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RIGHTS ASSIGNMENT AGREEMENT
RIGHTS ASSIGNMENT AGREEMENT dated as of March 31, 1993
("Agreement") by and between O'Brien Environmental Energy, Inc., a
Delaware corporation ("Seller') having its principal executive
offices at 225 South Eighth Street, Philadelphia, Pennsylvania
19106, and BRADLEY RESOURCES COMPANY, a partnership with its
principal place of business at P.0. Box 761, Southport, Connecticut
06490 ("Purchaser").
WITNESSETH:
WHEREAS, Seller is the owner of all of the issued and
outstanding common stock of O'Brien (Newark) Cogeneration, Inc., a
Delaware corporation (the "Company"); and
WHEREAS, Purchaser desires to purchase and Seller desires to
sell all right, title and interest in certain of Seller's Rights
(as defined below), upon the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements hereinafter contained, the
receipt and legal sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, Seller and Purchaser agree as
follows:
1. Agreement to Deliver Rights. Seller hereby covenants and
agrees with Purchaser that immediately upon Seller's receipt
thereof it will pay to Purchaser via transfer of immediately
available funds an amount equal to 12.5% of (i) all dividends (in
cash, in kind or otherwise) or other distributions made by the
Company to Seller, including all proceeds (in cash, in kind or
otherwise) of any liquidation or dissolution of the Company; and
(ii) except as otherwise agreed, all proceeds (in cash, in kind or
otherwise) received by Seller from any sale of the issued and
outstanding stock of the Company; and (iii) any other payments made
by the Company to Seller in its capacity as a stockholder of the
Company; provided, however, that to the extent (and only to the
extent) any such proceeds, distributions or other payments are
required to be delivered to National Westminster Bank (the "Bank")
pursuant to the Pledge and Security Agreement dated as of July 13,
1988 between the Bank and the Company (the "Pledge Agreement"), or
to any other lender who has refinanced the loan to the Company made
by the Bank, such 12.5% shall not apply to such amounts and Seller
shall not have any obligation to pay Purchaser based on such
amounts actually paid or transferred to the Bank (collectively,
"Rights" or "Purchased Assets"). Seller hereby sells, assigns,
transfers and conveys to Purchaser good title to all of the
Purchased Assets free and clear of all claims, liens, charges and
encumbrances created or permitted by Seller. Seller agrees that
from and after the date of this Agreement it will not cause or
permit the Company to directly or indirectly issue any stock or
other Equity Interests.
2. Purchase Price.
Purchase Price; Method of Payment. The purchase price
(the "Purchase Price") payable by Purchaser for the Purchased
Assets shall be SIX MILLION TWO HUNDRED AND FIFTY THOUSAND DOLLARS
($6,250,000). The Purchase Price has been paid by Purchaser at the
Closing by delivery to Seller of a promissory note in the amount of
the Purchase Price (the "Note').
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3. Closing. The parties acknowledge that simultaneously
with the execution and delivery of this Agreement (a) Seller has
executed and delivered to Purchaser a secretary's certificate to
the effect that resolutions have been duly adopted by Seller's
Board of Directors approving this Agreement and the transactions
contemplated hereby, which resolutions are certified to be in full
force and effect as of the date hereof; and (b) Purchaser has
executed and delivered the Note to Seller.
4. Representations and Warranties of Seller. For the
purpose of inducing Purchaser to enter into this Agreement and to
consummate the transactions contemplated hereby pursuant to the
terms and conditions hereof, Seller represents and warrants to
Purchaser as follows:
(a) Organization of Seller. Seller is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware. Seller has delivered to Purchaser
true and complete copies of the certificate of incorporation and
by-laws of Seller.
(b) Organization of the Company. The Company is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The Company is duly
qualified to do business in the State of New Jersey, and is not
required to be qualified to do business in any other state. Seller
has delivered to Purchaser true and complete copies of the
Certificate of Incorporation and by-laws of the Company.
(c) Power and Authorization; Binding Obligations.
Seller has the power and authority to execute, deliver and perform
this Agreement. The execution, delivery and performance of this
Agreement by Seller has been duly authorized by all necessary
corporate action on the part of Seller. Seller has duly and
validly executed this Agreement. This Agreement is a valid and
binding obligation of Seller enforceable against Seller in
accordance with its terms, except that the enforceability of this
Agreement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors' rights generally and the discretion of the courts in
granting equitable remedies.
(d) Capitalization. Seller owns all of the issued and
outstanding stock of the Company, consisting of 100 shares of
common stock, free and clear of all claims, liens, charges and
encumbrances, except those liens in favor of the Bank pursuant to
the Pledge Agreement. There are no other equity interests issued
by the Company of any kind or nature whatsoever, whether currently
issued, contingent or otherwise (including common stock, warrants,
options, preferred stock and other rights convertible into or
otherwise transferrable into any of the foregoing) ("Equity
Interests").
(e) Title to Purchased Assets. Seller has good and
marketable title to the Purchased Assets, free and clear of all
claims, liens, charges and encumbrances.
(f) Conflicts; Consents. The execution, delivery and
performance of this Agreement will not, with or without notice or
the lapse of time or both, conflict with, constitute a default or
breach under, give any right to any person to terminate or to
accelerate any liability or impose any penalty under or to
otherwise modify, or otherwise violate, any agreement to which
Seller or the Company is a party (including, without limitation,
the documents pursuant to which Seller and/or the Company is a
party with the Bank) or by which Seller or the company or any of
its assets may be bound or under which Seller or the Company has
rights or any Legal Requirement. No consent of, designation,
declaration, registration or other filing with or notification to
any person by or on behalf of Seller or the company is required
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relating to, arising out of or in connection with the execution,
delivery or performance of this Agreement by Seller, except for
such as have been duly made or obtained or which may be required on
a post-closing basis.
(g) No Default. The Company is not in default, nor to
Seller's knowledge is any other party (except Hawker Siddeley Power
Engineering, Inc.) in default, in the performance of, and the
Company is not aware of any circumstances which exist or with
notice or passage of time would constitute a default under, any
material agreement to which the Company is a party, which default
would have a material adverse effect on the business, condition
(financial or other), results of operations or prospects of the
Company.
(h) Financial Statements of Seller; No Material
Liability. The audited consolidated financial statements and
schedules of Seller included in the Annual Report on Form 10-K of
Seller for the period ended June 30, 1992 (copies of which have
previously been delivered to Purchaser) present fairly the
consolidated financial position, results of operations and cash
flows of the Seller and its consolidated subsidiaries at the dates
and for the periods to which they related and have been prepared in
accordance with generally accepted accounting principles applied on
a consistent basis, except as otherwise stated therein. The
unaudited consolidated financial statements and the related notes
included in Quarterly Report on form 10-Q of Seller for the period
ended December 31, 1992 (copies of which have previously been
delivered to Purchaser) present fairly the consolidated financial
position, results of operations and cash flows of Seller and its
consolidated subsidiaries at the dates and for the periods to which
they relate, subject to year-end audit adjustments, and have been
prepared in accordance with generally accepted accounting
principles applied on a consistent basis except as otherwise stated
therein. To Seller's actual knowledge, and except as disclosed to
or known by Purchaser since December 31, 1992, Seller has not
incurred any material liabilities other than in the ordinary course
of business. Since December 31, 1992, there has not been any
material adverse change in the condition (financial or otherwise),
operations results of operations or assets of Seller except as
otherwise disclosed to Purchaser or as Purchaser is otherwise
aware.
(i) Financial Statements of the Company; Absence of
Material Liabilities. Except as may be indicated in any Notes
thereto or audit report thereon, each of the balance sheet, income
statement and statement of cash flow (including any related Notes
thereto) for the Company as of or for the period ended June 30,
1992 were prepared in accordance with GAAP and fairly presents, as
the case may be, the financial position, the results of operations
and cash flow at the dates and for the periods to which they
related except (i) as otherwise stated therein or (ii) as otherwise
disclosed to Purchaser or as Purchaser is otherwise aware. To
Seller's actual knowledge, since the date of such financial
statements (other than as disclosed to or known by Purchaser) the
Company has not incurred any material liabilities other than in the
ordinary course of business. Since December 31, 1992, there has
not been any material adverse change in the condition (financial or
otherwise), operations, results of operations or assets of the
Company except as otherwise disclosed to Purchaser or as Purchaser
is otherwise aware.
(j) Disclosure. No representations or warranties by
Seller in this Agreement contains any untrue statement of a
material fact or omits to state a material fact required to be
stated herein to make the statements contained herein, in light of
the circumstances under which they were made, not misleading. None
of the written information and documents which have been or will be
furnished by Seller or any representatives of Seller to Purchaser
or any of the representatives of Purchaser in connection with the
transactions contemplated by this Agreement contains or will
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contain, as the case may be, any untrue statement of a material
fact, or omits or will omit to state a material fact necessary in
order to make the statements therein not misleading, in each case
in light of the circumstances in which made, except, however, to
the extent that same may be reflected in any written information or
documents provided to Purchaser or as otherwise disclosed to
Purchaser or as Purchaser is otherwise aware (it being confirmed
that purchaser is not relying upon representations or warranties of
the Company or Seller made to third parties contained in documents
other than this Agreement).
5. Representations and Warranties of Purchaser. For the
purpose of inducing Seller to enter into this Agreement and to
consummate the transactions contemplated hereby pursuant to the
terms and conditions hereof, Purchaser represents and warrants to
Seller as follows:
(a) Power and Authorization; Binding Obligations.
Purchaser has the power and authority to execute, deliver and
perform this Agreement (including the execution, delivery and
performance of the Note). The execution, delivery and performance
of this Agreement by Purchaser has been duly authorized by all
necessary partnership action on the part of Purchaser. Purchaser
has duly and validly executed this Agreement. This Agreement is a
valid and binding obligation of Purchaser enforceable against
Purchaser in accordance with its terms, except that the
enforceability of this Agreement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and the discretion of
the courts in granting equitable remedies.
(b) Investigation; Pledge Agreement; Investment Intent.
Purchaser has conducted an investigation of the Purchased Assets
and the operations of the business of Seller and the Company.
Purchaser acknowledges that it has been given access to all
information requested in connection with its review and examination
of the Purchased Assets and the business and affairs of Seller and
the Company, including without limitation financial statements
certified by independent public accountants, and is familiar with
the business affairs of Seller and the Company. Purchaser has
reviewed the Pledge Agreement and acknowledges and agrees that the
Company may only make distributions to its stockholders and the
Seller may retain the proceeds from the sale of the Company's
stock, in accordance with certain enumerated conditions. For the
purpose of conducting these investigations, Purchaser has employed
the services of its own agents, representatives, experts and
consultants. In all matters relating to its decision to acquire
the Purchased Assets, Purchaser is, except for the provisions
herein, relying upon the advice of its own agents, consultants and
other representatives. Purchaser is purchasing the Rights for
investment purposes only and not with a view toward resale or other
distribution.
(c) Conflicts; Consents. The execution, delivery and
performance of this Agreement will not, with or without notice or
the lapse of time or both, conflict with, constitute a default or
breach under, give any right to any person to terminate or to
accelerate any liability or impose any penalty under or to
otherwise modify, or otherwise violate, any agreement to which
Purchaser is a party or by which Purchaser or any of its assets may
be bound or under which Purchaser has rights or any Legal
Requirement. No consent of, designation, declaration, registration
or other filing with or notification to any person by or on behalf
of Purchaser is required relating to, arising out of or in
connection with the execution, delivery or performance of this
Agreement by Purchaser, except for such as have been duly made or
obtained or which may be required on a post-closing basis.
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6. Right of First Refusal.
(a) Right of First Refusal. Purchaser shall not at any
time Transfer (as herein defined) all or any part of its Rights
unless and until it shall obtain the written consent of Seller,
such consent not to be unreasonably withheld or delayed, or it
shall comply in full with the requirements of this Section 6.
(1) Notice. If Purchaser desires to Transfer
all or any part of its Rights, Purchaser shall serve upon Seller
written notice (the "First Notice") of its intention to do so. The
First Notice shall constitute an offer on the part of Purchaser to
sell to Seller all of the Rights owned by Purchaser on the price
and other terms therein described. Such offer shall be accepted in
whole or rejected by Seller by notice to Purchaser (the "Second
Notice") within sixty (60) days of receipt of the First Notice. If
such offer of all of the Rights is accepted by Seller, then the
closing of the purchase and sale shall be effected as provided for
in Section 6. Seller shall not be permitted to purchase less than
all of Purchaser's Rights.
(2) Right to Offer Rights to Non-Parties. If
Purchaser's offer pursuant to the First Notice to sell all of its
Rights shall not have been accepted, then, the Purchaser's offer
shall be deemed to have been rejected and:
A. All restrictions imposed by this
Agreement upon the sale of the Rights of Purchaser shall be
suspended for a period of four (4) months (the "Suspension
Period"), commencing on the earlier of the date of (i) either
the mailing of the Second Notice or (ii) sixty (60) days after
the mailing of the First Notice during which period Purchaser
may sell all of its Rights pursuant to a bona fide
arms'-length sale transaction to a third party purchaser (the
"Proposed Purchaser") provided that (i) the sale to the
Proposed Purchaser is on terms no more favorable to the
Proposed Purchaser than those contained in the First Notice;
and (ii) Seller does not object to the Proposed Purchaser in
accordance with the next sentence. Seller shall have the
right to object to the Proposed Purchaser only if Seller has
a substantial business reason (which shall include the case
wherein a Proposed Purchaser has an interest materially
adverse to that of the Company or Seller) (it being agreed by
Seller that such standard imposes on Seller a significantly
greater burden than a "consent not to be unreasonably
withheld" standard). Seller shall advise Purchase promptly of
its decision and Seller shall, upon Purchaser's request,
advise Purchaser whether it objects to such person prior to
Purchaser commencing and/or finishing its negotiations with
such person.
B. All sales pursuant to a rights sale
contract referred to in clause 2(A) immediately above shall be
made in accordance with applicable federal and state
securities laws and Seller can require Purchaser to furnish to
Seller, at Purchaser's expense, an opinion of counsel,
reasonably acceptable as to the form, substance and issuer
thereof, that such sale is exempt from applicable federal and
state securities registration requirements. All Rights sold
pursuant to this Subsection 6(a) to a Proposed Purchaser shall
continue to be subject to all the terms of this Agreement and
as a precondition to the effectiveness of a sale of the
Rights, the Proposed Purchaser shall execute a writing to such
effect reasonably satisfactory to Seller.
C. If, at the conclusion of the
Suspension Period Purchaser still owns any Rights all
restrictions imposed by this Agreement on the sale of
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Purchaser's Rights shall automatically once again become fully
effective and applicable.
(3) Closing. The closing of any purchase and
sale pursuant to Section 6(a)(1) shall take place at 10:00 a.m. on
a date which is not less than thirty (30) and not more than
forty-five (45) days after the acceptance in whole of the offer by
Seller.
(4) "Transfer" shall mean to directly or
indirectly give, sell, assign, transfer, pledge, hypothecate,
mortgage, create a security interest in, create any other lien on
or in any other manner whatsoever encumber or dispose of any record
or beneficial ownership of all or any part of the Rights, or the
entrance into any contract or other document to do any of the
foregoing provided that Transfers shall not include transfers by
bequest or intestacy permitted by the next sentence.
Notwithstanding the preceding sentence or any other provision
herein to the contrary, any permitted transferee of Purchaser which
is an individual may bequeath or pass by intestacy his interests in
the Rights to any one or more members of his family provided that
such transferee(s) continue to be subject to all the terms of this
Agreement and as a pre-condition to the effectiveness of such
transfer of the Rights, the transferee(s) shall execute a writing
to such effect reasonably satisfactory to Seller. Any attempted
Transfer not made in accordance with the terms hereof shall be void
ab initio.
(5) Timing and Amount of Payments. The future
purchase price provided for in Section 6(a)(1) shall be paid by
Seller to Purchaser by wire transfer of immediately available funds
provided that any amount payable under the Note as of such Closing,
including any interest accrued as of such date, whether or not then
due, shall reduce the amount required to be paid by Seller under
this Section 6(a)(5) and any such amounts so offset under the Note
shall be extinguished.
7. Survival of Agreements; No Implied Representations.
Except as may be expressly provided to the contrary in this
Agreement, all of the representations, warranties, covenants or
agreements of either party contained herein shall survive the
execution, delivery and performance of this Agreement. Seller is
making no representation or warranty whatsoever, express or
implied, except those express representations and warranties made
by Seller in this Agreement. Subject to the foregoing, Purchaser
acquires the Purchased Assets "as is" and "where is". Nothing
outside of the representations and warranties expressly made by
Seller in this Agreement is or shall be deemed to be a
representation or warranty of Seller for any purpose whatsoever.
8. Other Agreements.
(a) Consent Required for Certain Affiliated
Transactions. Seller agrees that it will not enter into, and will
not cause or permit any of its affiliates to enter into, any
agreements or other arrangements with the Company other than those
which are on terms and conditions no less favorable to the Company
than terms and condition which could be obtained pursuant to
arms'-length negotiations with an independent third party.
(b) Tax Sharing Arrangements. Within 30 days after the
date hereof the Company and Seller will enter into a tax sharing
arrangement which will provide that (i) the Company will pay Seller
an amount equal to the share of income, franchise and similar taxes
it would be responsible for as a stand alone corporation provided
that Seller and the Company may agree that the Company is not
obligated to make such payments to Seller and (ii) Seller will pay
to the Company an amount which arises from any reduction in any
taxes of Seller by reason of any losses that the Company may have.
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The Rights shall apply to all payments by the Company to the Seller
pursuant to the tax sharing arrangement.
(c) Indemnification and Related Agreements.
(i) Each party agrees to indemnify, defend and hold
harmless the other party from and against any losses, liabilities,
expenses, including reasonable attorneys fees, damages and other
costs ("Losses") incurred or suffered arising from or in connection
with any of the following actions by such party: (A) any
misrepresentation or breach of a warranty by a party in this
Agreement; or (B) any breach of a covenant by a party in this
Agreement.
(ii) Seller agrees to indemnify, defend and hold
Purchaser harmless from and against any and all Losses incurred or
suffered by Purchaser in its capacity as an owner of the Rights
which shall arise out of or result from:
(A) any of the following related to the
December 1992 fire at the Company's cogeneration facility
(the "Facility"): wrongful death, personal injury or
other claims, actions taken by governmental authorities
and property damage, to the extent any such Losses exceed
property, business interruption and other insurance
proceeds received by the Company in respect thereof; and
(B) claims made by Hawker Siddeley Power
Engineering Inc. (or its subcontractors or suppliers, or
its or its subcontractors' or suppliers' affiliates,
successors or assigns) (collectively "Hawker Siddeley")
related to the design, engineering, procurement or
construction of the Company's Facility.
Any amounts and other consideration which may be paid to the
Company by or on behalf of Hawker Siddeley in connection with the
settlement of, judgment on or other disposition the Company's
claims in the above-described litigation shall not, whether or not
distributed to Seller, be directly or indirectly subject to the
Rights and, accordingly, any such amount received by Seller which
is paid to the Bank to reduce the loan to the Company shall not
directly ar indirectly inure to the benefit of Purchaser, it being
understood that a reduction in such loan will increase the proceeds
available to the Seller from a sale of OBN Stock. Seller shall
advise in writing the Purchaser of the receipt of any such amounts
and of the amount of any such assets included in any distribution
to Seller (and a statement confirming that Purchaser is not
entitled to a portion of such assets pursuant to this Section
8(c)).
(d) Information. Seller agrees to cause the Company to
provide the following information to Purchaser: (i) quarterly
unaudited financial statements of the Company; (ii) information
respecting material transactions respecting the Company; (iii)
information respecting any other material business developments
respecting the Company; and (iv) any other information related to
the Company (including, without limitation, its business and
financial condition) as may reasonably be requested from time to
time by the Purchaser. Purchaser agrees that it shall hold
confidential any information provided to it pursuant to this
Section 8(d) except to the extent such information becomes
generally available to the public other than as a result of
disclosure by Purchaser or becomes available to Purchaser on a
non-confidential basis from a source other than the Company that is
not bound by a confidentiality agreement with the Company.
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9. Miscellaneous.
(a) Definitions. The following shall have the following
meaning when used in this Agreement:
"Legal Requirements" shall mean, as to any person, the
certificate of incorporation and by-laws or other organizational or
governing documents of such person, and any rule, regulation,
ordinance, law, judicial decision, determination, order, including
an injunction, judgment, writ, award or decree, permit, grant,
license or other authorization of an arbitrator, court or other
governmental authority, in each case applicable to or binding upon
such person, including the conduct of their business, or any of
their properties, assets or revenues or to which such person or any
of their properties, assets or revenues are subject.
(b) Entire Agreement; Further Assurances. This
Agreement contains the entire understanding of the parties with
respect to the subject matter hereof.Without limiting the
generality of any provisions of this Agreement, each party agrees
that upon request of any other party, it shall, from time to time,
do any and all other acts and things as may reasonably be required
to carry out its obligations hereunder, to consummate the
transactions contemplated hereby, and to effectuate the purposes
hereof.
(c) Maximization of Value of Rights. Seller shall cause
Company, at all times after May 12, 1994, except as may be
prohibited by any contractual third party obligations or laws, to
distribute quarterly with respect to its stock all cash receipts of
Company not required, as determined by the Board of Directors in
the good faith exercise of its discretion, for Company operations,
including for lease payments, debt service obligations, all third
party obligations, required repair and maintenance of facilities,
capital investment programs in effect, and reasonable reserves, as
specifically identified in resolutions adopted from time to time by
the Company's Board of Directors, for further capital investments
and contingencies, it being the goal of Seller and Purchaser to
make the Rights as valuable to Purchaser as is consistent with
Company's legitimate requirements for cash from time to time.
(d) Rights and Remedies. All rights and remedies of the
parties under any provision of this Agreement shall be in addition
to any other rights and remedies provided for by any Legal
Requirement (including all forms of legal and equitable relief,
including specific performance). All rights and remedies
contemplated in the preceding sentence shall be independent and
cumulative, and may, to the extent permitted by law, be exercised
concurrently or separately, and the exercise of any one right or
remedy shall not be deemed to be an election of such right or
remedy or to preclude or waive the exercise of any other right or
remedy.
(e) Amendments. No amendment or modification of this
Agreement shall be valid or binding upon the parties unless made in
writing and executed by the parties.
(f) No Waiver. No consent or waiver, express or
implied, by a party to or of any breach by a party in the
performance by it of any of its obligations hereunder shall be
deemed or construed to be a consent or waiver to or of the breach
in the performance by such party of the same or any other
obligation of such party hereunder. Failure on the part of any
party to complain of any act or failure to act of any other party
or to declare any other party in default, irrespective of how long
such failure continues, shall not unless otherwise herein provided
to the contrary constitute a waiver by a Party of its rights
<PAGE 9>
hereunder. All consents and waivers shall be in writing.
(g) Governing Law; Arbitration; Consent to Jurisdiction.
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New Jersey, exclusive of
conflicts of laws provisions. Each party hereby agrees that in any
action, service of process or notice which is in writing and sent
by certified or registered mail, return receipt requested, postage
prepaid, shall have the same force and effect as if notice was
personally served upon such party. Any controversy or claim
arising out of or relating to this Agreement or the Note, or the
breach thereof, shall be settled by binding arbitration by a panel
of three arbitrators in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon
the award rendered in the arbitration may be entered in any court
having jurisdiction thereof. Each party hereby consents to be
subject to the personal jurisdiction of any court located in the
State of New Jersey in any action or proceeding to enforce an
arbitration award. Any arbitration shall be concluded in a
mutually agreeable location in New Jersey.
(h) Successors and Assigns. This Agreement shall inure
to the benefit of, be binding upon and be enforceable by and
against the parties and their respective administrators, heirs,
estates, legatees, devisees, distributees, personal and legal
representatives, executors, successors and permitted assigns.
(i) Severability; Enforceability. If any provision of
this Agreement or the application thereof to any person(s) or
circumstance(s) shall be invalid or unenforceable to any extent,
(i) the remainder of this Agreement and the application of such
provision to other person(s) or circumstance(s) shall not be
affected thereby; and (ii) each such provision shall be enforced to
the greatest extent permitted by Legal Requirements. It is agreed
that any covenants pursuant to which Seller is obligated under this
Agreement shall cease after the date Purchaser is no longer the
owner of any Rights provided this provision shall not limit the
application of Section 8(c).
(j) Brokers and Finders. Seller and Purchaser each
represent and warrant to the other that no finder, broker, agent or
other intermediary has acted or purported to act on its behalf in
connection with the negotiation, preparation or consummation of
this Agreement.
(k) Joint Effort. Preparation of this Agreement has
been a joint effort of the parties and this Agreement shall not be
construed more severely against any party.
(l) Notices. Any notice or other communication required
or permitted to be given pursuant to this Agreement shall be in
writing signed by the party giving such notice or its agent and
shall be deemed to have been duly given to a party and effective
upon receipt if sent by registered or certified mail, return
receipt requested, or by Federal Express or similar overnight
delivery service against a signed receipt to the addresses for each
party set forth below (or at such other addresses as any party may
designate by written notice to the other in the manner provided
above):
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If delivered to Seller:
O'Brien Environmental Energy, Inc.
225 South Eighth Street
Philadelphia, PA 19106
Attn: Mr. Randall Schrader
with a simultaneous copy to:
Sills Cummis Zuckerman Radin
Tischman Epstein & Gross, P.A.
One Riverfront Plaza
Newark, NJ 07102
Attn: Jerry Genberg, Esq.
Victor H. Boyajian, Esq.
If delivered to Purchaser:
Bradley Resources Company
P.O. Box 761
Southport, Connecticut 06490
Attn: Mr. George W. Holbrook, Jr.
Mr. Randy Goldenhersh
Combined Energy Company
999 18th Street
Suite 3450
Denver, Colorado 90202
with a simultaneous copy to:
Haradon Beatty, Esq.
Holland & Hart
555 17th Street
Suite 2900
Denver, Colorado, 80202
(m) Terminology. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter
gender, shall include all other genders; the singular shall include
the plural, and vice versa. Titles of sections are for convenience
only, and shall not modify rights and obligations created by this
Agreement. All references herein to sections shall refer to the
corresponding sections of this Agreement unless specific reference
is made to sections of another document.
(n) Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original,
but all of which when taken together shall constitute but one
Agreement. It shall not be necessary that any one counterpart be
signed by the Parties so long as each Party shall have executed a
counterpart.
<PAGE 11>
IN WITNESS WHEREOF, the Parties have hereto set their hands
and seals as of the 31st day of March, 1993.
ATTEST: O'BRIEN ENVIRONMENTAL ENERGY, INC.
__________________________ By:/s/
----------------------------------
Name:
Title:
ATTEST: BRADLEY RESOURCES COMPANY
By:_______________________ By:/s/George W. Holbrook, Jr.
-----------------------------------
George W. Holbrook, Jr.