Facility Buy Off Agreement

FACILITY BUY OFF AGREEMENT

This Facility Buy Off Agreement (the Agreement) is entered into as of by and between:

Buyer Name:    Seller Name:

Facility Name:    Facility Address:

RECITALS

WHEREAS, Seller has completed construction, commissioning and preliminary testing of the facility identified above and represents that the facility, its systems, equipment, and documentation are substantially complete and ready for formal buy off and transfer to Buyer; and

WHEREAS, Buyer desires to perform formal acceptance tests, confirm compliance with agreed specifications, and effect a final buy off upon satisfactory completion of punchlist items, and Seller is willing to sell off the facility to Buyer on the terms set forth herein; and

WHEREAS, the parties intend that this Agreement shall govern the final acceptance, payment, transfer of possession and related covenants between the parties.

SCOPE OF WORK

Description of work, deliverables and items included in the buy off (systems, documentation, spare parts, training, and other attachments). The parties agree the buy off shall include completion of the items described below and any punchlist identified during acceptance testing.

ACCEPTANCE AND BUY OFF

Acceptance Tests: Buyer shall perform acceptance tests in accordance with the acceptance test procedure attached to this Agreement or as described in the Scope of Work. Final acceptance shall occur when Buyer issues a written Acceptance Certificate confirming successful completion of tests and resolution of agreed punchlist items within the cure period.

Final Acceptance Date (anticipated):

PAYMENT TERMS

Purchase Price: Buyer shall pay Seller the total sum set forth below in exchange for the facility, the deliverables and the transfer of title as provided in this Agreement.

Late Payment: Any undisputed amount not paid when due shall accrue interest at the rate of from the due date until paid. Buyer shall be responsible for reasonable collection costs and attorneys' fees incurred by Seller in collecting overdue amounts.

TERM AND TERMINATION

Term: This Agreement shall commence on the Start Date and continue until Final Acceptance and full payment, unless earlier terminated in accordance with this Agreement.

Start Date:     End Date:

Termination for Cause: Either party may terminate this Agreement for material breach by the other party if such breach remains uncured for the notice period specified above following written notice. Termination shall be without prejudice to the terminating party's right to seek damages or specific performance where appropriate.

CONFIDENTIALITY

Each party shall maintain in confidence all non-public information disclosed by the other party marked or identified as confidential or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Confidential Information shall not include information that is (a) publicly available through no fault of the receiving party; (b) rightfully received from a third party without restriction; or (c) independently developed without use of the disclosing party's Confidential Information. The receiving party may disclose Confidential Information to its representatives on a need-to-know basis provided such representatives are bound by confidentiality obligations at least as protective as those herein.

REPRESENTATIONS AND WARRANTIES

Seller represents and warrants that (i) it has good and marketable title to the facility and the right to transfer possession and title free of liens except as disclosed in writing; (ii) the facility substantially conforms to the specifications set forth in the Scope of Work as of Final Acceptance; and (iii) to Seller's knowledge, no governmental permits required for operation have been revoked prior to transfer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

RISK OF LOSS; TITLE TRANSFER

Risk of loss or damage to the facility shall remain with Seller until Final Acceptance, at which time title and risk of loss shall pass to Buyer, subject to payment in full of the Purchase Price and satisfaction of the conditions to transfer set forth herein.

GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to its conflicts of law principles. The parties submit to the exclusive jurisdiction of the courts located in that state for disputes arising under this Agreement.

ENTIRE AGREEMENT

This Agreement, including the Scope of Work and any attachments or exhibits executed by the parties, constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporaneous understandings, proposals and communications, written or oral. This Agreement may be amended only by a written instrument signed by duly authorized representatives of both parties.

NOTICES

All notices required or permitted under this Agreement shall be in writing and delivered by hand, courier, or certified mail to the addresses set forth above or to such other address as a party may designate in writing.

MISCELLANEOUS

Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will remain in full force and effect. Waiver: No waiver of any breach shall constitute a waiver of any other breach. Assignment: Neither party may assign this Agreement without the prior written consent of the other party, except that Seller may assign to an affiliate or a purchaser of substantially all of Seller's assets with notice to Buyer.

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