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Exhibit 10.1
CAPITAL GRANT
This GRANT DISBURSEMENT AGREEMENT ("Agreement") includes
all exhibits and attachments hereto and is made on the terms and by
the parties listed below and relates to the Project described
below:
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NEW YORK STATE
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633 Third Avenue
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URBAN DEVELOPMENT
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New York, New York 10017
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CORPORATION d/b/a
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Contact: Edwin Lee
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EMPIRE STATE DEVELOPMENT
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Phone: (212) 803-3618
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CORPORATION ("ESDC"):
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Fax: (212)
803-3925
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E-mail: elee@empire.state.ny.us
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THE GRANTEE (or "Grantee"):
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Advanced Micro Devices, Inc.
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5204 E. Ben White Blvd.
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MS 612
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Austin, Texas 78741
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Contact: Daryl Ostrander, Senior Vice President,
Logic Technology and Manufacturing, Product/Technology
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Phone: (512) 602-4303
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Fax: (512)
602-0460
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E-mail: daryl.ostrander@amd.com
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Federal Taxpayer ID#: 94-1692300
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PROJECT NAME:
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Advanced Micro Devices Capital
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PROJECT LOCATION:
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Luther Forest Technology Campus
Towns of Malta and Stillwater
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PROJECT NUMBERS:
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U223
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GRANT AMOUNT:
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$650,000,000
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FUNDING SOURCE:
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Special Legislative Appropriation
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ESDC APPROVAL DATE:
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October 26, 2006
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PACB APPROVAL DATE:
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December 20, 2006
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EXPIRATION DATE:
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December 31, 2022
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TERMS AND CONDITIONS
1. The Project
The Grantee shall, subject to the terms and conditions contained
in this Agreement:
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(a)
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complete the Project as set forth in the ESDC
General Project Plan attached hereto as Exhibit A.
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(b)
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comply with the design and construction
requirements attached hereto as Exhibit B.
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2. Employment Goals &
Reporting
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(a)
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The Grantee currently employs no employees at the
Project Location and agrees that it shall (i) achieve the
employment goals as set forth in Exhibit C by retaining existing or
hiring Full-time Employees to obtain the Grant set forth herein or
(ii) repay a portion of the Grant as set forth in Exhibit
C.
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(b)
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For purposes of this Agreement, a Full-time
Employee shall mean (i) a full-time, regular, private-sector
employee, consistent with the requirements of the Empire Zone
Program, who is hired to work for the Project Location for a
minimum of thirty-five hours per week for not less than four
consecutive weeks and who is entitled to receive the usual and
customary fringe benefits extended by Grantee (or its subsidiary)
to other employees with comparable rank and duties; or
(ii) two part-time, regular, private-sector employees, who
have worked at the Project Location for a combined minimum of
thirty-five hours per week for not less than four consecutive weeks
and who are entitled to receive the usual and customary fringe
benefits (if any) extended by Grantee (or its subsidiary) to other
part-time employees with comparable rank and duties.
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(c)
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Grantee, beginning with the first year following
the year in which grant funds are first disbursed to Grantee, shall
submit, by February 1 of each year during the term of this
Agreement, the Employment Reporting Form attached hereto as Exhibit
H, indicating the average number of Grantee’s Full-time
Employees for the 12 month period ending as of December 31 of
the prior year. Full-time Employee Count, for each calendar year
during the term of this Agreement, shall mean the greater of
(i) the average number of Full-time Employees for the prior
calendar year, computed by adding the number of Full-time Employees
as of the Grantee’s last payroll date in the months of March,
June, September and December and dividing that sum by 4, or
(ii) the number of Full-time Employees as of the
Grantee’s last payroll date in December of such
year.
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3. Conditions Precedent
A. Infrastructure Improvements
(a) ESDC or the Luther Forest Technology Development Corporation
shall coordinate, expedite and enable the various applicable
entities to facilitate the implementation of the infrastructure
improvements necessary to fully support the "construction start,"
"ready for occupancy" and "start of production" project milestones
set forth in Exhibit M. All costs associated with such
infrastructure improvements shall be the responsibility of the
various applicable entities other than the Grantee including, but
not limited to federal, state and local governments.
(b) ESDC or the Luther Forest Technology Development Corporation
shall provide, or cause to be provided, to the Grantee
documentation on the temporary and permanent infrastructure
improvements outlining both the financial and project plans for the
implementation of such, necessary for the Grantee to meet the terms
of this Grant Disbursement Agreement.
(c) Notwithstanding the foregoing although ESDC will
endeavor to accomplish the tasks set forth in this section A, such
endeavor is not a covenant and any failure by ESDC
related to such endeavor shall not be actionable as a default under
this Agreement or constitute a breach of any obligation to
Grantee. AMD shall be a third party beneficiary of any
agreement or memorandum of understanding relating to the
construction and funding of the infrastructure improvements.
B. Condition Precedent to Grantee Notification to ESDC to
issue Bonds or otherwise fund the Project within ninety
(90) days . ESDC shall not issue bonds or otherwise fund
the Project until it receives a notice from Grantee requesting
available funds within ninety (90) days (the
"Notification").
C. Conditions Precedent to ESDC’s Obligation to issue
Bonds . If the Notification is not received by July 31,
2009 this Agreement shall be deemed terminated without penalty.
Upon receipt of the Notification ESDC shall issue bonds or
otherwise obtain funds necessary to permit the funding of the
Project within ninety (90) days of the date of the
Notification.
D. Conditions Precedent to Grantee’s Obligation to
Commence Incurring Eligible Expenses and the Parties Becoming Fully
Obligated under this Agreement . Only after Notification and
once ESDC has sufficient funds to finance the commencement of the
Project from dedicated bond proceeds, or otherwise, shall
obligations under this Agreement be in full force and effect
including Grantee’s obligation to commence and expend funds
to undertake the Project within seven months of the date the
Notification was received. If Grantee breaches this obligation,
such action shall be deemed a breach of a covenant entitling ESDC
to seek reimbursement of actual costs including recouping all ESDC
bond issuance fees, such costs not to exceed two percent
(2%) of the par amount plus any premium of the issued
bonds.
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E. Conditions Precedent to Disbursement of the
Grant . No grant funds shall be disbursed unless the Grantee is
in compliance with the terms and conditions of this Agreement,
including, but not limited to, Exhibit E (Disbursement Terms), and
the following conditions have been satisfied.
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(a)
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If the Grant Amount exceeds $100,000, or if, as
described in Exhibit A, it is expected that there will be
additional grants that in the aggregate exceed $100,000, ESDC has
received an opinion of Grantee’s counsel, in substantially
the form appended to this Agreement as Exhibit D.
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(b)
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ESDC has received reimbursement for an
application fee and hearing expenses set forth in Exhibit
E.
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(c)
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There has been no material adverse change in the
financial condition of the Grantee since the date of submission of
its application to ESDC.
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4. Disbursement and Recapture
Terms
Subject to the terms and conditions contained in this Agreement,
ESDC shall disburse the Grant to the Grantee as follows:
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(a)
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ESDC shall reimburse the Grantee for Project
expenditures for Eligible Costs incurred by the Grantee as set
forth in Exhibit E to this Agreement.
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(b)
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In no event will ESDC make any payment which
would cause ESDC’s aggregate disbursements to exceed the
Grant Amount.
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(c)
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The Grant, or a portion thereof, may be subject
to recapture by ESDC as provided in Exhibit C.
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5. Non Discrimination and Affirmative
Action
It is the policy of the State of New York and ESDC, to comply
with all federal, State and local laws, policies, orders, rules and
regulations which prohibit unlawful discrimination because of race,
creed, color, national origin, sex, sexual orientation, age,
disability or marital status, and ensure that Minority and
Women-owned Business Enterprises (M/WBDs), Minority Group Members
and women share in the economic opportunities generated by
ESDC’s participation in projects or initiatives, and/or the
use of ESDC funds. The Grantee will comply with the
Non-Discrimination and Affirmative Action policies set forth in
Exhibit G to this Agreement.
6. No Liability
(a) To the extent permitted by law, Grantee hereby indemnifies
and saves harmless, ESDC, UDC and their respective agents,
officials, officers, employees and directors (herein collectively
called the "Indemnitees") from and against any and all liability,
suits, obligations, fines, loss, damages, penalties, claims, costs,
charges, interest, judgments and liens arising out of, and any and
all costs and expenses (including, but not limited to, reasonable
attorney’s fees and disbursements and compensatory,
consequential and/or proximate damages) arising out of, or incurred
in connection with, and all claims, demands, suits, actions or
proceedings which may be made or brought by a third party against
any of
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the Indemnitees for or in relation to any
injuries, including death at any time resulting there from,
sustained by any person or persons, or on account of damage to or
loss of tangible property, through theft or otherwise, except when
and to the extent due to the negligence, willful misconduct of, or
breach of applicable laws by, the Indemnitees, to the extent the
same arises out of or in consequence of:
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(i) construction of the Improvements or any other work or thing
done in, on or about the Premises or any part thereof;
(ii) any use, non-use, possession, occupation, alteration,
repair, condition, operation, maintenance or management of the
Premises or any part hereof or of any street, alley, sidewalk,
curb, vault, passageway or space comprising a part thereof or
adjacent thereto relating to the Project;
(iii) any negligence on the part of Grantee, the Architect, the
Construction Manager, any contractor or any subcontractor employed
in connection with the Improvements or any of its or their
respective agents, contractors, servants, employees, licenses or
invitees; and
(iv) any accident, injury (including death) or damage to any
person or property occurring in, on or about the Premises or any
part thereof or in, on or about any street, alley, sidewalk, curb,
vault, passageway or space adjacent thereto relating to the
Project.
(v) any failure on the part of Grantee to keep, observe and
perform any of the terms, covenants, agreements, provisions,
conditions or limitations contained in this Agreement, or other
contracts and agreements affecting the Premises or relating to the
Improvements, on Grantee’s part to be kept, observed or
performed.
ESDC shall not in any event whatsoever be liable for any injury
or damage to any property or to any person happening on, in or
about the Premises or its appurtenances, or for any injury or
damage to the Premises or to any property belonging to Grantee or
any other person which may arise from any cause whatsoever, other
than by reason of its negligence, willful misconduct or breach of
applicable laws.
(b) If any claim, action or proceeding is made on or brought
against any of the Indemnitees by reason of any event to which
reference is made in Section (a) of this Section 6, then
upon demand by ESDC and subject to the provisions of subsection
6(e) below Grantee, at its sole cost and expense, shall resist or
defend such claim, action or proceeding in ESDC’s name, if
necessary, by the attorneys for Grantee’s insurance carrier
(if such claim, action or proceeding is covered by insurance) or
otherwise by such attorneys as Grantee shall select subject to the
approval of ESDC, which approval shall not be withheld or delayed
unreasonably.
(c) To the extent permitted by law, Grantee hereby indemnifies
and saves harmless the State of New York ("State") and its
respective agents, officials, officers, employees and directors
(herein collectively called the " Indemnitees " for the
purposes of this paragraph (c)) from and against any and all
liability, suits, obligations, fines, loss, damages, penalties,
claims, costs, charges, interest, judgments and liens arising out
of, and any and all
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costs and expenses (including, but not limited
to, reasonable attorneys’ fees and disbursements) arising out
of, or incurred in connection with, any and all claims, demands,
suits, actions or proceedings brought by a third party against any
of the Indemnitees for or in relation to any injuries, including
death at any time resulting therefrom, sustained by any person or
persons, or on account of damage to or loss of tangible property,
through theft or otherwise, except when and to the extent due to
the negligence , willful misconduct or breach of applicable laws of
the Indemnitees, to the extent the same arises out of or in
consequence of:
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(i) construction of the Improvements or any other work or thing
done in, on or about the Premises or any part thereof in
furtherance of the construction of the Improvements;
(ii) any negligence in the design, management or construction of
the Improvements on the part of Grantee, the Architect, the
Construction Manager, any contractor or any subcontractor employed
in connection with the Improvements or any of its or their
respective agents, contractors, servants, employees, licenses or
invitees;
(iii) any accident, injury (including death) or damage to any
person or property occurring in, on or about the Premises or any
part thereof or in, on or about any street, alley, sidewalk, curb,
vault, passageway or space adjacent thereto resulting from or
arising out of the construction of the Improvements; and
(d) If any claim, action or proceeding is made on or brought
against any of the Indemnitees for which Grantee is obligated to
indemnify such Indemnity under Section (c) of this
Section 6, then upon demand by ESDC or the State and subject
to the provisions of subsection 6(e) below, Grantee, at its sole
cost and expense, shall resist or defend such claim, action or
proceeding in ESDC’s or the State’s name, if necessary,
by the attorneys for Grantee’s insurance carrier (if such
claim, action or proceeding is covered by insurance) or otherwise
by such attorneys as Grantee shall select subject to the approval
of ESDC or the State, which approval shall not be withheld or
delayed unreasonably.
(e) If any claim, action or proceeding is filed for which
indemnity is required hereunder, the indemnifying party’s
obligations shall be contingent upon the following: i) the party
requesting indemnification providing prompt written notice of the
claim to the indemnifying party; ii) the party requesting
indemnification granting the indemnifying party control over the
defense and/or settlement of the claim (provided that the
indemnifying party shall provide to the indemnified party notice
and reasonable approval of the terms of any settlement); and iii)
the party requesting indemnification shall reasonably cooperate, at
the indemnifying party’s expense, in the defense of the
claim.
7. A. Representations and Warranties of the Grantee
The Grantee represents and warrants that:
(a) It is a for-profit corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and the laws of each other jurisdiction in which such
qualification is required except ministerial non-compliance that
would not have a
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material adverse effect on Grantee’s
ability to conduct its operations in such other jurisdiction and
shall maintain its corporate existence in good standing in each
such jurisdiction; it has full power and authority to consummate
the transactions contemplated hereby; it is and will be the owner
of the Improvements in its own right, and no party other than the
Grantee or the Saratoga Industrial Development Agency has or will
have any beneficial or equitable right, title or interest in the
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