Addendum No. 1 to Facility Agreement 27 July 2006
Exhibit 4.12
[English Translation]
Addendum No. 1
to Facility Agreement 27 July 2006
to Facility Agreement 27 July 2006
between
First Solar Manufacturing GmbH,
Frankfurt (Oder)
Frankfurt (Oder)
as “Borrower”
subject to the joint and several liability of
First Solar Holdings GmbH,
Mainz
First Solar Holdings GmbH,
Mainz
and
First Solar GmbH
Mainz
Mainz
and
IKB Deutsche Industriebank AG,
Düsseldorf
Düsseldorf
as “Bank”, “Agent” and “Security Agent”
| 1 | Addendum No. 1 to the Facility Agreement |
Preamble
(1) First Solar Inc., Phoenix, Arizona intends to construct and operate, through First Solar
Manufacturing GmbH, Frankfurt (Oder), a production plant in Frankfurt/Oder for the production of
solar modules on the basis of cadmium-telluride having a capacity of 100 MWp (hereinafter referred
to as the “Project”).
(2) For a pro-rata financing of the “Project”, a syndicate of banks under the lead arrangement of
IKB Deutsche Industriebank AG shall provide First Solar Manufacturing GmbH as the Borrower, subject
to the joint and several liability of First Solar Holdings GmbH, Mainz and First Solar GmbH, Mainz,
with three loans up to a total amount of EUR 102,044,000 according to the Facility Agreement of
July 27, 2006 (hereinafter referred to as the “Facility Agreement").
(3) IKB Deutsche Industriebank AG intends, together with Landesbank Rheinland-Pfalz, Mainz,
Commerzbank AG Filiale Mainz, and Landesbank Sachsen Girozentrale, Leipzig, to sign in each case an
assignment agreement according to Annex 2 of this Agreement, according to which, from the interest
period beginning on October 30, 2006 the indicated banks shall participate in the loans as follows
(hereinafter referred to as “Assignment 1"):
| Term Loan | Revolver | Bridge Loan | ||||||||||||||||||||||
| Amount (EUR) | Quota | Amount (EUR) | Quota | Amount (EUR) | Quota | |||||||||||||||||||
IKB |
14,794,000 | 27.89 | % | 6,750,000 | 25 | % | 5,500,000 | 25 | % | |||||||||||||||
Commerzbank |
12,750,000 | 24.04 | % | 6,750,000 | 25 | % | 5,500,000 | 25 | % | |||||||||||||||
Landesbank
Rheinland-Pfalz |
12,750,000 | 24.04 | % | 6,750,000 | 25 | % | 5,500,000 | 25 | % | |||||||||||||||
Landesbank Sachsen |
12,750,000 | 24.04 | % | 6,750,000 | 25 | % | 5,500,000 | 25 | % | |||||||||||||||
Total |
53,044,000 | 100 | % | 27.000.000 | 100 | % | 22,000,000 | 100 | % | |||||||||||||||
(4) In addition, the contractual parties intend to amend various provisions of the Facility
Agreement.
Given this background information, the parties agree as follows (hereinafter referred to as
“Addendum No. 1"):
1 Definitions
The use of quotation marks for certain terms and their derivatives serve as a reference to the
definitions in the Preamble of ▇▇▇▇▇▇▇▇ ▇▇.▇ and Number 2.1 of this Facility Agreement. If the same
term is used without quotations marks, the general meaning resulting from the context applies.
| 2 | Addendum No. 1 to the Facility Agreement |
2 Consent
The “Borrower” and “FS GmbH” and “FS Holdings” herewith gives their consent to “Assignment 1”.
3 Changes to the “Facility Agreement”
3.1
The “Facility Agreement” is amended as follows. The change indicated under Number 3.1.13 effected
subject to the condition that the “Agent” has informed the “Borrower” pursuant to Number 27.5 of
the “Facility Agreement” concerning the validity of “Assignment 1”.
3.1.1
In Number 1.1, the definition of the “contractual documentation” is deleted and replaced by the
following definition:
“ “Contractual Documentation”: shall consist of this Facility Agreement, the “Fee Letter”,
and the “Security Agreement”, each of them including any addenda, changes, and
complementation that the pertinent parties to the Facility Agreement and the security
agreements have presently agreed upon or will agree upon in the future.”
3.1.2
In Number 7.1, the following sentence shall be added at the end:
“Two “Banking Days” before the beginning of an interest period, the “Agent” shall inform the
“Borrower” and the banks of the interest rate for this interest period.”
3.1.3
In Number 11.2, at the end of Paragraph (a) the word “and” is deleted and the word “and” is
inserted at the end of Paragraph (b) after the semicolon.
3.1.4
In Number 13.2, Paragraph 1 is deleted and replaced by the following Paragraph:
“The “Investment Account” shall be exclusively credited with payments under the “Investment
Supports”. “Borrower 1” undertakes to instruct the appropriate tax office to make payments
for the “Project” under the “Investment Supports” exclusively to the “Investment Account” or
– if these payments cannot be effected to the “Investment Account” for technical reasons – to
make these payments exclusively to the “Project Account”. The “Borrower” undertakes to remit
payments for the “Project” under the “Investment Supports” to the “Investment Account” within
5 banking days after their receipt in the “Project Account”.”
| 3 | Addendum No. 1 to the Facility Agreement |
3.1.5
Number 15.5 is deleted and replaced by the following Number:
“15.5
Upon request, each of the “Banks” shall issue and present to the “Borrower” a confirmation
letter that essentially conforms to the circular of the German Federal ministry of Finance of
October 20, 2005 (IV B7 – S2742a – 43/05) to § 8a of KStG.”
3.1.6
In Number 19.1.11, the words “and unsecured” shall be deleted.
3.1.7
Number 19.1.15 shall be deleted without replacement. 1
3.1.8
In Number 21.4, the last Sentence shall be deleted and replaced by the following sentence:
“The provisions in Number 21 related to the “Agent” apply to the “securities agent”
accordingly.”
3.1.9
In Number 21.10, Paragraph (d) shall be deleted and replaced by the following Paragraph:
"(d) to examine the enforceability or the value of the “Securities”, or”.
3.1.10
In Number 22.1 the following sentence:
“The provisions in Number 22 related to the “Agent” apply to the “securities agent”
accordingly.”
In Number 27.4, the following sentence shall be inserted after the 1. sentence:
“The consent of the “Borrower” with respect to the “assignment” is not required if “a
termination cause is imminent” or a termination cause arose pursuant to Number 20.1 of this
Facility Agreement.”
| 1 | ist bereits in Ziffer 19.1.1 Absatz 2 geregelt. |
| 4 | Addendum No. 1 to the Facility Agreement |
3.1.11
In Number 34, the term “Securities Trustee” shall be deleted and replaced with “Securities Agent”,
and the following Paragraph shall be inserted before the text “to the “Agent”, the “Securities
agent” and/or the “Banks”:
“To “FS GmbH” and/or “FS Holdings”:
First Solar Holdings GmbH
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▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Tel.: ▇▇▇▇▇-▇▇▇▇▇▇▇
Fax: ▇▇▇▇▇-▇▇▇▇▇▇
Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇”
Tel.: ▇▇▇▇▇-▇▇▇▇▇▇▇
Fax: ▇▇▇▇▇-▇▇▇▇▇▇
Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇”
3.1.12
Annex 1 (Quotas of the Banks) shall be deleted and replaced with Annex 1 to “Addendum No. 1”.
3.1.13
In Annex 13 (Securities), the penultimate Paragraph shall be deleted and replaced with the
following Paragraph:
“The securities under Points 2 to 10 and to Points 14 to 21 provide a priority guarantee for
the “Redemption Loan” and – with lesser priority – first the “Working Capital Loan” and
subsequently the “Bridge Loan”; the securities under Points 11, 12, and 13 provide a priority
guarantee for the “Working Capital Loan”, with lesser priority then the “Redemption Loan” and
subsequently the “Bridge Loan”. Departing from this provision, the pledge of the “Investment
Account” and the pledge of the “Project Account” to a partial amount that arises from the
credit note of “Investment supports” pursuant to Number 13.2, Paragraph 1 and which has not
been remitted within 5 banking days after receipt in the “Investment account”, provide a
guarantee for the “Bridge-over loan”.”
3.2
All other provisions of the “Facility Agreement” shall remain unaffected by Addendum No. 1”.
4 Enforcement
4.1
“Addendum No. 1” shall come into force following a written confirmation issued by “PwC” to the
“Agent” that the “Guarantors” have taken cognisance of “Addendum No.1” with approval.
| 5 | Addendum No. 1 to the Facility Agreement |
The “Agent” shall inform the “Borrower” and the “Banks” in writing of its receipt of this
confirmation.
4.2
Upon having come into force, “Addendum No. 1” shall be an integral part of the “Contractual
documentation”.
5 Others
Number 32 (Exercise of rights, Safeguarding Clause) and Number 35 (Jurisdiction, applicable law) of
the “Facility Agreement” apply to “Addendum ▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇▇”.
| ▇ | ▇▇▇▇▇▇▇▇ ▇▇. ▇ to the Facility Agreement |
Düsseldorf, on 12.09.2006
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Düsseldorf, on 12.09.2006
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Düsseldorf, on 12.09.2006
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Düsseldorf, on 12.09.2006
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| 7 | Addendum No. 1 to the Facility Agreement |
Annex 1
The “Bank’s” quotas
1. Until the expiry of the interest period ending on October 30, 2006
| “Redemption loan” | “Revolving loan” | “Bridge-over loan” | Total | |||||||||||||||||||||||||||||
| Amount (EUR) | Quota | Amount (EUR) | Quota | Amount (EUR) | Quota | Amount (EUR) | Quota | |||||||||||||||||||||||||
IKB Deutsche Industriebank AG |
53,044,000 | 100 | % | 27,000,000 | 100 | % | 22,000,000 | 100 | % | 102,044,000 | 100 | % | ||||||||||||||||||||
2. At the beginning of the interest period starting on October 30, 2006
| “Redemption loan” | “Revolving loan” | “Bridge-over loan” | Total | |||||||||||||||||||||||||||||
| Amount (EUR) | Quote | Amount (EUR) | Quote | Amount (EUR) | Quote | Amount (EUR) | Quote | |||||||||||||||||||||||||
IKB Deutsche Industriebank AG |
14,794,000 | 27.89 | % | 6,750,000 | 25 | % | 5,500,000 | 25 | % | 27,044,000 | 26.5 | % | ||||||||||||||||||||
Commerzbank AG Filiale Mainz |
12,750,000 | 24.04 | % | 6,750,000 | 25 | % | 5,500,000 | 25 | % | 25,000,000 | 24.5 | % | ||||||||||||||||||||
Landesbank Rheinland-Pfalz |
12,750,000 | 24.04 | % | 6,750,000 | 25 | % | 5,500,000 | 25 | % | 25,000,000 | 24.5 | % | ||||||||||||||||||||
Landesbank Sachsen
Girozentrale |
12,750,000 | 24.04 | % | 6,750,000 | 25 | % | 5,500,000 | 25 | % | 25,000,000 | 24.5 | % | ||||||||||||||||||||
Total |
53,044,000 | 100 | % | 27,000,000 | 100 | % | 22,000,000 | 100 | % | 102,044,000 | 100 | % | ||||||||||||||||||||
| 8 | Addendum No. 1 to the Facility Agreement |