|
EXHIBIT
10.60
NTC/MICRON CONFIDENTIAL
MICRON GUARANTY AGREEMENT
This Guaranty (this “ Guaranty ”)
is made and entered into as of the 21st day of April, 2008,
by Micron Technology, Inc., a Delaware corporation (“
Guarantor
”), in favor of Nanya Technology Corporation (
Nanya
Technology Corporation [Translation from Chinese] ), a
company incorporated under the laws of the ROC (“
Beneficiary
”). Capitalized terms used in this Guaranty
shall have the respective meanings ascribed to such terms in
Article I of this Guaranty or as otherwise provided in
Section 1.2. All capitalized terms used in this
Guaranty but not otherwise defined, shall have the meanings
ascribed to them in the Joint Venture Agreement, dated
April 21, 2008, between Micron Semiconductor B.V., a
private limited liability company organized under the laws of
the Netherlands (“ MNL ”) and
Beneficiary (the “ Joint Venture
Agreement ”).
RECITALS
:
A. Beneficiary
has formed MeiYa Technology Corporation ( MeiYa
Technology Corporation [Translation from Chinese] ), a
company to be incorporated under the laws of the ROC (the
“ Joint Venture
Company ”), to engage in the business of
manufacturing certain Stack DRAM Products.
B. As
contemplated by the Joint Venture Agreement, MNL and
Beneficiary will be shareholders of the Joint Venture
Company.
C. Guarantor
is the direct or indirect owner of all the equity securities
of MNL, and Guarantor will, as a consequence, benefit from
the consummation of the transactions contemplated by the
Joint Venture Agreement.
D. Beneficiary
is not willing to enter into the Joint Venture Agreement
unless Guarantor agrees to be bound by the terms of this
Guaranty.
E. In
order to induce Beneficiary to enter into the Joint Venture
Agreement, Guarantor has agreed to execute and deliver to
Beneficiary this Guaranty.
NOW THEREFORE, for good and valuable consideration,
including the inducement of Beneficiary to consummate the
transactions contemplated by the Joint Venture Agreement, and
other consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree as
follows:
ARTICLE I. DEFINITIONS
Section 1.1
Defined Terms . For purposes of this Guaranty,
the following terms will have the following meanings when used
herein with initial capital letters:
Micron
Guaranty Agreement
DLI-6195509v1
Section
1.2
“
Applicable
Law ” means any applicable laws, statutes, rules,
regulations, ordinances, orders, codes, arbitration awards,
judgments, decrees or other legal requirements of any Governmental
Entity.
“ Beneficiary
” shall have the meaning set forth in the preamble of
this Guaranty.
“ Guarantor ”
shall have the meaning set forth in the preamble of this
Guaranty.
“ Guaranty ”
shall have the meaning set forth in the preamble of this
Guaranty.
“ Guaranty
Obligations ” shall have the meaning set forth
in Section 2.1 of this Guaranty.
“ Joint Venture
Agreement ” shall have the meaning set forth in
the preamble of this Guaranty.
“ Joint Venture
Company ” shall have the meaning set forth in
the Recitals.
“ MNL ” shall
have the meaning set forth in the preamble of this
Guaranty.
“ Party ”
means Guarantor or Beneficiary individually, and “
Parties ”
means Guarantor and Beneficiary collectively.
“ Person ”
means any natural person, corporation, joint stock company,
limited liability company, association, partnership, firm,
joint venture, organization, business, trust, estate or any
other entity or organization of any kind or
character.
“ ROC ” or
“ Taiwan ”
means the Republic of China.
Section
1.3
Certain Interpretative Matters .
(a)
Unless
the context requires otherwise, (1) all references to
Sections, Articles or Recitals are to Sections, Articles or
Recitals of this Guaranty, (2) words in the singular include
the plural and vice versa, (3) the term “ including ”
means “including without limitation,” and (4) the
terms “ herein ,”
“ hereof ,”
“ hereunder ”
and words of similar import shall mean references to this
Guaranty as a whole and not to any individual section or
portion hereof. All references to “
day
” or “ days ” mean
calendar days.
(b)
No
provision of this Guaranty will be interpreted in favor of,
or against, either Party by reason of the extent to which (1)
such Party or its counsel participated in the drafting
thereof, or (2) such provision is inconsistent with any prior
draft of this Guaranty or such provision.
ARTICLE II. GUARANTY
Section 2.1
Guaranty Obligations . Subject to the terms and
conditions set forth in this Guaranty, Guarantor hereby irrevocably
and unconditionally guarantees the prompt performance by MNL of its
obligations under the Joint Venture Agreement (the “
Guaranty
Obligations ”).
2
Micron
Guaranty Agreement
DLI-6195509v1
Section
2.2
Nature of Guaranty . Insofar as the payment by
MNL of any sums of money to the Joint Venture Company or NTC is
involved, this Guaranty is a guarantee of payment and not of
collection. Should the Joint Venture Company or NTC be
obligated by any bankruptcy or other law to repay to MNL,
Guarantor, or any trustee, receiver or other representative of
either of them, any amounts previously paid, this Guaranty will be
reinstated to the amount of such repayments.
Section
2.3
Independent Obligations . Except as specifically
provided for in this Guaranty, the obligations of Guarantor under
this Guaranty are independent of the obligations of MNL under the
Joint Venture Agreement. Upon any default by MNL in the
performance of the Guaranty Obligations, Beneficiary may
immediately proceed against Guarantor hereunder without bringing
action against or joining MNL.
Section
2.4
Defenses to
| 
