Common use of Agreed Minimum Quarterly Commitments Clause in Contracts

Agreed Minimum Quarterly Commitments. (i) Subject to the terms and conditions of this Agreement, Customer agrees to purchase from Supplier, and Supplier agrees to supply and deliver to Customer, the minimum volumes of Products set forth on Exhibit B for that portion of the 2020 calendar year occurring after the Effective Date, which the Parties may modify from time to time in writing to the extent contemplated through Development Plans implemented under the Product Collaboration Agreement or otherwise (the “Agreed Minimum Quarterly Commitments”). Additionally, the Agreed Minimum Quarterly Commitments for the 2021 calendar year shall be provided by Customer on or prior to August 31, 2020 and deemed acceptable by Supplier so long as they are no less than 80% and no greater than 120% of the Agreed Minimum Quarterly Commitments for each cell technology level (i.e., “L3”) for 2020 as set forth in Exhibit B. Similarly, the Agreed Minimum Quarterly Commitments for the portions of the 2022 calendar year included in the Term shall be provided by Customer on or prior to August 31, 2021 and deemed acceptable by Supplier so long as they are no less than 80% and no greater than 120% of the Agreed Minimum Quarterly Commitments for each cell technology level (i.e., “L3”) for 2021 as added to Exhibit B pursuant to this Section 4(a)(i). This determination will be made on a cell technology basis (i.e., Maxeon 2, regardless of whether it is destined for the Residential and Indirect Market Segment or the Direct Market Segment). The final Agreed Minimum Quarterly Commitments for 2021 and 2022 will be finalized, along with the pricing for Products for 2021 and 2022, as contemplated in Section 5(d), and added to Exhibit B by no later than September 30 of the prior calendar year. (ii) In accordance with Exhibit B, by the first Wednesday of each calendar month during the Term, the Parties will have established, by mutual written agreement, (A) the “L6” firm order for each applicable Product for each of the following three months (noting that on a rolling basis, months one and two will have already been established and are not subject to change, each monthly order a “Firm Order”), and (B) the “L4” monthly blanket purchase order for each of the three months following the months described in clause (A) (i.e., months four through six, noting that on a rolling basis, months four and five will have already been established) (each, a “Blanket PO”). Additionally, on a monthly basis, Customer will provide forecasts of its anticipated purchases of Products for each quarter of the Term beyond those already provided in the Firm Orders and Blanket POs to the extent commercially reasonable. Each forecast will be non-binding and used solely for general planning purposes. Examples of the initial Firm Order, Blanket PO, and monthly cadence are attached as part of Exhibit B. (iii) Notwithstanding the foregoing, (A) Firm Orders may not represent more than 38% of the total volume (measured at “L3” in accordance with Exhibit B) to be delivered in the coming three-month period pursuant to Firm Orders (which includes the month in question plus the two prior months for which there are already Firm Orders), and (B) Customer acknowledges that Supplier may no longer be producing E-Series Products for all or part of 2021 and 2022 deliveries and (I) Supplier will not be required to include more than 150 MW of such Product within the final Agreed Quarterly Minimum Commitments for 2021 and (II) with respect to 2022, Supplier will not be required to include such Product within the final Agreed Quarterly Minimum Commitments and the Parties shall use commercially reasonable efforts to agree upon a replacement Product and its pricing by September 30, 2021.