.03. Relationship of Parties. AMD Holding and AMD Saxonia shall
-----------------------
at all times be independent contractors with respect to each other. Nothing in
this Agreement shall constitute either party hereto as the partner, joint
venturer, employee or agent of the other such party or of AMD Inc., and neither
AMD Holding nor AMD Saxonia shall act or omit to act in such a way as to suggest
the contrary to any Person.
Section 7.04. Assignment. This Agreement shall be binding upon and enure
----------
to the benefit of each party hereto and their respective successors and assigns;
provided, however, that neither party hereto shall have the right to transfer or
- --------
assign its interest in this Agreement without the prior written consent of both
the other party hereto, AMD Inc. and, prior to the Loan Agreement Termination
Date, of the Agent; provided further that AMD Saxonia may assign this Agreement
----------------
to the Agent as security for obligations of AMD Saxonia under the Loan Agreement
and the Agent may assign this Agreement to any direct transferee of the Plant in
the proper exercise of the Agent's enforcement rights in respect of such
security.
Section 7.05. Waivers. No delay or omission in exercise of any right or
-------
remedy of either party or any default by the other, and no custom or practice of
the parties at variance with the terms of this Agreement, shall impair any right
or remedy otherwise available nor shall it be construed as a waiver of any right
or remedy. Any waiver by either party or any default must be in writing and
shall not be a waiver of any other default concerning the same or any other
provision. AMD Saxonia shall have no right to waive any of its rights or
remedies under this Agreement without the prior written consent of AMD Inc.
and, prior to the Loan Agreement Termination Date, the Agent.
25
Section 7.06. Rights Cumulative. The rights, remedies and powers of each
-----------------
of the parties contained in this Agreement are cumulative and not exclusive of
any rights, remedies or powers provided to the parties by Law. No single or
partial exercise by any of the parties hereto of any right, remedy or power
under this Agreement shall preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
Section 7.07. Notices. All notices and other communications required or
-------
permitted to be given to or made upon any party hereto shall be in writing and
shall be personally delivered or sent by registered or certified mail, postage
pre-paid, return receipt requested, or by pre-paid telex, TWX or telegram, or by
pre-paid courier service, or by telecopier, to the respective parties hereto at
their respective addresses (or to their respective telex, TWX or telecopier
numbers) indicated below, or such other addresses or numbers specified in a
notice sent or delivered in accordance with the provisions of this Section 7.07.
Any such notice or communication shall be deemed to be given for purposes of
this Agreement on the day that such writing or communication is delivered or, in
the case only of a telex, TWX or telegram, sent to the intended recipient
thereof, or in the case only of telecopier, sent to the intended recipient
thereof with confirmation of receipt, all in accordance with the provision of
this Section 7.07.
If to AMD Holding:
AMD Saxony Holding GmbH
Wilschdorfer Landstrasse 101
01109 Dresden
Attention: Geschaftsfuehrer
Facsimile: +49 351 277 91300
with a copy to AMD Inc.:
Advanced Micro Devices, Inc.
One AMD Place
P.O. Box 3453
Sunnyvale, California 94088
Attention: General Counsel
Facsimile: +1 408 774 7399
If to AMD Saxonia:
AMD Saxony Manufacturing GmbH
Wilschdorfer Landstrasse 101
01109 Dresden
Attention: Geschaftsfuehrer
Facsimile: +49 351 277 91300
with a copy to:
26
Dresdner Bank AG
Ostra Allee 9
01067 Dresden
Attention: Betreuung Unternehmenskunden
Facsimile: + 49 351 489 1300
Section 7.08. No Effect on Other Agreements. No provision of this
-----------------------------
Agreement shall be construed so as to negate, modify or affect in any way the
provisions of any other agreement among any of AMD Inc., AMD Holding and AMD
Saxonia except as specifically provided in any such other agreement.
Section 7.09. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
SHALL BE CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES. THE PARTIES
EXPRESSLY EXCLUDE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR
THE SALE OF GOODS OF APRIL 11, 1980.
Section 7.10. Dispute Resolution. Subject to Section 7.10 (j) below,
------------------
arbitration under this Section 7.10 shall be the exclusive means for a party to
seek resolution of any dispute arising out of, relating to or connected with
this Agreement, except that either party may bring an action before a competent
court for the issuance of provisional or protective measures.
(a) The parties hereto agree to submit any dispute, controversy or claim
("Dispute") arising out of, relating to or in any way connected with this
Agreement to final and binding arbitration in Santa Clara County, California,
under the Commercial Arbitration Rules and Supplementary Procedures for
International Commercial Arbitration of the American Arbitration Association
("AAA") then in force except as modified in accordance with the provisions of
this Section 7.10.
(b) The arbitral tribunal shall be composed of three arbitrators, one
appointed by each party, and the two arbitrators so appointed shall, within 15
days appoint a third arbitrator who shall be chosen from a country other than
those of which the parties are nationals, who shall be fluent in English, and
who shall act as Chairman of the tribunal.
(c) In arriving at decisions, the arbitrators shall apply the terms and
conditions of this Agreement in accordance with the laws of California.
(d) The award shall be deemed a U.S. award for purposes of the Convention
on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the "New
York Convention"). The English language shall be used in the arbitral
proceedings and all exhibits and other evidence in a language other then English
shall be accompanied by English translations when submitted into evidence before
the arbitral tribunal.
(e) The arbitrators are empowered to render the following awards in
accordance with any provision of this Agreement or any related agreement: (i)
enjoining a party from performing any act prohibited, or compelling a party to
perform any act required, by the terms of this Agreement
27
or any related agreement and any order entered pursuant to this Agreement and
(ii) ordering such other legal or equitable relief, including any provisional
legal or equitable relief, or specifying such procedures as the arbitrator deems
appropriate, to resolve any Dispute submitted for arbitration. The parties shall
be entitled to discover all documents and other information reasonably necessary
for a full understanding of any -legitimate issue raised in the arbitration.
They may use all methods of discovery customary under U.S. federal law,
including but not limited to depositions, requests for admission, and requests
for production of documents. The time periods for compliance shall be set by the
arbitrators, who may also set limits on the scope of such discovery. The
arbitrators shall not be empowered to award consequential or punitive damages.
(f) Either party may file an application in any proper court described in
Section 7.11 hereof for a provisional remedy in connection with an arbitrable
controversy hereunder, but only upon the ground that the award to which the
applicant may be entitled may be rendered ineffectual without provisional
relief.
(g) The arbitrators shall issue to both parties a written explanation in
English of the reasons for the award and a full statement of the facts as found
and the rules of law applied in reaching the decision
(h) Any monetary award shall be made and shall be payable in DM free of
any tax or any deduction.
(i) The award of the arbitral tribunal will be the sole and exclusive
remedy between the parties regarding any and all claims and counterclaims with
respect to the subject matter of the arbitrated dispute. An award rendered in
connection with an arbitration pursuant to this Section 7.10 shall be final and
binding upon the parties, and any judgment upon which an award may be entered
and enforced in any court of competent jurisdiction.
(j) Notwithstanding the foregoing; the parties agree that any disputes
hereunder relating solely to accounting matters shall be resolved by an auditor,
appointed as provided below, acting as an expert (and not as an arbitrator), and
that the resolution by such independent auditor of any such matter shall be
conclusive between the parties absent manifest error. Such auditor shall be
appointed by mutual agreement of the parties' respective auditors, and, if prior
to the Loan Agreement Termination Date, of the Agent and shall be an independent
and internationally known certified public accounting firm with no affiliation
with either the parties, the Agent or any of their respective auditors.
Section 7.11. Consent to Jurisdiction and Forum: AMD Holding and AMD
------------------------------------------------------
Saxonia Appointment of Agent for Service of Process.
- ---------------------------------------------------
(a) Subject to Section 7.10, all judicial proceedings brought against
either party hereto with respect to this Agreement may be brought in Santa Clara
County, California, and by execution and delivery of this Agreement, each such
party accepts for itself and in connection with its properties, generally and
unconditionally, the nonexclusive jurisdiction of such courts. In addition, each
such party hereby irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any
28
such proceedings, and hereby further irrevocably and unconditionally waives and
agrees to the fullest extent permitted by law not to plead or claim that any
such proceeding brought in any such court has been brought in an inconvenient
forum.
(b) AMD Holding hereby irrevocably appoints CT Corporation Services as its
agent to receive on behalf of AMD Holding and its property service of copies of
the summons and complaint and any other process which may be served in any
proceeding in any state or federal court of competent jurisdiction in the State
of California.
(c) AMD Saxonia hereby irrevocably appoints CT Corporation Services as its
agent to receive on behalf of AMD Saxonia and its property service of copies of
the summons and complaint and any other process which may be served in any
proceeding in any state or federal court of competent jurisdiction in the State
of California.
Section 7.12. Judgment Currency. The parties hereto agree that, without
-----------------
prejudice to Sections 7.10 and 7.11 above:
(a) if, for purposes of obtaining hereunder an arbitral award or judgment
of any court, it is necessary to convert a sum due hereunder in DM into another
currency, the rate of exchange used shall be that at which in accordance with
normal banking procedures the prevailing party could purchase DM with such other
currency on the Business Day preceding that on which the final award or judgment
(as applicable) is given; and
(b) the obligation of each of the parties hereto in respect of any sum due
hereunder from it (the "Payor") to the other party (the "Recipient") shall,
notwithstanding any judgment in a currency other than DM, be discharged only to
the extent that on the Business Day following receipt by the Recipient of any
sum adjudged to be so due in such other currency, the Recipient may, in
accordance with normal banking procedures, purchase DM with such other currency;
in the event that the DM so purchased is less than the sum originally due to the
Recipient, the Payor, as a separate obligation and notwithstanding any such
judgment or award, hereby agrees to indemnify and hold harmless the Recipient
against such loss, and if the DM so purchased exceeds the sum originally due to
the Recipient, the Recipient shall remit to the Payor the excess.
Section 7.13. Language. This Agreement is in the English language, which
--------
language shall be controlling in all respects.
Section 7.14. Entire Agreement. This Agreement, the AMD Saxonia Research
----------------
Agreement, the License Agreement, the Sponsors' Subordination Agreement (as
defined in the Loan Agreement) and the Management Service Agreement embody the
entire agreement and understanding between the parties with respect to the
subject matter hereof. Neither party has relied upon any representation or
warranty of the other party in entering into this Agreement except as expressly
set forth herein. AMD Holding further acknowledges and agrees that its
obligations hereunder shall remain in full force and effect notwithstanding the
breach by AMD Saxonia of any representation or warranty contained herein.
Section 7.15. Counterparts. This Agreement may be executed in one or more
------------
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original but all such
counterparts together shall
29
constitute but one and the same instrument; signature pages may be detached from
multiple counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document.
Section 7.16. Amendments. No modifications or amendments to this Agreement
----------
shall be binding unless in writing and executed by each of the parties hereto.
In addition, no modification or amendment to this Agreement may be made without
the prior written consent of AMD Inc. and, if prior to the Loan Agreement
Termination Date, the Agent.
Section 7.17. EMU. The European Economic and Monetary Union anticipates
---
the introduction of a single currency and the substitution of the national
currencies of Member States participating in the Monetary Union. On the date on
which the DM is replaced by the single currency, conversion into such currency
shall take effect. The denomination of the original currency shall be retained
for so long as this is legally permissible. Conversions shall be based on the
officially fixed rate of conversion. Neither the introduction of the single
currency nor the substitution of the national currencies of the Member States
participating in European Monetary Union nor the fixing of the official rate of
conversion nor any economic consequences that arise from any of the
aforementioned events or in connection with European Monetary Union shall give
rise to any right to terminate prematurely, contest, cancel, rescind, modify, or
renegotiate this Agreement or any of its provisions or to raise any other
objections and/or exceptions or to assert any claim's for compensation. This
Agreement shall continue in full force and effect in accordance with its terms.
30
IN WITNESS OF THE FOREGOING, AMD Holding and AMD Saxonia have caused
this Agreement to be executed by their authorized representatives as of the date
first written above.
AMD SAXONY HOLDING GMBH
By:
--------------------------
Its: Managing Director
AMD SAXONY MANUFACTURING GMBH
By:
--------------------------
Its: Managing Director
III-1