Exhibit 10.2
ESCROW AGREEMENT
ESCROW AGREEMENT dated as of the __ day of ____________, 199_, by and
among:
BESICORP GROUP INC., a New York corporation, having an office at 0000
Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000 ("Besicorp", and following the Merger,
the "Surviving Corporation"); and
BESICORP LTD., a New York corporation, having an office at 0000 Xxxxxxxx
Xxxx, Xxxxxxxx, XX 00000 ("BL"); and
BGI ACQUISITION CORPORATION, a New York corporation, having an office at
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the "Purchaser" and
following the Merger, the "Surviving Corporation"); and
BGI ACQUISITION LLC, a Wyoming limited liability company, having an office
at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the "Parent"); and
XXXXXXXX XXXX XXXXXXXX XXXXXX XXXXXXXX & GLUCK P.C., having an office at
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000 (the "Escrow Agent").
W I T N E S E T H:
WHEREAS, Besicorp, the Purchaser and the Parent (the Purchaser and the
Parent are referred to collectively as "Buyer", and, following the Merger, shall
mean Purchaser and the Surviving Corporation) are parties to an Agreement and
Plan of Merger dated November __, 1998 (the "Merger Agreement"); and
WHEREAS, it is a condition to the effectiveness of the Merger in the Merger
Agreement that Besicorp effectuate the Distribution (as defined in the Merger
Agreement), pursuant to which BL is to assume certain assets and liabilities of
Besicorp (as more fully described in the Merger Agreement); and
WHEREAS, Buyer and BL have entered into an Indemnification Agreement of
even date herewith (the "Indemnification Agreement"), pursuant to which BL
agrees to indemnify Buyer for Damages (as defined in the Indemnification
Agreement) in connection with the items set forth therein; and
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WHEREAS, the Merger Agreement and the Indemnification Agreement
contemplate the execution and delivery of this Escrow Agreement in order to
escrow certain amounts for the purpose of securing certain amounts to be paid by
Buyer and BL in connection with the discharge of the parties' obligations under
the Indemnification Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Defined Terms
(a) Defined terms used herein and not defined herein shall have the
meanings ascribed to them in the Merger Agreement or the Indemnification
Agreement.
(b) "Buyer Monitoring Costs" shall mean the out-of-pocket expenses of Buyer
(including the fees and expenses of attorneys and other professionals) incurred
by Buyer in connection with its right to be represented by counsel with respect
to BL Assumed Matters (where BL is contesting, defending, litigating, settling
or otherwise controlling such matter pursuant to Section 7 of the
Indemnification Agreement). Notwithstanding any implication to the contrary
contained herein, Buyer shall not receive more than $40,000 from the Escrow Fund
with respect to Buyer Monitoring Costs in any calendar year.
(c) "BL Assumed Matters" shall mean each of the Existing Litigation Matters
and the litigation or other matters prosecuted or defended by BL pursuant to
Section 7 of the Indemnification Agreement. Following the date of this
Agreement, additional matters may become BL Assumed Matters in the manner set
forth in the Indemnification Agreement.
(d) "BL Permitted Internal Expenses" shall mean the expenses incurred
internally by BL in connection with performance of its obligations under this
Escrow Agreement or the Indemnification Agreement. BL Permitted Internal
Expenses shall be determined and billed by BL on an hourly basis based upon BL's
normal and customary billing rate charged to its customers in the ordinary
course of its business. BL shall provide Buyer and the Escrow Agent
documentation reasonably acceptable to Buyer (including billing rate information
and amounts of hours and BL Permitted Internal Expenses per BL Assumed Matter)
in connection with BL's requests for reimbursement of such BL Permitted Internal
Expenses. Notwithstanding any implication to the contrary otherwise contained
herein, BL shall not be entitled to receive payments from the Escrow Fund with
respect to BL Permitted Internal Expenses in excess of the interest actually
received from the investment of the Escrow Fund from the date hereof until the
date of such claim for BL Permitted Internal Expenses, less the sum of (x) all
amounts paid or payable to the Escrow Agent on account of Section 5(e) of this
Agreement, (y) all bank charges due pursuant to Section 2(b) of this Agreement,
and (z) any Taxes with respect to earnings on the Escrow Fund paid or payable in
accordance with Section 6(b) of this Agreement.
(e) "Litigation Costs" shall mean all costs and expenses, except for costs
and expenses which would not be permitted to be paid by a corporation to its
directors or officers under
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Sections 721 or 722 of the New York State Business Corporation Law (the "BCL
Sections"), relating to the defense, prosecution, participation in
administrative proceedings, responding to civil investigative demands or
inquiries, settlement, or payment of (i) BL Assumed Matters; (ii) litigation
arising out of or relating to any such BL Assumed Matters; (iii) indemnification
of claims against Besicorp's directors and officers (prior to the Merger) for
actions in their official capacity preceding the date of the Merger, or (iv) for
defense, prosecution, participation in administrative proceedings, responding to
civil investigative demands or inquiries, settlement, or payment of or by
parties eligible to receive indemnity pursuant to the BCL Sections in connection
with matters arising out of or relating to the Merger or the Distribution
(including, for each of items (i) to (iv) above, counsel and witness fees and
expenses including, to the extent permitted by subparagraph (d) above, BL
Permitted Internal Expenses.) Notwithstanding the foregoing sentence, to the
extent a set of facts could give rise to Litigation Costs and Buyer Indemnity
Claims (as defined herein) the provisions of the Indemnification Agreement
(including Section 7 thereof) shall apply.
2. Escrow Deposits
(a) The parties acknowledge and agree that no funds or other assets have
been deposited with the Escrow Agent as of the date hereof. Such funding shall
not occur until the occurrence of the Distribution.
(b) Simultaneously with the execution of this Agreement, Besicorp shall
deposit with the Escrow Agent the sum of six million dollars ($6,000,000) ("the
Escrow Fund"). In addition, interest on the Paying Agent account referred to in
Section 2.3.8 of the Merger Agreement shall be transferred to the Escrow Fund at
the time the payment is to be made pursuant to Section 2.3.5 thereof. The Escrow
Agent agrees to hold the Escrow Fund in escrow in accordance with the terms of
this Escrow Agreement. The Escrow Funds shall be deposited by the Escrow Agent
in a separate interest bearing money market bank account at Bankers Trust
Company, New York, NY or in such other accounts or investments as Buyer and BL
jointly agree in writing. The Escrow Agent shall not be responsible for any
interest earned on the Escrow Funds, except for such interest as is actually
received. The Escrow Agent shall have no obligation to obtain the best or
otherwise seek to maximize the rate of interest earned on any of the Escrow
Funds. Any bank fees or charges or similar items in connection with such
investments shall be paid out of the Escrow Funds. Should the Merger Agreement
terminate without the occurrence of the Merger (a "Termination"), this Agreement
shall terminate and be of no further force or effect. Should the Escrow Fund be
funded at the time of a Termination, all proceeds of the Escrow Fund shall be
returned to Besicorp.
3. Disposition of the Escrow Fund
(a) Use of Escrow Fund. The Escrow Fund shall serve as a source of funding
claims for:
(i) (A) indemnity made by the Buyer pursuant to the Indemnification
Agreement, including any claims for Buyer Monitoring Costs to the extent
permitted under
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Section 1(b) hereof, any claims of Buyer with respect to BL Assumed Matters
arising from the failure of BL to diligently prosecute or defend such BL
Assumed Matters and any payment of fees and expenses of the Paying Agent
pursuant to Section 2.3.8 of the Merger Agreement (all such claims
described in this Section 3(a)(i), "Buyer Indemnity Claims") and (B)
amounts in connection with any Tax refund set forth on a Return filed by
Besicorp prior to the Merger to the extent such amounts have not been
received by Besicorp or the Surviving Corporation prior to March 31, 1999
(a "Tax Refund Claim"), it being understood however, that Buyer shall repay
to the Escrow Fund amounts received from an applicable taxing authority
with respect to any Tax Refund Claim promptly following its receipt by the
Surviving Corporation; and
(ii) payment of Litigation Costs.
(b) Disbursements with respect to Buyer Indemnity Claims. If Buyer shall
request a disbursement from the Escrow Fund associated with any Buyer Indemnity
Claim or Tax Refund Claim, it shall give notice of such request (which may
include Buyer Monitoring Costs to the extent permitted under Section 1 above)
executed by Buyer, to the Escrow Agent and BL, which notice shall set forth the
amount requested, the basis for such request, and reasonable documentation to
support such request (such notice being substantially in the form of Exhibit A
hereto), and shall include the Notice of Claim if the provision of a Notice of
Claim is so required under the Indemnification Agreement. With respect to any
Tax Refund Claim, the Escrow Agent shall disburse the amount requested within 5
days of its receipt of the notice. With respect to Buyer Indemnity Claims, in
the event the Escrow Agent shall not have received a notice of objection from BL
within 30 days after delivery of such notice, the Escrow Agent shall disburse
the amount requested. In the event the Escrow Agent shall receive a timely
notice of objection from BL, it shall not disburse the amount requested until it
shall have received (i) the joint written notice of BL and the Buyer setting
forth the joint direction of such parties (such notice being substantially in
the form of Exhibit B hereto), (ii) a written instrument representing a final
and non-appealable order or similar direction with respect to the disposition of
such amount issued by the arbitrator or arbitration forum and using the
procedures referred to in Section 6(b) of the Indemnification Agreement, or
(iii) a certified copy of a final and non-appealable judgment of a court of
competent jurisdiction directing the disbursement of such funds. Notwithstanding
the foregoing, BL shall not unreasonably withhold its consent to a request by
Buyer for payment of Buyer Indemnity Claims.
(c) Disbursements with respect to BL. If BL shall request a disbursement
from the Escrow Fund with respect to Litigation Costs, it shall give notice of
such request, executed by BL, to the Escrow Agent and Buyer through a notice in
substantially the form of Exhibit C hereto) which notice shall set forth the
amount requested, the basis for such request and reasonable documentation to
support such request. BL shall give a separate notice with respect to each item
of Litigation Costs, and shall provide a notice no less frequently than monthly
with respect to each matter for which BL is then incurring Litigation Costs. In
the event the Escrow Agent shall not have received a notice of objection from
Buyer within 30 days after delivery of such notice, the Escrow Agent shall
disburse the amount requested. In the event the Escrow Agent shall receive a
timely
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notice of objection from Buyer, it shall not disburse the amount requested until
it shall have received (i) the joint written instructions of BL and the Buyer
setting forth the joint direction of such parties (such notice being
substantially in the form of Exhibit B hereto), (ii) a written instrument
representing a final and non-appealable order or similar direction with respect
to the disposition of such amount issued by the arbitrator or arbitration forum
and using the procedures referred to in Section 6(b) of the Indemnification
Agreement, or (iii) a certified copy of a final and non-appealable judgment of a
court of competent jurisdiction directing the disbursement of such funds.
Notwithstanding the foregoing, but subject to the following sentence, Buyer
shall not unreasonably withhold its consent to a request by BL for payment of
Litigation Costs, it being understood that the term "not unreasonably" as used
in this sentence shall be determined in light of all relevant factors, including
(x) the estimates of the amounts needed to complete each of the Existing
Litigation Matters previously provided to Buyer and (y) amounts then remaining
in the Escrow Fund.
4. Release of the Escrow Fund
(a) Release of Escrow Fund Proceeds. At any time following the fifth
anniversary of the date hereof that each of the following conditions are
fulfilled (collectively, the "Release Conditions"):
(i) all Buyer Indemnity Claims that have been set forth in notices
provided under Section 3(b) of this Agreement have been settled and paid in
accordance with the provisions of Section 3(b), no such claims remain
outstanding, and that, in the reasonable judgement of Buyer, no future
Buyer Indemnity Claims are foreseeable;
(ii) all claims of BL that have been set forth in notices provided
under Section 3(c) of this Agreement have been settled and paid in
accordance with the provisions of Section 3(c), and no such claims remain
outstanding; and
(iii) each BL Assumed Matter has been settled through either (A) a
final, non-appealable judgement against the Surviving Corporation and all
Purchaser Indemnitees; or (B) a settlement or other conclusion to the BL
Assumed Matter that (x) contains a release from all liability in favor of
the Surviving Corporation and Purchaser Indemnitees without any further
obligation by the Surviving Corporation or Purchaser Indemnitees to make
any payment or incur any other Liability or Obligation with respect to such
matter, (y) does not attribute by its terms liability to the Surviving
Corporation or any Purchaser Indemnitee and (z) if the Scheduled Matter is
litigation or a proceeding, includes as a term thereof a full dismissal of
the litigation or proceeding with prejudice.
BL may, at its option, notify the Escrow Agent and the Buyer that all of the
Release Conditions have been fulfilled. In the event the Escrow Agent shall not
have received a notice of objection from the Buyer at least ninety (90) days
after delivery of such notice, it shall be entitled to disburse all amounts then
remaining in the Escrow Fund and this Agreement shall terminate. In the event
that the Escrow Agent shall receive a timely notice of objection from the Buyer,
it shall not disburse any portion of
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the Escrow Fund and shall disburse the Escrow Fund only in accordance with the
provisions of the fourth sentence of Section 3(c) hereof.
(b) Consultations. BL and Buyer agree they will meet no less than annually
for the purpose of examining the amounts set forth in the Escrow Fund and the
amounts of Buyer Indemnity Claims and Litigation Costs expended from the Escrow,
for the purpose of determining whether the amount of the Escrow Fund is more
than sufficient to secure Buyer pursuant to the Indemnification Agreement.
5. Escrow Agent
(a) The Escrow Agent shall not be liable in any way to any party hereto for
its refusal to comply with adverse claims or demands being made upon it and
shall not be responsible for any act or failure to act on its part, nor shall it
have any liability under this Escrow Agreement, except in the case of bad faith,
willful default or gross negligence. The Escrow Agent's duties and
responsibilities, in its capacity as such, shall be limited to those expressly
set forth in this Escrow Agreement, and the Escrow Agent shall not be subject
to, or recognize, any other agreement between any or all of the parties hereto
even though reference thereto may be made herein, except to the extent that
definitions contained in the Merger Agreement or the Indemnification Agreement
and the alternative dispute resolution procedures of the Indemnification
Agreement are incorporated into this Escrow Agreement. This Escrow Agreement may
not be amended at any time in such a way as to affect the rights,
responsibilities, obligations, liabilities or fees of the Escrow Agent except
with the Escrow Agent's prior written consent, as evidenced by an instrument in
writing signed by all the parties hereto.
(b) The Escrow Agent (so long as it is Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxx & Xxxxx P.C.) or any member of its firm, shall be permitted to act as
counsel for BL in any dispute or question as to any matter arising out of the
Merger Agreement, the Distribution or the Transactions.
(c) The Escrow Agent may resign at any time upon ninety (90) days written
notice to Buyer and BL and in such event, shall deliver the Escrow Funds and any
interest thereon pursuant to the joint written instructions of BL and Buyer. The
parties agree to make any necessary amendments to this Agreement to permit the
successor escrow agent to assume the obligations of Escrow Agent under this
Agreement. Should the successor escrow agent not assume this Agreement, the
Escrow Agent may deposit the Escrow Fund and any such interest with the clerk of
an appropriate court in New York, New York.
(d) Each of BL and Buyer agree, jointly and separately, to indemnify and
hold harmless the Escrow Agent from and against any demands, claims, causes of
action, liabilities, costs and expenses (including outside counsel fees and
disbursements), arising out of this Escrow Agreement except for claims which are
asserted against the Escrow Agent based upon the Escrow Agent's failure to
comply with the terms and conditions of this Escrow Agreement or the bad faith,
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gross negligence or willful misconduct of the Escrow Agent; provided however,
that (A) promptly after the receipt by the Escrow Agent of notice of any demand
or claim or the commencement of any such action, suit or proceeding, the Escrow
Agent shall notify all parties hereto in writing of the existence of such
demand, claim, action, suit or proceeding; (B) the indemnitor(s) shall be
entitled, at its own expense, to participate in and assume the defense of any
such action, suit or proceeding.
(e) The Escrow Agent shall be entitled to be compensated by BL for its
reasonable time expended and disbursements incurred in connection with carrying
out its duties hereunder.
(f) The Escrow Agent shall be entitled to rely or act upon any notice,
instrument or document believed by it to genuine and to be executed and
delivered by the proper person and shall have no obligation to verify any
statements contained in any notice, instrument or document or the accuracy or
due authorization of the execution of any notice, instrument or document. The
Escrow Agent shall be entitled to refrain from taking any action other than to
keep all cash and other payments and all other property held by it in Escrow and
to make the investments as herein provided until it shall be directed otherwise
in writing by the Buyer and BL, or as otherwise provided herein or by a final
order. The Escrow Agent shall not have any interest in the Escrow Fund, other
than possession thereof in its capacity as escrow agent hereunder.
6. Miscellaneous
(a) Any notice to be delivered hereunder shall be delivered as provided and
to the addresses as specified in Section 8.4 of the Merger Agreement. Any notice
to the Escrow Agent shall be addressed as follows: Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxx & Xxxxx P.C., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000,
Attention: A. Xxxxxxxx Xxxxxx, telecopier No. (212) 956- 2164. Notices shall be
deemed conclusively to have given or delivered hereunder if the same is in
writing, signed by any authorized officer, partner or member and (a) mailed, by
registered or certified mail, return receipt requested, postage prepaid; or (b)
sent via expedited courier service that regularly requires signed receipts
evidencing delivery at the addresses set forth in Section 8.4 of the Merger
Agreement;
(b) Each of BL, Besicorp, Purchaser and Parent has set forth its federal
employer identification number below. Income taxes, if any, with respect to
earnings on the Escrow Fund shall be paid from the Escrow Fund or, if no funds
are available for such purpose, shall be fairly allocated in accordance with the
Code.
(c) This Escrow Agreement set forth the entire understanding of the parties
with respect to the subject matter hereof and may not be changed orally. This
Escrow Agreement shall be governed and construed pursuant to the laws of the
state of New York, without giving effect to any principles of conflict of laws.
(d) This Agreement shall inure to the benefit of and be binding upon the
parties hereto, and their successors and permitted assigns. Nothing in this
Agreement, express or implied, is
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intended to confer on any person other than the parties hereto, and their
respective successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
(e) This Agreement shall not be assignable by the parties without the prior
written consent of the other parties, except that at or prior to the Closing
Buyer and/or the Surviving Corporation may assign their rights and delegate
their duties under this Agreement to a subsidiary entity or to any affiliate and
may assign their rights under this Agreement to their lenders for collateral
security purposes, and after the Closing, Buyer may assign their respective
rights and delegate their respective duties under this Agreement to any third
party.
(f) The headings contained in this Agreement are for convenience of
reference only and shall not affect the meaning or interpretation of this
Agreement.
(g) This Agreement may be executed in multiple counterparts, each of which
shall be deemed to be an original, and all such counterparts shall constitute
but one instrument.
(h) The invalidity of any provision of this Agreement or a portion of a
provision shall not affect the validity of any other provision of this Agreement
or the remaining portion of the applicable provision.
*******
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the date and year first above written.
BESICORP LTD. (FEIN: _______)
By: ________________________________________
Name:
Office:
BESICORP GROUP INC. (FEIN: _______)
By: ________________________________________
Name:
Office:
BGI ACQUISITION CORP. (FEIN: _______)
By: ________________________________________
Name:
Office:
BGI ACQUISITION LLC (FEIN: _______)
By: ________________________________________
Name:
Office:
XXXXXXXX XXXX XXXXXXXX XXXXXX
XXXXXXXX & XXXXX P.C.
By: ________________________________________
Name:
Office:
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Exhibit A
FORM OF BUYER'S DISBURSEMENT NOTICE
CERTIFICATE
This certificate is being issued pursuant to Section 3(b) of that certain
Escrow Agreement dated as of November __, 1998 by and among Besicorp Group Inc.,
a New York corporation' Besicorp Ltd., a New York corporation; BGI Acquisition
Corporation, a New York corporation; BGI Acquisition LLC, a Wyoming limited
liability company; and Xxxxxxxx Brog Leinwand Xxxxxx Xxxxxxxx & Xxxxx P.C. (the
"Escrow Agreement"). Terms not defined in this certificate shall have the
meanings set forth in the Escrow Agreement. The undersigned, a duly authorized
officer of [Besicorp Group Inc./ BGI Acquisition LLC], hereby certifies that:
1. Buyer is requesting the Escrow Agent release the amount of $_______ of
the Escrow Fund.
2. Buyer is requesting the amount in Paragraph 1 above on account of
[brief description of the claim] (the "Claim");
3. Attached hereto is documentation which supports the amount of the Claim;
4. Attached hereto is the Notice of Claim with respect to the Claim, to the
extent the Filing of a Notice of Claim was required under the Indemnification
Agreement; and
5. A copy of this Certificate, including all attachments, has been sent
to BL in the manner set forth in the Indemnification Agreement.
IN WITNESS WHEREOF, Buyer has executed and delivered this Certificate as of
the ________day of ___________ ________.
[BESICORP GROUP INC./ BGI ACQUISITION LLC]
By: _____________________________________
By:
Its:
Exhibit B
FORM OF JOINT DISBURSEMENT NOTICE
CERTIFICATE
This certificate is being issued pursuant to Section 3[(b/c)] of that
certain Escrow Agreement dated as of November __, 1998 by and among Besicorp
Group Inc., a New York corporation; Besicorp Ltd., a New York corporation; BGI
Acquisition Corporation, a New York corporation; BGI Acquisition LLC, a Wyoming
limited liability company; and Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx
P.C. (the "Escrow Agreement"). Terms not defined in this certificate shall have
the meanings set forth in the Escrow Agreement. The undersigned, a duly
authorized officer of [Besicorp Group Inc./ BGI Acquisition LLC] and a duly
certified officer of BL each hereby certify that:
1. On __________, ___ _______ ___________________ filed a certificate (a
copy of which was attached to this certificate with the Escrow Agent) (the
"Disputed Certificate") with the Escrow Agent and the other parties required
under Section 3[(b/c)] of the Escrow Agreement.
2. The other party receiving the Disputed Certificate disputed an element
of the Disputed Certificate in accordance with the above provision of the Escrow
Agreement.
3. The parties hereto are now jointly requesting the Escrow Agent release
the amount of $_______ of the Escrow Fund to _____________ as the agreed-to
payment with respect to the Disputed Certificate.
IN WITNESS WHEREOF, Buyer and BL have executed and delivered this
Certificate as of the ________day of ___________ ________.
[BESICORP GROUP INC./ BGI ACQUISITION LLC]
By: _____________________________________
By:
Its:
BESICORP LTD.
By: _____________________________________
By:
Its:
Exhibit C
FORM OF BL'S DISBURSEMENT NOTICE
CERTIFICATE
This certificate is being issued pursuant to Section 3(c) of that certain
Escrow Agreement dated as of November __, 1998 by and among Besicorp Group Inc.,
a New York corporation; Besicorp Ltd., a New York corporation; BGI Acquisition
Corporation, a New York corporation; BGI Acquisition LLC, a Wyoming limited
liability company; and Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx P.C. (the
"Escrow Agreement"). Terms not defined in this certificate shall have the
meanings set forth in the Escrow Agreement. The undersigned, a duly authorized
officer of BL, hereby certifies that:
1. BL is requesting the Escrow Agent release the amount of $_______ of the
Escrow Fund on account of Litigation Costs paid by BL.
2. Buyer is requesting the amount in Paragraph 1 above on account of [brief
description of the claim] (the "Claim").
3. Attached hereto is documentation which supports the amount of the Claim.
4. BL has previously claimed the amount of $_______ with respect to the
matter for which the Litigation Costs the subject of this Certificate are being
paid.
5. The amounts being requested pursuant to this Certificate have been used
in a manner reasonably believed by BL to bring the matter for which the
Litigation Costs are being spent on to conclusion in an economically efficient
manner and as quickly as reasonably possible.
6. A copy of this Certificate, including all attachments, has been sent to
Buyer in the manner set forth in the Indemnification Agreement.
IN WITNESS WHEREOF, BL has executed and delivered this Certificate as of
the ________day of ___________ ________.
BESICORP LTD.
By: _____________________________________
By:
Its:
