Exhibit 10.96
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of the 30th day of
September, 2004 among AJG FINANCIAL SERVICES, INC., a Delaware corporation
("AJG"), U.S. ENERGY BIOGAS CORP., a Delaware corporation (the "Company").
RECITALS
WHEREAS, the Company has issued to AJG a Second Amended and Restated
Subordinate Note dated April 8, 2004 in the original principal amount $5,728,883
(the "Subordinated Note");
WHEREAS, the Company desires to acquire from AJG and AJG desires to
transfer to the Company the Subordinated Note for a cash payment of $3,000,000;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Purchase and Sale of Subordinated Note; Closing.
1.1. Purchase and Sale of Subordinated Note. On the terms and subject to
the conditions of this Agreement, the Company hereby agrees to purchase from
AJG, and AJG hereby agrees to sell and assign to the Company, the Subordinated
Note and all accrued and unpaid interest thereon for the purchase price set
forth in Section 1.2.
1.2. Purchase Price. The aggregate purchase price for the Subordinated
Note will be equal to $3,000,000 (the "Purchase Price").
1.3. Manner of Payment of Purchase Price. The Purchase Price will be paid
or satisfied at the Closing (as defined below), by means of a wire transfer of
immediately available funds to:
Xxxxxx Trust and Savings Bank
Chicago, Illinois
ABA 000000000
Account Name: AJG Financial Services, Inc.
Account Number: 000-000-0
1.4. Time and Place of Closing. The transactions contemplated by this
Agreement will be consummated (the "Closing") at the offices of AJG on September
30, 2004 or as promptly as practicable after satisfaction or waiver of each of
the conditions set forth in Section 4. The date on which the Closing occurs is
referred to in this Agreement as the "Closing Date".
1.5. Further Assurances. AJG from time to time after the Closing at the
request of the Company and without further consideration shall execute and
deliver such further instruments and
take such other further action as the Company may reasonably require to make
effective each provision of this Agreement.
2. Representations, Warranties and Covenants of AJG. AJG hereby represents,
warrants and covenants to the Company that:
2.1. Corporate Existence; Compliance with Law. AJG (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware; (ii) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where the failure to be so
qualified would have a material and adverse effect upon the business of AJG;
(iii) has the requisite corporate power and authority and the legal right to
own, pledge, mortgage or otherwise encumber and operate its properties, and to
conduct its business as currently conducted; and (iv) is in compliance with its
Certificate of Incorporation and By-laws.
2.2. Corporate Power; Authorization; Enforceable Obligations. The
execution, delivery and performance by AJG of this Agreement and the Assignment
Agreement attached hereto as Exhibit A (the "Assignment Agreement"), (i) are
within its corporate power; (ii) have been duly authorized by all necessary or
proper corporate action; (iii) are not in contravention of any provision of its
Certificate of Incorporation or By-laws; (iv) will not violate any law or
regulation, or any order or decree of any court or governmental instrumentality;
and (v) do not require any consent, approval, authorization or permission of, or
filing with or notification to, any governmental or regulatory authority,
domestic or foreign, or any other person, except as has been obtained and is in
full force and effect or will have been obtained at or prior to the Closing.
This Agreement constitutes a legal, valid and binding obligation of AJG,
enforceable against it in accordance with its terms subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws of general application affecting the rights and remedies of creditors and
by general principles of equity.
2.3. Title to the Subordinated Note. On the date hereof and as of the
Closing Date, AJG has good title to the Subordinated Note, free and clear of all
liens, security interests, options, claims and encumbrances of each and every
kind and nature and has not sold or pledged the Subordinated Note or any
interest therein to any other party.
2.4. Securities Laws. In reliance on the investment representations
contained in Section 3, the offer, sale and delivery of the Subordinated Note is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Act"), and any state securities laws.
3. Representations and Warranties of the Company. The Company hereby represents,
warrants and covenants to AJG that:
3.1 Corporate Representations.
(a) The Company (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware; (ii) is
duly qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where the failure to be so
-2-
qualified would have a material and adverse effect upon the business of the
Company; (iii) has the requisite corporate power and authority and the legal
right to own, pledge, mortgage or otherwise encumber and operate its properties,
and to conduct its business as currently conducted; and (iv) is in compliance
with its Certificate of Incorporation and By-laws.
(b) The execution, delivery and performance by the Company of this
Agreement and the Assignment Agreement, (i) are within its corporate power; (ii)
have been duly authorized by all necessary or proper corporate action; (iii) are
not in contravention of any provision of its Certificate of Incorporation or
By-laws; (iv) will not violate any law or regulation, or any order or decree of
any court or governmental instrumentality; and (v) do not require any consent,
approval, authorization or permission of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign, or any other person,
except as has been obtained and is in full force and effect or will have been
obtained at or prior to the Closing. This Agreement constitutes a legal, valid
and binding obligation of the Company, enforceable against it in accordance with
its terms subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws of general application
affecting the rights and remedies of creditors and by general principles of
equity.
3.2 Securities Representations.
(a) The Company has such knowledge and experience in business,
finance and securities generally, and in investments (based on actual
participation) in particular, is capable of evaluating (and has evaluated) the
merits and risks of an investment in the Subordinated Note and of making an
informed investment decision, and has been given adequate opportunity to obtain
information and documents relating to the purchase of the Subordinated Note and
to ask questions and receive answers about AJG and all questions asked have been
satisfactorily answered.
(b) This Agreement is made with the Company in reliance upon the
Company's representation to AJG, which by the Company's execution of this
Agreement the Company hereby confirms, that the Subordinated Note will be
acquired for investment for the Company's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and that the Company has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, the Company further represents that the Company does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to the Subordinated Note.
4. Conditions Precedent.
4.1. Documents to be Received by the Company. The obligation of the
Company to complete the Closing shall be subject to receipt (or waiver) by the
Company of each of the following, each in form and substance satisfactory to the
Company:
(a) Executed copy of the Assignment Agreement;
-3-
(b) Funding approval by each of the shareholders of the Company; and
(c) The original Subordinated Note.
4.2. Documents to be Delivered by the Company. The obligation of AJG to
complete the Closing shall be subject to receipt (or waiver) by AJG of each of
the following, each in form and substance satisfactory to AJG:
(a) Executed copy of the Assignment Agreement;
(b) The Purchase Price in the manner set forth in Section 1.2.
5. Miscellaneous.
5.1. Cooperation. AJG and the Company shall cooperate with each other and
use all reasonable efforts to take all actions necessary or appropriate to
satisfy the conditions to Closing set forth in Section 4.1 and 4.2.
5.2. Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties.
5.3. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to principles
of conflicts of law. The parties consent and submit to the jurisdiction of the
federal and state courts located within the city of Chicago and State of
Illinois, and further agree that any such action or proceeding brought by either
party to enforce any right, assert any claim, or obtain any relief whatsoever in
connection with this Agreement shall be brought by such party exclusively in the
federal or state courts located within Chicago, Illinois.
5.4. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.5. Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
5.6. Notices. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified, or by telecopy with a
confirmation of receipt, or upon deposit with a reputable overnight courier or
with the United States Post Office, by registered or certified mail, postage
prepaid and addressed to the party to be notified at the address indicated for
such party on the signature page hereof, or at such other address as such party
may designate by ten (10) days advance written notice to the other parties.
-4-
5.7. Expenses Each party shall bear its own expenses in connection with
the transactions contemplated by this Agreement.
5.8. Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived only with the written
consent of AJG and the Company. Any amendment or waiver effected in accordance
with this Section shall be binding upon each holder of any securities purchased
under this Agreement at the time outstanding (including securities into which
such securities are convertible), each future holder of all such securities, and
AJG.
5.9. Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision was so excluded and shall be enforceable in accordance with its terms.
5.10. Waiver of Trial by Jury. AJG AND THE COMPANY HEREBY WAIVE TRIAL BY
JURY AND ANY RIGHT TO SEEK PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY ACTION,
SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATED TO THIS AGREEMENT AND/OR ANY ACT OR OMISSION WHICH A PARTY ASSERTS
RESULTING IN ANY LIABILITY TO AJG, THE COMPANY OR THEIR RESPECTIVE OFFICERS,
DIRECTORS, STOCKHOLDERS, PARTNERS, EMPLOYEES OR AGENTS, TO THE FULL EXTENT
PERMITTED BY LAW.
5.11. Entire Agreement. This Agreement, the Assignment Agreement and the
other documents delivered pursuant hereto and thereto constitute the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
-5-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Address: Gallagher Center AJG FINANCIAL SERVICES, INC.
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, Esq.
Assistant General Counsel
Fax: 000-000-0000
By: ____________________________________
Name:
Title:
Address:
00 Xxxxx Xxxx X.X. ENERGY BIOGAS CORP.
Xxxx, XX 00000
Attn: President
Fax: 000-000-0000
By: ____________________________________
Name:
Title:
-6-
EXHIBIT A
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT ("Assignment") is made this 30th day of
September, 2004 by and among AJG FINANCIAL SERVICES, INC., a Delaware
corporation ("AJG"), and U.S. ENERGY BIOGAS CORP., a Delaware corporation (the
"Company").
WHEREAS, the Company issued a Second Amended and Restated Subordinated
Note dated April 8, 2004 (the "Subordinated Note") to AJG; and
WHEREAS, pursuant to a Purchase Agreement dated September 30, 2004 between
AJG and the Company (the "Purchase Agreement"), AJG desires to sell and assign
the Subordinated Note to the Company and the Company desires to purchase the
Subordinated Note.
NOW THERFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows;
1. Any capitalized terms used herein and not otherwise defined, shall have
the meaning ascribed thereto in the Purchase Agreement.
2. AJG hereby sells, assigns and transfers to the Company, its successors
and assigns, all right, title and interest of AJG in, to and under the
Subordinated Note.
3. The Company accepts assignment of the Subordinated Note and agrees to
pay or has paid the Purchase Price to AJG.
4. The parties agree to duly execute and deliver such further instruments
or documents or take such further action as the other may request in writing in
order to obtain the full benefit of this Assignment and the rights granted
herein.
5. This Assignment shall be governed by and construed in accordance with
the laws of the state of Delaware.
6. This assignment shall be binding upon and inure to the benefit of each
party hereto, its successors and permitted assigns. This assignment is not
intended to create any third-party beneficiary rights in any person not a party
to this Assignment.
-7-
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
day and year first written above.
AJG FINANCIAL SERVICES, INC.
By:____________________________
Title:_________________________
U.S. ENERGY BIOGAS CORP.
By:____________________________
Title:_________________________
-8-
