Exhibit 10.53
EXECUTION VERSION
CONFIDENTIAL TREATMENT REQUESTED
REDACTED VERSION
AMENDMENT NUMBER 1
TO
SOLAR WAFER SUPPLY
AGREEMENT
This Amendment Number 1 to Solar
Wafer Supply Agreement (this “ Amendment ”) is
entered into as of February 5, 2009, by and between MEMC
SINGAPORE PTE. LTD. , a Singapore corporation (“ MEMC
Singapore ”) and wholly-owned subsidiary of MEMC
ELECTRONIC MATERIALS, INC., a Delaware corporation with its
principal place of business at 501 Pearl Drive (City of
O’Fallon), St. Peters, Missouri 63376, United States of
America, or such other designated majority-owned subsidiary of MEMC
ELECTRONIC MATERIALS, INC. (“ MEMC ”), and
SUNTECH POWER HOLDINGS CO., LTD. , a Cayman Islands company
with its principal place of business at 17-6 Changjiang South Road,
New District, Wuxi, Jiangsu Province 214028, People’s
Republic of China (“ Suntech ”) or its
designated majority-owned subsidiary. MEMC Singapore and Suntech
together shall be referred to as the “ Parties ”
and individually as a “ Party ”.
RECITALS:
WHEREAS, on July 25, 2006, the
Parties entered into that certain Solar Wafer Supply Agreement (the
“ Agreement ”), pursuant to which MEMC agreed to
supply and Suntech agreed to purchase certain quantities of solar
wafers, pursuant to the terms of the Agreement; and
WHEREAS, on January 1, 2007,
pursuant to Section 7.6 of the Agreement, MEMC assigned the
Agreement to its wholly-owned subsidiary, MEMC Singapore;
and
WHEREAS, the Parties hereto wish to
amend the Agreement, as provided herein by this
Amendment:
NOW, THEREFORE, in consideration of
the foregoing and the mutual representations, warranties, covenants
and agreements herein contained, MEMC and Suntech agree as
follows:
ARTICLE I
AMENDMENT TO SELECTED SECTIONS OF
THE AGREEMENT
1.1 Defined Terms .
Capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth in the Agreement.
1.2 Revision of Attachment B to
the Agreement . The Parties have agreed to amend and revise the
price and minimum volumes for Contract Year three (calendar year
2009) only by amending only the Multi Wafer Price and Yearly
Minimum Quantity rows for Contract Year three (calendar year 2009)
on Attachment B to the Agreement as is set forth on
Attachment B-1 to this Amendment.
1.3 Linearity of Suntech’s
2009 Demand . Pursuant to Section 2.2(e) of the Agreement,
Suntech is required to provide twelve month rolling forecasts to
MEMC, and pursuant to Section 2.3 of the Agreement, Suntech is
required to maintain at all times binding purchase orders with MEMC
for at least the next ninety (90) days. As of February 2,
2009,
1
EXECUTION VERSION
CONFIDENTIAL TREATMENT REQUESTED
REDACTED VERSION
Suntech had not met either of these obligations.
As a result, and in connection with this Amendment, the Parties
have agreed to a quarterly minimum demand for Suntech as is set
forth on Attachment B-1 to this Amendment. Complete
compliance by Suntech with the 2009 quarterly minimum demand
provisions of this Section 1.3 and the provisions and minimum
quantities set forth on Attachment B-1 of this Amendment
(which includes ordering and acceptance of the minimum amounts of
wafers set forth on Attachment B-1 ) shall satisfy the 2009
obligations of Suntech pursuant
