AMENDMENT NO. 4 TO ESCROW AGREEMENT
THIS AMENDMENT NO. 4 to the Escrow Agreement is made as of the
13th day of March, 2003 (as supplemented or modified from time to time, this
"Agreement") by and among AJG Financial Services, Inc., through its Vice-
President, General Counsel as agent (the "Major Shareholder Agent") for Xxxxxxx
X. Xxxxxx, Finova Mezzanine Capital Corp., AJG Financial Services, Inc.,
Environmental Opportunities Fund (by itself and as successor to Environmental
Opportunities Fund Cayman), Xxxxxxx Xxxx, M&R Associates, Xxxxxx X. Xxxxxxxx,
Xxxxxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxxxxx (each, an "Initial Major
Shareholder") and for Xxxxxxx Xxxxxxxxx, U.S. Energy Systems, Inc., a Delaware
corporation ("USE"), and US Energy Biogas Corp. (formerly known as Xxxxxx
Alternative Power Corporation), as the successor to USE Acquisition Corp. a
Delaware corporation (the "Sub" and together with USE, the "USE Parties"),
Cinergy Energy Solutions, Inc., a Delaware corporation ("CES" and together with
the USE Parties, the "Beneficiaries"), and Xxxxxxxxxx Helpern Syracuse &
Hirschtritt LLP having an office at 000 Xxxxx Xxx., Xxx Xxxx, Xxx Xxxx, 00000
(the "Escrow Agent"). Unless indicated otherwise, capitalized terms shall have
the same meanings herein as they have in the Escrow Agreement (as defined
below).
W I T N E S S E T H:
WHEREAS, the parties hereto and the Initial Major Shareholders
have previously entered into that certain Escrow Agreement dated as of November
28, 2000 (as amended by Amendment No. 1 dated as of May 11, 2001, Amendment No.
2 dated as of November 1, 2002, and Amendment No. 3 dated as of February 10,
2003, the "Escrow Agreement");
WHEREAS, the parties hereto now wish to amend the Escrow
Agreement;
NOW, THEREFORE, in consideration of $10.00 and other
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. The last sentence of Section 3(d) of the Escrow Agreement
is hereby amended by deleting the existing sentence in its
entirety and inserting in its place the following
sentence:
The "Release Date" shall be April 15, 2003.
2. Except as amended hereby, the Escrow Agreement is hereby
ratified and confirmed and, as so amended, remains in full
force and effect on the date hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be Executed as of the date first written above.
MAJOR SHAREHOLDER AGENT:
AJG FINANCIAL SERVICES, INC.
By:/s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President and General Manager
CINERGY ENERGY SOLUTIONS, INC.:
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
U.S. ENERGY SYSTEMS, INC.:
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
US ENERGY BIOGAS CORP:
By:/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
ESCROW AGENT:
XXXXXXXXXX XXXXXXX SYRACUSE & HIRSCHTRITT LLP
By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
A Member of the Firm
