Unassociated Document


    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 (813) 604-7181, 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 alex.vanderpol@solarfun.com.cn,
      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.

    


     

     

      
        	
                SOLARFUN:

              	 	
                HOKU:

              
	 	 	 	 
	
                SOLARFUN
                  POWER HONG KONG LIMITED

              	 	
                HOKU
                  MATERIALS, INC.

              
	 	 	 	 	 
	
                By:

              	
                /s/
                  Harold Hoskens

              	 	
                By:

              	
                /s/
                  Dustin M. Shindo

              
	 	 	 	 	 
	
                Name:

              	
                Harold
                  Hoskens

              	 	
                Name:

              	
                Dustin
                  M. Shindo

              
	 	 	 	 	 
	
                Title:

              	
                Chief
                  Executive Officer

              	 	
                Title:

              	
                Chief
                  Executive Officer

              
	
                Authorized
                  Signatory

              	 	
                Authorized
                  Signatory

              
	 	 	 	 	 
	
                GUARANTOR:

              	 	 	 
	 	 	 	 	 
	
                Solarfun
                  Power Holdings Co., Ltd.

              	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	
                By:

              	
                /s/
                  Harold Hoskens

              	 	 	 
	 	 	 	 	 
	
                Name:

              	
                Harold
                  Hoskens

              	 	 	 
	 	 	 	 	 
	
                Title:

              	
                Chief
                  Executive Officer

              	 	 	 
	
                Authorized
                  Signatory

              	 	 	 


      

    

    


     


    
      
         

      

      
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