CONTRACT No. 32-000155-01C V
Exhibit
4.28
CONTRACT
No.
32-000155-01C V
made
between
THE
BUYER
Zhejiang
Yuhui Solar Energy Source Co., Ltd (ReneSola)
ADDRESS:
Xx.0 Xxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx
Xxxx,
Xxxxxxx
Xxxxxxx, Xxxxxxxx Xxxxxxxx,
000000
China
Tel: x00
(0)000 0000000
Fax: x00
(0)000 0000000
and
THE
SELLER:
ALD
VACUUM TECHNOLOGIES GmbH
ADDRESS:
Xxxxxxx-Xxxx-Xxxxxxx 00, 00000 Xxxxx, Xxxxxxx
Fax:
00-0000-000-0000
Tel:
00-0000-000-0000
This
contract is made by and between the Buyer and Seller, whereby the Buyer agrees
to buy and the Seller agrees to sell the under mentioned commodity according to
the terms and conditions stipulated below:
1.
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ITEM
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COMMODITIES;
SPECIFICATIONS
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ALL AMOUNTS
in
EUR
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1
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Eighty
(80) Silicon Crystallisation Units Type SCU 400 capable of Melting,
Crystallising, Annealing and Cooling Down of Photovoltaic Grade Silicon
Ingots, scope of supply and service as per Annex 1,
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[****]*
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2
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Spare
Parts Package
-hereafter
referred to as the Equipment or the Goods-
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CIF
Shanghai, China Seaport according to Incoterms 2000.
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Total
Contract Price
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in words:
EUR Forty Million Eight Hundred Thousand only.
2. COUNTRY OF ORIGIN AND
MANUFACTURERS: European Community;
ALD
Vacuum Technologies GmbH, Germany
* This portion has
been omitted and filed separately with the Securities and Exchange Commission
pursuant to Rule 406.
3.
PACKING:
To be
packed in new strong wooden cases and suitable for long distance ocean
transportation and to change of climate, well protected against rough handling,
moisture, rain, corrosion, and shocks. The wooden cases shall be marked with an
IPPC Stamp.
The
Seller shall be liable for any direct damage of the commodity and direct
expenses incurred on account of improper packing and for any rust attributable
to inadequate or improper protective measures taken by the Seller in regard to
the packing.
4.
SHIPPING XXXX
The
Seller shall xxxx on the four adjacent sides of each package with fadeless
painting the package number, gross weight, net weight, measurement, Contract
No., port of destination, consignee code and the wordings “KEEP AWAY FROM
MOISTURE”; “HANDLE WITH CARE”, “THIS SIDE UP”, the lifting position, gravity
centre and the shipping xxxx:
RENESOLA
Contract
00-000000-00 C V
5. TIME OF SHIPMENT (delivery
“on board” European Seaport, i.e. date of Xxxx of Lading):
Under the
condition that the down payment as per Article 9.1 is credited at sellers
account not later than July 30, 2008 and the 1st Letter
of Credit as per Clause 9.2 and 9.4 is received by the Seller not later than
August 15, 2008, the delivery time will be as follows,
1st
Lot:
06 SCU
400 not later than [****]*
02 SCU
400 not later than [****]*
12 SCU
400 not later than [****]*
12 SCU
400 not later than [****]*
16 SCU
400 not later than [****]*
60% of
the Spare Parts Package not later than [****]*
Under the
condition that the down payment as per Article 9.1 is credited at sellers
account not later than July 30, 2008 and the 2nd Letter
of Credit as per Clause 9.3 and 9.4 is received by the Seller not later than
November 30, 2009, the delivery time will be as follows,
2nd
Lot:
16 SCU
400 not later than [****]*
16 SCU
400 not later than [****]*
40% of
the Spare Parts Package not later than [****]*
Earlier
delivery in other sequences is allowed.
In case
of a delay in receipt of the down payment and/or Letter of Credit(s), the time
of delivery is prolonged by an appropriate period.
6 PORT OF SHIPMENT: European
North-Sea Port
* This
portion has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 406.
7 PORT OF DESTINATION:
Shanghai Seaport China
8 TRANSPORT INSURANCE: Under
CIF terms transport insurance for 110 % of the invoice value shall be
arranged by the Seller.
9.
PAYMENT TERMS:
All
payment under this contract from the Buyer to the Seller shall be made via
Industrial and Commercial Bank of China, Zhejiang Branch, Swift BIC:
XXXXXXXXXXX, IID No. 307911, Account No. 1204070009814017930 via Swift
to Seller’s account as follows:
9.1 30%
of the total contract amount, i.e. [****]* –as down payment to be
paid against presentation of a down payment invoice showing the same amount in
favor of ALD’s account no. with Bayerische Hypo und Vereinsbank, Aschaffenburg,
or COMMERZBANK Ffm to be received by seller no later than fifteen (15) calendar
days after coming into force of contract.
9.2 The
Buyer shall open with a first class Chinese Bank the 1st Letter
of Credit to be advised by Seller’s Bank to the Seller not later than 30 days
after coming into force of the contract for [****]*,— representing the value
of 70% of 48 Furnaces i.e. [****]*—plus Spare Parts i.e.
[****]*—representing 70%
of the value of the spare parts of the 1st lot.
The latest date of shipment shall be 9 months from coming into force of the
contract plus 8 weeks.
9.3 The
Buyer shall open with a first class Chinese Bank the 2nd Letter
of Credit to be advised by Seller’s Bank to the Seller not later than 5 months
after coming into force of the contract for [****]*,— representing the value
of 70% of 32 Furnaces i.e. [****]*—plus Spare Parts i.e.
[****]*—representing 70%
of the value of the spare parts. The latest date of shipment shall be 11 months
from coming into force of the contract plus 8
weeks.
:
9.4 The
both Documentary Letters of Credit as per item 9.2 and 9.3 shall irrevocably
opened in favor of the Seller, shall be advised by and payable as Hypo
Vereinsbank, Frankfurt or COMMERZBANK Frankfurt (to be advised by the Seller)
not expiring before the last payment rate has been paid out. Partial shipment
allowed. Period for presentation of documents shall not less than 21 days. The
letters of Credit shall be payable as follows:
70% pro
rata delivery of the partial contract amount for the Furnaces as per 9.3 and
9.4 against Seller’s presentation of :
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Seller’s
commercial invoice signed in 1 original and 4 copies, indicating the
contract no. and shipping xxxx,
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Full
set of 3/3 original clean on board Bills of Lading marked “Freight
pre-paid”, indicating Contract No. and shipping xxxx made out to order and
blank endorsed, notifying the
Buyer,
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-
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Packing
List in 2 originals and 2 copies issued by the Seller with indication of
gross weight, net weight, dimension of each package, number of packages
and content of each package.
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Certificate
of Quality and Quantity issued by the Seller, in one original and two
copies
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Certificate
of Origin in one original and two
copies
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One
copy of fax to the Buyer, advising particulars of shipment within 8
working days after date of B/L is
made
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A
Performance Bond for 5% of the value of the Furnaces of the
respective partial shipment issued by a first class German Bank or
Insurance Institute in favour of the
Buyer
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70% pro
rata delivery of the partial contract amount for Spare Parts against
Seller’s presentation of :
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Seller’s
commercial invoice signed in 1 original and 4 copies, indicating the
contract no. and shipping xxxx,
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Full
set of 3/3 original clean on board Bills of Lading marked “Freight
pre-paid”, indicating Contract No. and shipping xxxx made out to order and
blank endorsed, notifying the
Buyer,
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-
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Packing
List in 2 originals and 2 copies issued by the Seller with indication of
gross weight, net weight, dimension of each package, number of packages
and content of each package.
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Certificate
of Quality and Quantity issued by the Seller, in one original and two
copies
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Certificate
of Origin in one original and two
copies
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One
copy of fax to the Buyer, advising particulars of shipment within 8
working days after date of B/L is
made
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All the
banking charges incurred in China shall be borne by the Buyer while all the
banking charges incurred outside China shall be borne by the
Seller.
10.
SHIPMENT:
Trans
shipment is prohibited. Partial shipments are allowed.
One copy
of fax to the Buyer, advising particulars of shipment within 3 working days
after date of B/L is made as per the stipulations of Clause 11.2.
11.
LATE DELIVERY AND LIQUIDATED DAMAGES:
Should
the Seller fail to make delivery (i.e. shipment on board the vessel as per
Clause 5. above) on time as stipulated in the contract, with exception of Force
Majeure causes specified in Clause 15 of this contract or delays not imputable
to Seller, the Buyer shall agree to postpone the delivery on condition that he
is entitled to claim from Seller Liquidated Damages. After an initial grace
period of 2 weeks, the rate of Liquidated Damages is charged at 0.5% of the
value of the goods being in delay for every complete week of delay. Such
Liquidated Damages, however, shall not exceed 5.0% of the total value of the
Goods involved in the late delivery.
In case
the time of delivery is delayed for more than 4 months for reason solely
attributable to the Seller, the Buyer has the right to terminate the contract
for the furnaces being in such delay. In such a case the Seller has to repay the
down payment received for this furnace(s) and has to pay the respective penalty
to the Buyer.
Further
liabilities of the Seller for delay are excluded.
12
INSPECTION AND TESTING:
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12.1
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The
Seller shall invite the Buyer in time to attend the inspection and testing
procedure in German as described in Chapter 5 of the Annex 2 of the
technical specification for one of the Furnaces produced. The delegation
of the Buyer shall consist of up to 5 persons (including 1 interpreter).
In case the specialist of the Buyer does not attend the testing procedure
the Seller has the right to perform the tests without the presence of the
Buyer.
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12.2
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After
arrival of the goods on Buyer’s site, the Buyer, with the Seller’s
representatives ( if requested by the Seller and if Seller’s
representative arrives in time), has the right to apply to the Beijing
Entry-Exit Inspection and Quarantine (hereinafter referred to as the
Entry-Exit Inspection) for a preliminary inspection in respect of the
quality, specifications and quantity/weight of the goods and a Survey
Report shall be issued therefore. If discrepancies are found by the
Entry-Exit Inspection regarding specifications of the quantity or both,
except when the responsibilities lie with insurance company or shipping
company, the Buyer shall, within 60 days after arrival of the goods on
Buyer’s site, have the right to claim against the
Seller.
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Should
the quality and specifications of the goods be not in conformity with contract
or should the goods prove defective within the warranty period stipulated in
Clause 13 for any reason imputable to Seller, the Buyer shall arrange for a
survey to be carried out by the Entry-Exit Inspection and have the right to
claim against the Seller on the strength of the Survey Report.
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12.3
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Final
acceptance testing of the Furnaces shall be carried out as per Chapter 7
of Annex 2. Final acceptance shall take place for each of the delivered
furnace independently.
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13 SHIPPING
ADVICE:
The
Seller shall, within 3 working days after B/L-date, advise the Buyer by fax of
the Contract No., commodity, quantity, number of package, invoiced value, gross
weight, name of vessel, date of B/L and B/L- number, and estimated date of
arrival etc.
14 WARRANTY
AND QUALITY:
Seller
warrants that the equipment will be constructed in a workmanlike manner, that it
is free from defects in material and manufacture and that, at the xxxx Xxxxxx
tenders delivery at the destination point, it will conform substantially to the
Specifications and Designs.
If within
12 months after this first start-up at Buyer’s site or within 16 months from FOB
delivery or notification that the equipment is ready for dispatch, whichever is
earlier, any item of the equipment proves to be defective by reason of wrong
choice of material, bad workmanship or faulty design, and such reasons are
attributable to Seller, Seller at his choice and expense, and upon Buyer’s
prompt written notice - which is to be given at the latest within fourteen
(14) days from the discovery of such defect - shall replace the defective
item by a new one or repair it within a reasonable time after receipt of buyer’s
notice, but not more than 3 months unless a special situation is verified, the
parties will reach another agreement in regard of time.
Provided
a claim by the Buyer is received by the Seller in writing during the Seller’s
office hours (Monday to Friday) the Seller shall respond in writing within the
following 2 working days and will manage to work out a suitable solution with
the Buyer.
It is
agreed and understood that the warranty period starts and end of each of the
delivered furnaces independently.
It is
clearly understood that Seller’s responsibility for parts fabricated locally and
/ or bought by Buyer according to Seller’s engineering instructions is limited
to the submitted design and engineering.
Seller’s
warranty does not cover parts which are subject to normal wear and tear as well
as damages due to improper or negligent handling of equipment or due to
deviations from Seller’s operating instructions.
The
foregoing warranties are definite and Seller makes no other warranties with
respect to the equipment, expressed or implied, including no warranty of
merchantability or of fitness for a particular purpose.
15 FORCE
MAJEURE:
The
contract parties shall be released from liability for partial or complete
non-fulfilment of their obligations hereunder if due to Acts of God/Force
Majeure, including but not limited to war, fire, flood, typhoon, earthquake,
strike, embargo or governmental acts or interference’s. In such an event, the
contract party suffering from such event shall promptly notify the other
contract party in writing of the beginning and cessation of the circumstances
preventing performance, and the time for fulfilment of the contractual
obligations shall be extended for a period of time equal to that during which
such circumstances have lasted, or for such other reasonable period as the
contract parties may agree upon. In addition, within fourteen days after the
party’s notification of a Force Majeure event, such party shall send by airmail
to the other party a certificate issued by the Competent Government Authorities
or Chamber of Commerce where the event occurs as evidence thereof.
Should
the Force Majeure period exceed 40 consecutive weeks, either contract party
shall have the right to cancel the contract. No liability or penalty shall be
imposed on the party suffering from such an event for damages of any kind
incurred or sustained by the other party from delays in the performance of this
contract for the reasons stated above.
16 ARBITRATION:
All
disputes in connection with this contract or the execution thereof shall be
settled through friendly negotiations. In case no settlement can be reached, the
case may then be submitted for arbitration in Stockholm in accordance with the
arbitral rules promulgated by the Arbitration Commission (ICC, Paris rules). The
arbitration shall take place in Stockholm, Sweden and the decision of the
Arbitration Commission shall be final and binding upon both parties; neither
party shall seek recourse to a law court nor other authorities to appeal for
revision of the decision. Or the arbitration may be settled in a third country
mutually agreed upon by both parties. Arbitration fee shall be borne by the
losing party. The contract shall be governed by the substantive law of
Sweden.
17
EFFECTIVENESS OF CONTRACT:
This
contract shall become effective upon
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Signature
of this Contract by both parties.
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Should
the Seller not having received
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l
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the down payment by July 30, 2008
and/or
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the 1st L/C(s) by August 5, 2008
and/or
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the 2nd L/C by November 30,
2008.
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The
Seller has the right to adjust the prices and/or to prolong the delivery time(s)
as per Article 5 and related dates for a period of time to be advised by the
Seller.
In case
the contract is not into force on or before September 1st 2008,
the Seller has right to declare this document as invalid.
18. TAXES AND
DUTIES
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18.1
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All
taxes in connection with the execution of this contract levied by the
Chinese Government on the Buyer in accordance with the tax laws in effect
shall be borne by the Buyer.
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18.2
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All
taxes arising outside of China in connection with the execution of this
contract shall be borne by the
Seller.
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19 GENERAL
LIABILITY:
Liability
for damage to persons or property is accepted by the Seller only to the extent
covered by the existing insurance (third party liability insurance) concluded by
the Seller. This third party liability insurance for any one insured event and
annual aggregate shall provide insurance cover up to a limit of € 10.000.000,—
for bodily injury and property damage.
Any
liability by Seller for consequential damages, loss of profit, or any other
indirect losses or damages is expressly excluded, to the extent that the Seller
does not infringe on compulsory law.
20 PASSAGE
OF RISK
The risk
of loss passes to the Buyer according to the provisions of the Incoterms 2000,
applicable for the delivery condition as stipulated in this
contract.
21
PASSING OF TITLE
The
Seller reserves the right of ownership for all deliveries made and services
rendered under the contract until payment of the contract price has been made in
full by the BUYER.
The Buyer
shall co-operate in any measures necessary for the protection of Buyer’s title,
in particular reservation of title in the required form in public registers or
similar records, all in accordance with relevant laws.
22 SECRECY
The
Secrecy Agreement signed on September 29, 2006 shall apply to all
information exchanged under this contract.
23
APPENDICES
The
following Appendices form an integral part of this contract:
Annex
1 price sheet
Annex 2
Technical Specification No. SCU 400 No. 32- 0002155-01 Rev A
Annex 3
Draft of the Performance Bond.
IN
WITNESS THEREOF, this contract is signed by all parties in two original copies,
each party holds one copy. The Appendices of this contract shall be an integral
part of the contract and have the same validity as the contract. In case of any
discrepancies, the wording of this contract shall govern. Attached to the
contract or integrated into it might be a Chinese translation of the contract
language. This translation is for reference only and in any case the English
version shall govern.
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THE
BUYER:
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THE
SELLER:
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Zhejiang
Yuhui Solar Energy Source Co., Ltd
(ReneSola)
Xx.0
Xxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxx
Xxxx,
Xxxxxxx Country, Xxxxxxxx Xxxxxxxx, 000000
Xxxxx
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ALD
VACUUM TECHNOLOGIES GmbH
Xxxxxxx
Xxxx Xxx. 00
00000
Xxxxx, Xxxxxxx
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/s/
Xxxx Xxx
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/s/
Xxxxxx Xxxx
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Xx.
Xxxx Xxx COO and General Manager
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ppa.
Xxxxxx Xxxx
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July 15,
2008 July
15, 2008
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ALD
Vacuum Technologies GmbH
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Annex
1 to Contract CV
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PRICE
SHEET
00-000000-00
C V
for
Eighty
(80) Silicon Crystallisation Units
Type
SCU 400
Capable
of Melting, Crystallising, Annealing and Cooling Down of Photovoltaic
Grade
Silicon
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ALD
Vacuum Technologies GmbH
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Annex
1 to Contract CV
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1.
Price for SCU 400
1.1 The price for Eighty (80) SCU
400
as per
scope of supply defined in Chapter 3 of
Technical
Specification No. 00-000000-00 C V amounts to
([****]*,—for each
furnace) [****]*,
The steel
structure as per item 3.12 of Annex 2 for the eight furnaces shall be
manufactured and delivered by the Buyer. The Seller shall provide the basic
engineering for this steel structure.
1.2
The price for
Supervision
as
defined in Chapter of
Technical
Specification No. 00-000000-00 C V (Annex 2)
One
Hundred and Twenty (120) man weeks included in Position 1.1. and
1.2.
1.3 Spare
parts
1.3.1
Spare parts package to be selected by
the customer [****]*
1.3.2
15 (fifteen) Set of Top-and Bottom
heater
Each
consisting of: Heating Rods and Connecting
tubes [****]*
Total contract value CIF Shanghai
according to INCOTERMS
2000 [****]*
* This portion has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406.
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ALD
Vacuum Technologies GmbH
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Annex
2 to Contract CV
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TECHNICAL
SPECIFICATION
00-000000-000
For
Silicon
Crystallisation Unit
Type SCU
400
Capable
of Melting, Crystallising, Annealing and Cooling Down
of
Photovoltaic Grade Silicon
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Customer:
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Xxxx
Xxxx
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XX.0
Xxxxxx Xxxx
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Xxx
Xxxxxx
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Xxxxxxx,
Xxxxxxxx Xxxxxxxx
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000000
CHINA
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Phone: 0000 000
0000
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Fax:
0000 000 0000
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Proposed
by:
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ALD
Vacuum Technologies GmbH
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Xxxxxxx-Xxxx-Xxx.
00
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X-00000
Xxxxx
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Contact
partner sales:
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Xx.
Xxxxxxx Xxxxxxx
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Phone: x(00) 0000-000-0000
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Fax:
x(00) 0000-000-0000
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E-Mail:
xxxxxxx.xxxxxxx@xxx-xx.xx
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Representative
I
Local Office:
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C
& K Development Co. Ltd.
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0000,
Xxxxxxxxx Xxxxxxxx, Xxxxx
1
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18 Jianguomennai
Avenue
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Beijing
-100005
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P. R.
China
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Contact:
Xx. Xxx Zhaoyu
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Phone:
x00-00-00000000
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Fax:
x00-00-00000000
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Date
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June
11th ,
2008
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ALD
Vacuum Technologies GmbH
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Annex
2 to Contract CV
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[****]*
* This portion has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406.
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ALD
Vacuum Technologies GmbH
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Annex
3 to Contract CV
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To:
Zhejiang
Yuhui Solar Energy Source Co., Ltd (ReneSola)
ADDRESS..
XX.0 Xxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx
Xxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxxx
000000
China
PERFORMANCE
BOND NO.
We have
been informed that our customer, ALD Vacuum Technologies XxxX, Xxxxxxx-Xxxx Xxx.
00, D¬63450 Hanau, hereinafter called the SELLER, and your goodselves
-hereinafter called BUYER -have entered into a contract concerning the supply
of
Eighty
(80) Silicon Crystallisation Units Type SCU 400 capable of Melting,
Crystallising, Annealing and Cooling Down of Photovoltaic Grade Silicon Ingots,
hereinafter called MACHINE(S),
in the
total value of EUR………………………for the MACHINE(S) plus Spare Parts amounting to
€……………………… i.e. the total contract value is €……………………
The Value
of this partial shipment for MACHINES no….. to…… amounts to €………………… (i.e.
€…………… per MACHINE)
In
accordance with the payment conditions agreed upon, a payment amounting to
....... % of the value of the partial shipment for the MACHINES i.e. EUR
……………will be made by you to the SELLER against a guarantee in your favour,
amounting to 5 % of the value of the partial shipment for the MACHINE(S) i.e.
EUR ……………
In
consideration of the aforesaid, we…………… , (Issuing Institute), hereby undertake
to repay to you any sum you may claim from us but not exceeding the amount of
EUR…………… ,—within 30 days after receipt of your first demand in writing wherein
you declare simultaneously that the SELLER failed to comply with obligations
regarding HIe acceptance of tile MACHINE for reasons for which he is
responsible. Any claim for payment under this guarantee has to be presented to
us, together with this document, through a first-class bank which has to confirm
to us the authenticity of the signature on your written demand.
It is a
condition for claims and payment under this guarantee to be made that the
payment in the sum of EUR…………… (value of this partial shipment) has been
received by (Name of the Bank) at the account…………… without reserve in favour of
the SELLER.
Our
liability under this guarantee will expire pro rata acceptance of each MACHINE,
to be proven by SELLER through presentation to us of copie(s) of individual
acceptance protocols for each of the MACHINES or latest 4 months after the
respective date of Xxxx of Lading. A copy of the Xxxx of Lading along with a
copy of the respective invoice has to be presented to us by the SELLER which
constitute sufficient proof for the pro rata expiration of the guarantee by
us.
Our
liability under this guarantee will expire automatically 4 months from the date
of Xxxx of Lading latest however on ………… Any claim under it must be received by
us by that date.
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ALD
Vacuum Technologies GmbH
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Annex 3
to Contract CV
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This
guarantee is to be returned to us as soon as it is no longer required, or its
validity has expired whichever is earlier.
…………………………………….
Signature
of the issuing Insitut
