Exhibit 10.2
SUPPLEMENT NO. 1 TO INTERCREDITOR AGREEMENT
This Supplement No. 1 dated as of this 31st day of March,
1998 to the Intercreditor Agreement dated as of August 20, 1997
(the "Intercreditor Agreement") is made among the Lender (as
hereinafter defined), and each of the Noteholders (as hereinafter
defined); the Noteholders, the Lender and each of the additional
Persons, if any, that become Creditors under the Intercreditor
Agreement are individually referred to as a "Creditor" and are
collectively referred to herein as the "Creditors."
RECITALS:
A. Under and pursuant to the separate and several Note
Purchase Agreements, each dated as of February 14, 1997 (as such
agreements may have been or may be modified or amended from time
to time, collectively, the "Note Purchase Agreements"), between
Insituform Technologies, Inc., a Delaware corporation (the
"Company"), and each of the Purchasers named on Schedule A
attached thereto respectively, the Company has heretofore issued
and sold its 7.88% Senior Notes, Series A, due February 14, 2007,
in the aggregate principal amount of $110,000,000 (the holders of
the Notes currently outstanding are referred to herein
individually as a "Noteholder" and collectively as the
"Noteholders").
B. Under and pursuant to that certain Loan Agreement dated
as of August 20, 1997 (as such agreement may have been or may be
modified, amended, renewed or replaced, including any increase in
the amount thereof, the "Loan Agreement"), between the Company and
NationsBank, N.A. (the "Lender"), the Lender has made available to
the Company certain revolving credit facilities in a current
aggregate principal amount up to $20,000,000 (all obligations in
respect of said credit facilities being hereinafter collectively
referred to as the "Loans").
C. The Lender and the Noteholders have heretofore entered
into the Intercreditor Agreement.
D. As required by the Loan Agreement, Insituform Southwest,
Inc., a Delaware corporation (the "Additional Subsidiary
Guarantor") and successor-in-interest to Insituform Southwest, has
concurrently herewith executed and delivered a Joinder to
Unlimited Guaranty and Contribution Agreement (as such agreement
may be modified or amended from time to time, the "Additional
Lender Guaranty"), dated as of March 31, 1998, pursuant to which
the Additional Subsidiary Guarantor has irrevocably, absolutely
and unconditionally guaranteed to the Lender the payment and
performance of all obligations of the Company under the Loan
Agreement.
E. As required by the Note Purchase Agreements, the
Additional Subsidiary Guarantor has concurrently herewith executed
and delivered a Guaranty Agreement (as such agreement may be
modified or amended, the "Additional Noteholder Guaranty"), dated
as of March 31, 1998, pursuant to which the Additional Subsidiary
Guarantor has irrevocably, absolutely and unconditionally
guaranteed to the Noteholders the payment of the principal of,
premium, if any, and interest on the Notes and the payment and
performance of all other obligations of the Company under the Note
Purchase Agreements.
F. Pursuant to the requirements of the Loan Agreement and
the Note Purchase Agreements, the parties have agreed to enter
into this Supplement No. 1, so as to require of the Creditors the
sharing of any recovery under the Additional Lender Guaranty and
the Additional Noteholder Guaranty in accordance with the terms of
the Intercreditor Agreement.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Capitalized terms not otherwise defined herein shall
have the meanings assigned to such terms in the Intercreditor
Agreement.
2. Effective as of the date hereof, for purposes of the
Intercreditor Agreement: (i) the term "Subsidiary Guarantors"
shall include the Additional Subsidiary Guarantor; (ii) the term
"Lender Guaranty" shall include the Additional Lender Guaranty;
and (iii) the term "Noteholder Guaranty" shall include the
Additional Noteholder Guaranty.
3. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
Agreement, and any of the parties hereto may execute this
Agreement by signing any such counterpart.
4. Except as modified by this Supplement No. 1, all terms,
conditions and covenants contained in the Intercreditor Agreement
are hereby ratified and shall remain in full force and effect.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed as of the date first above written.
NATIONSBANK, N.A. THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By s/Xxxx X. Xxxxxxx By s/Xxxxxxx X. Xxxxxx
------------------------ ----------------------------
Its Vice President Its Authorized Representative
THE SECURITY MUTUAL LIFE IN- PRINCIPAL MUTUAL LIFE INSURANCE
SURANCE COMPANY OF LINCOLN, COMPANY
NEBRASKA
By s/Xxxxxxx X. Xxxxxxxxxx By s/Xxxxxxx X. Xxxxxxx
------------------------- ----------------------------
Its 2nd Vice President Its Counsel
By s/Xxxx X. Xxxxxx
----------------------------
Its Counsel
RELIASTAR LIFE INSURANCE COMPANY ALLSTATE LIFE INSURANCE COMPANY
By s/Xxxxx X. Xxxxxxx By s/Xxxxxxx X. Xxxxx
-------------------------- ----------------------------
Its Authorized Representative
NORTHERN LIFE INSURANCE COMPANY By s/Xxxxxx X. Xxxxxx
----------------------------
Authorized Signatories
By s/Xxxxx X. Xxxxxxx THE LIBERTY CORPORATION (as
--------------------------- transferee of XXXXXX NATIONAL
Its Assistant Treasurer LIFE INSURANCE COMPANY)
RELIASTAR UNITED SERVICES LIFE
INSURANCE COMPANY
By s/Xxxxx X. Xxxxxxx By s/Xxxxxxx X. Xxxxxx
--------------------------- ----------------------------
Its Assistant Treasurer Its Authorized Officer
RELIASTAR BANKERS SECURITY LIFE XXXXXXXXX XXXXXXXX LIFE
INSURANCE COMPANY INSURANCE COMPANY OF AMERICA
By s/Xxxxx X. Xxxxxxx By s/Xxxx X. Xxxxxx
--------------------------- ----------------------------
Its Vice President, Investments Its Senior Vice President
JEFFERSON-PILOT LIFE INSURANCE
COMPANY
By s/Xxxxxx X. Xxxxxx
---------------------------
Its Vice President
CONNECTICUT GENERAL LIFE IN- THE LINCOLN NATIONAL LIFE IN-
SURANCE COMPANY, on behalf SURANCE COMPANY (as transferee
of one or more separate of CONNECTICUT GENERAL LIFE
accounts INSURANCE COMPANY)
By: CIGNA Investments, Inc.
By s/Xxxxxx X. Xxxxx By s/J.Xxxxxx Xxxxxx
-------------------------- ----------------------------
Its Vice President Its Vice President
CONNECTICUT GENERAL LIFE CIGNA PROPERTY AND CASUALTY
INSURANCE COMPANY INSURANCE COMPANY
By: CIGNA Investments, Inc. By: CIGNA Investments, Inc.
By s/Xxxxxx X. Xxxxx By s/Xxxxxx X. Xxxxx
-------------------------- ----------------------------
Its Vice President Its Vice President
LIFE INSURANCE COMPANY OF
NORTH AMERICA
By: CIGNA Investments, Inc.
By s/Xxxxxx X. Xxxxx
--------------------------
Its Vice President
The undersigned hereby acknowledge and agree to the foregoing
Supplement No. 1.
INSITUFORM TECHNOLOGIES, INC. XXXXXXXXX, INC.
INA ACQUISITION CORP.
INSITUFORM CENTRAL, INC.
By s/Xxxxxxx X. Xxxxxx INSITUFORM GULF SOUTH, INC.
---------------------------- INSITUFORM MID-AMERICA, INC.
Its Senior Vice President - INSITUFORM MIDWEST, INC.
Chief Financial Officer INSITUFORM MISSOURI, INC.
INSITUFORM NORTH, INC.
INSITUFORM OF NEW ENGLAND, INC. INSITUFORM NORTH AMERICA CORP.
INSITUFORM PLAINS, INC.
INSITUFORM ROCKIES, INC.
By s/Xxxxxxx X. Xxxxxx INSITUFORM SOUTHEAST, INC.
----------------------------- INSITUFORM SOUTHWEST, INC.
Its Treasurer and Clerk INSITUFORM TEXARK, INC.
INSITUFORM WEST, INC.
NUPIPE, INC.
UNITED PIPELINE SYSTEMS USA, INC.
By s/Xxxxxxx X. Xxxxxx
----------------------------
Vice President of each of the
foregoing entities
=================================================================
GUARANTY AGREEMENT
Dated as of March 31, 1998
By
Insituform Southwest, Inc.
Re: $110,000,000 7.88% Senior Notes, Series A,
Due February 14, 2007,
of
INSITUFORM TECHNOLOGIES, INC.
=================================================================
TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . 1
SECTION 2. GUARANTY OF NOTES AND NOTE AGREEMENT. . . . . 2
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE . . . . . 2
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY . 3
SECTION 5. REPRESENTATIONS AND WARRANTIES OF
THE GUARANTORS. . . . . . . . . . . . . . . . 8
SECTION 6. GUARANTOR COVENANTS . . . . . . . . . . . . . 9
Section 6.1. Compliance with Law. . . . . . . . . . . 9
Section 6.2. Insurance. . . . . . . . . . . . . . . . 10
Section 6.3. Maintenance of Properties. . . . . . . . 10
Section 6.4. Payment of Taxes and Claims. . . . . . . 10
Section 6.5. Corporate Existence, etc.. . . . . . . . 11
SECTION 7. SUBMISSION TO JURISDICTION. . . . . . . . . . 11
SECTION 8. JUDGMENTS . . . . . . . . . . . . . . . . . . 11
SECTION 9. NOTICES . . . . . . . . . . . . . . . . . . . 12
SECTION 10. AMENDMENTS AND MODIFICATIONS;
SOLICITATION OF NOTEHOLDERS . . . . . . . . . 12
SECTION 11. PROCEEDS. . . . . . . . . . . . . . . . . . . 13
SECTION 12. MISCELLANEOUS . . . . . . . . . . . . . . . . 13
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . 14
GUARANTY AGREEMENT
Re: $110,000,000 7.88% Senior Notes, Series A,
Due February 14, 2007, of
INSITUFORM TECHNOLOGIES, INC.
This GUARANTY AGREEMENT (the or this "Guaranty") is dated as
of March 31, 1998 and given by Insituform Southwest, Inc., a
corporation organized under the laws of the State of Delaware (the
"Guarantor").
RECITALS:
A. The Guarantor is a Subsidiary of Insituform
Technologies, Inc., a Delaware corporation (the "Company").
B. The Company has entered into separate and several Note
Purchase Agreements each dated as of February 14, 1997
(collectively, the "Note Purchase Agreements"), between the
Company and each of the Purchasers named on Schedule A attached to
the Note Purchase Agreements (together with their successors and
assigns, the "Noteholders"), providing for, among other things,
the issue and sale by the Company to the Noteholders of
$110,000,000 aggregate principal amount of its 7.88% Senior Notes,
Series A, due February 14, 2007 (the "Notes").
C. Certain Subsidiaries of the Company (the "Other
Guarantors") entered into a Guaranty Agreement dated as of August
20, 1997 in which they irrevocably, absolutely and unconditionally
guaranteed to the Noteholders the payment of the principal of,
premium, if any, and interest on the Notes and the payment and
performance of all other obligations of the Company under the Note
Purchase Agreements.
D. Pursuant to Section 9.8 of the Note Purchase Agreements,
upon which the Noteholders relied at the time of the original
issuance of the Notes, and upon which each subsequent holder of
the Notes relied at the time of its subsequent acquisition of the
Notes, the Company is required to cause the Guarantor to enter
into this Guaranty.
E. The Guarantor is part of an affiliated group of
corporations with the Company and it will receive substantial
direct and indirect benefit by reason of the original issue and
sale by the Company of the Notes.
NOW, THEREFORE, in consideration of the premises and in
further consideration of the sum of Ten Dollars ($10.00) paid to
the Guarantor by the Noteholders, the receipt whereof is hereby
acknowledged, the Guarantor does hereby covenant and agree as
follows:
SECTION 1. DEFINITIONS.
Unless the context otherwise requires, capitalized terms used
herein shall have the meanings assigned thereto in the Note
Purchase Agreements and such definitions shall be equally
applicable to both the singular and plural forms of any of the
terms so defined.
SECTION 2. GUARANTY OF NOTES AND NOTE AGREEMENT.
(a) Subject to Section 2(b) below, the Guarantor does hereby
irrevocably, absolutely and unconditionally guaranty unto the
Noteholders (i) the full and prompt payment of the principal of,
premium, if any, and interest on the Notes from time to time
outstanding, as and when such payments shall become due and
payable, whether by lapse of time, upon redemption or prepayment,
by extension or by acceleration or declaration or otherwise
(including (to the extent legally enforceable) interest due on
overdue payments of principal, premium, if any, or interest at the
rate set forth in the Notes) in coin or currency of the United
States of America which at the time of payment or demand therefor
shall be legal tender for the payment of public and private debts,
(ii) the full and prompt performance and observance by the Company
of each and all of the obligations, covenants and agreements
required to be performed or owned by the Company under the terms
of the Notes and the Note Purchase Agreements, and (iii) the full
and prompt payment, upon demand by any Noteholder of all costs and
expenses, legal or otherwise (including reasonable attorneys'
fees), if any, as shall have been expended or incurred in the
protection or enforcement of any right or privilege under the
Notes or the Note Purchase Agreements or in the protection or
enforcement of any rights, privileges or liabilities under this
Guaranty or in any consultation or action in connection therewith
or herewith and in each and every case irrespective of the
validity, regularity, or enforcement of any of the Notes or the
Note Purchase Agreements or any of the terms thereof or of any
other like circumstance or circumstances.
(b) The obligations of the Guarantor hereunder shall be
limited to the lesser of (i) the obligations of the Company
guaranteed hereunder, or (ii) a maximum aggregate amount equal to
the largest amount that would not render its obligations hereunder
subject to avoidance as a fraudulent transfer or conveyance under
Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law (collectively, the
"Fraudulent Transfer Laws"), if and to the extent the Guarantor
(or a trustee on its behalf) has properly invoked the protections
of the Fraudulent Transfer Laws in each case after giving effect
to all other liabilities of the Guarantor, contingent or
otherwise, that are relevant under the Fraudulent Transfer Laws.
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE.
This is a guaranty of payment and performance and the
Guarantor hereby waives, to the fullest extent permitted by law,
any right to require that any action on or in respect of any Note
or the Note Purchase Agreements be brought against the Company or
that resort be had to any direct or indirect security for the
Notes or for this Guaranty or any other remedy. Any Noteholder
may, at its option, proceed hereunder against the Guarantor in the
first instance to collect monies when due, the payment of which is
guaranteed hereby, without first proceeding against the Company,
any of the Other Guarantors, or any other Person and without first
resorting to any direct or indirect security for the Notes or for
this Guaranty or any other remedy. The liability of the Guarantor
hereunder shall in no way be affected or impaired by any
acceptance by any Noteholder of any direct or indirect security
for, or other guaranties of, any indebtedness, liability or
obligation of the Company, any of the Other Guarantors, or any
other Person to any Noteholder or by any failure, delay, neglect
or omission by the Noteholder to realize upon or protect any such
indebtedness, liability or obligation or any notes or other
instruments evidencing the same or any direct or indirect security
therefor or by any approval, consent, waiver, or other action
taken, or omitted to be taken by any such Noteholder.
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY.
(a) The Guarantor hereby consents and agrees that any
Noteholder or Noteholders from time to time, with or without any
further notice to or assent from the Guarantor, may, without in
any manner affecting the liability of the Guarantor under this
Guaranty, upon such terms and conditions as any such Noteholder
may deem advisable:
(i) extend in whole or in part (by renewal or
otherwise), modify, change, compromise, release or extend the
duration of the time for the performance or payment of any
indebtedness, liability or obligation of the Company or any
other Person secondarily or otherwise liable for any
indebtedness, liability or obligations of the Company on the
Notes, or waive any Default with respect thereto, or waive,
modify, amend or change any provision of any other
instruments and this Guaranty; or
(ii) sell, release, surrender, modify, impair, exchange
or substitute any and all property, of any nature and from
whomsoever received, held by, or for the benefit of, any such
Noteholder as direct or indirect security for the payment or
performance of any indebtedness, liability or obligation of
the Company or any other Person secondarily or otherwise
liable for any indebtedness, liability or obligation of the
Company on the Notes; or
(iii) settle, adjust or compromise any claim of the
Company against any other Person secondarily or otherwise
liable for any indebtedness, liability or obligation of the
Company on the Notes.
The Guarantor hereby ratifies and confirms any such
extension, renewal, change, sale, release, waiver, surrender,
exchange, modification, amendment, impairment, substitution,
settlement, adjustment or compromise and that the same shall be
binding upon it, and hereby waives, to the fullest extent
permitted by law, any and all defenses, counterclaims or offsets
which it might or could have by reason thereof, it being
understood that the Guarantor shall at all times be bound by this
Guaranty and remain liable hereunder.
(b) The Guarantor hereby waives, to the fullest extent
permitted by law: (i) notice of acceptance of this Guaranty by the
Noteholders or of the creation, renewal or accrual of any
liability of the Company, present or future, or of the reliance of
such Noteholders upon this Guaranty (it being understood that
every indebtedness, liability and obligation described in Section
1 shall conclusively be presumed to have been created, contracted
or incurred in reliance upon the execution of this Guaranty); (ii)
demand of payment by any Noteholder from the Company, any of the
Other Guarantors, or any other Person indebted in any manner on or
for any of the indebtedness, liabilities or obligations hereby
guaranteed; and (iii) presentment for the payment by any
Noteholder or any other Person of the Notes or any other
instrument, protest thereof and notice of its dishonor to any
party thereto and to the Guarantor. The obligations of the
Guarantor under this Guaranty and the rights of any Noteholder to
enforce such obligations by any proceedings, whether by action at
law, suit in equity or otherwise, shall not be subject to any
reduction, limitation, impairment or termination, whether by
reason of any claim of any character whatsoever or otherwise and
shall not be subject to any defense, set-off, counterclaim (other
than any compulsory counterclaim), recoupment or termination
whatsoever.
(c) The obligations of the Guarantor hereunder shall be
binding upon the Guarantor and its successors and assigns, and
shall remain in full force and effect irrespective of:
(i) the genuineness, validity, regularity or
enforceability of the Notes, the Note Purchase Agreements or
any other instruments relating thereto or any of the terms of
any thereof, the continuance of any obligation on the part of
the Company, any of the Other Guarantors, or any other Person
on the Notes or under the Note Purchase Agreements or the
power or authority or the lack of power or authority of the
Company to issue the Notes or execute and deliver the Note
Purchase Agreements or to perform any of its obligations
thereunder or the existence or continuance of the Company,
any of the Other Guarantors, or any other Person as a legal
entity; or
(ii) any default, failure or delay, willful or
otherwise, in the performance by the Company, any of the
Other Guarantors, or any other Person of any obligations of
any kind or character whatsoever of the Company, any of the
Other Guarantors, or any other Person (including, without
limitation, the obligations and undertakings of the Company,
any of the Other Guarantors, or any other Person under the
Notes or the Note Purchase Agreements); or
(iii) any creditors' rights, bankruptcy, receivership or
other insolvency proceeding of the Company, any of the Other
Guarantors, or any other Person or in respect of the property
of the Company, any of the Other Guarantors, or any other
Person or any merger, consolidation, reorganization,
dissolution, liquidation or winding up of the Company, any of
the Other Guarantors, or any other Person; or
(iv) impossibility or illegality of performance on the
part of the Company, any of the Other Guarantors, or any
other Person of its obligations under the Notes, the Note
Purchase Agreements, this Guaranty or any other instruments;
or
(v) in respect of the Company, any of the Other
Guarantors, or any other Person, any change of circumstances,
whether or not foreseen or foreseeable, whether or not
imputable to the Company, any of the Other Guarantors, or any
other Person, or other impossibility of performance through
fire, explosion, accident, labor disturbance, floods,
droughts, embargoes, wars (whether or not declared), civil
commotions, acts of God or the public enemy, delays or
failure of suppliers or carriers, inability to obtain
materials, action of any Federal or state regulatory body or
agency, change of law or any other causes affecting
performance, or any other force majeure, whether or not
beyond the control of the Company, any of the Other
Guarantors, or any other Person and whether or not of the
kind hereinbefore specified; or
(vi) any attachment, claim, demand, charge, Lien,
order, process, encumbrance or any other happening or event
or reason, similar or dissimilar to the foregoing, or any
withholding or diminution at the source, by reason of any
taxes, assessments, expenses, indebtedness, obligations or
liabilities of any character, foreseen or unforeseen, and
whether or not valid, incurred by or against any Person, or
any claims, demands, charges or Liens of any nature, foreseen
or unforeseen, incurred by any Person, or against any sums
payable under this Guaranty, so that such sums would be
rendered inadequate or would be unavailable to make the
payments herein provided; or
(vii) any order, judgment, decree, ruling or regulation
(whether or not valid) of any court of any nation or of any
political subdivision thereof or any body, agency,
department, official or administrative or regulatory agency
of any thereof or any other action, happening, event or
reason whatsoever which shall delay, interfere with, hinder
or prevent, or in any way adversely affect, the performance
by any party of its respective obligations under the Notes,
the Note Purchase Agreements or any instrument relating
thereto; or
(viii) the failure of the Guarantor to receive any
benefit from or as a result of its execution, delivery and
performance of this Guaranty; or
(ix) any failure or lack of diligence in collection or
protection, failure in presentment or demand for payment,
protest, notice of protest, notice of Default and of
nonpayment, any failure to give notice to the Guarantor of
failure of the Company, any of the Other Guarantors, or any
other Person to keep and perform any obligation, covenant or
agreement under the terms of the Notes or the Note Purchase
Agreements or failure to resort for payment to the Company,
any of the Other Guarantors, or any other Person or to any
other guaranty or to any property, security, Liens or other
rights or remedies; or
(x) the acceptance of any additional security or
other guaranty, the advance of additional money to the
Company, any of the Other Guarantors, or any other Person,
the renewal or extension of the Notes or amendments,
modifications, consents or waivers with respect to the Notes
or the Note Purchase Agreements, or the sale, release,
substitution or exchange of any security for the Notes; or
(xi) any defense whatsoever that the Company, any of
the Other Guarantors, or any other Person might have to the
payment of the Notes (principal, premium, if any, or
interest), other than payment in cash thereof, or to the
performance or observance of any of the provisions of the
Note Purchase Agreements, whether through the satisfaction or
purported satisfaction by the Company, any of the Other
Guarantors, or any other Person of its debts due to any cause
such as bankruptcy, insolvency, receivership, merger,
consolidation, reorganization, dissolution, liquidation,
winding up or otherwise; or
(xii) any act or failure to act with regard to the
Notes, the Note Purchase Agreements or anything which might
vary the risk of the Guarantor; or
(xiii) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
Guarantor in respect of the obligations of the Guarantor
under this Guaranty;
provided, that the specific enumeration of the above-mentioned
acts, failures or omissions shall not be deemed to exclude any
other acts, failures or omissions, though not specifically
mentioned above, it being the purpose and intent of this Guaranty
that the obligations of the Guarantor shall be absolute and
unconditional and shall not be discharged, impaired or varied
except by the payment of the principal of, premium, if any, and
interest on the Notes in accordance with their respective terms
whenever the same shall become due and payable as in the Notes
provided and all other sums due and payable under the Note
Purchase Agreements, at the place specified in and all in the
manner and with the effect provided in the Notes and the Note
Purchase Agreements, as amended or modified from time to time.
Without limiting the foregoing, it is understood that repeated and
successive demands may be made and recoveries may be had hereunder
as and when, from time to time, the Company shall Default under
the terms of the Notes or the Note Purchase Agreements and that
notwithstanding recovery hereunder for or in respect of any given
Default or Defaults by the Company under the Notes or the Note
Purchase Agreements, this Guaranty shall remain in full force and
effect and shall apply to each and every subsequent Default.
(d) Subject to the provisions of the Note Purchase
Agreements, all rights of any Noteholder may be transferred or
assigned at any time and shall be considered to be transferred or
assigned at any time or from time to time upon the transfer of
such Note whether with or without the consent of or notice to the
Guarantor under this Guaranty or the Company.
(e) To the extent of any payments made under this Guaranty,
the Guarantor shall be subrogated to the rights of the Noteholder
upon whose Note such payment was made, but the Guarantor covenants
and agrees that such right of subrogation shall be subordinate in
right of payment to the rights of any Noteholder for which full
payment has not been made or provided for and, to that end, the
Guarantor agrees not to claim or enforce any such right of
subrogation or any right of set-off or any other right which may
arise on account of any payment made by the Guarantor in
accordance with the provisions of this Guaranty, including,
without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Noteholder or
Noteholders against the Company, whether or not such claim, remedy
or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive
from the Company, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security
on account of such claim, remedy or right unless and until 366
days after all of the Notes and all other sums due and payable
under the Note Purchase Agreements have been fully paid and
discharged. If any amount shall be paid to the Guarantor in
violation of the preceding sentence at any time prior to the
indefeasible cash payment in full of the Notes and all other
amounts payable under the Note Purchase Agreements and this
Guaranty, such amounts shall be held in trust for the benefit of
the Noteholders and shall forthwith be paid to the Noteholders to
be credited and applied to the amounts due or to become due with
respect to the Notes and all other amounts payable under the Note
Purchase Agreements and this Guaranty, whether matured or
unmatured. The Guarantor acknowledges that it has received direct
and indirect benefits from the financing arrangements contemplated
by the Note Purchase Agreements and that the waiver set forth in
this subsection is knowingly made as a result of the receipt of
such benefits.
(f) The Guarantor agrees that to the extent the Company,
any of the Other Guarantors, or any other Person makes any payment
on any Note, which payment or any part thereof is subsequently
invalidated, voided, declared to be fraudulent or preferential,
set aside, recovered, rescinded or is required to be retained by
or repaid to a trustee, liquidator, receiver, or any other Person
under any bankruptcy code, common law, or equitable cause, then
and to the extent of such payment, the obligation or the part
thereof intended to be satisfied shall be revived and continued in
full force and effect with respect to the Guarantor's obligations
hereunder, as if said payment had not been made. The liability of
the Guarantor hereunder shall not be reduced or discharged, in
whole or in part, by any payment to any Noteholder from any source
that is thereafter paid, returned or refunded in whole or in part
by reason of the assertion of a claim of any kind relating
thereto, including, but not limited to, any claim for breach of
contract, breach of warranty, preference, illegality, invalidity,
or fraud asserted by any account debtor or by any other Person.
(g) No Noteholder shall be under any obligation (i) to
marshal any assets in favor of the Guarantor or in payment of any
or all of the liabilities of the Company under or in respect of
the Notes or the obligations of the Guarantor hereunder or (ii) to
pursue any other remedy that the Guarantor may or may not be able
to pursue itself and that may lighten the Guarantor's burden or
any right which the Guarantor hereby expressly waives.
(h) The obligations of the Guarantor with respect to the
guaranty and all other obligations under this Guaranty of the
Guarantor are direct and unsecured obligations of the Guarantor
ranking pari passu as against the assets of the Guarantor and pari
passu with all other present and future Indebtedness of the
Guarantor which is not expressed to be subordinate or junior in
rank to any other Indebtedness of the Guarantor (except to the
extent that the foregoing is not true by virtue of, and solely by
virtue of, Liens expressly permitted by the Note Purchase
Agreements securing other Indebtedness).
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR.
The Guarantor represents and warrants to you as follows:
(a) Organization; Power and Authority. The Guarantor is duly
organized, validly existing and, if a corporation, in good
standing under the laws of its jurisdiction of incorporation and
is duly qualified as a foreign corporation and is in good standing
in each jurisdiction in which such qualification is required by
law, other than those jurisdictions as to which the failure to be
so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect. The Guarantor has the corporate or other power and
authority to own or hold under lease the properties it purports to
own or hold under lease, to transact the business it transacts and
proposes to transact, to execute and deliver this Guaranty and to
perform the provisions hereof.
(b) Authorization, etc. This Guaranty has been duly
authorized by all necessary corporate or other action under its
organizational and governing instruments on the part of the
Guarantor, and this Guaranty constitutes a legal, valid and
binding obligation of the Guarantor enforceable against the
Guarantor in accordance with its terms, except as such
enforceability may be limited by (1) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (2)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(c) Compliance with Laws, Other Instruments, etc. (1) The
execution, delivery and performance by the Guarantor of this
Guaranty will not (i) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien
in respect of any property of the Guarantor or any subsidiary
thereof under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws,
or any other agreement or instrument to which the Guarantor or any
subsidiary thereof is bound or by which the Guarantor or any
subsidiary thereof or any of their respective properties may be
bound or affected, (ii) conflict with or result in a breach of any
of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental
Authority applicable to the Guarantor or any subsidiary thereof or
(iii) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the
Guarantor or any subsidiary thereof, other than any contravention,
breach, default, creation, conflict or violation under clauses (i)
through (iii), inclusive, of this Section 5(c) which individually
or in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
(2) All obligations of the Guarantor under this
Guaranty are direct and unsecured obligations of the
Guarantor ranking pari passu with all other existing
unsecured Indebtedness of the Guarantor (actual or
contingent) which is not expressed to be subordinated or
junior in rank to any other unsecured Indebtedness of the
Guarantor.
(d) Governmental Authorizations, etc. No consent, approval
or authorization of, or registration, filing or declaration with,
any Governmental Authority is required in connection with the
execution, delivery or performance by the Guarantor of this
Guaranty.
SECTION 6. GUARANTOR COVENANTS.
Section 6.1. Compliance with Law. The Guarantor will and will
cause each of its Subsidiaries to comply with all laws, ordinances
or governmental rules or regulations to which each of them is
subject, including, without limitation, Environmental Laws and
ERISA, and will obtain and maintain in effect all licenses,
certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective
properties or to the conduct of their respective businesses, in
each case to the extent necessary to ensure that non-compliance
with such laws, ordinances or governmental rules or regulations or
failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental
authorizations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 6.2. Insurance. The Guarantor will and will cause
each of its Subsidiaries to maintain, with financially sound and
reputable insurers, insurance with respect to their respective
properties and businesses against such casualties and
contingencies, of such types, on such terms and in such amounts
(including deductibles, co-insurance and self-insurance, if
adequate reserves are maintained with respect thereto) as is
customary in the case of entities of established reputations
engaged in the same or a similar business and similarly situated.
Section 6.3. Maintenance of Properties. The Guarantor will
and will cause each of its Subsidiaries to maintain and keep, or
cause to be maintained and kept, their respective Material
properties in good repair, working order and condition (other than
ordinary wear and tear), so that the business carried on in
connection therewith may be properly conducted at all times;
provided that this Section shall not prevent the Guarantor or any
Subsidiary from discontinuing the operation and the maintenance of
any of its properties if such discontinuance is desirable in the
conduct of its business and the Guarantor has concluded that such
discontinuance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 6.4. Payment of Taxes and Claims. The Guarantor will
and will cause each of its Subsidiaries to file all tax returns
required to be filed in any jurisdiction and to pay and discharge
all taxes shown to be due and payable on such returns and all
other taxes, assessments, governmental charges, or levies imposed
on them or any of their properties, assets, income or franchises,
to the extent such taxes and assessments have become due and
payable and before they have become delinquent and all claims for
which sums have become due and payable that have or might become
a Lien on properties or assets of the Guarantor or any subsidiary
thereof; provided that neither the Guarantor nor any subsidiary
need pay any such tax or assessment or claims if (a) the amount,
applicability or validity thereof is contested by the Guarantor or
such subsidiary on a timely basis in good faith and in appropriate
proceedings, and the Guarantor or a subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of
the Guarantor or such subsidiary or (b) the nonpayment of all such
taxes and assessments in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
Section 6.5. Corporate Existence, etc. The Guarantor will at
all times preserve and keep in full force and effect its corporate
or other existence, except to the extent otherwise permitted by
the Note Purchase Agreements. The Guarantor will at all times
preserve and keep in full force and effect the corporate existence
of each of its Subsidiaries and all rights and franchises of the
Guarantor and its Subsidiaries unless, in the good faith judgment
of the Guarantor, the termination of or failure to preserve and
keep in full force and effect such right or franchise could not,
individually or in the aggregate, have a Material Adverse Effect.
SECTION 7. SUBMISSION TO JURISDICTION.
The Guarantor hereby irrevocably submits and consents to the
nonexclusive jurisdiction of the Federal court located within the
Northern District of the State of Illinois (or if such court lacks
jurisdiction, the state courts located therein) and irrevocably
agrees that all actions or proceedings relating to this Guaranty
may be litigated in such courts, and the Guarantor waives any
objection which it may have based on improper venue or forum non
conveniens to the conduct of any proceeding in any such court and
waives personal service of any and all process upon it, and
consents that all such service of process be made by delivery to
it at the address set forth in Section 9 or to its agent referred
to below at such agent's address set forth below and that service
so made shall be deemed to be completed upon actual receipt. The
Guarantor hereby irrevocably appoints the Company as its agent for
the purpose of accepting service of any process within the State
of Illinois. Nothing contained in this Section 7 shall affect the
right of any Noteholder to serve legal process in any other manner
permitted by law or to bring any action or proceeding in the
courts of any jurisdiction against the Guarantor or to enforce a
judgment obtained in the courts of any other jurisdiction.
SECTION 8. JUDGMENTS.
The Guarantor agrees that any payment made by the Guarantor
to any Noteholder or for the account of any such Noteholder in
respect of any amount required to be paid by the Guarantor in
lawful currency of the United States of America, which payment is
made in any currency other than lawful currency of the United
States of America, whether pursuant to any judgment or order of
the court or tribunal or otherwise, shall constitute a discharge
of the obligations of the Guarantor only to the extent of the
amount of lawful currency of the United States of America which
may be purchased with such other currency on the day of payment.
The Guarantor covenants and agrees that it shall, as a separate
and independent obligation, which shall not be merged in any such
judgment or order, pay or cause to be paid the amount not so
discharged and required to be paid in lawful currency of the
United States of America.
SECTION 9. NOTICES.
All communications provided for herein shall be in writing,
and (a) if to the Company or the Guarantor, delivered or mailed
prepaid by registered or certified mail or express commercial air
courier, or by facsimile communication (prompt express commercial
air courier delivery of hard copy to follow such facsimile
communication), or (b) if to any Noteholder, delivered or mailed
prepaid by express commercial air courier, or by facsimile
communication (prompt express commercial air courier delivery of
hard copy to follow such facsimile communication), in any case at
the addresses set forth below, or to such other address as such
person may designate to the other persons named below by notice
given in accordance with this Section 9:
If to any Noteholder: To its address for notices
appearing in Schedule A to the Note
Purchase Agreements or in any
written notice provided by any
Noteholder to the Company in
accordance with the Note Purchase
Agreements, as the case may be
If to the Guarantor: c/o Insituform Technologies, Inc.
702 Spirit 00 Xxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: President
If to the Company: Insituform Technologies, Inc.
702 Spirit 00 Xxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: President
SECTION 10. AMENDMENTS AND MODIFICATIONS;
SOLICITATION OF NOTEHOLDERS.
(a) This Guaranty may only be amended and/or modified by an
instrument in writing signed by the Guarantor and by the
Noteholder or Noteholders of at least 66 2/3% in aggregate
principal amount of the Notes then outstanding; provided, that
without the written consent of the Noteholders of all of the Notes
then outstanding, no such waiver, modification, alteration or
amendment shall be effective which will reduce the scope of the
guaranty set forth in this Guaranty or amend the requirements of
Sections 2, 3, 4 or 8 hereof or amend this Section 10. No such
amendment or modification shall extend to or affect any obligation
not expressly amended or modified or impair any right consequent
thereon.
(b) The Guarantor agrees that it will not solicit, request
or negotiate for or with respect to any proposed waiver or
amendment of any of the provisions of this Guaranty, the Note
Purchase Agreements or the Notes unless each Noteholder
(irrespective of the amount of Notes then owned by it) shall be
informed thereof by the Guarantor and shall be afforded the
opportunity of considering the same for a period of not less than
30 days and shall be supplied by the Guarantor with a brief
statement regarding the reasons for any such proposed waiver or
amendment, a copy of the proposed waiver or amendment and such
other information regarding such amendment or waiver as any
Noteholder shall reasonably request to enable it to make an
informed decision with respect thereto. Executed or true and
correct copies of any waiver or amendment effected pursuant to the
provisions of this Section 10 shall be delivered by the Guarantor
to each Noteholder of outstanding Notes within 30 days following
the date on which the same shall have been executed and delivered
by the holder or holders of the requisite percentage of the
outstanding Notes. The Guarantor agrees that it will not, directly
or indirectly, pay or cause to be paid yearly remuneration,
whether by way of supplemental or additional interest, fee or
otherwise, to any Noteholder as consideration for or as an
inducement to the entering into by any Noteholder of any waiver or
amendment of any of the terms and provisions of this Guaranty, the
Note Purchase Agreements or the Notes unless such remuneration is
concurrently paid, on the same terms, ratably to the Noteholders
of all of the Notes then outstanding.
SECTION 11. PROCEEDS.
Each beneficiary of this Guaranty by its acceptance hereof
agrees that any proceeds recovered hereunder will be shared pro
rata among each beneficiary hereunder or under any other guaranty
of the Guarantor.
SECTION 12. MISCELLANEOUS.
(a) No remedy herein conferred upon or reserved to any
Noteholder is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given
under this Guaranty now or hereafter existing at law or in equity.
No delay or omission to exercise any right or power accruing upon
any default, omission or failure of performance hereunder shall
impair any such right or power or shall be construed to be a
waiver thereof, but any such right or power may be exercised from
time to time and as often as may be deemed expedient. In order to
entitle any Noteholder to exercise any remedy reserved to it under
this Guaranty, it shall not be necessary for such Noteholder to
physically produce its Note in any proceedings instituted by it or
to give any notice, other than such notice as may be herein
expressly required.
(b) In case any one or more of the provisions contained in
this Guaranty shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any
way be affected or impaired thereby.
(c) This Guaranty shall be binding upon each of the
undersigned Guarantors and its respective successors and assigns
and shall inure to the benefit of each Noteholder and its
Successors and assigns so long as its Note remains outstanding and
unpaid.
(d) The Guarantor hereby agrees that the obligations of the
Guarantor hereunder are joint and several with the obligations of
any other guarantor of all or any portion of the indebtedness
guaranteed hereby.
(e) This Guaranty shall be governed by and construed in
accordance with Illinois law, including all matters of
construction, validity and performance.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be duly executed by an authorized officer as of the 31st day of
March, 1998.
INSITUFORM SOUTHWEST, INC.
By s/Xxxxxxx X. Xxxxxx
--------------------------------
Its Vice President
Acknowledged By:
INSITUFORM TECHNOLOGIES, INC.
By s/Xxxxxxx X. Xxxxxx
---------------------------
Its Senior Vice President
Chief Financial Officer
