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EXHIBIT 2.12
AMENDED AND RESTATED MONITORING AGREEMENT
This AMENDED AND RESTATED MONITORING AGREEMENT (this "Agreement"),
dated as of August 14, 2000, is made by and between GTCR Xxxxxx Xxxxxx, L.L.C.,
a Delaware limited liability company ("GTCR"), the TCW/Crescent Lenders (as
defined herein) and Synagro Technologies, Inc., a Delaware corporation (the
"Company"). GTCR and the TCW/Crescent Lenders are sometimes referred to herein
as the "Consultants".
WHEREAS, the Company and GTCR are parties to a Monitoring Agreement
dated as of January 27, 2000 (the "Original Monitoring Agreement");
WHEREAS, the Company and the Consultants have agreed to enter into this
Agreement in order, among other things, to: (a) amend and restate the Original
Monitoring Agreement in its entirety and (b) join the TCW/Crescent Lenders as
parties hereto;
WHEREAS, GTCR Capital Partners, L.P., a Delaware limited partnership
("Capital Partners"), of which GTCR is the indirect general partner, and the
TCW/Crescent Lenders will make available to the Company loans in the aggregate
amount of up to $125,000,000 pursuant to that certain Amended and Restated
Senior Subordinated Loan Agreement of even date herewith between the Company,
Capital Partners and the TCW/Crescent Lenders (the "Subordinated Loan
Agreement");
WHEREAS, the Consultants will devote significant time and effort in
monitoring the financial performance of the Company and its subsidiaries and the
Company's compliance with the terms and provisions of the Amended and Restated
Subordinated Loan Agreement (such activities, the "Monitoring Activities"); and
WHEREAS, Capital Partners and the TCW/Crescent Lenders have made it a
condition to the closing of the transactions contemplated by the Subordinated
Loan Agreement and the performance of its obligations thereunder that the
Company enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective agreements hereinafter set forth and the mutual benefits to be
derived herefrom, GTCR, the TCW/Crescent Lenders and the Company hereby agree as
follows:
1. Monitoring Fee. At the time of any financing of the Company pursuant
to the Subordinated Loan Agreement, the Company shall pay to the Consultants a
monitoring fee in immediately available funds equal to one-half of one percent
(0.5%) of the aggregate amount of such financing, which shall be allocated
between the Consultants based upon each Consultant's pro rata share of such
financing.
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2. Expenses. The Company shall promptly reimburse the Consultants for
such reasonable travel expenses and other out-of-pocket fees and expenses as may
be incurred by the Consultants, their directors, officers and employees in
connection with the Closing (as defined in the Subordinated Loan Agreement) and
in connection with the Monitoring Activities.
3. Term. This Agreement will continue from the date hereof until the
first to occur of (i) a Sale of the Company (as defined in Section 7) or (ii)
the Notes (as defined in the Subordinated Loan Agreement) and all Loan
Obligations (as defined in the Subordinated Loan Agreement) are paid in full. No
termination of this Agreement, whether pursuant to this paragraph or otherwise,
shall affect the Company's obligations with respect to the fees, costs and
expenses incurred by the Consultants in rendering services hereunder and not
reimbursed by the Company as of the effective date of such termination.
4. Liability. Neither the Consultants nor any of their affiliates,
partners, employees or agents shall be liable to the Company or its subsidiaries
or affiliates for any loss, liability, damage or expense arising out of or in
connection with the Monitoring Activities, unless such loss, liability, damage
or expense shall be proven to result directly from the gross negligence or
willful misconduct of the Consultants.
5. Indemnification. The Company agrees to indemnify and hold harmless
the Consultants, their partners, affiliates, officers, agents and employees
against and from any and all loss, liability, suits, claims, costs, damages and
expenses (including attorneys' fees) arising from the Monitoring Activities,
except as a result of their gross negligence or intentional wrongdoing.
6. The Consultants as Independent Contractors. The Consultants and the
Company agree that the Consultants shall perform the Monitoring Activities
hereunder as independent contractors, retaining control over and responsibility
for their own operations and personnel. Neither the Consultants nor their
directors, officers, or employees shall be considered employees or agents of the
Company as a result of this Agreement nor shall any of them have authority to
contract in the name of or bind the Company, except as expressly agreed to in
writing by the Company.
7. Definitions.
"Independent Third Party" shall mean any Person who, immediately prior
to the contemplated transaction, does not own in excess of 5% of the Company's
Common Stock on a fully diluted basis, who is not an affiliate of such 5% owner
of the Company's Common Stock and who is not the spouse or descendant (by birth
or adoption) of any such 5% owner of the Company's Common Stock.
"Sale of the Company" shall mean the sale of the Company to an
Independent Third Party or group of Independent Third Parties in a transaction
pursuant to which such party or parties acquire (i) capital stock of the Company
possessing the voting power under normal circumstances
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to elect a majority of the Company's board of directors (whether by merger,
consolidation or sale or transfer of the Company's capital stock) or (ii) all or
substantially all of the Company's assets determined on a consolidated basis.
"TCW/Crescent Lenders" means, collectively, (i) TCW/Crescent Mezzanine
Partners II, L.P., a Delaware limited partnership, (ii) TCW/Crescent Mezzanine
Trust II, a Delaware business trust, (iii) TCW Leveraged Income Trust, L.P., a
Delaware limited partnership, (iv) TCW Leveraged Income Trust II, L.P., a
Delaware limited partnership and (v) TCW Leveraged Income Trust IV, L.P., a
Delaware limited partnership.
8. Notices. Any notice, report or payment required or permitted to be
given or made under this Agreement by one party to the other shall be deemed to
have been duly given or made if personally delivered or, if mailed, when mailed
by registered or certified mail, postage prepaid, to the other party at the
following addresses (or at such other address as shall be given in writing by
one party to the other):
If to GTCR:
GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
If to the TCW/Crescent Lenders:
TCW/CRESCENT MEZZANINE PARTNERS II, L.P.
TCW/CRESCENT MEZZANINE TRUST II
TCW LEVERAGED INCOME TRUST, L.P.
TCW LEVERAGED INCOME TRUST II, L.P.
TCW LEVERAGED INCOME TRUST IV, L.P.
x/x XXX/Xxxxxxxx Xxxxxxxxx, X.X.X.
000 Xxxxxxxx Xxxxx, Xxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
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Telecopier No.: (000) 000-0000
With a copy to:
Gardere & Xxxxx, L.L.P.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx
Telecopier No.: (000) 000-0000
If to the Company:
Synagro Technologies, Inc.
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
9. Entire Agreement; Modification. This Agreement: (a) contains the
complete and entire understanding and agreement of the Consultants and the
Company with respect to the subject matter hereof; and (b) supersedes all prior
and contemporaneous understandings, conditions and agreements, oral or written,
express or implied, respecting the engagement of the Consultants in connection
with the subject matter hereof. This Agreement may not be amended or modified
without the prior written consent of the Company and the Consultants.
10. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach of that provision or any other provision
hereof.
11. Assignment. Neither the Company nor the Consultants may assign its
or their rights or obligations under this Agreement without the express written
consent of the other; provided that the Consultants, without the consent of the
Company, may assign their rights and obligations hereunder to any successor
entity or affiliate.
12. Successors. This Agreement and all the obligations and benefits
hereunder shall inure to the successors and permitted assigns of the parties.
13. Counterparts. This Agreement may be executed and delivered by each
party hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original and both of which taken together shall
constitute one and the same agreement.
14. Choice of Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Illinois, without giving
effect to any choice of law
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or conflict of law provision or rule (whether of the State of Illinois or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois.
15. Amendment and Restatement. Effective as of the date hereof,
the Original Monitoring Agreement is hereby amended and restated in its entirety
and, from and after the date hereof, all references herein to "hereunder,"
"hereof," "herein" or words of like import shall mean and be a reference to the
Original Monitoring Agreement, as amended hereby.
* * * * *
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IN WITNESS WHEREOF, the Consultants and the Company have caused this
Amended and Restated Monitoring Agreement to be duly executed and delivered on
the date and year first above written.
GTCR XXXXXX XXXXXX, L.L.C.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Its: Principal
SYNAGRO TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Its: Chairman & CEO
Signature Page to the Amended and Restated Monitoring Agreement
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TCW/CRESCENT MEZZANINE PARTNERS II, L.P.
TCW/CRESCENT MEZZANINE TRUST II
By: TCW/Crescent Mezzanine II, L.P.
as general partner or managing owner
By: TCW/Crescent Mezzanine, L.L.C.,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisors (Bermuda), Limited
as general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: TCW Investment Management Company,
as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW (XXXX XX), L.P.
as general partner
By: TCW Advisors (Bermuda), Ltd.,
as general partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: TCW Investment Management Company,
as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
Signature Page to the Amended and Restated Monitoring Agreement
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TCW LEVERAGED INCOME TRUST IV, L.P.
By: TCW Asset Management Company,
as Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
By: TCW (XXXX XX), L.L.C., as General Partner
By: TCW Asset Management Company,
as its Managing Member
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
Signature Page to the Amended and Restated Monitoring Agreement
