Q-Cells And LDK Solar In Silicon Dispute
Q-Cells SE has terminated the agreement concluded in December 2007 with the Chinese solar company LDK Solar for the supply of solar wafers, as LDK Solar did not fulfil significant contractual obligations. The original agreement specified the supply of solar wafers on the basis of a contractually fixed amount of silicon totalling 43,000 tonnes for the years from 2009 to 2018, with wafer supplies on the basis of approximately 1,000 tonnes of silicon relating to 2009. At the beginning of 2008, Q-Cells made a payment of USD 244.5 million in the context of this agreement. This payment can be reclaimed in the event of termination of the agreement and is secured by a bank guarantee at a German bank upon first demand.
The contractual parties have differing opinions concerning the validity of the termination of the agreement. Direct discussions between the two companies and a parallel arbitration process at the International Chamber of Commerce (ICC) in Paris have not resulted in an amicable settlement yet. An application by LDK Solar for a temporary injunction to be issued against a drawing down of the bank guarantee was refused by the District Court in Berlin. Q-Cells will therefore make use of the possibility to draw down the bank guarantee linked to the payment made.
LDK Solar commented on Q-Cells SE's announcement and vigorously disagrees
with Q-Cells' claims. During rounds of discussions and negotiations, LDK Solar has clearly stated to Q-Cells that it has not only procured feed stock for the manufacturing of the solar wafers under the contract, but has also manufactured the requisite quantities of the solar wafers ready for shipment to Q-Cells at its indication of willingness to accept. LDK Solar made deliveries during the first quarter of 2009 pursuant to purchase orders of Q-Cells under the supply agreement. Subsequent to March 2009, LDK Solar suspended deliveries at the request of Q-Cells in order to engage in various negotiations with Q-Cells in the interest of reaching a mutually agreeable amendment to the supply agreement. During the negotiation process, Q-Cells unilaterally claimed, and has now publicly announced, the termination of the agreement. LDK Solar believes this termination is without any valid basis.
The supply agreement provides for LDK Solar to supply solar wafers to Q-Cells on the basis of contractually fixed amounts of polysilicon totaling 43,000 metric tons for the years from 2009 to 2018, with annual wafer supply quantity for 2009 set at 1,000 metric tons at fixed prices under the supply agreement. At the beginning of 2008, Q-Cells made a prepayment of $244.5 million pursuant to the supply agreement. LDK Solar has also provided a bank guarantee in the same aggregate amount to guarantee the performance of its obligations relating to such prepayment under the supply agreement. LDK Solar firmly believes that it has performed substantially on all of its obligations under the supply agreement, and is ready to perform the additional obligations under the agreement that are currently contingent upon cooperation of Q-Cells, such as its willingness to accept the additional deliveries of LDK Solar's solar wafers pursuant to the supply agreement.
Q-Cells has indicated in its announcement that it may draw down from LDK Solar's bank guarantee, and LDK Solar believes that such drawdown, if made, constitutes a wrongful drawdown under the supply agreement and violates the purpose of such bank guarantee. While the Regional Court of Berlin, in preliminary proceedings LDK Solar instituted in August 2009, initially prohibited Q-Cells from drawing down from LDK Solar's bank guarantee, it subsequently lifted the injunction in view of the nature and purpose of a bank guarantee, without deciding whether the termination by Q-Cells was valid and instead leaving the issue to be determined in the arbitration proceedings.
LDK Solar intends to vigorously defend its rights and interests as a result of Q-Cells' wrongful termination of the supply agreement, breach of the supply agreement and wrongful drawdown from our bank guarantee, including the contractually provided arbitration yet to start at the International Chamber of Commerce.
