AGREEMENT

 

Exhibit 10.58

 

Redacted Version

Confidential Treatment Marked

 

A G R E E M E N T

 

between

 

SI INVESTMENT LIMITED LIABILITY COMPANY & CO KG

 

and

 

M + W ZANDER FACILITY ENGINEERING GMBH

 

Pertaining to the

Design and Construction of Fab X, Dresden, Germany

 

Table of Contents

 

 

 

 

P R E A M B L E

 

This Design/Build Agreement (hereinafter referred to as “Agreement”) is made and entered into this 20^th of November, 2003 by and between SI Investment Limited Liability Company & Co KG, Louis-Braille-Straße 5, 01099 Dresden, Germany (hereinafter referred to as “Company”) and M+W Zander Facility Engineering GmbH, Lotterbergstraße 30, 70499 Stuttgart, Germany (hereinafter referred to as “Contractor”). Company and Contractor, are collectively referred to as “Parties” or each separately as “Party”.

 

R E C I T A L S

 

A. Company will purchase certain land located in Dresden, Wilschdorfer Straße marked in the plan attached as Exhibit 1 Site Plan in blue (the “Site”).

 

B. Contractor, or a joint venture of which Contractor forms part respectively, entered into a Co-Operation Agreement (Kooperationsvertrag vom 20. November 2003) under the conditions of which Contractor shall enter into a partnership agreement. Therefore, Contractor, or a joint venture of which Contractor forms part respectively, is not only Party to this Agreement but also limited partner (Gesellschafter/Kommanditist) of Company.

 

C. Company desires to obtain a new state-of-the-art microprocessor wafer fabrication facility for designing and producing integrated circuits (300 mm microprocessor wafers (65 nm technology, [***]* (to the degree defined in this Agreement) and associated support facilities to be located on the Site. The result (Werkerfolg) of the works and services to be executed or rendered under this Agreement is referred to as “Fab X” (also referred to as “S.I.L.K.”). Company commissions Contractor to plan, design, construct, erect, install, equip, start up, calibrate, adjust and turn over Fab X and execute all and any works, render all and any services and make all and any deliveries (hereinafter collectively referred to as “Works”) which are necessary or expedient for completing Fab X in a turn-key and functional manner and in a ready for unrestricted hook up condition, including, but not limited to, all and anything which

*	Confidential treatment has been requested pursuant to section IV.2. of the Confidential Treatment Request dated March 9, 2004.

 

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is technically or functionally necessary or expedient therefore, including, but not limited, to all and any items which could have an impact on productivity, yield or ease of use but excluding any works and services explicitly excluded in this Agreement.

 

D. Contractor desires to plan, design, construct, erect, install, equip, start up, certify, calibrate, adjust and turn over Fab X in the manner provided for in Recital C and to execute all Works necessary or expedient therefore and to execute the Works and to complete Fab X in a way meeting the standards provided for in this Agreement. As consideration in full for executing the Works and completing Fab X in accordance with this Agreement, Company will pay to Contractor the lump sum provided for in this Agreement

 

E. On the site adjacent to the Site, Contractor (or Contractor’s legal predecessor Meissner + Wurst GmbH + Co. KG) completed a wafer fabrication support facility as well as later extensions and improvements thereto (this fabrication, the support facilities, the extensions and improvements is hereinafter referred to as “Fab 30”) under a number of agreements, including a Design/Build Agreement with a third party (AMD Saxony Manufacturing GmbH, the legal predecessor of AMD Saxony Limited Liability Company & Co. KG) of November 15, 1996 as amended, a hook-up agreement of February 28, 1998 as amended and under later agreements especially under a letter of intent of June 7, 2000, an agreement of June 22, 2001 and a contract of November 28,/December 5, 2002).

 

From being involved in the works, services and deliveries under the aforementioned agreements, contracts and letters of intent and especially the details related to and underlying the execution, rendering or making the works, services and deliveries, Contractor is aware of the details of the completion of a state-of-the-art microprocessor wafer fabrication facility referred to in Recital C. Therefore, and because of surveys and examinations carried out by, or on behalf of, Contractor, Contractor is aware of the standards and requirements of such project, especially about all specifics and requirements of clean room conditions and is aware of the Site Condition, including the subsurface, environmental and hydrological condition. Moreover, Contractor is aware of the impact executing the Works under this Agreement could have on the operation of, and the production in, the adjacent Fab 30. Contractor acknowledges that Contractor is aware that any detrimental impact the execution of the Works may have on Fab 30 and the operation of, and production in, Fab 30 could lead to losses, damages, claims etc, for which Contractor is liable to the extent provided for in this Agreement. Contractor, therefore, knows and acknowledges that all and any Works to be executed under this Agreement shall – unless otherwise agreed upon by the Parties—be executed in a manner not affecting, influencing, disturbing or having any other detrimental impact, including, but not limited to, detrimental impact by vibrations, on the operation of Fab 30 or the production within Fab 30, including, but not limited to, the production of semiconductor processors. Contractor has examined and reviewed, and is aware of, all and any conditions relating to the Site, including, but not limited to, ground conditions, subsurface conditions and

 

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hydrological conditions and Contractor is aware of all and any requirements and conditions of a proper operation and production (including, but not limited to, the production of semiconductor processors) within Fab 30 as well as within Fab X (all these conditions are hereinafter referred to as „Site Conditions”). Contractor is liable for executing the Works in the aforementioned manner and meeting the requirements of the Site Conditions.

 

F. Company desires and Contractor acknowledges and is aware that it is essential that Fab X is completed within the milestones provided for in this Agreement and that meeting the given time frame is a presupposition (Voraussetzung) for Company being able to operate Fab X and produce in Fab X, otherwise an economical and efficient operation and production will be threatened or not be possible. Therefore, Contractor undertakes to complete the Works in the given time frame. Moreover, Parties are aware that the environmental, health, safety and security requirements provided for in this agreement to be met on Site, when executing the works and by Fab X are far above average standard and Contractor undertakes to meet such requirements.

 

Moreover, both Parties explicitly acknowledge and confirm that they are aware that for being granted the allowances Company applied for under the code of allowances (Investitionszulagengesetz) based on which the financial concept underlying this project was developed it is of utmost importance to reach the respective degree of completion described under no. 7.1.c) until [***]*.

 

G. Company’s ability to carry out the project underlying this Agreement depends on the fact that the financial presuppositions the project is based on are met or maintained. Therefore, Parties agree that Company has an extraordinary termination right under circumstances described in this Agreement the impact of which on the remuneration is stipulated in this Agreement.

 

H. Contractor confirms that Contractor will at all and any time keep the project underlying this Agreement equipped with all and any resources, know-how, work force and all and any means and measures necessary to properly execute the Works under this Agreement and to complete Fab X in time and that Contractor will not reduce its activities, work force or personnel and executing other projects or contracts will not detrimentally impact the project..

*	Confidential treatment has been requested pursuant to section IV.1.(a) of the Confidential Treatment Request dated March 9, 2004.

 

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P R O V I S I O N S

 

1.	Parts of this Agreement

 

In the event of discrepancies, the following parts of this Agreement shall be applicable in the order set forth hereinafter:

 

a)

this document (“Document”)

 

b)

the Exhibits to this Document

 

aa)

Exhibit 1: Site Plan

 

bb)

Exhibit 2: ITRS Roadmap

 

cc)

Exhibit 3: Design

 

dd)

Exhibit 4: List of Interfaces

 

ee)

Exhibit 5: Design Documents

 

ff)

Exhibit 6: Company’s Inspections

 

gg)

Exhibit 7: Payment Schedule

 

hh)

Exhibit 8: Operation and Maintenance Data

 

ii)

Exhibit 9: EHS Program

 

jj)

Exhibit 10: Clean Protocol

 

kk)

Exhibit 11: Lump Sum Price Calculation

 

ll)

Exhibit 12: List of Subcontractors consented to

 

mm)

Exhibit 13: Workforce Regulations

 

nn)

Exhibit 14: Milestone Definitions

 

oo)

Exhibit 15: Time Schedule

 

8

pp)

Exhibit 16: Performance Guarantee

 

qq)

Exhibit 17: Defects Liability Guarantee

 

c)

the rules of sound engineering practice (anerkannte Regeln der Technik)

 

d)

the applicable DIN, VDI and VDE regulations)

 

e)

the provisions of VOB/B (Verdingungsordnung für Bauleistungen, Teil B) The parties clarify that this does not mean that VOB/A is applicable as well.

 

f)

the German Civil Code (BGB = Bürgerliches Gesetzbuch).

 

2.	Scope of Work

 

2.1.	Scope of Work

 

Contractor is obliged to deliver to Company a new state-of-the-art microprocessor wafer fabrication facility for designing and producing integrated circuits (300 mm microprocessor wafers (65 nm technology, [***]* ([***]* defined in the roadmap attached hereto as Exhibit 2 ITRS Roadmap) and associated support facilities to be located on the Site. Contractor shall plan, design, construct, erect, install, equip, start up, calibrate, adjust and turn over Fab X and execute all Works which are necessary or expedient for completing Fab X in a turn-key and functional manner and in accordance with the specifications and descriptions contained in Exhibit 3 Design and in a ready for unrestricted hook up condition, regardless of whether the respective item or component is explicitly mentioned in Exhibit 3 Design and including, but not limited to, all and anything which is technically or functionally necessary or expedient therefore, including, but not limited to, all and any items which could have an impact on productivity, yield or ease of use but excluding any works and services as named as excluded in the list of interfaces attached as Exhibit 4 List of Interfaces.

*	Confidential treatment has been requested pursuant to section IV.2. of the Confidential Treatment Request dated March 9, 2004.