Exhibit 10.24
[CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL
PORTIONS OF THIS
DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN
SEPARATELY FILED WITH
THE COMMISSION]
April 17, 2004
Supply Agreement
for the Supply of
Modules
between
SunPower Corporation
430 Indio Way
Sunnyvale, CA 94085
USA
hereinafter called
“SunPower”
and
Conergy AG
Anckelmannsplatz 1
20537 Hamburg
Germany
hereinafter called
“Conergy”
(SunPower and Conergy are hereinafter
collectively referred to as the “Parties” and
individually as a “Party”)
PREAMBLE
SunPower established under the laws of the
United States is a leading manufacturer for ultra-high-efficiency
silicon cells. SunPower is a subsidiary of Cypress Semiconductor
Corp., USA (NYSE: CY). SunPower has recently started up production
of high-efficiency solar cells, intends to further increase its
production capacity and has started to secure production capacity
for solar modules.
Conergy is a company established under the laws
of Germany with the reg. no. HRB 77717 at Amtsgericht Hamburg,
Germany. Conergy is one of the leading system integrators in Europe
with major activities in the German market. With its subsidiaries
SunTechnics, AET and voltwerk as well as with its own brand,
Conergy serves the market through distinct and well positioned
brands in different sales channels.
The Parties intend to enter into cooperation to
their mutual commercial benefit regarding the supply and
distribution of high-efficiency solar modules, where SunPower is a
supplier of solar modules to Conergy and Conergy shall purchase
solar modules from SunPower.
The Parties intend to cooperate within the area
of module development. Such cooperation shall have the goal of
reducing the cost of PV power delivered to the consumer, focusing
on PV cost related to the solar module, BOS components (such as
mounting structures etc.) and energy output. It is the
Parties’ intention that such cooperation shall be exclusive
for the European market.
It is the Parties’ intention to extend the
cooperation beyond the terms of this Agreement.
The Parties agree as follows:
QUANTITY AND PRODUCT
SPECIFICATION
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1.
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Conergy shall
order and SunPower shall deliver in the years 200*** and 200***
solar modules with a total targeted nominal output of *** MWp
according to the following terms and conditions:
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a.
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In the year
200***: *** MWp (*** Megawatts peak) of the module type(s) as set
forth in “Appendix A” (hereinafter called the
“200*** volume”).
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b.
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In the year
200***: *** MWp (*** Megawatts peak) of the module type(s) as set
forth in “Appendix A”, and / or for module types as
mutually agreed between the parties at a later date (hereinafter
called the “200*** volume”).
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In addition, Conergy has the option
to purchase up to an additional *** MWp of the same module type(s)
as set forth in “Appendix A”, and / or for module types
as mutually agreed between the parties at a later date, for
delivery in 200*** (hereinafter called the “200***
Option”). Conergy is entitled to exercise the 200*** option
fully or in part by written notification to SunPower before January
31, 200*** (hereinafter called the “200*** closing
date”).
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c.
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SunPower
provides Conergy and its subsidiaries the exclusive right to market
and sell all products using the A-300 solar cell within the
European Union through December 31, 200***, with the following
exceptions:
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i.
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*** with white
back-sheet and rated output *** for off-grid markets
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ii.
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*** i.e.
defined as following a) glass-glass modules b) *** with rated power
*** c) *** designed for curtain wall installations only
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iii.
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Opto-electronics, consumer products and
***.
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iv.
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Modules for use
in ***
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For point i ii, and iv parties agree
to discuss exclusivity for the German and/or European market based
on business performance at a later time. For the purposes of this
agreement, the European Union is defined as countries who are full
members of the EU as of March 31, 2004.
SunPower agrees to implement
reasonable and customary systems to track and identify product sold
outside of the EU and transshipped to customers within the EU by
3 rd parties (“grey market
modules”), and to use its best efforts to resolve grey market
module issues as and when they arise.
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d.
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Laminates
(frameless modules) according to specifications in “Appendix
A” will be available with a lead time specified by SunPower
and with a price reduction as mutually agreed upon. If laminates
are produced by SunPower and delivered to Conergy, the volume of
framed modules shall be adjusted accordingly.
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2.
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All modules
delivered under section 1 above will comply with the following
minimum specification:
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(i)
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Usage of the
A-300 125 x 125 mm-cell as described in Appendix B with a cell
efficiency > 20% under STC ( S tandard T est
C onditions: 1000 W/m 2 , 1.5 Am, 25° C cell
temperature);
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(ii)
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All modules
delivered will carry the label “***”;
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*** CONFIDENTIAL MATERIAL REDACTED
AND SEPARATELY FILED WITH THE COMMISSION.
Page 2 of 15
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Supply
Agreement between SunPower and Conergy
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April 17, 2004
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(iii)
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Tolerance of
actual power of -0 % (minimum factory test power of each
module ³
nominal rated module output power)
under Standard Test Conditions (1000 W/m 2 , 1.5 Am, 25° C cell
temperature) for all modules delivered;
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(iv)
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Frame
configuration mutually accepted by Conergy and SunPower in
writing;
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(v)
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Using solar
glass with 4 mm thickness;
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(vi)
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Blue and red
solar Radox wire of 4 mm 2 cross sectional area and a minimum
length according to Conergy’s specification each using
MC-III-connectors
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(vii)
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Junction box
according to IP 65 standards with height of box less than frame
height;
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(viii)
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Maximum rated
system voltage of 1,000 volts and Safety-Class II certified by
TÜV Rheinland for all modules delivered;
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(ix)
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A mutually
agreed set of cosmetic and other manufacturing defect criteria,
(sample format shown in “Appendix C”) which can be
modified if both parties agree upon on the basis of a production
audit in a later time.
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(x)
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A detailed list
stating all components and their specifications will be provided by
SunPower before start of deliveries;
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(xi)
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Individual
output data for all modules, showing Impp, Umpp, Isc, Voc and Pmpp,
will be compiled in an Excel file and sent by email which will
arrive latest at the time of the modules’ arrival at either
Conergy’s warehouse or Conergy’s client. During
production audit at SunPower’s module factory the parties
will discuss the possibilities to have the individual measurement
reports in a removeable cover on the outside of each
palette.
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(xii)
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Branding,
labeling and packaging of the modules and the carton as outlined in
“Appendix G” will be mutually agreed upon by the
parties at no additional costs other than those outlined in section
10 of this Agreement.
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3.
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All modules
delivered under this Agreement will be tested and certified under
IEC 61215 and “Safety class II” of German TÜV
Rheinland before start of deliveries. An extension of the
certificates for each module chosen by Conergy will be provided by
SunPower.
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4.
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SunPower grants
(i) an output warranty of 25 years at 80 % and 12 years at 90 % of
the rated module power and (ii) a product warranty (freedom of
defects in materials and workmanship) of 10 years as set forth in
“Appendix D”, SunPower’s standard warranty
statement.
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5.
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The Parties
realize that product quality is regarded as a critical factor for
success in the market. The Parties thus agree to focus on this
issue in order to deliver the right product to the end
customer:
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a.
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Before the
start of deliveries, SunPower will provide Conergy with a copy of
its calibration and module output test QA procedure. This
calibration procedure shall be based on the measurements of
Fraunhofer ISE, Freiburg, Germany, or on another mutually agreed
primary international test laboratory.
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b.
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SunPower will
conduct a round robin test with standard modules as described in
Appendix A including Fraunhofer ISE, Freiburg, German TÜV and
other international test laboratories. The results of this round
robin test will be shared with Conergy.
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c.
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Quality check
criteria and procedures will be developed jointly between the
Parties, and implemented during production start-up in May/June
200***. SunPower shall produce and ship modules only according to
agreed criteria. Conergy shall without unnecessary delay inform
SunPower of any issues related to quality and transportation
resulting in non-conformity of agreed specification and quality
check criteria.
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*** CONFIDENTIAL MATERIAL REDACTED
AND SEPARATELY FILED WITH THE COMMISSION.
Page 3 of 15
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Supply
Agreement between SunPower and Conergy
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April 17, 2004
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TERMS OF DELIVERY AND SHIPMENTS
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6.
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Shipments in
200*** shall be made as from July ***, 200*** until December ***,
200*** in accordance with section 1 a.
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Shipments in 200*** shall be made
between January ***, 200*** and December ***, 200*** in accordance
with section 1 b.
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7.
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Monthly
forecast: On the 15 th of each month, a three month
rolling-forecast shall be provided by Conergy to SunPower to secure
the production in the said period. All quantities for the month x+1
(e.g. April if the forecast has been provided on March 1) are
regarded as fixed quantities and hereinafter referred to as a firm
delivery commitment if delivery of such volume is confirmed in
writing by SunPower.
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8.
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Basis of any
delivery is a written call-purchase-order of Conergy sent to
SunPower by fax. SunPower shall confirm the purchase order by a
written fixed order acknowledgement, including volumes to be
delivered and delivery dates, sent by fax (+49 6897 8106 ***) to
Conergy within 5 working days after the receipt of the purchase
order.
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PRICES, ADJUSTMENTS AND FINANCIAL
CONDITIONS
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9.
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The price for
modules supplied under this contract shall be *** €/Wp (***
Euros per watt peak) during 200*** and *** €/Wp (*** Euros
per watt peak) for the 200*** volume.
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10.
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For the 200***
Option the parties will discuss the price before the 200*** closing
date (as defined under point 1 of this agreement).
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11.
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All prices and
deliveries under this Agreement will be made FCA SunPower factory
located in *** with a minimum individual shipment volume of ***
kWp.
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12.
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Should at any
time during the validity of this contract any competing standard
module with equivalent technical specifications (e.g. > 180 watt
rated power, IEC 61215, Safety class II certification, etc.) and
higher gross module efficiency become commercially available on the
European market, Conergy may request that SunPower reduce module
price by *** €/Wp. If SunPower agrees, all other conditions
of this agreement shall continue. If SunPower refuses, Conergy has
the option to cancel the agreement with 180 day notice, but shall
honor firm delivery commitments then in place as described in
sections 8 and 9.
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13.
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Conergy shall
pay all invoices at the latest *** after the date of shipment from
SunPower factory located in Germany. If payment is received by
SunPower’s bank within *** after the date of shipment a cash
rebate of *** % of the invoice total may be taken and deducted from
outstanding payments by Conergy.
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PENALTIES
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14.
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In the event of
delayed shipment of more than *** calendar days beyond the shipment
date confirmed by SunPower, SunPower shall pay to Conergy a penalty
as follows:
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a.
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If the delay
was communicated to Conergy at least *** prior to the confirmed
shipment date, a penalty of *** Euro/Wp/*** as from shipment should
have taken place until shipment takes place. The penalty on one
purchase order shall in any event not exceed *** Euro/Wp
(equivalent to *** penalty).
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*** CONFIDENTIAL MATERIAL REDACTED
AND SEPARATELY FILED WITH THE COMMISSION.
Page 4 of 15
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Supply
Agreement between SunPower and Conergy
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April 17, 2004
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b.
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If the delay is
communicated less than *** but more than *** before the confirmed
shipment date, the penalty shall increase to *** Euro/Wp/***. The
maximum penalty shall increase correspondingly to ***
Euro/Wp.
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c.
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If the delay is
communicated less than *** before the confirmed shipment date, the
penalty shall increase to *** Euro/Wp/***. The maximum penalty
shall increase correspondingly to *** Euro/Wp.
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When determining penalties as
outlined in c above, a grace period of *** shall be included to
allow for delays that are proven to be caused by events and actions
outside the control of SunPower (e.g. delay of trucks
etc.).
Delivery of modules not complying
with the mutually agreed specifications in section 2 and Appendix A
shall be regarded as delayed delivery as defined in section
16a.
However if such non-compliance
relates to non-critical defects Conergy can decide to be
compensated by obtaining reduced prices for these modules. In this
case the penalty will not apply in addition.
Any claims and payments due in
subsection a-c above shall be properly documented by Conergy and
may, once agreed upon between the Parties, be directly deducted by
Conergy from any invoiced amount due.
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15.
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In the event of
delayed payment by more than *** days after the date at which
payment is due, Conergy shall pay SunPower a late penalty as
follows:
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a.
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If Conergy pays
an invoice *** after receipt of merchandise, an interest-rate of
*** % for the *** will be charged separately by
SunPower.
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b.
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If Conergy pays
an invoice *** after receipt of merchandise, an interest-rate of
*** % for *** will be charged separately by SunPower.
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c.
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If payment is
not received by SunPower’s bank within *** after the date of
shipment, SunPower shall have the right to stop all further
deliveries until payment has been made or the parties have agreed
to an alternative resolution.
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16.
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If the product
volume delivered to Conergy in 200*** under a mutually agreed
delivery schedule as defined in sections 7 and 8 is less than ***
MWp Conergy will receive at the end of 200*** a price rebate of ***
% for all volumes purchased to compensate its marketing
efforts.
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17.
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If (i) the
original IEC and Safety class certificates as defined in point 3
are not issued before August 31, 200*** or/and (ii) the related OEM
certificates are not issued before September 30, 200***, Conergy is
entitled to reduce all invoices received under this Agreement by
*** % as a security-discount for all delivered modules by direct
reduction of amounts due. This security-discount will be paid back
without unreasonable delay at the time the documents are
issued.
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CANCELLATION
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18.
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If the
documents as defined in point 3 are not supplied within a period of
*** months after the start of delivery Conergy (i) is allowed to
cancel the contract, (ii) can make all delivered modules available
to the supplier at their present location, and (iii) will be
credited by SunPower for the original purchase price.
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*** CONFIDENTIAL MATERIAL REDACTED
AND SEPARATELY FILED WITH THE COMMISSION.
Page 5 of 15
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Supply
Agreement between SunPower and Conergy
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April 17, 2004
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19.
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Before the
200*** closing date the parties agree to discuss prices and volumes
for the 200*** option as defined under points 1 and 10 in order to
secure the exclusivity as stated under point 1c. If (i) the 200***
option agreed by Conergy before the 200*** closing date is below
*** MWp and (ii) the parties cannot agree to maintain the
exclusivity of this contract on the basis of a reduced total volume
for 200***, then SunPower is entitled to canc
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