AMD 2004 Annual Report Download - page 182

4.3 Financing Shortfalls
4.3.1Calculation. If at any time during the 4-Year Period, the Company intends to spend an amount on (i) Capex or (ii) R&D and G&A (taken
together), which, together with previous amounts spent for (i) Capex or (ii) R&D and G&A (taken together), exceeds the cumulative dollar limits for such
category or categories, as the case may be, from the Launch Date through such time of determination set forth in the 4-Year Fixed Financial Support Plan, then a
“Financing Shortfall” shall be deemed to occur. If a Financing Shortfall occurs, the Company shall (a) determine whether it has funds available to pay for such
excess amount (the amount by which the Company determines its funds are insufficient to pay the excess being the “Financing Shortfall Amount”) and (b)
shall promptly notify the Members of the occurrence of the Financing Shortfall and the Financing Shortfall Amount (if any). The calculation necessary to
determine whether a Financing Shortfall has occurred and the Financing Shortfall Amount shall be made with reference to the respective line items in the most
recent Company financial statements and any expenditures through such time of determination that will be included as such items in future financial statements.
For purposes of this Section 4.3.1, the amount allocated to Capex for the third fiscal quarter of 2003 shall be increased by the amount that (a) the U.S.$163.1
million allocated to Capex for the second fiscal quarter of 2003 exceeds (b) the amounts of actual Capex expended during the second fiscal quarter of 2003 with
respect to the Business, provided that the Company shall promptly provide written notice to each Member demonstrating the calculation thereof.
4.3.2Funding Obligation. In the event that a Financing Shortfall occurs and a Financing Shortfall Amount exists, then the Financing Shortfall
Amount shall be funded in the following order of priority:
(a) First, debt financing from Persons other than the Members and their Affiliates (without Member Guarantees) will be solicited by the
Company prior to seeking any Member Guaranteed Financing or Member Debt Financing;
(b) Second, if the financing option set forth in Section 4.3.2(a) is unavailable, the Company shall seek Member Guaranteed Financing,
provided, however, that no Member shall be obligated to provide such Member Guarantee;
(c) Third, if the Financing Shortfall Amount is due to an acceleration of Capex from a subsequent Fiscal Year covered by the 4-Year Fixed
Financial Support Plan and the financing options set forth in Sections 4.3.2(a) and (b) are unavailable, the Company may accelerate amounts to be financed by
the Members or their respective Affiliates in the following Fiscal Year with respect to such Capex as set forth in the 4-Year Fixed Financial Support Plan (such
accelerated amounts, “Pull-Ins”). Any such Pull-In will be financed on a pro rata basis based on the respective Percentage Interests of each Member at the time
of the issuance of the Pull-In Note (as defined below); provided, however, that no Member or its Affiliates shall be obligated to provide its pro rata share of such
Pull-In. If a Member or its Affiliates fails to fund its portion of any such Pull-In, the other Member or its Affiliates may elect to fund its portion and the
Non-Funding Member’s portion of such Pull-In, and the Company will issue to the Funding Member two separate notes in the form attached hereto as Exhibit D
(each a “Pull-In
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Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as ****. A complete version of the exhibit has been filed separately with the Securities and Exchange Commission.
Source: ADVANCED MICRO DEVIC, 10-K, March 01, 2005