AMD 2004 Annual Report Download - page 237

Period no longer applies, each Breach Convertible Note may be converted at any time on or after the date of issuance thereof. The Breach Convertible Note shall
be convertible into that number of Units equal to one hundred twenty percent (120%) of the number of Units that would be received following the procedures set
forth in (and the conversion formula used therein) with respect to a comparable convertible note in Section 4.3.2(d)(4); (provided, however, that (i) the Valuation
Amount for this purpose shall be determined by a Qualified Valuator selected by the Non-Breaching Member and approved by the Breaching Member, which
approval shall not be unreasonably withheld or delayed, (ii) such Qualified Valuator shall complete the valuation within forty-five (45) days after the
appointment thereof, using any appointment method or methods the Qualified Valuator deems appropriate and (iii) the costs of such valuation shall be borne by
the Company).
10.6.2Material Breach. In the event of a Material Breach by a Breaching Member, the Non-Breaching Member shall have the rights set forth in
Section 10.6.1, plus:
(a) Following the Cure Period, the Non-Breaching Member shall have the right to sell any or all of its Membership Interests to a third party
without being subject to the transfer procedures set forth in Article 9 (provided that during any such Cure Period, the Non-Breaching Member shall have the right
to approach potential purchasers regarding the sale of its Membership Interests).
ARTICLE 11.
AMD GUARANTY
11.1 Guaranty
Subject to the limitations expressly set forth in this Article 11, AMD hereby, absolutely, unconditionally and irrevocably, guarantees (this “AMD
Guaranty”) by way of an independent obligation to the Company and Fujitsu and Fujitsu Member (a) the due, prompt and faithful performance by AMD
Member of all undertakings, obligations, required acts and performances of AMD Member under or arising out of this Agreement, and (b) the due and punctual
payment of all amounts due and payable by AMD Member under or arising out of this Agreement after the date hereof, when and as the same shall arise and
become due and payable in accordance with the terms of and subject to the conditions contained in this Agreement (collectively, the “AMD Guaranteed
Obligations”).
11.2 AMD Guaranteed Obligations
This is a guaranty of payment and performance and not of collection only. If for any reason whatsoever AMD Member shall fail or be unable to
perform or comply with any of its AMD Guaranteed Obligations, AMD shall promptly upon receipt of notice thereof from the Company or Fujitsu Member, as
applicable, (a) pay or cause to be paid in lawful money of the United States the unpaid AMD Guaranteed Obligations then due and payable (at the place specified
and in the amounts and to the extent required of AMD Member under this Agreement) and (b) perform or comply with the AMD Guaranteed Obligations for
which performance or compliance is due or cause such AMD Guaranteed Obligations to be performed or complied with (such performance or compliance as
required of AMD Member under this Agreement).
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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