EX-10.04 3 p73572exv10w04.htm EX-10.04 exv10w04
 

Exhibit 10.04
[CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY
WITH THE COMMISSION.]
[ENGLISH TRANSLATION]
Amendment No. 4 to Framework
Agreement MD-2-317 dated
April, 11th, 2006
Amendment to the Framework Agreement (the “Amendment”)
entered into by and between
First Solar GmbH, Rheinstrasse 4N, 55116 Mainz (hereinafter referred to as “Company”), represented by the managing director with single signature authority, Mr. Stephan Hansen, (hereinafter referred to as “Company”)
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.
 
1.   Recitals
 
1.1   Company and Buyer entered into a Framework Agreement dated April 11, 2006 (the “Agreement”).
 
1.2   Company and Buyer desire to modify and amend the “Agreement” in No. 2.1, to reflect a particular aspect in the Price /Volume Table.
 
2.   Agreement
 
2.1.   Effective as of the date hereof, the amended and changed Price/Volume Table as outlined in the Appendix shall apply.
 
2.2   Company and Buyer hereby expressively consent to the changes and amendments to the Price/Volume Table.
 
2.3   This “Amendment” is intended to modify and amend the “Agreement.” Except as modified herein, the “Agreement” remains in full force and effect in its original form. In the event of any conflict between the “Agreement” and this “Amendment”, this “Amendment” shall control.

 

 

2.4   Defined terms for particular meanings not otherwise defined in this Amendment shall have the meanings ascribed to them in the “Agreement.”
     
/s/ Stephan Hansen
 
First Solar GmbH
   
Stephan Hansen
    
 
    
/s/ Hans-Martin Rüter/Edmund Stassen
 
Conergy AG
Hans-Martin Rüter/Edmund Stassen
   
 
    
Appendix
    
 
    
Price/Volume Table (Appendix C)
    

 

 

Appendix C
 
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
  FS and Buyer to agree by 1-April-2006
Plus non-binding Fifth (5th) Quarter Target
    
 
    
Rolling binding Four (4) Quarter
  FS and Buyer to agree 5 calendar days
Forecast Plus a non-binding Fifth
  before the start of the next successive First (1st)
Quarter of the binding Four (4)
  Quarter Forecast.
(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
    
 
    
If the Parties do not agree otherwise the new non-binding
  FS and Buyer to agree 5 calendar days
Fifth (5th) Quarter Target shall be determined based
  before the start of the next successive First (1st)
on the equitable discretion of FS.Such equitable discretion shall be
  Quarter of the binding Four (4) Quarter Forecast.
based on the new binding Fourth (4th) Quarter Forecast
  FS and Buyer to agree by December 1
multiplied by a Quarterly Volume Adjustment Factor (x), such factor
  of each annual period on the
(x) being within the range set forth below by defining a value in
  Quarterly Volume Adjustment Factor
between a minimum x-value (xmin) and a maximum
  (x) for the next annual period.
x-value (xmax) and considering the total amount of
    
the Target Kilowatt Volume per calendar year as defined below.
    
 
    
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
  For volume £ [***] weeks
4 for Annual Additional Volume.
  For volume > [***] weeks
 
***   CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION.

 

 

Appendix C
 
Price/Volume Table
 
                         
    Total Annual Amounts
Price / Volume Table C2   2007   2008   2009   2010   2011   2012
 
Module Price per Watt (€)
  [***]   [***]   [***]   [***]   [***]   [***]
 
Target Kilowatt Volume (kW)
  [***]   [***]   [***]   [***]   [***]   [***]
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 REQUESTED. CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE COMMISSION.