AGREEMENT CONCERNING RESERVATION OF MANUFACTURING SLOT
AGREEMENT CONCERNING RESERVATION OF MANUFACTURING SLOT
RECITALS
A.Buyer and Seller are entering into negotiations for Buyer to purchase from Seller one Single Junction Thin Film Solar Production Line consisting of various equipment manufactured and/or supplied by Seller,including (i) an AKT-60K PECVD (the "PECVD Tool "),(ii) an ATON 260 Black Contact PVD and (iii) various MES software (the "Production Line").
B.Seller has informed Buyer that delivery to Buyer of the PECVD Tool within the June,2008 time frame that Buyer has requested is predicated on the allocation by Seller of manufacturing slots for the PECVD Tool.
C.Since manufacturing slots for the PECVD Tool are generally not allocated by Seller until a definitive sales contract has been executed,Buyer has requested,and Seller has agreed,that Seller reserve a manufacturing slot for Buyer in exchange for payment by Buyer to Seller of the sum of US One Million Dollars ($1,000,000.00) (the "Reservation Consideration").
Accordingly,the parties agree as follows:
1.RESERVATION OF MANUFACTURING SLOT
1.1 Grant of Reservation.Seller hereby agrees to reserve one of its June,2008 manufacturing slots for a PECVD Tool for the benefit of Buyer (the "Reservation").
1.2 Term of Reservation.The term of the Reservation (the "Reservation Term") shall commence on the Effective Date,and shall expire at 5:00 p.m.California time on October 28,2007,unless on or prior to the end of the Reservation Term either (i) Buyer and Seller shall have entered into a Contract for the Sale of Equipment and the Establish of a Solar Production Line (a "Solar Production Line Contract") in form and substance satisfactory to Seller in its sole discretion,or (ii) Seller,upon Buyer's request,shall unilaterally agree to extend the Reservation Term in order to give Buyer and Seller more time to negotiate the final terms of the Solar Production Line Contract; provided,however,that Buyer shall only consider extending the Reservation Term if Buyer is negotiating in good faith and Seller has reason to believe that Buyer and Seller will be able to ultimately reach agreement as to the final form of the Solar Production Line Contract on or before November 15,2007.
1.3 Reservation Consideration.On the execution and delivery of this Agreement,Buyer shall pay to Seller,in immediately available funds,the Reservation Consideration as consideration for the Reservation.The Reservation Consideration is and shall be deemed consideration solely for the granting of Reservation by Seller.On expiration of the Reservation Term,Seller shall retain all Reservation Consideration.If the parties enter into a Solar Production Line Contract as provided in Section 1.2 above,the Reservation Consideration shall be credited against the purchase price (as to be defined in the Production Line Contract) of the Production Line.
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