Common use of Escrow Funds Clause in Contracts

Escrow Funds. 1.1.1. The Escrow Funds, initially in an amount equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars ($109,300,000) (the “Escrow Funds”), has been deposited with and shall be held by the Escrow Agent in a separate account located in the United States (the “Escrow Account”) for the benefit of HOKU and SANYO, as provided in this Agreement. The Escrow Agent shall not make any payment or distribution from the Escrow Account except as, and in the manner, expressly provided in this Agreement; provided, however, that the Escrow Funds shall remain the property of SANYO until such time as such funds are required under the terms of this Agreement to be delivered to HOKU, at which time the portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU. 1.1.2. Concurrently with the execution of the Escrow Agreement, SANYO delivered the Escrow Funds to the Escrow Agent pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement, the Escrow Agent shall be in sole possession of the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes of perfecting a security interest therein. Accordingly, the Parties agree that no person or entity shall have any right to have or to hold any of the Escrow Funds as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Account.

Escrow Funds. 1.1.1. The Escrow Funds(a) Concurrent with, initially in an amount or prior to, the execution hereof, Buyer has deposited a lump sum (the “Original Deposit”) equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars ten million dollars ($109,300,00010,000,000) (such amount, including any interest or earnings accrued thereon, the “Escrow Funds”) with U.S. Bank, N.A. (the “Escrow Agent”) pursuant to an escrow agreement dated as of the date hereof and attached hereto as Exhibit A (the “Escrow Agreement”), has been deposited with which was executed and delivered by Seller, Buyer and the Escrow Agent. The Escrow Funds shall be (i) held by the Escrow Agent in escrow as a separate account located deposit paid by Buyer and credited against the Purchase Price at the Closing, and (ii) promptly released by the Escrow Agent to Buyer or Seller, as applicable, in each case, pursuant to the terms of, and at the times prescribed by, this Section 2.2, Section 8.4 and Article IX hereof and the Escrow Agreement. At Closing, the Escrow Funds will be applied as set forth in Section 2.2(d) below. (b) Subject to Section 2.2(c), on or prior to September 16, 2009 (such date, the “Financing Deadline”), Buyer shall (i) obtain the Financing (as defined in Section 6.15 hereof), which Financing shall be in the United States amount necessary to consummate the transactions contemplated herein, including payment in full of the Purchase Price, and (ii) provide confirmation that it has obtained the Financing to Seller by delivery of a written certification signed by an executive officer of Buyer, which shall include details and evidence of the Financing as are reasonably satisfactory to Seller. (c) Subject to Section 2.2(b), in the event that the Financing has not been obtained by Buyer on or prior to the Financing Deadline, and each of (1) the conditions set forth in Sections 7.2(a) and 7.2(b) are satisfied at the Financing Deadline, and (2) the Vessel is Fully Operational at the Financing Deadline, then Buyer and PGP, jointly and severally, shall, on or prior to the second Business Day following the Financing Deadline, deposit with the Escrow Agent an additional five million dollars ($5,000,000) (the “Additional Deposit,” which shall, together with any interest or earnings accrued thereon, be considered “Escrow Account”) Funds” for the benefit all purposes of HOKU and SANYO, as provided in this Agreement. The Escrow Agent shall not make any payment or distribution from the Escrow Account except as, and in the manner, expressly provided in this Agreement); provided, however, that if the condition set forth in clause (1) of this Section 2.2(c) is satisfied at the Financing Deadline, but the condition set forth in clause (2) of this Section 2.2(c) is not satisfied at the Financing Deadline, and subsequently, the condition set forth in clause (1) of this Section 2.2(c) remains satisfied and the condition set forth in clause (2) of this Section 2.2(c) becomes satisfied, then the Additional Deposit shall be made on or prior to the fifth Business Day following the first date both such conditions are satisfied. If the Additional Deposit is not timely made, if applicable, as provided in this Section 2.2, Seller may terminate this Agreement, subject to the provisions of Article VIII, and, following such termination, Seller may (i) retain the Original Deposit and (ii) bring suit against Buyer (or PGP under Section 11.16) for the amount of the Additional Deposit. (d) At the Closing, a portion of the Escrow Funds then on deposit equal to (i) five million dollars ($5,000,000) shall remain the property of SANYO until such time as such funds are required be retained under the Escrow Agreement and will be available to satisfy any indemnification claims of Buyer under Article IX hereof, as more fully set forth in, and pursuant to, the terms of this Agreement to be delivered to HOKU, at which time the portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU. 1.1.2. Concurrently with the execution of the Escrow Agreement, SANYO delivered the Escrow Funds to the Escrow Agent pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed an amount that the parties reasonably agree (regardless of the amount reserved for any Seller Pre-Closing Obligations by Seller or the Company) is sufficient to cover all Seller Pre-Closing Obligations known at the time of the Closing shall be retained under the Escrow Agreement and will be available to Seller or Buyer after the Closing to satisfy (in whole or in part) or reimburse either of them for any such Seller Pre-Closing Obligations, as more fully set forth in, and pursuant to this Agreementto, the Escrow Agent shall be in sole possession terms of the Escrow Funds Agreement (both of (i) and agrees not to acknowledge requests that it act as(ii) together, and nothing contained in this Agreement any interest or earnings accrued thereon, shall be deemed to constitute the “Escrow Agent as, custodian Funds” on and after the Closing for any party for all purposes of perfecting a security interest thereinthis Agreement). AccordinglyIf, during the sixty (60) day period following the Closing Date, the Parties parties reasonably agree that no person or entity shall have any right an amount previously assigned to have or a Seller Pre-Closing Obligation pursuant to hold any this Section 2.2(c) should be amended, then the amount of the Escrow Funds as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to aggregate Seller Pre-Closing Obligations retained under the Escrow AccountAgreement pursuant to this Section 2.2(c) shall be amended to reflect such agreement.

Escrow Funds. 1.1.1. The Parties shall act in accordance with, and the Escrow Agent shall hold and release the Escrow Funds as provided in, this Section 4(a) as follows: (i) Upon receipt of a Joint Release Instruction (which Landscape and the Company Partners’ Representative acknowledge and agree shall be provided by Landscape and the Company Partners’ Representative in accordance with Section 13.4(d), Section 13.5 or 13.6 of the Merger Agreement, as applicable) with respect to the Escrow Funds, initially the Escrow Agent shall promptly, but in an amount equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars any event within two ($109,300,0002) Business Days after receipt of a Joint Release Instruction, disburse all or part of the Escrow Funds in accordance with such Joint Release Instruction. (the “Escrow Funds”), has been deposited with and shall be held ii) Upon receipt by the Escrow Agent in of a separate account located copy of Final Determination from any Party, the Escrow Agent shall on the fifth (5th) Business Day following receipt of such determination, disburse as directed, part or all, as the case may be, of the Escrow Funds (but only to the extent funds are available in the United States (the “Escrow Account”Funds) for the benefit of HOKU and SANYO, as in accordance with such Final Determination; provided that notwithstanding anything in this Section 4(a)(ii) to the contrary, Landscape and the Company Partners’ Representative acknowledge and agree that this Section 4(a)(ii) shall not relieve Landscape or the Company Partners’ Representative of any of their respective rights or obligations under the Merger Agreement, including Section 13.3(c)(iii) and Section 13.4 thereof. The Escrow Agent shall not make will act on such Final Determination without further inquiry. (iii) All payments of any payment or distribution from the Escrow Account except as, and in the manner, expressly provided in this Agreement; provided, however, that part of the Escrow Funds shall remain be made by wire transfer of immediately available funds or check as set forth in the property Joint Release Instruction or Final Determination, as applicable. (iv) Any instructions setting forth, claiming, containing, objecting to, or in any way related to the transfer or distribution of SANYO until such time as such any funds are required on deposit in any Escrow Account under the terms of this Agreement to must be delivered to HOKUin writing, at which time executed by the portion of such Escrow Funds required to be delivered to HOKU shall become appropriate Party or Parties as evidenced by the property of HOKU. 1.1.2. Concurrently with the execution signatures of the Escrow Agreementperson or persons set forth on Exhibit ▇-▇, SANYO ▇▇▇▇▇▇▇ ▇-▇ and Exhibit A-3 and delivered the Escrow Funds to the Escrow Agent pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting either (i) by confirmed facsimile only at the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus fax number set forth in Section 11 below or (ii) all amounts earned or realized attached to an e-mail delivered on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant a Business Day to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided the e-mail address set forth in Section 1.1.1 11 below. In the event a Joint Release Instruction or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of Final Determination is delivered to the Escrow Funds. ThereforeAgent, (i) none of the Parties shall have the ability to pledgewhether in writing, convey, hypothecate by facsimile or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreementotherwise, the Escrow Agent shall be is authorized to seek confirmation of such instruction by telephone call back to the person or persons designated in sole possession of Exhibits A-1 and/or A-2 annexed hereto (the Escrow Funds and agrees not to acknowledge requests that it act as“Call Back Authorized Individuals”), and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes may rely upon the confirmations of perfecting anyone purporting to be a security interest thereinCall Back Authorized Individual. AccordinglyTo assure accuracy of the instructions it receives, the Parties agree that no person or entity shall have any right to have or to hold any of Escrow Agent may record such call backs. If the Escrow Funds as collateral Agent is unable to verify the instructions, or is not satisfied with the verification it receives, it will not execute the instruction until all such issues have been resolved. The persons and telephone numbers for any obligation call backs may be changed only in writing, executed by an authorized signer of applicable Party set forth on Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ or Exhibit A-3 actually received and acknowledged by the Escrow Agent. Notwithstanding the foregoing, no changes or additions shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating made to the Escrow Accountpersons set forth on Exhibit A-1 without the written consent of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇ San ▇▇▇▇▇▇.

Escrow Funds. 1.1.1(i) Pursuant to an escrow agreement to be entered into on the Closing Date by and among Green Plains, the Sellers’ Representative on behalf of the Global Ethanol Members and U.S. Bank National Association (or another financial institution proposed by either Green Plains or the Sellers’ Representative and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit G with such changes as the Seller’s Representative and Green Plains may agree to in writing (the “Escrow Agreement”), Green Plains and the Sellers’ Representative shall appoint the Escrow Agent to hold and disburse the Escrow Funds as provided below. The At the Closing, Green Plains shall deposit with the Escrow Funds, initially in an amount Agent: (A) a portion of the Merger Consideration equal to One Hundred Nine Three Million Three Hundred Thousand U.S. Dollars ($109,300,0003,000,000) (together with any interest or other earnings thereon, the “Adjustment Escrow”), (B) a portion of the Merger Consideration equal to Five Million Dollars ($5,000,000) (the “Indemnity Escrow”), and (C) a portion of the Merger Consideration equal to Five Hundred Thousand Dollars ($500,000) (together with any interest or other earnings thereon, the “Member Fund” and, together with the Adjustment Escrow and Indemnity Escrow, the “Escrow Funds”), has been deposited with in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held by the Escrow Agent in segregated accounts to serve as the sources of payment of certain adjustments to the Merger Consideration required by Section 1.5(d), and indemnification obligations of the Global Ethanol Members set forth in Article VI. The Member Fund shall be held by the Escrow Agent in a separate segregated account located in (over which Green Plains shall have no authority whatsoever, by way of release authority, investment authority or otherwise, but instead will be distributed at the United States (sole direction of the “Escrow Account”Sellers Representative) for to serve as the benefit sources of HOKU payment of costs and SANYO, as provided in this Agreementexpenses pursuant to Section 1.7(d). The Escrow Agent Funds contributed on behalf of each Global Ethanol Member shall not make any payment or distribution from be in proportion to their Global Ethanol Interests, as set forth in Exhibit D. (ii) The Adjustment Escrow shall be disbursed by the Escrow Account except asAgent to Green Plains or the Global Ethanol Members, and in as applicable, under Section 1.5(d). From time to time prior to the mannerRelease Date, expressly provided in this Agreementthe Indemnity Escrow shall be disbursed by the Escrow Agent to Green Plains to the extent required to pay an indemnification obligation of the Global Ethanol Members under Article VI; provided, however, that such disbursements shall be made by Escrow Agent only upon receipt of (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) in the case of a disbursement requested with respect to an indemnification claim under Article VI, a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement. On the Release Date, the entire balance of the Indemnity Escrow (less any amounts thereof that are subject to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Global Ethanol Members, pro rata, as set forth on Exhibit D. After the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Green Plains or the Global Ethanol Members, as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Green Plains and the Sellers’ Representative or (y) a Final Award certified as such by Green Plains or the Sellers’ Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. At such time, or from time to time, as directed by the Sellers’ Representative, the Member Fund will be paid by the Escrow Agent first to pay any remaining costs and expenses of the Sellers’ Representative, and then pro rata among the Global Ethanol Members; provided, however, that all amounts remaining in the Member Fund shall be disbursed promptly after final settlement of all Pending Claim Amounts. As used herein, the date as of which all amounts in the Escrow Funds shall remain the property of SANYO until such time as such funds are required under the terms of this Agreement to be delivered to HOKU, at which time the portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU. 1.1.2. Concurrently with the execution of the Escrow Agreement, SANYO delivered the Escrow Funds to have been paid out by the Escrow Agent pursuant is referred to Section 5.2.1 of as the Amended & Restated Supply Agreement“Escrow Termination Date. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement, the Escrow Agent shall be in sole possession of the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes of perfecting a security interest therein. Accordingly, the Parties agree that no person or entity shall have any right to have or to hold any of the Escrow Funds as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Account.”

Escrow Funds. 1.1.1(i) Pursuant to the terms of an agreement entered into concurrently with the execution of this Agreement among Parent, the Company, the Shareholder Representative and Citibank, N.A. as escrow agent (including any successor in such capacity, the “Escrow Agent”) in the form attached hereto as Exhibit H (the “Escrow Agreement”), Parent and the Shareholder Representative shall appoint the Escrow Agent to hold and disburse the Escrow Funds as provided below. The Concurrently with the execution of this Agreement, Parent and/or Merger Sub shall deposit with the Escrow FundsAgent (on behalf of the Company Holders) $3,000,000 (the “Adjustment Amount” and, initially in an amount equal together with any interest or other earnings thereon, the “Adjustment Escrow”) and $25 million (the “Indemnity Amount” and, together with any interest or other earnings thereon, the “Indemnity Escrow”; the Indemnity Escrow and the Adjustment Escrow are referred to One Hundred Nine Million Three Hundred Thousand U.S. Dollars ($109,300,000) (as the “Escrow Funds”), has been deposited with in each case, by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held by the Escrow Agent in segregated accounts to serve as the sole sources of payment of any adjustment to the Estimated Merger Consideration required by Section 2.3(e)(i) or any indemnification obligation of the Company set forth in Article VII. (ii) Parent and the Shareholder Representative shall instruct the Escrow Agent to disburse the Escrow Funds as follows: (A) the Adjustment Escrow shall be disbursed by the Escrow Agent to (1) Parent, to the extent provided in Section 2.3(e)(i) and (ii), and/or (2) the Shareholder Representative, to the extent provided in Section 2.3(e)(i) and (ii); (B) from time to time prior to the Escrow Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent to Parent to the extent required to pay an indemnification obligation of the Company under Article VII and/or to the extent required by clause (z) of Section 2.3(e)(i); (C) on the Escrow Release Date, the entire balance of the Indemnity Escrow less any amount thereof subject to unresolved indemnification claims hereunder with respect to which Parent has provided the Escrow Agent and the Shareholder Representative written notice (each such amount, a separate account located “Pending Claim Amount”), reduced by the amount provided for in Section 2.2(b)(iii) with respect to any Dissenting Shares (which amount shall instead be disbursed by the Escrow Agent to Parent), shall be disbursed by the Escrow Agent to the Shareholder Representative (on behalf of the Company Holders); and (D) after the Escrow Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Parent or the Shareholder Representative (on behalf of the Company Holders), as the case may be, in accordance with Article VII, reduced by the amount provided for in Section 2.2(b)(iii) with respect to Dissenting Shares (which shall instead be disbursed by the Escrow Agent to Parent). The date as of which all amounts in the United States (Escrow Funds have been paid out by the Escrow Agent is referred to as the “Escrow AccountTermination Date”) for the benefit of HOKU and SANYO. Subject to Section 2.5(c), as provided in this Agreement. The Escrow Agent shall not make any payment or distribution from the Escrow Account except as, and in the manner, expressly provided in this Agreement; provided, however, that the Escrow Funds paid to the Shareholder Representative pursuant to this Section 2.5(b) shall remain be distributed by the property of SANYO until such time as such funds are required under Shareholder Representative to the terms of this Agreement to be delivered to HOKU, at which time the portion Company Holders in accordance with their respective shares of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU. 1.1.2. Concurrently with the execution of the Escrow Agreement, SANYO delivered the Escrow Funds to the Escrow Agent pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (i) the amount of the Escrow Funds deposited with Escrow Agent amounts as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party determined in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement, the Escrow Agent shall be in sole possession of the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes of perfecting a security interest therein. Accordingly, the Parties agree that no person or entity shall have any right to have or to hold any of the Escrow Funds as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Account.

Escrow Funds. 1.1.1. The Parties shall act in accordance with, and the Escrow Agent shall hold and release the Escrow Funds as provided in, this Section 4(a) as follows: (i) Upon receipt of a Joint Release Instruction with respect to the Escrow Funds, initially the Escrow Agent shall promptly, but in an amount equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars any event within two ($109,300,0002) Business Days after receipt of a Joint Release Instruction, disburse all or part of the Escrow Funds in accordance with such Joint Release Instruction. 261387504v.2 (the “Escrow Funds”), has been deposited with and shall be held ii) Upon receipt by the Escrow Agent in of a separate account located copy of a Final Escrow Order, the Escrow Agent shall on the fifth (5th) Business Day following receipt of such Final Escrow Order, disburse as directed, part or all, as the case may be, of the Escrow Funds (but only to the extent funds are available in the United States (the “Escrow Account”Funds) for the benefit of HOKU and SANYO, as provided in this Agreementaccordance with such Final Escrow Order. The Escrow Agent shall not make will act on such Final Escrow Order without further inquiry. (iii) All payments of any payment or distribution from the Escrow Account except as, and in the manner, expressly provided in this Agreement; provided, however, that part of the Escrow Funds shall remain be made by wire transfer of immediately available funds or check as set forth in the property Joint Release Instruction or Final Escrow Order, as applicable. (iv) Any instructions setting forth, claiming, containing, objecting to, or in any way related to the transfer or distribution of SANYO until such time as such any funds are required on deposit in any Escrow Account under the terms of this Agreement to must be delivered to HOKUin writing, at which time executed by the portion of such Escrow Funds required to be delivered to HOKU shall become appropriate Party or Parties as evidenced by the property of HOKU. 1.1.2. Concurrently with the execution signatures of the Escrow Agreement, SANYO person or persons set forth on Exhibit A-1 and Exhibit A-2 and delivered the Escrow Funds to the Escrow Agent pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting either (i) by confirmed facsimile only at the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus fax number set forth in Section 11 below or (ii) all amounts earned or realized attached to an e-mail received on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided a Business Day from an e-mail address set forth in Section 1.1.1 11 below. In the event a Joint Release Instruction or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of Final Escrow Order is delivered to the Escrow Funds. ThereforeAgent, (i) none of the Parties shall have the ability to pledgewhether in writing, convey, hypothecate by facsimile or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreementotherwise, the Escrow Agent shall be is authorized to seek confirmation of such instruction by telephone call back to the person or persons designated in sole possession of Exhibits A-1 and/or A-2 annexed hereto (the Escrow Funds and agrees not to acknowledge requests that it act as“Call Back Authorized Individuals”), and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes may rely upon the confirmations of perfecting anyone purporting to be a security interest thereinCall Back Authorized Individual. AccordinglyTo assure accuracy of the instructions it receives, the Parties agree that no person or entity shall have any right to have or to hold any of Escrow Agent may record such call backs. If the Escrow Funds as collateral Agent is unable to verify the instructions, or is not satisfied with the verification it receives, it will not execute the instruction until all such issues have been resolved. The persons and telephone numbers for any obligation call backs may be changed only in writing, executed by an authorized signer of applicable Party set forth on Exhibit A-1 or Exhibit A-2, actually received and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to acknowledged by the Escrow AccountAgent.

Escrow Funds. 1.1.1. The (a) As exclusive security and remedy for the indemnity provided for in Section 9.2(a) and (b) of this Agreement, the Escrow FundsShares (defined in Section 2.4(f) hereof) shall be registered in the names of the securityholders of Company but shall be deposited (together with assignments in blank executed by the securityholders of Company in connection with the surrender of their Certificates) with an institution selected by Parent with the reasonable consent of the Holders' Representative as escrow agent (the "Escrow Agent"), initially such deposit to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein and in an amount equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars ($109,300,000) (the “Escrow Funds”)Agreement among Parent, has been deposited with and shall be held by the Escrow Agent in a separate account located and the Holders' Representative (the "Escrow Agreement") substantially in the United States (the “Escrow Account”) for the benefit of HOKU and SANYO, form attached hereto as provided in this Agreement. The Escrow Agent shall not make any payment or distribution from the Escrow Account except as, and in the manner, expressly provided in this Agreement; provided, however, that the Escrow Funds shall remain the property of SANYO until such time as such funds are required under Exhibit I. Subject to the terms of Section 9.3(b) of this Agreement to be delivered to HOKUAgreement, at which time the portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU. 1.1.2. Concurrently upon compliance with the execution terms hereof and the terms of the Escrow Agreement, SANYO delivered the Parent Indemnitees shall be entitled to obtain indemnification from the Escrow Funds Fund for all Parent Indemnifiable Damages covered by the indemnity provided for in Section 9.2 of this Agreement (it being understood that each Company Indemnitor's liability under this Agreement shall be limited to the Escrow Agent Fund). The Escrow Agent, Parent, the Surviving Corporation and Merger Sub may rely upon any decision, act, consent or instruction of the Holders' Representative as being the decision, act, consent or instruction of each and all of the stockholders of Company. The Escrow Agent, Parent and Merger Sub are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders' Representative. (b) At any time until the earlier of the Expiration Date or the termination of the Escrow Agreement as provided therein, if any Parent Indemnitee makes a claim for Indemnifiable Damages and is entitled to indemnification pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement9.2 hereof, the Escrow Agent shall be shall, upon compliance with the procedures set forth in sole possession of the Escrow Funds and agrees not Agreement, release to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute Parent (or other applicable Parent Indemnitee) such amount from the Escrow Agent as, custodian for any party for purposes of perfecting a security interest therein. Accordingly, the Parties agree that no person or entity shall have any right to have or to hold any of the Escrow Funds as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Account.Fund which is equal in

Escrow Funds. 1.1.1. The (a) Concurrently with the closing of the sale of the Notes and the execution and delivery of this Agreement: (i) as provided in the Purchase Agreement, the Initial Purchasers will deposit with Escrow FundsAgent $268,812,500 by wire transfer in immediately available funds, initially in representing an amount in cash equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars the net proceeds from the issuance of the Notes (the “Net Proceeds Deposit”); and (ii) the Company or Parent will deposit with Escrow Agent $109,300,00010,037,500 by wire transfer in immediately available funds, representing an amount in cash equal to the sum of (x) an amount in cash that, when added to the Net Proceeds Deposit equals 100% of the aggregate principal amount of the Notes and (y) the interest that would accrue on the Notes from the date of this Agreement to, but excluding the Final Escrow Redemption Date (the amounts described in clauses (x) and (y), together with the Net Proceeds Deposit and all interest, dividends and other distributions and payments thereon received by Escrow Agent, less any property and/or funds distributed or paid by Escrow Agent in accordance with this Agreement, collectively, the “Escrow Funds”). (b) All assets, has been deposited with including any cash and Temporary Cash Investments (as defined in Section 1.01 of the Indenture) held by Escrow Agent from time to time pursuant to this Agreement, shall be held by Escrow Agent for the Company but as collateral, and subject to the rights of the Trustee and holders of the Notes, as secured parties, under this Agreement. (c) Notwithstanding anything in this agreement to the contrary, the parties hereto hereby agree that: (i) (x) Escrow Agent’s “Jurisdiction” is the State of New York, (y) the Escrow Account is and shall be maintained by Escrow Agent as a “Deposit Account,” and (z) Escrow Agent is acting with respect to the Escrow Account as a “Bank,” in a separate account located in each case within the United States meaning of, and for purposes of, Sections 9-102, 9-104 and 9-304 of the New York Uniform Commercial Code, as amended (the “Code”); (ii) the Escrow Account”Account is not evidenced by a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation and is of a type that in the ordinary course of business is transferred by delivery with any necessary endorsement or assignment; (iii) for the benefit of HOKU and SANYO, as provided in this Agreement. The Escrow Agent shall not make any payment change the name or distribution from account number of the Escrow Account except aswithout the prior written consent of the Trustee and the Company and shall not change the customer. (d) Notwithstanding anything in this agreement to the contrary, Escrow Agent agrees that it shall comply with all instructions originated by the Trustee directing disposition of funds in or otherwise with respect to the Escrow Account, without further consent by the Company or any other person or entity so long as this Agreement is in effect. Escrow Agent hereby represents that it has not, and it hereby agrees that it will not, enter into any agreement or take any action which gives any person or entity other than Trustee control (within the meaning of Section 9-104 of the Code) over the Escrow Account. The parties hereto agree that the Trustee shall have exclusive control, and sole dominion and control, over the Escrow Account, and Escrow Agent shall not accept or comply with instructions given by any person other than the Trustee given in accordance with the provisions of this Agreement. (e) In the event that Escrow Agent has or subsequently obtains by agreement, operation of law or otherwise a security interest in the mannerEscrow Account, Escrow Agent hereby agrees that such security interest shall be subordinate to the security interest of the Trustee. Except as contemplated by Sections 7 and 8 with respect to the reimbursement of Escrow Agent’s indemnification, fees and expenses, the financial assets with respect thereto standing to the credit of the Escrow Account will not be subject to deduction, set-off, banker’s lien or any other right in favor of any person or entity other than the Trustee. (f) Except for this Agreement, the Fee Schedule (as defined in Section 7(a) herein), there are no other agreements entered into among the parties hereto with respect to the Escrow Account. Except as expressly provided set forth in this Agreement; providedSection 1, howeverin the event of any conflict between this Section 1 or any portion hereof, that any other provision of this Agreement or any other agreement now existing or hereafter entered into, the Escrow Funds terms of this Section 1 shall remain prevail. In addition, in the property event of SANYO until such time as such funds are required under any conflict between the terms of this Agreement to be delivered to HOKUand the Fee Schedule, at which time the portion of such Escrow Funds required to be delivered to HOKU this Agreement shall become the property of HOKUcontrol. 1.1.2. Concurrently with (g) It is the execution intention of the Escrow Agreement, SANYO delivered parties hereto that neither Parent nor any of its subsidiaries (other than the Escrow Funds Company to the Escrow Agent pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting extent set forth in clause (ih) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (iibelow) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, . (ih) none It is the intention of the Parties shall parties hereto that this Agreement create a true escrow and the Company have no ownership of, or rights in, the ability Escrow Funds, other than the limited contractual right to pledge, convey, hypothecate or grant a security interest in any portion of receive the Escrow Funds unless and until such funds have been disbursed to such party under the circumstances specified in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement, the . The Escrow Funds shall be held by Escrow Agent in a separate, segregated account. In no event shall any Escrow Funds be commingled with any other funds or monies held by Escrow Agent, nor shall any Escrow Funds be exchanged for any currency other than the currency in sole possession of which the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the are initially received by Escrow Agent as, custodian for any party for purposes of perfecting a security interest therein. Accordingly, the Parties agree that no person or entity shall have any right to have or to hold any of the Escrow Funds as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow AccountAgent.

Escrow Funds. 1.1.1. The (i) On the Closing Date, Buyer shall deposit with the Escrow Funds, initially in an amount equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars Agent (as defined below) $109,300,000) 20,000,000 (the “Escrow Funds”), has been deposited with by wire transfer of immediately available funds. (ii) Pursuant to the terms of an agreement to be entered into among Buyer, the Sellers’ Representative (on behalf of the Sellers, the Blocker Sellers and shall be held by the Target Optionholders) and Bank of America, N.A. as escrow agent (including any successor in such capacity, the “Escrow Agent in a separate account located Agent”) substantially in the United States form attached hereto as Exhibit F (the “Escrow AccountAgreement”) for ), Buyer and the benefit of HOKU and SANYO, as provided in this Agreement. The Sellers’ Representative shall appoint the Escrow Agent shall not make any payment or distribution from the Escrow Account except as, to hold and in the manner, expressly provided in this Agreement; provided, however, that disburse the Escrow Funds as provided below. (iii) Buyer and the Sellers’ Representative shall remain instruct the property of SANYO until such time as such funds are required under Escrow Agent to disburse the terms of this Agreement to be delivered to HOKU, at which time the portion of such Escrow Funds as follows: (A) to Buyer, to the extent provided in Section 2.3(e)(i) (Working Capital; Closing Date RMR); (B) to Buyer, to the extent provided in Section 2.3(f)(i) (Working Capital; Closing Date RMR); and (C) simultaneously with the payments, if any, described in immediately preceding clauses (A) and (B) or, if no payments are required to be delivered made to HOKU shall become the property of HOKU. 1.1.2. Concurrently with the execution of the Escrow Agreement, SANYO delivered the Escrow Funds to the Escrow Agent Buyer pursuant to Section 5.2.1 of such clauses, the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession entire remaining balance of the Escrow Funds. Therefore, together with all interest accrued thereon, if any, to the Sellers’ Representative (i) none on behalf of the Parties shall have Sellers, the ability Blocker Sellers and the Target Optionholders). Subject to pledgeSection 2.4(c) (Use and Disbursement of Payment Fund), convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless paid to the Sellers’ Representative pursuant to this Section 2.4(b) (Escrow Funds) shall be distributed by the Sellers’ Representative to the Sellers and until such funds have been disbursed to such party the Blocker Sellers (and the Target Optionholders, if applicable) in accordance with this Agreement the arrangements among such Persons (the “Seller-Blocker Seller Agreement”), and (ii) until disbursed pursuant Buyer shall have no further obligations to this Agreementany Seller or any Blocker Seller with respect to the payment of any Escrow Funds, the Escrow Agent shall be in sole possession regardless of the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for Sellers’ Representative’s compliance or any party for purposes of perfecting a security interest therein. Accordingly, the Parties agree that no person or entity shall have any right to have or to hold any of the Escrow Funds as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Accountalleged noncompliance with such Seller-Blocker Seller Agreement.

Escrow Funds. 1.1.1. The Escrow Funds, initially in an amount equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars ($109,300,000) (the “Escrow Funds”), has been shall be deposited with and shall be held by the Escrow Agent in a separate account located in the United States (the “Escrow Account”) for the benefit of HOKU and SANYO, as provided in this Agreement. The Escrow Agent shall not make any payment or distribution from the Escrow Account except as, and in the manner, expressly provided in this Agreement; provided, however, that the Escrow Funds shall remain the property of SANYO until such time as such funds are required under the terms of this Agreement to be delivered to HOKU, at which time the portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU. 1.1.2. Concurrently with the execution of the Escrow this Agreement, SANYO has delivered the Escrow Funds to the Escrow Agent pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement, the Escrow Agent shall be in sole SANYO Initials & Date: HOKU Initials & Date: [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. possession of the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes of perfecting a security interest therein. Accordingly, the Parties agree that no person or entity shall have any right to have or to hold any of the Escrow Funds as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Account.

Escrow Funds. 1.1.1. The Escrow Funds, initially in an amount equal to One Hundred Nine Forty-Five Million Three Hundred Thousand U.S. Dollars ($109,300,000US$45,000,000) (the “Escrow Funds”), has been shall be deposited with on the date hereof with, and shall be held by from and after the date hereof by, the Escrow Agent in a separate account located in the United States (the “Escrow Account”) for the benefit of HOKU and SANYOSOLARFUN, as provided in this Agreement. The Escrow Agent shall not make any payment or distribution from the Escrow Account except as, and in the manner, expressly provided in this Agreement; provided, however, that the Escrow Funds shall remain the property of SANYO SOLARFUN until such time as such funds are required under the terms of this Agreement to be delivered to HOKU, at which time the portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU. 1.1.2. Concurrently with the execution of the Escrow this Agreement, SANYO SOLARFUN has delivered the Escrow Funds to the Escrow Agent pursuant to Section 5.2.1 5.3.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement, the Escrow Agent shall be in sole possession of the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes of perfecting a security interest therein. Accordingly, the Parties agree that no person or entity shall have any right to have or to hold any of the Escrow Funds as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Account.

Escrow Funds. 1.1.1. The Parties shall act in accordance with, and the Escrow Agent shall hold and release the Escrow Funds as provided in, this Section 4(a) as follows: (i) Upon receipt of a Joint Release Instruction with respect to the Escrow Funds, initially the Escrow Agent shall promptly, but in an amount equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars any event within two ($109,300,0002) Business Days after receipt of a Joint Release Instruction, disburse all or part of the Escrow Funds in accordance with such Joint Release Instruction. (the “Escrow Funds”), has been deposited with and shall be held ii) Upon receipt by the Escrow Agent in of a separate account located copy of Final Determination from any Party, the Escrow Agent shall on the fifth (5th) Business Day following receipt of such determination, disburse as directed, part or all, as the case may be, of the Escrow Funds (but only to the extent funds are available in the United States (the “Escrow Account”Funds) for the benefit of HOKU and SANYO, as provided in this Agreementaccordance with such Final Determination. The Escrow Agent shall not make will act on such Final Determination without further inquiry. (iii) All payments of any payment or distribution from the Escrow Account except as, and in the manner, expressly provided in this Agreement; provided, however, that part of the Escrow Funds shall remain be made by wire transfer of immediately available funds or check as set forth in the property Joint Release Instruction or Final Determination, as applicable. (iv) Any instructions setting forth, claiming, containing, objecting to, or in any way related to the transfer or distribution of SANYO until such time as such any funds are required on deposit in any Escrow Account under the terms of this Agreement to must be delivered to HOKUin writing, at which time executed by the portion of such Escrow Funds required to be delivered to HOKU shall become appropriate Party or Parties as evidenced by the property of HOKU. 1.1.2. Concurrently with the execution signatures of the Escrow Agreement, SANYO person or persons set forth on Exhibit A-1 and Exhibit A-2 and delivered the Escrow Funds to the Escrow Agent pursuant attached to an e-mail received on a Business Day from an e-mail address set forth in Section 5.2.1 of 11 below. In the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain event a Joint Release Instruction or Final Determination is delivered to the Escrow Account reflecting (i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this AgreementAgent, plus (ii) all amounts earned whether in writing, by e-mail or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreementotherwise, the Escrow Agent shall be is authorized to seek confirmation of such instruction by telephone call back to the person or persons designated in sole possession of Exhibits A-1 and/or A-2 annexed hereto (the Escrow Funds and agrees not to acknowledge requests that it act as“Call Back Authorized Individuals”), and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes may rely upon the confirmations of perfecting anyone purporting to be a security interest thereinCall Back Authorized Individual. AccordinglyTo assure accuracy of the instructions it receives, the Parties agree that no person or entity shall have any right Escrow Agent may record such call backs, to have or to hold any of the extent permitted by and in accordance with all applicable laws. If the Escrow Funds as collateral Agent is unable to verify the instructions, or is not satisfied with the verification it receives, it will not execute the instruction until all such issues have been resolved. The persons and telephone numbers for any obligation call backs may be changed only in writing, executed by an authorized signer of applicable Party set forth on Exhibit A-1 or Exhibit A-2, actually received and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to acknowledged by the Escrow AccountAgent.

Escrow Funds. 1.1.1. The Parties shall act in accordance with, and the Escrow Agent shall hold and release the Escrow Funds as provided in, this Section 4(a) as follows: (i) Upon receipt of a Joint Release Instruction with respect to the Escrow Funds, initially the Escrow Agent shall promptly, but in an amount equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars any event within two ($109,300,0002) Business Days after receipt of a Joint Release Instruction, disburse all or part of the Escrow Funds in accordance with such Joint Release Instruction. (the “Escrow Funds”), has been deposited with and shall be held ii) Upon receipt by the Escrow Agent in of a separate account located copy of Final Determination from any Party, the Escrow Agent shall on the fifth (5th) Business Day following receipt of such determination, disburse as directed, part or all, as the case may be, of the Escrow Funds (but only to the extent funds are available in the United States (the “Escrow Account”Funds) for the benefit of HOKU and SANYO, as provided in this Agreementaccordance with such Final Determination. The Escrow Agent shall not make any payment or distribution from will act on such Final Determination without further inquiry. (iii) Without limiting the generality of Section 4(a)(i) and (ii), (A) the Parties agree to deliver to the Escrow Account except asAgent, from time to time within three (3) Business Days after the determination of any of the Actual Working Capital, Actual Net Indebtedness and Actual Acquisition Expenses pursuant to Section 2.8 of the Purchase Agreement, a Joint Release Instruction as to the release and disposition of the applicable portion of the Adjustment Escrow Amount in accordance with Section 2.8(g) - (i) of the Purchase Agreement and (B) promptly following completion of payments pursuant to this Section 4(a)(iii), the Parties shall deliver a Joint Release Instruction to the Escrow Agent instructing the Escrow Agent to release any remaining amount in the mannerAdjustment Escrow Account to Seller. (iv) Without limiting the generality of Section 4(a)(i) and (ii), expressly provided in this the event and to the extent that the Parties determine that any Purchaser Indemnified Party is entitled to any amount pursuant to Article IX of the Purchase Agreement; provided, however, the Parties may deliver a Joint Release Instruction to the Escrow Agent requesting that the Escrow Agent distribute all or a portion of the Indemnity Escrow Amount to Purchaser in satisfaction of such claim. (v) Without limiting the generality of Section 4(a)(i) and (ii), the Parties agree to deliver to the Escrow Agent, on the third (3rd) Business Day following the Release Date, a Joint Release Instruction as to the release and Disposition of the Indemnity Escrow Amount, in an aggregate amount (the “Disbursement Amount”) equal to the remaining Indemnity Escrow Amount less amounts, if any, that are (x) subject to a pending Joint Release Instruction or Final Determination received by the Escrow Agent prior to the Release Date but not yet paid by the Escrow Agent or (y) the subject of any pending claim for indemnification by Purchaser set forth in a notice delivered to Seller in accordance with Sections 9.2 and 9.3 of the Purchase Agreement prior to the Release Date. (vi) All payments of any part of the Escrow Funds to (a) Purchaser or (b) the Seller, as the case may be, shall remain be made by wire transfer of immediately available funds or check as set forth in the property Joint Release Instruction or Final Determination, as applicable. (vii) Any instructions setting forth, claiming, containing, objecting to, or in any way related to the transfer or distribution of SANYO until such time as such any funds are required on deposit in any Escrow Account under the terms of this Agreement to must be delivered to HOKUin writing, at which time executed by the portion of such Escrow Funds required to be delivered to HOKU shall become appropriate Party or Parties as evidenced by the property of HOKU. 1.1.2. Concurrently with the execution signatures of the Escrow Agreement, SANYO person or persons set forth on Exhibit A-1 and A-2 and delivered the Escrow Funds to the Escrow Agent pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting either (i) by confirmed facsimile only at the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus fax number set forth in Section 11 below or (ii) all amounts earned or realized attached to an e-mail received on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided a Business Day from an e-mail address set forth in Section 1.1.1 11 below. In the event a Joint Release Instruction or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of Final Determination is delivered to the Escrow Funds. ThereforeAgent, (i) none of the Parties shall have the ability to pledgewhether in writing, convey, hypothecate by email or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreementotherwise, the Escrow Agent shall be is authorized to seek confirmation of such instruction by telephone call back to the person or persons designated in sole possession of Exhibits A‑1 and A‑2 annexed hereto (the Escrow Funds and agrees not to acknowledge requests that it act as“Call Back Authorized Individuals”), and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes may rely upon the confirmations of perfecting anyone reached at a security interest thereintelephone number set forth in Exhibit A-1 or Exhibit A-2 purporting to be the Call Back Authorized Individual associated with such telephone number. AccordinglyTo assure accuracy of the instructions it receives, the Parties agree that no person or entity shall have any right to have or to hold any of Escrow Agent may record such call backs. If the Escrow Funds as collateral Agent is unable to verify the instructions, or is not satisfied with the verification it receives, it will not execute the instruction until all such issues have been resolved. The persons and telephone numbers for any obligation call backs may be changed only in writing, executed by an authorized signer of applicable Party set forth on Exhibit A-1 or Exhibit A-2, actually received and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to acknowledged by the Escrow AccountAgent.

Escrow Funds. 1.1.1. The (a) In accordance with the Escrow FundsAgreement, initially Parent shall deposit or cause to be deposited with the Escrow Agent the Indemnification Escrow Shares (such shares less any disbursements therefrom in an amount equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars ($109,300,000) (accordance with the Escrow Agreement, the “Indemnification Escrow FundsFund”), has been deposited with and shall to be held by the Escrow Agent in a separate account located in the United States (the “Escrow Account”) for the benefit purpose of HOKU and SANYO, as provided securing the indemnification obligations of the Stockholders set forth in this Agreement. The Escrow Agent shall not make any payment or distribution from Agreement and the Escrow Account except asobligations pursuant to Section 2.17(d), Section 2.17(f), and in the mannerSection 6.03, expressly and for other purposes provided for in this Agreement; provided, however, that the Indemnification Escrow Funds Fund shall remain not limit the property indemnification obligations of SANYO until the Principals set forth in this Agreement and the obligations pursuant to Section 2.17(d) and Section 6.03. (b) In accordance with the Escrow Agreement, Company shall deposit or cause to be deposited with the Escrow Agent the Stockholder Representative Expense Amount (such time as such funds are required under amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the terms Escrow Agreement, the “Stockholder Representative Expense Fund”), to be held for the purpose of funding any expenses of Stockholder Representative arising in connection with the administration of Stockholder Representative's duties in this Agreement after the Effective Time. (c) Notwithstanding anything in this Agreement to the contrary, there shall be no restriction on the release of any portion of the Indemnification Escrow Fund to Parent. Subject to any claims or rights of Parent to the Indemnification Escrow Fund with respect to Losses, the Post-Closing Adjustment, Direct Claims, Third Party Claims, or other provisions of this Agreement (including, without limitation, pursuant to be delivered Section 5.12 and Section 5.13), and subject to HOKU, at which time the portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU. 1.1.2. Concurrently with the execution terms of the Escrow Agreement, SANYO delivered Indemnification Escrow Shares will be released from the Indemnification Escrow Funds to the Escrow Agent pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting Fund as follows: (i) Seven Hundred Sixty-Three Thousand Two Hundred (763,200) Indemnification Escrow Shares will be released for delivery in accordance with the amount Consideration Spreadsheet six (6) months after Closing; (ii) Two Million Two Hundred Eighty-Nine Thousand Six Hundred (2,289,600) Indemnification Escrow Shares will be released for delivery in accordance with the Consideration Spreadsheet twelve (12) months after Closing, and (iii) Four Million Five Hundred Seventy-Nine Thousand Two Hundred (4,579,200) Indemnification Escrow Shares will be released for delivery in accordance with the Consideration Spreadsheet eighteen (18) months after Closing; provided however, that in each case, number of Indemnification Escrow Shares to be released from the Indemnification Escrow Fund shall be less any portion of the Indemnification Escrow Funds deposited with Escrow Agent as Fund that is determined, in the good faith reasonable judgment of Parent, to be necessary to satisfy the portion of the date unsatisfied claims or rights of Parent to the Indemnification Escrow Fund with respect to Losses, the Post-Closing Adjustment, Direct Claims, Third Party Claims, or other provisions of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 a written notice delivered to the Stockholders’ Representative on or prior to the scheduled time of this Agreement. 1.1.4release above. Except as expressly provided Any Indemnification Escrow Shares delivered to Parent shall reduce the amount of Indemnification Escrow Shares in Section 1.1.1 or elsewhere herein, none the Indemnification Escrow Fund and such shares shall not be available for delivery to any other Person other than Parent. At least Two Million of the Parties shall have any rightIndemnification Escrow Shares to be released eighteen (18) months after Closing, title or interest in or possession of the Escrow Funds. Therefore, (i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant subject to this Agreement, the Escrow Agent shall be in sole possession of the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes of perfecting a security interest therein. Accordingly, the Parties agree that no person or entity shall have any right to have or to hold any of the Escrow Funds as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating shares allocated to the Principals in accordance with the Consideration Spreadsheet. Any Indemnification Escrow AccountShares released from the Indemnification Escrow Fund shall remain subject to the Lock Up Agreements, as applicable.

Escrow Funds. 1.1.1. The Escrow FundsParties shall act in accordance with, initially in an amount equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars ($109,300,000) (the “Escrow Funds”), has been deposited with and shall be held by the Escrow Agent in a separate account located in the United States (the “Escrow Account”) for the benefit of HOKU shall hold and SANYO, as provided in this Agreement. The Escrow Agent shall not make any payment or distribution from the Escrow Account except as, and in the manner, expressly provided in this Agreement; provided, however, that release the Escrow Funds shall remain the property as provided in, this Section 4(a) as follows: (i) Upon receipt of SANYO until such time as such funds are required under the terms of this Agreement to be delivered to HOKU, at which time the portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU. 1.1.2. Concurrently a Joint Release Instruction with the execution of the Escrow Agreement, SANYO delivered the Escrow Funds respect to the Escrow Agent pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement, the Escrow Agent shall be promptly, but in sole possession any event within two (2) Business Days after receipt of a Joint Release Instruction, disburse Escrow Funds in accordance with such Joint Release Instruction. (ii) If at any time either of the Escrow Funds and agrees not to acknowledge requests that it act asParties receives a Final Determination (as defined herein), and nothing contained in this Agreement shall be deemed to constitute then upon receipt by the Escrow Agent as, custodian for of a copy of such Final Determination from any party for purposes of perfecting a security interest therein. AccordinglyParty, the Parties agree that no person or entity Escrow Agent shall have any right (A) promptly deliver a copy of such Final Determination to have or to hold any the other Party and (B) on the fifth (5th) Business Day following receipt by the applicable Party from the Escrow Agent of the Final Determination, disburse to Purchaser and/or the Seller Representative, as applicable, Escrow Funds (but only to the extent there are Escrow Funds) in accordance with such Final Determination. Subject to the terms of this Section 4(a), the Escrow Agent will act on such Final Determination without further inquiry. (iii) All payments of Escrow Funds to (i) the Purchaser or (ii) the Paying Agent (as collateral defined in the Purchase Agreement) for any obligation and further distribution to the Sellers, as the case may be, shall not be able to obtain made by wire transfer of immediately available funds or cashier’s check as set forth in the Joint Release Instruction or Final Determination, as applicable. (iv) In the event a security interest in any assets (tangible or intangible) contained in or relating Joint Release Instruction is delivered to the Escrow AccountAgent, whether in writing, by telecopier or otherwise, the Escrow Agent shall seek confirmation of such instruction by telephone call back to the person or persons designated in Exhibits A-1 and or A-2 annexed hereto (the “Call Back Authorized Individuals”), and the Escrow Agent may rely upon the confirmations of anyone purporting to be a Call Back Authorized Individual. To assure accuracy of the instructions it receives, the Escrow Agent may record such call backs. If the Escrow Agent is unable to verify the instructions, or is not satisfied with the verification it receives, it will not execute the instruction until all such issues have been resolved. The persons and telephone numbers for call backs may be changed only in writing actually received and acknowledged by the Escrow Agent.

Escrow Funds. 1.1.1Immediately following the Effective Time, Buyer shall deliver to the custody of The Bank of New York Mellon Corporation (the “Escrow Agent”), without any act of the Stockholders, the following: (i) a number of Shares of Buyer Stock (such shares, the “Escrow Shares”), rounded to the nearest whole number, equal to the following product: (A) 7.5% multiplied by (B) the Nominal Net Merger Consideration multiplied by (C) a fraction, the numerator of which is the Nominal Net Merger Consideration, minus the amounts of cash paid pursuant to Section 2.10 and Section 2.11 in lieu of Buyer Stock that would have otherwise been delivered pursuant to clause (i) of Section 2.1(c) and clause (i) of Section 2.1(d), and the denominator of which is the Nominal Net Merger Consideration; and (ii) an amount in cash (such cash, the “Escrow Cash”) equal to the following product: (A) 7.5% multiplied by (B) the Nominal Net Merger Consideration multiplied by (C) the Closing Price multiplied by (D) a fraction, the numerator of which is the cash paid pursuant to Section 2.10 and Section 2.11 in lieu of shares of Buyer Stock that would have otherwise been delivered pursuant to clause (i) of Section 2.1(c) and clause (i) of Section 2.1(d) and the denominator of which is the Nominal Net Merger Consideration. The Escrow Funds, initially in an amount equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars ($109,300,000) (Shares and the Escrow Cash shall comprise the “Escrow Funds”), has been deposited with and which shall be held by the Escrow Agent pursuant to, and shall be governed by, the terms of the Escrow Agreement to be entered into by and among Buyer, the Stockholders’ Representative and the Escrow Agent. The Escrow Funds shall be held in a separate account located in the United States (the “Escrow Account”) for the benefit of HOKU escrow and SANYO, shall be available to settle certain contingencies as provided in Section 2.5 and compensate the Buyer Indemnified Parties for any Losses suffered or incurred by them and for which they are entitled to recovery under Article IX of this Agreement. The Escrow Agent shall not make any payment or distribution from , and will be allocated among and released and distributed to the Stockholders and/or Buyer in accordance with the Escrow Account except as, and in the manner, expressly provided in this Agreement; provided, however, that Agreement (the Escrow Funds shall remain the property of SANYO until such time as such funds are required under the terms of this Agreement to be delivered to HOKU, at which time the portion of such Shares and Escrow Funds required to be delivered to HOKU shall become the property of HOKU. 1.1.2. Concurrently with the execution of the Escrow Agreement, SANYO delivered Cash released or distributed from the Escrow Funds to the Escrow Agent pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of Stockholders under this Agreement, plus if any, being the “Released Escrow Consideration”). The Released Escrow Consideration is intended to be treated for Tax purposes as consideration for the Company Stock purchased by Buyer from the Stockholders in the Merger and shall be treated as such consideration (iisubject to any requirement to treat a portion as imputed interest) for all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant Tax purposes except to Section 1.3 the extent otherwise required by a final determination of a Governmental Body. Notwithstanding anything to the contrary in this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 , Buyer makes no representations or elsewhere herein, none warranties to the Company or the Stockholders regarding the Tax treatment of the Parties shall have transactions contemplated in this Agreement or any right, title or interest in or possession of the Escrow FundsTax consequences to any Stockholders relating to those transactions. Therefore, (i) none Each of the Parties shall have the ability Company and each Stockholder must rely solely on his, her or its own Tax advisors in connection with such transactions. No Stockholder may, directly or indirectly, sell, exchange, transfer or otherwise dispose of his, her or its right to pledge, convey, hypothecate or grant a security interest in receive any portion of the Escrow Funds unless and until (except by will or by operation of the Laws of intestate succession). Any such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreementpurported sale, the Escrow Agent exchange, transfer or disposition shall be in sole possession of the Escrow Funds null and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes of perfecting a security interest therein. Accordingly, the Parties agree that no person or entity shall have any right to have or to hold any of the Escrow Funds as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Accountvoid.

Escrow Funds. 1.1.1. The Escrow Funds, initially in an amount equal to One Hundred Nine Forty-Four Million Three Hundred Thousand U.S. Dollars ($109,300,000US$44,000,000) (the “Escrow Funds”), has been shall be deposited with on the date hereof with, and shall be held by from and after the date hereof by, the Escrow Agent in a separate account located in the United States (the “Escrow Account”) for the benefit of HOKU and SANYOSOLARFUN, as provided in this Agreement. The Escrow Agent shall not make any payment or distribution from the Escrow Account except as, and in the manner, expressly provided in this Agreement; provided, however, that the Escrow Funds shall remain the property of SANYO SOLARFUN until such time as such funds are required under the terms of this Agreement to be delivered to HOKU, at which time the portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU. 1.1.2. Concurrently with the execution of the Escrow this Agreement, SANYO SOLARFUN has delivered the Escrow Funds to the Escrow Agent pursuant to Section 5.2.1 5.4.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement, the Escrow Agent shall be in sole possession of the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes of perfecting a security interest therein. Accordingly, the Parties agree that no person or entity shall have any right to have or to hold any of the Escrow Funds as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Account.

Escrow Funds. 1.1.1(i) Pursuant to an escrow agreement to be entered into on the Closing Date by and among Parent, the Stockholder Representative and PNC Bank, N.A. (or another financial institution proposed by either Parent or the Company and reasonably acceptable to the other of them), as escrow agent (in such capacity, the “Escrow Agent”), in the form attached hereto as Exhibit D with such changes as the Stockholder Representative and Parent may agree in writing (the “Escrow Agreement”), Parent and the Stockholder Representative shall appoint the Escrow Agent to hold and disburse the Escrow Funds as provided below. The At the Closing, Parent and/or Merger Sub shall deposit with the Escrow Funds, initially in Agent: (A) an amount in cash equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars $3,500,000 (together with any interest or other earnings thereon, the “Adjustment Escrow”), and (B) an amount in cash equal to $109,300,000) 40,000,000 (together with any interest or other earnings thereon, the “Indemnity Escrow” and, together with the Adjustment Escrow, the “Escrow Funds”), has been deposited with in each case by wire transfer of immediately available funds. The Adjustment Escrow and the Indemnity Escrow shall be held by the Escrow Agent in a separate account located segregated accounts to serve as the sources of payment of certain adjustments to the Estimated Merger Consideration required by Section 2.3(e)(i) or indemnification obligations of the Company Holders set forth in Article IX, respectively. (ii) The Escrow Funds shall be disbursed by the United States Escrow Agent as follows: (A) the “Adjustment Escrow Account”shall be disbursed by the Escrow Agent to (1) for Parent to the benefit of HOKU and SANYO, as extent required to pay an adjustment to the Estimated Merger Consideration under Section 2.3(e)(i) or (2) the Stockholder Representative to the extent provided in this Agreement. The Sections 2.3(e)(i) and (ii); (B) from time to time prior to the Release Date, the Indemnity Escrow shall be disbursed by the Escrow Agent shall not make any payment or distribution from to Parent to the Escrow Account except as, and in extent required to pay an indemnification obligation of the manner, expressly provided in this AgreementCompany Holders under Section 9.1 of Article IX; provided, however, that such disbursements shall be made by Escrow Agent only upon receipt of (x) joint written instructions executed by Parent and the Stockholder Representative or (y) in the case of a disbursement requested with respect to an indemnification claim under Section 9.1 of Article IX, a Final Award certified as such by Parent or the Stockholder Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement; (C) on the Release Date, the entire balance of the Indemnity Escrow (less any amounts thereof that are subject to unresolved indemnification claims hereunder (each such amount, a “Pending Claim Amount”)) shall be disbursed by the Escrow Agent to the Stockholder Representative (on behalf of the Company Holders); and (D) after the Release Date, each Pending Claim Amount shall be paid by the Escrow Agent to Parent or the Stockholder Representative (on behalf of the Company Holders), as the case may be, upon receipt by the Escrow Agent of, and in accordance with, (x) joint written instructions executed by Parent and the Stockholder Representative or (y) a Final Award certified as such by Parent or the Stockholder Representative (a copy of which shall be contemporaneously delivered to the non-certifying party), in each case directing the Escrow Agent to make such disbursement in the amounts and to the Persons set forth therein. As used herein, the date as of which all amounts in the Escrow Funds shall remain the property of SANYO until such time as such funds are required under the terms of this Agreement to be delivered to HOKU, at which time the portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU. 1.1.2. Concurrently with the execution of the Escrow Agreement, SANYO delivered the Escrow Funds to have been paid out by the Escrow Agent pursuant is referred to Section 5.2.1 of as the Amended & Restated Supply Agreement“Escrow Termination Date”. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement, the Escrow Agent shall be in sole possession of the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes of perfecting a security interest therein. Accordingly, the Parties agree that no person or entity shall have any right to have or to hold any of the Escrow Funds as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Account.

Escrow Funds. 1.1.1. (a) On the date of this Escrow Agreement, the Buyer is depositing exclusively with the Escrow Agent the sum of $400,000 (together with any interest thereon or proceeds therefrom from the date hereof, the "Escrow Funds"), and the Escrow Agent acknowledges receipt of the Escrow Funds and deposit thereof into the Escrow Account. (b) The Escrow Funds, initially in an amount equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars ($109,300,000) (the “Escrow Funds”), has been deposited with and Funds shall be held continuously invested and reinvested by the Escrow Agent in a separate account located in short-term United States obligations issued by or guaranteed by the United States Treasury, or in such other securities or instruments, as may be approved in writing from time to time by the Sellers and the Buyer. Absent joint specific written investment directions from such parties, the Escrow Funds will be invested in the Vista 100% U.S. Treasury Fund, which is a mutual fund for which the Escrow Agent or an affiliate of the Escrow Agent may serve as investment manager, administrator, shareholder servicing agent, and/or custodian or subcustodian, notwithstanding that (i) the “Escrow Account”Agent or an affiliate of the Escrow Agent receives fees from such funds for services rendered, (ii) the Escrow Agent charges and collects fees for services rendered pursuant to this Escrow Agreement that are separate from the fees received from such funds, and (iii) services performed for such funds and pursuant to this Escrow Agreement may at times duplicate those provided to such funds by the Escrow Agent or its affiliates. All interest income or other investment proceeds thereon shall become part of the Escrow Funds. (c) The Escrow Funds shall not be subject to lien or attachment by any creditor of any party hereto, and shall be used solely for the benefit of HOKU purpose set forth in this Escrow Agreement and SANYOthe Asset Sale Agreement. Other than as provided herein, the Escrow Funds shall not be subject to set-off. (d) Except as provided in this Agreement. The Sections 4 or 5 hereof, the Escrow Agent shall not make any payment or distribution Funds may only be disbursed from the Escrow Account except as, upon the joint written direction of the Sellers and in the manner, expressly provided in this Agreement; provided, however, that the Escrow Funds shall remain the property of SANYO until such time as such funds are required under the terms of this Agreement to be delivered to HOKU, at which time the portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKUBuyer. 1.1.2. Concurrently with the execution of the Escrow Agreement, SANYO delivered the Escrow Funds (e) Subject to the Escrow Agent pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (i) the amount remaining provisions contained herein, including Sections 4 and 5 hereof, any payment of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (iiincluding accrued interest) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession automatically include payment of the Escrow Funds. Therefore, (i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party Agent"s compensation in accordance with Section 7 below, after which time payment shall be automatically made to Sellers, without the requirement of any further action by the parties hereto. (f) Each of the Buyer and the Sellers, in the notice section of this Agreement and (ii) until disbursed pursuant to this Escrow Agreement, are providing the Escrow Agent shall be in sole possession of with its Tax Identification Number (TIN) as assigned by the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes of perfecting a security interest therein. Accordingly, the Parties agree that no person or entity shall have any right to have or to hold any of the Escrow Funds as collateral for any obligation and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow AccountInternal Revenue Service.

Escrow Funds. 1.1.1. The (a) As exclusive security and remedy for the indemnity provided for in Section 9.2(a) and (b) of this Agreement, the Escrow FundsShares (defined in Section 2.4(f) hereof) shall be registered in the names of the securityholders of Company but shall be deposited (together with assignments in blank executed by the securityholders of Company in connection with the surrender of their Certificates) with an institution selected by Parent with the reasonable consent of the Holders' Representative as escrow agent (the "Escrow Agent"), initially such deposit to constitute an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein and in an amount equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars ($109,300,000) (the “Escrow Funds”)Agreement among Parent, has been deposited with and shall be held by the Escrow Agent in a separate account located and the Holders' Representative (the "Escrow Agreement") substantially in the United States (the “Escrow Account”) for the benefit of HOKU and SANYO, form attached hereto as provided in this Agreement. The Escrow Agent shall not make any payment or distribution from the Escrow Account except as, and in the manner, expressly provided in this Agreement; provided, however, that the Escrow Funds shall remain the property of SANYO until such time as such funds are required under Exhibit I. Subject to the terms of Section 9.3(b) of this Agreement to be delivered to HOKUAgreement, at which time the portion of such Escrow Funds required to be delivered to HOKU shall become the property of HOKU. 1.1.2. Concurrently upon compliance with the execution terms hereof and the terms of the Escrow Agreement, SANYO delivered the Parent Indemnitees shall be entitled to obtain indemnification from the Escrow Funds Fund for all Parent Indemnifiable Damages covered by the indemnity provided for in Section 9.2 of this Agreement (it being understood that each Company Indemnitor's liability under this Agreement shall be limited to the Escrow Agent Fund). The Escrow Agent, Parent, the Surviving Corporation and Merger Sub may rely upon any decision, act, consent or instruction of the Holders' Representative as being the decision, act, consent or instruction of each and all of the stockholders of Company. The Escrow Agent, Parent and Merger Sub are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Holders' Representative. (b) At any time until the earlier of the Expiration Date or the termination of the Escrow Agreement as provided therein, if any Parent Indemnitee makes a claim for Indemnifiable Damages and is entitled to indemnification pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting (i) the amount of the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus (ii) all amounts earned or realized on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of the Escrow Funds. Therefore, (i) none of the Parties shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party in accordance with this Agreement and (ii) until disbursed pursuant to this Agreement9.2 hereof, the Escrow Agent shall, upon compliance with the procedures set forth in the Escrow Agreement, release to Parent (or other applicable Parent Indemnitee) such amount from the Escrow Fund which is equal in value to such Indemnifiable Damages. Escrow Shares so released shall be in sole possession valued pursuant to the terms and conditions of the Escrow Funds and agrees not to acknowledge requests that it act as, and nothing contained in this Agreement shall be deemed to constitute Agreement. Upon a distribution by the Escrow Agent as, custodian for any party for purposes of perfecting a security interest therein. Accordinglyto Parent (or other applicable Parent Indemnitee) pursuant to this Section, the Parties agree that no person or entity shall have any right to have or to hold any of the Escrow Funds as collateral for any obligation and shall not Fund will be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to the Escrow Accountcorrespondingly reduced.

Escrow Funds. 1.1.1. The Parties shall act in accordance with, and the Escrow Agent shall hold and release the Escrow Funds as provided in, this Section 4(a) as follows: (i) Upon receipt of a Joint Release Instruction, substantially in the form of Exhibit B annexed hereto, with respect to the Escrow Funds, initially the Escrow Agent shall promptly, but in an amount equal to One Hundred Nine Million Three Hundred Thousand U.S. Dollars any event within two ($109,300,0002) Business Days after receipt of a Joint Release Instruction, disburse all or part of the Escrow Funds in accordance with such Joint Release Instruction. (the “Escrow Funds”), has been deposited with and shall be held ii) Upon receipt by the Escrow Agent in of a separate account located copy of Final Determination from any Party, the Escrow Agent shall on the fifth (5th) Business Day following receipt of such determination, disburse as directed, part or all, as the case may be, of the Escrow Funds (but only to the extent funds are available in the United States (the “Escrow Account”Funds) for the benefit of HOKU and SANYO, as provided in this Agreementaccordance with such Final Determination. The Escrow Agent shall not make will act on such Final Determination without further inquiry. (iii) All payments of any payment or distribution from the Escrow Account except as, and in the manner, expressly provided in this Agreement; provided, however, that part of the Escrow Funds shall remain be made by wire transfer of immediately available funds or check as set forth in the property Joint Release Instruction or Final Determination, as applicable. (iv) Any instructions setting forth, claiming, containing, objecting to, or in any way related to the transfer or distribution of SANYO until such time as such any funds are required on deposit in any Escrow Account under the terms of this Agreement to must be delivered to HOKUin writing, at which time executed by the portion of such Escrow Funds required to be delivered to HOKU shall become appropriate Party or Parties as evidenced by the property of HOKU. 1.1.2. Concurrently with the execution signatures of the Escrow Agreement, SANYO person or persons set forth on Exhibit A-1 and Exhibit A-2 (the “Authorized Representatives”) and delivered the Escrow Funds to the Escrow Agent pursuant to Section 5.2.1 of the Amended & Restated Supply Agreement. 1.1.3. The Escrow Agent shall maintain the Escrow Account reflecting either (i) by confirmed facsimile only at the amount of fax number set forth in Section 11 below (and receipt confirmed by the Escrow Funds deposited with Escrow Agent as of the date of this Agreement, plus Agent) or (ii) all amounts earned or realized attached to an e-mail received on any cash or Permitted Investments (as defined below), minus (iii) all amounts distributed pursuant a Business Day sent to Section 1.3 of this Agreement. 1.1.4. Except as expressly provided an e-mail address set forth in Section 1.1.1 or elsewhere herein, none of the Parties shall have any right, title or interest in or possession of 11 below (and receipt confirmed by the Escrow FundsAgent). Therefore, (i) none of In the Parties shall have the ability event a Joint Release Instruction or Final Determination is delivered to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such funds have been disbursed to such party Agent, whether in accordance with this Agreement and (ii) until disbursed pursuant to this Agreementwriting, by facsimile or otherwise, the Escrow Agent shall be is authorized to seek confirmation of such instruction by telephone call back to the person or persons designated in sole possession of Exhibit A-1 and/or A-2 annexed hereto (the Escrow Funds and agrees not to acknowledge requests that it act as“Call Back Authorized Individuals”), and nothing contained in this Agreement shall be deemed to constitute the Escrow Agent as, custodian for any party for purposes may rely upon the confirmations of perfecting anyone purporting to be a security interest thereinCall Back Authorized Individual. AccordinglyTo assure accuracy of the instructions it receives, the Parties agree that no person or entity shall have any right to have or to hold any of Escrow Agent may record such call backs. If the Escrow Funds as collateral Agent is unable to verify the instructions, or is not satisfied with the verification it receives, it will not execute the instruction until all such issues have been resolved. The persons and telephone numbers for any obligation call backs may be changed only in writing, executed by an Authorized Representative of applicable Party and shall not be able to obtain a security interest in any assets (tangible or intangible) contained in or relating to actually received and acknowledged by the Escrow AccountAgent.