Exhibit 10.2
ESCROW AGREEMENT
----------------
ESCROW AGREEMENT dated as of the 22nd day of March, 1999, by
and among:
BESICORP GROUP INC., a New York corporation, having an office
at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Besicorp", and
following the Merger, the "Surviving Corporation"); and
BESICORP LTD., a New York corporation, having an office at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("BL"); and
BGI ACQUISITION CORPORATION, a New York corporation, having an
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(the "Purchaser" and following the Merger, the "Surviving
Corporation"); and
BGI ACQUISITION LLC, a Wyoming limited liability company,
having an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Parent"); and
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & GLUCK P.C., having an
office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (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
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
3
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
5
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 ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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,
6
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
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(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: ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ P.C., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: A. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 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
7
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: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Office: Senior Vice President
BESICORP GROUP INC. (FEIN: _______)
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Office: Senior Vice President
BGI ACQUISITION CORP. (FEIN: _______)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------
Name:
Office:
BGI ACQUISITION LLC (FEIN: _______)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------
Name:
Office:
▇▇▇▇▇▇▇▇ BROG LEINWAND ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ P.C.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Office:
9
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 ▇▇▇▇▇▇▇▇ Brog Leinwand ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
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 ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
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 ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
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:
