LOAN AGREEMENT
EXHIBIT
10.67
This Loan
Agreement (as amended, restated, modified or
otherwise supplemented from time to time, this “Agreement”) is entered into as
of November 26, 2008 (the “Agreement Date”), by and between Micron Technology, Inc., a
corporation organized under the laws
of the State of Delaware, U.S.A. (the
“Borrower”), and
Inotera Memories, Inc.,
a company incorporated under the laws of the Republic of China (the “Lender”).
RECITALS
A. WHEREAS, the Lender has
committed to provide financing to the Borrower for general corporate purposes
per a Commitment Letter dated October 11, 2008 (such letter along with any
supplement thereto, the “Commitment
Letter”).
B. WHEREAS, to fulfill the
Lender’s obligations under the Commitment Letter, the Lender hereby agrees, subject to the terms and
conditions set forth herein, to extend a short-term loan facility to the
Borrower and the Borrower hereby agrees to
borrow the same from the Lender, subject to the terms and conditions set forth
herein.
C. WHEREAS, as a condition set
forth in the Commitment Letter, the consummation of the 2nd Closing
(as defined below) under the Share Purchase Agreement (as defined below) is
a condition precedent to the Lender’s performance of its obligation of extending
the Loan (as defined below).
D. WHEREAS, the Lender shall, subject to the terms of this
Agreement, be and remain the holder of the Loan and agrees that the Loan is
intended to satisfy the requirements of Section 881(c)(2) of the Internal
Revenue Code and Section 1.871-14 of the Treasury Regulations.
NOW, THEREFORE, for good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
1.1 Defined
Terms.
“Account Receivable” means all
present and future rights, title, remedies and claims which the Borrower has or
may have from time to time with respect to the quarterly license fees set forth on Schedule 4 to the TTLA that become due after the
Agreement Date.
“Agreement” shall have the
meaning set forth in the preamble of this Agreement.
“Agreement Date” shall have the
meaning set forth in the preamble of this Agreement.
“Applicable Law” means any
applicable laws, statutes, rules, regulations, ordinances, orders, codes,
arbitration awards, judgments, decrees or other legal requirements of any
Governmental Entity.
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“Borrower” shall have the
meaning set forth in the preamble of this Agreement.
“Business Day” means a day
that is not a Saturday, Sunday or other day on which commercial banking
institutions in the ROC are authorized or required by Applicable Law to be
closed.
“Confidential Information” shall have the
meaning set forth in Section 10.14(a) of
this Agreement.
“Commitment Letter” shall have
the meaning set forth in the Recitals to this Agreement.
“Control” (whether or not
capitalized) means the power or authority, whether exercised or not, to direct
the business, management and policies of a Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
which power or authority shall conclusively be presumed to exist upon
possession of beneficial ownership or power to direct the vote of more than
fifty percent (50%) of the votes entitled to be cast at a meeting of the
members, shareholders or other equity holders of such Person or power to control
the composition of a majority of the board of directors or like governing body
of such Person; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“Drawdown Date” means the date
on which the Lender transfers the proceeds
of the Loan to the Borrower.
“Event of Default” means
any of the events described in Section 9.1
of this Agreement.
“GAAP” means generally accepted
accounting principles, consistently applied for all periods at
issue.
“Governmental Entity” means any
governmental authority or entity, including any agency, board, bureau,
commission, court, municipality, department, subdivision or instrumentality
thereof, or any arbitrator or arbitration panel.
“Internal Revenue Code” means the
Internal Revenue Code of 1986, as amended,
and the rules and regulations promulgated thereunder.
“Interest Period” means three
(3) months.
“Lender” shall have the meaning
set forth in the preamble of this Agreement.
“Loan” shall have the meaning set
forth in Section 2.1(a) of this Agreement.
“Loan Documentation” means this
Agreement and the Pledge Agreement.
“Month” means a period starting
on one day in a calendar month and ending on the numerically corresponding day
in the next calendar month, except that:
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(a) subject
to paragraph (c) below, if the numerically corresponding day is not a Business
Day, that period shall end on the next Business Day in that calendar month in
which that period is to end if there is one, or if there is not, on the
immediately preceding Business Day;
(b) if
there is no numerically corresponding day in the calendar month in which that
period is to end, that period shall end on the last Business Day in that
calendar month; and
(c) if
an Interest Period begins on the last Business Day of a calendar month, that
Interest Period shall end on the last Business Day in the calendar month in
which that Interest Period is to end.
The above
rules will apply only to the last Month of any period.
“NTC” means Nanya Technology
Corporation, a company incorporated under the laws of the ROC.
“Permitted Liens” means (a)
liens for taxes not yet delinquent or liens for taxes being contested in good
faith and by appropriate proceedings for which adequate reserves have been
established to the extent required by U.S. GAAP; (b) liens in respect of
property or assets imposed by law which were incurred in the ordinary course of
business, which are not delinquent or remain payable without penalty or which
are being contested in good faith and by appropriate proceedings; and (c) liens
in favor of the Lender; provided that, in the case of
a lien described in the foregoing clause (a) or (b), such lien does not have
priority over the liens granted to the Lender under the Pledge
Agreement.
“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.
“Pledge” shall have the
meaning set forth in Section 5.1 of this Agreement.
“Pledge Agreement” shall
have the meaning set forth in Section 5.1 of this Agreement.
“Pledged Account Receivable”
shall have the meaning set forth in Section 5.1 of this Agreement.
“Potential Event of Default”
means any event or circumstance that with the giving of notice or the passage of
time (or both) would constitute an Event of Default.
“ROC” means the Republic of China.
“Share Purchase Agreement”
means the Share Purchase Agreement,
dated October 11, 2008, entered into by and among the Borrower, the Micron Semiconductor B.V.,
Qimonda AG and Qimonda Holding B.V.
for the sale and purchase of certain shares in the Lender.
“Subsidiary” means with
respect to any specified Person, any other Person that, directly or indirectly,
including through one or more intermediaries, is controlled by such specified
Person.
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“Tax” includes any tax, levy,
duty, charge, impost, fee, deduction or withholding of any nature now or
hereafter imposed, levied, collected, withheld or assessed by any taxing or
other authority and includes any interest, penalty or other charge payable or
claimed in respect thereof.
“Term” shall have the meaning
set forth in Section 10.4 of this Agreement.
“TTLA” means the Technology
Transfer and License Agreement for 68-50NM Process Nodes, made and entered into as
of April 21, 2008, by and between the
Borrower and NTC, as amended, amended and restated, modified or
otherwise supplemented from time to time.
“2nd Closing” shall have the
meaning set forth in Section 2.4 of the Share Purchase Agreement.
1.2 Certain Interpretive
Matters.
(a) Unless
the context requires otherwise, (i) all references to Sections, Articles or
Exhibits are to Sections, Articles or Exhibits of or to this Agreement,
(ii) each accounting term not otherwise defined in this Agreement has the
meaning commonly applied to it in accordance with ROC GAAP, (iii) words in the
singular include the plural and vice versa, (iv) the term “including” means “including
without limitation,” and (v) the terms “herein,” “hereof,” “hereunder” and words of
similar import shall mean references to this Agreement as a whole and not to any
individual section or portion hereof. Unless otherwise denoted, all
references to “$” or
dollar amounts will be to lawful currency of the United States of
America. All references to “day” or “days” mean calendar
days.
(b) No
provision of this Agreement will be interpreted in favor of, or against, any
party hereto by reason of the extent to which (i) such party or its counsel
participated in the drafting thereof, or (ii) such provision is inconsistent
with any prior draft of this Agreement or such provision.
2. TERMS OF LOAN AND
REPAYMENT.
2.1 Provision of
Loan.
(a) Subject
to the terms and conditions of this Agreement, immediately following the 2nd Closing, the Lender shall make available a loan
facility to the Borrower and the Borrower agrees to borrow in the principal
amount of eighty five million U.S. dollars ($85,000,000) (the “Loan”).
(b) Subject
to the Borrower's satisfaction or the Lender’s waiver of the conditions set
forth in Section 2.1(c) and Article 6 of this Agreement, the Lender shall make
the entire principal amount of the Loan available to the Borrower on the
Drawdown Date (which shall be a Business Day) by wire transfer to the account
designated by the Borrower in a written drawing notice in form substantially as
Exhibit A
hereto.
(c) Conditions of
Drawing. The drawing of the Loan is also subject to the
following conditions:
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(i) Delivery
of a drawing notice is made by the Borrower not later than 12:00 noon (Taipei
time) on second (2nd) Business Day before the scheduled Drawdown Date (or at
such time as the Lender may approve); and
(ii) On or
prior to the Drawdown Date, the Lender shall have received the evidence of
consummation of the 2nd
Closing.
2.2 Maturity of the
Loan. The
Borrower shall repay the Loan in full on the last day of the period of six (6)
months commencing from the Drawdown Date, unless the Loan is accelerated
pursuant to this Agreement.
2.3 Use of
Proceeds. All proceeds of the Loan shall be used for general
corporate purposes.
2.4 Repayment
Mechanics. All repayments hereunder shall be made by wire
transfer of such amounts in immediately available funds denominated in U.S.
dollars to the Lender, at such place and to such account as the Lender shall
designate in a written notice to the Borrower. Payments shall be
credited first to costs and expenses due and payable hereunder (including the
costs incurred under Sections 9.3), then to the accrued interest then due and
payable and the remainder applied to principal. The Loan may be
prepaid, without penalty or premium, in whole or in part from time to time,
provided that:
(a) Notice:
the Borrower shall have given the Lender not less than three (3) Business Days’
(or such shorter period as may be agreed between the Borrower and the Lender)
prior written notice specifying the amount to be prepaid and the date of
prepayment; and
(b) Interest:
the Borrower shall concurrently pay accrued and unpaid interest on the full
amount of the Loan to be prepaid on the date of such prepayment.
2.5 Taxes. (a) All
payments to be made by the Borrower to the Lender under the Loan Documentation
shall be made free and clear of any deduction or withholding on account of any
Taxes. If the Borrower or any other person is required by any law or
regulation to make any such deduction or withholding, the Borrower shall (i) pay
such deducted or withheld amount to the applicable tax authorities and, promptly
upon the Lender’s request, deliver to the Lender the certificate or receipt
evidencing such payment and (ii) pay such additional amount as will ensure that
the Lender receives and is entitled to retain, free and clear of any such
deduction or withholding, the full amount which it would have received if no
such deduction or withholding had been required. Without limiting the
foregoing, if the Lender or any other person on the Lender's behalf is required
by any law or regulation to make a payment on account of any such withholding
Tax or incurs any liability in respect thereof, the Borrower shall, within ten
(10) Business Days after demand by the Lender (which demand shall provide a
calculation in reasonable detail of such payment), indemnify the Lender against
such payment or liability and any interest, penalty or expense payable or
incurred in connection therewith. The obligations of the Borrower
under this Section 2.5(a) are subject to (i) the Lender executing any applicable
tax withholding forms (Form W-8BEN or its equivalent or any other form
prescribed by law as a basis for claiming exemption from or reduction in
withholding tax) as reasonably requested by the Borrower or the United States
Internal Revenue Service for United States taxation purposes,
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together
with such supplementary documentation necessary to allow the Borrower to
determine whether the withholding or deduction is required to be made and (ii)
the representation and covenant contemplated by Section 10.13 being true and
complied with. The Lender agrees to use its commercially reasonable
efforts, at the cost and expense of the Borrower, to otherwise assist the
Borrower to obtain the exemption status for any such deduction or
withholding. Nothing in this Section 2.5 shall require the Borrower
to make any payment on or indemnify the Lender for any Taxes imposed on or
measured by the Lender’s overall net income (however denominated) and franchise
Taxes imposed on the Lender under applicable ROC laws.
(b) If
the Lender determines that it has received a refund of, or reduction in its
liability for, any Taxes as a result of amounts paid or withheld by the Borrower
pursuant to this Section 2.5, the Lender shall pay over such refund or reduction
to the Borrower (but only to the extent of the amounts paid or withheld by the
Borrower under this Section 2.5 with respect to the Taxes giving rise to such
refund or reduction), net of all out-of-pocket expenses of the Lender and
without interest (other than any interest paid by the relevant governmental
authority with respect to such refund or reduction), provided that the Borrower,
upon the request of the Lender, agrees to repay the amount paid over to the
Borrower to the Lender in the event the Lender is required to repay such refund
or reduction to such Governmental Entity. This Section 2.5 shall not
be construed to require the Lender to make available its tax returns (or any
other information relating to its Taxes that it deems confidential) to the
Borrower or any other person.
3. INTEREST
3.1 Calculation of
Interest. The rate of interest on the Loan for each Interest
Period shall be the percentage rate per annum, which is the aggregate of the
applicable three-month LIBOR and a margin of two percent (2%), rounded up to the
nearest fourth decimal point. For the purpose of this Section 3.1,
LIBOR shall mean (a) the British Bankers’ Association’s London Interbank Offered
Rate for U.S. dollars for a tenor equal to (or most comparable to) the Interest
Period displayed on the Reuters Screen Page 3750 at 11:00 a.m. (Taipei time) on
the date which is two (2) Business Days prior to the commencement of the
applicable Interest Period or (b) if the rate specified in clause (a) is not
available for any reason, the offer rate for U.S. dollars for a tenor equal to
(or most comparable to) the Interest Period displayed on Reuters Screen Page
TAIFX3 at 11:00 a.m. (Taipei time) on the date which is two (2) Business Days
prior to the commencement of the applicable Interest Period.
3.2 Interest
Period. The initial
Interest Period shall commence on
the Drawdown Date, with each successive Interest
Period commencing on the last day of the prior
Interest Period.
3.3 Payment of
Interest. The Borrower shall pay accrued interest in arrears
on the Loan on the last day of each Interest Period, and the amount of interest
shall be computed on the basis of the actual
number of days elapsed (including the first day but excluding the
last day of such Interest Period) and a year of three hundred and sixty (360)
days.
3.4 Past Due
Rate. If the Borrower fails to pay any amount payable by it
under the Loan on its due date, past due interest shall accrue on such unpaid
amount at the rate of 10% per annum from the due date up to the date of actual
payment of the unpaid amount (both before and after
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judgment). The
Borrower shall pay past due interest (if unpaid) accruing on an unpaid sum at
the end of each Interest Period applicable to that unpaid sum or on demand of
the Lender.
4. RESERVED
5. PLEDGE
AND SECURITY INTEREST.
5.1 Pledge of the Account
Receivable. Without prejudice to the Lender’s right toward the
Borrower under this Agreement, as security for the performance in full of the
obligations of the Borrower under this Agreement, the Borrower and the Lender
shall enter into an account receivable pledge agreement in the form and
substance attached hereto as Exhibit B (the “Pledge Agreement”) and the Borrower shall
create a first priority security interest, subject to Permitted Liens, of a
pledge in favor of the Lender (the “Pledge”), in the rights, title
and interests in and to (i) all of the Account Receivable, and (ii) all rights
and privileges of the Borrower with respect to the Account Receivable, all
proceeds, income and profits thereof and all property received in addition
thereto, in exchange or substitution therefore (items (i) and (ii) collectively,
the “Pledged Account
Receivable”).
6. CONDITIONS PRECEDENT.
The
Lender shall only be obligated to provide the Loan when each of the following conditions has been
satisfied:
(a) The Lender shall have received this Agreement duly executed
and delivered by the Borrower.
(b) All
representations and warranties made by the Borrower in this Agreement shall be
true and correct in all material respects with reference to the facts and
circumstances then subsisting.
(c) The
Lender shall have received the Pledge Agreement, duly executed and delivered by
the Borrower, granting to the Lender, for its benefit, a security interest in
the Pledged Account Receivable described therein together with such financing
and assignment documents as provided in the Pledge Agreement and evidence
satisfactory to the Lender with respect to the Lender’s first priority security
interest in the Pledged Account Receivable.
(d) The
Lender shall have received certified copies of all action taken by the
Borrower authorizing the execution, delivery and performance of the Loan
Documentation.
(e) Completion
of creation and perfection of the Pledge, which shall be evidenced by any
notices and acknowledgements required to perfect or give effect to the security
created under the Loan Documentation, including, but not limited to, the written
notification issued by the Borrower to NTC
and the written acknowledgment issued by NTC, both in the form as set out in the
Pledge Agreement.
(f) No Event
of Default or Potential Event of Default shall have occurred and be
continuing.
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(g) The
requirements set out in Section 2.1(b) and (c) are fully complied
with.
7. REPRESENTATIONS AND
WARRANTIES.
The Borrower represents
and warrants to the Lender that each of the
representations, warranties and statements contained in the following Sections
of this Article 7 is true and correct as of the Agreement Date.
7.1 Organization; Good Standing and
Qualification. The Borrower is a corporation duly incorporated and
validly existing under the laws of the State of Delaware. The Borrower has
all requisite corporate power and authority to own, lease and operate its
properties and assets that it currently owns, leases or operates and to carry on
its business as now conducted and as presently proposed to be
conducted.
7.2 Authorization. All
corporate action on the part of the Borrower,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of the Loan Documentation and the performance of all
obligations of the Borrower hereunder has been taken. Each of the
Loan Documentation constitutes a valid and legally binding obligation of the
Borrower, enforceable against the Borrower
in accordance with its terms, except to the extent
that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, moratorium, and other laws affecting creditor’s rights generally
and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
7.3 Governmental
Consents. Other than (a) foreign
investment approval from the Investment Commission of the ROC Ministry of
Economic Affairs and (b) anti-competition approvals under Applicable Law, no consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any Governmental Entity on the part of the Borrower is required in
connection with the consummation of the transactions contemplated by the Loan
Documentation except as have been made or obtained (it being understood that no representation
or warranty is being made as to any such consents, approvals, orders,
authorizations, registrations, qualifications, designations or filings which may
be required in connection with the exercise by Lender of any of its rights and
remedies against the Collateral).
7.4 Ownership of the Account
Receivable. The Borrower is the sole legal and beneficial
owner of the Account Receivable, which is free and clear of any set-off, lien,
security interest, charge, encumbrance or claim, other than Permitted
Liens, and the Borrower has the corporate power and capacity to execute, deliver
and perform the Loan Documentation and to create the Pledge in favor of the
Lender.
7.5 Effective
Pledge. The implementation of provision of Article 5 of this
Agreement and provisions of the Pledge
Agreement and the delivery of requisite notices to NTC will be effective to
create in favor of the Lender a valid, binding and enforceable security interest
in all of the Borrower’s rights,
title and interests in the Pledged Account
Receivable, and constitute a fully perfected first and prior security interest,
lien, in all right, title and interest of the Borrower in such collateral, superior in right to
any liens which any third Person may have against such collateral or interests
therein.
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8. COVENANTS.
So long
as any amount under the Loan Documentation is outstanding, the Borrower hereby agrees to:
8.1 Necessary
Acts. Upon request by the Lender, do or procure the doing of
all such acts and execute or procure the execution of all such documents as the
Lender may reasonably consider necessary for giving full effect to the Loan
Documentation or securing to the Lender the full benefits of all rights, powers
and remedies conferred upon the Lender in the Loan Documentation.
8.2 Notification of
Defaults. Promptly notify the Lender upon the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, the Treasurer or
General Counsel of the Borrower obtaining knowledge of the occurrence of any
default or Event of Default hereunder.
9. EVENTS OF
DEFAULT.
9.1 Events of
Default. The occurrence and continuance of any of the
following shall constitute an Event of Default under this
Agreement:
(a) the
Borrower’s failure to make any payment of principal, interest or any other
amount payable hereunder when due under the Loan Documentation and such failure
continues unremedied for three (3) Business Days in the case of payments of
principal or five (5) Business Days in the case of interest or any such other
amount;
(b) the Borrower’s failure to perform
any of
its
material
obligations
or covenants under the Loan Documentation, in the case only of a failure
which is capable of remedy and is not to pay money, such failure is not
cured within thirty (30) days (or such longer period as the Lender may
approve) after receipt of written notice from the Lender requiring it to do
so;
(c) any
representation, warranty or statement made or deemed to be made by the Borrower
in the Loan Documentation is or proves to have been incorrect or misleading in
any material respect when made;
(d) the
filing of a petition by or against the Borrower under any provision of any law
relating to bankruptcy, insolvency or other relief for debtors, and in the case
of any such petition filed against the Borrower, such petition remains unstayed
or undismissed for a period of 60 days; or
appointment of a receiver, trustee, custodian or liquidator of or for all or any
part of the assets or property of the Borrower; or the insolvency of the
Borrower; or the making of a general assignment for the benefit of creditors by
the Borrower; or
(e) any Loan
Documentation, once executed and delivered, ceases to be in full force and
effect or ceases to be effective to create the security interest;
and
(f) any
actual or asserted invalidity or unenforceability by the Borrower
of the Pledge.
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9.2 Remedies. Upon
the occurrence and during the continuance
of any Event of Default, the Lender, at its option, may: (i)
by notice to the Borrower, declare the unpaid principal amount of the Loan, all
interest accrued and unpaid thereon and all
other amounts payable hereunder to be immediately due and payable, whereupon the
unpaid principal amount of the Loan, all such interest and all such other
amounts shall become immediately due and payable, without presentment, demand,
protest or further notice of any kind, provided that if an event
described in Section 9.1(d) above shall occur, without the giving of any such
notice, (ii) upon
acceleration of the Loan, exercise
its rights under the Pledge Agreement, and (iii) upon acceleration of the Loan
and other than with respect to the Collateral (as defined in the Pledge
Agreement), exercise any or all of the rights and remedies available to the
Lender under Applicable Law.
9.3 Costs. The
Borrower agrees to pay on demand all of the losses, costs and expenses
(including reasonable attorneys' fees and disbursements) that the Lender incurs
in connection with enforcement of the Loan Documentation, the protection or
preservation of the Lender's rights under the Loan Documentation or collection
of amounts due under the Loan Documentation, whether by judicial proceeding or
otherwise. Such costs and expenses include those incurred in
connection with any refinancing, or any bankruptcy, insolvency, liquidation or
similar proceedings.
9.4 Waivers. Except as otherwise set forth herein or in the Loan Documentation, the Borrower
hereby waives diligence, demand, presentment, protest or notice of any
kind in connection with the Lender
exercising its rights and remedies upon the
occurrence and during the continuance of an Event of
Default. The Borrower agrees to make all payments under the Loan
Documentation without setoff (except as may be requested by the Lender) or
deduction and regardless of any counterclaim or defense.
10. GENERAL
PROVISIONS.
10.1 Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed duly given upon (a) transmitter’s confirmation of a receipt of a
facsimile transmission, (b) confirmed delivery by a standard overnight or
recognized international carrier or when delivered by hand, or (c) delivery in
person, addressed at the following addresses (or at such other address for a
party as shall be specified by like notice):
(a) if
to the Borrower, to:
Micron
Technology, Inc.
0000 Xxxxx Xxxxxxx Xxx
Xxxxx, Xxxxx 00000-0000
Fax: (000) 000-0000
Attention: General Counsel
With a
copy to:
Micron
Technology, Inc.
0000 Xxxxx Xxxxxxx Xxx
00
Xxxxx, Xxxxx 00000-0000
Fax: (000) 000-0000
Attention: Treasurer
With a
copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx,
Xxxxxxxxxx 00000
Fax:
(000) 000-0000
Attention: Xxxx X. Xxxx, Esq.
(b) if to
Lender, to:
Inotera
Memories Inc.
Hwa-Ya
Technology Park
000,
Xxxxxxx 0xx
Xxxx
Xxxxxxxx,
Xxxxxxx
Xxxxxx,
X.X.X.
Fax: 000-0-000-0000
Ext. 3385
Attention: General
Counsel
10.2 Waiver. The
failure at any time of a party hereto to require performance by the other party
or parties of any responsibility or obligation required by this Agreement shall
in no way affect the first party’s right to require such performance at any time
thereafter, nor shall the waiver by a party hereto of a breach of any provision
of this Agreement by the other party or parties constitute a waiver of any other
breach of the same or any other provision nor constitute a waiver of the
responsibility or obligation itself.
10.3 Assignment. This
Agreement or any right or obligation hereunder, is not assignable, delegable or
otherwise transferable by any party, either voluntarily, by operation of law, or
otherwise, without the prior written consent of the other parties (which consent
may be withheld in its sole discretion). Any such purported assignment or
transfer not in accordance with this Section 10.3 shall be null and
void. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of the parties and their successors and assigns. The transfer of any right or obligation
hereunder by the Lender shall be effected only by the surrender of the Loan, and
either the reissuance by the Lender of the Loan to a new borrower or the
issuance by the Lender of a new loan instrument to a new
borrower. The Lender represents to the Borrower that, except as
otherwise permitted by this Section 10.3, it is and will remain the holder of
the Loan. This provision is intended to satisfy the requirements of
Section 881(c)(2) of the Internal Revenue Code and Section 1.871-14 of the
Treasury Regulations.
10.4 Term. The
terms of the Agreement shall commence from the Agreement Date and end on the
date upon which all the Borrower's obligations and liabilities under this
Agreement have been irrevocably performed or discharged in full (the “Term”).
10.5 Amendment. This
Agreement may not be amended or modified without the written consent of all
parties hereto.
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10.6 Third Party
Rights. Nothing in this Agreement, whether express or implied,
is intended or shall be construed to confer, directly or indirectly, upon or
give to any Person, other than the parties hereto, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenant, condition
or other provision contained herein.
10.7 Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
ROC, without giving effect to its conflict of laws principles.
10.8 Jurisdiction;
Venue. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement shall be brought in the Taipei District Court, located in Taipei,
Taiwan, and each of the
parties hereto hereby consents and submits to the exclusive jurisdiction of such
court (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
Applicable Law, any objection which it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding in any such court or that
any such suit, action or proceeding which is brought in any such court has been
brought in an inconvenient forum.
10.9 Headings. The
headings of the Articles and Sections in this Agreement are provided for
convenience of reference only and shall not be deemed to constitute a part
hereof.
10.10 Entire
Agreement. This Agreement, together with the Exhibits hereto
and the agreements and instruments referred to herein, constitute the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral and written, among the
parties hereto with respect to the subject matter hereof.
10.11 Severability. Should
any provision of this Agreement be deemed in contradiction with the laws of any
jurisdiction in which it is to be performed or unenforceable for any reason,
such provision shall be deemed null and void, but this Agreement shall remain in
full force and effect in all other respects. Should any provision of
this Agreement be or become ineffective because of changes in Applicable Law or
interpretations thereof, or should this Agreement fail to include a provision
that is required as a matter of law, the validity of the other provisions of
this Agreement shall not be affected thereby. If such circumstances
arise, the parties hereto shall negotiate in good faith appropriate
modifications to this Agreement to reflect those changes that are required
by Applicable Law.
10.12 Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
10.13 Lender Representation and Covenant. The Lender hereby represents
and warrants that it is not a ten percent (10%) shareholder (as that term is
defined in Section 871(h)(3)(B) of the Internal Revenue Code) of the Borrower on
the Agreement Date and hereby agrees that it will not
become a ten percent (10%) shareholder during the Term of the Loan.
10.14 Confidential
Information.
12
(a) The
parties hereby acknowledge that the terms and conditions of the Loan
Documentation and the information requested to be disclosed herein which is not
available to the public shall be considered confidential information
(collectively, the “Confidential Information”),
and the parties agree that the term Confidential Information includes (i) on the
part of the Borrower, any information received from the Lender under, pursuant
to or in connection with the Loan Documentation or the transactions contemplated
thereby, and (ii) on the part of the Lender, any information received from the
Borrower under, pursuant to or in connection with the Loan Documentation or the
transactions contemplated thereby. The parties shall not disclose any
Confidential Information to any third party except in accordance with the
provisions of this Section 10.14. Notwithstanding the foregoing, the
term "Confidential Information" shall not include information that (i) is or
becomes published or otherwise generally available to the public through no
fault or omission of the applicable party or any of its Affiliates, employees,
lenders, accountants or attorneys, (ii) was available to the applicable party on
a non-confidential basis prior to its disclosure to such party pursuant to the
Loan Documentation or (iii) becomes available to the applicable on a
non-confidential basis from a source other than the other parties.
(b) Notwithstanding
the foregoing, any of the parties may disclose any of the Confidential
Information to its Affiliates, employees, lenders, accountants and attorneys, in
each case only where such Persons have the need to know and so long as such
Persons agree to keep the information confidential in accordance with this
Section 10.14.
(c) In the
event that any of the
parties is requested or becomes legally compelled (including without
limitation, including by the Securities and Futures Bureau, Financial
Supervisory Commission, Executive Yuan, ROC, the Taiwan Stock Exchange or the
U.S. Securities Exchange Commission) to disclose the Confidential Information,
such party, shall provide the other parties with prompt written notice of that
fact before such disclosure is made and furnish for disclosure only that portion
of the information which is legally required.
(d) Each of
the Lender and the Borrower agrees that it will provide the other parties with
drafts of any documents, press releases or other filings in which it is required
to disclose the Confidential Information at least five (5) business days or such
other period as required by law, whichever is shorter, prior to the filing or
disclosure thereof, and that it will make any changes to such materials
reasonably requested by the other parties to the extent permitted by Applicable
Law. If confidential treatment is requested by any of the other
parties, the party seeking disclosure of the Confidential Information agrees to
file a request on behalf of such other party and shall use its commercially
reasonable efforts in responding to any comments by any such stock exchange or
securities regulatory body or authority to cause such confidential treatment to
be granted.
(e) Notwithstanding
Section 10.4 provides otherwise, the obligations of this Section 10.14 with
respect to any Confidential Information or with respect to any discussions or
agreements between the parties shall survive and continue for five (5) years
from the date of this Agreement.
(f) The
Lender understands and agrees that the Borrower will file the Loan
Documentation, as well as a summary of the Loan Documentation, with the U.S.
Securities and
13
Exchange
Commission (or any other Governmental Entity or regulatory body or stock
exchange) and such filings will not be subject to the restrictions and
procedures set forth in this Section 10.14.
[Signature
Page Follows]
14
The
parties hereto have caused this Agreement to be executed and delivered as of the
date first written above.
|
MICRON
TECHNOLOGY, INC.
|
||
|
By:
|
/s/ D. Xxxx
Xxxxxx
|
|
|
Name:
|
D.
Xxxx Xxxxxx
|
|
|
Title:
|
President
and Chief Operating Officer
|
|
[SIGNATURE
PAGE TO LOAN AGREEMENT BETWEEN MICRON TECHNOLOGY, INC. AND INOTERA MEMORIES,
INC.]
The
parties hereto have caused this Agreement to be executed and delivered as of the
date first written above.
|
INOTERA
MEMORIES, INC.
|
||
|
By:
|
/s/ Xxxxxxx
Xxx
|
|
|
Name:
|
Xxxxxxx
Xxx
|
|
|
Title:
|
President
|
|
[SIGNATURE
PAGE TO LOAN AGREEMENT BETWEEN MICRON TECHNOLOGY, INC. AND INOTERA MEMORIES,
INC.]
