Exhibit 10.27
FORBEARANCE AND REPAYMENT
AGREEMENT
This Forbearance and Repayment
Agreement (hereinafter referred to as the “Agreement”)
is entered into as effective as of September 12, 2008, between
and among Suntech America, Inc., and its affiliates
(collectively, “Suntech”), and Open Energy Corporation,
and its affiliates (collectively, “OEC” and, together
with Suntech, collectively, the
“Parties”)
RECITALS :
WHEREAS, Suntech has sold to OEC,
and OEC has purchased from Suntech, certain solar module products
(the “Products”), and OEC has inspected and accepted
delivery of such Products in accordance with the purchase orders
and related documents between the Parties;
WHEREAS, OEC has failed to pay the
purchase price for the Products and such outstanding amounts
currently equal approximately $3,053,530.28 (the “Outstanding
Payment Obligations”);
WHEREAS, subject to the terms and
conditions set forth in this Agreement, Suntech has agreed to
forbear from taking any enforcement action against OEC with respect
to the Outstanding Payment Obligations, provided that OEC fully and
timely makes each of the payments provided for under this Agreement
and otherwise complies with the other terms of this
Agreement;
WHEREAS, it is now the intention of
the Parties to establish a payment plan for the Outstanding Payment
Obligations and to provide for the mutual release of the Parties
upon the conditions more fully set forth below.
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AGREEMENT :
NOW, THEREFORE, in consideration of
the terms, covenants, conditions, and agreements set forth below,
and in satisfaction and settlement of the Outstanding Payment
Obligations, Suntech and OEC agree as follows:
1.
OEC agrees to pay to Suntech the aggregate amount of Three
Million Fifty-Three Thousand Five Hundred Thirty and 28/100 Dollars
($3,053,530.28), plus interest in an amount of twelve percent (12%)
per annum, or the highest amount legally allowable under California
law, if lower than 12% per annum, in accordance with the payment
schedule set forth on Exhibit A attached hereto, which
payments include accrued interest to the each payment
date.
2.
A failure to make full and timely payment by OEC in accordance with
Exhibit A shall be deemed a default under this
Agreement, and such default shall be deemed material in the event
full payment is not made within five (5) business days of the
default (a “Payment Default”). Suntech shall have
no obligation to notify OEC of any Payment Default.
3.
Upon the occurrence of any Payment Default, Suntech, in its sole
discretion, is entitled to file suit in either the state or federal
courts of the State of California for breach of this Agreement, and
to submit to the Court a Complaint and/or a Stipulated Judgment in
substantially the same form as attached hereto as
Exhibit B . The total amount to be entered
for the Stipulated Judgment shall equal $3,053,530.28, plus
applicable interest, less any amounts previously paid by OEC under
the terms of this Agreement. Following the occurrence
of any Payment Default, in addition to the remedies provided
herein, Suntech may pursue any other remedy available to it under
law or in equity.
4.
OEC hereby consents to personal jurisdiction and venue of any court
in the State of California for this purpose.
5.
OEC hereby further consents to entry of the Stipulated Judgment
pursuant to the terms and conditions of this Agreement, as more
fully explained.
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6.
If, upon the occurrence of any Payment Default, Suntech desires to
file suit and to submit for entry and enforcement a Stipulated
Judgment pursuant to the terms of this Agreement, Suntech shall so
notify OEC in writing in accordance with Paragraph 25 below.
At the time of said notification, Suntech shall provide OEC with a
copy of the Complaint and Stipulated Judgment to be filed with the
Court. OEC shall have five (5) business days to review
the Complaint and/or Stipulated Judgment and notify Suntech of any
alleged factual misstatements contained therein, but Suntech is not
required to obtain OEC’s approval as to form of the Complaint
or Stipulated Judgment or accept any comments with respect to which
it in good faith disagrees.
7.
After the review period referenced in Paragraph 6 hereof has
expired, Suntech may file the Complaint and Stipulated Judgment
pursuant to the terms and conditions of this Agreement. The
dollar amount to be entered for the Stipulated Judgment shall be
the result of subtracting the amounts previously paid by OEC under
this Agreement from the total amount due and owing Suntech pursuant
to the terms and conditions hereof.
8.
Effective upon full payment by OEC in accordance with the terms and
conditions of this Agreement, Suntech for and on behalf of itself,
its predecessors, affiliates, partners, successors, assigns,
agents, employees, representatives, and attorneys, do, subject to
the provisions herein, hereby fully and forever remise, release,
and discharge OEC and its predecessors, affiliates, successors,
shareholders, assigns, agents, employees, representatives, and
attorneys, of and from any and all claims, demands, agreements,
contracts, covenants, torts, actions, suits, causes of action,
obligations, controversies, debts, costs, expenses, accounts,
damages, losses, and liabilities of whatever kind or nature, in
law, equity, or otherwise, whether known or unknown, which against
them Suntech had, may have had, or now have, or which any of
Suntech’s predecessors, affiliates, partners, successors,
assigns, agents, employees, representatives, or attorneys,
hereafter can, shall, or may have, for or by reason of any matter,
cause, or thing whatsoever, up to and including the date hereof,
which may relate to or arise out
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of the events which are the subject of this
Agreement and/or the Outstanding Payment Obligations. This
release, however, is not intended to be and shall not be construed
as a release of the rights, obligations, or duties of OEC under
this Agreement or otherwise relating to the Products.
9.
Effective upon and in consideration of Suntech’s execution of
this Agreement, OEC, for and on behalf of itself and its
predecessors, affiliates, successors, shareholders, assigns,
agents, employees, representatives, and attorneys (collectively,
“OEC Parties”), do hereby fully and forever remise,
release, and discharge Suntech, its predecessors, affiliates,
successors, partners, assigns, agents, employees, representatives,
and attorneys, of and from any and all claims, demands, agreements,
contracts, covenants, torts, actions, suits, causes of action,
obligations, controversies, debts, costs, expenses, accounts,
damages, losses, and liabilities of whatever kind or nature, in
law, equity, or otherwise, whether known or unknown, which against
them OEC had, may have had, or now have, or which any of
