AMD 1996 Annual Report Download - page 162

audit the books and activities of CONTRACTOR and any subcontractor or vendor in
connection with the Project that COMPANY has under the Contract.
39.4 AMENDMENT OF AGREEMENT. CONTRACTOR agrees to amend this Agreement to
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satisfy the requirements of any lender or lenders providing financing for the
Project, provided such amendment does not materially increase the obligations or
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reduce or restrict the rights of CONTRACTOR hereunder or change the amount of
compensation that CONTRACTOR is entitled to receive hereunder or modify the
means of calculating such compensation.
ARTICLE 40
FORCE MAJEURE
40.1 EVENTS OF FORCE MAJEURE. Occurrences beyond the control of the party
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affected that cause delays in or failure of performance of such affected party
under the Contract (excluding performance of a provision requiring the payment
or expenditure of money) shall constitute force majeure, including, but not
limited to, acts of governmental authority (excluding delays or failures of
performance attributable to the affected party's delay or other fault and
excluding proper exercise of the police power in response to an improper act or
omission of the affected party), unusually severe weather conditions (as defined
in this Section), strikes or other concerted acts of workmen (except to the
extent caused by the affected party or its agents, officers, representatives,
subcontractors or vendors and except to the extent that a strike had been
announced in advance and provision could have been made to alleviate such
strike's effects), fires, floods, explosions, riots, sabotage shipwrecks (except
to the extent such fires, floods, explosions, riots, sabotage or shipwrecks were
caused by the affected party or its agents, officers, representatives,
subcontractors or vendors), war and rebellion. As used in this Section, the
term "unusually severe weather conditions" shall mean weather conditions that
(i) CONTRACTOR establishes to COMPANY'S reasonable satisfaction were not
reasonably foreseeable and (ii) were sufficiently severe that thirty percent
(30%) of the work force employed on the Project were unable to work, and (iii)
resulted in delay that affected the critical path set forth in the Project
Schedule. Notwithstanding anything herein to the contrary, events of "force
majeure" shall not include the following: (I) delays or failures of performance
caused by general economic conditions or (II) delays or failures of performance
caused by open market conditions, such as inability to procure labor or
materials in the open market. Insufficiencies in the design of the Facility,
rejection by COMPANY pursuant to this Agreement of any proposed subcontractor or
vendor or absence of CONTRACTOR'S Representatives or other personnel shall also
not be considered as a just cause of delay. CONTRACTOR shall be fully
responsible for the timely ordering, scheduling, expediting, delivery, and
installation of all equipment and materials. Therefore, delays by vendors in
manufacture or delivery of materials, which delays are not caused by force
majeure, or shortages of labor or materials resulting from general market
conditions shall not be considered as a just cause for delay.
40.2 EFFECT ON TIME FOR PERFORMING OBLIGATION. Either party's inability to
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perform a non-monetary obligation under the Contract on time and as required by
reason of the occurrence of force majeure, shall cause such obligation to be
suspended, but only until the cessation of such occurrence, so far as the
affected party's ability to perform is affected by that force majeure
occurrence. In the event that such force majeure obstructs performance of the
Contract for more than six (6) months, the parties hereto shall consult with
each other to determine whether the Contract should be modified. COMPANY and
CONTRACTOR will not unreasonably withhold their respective consents to a request
by the other party to extend the Project Schedule or increase the Budgeted Cost
of the Work if force majeure has obstructed performance of the Contract.
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Source: ADVANCED MICRO DEVIC, 10-K, March 20, 1997