Amendment No. 1 to Second Amended & Restated Supply Agreement
Amendment
No. 1 to
Second
Amended & Restated Supply Agreement
This
Amendment No. 1 to Second Amended & Restated Supply Agreement (this
“Amendment”)
is
effective as of October 22, 2008 (the “Effective
Date”)
by and
between Hoku Materials, Inc., a Delaware corporation (“HOKU”),
and
Solarfun Power Hong Kong Limited, a company registered in Hong Kong
(“SOLARFUN”).
HOKU
and SOLARFUN are each a “Party” and together the “Parties” to this Amendment.
Recitals
Whereas,
HOKU and SOLARFUN are Parties to that certain Second Amended & Restated
Supply Agreement dated as of May 13, 2008 (collectively, the “Supply
Agreement”);
Whereas,
the Parties desire to make certain amendments to the Supply Agreement as
hereinafter set forth; and
Whereas,
each Party derives a benefit from the amendments set forth herein.
Now
therefore, in consideration of the foregoing, and for other good and valuable
consideration, the receipt of which is hereby acknowledged by the Parties,
the
Parties agree to amend the Supply Agreement as set forth below.
Agreement
1. Definitions.
All
capitalized terms not otherwise defined are defined in the Supply
Agreement.
2. Time
& Location for Performance.
All
dates and times set forth in this Amendment shall be the day and time in New
York, USA.
3. Cancellation
of Letter of Credit.
Concurrent with the execution and delivery of this Amendment, HOKU agrees to
effect the cancellation of the Standby Letter of Credit that was issued in
its
favor by Citibank, N.A. (“Citibank”)
by
delivering to Citibank the fully executed notice of cancellation attached hereto
as Exhibit
A
(the
“Cancellation
Notice”)
via
facsimile and courier to facsimile number (000) 000-0000, and the physical
address stated on the Cancellation Notice. Within one business day after the
Effective Date, HOKU shall forward to SOLARFUN via email PDF to xxxx.xxxxxxxxx@xxxxxxxx.xxx.xx,
a copy
of the facsimile confirmation and the courier tracking number for the
Cancellation Notice.
4. Payment
of Second Deposit.
As soon
as practicable after the Effective Date, but in no event more than five business
days after the Effective Date, Solarfun shall pay to HOKU Twenty-one Million
U.S. Dollars (USD$21,000,000).
5. Reduction
of Third Deposit. Subject
to HOKU’s receipt in full of Twenty-one Million U.S. Dollars ($21,000,000)
pursuant to Section 4
above,
the Parties agree that the Third Deposit will be reduced to Eighteen Million
U.S. Dollars ($18,000,000).
6. HOKU’s
Termination Rights.
In
addition to HOKU’s rights and remedies under the Supply Agreement, and at law
and in equity, in the event that SOLARFUN fails to pay the Third Deposit on
the
Third Deposit Date, HOKU may immediately terminate the Supply Agreement and
retain all amounts of the Total Deposit that have been paid to HOKU as of the
date of such termination, with a grace period of four (4) business days given
in
order to accommodate any delays due to administrative or technical problems
in
processing the payment.
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7. HOKU’s
Suspension Rights.
In
addition to HOKU’s rights and remedies under the Supply Agreement, and at law
and in equity, in the event that SOLARFUN fails to pay the Fourth Deposit on
the
Fourth Deposit Date, HOKU may immediately suspend all shipments due under the
Shipment Schedule until such time as the Fourth Deposit is paid in full;
provided, however, that if the Fourth Deposit is not paid within 30 calendar
days after the Fourth Deposit Date, then in addition to HOKU’s rights and
remedies under the Supply Agreement and at law and in equity, HOKU may
immediately terminate the Supply Agreement and retain all amounts of the Total
Deposit that have been paid to HOKU as of the date of such termination.
8. Corporate
Guaranty.
As an
inducement for HOKU to enter into this Amendment with SOLARFUN, the parent
company of SOLARFUN, Solarfun Power Holdings Co., Ltd., a Cayman Islands company
(the “Guarantor”)
hereby
guaranties to HOKU the prompt, punctual and full payment of all monies due
HOKU
from SOLARFUN that were previously guaranteed under the Standby Letter of
Credit, (for the avoidance of doubt this means the payment pursuant to section
3
above, the Third Deposit and the Fourth Deposit only) and agrees to the
following:
(a) The
obligations of the Guarantor shall be at the election of HOKU, shall be primary
and not necessarily secondary, and HOKU shall not be required to exhaust its
remedies as against SOLARFUN prior to enforcing its rights under this guaranty
against the Guarantor.
(b) The
guaranty hereunder shall be unconditional and absolute and the Guarantor waives
all rights of subrogation and set-off until all sums under this guaranty are
fully paid. The Guarantor further waives all suretyship defenses or defenses
in
the nature thereof, generally.
(c) The
Guarantor warrants and represents it has full authority to enter into this
guaranty.
(d) This
guaranty shall be binding upon and inure to the benefit of the Parties, their
successors, assigns and personal representatives.
(e) This
guaranty shall be construed and enforced under the laws of the State of
California, USA.
9. Survival.
Except
for the amendments specifically set forth above, the terms of the Supply
Agreement shall continue in full force and effect mutatis
mutandis.
10. Miscellaneous.
Each
Party agrees to do such further acts and execute such additional documents
and
instruments as may be necessary to complete the transactions contemplated in
this Amendment, including, without limitation, such further acts that may be
required of Citibank to cancel the Standby Letter of Credit. The Parties agree
that they shall each be entitled to injunctive relief, including, without
limitation, specific performance, to enforce the terms of this Amendment. Except
where the terms of this Amendment conflict with the Supply Agreement, the
“General Provisions” set forth in Section 13 of the Supply Agreement, including,
without limitation, provisions concerning the choice of law and means for
dispute resolution between HOKU and SOLARFUN, shall apply to this Amendment.
In
the event of any conflict between the terms of this Amendment and the Supply
Agreement, the terms of this Amendment shall control.
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IN
WITNESS WHEREOF, the Parties have executed this Amendment No. 1 to Second
Amended & Restated Supply Agreement as of the first date set forth
above.
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SOLARFUN:
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HOKU:
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SOLARFUN
POWER HONG KONG LIMITED
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HOKU
MATERIALS, INC.
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By:
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/s/
Xxxxxx Xxxxxxx
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
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Xxxxxx
Xxxxxxx
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Name:
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Xxxxxx
X. Xxxxxx
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Title:
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Chief
Executive Officer
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Title:
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Chief
Executive Officer
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Authorized
Signatory
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Authorized
Signatory
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GUARANTOR:
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Solarfun
Power Holdings Co., Ltd.
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By:
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/s/
Xxxxxx Xxxxxxx
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Name:
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Xxxxxx
Xxxxxxx
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Title:
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Chief
Executive Officer
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Authorized
Signatory
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