AMENDMENT NO. 4
TO AGREEMENT AND PLAN OF
REORGANIZATION AND MERGER
BY AND AMONG U.S. ENERGY SYSTEMS, INC.,
USE ACQUISITION CORP. AND
XXXXXX ALTERNATIVE POWER CORPORATION
This Amendment No. 4 to Agreement and Plan of Reorganization and Merger
(the "Amendment") is made as of the 23rd day of February, 2001 by and among U.S.
Energy Systems, Inc. ("Parent"), USE Acquisition Corp. ("Merger Sub"), and
Xxxxxx Alternative Power Corporation (the "Company"). Unless indicated
otherwise, capitalized terms shall have the same meanings herein as they have in
the Merger Agreement (as defined below).
W I T N E S S E T H
WHEREAS, Parent, Merger Sub and the Company previously entered into (i)
that certain Agreement and Plan of Reorganization and Merger dated as of
November 28, 2000 (ii) that certain Amendment No. 1 to the Agreement dated as of
the 11th day of December, 2000, (iii) that certain Amendment No. 2 to the
Agreement dated as of the 19th day of December, 2000 and (iv) that certain
Amendment No. 3 to the Agreement dated as of the 19th day of January, 2001
(collectively the "Merger Agreement"); and
WHEREAS, the Parent, Merger Sub and the Company now wish to amend the
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:
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1. The third sentence of Subsection D of Section 2.05(b) of the Merger
Agreement is hereby amended by deleting the existing sentence in its entirety
and inserting in its place the following sentence:
The Outstanding Construction Cost shall be determined by SCS Engineers Inc.
(the "Engineer").
2. Item 7, clause 3 of Schedule 3.05 to the Merger Agreement is hereby
amended by changing "(100 shares)" to "(5 shares)."
3. The first sentence of Section 3.27(c) of the Merger Agreement is hereby
amended by deleting the existing sentence in its entirety and inserting in its
place the following sentence:
The amounts currently on deposit in the Illinois Account (as defined in the
Note Purchase Agreement) established pursuant to that certain Indenture of Trust
and Security Agreement dated as of November 30, 1999 among the Issuers named
therein and The Chase Manhattan Bank, as Trustee, for the benefit of, inter
alia, the holders of the Company's Senior Secured Notes are reasonably expected
to be sufficient, after giving effect to reasonably projected earnings thereon,
to fund the Illinois Reimbursement Obligations (as defined in the Note Purchase
Agreement) that have accrued through the Date of this Agreement.
4. Clause (e)(iv) of Section 5.01 of the Merger Agreement is hereby amended
by deleting the existing clause in its entirety and inserting in its place the
following clause:
make or authorize any capital expenditure, other than capital expenditures
that are not, in the aggregate, in excess of $100,000 for the Company and the
Company Subsidiaries taken as a whole (provided, however, that Parent agrees to
approve any capital expenditures included in the construction budgets and
contingency amounts approved by the requisite holders of the Company's Senior
Secured Notes (Xxxx Xxxxxxx Life Insurance Company and the other holders of the
Company's Senior Secured Notes are referred to herein as "Xxxxxxx") under The
Note Purchase Agreement, the Indenture of Trust and Security Agreement and the
related documents in effect as of November 28, 2000) ; or
5. Section (b) of Annex 1 to the Merger Agreement is hereby amended by
deleting the existing reference for Xxxxxxx in its entirety and inserting in its
place the following: Xxxxxxx _______________________________ Section 5.01(e)
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6. Schedule 3.21 to the Merger Agreement is hereby amended by deleting (a)
the reference to the $575,000 Promissory Note payable by Lafayette Energy
Partners, L.P. to O'Brien Environmental Energy, Inc. under the caption
"Lafayette Project;" (b) the references to the Non-Recourse Notes and Collateral
Assignments in Items D.7 and D.8 under each of the following captions:
"Lafayette Project" and "Xxxxxx Project;" and (c) the references to the
Financial Services Agreement with AJG Financial Services, Inc. and the
Supplemental Agreement with AJG Financial Services, Inc. in Items D.8. and D.9.
under each of the following captions: "Avon (122nd St.) Project," "Devonshire
(Dolton/138th St.) Project," and "Riverside (Willow Ranch) Project.".
7. Schedule 6.07 to the Merger Agreement is hereby amended by deleting the
second page thereof.
8. Exhibit 6.15 to the Merger Agreement is hereby amended by deleting the
existing Exhibit in its entirety and inserting in its place the attached Exhibit
A.
9. Annex 2 to the Merger Agreement is hereby amended by deleting the
existing Exhibit in its entirety and inserting in its place the attached Exhibit
B.
10. Subsection C of Section 2.05(b)(i) of the Merger Agreement is hereby
amended by deleting the existing subsection in its entirety and inserting in its
place the following subsection:
If the long term debt and current portion of long term debt
(collectively, "Long Term Debt") of the Company reflected on the Effective
Date Balance Sheet is more than $72,829,499 of which no more than
$72,579,499 shall consist of Long Term Debt other than Long Term Debt
incurred under the ABB Loan Agreement to purchase spare parts for equipment
at the sites being operated as a result of the YESCO Transaction (any such
amount by
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which such Long Term Debt is more than $72,829,499 or $72,579,499, as
applicable, being the "Excess Long Term Debt") then the Merger
Consideration shall be reduced in accordance with Section 2.05 (b)(ii)
below by an amount equal to the Excess Long Term Debt
11. Except as amended hereby, the Merger Agreement is as hereby ratified
and confirmed and, as so amended, remains in full force and effect on the date
hereof.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Agreement to be executed as of the date first written above.
U.S. ENERGY SYSTEMS, INC.
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: President and
Chief Operating Officer
USE ACQUISITION CORP.
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: President
XXXXXX ALTERNATIVE POWER CORPORATION
By: /s/ XXXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: President
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