EX-10.8






Exhibit 10.8




EXECUTION COPY




ASSIGNMENT AGREEMENT

(SICHERUNGSABTRETUNG)




8 SEPTEMBER 2009




between




FIRST SOLAR MANUFACTURING GMBH

as Assignor




and




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

as Administrative Agent









Allen & Overy LLP




 









 





CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Clause	 	 	 	 
	 
	 	 	 	 	 	 
	1.
	 	Interpretation	 	 	1	 
	2.
	 	Assignment	 	 	6	 
	3.
	 	Purpose of the Assignment	 	 	6	 
	4.
	 	List of claims	 	 	7	 
	5.
	 	Disclosure and notification	 	 	7	 
	6.
	 	Assignment of claims against conditional vendors	 	 	8	 
	7.
	 	The Assignor’s rights	 	 	8	 
	8.
	 	Book-keeping and data-processing	 	 	8	 
	9.
	 	Enforcement and collection	 	 	9	 
	10.
	 	Maintenance of liable capital	 	 	10	 
	11.
	 	No recourse	 	 	13	 
	12.
	 	Representations and warranties	 	 	14	 
	13.
	 	Undertakings	 	 	14	 
	14.
	 	Release and reassignment	 	 	15	 
	15.
	 	Indemnity	 	 	16	 
	16.
	 	Duration and independence	 	 	17	 
	17.
	 	The Security Trust Agreement	 	 	17	 
	18.
	 	Costs and expenses	 	 	17	 
	19.
	 	Partial invalidity; Waiver	 	 	17	 
	20.
	 	Amendments	 	 	18	 
	21.
	 	Successors, assignments and transfers	 	 	18	 
	22.
	 	Notices and their language	 	 	18	 
	23.
	 	Applicable law; Jurisdiction	 	 	18	 
	 
	 	 	 	 	 	 
	Schedules	 	 	 	 
	 
	 	 	 	 	 	 
	1.
	 	Original Lenders	 	 	20	 
	2.
	 	Original Obligors	 	 	21	 
	3.
	 	Forms	 	 	22	 
	4.
	 	Addresses for notices	 	 	25	 
	 
	 	 	 	 	 	 
	Signatories	 	 	26	 






 









 






THIS ASSIGNMENT AGREEMENT (the Agreement) is made on 8 September 2009



BETWEEN:




	(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
	 
	 	 	(the Assignor); and
	 
	(2)	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, 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).





WHEREAS:




	(A)	 	The Original Lenders (as defined below) have agreed to make available to the Borrowers (as
defined below) certain revolving credit facilities and certain letters of credit on the terms
of and subject to the Credit Agreement (as defined below).
	 
	(B)	 	It is a condition to the Original Lenders (as defined below) making the credit facilities
available to the Borrowers (as defined below) that the Assignor enters into this Agreement.
	 
	(C)	 	The other Secured Parties (as defined below) have appointed the Administrative Agent to act
as their security trustee under German law (Treuhänder) pursuant to and in accordance with the
Security Trust Agreement (as defined below) in relation to the security provided hereunder.





IT IS AGREED as follows:




	1.	 	INTERPRETATION
	 
	1.1	 	Definitions
	 
	 	 	In this Agreement:
	 
	 	 	Additional Domestic Borrower means a company which becomes a borrower under the Credit
Agreement after the date of the Credit Agreement that is organised under the laws of any
jurisdiction within the United States of America.
	 
	 	 	Additional Domestic Guarantor means a company which becomes a guarantor under the Credit
Agreement after the date of the Credit Agreement that is organised under the laws of any
jurisdiction within the United States of America.
	 
	 	 	Additional Foreign Borrower means a company which becomes a borrower under the Credit
Agreement after the date of the Credit Agreement that is not an Additional Domestic
Borrower.
	 
	 	 	Additional Foreign Guarantor means a company which becomes a guarantor under the Credit
Agreement after the date of the Credit Agreement that is not an Additional Domestic
Borrower.




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	 	 	Agent means:






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






	 	 	Assignment means each and any assignment of a Claim and of any other right and claim to the
Administrative Agent for security purposes (Sicherungsabtretung) constituted pursuant to
this Agreement.
	 
	 	 	Assignment and Assumption Agreement means the assignment and assumption agreement, accepted
by the Administrative Agent whereby a Lender (defined as “assignor” therein) sells and
assigns to a person (defined as “assignee” therein) (such assignee becoming a Lender by the
purchase and assumption arranged for thereunder), inter alia, any or all of the assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement to the
assignee.
	 
	 	 	Borrower means any Domestic Borrower and any Foreign Borrower.
	 
	 	 	Business Day means a day (other than a Saturday or Sunday) on which banks are open for
general business in Frankfurt am Main, Germany.
	 
	 	 	Claims means all present and future monetary receivables and claims which the Assignor holds
or will hold (Forderungsinhaber) against any other member of the Group, including any such
receivables and claims arising under or in connection with (i) any loan granted by the
Assignor to any other member of the Group, or (ii) any promissory note evidencing loans or
advances made to any other member of the Group (the Intercompany Receivables),
	 
	 	 	including, without limitation,:






	 	(A)	 	any right to payment held by the Assignor for goods sold or leased or for
services rendered or funds advanced to any other member of the Group, whether or not
such right is evidenced by any instrument or chattel paper and whether or not it has
been earned by performance;
	 
	 	(B)	 	claims resulting from any domination agreement (Beherrschungsvertrag) or any
profit and loss sharing agreement (Gewinnabführungsvertrag) (excluding, however, such
amount that the Assignor needs to be able to recover the annual loss
(Jahresfehlbetrag);
	 
	 	(C)	 	all ancillary rights (Neben-, Hilfs- und Gestaltungsrechte) pertaining thereto
and/or to the respective underlying contractual relationship (other than ancillary
relates pertaining to any Intercompany Receivable or its underlying contractual
relationship);
	 
	 	(D)	 	damage claims (Schadensersatzansprüche) and claims resulting from unjust
enrichment (ungerechtfertigte Bereicherung) and any similar claims under any other
applicable law; and
	 
	 	(E)	 	where the Assignor maintains a genuine or non-genuine current account
arrangement (echtes oder unechtes Kontokorrentverhältnis) with regard to any of such
receivables or claims, all claims which arise from any existing or future current
account balances, the right to determine the net balance and the right to terminate the
current account relationship.






	 	 	To the extent that such Claims are in existence or outstanding at the time this Agreement
comes into force, such Claims are referred to as the Existing Claims, and if such Claims
will only come into existence in the future they are referred to as the Future Claims.




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	 	 	Company means First Solar, Inc., a corporation organised under the laws of Delaware, United
States of America, having its business address at 350 West Washington Street, Suite 600,
Tempe, Arizona 85281, United States of America.
	 
	 	 	Credit Agreement means the New York law governed credit agreement dated 4 September 2009
between the Company and the Original Foreign Borrowers on one side and, inter alia, the
Administrative Agent and the 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
providing for an approximately $300,000,000 facility and an up to $100,000,000 Incremental
Facility.
	 
	 	 	Debtor means each debtor in respect of a Claim and Debtors means all such debtors.
	 
	 	 	Default means a default as defined under the Credit Agreement.
	 
	 	 	Documentation Agent means The Royal Bank of Scotland plc.
	 
	 	 	Dollar or $ means the lawful currency of the United States of America.
	 
	 	 	Domestic Borrower means the Company and any Additional Domestic Borrower.
	 
	 	 	Domestic Guarantor means any Original Domestic Guarantor and any Additional Domestic
Guarantor.
	 
	 	 	Event of Default means an event (i) in which the commitments will automatically immediately
terminate and the amounts outstanding are immediately due and payable (ii) which would
entitle the Administrative Agent to, inter alia, prematurely terminate all or part of the
total commitments under the Credit Agreement and/or to declare that all or part of the
amounts outstanding under the Credit Agreement are immediately due and payable or payable on
demand provided that any requirement for the giving of notice, the lapse of time or both has
been satisfied.
	 
	 	 	Foreign Borrower means any Original Foreign Borrower and any Additional Foreign Borrower.
	 
	 	 	Foreign Guarantor means any Original Foreign Guarantor and any Additional Foreign Guarantor.
	 
	 	 	German Borrower means First Solar Manufacturing GmbH and any other person or entity that is
organised under the laws of the Federal Republic of Germany which becomes a borrower under
the Credit Agreement after the date of the Credit Agreement.
	 
	 	 	German Guarantor means First Solar GmbH and First Solar Holdings GmbH and any other person
or entity that is organised under the laws of the Federal Republic of Germany which is
required to provide for a guarantee in connection with the Loan Documents after the date of
the Credit Agreement.
	 
	 	 	Group means the Company and its Subsidiaries from time to time.
	 
	 	 	Guarantee and Collateral Agreement means the guarantee and collateral agreement dated on or
about the date of this Agreement made between, inter alia, First Solar, Inc. and certain of
its Subsidiaries in favour of the Administrative Agent which will be attached as “Exhibit A”
to the Credit Agreement.
	 
	 	 	Guarantor means any Domestic Guarantor and any Foreign Guarantor.




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	 	 	Incremental Facility means any additional revolving loan provided either






	 	(i)	 	by a person that already is a lender under the Credit Agreement (defined as
“increasing lender” therein) after having accepted an increase of its revolving
commitment; or
	 
	 	(ii)	 	by an assuming lender becoming a new lender under the Credit Agreement (defined
as “assuming lender” therein) after having signed a New Lender Supplement,






	 	 	provided that the aggregate amount of the aggregate revolving loans will in no event exceed
$400,000,000.
	 
	 	 	Issuing Lender means the Original Issuing Lender and any other lender that has agreed in its
sole discretion to issue a letter of credit to any Borrower or any other borrowing
Subsidiary in connection with the Credit Agreement.
	 
	 	 	Lender means an Original Lender and any person which becomes a lender under the Credit
Agreement, including without limitation as a assuming lender of an Incremental Facility,
after the date of this Agreement, unless, in each case, such person has ceased to be a
lender under the Credit Agreement.
	 
	 	 	Letter of Credit means any letter of credit issued or to be issued under the Credit
Agreement, as such letter of credit may be amended, modified, restated, extended, renewed,
increased, replaced or supplemented from time to time.
	 
	 	 	Loan Document means






	 	(a)	 	the Credit Agreement;
	 
	 	(b)	 	each Security Document;
	 
	 	(c)	 	any Note; and
	 
	 	(d)	 	any other document designated as such by the Administrative Agent and the Company.






	 	 	New Lender Supplement means a supplement to the Credit Agreement pursuant to which an
assuming lender will become a party to the Credit Agreement with a revolving commitment in
an amount agreed by such assuming lender.
	 
	 	 	Note means any promissory note evidencing loans in accordance with the terms of the Credit
Agreement, that may be amended, modified, supplemented, extended, renewed or replaced from
time to time.
	 
	 	 	Obligor means a Borrower and/or a Guarantor.
	 
	 	 	Original Domestic Guarantors means each of the Subsidiaries of the Company listed in
Schedule 2 under the section “Original Foreign Guarantors”.
	 
	 	 	Original Foreign Borrower means each of the Subsidiaries of the Company listed in Schedule 2
under the section “Original Foreign Borrowers”.
	 
	 	 	Original Foreign Guarantor means each of the Subsidiaries of the Company listed in Schedule
2 under the section “Original Foreign Guarantors”.
	 
	 	 	Original Issuing Lender means JPMorgan Chase Bank, N.A.




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	 	 	Original Lender means each of the financial institutions set out in Schedule 1 hereto in its
capacity as original lender to the Company and the Original Foreign Borrowers.
	 
	 	 	Parties means the Assignor and the Administrative Agent.
	 
	 	 	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.
	 
	 	 	Secured Claims means all present and future rights and claims (Ansprüche) (whether actual or
contingent and whether owned jointly or severally or in any other capacity whatsoever)
(including claims from unjust enrichment (ungerechtfertige Bereicherung) and tort (Delikt))
of any of the Secured Parties against any German Borrower and any German Guarantor under or
in connection with the Loan Documents (or any of them) or any Letter of Credit, each as
amended, varied, supplemented or novated from time to time, including without limitation,
any increase of principal or interest, in each case together with all interest, costs,
charges and expenses incurred by any Secured Party in connection with the protection and
preservation or enforcement of its respective rights under the Loan Documents or any Letter
of Credit.
	 
	 	 	Secured Party means an Agent, the Lenders and any affiliate of any Lender to which any
obligations under any Loan Document or under any Specified Swap Agreements are owed by any
member of the Group, any Issuing Lender and any Swap Counterparty
	 
	 	 	Security means any and all collateral granted with a view to securing the Secured Claims.
	 
	 	 	Security Trust Agreement means the security trust agreement dated on or about the date
hereof between, amongst others, the Administrative Agent and the Original Lenders pursuant
to which the Administrative Agent has been granted certain rights and has assumed certain
obligations in relation to certain Security Documents governed by German law.
	 
	 	 	Security Document means






	 	(a)	 	the Guarantee and Collateral Agreement; and
	 
	 	(b)	 	any other document evidencing or creating collateral over any asset of an
Obligor to secure any obligation of an Obligor to a Secured Party under or in
connection with, inter alia, the Credit Agreement.






	 	 	Specified Swap Agreement means any Swap Agreement entered into by the Company or any
Guarantor and any lender or any affiliate of a lender in connection with any Loan Document.
	 
	 	 	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 Agreement means any agreement with respect to any swap, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing




5









 






	 	 	indices or measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; except for any phantom stock or
similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Company or any of its
Subsidiaries.






	 	 	Swap Counterparty means any person or entity providing a Specified Swap Agreement.
	 
	 	 	Syndication Agent means Credit Suisse, Cayman Islands Branch.
	 
	1.2	 	Where the context so admits, the singular includes the plural and vice versa.
	 
	1.3	 	The headings in this Agreement are for convenience only and are to be ignored in construing
this Agreement.
	 
	1.4	 	Any reference in this Agreement to a defined document is a reference to that defined document
as amended, varied, supplemented or novated from time to time.
	 
	1.5	 	Any reference to a Party or other person (including any Obligor 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.
	 
	1.6	 	Unless otherwise defined herein or unless the context otherwise requires, terms defined or
referred to in the Credit Agreement shall have the same meaning when used herein.
	 
	2.	 	ASSIGNMENT
	 
	2.1	 	The Assignor hereby assigns for security purposes (Sicherungsabtretung) all of the Claims to
the Administrative Agent.
	 
	2.2	 	The Existing Claims shall pass over to the Administrative Agent upon execution of this
Agreement, and any Future Claims shall pass over to the Administrative Agent on the date such
Future Claims arise.
	 
	2.3	 	The Assignor hereby assigns and transfers all rights and claims in respect any kind of
cheques (Schecks), bills of exchange (Wechsel), notes or commercial papers the Assignor
receives for the settlement of any assigned Claim to the Administrative Agent.
	 
	2.4	 	The Claims are assigned to the Administrative Agent together with all security interests
securing the Claims (or any of them). To the extent that any such security interest is not
assigned or transferred to the Administrative Agent as a matter of law, the Assignor hereby
assigns or, as applicable, transfers each such security interest to the Administrative Agent.
	 
	2.5	 	The Administrative Agent hereby accepts all such assignments and transfers referred to in
this Clause 2.
	 
	3.	 	PURPOSE OF THE ASSIGNMENT
	 
	 	 	The Assignment is constituted in order to secure the full and irrevocable satisfaction and
discharge of any and all Secured Claims. The Assignor hereby expressly agrees that the
Assignment shall also secure any future extension or increase of the Secured Claims and the
Secured Claims as extended or increased from time to time.




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	4.	 	LIST OF CLAIMS
	 
	4.1	 	The Assignor shall provide to the Administrative Agent from time to time statements and
schedules further identifying and describing the Claims and such other reports in connection
therewith as the Administrative Agent may reasonably request, all in reasonable detail.
	 
	4.2	 	At any time after a Default or an Event of Default has occurred and is continuing, at the
Administrative Agent’s request, the Assignor shall provide to the Administrative Agent
promptly (unverzüglich) an up-to-date list of all outstanding Claims (each such list a List of
Claims).
	 
	4.3	 	Unless otherwise agreed between the Parties in writing, each List of Claims shall include the
names and addresses of the Debtors as well as the outstanding amounts including the due dates
for payment and (if applicable) the invoice date and number. The Assignor shall also






	 	(a)	 	specify which Claims are subject to:






	 	(i)	 	an assignment pursuant to an extended retention of title
(verlängerter Eigentumsvorbehalt), and the name of the relevant seller retaining
title (Eigentumsvorbehaltsverkäufer);
	 
	 	(ii)	 	any prohibition on assignment (Abtretungsverbot) or any
limitation of assignability (and specify the nature of such prohibition or
limitation); and






	 	(b)	 	specify if, in relation to which Claims and in which aggregate amounts
counterclaims are held, or have been asserted by, any Debtors as well as the legal
basis (Rechtsgrund) of each such counterclaim.






	4.4	 	The Assignor shall have the right to deliver the Lists of Claims (or the statements,
schedules and reports under clause 4.1 and 4.2) on a readable and compatible disk or other
electronic data storage medium. The Administrative Agent will contact the Assignor from time
to time with a view to agreeing the necessary details.
	 
	4.5	 	For the avoidance of doubt, the Administrative Agent shall also be entitled to any and all
Claims if for any reason whatsoever any Claims are not or incompletely contained in any List
of Claims.
	 
	5.	 	DISCLOSURE AND NOTIFICATION
	 
	5.1	 	The Assignor shall promptly notify any Debtor of this Agreement by delivering a signed
notification letter in the form of Schedule 3 Part 1 to this Agreement via registered mail
with return receipt requested (Einschreiben mit Rückschein), with a copy to the Administrative
Agent, or, as appropriate, by courier (with a delivery confirmation) and use its best efforts
to procure that the respective Debtor executes an acknowledgement of notification
substantially in the form of Schedule 3 Part 1 to this Agreement addressed to the
Administrative Agent.
	 
	5.2	 	The Assignor shall promptly deliver to the Administrative Agent copies of the aforementioned
notification letters and the return receipts (Rückschein) or, if sent by courier, confirmation
of delivery and if received by the Assignor, upon receipt, copies of the acknowledgements by
the Debtors.




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	5.3	 	Clauses 5.1 and 5.2 shall not apply to those Debtors that acknowledge receipt of the
notification letter by signing the notification letter in the form of Schedule 3 Part 1, as
long as the signed acknowledgement is send to the Administration Agent via pdf on or about the
day this Agreement is signed.
	 
	6.	 	ASSIGNMENT OF CLAIMS AGAINST CONDITIONAL VENDORS
	 
	6.1	 	If a Claim is subject to an assignment pursuant to an extended retention of title
(verlängerter Eigentumsvorbehalt) arrangement with any supplier of the Assignor, the
Assignment of such Claim to the Administrative Agent pursuant to this Agreement shall only
become effective upon the extinction of such extended retention of title. As long as the
supplier is only partly entitled to a Claim, the assignment of such Claim to the
Administrative Agent hereunder shall be limited to the part of the Claim to which the Assignor
is entitled. The other part of such Claim will be transferred to the Administrative Agent at
such time as that part is no longer affected by any extended retention of title.
	 
	6.2	 	The Assignor hereby assigns to the Administrative Agent its right to reassignment of the
Claims assigned to a supplier by reason of an extended retention of title (verlängerter
Eigentumsvorbehalt) as well as any contingent claims to the transfer of all proceeds paid out
to the supplier, together with all rights pertaining thereto. The same applies to any possible
inchoate right (Anwartschaftsrecht) with respect to the assignment of any Claims which are
subject to a dissolving condition (auflösende Bedingung). The Administrative Agent hereby
accepts each such assignment.
	 
	6.3	 	The Administrative Agent is entitled (but not obliged) to extinguish the extended retention
of title (verlängerter Eigentumsvorbehalt) by itself satisfying the supplier.
	 
	7.	 	THE ASSIGNOR’S RIGHTS
	 
	 	 	The Assignor shall be entitled to collect (including enforce) and exercise the Claims and
any ancillary rights and claims assigned or otherwise transferred to the Administrative
Agent pursuant to this Agreement in its ordinary course of business or otherwise in line
with past practice until the Administrative Agent gives notice to the contrary which the
Administrative Agent shall be entitled to do upon the occurrence of an Event of Default (for
so long as such Event of Default is continuing).
	 
	8.	 	BOOK-KEEPING AND DATA-PROCESSING
	 
	 	 	The following rights may only be exercised in line with the Credit Agreement:
	 
	8.1	 	If the Assignor employs a third party for its bookkeeping and/or data-processing, the
Assignor hereby authorises the Administrative Agent to obtain the statements and schedules
provided according to Clause 4.1 and the Lists of Claims provided according to Clause 4.2
directly from such third party at the Assignors expense.
	 
	8.2	 	If proof or documents necessary to assert the Claims have been handed over by the Assignor to
a third party (in particular a bookkeeping firm or a tax consultant) the Assignor hereby
assigns to the Administrative Agent its right to demand from such third party the return of
the information and documents. The Administrative Agent hereby accepts such assignment. The
Assignor hereby undertakes to instruct the third party to provide the Administrative Agent
upon its demand with such information and documents which are necessary to assert the relevant
Claims.
	 
	8.3	 	If the relevant Claims have been stored in an electronic data-processing system and a third
party handles the electronic processing of data, the Assignor hereby assigns to the
Administrative Agent




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	 	 	all rights against such third party relating to these services, and instructs such third
party to handle the processing of data for the Administrative Agent upon its instructions as
it did for the relevant Assignor. The Administrative Agent hereby accepts such assignment.






	8.4	 	The Assignment in Clauses 8.2 or 8.3 shall not hinder the Assignor to demand the information
and documents or data from third party handling these information, documents or data and the
Assignor is hereby authorised to exercise all rights assigned to the Administrative Agent
pursuant to Clause 8.2 and/or clause 8.3.
	 
	9.	 	ENFORCEMENT AND COLLECTION
	 
	9.1	 	The Administrative Agent’s rights






	 	(a)	 	The Administrative Agent shall be entitled to realise any and all of the Claims
(together with any and all other rights and claims transferred or assigned to the
Administrative Agent pursuant to this Agreement) at any time after the occurrence of an
Event of Default so long as such Event of Default is continuing if, in addition, any
Foreign Borrower or Foreign Guarantor has failed to meet all or part of its payment
obligations in respect of any of the Secured Claims.
	 
	 	(b)	 	The Administrative Agent shall notify the Assignor of its intention to realise
the Claims by giving 1 (one) week’s prior written notice to the Assignor. Such notice
period is not necessary if (i) the Assignor has generally ceased to make payments, (ii)
an application for the commencement of insolvency proceedings over the assets of the
Assignor is filed (and not withdrawn) by the Assignor or by any third person and, in
the latter case, it is not without delay established to the satisfaction of the
Administrative Agent that the application is obviously frivolous or (iii) the
observance of such notice period can reasonably be expected to adversely affect the
enforceability of the security interests constituted pursuant to this Agreement (or any
of them).
	 
	 	(c)	 	Upon becoming entitled to enforce, pursuant to this Clause 9.1, the security
interests constituted pursuant to this Agreement, the Administrative Agent may (i)
collect, or arrange for the collection of, the Claims (or any of them) in its own name
or for its own account, and/or (ii) exercise any and all rights and claims transferred
or assigned to the Administrative Agent pursuant to this Agreement to the extent
necessary to satisfy any outstanding Secured Claim. If no Event of Default is
outstanding, the Administrative Agent’s right to collect the Claims shall cease and the
Administrative Agent shall pay over to the Assignor all moneys received in connection
with such collection and retained by it save to the extent any such moneys have been
applied in payment of any of the Secured Claims.
	 
	 	(d)	 	If and to the extent the Administrative Agent collects any Claims pursuant to
this Clause 9.1, it may take all measures and enter into all agreements with such
Debtors which it considers to be expedient.
	 
	 	(e)	 	If and to the extent the Administrative Agent is entitled to collect the Claims
pursuant to this Clause 9.1, he may request that copies of all documents relating to
the Claims be handed over to the Administrative Agent and the Assignor hereby agrees to
comply promptly with any such request. If no Event of Default is outstanding, the
Administrative Agent’s shall return such copies received.
	 
	 	(f)	 	The Administrative Agent may determine which part of the Security, if
applicable, shall be used to satisfy the Secured Claims.




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	9.2	 	Application of proceeds






	 	(a)	 	The proceeds resulting from the enforcement of the security interests
constituted pursuant to this Agreement shall be applied by the Administrative Agent
towards payment of the Secured Claims in accordance with the relevant provisions of the
Credit Agreement.
	 
	 	(b)	 	After the full and irrevocable satisfaction and discharge of all Secured Claims
any remaining proceeds resulting from the enforcement of the security interests
constituted pursuant to this Agreement shall be transferred to the Assignor at the cost
and expense of the Assignor.






	10.	 	MAINTENANCE OF LIABLE CAPITAL
	 
	 	 	For the purpose of this Clause 10 (Maintenance of Liable Capital):
	 
	 	 	Up-Stream and/or Cross-Stream German Assignment means in relation to a German Assignor any
security interest granted under this Agreement 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 Assignor.
	 
	 	 	Relevant Group refers to a German Assignor and any affiliated company (verbundenes
Unternehmen) of such German Assignor 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.
	 
	10.1	 	The Administrative Agent agrees not to enforce the Assignment granted under this Agreement
against any Assignor incorporated in Germany (each, a German Assignor) irrespective of whether
the relevant German Assignor is at the time of enforcement incorporated as






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






	 	 	if and to the extent the Assignment granted under this Agreement is an Up-Stream and/or
Cross-Stream German Assignment in relation to such German Assignor, and (ii) if and to the
extent the enforcement of such Up-Stream and/or Cross-Stream German Assignment would cause
or constitute






	 	(a)	 	the German GmbH Assignor’s, or in the case of the German GmbH & Co. KG Assignor
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 Assignor’s, or in case of a German GmbH & Co.
KG Assingor 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 Assignor, or in the case of a German
GmbH & Co. KG Assignor of the registered share capital of its general partner
(Begründung einer Unterbilanz); or
	 
	 	(b)	 	an increase of a shortfall, if the Net Assets of the German GmbH Assingor, or
in the case of a German GmbH & Co. KG Assignor, of its general partner, already fall
short of the amount of the registered share capital (Vertiefung einer Unterbilanz);
and/or




10









 












	 	(c)	 	a payment within the meaning of § 64 sentence 3 of the German Limited Liability
Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung).






	10.2	 	For the purposes of the calculation of the Net Assets in Clause 10.1 above the following
items shall be adjusted as follows:






	 	(a)	 	the amount of an increase in the registered share capital of the German GmbH
Assignor, or in the case of a German GmbH & Co. KG Assignor 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 the Credit 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
Assignor, or in the case of a German GmbH & Co. KG, its general partner in violation of
the Credit Agreement after the date of the Credit 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.






	10.3	 	Any German Assignor, and in case of a German GmbH & Co. KG Assignor its general partner,
shall realise, to the extent legally permitted and commercially justifiable, in a situation
where after enforcement of the Assignment the German GmbH Assignor, or in the case of a German
GmbH & Co. KG Assignor 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 Assignor 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 Assignor’s, and in case of a German GmbH &
Co. KG Assignor its general partner’s, business (betriebsnotwendig).
	 
	10.4	 	Subject to Clause 10.1, after the receipt of a written demand by the Administrative Agent to
make a payment under any Assignment granted under this Agreement (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 Assignor (the Management Determination) within
10 (ten) Business Days of the German Assignor’s receipt of the Enforcement Notice stating






	 	(a)	 	if and to what extent the Assignment granted hereunder is an Up-Stream and/or
Cross-Stream German Assignment;
	 
	 	(b)	 	which amount of such Up-Stream and/or Cross-Stream German Assignment can be
enforced without causing the Net Assets of the relevant German Assignor, or, where the
Assignor is a German GmbH & Co KG Assignor, its general partner, to fall (or to fall
further) below its respective registered share capital (taking into account the
adjustments set out in Clauses 10.2 above and the value realisation pursuant to Clause
10.3 above), and




11









 












	 	(c)	 	which amount of such Up-Stream and/or Cross-Stream German Assignment can be
enforced without constituting a 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
10.6 below, the Administrative Agent shall only be entitled to enforce the amount of any
Up-Stream and/or Cross-Stream German Assignment up to the Recovery Amount.
	 
	10.5	 	Following the Administrative Agent’s receipt of a Management Determination, the relevant
German Assignor shall provide within 15 (fifteen) Business Days a determination by auditors of
international standing and reputation appointed by the relevant German Assignor 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 10.2 and
the value realisation pursuant to Clause 10.3 above) and (ii) an estimate of the liabilities,
damages, costs, fees and expenses reasonably expected to result from a liquidation of the
relevant German Assignor, and such German Assignor shall, not later than 10 (ten) Business
Days after receipt by it of such Auditor’s Determination, pay to the Administrative Agent 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 Administrative Agent pursuant to
Clause 10.4 above, and the Administrative Agent shall repay any enforcement amount received in
excess of the Recovery Amount determined in the Auditor’s Determination (if any) to the
respective German Assignor or, in the case of a German GmbH & Co. KG Assignor, its general
partner.
	 
	10.6	 	If (i) the Administrative Agent disagrees with the Auditor’s Determination or (ii) the
relevant German Assignor (or in the case of a German GmbH & Co KG Assignor, its general
partner) fails to deliver an Management Determination within 10 (ten) Business Days of the
German Assignor’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 Administrative Agent shall be entitled to further pursue in court its
payment claims under this Assignment granted by the respective German Assignor in excess of
the amounts paid or payable pursuant to Clauses 10.4 and 10.5 above, by claiming in court that
demanding payment under the German Assignment against the relevant German Assignor does not
violate §§ 30, 31 of the German Limited Liability Companies Act and would not constituting a
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 10.1 and the adjustments as set out in
Clause 10.2 and the value realisation pursuant to Clause 10.3 above). Notwithstanding the
foregoing, and for the avoidance of doubt, no German Assignor shall be obliged to pay any such
amount on demand.
	 
	10.7	 	The limitations set out in Clause 10.1 (a) and (b) and in Clause 10.4 (b) shall not apply if
and to the extent the Assignment by the relevant German Assignor secures any amounts borrowed
under the Credit Agreement which are lent or on-lent to such German Assignor or any of its
direct or indirect Relevant Subsidiaries from time to time and have not been repaid.
	 
	10.8	 	The limitations provided for in Clause 10.1 (a) and (b) and in Clause 10.4 (b) shall not
apply so long as:






	 	(a)	 	the affected German Assignor (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 Assignor (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




12









 






	 	 	 	sharing agreement; it being understood that in such case the Administrative Agent
shall only be entitled to enforce the amount of any Up-Stream German Assignment
and/or Cross-Stream German Assignment 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 Assignor (or, where the Assignor is a
German GmbH & Co KG Assignor, 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 10.8, the provisions
set forth under Clauses 10.4, 10.5 and 10.6 above shall apply mutatis mutandis;
and/or






	 	(b)	 	the relevant German Assignor’s Assignment granted under this Agreement 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 Assignor’s payment under this Assignment 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.






	10.9	 	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.
	 
	10.10	 	Nothing in this Clause 10 (Maintenance of Liable Capital) shall be interpreted as a
restriction or limitation of the enforcement of the Assignment granted under this Agreement if
and to the extent the Assignment granted under this Agreement secures own obligations of the
relevant German Assignor or obligations of any of its direct or indirect Relevant
Subsidiaries.
	 
	11.	 	NO RECOURSE
	 
	 	 	The Parties hereby agree that until the full and irrevocable satisfaction and discharge of
all Secured Claims no rights and claims shall pass to or otherwise arise for the benefit of
the Assignor by subrogation (gesetzlicher Übergang von Forderungen und Rechten) or
otherwise, including any recourse claims, indemnification claims, claims arising from unjust
enrichment (ungerechtfertigte Bereicherung) and any right to demand the assignment and/or
transfer of any Secured Claim and/or Security, against any Obligor or grantor of Security
which it may (but for this Clause 11) acquire as a result of:






	 	(i)	 	a payment or repayment by the Assignor of any debt of any other Obligor under
any of the Loan Documents; or
	 
	 	(ii)	 	in case of enforcement of the security constituted pursuant to this Agreement.






	 	 	Until the full and irrevocable satisfaction and discharge of all Secured Claims, the
Assignor furthermore undertakes not to exercise (pactum de non petendo), and not to purport
to exercise, any such rights and claims which may pass to it or otherwise arise for its
benefit notwithstanding this Clause 11 or would pass to it or otherwise arise for its
benefit but for this Clause 11.
	 
	 	 	The provisions under this Clause 11 shall not apply with regard to a recourse claim, if the
parties agreed to allow such recourse of the Assignor against any of the other Parties
thereby taking at all times into account the terms of the Credit Agreement and any other
Loan Document.




13









 












	12.	 	REPRESENTATIONS AND WARRANTIES
	 
	 	 	The Assignor represents and warrants (selbständiges Garantieversprechen im Sinne von § 311
Bürgerliches Gesetzbuch) to the Administrative Agent that on the date of this Agreement
subject to any liens, third party rights and restrictions permitted to exist under the
Credit Agreement:






	 	(a)	 	it is validly existing and is neither:






	 	(i)	 	unable to pay its debts when they fall due (zahlungsunfähig)
within the meaning of section 17 of the German Insolvency Code
(Insolvenzordnung); nor
	 
	 	(ii)	 	in a state of imminent inability to pay its debts when they fall
due (drohende Zahlungsunfähigkeit) within the meaning of section 18 of the
German Insolvency Code (Insolvenzordnung); nor
	 
	 	(iii)	 	over-indebted (überschuldet) within the meaning of section 19 of
the German Insolvency Code (Insolvenzordnung); nor
	 
	 	(iv)	 	subject to any insolvency proceedings (Insolvenzverfahren) (or
other or similar proceedings under the laws of any other applicable
jurisdiction) or any refusal of opening insolvency proceedings for insufficiency
of assets (Abweisung mangels Masse) (within the meaning of section 26 of the
German Insolvency Code (Insolvenzordnung));






	 	(b)	 	it is the sole legal, record and beneficial owner (Forderungs- bzw.
Rechtsinhaber) of the Existing Claims and the other rights and claims transferred or
assigned (or to be transferred or assigned) pursuant to this Agreement;
	 
	 	(c)	 	it has the right to freely dispose (verfügen) of the Existing Claims and the
other rights and claims transferred or assigned (or to be transferred or assigned)
pursuant to this Agreement and is not subject to any restrictions on assignment and
such disposition does not violate the rights of any third person, any contractual
undertaking of the Assignor to a third person or any regulatory orders;
	 
	 	(d)	 	the Claims are not in any way encumbered nor subject to any rights of third
persons; and
	 
	 	(e)	 	no litigation, arbitration or administrative proceedings, which could
reasonably be expected to have a material adverse effect, are presently in progress,
pending or threatened which restrain, or threaten to restrain, the Assignor in respect
of the entry into, the performance of or compliance with any of its obligations
pursuant to this Agreement.






	13.	 	UNDERTAKINGS
	 
	 	 	The Assignor undertakes:






	 	(a)	 	if any amount in excess of US$100,000 payable or security transferrable under
or in connection with this Agreement shall be or become evidenced by any authorisation,
approval, licence and consent such authorisation, approval, licence and consent shall
be promptly delivered to the Administrative Agent, duly indorsed in a manner
satisfactory to the Administrative Agent;
	 
	 	(b)	 	other than in case of Claims which are not governed by German law, to maintain
the security interest created by this Agreement as a perfected security interest and to
defend such security




14









 






	 	 	 	interest against the claims and demands of all persons whomsoever subject to the
rights of the Assignor under the Credit Agreement to dispose of the Claims;






	 	(c)	 	other than in case of Claims which are not governed by German law, at any time
and from time to time, upon the written request of the Administrative Agent and at the
sole expense of such Assignor, to promptly (unverzüglich) and duly execute and deliver,
and have recorded such further instruments and documents and take such further actions
as the Administrative Agent may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights and powers herein
granted, including, without limitation, execute one or more collateral agreements
(including assignments and releases) to obtain or preserve the security interest
created by this Agreement in favour of the Administrative Agent and the other Secured
Parties
	 
	 	(d)	 	to inform the Administrative Agent promptly (unverzüglich) of any attachments
(Pfändung) regarding any and all of the Claims or any other measures which can
reasonably be expected to impair or jeopardise the Administrative Agent’s rights
relating to the Claims. In the event of an attachment, the Assignor undertakes to
forward to the Administrative Agent promptly (unverzüglich) a copy of the attachment
order (Pfändungsbeschluss), the garnishee order (Überweisungsbeschluss) and all other
documents necessary for a defence against the attachment. The Assignor shall inform the
attaching creditor promptly (unverzüglich) about the Administrative Agent’s security
interests pursuant to this Agreement;
	 
	 	(e)	 	not to assign (or purport to assign), encumber or sell any of the Claims to any
third person without the Administrative Agent’s prior written consent unless already
permitted or so authorised pursuant to this Agreement or the Credit Agreement;
	 
	 	(f)	 	to refrain from any acts or omissions which can reasonably be expected to have
an adverse effect on the validity or enforceability of this Agreement or the security
interests constituted thereunder (or any of them); and
	 
	 	(g)	 	to notify any future Debtor promptly (unverzüglich) of this Agreement in
accordance with Clause 5 (Disclosure and Notification).






	14.	 	RELEASE AND REASSIGNMENT
	 
	14.1	 	Reassignment
	 
	 	 	After the full and irrevocable satisfaction and discharge of all Secured Claims, the
Administrative Agent shall, at the cost and expense of the Assignor, reassign to the
Assignor the Claims (together with any and all other rights and claims transferred or
assigned to the Administrative Agent pursuant to this Agreement) and confirm in writing to
the Assignor upon the Assignor’s request that the Assignments have ceased to exist. The
Administrative Agent will, however, assign any Claims (together with any other right and
claim transferred or assigned pursuant to this Agreement pertaining to them) to a third
person to the extent that it is obliged to do so.
	 
	14.2	 	Release of Security
	 
	 	 	Even prior to the full and irrevocable satisfaction and discharge of all Secured Claims, the
Administrative Agent is obliged to release, upon the Assignor’s request, and at the
Assignor’s cost and expense, all or part of the Security insofar as the realisable value of
the Security exceeds, not only temporarily, the Secured Claims by more than 10 %. The
Administrative Agent may, at its discretion, determine which part of the Security shall be
released but shall reasonably take into account the legitimate interest of the Assignor.




15









 












	14.3	 	Evaluation
	 
	 	 	For the purpose of calculating the realisable value of the Claims the following shall be
deducted from the nominal value of all Claims:






	 	(a)	 	Claims which cannot be assigned, or can be assigned only with the consent of a
Debtor who has not consented;
	 
	 	(b)	 	Claims which can be set off with an existing counterclaim;
	 
	 	(c)	 	Claims which are subject to defences or objections due to the fact that the
underlying services or performances have not been (fully) rendered;
	 
	 	(d)	 	Claims which have not been assigned to the Administrative Agent by reason of an
extended retention of title pursuant to Clause 6 (Assignment of claims against
conditional vendors); and
	 
	 	(e)	 	Claims the assignment of which is not valid due to the governing law and the
Debtor’s domicile or principal place of business.






	 	 	A further security deduction of 10 per cent. in order to take into account the risk of
distress of a Claim shall then be deducted from the nominal value calculated in accordance
with this Clause 14.3.
	 
	14.4	 	Adjustment
	 
	 	 	Each of the Parties has the right to demand an adjustment of the security deduction
different from that specified above, if the previously agreed security deduction turns out
to be too high or too low because of subsequent changes occurring after the date of this
Agreement.
	 
	15.	 	INDEMNITY
	 
	15.1	 	Liability for Damages
	 
	 	 	The Administrative Agent shall not be liable for any loss or damage suffered by the Assignor
save in respect of such loss or damage which is suffered as a result of the gross negligence
(grobe Fahrlässigkeit) or wilful misconduct (Vorsatz) of the Administrative Agent.
	 
	15.2	 	Indemnification
	 
	 	 	The Assignor shall indemnify and hold the Administrative Agent harmless and keep the
Administrative Agent indemnified from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever arising out of the execution, delivery, enforcement,
performance and administration of this Agreement which may be incurred by or made against
the Administrative Agent for anything done or omitted in the exercise or purported exercise
of the powers contained in this Agreement provided, that the Pledgor shall have no
obligation hereunder to the extent that such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever arising out of the execution, delivery, enforcement, performance and
administration of this Agreement are incurred by or made against the Administrative Agent as
a result of the gross negligence (grobe Fahrlässigkeit) or wilful misconduct (Vorsatz) of
the Administrative Agent.




16









 












	 	 	Any reference in this paragraph to the Administrative Agent includes any officer, director,
employee, agent, advisor (including any attorney) or other person appointed by the
Administrative Agent in accordance with the provisions of this Agreement and the other Loan
Documents.
	 
	16.	 	DURATION AND INDEPENDENCE
	 
	16.1	 	Duration
	 
	 	 	This Agreement shall remain in full force and effect until the full and irrevocable
satisfaction and discharge of the Secured Claims. This Agreement shall not cease to exist if
any payments made in satisfaction of the Secured Claims have only temporarily discharged the
Secured Claims.
	 
	16.2	 	Continuing Security
	 
	 	 	This Agreement shall create a continuing security and no change or amendment whatsoever in
any Loan Document or in any document or agreement related to it shall affect the validity or
limit the scope of this Agreement or the obligations which are imposed on the Assignor
pursuant to it.
	 
	 	 	The Assignor hereby agrees that the Security constituted under or pursuant to this Agreement
shall not be affected by any transfer of liabilities corresponding to the Secured Claims (or
any of them) to, or any assumption of liabilities corresponding to the Secured Claims (or
any of them) by, any third person, and hereby expressly consents (willigt ein) to any such
transfer and/or assumption of liability within the meaning of section 418 para. 1 sentence 3
of the German Civil Code (Bürgerliches Gesetzbuch) (including when applied by analogy).
	 
	16.3	 	Independence
	 
	 	 	This Agreement and the security interests constituted thereunder are independent from all
other security interests or guarantees which may have been or will be given to the
Administrative Agent and/or any of the other Secured Parties with respect to any obligation
of the Obligors (or any of them). None of such other security interests or guarantees shall
in any way prejudice, or be prejudiced by, this Agreement or the security interests
constituted pursuant to this Agreement.
	 
	17.	 	THE SECURITY TRUST AGREEMENT
	 
	 	 	In the event of any conflict between the provisions of this Agreement and the provisions of
the Security Trust Agreement, the provisions of this Agreement shall prevail.
	 
	18.	 	COSTS AND EXPENSES
	 
	 	 	The Assignor shall promptly (unverzüglich) pay or reimburse the Administrative Agent the
amount of any and all costs, charges, fees and expenses (including fees for legal advisers)
incurred by it in connection with the enforcement or preservation of any rights under this
Agreement or any waiver in relation thereto, together in each case with any applicable value
added tax or other taxes.
	 
	19.	 	PARTIAL INVALIDITY; WAIVER
	 
	19.1	 	Invalidity
	 
	 	 	If any provision of this Agreement 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




17









 






	 	 	Agreement (Vertragslücke). § 139 of the German Civil Code (Bürgerliches Gesetzbuch) shall be
waived hereby.






	19.2	 	Waiver
	 
	 	 	No failure to exercise, nor any delay in exercising, on the part of the Administrative
Agent, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right or remedy prevent any further or other exercise thereof or
the exercise of any other right or remedy. The rights and remedies provided hereunder are
cumulative and not exclusive of any rights or remedies provided by law.
	 
	20.	 	AMENDMENTS
	 
	 	 	Changes to and amendments of this Agreement, including this Clause 20, must be made in
writing.
	 
	21.	 	SUCCESSORS, ASSIGNMENTS AND TRANSFERS
	 
	 	 	This Agreement shall be binding upon the Parties hereto and, to the extent legally possible,
their respective successor(s) in law. The Administrative Agent shall be entitled to assign
or otherwise transfer (i) any and all of its rights and (ii) (only with regard to any person
which becomes a lender or an administrative agent under the Credit Agreement after the date
of this Agreement) any and all of its duties pursuant to this Agreement to third parties.
The Assignor is entitled to any such transfer with the prior written consent of the
Administrative Agent only.
	 
	22.	 	NOTICES AND THEIR LANGUAGE
	 
	22.1	 	Notices
	 
	 	 	Any notice or other communication under or in connection with this Agreement to the Assignor
or the Administrative Agent shall be in writing and shall be delivered personally, by post,
email or fax and shall be sent to the address, email address or fax number of the party, and
for the attention of the individual or department as set forth in Schedule 4 hereto or such
other address, email address or fax number as is notified in writing by that party for this
purpose to the Administrative Agent or, as the case may be, the Assignor, from time to time.
	 
	22.2	 	Language
	 
	 	 	Unless otherwise required by statutory German law or unless otherwise agreed in writing from
time to time, any notice or other communication under or in connection with this Agreement
shall be made in the English language or, if in any other language, accompanied by a
translation into English. In the event of any conflict between the English text and the text
in any other language, the English text shall prevail (unless the document is a statutory or
other official document), except that where a German translation of a legal term appears in
such text, the German translation shall prevail.
	 
	23.	 	APPLICABLE LAW; JURISDICTION
	 
	23.1	 	Governing Law
	 
	 	 	This Agreement shall be governed by and construed in accordance with the laws of the Federal
Republic of Germany.




18









 












	23.2	 	Jurisdiction
	 
	 	 	The place of jurisdiction for all Parties shall be Frankfurt am Main, Federal Republic of
Germany. The Administrative Agent, however, shall also be entitled to take legal action
against the Assignor in any other competent court of law having jurisdiction over the
Assignor or any of its assets.






19











 





SCHEDULE 1




ORIGINAL LENDERS




JPMorgan Chase Bank, N.A.




Bank of America, N.A.




Credit Suisse, Cayman Islands Branch




The Royal Bank of Scotland plc




Goldman Sachs Bank (Europe) Plc




Wells Fargo Bank, N.A.




HSBC Bank USA, National Association




Royal Bank of Canada




Morgan Stanley Bank, N.A.




20









 





SCHEDULE 2




ORIGINAL OBLIGORS




PART 1




ORIGINAL BORROWERS




ORIGINAL DOMESTIC BORROWER




First Solar, Inc.




ORIGINAL FOREIGN BORROWERS




First Solar Manufacturing GmbH




PART 2




ORIGINAL GUARANTORS




ORIGINAL DOMESTIC GUARANTORS




First Solar, Inc.




ORIGINAL FOREIGN GUARANTORS




First Solar Holdings GmbH




First Solar GmbH




First Solar Manufacturing GmbH




21









 





SCHEDULE 3




FORMS




PART 1




FORM OF NOTIFICATION FOR IMMEDIATELY DISCLOSED ASSIGNMENT (OFFENE ZESSION)




[Letterhead of the Assignor]




[Name and address of debtor]




	 	 	 
	[insert date and place]	 	[Datum und Ort einfügen]
	 
	 	 
	Dear Sirs,

	 	Sehr geehrte Damen und Herren,
	 
	 	 
	We hereby give you notice that
pursuant to a assignment agreement
entered into by us in favour of
JPMorgan Chase Bank, N.A. (the
“Administrative Agent”) dated
[insert date of the assignment
agreement], we have assigned to the
Administrative Agent by way of
security assignment all our present
and future claims against you
together with all ancillary rights
and claims pertaining thereto. We
are authorised by the Administrative
Agent to collect the assigned claims
in our own name and for our own
account and to exercise any rights
and claims in the ordinary course of
trading until and unless you receive
a notification from the
Administrative Agent or ourselves to
the contrary. Please see attached as
Annex 1 a copy of the assignment
agreement.




Please acknowledge receipt of this
notice and your agreement with the
terms hereof by countersigning this
letter and returning the same to us.

	 	Wir teilen Ihnen hierdurch mit,
dass wir mit Abtretungsvertrag
(Zessionsvertrag) vom [Datum des
Abtretungsvertrages einfügen]
sämtliche bestehenden und künftigen
Forderungen mit allen
dazugehörenden Rechten und
Ansprüchen gegen Sie an JPMorgan
Chase Bank, N.A. (der
“Sicherheitentreuhänder”) im Wege
der Sicherungsabtretung abgetreten
haben. Wir sind vom
Sicherheitentreuhänder ermächtigt,
alle Zahlungen betreffend die
abgetretenen Forderungen im eigenen
Namen und für eigene Rechnung
einzuziehen und entgegenzunehmen
und unsere Rechte im Rahmen des
gewöhnlichen Geschäftsbetriebs
auszuüben, wenn und soweit sie
keine anderslautende Mitteilung des
Sicherheitentreuhänders oder durch
uns erhalten. Als Anlage 1 erhalten
Sie eine Kopie des
Abtretungsvertrages.


Bitte bestätigen Sie den Erhalt
dieser Benachrichtigung und Ihr
Einverständnis mit den hierin
enthaltenen Bestimmungen durch
Gegenzeichnung dieser
Benachrichtigung und Rücksendung an
uns.
	 
	 	 
	Yours faithfully,

	 	Mit freundlichen Grüßen,
	 
	 	 
	First Solar Manufacturing GmbH

	 	First Solar Manufacturing GmbH


	By: 


Name:
Title:

	 	
 

Name:

Titel:

	 
	 	 
	Acknowledgement of the debtor

	 	Bestätigung des Drittschuldners
	We acknowledge receipt of this
notification letter and confirm our
agreement with the terms thereof.

	 	Wir bestätigen den Erhalt der
Benachrichtigung und erklären unser
Einverständnis mit den darin
enthaltenen Bestimmungen.






22









 






	 	 	 
	[insert full name of the debtor]

	 	[den vollständigen Namen des Drittschuldners einfügen]


	By:  


Name:

Title:

Date:

	 	
 

Name:

Titel:

Datum:







23









 






Annex 1 / Anlage 1

Copy of the assignment agreement / Kopie des Sicherungsabtretungsvertrages




24









 








SCHEDULE 4




ADDRESSES FOR NOTICES




	 	 	 
	To the Assignor:

	 	First Solar Manufacturing GmbH
	 
	 	 
	 

	 	Marie-Curie-Str. 3
	 

	 	15236 Frankfurt (Oder)
	 
	 	 
	 

	 	Germany
	 
	 	 
	 

	 	Attn.:     Anja Lange
	 

	 	               David Brady
	 
	 	 
	 

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

	 	              +1-602-414-9462
	 
	 	 
	 

	 	Email:   alange@firstsolar.com
	 

	 	              dbrady@firstsolar.com
	 
	 	 
	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
	 
	 	 
	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






25









 






SIGNATORIES




	 	 	 	 	 
	The Assignor

First Solar Manufacturing GmbH

 	 	 
	/s/ David Brady
 	 	 
	Name:  	David Brady 	 	 
	Function: Authorized Officer (Prokurist) 	 	 
	 
	The Administrative Agent

JPMorgan Chase Bank, N.A.

 	 	 
	/s/ Stefan Kuhm
 	 	 
	Name:  	Stefan Kuhm 	 	 
	Function: Attorney-In-Fact 	 	 
	 




26