EX-10.5



 





Exhibit 10.5




[CONFIDENTIAL TREATMENT REQUESTED.

CONFIDENTIAL PORTIONS HAVE BEEN REDACTED

AND FILED SEPARATELY WITH THE COMMISSION]




[ENGLISH TRANSLATION]




FRAMEWORK AGREEMENT ON THE SALE AND PURCHASE OF SOLAR MODULES




entered into by and between



First Solar GmbH, Rheinstraße 4N, D-55116 Mainz, Germany (hereinafter referred to as “FS”)
represented by the managing director with single signature authority, Mr. Stephan Hansen,



and



Phönix SonnenStrom AG, Hirschbergstr. 8, D-85254 Sulzemoos (hereinafter referred to as “Buyer”),
represented by the Board Member Manfred Bächler and Procurement Director Stuart Brannigan.



FS and Buyer are each a “Party” and collectively the “Parties”.




	1.	 	Recitals





FS and Buyer enter into this framework agreement (hereinafter referred to as the “Agreement”) on
the sale and purchase of photovoltaic modules (hereinafter referred to as “Modules”).




	2.	 	Volume of Purchase and Specifications
	 
	2.1	 	Pursuant to the Price/Volume Table (as defined in Section 3.1), the Buyer hereby purchases
from FS Modules and shall be obligated to accept the delivery of such Modules as agreed.
Pursuant to the Price/Volume Table, FS hereby sells to Buyer such Modules and shall be
obligated to deliver them as agreed.
	 
	2.2	 	The Modules sold and purchased pursuant to Section 2.1 above shall have the specifications
set out in the Module Product Specification (Appendix A). Modules shall be installed in a
manner consistent with the System Design and Application Document (Appendix B). The Buyer
shall apply Modules only in systems that are mutually approved and documented, such
documentation being signed by the Parties using a System Design and Application Document
(Appendix B).
	 
	 	 	A System Design and Application Document (Appendix B) mutually approved and documented by
the Parties prior to the entering into of the Agreement shall be deemed a valid System
Design and Application Document (Appendix B) for the purposes of the Agreement.
Notwithstanding the provisions of this Section, any use of the Modules in a system that is
not mutually approved by the Parties in the System Design and Application Document (Appendix
B) requires FS’ prior written approval, which shall not be unreasonably withheld. If no
response is provided by FS within 15 days of a written request for approval by Buyer,
submitted together with the documentation required for a new System Design and Application
Document, such new System Design and Application Document is deemed to be mutually accepted.
	 
	2.3	 	Additional Module product types or changes to the specifications of Modules as set forth in
the Module Product Specification (Appendix A) above may be made by FS to the extent that such
changes or additions do not reduce the performance of the System or conflict with the
application and use of the Modules as documented in the approved System Design and Application
Document (Appendix B). FS will provide 90 days written notice prior to delivering such Modules
for carriage as described in Section 4.
	 
	3.	 	Delivery Dates, Volumes and Prices
	 
	3.1	 	The Modules sold and purchased pursuant to Section 2.1 above shall be delivered in
installments in total annual numbers as identified in the Appendix C Table C1 for each
calendar year and the





 









 






	 	 	installments shall be delivered during each year in accordance with the procedure further
specified in Sections 3.2 and 3.3. Each installment shall be delivered according to Section
4.1. All prices are exclusive of VAT. At any time before December 31, 2006, FS may, upon
written notice to Buyer, replace Table C1 with Table C2. The applicable Appendix is referred
to in this Agreement as the Price/Volume Table.
	 
	3.2	 	The Price/Volume Table sets out the following annual kilowatt volumes for the sale and
purchase of Modules: (i) binding minimum kilowatt volumes FS is committed to deliver; (ii) the
target kilowatt volumes the Buyer is committed to accept and (iii) additional kilowatt volumes
Buyer is committed to accept, provided that FS has notified Buyer of the date of the first
Modules being Delivered for Carriage (as defined in Section 4) for the additional kilowatt
volumes according to the notice period specified in the Price/Volume Table.
	 
	3.3	 	The Parties shall work together to develop a binding forecast of Module delivery volumes and
average Module power per Module on a rolling four (4) quarter basis for successive four
quarters, based on the annual total minimum, target and additional kilowatt volume purchase
commitments set forth in the Price/Volume Table. If the Parties do not otherwise agree, the
binding rolling four (4) quarter schedule shall be determined pursuant to the provisions in
the Price/Volume Table.
	 
	4.	 	Shipment; Delivery; Late Delivery
	 
	4.1	 	The Modules Delivered for Carriage shall be shipped “CIP” (INCOTERMS 2000) to a point of
destination specified by Buyer (hereinafter referred to as “Point Of Destination”).
Accordingly FS shall deliver each shipment of Modules to Buyer to a carrier at one or more FS
factories (such delivery from FS to the carrier is referred to as “Delivered for Carriage”),
such deliveries to be credited to FS’ total delivery obligation pursuant to Sections 3.2 and
3.3. The risk of loss of, or damage to, the Modules after such Modules have been Delivered for
Carriage fall upon Buyer. On Buyer’s behalf and in Buyer’s name, FS shall arrange and pay for
insurance against the Buyer’s full risk of loss of the Modules or damage to the Modules during
carriage and provide such proof of insurance to Buyer upon request.
	 
	 	 	Buyer shall notify FS of the Point Of Destination in writing at
least ten (10) days ahead of a scheduled Delivered for Carriage
date. The Point Of Destination shall be a point with either a valid
address, in particular a house number, accessible from a public road
or a point that is described with sufficiently detailed driving
instructions. Unless the Buyer provides for a new general or
individual Point Of Destination or, as the case may be, if Buyer
does not provide the Point Of Destination in time, then FS shall
have the right to deliver to the following default Point Of
Destination:




Spedition Schwaab

Parkstr. 25

D — 86462 Langwied am Lech /

Ortsteil Foret





	 	 	If the default Point Of Destination specified by Buyer no
longer complies with the requirements stated above, then FS shall
have the right to designate a replacement default Point of
Destination located as close to the original default Point of
Destination as practicable (the original or replacement default
Point of Destination is referred to in this Agreement as the
“Default Point of Destination”) .
	 
	 	 	FS shall pay for the transportation and insurance costs incurred in
shipping Modules to the Point of Destination specified by Buyer up
to a maximum amount equal to the greater of (1) €0.025 per watt or
(2) the transportation and shipping costs that would be incurred by
FS in shipping the Modules from the FS factory in Ohio to the
Default Point of Destination. The transportation and shipping costs
that FS is required to pay under the preceding provision are
referred to in this Agreement as the (“Shipping Costs”). Buyer shall
bear any transportation and insurance costs in excess of the
Shipping Costs (“Excess Shipping Costs”); proof of such will be
provided by FS at time of invoice. FS may advance Excess Shipping
Costs on behalf of Buyer, in which case FS will





 









 






	 	 	invoice such costs to Buyer and Buyer shall pay FS according to the payment terms set forth
in Section 7.
	 
	 	 	Each container or truckload (collectively hereinafter “Shipment”) shall only be loaded with
Modules for one single Point Of Destination and shall be completely unloaded by Buyer after
arrival at the Point Of Destination. The loading of the containers is at the sole discretion
of FS. FS will attempt to ship full containers whenever possible. Seven (7) days before a
shipment is Delivered for Carriage FS shall issue a shipment confirmation that shall confirm
an exact date that the Shipment is to be Delivered for Carriage and the total number of
Modules and Module product types by product number. FS shall have the right to include up
to one (1) Module product type per individual Shipment. FS shall package only one (1)
Module product type per box and shall clearly label the Module product type that is packaged
in the box. FS shall provide the Buyer with factory measured module power, voltage and
current data (Flash Reports in an Excel file format) for each delivered Module at the time
that a Shipment is Delivered for Carriage or sooner.
	 
	4.2	 	FS shall be liable in case of Modules which are Delivered for Carriage late pursuant to
Section 3, in accordance with statutory rules to the extent






	 	a)	 	the instalment is considered to be a fixed term deal pursuant to Section 376
German Commercial Code or;
	 
	 	b)	 	the Buyer is entitled to claim that the fulfilment of the Agreement is of no
further interest to him due to a delay for which FS is responsible or;
	 
	 	c)	 	the delivery delay is due to FS’ wilful or grossly negligent breach of
contract; any negligence of a representative shall be attributed to FS. To the extent
the delivery delay is not due to wilful breach of contract, any indemnity shall be
limited to the predictable and characteristically to be expected damage; or
	 
	 	d)	 	the delivery delay is due to a breach of a material contractual obligation for
which FS is responsible; in this case any indemnity shall be limited to the predictable
and characteristically to be expected damage.






	4.3	 	In case of Modules which are Delivered for Carriage late in accordance with Section 3 for
reasons FS is responsible for and the Buyer chooses not raise any claims against FS for this
delay in accordance with Section 4.2, the Buyer shall have the right to a late delivery
penalty payment from FS. After a grace period of seven (7) business days, FS shall from the
eighth (8th) business day of delay incur a penalty charge for each week that the
shipment is late in the amount of






	 	aa)	 	[***]% of the purchase price of the installment which is late, if the agreed
Delivered for Carriage date was in the first (1st) through third
(3rd) calendar quarter; or
	 
	 	bb)	 	[***]% of the purchase price of the installment which is late, if
the agreed Delivered for Carriage date was in the fourth (4th)
calendar quarter, and, in cases where the delay extends from the calendar year
in which the delivery was originally scheduled into the following calendar year,
calculated on the basis of the prices set out in the Price/Volume Table
(Appendix C) for such following calendar year;






	 	 	 	in any event up to a maximum of ten (10) weeks based on the original Delivered for
Carriage date for each installment.






	5.	 	Inspection and Notice of Defect
	 
	5.1	 	Within the scope of Buyer’s duty to inspect and object upon arrival of the goods at the Point
of Destination (the “Arrival”),






	 	a)	 	other than for any additional obligations to inspect and object pursuant to the
agreement with the carrier and under the carriage insurance, the Buyer shall
immediately check quantities and the boxes for any visible shipping damages and record
in any event any






	 	 	 
	***

	 	CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH
THE COMMISSION.







 









 






	 	 	 	discrepancies and objections on the packing slip and have the carrier countersign such
discrepancies and objections ; and
	 
	 	b)	 	within 7 (seven) days conduct a representative visual inspection for defects of
the Modules and quantities of Modules in the boxes from at least [***]% of the boxes
delivered and, to the extent necessary, open the packaging and check the goods with
regard to their exterior condition.
	 
	 	 	 	Any such wrong quantities of Modules in the boxes or damaged Modules, excluding any
damages resulting from the shipping of the Modules for which FS is not responsible,
shall be considered a “Defect.”






	5.2	 	In case of a Defect within the scope of Section 5.1 above, the Buyer shall comply with the
following procedures and deadlines:






	 	a)	 	The notification of any Defects to FS shall be made no later than on the
seventh (7th) workday following the Arrival pursuant to Section 5.1 above
(the “Objection Period”).
	 
	 	b)	 	The detailed notice shall be delivered to FS within the Objection Period in
writing or by fax or by email to the addresses and contact details specified on the
bill of lading. A notice over the telephone shall not be sufficient. Notices to sales
representatives, commission agents or agents shall not be valid.
	 
	 	c)	 	The notice must clearly specify the kind and extent of the alleged Defect.
	 
	 	d)	 	The Buyer agrees to make the allegedly defective goods available for FS’s
inspection at the Point of Destination; such inspection may be conducted by FS, FS’s
suppliers or any expert FS may have designated.






	5.3	 	Objections that do not comply with the objection obligations set forth in Sections 5.1 and
5.2 shall be disregarded.
	 
	5.4	 	A good to which no objections have been made in accordance with the procedures and deadlines
set out above shall be regarded as approved and accepted.
	 
	5.5	 	The provisions of this Section 5 shall (i) apply mutatis mutandis to any hidden defect within
the meaning of Section 377 par. 2, 3 German Commercial Code (ii) not apply in case of any
defect maliciously kept silent by FS.
	 
	6.	 	Liability of the Parties
	 
	6.1	 	With respect to liability for defects of the Modules that were objected to in accordance with
Section 5, FS shall at FS’ discretion, either repair such defect free of charge or supply a
replacement delivery free of charge and take back the defective Modules delivery.
	 
	6.2	 	Buyer’s right to rescind or reduce the purchase price if the replacement delivery or repair
under Section 6.1 fails, shall be limited to the relevant installment and shall not affect the
remainder of the Agreement, provided that the Buyer may rescind from this Agreement if the
Buyer is entitled to rescind from individual installments in accordance with Section 6.1 (i)
if due to defects of more than 15% of the value volume (KWp) of the installments (including
any replacement deliveries) to be delivered in any quarter are defective or (ii) if more than
10% of the value volume (KWp) of installments (including any replacement deliveries) to be
delivered in any calendar year are defective.
	 
	6.3	 	If the total volume of Modules delivered in any calendar quarter that Buyer has objected to
due to a defect in accordance with Section 5, exceeds 15% of the minimum kilowatt volume of
Modules required to be delivered by FS during such quarter in accordance with Section 3, Buyer
may upon written notice to FS, (1) request that FS provide reasonable assurances that the
defects previously experienced by Buyer will not be present in further Module Shipments and
(2) suspend the agreed






	 	 	 
	***

	 	CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH
THE COMMISSION.








 









 






	 	 	upon further delivery and deny acceptance of such future Module Shipments until FS has
provided such reasonable assurances. After FS has provided such assurances, FS may resume
shipment of the suspended Module shipments to Buyer and Buyer shall be obligated to accept
and pay for the Modules. If FS fails to provide such assurances described in clause (1)
above, Buyer may, whether or not it has previously suspended delivery under clause (2)
above, at any time 60 (sixty) days after requesting the assurances under clause (1), upon
written notice to FS, terminate the Agreement (a “Defects Termination”). Upon making such
declaration, neither Buyer nor FS shall have any further obligations or liabilities under
this Agreement except with respect to (i) Modules already delivered to Buyer and (ii) FS’
obligation to indemnify the Buyer for its predictable and characteristically to be expected
damage resulting from such termination.
	 
	6.4	 	The Buyer shall further have the rights set out in the Module Warranty Terms & Conditions
(Appendix D), regardless of whether objections pursuant to Section 5 above were made in time;
the scope of these rights shall be exclusively governed by the Module Warranty Terms &
Conditions (Appendix D).
	 
	6.5	 	The Buyer shall not be entitled to any further rights or remedies due to defects. In
particular, FS shall not be responsible to pay damages based on breach of the Agreement or
default except in cases of willful misconduct or gross negligence on behalf of FS or in cases
where FS has granted an express guarantee within the meaning of Sections 443, 444 German Civil
Code. To the extent FS is not liable due to willful misconduct, the liability for damages
pursuant to the preceding sentence is limited to the amount of predictable and
characteristically to be expected damage.
	 
	6.6	 	The statute of limitation for claims pursuant to Section 6.1-6.3 shall be 24 months from the
date of the Arrival; the statutory statute of limitation in cases of a recourse against the
supplier in accordance with Sections 478, 479 German Civil Code, remains unaffected; it shall
be five years from the date of Arrival of the defective goods. Section 6.4 remains unaffected.
	 
	6.7	 	Apart from liability for defects, FS shall be liable in accordance with statutory law for any
breach of fundamental contractual obligations FS is responsible for; insofar, FS’ liability
shall be limited to the predictable and characteristically to be expected damage. This applies
mutatis mutandis to the Buyer in case of any breach of fundamental contractual obligations.
	 
	6.8	 	Notwithstanding this Section 6, the Parties shall be liable for any negligent personal
injury; the same shall apply to FS’ mandatory liability under the German Act on Product
Liability (Produkthaftungsgesetz).
	 
	6.9	 	Unless otherwise agreed in this Agreement, the Parties liability shall be excluded,
irrespective of the legal nature of such claim, e.g. culpa in contrahendo, other breach of
contract or claims based on tort for compensation of property damage.
	 
	6.10	 	Any limitation of liability for damages of the Parties shall also apply to any personal
liability for damages of employees, workers, representatives and the like of FS and Buyer.
	 
	7.	 	Payment
	 
	7.1	 	FS may invoice Buyer for each Shipment at any time on or after Delivery for Carriage. Buyer
shall pay the total purchase price for each Shipment within ten (10) days after the date of
the invoice issued by FS demonstrated by fax or email confirmation on request (other than for
the year 2006 which shall be within forty five (45) days after the date of the invoice issued
by FS. Buyer shall pay for the goods by way of wire transfer free of expenses into the bank
account specified on the invoice. The purchase price shall be payable net cash in one sum and
free of any deduction in the currency specified in the Price/Volume Table (Appendix C) unless
other payment terms were mutually agreed on in writing.
	 
	7.2	 	In the event of a payment default pursuant to
Section 7.1, (i) a late charge of 1.5% per
month shall be charged on all delinquent amounts, and (ii) FS may apply any or all payments
subsequently received from Buyer on a priority basis to pay the accrued late charges and then
the delinquent payment, notwithstanding any other application of such payments that Buyer may





 









 






	 	 	designate or request with the exception of amounts outstanding pursuant to Section 6.2, and,
(iii) FS may, upon written notice to Buyer, suspend further delivery of Modules under the
Agreement until all late charges and delinquent amounts have been paid in full. Upon relief
of such suspension, FS may deliver and Buyer shall be obligated to accept and pay for, any
suspended Shipment as and when FS resumes delivery.
	 
	 	 	If (a) late charges or delinquent payments remain outstanding for a period of more than
sixty (60) days or (b) invoiced amounts are not paid by Buyer (i) when due on more than
three (3) consecutive occasions or (ii) within seven (7) days after the due date on more
than three (3) occasions over a consecutive twelve (12) month period, FS may, in any such
event (each a “Payment Breach”), terminate the Agreement for cause without notice period.
Upon such termination, FS shall have no further obligation to sell and deliver Modules to
Buyer and FS shall be entitled to any legally recoverable damages in addition to the default
interest and delinquent payments that gave rise to the termination. FS will provide written
notice of any incidence of delinquent payment to Buyers designated representative; FS’
claims due to payment default are not dependent on this notification, except for the
termination of this agreement which FS may only declare after having sent a notification by
registered mail.
	 
	7.3	 	Unless otherwise specifically provided for herein, neither Party shall have the right to set
off, withhold or reduce any amounts unless the underlying counterclaims have become final or
are expressly acknowledged by the other Party.
	 
	8.	 	Confidentiality
	 
	8.1	 	In addition to any other confidentiality agreements between the Parties, the Parties
undertake to keep secret any and all information and documents provided by the other Party or
of which they have otherwise obtained knowledge in connection with this Agreement from the
other Party, save for any information or documents that are in the public domain.
	 
	8.2	 	FS shall use the Buyer’s personal data only in accordance with German Data Privacy Laws.
	 
	8.3	 	Publications in which any content of the Agreement is mentioned require the prior written
approval of the other Party in each individual case. In cases where a Party desires to
disclose only the mere fact that the Agreement has been entered into without giving any
further details, in particular no details on the content of the Agreement, no approval shall
be required.
	 
	8.4	 	The above confidentiality undertaking shall not apply to the extent each Party is obliged by
law, rule or regulation and an official or court order or ruling to disclose such confidential
information or documents.
	 
	9.	 	Quality Management and Environmental Protection
	 
	9.1	 	The Buyer shall, in case of a resale, and/or the integration of Modules in a system in
accordance with this Agreement, propose to the final customers (including operators and/or
owners of the property where the PV-system is located, collectively the “Final Customers”)
that FS retains the general right to monitor by remote access the installed PV-system
(comprising the total goods delivered [by FS], in particular the Modules as well as the entire
installation) with respect to the energy performance for the entire life cycle of the
individual PV-system for the purpose of the long-term collection of performance data for a
continuous product quality management (hereinafter referred to as “Remote Data Monitoring”).
Insofar, Buyer shall also propose that FS shall have at all times the unlimited right to
access the PV-system or parts thereof for installation, maintenance, repair and the operation
of the Remote Data Monitoring vis-à-vis the Final Customers.
	 
	9.2	 	If the Final Customers agree to the Remote Data Monitoring, FS will share upon request the
system data retrieved with the Buyer, and, provided such Buyers consent hereto, with the Final
Customer.





 









 






	9.3	 	FS shall also have the right to Remote Data Monitoring in accordance with this Section 9 of
Modules installed by and for the Buyer at its equitable discretion. Any publications
specifying the system or its location shall require the Buyer’s approval.
	 
	9.4	 	FS shall bear the cost for the technical installation and the operation of the Remote Data
Monitoring.
	 
	9.5	 	For purposes of environmental protection, the Parties hereby enter into the Module
Reclamation and Recycling Agreement (Appendix E). Buyer shall promptly give written notice to
FS of a sale or transfer of Modules to a third party in order to allow FS and such third party
for the assumption of contract of the Module Reclamation and Recycling Agreement (Appendix E)
within 14 (fourteen) days after transferring ownership of the Modules to the third party.
	 
	9.6	 	The Buyer shall oblige any of its customers and transferees, who are not Final Customers, to
assume the obligations set forth in this Section 9 by way of a right that directly inures to
the benefit of FS and in a manner that such customers are themselves, or in the case of a
further resale or transfer, their customers or transferees, are directly bound like the Buyer
by the provisions of this Section 9 and that they are further obligated to observe the
provisions of this Section 9.6 with respect to any of their own transferees.
	 
	9.7	 	The execution and delivery by any customer or transferee (i) of the Module Reclamation and
Recycling Agreement (Appendix E), and (ii) the assumption of the obligations in accordance
with Section 9.6 is required in order for the power warranty under the Module Warranty Terms
and Conditions (Appendix D) to stay effective.
	 
	10.	 	Meeting between the Parties
	 
	10.1	 	Representatives of FS and Buyer will meet once per calendar quarter at a mutually agreed upon
location to advise each other of the performance and future plans relating to their respective
businesses, to assure each Party of the other’s ability to continue to perform the agreement
and to explore additional ways to work together for mutual benefit and to discuss the rolling
forecast in accordance with Section 3.3. Each Party will maintain a primary contact person for
these purposes.
	 
	10.2	 	In addition to the quarterly meetings described in Section 10.1, FS and Buyer shall conduct
an annual summary meeting in order to review performance of each Party hereunder and to review
the Non-Binding Quarterly Forecast for the subsequent calendar year.
	 
	10.3	 	Neither Party will be required to disclose proprietary business information to the other
Party in connection with meetings under this Section 10.
	 
	11.	 	Resale
	 
	11.1	 	The Buyer acknowledges that the Modules may be subject to a variety of regulations in various
jurisdictions, in particular in the countries (the “Approved Countries”) listed on the
appendix Approved Countries and Applications (Appendix G) attached hereto.
	 
	11.2	 	The Buyer further acknowledges that the Modules have been developed, tested and approved only
for the use in specific applications (the “Approved Applications”) listed on the appendix
Approved Countries and Applications (Appendix G) and that, to avoid any damage by inconsistent
use, the Modules shall not be used for other applications.
	 
	11.3	 	To the extent the Buyer uses, installs, resells or transfers the Modules in areas that are
not Approved Countries, the Buyer shall indemnify FS for any losses and damages incurred out
of or in connection with such use, installation, resale or transfer of the Modules . In
accordance with Section 10.1, FS and Buyer will discuss opportunities to include additional
Approved Countries and Approved Applications to the Approved Countries and Applications
(Appendix G) by considering the regulations applicable to Module sales, use, and
decommissioning, the plan for meeting the support needs of final customers, and the plan for
meeting the obligations set forth in





 









 






	 	 	Sections 9.5 and 9.6 for such new countries and applications. FS will not unreasonably
withhold its approval to add new countries and applications to Appendix G.
	 
	11.4	 	In case of a use, installation, resale or transfer pursuant to Section 11.3 or a non Approved
Application, Buyer shall promptly give notice to FS of the location to which the Modules are
brought to outside the Approved Countries or the applications other than the Approved
applications for which the Modules are used, as applicable and of any transferee of the
Modules.
	 
	11.5	 	In addition to the obligations set forth in Sections 9.5 and 9.6, Buyer may resell or
transfer Modules only to customers or transferees that agree to be bound by, and adhere to,
(i) the FS System Design and Application Document (Appendix B), and (ii) the Module Warranty
Terms and Conditions (Appendix D). Sections 9.6 and 9.7 shall apply mutatis mutandis.
	 
	11.6	 	Any use, installation, resale or transfer by Buyer of Modules not in accordance with the
requirements of Section 9.5, 9.6 and this Section 11 shall entitle FS to terminate the
Agreement (a “Transfer Breach”) after a cure period of thirty (30) days which FS shall set to
the Buyer in writing has expired unsuccessfully.
	 
	12.	 	Letter of Credit
	 
	12.1	 	Buyer shall deliver to FS an irrevocable payment guarantee in favor of FS in the amount set
forth in the Price/Volume Table (Appendix C) (“Letter of Credit”) that shall secure the
payment obligations of Buyer out of or in connection with this Agreement.
	 
	12.2	 	The Letter of Credit shall be issued as of December 1, 2006 by IKB Deutsche Industriebank AG
or another mutually acceptable bank, containing terms and conditions of the attached
Performance Guarantee (Appendix I) (to the extent requested by the guarantor in the form of a
guarantee on first demand) or substantially the same terms reasonably acceptable to FS, and
Buyer shall renew such Letter of Credit on an annual basis, such renewal to be effective on
every subsequent 1st of December, in the amounts for the time periods set forth in
the Price/Volume Table.
	 
	12.3	 	If the Buyer has not delivered a renewal Letter of Credit in accordance with Section 12.2 by
the 1st of December of any year for the following period commencing on the 1st of January, FS
shall be entitled to draw down the full amount of the Letter of Credit then in place. FS shall
deposit the proceeds drawn in accordance with the preceding sentence in an escrow account
until the Buyer has properly delivered a renewal Letter of Credit within a cure period of 30
days or, if such cure period has expired fruitless and FS serves the Buyer with notice of
termination of this Agreement, until all claims of FS against the Buyer have been settled.
	 
	12.4	 	After orderly termination of this Agreement, FS shall return the original of the Letter of
Credit to Buyer no later than one month after such termination. To the extent that not all
claims of FS against Buyer have been settled by that date, FS shall be entitled to draw the
Letter of Credit then in place in an amount sufficient to cover the remainder of the Buyer’s
obligations; provided that the Buyer has not posted another security sufficient and reasonably
acceptable to FS in lieu thereof, FS shall deposit the proceeds drawn in accordance with the
preceding sentence in an escrow account until final resolution of the claim against the Buyer.
	 
	13.	 	Term and Termination
	 
	13.1	 	This Agreement shall be effective until the time period specified in the Price/Volume Table.
The right to terminate this Agreement for cause shall remain unaffected.
	 
	13.2	 	If a “Material Adverse Change” (as defined below) occurs, FS may, in its good faith equitable
discretion, terminate the Agreement, with 12 months prior notice of termination to the end of
a quarter. On the effective date of such termination, FS shall pay Buyer a liquidated damages
fee of € 5 Mio. Upon payment of such fee, FS shall have no further obligations to Buyer out
of or in connection with such termination. A “Material Adverse Change” shall have occurred if
FS determines, in its equitable discretion, that any of the following conditions exist: (1)
new laws, rules or regulations apply to the production, distribution, installation, take back
or recycling of Modules





 









 






	 	 	that substantially adversely impact the business of FS have become effective; (2)
unanticipated technical or operational issues result in widespread, persistent quality
problems relating to the Modules or an inability to achieve stable Module conversion
efficiencies at levels stipulated in Appendix C; or (3) extraordinary events beyond
the operational control of FS substantially increase labor, material or utility expenses or
significantly reduce production throughput.
	 
	 	 	In the event that FS realizes that the situation of FS, considering FS’ obligations under
this Agreement, has significantly deteriorated in a manner that might result in a Material
Adverse Change, FS and Buyer enter into good faith discussions to modify the Agreement in
order to prevent the occurrence of a Material Adverse Change and to preserve, as closely as
practicable under the circumstances, the intended economic benefits for both Parties under
the Agreement.
	 
	14.	 	Miscellaneous
	 
	14.1	 	All notices or other communications (including sending of invoices to Buyer) which are
required or permitted hereunder shall be in writing and sufficient if delivered personally or
sent by mail, postage prepaid, facsimile transmission or email transmission addressed as
follows:
	 
	 	 	If to FS,




First Solar GmbH,

Rheinstraße 4N,

D-55116 Mainz,

Mr. Stephan Hansen

(shansen@firstsolar.com)



If to Buyer,



Phönix SonnenStrom AG,

Hirschbergstr. 8,

D- 85254 Sulzemoos,

Mr. Rainer Kolb

(kolb@sonnenstromag.de).





	 	 	All such notices or other communications shall be deemed to have been delivered (i)
upon receipt when delivery is made by hand, (ii) on the third business day after deposit in
the mail, and (iii) upon complete transmission when made by email or facsimile transmission
(if evidenced by a sender transmission completed confirmation). Any email communication
shall be deemed to have been validly and effectively given on the date of such
communication, if such date is a business day in Germany and such delivery was made prior to
16:00 Frankfurt, Germany time, otherwise it will be deemed to have been delivered on the
next business day.
	 
	14.2	 	The Buyer may transfer its rights under the Module Warranty (Appendix D) and the Module
Reclamation and Recycling Agreement (Appendix E) with execution and delivery of the Assignment
of Module Warranty and Reclamation Agreement (Appendix F) to its transferee. Sections 9.6 and
11.6 shall remain unaffected.
	 
	14.3	 	The Agreement contains the entire agreement between the Parties and cancels and invalidates,
safe for any explicit agreement to the opposite in this Agreement, all prior commitments or
representations which may have been made by the Parties either orally or in writing. The
Parties agree that there are no representations, warranties, conditions, guarantees or
understandings other than those expressly set forth in the Agreement.
	 
	14.4	 	The Appendices to the Agreement, including but not limited to, the Arbitration Agreement
(Appendix H) shall constitute integral parts of the Agreement.
	 
	14.5	 	The Agreement, including this section, may be amended, modified or supplemented only by a
written instrument authorized and executed on behalf of the Parties.





 









 






	14.6	 	The Agreement shall be governed by and construed in accordance with the laws of the Federal
Republic of Germany. The Convention on the International Sale of Goods (CISG) shall not
apply.
	 
	14.7	 	The unenforceability of any provision of the Agreement shall not affect the enforceability of
any other provisions hereof. Unenforceable provisions shall be deemed to be replaced by such
enforceable provisions that are suitable to implement the economic purpose of the deleted
provision to the greatest extent possible.
	 
	14.8	 	The Agreement has been drawn up in both, the English and the German languages, except for
certain parts of the Appendices. The English translation shall be for convenience purposes
only. For the avoidance of doubt, in the event of a dispute, the German version shall prevail,
except for those certain parts of the Appendices that are in English only.
	 
	14.9	 	This Agreement shall be binding upon and inure to the benefit of the Parties and their
assigns. A transfer or assignment of this Agreement shall not relieve the transferring Party
of its continuing obligations under this Agreement, including, but not limited to, the Buyer’s
obligation to provide the Letter of Credit as described in Section 12, unless the respective
other Party provides a written consent to the release of such obligations. Such consenting
Party shall not unreasonably withhold consent to such release provided the transferring Party
has fully performed all of its obligations under the Agreement through the date of transfer or
assignment, and, in case of a transfer by Buyer, the transferee replaces the Buyer’s Letter of
Credit with an identical instrument, and there is no other good cause residing in the person
of the transferee that would cause an obstacle to the performance of the obligations remaining
under the Agreement.





Mainz, den 30.3.2006



	 	 	 	 	 
	First Solar GmbH
	 	Phönix SonnenStrom AG	 	 
	 	 	 	 	 
	/s/ Stephan Hansen
	 	/s/ Manferd Bächler
	 	/s/ Stuart Brannigan
	 
	 	 
	 	 
	Stephan Hansen
	 	Manferd Bächler
	 	Stuart Brannigan






 









 





List of Appendices




	 	 	 
	Appendix	 	Document Name
	 
	 	 
	Appendix A (PD-5-101-02)

	 	Module Product Specification
	 
	 	 
	Appendix B (PD-2-303 B)

	 	System Design and Application Document
	 
	 	 
	Appendix C (MD-2-319 PVT)

	 	Price/Volume Table
	 
	 	 
	Appendix D (PD-5-102)

	 	Module Warranty Terms & Conditions
	 
	 	 
	Appendix E (PD-5-103)

	 	Module Reclamation and Recycling Agreement
	 
	 	 
	Appendix F (PD-5-104)

	 	Assignment of Module Warranty and Reclamation Agreement
	 
	 	 
	Appendix G (MD-2-319 ACA)

	 	Approved Countries and Applications
	 
	 	 
	Appendix H

	 	Arbitration Agreement
	 
	 	 
	Appendix I

	 	Performance Guarantee






 









 





Appendix A




Page 1




Series 2 Module Product Specification



1. General Product Description





	 	 	The Product specified in this document is a First Solar FS Series 2 Laminate PV module
intended for use in large solar arrays. The product will be binned according to Pmpp at
STC1 as measured at the First Solar Manufacturing Facility.






	 	a.	 	The Product model number and nominal power rating shall be:






	 	•	 	FS-255 — Nominal 55W PV module
	 
	 	•	 	FS-257 — Nominal 57.5W PV module
	 
	 	•	 	FS-260 — Nominal 60W PV module
	 
	 	•	 	FS-262 — Nominal 62.5W PV module
	 
	 	•	 	FS-265 — Nominal 65W PV module






	 	b.	 	The tolerance of actual Pmpp is +/-5% under Standard Test
Conditions1




2. Certifications





	 	 	FS Series 2 PV modules are certified according to the following:






	 	a.	 	TUV Safety Class II. FS Series 2 modules are currently certified for a
maximum system voltage of 1000V by TUV Rheinland. First Solar permits FS Series 2
modules to be used in system designs with a maximum system voltage of 1000V.
	 
	 	b.	 	CE Mark with Declaration of Conformity.
	 
	 	c.	 	IEC 61646. FS Series 2 modules are tested and certified to the IEC61646
Standard with a maximum system voltage of 1000VDC.







 




			
	1	 	Standard Test Conditions (STC)
1000W/m2, AM 1.5, 25oC





 









 





Appendix A




Page 2




Series 2 Module Product Specification



3. Physical Specifications





	 	 	Dimensions are provided below for reference only. Refer to product drawing PRD-016-D for
exact dimensions and tolerances.





	 	 	 	 	 	 	 
	 

	 	a.
	 	Length
	 	1200mm
	 

	 	b.
	 	Width
	 	600mm
	 

	 	c.
	 	Thickness
	 	6.8mm
	 

	 	d.
	 	Weight
	 	11.4kg
	 

	 	e.
	 	Area
	 	0.72m2
	 

	 	f.
	 	Leadwire
	 	3.2mm2, 60cm in length
	 

	 	g.
	 	Connectors
	 	MultiContact Solar I Connector
	 

	 	 	 	 	 	Male M/C part# PV-KST3II
	 

	 	 	 	 	 	Female M/C part# PV-KBT3II
	 

	 	h.
	 	Cordplate
	 	according to IP54 requirement of TUV SKII certification
	 

	 	i.
	 	Bypass Diode
	 	None
	 

	 	j.
	 	Serial Number:
	 	 engraved in glass on front of module





4. Electrical Specifications





	 	 	 	Table 1





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Model Numbers and Ratings*	 	 	 	 
	Nominal Values	 	 	 	FS-255	 	FS-257	 	FS-260	 	FS-262	 	FS-265
	 
	Nominal Power (+/-5%)
	 	Pmpp (W)	 	 	55	 	 	 	57.5	 	 	 	60	 	 	 	62.5	 	 	 	65	 
	Voltage at Pmax
	 	Vmpp (V)	 	 	61	 	 	 	62	 	 	 	63	 	 	 	64	 	 	 	65	 
	Current at Pmax
	 	Impp (A)	 	 	0.90	 	 	 	0.93	 	 	 	0.96	 	 	 	0.98	 	 	 	1.00	 
	Open Circuit Voltage
	 	Voc (V)	 	 	88	 	 	 	89	 	 	 	90	 	 	 	91	 	 	 	91	 
	Short Circuit Current
	 	Isc (A)	 	 	1.13	 	 	 	1.13	 	 	 	1.14	 	 	 	1.14	 	 	 	1.15	 
	Maximum System Voltage	 	Vsys (V)	 	1000

	Temperature Coefficient of Pmpp	 	Tk(Pmpp)	 	-0.25%/°C

	Temperature Coefficient of Voc	 	Tk(Voc)	 	-0.29%/°C

	Temperature Coefficient of Isc	 	Tk(Isc)	 	+0.04%/°C

	Maximum Source Circuit Fuse	 	Icf (A)	 	10









 




			
	 	 	*All ratings at Standard Test Condition (1000W/m2, AM 1.5, 25oC Cell
Temperature) +/-10%





 









 





Appendix A




Page 3




Series 2 Module Product Specification



5. Quality Standards





	 	 	Modules are manufactured in a highly automated production environment. While all efforts
are made to produce modules that are visually uniform, some visual differences do exist between
modules. Only visual differences that are deemed to affect the long term performance or
durability of the module will be deemed intolerable.





	 	 	 
	Code	 	Description of Intolerable Effects
	A
	 	Any glass fracture, crack, or break on a module is unacceptable.

	B
	 	Glass scratches greater than 5cm in length that are detectable with a straight edge.

	C
	 	Edge chips in the glass greater than 2mm.

	D
	 	Foreign material inside the laminate.

	E
	 	Delamination of the laminate.

	F
	 	Damaged cordplate (junction box)

	G
	 	Damaged lead wires or connectors.

	H
	 	No serial number on front of the module.






6. System Design Parameters





	 	 	In addition to the system design requirements specified in the FS Series User’s Guide, all
system designs using the FS Series 2 modules will meet the following requirements:






	 	a.	 	Mechanical






	 	i.	 	Laminate shall be attached using mounting clips that meet
the requirements of the FS Series 2 User’s Guide.
	 
	 	ii.	 	Mounting system shall use EPDM rubber or equivalent to
isolate the module from the mounting structure.






	 	b.	 	Electrical






	 	i.	 	Maximum number of modules connected in series: 10
	 
	 	ii.	 	Maximum number of parallel strings on one source circuit fuse: 5
	 
	 	iii.	 	Maximum source circuit fuse rating: 10Amps
	 
	 	iv.	 	Lighting protection may be installed on source circuits.




7. Documentation





	 	a.	 	Technical data sheet will be provided in English and German languages.
	 
	 	b.	 	The First Solar FS Series 2 User Guide will be provided in both English
and German languages.
	 
	 	c.	 	Declaration of Conformity to CE will be provided.
	 
	 	d.	 	All documentation will be delivered electronically.





 









 




Appendix A




Page 4




Series 2 Module Product Specification



8. Labeling




Each module will be delivered with a nameplate label adhered to the back of module. See
product drawing PRD-016-D for label location. The label will be printed in English and conform to
the requirements of the EN50380 DIN Standard.








 









 





Appendix A




Page 5




Series 2 Module Product Specification



9. Packaging





	 	a.	 	Modules will be packaged in First Solar’s 30 pack or 50 pack module boxes.
	 
	 	b.	 	All modules within a box will be a single Model Number.
	 
	 	c.	 	Standard sea container volume is






	 	i.	 	50 pack: 30 boxes or 1500 modules
	 
	 	ii.	 	30 pack: 48 boxes or 1440 modules






	 	d.	 	General Box Specifications (Refer to drawing PRD-137-A for actual
dimensions):





	 	 	 	 	 
	 	 	50 Pack	 	30 Pack
	• Length:

	 	1400mm
	 	1350mm
	• Width:

	 	1150mm
	 	780mm
	• Height:

	 	840mm
	 	840mm
	• Weight:

	 	650kg
	 	392kg






 









 





Appendix B




Page 1




System Design and Application Template




	 	 	 
	Customer Name:

	 	Direct FS customer
	 
	 	 
	System Design/Installation:

	 	If different than customer
	 
	 	 
	System Type:

	 	Example Free Field, roof mount
	 
	 	 
	Project Location:

	 	City for specific projects, region for multiple projects
	 
	 	 
	Size:

	 	kWp for specific project or range for multiple projects.






Mounting Structure




	 	 	 
	Type:

	 	[***]
	 
	 	 
	Tilt Angle

	 	[***]
	 
	 	 
	Azimuth

	 	0° (0° equal to south; -90° equal to east; 90° equal to west)
	 
	 	 
	Support Rails

	 	Detail of supports used for direct module attachment.
[***]
	 
	 	 
	Module Orientation

	 	Detail of how modules are oriented on support structure.
[***]
	Module Attachment

	 	Detail of how modules are attached to the support structure. [***]








	 	 	 
	***

	 	CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH
THE COMMISSION.










 









 





Appendix B




Page 2




System Design and Application Template




Electrical System Design (for each inverter type used)




	 	 	 
	Inverter:

	 	Manufacturer and Model Number example: [***]
	 
	 	 
	Max Voltage (DC)

	 	Maximum system voltage
	 
	 	 
	Transformer

	 	yes/no
	 
	 	 
	Series connections:

	 	number of modules in each series string.
[***]
	 
	 	 
	Parallel Strings:

	 	number of parallel strings per inverter






Using Central Inverter




	 	 	 
	Current of Fuse:

	 	10A
	 
	 	 
	Strings per Fuse:

	 	number of parallel strings per fuse
	 
	 	 
	Number of inverters

	 	total number of inverter in system (if specific project)






	 	 	 
	***

	 	CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH
THE COMMISSION.






 









 





Appendix B




Page 3




System Design and Application Template




Module Durability 

Modules may experience a breakage rate of approximately [***]% during the initial year of
deployment due to stress caused by thermal cycling. Customer acknowledges this characteristic of
the product and understands that the modules must be installed in a manner which allows for the
replacement of cracked modules.



Operating Conditions 




Modules should be operated within proper operating conditions as described in First Solars FS
Series PV Module User Guide (PD-5-200 EU).



Modules should not be operated in open or short circuit conditions for more than ninety (90)
consecutive days or the minimum power output rating for power output warranty purposes may be
affected.



	 	 	 	 	 
	Customer Signature:

	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	First Solar Signature:
	 	 	 	 
	 

	 	 	 	 





Customer approval is required, and is used as a confirmation that the information included in this
document is correct, and that the modules will be installed in a manner consistent with those
specified in this document.





	 	 	 
	***

	 	CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH
THE COMMISSION.





 









 





Appendix C




Page 1




Price/Volume Table




	 	 	 
	
Quarterly Periods and Schedule Milestones
	 
	Quarter

	 	Definition
	 

	 	 
	Quarter 1

	 	Calendar Week 1 through Week 13
	Quarter 2

	 	Calendar Week 14 through Week 26
	Quarter 3

	 	Calendar Week 27 through Week 39
	Quarter 4

	 	Calendar Week 40 through Week 52
	Milestone

	 	Time Schedule
	 

	 	 
	 
	 	 
	Initial binding Quarterly Forecast
For Four (4) Quarters Plus
non-binding Fifth (5th) Quarter
Target

	 	FS and Buyer to agree by 1-April-2006
	 
	 	 
	Rolling binding Four (4) Quarter
Forecast Plus a non-binding Fifth
(5th) Quarter Target

	 	FS and Buyer to agree 5 calendar days
before the start of the next
successive First (1st)
Quarter of the binding Four (4)
Quarter Forecast.
	 
	 	 
	If the Parties do not agree 

otherwise the non-binding Fifth

(5th) Quarter Target 

shall become the new binding 

Fourth (4th) Quarter 

Forecast

	 	 
	 
	 	 
	If the Parties do not agree
otherwise the new non-binding
Fifth (5th) Quarter
Target shall be determined based
on the equitable discretion of FS.
Such equitable discretion shall be
based on the new binding Fourth
(4th) Quarter Forecast
multiplied by a Quarterly Volume
Adjustment Factor (x), such factor
(x) being within the range set
forth below by defining a value in
between a minimum x-value (xmin)
and a maximum x-value (xmax) and
considering the total amount of
the Target Kilowatt Volume per
calendar year as defined below.

	 	FS and Buyer to agree 5 calendar days
before the start of the next
successive First (1st)
Quarter of the binding Four (4)
Quarter Forecast.


FS and Buyer to agree by December 1
of each annual period on the
Quarterly Volume Adjustment Factor
(x) for the next annual period.
	 
	 	 
	Additional Annual Volume Agreement

	 	FS and Buyer to agree on 2006
Additional Annual Volume upon
execution of the Framework Agreement
and by December 1 of each successive
annual period for the next annual
period.
	 
	 	 
	Notice period prior to Delivery
for Carriage as defined in Section
4 for Annual Additional Volume.

	 	For volume < [***] weeks

For volume > [***] weeks






	 	 	 
	***

	 	CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH
THE COMMISSION.






 









 





Appendix C




Page 2




Price/Volume Table




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Total Annual Amounts
	Price / Volume Table C1	 	2006	 	2007	 	2008	 	2009	 	2010	 	2011	 	2012
	 
	Module Price per Watt (€)
	 	Separate Price	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Target Kilowatt Volume (kW)
	 	Volume Table	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Target Average Module Power (W)
	 	 	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Minimum Kilowatt Volume (kW)
	 	 	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Minimum Average Module Power (W)
	 	 	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Additional Annual Volume (kW)
	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bank Guarantee (Letter of
Credit) or Private Placement
Share Pledge (M€)
	 	 	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Total Annual Amounts
	Price / Volume Table C2	 	2006	 	2007	 	2008	 	2009	 	2010	 	2011	 	2012
	 
	Module Price per Watt (€)
	 	Separate Price	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Target Kilowatt Volume (kW)
	 	Volume Table	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Target Average Module Power (W)
	 	 	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Minimum Kilowatt Volume (kW)
	 	 	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	Minimum Average Module Power (W)
	 	 	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Additional Annual Volume (kW)
	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bank Guarantee (Letter of
Credit) or Private Placement
Share Pledge (M€)
	 	 	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 







	 	 	 
	***

	 	CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH
THE COMMISSION.





 









 





Appendix C




Page 3




Price/Volume Table




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Payment Terms	 	2006	 	2007	 	2008	 	2009	 	2010	 	2011	 	2012
	 
	Payment Terms (Net
days from date of FS
invoice) as set forth
in Section 7.
	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fifth Quarter Forecast	 	2006	 	2007	 	2008	 	2009	 	2010	 	2011	 	2012
	 
	Quarterly Volume
Adjustment Factor
(xmin <
x <
xmax)
	 	 	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 






Price and Volumes 2006




Product price in EURO



	 	 	 	 	 
	FS 255
	 	 	[***]	 
	FS 257
	 	 	[***]	 
	FS 260
	 	 	[***]	 
	FS 262
	 	 	[***]	 
	FS 265
	 	 	[***]	 
	FS 267*
	 	 	[***]	 
	FS 270*
	 	 	[***]	 








 




			
	*	 	Such module product types are not manufactured yet.

It is planned to include them in the delivery program in the course of 2005.
The modules will comply with Sections 2.2 and 2.3 of the Framework Agreement.





Quarterly Volume Allocation




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	2006
	 	 	Q1	 	Q2	 	Q3	 	Q4	 	Total
	 	 	 
	Volumes (MW)
	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 





The price of the modules shall be determined at the time of actual delivery.

In the event of early delivery, the price shall be determined based on the quarter




	 	 	 
	***

	 	CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH
THE COMMISSION.






 









 





Appendix D




Module Warranty Terms & Conditions




Five-Year Limited Warranty

First Solar, LLC (“First Solar”) warrants to the original purchaser that the FS-Series
Modules (the “Product”) will be free from defects in materials and workmanship under normal use and
service conditions as described in the First Solar FS Series Module User Guide and System Design
and Application document, for five years following delivery of the Product to the original
purchaser. If the Product is in breach of the foregoing warranty, First Solar will, at its option,
either repair or replace the Product under the terms of its Return Policy.



25 Year Power Output Warranty

Subject to and effective upon execution of the First Solar Reclamation and Recycling
Agreement, First Solar additionally warrants to the original purchaser that modules installed in
accordance with the System Design and Application document specified in the purchase agreement
shall (i) during the first ten years following installation of the Product, produce at least 90% of
the nominal power output rating (Pmpp +/-5%), and (ii) during twenty-five years following
installation of the Product, produce at least 80% of the nominal power output rating (Pmpp +/-5%).
Power output shall be measured and normalized to Standard Test Conditions using a method and
laboratory approved by First Solar. If the Product is determined to be in breach of the foregoing
warranty, First Solar will, at its option, either repair or replace the product under the terms of
its Return Policy or provide supplemental Product to remedy the breach of warranty.



Limitation of Remedies

THE REMEDIES SET FORTH ABOVE ARE THE EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY BY FIRST
SOLAR. The sole purpose of these exclusive remedies shall be to provide for the repair,
replacement, or supplementation of products in breach of warranty. This exclusive remedy shall not
be deemed to have failed its essential purpose so long as First Solar is willing and able to
replace or repair the breaching products, or to supplement with additional Product as described
under “Twenty-Five Year Power Output Warranty” above.



Transfer of Warranty

This warranty will transfer from the original purchaser to any subsequent purchaser of the
Product, subject to and effective upon execution of the First Solar Assignment Agreement or a
comparable agreement specified by First Solar.



Proper Operating Conditions

The warranties provided hereunder shall be void and of no effect if the Product is not
properly installed, integrated or maintained, or operated under normal operating conditions as
specified in the First Solar FS Series Module User Guide and System Design and Application document
specified in the purchase agreement. First Solar is not responsible for damage to the Product due
to improper handling, physical abuse or installation that is not consistent with the System Design
and Application (SDA) document.



Return Policy

IF a product must be returned to First Solar in the event of a warranty claim, First Solar
will arrange for the return of the Product at First Solar’s expense so long as such Product is
returned in accordance with the Return Material Authorization (RMA) issued by First Solar. The
packaging, shipping method, and return destination of the Product will be specified in an RMA
issued by First Solar.



Warranty Limitations

EXCEPT AS EXPRESSLY SET FORTH ABOVE, FIRST SOLAR MAKES NO REPRESENTATION OR WARRANTY OF ANY
KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. UNDER NO CIRCUMSTANCES WILL
FIRST SOLAR BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING
BUT NOT LIMITED TO LOSS OF PROFITS, ARISING, DIRECTLY OR INDIRECTLY, FROM THE SALE OR USE OF ANY
PRODUCTS, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE. UNDER NO CIRCUMSTANCES SHALL THE LIABILITY OF FIRST SOLAR FOR NONCONFORMING PRODUCTS
EXCEED THE AMOUNT PAID BY THE ORIGINAL PURCHASER TO FIRST SOLAR FOR THE PARTICULAR PRODUCT
INVOLVED, PLUS REASONABLE SHIPPING EXPENSES INCURRED BY SUCH PURCHASER.



NOTWITHSTANDING THE ABOVE LIMITATIONS OF REMEDIES AND THE WARRANTY LIMITATIONS, THE REGULATIONS OF
THE GERMAN PRODUCT LIABILITY ACT (PRODUKTHAFTUNGSGESETZ) REMAIN EFFECTIVE.




 










 





Appendix E




Page 1




Module Reclamation and Recycling Agreement




This agreement is effective as of the date the contract is signed by both parties. This
agreement applies to the First Solar modules described on Exhibit A (the “Modules”). In order to
assure that the Modules are returned to First Solar for recycling after they are taken out of
service, First Solar, LLC and First Solar GmbH (collectively referred to as “First Solar”) and the
undersigned Owner of the Modules (the “Owner”) agree as follows:




	1.	 	First Solar Reclamation Program
	 
	 	 	First Solar will, at any time at the request of the Owner, remove the Modules from the
site listed on Exhibit A (the “Registered Site”) and transport them to a solar module
processing center selected by First Solar. At the solar module processing center, the Modules
will be processed for recycling into new solar modules or other products. Substantially all of
the module components, including the glass and the encapsulated semiconductor materials and
metals, will be processed for recycling. Processed materials will be sequestered and stored
until they are recycled into new products, assuring that these materials do not re-enter the
waste stream, through landfill deposits or otherwise. First Solar may work with one or more
vendors or subcontractors in performing the activities described above. The operations of
First Solar and its vendors, subcontractors and agents under this Agreement will be subject to
and comply with applicable laws, rules and regulations, including those related to waste and
the protection of the environment. The obligations of First Solar under the Agreement will be
deemed modified as necessary to comply with such laws, rules and regulations.
	 
	2.	 	Customer Requirements
	 
	 	 	The Registered Site, quantity and type of Modules, date of Owner invoice and the Owner
contact information are described on Exhibit A. The Owner can initiate the reclamation and
recycling process by contacting First Solar at its web site or any other address it provides
for these purposes in the future. At that time, First Solar will verify the information
described on Exhibit A and provide the Owner with instructions for disassembling and packaging
the Modules at the Registered Site for shipment back to First Solar. As a condition to
receiving the benefits of the Program, the Owner will be responsible for disassembling and
packaging the Modules in containers designated by First Solar.
	 
	3.	 	Ownership and Responsibility
	 
	 	 	First Solar will endeavor to remove the Modules from the Registered Site promptly after
the Modules have been disassembled and packaged for transportation in accordance with First
Solar’s instructions. To the extent permitted by applicable law, effective upon First Solar’s
removal of the Modules from the Registered Site, (a) ownership of the Modules will transfer to
First Solar, automatically and without the need for any further assignment, bill of sale or
other instrument or action, and (b) Owner will have no further liability or obligation with
regard to the Modules.
	 
	4.	 	Certificate of Compliance
	 
	 	 	First Solar will, at the Owner’s request, provide a written certification assuring that
the Modules have been processed under the Program and that First Solar has fully complied with
the requirements of the Program. First Solar will retain pertinent records evidencing the
processing





 









 





Appendix E




Page 2




Module Reclamation and Recycling Agreement





	 	 	of Modules under the Program for the period required by applicable law, and in any event at
least 10 years after removing the Modules from the Registered Site.
	 
	5.	 	Program Expenses
	 
	 	 	The Modules are designed to have a useful life of more than 25 years. If the Modules are
returned after they have been in service for at least 20 years, or at any earlier time because
of a warranty claim, First Solar will pay all packaging, transportation and recycling costs of
the Program; the Owner’s only requirement to participate in the Program will be to disassemble
and package the Modules based on First Solar’s instructions and follow any other
administrative procedures specified by First Solar. If the Modules are otherwise returned
before the 20 year service period, First Solar may require the Owner, as a condition to
participating in the Program, to pay a portion of the Program expenses based on the length of
time the Modules were in service. In this case, before processing the request, a First Solar
representative will calculate the Owner’s payment obligation and secure agreement from the
Owner to proceed.
	 
	6.	 	Exclusive Means of Module Disposition
	 
	 	 	If the Modules are taken out of service, Owner agrees to promptly notify First Solar and
to permit First Solar to reclaim and recycle the Modules as described in this Agreement as
long as First Solar agrees to pay the program expenses described in paragraph 5. If Owner
prefers an alternate means of disposing of the Modules, it may do so at its sole expense with
the prior written consent of First Solar. First Solar will not unreasonably withhold such
consent if Owner demonstrates to First Solar’s satisfaction that the Modules will be recycled,
without any component entering the waste stream, through a reclamation and recycling program
that is, in its entirety, at least as protective of the environment as the First Solar
program. If First Solar is, for any reason, unable and unwilling to fulfill its obligations
under this Agreement, Owner may fulfill them through alternative providers and First Solar
shall remain responsible for paying the expenses reasonably incurred by Owner for these
purposes.
	 
	7.	 	Assignments and Transfers
	 
	 	 	Each subsequent Owner shall execute the ASSIGNMENT OF MODULE WARRANTY AND RECLAMATION
AGREEMEMT (PD-5-104) specified by First Solar, agreeing to be bound by the provisions of this
Agreement to the same extent as the initial Owner. The benefits and obligations under this
Agreement will, to the extent permitted by applicable law, transfer automatically to any
subsequent Owner upon transfer of the Ownership of the Modules, and will in any event transfer
upon execution and delivery of the assignment agreement. If First Solar transfers
substantially all of its assets, voluntarily or involuntarily, the liabilities and obligations
imposed under the Program shall, to the extent permitted by applicable law, automatically
transfer to the transferee, and upon the transferee’s written assumption of such liabilities,
First Solar shall have no further liability or obligation under the Program.
	 
	8.	 	Modifications
	 
	 	 	First Solar may from time to time modify the reclamation or recycling processes or
procedures from time to time without the approval of the Owner provided that the fundamental
benefits provided by the Agreement shall at all times be preserved and the obligations of the
Owner shall





 









 





Appendix E




Page 3




Module Reclamation and Recycling Agreement





	 	 	not be materially increased. First Solar may from time to time designate one or more
replacement web sites for the First Solar web site, or substitute a different communication
process for processing claims under the Program. The Owner listed in First Solar’s records
will be notified of any such changes by a link on the First Solar web site or other means that
are reasonably designed to provide notice.
	 
	9.	 	General Provisions






	 	9.1	 	The Agreement, including this section, may be amended, modified or supplemented
only by a written instrument authorized and executed on behalf of the parties.
	 
	 	9.2	 	All disputes or differences which arise out of or in connection with the
Agreement or its construction, operation, termination or cancellation shall be settled
by arbitration pursuant to the arbitration rules of the German Institution for
Arbitration (DIS) and the jurisdiction of any other courts shall be excluded.
Proceedings shall be conducted in the German language and in Frankfurt, Federal
Republic of Germany.
	 
	 	9.3	 	This Agreement shall be governed by and construed in accordance with the laws
of the Federal Republic of Germany. The Convention on the International Sale of Goods
(CISG) shall not apply.
	 
	 	9.4	 	The provisions of this Agreement shall be modified to the extent required to
permit the parties to comply at all times with the provisions of the German Federal
Waste Act and other applicable environmental waste laws and regulations. The
unenforceability of any provision of the Agreement shall not affect the enforceability
of any other provisions hereof. Unenforceable provisions shall be deemed to be replaced
by such enforceable provisions that are suitable to implement the economic purpose of
the deleted provision to the greatest extent possible.
	 
	 	9.5	 	The Agreement has been drawn up in the German language. Any English
translations hereof shall be for convenience purposes only. For the avoidance of doubt,
in the event of a dispute, the German version shall prevail.





	 	 	 
	Place, Date:                                         

	 	Place, Date:                                         
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 

	 	 
	Signature of Owner

	 	Signature of First Solar Representative
	or Legal Representative
	 	 






 









 





Appendix E




Page 4




Module Reclamation and Recycling Agreement




Exhibit A




Address of Registered Site:




	 	 	 
	Project Name:
	 	 
	 

	 	 
	 
	 	 
	Street:
	 	 
	 

	 	 
	 
	 	 
	ZIP / City:
	 	 
	 

	 	 
	 
	 	 
	Country:
	 	 
	 

	 	 
	 
	 	 
	Geographical Coordinates:
	 	 
	 

	 	 
	(GPS or UTM preferable)
	 	 






	 	 	 
	Date of Owner Invoice:
	 	 
	 

	 	 
	(received by PD within 14 days after invoice issued to end user/owner)

	 	(The end customer invoice date / date of sale)






Owner’s Contact Information:

(if different than registered site...)




	 	 	 
	Name / Contact person:
	 	 
	 

	 	 
	 
	 	 
	Phone / E-Mail:
	 	 
	 

	 	 
	 
	 	 
	Street:
	 	 
	 

	 	 
	 
	 	 
	ZIP / City:
	 	 
	 

	 	 
	 
	 	 
	Country:
	 	 
	 

	 	 





Quantity and Type of Modules




Installed:




	 	 	 
	Type of Module (e.g. CTS-60, FS-55, CP625)	 	Quantity
	 
	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 
	 	 
	 

	 	 





	 	 	 
	Project Developer:
	 	 
	 

	 	 
	 
	 	 
	Please send this form originally signed to:

	 	First Solar GmbH
	 

	 	Rheinstrasse 4N
	 

	 	D-55116 Mainz






 









 





Appendix F




Page 1




Assignment of Module Reclamation and Recycling Agreement



Regarding the Transfer of Ownership of First Solar Modules Installed in the Following Solar
Array (the “Array”).



Preliminary Note:

The undersigned New Owner is the new owner of the Array — or a portion of it — including the
First Solar modules installed in the Array. First Solar provided Module Warranty Terms and
Conditions and a Reclamation and Recycling Agreement to the Previous Owner of the solar modules.
The rights under the First Solar Module Warranty Terms and Conditions and the Reclamation and
Recycling Agreement are transferable from the Previous Owner to the subsequent New Owner —
provided both parties execute this agreement (PD-5-104) and send the original signed agreement to
First Solar GmbH.




	 	 	 
	Site — Registration — Number:
	 	 
	 

	 	 
	(See doc CO-5-101 or CO-5-102)
	 	 






	 	 	 
	Site:
	 	 
	 

	 	 
	(ZIP code and city or GPS/UTM)
	 	 
	 
	 	 
	 

	 	 





	 	 	 
	Quantity & Type of Transferred
Modules:
	 	 
	 

	 	 





Further Explanations Concerning the Contractual Terms:





	 	1.	 	Previous Owner transfers any and all rights under the Module Warranty and Reclamation
Agreement with First Solar to the New Owner.
	 
	 	2.	 	The New Owner hereby accepts the assignment and assumes the provisions of the Module
Warranty and Reclamation Agreement and agrees to abide by its terms to the same extent as
if an original party to the Agreement.
	 
	 	3.	 	In accordance with the terms, the assignment of the First Solar Module Warranty and
Reclamation Agreement shall become effective only if (a) Previous Owner and New Owner have
executed this Agreement and (b) the original signed Agreement has been delivered to First
Solar GmbH. The Assignment is deemed effective upon receipt and confirmation by First
Solar. A confirmation package will be sent to the New Owner.





 









 





Appendix F




Page 2




Assignment of Module Reclamation and Recycling Agreement




Assignment of Agreement from




	 	 	 	 	 
	 	 	PREVIOUS OWNER	 	NEW OWNER
	Name / Company:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Contact Person:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Phone / Email:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Street:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	ZIP / City:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Country:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	Place, Date:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 

	 	Signature of Previous Owner
or Legal Representative
	 	Signature of New Owner
or Legal Representative





Please fill in this form with the appropriate information and send back the Original after
signed by both parties.




First Solar GmbH, Rheinstrasse 4N, D-55116 Mainz; Germany





 









 








Appendix G




Approved Countries and Applications




	 	 	 	 	 
	Approved Country	 	Approved Applications	 	Approved Ports for Point of Destination
	[***]

	 	[***]
	 	[***]
	 
	 	 	 	 








	 	 	 
	***

	 	CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH
THE COMMISSION.





 









 








Appendix H




Arbitration Agreement



entered into by and between




First Solar GmbH, Rheinstraße 4N, D-55116 Mainz, Germany (hereinafter referred to as “FS”)
represented by the Managing Director with single signature authority, Mr. Stephan Hansen,



and



Phönix SonnenStrom AG, Hirschbergstr. 8, D-85254 Sulzemoos (hereinafter referred to as “Buyer”),
represented by the Board Member Manfred Bächler and Procurement Director Stuart Brannigan with
single signature authority.



FS and Buyer are each a “Party” and collectively the “Parties”.




	1.	 	Recitals
	 
	 	 	As of the date hereof, the Parties have entered into a certain FRAMEWORK AGREEMENT ON THE
SALE AND PURCHASE OF SOLAR MODULES (hereinafter the “Agreement”).
	 
	2.	 	Arbitration
	 
	 	 	All disputes or differences which arise out of or relate to the Agreement or its exis-tence,
validity, construction, operation, termination or cancellation shall be settled by
arbitration pursuant to the arbitration Rules of the German Association for Arbi-tration
(DIS), which Rules are deemed to be incorporated by reference into this clause and the
jurisdiction of any other courts shall be excluded. Proceedings shall be conducted in the
German language (provided that documentary evidence may be submitted in the original English
language) and the venue of proceedings shall be at the corporate seat of FS.
	 
	 	 	The arbitral tribunal also decides upon disputes over its jurisdiction and over the ef-fect
and interpretation of this Arbitration Agreement and any supplementations thereto.
	 
	 	 	This Arbitration Agreement does not abridge the right of the Parties to bring any ac-tion in
any court of competent jurisdiction for injunctive or other provisional relief to compel the
other party to comply with its obligations hereunder.
	 
	3.	 	Miscellaneous
	 
	 	 	Sections [13.1] and [14] of the Agreement shall apply mutatis mutandis.





Mainz, den 30.3.2006




	 	 	 	 	 
	First Solar GmbH
	 	Phönix SonnenStrom AG	 	 
	 	 	 	 	 
	/s/ Stephan Hansen
	 	/s/ Manferd Bächler
	 	/s/ Stuart Brannigan
	 
	 	 
	 	 
	      Stephan Hansen
	 	      Manferd Bächler
	 	      Stuart Brannigan







 









 








Appendix I




[Letterhead Bank]




[Name and address of beneficiary]




Performance Guarantee No. [ ]




On [date], you have entered into an agreement (hereinafter referred to as “Supply Agreement”) with
[name, address] (hereinafter referred to as “Buyer”) with respect to [subject matter of contract]
for a total amount of Euro [amount]. Pursuant to the terms of the Supply Agreement, Buyer shall
provide a bank guarantee in the amount of [ ]% of the total amount to guarantee his proper
performance under the Supply Agreement. In the event of default or any other breach of the
agreement on the part of Buyer, you shall be entitled to use this guarantee to satisfy your claims
arising out of the Supply Agreement.



This being stated, we, IKB Deutsche Industriebank AG, Wilhelm-Bötzkes-Strasse 1, 40474 Düsseldorf,
hereby provide you with this performance guarantee in the maximum amount of Euro [amount] (amount
in words: [...] Euro) (hereinafter referred to as “Maximum Amount”) as security.



We undertake irrevocably to pay to a bank account specified by you, upon your first demand, any
amount within the limits of the Maximum Amount, without whatsoever objection on our part and
without examining the underlying legal relationship, within 10 (ten) bank business days following
your written demand,




	 	•	 	such demand conforming, by showing grounds and reasons, default or any other breach of
the Supply Agreement on the part of Buyer and, as a consequence, your claim against Buyer,
and
	 
	 	•	 	a written confirmation of your bank that your demand is duly signed by you.





Several partial amounts of the Maximum Amount may be drawn under this guarantee. Each payment
reduces the Maximum Amount by the sum of such payment.



This guarantee shall be valid until this document is returned to us. However, if we have not
received your demand and confirmation mentioned above until [date], this guarantee shall cease to
exist, irrespective of whether this document is returned to us or not.



Any rights under this guarantee shall not be assignable without our prior written consent.



This performance guarantee shall be governed by the laws of the Federal Republic of Germany. Place
of execution and jurisdiction is Düsseldorf.



Düsseldorf,
.........




IKB Deutsche Industriebank AG