EXHIBIT 10.2
FORM OF AMENDMENT TO PURCHASE AGREEMENT
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AMENDMENT made as of the 10th day of July, 2006 (the "Amendment") to
the Purchase Agreement made as of November 9, 2005 by and between THE SAGEMARK
COMPANIES LTD., a New York corporation with offices at 1285 Avenue of the
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Sagemark") and TRIDENT
ADVISORS, INC., a Texas corporation with offices at 000 Xxxxxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxx 00000 ("Trident Advisors"), such agreement being hereafter
referred to as the "Agreement" .
W I T N E S S E T H :
1. Incorporation by Reference. Reference is made to the Agreement, the
terms of which are incorporated herein by reference thereto. All capitalized
terms which are used, but not defined herein, shall have the meanings ascribed
to them in the Agreement.
2. The Closing. The Closing shall take place on July 11, 2006 (the
"Closing Date").
3. Regulatory Approval. Trident Advisors hereby represents and warrants to
Sagemark that it has obtained the Regulatory Approval.
4. Book Value. Trident Advisors hereby represents and warrants to Sagemark
that the Book Value on the Closing Date will be $2,570,000.
5. Purchase Price Payment Terms.
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(a) Paragraph 1.2(b)(iv) of the Agreement is hereby amended to
read as follows:
"(iv) Mandatory prepayments of principal and accrued interest
on or before the last day of each of the four years of the term of the Secured
Note in an amount equal to the greater of $486,250, or 75% of the amount of all
cash distributions and the mutually agreed upon cash value of all distributions
of property received by Trident Advisors from Trident with respect to the
Limited Partnership Interest in each of such years (the "Distribution
Entitlement")."
(b) The terms of the Secured Note will reflect the aforementioned
modification.
6. Escrow.
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(a) On the Closing Date, the following will be placed or deposited
in escrow with Xxxxxx X. Xxxxxxx, Esq. (the "Escrow Agent"):
(i) All of the documents to be delivered by Sagemark at
the Closing pursuant to Paragraph 8 of the Agreement;
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(ii) all of the documents to be delivered by Trident
Advisors at the Closing pursuant to Paragraph 9 of
the Agreement; and
(iii) the $625,000 cash portion of the Purchase Price
payable by Trident Advisors on the Closing Date (the
"Escrow Funds").
(b) The Escrow Agent will, without any further notice or action of
any kind whatsoever, release to Sagemark and Trident Advisors, as applicable,
all of the documents delivered to it pursuant to Sections 6(a)(i) and 6(a)(ii)
hereof and will release to Sagemark the Escrow Funds on July 31, 2006 unless,
prior to such date, Trident Advisors delivers to the Escrow Agent (or causes to
be delivered), the sum of $2,570,000 (the "Cash Purchase Price") from a
replacement purchaser of the Limited Partnership Interest selected by Trident
Advisors (the "Substitute Purchaser"), by wire transfer to the Escrow Agent's
special attorneys escrow account as hereinafter provided, together with the
Regulatory Approval with respect to such purchaser and all of the documents
required to be delivered at Closing under Paragraph 9 of the Agreement executed
by the Substitute Purchaser. If the Escrow Agent receives the aforementioned
documents and the Cash Purchase Price from the Substitute Purchaser prior to
July 31, 2006, the Escrow Agent will (i) return Trident Advisors' Closing
documents and the Escrow Funds to it, (ii) release the Cash Purchase Price and
the Substitute Purchaser's Closing documents to Sagemark and return to Sagemark
all of the Closing documents referred to in Section 6(a)(i) hereof, and (iii)
deliver to the Substitute Purchaser, within three (3) business days thereafter,
the documents to be delivered by Sagemark at the Closing as set forth in
Paragraph 8 of the Agreement issued to the Substitute Purchaser in lieu of such
documents previously issued to Trident Advisors.
(c) The Escrow Agent will serve in such capacity without
compensation therefor. The Escrow Agent's duties and obligations under this
Amendment shall be determined solely by the express provisions of this Amendment
and it shall have no other duties and no other duties shall be implied. For
greater certainty, the Escrow Agent is not charged with any duties or
responsibilities with respect to the Agreement. The Escrow Agent shall not be
required to notify or obtain the consent, approval, authorization, or order of,
any court or governmental body to perform its obligations under this Amendment
nor shall it be held liable to any party hereto in any manner whatsoever for
having carried out instructions it has received in accordance with this
Amendment or complying with its obligations hereunder.
(d) In the event the Escrow Agent shall be uncertain as to any of
its duties or rights hereunder or in the event of any disagreement among the
parties hereto or the presentation to the Escrow Agent of any adverse claim or
demand by Trident Advisors or Sagemark in connection with the disbursement of
the Escrow Funds, the Escrow Agent may, at its option after providing written
notice to Trident Advisors and Sagemark of such disagreement or adverse claim or
demand, refuse to comply with any such claim or demand during the continuance of
such disagreement or adverse claim or demand and may refrain from disbursing any
amount from the Escrow Funds, and in so doing, the Escrow Agent shall not become
liable to Trident Advisors or Sagemark due to its failure to comply with such
adverse claim or demand. In the event of any such disagreement or adverse claim
or demand, the Escrow Agent shall be entitled, at its option and without
liability, to file a lawsuit in interpleader and obtain a court order requiring
the parties to interplead and litigate a resolution of any such disagreement or
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adverse claim or demand. In the event such interpleader lawsuit is commenced,
the Escrow Agent shall be fully released and discharged from all obligations to
further perform any and all duties or obligations imposed upon it in relation to
the disputed amount except as may be required by a court order in such lawsuit.
Trident Advisors and Sagemark each jointly and severally agree to reimburse the
Escrow Agent for all costs, expenses, and reasonable attorney's fees expended or
incurred by the Escrow Agent in connection with any such lawsuit.
(e) If Trident Advisors or Sagemark or any other person obtains a
judgment of a court of competent jurisdiction directing the Escrow Agent to
release the Escrow Funds, or any part thereof, in respect of which no right of
appeal lies or in respect of which the time for appeal therefrom has expired,
and delivers a copy of such judgment or order to the Escrow Agent, the Escrow
Agent shall promptly thereafter release the Escrow Funds in accordance with the
terms of such judgment or order and is hereby irrevocably authorized to do so by
Trident Advisors and Sagemark. Trident Advisors or Sagemark, as applicable,
agree to provide a copy of any such judgment to the other provided that the
failure to provide such copy will not affect any of the rights or obligations of
the Escrow Agent under this Agreement.
(f) The Escrow Agent shall not be liable to Trident Advisors or
Sagemark by reason of an error of judgment or for any act done or step taken or
omitted by it in good faith or for any mistake of fact or law or for anything
which it may do or refrain from doing in connection with this Amendment, except
for any liability to Trident Advisors or Sagemark caused by or arising out of
the Escrow Agent's judicially determined gross negligence or willful misconduct.
In no event, however, will the Escrow Agent be liable to Trident Advisors or
Sagemark for any indirect, special, consequential or punitive damages.
(g) The Escrow Agent shall be entitled to rely on, without any
independent inquiry, and shall be protected in acting in reliance upon, any
instructions or directions furnished to it in writing by Trident Advisors or
Sagemark pursuant to any provisions of this Amendment and shall be entitled to
treat as genuine, any letter, paper, or other document furnished to it and
believed by it to be genuine and to have been signed and presented by the proper
party or parties without any independent inquiry.
(h) Trident Advisors and Sagemark each hereby release and forever
discharge the Escrow Agent from any and all claims, demands, costs (including
legal fees and disbursements), damages, liabilities, obligations, actions or
causes of action incurred, sustained or made by or against any party hereto and
hereby jointly and severally agree to indemnify, defend, and hold the Escrow
Agent harmless from and against all losses, damages, costs, charges,
liabilities, and expenses, including all costs of litigation, investigation and
legal fees incurred by the Escrow Agent which arise directly or indirectly out
of its entering into this Amendment or its conduct as Escrow Agent pursuant to
this Amendment (the "Losses"), except with respect to any Losses which are
caused by the Escrow Agent's judicially determined willful misconduct or gross
negligence. The Escrow Agent may consult with counsel of its choice and shall
have full and complete authorization and protection for any action taken or
suffered by it hereunder in good faith and in accordance with the opinion of
such counsel.
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(i) The Escrow Agent reserves the right to resign as the Escrow
Agent at any time upon five (5) business days notice thereof to Trident Advisors
and Sagemark. Upon any such notice of resignation by the Escrow Agent, Trident
Advisors and Sagemark shall appoint a replacement escrow agent within such five
(5) day period commencing on the date of any such notice of resignation. The
Escrow Agent will deliver the Escrow Funds to such replacement escrow agent upon
its receipt of notice from Trident Advisors and Sagemark of the appointment of
such replacement escrow agent. If no such replacement escrow agent has been
appointed within such five (5) day period, the Escrow Agent may, at the expense
of Trident Advisors and Sagemark, petition any court of competent jurisdiction
for the appointment of a successor escrow agent. Upon any such appointment of a
successor escrow agent, the escrow agent shall forward the Escrow Funds and all
documents held by it in escrow pursuant to the terms of this Amendment to such
successor escrow agent.
(j) Wire transfers of payments to the Escrow Agent under this
Amendment shall be made to:
[Redacted]
(k) The provisions of subparagraphs (c) through (h) of this
Section 6 will survive the expiration or termination of the Agreement or this
Amendment.
7. No Other Amendment. Except as set forth herein, no other term or
provision of the Agreement is amended hereby and the Agreement will remain in
full force and effect in accordance with its terms. In the event of any
inconsistency between the terms hereof and the terms of the Agreement, the terms
hereof shall govern and control.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals as of the day and year first above written.
ATTEST: THE SAGEMARK COMPANIES LTD.
/s/ XXXXXX X. XXXXXXX By: /s/ XXXXXXXX X. XXXXXXX
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Xxxxxxxx X. Xxxxxxx, President and
Chief Executive Officer
Xxxxxx X. Xxxxxxx
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Print Name
ATTEST: TRIDENT ADVISORS, INC.
By: /s/ XXXXX XXXXXX
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Xxxxx XxXxxx, President
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Print Name
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