Exhibit 10.1
SALE OF RECEIVABLES
(WITH PROGRAM FEES)
SUPPLIER AGREEMENT
between
ADVANCED MICRO DEVICES,
INC.,
a Delaware corporation
and
IBM CREDIT LLC,
a Delaware limited liability company
March 26, 2008
THIS SALE OF RECEIVABLES (WITH
PROGRAM FEES) – SUPPLIER AGREEMENT (“Agreement”) is made this 26th day
of March, 2008, by and between ADVANCED MICRO DEVICES, INC., a
Delaware corporation (“Supplier”), and IBM CREDIT LLC,
a Delaware limited liability company (“IBM
GF”).
THE PARTIES AGREE AS
FOLLOWS:
1.0 DEFINITIONS AND
INTERPERTATION
DEFINITIONS
: In this Agreement:
“Agreement”
means this Sale of Receivables (with Program Fees)
– Supplier Agreement, including (unless the context otherwise
requires) Schedule A, Schedule B and any other schedules or
exhibits attached hereto and incorporated herein.
“Associated
Rights” means in relation to any Receivable or Products any of
the following (i) all the Supplier’s rights by law as an
unpaid vendor or under the sale contract; (ii) documentary
evidence of the sale contract or its performance or of any disputes
arising; (iii) documents of title, warehouse keeper’s
receipts, bills of lading, shipping documents, airway bills or
similar documents; (iv) the benefit of all insurances;
(v) all remittances, instruments, securities, bonds,
guarantees and indemnities and accounting records; and
(vi) all of the Supplier’s interest in all Products
represented by such Receivable and in all Products returned by, or
reclaimed, repossessed, or recovered from, the Buyer; and
(vii) all accounts, instruments, general intangibles,
documents, chattel paper, and letter of credit rights related to
such Receivable.
“Base
Rate” means the rate per annum referred to in Schedule A,
but where the Base Rate is determined by reference to a published
interest rate and that rate ceases to be published for any reason,
IBM GF will use another appropriate interest rate as the reference
rate so that IBM GF remains in a financial position equivalent to
that before the original reference rate ceased to be
published.
“Billing
Document” means any Supplier Invoice, Credit Note, Debit Note or
other document (amending, re-stating or replacing a Supplier
Invoice, Credit Note or Debit Note) issued by Supplier to a Buyer
for Products pursuant to any Master Purchase Agreement.
“Business
Day” means any day (other than Saturday or Sunday) on which
banks are open in London, England and/or New York, New York, USA
for business of the nature required for the purposes of this
Agreement.
“Buyer”
means any legal entity to which the Supplier sells or
licenses Products and which has a Buyer Agreement in existence at
the time of such transaction.
“Buyer
Agreement” means an agreement executed by and between a Buyer and
IBM GF, and any amendments or replacements thereto made from time
to time, under which the Buyer promises to pay Purchased
Receivables to IBM GF.
“Change in
Control ” means
, in relation to (a) the acquisition of, or, if
earlier, the shareholder or director approval of the acquisition
of, ownership or voting control, directly or indirectly,
beneficially or of record, on or after the Commencement Date, by
any person or group (within the meaning of Rule 13d-3 of the SEC
under the Securities Exchange Act of 1934, as then in effect), of
shares representing more than fifty percent (50%) of the
aggregate ordinary voting power represented by the issued and
outstanding capital stock of a Party, or (b) the occupation of
a majority of the seats (other than vacant seats) on the board of
directors or other governing body of a Party by persons who were
neither (i) nominated by the board of directors or other
governing body of such Party, nor (ii) appointed by directors
so nominated. For the purposes of this definition,
“SEC” means the United States Securities and
Exchange
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Commission, and “voting power”
means, with respect to any person, the exclusive ability to
control, through the ownership of shares of capital stock,
partnership interests, membership interests or otherwise, the
election of members of the board of directors or other similar
governing body of such person. The holding of a designated
percentage of voting power of a person means the ownership of
shares of capital stock, partnership interests, membership
interests or other interests of such person sufficient to control
exclusively the election of that percentage of the members of the
board of directors or similar governing body of such
person.
“Commencement
Date” means the date specified as such in Schedule
A.
“Credit
Availability” means the unutilised amount at any time of the Credit
Limit with respect to any Buyer.
“ Credit Limit”
means the limit for a Buyer set by IBM GF under this
Agreement.
“Credit
Note” means a Notified Credit Note issued by the Supplier to
a Buyer having the effect of reducing the amount payable by the
Buyer for Products, including any credit, allowance, discount,
setoff, return, accommodation or forgiveness of any nature or type
on, of, or relating to the Receivable for such Products.
“Credit
Report” means the regular weekly report issued to the Supplier
by the Service Provider containing details of all Supplier Invoices
issued and purchased by IBM GF during the applicable Download Week
and the Settlement Amount for them to be paid by IBM GF to the
Supplier on the applicable Supplier Settlement Date.
“Debit
Note” means a Notified Debit Note issued by the Supplier to
a Buyer having the effect of re-stating or increasing the amount
payable by the Buyer for Products to the extent relating to the
Receivable for such Products.
“Discharged
Receivable” means any Purchased Receivable the uncollected value
of which (a) was fully and finally paid by the Buyer or
(b) was satisfied by the payment of insurance proceeds to IBM
GF.
“Distribution
Agreement” means any distribution agreement or similar agreement
between the Supplier and any Buyer.
“Download
Week” means any period commencing on a Thursday and ending
on the succeeding Wednesday.
“Face
Value” means with respect to any Purchased Receivable, the
amount the Buyer is obligated to pay the Supplier on account of the
sale of Products as shown on the face of the Supplier Invoice or,
in the case of any Debit Note, any increased amount payable by the
Buyer (but not any re-stated amount), but without including any
Credit Note amount or interest, but including any shipping charges,
or other extraneous costs and expenses stated on the Supplier
Invoice or Debit Note.
“Funding
Report” means the regular weekly report to IBM GF by the
Service Provider identifying, among other things, the Settlement
Amount to be paid by IBM GF to the Supplier on the next Supplier
Settlement Date.
“Insolvency
” means in relation to
a company the convening of a meeting to pass a resolution for
voluntary winding up by reason of insolvency, or the making of a
winding up order, or the issuing of an application for the
appointment of an administrator, or the appointment of a receiver
(whether in or out of court) or an administrative receiver of any
of the assets or income of the company; and means in relation to a
partnership the issuing of a petition for its bankruptcy or its
winding up or the issuing of an application for the appointment of
an administrator or the issuing of a petition for the bankruptcy of
any partner; and means in relation to any person, company or firm
the entering into a voluntary arrangement, or any formal or
informal arrangement generally for the benefit of creditors, or
consulting with creditors, or any material part of its income or
assets being subject to seizure, distress, lien or enforcement of
security rights, or compounding with creditors, or ceasing to carry
on business.
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“Lien” means with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security
interest, security title, preferential arrangement which has the
practical effect of constituting a security interest, encumbrance,
or servitude of any kind in respect of such asset to secure or
assure payment of an obligation or a guarantee of an obligation of
another, whether by consensual agreement or by operation of statute
or other law, or by any agreement, contingent or otherwise, to
provide any of the foregoing.
“Master Purchase
Agreement” means any Distribution Agreement or VPA.
“No Charge
Period” means the number of calendar days in
respect of a Purchased Receivable ending on the Payment
Date.
“Non-Credit
Dispute” means a bona fide dispute with respect to
a Purchased Receivable or resolved with respect to a Purchased
Receivable as relating solely to one or more of the following
matters (i) the Products (whether hardware, software or
services or any combination of them) provided by the Supplier were
not the Products as listed on the Supplier Invoice, or
(ii) the amounts, billing information or other information on
the Supplier Invoice is erroneous in any material respect,
(iii) the Supplier’s failure to comply in any material
respect with any specification agreed for the Products or its
standard Products warranty obligations or any other contractual or
legal obligation relating to the Products under any agreement
between the Supplier and the Buyer or implied into any such
agreement by any law, or (iv) the appointment of or the terms
on which the Buyer has been appointed to be a distributor or
reseller for the Supplier.
“Notification”
means the Supplier’s notification to IBM GF in
the manner and with the information required by Schedule
B.
“Notified”
means inclusion of a Supplier Invoice, Credit Note or
Debit Note in a Notification.
“Outstanding”
means undischarged by payment
or other settlement to IBM GF.
“Party”
means Supplier or IBM GF (as the context requires) or
permitted assignee and “Parties” means
both.
“Payment
Date” means the due date for payment of a Purchased
Receivable to IBM GF under the Buyer Agreement.
“Products”
means hardware, software, and associated Products or
services sold or licensed by the Supplier to a Buyer and in respect
of which it issues a Supplier Invoice.
“Program”
means the program described in and utilising the
Program Documents for the Supplier’s sale, and IBM GF’s
purchase, of certain of the Supplier’s
Receivables.
“Program
Documents” means this Agreement, each Credit Report, each Funding
Report, and all other agreements, documents, or instruments entered
into in connection with any of the foregoing as the same may be
amended, restated, supplemented, or otherwise modified from time to
time.
“Program
Fees” means the amount payable by the Supplier to IBM GF
calculated by multiplying the Face Value of the Supplier Invoice by
the percentage applicable to the Buyer determined by application of
the provisions of Schedule A.
“Purchase
Price” means , with respect to any Purchased Receivable, the
Face Value of the Supplier Invoice (or, if applicable, in respect
of any Debit Note, the amount of any increase in the amount payable
in respect of a Supplier Invoice).
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“Purchased Receivable”
means a Receivable which is actually purchased by IBM
GF under and in accordance with the terms of this Agreement;
provided that such Receivable shall no longer constitute a
Purchased Receivable immediately upon its becoming a Recourse
Receivable or a Discharged Receivable.
“Receivable”
means the Supplier’s right to the payment of
money from a Buyer arising out of Products sold, whether secured or
unsecured, whether now existing or hereafter arising, and whether
or not specifically sold or purchased in connection with the
Program, each as evidenced by a Supplier Invoice; provided that the
parties agree that each such right to payment evidenced by a
separate Supplier Invoice shall constitute a separate Receivable
hereunder.
“Recourse
Receivable” means any Receivable which was purchased by IBM GF
under the Program which (a) becomes subject to any Non-Credit
Dispute, (b) was sold to IBM GF (i) on the basis of any
false or materially misleading representation or warranty contained
in this Agreement, any other Program Document or any Master
Purchase Agreement or (ii) in violation of any covenant or
other obligation of Supplier contained in this Agreement or any
other Program Document, or (c) was sold to IBM GF on the basis
of fraudulent or unlawful conduct on the part of
Supplier.
“Repurchase Finance
Charge” means a charge payable by the Supplier at the rate
specified in Schedule A and accruing on a per diem basis from the
day following the Payment Date until value in cleared funds is
received by IBM GF from the Supplier.
“Repurchase
Price” means , with respect to any Recourse Receivable, the
Purchase Price less (i) Credit Notes for which value has been
received by IBM GF after the Supplier Settlement Date and
(ii) any amount then received and retained by IBM GF and
applied by IBM GF as payment of the Receivable, plus (iii) any
applicable Repurchase Finance Charge (whether the amount of the
Purchase Price was derived from a Supplier Invoice or Debit Note or
both).
“Returned
Goods” means Products relating to any Purchased Receivables
and returned to or recovered by the Supplier or IBM GF (i) in
accordance with the return of Product terms set forth in the
Supplier Terms and Conditions, (ii) in accordance with
Supplier’s excess inventory or stock rotation programs as set
forth in any applicable Master Purchase Agreement, (iii) as a
result of any Non-Credit Dispute, or on the Insolvency of a
Buyer.
“Return
Notice” has the
meaning given to such term in Section 8.2 below.
“Schedule
A” means the Schedule A to this Agreement as amended from
time to time by agreement in writing between the
parties.
“Schedule
B” means the Schedule B to this Agreement as amended from
time to time by agreement in writing between the
parties.
“Service
Provider” means any person with whom an agreement has been
entered into by IBM GF and to whom the performance of obligations
or exercise of rights in respect of Receivables is from time to
time sub-contracted by IBM GF.
“Settlement
Amount” means the aggregate of the Purchase Prices of all
Supplier Invoices issued in a Download Week less any Credit Notes
to be deducted (or plus any Debit Notes to be added) in accordance
with the provisions of Schedule B and as shown in the Credit
Report.
“Supplier
Invoice” means a valid invoice issued by the Supplier to a
Buyer for payment for Products (such invoice shall include any
applicable taxes and duties) pursuant to any Master Purchase
Agreement, including any terms and conditions set forth in the
Supplier Terms and Conditions, as applicable.
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“Supplier’s Invoice
Terms” means the payment terms for the Buyer, in number of
calendar days, determined by the Master Purchase Agreement and/or
as stated on the Supplier Invoice.
“Supplier Settlement
Date” means the date payment of the Settlement Amount by IBM
GF is due to the Supplier, which shall be the date which is 15
calendar days after the Sunday of the applicable Download Week
(unless such date is not a Business Day in which case the Supplier
Settlement Date shall be the next occurring Business
Day).
“Supplier Terms and
Conditions” means the standard terms and conditions of sale of
Supplier applicable to any Product.
“UCC”
means Article 9 of the Uniform Commercial Code as
adopted in the State of New York, as amended from time to
time.
“VPA”
means any volume purchase agreement
or similar purchase agreement executed between the Supplier and any
Buyer.
All terms defined in this Agreement
shall have the same defined meanings when used in any of the other
Program Documents, unless otherwise defined therein or unless the
context shall require otherwise. The terms “accounts,”
“chattel paper,” “instruments,”
“general intangibles,” “inventory,”
“equipment,” and “fixtures,” as and when
used herein and in the other Program Documents, shall have the same
meanings given such terms under the UCC.
INTERPRETATION
If there is a conflict between the
Agreement and any Schedule to it the terms of the Agreement shall
prevail. Headings are for convenience only and not for
interpretation. The Singular includes the plural and vice versa. If
a provision of any law is referred to, it will be as it is from
time to time amended.
2.0 PURPOSE
2.1 Payment Terms
The purpose of this Agreement is to
enable the Supplier to offer payment terms to Buyers and to enable
it to sell and IBM GF to purchase the resulting Receivables payable
by Buyers on the terms of this Agreement. IBM GF shall not make any
charge to Buyers for the No Charge Period.
2.2 Designation of
Buyers The Supplier may
request IBM GF in writing to include as Buyers those of its
customers that it may from time to time designate (such designation
to state the Supplier’s Invoice Terms required from the
options specified in Schedule A) and IBM GF may agree to such
inclusion by entering into a Buyer Agreement with such designated
customer. Such designation shall continue for the purpose of this
Agreement unless and until the Supplier removes it by not less than
60 days written notice to IBM GF, whereupon the Supplier shall
cease to be obliged to offer to sell Receivables owed by such Buyer
to IBM GF.
2.3 True Sale; Risk Borne by IBM
GF The sale of each
Receivable will constitute a “true sale” of all of the
Supplier’s right, title and interest in and to such
Receivable and its Associated Rights, and IBM GF shall take title
to such Purchased Receivable and its Associated Rights without
recourse to the Supplier, except in the event that such Purchased
Receivable becomes a Recourse Receivable. Subject to the terms of
this Agreement IBM GF shall bear the credit, funding, and
operational risks, and all related risks of ownership, arising from
the purchase of Purchased Receivables under this
Agreement.
2.4 Recharacterization
As noted in Section 2.3, the
parties hereto intend that IBM GF’s purchase of the Purchased
Receivables shall constitute an absolute and “true
sale,” conveying good title, free and clear of any liens
other than Permitted Encumbrances. In the event, it is determined
that the transactions evidenced hereby and by the other Program
Documents constitute a loan and not a purchase and sale, then
(a) IBM GF shall cease purchasing any additional Receivables,
(b) this Agreement shall constitute a security
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agreement under applicable law, and (c) the
Supplier does hereby grant IBM GF a first priority perfected
security interest in and to all of the Supplier’s right,
title, and interest, whether now owned or hereafter acquired, in,
to, and under the Purchased Receivables and their Associated Rights
to secure the obligations of the Supplier hereunder.
2.5 Nature of Purchased
Receivable Each Purchased
Receivable constitutes an “account,” “chattel
paper,” or “general intangible,” as such terms
are defined in the UCC.
3.0 SALES AND PURCHASES WITHIN
CREDIT LIMITS
3.1 Supplier Offers
From the Commencement Date until
either this Agreement is terminated or IBM GF at its option
declines to purchase Receivables following breach of this Agreement
by the Supplier (until such breach is remedied to the sole and
absolute satisfaction of IBM GF) the Supplier shall on the terms of
this Agreement offer to sell to IBM GF, at the Purchase Price, all
Receivables owing by each Buyer.
3.2 IBM GF Acceptances
IBM GF shall, if there is Credit
Availability, accept the Supplier’s offer to sell Receivables
on t
