Exhibit 10.6
CONTRACT
For
Applied Films TSIP Facility Phase-I
Between
Applied Films Taiwan Co., Ltd.
And
Wide Bond Construction Co., Ltd.
CONTRACT AGREEMENT
for
TURN-KEY BUILDING PROJECT
This Agreement made the 30th day of August 2005
between Applied Films Taiwan Co., Ltd.
0X, Xxxxxxxx X, Xx. 0 Xxx-Xx Xx. 7
Science Based Industrial Park
Tainan, Taiwan, 741, R.O.C.
(hereinafter called "the Employer") of the one part,
and Wide Bond Construction Co., Ltd.
of 0X, Xx. 00 Xxxxx Xx Xxxxx Xxxx
Xxxxxx, Xxxxxx, X.X.X.
(hereinafter called "the Contractor") of the other part
Whereas
(A) the Employer requests that the Works known as - AF TSIP Facility - shall be
executed by and through the Contractor as a turn-key project. The Employer
has accepted a tender made by the Contractor for the design, execution and
completion of the Works and the remedying of any defects therein
(hereinafter called "the Project").
(B) the Contractor is a construction company with the capability, experience
and resources to execute and complete the Project in accordance with this
Contract.
(C) the Employer is a registered company at the Tainan Science Based Industrial
Park and has an approved land lease application (Dali 1st Rd, land 11-3)
available and which will be the construction site.
The Employer and the Contractor agree as follows:
1. Definitions
In this Agreement words and expressions shall have the same meanings
as respectively assigned to them in the General Conditions contained
in the FIDIC Silver Book Conditions of Contract hereinafter referred
to as amended in the Particular Conditions.
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2. Contract Documents
The Contract between the Employer and the Contractor shall be deemed
to comprise the following documents and such documents shall in
interpreted and take effect between the parties, and any
inconsistencies shall be resolved, in the following order of priority
and application:
(a) The memoranda annexed hereto (which includes a breakdown of the
Contract Price);
(b) The Particular Conditions of Contract annexed hereto;
(c) The General Conditions of Contract annexed hereto;
(d) The Employer's Requirements (Rev. B dated July, 30th 2005);
(e) The Contractor's Tender (dated August, 3rd 2005); and
(f) The Minutes of Meeting from July, 28th 2005 (dated August, 1st
2005).
(g) The Minutes of Meeting from August, 15th to 19th 2005 (dated
August, 19th 2005).
3. Contract Scope
The Project is planned as a turn-key project based on the FIDIC Silver
Book for EPC/Turnkey Projects (First Edition 1999-ISBN 2-88432-021-0,
English language) and shall provide the Employer with a fully
completed and operational manufacturing facility. The Project
includes the production building (goods receiving, stock, disposition
area, assembly hall, packaging and shipping), office building,
gas/dangerous goods stock, one level parking place and all necessary
equipment and utilities to operate the building.
4. Project Responsibility
The Contractor shall be solely responsible for and shall execute and
complete all work and activities required in connection with the
Project including professional design, engineering, approvals
(including post-completion approvals) and licenses, sub-contracting
(where permitted), construction, hire of equipment, purchasing and
delivery of materials, quality assurance, erection, installation,
inspection, commissioning and performance testing of civil, structure,
interior, MEP, air conditioning, HVAC, fire protection, site works,
landscaping, utilities, plumbing, electrical, gas and otherwise as
described in this Contract. The Contractor shall be solely responsible
for the correctness, completeness and accuracy of all information and
documents used or required in connection with the design and the
Works.
5. Contract Price
The Employer hereby covenants to pay the Contractor, in consideration
of the design, execution and completion of the Works and the remedying
of defects therein, the total maximum guaranteed fixed price of NTD
227,000,000 (including 5% Value Added Tax) as the Contract Price, with
the possibility to make
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adjustment only for any value engineering achieved during the detailed
design phase agreed and approved by the Employer.
Certain additional costs to be paid by the Employer other than the
stated price as above are listed in the "List of all costs to be paid
by the Employer" included in the memoranda annexed hereto. All other
permits, fees, approvals, etc. will be born at the expense of the
Contractor.
6. PRICING RISK
The Contractor is responsible for and assumes all risks of funding,
profitability, cost increases, resourcing, quality, meeting the
completion deadline, legal and governmental requirements and safety
throughout the entire project. The Contractor remains responsible to
the Employer for all work to be completed by its sub-contractors and
all other matters in connection with the sub-contractors including
payment of their sub-contract prices, fees and expenses. The
Contractor will be committed to integrate all sub-contractors and to
provide a seamless coordination of all activities during all project
phases.
7. CONSTRUCTION WORKS
In consideration of the payments to be made by the Employer to the
Contractor as hereinafter mentioned, the Contractor hereby covenants
with the Employer to design, execute and complete the Works and remedy
any defects therein on or before the Time for Completion in accordance
with the provisions of the Contract and all applicable Laws and
construction and installation standards.
8. ADVANCE PAYMENT
The Employer hereby covenants to issue a formal purchase order within
14 days of the date of this Contract and to pay a sum of 10% of the
Contract Price by way of advance payment (the "Advance Payment")
within 28 days of the date of this Contract. Upon receiving the
purchase order but prior to the Employer being obligated to pay the
Advance Payment, the Contractor shall have delivered to the Employer
Performance Security of an amount equivalent to the Advance Payment
and in form and substance acceptable to the Employer.
9. APPROVALS AND LICENSES
The Contractor shall be responsible for obtaining all necessary
permits, licenses and approvals and where such items must be obtained
by or in the name of the Employer the Contractor will provide the
Employer with all the necessary information, documents and assistance
the Employer may require to apply for such permits, licenses and
approvals and other things that are to be obtained by the Employer.
10. BUILDING USAGE PERMIT
The Contractor will obtain and deliver to the Employer the Building
Usage Permit for the Project buildings within 310 days after the
Commencement Date.
11. CONTRACT DATES
The Base Date shall be the date of this Agreement.
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The Commencement Date shall be 3 days after the assignment of the
contract.
The Time for Completion shall be 310 days after the Commencement Date.
12. TSIP REGULATIONS
Without limiting the provisions of the General Conditions and the
Particular Conditions, the Contractor shall furthermore observe and
comply with the rules and regulations of the Tainan Science-Based
Industrial Park (the "TSIP") throughout the term of the Project. Any
non-compliance, exception or variations to such rules and regulations
must be approved in advance in writing by the TSIP Administration and
promptly notified (with a copy of the TSIP's written approval) to the
Employer.
13. REPRESENTATIONS AND WARRANTIES
The Contractor represents and warrants to the Employer that:
(a) the Contractor is a company duly organized and validly existing
under the Laws of the Republic of China, has all necessary
permits and licenses for the conduct of its business and is in
compliance with all applicable Laws;
(b) this Contract constitutes the legal, valid and binding
obligations of the Contractor enforceable against the Contractor
in accordance with its terms; and
(c) the execution and performance of this Contract has been
authorised by all necessary corporate and other actions and will
not conflict with any Laws, permits, licenses, the Contractor's
articles of incorporation or any agreement or instrument to which
it is a party.
14. ENTIRE AGREEMENT
This Contract constitutes the entire and only agreement between the
parties relating to the subject matter of the Contract and supersedes
and extinguishes any agreements, representations, arrangements,
discussions and correspondence made or given prior to the date of this
Contract.
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In Witness whereof the parties hereto have caused this Agreement to be executed
the day and year first before written in accordance with their respective laws.
SIGNED by: SIGNED by:
/s/ Xxxxxxxx Xxxxxxxxx /s/ Xxxxxxx Xxxxx
------------------------------------- ----------------------------------------
(Signature) (Signature)
Xxxxxxxx Xxxxxxxxx Xxxxxxx Xxxxx
Chief Financial Officer Chairman & Chief Executing Officer
Applied Films Cooperation Wide Bond Construction Co., Ltd.
Alzenau, Germany 30/05/05
------------------------------------- ----------------------------------------
(Place / Date) (Place / Date)
for and on behalf of the Employer in for and on behalf of the Contractor in
the presence of the presence of
/s/ Xxxxxxx Xxx /s/ Illegible
------------------------------------- ----------------------------------------
(Witness Signature) (Witness Signature)
Alzenau, Germany Illegible
------------------------------------- ----------------------------------------
(Address) (Address)
30/05/05
------------------------------------- ----------------------------------------
(Place / Date) (Place / Date)
/s/ Xxxxx Xxxx
-------------------------------------
(Signature)
Xxxxx Xxxx
-------------------------------------
(Name / Title)
Tainan, 09/05/05
-------------------------------------
(Place / Date)
for and on behalf of the Employer in
the presence of
-------------------------------------
(Witness Signature}
-------------------------------------
(Address)
-------------------------------------
(Place / Date)
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