EXHIBIT 99.2
FORM OF GUARANTY
This GUARANTY, dated as of June 30, 2006, by and among the Guarantors
identified as such on the signature pages hereof (each individually, a
"Guarantor" and, collectively, the "Guarantors"), in favor of BANK OF AMERICA,
N.A., a national banking association, as administrative agent (hereinafter, in
such capacity, the "Administrative Agent") for itself and the other lending
institutions (hereinafter, collectively, the "Lenders") which are or may become
parties to that certain Credit Agreement, dated as of June 30, 2006 (as amended,
modified, supplemented, or restated and in effect from time to time, the "Credit
Agreement"), among InfraSource Incorporated, a Delaware corporation (the
"Borrower"), InfraSource Services, Inc. ("Holdings"), the Lenders and the
Administrative Agent.
WHEREAS, the Borrower, Holdings and the Guarantors are members of a group
of related Persons, the success of any one of which is dependent in part on the
success of the other members of such group;
WHEREAS, each Guarantor expects to receive substantial direct and indirect
benefits from the extensions of credit to the Borrower by the Lenders pursuant
to the Credit Agreement (which benefits are hereby acknowledged);
WHEREAS, it is a condition precedent to the Lenders' making any loans or
otherwise extending credit to the Borrower under the Credit Agreement that each
Guarantor executes and delivers to the Administrative Agent, for the benefit of
the Lenders and the Administrative Agent, a guaranty substantially in the form
hereof; and
WHEREAS, each Guarantor wishes to guaranty the Borrower's obligations to
the Lenders and the Administrative Agent under or in respect of the Credit
Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises contained herein and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, each Guarantor, intending to be legally bound, hereby agrees with
the Lenders and the Administrative Agent as follows:
1. DEFINITIONS. The term "Obligations" and all other capitalized terms used
herein without definition shall have the respective meanings provided therefor
in the Credit Agreement.
2. GUARANTY OF PAYMENT AND PERFORMANCE. Each Guarantor hereby jointly and
severally unconditionally guarantees to the Lenders and the Administrative Agent
the full and punctual payment when due (whether at stated maturity, by required
pre-payment, by acceleration or otherwise), as well as the performance, of all
of the Obligations, including all such which would become due but for the
operation of the automatic stay pursuant to Section 362(a) of the Bankruptcy
Code of the United States and the operation of Sections 502(b) and 506(b) of the
Bankruptcy Code of the United States. This Guaranty is an absolute,
unconditional and continuing guaranty of the full and punctual payment and
performance of all of the Obligations
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and not of their collectibility only and is in no way conditioned upon any
requirement that the Administrative Agent or any Lender first attempt to collect
any of the Obligations from the Borrower or resort to any collateral security or
other means of obtaining payment. Should the Borrower default in the payment or
performance of any of the Obligations, the obligations of the Guarantors
hereunder with respect to such Obligations in default shall, upon demand by the
Administrative Agent, become immediately due and payable to the Administrative
Agent, for the benefit of the Lenders and the Administrative Agent, without
demand or notice of any nature, all of which are expressly waived by each
Guarantor. Payments by each Guarantor hereunder may be required by the
Administrative Agent on any number of occasions. All payments by any Guarantor
hereunder shall be made to the Administrative Agent, in the manner and at the
place of payment specified therefor in the Credit Agreement, for the account of
the Lenders and the Administrative Agent.
Notwithstanding any provision to the contrary contained herein or in any
other of the Loan Documents or Swap Contracts, the obligations of each Guarantor
under this Guaranty and the other Loan Documents shall be limited to an
aggregate amount equal to the largest amount that would not render such
obligations subject to avoidance under the Debtor Relief Laws or any comparable
provisions of any applicable state law.
3. GUARANTORS' AGREEMENT TO PAY ENFORCEMENT COSTS, ETC. Each Guarantor
further jointly and severally agrees, as the principal obligor and not as a
guarantor only, to pay to the Administrative Agent, on demand, all costs and
expenses (including court costs and reasonable legal expenses) incurred or
expended by the Administrative Agent or any Lender in connection with the
Obligations, this Guaranty and the enforcement thereof, together with interest
on amounts recoverable under this Section 3 from the time when such amounts
become due until payment, whether before or after judgment, at the rate of
interest for overdue principal set forth in the Credit Agreement, provided that
if such interest exceeds the maximum amount permitted to be paid under
applicable law, then such interest shall be reduced to such maximum permitted
amount.
4. WAIVERS BY GUARANTORS; LENDERS' FREEDOM TO ACT. Each Guarantor agrees
that the Obligations will be paid and performed strictly in accordance with
their respective terms, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent or any Lender with respect thereto. Each
Guarantor waives promptness, diligence, presentment, demand, protest, notice of
acceptance, notice of any Obligations incurred and all other notices of any
kind, all defenses which may be available by virtue of any valuation, stay,
moratorium law or other similar law now or hereafter in effect, any right to
require the marshalling of assets of the Borrower or any other entity or other
person primarily or secondarily liable with respect to any of the Obligations,
and all suretyship defenses generally. Without limiting the generality of the
foregoing, each Guarantor agrees to the provisions of any instrument evidencing,
securing or otherwise executed in connection with any Obligation and agrees that
the obligations of each Guarantor hereunder shall not be released or discharged,
in whole or in part, by (i) the failure of the Administrative Agent or any
Lender to assert any claim or demand or to enforce any right or remedy against
the Borrower or any other entity or other person primarily or secondarily liable
with respect to any of the Obligations; (ii) any extensions, compromise,
refinancing, consolidation or renewals of
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any Obligation; (iii) any change in the time, place or manner of payment of any
of the Obligations or any rescissions, waivers, compromise, refinancing,
consolidation or other amendments or modifications of any of the terms or
provisions of the Credit Agreement, the Notes, the other Loan Documents or any
other agreement evidencing, securing or otherwise executed in connection with
any of the Obligations, (iv) the addition, substitution or release of any entity
or other person primarily or secondarily liable for any Obligation; (v) the
adequacy of any rights which the Administrative Agent or any Lender may have
against any collateral security or other means of obtaining repayment of any of
the Obligations; (vi) the impairment of any collateral securing any of the
Obligations, including without limitation the failure to perfect or preserve any
rights which the Administrative Agent or any Lender might have in such
collateral security or the substitution, exchange, surrender, release, loss or
destruction of any such collateral security; or (vii) any other act or omission
which might in any manner or to any extent vary the risk of any Guarantor or
otherwise operate as a release or discharge of any Guarantor, all of which may
be done without notice to the Guarantors. To the fullest extent permitted by
law, each Guarantor hereby expressly waives any and all rights or defenses
arising by reason of (A) any "one action" or "anti-deficiency" law which would
otherwise prevent the Administrative Agent or any Lender from bringing any
action, including any claim for a deficiency, or exercising any other right or
remedy (including any right of set-off), against any Guarantor before or after
the Administrative Agent's or such Lender's commencement or completion of any
foreclosure action, whether judicially, by exercise of power of sale or
otherwise, or (B) any other law which in any other way would otherwise require
any election of remedies by the Administrative Agent or any Lender.
5. UNENFORCEABILITY OF OBLIGATIONS AGAINST BORROWER. If for any reason the
Borrower has no legal existence or is under no legal obligation to discharge any
of the Obligations, or if any of the Obligations have become irrecoverable from
the Borrower by reason of the Borrower's insolvency, bankruptcy or
reorganization or by other operation of law or for any other reason, this
Guaranty shall nevertheless be binding on each Guarantor to the same extent as
if such Guarantor at all times had been the principal obligor on all such
Obligations, subject to any limitations set forth herein. In the event that
acceleration of the time for payment of any of the Obligations is stayed upon
the insolvency, bankruptcy or reorganization of the Borrower, or for any other
reason, all such amounts otherwise subject to acceleration under the terms of
the Credit Agreement, the Notes, the other Loan Documents or any other agreement
evidencing, securing or otherwise executed in connection with any Obligation
shall be immediately due and payable by the Guarantors.
6. SUBROGATION; SUBORDINATION.
6.1. WAIVER OF RIGHTS AGAINST BORROWER. Until the final payment and
performance in full of all of the Obligations, (A) no Guarantor shall
exercise any rights against the Borrower arising as a result of payment by
such Guarantor hereunder, by way of subrogation, reimbursement,
restitution, contribution or otherwise, and will not prove any claim in
competition with the Administrative Agent or any Lender in respect of any
payment hereunder in any bankruptcy, insolvency or reorganization case or
proceedings of any nature; (B) no Guarantor will claim any setoff,
recoupment or counterclaim against the Borrower in respect of any liability
of such Guarantor to the Borrower; and
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(C) each Guarantor postpones and subordinates any benefit of and any right
to participate in any collateral security which may be held by the
Administrative Agent or any Lender.
6.2. SUBORDINATION. The payment of any amounts due with respect to any
indebtedness of the Borrower for money borrowed or credit received now or
hereafter owed to any Guarantor is hereby subordinated to the prior payment
in full of all of the Obligations. Each Guarantor agrees that, after the
occurrence of any Default in the payment or performance of any of the
Obligations, such Guarantor will not demand, xxx for or otherwise attempt
to collect any such indebtedness of the Borrower to such Guarantor until
all of the Obligations shall have been paid in full in cash or until such
Default is cured or waived in accordance with the terms and conditions of
the Loan Documents. If, notwithstanding the foregoing sentence, any
Guarantor shall collect, enforce or receive any amounts in respect of such
indebtedness while any Obligations are still outstanding, such amounts
shall be collected, enforced and received by such Guarantor as trustee for
the Lenders and the Administrative Agent and be paid over to the
Administrative Agent, for the benefit of the Lenders and the Administrative
Agent, on account of the Obligations without affecting in any manner the
liability of any Guarantor under the other provisions of this Guaranty.
6.3. PROVISIONS SUPPLEMENTAL. The provisions of this Section 6 shall
be supplemental to and not in derogation of any rights and remedies of the
Lenders and the Administrative Agent under any separate subordination
agreement which the Administrative Agent may at any time and from time to
time enter into with any Guarantor for the benefit of the Lenders and the
Administrative Agent.
7. SECURITY; SETOFF. Each Guarantor grants to each of the Administrative
Agent and the Lenders, as security for the full and punctual payment and
performance of all of such Guarantor's obligations hereunder, a continuing lien
on and security interest in all securities or other property belonging to such
Guarantor now or hereafter held by the Administrative Agent or such Lender and
in all deposits (general or special, time or demand, provisional or final) and
other sums credited by or due from the Administrative Agent or such Lender to
such Guarantor or subject to withdrawal by such Guarantor. Regardless of the
adequacy of any collateral security or other means of obtaining payment of any
of the Obligations, each of the Administrative Agent and the Lenders is hereby
authorized at any time and from time to time, without notice to any Guarantor
(any such notice being expressly waived by each Guarantor) and to the fullest
extent permitted by law, to set off and apply such deposits and other sums
against the obligations of such Guarantor under this Guaranty, whether or not
the Administrative Agent or such Lender shall have made any demand under this
Guaranty and although such obligations may be contingent or unmatured.
8. FURTHER ASSURANCES. Each Guarantor agrees that it will from time to
time, at the request of the Administrative Agent, do all such things and execute
all such documents as the Administrative Agent may consider necessary or
desirable to give full effect to this Guaranty and to perfect and preserve the
rights and powers of the Lenders and the Administrative Agent hereunder. Each
Guarantor acknowledges and confirms that such Guarantor itself has established
its own adequate means of obtaining from the Borrower on a continuing basis all
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information desired by such Guarantor concerning the financial condition of the
Borrower and that such Guarantor will look to the Borrower and not to the
Administrative Agent or any Lender in order for such Guarantor to keep
adequately informed of changes in the Borrower's financial condition.
9. COVENANTS UNDER CREDIT AGREEMENT. Each Guarantor acknowledges that a
Responsible Officer of such Guarantor has read a copy of each of the Loan
Documents and agrees to perform and comply with all of the obligations,
covenants and agreements in the Loan Documents that are applicable to it.
10. EFFECTIVENESS; REINSTATEMENT. This Guaranty shall remain in full force
and effect until the Obligations have been paid and performed in full in cash
and all credit commitments of the Administrative Agent and the Lenders in
respect thereof (including all outstanding Letters of Credit) have terminated.
This Guaranty shall continue to be effective or be reinstated, notwithstanding
any termination, if at any time any payment made or value received with respect
to any Obligation is rescinded or must otherwise be returned by the
Administrative Agent or any Lender upon the insolvency, bankruptcy or
reorganization of the Borrower, or otherwise, all as though such payment had not
been made or value received.
11. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon each
Guarantor, its respective successors and assigns, and shall inure to the benefit
of the Administrative Agent and the Lenders and their respective successors,
transferees and assigns. Without limiting the generality of the foregoing
sentence, each Lender may assign or otherwise transfer the Credit Agreement, the
Notes, the other Loan Documents or any other agreement or note held by it
evidencing, securing or otherwise executed in connection with the Obligations,
or sell participations in any interest therein, to any other entity or other
person, and such other entity or other person shall thereupon become vested, to
the extent set forth in the agreement evidencing such assignment, transfer or
participation, with all the rights in respect thereof granted to such Lender
herein, all in accordance with Section 11.06 of the Credit Agreement. No
Guarantor may assign any of its obligations hereunder.
12. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by the Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Administrative
Agent in accordance with Section 11.01 of the Credit Agreement. No failure on
the part of the Administrative Agent or any Lender to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right.
13. NOTICES. All notices and other communications called for hereunder
shall be made in writing and, unless otherwise specifically provided herein,
shall be deemed to have been duly made or given when delivered by hand or mailed
first class, postage prepaid, or, in the case of telegraphic or telexed notice,
when transmitted, answer back received, addressed as follows: if to any
Guarantor, at the address set forth beneath its signature hereto, and if to the
Administrative Agent, at the address for notices to the Administrative Agent set
forth in Section
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11.02 of the Credit Agreement, or at such address as either party may designate
in writing to the other.
14. GOVERNING LAW; CONSENT TO JURISDICTION. THIS GUARANTY IS INTENDED TO
TAKE EFFECT AND SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE COMMONWEALTH OF PENNSYLVANIA. Each Guarantor agrees that any suit for the
enforcement of this Guaranty may be brought in the courts of the Commonwealth of
Pennsylvania sitting in Philadelphia County and of the United States District
Court of the Eastern District of Pennsylvania and consents to the nonexclusive
jurisdiction of such court and to service of process in any such suit being made
upon the Guarantor by mail at the address specified by reference in Section 13.
Each Guarantor hereby waives any objection that it may now or hereafter have to
the venue of any such suit or any such court or that such suit was brought in an
inconvenient court.
15. WAIVER OF JURY TRIAL. EACH GUARANTOR AND THE ADMINISTRATIVE AGENT FOR
ITSELF AND THE LENDERS HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO
ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS GUARANTY,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY OF SUCH RIGHTS OR
OBLIGATIONS. Except as prohibited by law, each Guarantor and the Administrative
Agent for itself and the Lenders hereby waives any right which it may have to
claim or recover in any litigation referred to in the preceding sentence any
special, exemplary, punitive or consequential damages or any damages other than,
or in addition to, actual damages. Each Guarantor (i) certifies that neither the
Administrative Agent or any Lender nor any representative, agent or attorney of
the Administrative Agent or any Lender has represented, expressly or otherwise,
that the Administrative Agent or any Lender would not, in the event of
litigation, seek to enforce the foregoing waivers and (ii) acknowledges that, in
entering into the Credit Agreement and the other Loan Documents to which the
Administrative Agent or any Lender is a party, the Administrative Agent and the
Lenders are relying upon, among other things, the waivers and certifications
contained in this Section 15.
16. MISCELLANEOUS. This Guaranty constitutes the entire agreement of each
Guarantor with respect to the matters set forth herein. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other agreement, and this Guaranty shall be in addition to any other
guaranty of or collateral security for any of the Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for the
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms defined.
17. CONTRIBUTION. To the extent any Guarantor makes a payment hereunder in
excess of the aggregate amount of the benefit received by such Guarantor in
respect of the extensions of credit under the Credit Agreement (the "Benefit
Amount"), then such Guarantor, after the final and undefeasible payment in full,
in cash, of all of the Obligations, shall be entitled to recover from each other
guarantor of the Obligations such excess payment, pro rata, in accordance with
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the ratio of the Benefit Amount received by each such other guarantor to the
total Benefit Amount received by all guarantors of the Obligations, and the
right to such recovery shall be deemed to be an asset and property of such
Guarantor so funding.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
[GUARANTORS]
By:
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Title: *
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Address:
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Telex: *
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