Exhibit 10.7.1
AGREEMENT
This Agreement is made effective as of the 21st day of June, 2005, by and
between GT Solar Technologies, a division of GT Equipment Technologies, Inc. at
000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxxx, XX 00000 XXX ("GT Solar") and Jiangxi LDK
Solar Hi-Tech Co., Ltd. at Xinyu Hi-Tech Development Zone, Xinyu City, Jiangxi,
China ("Customer").
WHEREAS, Customer wishes to buy and GT Solar wishes to sell certain solar wafer,
cell and module fabrication equipment and/or technologies more particularly
defined herein below and in the attached EXHIBITS A and B ("Equipment") and;
WHEREAS, Customer wishes to install the Equipment in Xinyu, Jiangxi, China;
WHEREAS, the parties wish to enter into this Agreement to more particularly
define the terms and conditions of the purchase and sale of such Equipment.
NOW, THEREFORE, for good and valuable considerations the parties agree as
follows:
1. EQUIPMENT. GT Solar shall sell and Customer shall purchase a PV-FAB Water
Fabrication turnkey line, more particularly described in EXHIBITS A and B
attached hereto and incorporated herein by reference. GT Solar warrants and
represents that, upon delivery to Customer pursuant to Article 3, title to the
Equipment will be free and clear and without any liens or encumbrances.
2. PURCHASE PRICE; PAYMENT TERMS. The purchase price for the Equipment and
related services ("Purchase Price") shall be Thirty-three million and one
thousand U.S. Dollars ($33,001,000 USD).
Payment terms:
2.1. Customer shall pay a deposit ("Deposit") equal to twenty percent (20%) of
the total Purchase Price by wire transfer to GT Solar's bank account in such a
way that one-sixth of the deposit amount should be done by the middle of each
month starting from July, 2005 until middle of December, 2005.
2.2. Fourteen (14) days before each payment, GT Solar will open a standby letter
of credit in the amount of the Deposit in favor of Customer against GT Solar's
failure to deliver the Equipment pursuant to the terms of this Agreement.
2.3. At 75 days prior to each shipment, GT Solar will notify the shipment amount
to Customer. No less than sixty (60) days of each shipment, Customer will
establish in favor of GT Solar an irrevocable letter of credit covering seventy
percent (70%) of the said amount of the each shipment, which is payable to GT
Solar upon presentation of shipping documents.
2.4. Ten percent (10%) of the each shipment amount will be paid by Customer to
GT Solar by wire transfer within 90 days from the said shipment here within.
3. SHIPMENT TERMS. The "Commencement Date" will be the date GT Solar receives
the Deposit. All shipments and transfer of title shall be made CIF, Nanchang.
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4. CONTRACT SERVICES. Within sixty (60) days of the Commencement Date, GT Solar
shall provide Customer a list of facilities and any other requirements such as
power, water and space for operation of the delivered Equipment. GT Solar shall
also, as part of the Purchase Price (except for room and board), provide
supervision for the unpacking and installation of the Equipment, and shall
provide support, training, and assistance to Customer's engineers and operators
per EXHIBIT C. Such assistance shall include the supervision of the
commissioning and start up of the Equipment. Customer shall provide all local
labor and support for commissioning and start up of the Equipment.
Customer shall pay the cost of all the room, board and local transportation of
GT Solar's representatives during the period of the performance of such
services.
5. CONTRACT TERM. The Term of this Agreement shall commence upon the execution
and delivery of this Agreement and shall terminate upon the acceptance of the
Equipment by Customer. The warranty and indemnification provisions set forth in
sections 9, 10, and 15 shall survive acceptance of the equipment. Projected
delivery and performance milestones is attached hereto as EXHIBIT C and
incorporated herein by reference.
6. EQUIPMENT INSPECTION AND TRAINING. Customer personnel may be present at GT
Solar, or GT's vendors' facilities, for up to eight weeks to train on the
installation, operation and maintenance of the Equipment. After training, the
Equipment will be containerized for shipment. Customer personnel will assist in
the packing of the Equipment as part of their training if present at GT Solar at
such time. GT shall be responsible for local cost of Customer's employees for
the training in the US.
7. CUSTOMER RESPONSIBILITIES. It will be Customer's responsibility to provide
the facilities and prepare the production site for installation of the Equipment
one (1) month prior to installation. Facilities preparation shall include, but
is not limited to, the provision for appropriate electrical power, compressed
air, de-ionized water, cooling water circulation systems, gas circulation
systems, exhaust, back-up cooling water systems, back-up power systems, and
effluent waste treatment (to the extent required by local laws). Facilities
requirements will be defined by GT Solar no later than 60 days after the
Commencement Date. Any delays on the part of Customer in preparation of the
building, facilities or personnel may result in a delay of the performance by GT
Solar of its obligations pursuant to this Agreement and GT Solar reserves the
right to extend its performance period and price accordingly. Customer will be
solely responsible for all permits required for the installation and operation
of the Equipment on Customer site. Customer will also be solely responsible for
furnishing the personnel necessary for the proper installation of the Equipment
at the Customer site, operational training during start up and other recommended
periods, and acceptance of the Equipment. A list of Customer supplied items is
attached as EXHIBIT D.
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8. SECURITY INTEREST. GT Solar reserves, and Customer hereby grants GT Solar, a
continuing security interest in Equipment, together with all additions,
improvements and accessories thereto made or supplied by GT Solar at any time,
and all proceeds of the foregoing, to secure payment of the Purchase Price to GT
Solar. Until receipt of final payment, Customer agrees that GT Solar shall have
the right to file or record a financing statement pursuant to applicable law to
evidence GT Solar's security interest in the Equipment and Customer will execute
such financing statements and other documents as GT Solar shall request to
perfect such interest. Customer agrees that, in the event of its failure to make
any payment required pursuant to this Agreement, it will make all Equipment
available to GT Solar upon demand and will pay all reasonable costs of GT Solar
in connection with the collection of any amounts due or other enforcement of GT
Solar's rights.
9. WARRANTY. For the earlier of (i) 15 months from the date of shipment to
Customer or (ii) one year from acceptance of the Equipment, GT Solar warrants
that all electrical and mechanical parts (except normal wear and tear on parts,
including bearings and any parts that come in contact with wires or slurry)
shall be free from defects in workmanship and materials and shall conform to GT
Solar's specifications. If any such parts are defective during the warranty
period or, upon delivery, the Equipment fails to meet the specifications set
forth in this Agreement, Customer shall inform GT Solar and GT Solar shall
either repair or replace any such items determined by GT Solar to be defective.
GT Solar's liability shall be limited to the cost of repairing and replacing
such defective items when shipped to GT Solar, freight prepaid, by Customer. The
repaired or replaced parts shall be shipped to Customer by GT Solar freight
prepaid. This warranty specifically excludes Customer's labor, Equipment
downtime, punitive, incidental or consequential damages, acts of God, or loss of
production. A purchase order from the Customer is required to initiate any
warranty action pending approval by GT Solar of the claim.
In the event that Customer has purchased Equipment from GT Solar that has been
manufactured by another manufacturer, GT Solar hereby agrees to pass through to
Customer any and all warranties without limitation made by such company.
This warranty does not extend to any Equipment that fails to operate by reason
of improper installation or operation by Customer or that has been subject to
misuse, neglect or accident or that has been repaired or materially altered
other than by GT Solar.
THE WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES
ARISING FROM COURSE OF DEALING OR USAGE. THE REMEDIES PROVIDED HEREIN
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ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES WHETHER THE CLAIMS BY CUSTOMER
ARE BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
10. INTELLECTUAL PROPERTY INDEMNIFICATION. GT Solar shall indemnify and hold
harmless Customer against any claim by any third party that the Equipment, when
used for the purpose for which it is designed and pursuant to GT Solar's
specifications, violates or infringes the patent, copyright, trademark, trade
secret or other proprietary rights of such third party.
Notwithstanding the foregoing, GT Solar shall have no obligation with respect to
claims of infringement based upon the use of the Equipment, individually or in
combination with other equipment supplied by GT Solar or others, if the
Equipment is used for any process not supplied by GT Solar. Further, GT Solar
shall have no obligation with respect to claims of infringement in the event
that the Equipment is manufactured or designed or operated in accordance with a
design, drawings or process not furnished by GT Solar.
The foregoing states the entire liability of GT Solar for any loss, liability,
or damage whatsoever to or sustained by Customer arising out of the infringement
by the Equipment of the property rights of third parties.
11. CUSTOMER TERMINATION. Customer may terminate this Agreement (other than for
default pursuant to Article 12 below) at any time by providing written notice of
such termination to GT Solar at least thirty (30) days in advance of the
proposed termination date, provided that if Customer terminates this Agreement
or any portion hereof within thirty (30) days following the Commencement Date,
GT Solar shall retain all payments due or received up to the date of the
proposed termination.
In the event that Customer terminates this Agreement between thirty-one (31) and
sixty (60) days after the Commencement Date, Customer shall pay to GT Solar
sixty percent (60%) of the Purchase Price. If the Agreement is terminated by
Customer at any time after sixty-one (61) days following the Commencement Date,
Customer shall pay to GT Solar the entire amount of the Purchase Price.
12. DEFAULT.
A. Either party may terminate this Agreement upon written notice to the other
party upon:
(1). The failure of the other party to perform any material term, condition
or covenant of this Agreement, which failure has not been corrected within
thirty (30) days of the date of written notice of such failure given by the
other party; or
(2). The failure of Customer to make a payment when due; or
(3) The other party becomes insolvent or the subject of any bankruptcy
proceeding that is not dissolved within sixty (60) days.
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B. In the event of termination of this Agreement by GT Solar pursuant to the
terms of this Article 12, in addition to any other remedies it may have at law
or in equity, GT Solar may recover any and all monies which may be due pursuant
to Section 2 or any other provision of this Agreement and repossess any
Equipment sold hereunder for which it has not been paid. In the event of
termination by Customer pursuant to the terms of this Article 12, Customer shall
have the right to terminate the order and recover any monies previously paid by
it to GT Solar.
13. FORCE MAJEURE. GT Solar and Customer shall not be held responsible for any
delay or failure hereunder caused by fires, strikes, embargoes, government
requirements, civil or military authorities, acts of God or of the public enemy
or, if not within their reasonable control, by acts or omissions of
subcontractors, failure of transport, failure of communications, failure of
power supply or any other causes beyond their reasonable control.
14. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL GT SOLAR BE LIABLE TO
CUSTOMER, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), UNDER ANY
WARRANTY OR OTHERWISE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE LOSS OR DAMAGE, INCLUDING LOSS OF PROFITS OR REVENUES, RESULTING FROM
OR ARISING OUT OF OR IN CONNECTION WITH GT SOLAR'S PERFORMANCE UNDER, OR BREACH
OF, THIS AGREEMENT OR THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR OR USE OF
ANY EQUIPMENT COVERED BY OR FURNISHED PURSUANT TO THIS AGREEMENT.
15. INDEMNIFICATION. Each party agrees to defend, indemnify and hold harmless
the other party from and against any third party claims arising out of the acts
or omissions of the indemnifying party or its performance pursuant to this
Agreement. Each party's duty to defend and indemnify the other is conditional
upon timely notice by the other party of any claim for which indemnification is
sought and control by the indemnifying party of the litigation or settlement of
any indemnified claim.
16. LICENSED PROGRAMS. Computer software or other technology or know-how that,
in GT Solar's judgment, are required for the operation of the Equipment shall be
provided by GT Solar to Customer subject to such license terms as GT Solar shall
reasonably require.
In the event Customer sells, transfers or otherwise assigns its rights or
interests in the Equipment to any third party, except a parent or subsidiary
company of Customer, it is expressly understood that Customer does not have the
right to transfer licensed programs or assign the license or any rights Customer
may have regarding the use or possession of such licensed programs to such third
party without GT Solar's prior written consent and any attempted transfer or
assignment shall be void and of no force and effect.
17. GOVERNING LAW. This Agreement and any related order shall be governed and
interpreted, construed, and enforced in accordance with the laws of a neutral
country
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such as Sweden, its choice of laws and the Convention for the International Sale
of Goods to the contrary notwithstanding.
18. ASSIGNMENT. Neither party shall delegate any duties or assign any rights or
claims under this Agreement, other than to a parent or subsidiary company,
without the other party's prior written consent, which consent shall not be
unreasonably withheld, and any such attempt at delegation or assignment shall be
void.
19. FURTHER ASSURANCES. At any time, and from time to time after the
Commencement Date, each party will execute such additional instruments and take
such additional actions as may be reasonably requested by the other party to
confirm or perfect title to any property transferred hereunder or otherwise to
carry out the intent and purposes of this Agreement.
21. WAIVER. Any failure on the part of any party hereto to comply with any of
its obligations, agreements or conditions hereunder may only be waived in
writing by the party to whom such compliance is owed.
22. ARBITRATION. Any disputes that cannot be amicably resolved by the parties
shall be submitted to binding arbitration for resolution. The arbitration shall
be conducted before a panel of three (3) arbitrators in New Hampshire under the
rules of the American Arbitration Association. Each party shall select one
arbitrator and the two so chosen shall select the third, who shall act as
chairperson. If a party shall fail to appoint an arbitrator within twenty (20)
days after receiving written notice of the arbitration and the name of the
arbitrator selected by the party initiating the arbitration, the initiating
party may request that the American Arbitration Association appoint the second
arbitrator, and if the two arbitrators so selected fail to select a third
arbitrator within twenty (20) days after the appointment of the second
arbitrator, either arbitrator may request that the American Arbitration
Association select the third arbitrator. The decision of the majority of the
arbitrators shall be final and binding on the parties with respect to all
matters referred to the arbitration panel for decision and may be enforced in an
appropriate court in any competent jurisdiction. The arbitrators shall not have
the authority to award punitive or special damages. In the absence of a contrary
ruling by the arbitrators, each party shall pay its own costs and fees in
connection with the arbitration.
23. NOTICES. All notices and other communications hereunder shall be in writing
and shall be deemed to have been given if (i) delivered in person, (ii) sent by
prepaid first class registered or certified mail, return receipt requested, or
(iii) by delivery to the other party by recognized courier to the following
addresses:
To GT Solar: GT Solar Technologies
000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000 XXX
Attn: President
cc: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
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To Customer: Jiangxi LDK Solar Hi-Tech Co., Ltd.
Xinyu Hi-Tech Development Zone,
Xinyu City, Jiangxi, China
24. EXPENSES. Whether or not the transactions contemplated hereby are
consummated, all costs and expenses incurred in connection with this Agreement
and the transactions contemplated shall be paid by the party incurring such
costs and expenses.
25. HEADINGS. The section and subsection headings in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
26. COUNTERPARTS. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
27. BINDING EFFECT. This Agreement shall be binding upon the parties hereto and
inure to the benefit of the parties, their successors and permitted assigns.
28. ENTIRE AGREEMENT. This Agreement is the entire agreement of the parties with
respect to the subject matter hereof. There are no oral or written promises,
conditions, representations, understandings, interpretations or terms of any
kind as conditions or inducements to the execution hereof. This Agreement
supersedes all prior agreements, written or oral, including any memorandum of
understanding between the parties.
29. SEVERABILITY. If any part of this Agreement is deemed to be unenforceable,
the balance of this Agreement shall remain in full force and effect.
30. PRE-AGREED ITEM: GT Solar will agree to keep the similar supply schedule as
per this contract starting from May of 2006 if another expansion contract will
be signed by January of 2006 between the two parties hereby.
THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
their behalf by their duly authorized agents as of the day and year first above
written.
Executed as of the date first written above.
For: Jiangxi LDK Solar Hi-Tech Co., Ltd. For: GT Solar Technologies
/s/ Xxxxxxxx Xxxx /s/ Xxxxx X. Xxxxx, CEO
----------------------------- --------------------------
Xinyu Hi-Tech Development Zone GT Solar Technologies
Xinyu City, Jiangxi, China 000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000 XXX
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EXHIBIT A
GTs-WAFFABTM Major Equipment
------------------------------------- -------------------------------------------------- ---------------------
PROCESS EQUIPMENT (sets) Unit Price
------------------------------------- -------------------------------------------------- ---------------------
Crucible Preparation GT-Crucible spray system (3), [*]
-------------------------------------------------- ---------------------
Kilns (4) [*]
------------------------------------- -------------------------------------------------- ---------------------
PolysiliconPreparation GTs-Etch station, automatic (2) [*]
------------------------------------- -------------------------------------------------- ---------------------
Ingot Growth GT-DSS 240 furnace (21) (exclude mezzanines) [*]
-------------------------------------------------- ---------------------
Under/unloader (4) [*]
------------------------------------- -------------------------------------------------- ---------------------
Ingot Sectioning Cropping band saw (4) [*]
-------------------------------------------------- ---------------------
GT-Chamfer Grind (4) [*]
-------------------------------------------------- ---------------------
Lifetime Tester (1) [*]
-------------------------------------------------- ---------------------
IR inspection tester (1) [*]
------------------------------------- -------------------------------------------------- ---------------------
Wafer Cleaning GTs-Wafer Auto Cleaning station (1) [*]
------------------------------------- -------------------------------------------------- ---------------------
Wafer inspection Automation inspection system [*]
------------------------------------- -------------------------------------------------- ---------------------
Slurry recovering GT-Slurry recovering system (1) [*]
------------------------------------- -------------------------------------------------- ---------------------
Misc. Carts [*]
-------------------------------------------------- ---------------------
Solar grade silicon (30 tons) [*]
------------------------------------- -------------------------------------------------- ---------------------
Installation He leak detector (1) [*]
------------------------------------- -------------------------------------------------- ---------------------
Production Technology transfer
------------------------------------- -------------------------------------------------- ---------------------
Spare parts
------------------------------------- -------------------------------------------------- ---------------------
Labor/Training/Engineering
------------------------------------- -------------------------------------------------- ---------------------
Travel cost
------------------------------------- -------------------------------------------------- ---------------------
CIF cost
------------------------------------- -------------------------------------------------- ---------------------
Total (USD) 33,001,000
------------------------------------- -------------------------------------------------- ---------------------
The line shall be designed to be expandable on a modular basis. Some equipment
provided under this Agreement may be procured from outside the USA. Tooling is
provided for 156 mm x 156 mm wafers.
Manufacturer's recommended spare parts are included with equipment.
* Confidential treatment requested. The redacted material has been separated
Filed with The Securities And Exchange Commission.
EXHIBIT B
SPECIFICATIONS AND ACCEPTANCE TESTING OF WAFERS
Conductivity type: p-type (boron)
Crystal Characteristic: multicrystalline
Resistivity: 0.5 -- 2.0 ohm-cm
(typical average: 1.5 ohm-cm)
Wafer Size: 156 mm x 156 mm x (270-325) um thick
Wafer Size Variation: + 0.5 mm
Wafer Thickness Variation: + 40 um
Wafer throughput: >=65MW
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EXHIBIT C
MAJOR TASKS: The Contract major tasks shall be as follows:
TASK DESCRIPTION MONTHS*
Task 1 Procurement of equipment 0 - 2
Task 2 First Equipment Shipment 5th
Task 3 Transport & Custom Clearance 1
Task 4 Installation 1 -- 2
Task 5 Training, Commissioning & Acceptance 1
* Note: DSS will be shipped every month starting from the fifth month of receipt
of first Deposit.
A grace period of one (1) month can be added to the above schedule.
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EXHIBIT D
CUSTOMER SUPPLIED ITEMS
1. Necessary water chillers with back-up system
2. Necessary water with back-up systems
3. Clean, dry compressed air
4. Deionized water system
5. All plumbing and wiring to the machines
6. Necessary power with back-up systems
7. Effluent treatment equipment
8. Materials handling equipment
9. Shelves, storage cabinet, and workbenches
10. Other engineering and facility services needed-to be defined by GT Solar
within 60 days of the Commencement Date.
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