Exhibit 4.36
CONFIDENTIAL
Execution Copy
SUPPLY AGREEMENT
This Supply Agreement (this "Agreement"), is dated as of July 18, 2007
(the "Signing Date"), by and between GT SOLAR INCORPORATED, a Delaware
corporation, with offices at 000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxxx, Xxx
Xxxxxxxxx 00000, XXX ("GT"), and LDK SOLAR COMPANY, LTD., and its wholly-owned
subsidiary, JIANGXI LDK PV SILICON TECHNOLOGY COMPANY, LTD., companies organized
under the laws of the People's Republic of China, with offices at Xinyu Hi-tech
Development Zone, Xinyu City, Jiangxi, China ("Customer"). GT and the Customer
are also referred to herein collectively, as the "Parties", and individually, as
a "Party".
RECITALS
WHEREAS, GT supplies polycrystalline silicon deposition reactors and
related equipment; and
WHEREAS, Customer is in the business of manufacturing, marketing and
selling polysilicon;
WHEREAS, Customer desires to purchase from GT, and GT desires to sell to
Customer, polycrystalline silicon deposition reactors and related equipment, on
the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms when used herein with
initial capital letters, shall have the respective meanings as defined below:
1.1 "36-Rod Reactor" means a 36-rod Reactor, as further specified in Exhibit
A-2.
1.2 "48-Rod Reactor" means a 48-rod Reactor, as further specified in Exhibit
A-1.
1.3 "Affiliate" means any person or entity that directly or indirectly
controls, is controlled by, or is under common control with GT or Customer
(and "control" of a person or entity shall mean direct or indirect
beneficial ownership of more than fifty percent (50%) of the voting stock
or other voting interests in the person or entity).
1.4 "Agreement" is defined in the introductory paragraph.
1.5 "Average Growth Rate" means, with respect to a Reactor, the average growth
(measured in kilograms of polysilicon harvested per Qualifying Run)
divided by the average growth
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time (measured by hours of polysilicon production during the period of
time from the beginning of polysilicon deposition to the end of
polysilicon deposition per Qualifying Run) as measured during three (3)
Qualifying Runs of such 48-Rod Reactor.
1.6 "Basic Engineering Package" means any of the engineering packages (i.e.,
"Engineering Package #1," "Engineering Package #2," or " Engineering
Package #3" referenced in Exhibit C).
1.7 "Business Day" means any weekday, other than a national holiday, on which
banks are generally open for business in New York and the PRC.
1.8 "Closing Condition" is defined in Section 8.2.
1.9 "Code" is defined in Section 8.4(b).
1.10 "Commencement Date" means the date upon which Customer has paid both the
First and Second Installments pursuant to Section 3.2(a) in accordance
with the terms and conditions of this Agreement.
1.11 "Confidential Information" is defined in Section 6.1.
1.12 "Converter" means a converter vessel and Converter Power Supply which
hydrogenates STC to TCS, as described in Exhibit B.
1.13 "Converter Power Supplies" means the power supplies for the Converters
with the Specifications set forth on Exhibit B.
1.14 "Customer" is defined in the introductory paragraph.
1.15 "Customer Letter of Credit" is defined in Section 3.2(c)(iii).
1.16 "Delivery", "Deliver" and each of their respective correlative terms
means, (i) with regard to an item of Equipment, when such item of
Equipment is provided to the carrier in the country of manufacture of such
item of Equipment in accordance with Section 4.1); and (ii) with regard to
each Basic Engineering Package, when GT delivers any item comprising such
Basic Engineering Package to Customer in electronic or other format.
1.17 "Disclosing Party" is defined in Section 6.1.
1.18 "Dispute" is defined in Section 10.9(a).
1.19 "Documentation" means documents related to the Installation, operation and
maintenance of the Equipment, as set forth in Exhibit C (including the
Basic Engineering Packages).
1.20 "Effective Date" is defined in Section 8.2.
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1.21 "Equipment" means, collectively, the Reactors and the Reactor Power
Supplies, the Converters and the Converter Power Supplies provided by GT
to Customer pursuant to this Agreement.
1.22 "Equipment Improvements" means all Improvements created, made or otherwise
developed by or for Customer or any of its Affiliates during the term of
this Agreement and thereafter.
1.23 "Facility" means the facility owned by Customer that is located in Xinyu
City, Jiangxi, China, where the Equipment will be installed.
1.24 "Force Majeure Event" is defined in Section 10.6.
1.25 "GT" is defined in the introductory paragraph.
1.26 "GT Intellectual Property" means any intellectual property owned by GT (i)
a tangible embodiment of which is provided by GT hereunder to Customer
during the term of this Agreement for use in connection with the
Installation, testing, commissioning, Startup, operation, maintenance and
support of the Equipment under the License pursuant to Section 2.2
(including software, if any, used in the operation of the Equipment), and
(ii) with respect to which GT has the right to grant the License to
Customer pursuant to Section 2.2 without any financial or other obligation
to any other person or entity (including the Basic Engineering Package and
any other Documentation, and all work product from the Services, provided
to Customer hereunder).
1.27 "GT Letter of Credit" is defined in Sections 3.2(c)(i).
1.28 "Improvements" means all improvements, enhancements, modifications,
alterations and additions (i) to any Equipment, or (ii) to any GT
Intellectual Property or other Confidential Information of GT (except with
respect to subsection (ii), solely to the extent expressly permitted under
the License granted to Customer hereunder and without in any way expanding
such License or any other rights granted to Customer hereunder).
1.29 "Incoterms" mean the 2000 edition of the International Rules for the
Interpretation of Trade Terms published by the International Chamber of
Commerce.
1.30 "Installation" means installation of the Equipment at the Facility.
1.31 "Installment" is defined in Section 3.2(a) (including, "First
Installment," "Second Installment," "Delivery Installments," and "Startup
Installments").
1.32 "Intellectual Property Rights" means patent, copyright, trademark, trade
secret and any other intellectual property or proprietary rights.
1.33 "License" is defined in Section 2.2.
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1.34 "Losses" means any liability, damage, loss, cost or expense (including
reasonable attorneys' fees and costs).
1.35 "mt" means one metric tonne, equal to one thousand (1,000) kilograms.
1.36 "Minimum Average Growth Rate" means (a) for the 36-Rod Reactors, an
Average Growth Rate of eighteen (18) kilograms/hour of PV Polysilicon, and
(b) for the 48-Rod Reactor, an Average Growth Rate of twenty-two and
one-half (22.5) kilograms/hour of PV Polysilicon.
1.37 "Party" and "Parties" is defined in the preamble to this Agreement.
1.38 "PRC" means the People's Republic of China.
1.39 "Purchase Price" means the aggregate total purchase price for all of the
48-Rod Reactors (including Reactor Power Supplies), the 36-Rod Reactors
(including Reactor Power Suuplies) and Converters and Documentation
(including the Basic Engineering Packages), subject to, if applicable, the
Timely Payment Discount (if any), as set forth in Section 3.1.
1.40 "PV Polysilicon" means photovoltaic-grade polysilicon that meets the
specifications set forth in Exhibit D.
1.41 "Qualifying Run" means a Run performed by Customer pursuant to any written
operating instructions provided by GT and which meets all of the following
criteria:
(a) such Run was completed without interruptions of the feedgas (i.e.,
TCS and hydrogen), exhaust gas, electricity or other auxiliary
utilities;
(b) such Run was completed without (i) shutting down of any Equipment
due to ground faults or otherwise, (ii) any rod falling over, or
(iii) any operator error; and
(c) such Run was performed using conditions for the feedgas (i.e., TCS
and hydrogen), pressure and optimal polysilicon rod configuration,
in each case, in accordance with all written directions provided to
Customer by GT; and
(d) such Run achieved one hundred (100) millimeters or more in diameter
of PV Polysilicon per polysilicon rod.
1.42 "Reactor" means a 36-rod or 48-rod, as applicable, TCS decomposition
reactor for the production of PV Polysilicon with, for a power supply,
electrodes and temperature control pyrometers.
1.43 "Reactor Power Supplies" means the power supplies for the Reactors with
the Specifications set forth on Exhibit A-1.
1.44 "Receiving Party" is defined in Section 6.1.
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1.45 "Run" means operation of a Reactor during the period of time from the
beginning of polysilicon deposition to the end of polysilicon deposition.
1.46 "Services" is defined in Section 5.2.
1.47 "Signing Date" is defined in the introductory paragraph.
1.48 "Specifications" mean the respective specifications for the corresponding
Equipment, as set forth in (i) Exhibit A-1 for the 48-Rod Reactors
(including the Reactor Power Supplies), (ii) Exhibit A-2 for the 36-Rod
Reactors (including Reactor Power Supplies), and (iii) Exhibit B for the
Converters (including the Converter Power Supplies).
1.49 "Startup" means the first Run of a Reactor that produces polysilicon.
1.50 "STC" means silicon tetrachloride.
1.51 "TCS" means trichlorosilane.
1.52 "Timely Payment Discount" is defined in Section 3.2(a).
1.53 "Unit Price" means the respective price set forth in Section 3.1 for
either an individual 48-Rod Reactor (including Reactor Power Supply),
36-Rod Reactor (including Reactor Power Supply) or an individual Converter
(including Converter Power Supply), as applicable.
1.54 "Warranty Period" means, for each item of Equipment, the period beginning
upon the date of Delivery of such item of Equipment, and ending upon the
earlier of (x) fifteen (15) months from the date of Startup of such item
of Equipment (if applicable), and (y) eighteen (18) months from Delivery
of such item of Equipment (the "Original Warranty Period"); provided that,
with respect to any item of Equipment repaired or replaced, as applicable,
in accordance with Section 9.2(c), the applicable warranty period shall be
the greater of (A) ninety (90) days from the date of repair or
replacement, as applicable, or (B) the unexpired portion of the Original
Warranty Period for the item of Equipment repaired or replaced.
ARTICLE 2
SALE AND PURCHASE OF EQUIPMENT, BASIC ENGINEERING PACKAGES AND OTHER
DOCUMENTATION; AND LICENSE GRANT
2.1 EQUIPMENT, BASIC ENGINEERING PACKAGES AND OTHER DOCUMENTATION.
(a) Subject to the terms and conditions as set forth herein, GT shall
sell and Deliver to Customer, and Customer shall purchase and
accept, the Equipment and the Documentation (including the Basic
Engineering Packages):
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(i) Sixty-six (66) Reactor(s) (including sixty-six (66) Reactor
Power Supplies);
(ii) Thirty (30) Converters(s) (including thirty (30) Converter
Power Supplies); and
(iii) The Basic Engineering Packages and other Documentation.
(b) Subject to the terms and conditions as set forth herein, GT shall
Deliver to Customer, and Customer shall accept, the E=Basic
Engineering Packages and other Documentation.
2.2 GRANT OF LICENSE; CONDITIONS OF LICENSE AND ASSIGNMENT. Subject to the
terms and conditions of this Agreement, GT hereby grants to Customer a
limited royalty-free, non-sublicensable (except as provided below in this
Section 2.2), non-assignable (except as provided below in this Section 2.2
and in Section 10.2), non-exclusive right and license under the GT
Intellectual Property to use, reproduce, copy and display (not publicly)
the GT Intellectual Property and other GT Confidential Information
provided to Customer by GT, solely to the extent required for the
Installation, testing, commissioning, Startup, operation, maintenance and
support of the Equipment purchased by Customer hereunder for the purpose
of manufacturing polysilicon, and not for any other purpose (the
"License"); provided that the License shall only be effective upon the
Commencement Date. Customer shall have the right to grant sublicenses
under the License to its wholly owned Affiliates (but not the right to
grant further sublicenses) to the extent necessary for Customer to
Install, test, commission, Startup, operate, maintain and support the
Equipment purchased by Customer hereunder for the purpose of manufacturing
polysilicon (and not for any other purpose), and shall have the right to
assign or otherwise transfer the License to an Affiliate or a third party
solely in conjunction with the sale and disposal of Equipment to such
Affiliate or third party; provided that prior to any sublicense, or any
assignment or other transfer (whether by assignment, operation of law, by
merger or otherwise) of a License, Customer shall (and any subsequent
assignee(s) or transferee(s) shall) require any sublicensee, assignee or
transferee, as applicable, to acknowledge and agree in writing to be bound
by (a) the terms of the License set forth herein, (b) the obligations set
forth in this Section 2.2 regarding sublicensing, assignments and other
transfers of the License, and (c) obligations of confidentiality that are
at least as stringent as those set forth in Article 6, and (z) the
obligations set forth in Section 10.8(b), and (b) that GT is a third party
beneficiary thereof, and (ii) provide GT with an executed copy thereof.
Any sublicense, or any assignment or transfer (whether by assignment,
operation of law, by merger or otherwise) of the License that does not
comply with the requirements of this Section 2.2 shall require GT's prior
written consent and shall be null and void absent such prior written
consent from GT. Customer hereby agrees to defend, indemnify, and hold the
GT Indemnitees (as defined in Section 2.5) harmless from and against any
Losses arising out of or related to (A) any exercise of its rights granted
under this Section 2.2, and/or (B) any failure to comply with, or other
breach of, any of the terms or conditions of (x) this Section 2.2
(including any breach of
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any of Customer's obligations hereunder with respect to sublicensing,
assignment and transfer), (y) Article 6, and/or (z) Section 10.8(b). The
indemnity procedures set out in Section 2.5 shall apply with respect to
the foregoing indemnity.
2.3 RESERVATION OF RIGHTS. Except for the License expressly granted in Section
2.2, no rights or licenses are granted to Customer hereunder to any GT
Intellectual Property or to any other GT Confidential Information or
intellectual property or proprietary rights of GT, either expressly or by
implication, estoppel or otherwise.
2.4 CERTAIN CUSTOMER EQUIPMENT IMPROVEMENTS.
(a) Customer shall own the Equipment Improvements created, made or
otherwise developed by Customer, except to the extent that any such
Equipment Improvements are jointly created or made or are otherwise
developed with (or with any other person or entity by or for) GT
and/or any of its Affiliates in which event such Equipment
Improvements shall be jointly owned by GT.
(b) Customer hereby grants to GT (x) a non-exclusive, fully paid-up,
royalty-free, worldwide, perpetual and irrevocable right and license
to use any Equipment Improvements in connection with the business of
GT and its Affiliates. The rights and license granted hereunder
shall be fully transferable and fully sublicensable (which in turn
shall include the right to grant the right to grant further
sublicenses). If requested by GT during the Term or during the five
(5) year period following the Term, Customer shall take such further
actions and execute such documents as requested by GT, at GT's cost,
to further permit GT to fully exercise its rights hereunder and/or
to evidence or record the rights and license granted to GT
hereunder.
(c) Customer hereby acknowledges and agrees that notwithstanding
anything contained herein, in no event shall Customer have any right
to use any GT Intellectual Property or any other Confidential
Information of GT except as expressly permitted under the License
solely for the Installation, testing, commissioning, Startup,
operation, maintenance and support of the Equipment purchased by
Customer hereunder for the purpose of manufacturing polysilicon, and
not for any other purpose, and if in connection with exercising such
rights, any Equipment Improvements are created, made or otherwise
developed by Customer through such licensed use of any of the GT
Intellectual Property or any other Confidential Information of GT,
such Equipment Improvements shall be deemed to be covered by, and
subject to, all of the terms and conditions of, the License in the
same manner as GT Intellectual Property and other GT Confidential
Information is covered by the License for such Reactor.
2.5 Use of Equipment. Except to the extent caused by a breach by GT of the
warranties provided in Section 9.2 (unless such failure to meet the
warranties is due to any of the exceptions set forth in Section 9.2(b) or
any failure to comply with all of the conditions set forth in Section 4.5)
or covered by GT's indemnity of Customer pursuant to Section
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7.1, Customer hereby agrees to defend, indemnify, and hold GT and its
Affiliates and each of their respective directors, officers, employees,
agents and representatives (collectively, the "GT Indemnitees") harmless
from and against any Losses arising out of or related to any third party
claims arising out of or resulting from the installation, operation,
maintenance or use of any Equipment by or on behalf of Customer or any of
its successors or assigns. Upon being notified or otherwise made aware of
the assertion or threat of any claim or suit for which a GT Indemnitee
intends to seek indemnification hereunder, GT shall notify Customer and
Customer shall appoint counsel reasonably acceptable to GT to represent
such GT Indemnitee with respect to such claim or suit. Customer shall have
control over the defense of any such claim or suit, except that GT (and
any other GT Indemnitee) may participate and select its own respective
counsel, at GT's cost, upon notice to Customer (unless there is a conflict
of interest that would prevent representation by joint counsel or Customer
fails to diligently defend such claim or suit, in which case, Customer
shall pay for GT's counsel); provided that Customer shall not settle or
enter into any voluntary consent judgment with respect to any claim or
suit hereunder without the prior written consent of GT (which consent
shall not be unreasonably withheld or delayed).
ARTICLE 3
PRICING; PAYMENT TERMS.
3.1 PRICING. The Unit Prices for each 48-Rod Reactor (including each Reactor
Power Supply), each 36-Rod Converter (including each Converter Power
Supply) and each Converter (including each Converter Power Supply) that
Customer shall be required to pay to GT hereunder are set out in the chart
below, and the Purchase Price for all such Equipment under this Agreement
shall be One Hundred Eighty-Five Million U.S. Dollars (US $*). Customer
shall, however, be entitled to a timely payment discount of Five Million
U.S. Dollars (US $*) (the "Timely Payment Discount"), as shown in the
table below, provided that (i) GT has received all Installments on time
(except the final five million (US $*) of the Starup Installments, from
which Customer may deduct the Timely Payment Discount if all other
conditions of this Section have been satisfied), (ii) Customer has issued
the Letter of Credit in the initial amount on time and has increased the
Customer Letter of Credit on time, and (iii) Customer has complied with
all of the terms and conditions of the Agreement, then at such time,
provided that all the foregoing conditions of this Section have been
satisfied, the Customer may reduce its Letter of Credit by such remaining
Five Million U.S. Dollars (US $*) after receiving confirmation from GT
that the terms and conditions of the Timely Payment Discount have been met
by Customer.
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DESCRIPTION UNIT PRICE QUANTITY ORDERED TOTAL
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48-Rod Reactor (including Reactor US$ * 48 US$ *
Power Supply)
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DESCRIPTION UNIT PRICE QUANTITY ORDERED TOTAL
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36-Rod Reactor (including US$ * 2 US$ *
Converter Power Supply)
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Converter (including Converter US$ * 24 US$ *
Power Supply)
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PURCHASE PRICE TOTAL: US$ *
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TIMELY PAYMENT DISCOUNT (IF ANY)
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Timely Payment Discount (if any, and subject to the conditions in this
Section 3.1): (US$ *)
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3.2 PAYMENT TERMS.
(a) Payment of Purchase Price. The obligation to pay GT the Purchase Price
shall arise as of the Effective Date, but the Purchase Price shall be
payable to GT in installments as set out in the table below (each, an
"Installment"). Except as otherwise set forth in this Agreement, all
payments to GT shall be non-refundable and non-cancellable.
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INSTALLMENT TIMING CALCULATION OF AMOUNT OF TOTAL AMOUNT OF
INSTALLMENT (PERCENTAGE OF INSTALLMENT
PURCHASE PRICE)
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"First The First Installment payment 15% of the Purchase Price US$ *
Installment" shall be payable to GT by
Customer within ten (10)
Business Days of the
Effective Date.
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"Second The Second Installment payment 20% of the Purchase Price US$ *
Installment" shall be payable to GT by
Customer within forty (40)
Days of the Effective Date.
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"Delivery Each Delivery Installment 55% of the Unit Price of the
Installments" payment shall be payable to GT relevant item of Equipment:
by Customer upon the Delivery
of each item of Equipment. ~55% x US$* per 48-Rod Reactor US$*
(i.e., US$* per 48-Rod Reactor) (i.e., US$* x
(48)48-Rod Reactors)
55% x US$* per 36-Rod Converter
(i.e., US$* per 36-Rod Converter) US$*
(i.e., US$* x (2)
36-Rod Reactors)
55% x US$* per Converter(i.e.,
US$* per Converter) US$*
(i.e., US$* x 24
Converters)
10
p
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"Startup With respect to each item of 10% of the Unit Price of the
Installments" Equipment, each Startup relevant item of Equipment:
Installment payment shall be
payable to GT by Customer upon
the earlier of (i) Startup of 10% x US$* per 48-Rod Reactor US$* (i.e., US$* x
such item of Equipment, and (i.e., US$* per 48-Rod Reactor) (48)48-Rod Reactors)
(ii) in the event Customer does
not Startup such item of
Equipment within nine (9) 10% x US$* per 36-Rod Reactor US$*
months from Delivery of such (i.e., US$* per 36-Rod Reactor) (i.e., US$* x (2)36
item of Equipment, ten (10) Rod Reactors)
Business Days from the end of
such nine (9) month period from 10% x US$*per Converter (i.e., US$* (i.e., US$* x
Delivery of such item of US$* per Converter) 24 Converters)
Equipment (except that if a
failure to Startup such item of
Equipment is due to a failure (provided that the
to meet the warranty set forth final US$* in Startup
in Section 9.2(a), (but Installments shall be
excluding any warranty as to subject tot the
Minimum Average Growth Rate), Timely Order Discount
then such Startup Installment (if any), subject
payment shall be payable to GT to the terms and
by Customer within ten (10) conditions of, and
Business Days after GT remedies as set forth in,
such non-compliance with the Section 3.1)
warranty pursuant to Section
9.2(c)) (unless such failure to
meet the warranty is due to any
of the exceptions set forth in
Section 9.2(b) or any failure
to comply with all of the
conditions set forth in Section
4.5, in which event the Startup
Installment payment shall be
payable to GT by Customer as
set forth above in this
provision)).
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(b) Invoices; Payment Procedures; and Interest. GT shall invoice Customer for
each Installment and for any Services rendered pursuant to Section 5.2,
except that no invoice shall be required for the First or Second
Installments. Customer shall pay GT the amounts specified in an invoice
within fifteen (15) Business Days following Customer's receipt thereof.
All payments shall be made in U.S. dollars and wire transferred in
immediately available funds to the bank account
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designated by GT in writing from time to time; except that GT may,
in its sole discretion, at any time prior to an Installment being
wired to GT by Customer, opt to receive such Installment from
Customer by drawing down pursuant to Section 3.2(c)(iii) on the
Customer Letter of Credit (as defined in Section 3.2(c)(iii)) in the
amount of such Installment. Without limiting any of GT's rights or
remedies hereunder or otherwise, Customer shall pay interest on any
amounts overdue under this Agreement at a rate of one and one-half
percent (1.5%) of the overdue payment per month, or, if lower than
one and one-half percent (1.5%) of the overdue payment per month,
the highest interest rate permitted under applicable law.
(c) Letters of Credit.
(i) GT Letter of Credit. Within ten (10) Business Days after the
Commencement Date, GT shall open an irrevocable confirmed
standby letter of credit in favor of Customer in an amount
equal to the First Installment (the "GT Letter of Credit")
against GT's failure to Deliver the Equipment. The GT Letter
of Credit shall be valid (subject to the reductions as set out
below in this Section 3.2(c)(i)) until Delivery of the last
item of Equipment, at which time the GT Letter of Credit shall
expire and no longer be valid, GT may, in its sole discretion,
choose to use either of the following banks as issuing banks
for the GT Letter of Credit: (i) Citizens Bank, and/or (ii)
any other U.S. bank designated by GT (or any non-U.S. bank
designated by GT and reasonably acceptable to the Customer).
The GT Letter of Credit may be reduced by GT by the amount
equal to the sum of thirty-five percent (35%) of the Unit
Price for an item of Equipment that has been Delivered to
Customer upon presentation by GT to its issuing bank of a
notarized letter from GT certifying that GT has the right to
reduce the GT Letter of Credit under the terms and conditions
of the Agreement in the amount requested. Upon Delivery of the
last item of Equipment, the GT Letter of Credit shall expire
and no longer be valid. Prior to opening the GT Letter of
Credit, GT shall provide a draft of the terms of the GT Letter
of Credit to Customer and shall discuss any reasonable
comments thereto that Customer may have, provided that such
comments are provided to GT in a timely manner so that GT can
meet its timing obligation to set up the GT Letter of Credit
as set forth herein.
(ii) Payment Against GT Letter of Credit. Payment against any GT
Letter of Credit shall be available to Customer at any time
and from time to time, upon presentation to GT's issuing bank
of a notarized letter from Customer (A) certifying that GT has
failed to Deliver the Equipment as set forth in Section 4.2
and for a period of three (3) months thereafter (provided that
such delay is not directly or indirectly due or otherwise
attributable, in whole or part, to any act or omission of
Customer (or for the avoidance of doubt, any Force Majeure
Event)); and (B) specifying the
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Section and Delivery schedule obligation that was not met and
the amount payable by GT hereunder as a result of such late
Delivery; provided that Customer shall have given GT at least
ten (10) Business Days prior notice. Payment against the GT
Letter of Credit with respect to late Delivery of Equipment,
as set forth above, shall be available in an amount equal to
the sum of thirty-five percent (35%) of the Unit Prices for
such item of Equipment that was not Delivered. Notwithstanding
the foregoing, no payment shall be made against the GT Letter
of Credit, if GT has previously provided documentation of
Delivery of such item of Equipment to GT's issuing bank or
payment or other fulfillment of such obligation, as
applicable, to GT's issuing bank, or a notarized letter from
GT certifying that GT has Delivered such item of Equipment,
made such payment or otherwise fulfilled such obligation, as
applicable.
(iii) Customer's Letter of Credit. Within (A) one hundred (100) days
after the Effective Date, Customer shall open a confirmed
irrevocable letter of credit in favor of GT in an amount equal
to fifty million eight hundred and seventy-five thousand U.S.
dollars (US $*) (i.e., one-half of fifty-five percent (55%) of
the Purchase Price) and (B) two hundred (200) days after the
Effective Date, Customer shall increase such letter of credit
by an additional fifty million eight hundred and seventy-five
thousand U.S. dollars (US $*) (i.e., the second one-half of
fifty-five percent (55%) of the Purchase Price); in each case
against Customer's failure to pay Installments as they become
payable, and/or for GT to draw down on to receive payment of
any Installment(s) (whether because Customer has not paid the
Installment by the applicable date required under this
Agreement or because GT opts, in its sole discretion, to
receive payment of any Installment by drawing down on the
Customer Letter of Credit (as set forth in Section 3.2(b))
(the "Customer Letter of Credit"). The Customer Letter of
Credit shall be reduced by each Installment payment (or, with
respect to the Delivery Installments and the Startup
Installments, each partial installment thereof paid to GT
pursuant to Section 3.2(a)) paid to GT after the date the
Customer Letter of Credit was opened, upon Customer's payment
thereof in accordance with Section 3.2(a). The Customer Letter
of Credit shall be valid until Customer's payment of all of
the Installments to GT in accordance with the terms and
conditions of this Agreement pursuant to Section 3.2(a), and
presentation by Customer to its issuing bank of a notarized
letter from Customer certifying that Customer has the right to
reduce the Customer Letter of Credit under the terms and
conditions of this Agreement in the amount requested. The
issuing bank shall be the Bank of China, and, if a confirming
bank is requested by GT, it shall be either the Industrial and
Commercial Bank of China or the Commercial Bank of China. The
terms of the Customer Letter of Credit shall be reasonably
acceptable to GT. Prior to opening the Customer Letter of
Credit, Customer shall provide a draft of the terms of the
13
Customer Letter of Credit to GT and shall discuss any
reasonable comments thereto that GT may have, provided that
such comments are provided to Customer in a timely manner so
that Customer can meet its timing obligation to set up the
Customer Letter of Credit as set forth herein.
(iv) Payment Against Customer Letter of Credit. Payment against the
Customer Letter of Credit shall be available to GT at any time
and upon time to time, upon presentation to the issuing bank
of a notarized letter from GT certifying that: (A) an
Installment is due and payable pursuant to Section 3.2(a) (if
GT opts to draw down on the Customer Letter of Credit instead
of receiving payment by wire transfer from Customer, as set
forth in Section 3.2(b)); and/or (B) Customer has breached its
payment obligations hereunder and failed to pay, in whole or
part, one or more Installment payments pursuant to the
Installment schedule set forth in Section 3.2(a) or the other
terms or conditions of this Agreement. GT shall be entitled to
full payment of such overdue Installments, together with any
interest payable by Customer to GT with respect thereto
pursuant to Section 3.2(b).
(v) Requirements for Letters of Credit. All letters of credit
required hereunder shall comply with the Uniform Rules and
Customs for Documentary Letters of Credit (Publication of the
International Chamber of Commerce #500, 1993 revision).
(d) Withholdings. All payments due or payable to GT under this Agreement
shall be paid in full, regardless of whether Customer is required to
withhold or to apply any taxes, charges, levies or other duties on
payments made under this Agreement. If Customer is required to
withhold or to apply any taxes, levies or other duties on payments
made under this Agreement, then Customer shall gross up such
payments so that GT receives the payment in full regardless of any
withholdings or application of any taxes, levies or other duties on
payments made under this Agreement, and if GT applies to obtain
credit for the amount of the withholding or application, and if
obtained, such amount shall be repaid by GT to Customer when and if
it is received by GT.
ARTICLE 4
DELIVERY TERMS;
INSPECTIONS; BOOKS AND RECORDS; AUDITS;
RE-CALCULATIONS; AND CONDUCT OF QUALIFYING RUNS
4.1 SHIPMENT AND DELIVERY TERMS, TRANSFER OF TITLE AND RISK OF LOSS. All
Shipments of Equipment shall be made CIF Shanghai (Incoterms 2000). For
the avoidance of doubt, the charges for freight, insurance, VAT and other
taxes and duties shall be the sole responsibility of Customer, and
Customer shall reimburse GT for all such charges. GT
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shall submit invoices to Customer periodically for all freight, insurance
and other costs incurred by GT with respect to the shipment of Equipment,
which invoices shall be paid by Customer within thirty (30) days. Delivery
shall be deemed to have occurred and title to each item of Equipment and
the risk of loss of such item of Equipment shall transfer to Customer in
accordance with CIF (Incoterms 2000) when such item is provided to the
carrier in the country of manufacture of such item of Equipment. Nothing
contained herein shall limit Customer's obligation to make payments to GT
hereunder or any rights or remedies that GT may have under this Agreement
or in law, equity or otherwise for any non-payment of the Purchase Price
for any item of Equipment. Notwithstanding anything herein to the
contrary, GT may draw down the Customer Letter of Credit for any item of
Equipment pursuant to Section 3.2 immediately upon Delivery of such item
of Equipment.
4.2 DELIVERY SCHEDULE. GT shall use commercially reasonable efforts to Deliver
the Basic Engineering Packages and the Equipment according to the schedule
set forth in the table below.
ITEM DELIVERY SCHEDULE
-------------------------------- ----------------------------------- ---------------------------------------
Basic Engineering Packages: First Delivery: Basic Engineering Commencement Date + one (1) week
Package #1 (as specified in
Exhibit C).
Second Delivery: Basic Commencement Date + three (3) weeks
Engineering Package #2 (as
specified in Exhibit C).
Third Delivery: Basic Engineering Commencement Date + two (2) months
Package #3 (as specified in
Exhibit C).
Equipment: First Delivery: two (2) 36-Rod Commencement Date + 10 months (for
Reactors (including two (2) delivery to carrier in the country of
reactor power supplies); manufacture)
Second Delivery: Two (2) 48-Rod Commencement Date + 12 months (for
Reactors (including two (2) delivery to the carrier in the
Reactor Power Supplies) and one country of manufacture)
(1) Converter (including one (1)
Converter Power Supply)
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ITEM DELIVERY SCHEDULE
-------------------------------- ----------------------------------- ---------------------------------------
Third Delivery: Commencement Date + 13 months (for
Four (4) 48-Rod Reactors delivery to the carrier in the
(including two (4) Reactor Power country of manufacture)
Supplies) and two (2) Converters
(including two (2) Converter
Power Supplies)
Fourth, Fifth, Sixth, etc. Commencement Date + 14 months (for
through final Delivery: Six (6) delivery to the carrier in the
48-Rod Reactors (including six country of manufacture of the fifth
(6) Reactor Power Supplies), and Delivery), and with another Delivery
three (3) Converters (including of Equipment to be made each month
three (3) Converter Power thereafter (for delivery to the
Supplies (until, with respect to carrier in the country of
each of the foregoing, a total of manufacture), until a total of
(x) forty-eight (48) 48-Rod (x)forty-eight (48) 48-Rod Reactors,
Reactors, and (y) twenty-four and (y) twenty-four (24) Converters
(24) Converters have been have been Delivered to Customer
Delivered to Customer pursuant to pursuant to this Agreement.
this Agreement).
Notwithstanding anything contained herein, (a) for purposes of the timing
of Delivery and the Delivery schedule set forth above in the table,
Delivery shall be deemed to have occurred when such item is made available
to the carrier for transport to Customer; and (b) GT shall not be
responsible for any delay arising after such item of Equipment is made
available to the carrier, and if such item of Equipment is lost, damaged
or destroyed after it is made available to the carrier, the Parties shall
mutually agree upon a revised Delivery schedule for such item of Equipment
and Customer hereby acknowledges and agrees that GT shall not have any
responsibility or liability with respect to any such item of Equipment and
Customer shall not have any right to terminate this Agreement pursuant to
Section 8.3(a) in connection with any such delay). The Parties also hereby
acknowledge and agree that in no event shall GT be considered to be in
breach hereunder due to any delay in making any Equipment to the carrier
for transport in the country of manufacture, until after such time, if
then, as GT is at least more than ninety (90) days late under the terms
and conditions of this Agreement (and, for the avoidance of doubt, this
Section shall be subject to Section 10.6 and therefore, such ninety (90)
day period shall be extended by any period during which there is a Force
Majeure Event).
4.3 DELIVERY BY AIR FREIGHT. If Customer requests Delivery by air instead of
ocean shipment for any item(s) of Equipment (assuming that such Equipment
can be Delivered by air transport on or prior to the Delivery schedule set
forth in Section 4.2), then, for the
16
avoidance of doubt, Customer shall reimburse GT pursuant to Section 4.1
for all charges for freight, insurance, VAT and other taxes and duties for
such air shipment.
4.4 INSPECTIONS.
(a) Observation of Packaging. If requested by Customer, GT shall provide
Customer with reasonable advance written notice of the anticipated
Equipment packing dates prior to shipment, and Customer at its
option shall have the right to have its representative or
representatives present at GT's (or its vendor's) facilities where
the Equipment is being manufactured to observe the condition and
packaging of Equipment at a day and time specified by GT. GT shall
not have any obligation to delay packaging or shipment of any
Equipment if for any reason Customer's representative does not show
up on the date and at the time specified by GT.
(b) Inspections of Equipment After Packaging. If requested by Customer
in a timely manner, Customer may inspect the external packaging and
crating for each shipment of the Equipment in the presence of GT or
its agent at the port of the country of manufacture through its
representative or representatives at a day and time specified by GT;
provided that such inspection shall be limited to a visual
inspection for obvious physical damage or quantity discrepancies
that are evident without opening or otherwise tampering with any of
the packaging or crating materials, provided further that GT shall
not have any obligation to delay Delivery of any Equipment if for
any reason Customer's representative is not available on the date
and at the time specified by GT.
(c) Condition to Access. Notwithstanding anything contained herein, as a
condition to GT permitting Customer or its personnel or any other
representatives (and/or any other persons or entities who GT is
willing to permit access, as determined by GT in its sole
discretion) ("Customer Representatives") to access any of the
facilities of GT or any of its contractors or vendors, Customer and
its Customer Representatives shall, if requested by GT (and/or by
any of its contractors or vendors), sign an agreement that (i)
protects GT's and GT's contractors' and vendors' confidential
information, (ii) requires compliance with GT's and its contractor's
and vendors' policies and procedures, as applicable, and (iii)
provides that GT is a third party beneficiary thereof and/or such
other similar types of provisions as may be requested by GT and/or
its contractors or vendors.
(d) Final Inspection on Arrival. Within ten (10) Business Days after
arrival at the port of destination of an item of Equipment, Customer
shall inspect such item of Equipment for any defect or damage that
is reasonably discoverable upon physical inspection of such item of
Equipment and that is unrelated to Customer's shipment of such
Equipment. Customer shall notify GT in writing within such ten (10)
Business Day period of any such defect in and/or damage to such Unit
of Equipment. If GT does not receive such notice of defect and/or
damage with respect to any Unit of Equipment within such ten (10)
Business Day period after
17
receipt by Customer of a Unit of Equipment, then Customer shall be
deemed to have accepted such Unit of Equipment and to have waived
any claim or remedy with respect to any such defect and/or damage.
If Customer notifies GT of any such defect and/or damage within the
ten (10) Business Day period and such defect and/or damage exists,
then Customer shall be entitled, as its sole and exclusive remedy
for any such defect and/or damage to any item of Equipment, to the
remedies set forth in Section 9.2 (c), subject, however, to the
exceptions set forth in Section 9.2(b). For the avoidance of doubt,
in no event shall GT have any responsibility or obligation hereunder
with respect to any defect or damage to any item of Equipment that
occurs after Delivery of an item of Equipment and that is not
attributable to GT (except to the extent covered by the warranty
under Section 9.2(a) and not subject to any exceptions set forth in
Section 9.2(b)).
4.5 BOOKS AND RECORDS; AUDITS; INSPECTIONS; CONDITION TO WARRANTY;
RE-CALCULATIONS; AND CONDUCT OF QUALIFYING RUNS.
(a) Books and Records. During the Warranty Period, Customer shall
maintain accurate and complete books and records in sufficient form
and detail to support the calculation of the Average Growth Rate,
including logs of growth time and growth rate for each Run from each
Reactor, as well as downtime between each Run, and all other
supporting data and information as may be necessary to confirm the
correctness and accuracy of all such calculations (and including as
may be necessary to confirm any data generated through any runs that
should have been excluded, as set out below in this Section). Any
data generated through any runs that are interrupted, shut down or
are subject to any errors or which are run other than in the
ordinary course or which do not meet all written operating
instructions provided by GT shall be excluded from any calculations
hereunder.
(b) Notice of Non-Compliance with the Warranty; Audits; and Inspection.
After GT's receipt of notice of any claim by Customer of
non-compliance with the warranty set forth in Section 9.2(a), GT
(and/or an auditor and/or representatives designated by GT) may,
upon reasonable prior notice, (i) audit the books and records of
Customer referenced above in Section 4.5(a), (ii) inspect the
Reactors and Converters and other Equipment at Customer's site and
observe the practices and procedures employed by Customer to operate
the Reactors and Converters and the other Equipment to determine the
Average Growth Rate. Such audits and inspections shall be conducted
during normal business hours in a manner so as to not unreasonably
disrupt Customer's normal operations.
(c) Re-Calculation of the Average Growth Rate. At GT's request, whether
in response to any claim by Customer of non-compliance with the
warranty set forth in Section 9.2(a), or otherwise with respect to a
Reactor, Customer shall perform new Qualifying Runs for such Reactor
and re-calculate the Average Growth Rate based upon such new
Qualifying Runs, and GT shall have the right, at its sole option, to
observe and comment upon any such Runs and re-calculations (or
18
otherwise) and Customer shall in good faith cooperate and consult
with GT in connection therewith and Customer shall comply with any
directions provided to Customer by GT. If (x) Customer fails to
comply with the foregoing, or (y) the re-calculation of the Average
Growth Rate for the affected Reactor based upon such new Qualifying
Runs shows that the Reactor does have the capacity to meet the
Minimum Average Growth Rate and comply with the warranty set forth
in Section 9.2(a), then GT shall be deemed to have complied with the
warranty set forth in Section 9.2(a). If however, the re-calculation
of the Average Growth Rate based upon such new Qualifying Runs
confirms that a Reactor does not comply with the warranty set forth
in Section 9.2(a), then Customer shall be entitled, as its sole and
exclusive remedy for such breach of the warranty, to the remedies
set forth in Section 9.2(c), subject, however, to the exceptions set
forth in Section 9.2(b). For the avoidance of doubt, and
notwithstanding anything contained herein, any data generated
through any Rns that are interrupted, shut down or are subject to
any errors or which are run other than in the ordinary course or
which do not meet all written directions provided by GT shall be
excluded from all of the applicable calculations and shall be
re-calculated.
ARTICLE 5
DOCUMENTATION AND SERVICES
5.1 DELIVERY OF DOCUMENTATION.
(a) Delivery of Documentation. GT shall deliver the Documentation
(including the Basic Engineering Packages) to Customer pursuant to
the Delivery schedule specified in Exhibit C, in electronic or other
form or medium, as determined by GT but which is in a form or medium
that is usable by Customer's engineers. Customer acknowledges and
agrees that Customer's use of the Documentation shall be subject to,
and in accordance with, the terms and conditions of the License.
(b) Language of Documents. All Documentation and other documentation to
be delivered by GT to Customer hereunder shall be in English.
5.2 SERVICES. GT shall use commercially reasonable efforts to provide training
for Installation, operation, and maintenance of the Equipment and Startup
of the Reactors, and other related services, that may be reasonably
requested by Customer and mutually agreed upon with GT, in each case as
described and subject to the terms set out in Exhibit E ("Services"),
including with respect to the rate payable by Customer for such Services.
For the avoidance of doubt, Customer hereby acknowledges and agrees that
GT is only providing Customer with assistance hereunder, and that Customer
shall conduct and be responsible for the Installation, Startup, operation
and maintenance of the Equipment and shall provide and be responsible for
all local labor and support, including all of the costs thereof. For the
avoidance of doubt, Customer, and not GT, shall be solely responsible for
the Facility (including providing all engineering for the Facility and
confirming all
19
design details), and for the integrated system for the production of PV
Polysilicon (including TCS synthesis/pre-purification, TCS
distillation/purification, STC hydrogenation and TCS reduction by hydrogen
(polysilicon deposition)), and integration with third party products and
equipment.
ARTICLE 6
CONFIDENTIALITY
6.1 CONFIDENTIAL INFORMATION. In connection with this Agreement, a Party
("Receiving Party") may discover, receive, or otherwise acquire, whether
directly or indirectly, information or materials (including intellectual
property) related to the other Party ("Disclosing Party") or its
Affiliates or Disclosing Party's or its Affiliates' businesses, or
information or materials (including intellectual property) of third
parties that Disclosing Party is obligated to keep confidential
(collectively, in whatever form or medium, and including any such
information or materials disclosed by one Party to the other Party, or
otherwise obtained from the other Party, prior to the Effective Date,
"Confidential Information"), subject to the provisions of Section 6.2 and
Section 6.3. For the avoidance of doubt, and without limiting the
foregoing, GT Confidential Information shall include, without limitation,
the Basic Engineering Packages and other Documentation, the GT
Intellectual Property and the Specifications. For the avoidance of doubt,
Customer hereby acknowledges and agrees that any information in
non-tangible form retained in the memories of any persons who have
obtained or have any access to any GT Confidential Information
("residuals"), shall be included in the GT Confidential Information and
may only be used by the Customer under the terms and conditions of the
License. Confidential Information shall not include information (i) that
is, or becomes, publicly known through no wrongful act or omission, direct
or indirect, of the Receiving Party or its officers, directors, employees,
consultants or agents, (ii) that was already known to Receiving Party
without obligations of confidentiality prior to the receipt from
Disclosing Party, as reasonably evidenced by the Receiving Party, and was
legitimately in Receiving Party's possession, without any existing
obligation to keep such information confidential, (iii) that Receiving
Party independently develops, invents or conceives without the use of any
Confidential Information of Disclosing Party, as evidenced by the
Receiving Party's documentation in existence at the time of disclosure by
the Disclosing Party, (iv) that Receiving Party receives or has received
on a non-confidential basis from a source other than Disclosing Party that
is entitled to disclose the same to Receiving Party; or (v) that was
disclosed with the prior written approval of the Disclosing Party.
6.2 CONFIDENTIALITY OBLIGATIONS. GT shall (i) use Customer's Confidential
Information solely in connection with exercise of its rights or
performance of its obligations under this Agreement, and (ii) disclose
Customer Confidential Information only as necessary to its Affiliates and
each of their officers, employees, consultants, contractors, agents and
other representatives whose duties relate to this Agreement and reasonably
require familiarity with such information in order for GT to perform its
obligations or exercise its rights hereunder. Customer may (i) use GT's
Confidential Information as necessary to exercise Customer's rights under
the License and subject to the terms and conditions thereof, and
20
(ii) disclose GT's Confidential Information only as necessary to its
officers and employees and if and to the extent each is authorized in
writing by GT, its consultants and contractors, whose duties relate to
this Agreement and reasonably require familiarity with such information in
order for Customer to perform its obligations or exercise its rights
hereunder and who are bound by a legally enforceable written obligation of
confidentiality with terms which are the same as, or more stringent than,
those set out herein, including obligations to prevent unauthorized access
and to maintain the confidentiality of, and not disclose any of, the GT
Confidential Information to any other person or entity. Receiving Party
shall take such precautions to maintain and protect the confidentiality of
the other Party's Confidential Information (including from any
unauthorized access or use and from any disclosure or misappropriation) as
it takes for its own most highly sensitive information, but in no event
shall Receiving Party use less than a reasonable degree of care. In no
event shall Receiving Party reverse engineer, decompile or otherwise
attempt to discover or reproduce any technology or other intellectual
property included in the Disclosing Party's Confidential Information
(including, if any, source code for any software included in the
Disclosing Party's Confidential Information). The foregoing
confidentiality and other obligations shall continue hereunder
indefinitely, or for the longest period of time permitted under applicable
law or regulation, and shall survive expiration or termination of this
Agreement for any reason. The non-disclosure obligations in this Section
6.2 shall not apply to Confidential Information to the extent it is
required to be disclosed (a) as required by judicial order or as otherwise
required by applicable law or regulation (including under the rules of the
United States Securities Exchange Commission); or (b) as required by
applicable laws and regulations, including requirements under any stock
exchange on which such Party is listed or may be listed; or (c) in
confidence, and subject to obligations of confidentiality, to legal
counsel, accountants, banks and financing sources and their advisors; or
(d) to actual or potential acquirers, investors and lenders and their
respective representatives under written confidentiality agreements that
protect the confidentiality of the contents of this Agreement and the
Confidential Information of the other Party; or (e) in confidence, in
connection with the enforcement of this Agreement or any rights hereunder;
provided however, that the Receiving Party making a disclosure pursuant to
an exception set forth in the preceding subsections (a) or (b) of this
Section shall provide the other Party with advance notice and shall, if
requested by the other Party, to the extent practical and available,
cooperate with the other Party in seeking confidential treatment of the
information to be disclosed and/or to limit the scope of the proposed
disclosure and minimization of the same (including application for a
protective order).
6.3 NONDISCLOSURE OF AGREEMENT; PRESS RELEASES. Neither Party, nor its
Affiliates, shall disclose, publish or otherwise reveal the contents of
this Agreement to any third party without the prior express written
consent of the other Party; provided that, each Party shall be permitted
to disclose the terms and conditions of this Agreement as set forth in
subsection (a) through (e) in Section 6.2. No press release referring to
this Agreement or utilizing the other Party's name shall be made without
the prior written consent of such other Party.
21
6.4 NON-SOLICITATION. During the term of this Agreement and for a period of
two (2) years thereafter, Customer shall not solicit or hire, directly or
indirectly, any of GT's or its Affiliates' respective officers, employees,
contractors or consultants (unless Customer obtains GT's prior written
consent (which consent GT may give or withhold in its sole discretion)).
ARTICLE 7
INDEMNIFICATION
7.1 INDEMNIFICATION. Subject to the exceptions in Sections 7.2 and 9.4, GT
hereby agrees to indemnify, defend and hold Customer harmless from and
against Losses resulting from any claim by a third party that the
operation of the Equipment by Customer infringes the copyright or any
other intellectual property rights of any third party that are registered
in the United States (other than any patent rights that are not filed or
published as of the Signing Date (which patents rights are hereby
expressly excluded)).
7.2 CERTAIN EXCEPTIONS. GT shall have no obligation with respect to any claim
of infringement based upon the Equipment or use thereof if (i) installed,
operated or maintained in any manner other than in accordance with the
Documentation, the Specifications and any instructions provided by GT,
(ii) used for other than its intended purpose, (iii) repaired or
materially altered, other than by GT, or (iv) combined with other
equipment, materials or software, technology or other intellectual
property not supplied by GT or not recommended or authorized by GT in
writing.
7.3 REMEDIES FOR INFRINGEMENT. In the event any claim of actual or alleged
infringement is made or threatened by a third party against Customer based
upon the Equipment, then Customer shall promptly provide the details of
any such claim to GT as soon as practicable, including copies of all
relevant documents. Upon GT's receipt and review of such claim, or if GT
otherwise reasonably believes (as determined by GT in its reasonable
business judgment) that the Equipment or its use may infringe the
intellectual property rights of a third party, GT may, at its cost and
sole option, undertake such steps as GT determines are appropriate to
avoid such infringement (including, for example, obtaining a license from
the relevant party, modifying the Equipment and/or replacing the Equipment
with non-infringing equipment). Customer shall reasonably cooperate with
GT, at GT's cost and as requested by GT, to resolve any such claim and
remedy and/or avoid any infringement and to limit any actual or potential
liability or Losses arising from any infringing activities (including by
providing GT with access to the Equipment to modify and/or replace
Equipment), if and as may be requested by GT. In the event that, as
determined by GT in GT's reasonable business judgment, it would not be
commercially practicable to avoid or remedy any infringement, then
Customer shall cease all actual or alleged infringing activities within no
more than ten (10) Business Days of Customer's receipt of GT's written
notice requesting Customer to do so and, at GT's sole option, Customer
shall return to GT (freight prepaid by GT) or certify that it has
destroyed the Equipment, and as Customer's sole and exclusive remedy, GT
shall refund
22
the Unit Price of such Equipment to Customer, less straight line
depreciation of such Equipment over a ten (10) year period.
7.4 INDEMNIFICATION PROCEDURES. GT shall have the right to appoint counsel of
its choosing and shall have sole control over the defense and/or
settlement and/or other disposition of any claim or suit for which
Customer is entitled to indemnification hereunder. Customer may
participate and select its won respective counsel, at Customer's cost,
upon notice to GT, unless there is a conflict of interest that would
prevent representation by joint counsel, in which case, Customer may
select respective counsel reasonably acceptable to GT and GT shall pay for
Customer's counsel.
ARTICLE 8
TERM; TERMINATION.
8.1 TERM. Subject to the occurrence of the Closing Condition as set forth in
Section 8.2, the term of this Agreement shall commence upon the Effective
Date and shall terminate (unless earlier terminated hereunder) the earlier
of (x) the expiration of the Warranty Period, and (y) five (5) years from
the Effective Date.
8.2 CLOSING CONDITION. The Parties hereby acknowledge and agree that, except
for this Section 8.2 and Article 6 and Section 8.1 (which provisions shall
be effective as of the Signing Date), notwithstanding anything else
contained herein, none of the other terms or conditions of this Agreement
shall be effective unless and until GT's Board of Directors has approved
the terms and conditions of this Agreement (the "Closing Condition"). Upon
satisfaction of the Closing Condition, all of the terms and conditions of
this Agreement shall be effective and in full force and effect (the
"Effective Date"). If the Closing Condition is not satisfied within
forty-five (45) days of the Signing Date, this Agreement shall
automatically and immediately terminate (unless otherwise mutually agreed
in writing by the Parties).
8.3 TERMINATION. This Agreement may be terminated by either Party upon written
notice to the other Party:
(a) by a Party upon the failure of the other Party to perform any
material term, condition or covenant of this Agreement, which
failure has not been cured within thirty (30) days of the date of
written notice of such failure given by the other Party or, with
respect to any failure to make any payment when due and payable
hereunder, within five (5) Business Days of such notice of failure;
or
(b) by a Party upon the other Party becoming insolvent or initiating
(voluntarily or involuntarily) any bankruptcy proceeding.
8.4 EFFECT OF TERMINATION.
(a) The expiration or termination of this Agreement pursuant to the
terms of this Article 8 or otherwise shall not relieve any of the
Parties of any obligations
23
accruing prior to such termination, and any such termination shall
be without prejudice to the rights of either party against the other
conferred on it by this Agreement. Neither party shall be entitled
to any compensation whatsoever as a result of termination of this
Agreement (but without limiting either party's damages for any
breach of this Agreement). In addition, except as provided below,
the provisions of Sections 2.2, 2.3, 2.4, 2.5, 3.2, 8.4, 9.3 and 9.4
and Article 1, Article 6, Article 7 and Article 10 shall survive
expiration or termination of this Agreement for any reason. Upon
expiration or termination of this Agreement, (a) except as expressly
permitted under this Agreement, each Party shall immediately cease
use of the Confidential Information of the other Party (and if
requested by the other Party, shall return or destroy, all tangible
embodiments thereof); and (b) all amounts due hereunder shall be
immediately due and payable. Notwithstanding anything to the
contrary contained herein, upon any termination of this Agreement by
GT pursuant to Section 8.3(a), the License granted pursuant to
Section 2.2 shall automatically and immediately terminate, whether
during or after the term of this Agreement. For the avoidance of
doubt, the License shall be subject to termination upon written
notice by GT in the event that Customer (or any assignee or
transferee) fails to comply with, or otherwise breaches, any of the
terms or conditions of (x) Section 2.2 (including any breach of any
of Customer's obligations thereunder with respect to sublicensing,
assignment and transfer), (y) Article 6, and/or (z) Section 10.8(b).
(b) The Parties agree that the license rights granted to each Party
hereunder are rights in "intellectual property" within the scope of
Section 101 (or its successors) of the United States Bankruptcy Code
(the "Code"). Each Party, as a licensee of intellectual property
rights hereunder, shall have and may fully exercise all rights
available to a licensee under the Code, including under Section
365(n) or its successors.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES; PRODUCT WARRANTIES
9.1 MUTUAL WARRANTIES. Each Party hereby represents and warrants to the other
that (i) it has the authority to enter into and perform its obligations
under this Agreement, (ii) this Agreement has been duly executed and
delivered on behalf of such Party, and constitutes a legal, valid, binding
obligation, enforceable against such Party in accordance with its terms,
(iii) it is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or formation,
and (iv) neither the execution of this Agreement nor its performance
hereunder conflicts with any applicable law, rule or regulation or any
other agreement to which it is a Party or any obligation to which it is
subject.
9.2 REPRESENTATIONS AND WARRANTIES.
24
(a) Free from Defects; Specifications; Minimum Average Growth Rate.
Subject to Section 9.2(b), GT hereby represents and warrants that
each item of Equipment, upon Delivery, shall (A) be new and free
from material defects in design, workmanship and materials (except
for normal wear and tear on parts), and (B) conform to its
respective Specifications, through the applicable Warranty Period;
except that, for the avoidance of doubt, notwithstanding anything to
the contrary in the Specifications or hereunder, the only
representation or warranty provided with respect to any growth rate,
shall be, subject to Section 9.2(b) and Section 4.5, that, during
the Warranty Period, each Reactor shall have the capacity to yield
at least the applicable Minimum Average Growth Rate. Customer's sole
and exclusive remedy, and GT's sole liability, for any failure of
any Equipment to comply with this Section 9.2(a) shall be solely as
set forth in Section 9.2(c). Customer hereby agrees that the
foregoing remedy shall be its sole and exclusive remedy and shall
not be deemed to have, and Customer shall not assert that it has,
failed its essential purpose.
(b) Exceptions to Warranties; Indemnity. Notwithstanding anything herein
to the contrary, the warranties set forth in this Section 9.2, and
the indemnity set forth in Section 7.1, shall not apply to, and GT
shall have no obligation with respect to, (i) any non-conformities
or other defects resulting from normal wear and tear or (ii) to any
Equipment that is (A) installed, operated, used or maintained in any
manner other than in accordance with the Documentation, the
Specifications or any instructions provided by GT, (B) operated or
used other than for its intended purpose, (C) subject to misuse,
neglect or accident, (D) repaired, modified or in way altered in any
respect other than by GT, or (E) combined with other equipment,
materials or software, technology or other intellectual property not
supplied or recommended or authorized in writing by GT.
(c) Remedies for Non-Compliance. Subject to Section 9.2(b), if any item
of Equipment fails to comply with the warranty set forth in Section
9.2(a) (after re-calculations as set forth in Section 4.5(c)) (and
provided that none of the foregoing, is subject to any exception
under Section 9.2(b), and provided further that Customer has
complied with all of the conditions set forth in Section 4.5 and
Customer notifies GT of any of the foregoing, then GT shall, at GT's
sole option, repair or replace any such defective Equipment (and
Customer acknowledges that such repair or replacement could take GT
up to, for example, twelve (12) months depending upon the nature of
the repair or replacement). GT shall bear all of its own costs and
expenses incurred in connection with fulfilling its warranty
obligations under this Section 9.2(c). Customer shall cooperate with
GT and allow GT and its representatives reasonable access to
Customer's site for the purposes of repairing Equipment or removing
Equipment for repair or replacement, as determined by GT in its
discretion. Repaired or replaced Equipment shall be shipped to
Customer by GT by reasonable commercial means, at GT's cost. If
requested by GT, Customer shall ship or deliver such item of
Equipment to the facility designated by GT (provided that GT shall
pay for and
25
arrange the shipping or other transport of such item of Equipment).
If GT, in its discretion, is not able to repair or replace such item
of Equipment, then GT shall refund to Customer the total Unit Price
for such item of Equipment, less straight line depreciation of such
item of Equipment over a ten (10) year period. The foregoing shall
be Customer's sole and exclusive remedy, and GT's sole liability,
for any failure of any Equipment to comply with any warranties.
Customer hereby agrees that the foregoing remedy shall not be deemed
to have, and Customer shall not assert that it has, failed its
essential purpose.
9.3 DISCLAIMERS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET
FORTH IN SECTION 9.2 (WHICH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
REPRESENTATIONS AND WARRANTIES OF ANY KIND) GT MAKES NO OTHER WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT OR OTHERWISE, AND
EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED,
INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT AND ALL REPRESENTATIONS OR WARRANTIES ARISING
FROM COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING,
EACH LICENSE GRANTED TO CUSTOMER HEREUNDER IS PROVIDED 'AS IS' AND GT
MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY LICENSE AND
EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED,
INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT AND ALL REPRESENTATIONS OR WARRANTIES ARISING
FROM COURSE OF DEALING OR USAGE OF TRADE.
9.4 LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES WILL GT, OR ITS
AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS
BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, OR ANY LOSS
OF PROFITS OR REVENUES, OR ANY LOSS RESULTING FROM INTERRUPTION OF
BUSINESS OR COST OF CUSTOMER'S LABOR, EVEN IF GT OR ITS AFFILIATES OR ANY
OF ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, UNDER ANY CONTRACT,
TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY (AND INCLUDING
UNDER ANY WARRANTY OR OTHERWISE), ARISING OUT OF OR RELATING IN ANY WAY TO
OR IN CONNECTION WITH THIS AGREEMENT OR ITS IMPLEMENTATION (INCLUDING
ARISING OUT OF OR RELATING IN ANY WAY TO OR IN CONNECTION WITH THE
EQUIPMENT, THE BASIC ENGINEERING PACKAGES AND OTHER DOCUMENTATION, THE
SERVICES OR ANY INFORMATION OF GT OR GT'S PERFORMANCE UNDER, OR ANY BREACH
OF ANY OF THE
26
TERMS OR CONDITIONS OF, THIS AGREEMENT). THE REMEDIES EXPRESSLY PROVIDED
HEREIN ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES, WHETHER CLAIMS ARE
BASED IN ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER
THEORY (OR INCLUDING UNDER ANY WARRANTY OR OTHERWISE). TO THE EXTENT
PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GT'S OR ITS AFFILIATES OR
ANY OF ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS TOTAL
COLLECTIVE LIABILITY ARISING OUT OF OR RELATING IN ANY WAY TO OR IN
CONNECTION WITH THIS AGREEMENT OR ITS IMPLEMENTATION EXCEED THE AMOUNT OF
THE PURCHASE PRICE PAID BY CUSTOMER TO GT FOR THE EQUIPMENT HEREUNDER.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE EXCLUSIVE REMEDIES AND
LIMITATIONS OF LIABILITIES SET FORTH HEREIN WERE BARGAINED FOR AND ARE
ESSENTIAL TERMS OF THIS AGREEMENT AND THAT, BUT FOR SUCH EXCLUSIONS AND
LIMITATIONS, THE PURCHASE PRICE WOULD BE HIGHER. NOTHING IN THIS AGREEMENT
SHALL LIMIT OR EXCLUDE THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL
INJURY RESULTING FROM ITS NEGLIGENCE OR FOR FRAUDULENT MISREPRESENTATION.
ARTICLE 10
MISCELLANEOUS
10.1 HEADINGS; INTERPRETATION. 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. This Agreement is
executed in the English language which shall be deemed to comprise the
language mutually chosen by the Parties. If any translations are prepared
of this Agreement and there is any conflict between the English version
and such translation, the English version shall control. The Parties agree
that this Agreement has been prepared jointly and no rule of strict
construction shall be applied against either Party. In this Agreement, the
singular shall include the plural and vice versa and the word "including"
and "include" shall be deemed to be followed by the phrase "without
limitation." The terms "herein" and "hereunder" and similar terms shall be
interpreted to refer to this entire Agreement.
10.2 ASSIGNMENT. Neither Party may assign or otherwise transfer (whether by
assignment, operation of law, by merger or otherwise) this Agreement, or
any of its rights or claims under this Agreement, without the other
Party's prior written consent, which consent shall not be unreasonably
withheld or delayed; provided, that any assignment or other transfer
(whether by assignment, operation of law, by merger or otherwise) to (a) a
subsidiary or other Affiliate of a Party, or (b) with respect to GT, a
third party in connection with a sale of all or substantially all of the
assets to which this Agreement relates (whether by assignment, operation
of law, by merger or otherwise), in each case shall not require the prior
written consent of the other Party; provided, further however, that the
assigning or transferring Party, as applicable, (x) notifies the other
Party of such assignment or other transfer, and (y) the assignee or
transferee (including any assignee or
27
transferee consented to by the other Party in writing, as set forth
above), as applicable, acknowledges and agrees in writing to the
non-assigning, or non-transferring, as applicable, Party to be bound by
the terms and conditions of this Agreement, and (z) with respect to any
such assignment or other transfer by Customer to a subsidiary or other
Affiliate (or any other assignment or other transfer consented to by GT in
writing, as set forth above), prior to any such assignment or other
transfer, such subsidiary or other Affiliate (or such other assignee or
other transferee consented to in writing by GT (as set forth above)) shall
open an irrevocable confirmed standby letter of credit in favor of, and
which is acceptable to, GT (and which is consistent with the terms of
Section 3.2(c)(iii)) in replacement of the irrevocable confirmed letter of
credit in favor of GT opened by Customer in accordance with the terms of
Section 3.2(c)(iii). Any attempt at assignment or other transfer (whether
by assignment, operation of law, by merger or otherwise) in violation of
this Section 10.2 (and/or Section 2.2) shall be null and void.
Notwithstanding anything contained herein to the contrary, no assignment
or other transfer (whether by assignment, operation of law, by merger or
otherwise) of this Agreement shall be permitted if it would violate the
terms of Section 10.8(b) or Section 2.2.
10.3 BINDING EFFECT. The terms and conditions of this Agreement shall be
binding upon, and shall inure to the benefit of, the Parties hereto and
their respective permitted successors and assigns.
10.4 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement, express or
implied, is intended to or shall be construed to confer upon or give to
any person or other entity, other than the Parties, any interests, rights,
remedies or other benefits with respect to or in connection with any
agreement or provision contained herein or contemplated hereby, and the
provisions of the Contract (Third Party Rights) Act are hereby
specifically excluded.
10.5 RELATIONSHIP OF PARTIES. The relationship hereby established between GT
and Customer is solely that of supplier and customer. Each is an
independent contractor engaged in the operation of its own respective
business, and nothing in this Agreement shall be construed to create a
partnership, agency, joint venture, pooling, franchise or
employer-employee relationship between the Parties. Neither Party shall be
responsible for the compensation, payroll-related taxes, workers'
compensation, accident or health insurance or other benefits of employees
of the other Party. Neither Party has the power or authority to act for,
represent, or bind the other Party (or any of the other Party's
Affiliates) in any manner.
10.6 FORCE MAJEURE. Neither Party shall be held responsible for any delay or
failure to perform a obligation hereunder to the extent caused by fires,
strikes, embargoes, government requirements, civil or military
authorities, terrorism (or the threat thereof), acts of God or of the
public enemy or any other causes beyond their reasonable control (each a
"Force Majeure Event") provided, however, that this Section shall not
relieve a party of its obligation to make payments as they become due
hereunder. A Party shall
28
promptly notify the other Party of the occurrence of a Force Majeure
Event, the time for performance under this Agreement by the Party whose
performance is affected by such Force Majeure Event shall be suspended
during the continuance of such Force Majeure Event and thereafter extended
for the period equal to that during which such Force Majeure Event
continued. The Party whose performance is affected by a Force Majeure
Event shall provide written notice to the other Party of such Force
Majeure Event, specifying the nature and the expected duration of the
Force Majeure Event, within fifteen (15) Business Days after the Party
whose performance is affected becomes aware of such Force Majeure Event,
and, to the extent reasonable, shall use its commercially reasonable
efforts to mitigate the effects of the Force Majeure Event.
10.7 CHOICE OF LAW; JURISDICTION. This Agreement, the legal relations between
the Parties and any related order shall be governed and interpreted,
construed, and enforced in accordance with the laws of England,
notwithstanding the choice of law rules of any jurisdiction. The
Convention for the International Sale of Goods shall not apply to this
Agreement and is hereby expressly disclaimed. SUBJECT TO SECTIONS 10.9 AND
10.10, IF A PARTY BRINGS A JUDICIAL PROCEEDING THAT IS PERMITTED BY THIS
AGREEMENT TO ENFORCE ANY DECISION OF A MAJORITY OF THE ARBITRATORS TO
SECTION 10.9 OR TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF PURSUANT TO
SECTION 10.10 (A "PERMITTED JUDICIAL PROCEEDING") IN ANY COURT OF
COMPETENT JURISDICTION LOCATED IN LONDON, ENGLAND, THE OTHER PARTY HEREBY
IRREVOCABLY CONSENTS TO THE JURISDICTION OF, AND VENUE IN, ANY SUCH COURT
OF COMPETENT JURISDICTION LOCATED IN LONDON, ENGLAND AND SHALL NOT CONTEST
OR SEEK TO CHANGE SUCH VENUE. IN ADDITION, IF GT BRINGS A PERMITTED
JUDICIAL PROCEEDING IN ANY COURT OF COMPETENT JURISDICTION LOCATED IN
CHINA, CUSTOMER HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF, AND
VENUE IN, ANY SUCH COURT OF COMPETENT JURISDICTION LOCATED IN HONG KONG OR
OTHERWISE IN CHINA AND SHALL NOT CONTEST OR SEEK TO CHANGE SUCH VENUE.
SUBJECT TO SECTIONS 10.9 AND 10.10, THE FOREGOING SHALL NOT, HOWEVER,
LIMIT A PARTY FROM BRINGING A PERMITTED JUDICIAL PROCEEDING IN ANY OTHER
COURT OF COMPETENT JURISDICTION, REGARDLESS OF WHETHER WITHIN OR OUTSIDE
OF ENGLAND. EACH PARTY CONSENTS TO SERVICE OF PROCESS BY ANY METHOD OF
NOTICE (EXCEPT EMAIL) SPECIFIED IN SECTION 10.11 (TO THE EXTENT PERMITTED
BY APPLICABLE LAW).
10.8 COMPLIANCE WITH LAWS.
(a) Customer shall, and shall cause its Affiliates and each of their
respective directors, officers, employees, consultants, contractors,
agents and owners to, comply with all applicable laws and
regulations relating to this Agreement and the performance of their
obligations and exercise of their rights hereunder, including
29
all applicable export control laws and laws prohibiting corrupt
practices (e.g., United States Foreign Corrupt Practices Act).
(b) Without limiting Section 10.8(a), notwithstanding anything herein to
the contrary, Customer shall not, and shall cause its Affiliates,
and each of their respective directors, officers, employees,
consultants, contractors, agents and owners, to not, use, or export,
assign or otherwise transfer (whether by assignment, sale, operation
of law or otherwise) to any person, entity or country, this
Agreement or any rights or obligations hereunder, any of the
Equipment or any of GT's Confidential Information, or exercise any
rights hereunder, which, if done by GT directly, would violate any
laws of the United States or any other applicable laws and
regulations (including any export control laws or regulations) or
which would otherwise result in GT being in violation of any such
laws or regulations.
10.9 DISPUTE RESOLUTION.
(a) NEGOTIATION BETWEEN PARTIES. The Parties agree to negotiate in good
faith to resolve any dispute, controversy or difference between them
arising out of, in connection with or relating to, this Agreement
(any such dispute, controversy or difference, a "Dispute"), and for
such purpose shall nominate one senior officer as its
representative. These representatives shall meet in person and shall
attempt in good faith to resolve the Dispute, provided that if such
senior officers are unable or otherwise do not meet, or the Dispute
is not otherwise resolved by the Parties, within thirty (30) days of
the written meeting request, either Party may thereafter commence
arbitration proceedings in accordance with Section 10.9(b) below.
The Parties agree that during the pendency of any Dispute, the
Parties shall continue to perform their respective obligations under
this Agreement to the extent that such performance is not the
subject of the Dispute. Notwithstanding the foregoing, for the
avoidance of doubt, and without limiting any of GT's available
rights or remedies, if the Dispute relates to Customer's failure to
pay GT amounts owed to GT, GT may proceed directly to arbitration at
any time upon ten (10) Business Days notice to Customer, and shall
not be obligated to continue to perform its obligations under this
Agreement until Customer remedies such failure to make payment by
paying GT in full all such overdue amounts, together with any
interest payable by Customer to GT with respect thereto pursuant to
Section 3.23.2(b).
(b) ARBITRATION. Subject to Section 10.10, any Dispute not resolved
under Section 10.9(a) shall be resolved through arbitration pursuant
to this Section 10.9(b). The Parties hereby waive any right to
institute a court or other dispute resolution proceeding and
acknowledge that arbitration in accordance with this Section 10.9(b)
is the sole and exclusive means of resolving any Dispute hereunder
or relating hereto, except that the Parties may at any time,
initiate other proceedings as provided in Section 10.10. Subject to
Section 10.10, all Disputes shall be finally settled by arbitration
in accordance with the auspices of the
30
International Institute for Conflict Prevention & Resolution ("CPR")
pursuant to the CPR Rules for Non-Administered Arbitration of
International Disputes and shall, unless otherwise mutually agreed by the
Parties, be held in London, England before by an arbitration board
consisting of three (3) arbitrators. Each of the Customer and GT shall
select one arbitrator within thirty (30) days after giving or receiving a
demand for arbitration. Such arbitrators shall be freely selected, and
neither Customer nor GT shall be limited in their selection to any
prescribed list. The two (2) arbitrators appointed by the Parties shall
appoint the third arbitrator who shall serve as the chairman of the
arbitration board. If either the Customer or GT does not appoint an
arbitrator who has consented to participate within thirty (30) days after
selection of the first arbitrator, the relevant appointment shall be made
in accordance with the CPR Rules for Non-Administered Arbitration of
International Disputes. The arbitration proceedings shall be conducted in
English. The arbitration tribunal shall apply the CPR Rules for
Non-Administered Arbitration of International Disputes in effect at the
time of the arbitration. However, if such rules are in conflict with the
provisions of this Section 10.9(b) including the provisions concerning the
appointment of arbitrators, the provisions of this Section 10.9(b) shall
prevail. The arbitrators shall decide any Dispute submitted by the Parties
to the arbitration in accordance with the substantive law of England. In
making their award, the arbitrators shall have the right to award
reasonable attorney's fees as they deem just and appropriate under the
circumstances (subject to the terms and conditions of this Agreement). The
award shall be issued within sixty (60) days of the constitution of the
arbitration tribunal, provided, however, that the arbitration tribunal
shall, upon a finding that it is impracticable to meet such deadline
consistent with its primary obligation justly to determine the controversy
before it, have discretion to extend or alter such deadline to the extent
necessary to prevent injustice or preserve the enforceability of its
award. The award of the arbitration tribunal shall be final and binding
upon the disputing Parties, and any Party may apply to a court of
competent jurisdiction for enforcement of such award. For the avoidance of
doubt, the arbitrators shall not have the authority to award punitive or
special damages (including any lost profits) and awards shall be
consistent with the limitations on liability set out in Section 9.4 and
shall be made in accordance with, and subject to, the other terms and
conditions of this Agreement. In the absence of a contrary ruling by the
arbitrators, each Party shall pay its own costs and fees in connection
with the arbitration. Each Party shall cooperate with the other Party and
use its respective reasonable commercial efforts to take such actions
reasonably required to facilitate the prompt enforcement in the PRC or in
any other jurisdiction, as applicable, of any arbitration award made by
the tribunal in accordance with the terms and conditions of this
Agreement.
10.10 INJUNCTIVE RELIEF; SPECIFIC PERFORMANCE. The Parties hereto acknowledge
and agree that a breach of the terms of this Agreement could give rise to
irreparable harm for which money damages would not be an adequate remedy
and accordingly the Parties agree that, in addition to any other remedies,
and notwithstanding anything contained in this
31
Agreement, each Party shall be entitled to seek preliminary or injunctive
relief and to enforce the terms of this Agreement by a decree of specific
performance. Without limiting the generality of the foregoing, Customer
hereby acknowledges and agrees that the GT Confidential Information has
substantial business value to GT, provides a significant competitive
advantage to GT and that any improper use or disclosure of any GT
Confidential Information would materially impair the business value of
such GT Confidential Information and irreparably harm GT's business.
Therefore, Customer hereby agrees that, notwithstanding anything contained
in this Agreement, GT shall be entitled to preliminary or injunctive
relief and to specific enforcement of this Agreement in connection with
any breach of the terms of Section 2.2, Article 6 and/or Section 10.8(b),
in each case without posting of any bond or other security.
10.11 NOTICES. Any consent, agreement, approval or notice required or permitted
to be given or made under this Agreement by one of the Parties hereto to
other Party shall be in writing and in English and shall be delivered in
person or by Federal Express (or other recognized international courier
service requiring signature upon receipt) or by facsimile or email (as
evidenced by a paper copy of such email). Such notice shall be deemed
effective upon receipt or, in the case of facsimile or email, upon written
confirmation of receipt by the other Party (such confirmation to be
transmitted in person, by email or international courier as provided
above). For purposes of notice, the addresses of the Parties shall be as
follows:
If to GT: GT Solar Incorporated
000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
X.X.X.
Attention: President
cc: General Counsel
Tel: x(000) 000-0000
Fax: x(000) 000-0000
Email: xxxx@xxxxxxx.xxx and xxxxxxxx@xxxxxxx.xxx
If to Customer: LDK Solar Hi-tech Co., Ltd
Xinyu Hi-tech Development Zone
Xinyu City, Jiangxi, China
Attention: Mr. LDK Peng
Tel: x00-000-00000000
Fax: x00-000-00000000
Any Party may, by written notice to the other Party in accordance with this
Section 10.11, change the address or addressee to which notices, requests or
other communications shall be given.
32
10.12 EXPENSES. Whether or not the transactions contemplated hereby are
consummated, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne and paid
by the Party incurring such costs and expenses.
10.13 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. Any such waiver by
any Party will not be considered as a waiver of any subsequent failure to
comply with any such obligation, agreement or condition or any other
hereunder.
10.14 AMENDMENTS. This Agreement may not be amended except by an instrument in
writing signed by a duly authorized officer or representative of each of
the Parties hereto.
10.15 SEVERABILITY. If any part of this Agreement is deemed to be unenforceable,
invalid or in contravention of applicable law, then such provision shall
be of no effect, and the remainder of this Agreement shall remain in full
force and effect, and the Parties shall negotiate in good faith to replace
such provision with a provision which effects to the extent possible the
original intent of such provision.
10.16 ENTIRE AGREEMENT. The exhibits and any other attachments to this
Agreement, and all terms and conditions contained therein, are hereby
incorporated by reference provided that, in the event of a conflict
between any term or condition of this Agreement and any term or condition
of any exhibit or other attachment hereto, the terms and conditions of
this Agreement shall control. This Agreement constitutes the entire
agreement between the Parties regarding the subject matter of this
Agreement, and supersedes all other prior agreements, understandings and
negotiations, both written and oral, among the Parties with respect to the
subject matter of this Agreement. For purposes of clarity, the terms and
conditions of this Agreement shall supersede and control any terms and
conditions in any form of purchase order or any other business forms used
by the Parties for the purposes of ordering, acknowledging, invoicing or
shipping.
10.17 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.
[SIGNATURE PAGE FOLLOWS]
33
IN WITNESS WHEREOF, the Parties, intending to be bound, have caused
this Agreement to be executed on their behalf by their duly authorized agent as
of the day and year first above written.
LDK SOLAR COMPANY, LTD. GT SOLAR INCORPORATED
By: By:
Name: Name:
Title: Title:
JIANGXI LDK PV SILICON TECHNOLOGY COMPANY, LTD.
By:
Name:
Title:
34
EXHIBIT A-1
48-ROD REACTOR SPECIFICATIONS
GENERAL OVERVIEW:
Each 48-Rod Reactor to be provided by GT to Customer pursuant to this Agreement
shall be a "Siemens Style" (as such term is commonly understood in the industry)
48-rod TCS decomposition reactor that will use solid polysilicon seed filaments.
EQUIPMENT PURPOSE
Main Reactor Power Supply electrical power supply to Reactor
Reactor Vessel decomposition of TCS to silicon
Pyrometers monitor process temperature
Electrodes power feed-through
O-Rings/Bolts on Base Flange sealing the Reactor
A-1
EXHIBIT A-1 (CONTINUED)
48-ROD REACTOR SPECIFICATIONS:
COMPONENTS: - metal base plate and chamber
- power supply
GEOMETRY: - cylindrical and hemispherical for the chamber
- flat plane for the base plate
DESIGN CHARACTERISTICS: - pressure rating of 10 XxxX (process side)
- Reactor cooled with water in the external jacket
- expected production of 200+ mt/Reactor per year of polysilicon (based on the assumption
of twenty (20) hours of downtime between runs (which Customer acknowledges may vary as
the downtime between runs is in Customer's control))**
DIMENSIONS: - approximately 2 m diameter x 3 m height
- weight - approximately 25,000 kilograms
CONSTRUCTION MATERIAL: - stainless steel on the process side
- carbon steel outside and on the cooling water side
***CERTAIN CUSTOMER SUPPLIED EQUIPMENT - piping, valves, or instrumentation of gas utilities
(NOT INCLUSIVE OF ALL CUSTOMER SUPPLIED - step down transformer from power feed and switch gear
EQUIPMENT, MATERIALS AND OTHER WATER - two (2) cooling (treated and deionized)
SYSTEMS RESOURCES): - overhead crane
- lifting spreader bar
- seed filaments, TCS and hydrogen feed gases, carbon chucks and other consumables
- distributive control system for the Reactors and Reactor Power Supplies
***CERTAIN CUSTOMER PROVIDED SERVICES - Installation of the Equipment
(NOT INCLUSIVE OF ALL CUSTOMER PROVIDED - all engineering support (including for the design of the support facilities to operate
SERVICES AND OTHER RESOURCES): the Reactors and Reactor Power Supplies)
- anything that GT does not have an express obligation to provide to Customer under this
Agreement.
** Note that, notwithstanding anything contained in this Agreement, these
provisions shall not be deemed to expand the warranty set forth in Section
9.2(a) of the Agreement nor shall they be construed as a warranty as to
productivity of any type.
A-2
*** Note that, notwithstanding anything contained in this Agreement, Customer
acknowledges and agrees those items that are to be provided by Customer herein
are the sole and exclusive obligation and responsibility of Customer and in no
event shall GT have any responsibility or liability with respect thereto or
arising in connection therewith.
A-3
EXHIBIT A -1 (CONTINUED)
DESCRIPTION OF THE REACTOR POWER SUPPLY:
Design Summary -three (3) independent control loops
-each Reactor has a "main" and a starting power phase
Supply -each Reactor has a PLC controller
AC Input -three-phase supply voltage of 10 kV (+/- 5%) 50 Hz (+/-2%) Frequency
-three-phase auxiliary voltage of 380 volts (+/- 5%) 50 Hz (+/- 2%) Frequency
-single-phase auxiliary voltage of 220 volts (+/-5%) 50 Hz (+/-2%) Frequency
Output -rated AC voltage range of 140 to 2250 V
-rated AC current range of 0.1 to 3000 A
-automatic control (with a PLC ) to within +/- 1% of indicated current
-ground fault interruption system
Ambient conditions -temperature range of 10 to 30 degreesC
-cooling water temperature feed temperature of 20 degreesC
Cooling system needed -air forced in closed loop for additional cooling as needed
***CERTAIN CUSTOMER SUPPLIED EQUIPMENT (NOT -step down transformer from main power feed power distribution switchgear
INCLUSIVE OF ALL CUSTOMER SUPPLIED EQUIPMENT, -a deionized water cooling loop with 20oC feed temperature
MATERIALS AND OTHER RESOURCES): -Xxxx bars and cabling to carry power between the transformer and power
supply as well to the Reactor electrodes.
-all external cabling and piping
-Earthing system
-foundations and surrounding building
-power factor improvement or harmonic filter system
-carbon pre-heaters and/or power supply to operate them
-distributive control system and program logic
-cable trays and conduits required to install Equipment
A-4
***CERTAIN CUSTOMER PROVIDED SERVICES (NOT -Installation of the Equipment including connection to main transformer
INCLUSIVE OF ALL CUSTOMER PROVIDED SERVICES AND -connection of the xxxx bars/cables to the Reactor electrodes
OTHER RESOURCES):
*** Note that, notwithstanding anything contained in this Agreement, Customer
acknowledges and agrees those items that are to be provided by Customer herein
are the sole and exclusive obligation and responsibility of Customer and in no
event shall GT have any responsibility or liability with respect thereto or
arising in connection therewith.
X-0
XXXXXXX X-0 (CONTINUED)
DESCRIPTION OF 36-ROD REACTORS
"SIEMENS STYLE" (AS SUCH TERM IS COMMONLY UNDERSTOOD IN THE INDUSTRY) TCS
DECOMPOSITION REACTOR
EQUIPMENT PURPOSE
Prestarting Power Supply Preparation for Starting Reactor
Starting Power Supply Starting Reactor
Main Supply with Bus Bar Electrical Power supply to Reactor
Reactor Vessel Decomposition of TCS to silicon
Pyrometers Monitor process temperature
Double Pipe Heat Exchanger Gas In/Out
Electrodes Power Feedthrough
O-Rings/Bolts on Base Flange Sealing the Reactor
X-0
XXXXXXX X-0 (CONTINUED)
DESCRIPTION OF 36-ROD REACTORS
COMPONENTS: - metal Base Plate and Chamber
- Power Supply
- Double pipe heat exchanger
GEOMETRY: - Cylindrical and hemispherical for the Chamber
- Flat plane for the Base Plate
DESIGN CHARACTERISTICS: - Pressure Rating of 10 XxxX
- Reactor cooled with water in the external jacket
DIMENSIONS: - Approx 2m diameter x 3 m height
- Weight approx 13,000 kilograms
CONSTRUCTION MATERIAL: - Stainless Steel on the process side
- Carbon Steel outside and on the cooling water side
***CERTAIN CUSTOMER SUPPLIED EQUIPMENT - Piping, valves, or instrumentation of gas utilities
(NOT INCLUSIVE OF ALL CUSTOMER SUPPLIED - Cooling Water System
EQUIPMENT, MATERIALS AND OTHER - Overhead crane
RESOURCES): - Lifting spreader bar
- Seed filaments, TCS and hydrogen feed gases, carbon chucks or other consumables
- Control system for the Reactors and power supplies (not inclusive of all Customer
provided resources)
*** CUSTOMER PROVIDED SERVICES - Installation of the Equipment
- Engineering support for the design of the Equipment to operate the Reactors and power
supplies. (not inclusive of all Customer provided services)
*** Note that, notwithstanding anything contained in this Agreement, Customer
acknowledges and agrees those items that are to be provided by Customer herein
are the sole and exclusive obligation and responsibility of Customer and in no
event shall GT have any responsibility or liability with respect thereto or
arising in connection therewith.
A-7
EXHIBIT A-2 (CONTINUED)
DESCRIPTION OF THE 36-ROD POWER SUPPLY
Design Summary - Six Separate loops independently controlled
Each Reactor has a "main" and a starting power
Supply One Pre-starting power supply common for 4 reactors Each Reactor has a PLC controller
AC Input - Three-phase supply voltage of 6.6 kV (+/- 5%) 60 Hz (+/-2%) Frequency
DC Output Rated DC voltage range of 140 to 2250 V
Rated DC current range of 0.1 to 3000A
Automatic control (with a PLC) to within +/- 1% of indicated current
Ground Fault interruption system
Xxxx bars and cabling to carry power to the reactor electrodes. Maximum length of Xxxx
bars is 5 meters.
Ambient conditions - Temperature range of 10 to 37 degrees C
- Cooling water temperature feed temperature of 20 degrees C
Cooling system needed - Air forced in closed loop for additional cooling as needed
CUSTOMER SUPPLIED EQUIPMENT - Step Down transformer from main power feed Power distribution switchgear
- A deionized water cooling loop with 20 degrees C feed temperature
- All external cabling and piping
- Earthing system
- Foundations and surrounding building
- Power factor improvement or Harmonic Filter system
- Carbon Pre-heaters or power supply to operate them.
- DCS Control system
- Cable trays and conduits required to install equipment (not inclusive of all Customer
provided resources)
CUSTOMER PROVIDED SERVICES - Installation of the Equipment including connection to main transformer
- Connection of the Xxxx bars/cables to the Reactors
A-8
(not inclusive of all Customer provided services)
*** Note that, notwithstanding anything contained in this Agreement, Customer
acknowledges and agrees those items that are to be provided by Customer herein
are the sole and exclusive obligation and responsibility of Customer and in no
event shall GT have any responsibility or liability with respect thereto or
arising in connection therewith.
A-9
EXHIBIT B
CONVERTER SPECIFICATIONS
GENERAL OVERVIEW:
Each Converter to be provided by GT to Customer pursuant to this Agreement shall
be a "Siemens Style" (as such term is commonly understood in the industry)
24-element converter to hydrogenate STC to TCS.
..
--------------------------------------------------------------------------------
EQUIPMENT PURPOSE
--------------------------------------------------------------------------------
Main Converter Power Supply Electrical power supply to Converter
--------------------------------------------------------------------------------
Converter Vessel Hydrogenation of STC to TCS
--------------------------------------------------------------------------------
Pyrometers monitor process temperature
--------------------------------------------------------------------------------
Heat Exchanger gas in/out
--------------------------------------------------------------------------------
Electrodes Power feed through
--------------------------------------------------------------------------------
O-Rings/Bolts on Base Flange sealing the Converter
--------------------------------------------------------------------------------
B-1
EXHIBIT B (CONTINUED)
DESCRIPTION OF THE CONVERTER:
-------------------------------------------------------------------------------------------------------------------
COMPONENTS: - mental base plate and chamber Power supply Heat exchanger
--------------------------------------------------------------------------------
GEOMETRY: cylindrical and hemispherical for the chamberflat plane for the base plate
------------------------------------------------------------------------------------------------------------------
DESIGN CHARACTERISTICS: - pressure rating of 10 XxxX converter cooled with water in the external
jacket capable of converting at least 750 kg/hr of STC when run pursuant
to GT's operating instructions
-------------------------------------------------------------------------------------------------------------------
DIMENSIONS: approximately 2m diameter x 3m height weight approximately 16,000 kilograms
-------------------------------------------------------------------------------------------------------------------
CONSTRUCTION MATERIAL - stainless steel on the process side
- Carbon steel outside and on the cooling water side
-------------------------------------------------------------------------------------------------------------------
*** CERTAIN CUSTOMER SUPPLIED - piping, valves, or instrumentation of gas utilities
EQUIPMENT (NOT INCLUSIVE OF ALL - step down transformer from power feed and switch gear
CUSTOMER SUPPLIED EQUIPMENT, - cooling water system
MATERIALS AND OTHER RESOURCES): - overhead crane
- lifting spreader bar
- carbon heating elements, STC and hydrogen feed gases and other consumables
- control system for the Converters and Converter Power Supplies
--------------------------------------------------------------------------------------------------------------------
***CERTAIN CUSTOMER PROVIDED - Installation of the Equipment All engineering support (including for
SERVICES (NOT INCLUSIVE OF ALL the design of the support facilities to operate the Converters and
CUSTOMER PROVIDED SERVICES AND Converters Power Supplies)
OTHER RESOURCES): - anything that GT does not have an express obligation to provide to
Customer under this Agreement.
------------------------------------------------------------------------------------------------------------------
*** Note that, notwithstanding anything contained in this Agreement, Customer
acknowledges and agrees those items that are to be provided by Customer herein
are the sole and exclusive obligation and responsibility of Customer and in no
event shall GT have any responsibility or liability with respect thereto or
arising in connection therewith.
B-2
EXHIBIT B (CONTINUED)
DESCRIPTION OF THE CONVERTER:
------------------------------------------------------------------------------------------------------------------
Design Summary - each Converter has a power supply that is controlled by a PLC.
------------------------------------------------------------------------------------------------------------------
AC Input - three-phase supply voltage of 10 kV (+/- 5%) 50 Hz (+/-2%) Frequency
three-phase auxiliary voltage of 380 volts (+/- 5%)
50 Hz (+/-2%) Frequency
single-phase auxiliary voltage of 220 volts (+/-5%)
50 Hz (+/- 2%) Frequency
------------------------------------------------------------------------------------------------------------------
Output Rated output current: 3,200 A
Rated output voltage: 265V
automatic control (with a PLC) to within +/- 1% of indicated current
ground fault interruption system
------------------------------------------------------------------------------------------------------------------
Ambient conditions - temperature range of 10 to 30 degrees C
- cooling water temperature feed temperature of 2 degrees C
------------------------------------------------------------------------------------------------------------------
Cooling system needed - air forced in closed loop for additional cooling as needed
------------------------------------------------------------------------------------------------------------------
***CERTAIN CUSTOMER SUPPLIED - step down transformer from main power feed power distribution switchgear
EQUIPMENT (NOT INCLUSIVE OF ALL - a deionized water cooling loop with 20 degrees C feed temperature
CUSTOMER SUPPLIED EQUIPMENT, - xxxx bars and cabling to carry power to the converter electrodes
MATERIALS AND OTHER RESOURCES): - all external cabling and piping
- earthing system
- foundations and surrounding building
- power factor improvement or harmonic filter system.
- carbon pre-heaters and/or power supply to operate them
- heating elements-internal vessel insulation
B-3
- distributive control system and program logic
Cable trays and conduits required to install Equipment
------------------------------------------------------------------------------------------------------------------
CUSTOMER PROVIDED SERVICES (NOT - Installation of the Equipment including connection to main transformer
INCLUSIVE OF ALL CUSTOMER PROVIDED - connection of the xxxx bars/cables to the Converters
SERVICES AND OTHER RESOURCES):
------------------------------------------------------------------------------------------------------------------
*** Note that, notwithstanding anything contained in this Agreement, Customer
acknowledges and agrees those items that are to be provided by Customer herein
are the sole and exclusive obligation and responsibility of Customer and in no
event shall GT have any responsibility or liability with respect thereto or
arising in connection therewith.
B-4
EXHIBIT C
BASIC ENGINEERING PACKAGE AND OTHER DOCUMENTATION
The Documentation shall be delivered to Customer as set forth in this Exhibit C
(including in the Basic Engineering Packages).
Customer hereby acknowledges and agrees that, notwithstanding anything contained
in this Agreement, Customer shall be responsible for conducting all engineering
work (including to confirm all design details), and that GT is only providing
preliminary information to Customer to assist in commencing that process.
Customer hereby further acknowledges and agrees that any assistance provided by
GT with respect to TCS production or purification is outside the scope of what
GT is providing to Customer under this Agreement, and is therefore, only being
provided to Customer for informational purposes only (including the information
and materials to be provided pursuant to subsection 4 under the Basic
Engineering Package #3 heading of this Exhibit C).
General:
- GT will supply the Basic Engineering Packages described in this
Exhibit C to Customer.
- All engineering shall be performed by Customer through an
experienced engineering firm (including to confirm design details
and documentation and suggestions provided by GT hereunder and in
the Documentation).
- All drawings and other documentation are to be supplied, as
applicable, in electronic formats agreeable by GT and Customer(e.g.,
such as AutoCAD(R) 2004).
BASIC ENGINEERING PACKAGE #1
To be Delivered to Customer within two (2) weeks of the Commencement Date:
1. The following Reactor and Converter requirements:
a. Approximate dimensions/weights of the Reactor and Converter vessels;
b. Suggested layout of the Reactor vessel and Reactor Power Supply;
c. Utility requirements for the cooling water and supply gases; and
d. Details of the Reactor Vessel and Converter Vessel nozzles,
including size and location.
2. 48-Rod Reactor and Converter Power Supply requirements:
a. Approximate dimensions and weights of the units;
b. Power requirements; and
C-1
c. Cooling water specifications including quality and flow rate.
3. Building size and elevation requirements to house the Equipment required
to produce 15,000 mt/year of polysilicon.
BASIC ENGINEERING PACKAGE #2
To be Delivered to Customer within four (4) weeks of the Commencement Date:
1. Unit process flow diagrams (PFD) for the 48-Rod Reactors, Converters and
TCS production and purification for a 15,000 mt/yr polysilicon plant.
(a) Indication of each major piece of equipment, including tanks, pumps,
columns and heat exchangers.
(b) Average flow rate for each stream and maximum and minimum, as
applicable.
(c) Average temperature for each stream and maximum and minimum, as
applicable.
(d) Average pressure for each stream and maximum and minimum, as
applicable.
(e) Average composition of each stream.
(f) Average vapor fraction of each stream.
(g) Average enthalpy of each stream.
C-2
EXAMPLE OF A PFD:
[GRAPHIC]
C-3
BASIC ENGINEERING PACKAGE #3
To be Delivered to Customer within three (3) months of the Commencement Date:
1. Preliminary Piping and Instrument Diagrams ("P&IDs") for the Reactors,
Converters and utility interfaces to support them, for a 15,000
mt/yr polysilicon plant.
a. Preliminary pipe sizing;
b. Heat trace or insulation to be specified (but not with detail);
c. Instrument loops;
d. Steam traps, valves and filters; and
e. Utility tie in points.
2. Equipment list and specifications for TCS/STC (as applicable) feed, 48-Rod
Reactor and Converter:
a. Design pressure and temperature;
b. Materials of construction; and
c. Sizing and types of pumps,
3. Instrumentation for TCS/STC (as applicable) feed, Reactor and Converter:
a. Instrumentation list;
b. Recommended alarm points and settings; and
c. Suggested control points that require automatic shutdown.
4. The following equipment list for TCS production and purification (e.g.,
tanks, heat exchangers, columns and pumps) (to be Delivered no later than
three (3) months after payment of the First Installment):
a. Design pressure and temperature;
b. Materials of construction;
c. Types of pumps; and
d. Estimated tray count for columns.
C-4
EXAMPLE OF A P&ID:
[GRAPHIC]
C-5
OTHER DOCUMENTATION:
To be Delivered to Customer six (6) months after Commencement Date:
1. 48-Rod Reactor process sequence with valve positioning (open/close) during
the deposition process.
2. Specification and required number of pre-heaters with a suggested vendor.
3. Spare parts and tools and consumables list (including carbon chucks) with
specifications and suggested vendor list.
4. Suggested procedures for Installation, commissioning, Startup, and
operation of the 48-Rod Reactors and Converters.
5. Assembly drawings of Reactor and Converter.
6. Material certificates, and final pressure check documentation -- upon
shipment of each 48-Rod Reactor.
C-6
EXHIBIT D
PV POLYSILICON SPECIFICATIONS
PURITY: MAXIMUM CONCENTRATION:
Carbon 0.2 ppma
Acceptor - Boron 0.04 ppba
Donor - Phosphorous 0.20 ppba
SURFACE METALS:
Copper 0.2 ppbw
Iron 0.6 ppbw
Chromium 0.2 ppbw
Nickel 0.2 ppbw
Sodium 0.6 ppbw
Zinc 0.6 ppbw
Aluminum 0.6 ppbw
SIZE DISTRIBUTION:
0 to 50 mm to be <= 25% by weight
50 to 100 mm to be >= 75 by weight
Surface roughness to be average of 50% of high morphology or "popcorn" by weight
%.
Product is to be packaged in a polyethylene bag, with a second outer bag to
ensure product quality.
NOTE. Customer acknowledges that the following factors (among others) are under
Customer's control and affect
the quality of polysilicon yield:
1. The purity of the polysilicon is determined by the purity of the
feedgas to the Reactor, and the level of contamination of the seed
filaments.
2. The level of surface metals contamination is determined by how the
polysilicon is processed following removal from the Reactor, and the
cleanliness of the room where the polysilicon is handled.
D-1
EXHIBIT E
SERVICES
Customer hereby acknowledges and agrees that, notwithstanding anything contained
in this Agreement, Customer shall be responsible for conducting all engineering
work (including to confirm all design details), and that GT is only providing
preliminary information to Customer to assist in commencing that process. GT
shall provide to Customer, through qualified personnel, the Services specified
in this Exhibit E that may be reasonably requested by Customer and agreed upon
with GT.
Services, per day, per person: US$*
Travel Expenses (airfare (up to business class), hotel, car, meals, etc.): Actual Cost
NOTE: The parties acknowledge and agree to the following:
1. Description of Services: Services to be provided by GT, upon Customer's
reasonable request and GT's agreement, including the following; provided
that Customer shall be solely responsible for all facility design,
training of all operating and engineering or other staff, and proper
Installation, unpacking, commissioning and Startup of the Equipment:
a, Consulting on the design of the entire facility, including the TCS
production and purification equipment
b. Assistance in training of the operating staff on the safe, efficient
operation of the facility
c, Assistance for Installation, unpacking, commissioning and Startup of
the Equipment
d. Assistance in training of the engineering staff of the optimization
of the polysilicon production
2. Term of Services: GT's obligations to provide any services hereunder shall
expire forty-eight (48) months after the Effective Date. Any services that
GT agrees to provide after such date shall be subject to the mutual
agreement of the parties with respect thereto, including with respect to
the applicable rates.
3. Fees: Services will be charged by GT and paid for by Customer at the rates
listed above in this Exhibit and are calculated based on an eight (8)
hours Business Day.
4. Travel and Other Out-of-Pocket Expenses: Customer shall pay or reimburse
GT for all reasonable out-of-pocket costs incurred in connection with the
Services provided to Customer hereunder (including for hotel, food and
transportation (business class air transportation)), within thirty (30)
days after GT submits an invoice for the same.
E-1
