EX-10.2



 





Exhibit 10.2




[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



Conergy AG, Anckelmannsplatz 1, D-20537 Hamburg (hereinafter referred to as “Buyer”) represented
by the Chairman of the Board with single signature authority, Mr. Hans-Martin Rüter and the
Member of the Board with joint signing authority, Dr. Edmund Stassen.



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 (Appendix C), 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 (Appendix C), 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 accordance with the provisions of and together
with components specified in the System Design and Application Document (Appendix B).






The use of components other than the ones mentioned in Appendix B requires FS’ prior
written approval, which shall not be unreasonably withheld. The application of the
Modules with new components is deemed to be mutually accepted if no statement is provided
by FS within 15 days of a written request for approval by Buyer, submitted together with
the documentation.




	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. All prices are exclusive of VAT. At any time before December 31, 2006, FS
may, upon written notice to Buyer, replace Appendix C Table C1 with Table C2. The applicable
Appendix C Table C1 or Table C2 is referred to in this Agreement as the Price/Volume Table
(Appendix C).






	3.2	 	The Price/Volume Table (Appendix C) sets out the following annual KWp volumes for the
sale and purchase of Modules: (i) binding minimum KWp volumes FS is committed to deliver;
(ii) the target KWp volumes the Buyer is committed to accept and (iii) additional KWp
volumes Buyer is committed to accept, provided that FS has notified Buyer in advance of the
date of the first Modules being Delivered for Carriage (as defined in Section 4) for the
additional KWp volumes according to the notice period specified in the Price/Volume Table
(Appendix C).






	3.3	 	The Parties will, by the fifth day prior to the end of each quarter, prepare 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 and target
KWp volume purchase commitments of Modules set forth in the Price/Volume Table (Appendix C).






	4.	 	Shipment; Delivery; Late Delivery






	4.1	 	The Modules 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”). The ownership and risk
of loss of, or damage to, the Modules after such Modules have been Delivered for Carriage
fall upon Buyer. On Buyer’s behalf, FS shall arrange and pay for insurance against the
Buyer’s 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:




Zentrallager der Conergy AG

Industriestr. 12a

66280 Sulzbach-Neuweiler




The Buyer may at it’s sole discretion change the default Point of Destination by
notifying FS thereof in writing.

If the changed or initial default Point Of Destination specified by Buyer no longer
complies with the requirements stated above (the original or replacement default Point of
Destination is referred to in this Agreement as the “Default Point of Destination”) then
FS shall have the right to deny to deliver for carriage or terminate a commenced shipment
to such location and Buyer shall be obligated to bear any and all costs and compensate
any and all damages suffered by FS; insofar, the Buyer will be in default of acceptance
after FS has notified the Buyer in writing that FS is ready to effect a Delivered for
Carriage handover.




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 of €0.025 per watt
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”). 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. 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 and the estimated date of Arrival at the Point of Destination; FS does not
assume any responsibility for the compliance with the estimated date of Arrival. FS
commits to ship only 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, 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, in particular
in cases where FS is reiteratively and severely in delivery delay or;






	 	c)	 	the delivery delay is due to FS’ wilful or 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 for reasons FS is responsible
for the Buyer shall have the right to a late delivery penalty payment from FS. In addition
the Buyer may raise any claims against FS for this delay in accordance with Section 4.2,
provided, however, that the late delivery penalties will be deducted from any such claims.
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, the Module prices shall be adjusted and the penalty charge shall be
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 starting on the date of late delivery.




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







 









 






	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 of the boxes and the boxes for any visible shipping
damages and record in any event any 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 (to the extent FS is not
responsible for such shipping damages), 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






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






 









 






	 	 	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 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 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 KWp volume of
Modules required to be delivered by FS during such quarter [or if more than 10% of the
volume (KWp) of installments (including any replacement deliveries) to be delivered in any
calendar year], 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 upon further delivery and deny acceptance of
such future Module shipments until the Parties made good faith efforts to reach agreement
regarding the resumption of deliveries, or, if no such agreement can be reached, FS has
provided such reasonable assurances (collectively the “Settlement”). After the Settlement
has occurred, FS may resume shipment of the suspended Module shipments to Buyer and Buyer
shall be obligated to accept and pay for the Modules. If no Settlement occurs, 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 delivery to the Final Customer, but no more than 25 months after the date of
the Modules being Delivered for Carriage; the statutory statute of limitation in cases of a
recourse against the supplier in accordance with Sections 478, 479 German Civil Code,
remains unaffected. 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.






	6.8	 	Notwithstanding this Section 6, FS’ 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, FS’ 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 FS shall also apply to any personal liability
for damages of employees, workers, representatives and the like of FS.






	6.11	 	The Buyer’s liability for breach of fundamental obligations under this Agreement for
reasons the Buyer is responsible for shall be limited to the predictable and
characteristically to be expected damages; this limitation is not applicable in cases of
gross negligence and wilful misconduct of the Buyer. Section 6.8 is applicable mutatis
mutandis.






	7.	 	Payment






	7.1	 	FS may invoice Buyer for each Shipment at any time on or after 10 days after Delivery for
Carriage of the Modules. Buyer shall pay the total purchase price for each shipment within
ten (10) days after the date of the invoice issued by FS (other than for the year 2006 which
shall be within forty five (45) days after the date of the invoice issued by FS) ; FS is
obliged to deliver the invoice by Email or facsimile to the Buyer so that the Buyer has
received the invoice no later than on the second business day after the date of the invoice.
In case FS is not delivering the invoice in time, then the date of arrival of the invoice at
the Buyer shall be the start date for the payment term; the Parties agree, that such arrival
of the invoice shall be a “preceding event” within the meaning of Section 286 par. 2, No. 2
German Civil Code (BGB). 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 i.e. free of any deduction 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. 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, provided FS has sent a written reminder and granted a grace
period of 7 (seven) workdays and such grace period has expired fruitless. 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 the amount of predictable and
characteristically to be expected damages in addition to the default interest and
delinquent payments that gave rise to the termination. FS may only terminate this
Agreement after having provided written notice by registered mail of any incidence of
delinquent payment to Buyer; any of FS’ other claims due to payment default are not
dependent on this notification.




	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







	 	 	 







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




 









 






	 	 	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	 	Buyer shall promptly give written notice to FS of a sale or transfer of Modules to a
Final Customer in order to allow FS and such Final Customer to enter into the Module
Reclamation and Recycling Agreement (Appendix E) within 14 (fourteen) days after
transferring ownership of the Modules to the Final Customer.






	9.6	 	The Buyer shall oblige any of its customers and transferees, who are not Final Customers,
to assume the obligations set forth in Section 9.5 with regard to the Module Reclamation and
Recycling Agreement (Appendix E) and, to impose such obligations in the case of a further
resale or transfer on their customers or transferees, in a manner that they 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 Final Customer of the Module Reclamation and Recycling
Agreement (Appendix E), and the assumption of the obligations in accordance with Section 9.6
by any customer or transferee of Buyer, that is not the Final Customer, 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.






	10.3	 	Neither Party will be required to disclose pcroprietary 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 (“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 commercially 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 (Appendix C).






	12.3	 	If the Buyer has not delivered a renewal Letter of Credit in accordance with Section 12.2
by the 1st of October of any year for the following period commencing on the 1st of
December, 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 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 (Appendix C). 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 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 € 3 million in the case of Appendix C Table C1 and € 5 million in the case of
Appendix C Table C2 is applicable. 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 planned levels; 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, it is the intent of FS and Buyer to 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)

Fax: 06131 1443 500




If to Buyer




Conergy AG,

Anckelmannsplatz 1,

D-20537 Hamburg,

Ms. Monika Leiner

(m.leiner@conergy.de)

Fax: 040 237102 444




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. The same shall apply mutatis mutandis in case
of any gaps in the Agreement.




	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 by either Party requires the written
consent of the respective other Party. Either party shall not unreasonably withhold consent
provided the respective other Party has fully performed all of its obligations under the
Agreement through the date of transfer or assignment, and the transferee, in case of a
transfer by Buyer, 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.






	14.10	 	[***]







	 	 	 
	Hamburg, den 11.4.2006
	 	 
	 
	 	 
	First Solar GmbH

	 	Conergy AG
	 
	 	 
	/s/ Stephan Hansen

	 	/s/ Hans-Martin Rüter Dr. Edmund Stassen
	 

	 	 
	     Stephan Hansen

	 	     Hans-Martin Rüter, Dr. Edmund Stassen










	 	 	 
	***

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














 









 





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-2-317 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-2-317 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:
	 	Conergy AG

	System Design/Installation:
	 	Voltwerk AG, SunTechnics GmbH

	System Type:
	 	[***]

	Project Location:
	 	Ref. to Project Location List PD-X-XXX

	Size:
	 	[***]

	 	 	 

	Mounting Structure
	 	 

	Type:
	 	Open Rack, fixed Tilt, tracked

	Tilt Angle:
	 	[***]

	Support Rails:
	 	 







	 	 	 
	Type	 	Conergy standard rail XYZ
	Cross-section

	 	[***]
	Orientation

	 	North/South
	Number of rails per row

	 	[***]
	

	 	
	Module
Orientation:

	 	[***]
	Module
Attachment:

	 	[***]
	

	 	[***]















	 	 	 
	Clip	 	[***]
	FS-Approval

	 	08.11.2005 
	Document

	 	PD-5-321-03











	 	 	 
	***

	 	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




	 	 	 
	Type:

	 	[***]
	Manufacture:

	 	[***]
	Max Voltage (DC)

	 	[***]
	Potential

	 	[***]






Module inter connection




	 	 	 
	Series connections:

	 	[***]
	 
	 	 
	Using String Inverter
	 	 
	 
	 	 
	Parallel Strings:

	 	[***]
	 
	 	 
	Using Central Inverter
	 	 
	 
	 	 
	Current of Fuse:

	 	10A
	 
	 	 
	Strings per Fuse:

	 	[***]






 


***    CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS HAVE BEEN REDACTED


          AND FILED SEPARATELY WITH THE COMMISSISON.




 









 






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 COMMISSISON.





 









 









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

If the Parties do not agree
otherwise the non-binding Fifth
(5th) Quarter Target
shall become the new binding Fourth
(4th) Quarter Forecast

	 	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 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 COMMISSISON.




 







 






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) (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) (M€)	 	 	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	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)
	 	 	 	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 	 	 	[***]	 





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



 









 






Appendix C




Page 3




Price/Volume Table




Price and Volumes 2006




Prices for Conergy Products (EURO)




	 	 	 
	Conergy CP550 TF(2)* or FS-255

	 	[***]
	Conergy CP575 TF(2)* or FS-257

	 	[***]
	Conergy CP600 TF(2) or FS-260

	 	[***]
	Conergy CP625 TF(2) or FS-262

	 	[***]
	Conergy CP650 TF(2) or FS-265

	 	[***]








 




			
	*	 	Module types and prices remain in the Price/Volume table of the contract but only 60W and
higher product is authorized to ship





Quarterly Volume Allocation




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





***   CONFIDENTIAL
TREATMENT REEQUESTED. 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
	 	Signature of New Owner
	 

	 	or Legal Representative
	 	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
	 	Year of release for sale
	[***]

	 	[***]
	 	[***]





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




 










 





Appendix H




Page 1




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



Conergy AG, Anckelmannsplatz 1, D-20537 Hamburg (hereinafter referred to as “Buyer”) represented by
the Chairman of the Board with single signature authority, Mr. Hans-Martin Rüter and the Member of
the Board with joint signing authority, Dr. Edmund Stassen.



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 existence,
validity, construction, operation, termination or cancellation shall be settled by
arbitration pursuant to the arbitration Rules of the German Association for Arbitration
(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 effect
and interpretation of this Arbitration Agreement and any supplementations thereto.
	 
	 	 	This Arbitration Agreement does not abridge the right of the Parties to bring any action 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
	 
	 	 	Section 14 of the Agreement shall apply mutatis mutandis.





Hamburg, den 11.4.2006




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	First Solar GmbH	 	 	 	Conergy AG
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	/s/

	 	Stephan Hansen
	 	 
	 	/s/
	 	Hans-Martin Rüter      Dr. Edmund Stassen	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Stephan Hansen
	 	 	 	 	 	Hans-Martin Rüter,      Dr. Edmund Stassen	 	 	 	 	 	 







 









 








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