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Exhibit 10.20
CONFIDENTIAL TREATMENT REQUESTED: Certain portions of this document
have been
omitted pursuant to a request for confidential treatment and, where
applicable,
have been marked with an asterisk ("[****]") to denote where
omissions have been
made. The confidential material has been filed separately with the
Securities
and Exchange Commission.
SUPPLY AGREEMENT
This Supply Agreement ("Agreement") is made this 24th day of
November, 2005, by
and between:
SOLAR GRADE SILICON LLC, 3322 Road, "N" N.E., Moses Lake,
Washington 98837, USA
(hereinafter referred to as "SGSIL") and
EVERGREEN SOLAR, INC., a Delaware corporation with its principal
executive
offices located at 138 Bartlett Street, Marlboro, Massachusetts,
USA
(hereinafter referred to as "CUSTOMER" ).
SGSIL and Customer are each sometimes referred to here in as a
"Party" and are
jointly referred to sometimes as the "Parties."
RECITALS
Customer desires to purchase a supply of polycrystalline solar
grade silicon
from SGSIL for its own use in the production of silicon wafers for
solar
application, subject to the terms and conditions set forth
herein.
SGSIL manufactures and sells solar grade polycrystalline silicon
products and is
willing to supply such products to Customer, subject to the terms
and conditions
set forth herein.
Now, therefore, in consideration of the foregoing, SGSIL and
Customer agree as
follows:
1.
DEFINITIONS
"AFFILIATE" shall have the meaning set forth in the Master Joint
Venture
Agreement.
"BLANKET PURCHASE ORDER" shall mean an [****] purchase order of the
amount of
Products Customer will order during a [****], setting forth
delivery dates and
quantities for such Products.
"CHANGE OF CONTROL" shall have the meaning set forth in the Master
Joint Venture
Agreement.
"GOVERNMENTAL AUTHORITY" shall mean any US, or German or Norwegian,
federal,
national, supranational, state, provincial, municipal, local, or
similar
government, governmental, regulatory or administrative authority,
agency or
commission or any court, tribunal, or judicial or arbitral
body.
"MASTER JOINT VENTURE AGREEMENT" shall mean that certain Master
Joint Venture
Agreement by and between Evergreen Solar, Inc., Q-Cells AG and
Renewable Energy
Corporation, dated 24 November 2005.
"PRODUCTS" shall mean the solar grade polycrystalline silicon
products to be
sold pursuant to this Agreement as listed in Attachment 1 and
described in the
Specifications, as may be modified, from time to time by the
Parties in a
written Amendment to this Agreement, signed by both Parties.
"SHARES" shall have the meaning set forth in the Master Joint
Venture Agreement.
"SPECIFICATIONS" shall mean the Product technical specifications
and the other
Product information listed, described or referred to in Attachment
1.
2. PURCHASE OF
PRODUCT.
2.1 SGSIL shall sell
and deliver, and Customer shall purchase, the quantities
of
Products set forth in each Order Confirmation, based on
Customer's
[****] Blanket Purchase Order.
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Customer acknowledges and agrees that if it desires to purchase
additional
Products in excess of its then-current Blanket Purchase Order and,
in any
event, if in excess of the maximum quantities set forth in Section
3, any
such
purchase shall be subject to SGSIL having the relevant free
production
capacity at the time of any such excess order by Customer, and
subject to
the
provisions of Section 8, below.
2.2 Notwithstanding
the fact that Products may be ordered only pursuant to the
issuance of an [****] Blanket Purchase Order, for SGSIL's planning
and
forecasting purposes, Customer agrees to deliver in writing to
SGSIL its
forecasted requirements of Products for the periods and at the
times as
follows:
(i)
The rolling [****]
quantity forecast set forth in Attachment 2 shall
be updated [****] during the Term.
(ii)
The rolling [****] quantity forecast set forth in Attachment 2
shall
be updated [****] during the Term.
2.3 Contemporaneously
with the execution of this Agreement, a Blanket Purchase
Order for [****] in the form of Attachment 4 shall be deemed issued
to
SGSIL in the [****] quantity amount set forth therein (which amount
shall
be
not less than the minimum quantity set forth in Attachment 2),
and
setting forth the [****] delivery dates, commencing in January,
2006, for
the
delivery of the [****] quantity of Products set forth therein in
[****]
quantities. For each subsequent [****] in the Term, Customer shall
issue a
Blanket Purchase Order in similar form, except the [****] quantity
stated
in
such Blanket Purchase Order shall be delivered in [****] deliveries
on
the
delivery dates set forth therein, by not later than [****] of
the
then-current [****]. In the event such an [****] Blanket Purchase
Order is
not
timely issued hereunder for any [****] during the initial [****]
Term,
Customer shall be deemed to have issued a Blanket Purchase Order
for the
corresponding minimum [****] quantity of Products for such year set
forth
in
Attachment 2, to be delivered in [****] shipments by SGSIL.
3.
QUANTITIES.
3.1 Subject to the
minimum quantity of Products to be purchased by Customer
during [****] as specified in Attachment 2, and the maximum
quantities of
Products to be purchased by Customer stated therein, the quantity
of
Products purchased by Customer under this Agreement shall be the
quantities
set
forth in each [****] Blanket Purchase Order issued in accordance
with
Section 2.3. For subsequent years during the term of this
agreement, the
Parties will agree to a minimum and target amount of product to
be
delivered, but in no case will the minimum and target quantities be
less
than
those listed in 2008, unless mutually agreed to by the Parties.
4. PRODUCT
PRICING & PAYMENT TERMS.
4.1 The price of the
Products during the term of this Agreement will be the
lesser of (i) [****] By [****] the Parties mean the [****] All
prices set
forth herein do not include freight, insurance, sales or value
added tax,
customs duties, or like charges which will be billed to Customer if
SGSIL
advances them.
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4.2 In the event the
Parties cannot agree on [****] Product pricing by [****]
of
the immediately preceding calendar year, then Parties shall submit
the
issue to binding determination of the applicable price in
accordance with
Section 4.1, and the price determined by the arbitration shall be
used for
the
Products for such [****]. The determination shall be done by an
expert
on
the solar energy sector, to be appointed [****] and shall follow
such
procedural rules as the Parties agree on with the determinator.
4.3 Customer shall pay
SGSIL the full price, in U.S. dollars, of all Products
purchased under this Agreement by paying SGSIL the balance,
without
deduction, shown on each [****] invoice issued by SGSIL pursuant to
Section
5.7,
by wire transfer in readily available U.S. funds, within [****]
after
the
date of such invoice. Interest shall accrue on overdue invoices
the
lesser of [****] or at the maximum rate permitted by applicable
law. If
Customer fails to timely pay an invoice, SGSIL may, in its sole
and
absolute discretion, demand the balance owed on such invoice
including
accrued interest, and/or may stop future deliveries of Products to
Customer
until Customer pays such delinquent invoice. In addition, in the
event of a
dispute regarding payment of amounts due hereunder, the losing
Party shall
pay
the prevailing Party's reasonable costs and expenses in such
collection
or
defense as the case may be, including reasonable attorneys' fees,
costs
of
expert witnesses, costs of translators and any other collection
cost or
cost
of suit, whether or not an action or proceeding is commenced or
concluded.
5. DELIVERY;
INVOICING.
5.1 Products will be
purchased by Customer through the issuance of [****]
Blanket Purchase Orders and any additional Products in excess of
the
quantities stated in such Blanket Purchase Orders will be purchased
by
Customer at the then-current pricing in effect at the time of such
purchase
order, through the issuance by Customer of a separate purchase
order, which
additional purchase order shall not be effective until the quantity
and
requested delivery date(s) set forth in such additional purchase
order are
accepted and confirmed in writing by SGSIL.
5.2 All Products to be
purchased hereunder, whether pursuant to a Blanket
Purchase Order or an additional purchase order, shall be delivered
FCA from
SGSIL's Washington Distribution Facility in Kent, Washington, USA,
(the
"Washington Distribution Facility") to Customer's facility at the
location
specified by Customer in writing, together with the correct
documentation
and
adequate packing and labeling as set forth in Attachment 1.
5.3 In accordance with
Section 2.3, the initial delivery of Products to be
shipped to Customer pursuant to this Agreement shall be in January,
2006
Product quantity amount set forth in Customer's [****] Blanket
Purchase
Order.
5.4 The Products shall
be deemed delivered by SGSIL to Customer under the
then-current Blanket Purchase Order when transferred to Customer's
chosen
carrier at SGSIL's Washington Distribution Facility in Kent,
Washington, or
such
other shipping point in the United States of America designated
in
writing by SGSIL. Upon any such delivery of Products to Customer,
Customer
shall have purchased that quantity of Products and shall be
obligated to
pay
SGSIL for such Products unless rejected as not conforming to
the
Product Specifications and returned by Customer within [****] of
Customer's
receipt of the Products.
5.5 Title and risk of
loss to the Products shall pass to Customer when SGSIL
delivers the Products to Customer at the Washington Distribution
Facility
in
accordance with the terms set forth in Section 5.4.
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5.6 Any [****] order
of Products pursuant to the then-current Blanket Purchase
Order or any additional order of Products during a [****] in excess
of the
amounts stated therein may be confirmed or issued by Customer, as
the case
may
be, on Customer's usual order acknowledgment form or purchase
order;
provided, however, the provisions of this Agreement shall govern
and
supersede all inconsistent, different, or additional terms,
conditions, and
instructions contained in Customer's order acknowledgment or
purchase order
form
or in any other Customer transactional documentation provided
by
Customer to SGSIL after the effective date of this Agreement.
5.7 Upon SGSIL's
shipment of any order under this Agreement, whether a [****]
delivery under a Blanket Purchase Order or an additional delivery
pursuant
to a
separate purchase order, SGSIL shall in writing, sent
electronically
or
by facsimile transmission, invoice Customer for such order. All
invoices
issued by SGSIL hereunder shall list the date of each shipment,
the
quantity and type of Products shipped to Customer, the unit and
extended
prices of all Products shipped and the total price owed by Customer
for
such
shipment. Upon Customer's receipt of SGSIL's invoice, Customer
is
obligated to pay the amount set forth therein in accordance with
Section
4.3.
5.8 SGSIL shall
exercise its commercially reasonable efforts to manufacture and
deliver from SGSIL's Washington Distribution Facility the Products
ordered
by
Customer under this Agreement, on or before the delivery date or
dates
set
forth in SGSIL's Blanket Purchase Order or additional purchase
order
confirmation. Any such additional purchase order shall be confirmed
by
SGSIL electronically or by
facsimile transmission within [****] of SGSIL's
receipt of any such additional purchase order. However, without
prejudice
to
SGSIL's obligation to exercise its [****] efforts to deliver
the
Products to Customer on any date of delivery given by SGSIL to
Customer,
whether pursuant to an [****] Blanket Purchase Order or a
separate
additional purchase order, SGSIL shall immediately inform Customer
in
writing if any delay is foreseen.
6. WARRANTY AND
LIMITATION OF LIABILITY.
6.1 LIMITED WARRANTY.
SGSIL warrants that, for [****] from the date of
delivery, the Products will conform to SGSIL's published
product
description set forth in the Specifications. If Customer timely
notifies
SGSIL in writing of a nonconformity, upon verification of the
nonconformity, SGSIL, in its sole discretion, shall provide
Customer with
one
of the following remedies: (i) replacement of the Products that
SGSIL
verifies do not conform to this warranty; (ii) retreatment of the
Products
to
bring them into conformity with this warranty; or (iii) issuance of
a
credit to Customer's account to reflect the decrease in value of
the
Products resulting from the non-conformance with this warranty.
The
election of remedies provided in this section shall be SGSIL's
exclusive
obligation with respect to remedying any warranty claims for
Products and
Customer's sole and exclusive remedy for all claims of defects. If
the
remedy chosen by SGSIL in its sole discretion hereunder is
adjudicated to
be
insufficient, including, without limitation, any finding of failure
of
essential purpose, SGSIL shall be entitled to the alternative
remedy of
refunding the price paid by Cu
