EXHIBIT 10.30
Memorandum Of Agreement rev 6
MEMORANDUM OF AGREEMENT
For the Complete Design and Installation of the
FIT-OUT WORKS
FOR AMI SEMICONDUCTOR PHILIPPINES, INC
KNOW ALL MEN THESE PRESENTS:
This MEMORANDUM OF AGREEMENT (hereinafter referred to for brevity as "THE
AGREEMENT") made and entered into this 13th day of January, 2005 in Makati City,
Metro Manila, between and among-
AMI SEMICONDUCTOR PHILIPPINES, INC, a registered Export Enterprise
organized and existing under Philippine Law with offices at 9701 Dr.
A. Santos Ave., Paranaque City MM Philippines 1700 represented
herein by its Executive Director for Finance, MR. WILFREDO F.
FRANCO, hereinafter referred to for brevity as the "AMIS";
-and-
ILO LAND, INC., a Philippine Economic Zone Authority registered
Facility Enterprise duly organized and existing under Philippine law
with offices at 3rd Floor ILO Building 196 G. Araneta Avenue, Quezon
City represented herein by its Chairman MR. IGNACIO L. ONG,
hereinafter referred to as "ILO";
-and-
TAKASAGO PHILIPPINES, INC, a corporation duly organized and existing
under Philippine law with offices at 4TH Floor Raha Sulayman Bldg.
108 Benavidez St. Legaspi Village Makati City 1229 Metro
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Memorandum Of Agreement rev 6
Manila Philippines represented herein by its Sr. Vice President and
General Manager MR. TOSHIMITSU KATO, hereinafter referred t for
brevity as the "CONTRACTOR";
WINESSETH: That
WHEREAS, AMIS, in collaboration with the domestic corporation ILO, desires
to put up and construct a NEW CLEAN ROOM FACILITY AND SUPPORTING BUILDINGS
(referred to as the FIT- OUT WORKS) with total floor areas of 12,620sqm, more or
less, (Annex "F"), located at LAND PLOT LOT NOS. C3 10 AND C2 AT CARMELRAY
INDUSTRIAL PARK II, SEZ, LAGUNA PHILIPPINES, (hereafter the "Premises") which
are be leased to AMIS by ILO pursuant to a written agreement between AMIS and
ILO.
WHEREAS, AMIS and ILO desire to have the complete installation of the
FIT-OUT WORKS on the Premises;
WHEREAS, ILO and the CONTRACTOR hereby agree that AMIS is a party in
interest in this agreement and, therefore, is hereby given any and all necessary
legal standing and right to enforce the terms of this AGREEMENT.
WHEREAS, the CONTRACTOR has presented and warranted itself as capable,
competent, duly licensed and that it possesses the needed expertise, manpower,
equipment and machineries required to construct the FIT-OUT WORKS and has
offered its services to install and complete the FIT-OUT WORKS;
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WHEREAS, on the basis of the foregoing representation and warranty of the
CONTRACTOR, AMIS and ILO have accepted the offer of the CONTRATOR to undertake
the aforesaid FIT-OUT WORKS; NOW, THEREFORE, in view of the foregoing premises,
the parties hereto agree to execute this AGREEMENT for the complete construction
and completion of the FIT-OUT WORKS under the following terms and conditions:
ARTICLE 1. CONTRACT PRICE; TERMS OF PAYMENT
1.01 The Contract Price.
The CONTRACTOR agrees to perform the design, procurement,
installation and completion of the FIT-OUT WORKS according to the plans and
specifications in annexes "B" and "C" hereto and the remedying of any defects
therein either as to workmanship or quality of materials, for the sum of no more
than UNITED STATES DOLLAR: FIVE MILLION NINE HUNDRED THOUSAND ONLY (USD
5,900,000). The CONTRACTOR shall make best efforts to reduce the total cost
below this amount and will diligently work with AMIS and ILO to achieve such
reduction. The parties agree that, as between ILO and AMIS, AMIS shall be the
sole focal point for the CONTRACTOR in all matters relating to the design,
procurement, installation and completion of the FIT-OUT WORKS and the remedying
of any defects therein.
1.02 ILO shall pay the cost of the FIT-OUT WORKS up to FIVE MILLION
UNITED STATES DOLLARS (USD 5,000,000) only pursuant to the terms of
Section 1.04 below.
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1.03 AMIS shall pay up to a maximum amount of NINE HUNCRED THOUSAND
UNIITED STATES DOLLARS (USD 900,000) PURSUANT to the terms of
Sections 1.04 and 3.3 below.
1.04 The CONTRACTOR shall be paid as follows,
(a) A down payment of USD 300,000 by AMIS upon ordering by
CONTRACTOR of certain equipment to be owned by AMIS, as
outlined in annex "D" hereof.
(b) Payment by AMIS upon delivery on the construction site of
certain equipment to be owned by AMIS, as outlined in annex
"D", of up to USD 600,000.
(c) A down payment of USD 1,500,000 by ILO upon signing of this
Agreement.
(d) The remaining USD 3,500,000 of the CONTRACT PRICE shall be
paid by ILO, only after receipt of written approval by AMIS,
as follows:
Upon completion by CONTRACTOR of the first 1000sqm
clean room in accordance with the specifications set forth in Annex "B" and
Annex "C" hereto and written acceptance thereof by AMIS: USD 1,000,000
Upon completion by CONTRACTOR of the next 1000sqm
clean room in accordance with the specifications set forth in Annex "B" and
Annex "C" hereto and written acceptance thereof by AMIS: USD 750,000
Upon finishing of all clean room facilities in
accordance with the specifications set forth in Annex "B" and Annex "C" hereto
and written (provisional acceptance by AMIS): USD 750,000
Upon final written acceptance by AMIS of the
OUT WORKS : FIT- USD 500,000
RETENTION Six (6) months after Final Acceptance : USD
500,000
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ARTICLE 2. TIME COMPLETION
2.01 Time of Completion for the FIT-OUT WORKS.
The FIT-OUT WORKS called for under this AGREEMENT must be completed with
the requisite permit within six months (6) months counted from date of signature
of this contract.
2.02 The CONTRACTOR hereby agrees to complete, according to the specifications
set forth in Annex "B" and Annex "C", deliver and hand-over the priority area of
1,000 sqm of Class 10K clean room to AMIS on or before April 15, 2005 and an
additional 1,000 sqm of 10K clean room by May 15, 2005.
2.03 In order to achieve the deadlines set forth in 2.02, the CONTRACTOR may
need to charge for additional labor and local delivery expedite cost. AMIS
accepts to pay such cost up to a limit of USD 50,000 upon justification once the
deadline was achieved. Furthermore, the CONTRACTOR shall provide, within one
week after contract signature, the full list of needed equipment with their
required on-site dates and the current estimated availability dates.
Representatives from the CONTRACTOR and AMIS will have weekly meetings to update
this list and jointly decide which equipment needs to be expedited. Resulting
expedite costs, if agreed to in writing by AMIS, shall be reimbursed by AMIS to
the CONTRACTOR.
2.04 The CONTRACTOR shall pay a penalty of 0.1% of the total CONTRACT PRICE for
every day delay compared to the timing defined in 2.01 and 2.02, which
amount(s), if any, may be deducted by AMIS from the amounts owed to CONTRACTOR
hereunder. A two weeks grace period will apply, during which no penalty will be
charged. If the delay exceeds the grace period, then the full penalty will be
charged, starting from the original deadline date. The maximum penalty shall not
exceed five percent (5%) of the CONTRACT PRICE.
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ARTICLE 3. SCOPE OF WORKS
3.1 The CONTRACTOR shall construct, build and complete the FIT-OUT WORKS
strictly in accordance with the approved plans, drawings and specifications set
out in Annex "B" and Annex "C" and with the Quotation # 165-04-R4C1 and 2 in
Annex "E".
3.2 The CONTRACTOR shall provide all labor, supplies, equipment and needed
materials for the FIT-OUT WORKS.
3.3 AMIS shall review and approve the construction plan, drawings and
specifications before the start of the work. Any changes from the approved plan
and Specifications will be documented in a written amendment to this agreement
and/or The applicable ANNEX, which amendment shall include any required
adjustment to The Contract Price and/or schedules and shall be signed by both
parties.
ARTICLE 4. PURCHASE AGREEMENT OF IMPORTED EQUIPMENT.
4.1 It is hereby understood and agreed by the parties that all imported
equipment needed by the work, as defined in Annex "D", shall be imported by AMIS
or ILO.
4.2 It is also hereby understood and agreed by THE PARTIES that AMIS and ILO
will help in the procurement and release from Manila port of these equipment.
This AGREEMENT also authorizes the CONTRACTOR, to buy at cost for AMIS or ILO
all the imported equipment as indicated in Annex D. CONTRACTOR shall complete
all acts necessary to ensure that title to such equipment is in the name of AMIS
OR ILO. Should AMIS OR ILO need assistance from CONTRACTOR in
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perfecting its title to the equipment, CONTRACTOR will promptly do all acts
helpful or necessary without charge. CONTRACTOR shall be solely responsible for
payment of the purchase price for all such equipment, WITH AMIS AND ILO being
responsible only for paying the amounts set forth in Section 1.04 of this
agreement.
ARTICLE 5. GUARANTEE AFTER COMPLETION
5.01 The CONTRACTOR shall guarantee all FIT-OUT WORKS including all equipments
supplied by the CONTRACTOR, upon their completion until one (1) year from the
date of final acceptance of the project by AMIS. The defects within the
CONTRACTOR'S scope of works within said guarantee period shall be replaced and
made good by the CONTRACTOR at its own expense. However, defects caused by wear
and tear, intentional or accidental breakage shall not be included in this
guarantee.
However, nothing in this Article shall in any way affect or relieve the
CONTRACTOR of its responsibility to the correctness and stability of the entire
FIT-OUT WORKS.
ARTICLE 6. EFFECTIVITY OF THE CONTRACT
6.1 Conditions Precedent.
The effectivity of this AGREEMENT shall be subject to the fulfillment of the
following conditions precedent to the satisfaction of AMIS and ILO:
(a) the execution and delivery of this AGREEMENT by the parties;
(b) the submission by the CONTRACTOR to and the acceptance by the
AMIS and ILO of proof that the CONTRACTOR has taken all
corporate and/or legal action which may be required and/or
necessary to make this contract legal, valid and binding
between the parties.
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6.2 Effectivity and Notice.
the fulfillment of the conditions precedent set forth above shall be confirmed
by a written notice to that effect by AMIS AND ILO to the CONTRACTOR. Hence,
this AGREEMENT shall be deemed effective as of the date indicated in such
notice.
ARTICLE 7. THE CONTRACT DOCUMENTS
7.01 The Contract Documents.
The CONTRACT DOCUMENTS between the parties relative to the FIT-OUT WORKS
shall consist and shall include all the following documents and any amendment/s
and/or supplement's to any or all of such documents, to wit:
(a) this MEMORANDUM OF AGREEMENT;
(b) Drawing Plans consisting of ____ pages as Annex "A" hereof,
(c) Specifications consisting of ____ pages as Annex "B" hereof,
(d) Bid Bulletin Nos. __________ as Annex "C" hereof, consisting of ___
pages.
(e) List of Equipments to be property of AMIS OR ILO consisting of ___
pages as Annex "D" hereof,
(f) Quotation #165-04-R4C consisting of ___ pages as Annex "E" hereof,
(g) Floor Area Description and Condition consisting of ___ pages as
Annex "F" hereof,
7.02 Amendment/s and/or Supplement/s. Any amended and/or supplement to the
CONTRACT DOCUMENTS shall be binding only if signed by both parties.
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7.03 Official Copies of CONTRACT DOCUMENTS. For purposes hereof, only the copies
of the above mentioned AGREEMENT and their annexes, if any, which are initialed
on each and every page thereof by the duly authorized representative of AMIS and
ILO and the CONTRACTOR shall be the official copies of said AGREEMENT.
ARTICLE 8. GUARANTEE/WARRANTY
8.01 The CONTRACTOR guarantees and warrants that all works under the AGREEMENT
are in accordance with the drawings, plans and specifications set out in
Annex "B" and Annex "C" hereto and shall make good for its own account any
defect or defects which may later be discovered except those arising from
ordinary wear and tear for a period of one (1) year from the date of
issuance of the Certificate of Final Acceptance and those caused by
negligence or fault of AMI/ILO or caused by force majeure. The CONTRACTOR
shall likewise put up the necessary CONTRACTOR'S ALL RISK INSURANCE as
called for in the bid documents. The CONTRACTOR warrants to AMIS AND ILO
that all materials and equipment furnished under and in connection with
the FIT-OUT WORKS shall be new unless otherwise agreed in writing by both
AMIS AND ILO. CONTRACTOR further warrants that the FIT-OUT WORKS shall be
of good quality, free from material faults, defects and omissions and in
conformance with the applicable rules and regulations of the Philippine
and any local governments. The CONTRACTOR further warrants that the
FIT-OUT WORKS shall be free and clear of all liens, claims, security
interests or encumbrances in favor of CONTRACTOR, any subcontractor,
material suppliers or others making
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a claim by reason of having provided labor, materials and equipment
relating to the FIT-OUT WORKS. If requested by AMIS OR ILO, CONTRACTOR
will furnish satisfactory evidence as to the kind and quality of materials
and equipment furnished hereunder.
8.02 Representatives and Warranties. In addition, the CONTRACTOR makes the
following additional and special representations and warranties to and in
favor of AMIS and ILO:
(a) The CONTRACTOR has full corporate and legal capacity and
authority to enter into this AGREEMENT and to perform its
obligations hereunder. Likewise, it has taken all corporate
and legal action which may be required or necessary to
authorize the execution, delivery and performance of this
AGREEMENT.
(b) The CONTRACTOR has the professional and technical staff and
personnel whose members possess the required and appropriate
professional capabilities, qualifications and technical
expertise and that it has the necessary equipment, machinery
and facilities to perform the FIT-OUT WORKS and to undertake
and complete the same in satisfactory, efficient and timely
manner.
(c) The CONTRACTOR has adequate financial resources to undertake
the FIT-OUT WORKS and to prosecute and complete the same,
under this AGREEMENT to fund its compliance with its
obligation hereunder.
(d) Each of the Contract Documents constitutes the legal, valid
and binding obligation of the CONTRACTOR enforceable against
it in accordance with its terms.
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8.03 Special Covenants and Commitments. The CONTRACTOR shall be subject to
the following covenants/commitments:
(a) It shall assume full responsibility for the procurement of all
materials, equipment and supplies required for the FIT-OUT
WORKS including, if any, its subcontractor's requirements;
further, it warrants the availability of all such materials
and supplies and when needed.
(b) In pursuance of the covenants/commitments under the preceding
paragraph, the CONTRACTOR further agrees that the
unavailability of required materials and supplies shall not
constitute as a valid defense for its failure or delay to
complete the FIT-OUT WORKS.
(c) It shall at all times provide at the site all equipment,
machinery and skilled manpower needed for the prompt and
timely completion of the FIT-OUT WORKS.
ARTICLE 9. CONTRACTOR'S DAFAULT AND ITS EFFECTS
9.01 Default. Non-Performance of any obligation shall constitute an event
of default on the part of the CONTRACTOR under this AGREEMENT.
9.02 Effects of Default. Upon the occurrence of an event of default, AMIS
or ILO may, after service of notice on the CONTRACTOR, avail itself of any one
or all of the following remedies:
(a) Terminate this AGREEMENT;
(b) Suspend any or all payments due or to become due to the
CONTRACTOR or;
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(c) Take over and complete the FIT-OUT WORKS by itself or through
another or other contractor(s), and charge all related costs
back to the CONTRACTOR.
ARTICLE 10. COMPLIANCE WITH LAWS/REGULATIONS
10.01 In completing the FIT-OUT WORKS, the CONTRACTOR shall secure, at its
expense, the pertinent permits and requirements and shall comply with all
existing laws, executive and administrative orders, rules and regulations issued
or to be issued by competent authority.
ARTICLE 11. MISCELLANEOUS PROVISIONS
11.01 Settlement of Disputes. The parties agreed to exert their best
effort to resolve any dispute which may arise between them under the AGREEMENT
through amicable settlement before a case will be filed be either of them in
court.
11.02 Waiver. The failure of either party to enforce its rights hereunder
shall not be deemed a waiver thereof unless made in writing and signed by the
party making the waiver.
11.03. Assignability of the AGREEMENT. Neither party shall assign its
rights under this AGREEMENT or any part thereof without the written concurrence
of the other.
11.04. CONTRACTOR shall follow and at all times be in compliance with all
applicable safety and environmental regulations and keep the work site free from
debris and unsafe conditions resulting from the FIT-OUT WORKS.
11.05 CONTRACTOR agrees that all of the plans and specifications for the
FIT-OUT WORKS are the sole property of AMIS.
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IN WITNESS WHEREOF, the parties have hereunto set their hands at the place
and on the date above written.
AMI SEMICONDUCTOR, PHILS, INC ILO LAND INC.
By: By:
WILFREDO F. FRANCO IGNACIO L. ONG
Executive Director for Finance Chairman
Passport No. GG681948 Passport No.22091083
TAKASAGO PHILIPPINES, INC.
By:
Toshimitsu Kato
Sr. Vice President/General Manager
Passport No. TZ0116844
Date Issue: June 8, 1999
SIGNED IN THE PRESENCE OF:
______________________________ _________________________
JOEY CESAR R. ROMERO
ACKNOWLEDGEMENT
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Memorandum Of Agreement rev 6
REPUBLIC OF THE PHILIPPINES)
MAKATI CITY )S.S.
BEFORE ME, A Notary Public for and in _________________, this _________
day of ____________, 2005, personally appeared the following:
NAME CTC NO. DATE/PLACE OF ISSUE
- ------------------ --------- -------------------
Toshimitsu Kato TZ0116844 June 8, 1999
Wilfredo F. Franco GG681948 January 23, 2001
Ignacio L. Ong 22091083 September 6, 2002
Both known to make and to me known to be the same persons who executed the
foregoing CONTRACT, consisting of eleven (11) pages including this page whereon
the ACKNOWLEDGEMENT is written, duly signed by them and their instrumental
witnesses and all pages and they acknowledged to me that the same is their free
and voluntary act and deed and of the corporation herein represented.
WITNESS MY HAND AND SEAL at the place and on the date first above written.
Doc. No. ________;
Page No. ________;
Book No. ________;
Series of 1997
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Amendment1 to Memorandum Of Agreement
AMENDMENT 1 TO THE
MEMORANDUM OF AGREEMENT
EXECUTED JANUARY 13, 2005
KNOW ALL MEN BY THESE PRESENTS:
AMI SEMICONDUCTOR PHILIPPINES, INC., a registered Export Enterprise
organized and existing under Philippine Law with offices at 9701 Dr.
A. Santos Ave., Paranaque City MM Philippines 1700 represented
herein by its President, MR. CHRISTOPHER K. LAYTON, hereinafter
referred to for brevity as the "AMIS";
-and-
ILO LAND, INC., a Philippine Economic Zone Authority registered
Facility Enterprise duly organized and existing under Philippine law
with offices at 3rd Floor ILO Building 196 G. Araneta Avenue, Quezon
City represented herein by its Chairman MR. IGNACIO L. ONG,
hereinafter referred to as "ILO";
-and-
TAKASAGO PHILIPPINES, INC, a corporation duly organized and existing
under Philippine law with offices at 4TH Floor Raha Sulayman Bldg.
108 Benavidez St. Legaspi Village Makati City 1229 Metro Manila
Philippines represented herein by its Sr. Vice President and General
Manager MR. TOSHIMITSU KATO, hereinafter referred to for brevity as
the "CONTRACTOR";
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Amendment1 to Memorandum Of Agreement
WITNESSETH:
WHEREAS ILO and AMIS, along with CONTRACTOR are a party to that certain
Memorandum of Agreement signed by and between them on January 13, 2005, which
relates to the construction of the "FIT-OUT WORKS" for the Leased Premises.
WHEREAS, that Memorandum of Agreement and the provisions of Section 1.0 hereof,
most specifically Section 1.02 and 1.03, assumed that ILO would pay $5,000,000
of the expenses associated with the FIT-OUT WORKS AND AMIS would pay $900,000 of
such expenses,
WHEREAS ILO AND AMIS have now agreed to modify this arrangement so that AMIS
pays an increased amount of the expenses associated with the FIT-OUT WORKS in
exchange for a reduction in rent under this Contract,
NOW THEREFORE, ILO, AMIS AND CONTRACTOR hereby agree to the following amendments
to MEMORANDUM OF AGREEMENT:
SECTIONS 1.02, 1.03 AND 1.04 ARE DELETED AND REPLACED WITH THE FOLLOWING:
1.02 ILO shall pay the cost of the FIT-OUT WORKS up to Three Million Nine
Hundred Eighty Three Thousand Eight Hundred Thirty Six UNITED STATES
DOLLARS (USD 3,983,836) only pursuant to the terms of Section 1.04 below.
1.03 AMIS shall pay up to a maximum amount of One Million Nine Hundred
Sixteen Thousand One Hundred Sixty Four UNITED STATES DOLLARS (USD
1,916,164) pursuant to the terms of Sections 1.04 and 3.3 below.
1.04 The CONTRACTOR shall be paid as follows,
(a) A down payment of USD 300,000 by AMIS upon ordering by CONTRACTOR of
certain equipment to be owned by AMIS, as outlined in annex "D"
hereof.
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Amendment1 to Memorandum Of Agreement
(b) Payment by AMIS upon delivery on the construction site of certain
equipment to be owned by AMIS, as outlined in Annex "D", of up to
USD 600,000.
(c) A down payment of USD 1,500,000 by ILO upon signing of this
Agreement.
(d) The remaining USD 3,500,000 of the CONTRACT PRICE shall be paid,
only after receipt of written approval by AMIS, as follows:
Upon completion by CONTRACTOR of the first 1000sqm clean room in
accordance with the specifications set forth in Annex "B" and Annex "C" hereto
and written acceptance thereof by AMIS, AMIS will pay USD1, 016,164 as
compensation for imported equipment and materials.
Upon completion by CONTRACTOR of the next 1000sqm clean room in
accordance with the specifications set forth in Annex "B" and Annex "C" hereto
and written acceptance thereof by AMIS: USD 733,836, to be paid by ILO.
Upon finishing of all clean room facilities in accordance with the
specifications set forth in Annex "B" and Annex "C" hereto and written
(provisional acceptance by AMIS): USD 750,000 to be paid by ILO.
Upon final written acceptance by AMIS of the FIT-OUT WORKS: USD
500,000 to be paid by ILO.
RETENTION: Six (6) months after Final Acceptance: USD 500,000 to be paid
by ILO.
IN WITNESS WHEREOF, the parties have hereunto set their hands at the place and
on the date above written.
AMI SEMICONDUCTOR, PHILS, INC ILO LAND INC.
By: By:
Christopher Layton Ignacio L. Ong
President Chairman
Passport No. ____________ Passport No._____________
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Amendment1 to Memorandum Of Agreement
TAKASAGO PHILIPPINES, INC.
By:
Toshimitsu Kato
Sr. Vice President/General Manager
Passport No. TZ0116844
Date Issue: June 8, 1999
SIGNED IN THE PRESENCE OF:
___________________________ ___________________________________
Joey Cesar R. Romero
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Amendment1 to Memorandum Of Agreement
ACKNOWLEDGEMENT
REPUBLIC OF THE PHILIPPINES)
MAKATI CITY) S.S.
BEFORE ME, A Notary Public for and in _________________, this _________
day of ____________, 2005, personally appeared the following:
Name CTC No. Date/Place of Issue
- --------------------- --------- -------------------------
Ignacio L. Ong 22091083 September 05, 2002
Christopher K. Layton 702744168 Nov. 29, 2000/British Mla
Toshimitsu Kato TZ0116844 June 8, 1999
Both known to make and to me known to be the same persons who executed the
foregoing CONTRACT, consisting of five (5) pages including this page whereon the
ACKNOWLEDGEMENT is written, duly signed by them and their instrumental witnesses
and all pages and they acknowledged to me that the same is their free and
voluntary act and deed and of the corporation herein represented.
WITNESS MY HAND AND SEAL at the place and on the date first above written.
Doc. No. ________;
Page No. ________;
Book No. ________;
Series of 1997.
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