\nPari Passu
\nCompensation = Adj.4QTC x ECV – Adj.4QTC x 4QAV + [4QVC x [ ECV – 1] x .10]
\nAmount _____________________________ ____________________________ ____
\nAmount 4Q Anticipated Capacity Limit 4Q Anticipated Capacity Limit [ [ 4QAV ] ]<\/p>\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
where:<\/p>\n
“ADJ.4QTC” means the Total Costs (without giving effect to clause
\n (h) of the definition thereof) for such 4 Quarter Period,
\n multiplied by the Applicable Percentage under Section
\n 3.03(b) for the Periods included in such 4 Quarter
\n Period;<\/p>\n
“ECV” means the “EVEN CAPACITY VOLUME” for such 4 Quarter
\n Period, which is the minimum number of Wafers that would
\n have been Shipped during that 4 Quarter Period if there
\n were no Uneven Capacity Allocation (as defined below),
\n provided that if such minimum number exceeds 75% of the 4
\n ——–
\n Quarter Anticipated Capacity for that 4 Quarter Period,
\n the Even Capacity Volume shall be such number of Wafers
\n that represents 75% of such 4 Quarter Anticipated
\n Capacity;<\/p>\n
“4QAV” has the meaning assigned to it in Section 3.06 for such 4
\n Quarter Period; and<\/p>\n
“4Q ANTICI-
\n PATED
\n CAPACITY
\n LIMIT” has the meaning assigned to it in Section 3.06 for such 4
\n Quarter Period;<\/p>\n
“4QVC” means the Variable Costs for such 4 Quarter Period.<\/p>\n
(b) In this regard, an “UNEVEN CAPACITY ALLOCATION” shall be determined
\nto exist with respect to any 4 Quarter Period where AMD Saxonia’s Capacity
\nUtilization for that 4 Quarter Period is less than the AMD Inc.’s Average
\nCapacity Utilization for that 4 Quarter Period, where:<\/p>\n
(i) “AMD SAXONIA’S CAPACITY UTILIZATION” for a particular 4 Quarter
\n Period means the fraction (x) whose numerator is the Adjusted Actual Volume
\n (as defined below for such 4 Quarter Period), and (y) whose denominator is
\n the Plant’s Anticipated Capacity for Products during each 4 Quarter Period;<\/p>\n
(ii) “ADJUSTED ACTUAL VOLUME” means the Actual Volume during such 4
\n Quarter Period plus (without duplication) (x) the number of Wafers that
\n —-
\n would reasonably have been expected to have been Shipped during that period
\n but for the <\/p>\n
23<\/p>\n
occurrence of Force Majeure with respect to AMD Saxonia and (y) the number
\n of Wafers that would reasonably have been expected to have been Shipped
\n during that period but for Production Problems but expressly excluding from
\n such Wafers, Wafers in respect of each Production Problem, to the extent
\n lasting more than 30 days, from the 30th day of such Production Problem;<\/p>\n
(iii) “AMD INC.’S AVERAGE CAPACITY UTILIZATION” means the fraction (x)
\n whose numerator is the sum of:<\/p>\n
(A) the actual number of Comparable Products, the manufacture of
\n which is completed by AMD Inc. and its Subsidiaries and Affiliates,
\n excluding AMD Saxonia and third party suppliers, during that 4 Quarter
\n Period; and<\/p>\n
(B) the number of Comparable Products delivered to AMD Inc. or
\n one of its Subsidiaries by third party suppliers during that 4 Quarter
\n Period;<\/p>\n
and (y) whose denominator is the sum of:<\/p>\n
(A) the Capacity of any Wafer Fabrication Plant (other than the
\n Plant) for Comparable Products for the part of that 4 Quarter Period
\n during which it is owned or operated by AMD Inc. or one or more of its
\n Subsidiaries and Affiliates; and<\/p>\n
(B) the number of Comparable Products delivered to AMD Inc. or
\n one of its Subsidiaries by third party suppliers during that 4 Quarter
\n period.<\/p>\n
(c) The above calculations shall be prepared by AMD Saxonia and
\ndelivered to AMD Holding and the Agent as soon as reasonably practicable
\nfollowing the conclusion of each 4 Quarter Period in which Actual Volume is less
\nthan 75% of Anticipated Capacity for such 4 Quarter Period, but in any event
\nwithin 60 days of the end of such 4 Quarter Period accompanied by a certificate
\nsigned by one of its managing directors setting out the Actual Volume during
\nsuch 4 Quarter Period.<\/p>\n
(d) AMD Holding shall supply, or arrange to be supplied by AMD Inc., to
\nAMD Saxonia and the Agent as soon as reasonably practicable but in any event
\nwithin 60 days of the end of each 4 Quarter Period in which Actual Volume is
\nless than 75% of Anticipated Capacity for such 4 Quarter Period, a certificate
\nsigned by one of its officers setting out in reasonable detail the information
\nspecified in the fraction set out in Section 3.12(b).<\/p>\n
SECTION 3.13. ADJUSTMENTS FOR CHANGES IN LAWS OR GERMAN GAAP. In the
\n ———————————————-
\nevent that there is a change in applicable Law or in German GAAP, and such
\nchange results in (i) payments due from AMD Holding to AMD Saxonia, or due from
\nAMD Saxonia to AMD Holding (as the case may be), being materially different in
\naggregate amount or (ii) the timing of the receipt of such payments being
\nmaterially different from the payments contemplated by this Article III without
\ngiving effect to such change, the affected party shall <\/p>\n
24<\/p>\n
promptly notify the other party, AMD Inc. and the Agent, and AMD Holding and AMD
\nSaxonia shall negotiate in good faith with a view to agreeing to such reasonable
\namendments to this Article III and the definitions used therein (which
\namendments shall be made only with the prior written consent of the Agent), as
\nare necessary as a result of such change. In order to restore the position
\ncontemplated by this Article III in the event AMD Holding and AMD Saxonia fail
\nto reach agreement on such amendments within 30 days of becoming aware of such
\nchange, or if the Agent reasonably withholds its consent to any proposed
\namendments, all payments under this Article III shall be calculated without
\ngiving effect to such change.<\/p>\n
SECTION 3.14. PRODUCT WARRANTY. Subject to Section 3.15, AMD Saxonia
\n —————-
\nrepresents and warrants that all Products sold to AMD Holding pursuant to this
\nAgreement shall conform in all material respects to the Specifications for such
\nProducts and, if expressly agreed by AMD Saxonia in writing in advance, to any
\nspecific changes thereto contained in a specific purchase order.<\/p>\n
SECTION 3.15. DISCLAIMER. THE WARRANTY CONTAINED IN SECTION 3.14 IS THE
\n ———-
\nSOLE AND EXCLUSIVE WARRANTY AS TO THE PRODUCTS AND IS EXPRESSLY IN LIEU OF ANY
\nEXPRESS OR IMPLIED WARRANTIES, IN FACT OR IN LAW, INCLUDING, WITHOUT LIMITATION,
\nWARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY SIMILAR
\nWARRANTIES IMPLIED BY APPLICABLE LAW. REPAIR OR REPLACEMENT OF DEFECTIVE
\nPRODUCTS SHALL BE AMD HOLDING’S EXCLUSIVE REMEDY WITH RESPECT TO DEFECTIVE
\nPRODUCTS. AMD SAXONIA ASSUMES NO LIABILITY IN TORT OR STRICT LIABILITY, NOR
\nSHALL AMD SAXONIA BE LIABLE TO AMD HOLDING OR ANY SUBSIDIARY OR AFFILIATE
\nTHEREOF FOR LOSS OR USE OF PRODUCTS OR ANY OTHER INCIDENTAL, SPECIAL OR
\nCONSEQUENTIAL DAMAGES INCURRED BY AMD HOLDING OR ANY SUBSIDIARY OR AFFILIATE
\nTHEREOF. IN NO EVENT SHALL THE LIABILITY OF AMD SAXONIA ARISING IN CONNECTION
\nWITH ANY PRODUCTS SOLD HEREUNDER EXCEED THE ACTUAL AMOUNT PAID BY AMD HOLDING TO
\nAMD SAXONIA FOR PRODUCTS INVOLVED IN SUCH CLAIM.<\/p>\n
SECTION 3.16. LIMITATION OF LIABILITY. In furtherance of the parties’
\n ———————–
\nselection of California law to govern this Agreement, the parties hereby
\nexpressly exclude rescission (Wandlung) and price reduction (Minderung) as
\n ——– ———
\nremedies for defective Products and agree that in no event shall German Civil
\nCode Paragraph 462 be applicable. To the extent permissible under applicable
\nlaw, AMD Saxonia assumes no liability in tort or strict liability, nor shall AMD
\nSaxonia be liable to AMD Holding, AMD Inc. or any AMD Inc. Affiliate for loss of
\nuse of Products or any other incidental, special, indirect or consequential
\ndamages or lost profits incurred by AMD Holding, AMD Inc. or an AMD Inc.
\nAffiliate. Without prejudice to Section 3.15, in no event shall the liability
\nof AMD Saxonia arising in connection with any Products sold hereunder exceed the
\nactual amount paid by AMD Holding to AMD Saxonia for Products involved in such
\nclaim.<\/p>\n
25<\/p>\n
ARTICLE IV<\/p>\n
TECHNICAL ASSISTANCE
\n ——————–<\/p>\n
SECTION 4.01. PROVISION OF KNOW-HOW AND ADVICE BY OR ON BEHALF OF AMD
\n ——————————————————-
\nHOLDING TO AMD SAXONIA.
\n———————-<\/p>\n
(a) AMD Holding shall from time to time disclose, or shall arrange for
\nAMD Inc. to disclose, to AMD Saxonia such of the Know-how and Specifications of
\nAMD Inc. and its Subsidiaries, and any Improvements to such Know-how and
\nSpecifications made by AMD Inc. or one or more of its Subsidiaries after such
\ndisclosure, as is necessary or, in the judgment of AMD Saxonia, reasonably
\ndesirable to enable AMD Saxonia to manufacture Products on an efficient and
\ntimely basis in accordance with the Specifications for the relevant Product
\n(such Know-how, Specifications and Improvements together being the “INTELLECTUAL
\nPROPERTY”). Without limiting the generality of the foregoing, AMD Holding shall
\nfrom time to time provide, or shall arrange for AMD Inc. to provide, one (1)
\ncopy (or if requested by AMD Saxonia, two (2) copies), on a non-exclusive basis,
\nof any Technical Documentation for such Intellectual Property in the possession
\nof AMD Inc. or one or more of its Subsidiaries.<\/p>\n
(b) To the extent necessary or, in the judgment of AMD Saxonia,
\nreasonably desirable, AMD Holding shall from time to time advise, or shall
\narrange for AMD Inc. to advise, AMD Saxonia, upon AMD Saxonia’s request in
\nwriting, in relation to (i) the configuration of the equipment installed or to
\nbe installed at the Plant and used for the production of each Product, the
\nSpecifications for which are disclosed to AMD Saxonia hereunder, and (ii) the
\nrequirements for such configuration, the installation of the equipment and the
\nmachinery in the Plant necessary for the manufacture of such Products and the
\ncalibration and testing of such equipment and machinery.<\/p>\n
(c) AMD Holding shall from time to time permit, or shall arrange for AMD
\nInc. to permit, AMD Saxonia to make such number of copies of the Technical
\nDocumentation, or any part thereof, provided or disclosed to it hereunder or in
\nconnection herewith as AMD Saxonia may require for the purposes of this
\nAgreement.<\/p>\n
(d) AMD Holding shall from time to time notify, or shall arrange for AMD
\nInc. to notify, AMD Saxonia promptly of any material errors in the Intellectual
\nProperty or Technical Documentation provided or disclosed to AMD Saxonia
\nhereunder or in connection herewith upon AMD Inc. or one or more of its other
\nSubsidiaries becoming aware thereof and, to the extent AMD Inc. or one or more
\nof its Subsidiaries develops or obtains a correction for such error, shall
\npromptly provide, or shall arrange for AMD Inc. to promptly provide, to AMD
\nSaxonia the Intellectual Property and\/or Technical Documentation to enable AMD
\nSaxonia to correct such error.<\/p>\n
(e) Without derogating from AMD Holding’s obligation to provide, or to
\narrange for AMD Inc. to provide, disclosure to AMD Saxonia of such of the Know-
\nhow and Specifications of AMD Inc. and its Subsidiaries, or which AMD Inc. or
\nits Subsidiaries have<\/p>\n
26<\/p>\n
the right to use, as is necessary to enable AMD Saxonia to manufacture Products
\nhereunder, but notwithstanding any other provision of this Section 4.01, AMD
\nHolding shall not be required to disclose or arrange for AMD Inc. to disclose
\nany Intellectual Property or Technical Documentation which AMD Inc. and its
\nSubsidiaries do not have a right to disclose or the disclosure of which would
\nrequire the payment of compensation to a third party.<\/p>\n
SECTION 4.02. EXPERT SUPPORT, TRAINING AND TECHNICAL ASSISTANCE.
\n ————————————————-<\/p>\n
(a) AMD Holding shall, upon AMD Saxonia’s request in writing, provide,
\nor arrange for AMD Inc. to provide, to AMD Saxonia, at the Plant, technical
\ndiscussions, lectures, guidance and\/or technical training in order to enable AMD
\nSaxonia to use, on a continuing basis for the purposes of this Agreement, the
\nIntellectual Property and Technical Documentation disclosed or to be disclosed
\nto AMD Saxonia hereunder or in connection herewith. Such discussions, lectures,
\nguidance and training shall be by AMD Holding and\/or AMD Inc. personnel who are
\nqualified to provide advice with respect to the relevant Intellectual Property
\nand Technical Documentation (“QUALIFIED PERSONNEL”).<\/p>\n
(b) The timing of visits of such AMD Holding and\/or AMD Inc. personnel
\nshall be arranged by agreement between AMD Holding and AMD Saxonia.<\/p>\n
(c) AMD Holding shall, upon AMD Saxonia’s request in writing, provide,
\nor arrange for AMD Inc. to provide, to AMD Saxonia, at the Plant, all technical
\nassistance necessary to remedy a Production Problem.<\/p>\n
SECTION 4.03. ACCESS TO COMPARABLE PLANTS. AMD Holding shall arrange for
\n —————————
\nAMD Inc. to permit AMD Saxonia to send, at the expense of AMD Saxonia or as
\notherwise agreed by AMD Inc., employees of AMD Saxonia to visit AMD Inc.’s Wafer
\nFabrication Plants, including in particular AMD Inc.’s plant in Austin, Texas
\nknown as “Fab 25” for so long as such plant is owned or controlled by AMD Inc.
\nor one or more of its Subsidiaries, at reasonable times for the purpose of
\nwitnessing and training in the use of any of the Intellectual Property and
\nTechnical Documentation provided or disclosed to it hereunder. AMD Holding shall
\nupon AMD Saxonia’s request in writing, provide, or arrange for AMD Inc. to
\nprovide, to such AMD Saxonia employees at such Wafer Fabrication Plants
\ntechnical discussions, lectures, guidance and\/or technical training by Qualified
\nPersonnel in order to enable such AMD Saxonia employees to understand the usage
\nbeing made at such Wafer Fabrication Plants of the relevant Intellectual
\nProperty and Technical Documentation.<\/p>\n
SECTION 4.04. CHARGE FOR TECHNICAL ASSISTANCE.
\n ——————————-<\/p>\n
(a) As compensation in full for the performance of the services
\ncontemplated under this Article IV, AMD Saxonia shall reimburse AMD Holding for
\n(i) all reasonable out-of-pocket expenses incurred by AMD Holding or AMD Inc.,
\nas the case may be, in connection with providing such services, plus (ii) the
\nreasonable salaries and other remuneration of the relevant personnel involved.
\nIn this regard, AMD Holding shall issue quarterly invoices to AMD Saxonia
\nitemizing in detail the basis for each invoiced amount.<\/p>\n
27<\/p>\n
Prior to the Effective Date, all such invoiced amounts shall, notwithstanding
\nSection 3.10, be paid by AMD Saxonia within thirty (30) days of its receipt of
\nthe relevant invoice. Payments shall be made in DM by wire transfer. From and
\nafter the Effective Date and subject to Section 6.02(c), payments shall be made
\nonly in the form of credits against amounts owed or to be owed by AMD Holding to
\nAMD Saxonia under this Agreement.<\/p>\n
(b) The parties agree that any invoiced amounts to be paid or credited
\nby AMD Saxonia under this Section 4.04 shall not duplicate amounts charged for
\nservices provided directly by AMD Inc. pursuant to the Management Service
\nAgreement.<\/p>\n
(c) The foregoing notwithstanding, (i) in no event shall the aggregate
\namounts to be paid by AMD Saxonia under this Section 4.04 and under the
\nManagement Service Agreement prior to the Effective Date exceed DM 135,000,000
\n(One Hundred Thirty-Five Million), and (ii) the parties agree that, without
\nprejudice to the License Agreement, any Intellectual Property provided in any
\nform to AMD Saxonia for its use hereunder is provided at no charge.<\/p>\n
ARTICLE V<\/p>\n
ACCOUNTING REPORTS; OTHER REPORTS;
\n ———————————-
\n RIGHT OF INSPECTION BY OR ON BEHALF OF AMD HOLDING
\n ————————————————–<\/p>\n
SECTION 5.01. ANNUAL ACCOUNTING REPORTS FROM AMD SAXONIA. AMD Holding
\n ——————————————
\nand its duly authorized representatives (which may include duly authorized
\nrepresentatives of AMD Inc.) and, if the Loan Agreement Termination Date has not
\nyet taken place, the Agent shall at all reasonable times have access to the
\nbooks and accounts kept by AMD Saxonia and annually upon the closing of the
\nFiscal Year all such books and accounts shall be audited by Ernst & Young GmbH
\nor such other firm of independent and internationally known public accountants
\nas may be selected by AMD Saxonia with the approval of AMD Holding and, if the
\nLoan Agreement Termination Date has not yet taken place, the Agent (the consent
\nof the Agent not to be unreasonably withheld). A copy of each such report of
\naudit, together with a reconciliation of AMD Saxonia’s fiscal year figures to
\nthe statutory financial statements of AMD Saxonia, shall be sent promptly to AMD
\nHolding and, prior to the Loan Agreement Termination Date, the Agent. AMD
\nHolding and its duly authorized representatives (which may include duly
\nauthorized representatives of AMD Inc.) shall also have the right to examine and
\ninspect at any reasonable time all properties and operations of AMD Saxonia to
\nwhich this Agreement relates.<\/p>\n
SECTION 5.02. PERIODIC WRITTEN REPORT REGARDING AMD INC. AMD Holding
\n —————————————–
\nshall prepare and deliver, or shall arrange for AMD Inc. to prepare and deliver,
\nto AMD Saxonia and, if the Loan Agreement Termination Date has not yet taken
\nplace, the Agent not later than 30 days after the end of each Period commencing
\non or after the Effective Date a written report in form and substance reasonably
\nsatisfactory to the Agent and AMD Saxonia discussing in reasonable detail AMD
\nInc.’s production volumes of all Comparable Products and AMD Inc.’s purchase
\nvolumes of Comparable Products produced<\/p>\n
28<\/p>\n
by third parties and the Capacity as well as Capacity Utilization levels of
\nother AMD Inc. Wafer Fabrication Plants producing Comparable Products and, to
\nthe extent relevant to this Agreement, other information that AMD Saxonia
\nand\/or, if the Loan Agreement Termination Date has not yet taken place, the
\nAgent may reasonably request in connection with this Agreement.<\/p>\n
SECTION 5.03. ACCOUNTANTS’ CERTIFICATION; OFFICER’S CERTIFICATE.
\n ————————————————-<\/p>\n
(a) The amount of Excess Start-up Cost or Start-up Cost Savings
\nshall be determined promptly, but in no event later than 60 days, after the
\nEffective Date pursuant to Section 3.04(b). Such determination shall be
\nevidenced by a Start-up Cost Adjustment Certification duly signed by AMD Saxonia
\nand duly signed by AMD Saxonia’s certified public accountants.<\/p>\n
(b) Promptly, but in no event later than 60 days, after the end of each
\n4 Quarter Period, AMD Saxonia shall provide AMD Holding and, if the Loan
\nAgreement Termination Date has not yet taken place, the Agent with an Annual
\nPricing Compliance Certificate duly examined and certified by AMD Saxonia’s
\ncertified public accountant stating that the Adjusted Selling Price Per Wafer
\nhas been calculated in accordance with the formulas set out in Section 3.03, and
\nthat all necessary adjustments pursuant to Sections 3.04 through 3.06 have been
\nmade.<\/p>\n
(c) Promptly, but in no event later than 30 days, after the end of each
\nPeriod, AMD Saxonia shall provide AMD Holding and, if the Loan Agreement
\nTermination Date has not yet taken place, the Agent with a Quarterly Pricing
\nCompliance Certificate duly signed by one of its managing directors stating that
\nthe Adjusted Selling Price Per Wafer has been calculated in accordance with the
\nformulas set out in Section 3.03 and that all necessary adjustments pursuant to
\nSections 3.04 and 3.05 have been made.<\/p>\n
(d) Promptly, but in no event later than 60 days, after the end of each
\n4 Quarter Period following Completion in which Actual Volume for such 4 Quarter
\nPeriod was less than 75% of Anticipated Capacity for such 4 Quarter Period, AMD
\nSaxonia shall provide AMD Holding and, if the Loan Agreement Termination Date
\nhas not yet taken place, the Agent with a Pari Passu Compliance Certificate duly
\nsigned and certified by AMD Saxonia’s certified public accountant confirming
\nwhether or not there has been an Uneven Capacity Allocation and setting out all
\nrelevant details therefor.<\/p>\n
(e) Promptly, but in no event later than 30 days, after the end of each
\nPeriod, AMD Saxonia shall provide AMD Holding and, if the Loan Agreement
\nTermination Date has not yet taken place, the Agent with a Certificate
\ncertifying the amounts invoiced and\/or paid or credited under the Management
\nService Agreement and Section 4.04. Promptly, but in no event later than 60
\ndays, after the end of each 4 Quarter Period, AMD Saxonia shall provide AMD
\nHolding and, if the Loan Agreement Termination Date has not taken place, the
\nAgent with a certificate duly signed and certified by AMD Saxonia’s certified
\npublic accountant confirming the amounts invoiced and\/or paid or credited under
\nthe Management Service Agreement and Section 4.04.<\/p>\n
29<\/p>\n
SECTION 5.04. ACCESS TO AMD INC. FACILITIES. If the Loan Agreement
\n —————————–
\nTermination Date has not yet taken place, AMD Holding agrees to arrange for AMD
\nInc. to give reasonable access upon reasonable notice, to any Person duly
\ndesignated by the Agent, to any of AMD Inc.’s Wafer Fabrication Plants and other
\nAMD Inc. manufacturing or research facilities and all books, records, facilities
\nand information the Agent may reasonably require for purposes of this Agreement.<\/p>\n
ARTICLE VI<\/p>\n
EFFECTIVENESS; TERMINATION
\n ————————–<\/p>\n
SECTION 6.01. EFFECTIVENESS; TERMINATION.
\n —————————————–<\/p>\n
(a) This Agreement shall become effective on the date hereof and
\n(unless otherwise extended as hereinafter provided) shall terminate on the date
\n(the “INITIAL TERMINATION DATE”) which is the earlier of (i) the Loan Agreement
\nTermination Date and (ii) the Termination Date. At the option of AMD Holding,
\nexercised by giving notice to AMD Saxonia and AMD Inc. at least six months prior
\nto the Loan Agreement Termination Date, and provided that no Termination Event
\nhas occurred and is continuing, this Agreement may be extended for one
\nadditional three year term. At the option of AMD Saxonia, exercised by giving
\nnotice to AMD Holding and AMD Inc. at least six months prior to the Loan
\nAgreement Termination Date, and provided that no Termination Event has occurred
\nand is continuing, the initial term of this Agreement may be extended for one
\nadditional three year term (to the extent not previously extended by AMD Holding
\npursuant to the preceding sentence).<\/p>\n
(b) Each of the events described in this Section 6.01(b), whether or not
\nsuch events directly or indirectly affect AMD Saxonia or AMD Holding, shall
\nconstitute a Termination Event. If a Termination Event has occurred and is
\ncontinuing, AMD Saxonia (or, if prior to the Loan Agreement Termination Date,
\nthe Security Agent on behalf of AMD Saxonia pursuant to and in accordance with
\nthe Security Documents (as defined in the Sponsors’ Support Agreement)) may, by
\nnotice to AMD Holding and AMD Inc. and, if prior to the Loan Termination Date,
\nwith the consent of the Agent, which consent shall be communicated by the Agent
\nto both AMD Holding and AMD Inc., terminate this Agreement in case of any of the
\nTermination Events described in clauses (vii) through (xv) below. In addition,
\nthis Agreement shall automatically terminate (without any requirement for any
\naction by any party hereto) immediately upon the occurrence of the Termination
\nEvent described in clauses (i) through (vi) below, and in the case of any other
\nTermination Event shall terminate on the date any such notice is given (the date
\nof any such automatic or other termination being the “TERMINATION DATE”). The
\nTermination Events are as follows:<\/p>\n
(i) the expropriation or condemnation of the Plant or any substantial
\n part of the assets or business of AMD Saxonia or AMD Holding by any
\n Governmental Authority, or the involuntary suspension, or curtailment below
\n seventy-five percent of capacity, by AMD Saxonia of the operation of the
\n Plant for six months or more as a <\/p>\n
30<\/p>\n
result of any change in or introduction of any Law, or any change in the
\n interpretation or application thereof, in each case occurring after the
\n date hereof;<\/p>\n
(ii) AMD Inc. or AMD Holding being required by any Governmental
\n Authority to divest itself of all or a substantial portion of its direct or
\n indirect interest in AMD Saxonia, or AMD Saxonia being required by any
\n Governmental Authority to divest itself or all or a substantial portion of
\n the Plant;<\/p>\n
(iii) the destruction of the Plant or a substantial portion thereof and
\n a decision by AMD Saxonia not to rebuild the same after having received
\n insurance proceeds in respect of such destruction in an amount at least
\n equal to the depreciated book value of such Plant or substantial portion
\n thereof;<\/p>\n
(iv) obligations of AMD Saxonia being accelerated following lapse of
\n any applicable grace periods as a result of the occurrence of an event
\n described in Section 21 of the Loan Agreement which would allow the Banks
\n to terminate the Loan Agreement, and\/or the Agent, Security Agent or any of
\n the Banks exercising remedies pursuant to any of the Security Documents (as
\n defined in the Loan Agreement);<\/p>\n
(v) the involuntary (including without limitation as a result of
\n enforcement of any rights of security granted in shares of AMD Holding
\n and\/or AMD Saxonia or performance of any undertakings to transfer such
\n shares made to secure obligations of AMD Holding and\/or AMD Saxonia)
\n transfer of a controlling interest in AMD Holding and\/or AMD Saxonia from
\n AMD Inc. and its Subsidiaries to one or more third parties;<\/p>\n
(vi) the involuntary dissolution or winding up of the business of AMD
\n Holding and\/or AMD Saxonia;<\/p>\n
(vii) failure by AMD Holding or AMD Inc. to make any payment required
\n from it hereunder or under the AMD Inc. Guaranty, AMD Holding Wafer
\n Purchase Agreement, AMD Saxonia Research Agreement, AMD Holding Research
\n Agreement or Sponsors’ Support Agreement within 45 days of the date due
\n therefor, or default by AMD Holding or AMD Inc. in the performance of or
\n compliance with any other term contained in this Agreement or any such
\n other agreement and such default shall not have been remedied or waived
\n within 30 days after receipt of notice from AMD Saxonia or, if the Loan
\n Agreement Termination Date has not yet taken place, the Agent of such
\n default;<\/p>\n
(viii) any of AMD Holding’s representations or warranties made herein or
\n in any statement or certificate at any time given by AMD Holding in writing
\n pursuant to this Agreement being false in any material respect on the date
\n as of which made, or any of AMD Inc.’s representations or warranties made
\n in the AMD Holding Wafer Purchase Agreement or the AMD Holding Research
\n Agreement or in any statement or certificate at any time given by AMD Inc.
\n in writing pursuant to any thereof being false in any material respect on
\n the date as of which made;<\/p>\n
31<\/p>\n
(ix) bankruptcy (Konkursverfahren), composition (Vergleichsverfahren)
\n —————- ——————-
\n or enforcement proceedings (Gesamtvollstreckungsverfahren) are instituted
\n —————————–
\n against the assets (Vermogen) of AMD Holding and not withdrawn or denied
\n ——–
\n within 30 days of the date the application for such proceedings is made; or
\n the institution of such proceedings is denied for lack of assets to cover
\n the costs of such proceedings;<\/p>\n
(x) execution is issued (Einleitung der Zwangsvollstreckung) against
\n ———————————-
\n all or a substantial part of the assets of AMD Holding unless such
\n execution is withdrawn within three weeks of the issuance thereof;
\n realization of such execution; or the realization of execution on the
\n equity shares of AMD Saxonia owned by AMD Holding;<\/p>\n
(xi) the discontinuance of payments generally (Zahlungseinstellung) by
\n ——————-
\n AMD Holding;<\/p>\n
(xii) the adoption of a resolution by the managing directors
\n (Geschaftsfuhrer) of AMD Holding for the institution of liquidation
\n —————
\n proceedings (Liquidationsverfahrens) for AMD Holding;
\n ———————-<\/p>\n
(xiii) a court having jurisdiction in the premises entering a decree or
\n order for relief in respect of AMD Inc. in an involuntary case under any
\n applicable bankruptcy, insolvency or other similar law now or hereafter in
\n effect, which decree or order is not stayed; or any other similar relief
\n being granted under any applicable federal or state law;<\/p>\n
(xiv) a decree or order of a court having jurisdiction in the premises
\n for the appointment of a receiver, liquidator, sequestrator, trustee,
\n custodian or other officer having similar powers over AMD Inc. or over all
\n or a substantial part of its property, having been entered; or the
\n involuntary appointment of an interim receiver, trustee or other custodian
\n of AMD Inc. for all or a substantial part of its property; or the issuance
\n of a warrant of attachment, execution or similar process against any
\n substantial part of the property of AMD Inc.; and the continuance of any
\n such events in this clause (xiv) for 90 days unless stayed, dismissed,
\n bonded or discharged; or<\/p>\n
(xv) AMD Inc. having an order for relief entered with respect to it or
\n commence a voluntary case under any applicable bankruptcy, insolvency or
\n other similar law now or hereafter in effect, or consenting to the entry of
\n an order for relief in an involuntary case, or to the conversion of an
\n involuntary case to a voluntary case, under any such law, or consenting to
\n the appointment of or taking possession by a receiver, trustee or other
\n custodian for all or a substantial part of its property; the making by AMD
\n Inc. of any assignment for the benefit of creditors; or the inability or
\n failure by AMD Inc. or the admission by AMD Inc. in writing of its
\n inability to pay its debts as such debts become due; or the Board of
\n Directors of AMD Inc. (or any committee thereof) adopting any resolution or
\n otherwise authorizing action to approve any of the foregoing. <\/p>\n
32<\/p>\n
SECTION 6.02. RIGHTS UPON TERMINATION.
\n ———————–<\/p>\n
(a) Promptly, but in no event later than 20 days following the
\nTermination Date,<\/p>\n
(i) the Adjusted Selling Price Per Wafer for the Period ending
\n on the Termination Date shall be calculated in accordance with Section
\n 3.03;<\/p>\n
(ii) in the event that the Termination Date occurs before all of
\n the Excess Start-up Costs or the Start-up Cost Savings, whichever the case
\n may be, has been paid in accordance with Section 3.04, the amount of any
\n unpaid Excess Start-up Costs or Start-up Costs Savings shall be calculated
\n in accordance with Section 3.04;<\/p>\n
(iii) if no Products were Shipped in the Period ending on the
\n Termination Date, the final Advance Payment Adjustment Amount for that
\n Period shall be calculated in accordance with Section 3.05;<\/p>\n
(iv) the Fixed Cost Compensation Amount for the Period ending on
\n the Termination Date shall be calculated in accordance with Section 3.06;
\n and<\/p>\n
(v) the Pari Passu Compensation Amount shall be calculated in
\n accordance with Section 3.12.<\/p>\n
(b) Upon termination of this Agreement for any reason, AMD Holding
\nshall purchase all inventory and work-in-process of AMD Saxonia as of the
\nTermination Date. The purchase price shall be equal to the value thereof as
\nshown in the books of AMD Saxonia in accordance with German GAAP.<\/p>\n
(c) Upon termination of this Agreement for any reason, any amounts due
\nfrom AMD Holding to AMD Saxonia pursuant to Sections 3.03, 3.04, 3.05, 3.06,
\n3.07, 3.10, 3.12, and\/or 6.02 (b) (including any amounts calculated in respect
\nthereof pursuant to Sections 6.02(a) and (b)) shall be aggregated, and any
\namounts due (whether in the form of an obligation to pay or credit) from AMD
\nSaxonia to AMD Holding pursuant to Sections 3.03, 3.04, 3.06, 3.10 and 4.04
\n(including any amounts calculated in respect thereof pursuant to Sections
\n6.02(a)) and the Management Service Agreement shall be aggregated. If the
\naggregate amount payable by AMD Holding exceeds the aggregate amount payable
\nand\/or to be credited by AMD Saxonia, then each party’s obligation to make
\npayment of any such amount will be automatically satisfied and discharged and
\nreplaced by an obligation upon AMD Holding to pay to AMD Saxonia the excess of
\nthe larger aggregate amount over the smaller aggregate amount. If the aggregate
\namount payable by AMD Saxonia exceeds the aggregate amount payable by AMD
\nHolding, then each party’s obligation to make payment of any such amount will be
\nautomatically discharged and the amount of such excess shall be additional
\ncompensation, to be retained by AMD Saxonia for the early termination of this
\nAgreement, and AMD Saxonia shall have no obligation to pay such amount to AMD
\nHolding.<\/p>\n
SECTION 6.03. SURVIVAL. The provisions of Sections 3.14, 3.15, 3.16,
\n ——–
\n6.02, 7.09, 7.10, 7.11 and 7.13 shall survive any termination of this Agreement.<\/p>\n
33<\/p>\n
ARTICLE VII<\/p>\n
MISCELLANEOUS
\n ————-<\/p>\n
SECTION 7.01. REPRESENTATIONS AND WARRANTIES GENERALLY. Each of AMD
\n —————————————-
\nHolding and AMD Saxonia hereby represents and warrants to the other as follows:<\/p>\n
(a) Organization; Corporate Power. It is duly incorporated and validly
\n —————————–
\nexisting under the laws of the jurisdiction of its organization, and has all
\nnecessary power and authority to (i) own its assets and to carry on the business
\nin which it is engaged; and (ii) execute, deliver and perform its obligations
\nunder this Agreement;<\/p>\n
(b) Corporate Authority; No Conflict. The execution, delivery and
\n ——————————–
\nperformance by it of this Agreement have been duly authorized by all necessary
\ncorporate action (including any necessary shareholder action) on its part, and
\ndo not and will not (i) violate any provision of any law, rule, regulation,
\norder, writ, judgment, injunction, decree, determination or award presently in
\neffect having applicability to it, or of its charter or by-laws or (ii) result
\nin a breach of, result in a mandatory prepayment or acceleration of indebtedness
\nevidenced by or secured by, or constitute a default under, any indenture or loan
\nor credit agreement, or any other agreement or instrument to which it is a party
\nor by which it or its properties may be bound, or require the creation or
\nimposition of any encumbrance of any nature upon or with respect to any of the
\nproperties now owned or hereafter acquired by it, and it is not in default under
\nor in violation of its charter or by-laws or any law, rule, regulation, order,
\nwrit, judgment, injunction, decree, determination, award, indenture or
\ninstrument, which default or violation, individually or in the aggregate, would
\nreasonably be expected to have a material adverse effect on its financial
\ncondition, business, operations, or prospects;<\/p>\n
(c) Valid and Binding Obligations. This Agreement constitutes its
\n —————————–
\nlegal, valid and binding obligation, enforceable against it in accordance with
\nits terms subject, however, to applicable bankruptcy, insolvency,
\nreorganization, moratorium or similar laws affecting creditors’ rights generally
\nand, as to enforceability, by general equitable principles; and<\/p>\n
(d) No Litigation. No litigation, arbitration proceedings or
\n ————-
\ngovernmental proceedings are pending or to its knowledge, threatened, which
\npertain to this Agreement or any of the transactions contemplated thereby.<\/p>\n
AMD Holding acknowledges that it has no right to terminate this Agreement or
\noffset payments hereunder because of any breach by AMD Saxonia of the
\nrepresentations and warranties contained herein.<\/p>\n
SECTION 7.02. FORCE MAJEURE.
\n ————-<\/p>\n
(a) A party to this Agreement shall not be liable for the consequences
\nof any failure to perform, or default in performing, any of its obligations,
\nother than its payment <\/p>\n
34<\/p>\n
obligations, under this Agreement if that party can show that such failure is
\ncaused by Force Majeure.<\/p>\n
(b) Where there has been any such failure, the said failure shall not
\nbe considered non-compliance with any term or condition of this Agreement, and
\nall the obligations (other than payment obligations) and times which because of
\nsuch failure could not be fulfilled shall be deemed to have been suspended while
\nthe failure continues. In addition, the party for whom such obligations and\/or
\ntimes have been suspended shall be entitled to take reasonable steps during the
\npendency of the relevant Force Majeure to limit its losses resulting from such
\nForce Majeure, and following the termination of such Force Majeure such
\nobligations and\/or times shall continue to be suspended for such further
\nreasonable period as is necessary for such party to restore its capacity to
\nperform such obligations and\/or meet such times.<\/p>\n
SECTION 7.03. RELATIONSHIP OF PARTIES. AMD Holding and AMD Saxonia
\n ———————–
\nshall at all times be independent contractors with respect to each other.
\nNothing in this Agreement shall constitute either party hereto as the partner,
\njoint venturer, employee or agent of the other such party or of AMD Inc., and
\nneither AMD Holding nor AMD Saxonia shall act or omit to act in such a way as to
\nsuggest the contrary to any Person.<\/p>\n
SECTION 7.04. ASSIGNMENT. This Agreement shall be binding upon and
\n ———-
\nenure to the benefit of each party hereto and their respective successors and
\nassigns; provided, however, that neither party hereto shall have the right to
\ntransfer or assign its interest in this Agreement without the prior written
\nconsent of both the other party hereto, AMD Inc. and, prior to the Loan
\nAgreement Termination Date, of the Agent; provided further that AMD Saxonia may
\n —————-
\nassign this Agreement to the Agent as security for obligations of AMD Saxonia
\nunder the Loan Agreement and the Agent may assign this Agreement to any direct
\ntransferee of the Plant in the proper exercise of the Agent’s enforcement rights
\nin respect of such security.<\/p>\n
SECTION 7.05. WAIVERS. No delay or omission in exercise of any right
\n ——-
\nor remedy of either party or any default by the other, and no custom or practice
\nof the parties at variance with the terms of this Agreement, shall impair any
\nright or remedy otherwise available nor shall it be construed as a waiver of any
\nright or remedy. Any waiver by either party or any default must be in writing
\nand shall not be a waiver of any other default concerning the same or any other
\nprovision. AMD Saxonia shall have no right to waive any of its rights or
\nremedies under this Agreement without the prior written consent of AMD Inc. and,
\nprior to the Loan Agreement Termination Date, the Agent.<\/p>\n
SECTION 7.06. RIGHTS CUMULATIVE. The rights, remedies and powers of
\n —————–
\neach of the parties contained in this Agreement are cumulative and not exclusive
\nof any rights, remedies or powers provided to the parties by Law. No single or
\npartial exercise by any of the parties hereto of any right, remedy or power
\nunder this Agreement shall preclude any other or further exercise thereof or the
\nexercise of any other right, power or remedy.<\/p>\n
35<\/p>\n
SECTION 7.07. NOTICES. All notices and other communications required
\n ——-
\nor permitted to be given to or made upon any party hereto shall be in writing
\nand shall be personally delivered or sent by registered or certified mail,
\npostage pre-paid, return receipt requested, or by pre-paid telex, TWX or
\ntelegram, or by pre-paid courier service, or by telecopier, to the respective
\nparties hereto at their respective addresses (or to their respective telex, TWX
\nor telecopier numbers) indicated below, or such other addresses or numbers
\nspecified in a notice sent or delivered in accordance with the provisions of
\nthis Section 7.07. Any such notice or communication shall be deemed to be given
\nfor purposes of this Agreement on the day that such writing or communication is
\ndelivered or, in the case only of a telex, TWX or telegram, sent to the intended
\nrecipient thereof, or in the case only of telecopier, sent to the intended
\nrecipient thereof with confirmation of receipt, all in accordance with the
\nprovision of this Section 7.07.<\/p>\n
If to AMD Holding:<\/p>\n
AMD Saxony Holding GmbH
\n Washingtonstrasse 16 A\/B
\n 01139 Dresden
\n Attention: Geschaftsfuhrer
\n Facsimile: +49 351 8412 150 <\/p>\n
with a copy to AMD Inc.: <\/p>\n
Advanced Micro Devices, Inc.
\n One AMD Place
\n P.O. Box 3453
\n Sunnyvale, California 94088
\n Attention: General Counsel
\n Facsimile: +1 408 774 7399 <\/p>\n
If to AMD Saxonia: <\/p>\n
AMD Saxony Manufacturing GmbH
\n Washingtonstrasse 16 A\/B
\n 01139 Dresden
\n Attention: Geschaftsfuhrer
\n Facsimile: +49 351 8412 150 <\/p>\n
with a copy to:<\/p>\n
Dresdner Bank AG
\n Dr. Kulz-Ring 10
\n 01067 Dresden
\n Attention: Direktion
\n Facsimile: + 49 351 489 1350 <\/p>\n
36<\/p>\n
SECTION 7.08. NO EFFECT ON OTHER AGREEMENTS. No provision of this
\n —————————–
\nAgreement shall be construed so as to negate, modify or affect in any way the
\nprovisions of any other agreement among any of AMD Inc., AMD Holding and AMD
\nSaxonia except as specifically provided in any such other agreement.<\/p>\n
SECTION 7.09. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
\n ————-
\nSHALL BE CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
\nCALIFORNIA, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES. THE PARTIES
\nEXPRESSLY EXCLUDE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR
\nTHE SALE OF GOODS OF APRIL 11, 1980.<\/p>\n
SECTION 7.10. DISPUTE RESOLUTION. Subject to Section 7.10 (j) below,
\n ——————
\narbitration under this Section 7.10 shall be the exclusive means for a party to
\nseek resolution of any dispute arising out of, relating to or connected with
\nthis Agreement, except that either party may bring an action before a competent
\ncourt for the issuance of provisional or protective measures.<\/p>\n
(a) The parties hereto agree to submit any dispute, controversy or
\nclaim (“DISPUTE”) arising out of, relating to or in any way connected with this
\nAgreement to final and binding arbitration in Santa Clara County, California,
\nunder the Commercial Arbitration Rules and Supplementary Procedures for
\nInternational Commercial Arbitration of the American Arbitration Association
\n(“AAA”) then in force except as modified in accordance with the provisions of
\nthis Section 7.10.<\/p>\n
(b) The arbitral tribunal shall be composed of three arbitrators, one
\nappointed by each party, and the two arbitrators so appointed shall, within 15
\ndays appoint a third arbitrator who shall be chosen from a country other than
\nthose of which the parties are nationals, who shall be fluent in English, and
\nwho shall act as Chairman of the tribunal.<\/p>\n
(c) In arriving at decisions, the arbitrators shall apply the terms and
\nconditions of this Agreement in accordance with the laws of California.<\/p>\n
(d) The award shall be deemed a U.S. award for purposes of the
\nConvention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958
\n(the “NEW YORK CONVENTION”). The English language shall be used in the arbitral
\nproceedings and all exhibits and other evidence in a language other then English
\nshall be accompanied by English translations when submitted into evidence before
\nthe arbitral tribunal.<\/p>\n
(e) The arbitrators are empowered to render the following awards in
\naccordance with any provision of this Agreement or any related agreement: (i)
\nenjoining a party from performing any act prohibited, or compelling a party to
\nperform any act required, by the terms of this Agreement or any related
\nagreement and any order entered pursuant to this Agreement and (ii) ordering
\nsuch other legal or equitable relief, including any provisional legal or
\nequitable relief, or specifying such procedures as the arbitrator deems
\nappropriate, to resolve any Dispute submitted for arbitration. The parties shall
\nbe entitled to discover all <\/p>\n
37<\/p>\n
documents and other information reasonably necessary for a full understanding of
\nany legitimate issue raised in the arbitration. They may use all methods of
\ndiscovery customary under U.S. federal law, including but not limited to
\ndepositions, requests for admission, and requests for production of documents.
\nThe time periods for compliance shall be set by the arbitrators, who may also
\nset limits on the scope of such discovery. The arbitrators shall not be
\nempowered to award consequential or punitive damages.<\/p>\n
(f) Either party may file an application in any proper court described
\nin Section 7.11 hereof for a provisional remedy in connection with an arbitrable
\ncontroversy hereunder, but only upon the ground that the award to which the
\napplicant may be entitled may be rendered ineffectual without provisional
\nrelief.<\/p>\n
(g) The arbitrators shall issue to both parties a written explanation
\nin English of the reasons for the award and a full statement of the facts as
\nfound and the rules of law applied in reaching the decision.<\/p>\n
(h) Any monetary award shall be made and shall be payable in DM free of
\nany tax or any deduction.<\/p>\n
(i) The award of the arbitral tribunal will be the sole and exclusive
\nremedy between the parties regarding any and all claims and counterclaims with
\nrespect to the subject matter of the arbitrated dispute. An award rendered in
\nconnection with an arbitration pursuant to this Section 7.10 shall be final and
\nbinding upon the parties, and any judgment upon which an award may be entered
\nand enforced in any court of competent jurisdiction.<\/p>\n
(j) Notwithstanding the foregoing, the parties agree that any disputes
\nhereunder relating solely to accounting matters shall be resolved by an auditor,
\nappointed as provided below, acting as an expert (and not as an arbitrator), and
\nthat the resolution by such independent auditor of any such matter shall be
\nconclusive between the parties absent manifest error. Such auditor shall be
\nappointed by mutual agreement of the parties’ respective auditors, and, if prior
\nto the Loan Agreement Termination Date, of the Agent and shall be an independent
\nand internationally known certified public accounting firm with no affiliation
\nwith either the parties, the Agent or any of their respective auditors.<\/p>\n
(k) Notwithstanding the foregoing, the parties agree that any dispute
\nbetween the parties and\/or the Technical Advisor as to the Capacity of the Plant
\nor any Wafer Fabrication Plant shall be resolved by an independent technical
\nconsultant, appointed by the parties as provided below, acting as an expert (and
\nnot as an arbitrator), and that the resolution of the independent technical
\nconsultant shall be conclusive between the parties absent manifest error. Such
\ntechnical consultant shall be appointed by mutual agreement of the parties and,
\nprior to the Loan Agreement Termination Date, the Agent, and shall be an
\nindependent and internationally known technical consultant with relevant
\nexpertise regarding the manufacture of Wafers and similar products.<\/p>\n
SECTION 7.11. CONSENT TO JURISDICTION AND FORUM; AMD HOLDING AND AMD
\n ——————————————————
\nSAXONIA APPOINTMENT OF AGENT FOR SERVICE OF PROCESS.
\n—————————————————<\/p>\n
38<\/p>\n
(a) Subject to Section 7.10, all judicial proceedings brought against
\neither party hereto with respect to this Agreement may be brought in Santa Clara
\nCounty, California, and by execution and delivery of this Agreement, each such
\nparty accepts for itself and in connection with its properties, generally and
\nunconditionally, the nonexclusive jurisdiction of such courts. In addition, each
\nsuch party hereby irrevocably and unconditionally waives, to the fullest extent
\npermitted by law, any objection which it may now or hereafter have to the laying
\nof venue of any such proceedings, and hereby further irrevocably and
\nunconditionally waives and agrees to the fullest extent permitted by law not to
\nplead or claim that any such proceeding brought in any such court has been
\nbrought in an inconvenient forum.<\/p>\n
(b) AMD Holding hereby irrevocably appoints CT Corporation Services as
\nits agent to receive on behalf of AMD Holding and its property service of copies
\nof the summons and complaint and any other process which may be served in any
\nproceeding in any state or federal court of competent jurisdiction in the State
\nof California.<\/p>\n
(c) AMD Saxonia hereby irrevocably appoints CT Corporation Services as
\nits agent to receive on behalf of AMD Saxonia and its property service of copies
\nof the summons and complaint and any other process which may be served in any
\nproceeding in any state or federal court of competent jurisdiction in the State
\nof California.<\/p>\n
SECTION 7.12. JUDGMENT CURRENCY. The parties hereto agree that,
\n —————–
\nwithout prejudice to Sections 7.10 and 7.11 above:<\/p>\n
(a) if, for purposes of obtaining hereunder an arbitral award or
\njudgment of any court, it is necessary to convert a sum due hereunder in DM into
\nanother currency, the rate of exchange used shall be that at which in accordance
\nwith normal banking procedures the prevailing party could purchase DM with such
\nother currency on the Business Day preceding that on which the final award or
\njudgment (as applicable) is given; and<\/p>\n
(b) the obligation of each of the parties hereto in respect of any sum
\ndue hereunder from it (the “PAYOR”) to the other party (the “RECIPIENT”) shall,
\nnotwithstanding any judgment in a currency other than DM, be discharged only to
\nthe extent that on the Business Day following receipt by the Recipient of any
\nsum adjudged to be so due in such other currency, the Recipient may, in
\naccordance with normal banking procedures, purchase DM with such other currency;
\nin the event that the DM so purchased is less than the sum originally due to the
\nRecipient, the Payor, as a separate obligation and notwithstanding any such
\njudgment or award, hereby agrees to indemnify and hold harmless the Recipient
\nagainst such loss, and if the DM so purchased exceeds the sum originally due to
\nthe Recipient, the Recipient shall remit to the Payor the excess.<\/p>\n
SECTION 7.13. LANGUAGE. This Agreement is in the English language,
\n ——–
\nwhich language shall be controlling in all respects.<\/p>\n
SECTION 7.14. ENTIRE AGREEMENT. This Agreement, the AMD Saxonia Research
\n —————-
\nAgreement, the License Agreement, the Sponsors’ Subordination Agreement (as<\/p>\n
39<\/p>\n
defined in the Loan Agreement) and the Management Service Agreement embody the
\nentire agreement and understanding between the parties with respect to the
\nsubject matter hereof. Neither party has relied upon any representation or
\nwarranty of the other party in entering into this Agreement except as expressly
\nset forth herein. AMD Holding further acknowledges and agrees that its
\nobligations hereunder shall remain in full force and effect notwithstanding the
\nbreach by AMD Saxonia of any representation or warranty contained herein.<\/p>\n
SECTION 7.15. COUNTERPARTS. This Agreement may be executed in one or
\n ————
\nmore counterparts and by different parties hereto in separate counterparts, each
\nof which when so executed and delivered shall be deemed an original but all such
\ncounterparts together shall constitute but one and the same instrument;
\nsignature pages may be detached from multiple counterparts and attached to a
\nsingle counterpart so that all signature pages are physically attached to the
\nsame document.<\/p>\n
SECTION 7.16. AMENDMENTS. No modifications or amendments to this
\n ———-
\nAgreement shall be binding unless in writing and executed by each of the parties
\nhereto. In addition, no modification or amendment to this Agreement may be made
\nwithout the prior written consent of AMD Inc. and, if prior to the Loan
\nAgreement Termination Date, the Agent.<\/p>\n
SECTION 7.17. EMU. The European Economic and Monetary Union
\n —
\nanticipates the introduction of a single currency and the substitution of the
\nnational currencies of Member States participating in the Monetary Union. On the
\ndate on which the DM is replaced by the single currency, conversion into such
\ncurrency shall take effect. The denomination of the original currency shall be
\nretained for so long as this is legally permissible. Conversions shall be based
\non the officially fixed rate of conversion. Neither the introduction of the
\nsingle currency nor the substitution of the national currencies of the Member
\nStates participating in European Monetary Union nor the fixing of the official
\nrate of conversion nor any economic consequences that arise from any of the
\naforementioned events or in connection with European Monetary Union shall give
\nrise to any right to terminate prematurely, contest, cancel, rescind, modify, or
\nrenegotiate this Agreement or any of its provisions or to raise any other
\nobjections and\/or exceptions or to assert any claims for compensation. This
\nAgreement shall continue in full force and effect in accordance with its terms.<\/p>\n
IN WITNESS OF THE FOREGOING, AMD Holding and AMD Saxonia have caused this
\nAgreement to be executed by their authorized representatives as of the date
\nfirst written above.<\/p>\n
AMD SAXONY HOLDING GMBH<\/p>\n
\/s\/ Marvin D. Burkett
\n _______________________________________
\n Its: Managing Director<\/p>\n
AMD SAXONY MANUFACTURING GMBH<\/p>\n
\/s\/ Jack L. Saltich
\n _______________________________________
\n Its: Managing Director<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6576],"corporate_contracts_industries":[9512],"corporate_contracts_types":[9613,9619],"class_list":["post-42072","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-advanced-micro-devices-inc","corporate_contracts_industries-technology__semiconductors","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42072","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42072"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42072"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42072"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42072"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}