Agreement Between Si Investment Limited Liability Company & Co Kg

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 5

R E C I T A L S 5

P R O V I S I O N S 8

1. Parts of this Agreement 8

2. Scope of Work 9

2.1. Scope of Work 9

2.2. Document Flow 11

2.3. Conduct of Executing Works 12

2.4. Materials 12

2.5. Company's inspections 13

2.6. Obligations 13

2.6.1. Staturory and like Requirements 13

2.6.2. Progress Updates 14

2.6.3. Construction Diary 14

2.6.4. Calibrating, Adjusting, Testing 14

2.6.5. Permits 14

2.6.6. Construction Management 15

2.6.7. Planning, Engineering, Designing, Architectural and like Works 15

2.6.8. Operation and Maintenance Data 16

2.6.9. Mechanical, Electrical, Processing Components 16

2.6.10. Letter of Intent 16

2.6.11. Health and Savety Plan/Site Rules 16

2.6.12. Environmental, Health, Safety and Security Requirements 16

2.6.13. Obligation to observe Rules 17

2.6.14. Acceptances by Authorities 17

2.6.15. Health and Savety Coordinator 17

2.6.16. Clean Site 17

2.6.17. Construction Supervisor 18

2.6.18. Clean Roads 18

2.6.19. Security 18

3. Remuneration 18

3.1. Lump Sum Price 18


3.2. Payments on Account 19

3.3. German Income Tax Act 19

3.4. Presupposition for Payments becoming due 19

4. Changes 20

4.1. Adjustment can be calculated based on lump sum price calculation 21

4.1.1. Works to be executed in addition 21

4.1.2. Works not to be executed 22

4.1.3. Changes leading to Reductions and Additions 22

4.2. Adjustment can not be based on lump sum price calculation 22

4.3. Payments 23

5. Subcontracting/Personnel 24

5.1. Subcontracting 24

5.2. Personnel 25

6. Formal Acceptance 26

6.1. Formal Acceptance 26

6.2. No prior Acceptance 26

7. Milestones; Contractual Penalty 28

7.1. Milestones ( Vertragsfristen ) 28

7.2. Contractual Penalty ( Vertragsstrafe ) 29

7.3. Further Milestones 30

7.4. Schedule 31

7.5. Force Majeure 31

8. Distribution of Risk 32

9. Defects Liability 33

9.1 Defects Liability 33

9.2. Warranty 33

9.3. Warranties 33

10. Securities 35

10.1. Retention 35

10.2. Performance Guarantee ( Vertragserffcllungsbfcrgschaft ) 36

10.3. Defects Liability Guarantee ( Gewe4hrleistungsbfcrgschaft ) 36

10.4. Assignment for Security Purposes 37

10.5 Security to be provided by Subcontractors 37

11. Copyrights (Urheberrechte) 38

11.1. Confirmation 38

11.2. Rights to Ideas and other intellectual Property 38

11.3. Payment included in Lump Sum 40

12. Lender 41

13. Termination 41

13.1. Termination Rights provided for in VOB/B 41


13.2. Extraordinary Termination Right 41

14. Liability 42

14.1. Contractor generally liable 42

14.2. Liability for Damages 42

14.3. Limitations on Liability 43

14.4. Insurance 44

14.5. Nature of Company's Approval 45

14.6. Contractor's Responsibility for Construction Means 45

15. Identification 46

16. Liens (Rechte Dritter) 46

17. Confidentiality 46

18. Section 648 BGB not applicable 48

19. Law and Jurisdiction Miscellaneous 48

20. Condition Subsequent 49


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-Stradfe 5, 01099 Dresden, Germany (hereinafter referred to as " Company") and M+W Zander Facility Engineering GmbH, Lotterbergstradfe 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 Stradfe 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


6

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.

7

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 ffcr Bauleistungen, Teil B) The parties clarify that this does not mean that VOB/A is applicable as well.

f) the German Civil Code (BGB = Bfcrgerliches 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.

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If and to the extent the description of Fab X is insufficient in order to define specifications for Fab X reference shall be made to the specifications and descriptions under the agreement of November 28,/December 5, 2002 relating to the Advanced Technology and Process Center (ATPC) or, if this agreement is insufficient to the specifications and descriptions under the Design/Build Agreement of November 15, 1996.


The parties acknowledge and confirm that in case more than one way of executing the Works leads to completion of Fab X or a component or part thereof meeting the standards and requirements provided in this Agreement , Company has the right to choose the way of execution. If exercising such right to choose leads to cost or time impact this impact is covered by the change procedure provided for in no. 4.

These aforementioned obligations include, but are not limited to, all and any Works described and provided for in the design documents attached as Exhibit 3 Design . All standards or requirements necessary or expedient as described herein for completing Fab X in a turn-key and functional manner and in a ready for unrestricted hook up condition shall be met by the Works , this includes, but is not limited to, meeting all standards and requirements provided for in the design documents attached as Exhibit 3 Design .


As exception, the Parties clarify that to the extent regulations in Exhibit 3 Design deal with the technical solution for insurance reasons (FM or VDS) (which is still pending) elements of the Works are only covered by the lump sum provided for in no. 3.1 to the extent these aforementioned elements of the Works are explicitly described in Exhibit 3 Design . To the extent that regarding the aforementioned elements of the Works works or services other than those contained in Exhibit 3 Design are requested the impact on the remuneration shall be determined in accordance with the procedure provided for under no. 4.

The Contractor shall with regard to planning, designing, constructing, erecting, installing, equipping, starting up, calibrating, adjusting and turning over use best efforts to secure maximum possible value added and to execute the Works in a manner that there is no detrimental impact on the operation of, and production in, Fab 30 .

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


10

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 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 (to all these conditions is 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 but shall be entitled to an adjustment of the remuneration or an extension of time under the respective applicable provision of this Agreement if and to the extent findings ( Kampfmittel or arche4ologische Funde ) lead to a change of the scope of work.

2.2. Document Flow

Contractor shall submit all Design Documents as defined in Exhibit 5 Design Documents to Company for approval (approval means written consent). Such approval by Company shall not unreasonably be withheld. Company shall approve or disapprove such documents latest within five (5) working days (working days in the meaning of this Agreement are all days from Monday through Saturday except for days which are public holidays ( gesetzliche Feiertage ) in the Free State of Saxony) from receipt. If Contractor has not received the approval or disapproval (defining the reason(s) for disapproval at the same point in time) within this period from Company receiving the particular document, Contractor shall give Company notice of Companyb4s failure to respond in time. If Contractor has not received Companyb4s approval or disapproval within 24 hours from Companyb4s receipt of such notice, the particular document shall be deemed to be approved by Company . Contractor shall not be entitled to an extension of time because of Companyb4s justified refusal to approve a certain document.


11 2.3. Conduct of Executing Works

All Works to be executed shall, in addition to being executed in a manner meeting the standards and requirements in other parts or provisions of this Agreement, be executed in a manner meeting clean room standards as defined in Exhibit 3 Design .

Contractor explicitly acknowledges that Contractor is aware of the conditions and requirements of a 300 mm microprocessor wafer fabrication facility and the standards to be met by such facility (which are far higher than the standards of regular industrial construction), especially those to be met by the Works and Fab X , including, but not limited to, cleanroom conditions. Contractor explicitly warrants that Contractor sufficiently informs all subcontractors of all conditions, requirements and standards to be met on or by such facility, including, but not limited to, cleanroom conditions.

Company has an absolute ban on smoking in place over the entire Site and in all its buildings, with the exception of smoking zones marked accordingly.


For reasons of personal and general safety, the consumption of any alcoholic beverages during work, or starting work in an intoxicated condition, is prohibited. This also applies for other drugs.

Contractor hereby undertakes to strictly monitor compliance with these prohibitions on the part of its employees or the staff of any subcontractors used. Repeated breaches or offences, in spite of a warning, shall be a valid basis for expulsion of the employee or the subcontractor from the Site .

2.4. Materials

Contractor shall, on demand of Company , submit for Company's approval, detailed information, including, but not limited to, model number, quality, manufacturer, about all materials Contractor intends to use. In addition, Contractor shall submit to Company , for Company's approval, detailed information about all materials which are exposed to parts of Fab X which are to be or might be operated under clean room conditions . Such approval shall not unreasonably be withheld by Company .


12 2.5. Company's inspections

Company shall, at any time, have the right to review and inspect all and any of the Works by Contractor , including but not limited to, any Works documents, plans, drawings, Design Documents , discs, electronic data and like (except for commercial data which shall ? unless provided otherwise in this Agreement only be disclosed if and to the extent necessary for determining price adjustments under no. 4.2 of this Document ). Moreover, Contractor shall ? on demand ? submit to Company copies of any of such documents and all documentation and information related to the execution of the Works to be executed. Exhibit 6 Company's Inspections shall apply accordingly to any Works to be executed under this Agreement. 2.6. Obligations

The Parties clarify and acknowledge that the obligations which form part of the Works include, but are not limited to, the following:

2.6.1. Statutory and like Requirements

Contractor shall obey Baustellenverordnung and all and any statutory and like requirements including, but not limited to Arbeitsste4ttenverordnung, Arbeitsnehmerfcberlassungsgesetz, Bundesimmissionsschutzgesetz, Strahlen- und Rf6ntgenschutzverordnung, Sicherheitsbestimmungen, Bestimmungen der Berufsgenossenschaften and all and any Unfallverhfctungsvorschriften (accident prevention regulations) and all and any accident prevention obligations and EU directives and shall impose this duty on all subcontractors. This includes, but is not limited to, Contractorb4s obligation to develop a security and health plan ( Sicherheits- und Gesundheitsschutzplan ). If Contractor proves that changes of such statutory or like requirements becoming effective after conclusion of this Agreement of which Contractor has not been aware at the time of concluding this Agreement results in changes in the scope of work the financial impact of the total of such changes of such laws or like is more than Euro 75,000.00 (seventy five thousand Euro) the change order procedure provided for in no. 4 shall apply on the entire amount (if the amount is Euro 75,000.00 or less the change order procedure shall not apply but the resulting impact on the scope of work shall be covered by the lump sum provided for in no. 3.1).


13 2.6.2. Progress Updates

Contractor shall provide Company , with monthly status and progress reports and ? upon reasonable and justified request of Company ? with periodic progress reports in the frequency justified by the situation. In addition Contractor shall provide Company with weekly progress updates. Moreover, Contractor shall provide Company with technical progress reports relating to all completions of relevant parts of Fab X (for example "Fab construction weathertight" or "clean room ready for equipment") and of milestones provided for in this Agreement and for completions which trigger ? under the payment schedule for progress payments attached as Exhibit 7 Payment Schedule - payments on account.

2.6.3. Construction Diary

Contractor shall keep a construction diary ( Bautagebuch ) on an at least daily basis. 2.6.4. Calibrating, Adjusting, Testing

The obligations of Contractor shall include, but not be limited to, all and any calibrating, adjusting, testing and like of Fab X and all and any parts and components thereof to the extent necessary or expedient for completing Fab X in accordance with this Agreement .

2.6.5. Permits

Contractor shall be obliged to procure all necessary permits, acceptances and like which are necessary or expedient for executing or completing the Works or completing Fab X in accordance with this Agreement , including, but not limited to, the building permit, necessary permits under water law ( wasserrechtliche Genehmigungen, Erlaubnisse etc. ), permits required under the Working Hours Law ( Arbeitszeitgesetz) (e.g. for work on Sundays).


14 2.6.6. Construction Management

Contractor shall render all and any construction management and supervision services necessary or expedient for the execution and completion of the Works and the completion of Fab X in accordance with this Agreement . This includes, but is not limited to, Contractorb4 s obligation to coordinate with persons, including but not limited to work or services performed by Company and with other contractors employed by Company , acting on the Site on behalf of Company . Such person acting on behalf of Company shall obey Contractorb4s construction site rules and shall attend Contractorb4s coordination meetings which Contractor shall carry out in a form, number and in intervals (at least weekly) as, and with all participants, necessary and expedient and invite Company to, and provide Company with protocols of all coordination meetings. However, Contractor shall not be liable and responsible for conduct of such persons acting on behalf of Company ( Erffcllungsgehilfen des Auftraggebers ) unless such conduct is caused by Contractor . Company shall instruct and inform any such person accordingly. The obligations of Contractor shall include, but shall not be limited to, coordinating the timing of work done by Contractor with that carried out by third parties,

? coordinating the physical location and personnel allocation arrangements for work done by Contractor and third party works, ? harmonizing the structural engineering aspects of the work done by Contractor with third party contributions to the project and ? coordinating works and firms, so that all aspects of the construction project will proceed in accordance with the accident prevention regulations. 2.6.7. Planning, Engineering, Designing, Architectural and like Works


The obligations of Contractor shall include all and any planning, engineering, designing, architectural and like works or services necessary or expedient for the execution or completion of the Works and Fab X in accordanc ...