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REPURCHASE AGREEMENT
DATE: January 18, 1994
PARTIES: O'Brien Environmental Energy, Inc., a Delaware
corporation ("O'Brien"), and Bradley Resources Company, a
partnership ("Bradley").
RECITALS: Pursuant to a Rights Assignment Agreement between
Bradley and O'Brien, dated as of March 31, 1993 (the "Rights
Agreement"), O'Brien sold to Bradley, and Bradley purchased from
O'Brien, the right to receive 12.5 percent of all dividends and
certain other payments to O'Brien from O'Brien's subsidiary,
O'Brien (Newark) Cogeneration, Inc., a Delaware corporation
("Newark").
Bradley, in consideration for the rights acquired pursuant
to the Rights Agreement and all associated representations,
warranties, indemnifications and other obligations (the
"Rights"), delivered to O'Brien Bradley's Non-Negotiable
Promissory Note made by Bradley and payable to O'Brien, dated as
of March 31, 1993, in the original principal amount of $6,250,000
(the "Note"), and the guaranty of the Note made by George W.
Holbrook, Jr., a general partner of Bradley, dated as of March
31, 1993 (the "Guaranty").
Since the date of the execution and delivery of the Rights
Agreement, the Note, and the Guaranty, O'Brien's circumstances
have changed, and O'Brien deems it to be in O'Brien's best
interests, in order to facilitate O'Brien's obtaining required
third party debt or equity financing, for it to acquire the
Rights previously sold to Bradley in exchange for the Note and
the Guaranty and all rights thereunder.
Bradley, in light of O'Brien's circumstances and Bradley's
evaluation of the project operated by Newark, at O'Brien's
request and in consideration of the assignments and releases
herein contained, is willing to permit O'Brien to repurchase the
Rights.
AGREEMENTS: In consideration of their mutual promises herein
contained, and for other good and valuable consideration, the
parties agree as follows:
1. Assignment of Rights Agreement. By its execution of
this Agreement, conditioned upon O'Brien's execution of this
Agreement and the delivery of the Note and Guaranty by O'Brien,
as provided in Section 2, Bradley hereby assigns to O'Brien all
of Bradley's right, title, and interest, free and clear of all
liens and encumbrances of any kind whatsoever, in and to the
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Rights and all of its other rights to, in and under the Rights
Agreement. Immediately upon Bradley's receipt of the original
Note and the Guaranty from O'Brien, transmitted by O'Brien as
provided in Section 2, Bradley will send to O'Brien, by overnight
express delivery, Bradley's copy of the fully executed Rights
Agreement. Bradley represents and warrants that it has not
transferred, nor committed to transfer, any interest in the
Rights or any other right under or interest in the Rights
Agreement to any person or entity.
2. Assignment of Note and Guaranty. By its execution of
this Agreement, conditioned upon Bradley's execution of this
Agreement, O'Brien hereby assigns to Bradley all of O'Brien's
right, title, and interest in and to and under the Note
(including but not limited to any claim for accrued interest
under the Note) and the Guaranty (including but not limited to
any claim under the Guaranty). Concurrent with its execution of
this agreement, O'Brien is transmitting to Bradley, by overnight
express delivery, the original of the Note and O'Brien's executed
copy of the Guaranty. O'Brien represents and warrants that it
has not transferred, nor committed to transfer, any right under
or interest in the Note or the Guaranty to any person or entity.
3. No Third Party beneficiaries. This Agreement is
intended to be for the benefit of the parties and their
respective successors and assigns only, and it is not intended to
create any third party beneficiaries, implied trusts, or similar
implied agreements, nor may the provisions hereof be enforced by
any person or entity not a party hereto.
4. Assignment; Binding Effect. Neither party may assign
this Agreement or any of its rights and duties hereunder without
the prior written consent of the other party. Subject to this
limitation on assignments, this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their
respective successors and assigns.
5. Amendment and Waiver.. This Agreement may not be
amended nor any provision herein waived except by an instrument
in writing signed by the party to be charged with such amendment
or waiver and delivered by such party to the party claiming the
benefit of such amendment or waiver. No waiver of any provision
of this Agreement shall be deemed or shall constitute a waiver of
any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver, unless otherwise provided in the
written waiver.
6. Entire Agreement; Prior Representations; Amendments.
This Agreement embodies the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes
all prior representations, agreements and understandings, oral or
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written, with respect to the Rights, the Rights Agreement, the
Note, and the Guaranty. Notwithstanding the representations
which may have been made by the parties in connection with the
transactions described herein, O'Brien and Bradley agree that
(a) neither of them has relied on any representations by the
other with respect to such transactions except those contained in
this Agreement or the Exhibit hereto, and (b) their execution of
this Agreement specifically precludes any claim for negligent
misrepresentation by either of them based on the other's
representations which are not contained in this Agreement or the
Exhibit hereto.
7. Choice of Law. IN VIEW OF THE MULTISTATE CHARACTER OF
THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT, THE PARTIES
AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE OF COLORADO
AS IF IT WERE ENTERED INTO WITHIN SUCH STATE AND PERFORMED SOLELY
IN SUCH STATE BY PERSONS RESIDENT IN SUCH STATE AT ALL RELEVANT
TIMES.
8. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original
instrument, but all of which together shall constitute one and
the same instrument.
The parties, by their duly authorized officer or partners,
as the case may be, have executed and delivered this Agreement
effective as of the date and year first above written.
Bradley Resources Company
By:/s/George W. Holbrook, Jr.
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George W. Holbrook, Jr.
General Partner
O'Brien Environmental Energy, Inc.
By:/s/Joel Cooperman
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Joel Cooperman, Vice President