EX-10.5






Exhibit 10.5




EXECUTION COPY




GUARANTEE




8 SEPTEMBER 2009




by




FIRST SOLAR HOLDINGS GMBH

FIRST SOLAR GMBH

FIRST SOLAR MANUFACTURING GMBH

as German Guarantors




in favour of




JPMORGAN CHASE BANK, N.A.

as Administrative Agent




and




OTHER SECURED PARTIES




Allen & Overy LLP




 









 





CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	Clause    	 	 	 	 	 	 
	 
	1.

	 	Definitions and Interpretation
	 	 	2	 
	2.

	 	Guarantee (Garantie)
	 	 	4	 
	3.

	 	Protective Provisions
	 	 	5	 
	4.

	 	Representations and Warranties
	 	 	7	 
	5.

	 	Payments
	 	 	7	 
	6.

	 	Costs
	 	 	7	 
	7.

	 	Limitation on Enforcement
	 	 	8	 
	8.

	 	Additional German Guarantors
	 	 	11	 
	9.

	 	Miscellaneous
	 	 	11	 
	10.

	 	Notices
	 	 	12	 
	11.

	 	Applicable law; Jurisdiction
	 	 	14	 






	 	 	 	 	 	 	 
	Schedule	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	1.

	 	Additional German Guarantor Accession Agreement
	 	 	15	 
	 
	Signatories

	 	
	 	 	16	 






 









 







	 	 	THIS GUARANTEE (the Guarantee) is made on 8 September 2009
	 
	 	 	BY:
	 
	(1)	 	FIRST SOLAR MANUFACTURING GMBH a limited liability company (Gesellschaft mit beschränkter
Haftung) organised under the laws of the Federal Republic of Germany, registered in the
commercial register (Handelsregister) of the local court (Amtsgericht) of Frankfurt (Oder),
Germany, under registration number HRB 11116 as assignor
	 
	 	 	(First Solar Manufacturing GmbH);
	 
	(2)	 	FIRST SOLAR HOLDINGS GMBH, a limited liability company (Gesellschaft mit beschränkter
Haftung) organised under the laws of the Federal Republic of Germany, registered in the
commercial register (Handelsregister) of the local court (Amtsgericht) of Mainz, Germany,
under registration number HRB 40090,
	 
	 	 	(First Solar Holdings GmbH); and
	 
	(3)	 	FIRST SOLAR GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung)
organised under the laws of the Federal Republic of Germany, registered in the commercial
register (Handelsregister) of the local court (Amtsgericht) of Mainz, Germany, under
registration number HRB 8855,
	 
	 	 	(First Solar GmbH),
	 
	 	 	in favour of:
	 
	(1)	 	JPMORGAN CHASE BANK, N.A., , a banking association organised under the laws of the United
States with its main office at 1111 Polaris Parkway, Columbus, Ohio 43240, U.S.A. acting
through its London Branch, at 125 London Wall, London EC2Y 5AJ as assignee and administrative
agent and trustee for the other Secured Parties (as defined below) (the Administrative Agent);
	 
	 	 	and
	 
	(2)	 	the other SECURED PARTIES (as defined below).
	 
	 	 	First Solar Manufacturing GmbH, First Solar Holdings GmbH and First Solar GmbH are
hereinafter individually referred to as an Original German Guarantor and collectively
referred to as the Original German Guarantors.
	 
	 	 	The German Guarantors (as defined below), the Administrative Agent and the other Secured
Parties (as defined below) are hereinafter collectively referred to as the Parties.
	 
	 	 	WHEREAS:
	 
	(A)	 	First Solar Inc. as company (the Company) and, amongst others, First Solar Manufacturing GmbH
as borrower entered into a New York law governed US$300,000,000 credit agreement dated 4
September 2009 (the Credit Agreement) with the Administrative Agent and certain credit
institutions as original lenders together with each new lender supplement, and assignment and
assumption agreement relating thereto and any and each other agreement or instrument amending,
modifying, extending, restating or supplementing it from time to time and providing for up to
US$100,000,000 additional Incremental Facilities (as defined below).




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	(B)	 	The Company entered into a New York law governed guarantee and collateral agreement in favour
of, amongst others, the Administrative Agent dated 4 September 2009 (the Guarantee and
Collateral Agreement) pursuant to which, inter alia, certain subsidiaries of the Company
guaranteed prompt and complete payment of the Company’s obligations under, inter alia, the
Credit Agreement.
	 
	(C)	 	It is a condition to the Lenders (as defined in the Credit Agreement) making the credit
facilities available to the Borrowers (as defined in the Credit Agreement) that the German
Guarantors enter into this Guarantee.
	 
	 	 	IT IS AGREED as follows:
	 
	1.	 	DEFINITIONS AND INTERPRETATION
	 
	1.1	 	Definitions
	 
	 	 	In this Agreement:
	 
	 	 	Additional German Guarantor shall have the meaning ascribed to that term in Clause 8
(Additional German Guarantors) below.
	 
	 	 	Affiliate shall have the meaning ascribed to that term in the Credit Agreement.
	 
	 	 	Agent means:






	 	(a)	 	the Syndication Agent;
	 
	 	(b)	 	the Documentation Agent; and
	 
	 	(c)	 	the Administrative Agent.






	 	 	Borrower shall have the meaning ascribed to that term in the Credit Agreement.
	 
	 	 	Borrowing Subsidiaries Obligations shall have the meaning ascribed to that term in the
Guarantee and Collateral Agreement.
	 
	 	 	Borrowing Subsidiary shall have the meaning ascribed to that term in the Credit Agreement.
	 
	 	 	Business Day means a day (other than a Saturday or Sunday) on which banks are open for
general business in Frankfurt am Main, Germany.
	 
	 	 	Company Obligation shall have the meaning ascribed to that term in the Guarantee and
Collateral Agreement.
	 
	 	 	Documentation Agent means The Royal Bank of Scotland plc.
	 
	 	 	German Borrower means First Solar Manufacturing GmbH or any other person or entity that is
organised under the laws of the Federal Republic of Germany that becomes a Borrowing
Subsidiary under or in connection with the Credit Agreement.
	 
	 	 	German Guarantor means any Original German Guarantor and any Additional German Guarantor.
	 
	 	 	German Obligor means the German Borrower or any German Guarantor.




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	 	 	German Subsidiary Obligations means the collective reference to the unpaid principal of and
interest on the Loans and Reimbursement Obligations and all other obligations and
liabilities of the German Borrower,






	 	(a)	 	including, without limitation any obligation or liability of the German
Borrower for any damage claim or claims resulting from unjust enrichment (or any
equivalent in any jurisdiction) in connection with any cost, loss or liability incurred
by any of the Secured Parties, if any of such obligations or liabilities of the German
Borrower under or in connection with the Credit Agreement and/or any other Loan
Document becomes unenforceable, invalid or illegal; and further
	 
	 	(b)	 	including, without limitation, interest accruing at the then applicable rate
provided in the Credit Agreement after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in the Credit
Agreement after the filing of any petition for commencement of insolvency proceedings,
or the commencement of any insolvency, reorganization or like proceeding, relating to
the German Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding),






	 	 	to the Administrative Agent or any Lender (or, in the case of any Specified Swap Agreement,
any Affiliate of any Lender) or any other Secured Party, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, the Credit Agreement, this Guarantee, the
other Loan Documents, any Letter of Credit, any Specified Swap Agreement or any other
document made, delivered or given in connection with any of the foregoing, in each case
whether on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent or to the Lenders that are required to be paid by the
German Borrower pursuant to the terms of any of the foregoing agreements).
	 
	 	 	Guarantor Obligation shall have the meaning ascribed to that term in the Guarantee and
Collateral Agreement.
	 
	 	 	Incremental Facility means an incremental facility provided or to be provided by a Lender
subject to and under the terms of the Credit Agreement in an aggregate amount of up to
US$100,000,000.
	 
	 	 	Lender shall have the meaning ascribed to that term in the Credit Agreement.
	 
	 	 	Letter of Credit shall have the meaning ascribed to that term in the Credit Agreement.
	 
	 	 	Loan shall have the meaning ascribed to that term in the Credit Agreement, including
(without limitation) any Incremental Facility.
	 
	 	 	Loan Document shall have the meaning ascribed to that term in the Credit Agreement.
	 
	 	 	Loan Party shall have the meaning ascribed to that term in the Credit Agreement.
	 
	 	 	Material Adverse Effect shall have the meaning ascribed to that term in the Credit
Agreement.
	 
	 	 	Person means an individual, partnership, corporation, limited liability company, business
trust, joint stock company, trust, unincorporated association, joint venture, any
governmental authority or other entity of whatever nature.
	 
	 	 	Reimbursement Obligation shall have the meaning ascribed to that term in the Credit
Agreement.




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	 	 	Secured Party means an Agent, the Lenders, any Affiliate of a Lender and the Issuing Lender
and any Swap Counterparty to which Company Obligations, Borrowing Subsidiaries Obligations
or Guarantor Obligations are owed.
	 
	 	 	Specified Swap Agreement shall have the meaning ascribed to that term in the Credit
Agreement.
	 
	 	 	Subsidiary means as to any Person, a corporation, partnership, limited liability company or
other entity of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power only by reason
of the happening of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. And unless otherwise qualified, all references to a
“Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
	 
	 	 	Swap Counterparty means any party to a Specified Swap Agreement.

	 
	 	 	Syndication Agent means Credit Suisse, Cayman Islands Branch.

	 
	1.2	 	 Interpretation






	 	(a)	 	Where the context so admits, the singular includes the plural and vice versa.
	 
	 	(b)	 	The headings in this Guarantee are for convenience only and are to be ignored
in construing this Guarantee.
	 
	 	(c)	 	Any reference in this Guarantee to a defined document is a reference to that
defined document as amended, varied, novated or supplemented from time to time.
	 
	 	(d)	 	Any reference to a Party or other person (including any Guarantor or Borrower
or the German Borrower or any Loan Party and any Secured Party) includes its respective
successor(s) in law (including any universal successor (Gesamtrechtsnachfolger) of that
person by way of merger (Verschmelzung), any other reorganisation contemplated in the
German Transformation Act (Umwandlungsgesetz) or otherwise) and any assign(s) and
transferee(s) of that person and, to the extent legally possible, any legal provision
to the contrary is waived.
	 
	 	(e)	 	Unless otherwise defined herein or unless the context otherwise requires, terms
defined or referred to in the Credit Agreement and/or the Guarantee and Collateral
Agreement shall have the same meaning when used herein. In case of any discrepancy,
the Credit Agreement shall prevail.






	2.	 	GUARANTEE (GARANTIE)
	 
	 	 	Each German Guarantor irrevocably and unconditionally jointly and severally
(gesamtschuldnerisch) guarantees (garantiert) by way of an independent payment obligation
(selbständiges Zahlungsversprechen) to each Secured Party to pay to that Secured Party
within 5 (five) Business Days of receipt by it of a written demand by a Secured Party (or
the Administrative Agent on its behalf) the amount of principal, interest, costs, expenses
or other amounts demanded in such demand letter, which shall state that the sum demanded by
such Secured Party under or in connection with any German Subsidiary Obligation has not been
fully and irrevocably paid by a German Borrower.




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	3.	 	PROTECTIVE PROVISIONS
	 
	3.1	 	Continuing and independent guarantee
	 
	 	 	This guarantee is independent and separate from the obligations of any Borrower and is a
continuing guarantee which will extend and include any and all sums owing by any German
Borrower under the Loan Documents, regardless of any intermediate payment or discharge in
whole or in part.
	 
	 	 	The guarantee shall extend to any additional obligations of a German Borrower resulting from
any amendment, novation, supplement, extension, restatement or replacement of any Loan
Document, including without limitation any extension of or increase in any facility or
interest or the addition of any new facility under any Loan Document.
	 
	3.2	 	Reinstatement
	 
	 	 	If any payment made to or any discharge given by any German Obligor made to a Secured Party
(whether in respect of the obligations of a Loan Party or any security for those obligations
or otherwise) is avoided or reduced as a result of insolvency or any similar event:






	 	(a)	 	the liability of each German Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
	 
	 	(b)	 	each Secured Party shall be entitled to recover the value or amount of that
security or payment from each German Obligor, as if the payment, discharge, avoidance
or reduction had not occurred.






	3.3	 	No defences






	 	(a)	 	The obligations of each German Guarantor under Clause 2 will not be affected by
an act, omission, matter or thing which relates to the principal obligation (or
purported obligation) of any German Borrower and which would reduce, release or
prejudice any of its obligations under this Clause 2, including without limitation any
personal defences of any German Borrower (Einreden des Hauptschuldners) or any right of
revocation (Anfechtung) or set-off (Aufrechnung) of any German Borrower. Set-off may,
however, affect the obligations of a German Guarantor, if such relevant German
Guarantor is in the position to discharge its obligations under this Guarantee by way
of set-off with claims which are undisputed (unbestritten) by the Secured Parties or
which have been the subject of a final court judgment (rechtskräftig) vis-à-vis the
Secured Parties.
	 
	 	(b)	 	The obligations of each German Guarantor under this Clause 2 are independent
from any other security or guarantee which may have been or will be given to the
Secured Parties. In particular, the obligations of each German Guarantor under this
Clause 2 will not be affected by any of the following:






	 	(i)	 	a release or any deferral (Stundung), waiver or consent granted
to any other Loan Party from or in respect of its obligations under or in
connection with any Loan Document, unless the relevant amount requested from a
German Guarantor under this Guarantee relates to an amount owed by the German
Borrower for which such release, deferral, waiver or consent has been granted,
made or given.;
	 
	 	(ii)	 	the taking, variation, compromise, exchange, renewal or release
of or refusal or neglect to perfect, take up or enforce any rights against or
security over assets of,




5









 






	 	 	 	any Loan Party or any other person or any failure to realise the full value of any
security;
	 
	 	(iii)	 	any incapacity or lack of power, authority or legal personality,
dissolution or a deterioration of the financial condition of any other Loan
Party; or
	 
	 	(iv)	 	any unenforceability, illegality or invalidity of any obligation
of any other Loan Party under any Loan Document.






	 	 	For the avoidance of doubt this guarantee does not constitute a guarantee upon first demand
(Garantie auf erstes Anfordern) and nothing in this Clause 2 shall preclude any defences
that any German Guarantor (in its capacity as guarantor only) may have against a Secured
Party that the guarantee does not constitute its legal, valid, binding or enforceable
obligations.
	 
	3.4	 	Immediate recourse
	 
	 	 	No Secured Party will be required to proceed against or enforce any other rights or security
or claim payment from any person before claiming from that German Guarantor under Clause 2.
This applies irrespective of any provision of a Loan Document to the contrary.
	 
	3.5	 	Appropriations
	 
	 	 	Until all amounts which may be or become payable by the German Obligors under or in
connection with the Loan Documents have been irrevocably paid in full, each Secured Party
may:






	 	(a)	 	refrain from applying or enforcing any other moneys, security or rights held or
received by that Secured Party in respect of those amounts, or apply and enforce the
same in such manner and order as it sees fit (whether against those amounts or
otherwise) and no German Guarantor shall be entitled to the benefit of the same; and
	 
	 	(b)	 	hold in an interest-bearing suspense account any moneys received from any
German Guarantor or on account of any German Guarantor’s liability under Clause 2.






	3.6	 	Deferral of German Guarantors’ rights
	 
	 	 	Until all amounts which may be or become payable by the German Obligors under or in
connection with the Loan Documents have been irrevocably paid in full, unless the
Administrative Agent otherwise directs, no German Guarantor will — unless permitted under
the Credit Agreement or any other Loan Document — exercise any rights which it may have by
reason of performance by it of its obligations under the Loan Documents:






	 	(a)	 	to be indemnified by a Loan Party;
	 
	 	(b)	 	to claim any contribution from any other guarantor of any Loan Party’s
obligations under the Loan Documents; and/or
	 
	 	(c)	 	to take the benefit (in whole or in part and whether by way of legal
subrogation or otherwise) of any rights of the Secured Parties under the Loan Documents
or of any other guarantee or security taken pursuant to, or in connection with, the
Loan Documents by any German Obligor.






	 	 	Unless the Administrative Agent otherwise directs, if a German Guarantor receives any
benefit, payment or distribution in relation to such rights other than in accordance with
the Credit Agreement




6









 






	 	 	or any other Loan Document, it shall hold that benefit, payment or
distribution to the extent necessary to enable all amounts which may be or become payable to
the Secured Parties by a German Borrower under or in connection with the Loan Documents to
be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the
same to the Administrative Agent or as the
Administrative Agent may direct for application in accordance with the terms of this
Guarantee and the Credit Agreement.
	 
	3.7	 	Additional security
	 
	 	 	This Guarantee is in addition to and is not in any way prejudiced by any other guarantee or
security now or subsequently held by any Secured Party.
	 
	4.	 	REPRESENTATIONS AND WARRANTIES
	 
	 	 	The representations and warranties set out in this Clause are made by each German Guarantor
to the Secured Parties at the date hereof.
	 
	4.1	 	Status
	 
	 	 	It is a limited liability company, duly incorporated and validly existing under the laws of
the Federal Republic of Germany.
	 
	4.2	 	Powers and authority
	 
	 	 	It has the power to enter into and perform, and has taken all necessary action to authorise
the entry into and delivery of this Guarantee.
	 
	4.3	 	Non-conflict
	 
	 	 	The entry into and performance by it of this Guarantee do not conflict with:






	 	(a)	 	any law or regulation applicable to it;
	 
	 	(b)	 	its constitutional documents; or
	 
	 	(c)	 	any document which is binding upon it,






	 	 	provided that the relevant conflict is reasonably likely to have a Material Adverse Effect.
	 
	5.	 	PAYMENTS
	 
	 	 	All payments by a German Guarantor under this Guarantee must be made without set-off (other
than in case of claims of such German Guarantor which are undisputed (unbestritten) or which
have been the subject of a final court judgment (rechtskräftig) or counterclaim and without
any deduction or withholding, unless the deduction or withholding is required by law. If
any deduction or withholding is required to be made, the amount of the payment due from a
German Guarantor will be increased to an amount which (after making the deduction or
withholding) leaves an amount equal to the payment which would have been due if no deduction
or withholding had been required.
	 
	6.	 	COSTS
	 
	 	 	Each German Guarantor must pay on demand:




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	 	(a)	 	all costs, charges, fees and expenses (including legal fees of one counsel per
jurisdiction) reasonably incurred by the Administrative Agent and any other Secured
Party in connection with the preparation, negotiation, execution, amendment,
enforcement of or the preservation of any rights under, this Guarantee;
	 
	 	(b)	 	any stamp duties or other taxes in connection with this Guarantee; and
	 
	 	(c)	 	any losses reasonably incurred by any of the Secured Parties flowing from any
judgement or claim being payable in a different currency from that agreed under this
Guarantee.






	7.	 	LIMITATION ON ENFORCEMENT
	 
	 	 	For the purpose of this Clause 7 (Limitation on Enforcement):
	 
	 	 	Up-Stream and/or Cross-Stream German Guarantee means in relation to a German Guarantor any
guarantee and/or indemnity granted under this Guarantee directly or indirectly securing the
obligations or liabilities of any member of the Relevant Group that is not a direct or
indirect Relevant Subsidiary of such German Guarantor.
	 
	 	 	Relevant Group refers to a German Guarantor and any affiliated company (verbundenes
Unternehmen) of such German Guarantor within the meaning of §§ 15 et. seq. of the German
Stock Corporation Act (Aktiengesetz).
	 
	 	 	Relevant Subsidiary means an entity of which a person owns directly or indirectly more than
50 percent (50%) of the voting capital or similar right of ownership.
	 
	7.1	 	Each of the Administrative Agent and the other Secured Parties agrees not to enforce the
guarantee and/or any indemnity granted under this Guarantee against any Guarantor incorporated
in Germany (each, a German Guarantor) irrespective of whether the relevant German Guarantor is
at the time of enforcement incorporated as






	 	•	 	a limited liability company (Gesellschaft mit beschränkter Haftung) (a German
GmbH Guarantor), or
	 
	 	•	 	a limited partnership (Kommanditgesellschaft) of which the general partner
(Komplementär) is a limited liability company (a German GmbH & Co. KG Guarantor),






	 	 	if and to the extent the guarantee and/or any indemnity granted under this Guarantee is an
Up-Stream and/or Cross-Stream German Guarantee in relation to such German Guarantor, and
(ii) if and to the extent the enforcement of such Up-Stream and/or Cross-Stream German
Guarantee would cause or constitute






	 	(a)	 	the German GmbH Guarantor’s, or in the case of the German GmbH & Co. KG
Guarantor its general partner’s, net assets (the calculation of which shall take into
account the captions reflected in § 266 (2) A, B and C of the German Commercial Code
(Handelsgesetzbuch)) less the German GmbH Guarantor’s, or in case of a German GmbH &
Co. KG Guarantor its general partner’s, liabilities, provisions and liability reserves
(the calculation of which shall take into account the captions reflected in § 266 (3)
B, C and D of the German Commercial Code) (the Net Assets) to be less than the
registered share capital (Stammkapital) of the German GmbH Guarantor, or in the case of
a German GmbH & Co. KG Guarantor of the registered share capital of its general partner
(Begründung einer Unterbilanz); or




8









 













	 
	 	(b)	 	an increase of a shortfall, if the Net Assets of the German GmbH Guarantor, or
in the case of a German GmbH & Co. KG Guarantor, of its general partner, already fall
short of the amount of the registered share capital (Vertiefung einer Unterbilanz);
and/or
	 
	 	(c)	 	an payment within the meaning of § 64 sentence 3 of the German Limited
Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter
Haftung).






	7.2	 	For the purposes of the calculation of the Net Assets in Clause 7.1 above the following items
shall be adjusted as follows:






	 	(a)	 	the amount of an increase in the registered share capital of the German GmbH
Guarantor, or in the case of a German GmbH & Co. KG Guarantor of its general partner,






	 	(i)	 	that has been effected out of retained earnings (Kapitalerhöhung
aus Gesellschaftsmitteln) without the prior written consent of the
Administrative Agent after the date of this Agreement; or
	 
	 	(ii)	 	any amount of an increase in the registered share capital if and
to the extent that it has not been fully paid in,






	 	 	 	shall be deducted from the registered share capital;
	 
	 	(b)	 	any loans and other contractual liabilities incurred by the German GmbH
Guarantor, or in the case of a German GmbH & Co. KG, its general partner in violation
of the Credit Agreement after the date of this Agreement shall be disregarded as
liabilities;
	 
	 	 	 	and
	 
	 	(c)	 	the Net Assets shall take into account reasonable costs of the Auditor’s
Determination (as defined below), either as a reduction of assets or an increase of
liabilities.






	7.3	 	Any German Guarantor, and in case of a German GmbH & Co. KG Guarantor its general partner,
shall realise, to the extent legally permitted and commercially justifiable, in a situation
where after enforcement of the guarantee the German GmbH Guarantor, or in the case of a German
GmbH & Co. KG Guarantor its general partner, would not have Net Assets in excess of its
respective registered share capital, any and all of its assets, and in case of a German GmbH &
Co. KG Guarantor its general partner’s assets, that are shown in the respective balance sheet
with a book value (Buchwert) that is significantly lower than the market value of the asset if
such asset is not necessary for the relevant German Guarantor’s, and in case of a German GmbH
& Co. KG Guarantor its general partner’s, business (betriebsnotwendig).
	 
	7.4	 	Subject to Clause 7.1, after the receipt of a written demand by the Administrative Agent
and/or any other Secured Party to make a payment under any guarantee granted under this
Guarantee (the Enforcement Notice), a copy of the relevant determination shall be drawn up in
good faith (applying the due care of an ordinary businessman (Sorgfalt eines ordentlichen
Geschäftsmannes)) and made available to the Administrative Agent by the relevant German
Guarantor (the Management Determination) within 10 (ten) Business Days of the German
Guarantor’s receipt of the Enforcement Notice stating






	 	(a)	 	if and to what extent the guarantee granted hereunder is an Up-Stream and/or
Cross-Stream German Guarantee;




9









 






	 	(b)	 	which amount of such Up-Stream and/or Cross-Stream German Guarantee can be
enforced without causing the Net Assets of the relevant German Guarantor, or, where the
guarantor is a German GmbH & Co KG Guarantor, its general partner, to fall (or to fall
further) below its respective registered share capital (taking into account the
adjustments set out in Clauses 7.2 above and the value realisation pursuant to Clause
7.3 above), and
	 
	 	(c)	 	which amount of such Up-Stream and/or Cross-Stream German Guarantee can be
enforced without constituting an payment within the meaning of § 64 sentence 3 of the
German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit
beschränkter Haftung),






	 	 	(such amount calculated according to (b) — (c), the Recovery Amount). Subject to Clause
7.6 below, the Secured Parties shall only be entitled to enforce the amount of any Up-Stream
and/or Cross-Stream German Guarantee up to the Recovery Amount.
	 
	7.5	 	Following the Administrative Agent’s receipt of a Management Determination, the relevant
German Guarantor shall provide within 15 (fifteen) Business Days a determination by auditors
of international standing and reputation appointed by the relevant German Guarantor or, in the
case of a GmbH & Co. KG, its general partner (the Auditor’s Determination) of (i) the Recovery
Amount (such determination to take into account the adjustments set out in Clauses 7.2 and the
value realisation pursuant to Clause 7.3 above) and (ii) an estimate of the liabilities,
damages, costs, fees and expenses reasonably expected to result from a liquidation of the
relevant German Guarantor, and such German Guarantor shall, not later than 10 (ten) Business
Days after receipt by it of such Auditor’s Determination, pay to the relevant Secured Parties
the additional amount (if any) by which the Recovery Amount determined in the Auditor’s
Determination exceeds the amount (if any) paid to any of the Secured Parties pursuant to
Clause 7.4 above, and the Secured Parties shall repay any enforcement amount received in
excess of the Recovery Amount determined in the Auditor’s Determination (if any) to the
respective German Guarantor or, in the case of a German GmbH & Co. KG Guarantor, its general
partner.
	 
	7.6	 	If (i) the Administrative Agent disagrees with the Auditor’s Determination or (ii) the
relevant German Guarantor (or in the case of a German GmbH & Co KG Guarantor, its general
partner) fails to deliver an Management Determination within 10 (ten) Business Days of the
German Guarantor’s receipt of the Enforcement Notice or (iii) an Auditor’s Determination
within 15 (fifteen) Business Days following the Administrative Agent’s receipt of a Management
Determination, the Secured Parties shall be entitled to further pursue in court their payment
claims under this Guarantee granted by the respective German Guarantor in excess of the
amounts paid or payable pursuant to Clauses 7.4 and 7.5 above, by claiming in court that
demanding payment under the German Guarantee against the relevant German Guarantor does not
violate §§ 30, 31 of the German Limited Liability Companies Act and would not constituting an
payment within the meaning of § 64 sentence 3 of the German Limited Liability Companies Act
(Gesetz betreffend die Gesellschaften mit beschränkter Haftung) (taking into account the
calculation of the Net Assets as set out in Clause 7.1 and the adjustments as set out in
Clause 7.2 and the value realisation pursuant to Clause 7.3 above). Notwithstanding the
foregoing, and for the avoidance of doubt, no German Guarantor shall be obliged to pay any
such amount on demand.
	 
	7.7	 	The limitations set out in Clause 7.1 (a) and (b) and in Clause 7.4 (b) shall not apply if
and to the extent the relevant German Guarantor guarantees any amounts borrowed under the
Credit Agreement which are lent or on-lent to such German Guarantor or any of its direct or
indirect owned Relevant Subsidiaries from time to time and have not been repaid.




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	7.8	 	The limitations provided for in Clause 7.1 (a) and (b) and in Clause 7.4 (b) shall not apply
so long as:






	 	(a)	 	the affected German Guarantor (or, in the case of a GmbH & Co. KG, its general
partner) is a party to a profit and loss sharing agreement (Gewinnabführungsvertrag)
and/or a domination agreement (Beherrschungsvertrag) where such German Guarantor (or,
in the case of a GmbH & Co. KG, its general partner) is the dominated entity
(beherrschtes Unternehmen) and/or the entity being obliged to share its profits with
the other party of such profit and loss sharing agreement; it being understood that in
such case the Secured Parties shall only be entitled to enforce the amount of any
Up-Stream German Guarantee and/or
Cross-Stream German Guarantee if and to the extent that it may reasonably be expected
(applying the due care of an ordinary businessman (Sorgfalt eines ordentlichen
Geschäftsmannes)) that such German Guarantor (or, where the guarantor is a German
GmbH & Co KG Guarantor, its general partner) is able to recover the annual loss
(Jahresfehlbetrag) which the dominating entity is obliged to pay pursuant to § 302 of
the German Stock Corporation Act (Aktiengesetz). For the purpose of the
determination of the amount to be recovered under this Clause 7.8, the provisions set
forth under Clauses 7.4, 7.5 and 7.6 above shall apply mutatis mutandis; and/or
	 
	 	(b)	 	the relevant German Guarantor’s guarantee granted under this Guarantee being
covered by a valuable consideration or recourse claim (vollwertiger Gegenleistungs-
oder Rückgewähranspruch) within the meaning of § 30 (1) Sentence 2 of the German
Limited Liability Companies Act; and/or
	 
	 	(c)	 	the relevant German Guarantor’s payment under this Guarantee discharges a
shareholder loan or a claim of similar effect within the meaning of § 30 (1) Sentence 3
of the German Limited Liability Companies Act.






	7.9	 	For the avoidance of doubt, any balance sheet to be prepared for the determination of the Net
Assets shall be prepared in accordance with relevant accounting principles.
	 
	7.10	 	Nothing in this Clause 7 (Limitation on Enforcement) shall be interpreted as a restriction or
limitation of the enforcement of the guarantee and/or any indemnity granted under this
Guarantee if and to the extent the guarantee and/or any indemnity granted under this Guarantee
secures own obligations of the relevant German Guarantor or obligations of any of its direct
or indirect Relevant Subsidiaries.
	 
	8.	 	ADDITIONAL GERMAN GUARANTORS
	 
	 	 	Each Subsidiary of the Company incorporated in the Federal Republic of Germany that is
pursuant to Section 6.9 of the Credit Agreement required to provide for a guarantee in
connection with the Loan Documents (an Additional German Guarantor), then such Additional
German Guarantor shall execute and deliver an accession agreement substantially in the form
of Schedule 1 (the Additional German Guarantor’s Accession Agreement) hereto. The
Administrative Agent shall execute the Additional German Guarantor’s Accession Agreement for
itself and on behalf of the other Secured Parties. Each of the Security Grantors herewith
irrevocably consents to any New Additional German Guarantor’s Accession Agreement entered
into in accordance with this Guarantee.




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	9.	 	MISCELLANEOUS






	 	(a)	 	Any determination made by the Administrative Agent, in each case in their
reasonable discretion, of an amount under this Guarantee is, in the absence of fraud
and manifest error, conclusive evidence of the matter to which it relates.
	 
	 	(b)	 	The Administrative Agent or any other Secured Party may set off any matured
obligation owed by a German Guarantor under this Guarantee against any satisfiable
(erfüllbare) obligation with the meaning of § 387 of the German Civil Code
(Bürgerliches Gesetzbuch) (whether or not matured) owed by that Secured Party to such
German Guarantor.
	 
	 	(c)	 	The rights of the Administrative Agent or any other Secured Party under this
Guarantee:






	 	(i)	 	may be exercised as often as necessary;
	 
	 	(ii)	 	are cumulative and not exclusive of its rights under the general
law; and
	 
	 	(iii)	 	may be waived only in writing and specifically.






	 	 	 	Delay in exercising or non-exercise of any right is not a waiver of that right.






	10.	 	NOTICES
	 
	10.1	 	In writing
	 
	 	 	Any communication in connection with this Guarantee must be in writing and, unless otherwise
stated, may be given in person, by post or by fax. Unless it is agreed to the contrary, any
consent or agreement required under this Guarantee must be given in writing.
	 
	10.2	 	Addresses






	 	(a)	 	The contact details of the German Guarantors are:
	 
	 	 	 	First Solar Holdings GmbH
	 
	 	 	 	Rheinstr. 4B

55116 Mainz





	 	 	 	 	 
	 

	 	Attn.:
	 	Anja Lange
	 

	 	 	 	David Brady
	 
	 	 	 	 
	 

	 	Fax:
	 	+49(0)6131-1443-500
	 

	 	 	 	+1-602-414-9462
	 
	 	 	 	 
	 

	 	Email:
	 	alange@firstsolar.com
	 

	 	 	 	dbrady@firstsolar.com






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	 	 	First Solar GmbH
	 	 	Rheinstr. 4B
	 	 	55116 Mainz
	 
	 	 	 	 
	 	 	Germany
	 
	 	 	 	 
	 

	 	Attn.:
	 	 Anja Lange
	 

	 	 	 	David Brady
	 
	 	 	 	 
	 

	 	Fax:
	 	 +49(0)6131-1443-500
	 

	 	 	 	+1-602-414-9462
	 
	 	 	 	 
	 

	 	Email:
	 	 alange@firstsolar.com
	 

	 	 	 	dbrady@firstsolar.com






	 	 	 	 	 
	 	 	First Solar Manufacturing GmbH
	 
	 	 	 	 
	 	 	Marie-Curie-Str. 3
	 	 	15236 Frankfurt (Oder)
	 
	 	 	 	 
	 	 	GermanyGermany
	 
	 	 	 	 
	 

	 	Attn.:
	 	Anja Lange
	 

	 	 	 	David Brady
	 
	 	 	 	 
	 

	 	Fax:
	 	+49(0)6131-1443-500
	 

	 	 	 	+1-602-414-9462
	 
	 	 	 	 
	 

	 	Email:
	 	alange@firstsolar.com
	 

	 	 	 	dbrady@firstsolar.com







	 	(b)	 	The contact details of the Administrative Agent and the other Secured Parties
are:





	 	 	 	 	 
	 
	 	To the Administrative Agent:	 	JPMorgan Chase Bank, N.A.
	 
	 	 	 	10 South Dearborn, 7th Floor
	 
	 	 	 	Chicago, IL 60603
	 
	 	 	 	 
	 
	 	 	 	Attention: Creston Wren
	 
	 	 	 	Telecopy: 001 (312) 385-7097
	 
	 	 	 	Telephone: 001 (312) 385-7016
	 
	 	 	 	 
	 
	 	With a copy to	 	JPMorgan Chase Bank, N.A.
	 
	 	 	 	125 London Wall
	 
	 	 	 	London
	 
	 	 	 	EC2Y 5AJ
	 
	 	 	 	 
	 
	 	 	 	Attention: Lucy Chick
	 
	 	 	 	Telecopy: +44(0)20 7325 6835
	 
	 	 	 	Telephone: +44(0)20 7325 6926






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	 	With a copy to	 	JPMorgan Chase Bank, N.A.
	 
	 	 	 	201 North Central Avenue, Floor
 21Phoenix, AZ 85004
	 
	 	 	 	 
	 
	 	 	 	Attention: Mark Chambers
	 
	 	 	 	Telecopy: 001 (602) 221-1502
	 
	 	 	 	Telephone: 001 (602) 221-2290







	 	(c)	 	When a Party nominates a particular department or officer to receive a
notice, a notice will not be effective if it fails to specify that department or
officer.






	10.3	 	Effectiveness






	 	(a)	 	Except as provided below, any notice in connection with this Guarantee will be
deemed to be given as follows:






	 	(i)	 	if delivered in person, at the time of the delivery;
	 
	 	(ii)	 	if posted, five Business Days after being deposited in the post,
postage prepaid, in a correctly addressed envelope; and
	 
	 	(iii)	 	if by fax, when received in legible form.






	 	(b)	 	A communication given under paragraph (a) above but received on a non-working
day or after business hours in the place of receipt will only be deemed to be given on
the next working day in that place.






	10.4	 	Invalidity






	 	 	 	If any provision of this Guarantee or part thereof should be or become invalid or
unenforceable, this shall not affect the validity of the remaining provisions hereof.
The invalid or unenforceable provision shall be replaced by that provision which best
meets the intent of the replaced provision. This shall apply analogously with respect
to anything which is accidentally not regulated in this Guarantee (Vertragslücke). §
139 of the German Civil Code (Bürgerliches Gesetzbuch) shall be waived hereby.






	10.5	 	Amendments
	 
	 	 	Changes to and amendments of this Agreement, including this Clause 9.5, must be made in
writing.
	 
	11.	 	APPLICABLE LAW; JURISDICTION
	 
	11.1	 	Governing Law
	 
	 	 	This Guarantee and any non-contractual obligations arising out of or in connection with this
Guarantee shall be governed by and construed in accordance with the laws of the Federal
Republic of Germany.




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	11.2	 	Jurisdiction
	 
	 	 	The place of jurisdiction for all Parties shall be Frankfurt am Main, Federal Republic of
Germany. The Administrative Agent and the other Secured Parties, however, shall also be
entitled to take legal action against a German Guarantor before any other competent court of
law having jurisdiction over the German Guarantor or any of its assets.




15









 











SCHEDULE 1




ADDITIONAL GERMAN GUARANTOR ACCESSION AGREEMENT



THIS Additional German Guarantor Accession Agreement (the Accession Agreement) is
supplemental to a guarantee dated [l] (the Guarantee) granted by First Solar Holdings
GmbH and First Solar GmbH as original German guarantors in favour of JPMorgan Chase Bank,
N.A. as administrative agent and certain other secured parties in connection with a State of
New York law governed credit agreement dated [l], as amended, restated, supplemented
or novated from time to time (the Credit Agreement) between, amongst others, First Solar
Inc. as company (the Company), First Solar Manufacturing GmbH and certain other subsidiaries
of the Company as borrowers, certain credit institutions as original lenders and the
Administrative Agent providing for US$300,000,000 revolving facilities and up to
US$100,000,000 additional revolving facilities.



Words and expressions defined in the Guarantee and/or the Credit Agreement have the same
meaning when used in this Accession Agreement. In case of any discprepancy, the Credit
Agreement shall prevail.



We, [NAME OF ADDITIONAL GERMAN GUARANTOR], hereby become a party to the Guarantee as an
Additional German Guarantor under the Guarantee and hereby agree with each other person who
is a party to the Guarantee that with effect on and from the date hereof we will be bound by
the Guarantee as an Additional German Guarantor with the same force and effect as if we were
originally named therein as a German Guarantor and, without limiting the generality of the
foregoing, hereby expressly assume all obligations and liabilities of a German Guarantor
under the Guarantee. The information set forth in Appendix 1 hereto is hereby added to the
information set forth in the Guarantee.



We, [NAME OF ADDITIONAL GERMAN GUARANTOR], hereby represent and warrant that each of the
representations and warranties contained in Clause 4 of the Guarantee is true and correct on
and as the date hereof as if made on and as of such date.



This Accession Agreement is governed by and shall be construed in accordance with German
law.



Place:                                         



Date:                                         




	 	 	 
	 	 	 
	 
	 	 
	[Acceding Additional German Guarantor]

	 	[the Administrative Agent for
itself and for and on behalf of the
other Secured Parties]






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SIGNATORIES




German Guarantors




First Solar Manufacturing GmbH




By:




	 	 	 	 	 
	 	 	 
	/s/ David Brady
 	 	 
	David Brady 	 	 
	Authorized Officer (Prokurist) 	 	 
	 



First Solar Holdings GmbH




By:




	 	 	 	 	 
	 	 	 
	/s/ David Brady
 	 	 
	David Brady 	 	 
	Authorized Officer (Prokurist) 	 	 
	 



First Solar GmbH




By:




	 	 	 	 	 
	 	 	 
	/s/ David Brady
 	 	 
	David Brady 	 	 
	Authorized Officer (Prokurist) 	 	 
	 



The Administrative Agent

acting for itself and on behalf of the other Secured Parties




By:




	 	 	 	 	 
	 	 	 
	/s/ Stefan Kuhm
 	 	 
	Stefan Kuhm 	 	 
	Attorney-In-Fact 	 	 
	 




17