AMENDMENT NO. 2 TO ESCROW AGREEMENT
THIS AMENDMENT NO. 2 to the Escrow Agreement is made as of the
1st day of November, 2002 (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 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, 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 the date twenty one months
following the Closing Date.
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
-----------------
Name:Xxxx X. Xxxxxxxxx
Title: Vice President & General Counsel
For: AJG Finacial Services, Inc.
CINERGY ENERGY SOLUTIONS, INC.:
By:/s/ Xxxxx Xxxxxxxxx
---------------
Name: Xxxxx Xxxxxxxxx
Title:Vice President
U.S. ENERGY SYSTEMS, INC.:
By: /s/ Xxxxx Xxxxxxx
--------------------
Name: Xxxxx Xxxxxxx
Title:Chief Executive Officer
U.S. ENERGY BIOGAS CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
----------------
Name:Xxxxx XXxxxxxxxx
Title: Treasurer
ESCROW AGENT:
XXXXXXXXXX XXXXXXX SYRACUSE &
HIRSCHTRITT LLP
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------
Xxxxxxx Xxxxxxxxx
A Member of the Firm
