ex10-60.htm


     

    EXHIBIT 10.60

     

    
      
        	  

                
                  CONFIDENTIAL
      TREATMENT REQUESTED

                  --

                  CONFIDENTIAL
      PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
      FILED WITH THE SECURITIES AND EXCHANGE COMMISSION

                

                


              


      

    

     

    Execution copy

     

    Photovoltaic
Equipment Master Supply Agreement

    


    This
Photovoltaic Equipment Master Supply Agreement (together with all exhibits,
schedules, purchase orders, and annexes hereto, the “Agreement”) is made and
entered into as of November 21st, 2008
(the “Effective Date”)
by and between SUNPOWER GMBH (“SunPower”), a company
incorporated under the laws of Germany, with registered office in Frankfurt,
Wiesentrasse 5, herein represented by Mr. Jörn Jürgens in his capacity as sole
Geschäftsführer and CITY SOLAR Kraftwerke AG (“City Solar”), a company
incorporated under the laws of Germany, with registered office in 55543 Bad
Kreuznach, Bosenheimer Straße 286, herein represented by Mr. Steffen Kammler in
his capacity as Vorstand.

    


    RECITALS

    


    WHEREAS,
SunPower is engaged in the business of manufacturing, importing and selling
photovoltaic modules and balance of system equipment;

    


    WHEREAS,
City Solar is interested in the business of designing, constructing and
installing solar electric systems utilizing SunPower photovoltaic modules and
related equipment in countries other than United States of America , Canada or
in breach of obligations undertaken under Section 25 of this
Agreement; and

    


    WHEREAS,
SunPower desires to sell to City Solar, and City Solar desires to purchase from
SunPower, photovoltaic modules and related equipment on the terms and conditions
set forth herein.

    


    NOW
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties agree as follows:

    


    AGREEMENT

    


    1.           Product Sales and
Purchase.

    


    Firm Commitment
Quantities.

    


    1.1 The
description and specifications for the photovoltaic modules to be sold and
purchased under this Agreement are set forth on Schedule 1 (the
“Solar Panels”). The
description and specifications for the balance of system equipment to be sold
and purchased under this Agreement are set forth on Schedule 1 (the
“BOS Equipment” and,
together with the Solar Panels, the “Products”). SunPower
guaranties and warrants conformity of the Products with the aforementioned
descriptions and qualifications.

    


    1.2
SunPower may from time to time modify the Products, subject to compliance with
the Product Change Procedures set forth in Schedule
6.

    


    1.3 No
later than within the first five (5) working days of each calendar month, City
Solar shall issue a purchase order for the following fourth month (Example:
Purchase Order issued on or before January 5 for the purchase and delivery of
Products in April, etc.) in the form attached as Schedule 2 (the
“Purchase Order”). Along
with each Purchase Order, City Solar will submit a rolling forecast for the
remaining months of a giving calendar year. (as specified in Schedule 1 Section
4 )

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    1.4
SunPower shall confirm the Purchase Order and the forecast to City Solar by
written notice or e-mail transmission delivered to City Solar within ten (10)
calendar days following SunPower’s receipt of such Purchase Order and forecast.
SunPower guarantees availability and sale of Products under such Purchase Orders
and forecast on a firm commitment basis in accordance with the quantities as set
forth in each Purchase Order and the forecasts in total up to the aggregate
quantities for the respective calendar year, set forth on Schedule 1. SunPower
shall not assume any obligation under this Agreement to provide quantities in
excess of its firm annual, respectively monthly commitments specified in Schedule
1.  City Solar agrees to purchase up to the aggregate
quantities for a given calendar year as set forth on Schedule
1.

    


    1.5 The
sole and exclusive penalties for failure of SunPower or City Solar to fulfill
its annual firm commitment obligations set forth in this Section 1 are described
on Schedule
1.

    


    1.6
Subject to Section 3
and 5, in the event of any conflict between the terms of the Purchase
Order and this Agreement, the terms of the Purchase Order (according to Schedule
2) shall prevail.

    


    2.           Price;
Taxes.

    


    The
prices for Solar Panels sold under Purchase Orders issued by City Solar shall be
on a per-Watt basis and are set forth on Schedule
1.  The prices for Solar Panels with BOS Equipment sold under
Purchase Orders issued by City Solar are also set forth on Schedule 1 and shall
be subject to adjustment as stated therein.  The prices for the
Products shall be determined by the year of the shipping date stated in the
Purchase Order, as more fully described on Schedule
1.  City Solar shall be solely responsible for any taxes
applicable to the sale of Products under this Agreement (excluding SunPower’s
income taxes, which shall be borne solely by SunPower). Prices do not include
VAT or other applicable taxes, withholdings or contributions.

    


    3.           Shipments.

    


    Unless
the parties mutually agree to other shipping terms on the applicable Purchase
Order, the parties agree that SunPower shall ship the Solar Panels to City
Solar, *** (Incoterms 2000) SunPower designated manufacturing facilities.
SunPower’s manufacturing facilities are currently in China and the Philippines,
but are subject to change at SunPower’s discretion and  subject to
compliance with the Product Change Procedures set forth in Schedule
6.  Unless the parties mutually agree to other shipping terms
on the applicable Purchase Order, the parties agree that SunPower shall ship
Solar Panels which are pre-mounted to BOS Equipment (namely T20) to City Solar,
*** (Incoterms 2000) to the project site specified by City Solar in the Purchase
Order.

    


    4.           Packaging and
Shipping.

    


    SunPower
shall bear all costs associated with packaging or storing the Products pursuant
to the shipping terms specified above in Section 3. All
Products shall be packaged, marked, and otherwise prepared in accordance with
good commercial practices to reduce the risk of damage and to help minimize
shipping rates and in accordance with all applicable federal, state and local
packaging and transportation laws and regulations. An itemized packing list
shall accompany each shipment.

    


    ***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    5.           Title and Risk of
Loss.

    


    Pursuant
to Section 3
above, risk of loss and shipping costs shall pass to City Solar *** for
PV-Modules or *** for pre-mounted PV-Modules plus BOS Equipment T20 as well as
for BOS Equipment T0 and T10 (Incoterms 2000).  Title to the Products
shall transfer to City Solar simultaneously with risk of loss pursuant to such
shipping terms.  The shipping terms governing title transfer and risk
of loss or damage to the Products shall remain *** or *** unless the parties
mutually agree to other shipping terms on the applicable Purchase Order. City
Solar specifically acknowledges that City Solar is solely responsible for
providing adequate insurance for the Products after risk of loss transfers
pursuant to the agreed shipping terms.

    City
Solar shall only have the right to claim a return or refund according to the
warranty conditions outlined in Schedule 3 or as provided by German law in
particular the German commercial code and the German civil code (HGB and
BGB).  City Solar will not arbitrarily (e.g. no defective product)
claim a right of return or refund.

    


    6.           Invoicing / Payment
Terms.

    


    After
each shipment completed under this Agreement, SunPower shall send a separate
invoice, including item numbers, in duplicate, accompanied by a bill of lading
or express receipt.  Subject to the foregoing, City Solar shall pay
SunPower all invoiced amounts within *** calendar days of the date of title
transfer of the Product from SunPower to City Solar (“Payment Due Date”). Subject to
credit approval by SunPower, acting in its sole and absolute discretion, all
goods will be shipped on credit. Any adjustment by SunPower to the credit line
needs to occur with thirty (30) day advance notice to City Solar. For any
shipments exceeding the provided credit line, City Solar agrees to provide
coverage by Letter or Credit (LC) or other credit coverage acceptable to
SunPower. SunPower agrees to not arbitrarily deny such LC or other credit
coverage. SunPower reserves the right to hold back shipments that would
exceed the current credit limit and/or LC coverage until a time where credit has
been cleared again. SunPower reserves the right after thirty (30) calendar days
upon written notice to City Solar to withhold ongoing shipments if City Solar
fails to pay invoices by the Payment Due Date.

    


    7.           Inspection

    


    (a)  All
Products may be inspected by City Solar on SunPower’s premises during normal
business hours, in which case SunPower will provide without additional charge,
all reasonable facilities and assistance for such inspections. Any City Solar
employees visiting SunPower facilities for purposes of such inspection shall be
qualified to conduct the applicable inspections and shall agree to abide by
SunPower’s policies and rules, including confidentiality policies.

    


    (b)  No
inspection, approval, or acceptance of the Solar Panels shall relieve SunPower
from liability, to the extent applicable under Schedule 3, for any
defects in the Solar Panels or other failures to satisfy its warranty
obligations.

    


    


    *** CONFIDENTIAL MATERIAL REDACTED AND
SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    8.           Warranties.

    


    All Solar
Panels covered by this Agreement will be warranted per the conditions of the
relevant SunPower warranty statements, set forth on Schedule
3.  All BOS Equipment covered by this Agreement will be
warranted per the conditions of the relevant SunPower warranty statements, set
forth on Schedule
4.

    


    9.           Intellectual
Property

    


    Consistent
with the Mutual Nondisclosure Agreement (“MDA”) of the Parties effective as of
31.08.2008, which is being incorporated in this Agreement by reference, nothing
in this Agreement is intended to grant any rights to City Solar under any
patent, copyright, mask work right, trade secrets or other intellectual property
of SunPower, unless expressly provided herein.

    


    10.           Confidential or Proprietary
Information and Property.

    


    Both
parties shall keep confidential and otherwise protect from disclosure all
confidential proprietary information obtained from the other party in
connection with this Agreement or any Purchase Order unless otherwise expressly
authorized herein or by the non-disclosing party in writing or unless otherwise
required by applicable law, rule or regulation. Each party shall use such
confidential proprietary information, only for the purposes of, or in
conjunction with this Agreement. Upon a party’s request, the other party shall
return all such confidential proprietary information to the requesting
party or make such other disposition thereof as is directed by the requesting
party.  In all lower tier subcontracts and purchase orders issued by a
party and involving subcontractor receipt of such confidential proprietary
information, such party shall provide the other party hereto the same rights and
protections as contained in this Section
10.

    


    11.           Territory and Products
restrictions.

    


    (a)           Product
Restriction.  The parties agree that, unless otherwise agreed
to in writing by SunPower, City Solar shall not redistribute the Products as a
standalone product, and shall  restrict its use to:

    


    
      	
              (i)

            	
              Ground
      photovoltaic systems of more than *** MW that City Solar installs as EPC
      contractor for a third party;

            


    

    


    
      	
              (ii)

            	
              Rooftop
      photovoltaic systems of more than *** MW that City Solar installs as EPC
      contractor for a third party;

            


    

    


    
      	
              (iii)

            	
              Rooftop
      photovoltaic systems of less than *** MW that City Solar installs as EPC
      contractor for a third party provided that City Solar has signed with the
      owner of the system a framework agreement to develop rooftop photovoltaic
      systems for a global capacity over ***
MW;

            


    

    
      	
              ·  

            	
              However,
      City Solar may install up to ***% of the Annual Volume in projects >***
      kW and < *** MW.

            


    

    
      	
              ·  

            	
              Additionally,
      the parties may mutually agree on increasing the number of installations
      < *** MW on a case by case
basis.

            


    

    


    
      	
               
      

            	
              ***
      CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES
      AND EXCHANGE COMMISSION.

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
              (iv)

            	
              Ground
      or rooftop photovoltaic systems of any size that City Solar develops and
      installs to be owned and operated by
itself.

            


    

    


    (b) City
Solar shall not be liable for any possible violations of the obligations set
forth in Section 11 (a) above by any third parties for which City Solar acts as
EPC contractors, or to which a photovoltaic system is sold.

    


    (c) City
Solar shall give notice to SunPower of the exact immediate destination of the
shipped container loads of Solar Panels to be installed for defined projects
within one (1) month after their arrival at job site as specified in Schedule
5.

    


    (d)           Territory
Restriction.  City Solar shall not, without the prior written
approval of SunPower, in any manner use, export, or install any of the Products
within the United States or Canada or in breach of obligations undertaken under
Section
25.

    


    (e)           Nothing
in this Agreement shall restrict SunPower’s ability to market, sell or otherwise
offer the Products to third parties anywhere in the world.

    


    


    12.           Infringement.

    


    SunPower
shall defend, at its own expense, any suit or claim that may be instituted
against City Solar or any customer of City Solar for alleged infringement of
patents, trade secrets, copyrights or other intellectual property rights
relating to the Products, and SunPower shall indemnify City Solar and its
customers for all costs and damages arising out of such alleged infringement,
provided that: (i) City Solar gives SunPower reasonably prompt notice in writing
of any such claim or action and permits SunPower, through its counsel of choice,
to answer the charge of infringement and control the defense of such action; and
(ii) City Solar provides to SunPower, within City Solar’s powers and to the
extent reasonable,  information, assistance, and authority (at
SunPower’s expense for reasonable out of pocket expenses incurred by City Solar
in connection therewith) to enable SunPower to defend such claim or
action.  SunPower will have no liability under this Section to the
extent that the ground for the infringement claim is found in City Solar’s
modification or combination of one or more Products with designs not supplied by
SunPower.

    


    


    13.           Change
Orders.

    


    Either
party may, with the prior written approval of the other party (determined in the
sole and absolute discretion of such other party) at any time prior to the
shipping date, by change order, suspend performance of a Purchase Order in whole
or in part, make changes in the quantities, shipping dates, method of shipment
or packing or time or place of delivery of the Products.  Unless
otherwise consented to in writing by the other party, any change orders shall
not affect the obligations of the party requesting the change order to purchase
on a firm commitment basis Products up to the aggregate annual quantities for
the specified years set forth on Schedule 1. Any
mutual agreed change order shall not be a cause for any claims for damages or
indemnities.

    


    



    
      
        
          
             

          

          


        

         


      

      
         


        
          

        

      

      
         


        
          Execution
copy

          


        

      

    


    14.  Term;
Termination.

    


    Unless
terminated earlier pursuant to this Section 14, the term
of this Agreement shall commence as of the Effective Date and shall continue
through December 31, 2011 (the “Term”).

    


    (a)  Termination for
cause.                                                                Subject
to the provisions of this clause (b), either party may terminate this Agreement
for cause upon the other party’s material breach of this Agreement, provided
that such breach remains uncured after thirty (30) calendar days’ written notice
to the breaching party, and pursue all available legal remedies resulting from
such breach.

    


    (b)  Specific
performance.                                                                Each
party agrees and acknowledges that any violation or threatened violation of any
of the terms of Sections 9 (Intellectual Property),  10 (Confidential
or Proprietary Information and Property), 11 (Territory and Product
restrictions) or 25 (Export Compliance)  of this Agreement will cause
irreparable injury to the non-breaching party and no remedy at law will afford
the breaching party adequate protection against or compensation for such injury.
It is accordingly agreed that each party shall be entitled to an injunction or
injunctions to prevent breaches of such Sections of this Agreement and to
enforce specifically the terms and provisions thereof in any court of competent
jurisdiction, in each case without the requirement of posting a bond or other
security, this being in addition to any other remedy to which such party is
entitled at law or in equity.

     

    (c)
SunPower may terminate this Agreement for cause upon: change of control of City
Solar by one of SunPowers competitors in the manufacturing of solar modules or
solar cells, the dissolution or merger (provided that the latter involves a
change in control) of City Solar, or if a substantial portion of the assets of
City Solar is transferred to another company, provided that such circumstances
seriously prejudice City Solar ́s capacity to perform its obligations under this
Agreement.

     

    (d) 
Termination For Failure to
Negotiate Price Adjustment For Changes
in Exchange Rate.

    


    Commencing
September 1st 2009,
the parties will verify if the average daily closing exchange rate for
conversion of U.S. dollars into Euro currency falls below *** for a continuous
 period of not less than *** weeks before *** and *** of each year
as reflected by Bloomberg L.P.’s published Benchmark Currency Rates
(“Bloomberg”). In this event, the parties will negotiate a price adjustment
in good faith.

    
      	
              a)  

            	
              In
      case the parties do not come to an agreement on an adjusted pricing within
      a *** month negotiation period starting *** or *** respectively, SunPower
      shall have the right to terminate the contract with *** month
      notice.

            


    

    
      	
              b)  

            	
              In
      case the exchange rate should get back above *** within the negotiation
      period for a continuous period of *** weeks, SunPower shall not have the
      right to terminate the contract.

            


    

    


    Commencing
September 1st 2009,
the parties will verify if the average daily closing exchange rate for
conversion of U.S. dollars into Euro currency increases above *** for a continuous period of
not less than *** weeks before
*** and *** of each year as reflected by Bloomberg L.P.’s published
Benchmark Currency Rates (“Bloomberg”). In this event, the parties will
negotiate a price adjustment in good faith.

    
      	
              a)  

            	
              In
      case the parties do not come to an agreement on an adjusted pricing within
      a *** month negotiation period starting *** or *** respectively, City
      Solar shall have the right to terminate the contract with *** month
      notice.

            


    

    


    ***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
              b)  

            	
              In
      case the exchange rate should get back below *** within the negotiation
      period for a continuous period of *** weeks, City Solar shall not have the
      right to terminate the contract.

            


    

    


    Any
pricing adjustment as provided above will be applicable resulting from the
negotiation process shall commence *** if negotiation period has started *** and
*** if negotiation period started *** of the following year.

    


    (e)  Survival.                                Sections
8, 9, 10, 11, 12, and 14 through 28 shall survive any termination of this
Agreement.

    


    


    15.           Waiver.

    


    The
failure of any party to insist upon the performance of any provision of this
Agreement or to exercise any right or privilege granted to such party under this
Agreement shall not be construed as waiving such provision or any other
provision of this Agreement, and the same shall continue in full force and
effect.  If any provision of this Agreement is found to be illegal or
otherwise unenforceable by any court or other judicial or administrative body,
the other provisions of this Agreement shall not be affected thereby, and shall
remain in full force and effect.

    


    16.           Applicable
Law.

    


    The
validity, performance, and construction of this Agreement shall be governed by
the laws of Germany without regard to its conflicts of laws
principles.

    


    17.           Disputes /
Arbitration

    


    (1) If a
dispute of any kind whatsoever arises between the Parties in conjunction with
this Agreement, the Parties shall attempt to settle such dispute
amicably.

    


    (2)
Provided the Parties are not able to agree upon an amicable settlement within a
reasonable time and no later than thirty (30) calendar days after initiation of
settlement discussions, all disputes arising out of or in conjunction with this
Agreement, including disputes over their construction or validity, and
regardless of their legal nature, shall be settled by an arbitration court in
accordance with the Arbitration Rules of the International Chamber of Commerce
(ICC) without recourse to the ordinary courts of law. Such arbitration shall be
final and binding.

    


    (3) The
place of arbitration shall be Frankfurt, Germany.

    


    (4) The
language of the arbitration proceedings shall be English.

    


    (5) If
the dispute in question amounts to no more than *** EURO, the Arbitration Panel
shall consist of one arbitrator, otherwise of three (3)
arbitrators.

    


    (6) The
Arbitrator(s) shall in their discretion have the power to decide on cost of the
dispute, including attorneys’ fees. Such decision shall be binding.

    


    ***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (7)
Without detriment to the foregoing, the Parties shall not be precluded from
initiating interim measures via the ordinary courts of law.

    


    18.           Assignment.

    


    Except as
provided herein, no party shall assign this Agreement without the prior written
consent of the other parties hereto and any purported assignment without such
consent shall be deemed null and void.  Notwithstanding the foregoing,
both parties shall be permitted to assign this Agreement without the other
party’s consent to its Affiliates within the meaning of §§15ff AktG or in
connection with a merger or sale of all or substantially all of its
assets.  Unaffected thereof, the parties will remain liable for any of
their contractual obligation (“Gesamtschuldnerschaft”)

    


    19.           Publicity.

    


    No party
shall make or authorize any news release, advertisement, or other disclosure
which shall confirm the existence or convey any aspect of this Agreement without
the prior written consent of the other parties except as may be required to
perform this Agreement or a Purchase Order, or as required by applicable law,
rule or regulation.

    


    20.           Complete Agreement;
Modifications.                                                                                     

    


    This
Agreement, including all exhibits, schedules, purchase orders, and annexes
hereto, contains the complete and entire agreement among the parties as to the
subject matter hereof  and replaces and supersedes any prior or
contemporaneous communications, representations or agreements, whether oral or
written, with respect to the subject matter of this Agreement.  No
modification of the Agreement shall be binding unless it is written and signed
by both parties.

    


    21.           Right of
Offset.

    


    Notwithstanding
anything herein, either party shall be entitled to offset any amounts it
otherwise owes to the other party under this Agreement, provided that the amount
offset is undisputed between the parties.

    


    22.           Force
Majeure.

    


    Notwithstanding
anything to the contrary in this Agreement or any schedule hereto, no party
shall be considered in default of performance under this Agreement or a Purchase
Order to the extent that performance of such obligations is delayed or prevented
by reasons beyond the reasonable control of such party, including but not
limited to fire, flood, hurricanes, earthquake or similar natural disasters,
riot, war, terrorism, labor strikes or civil strife.

    


    


    23.           Notices.

    


    All
notices shall be delivered by fax, nationally recognized overnight courier (such
as federal express), or hand delivered to the person below.  Notice
shall be effective upon the day received, or within twenty-four (24) hours after
submission of any of the above methods.

     

    


     

    
      	 To
      SunPower:	 To City
      Solar:


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      
        	
                 

                 

                SunPower
      GmbH

                Wiesenstr.
      5

                60385
      Frankfurt

                Facsimile:  +49-69-9563471-99

                Attn:  Jörn
      Jürgens

                 

              	
                 

                 

                City
      Solar Kraftwerke AG

                Bosenheimer
      Straße 286

                55543
      Bad Kreuznach

                Facsimile:  +49-671-88909-18

                Attn:  Henrik
      Krüpper, Stefan Christ

                 

              


      

    

    


    24.           Limitation of
Liability.                                                      

    


    Except as
otherwise expressly stated herein, in no event shall any party hereto be liable
to any other party hereto for any indirect, incidental, punitive or special
damages whatsoever, without regard to cause or theory of liability arising out
of this Agreement, unless expressly provided for by this Agreement.

    


    


    25.           Export
Compliance

    


    City
Solar is aware and acknowledges that it is SunPower’s policy to comply fully
with all economic sanctions and trade restrictions promulgated by the United
States Government, the German Government and the EU authorities. City Solar
confirms that it adheres to the same policy.

    City
Solar furthermore confirms that it is its policy to refrain from any acts or
omissions constituting a violation of any applicable anti-bribery laws and
regulations.

    


    


    26.           Miscellaneous

    


    (a) Any
amendments to, or modifications of this Agreement shall become effective only
when in writing and signed by the Parties

    


    (b)
Headings to sections of this Agreement are for convenience only and shall have
no affect in construing and interpreting this Agreement.

    


    (c) The
Recitals shall be considered an integral part of this Agreement and shall have
the same force and effect as the remaining provisions of this
Agreement.

    


    (d) All
documents to which reference is made in this Agreement, and which are attached
hereto as Appendices shall be deemed as thereby incorporated in this Agreement,
and constitute an integral part thereof.

    


    


    27.  Severability
Clause

    


    In the
event any provision of this Agreement proves unenforceable or invalid for
whatever reason, the remaining provisions of this Agreement shall be unaffected
by such holding, but remain in full force and effect. The Parties shall replace
unenforceable provisions with 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.

    


    


    28.  Counterparts

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    This
Agreement shall be executed in two counterparts. Each counterpart shall be
deemed an original hereof. With their signature the Parties confirm the
reception of one counterpart.

    


    


    


    IN
WITNESS WHEREOF, the parties hereto have signed this Agreement as of the date
and year first above written.

    


    


    SunPower
GmbH

     

    
      
        	 	 	 	 	 
	
                By:    /s/
      Jörn Jürgens   

              	 	 	
                By:    /s/Howard
      Wenger 

              	 
	
                        
      Name: Jörn Jürgens   

              	 	 	
                        
      Name: Howard Wenger 

              	 
	
                        
      Title Geschäftsführer

              	 	 	
                        
      Title: President, Global Business Units

              	 


      



    City
Solar Kraftwerke AG:

    


    


    


    By:           /s/ Steffen
Kammler                                                                

    Name:  Steffen
Kammler

    Title:    Vorstand

    


    


    List of
Schedules:

    


    Schedule                                Description

    1                                Basic
Terms of Sale

    2                                Form
of Purchase Order

    3                                Form
of SunPower Solar Panel Warranties

    4                                Form
of Other Manufacturers Warranties

    5                                Information
requirements on project details

    6                                Product
Change Procedures


    
      
        
          
             

          

           

        

         


      

      
         


        
          

        

      

      
         


        
          Execution
copy

          


        

      

    


    


    SCHEDULE
1 – PRODUCTS

    


    1.           Volume and
Prices

    


    


    
      	 
      	 
      	
              2009

            	
              2010

            	
              2011

            	
              TOTAL

            
	
              MW
      ToP

            	
              ***

            	
              ***

            	
              ***

            	
              ***

            	
              ***

            
	
              MW
      additional call option

            	 
      	
              ***

            	
              ***

            	
              ***

            	
              ***

            
	
              Additional
      target quantity

            	 
      	
              ***

            	
              ***

            	
              ***

            	
              ***

            
	
              total

            	 
      	
              ***

            	
              ***

            	
              ***

            	
              ***

            
	
              Price/Wp

            	
              ***

            	
              ***

            	
              ***

            	
              ***

            	 
      
	
              Price/Wp

            	
              ***

            	
              ***

            	
              ***

            	
              ***

            	 
      
	
              Price/Wp

            	
              ***

            	
              ***

            	
              ***

            	
              ***

            	 
      
	
              Price/Wp

            	
              ***

            	
              ***

            	
              ***

            	
              ***

            	 
      


    

    


    2.           Module
Specifications

     

    The cell
type mix for modules supplied in 2009 will be ***% Gen B and ***% Gen
C.

     

    
      	 
      	
              Module
      72 cells

            	
              Module
      96 cells

            
	
              Gen
      B

            	
              ***Wp

            	 
      
	
              Gen
      C

            	
              ***Wp

            	
              ***Wp

            


    

     

    


     

     

    For 2010
and 2011 SunPower will supply City Solar only with cell types of Gen C or higher
classes, which has to be defined in Wp and cell qty. SunPower will do its best
efforts to supply City Solar with a favorable high share of the Solar panels
with the highest cell efficiency, the delivered cell mix reflecting, at least,
SunPower’s overall production mix. SunPower shall deliver modules in size of
72cell or 96cell – to be defined in purchase order and rolling forecast as set
forth in Section
1. .

     

    


    3.           BOS Equipment
Specifications

    


    3.1.           T0

     

    Project
configuration

     

    Materials
and Components for T0 TrackerTM
Building Blocks (defined below).

     

    Final
Tracker Building Block configurations shall be determined based on the following
information to be provided by City Solar for each Tracker site:

     

     

    
      	
              ·  

            	
              Soils
      report

            


    

     

     

    
      	
              ·  

            	
              GPS
      Topographical Survey

            


    

     

     

    
      	
              ·  

            	
              Inverter
      type and specifications

            


    

     

    


    SunPowerTM
Tracker Description

     

    


    
      	
              1)  

            	
              BUILDING BLOCK
      DEFINITION - Each SunPowerTM Tracker building block is driven by a
      single 1/2hp drive and controller.   Configuration by City
      Solar will be based on the final Solar Panels selected by City
      Solar.

            


    

    


    Typical
building blocks with Solar Panels provided by SunPower:

    


    


    ***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    [●] kWp
Building Blocks with [●] panels

    


    
      	
              2)  

            	
              ACCESS - For optimal
      construction and O&M access, Customer shall ensure that the site
      layout should include 1 meter N-S clearance between adjacent SunPowerTM
      Tracker system row ends.

            


    

    


    
      	
              3)  

            	
              OTHER EQUIPMENT –
      Customer is responsible for acquiring all electrical equipment, including
      without limit all inverters and transformers, necessary to install and
      operate the system, with the exception of the SunPowerTM Tracker system
      drives and controllers supplied under the
  Agreement.

            


    

    


    
      	
              4)  

            	
              SUNPOWERTM TRACKER SYSTEM
      ASSEMBLY DRAWINGS – SunPowerTM Tracker Assembly Drawings, which will
      depict the key elements of the SunPowerTM Tracker once constructed, are
      included at no additional charge.

            


    

    


    
      	
              5)  

            	
              FOUNDATIONS - A variety
      of foundation types may be accommodated depending on local site conditions
      and soil. The most common design consists of embedding the hot dip
      galvanized steel drive and bearing pier tubes, provided by SunPower, in
      concrete-filled holes augered in the unimproved site soil. The bearing
      pier tubes are 114mm OD, and the augered holes are 500mm diameter x 1.5m
      deep, for the assumed UBC Class 4 Sandy, Clay Sand soils. The drive pier
      tubes are 324mm OD, and the augered holes 762mm diameter x 3.35m deep. In
      the event that the soils are unsuitable and/or are collapsing-type soils
      that will not stand open for concrete placement following excavation,
      other foundation types may be utilized, including reinforced concrete
      grade beams.  Each row has (8)
piers.

            


    

    


    
      	
              6)  

            	
              SITE GRADING - The
      SunPowerTM Tracker shall be installed sloping up to 6 degrees in the E-W
      and/or N-S directions, and can accommodate from 0.3m – 1.0m PV module
      ground clearance at max tilt of 45 degrees, in order to accommodate most
      undeveloped sites without a requirement for extensive site
      grading.

            


    

    


    
      	
              7)  

            	
              FENCING – It is
      recommended that a minimum 2m perimeter fence with porous wind fabric or
      slats be constructed by Customer within 5m to 6m of the array. The fence
      should be designed by City Solar to survive design wind speeds expected at
      the project site.

            


    

    


    Components
and materials to be provided by Sunpower

    


    SunPowerTM
Tracker is a horizontal single-axis PV tracking system (technology is protected
by US Patent No. 6,058,930 and other US and PCT patents pending). SunPower sells
City Solar the SunPowerTM Tracker components and materials described below for
the purpose of constructing a PV tracking system. The specific materials,
components and other items to be provided by SunPower consist of the
following:

    


    
      	
              ·  

            	
              Torque
      Tube material

            


    

    
      	
              ·  

            	
              Bearing
      Pier material – maximum 3.0 meter length (unless otherwise specified on
      1st
      page of this document)

            


    

    
      	
              ·  

            	
              Drive
      Pier material – maximum 3.5 meter length (unless otherwise specified on
      1st
      page of this document)

            


    

    
      	
              ·  

            	
              Central
      Torque Tube components

            


    

    
      	
              ·  

            	
              Strut
      components

            


    

    
      	
              ·  

            	
              Bearing
      Pier Cap components

            


    

    
      	
              ·  

            	
              Drive
      Pier Cap components

            


    

    
      	
              ·  

            	
              PV
      Module mounting clamps (Customer to specify exact module
    type)

            


    

    
      	
              ·  

            	
              PV
      Module mounting fasteners (Customer to specify exact module
      type)

            


    

    
      	
              ·  

            	
              Drive
      Mounting components

            


    

    
      	
              ·  

            	
              Fully
      Integrated Linear Actuator Drive/Gearmotor/Potentiometer/Limit
      Switch/Controller Assemblies

            


    

    
      	
              ·  

            	
              Torque
      Tube Bearings

            


    

    
      	
              ·  

            	
              Torque
      Tube Caps

            


    

    
      	
              ·  

            	
              Thrust
      Bearing components

            


    

    


    SunPower
may amend the number of any type of component, material or items to be delivered
on the basis of the detailed final site layout provided by City Solar following
signature of this Agreement.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    City
Solar is solely responsible for verifying that the site(s) and other conditions
are appropriate for use of the T0 BOS Equipment.

    


    3.2           T20

     

    Project
configuration

     

    Materials
and Components for T20 TrackerTM
Building Blocks (defined below).

     

    Final
Tracker Building Block configurations shall be determined based on the following
information to be provided by City Solar for each Tracker site:

     

     

    
      	
              ·  

            	
              Soils
      report

            


    

     

     

    
      	
              ·  

            	
              GPS
      Topographical Survey

            


    

     

     

    
      	
              ·  

            	
              Inverter
      type and specifications

            


    

     

    SunPower
T20 TrackerTM Description

    


    1)           BUILDING BLOCK DEFINITION -
Each T20 TrackerTM Building Block is composed of several T20 TrackerTM rows, each
row driven by a single 1/2hp drive and controller will be configured based on
the final module types defined with City Solar. The tracker configuration is
determined by the number of Solar Panels per source circuit that the inverter
selected by City Solar can accommodate.

    


    Typical
building blocks with Solar Panels provided by SunPower:

    


    [●] kWp
Building Blocks with [●] panels

    


    Each
tracker unit consists of [●] modules bolted on a steel structure. Each tracker
unit consists of one string with ~ ●kWp.

    


    2)           ACCESS - For optimal
construction and O&M access, City Solar shall ensure that the site layout
should include 4 meter E-W clearance between adjacent T20 TrackerTM system row
ends.

    


    3)           INVERTERS AND TRANSFORMERS -
All electrical equipment necessary to install and operate the system, except the
T20 TrackerTM system drives and controllers are to be acquired by City Solar from
other vendors.

    


    4)           TRACKERTM SYSTEM ASSEMBLY DRAWINGS
– T20 TrackerTM Assembly Drawings shall be included to depict the key
elements of the T20 TrackerTM System once constructed.

    


    5)           FOUNDATIONS - Each T20
TrackerTM tracker unit shall be installed on reinforced concrete surface-mounted
foundations. Specifications and drawings for the standard foundations shall be
provided by SunPower to City Solar. The maximum slope for the foundations shall
be 3 degrees. The foundations are specified to prevent overturning during the
design life. It is anticipated that slight sliding of the foundations could
occur during major wind events on perimeter tracker units. This is not
considered a failure and that annual maintenance could include repositioning
foundations as necessary.

    


    6)           SITE GRADING - The T20
TrackerTM system may be installed sloping up to 3 degrees in the E-W and/or N-S
directions, and can accommodate from 0.3m – 1.0m Solar Panel ground clearance at
max tilt of 45 degrees, in order to accommodate most undeveloped sites without a
requirement for extensive site grading. Following contract signature and as part
of the development of the detailed site layout, site topographical information
will be reviewed in order to determine whether a requirement for site grading
may be avoided.

    


    7)           FENCING – It is recommended
that a minimum 2m perimeter fence with porous wind fabric or slats be
constructed by Customer within 5m to 6m of the array. The fence should be
designed by City Solar to survive design wind speeds expected at the project
site.

    


    8)           WIND SPEED – The maximum
3-second gust specification for T20 is: 130km/h also expressed as 36 m/s or 81
mph.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Components and materials to be
provided by SunPower: T20 TrackerTM is a horizontal single-axis PV
tracking system (technology is protected by US Patent No. 6,058,930 and other US
and PCT patents pending). SunPower will sell the Customer the T20 TrackerTM
components and materials described below for the purpose of constructing a PV
tracking system. The specific materials, components and other items to be
provided by SunPower consist of the following:

    


    
      	
              ·  

            	
              T20
      generic foundation design drawings and design loads (not site
      specific, not stamped by an Italia engineer duly
  licensed)

            


    

    
      	
              ·  

            	
              Torque
      Tube material

            


    

    
      	
              ·  

            	
              Drive
      strut component

            


    

    
      	
              ·  

            	
              Module
      strut components

            


    

    
      	
              ·  

            	
              PV
      Module mounting clamps

            


    

    
      	
              ·  

            	
              Drive
      Mounting components

            


    

    
      	
              ·  

            	
              PV
      Module mounting fasteners

            


    

    
      	
              ·  

            	
              Fully
      Integrated Linear Actuator Drive/Gearmotor/Potentiometer/Limit
      Switch/Controller Assemblies

            


    

    
      	
              ·  

            	
              Torque
      Tube Bearings

            


    

    
      	
              ·  

            	
              Torque
      Tube Caps

            


    

    
      	
              ·  

            	
              Thrust
      Bearing components

            


    

    


    SunPower
may amend the number of any type of component, material or items to be delivered
on the basis of the detailed final site layout provided by City Solar following
signature of this Agreement.

    


    For
purposes of generating the list of component parts for each site, SunPower has
made certain assumptions regarding ground clearance, design wind speed and other
factors. While we have assumed 36 meters per second 3-sec gust 5-year wind
speeds, UBC Class 4 soils, no design or implied warranties are included in the
basic material quote.

    


    City
Solar is solely responsible for verifying that the site(s) and other conditions
are appropriate for use of the T20 BOS Equipment.

    


    3.3           T10

    


    SunPowerTM
T10 Roof Tile is a non-penetrating PV patented mounting system. SunPower sells
Customer the SunPowerTM T10 Roof Tile components and materials described below
for the purpose of constructing a rooftop PV system. The specific materials,
components and other items to be provided by SunPower consist of the
following:

    


    
      	
              ·  

            	
              North
      Support Assemblies

            


    

    
      	
              ·  

            	
              Main
      Supports Assemblies

            


    

    
      	
              ·  

            	
              South
      Supports Assemblies

            


    

    
      	
              ·  

            	
              North
      Deflectors

            


    

    
      	
              ·  

            	
              East
      Deflectors

            


    

    
      	
              ·  

            	
              West
      Deflectors

            


    

    
      	
              ·  

            	
              Wire
      Tray Assemblies

            


    

    
      	
              ·  

            	
              IFF
      Clips (PV Module mounting clamps)

            


    

    
      	
              ·  

            	
              Bolts

            


    

    
      	
              ·  

            	
              Flange
      Nuts

            


    

    
      	
              ·  

            	
              Wire
      Ropes (where necessary)

            


    

    
      	
              ·  

            	
              Spreader
      Bars (where necessary)

            


    

    


    City
Solar is solely responsible for verifying that the site(s) and other conditions
are appropriate for use of the T10 BOS Equipment.

    


    4.           Annual and monthly
allocations

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    No later
than 1st October
(1st December for 2009) each year the parties shall mutually agree on
a written shipping schedule allocating the annual volume commitments to the
calendar months of the following year as described in the table below for the
following calendar year (“Annual Forecast”).

    
      	
              ·  

            	
              The
      guiding over-all principles (applies to the Annual Forecast as well as the
      Revised Annual Forecast (as specified below)) for this schedule shall be
      as follows :

            


    

    
      	
              i.  

            	
              Each
      individual fiscal quarter cannot hold more that ***% of the annual
      committed volume.

            


    

    
      	
              ii.  

            	
              The
      first month of each fiscal quarter needs to hold ≤ ***% of the quarterly
      volume.

            


    

    
      	
              iii.  

            	
              The
      second and third month of each fiscal quarter needs to hold ≤ ***% of the
      quarterly volume.

            


    

    
      	
              iv.  

            	
              If
      the parties do not come to an agreement of how to allocate fiscal
      quarters, then the annual volume shall be evenly distributed within the
      year.

            


    

    


    Within
the year, City Solar will supply a revised monthly rolling shipping forecast
(“Revised Annual Forecast”) at the end of each month showing the following four
month locked volume and possibly revised following forecast for the remainder of
the year.

    Rules for
re-allocation of product :

    
      	
              ·  

            	
              CitySolar
      has the right to move volume between months in the following way
      :

            


    

    
      	
              o  

            	
              Month 1 – 4 has to be looked
      down, means 0% flexibility

            


    

    
      	
              o  

            	
              Month 5 – 6 volumes might be
      changed +/- ***% in respect to the Revised Annual
  Forecast.

            


    

    
      	
              o  

            	
              Month 7 – 9 volumes might be
      changed +/- ***% in respect to the Revised Annual
  Forecast.

            


    

    
      	
              o  

            	
              Month hereinafter month 9 for
      the present year +-***% in respect to the Revised Annual
      Forecast.

            


    

    


    SunPower
and City Solar shall mutually agree on a weekly shipping schedule showing the
first two months of each lock down period (“Weekly Shipping
Schedule”)

    


    The
parties will use their best efforts to optimize deliveries in accordance with
City Solars project planning schedule.

    


    
      	 
      	 
      	
              01/

              xx

            	
              02/

              xx

            	
              03/

              xx

            	
              04/

              xx

            	
              05/

              xx

            	
              06/

              xx

            	
              07/

              xx

            	
              08/

              xx

            	
              09/

              xx

            	
              10/

              xx

            	
              11/

              xx

            	
              12/

              xx

            
	
              PV-only

            	
              MW
      ToP

               

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              T0

            	
              MW
      ToP

               

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              T20

            	
              MW
      ToP

               

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              T10

            	
              MW
      ToP

               

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      


    

    


     

    5.           Price Adjustment for
Products

     

     

    In the
event that future market conditions change causing the above pricing to result
in a severe economic disadvantage for either Party, the Parties agree to meet
and discuss new terms for next year ́s pricing that preserve the relative
economic benefits of the Agreement. No later than October 1st of the given year
the Parties shall establish such new terms for next year ́s
pricing.  If, despite their best efforts, the Parties are unable to
agree upon revised pricing, the Parties shall submit the matter to arbitration
pursuant to Section
17; provided, that if in the course of arbitration (A) Seller is able to
demonstrate either (i) that maintaining existing pricing would reduce its
aggregate gross margin on a quarterly basis substantially below a reasonable
gross margin for a module manufacturer  or (ii) that a

     

    


    ***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.


    
      
        
          
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    change in
existing pricing would reduce its aggregate gross margin on a quarterly basis
substantially below a reasonable gross margin for a module manufacturer, and/or
(B) Buyer is able to demonstrate either (i) that maintaining existing pricing
would reduce its aggregate gross margin on a quarterly basis substantially below
a reasonable gross margin for a solar power plant
installer/operator,  or (ii) that a change in existing pricing would
reduce its aggregate gross margin on a quarterly basis substantially below a
reasonable gross margin for a solar power plant installer/operator, then the
affected Party shall have the right to terminate this Agreement with no further
liability.

    


    


    6.           Indemnity

    


    City Solar’s Failure to Meet
Quantity Commitments:   In the event that City Solar fails
to order and take delivery of its contracted volume in the year 2009, City Solar
shall pay SunPower a minimum indemnity equal to  *** € per Watt
regarding the not ordered products, if volume commitment remains unfulfilled
after *** days written notice to City Solar. SunPower shall have no right to
give such notice, and City Solar shall not be under any obligations to pay any
respective indemnity before the end of the calendar year in question City Solar
will pay the indemnity within *** days of invoice date. SunPower shall use its
best efforts to minimize its damages by reselling the products not taken by City
Solar to other customers for the best possible price. All amounts due to the
resale efforts by SunPower shall be taken into account in computing the
indemnity. SunPower ́s right to claim and prove a higher or other damage or
higher loss of profit, as provided by German law, remains unaffected
hereof.

    


    SunPower’s Failure to Meet
Quantity Commitments: In the event that SunPower fails to ship its
contracted volume in the year 2009, SunPower shall pay City Solar a minimum
indemnity equal to  *** € per Watt regarding the not shipped products,
if volume commitment remains unfulfilled after *** days written notice to
SunPower. City Solar shall have no right to give such notice, and SunPower shall
not be under any obligations to pay any respective indemnity before the end of
the calendar year in question. SunPower will pay the same within *** days of
invoice date. City Solar ́s right to claim and prove higher or other damages
and/or a higher loss of profit, as provided by German law, remains unaffected
hereof.

    


    Commencing
January 1st 2010,
the parties agree that any damages can only be claimed in accordance to German
law.

     

    


     

     

    


     

    7.           Option

    


    No later
than 1st October
2009 and each year after the City Solar may increase the annual volume up
to the call option as quantified in table above (Schedule
1.1).  Additionally the parties may mutually agree to increase the
annual volume commitments for the following calendar year up to the amounts
described in the table above as Additional target quantity. The increased annual
volume shall become a binding commitment of the parties to purchase and sell
such quantity for such year. The mutual agreement to increase the respective
annual volume commitment for 2010 and 2011 shall be in writing and signed by
both parties according to Section 20.

     

    


     

    


    


    


    


    


    


    


    


    


    


    


    


    ***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.


    
      
        
          
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    SCHEDULE
2

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    SCHEDULE
3

    


    SUNPOWER
LIMITED WARRANTY FOR SOLAR PANELS

    


    SPR-315E-xxx-x,
SPR-300E-xxx-x, SPR-305-xxx-x, SPR-300-xxx-x, SPR-290-xxx-x, SPR-230-xxx-x,
SPR-225-xxx-x, SPR-220-xxx-x, SPR-217-xxx-x, SPR-215-xxx-x, SPR-210-xxx-x,
SPR-205-xxx-x, SPR-200-xxx-x, SPR-90-xxx-x (“xxx-x” define product
variants)

    


    
      	
              1.

            	
              Limited
      Product Warranty – Ten (10) Year
      Repair, Replacement or Refund
Remedy

            


    

    


    SunPower
GMBH (“SunPower”) warrants that for ten (10) years, its Solar Panels shall be
free from defects in materials and workmanship under normal application,
installation, use and service conditions. If the Solar Panels fail to conform to
this warranty, then for a period ending ten (10) years from delivery of the PV
Modules according to Section 3 of the Agreement, SunPower will, at its option,
either repair or replace the product, or refund the purchase price as paid by
the City Solar. The repair, replacement or refund remedy shall be the sole and
exclusive remedy provided under the Limited Product Warranty and shall not
extend beyond the ten (10) year period set forth herein. This Limited Product
Warranty does not warrant a specific power output, which shall be exclusively
covered under clause 2 hereinafter (Limited Power Warranty).

    


    


    2.           Limited Power
Warranty

    


    
      	
               
      

            	
              a)

            	
              SunPower
      additionally warrants: If, within twelve (12) years from date of delivery
      to City Solar, any Solar Module(s) exhibits a power output less than 90%
      of the Minimum Peak Power as specified at the date of delivery in
      SunPower’s Product datasheet, and this reduced output is caused by defects
      in material or workmanship, SunPower will optionally replace such loss in
      power by either providing to City Solar additional Solar Panels to make up
      such loss in power or by providing monetary compensation equivalent to the
      cost of additional Solar Panels required to make up such loss in power or
      by repairing or replacing the defective Solar Panels.

            


    

    


    
      	
               
      

            	
              b)

            	
              SunPower
      additionally warrants: If, within twenty five (25) years from date of
      delivery to City Solar any Solar Panel(s) exhibits a power output less
      than 80% of the Minimum Peak Power as specified at the date of delivery in
      SunPower’s Product datasheet, and this reduced output is caused by defects
      in material or workmanship, SunPower will optionally replace such loss in
      power by either providing to City Solar additional Solar Panels to make up
      such loss in power or by providing monetary compensation equivalent to the
      cost of additional Solar Panels required to make up such loss in power or
      by repairing or replacing the defective Solar
  Panels

            


    

    


    


    


    


    


    
      	
              3.

            	
              Exclusions and
      limitations

            


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
               
      

            	
              a)

            	
              Warranty
      claims must in any event be filed within the applicable Warranty
      period.

            


    

    


    
      	
               
      

            	
              b)

            	
              Warranty
      claims may only be made by, or on the behalf of, the original end customer
      or a person to whom title has been transferred for the Solar
      Panels.

            


    

    


    
      	
               
      

            	
              c)

            	
              The
      Limited Warranties do not apply to any of the
  following:

            


    

    


    
      	
               
      

            	
              1.

            	
              if
      and to the extent to which the Solar Panels have been subjected to:
      misuse, abuse, neglect or accident; alteration, improper installation,
      application or removal (including but not limited to installation,
      application or removal by any party other than a SunPower authorized
      dealer; non observance of SunPower's installation, users and/or
      maintenance instructions; repair or modifications by someone other than an
      approved service technician of SunPower; power failure surges, lightning,
      flood, fire, accidental breakage or other events outside SunPower's
      control.

            


    

    


    
      	
               
      

            	
              2.

            	
              Cosmetic
      defects stemming from normal wear and tear of Solar Panels
      materials.

            


    

    


    
      	
               
      

            	
              3.

            	
              if
      and to the extent the Solar Panels have been installed in locations, which
      may be subject to direct contact with salt
  water.

            


    

    


    
      	
              d)

            	
              The
      Limited Warranties do not cover any transportation costs for the return of
      Solar Panels or the installation, removal or reinstallation of Solar
      Panels, as long as they do not associate with the repair or replacement of
      Solar Panels.

            


    

    


    
      	
              e)

            	
              When
      used on a mobile platform of any type, the Limited Power Warranty,
      applying to any of the Solar Panels shall be limited to twelve (12) years
      as per the provisions of clause 2(a)
hereof.

            


    

    


    
      	
              f)

            	
              Warranty
      claims will not apply if the type or serial number of the Solar Panels is
      altered, removed or made illegible.

            


    

    


    


    4.           Limitation of Warranty
Scope

    


    FURTHER
CLAIMS ARE EXCLUDED, IN PARTICULAR CLAIMS FOR DAMAGES, WHICH DO NOT OCCURRE TO
THE PV MODULES ITSELF. THIS SHALL NOT APPLY IN INSTANCES OF INTENT AND GROSS
NEGLIGENCE OR CULPABLE VIOLATION OF IMPORTANT CONTRACTUAL OBLIGATIONS. IN THE
EVENT OF CULPABLE VIOLATION OF IMPORTANT CONTRACTUAL OBLIGATIONS, SUNPOWER SHALL
SOLELY ASSUME LIABILITY FOR DAMAGES THAT ARE TYPICAL FOR THE CONTRACT AND COULD
HAVE REASONABLY BEEN FORESEEN – EXCEPT IN INSTANCES OF INTENT OR GROSS
NEGLICENCE. THE EXCLUSION OF LIABILTY SHALL NOT APPLY TO GUARANTUEES WITH
RESPECT TO QUALITY, PROVIDED THAT IT WAS SPECIFICALLY INTENDED TO SAFEGUARD THE
CUSTOMER AGAINST DAMAGES. MOREOVER, THE EXCLUSION OF LIABILTY SHALL NOT APPLY IN
INSTANCES WHERE LIABILTY IS

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     ASSUMED,
UNDER PRODUCT LIABILTY LAW, FOR PERSONAL INJURY OR PROPERTY DAMAGE AT OR ON
PRIVATELY UTILIZED OBJECTS, FOR DEFECTS IN THE DELIVERED SOLAR
PANEL.

    


    SUNPOWER
IS NOT LIABLE FOR DAMAGES THAT ARISE OUTSIDE ITS SCOPE OF PERFORMANCE, ARE
INFLUENCED BY IMPROPER UTILIZATION OR TREATMENT, ERRONEOUS INSTELLATION AND
OPERATION BY THE CUSTOMER OR ANY THIRD PARTIES, NATURAL WEAR AND TEAR AND
INAPPROPRIATE OPERATING MATERIALS OR REPLACEMENT MATERIALS. AN IMPROPER USE IS
ASSUMED IF THE SOLAR PANELS ARE NOT BEING USED IN ACCORDANCE WITH THE CONDITIONS
OF OPERATIONS STATED IN SUNPOWER ́S DATASHEETS AND BROCHURES.

    


    5.           Obtaining Warranty
Performance

    


    If you
feel you have a justified claim covered by this Limited Warranty, immediately
send such notification to SunPower GMBH. In addition, please enclose evidence of
the date of delivery of the Solar Panels. If further assistance is required,
please write to SunPower for instructions. The return of any Solar Panels will
not be accepted unless prior written authorization has been given by
SunPower.

    


    6.           Transferability

    


    Subject
to the terms of this warranty, this warranty is transferable provided that the
Solar Panels remain installed in original location.

    



    
      
        
          
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    SCHEDULE
4

    


    SUNPOWER
LIMITED WARRANTY FOR BOS EQUIPMENT

    


    


    T0/T20

    


    1.           Limited
warranty

    


    SUNPOWER
GMBH (“SunPower”)
warrants that, for the period(s) set forth below commencing on the applicable
shipment date, the BOS Equipment, when shipped in its original container, will
be free from defective workmanship and materials, and agrees that it will, at
its option, (1) either repair the defect or replace the defective BOS Equipment
or part thereof with a new or remanufactured equivalent at no charge to City
Solar for parts or labor for the period(s) set forth below or (2) or refund
the price paid of the defective BOS Equipment paid for by City
Solar:

    


    
      	
              ·  

            	
              Gearmotor:
      3-year parts only warranty

            


    

    
      	
              ·  

            	
              Drive:  5-year
      parts only warranty

            


    

    
      	
              ·  

            	
              Controller:  3-year
      limited warranty

            


    

    
      	
              ·  

            	
              Mill
      Steel material: warranted at delivery to meet manufacturer
      specifications

            


    

    
      	
              ·  

            	
              Fabricated
      Steel: warranted at delivery to meet manufacturer
      specifications

            


    

    
      	
              ·  

            	
              Fasteners:
      warranted at delivery to meet manufacturer
  specifications

            


    

    
      	
              ·  

            	
              Bearings:
      warranted at delivery to meet manufacturer
  specifications

            


    

    


    This
warranty does not apply to any appearance items of the BOS Equipment nor to the
additional excluded item(s) set forth below nor to any BOS Equipment the
exterior of which has been damaged or defaced, which has been subjected to
misuse, abnormal service or handling, or which has been altered or modified in
design or construction.

    


    2.           Exclusions

    


    This
warranty shall be void in the event of any of the following:

    


    
      	
              ·  

            	
              Improper
      or unauthorized installation, alteration or repair made to the BOS
      Equipment or associated wiring and
parts;

            


    

    
      	
              ·  

            	
              damage,
      malfunction, or degradation of electrical output caused by failure to
      properly operate or maintain the equipment, power failure surges,
      lightening, flood, fire, accidental breakage or damage, malfunction, or
      other events beyond SunPower’s control, or degradation of electrical
      output resulting from owner or third-party abuse, accident, alteration,
      improper use, negligence, or
vandalism;

            


    

    
      	
              ·  

            	
              the
      components in the construction base on which the BOS Equipment is mounted
      are defective; or

            


    

    
      	
              ·  

            	
              Force Majeure events,
      including without limit, any act or event which is unforeseeable, or being
      foreseeable, unavoidable and outside the control of SunPower, including,
      without limit, Acts of God.

            


    

    


    Ordinary
wear and tear, or cosmetic imperfections are not considered
defects.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    This
warranty does not cover any transportation costs for return of the BOS Equipment
or  costs for the installation, removal or reinstallation of the BOS
Equipment, as long as they do not associate with the repair or replacement of
BOS Equipment.

    


    The
warranty is conditioned on (i) City Solar, at its cost, providing qualified
on-site labor, (ii) the environment for use of the components not exceeding or
departing materially from the site assumptions listed for each
project.

    


    3.           Other Manufacturer
Warranties

    


    The
Equipment may include components that are manufactured by other manufacturers
(“Other Manufacturers”).
This may include, without limit, warranties regarding gearmotors, drives and
inverters. To the extent applicable, SunPower hereby assigns all Other
Manufacturer warranties to City Solar and permitted
transferees.  SunPower makes no representations or warranties, and
warrantee shall primarily seek recourse from these Other Manufacturers,
regarding the warranties of these Other Manufacturers. SunPower shall deliver
City Solar terms and conditions of the third party manufacturer warranties at
delivery of Equipment. SunPower is only subsidiarily liable for warranties of
these Other Manufacturers.

    


    4.           Limitation of Warranty
Scope

    


    FURTHER
CLAIMS ARE EXCLUDED, IN PARTICULAR CLAIMS FOR DAMAGES, WHICH DO NOT OCCURRE TO
THE BOS EQUIPMENT ITSELF. THIS SHALL NOT APPLY IN INSTANCES OF INTENT AND GROSS
NEGLIGENCE OR CULPABLE VIOLATION OF IMPORTANT CONTRACTUAL OBLIGATIONS. IN THE
EVENT OF CULPABLE VIOLATION OF IMPORTANT CONTRACTUAL OBLIGATIONS, SUNPOWER SHALL
SOLELY ASSUME LIABILITY FOR DAMAGES THAT ARE TYPICAL FOR THE CONTRACT AND COULD
HAVE REASONABLY BEEN FORESEEN – EXCEPT IN INSTANCES OF INTENT OR GROSS
NEGLICENCE. THE EXCLUSION OF LIABILTY SHALL NOT APPLY TO GUARANTUEES WITH
RESPECT TO QUALITY, PROVIDED THAT IT WAS SPECIFICALLY INTENDED TO SAFEGUARD CITY
SOLAR AGAINST DAMAGES. MOREOVER, THE EXCLUSION OF LIABILTY SHALL NOT APPLY IN
INSTANCES WHERE LIABILTY IS ASSUMED, UNDER PRODUCT LIABILTY LAW, FOR PERSONAL
INJURY OR PROPERTY DAMAGE AT OR ON PRIVATELY UTILIZED OBJECTS, FOR DEFECTS IN
THE DELIVERED BOS EQUIPMENT.

    


    SUNPOWER
IS NOT LIABLE FOR DAMAGES THAT ARISE OUTSIDE ITS SCOPE OF PERFORMANCE, ARE
INFLUENCED BY IMPROPER UTILIZATION OR TREATMENT, ERRONEOUS INSTELLATION AND
OPERATION BY CITY SOLAR OR ANY THIRD PARTIES, NATURAL WEAR AND TEAR AND
INAPPROPRIATE OPERATING MATERIALS OR REPLACEMENT MATERIALS. AN IMPROPER USE IS
ASSUMED IF THE BOS EQUIPMENT IS NOT BEING USED IN ACCORDANCE WITH THE CONDITIONS
OF OPERATIONS STATED IN SUNPOWER ́S DATASHEETS AND BROCHURES.

    


    


    5.           Obtaining Warranty
Performance

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    If City
Solar feels it has a justified claim covered by this warranty, it shall
immediately send such notification to SUNPOWER GMBH. In addition, City Solar
shall enclose evidence of the date of delivery of the BOS Equipment. The return
of any BOS Equipment will not be accepted unless prior written authorization has
been given by SunPower.

    


    6.           Transferability

    


    Subject
to the terms of this warranty, this warranty is transferable provided that the
BOS Equipment remains installed in original location.

    


    7.           Spare
Kit

    


    City
Solar may wish to purchase a spare controller, gearmotor and limit switch
assembly, so that such spares would be available in the event of the failure of
one of those units, which would help to reduce system downtime associated with
equipment failure. Pricing for such spare kit is described below:

    


    


    [Missing Graphic Reference]

    


    [Missing Graphic Reference]


    
      
        
          
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    T10

    


    1.           Limited
warranty

    


    SUNPOWER
GMBH (“SunPower”)
warrants that, for the period(s) set forth below commencing on the applicable
shipment date, the BOS Equipment, when shipped in its original container, will
be free from defective workmanship and materials, and agrees that it will, at
its option, (1) either repair the defect or replace the defective BOS Equipment
or part thereof with a new or remanufactured equivalent at no charge to City
Solar for parts or labor for the period(s) set forth below or (2) or refund
the price paid of the defective BOS Equipment paid for by City
Solar.

    


    This
warranty does not apply to any appearance items of the Equipment nor to any
additional excluded item(s) set forth below nor to any Equipment the exterior of
which has been damaged or defaced, which has been subjected to misuse, abnormal
service or handling, or which has been altered or modified in design or
construction.

    


    2.           Model Number &
Description

    


    T10 ROOF
TILE

    


    3.           Warranty
Period

    


    The
warranty period on the Equipment is 5 YEARS from delivery of the Equipment
according to Section 3 of the Agreement.

    


    4.           Other Manufacturer
Warranties

    


    The
Equipment may include components that are manufactured by other manufacturers
(“Other Manufacturers”).
This may include, without limit, warranties regarding gearmotors, drives and
inverters. To the extent applicable, SunPower hereby assigns all Other
Manufacturer warranties to City Solar and permitted
transferees.  SunPower makes no representations or warranties, and
warrantee shall primarily seek recourse from these Other Manufacturers,
regarding the warranties of these Other Manufacturers. SunPower shall deliver
City Solar terms and conditions of the third party manufacturer warranties at
delivery of Equipment. SunPower is only subsidiarily liable for warranties of
these Other Manufacturers.

    


    5.           Exclusions: This warranty shall be void
in the event of any of the following:

    


    
      	
              ·  

            	
              Improper
      or unauthorized installation, alteration or repair made to the Equipment
      or associated wiring and parts;

            


    

    
      	
              ·  

            	
              damage,
      malfunction, or degradation of electrical output caused by failure to
      properly operate or maintain the Equipment, power failure surges,
      lightening, flood, fire, accidental breakage or damage, malfunction, or
      degradation of electrical output resulting from homeowner or
      third-party abuse, accident, alteration, improper use, negligence, or
      vandalism;

            


    

    
      	
              ·  

            	
              the
      components in the construction base on which the Equipment is mounted are
      defective;

               

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
              ·  

            	
              Force Majeure events,
      including without limit, any act or event which is unforeseeable, or being
      foreseeable, unavoidable and outside the control of SunPower, including,
      without limit, Acts of God.

            


    

    


    Ordinary
wear and tear, or cosmetic imperfections are not considered
defects.

    


    6.           Limitation of Warranty
Scope

    


    FURTHER
CLAIMS ARE EXCLUDED, IN PARTICULAR CLAIMS FOR DAMAGES, WHICH DO NOT OCCURRE TO
THE BOS EQUIPMENT ITSELF. THIS SHALL NOT APPLY IN INSTANCES OF INTENT AND GROSS
NEGLIGENCE OR CULPABLE VIOLATION OF IMPORTANT CONTRACTUAL OBLIGATIONS. IN THE
EVENT OF CULPABLE VIOLATION OF IMPORTANT CONTRACTUAL OBLIGATIONS, SUNPOWER SHALL
SOLELY ASSUME LIABILITY FOR DAMAGES THAT ARE TYPICAL FOR THE CONTRACT AND COULD
HAVE REASONABLY BEEN FORESEEN – EXCEPT IN INSTANCES OF INTENT OR GROSS
NEGLICENCE. THE EXCLUSION OF LIABILTY SHALL NOT APPLY TO GUARANTUEES WITH
RESPECT TO QUALITY, PROVIDED THAT IT WAS SPECIFICALLY INTENDED TO SAFEGUARD CITY
SOLAR AGAINST DAMAGES. MOREOVER, THE EXCLUSION OF LIABILTY SHALL NOT APPLY IN
INSTANCES WHERE LIABILTY IS ASSUMED, UNDER PRODUCT LIABILTY LAW, FOR PERSONAL
INJURY OR PROPERTY DAMAGE AT OR ON PRIVATELY UTILIZED OBJECTS, FOR DEFECTS IN
THE DELIVERED BOS EQUIPMENT.

    


    SUNPOWER
IS NOT LIABLE FOR DAMAGES THAT ARISE OUTSIDE ITS SCOPE OF PERFORMANCE, ARE
INFLUENCED BY IMPROPER UTILIZATION OR TREATMENT, ERRONEOUS INSTELLATION AND
OPERATION BY CITY SOLAR OR ANY THIRD PARTIES, NATURAL WEAR AND TEAR AND
INAPPROPRIATE OPERATING MATERIALS OR REPLACEMENT MATERIALS. AN IMPROPER USE IS
ASSUMED IF THE BOS EQUIPMENT IS NOT BEING USED IN ACCORDANCE WITH THE CONDITIONS
OF OPERATIONS STATED IN SUNPOWER ́S DATASHEETS AND BROCHURES.

    


    


    7.           Obtaining Warranty
Performance

    


    If City
Solar feels it has a justified claim covered by this warranty, it shall
immediately send such notification to SUNPOWER GMBH. In addition, City Solar
shall enclose evidence of the date of delivery of the BOS Equipment. The return
of any BOS Equipment will not be accepted unless prior written authorization has
been given by SunPower.

    


    8.           Transferability

    


    Subject
to the terms of this warranty, this warranty is transferable provided that the
BOS Equipment remains installed in original location.


    
      
        
          
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    SCHEDULE
5

    


    INFORMATION
REQUIREMENTS ON PROJECT DETAILS

    


    
      	
              (1)  

            	
              Project
      description (type of mounting
systems)

            


    

    
      	
              (2)  

            	
              Project
      schedule (Which part if constructed when
?)

            


    

    
      	
              (3)  

            	
              Project
      location (address)

            


    

    
      	
              (4)  

            	
              Size
      of project (kWp)

            


    

    
      	
              (5)  

            	
              Modules
      used for project (list of containers or invoice numbers showing which
      modules were used for the
project).

            


    


    
      
        
          
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    SCHEDULE
6

    


    Product
Change Procedures

    


    


    1. 
As part of its continuous product improvement program, SunPower shall be free to
implement changes and improvements to its products and manufacturing processes,
subject to compliance with the foregoing procedures.

     

    


     

    


     

    2. 
SunPower shall only ship Products with Category 1 changes after having complied
with the below procedure:

     

    a. 
SunPower shall submit to City Solar a notification of its desire to ship
Products containing Category 1 changes.  The notification shall contain a
detailed description of the manufacturing or product change, a description of
the resulting change in the Product Specifications and as appropriate and
applicable quality control data, technical information sheets, results of
independent and third party testing conducted to confirm compliance with VDE
certification to IEC 61215 ,Safety Class II according to IEC61730-1 and 61730-2
or other certifications necessary for mounting systems and/or pursuant
components.

     

    b. 
After the submission of the information, the Parties shall prepare and agree
within one (1) month) on a written detailed qualification program. 
Provided that SunPower has submitted reasonably satisfactory evidence in its
notification that the changed Products are Bankable, the qualification program
shall be limited to City Solar’s use of such Products as contemplated in this
Agreement.  Such qualification program shall contain at least the following
data:

     

    
      	
              ·  

            	
              starting
      and ending date of qualification
program;

            


    

     

    
      	
              ·  

            	
              modification
      acceptance criteria.

            


    

     

    The
approval of Category 1 changes and thereby to receive shipment of product with
said changes, will be notified by City Solar to SunPower in a Product Change
Acceptance Notification, which notification shall not be unreasonably withheld
or delayed.

     

    Category
1 changes are technical changes of the Products that are measurable and will
impact the technical (mechanical, electrical, physical) design of solar
installations in addition to City Solar’s certification to IEC 61215, Safety
Class II (according to IEC61730-1 and 61730-2) or other certifications necessary
for mounting systems and/or pursuant components such as

     

    


     

    
      	
              ·  

            	
              changes
      that cause the module to no longer be certified to IEC
    61215

            


    

     

    
      	
              ·  

            	
              changes
      that cause the module to no longer be certified to Safety Class II
      (according to IEC61730-1 and
61730-2)

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
              ·  

            	
              changes
      that cause the mounting systems and/or pursuant components to not longer
      be certified to other necessary
certifications

            


    

     

    
      	
              ·  

            	
              material
      changes to the length of the electrical
cable

            


    

     

    
      	
              ·  

            	
              changes
      to the connector manufacturer or
model

            


    

     

    
      	
              ·  

            	
              material
      changes to packaging material, methods and crate
  dimensions

            


    

     

    


     

    


     

    3. 
SunPower shall be free to implement all Category 2 changes without notification
to City Solar; provided that such changes do not have an appreciable adverse
effect on the use or the performance of the Products.

     

    Category
2 changes include but are not limited to technical changes of the Products that
have no impact to the technical (mechanical, electrical, physical) data or the
regular usage of the Product and do not cause IEC or other certifications
necessary for mounting systems and/or pursuant components retesting
requirements.

     

    


     

    
      	
              ·  

            	
              Change
      of production, manufacturing location if IEC/VDE
  qualified

            


    

     

    
      	
              ·  

            	
              Change
      of suppliers with no effect to the
specification

            


    

     

    
      	
              ·  

            	
              Material
      of component selection with no effect to the
  specification

            


    

     

    
      	
              ·  

            	
              Glass
      manufacturer meeting SunPower quality
  specification

            


    

     

    


     

    Disagreements
over the proper category of a proposed change or product pricing shall be
submitted to a court pursuant Section
17.