AMD 2004 Annual Report Download - page 189

referred to in clause (e) below) or (ii) evidenced by a Financing Shortfall Note issued after the expiration of the 4-Year Period, provided that if there are not
enough funds available to pay such debt referred to in this Section 5.1.2(d), and any Convertible Note evidencing a Non-Funding Member’s portion of any such
Financing Shortfall Amount remains convertible, then the amount allocated to payments in respect of the Funding Member’s portion of any Financing Shortfall
Amount shall instead be allocated such that outstanding amounts under the Convertible Note are paid in full prior to paying amounts outstanding under the
Non-Convertible Note;
(e) Fourth, subject to Section 5.1.3 below, cash will be used to repay, on a pari passu basis, all outstanding debt owed by the Company to
the applicable Members or their Affiliates that is evidenced by a Financing Shortfall Note issued during the 4-Year Period, provided that if there are not enough
funds available to pay all such debt referred to in this Section 5.1.2(e), and any Convertible Note evidencing a Non-Funding Member’s portion of any such
Financing Shortfall Amount remains convertible, then the amount allocated to payments in respect of the Funding Member’s portion of any Financing Shortfall
Amount shall instead be allocated to the extent necessary so that the outstanding amounts under the Convertible Note are paid in full prior to paying amounts
outstanding under the Non-Convertible Note; and
(f) Fifth, subject to Section 5.1.4, any excess cash remaining will be distributed at the discretion of the Board of Managers to AMD Member
and Fujitsu Member pro rata based on their Percentage Interests at the time of such distribution.
Notwithstanding anything to the contrary herein, in the event that prior to September 30, 2003, the Company procures lease financing with respect
to its owned equipment that (i) constitutes part of the fabrication facility known by the parties as “Fab 25” or the facility known by the parties as the “SDC,” (ii)
was located as of June 30, 2003 at the Austin Real Property (as defined in the Contribution Agreement) or the Sunnyvale Real Property (as defined in the
Contribution Agreement), as applicable, and (iii) is not otherwise pledged or hypothecated to secure debt or subject to an existing lease facility, then the proceeds
of any such financing shall be promptly paid to AMD as a prepayment of the AMD Asset Sale Promissory Note (as defined in the Contribution Agreement);
provided, however, that the aggregate amount of such prepayment(s) shall in no event exceedU.S.$99,000,000.
5.1.3Treatment after 4-Year Period. Upon the date that is one (1) year after the last day of the 4-Year Period, Sections 5.1.2(d)and 5.1.2(e) shall be
combined so that all debt referred to therein shall be repaid on a pari passu basis, provided that the distinction in the treatment of the Convertible Notes versus
Non-Convertible Notes thereunder shall be preserved.
5.1.4Excess Allocations. Subject to Section 5.3 and Article 10, to the extent a Member’s Percentage Interest is adjusted for any reason as provided
in this Agreement and the aggregate allocations of Net Profit (and similar items) net of any allocations of Net Losses (and similar items) made to such Member
pursuant to Article 6 on a cumulative basis through the effective time of such adjustment exceeded: (a) the aggregate distributions made to such Member
pursuant to Sections 5.1.1, 5.1.2(f) and 5.5 plus (b) all amounts previously distributed to such Member pursuant to this Section 5.1.4 through such effective time
(collectively, an “Excess Allocation”), then prior to the making of any further distributions pursuant to Section 5.1.2(f) (or
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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