AMD 1996 Annual Report Download - page 134

until all necessary repair or replacement has been completed and approved
by COMPANY. COMPANY shall not be obligated to make payment for any
Construction Work that is not covered by an invoice or that has been rejected by
COMPANY or COMPANY'S Inspector or Representative or that exceeds the maximum
amount budgeted for the affected Construction Phase. If payment is sought for
Stored Materials, CONTRACTOR shall satisfy the conditions to payment for Stored
Materials set forth in Section 17.7 below. In no event shall any payment exceed
------------
the difference between (y) the cost of Construction Work in place, payments for
Stored Materials, if any, the portion of the Budgeted Fee payable to date, and
any other costs, expenses and fees actually paid by CONTRACTOR for Project costs
as of the date of the Application for Payment, and (z) any required Retainage
(defined in Section 17.2 below) and the sum of all prior payments. Each advance
------------
for CONTRACTOR'S Budgeted Fee shall be subject to the Retainage.
17.2 PAYMENT OF INCREASES IN FEE; RETAINAGE. No portion of the Fee above
--------------------------------------
the Budgeted Fee shall become due and payable until the Project has been finally
completed and Final Acceptance of the Facility has occurred. Progress payments
shall be made only on the Budgeted Fee. Each Application for Payment shall show
the percentage of the Project that has been completed to COMPANY'S satisfaction,
and CONTRACTOR shall be paid (subject to Retainage) the same percentage of the
Budgeted Fee. Out of each payment of the Budgeted Fee, COMPANY shall retain
fifteen percent (15%) of the portion of the Budgeted Fee then due under the
Contract. The amount retained by COMPANY is referred to as the "RETAINAGE".
The Application for Payment shall show the portion of the Budgeted Fee that is
then due and payable, including the method used to calculate such portion, under
clause (ii) in Section 17.1, above, and shall show the eighty-five percent (85%)
------------
portion payable to CONTRACTOR, the fifteen percent (15%) portion to be retained
by COMPANY and the cumulative amount retained by COMPANY. In no event shall
COMPANY be obligated to pay to CONTRACTOR on account of CONTRACTOR'S Budgeted
Fee an amount greater than the amount that bears the same ratio to the entire
Budgeted Fee as the then percentage of completion of the Facility bears to one
hundred percent (100%) completion of the Facility.
17.3 PARTIAL RELEASE OF RETAINAGE. It is agreed that COMPANY will release
----------------------------
one-half of the Retainage for payment to CONTRACTOR if the Facility is finally
completed prior to or on the date for Final Completion set forth in Section
-------
14.2. CONTRACTOR shall submit a separate invoice to COMPANY covering such
payment at the time the Facility is taken over for operation and maintenance as
aforesaid, and COMPANY shall pay CONTRACTOR the amount of said invoice within
thirty (30) calendar days after COMPANY'S receipt thereof.
17.4 PAYMENT NOT A WAIVER BY COMPANY. No payments made by COMPANY pursuant
-------------------------------
to a monthly Application for Payment as hereinabove provided shall be deemed to
signify or imply acceptance of the materials or workmanship covered by such
Application for Payment; and none of them shall operate as an admission on the
part of COMPANY as to the propriety or accuracy of any of the amounts entered in
the aforesaid Application for Payment, or as a waiver of COMPANY'S right to
audit provided for herein. Furthermore, when computing subsequent payments,
COMPANY shall not be bound by any entries in previous Applications for Payment
and shall be permitted to make corrections for errors therein. COMPANY'S final
payment for the Facility shall in no way relieve CONTRACTOR of any obligations
or responsibilities under the Contract which extend beyond the date of such
final payment.
17.5 PAYMENT OF BALANCE OF RETAINAGE. Within thirty (30) calendar days
-------------------------------
after COMPANY has given CONTRACTOR its Final Acceptance of the Facility as
provided for in Article 15 hereof and received a proper Application for Payment
----------
and supporting invoices from CONTRACTOR covering the payment hereinafter
specified in this Section 17.5 and has received from CONTRACTOR
------------
48
Source: ADVANCED MICRO DEVIC, 10-K, March 20, 1997