MASTER GUARANTY
Exhibit
10.2
This
MASTER
GUARANTY (“Guaranty”)
dated as of
February 17, 2006 is made by each of the entities from time to time party hereto
(each in its capacity hereunder, a “Guarantor” and collectively the
“Guarantors”), jointly and severally, in favor of the Agent for the benefit of
the Guarantied Parties (defined below) with reference to the
following:
RECITALS
A. Pursuant
to that
certain Second Amended and Restated Credit Agreement dated as of February 17,
2006, by and among Insituform Technologies, Inc., a Delaware corporation
(“Borrower”), and Bank of America, N.A., as administrative agent (“Agent”) and
as L/C Issuer, and the other Lenders from time to time party thereto
(“Lenders”), as the same may be amended, restated, extended, supplemented or
otherwise modified in writing from time to time (the “Credit Agreement”), the
L/C Issuer and the Lenders are making certain credit facilities and other
extensions of credit available to the Borrower.
B.
As
a condition to
the availability of such credit facilities, the Guarantors are required to
enter
into this Master Guaranty and to guaranty the obligations hereunder as
hereinafter provided.
C. The
Guarantors
expect to realize certain direct and indirect benefits as the result of the
availability of the aforementioned credit facilities and extensions of credit
to
the Borrower, as the result of the financial or business support which will
be
provided to the Guarantors by the Borrower.
1.
The
Guaranty.
For valuable
consideration, each of the Guarantors hereby unconditionally guarantees and
promises to pay promptly to Agent for the benefit of the Guarantied Parties
in
lawful money of the United States, any and all Obligations of the Borrower
when
due, whether at stated maturity, upon acceleration or otherwise, and at all
times thereafter. The liability of each Guarantor under this Guaranty is not
limited as to the principal amount of the Obligations guaranteed and includes,
without limitation, liability for all interest, fees, indemnities (including,
without limitation, hazardous waste indemnities), and other costs and expenses
relating to or arising out of the Obligations and for all swap, option, or
forward obligations now or hereafter owing from Borrower to Agent for the
benefit of the Guarantied Parties. The liability of each Guarantor is continuing
and relates to any Obligations, including those arising under successive
transactions which shall either continue the Obligations or from time to time
renew it after it has been satisfied. This Guaranty replaces and supersedes
that
certain Master Guaranty dated as of March 12, 2004, but is otherwise
cumulative and does not supersede any other outstanding guaranties of the
Guarantors related to the Obligations, and the liability of each Guarantor
under
this Guaranty is exclusive of such Guarantor's liability under any other
guaranties signed by such Guarantor. Each Guarantor agrees that its obligations
under this Guaranty shall be joint and several with those of all other
Guarantors. Each Guarantor's liability hereunder shall not exceed at any one
time the largest amount during the period commencing with Guarantor's execution
of this Guaranty and thereafter that would not render such Guarantor's
obligations hereunder subject to avoidance under Section 548 of the Bankruptcy
Code (Title 11, United States Code) or any comparable provisions of any
applicable state law.
2.
Definitions.
All capitalized
terms not otherwise defined herein have the meanings given them in the Credit
Agreement. As used herein, “Guarantied Parties” means the Agent, the L/C Issuer
and the Lenders collectively or any of them individually.
3.
Obligations
Independent.
The obligations
hereunder are independent of the obligations of Borrower or any other guarantor,
and a separate action or actions may be brought and prosecuted against each
Guarantor individually or all Guarantors collectively whether action is brought
against Borrower or any other guarantor or whether Borrower or any other
guarantor be joined in any such action or actions. Each of the undersigned
shall
be bound by its terms without regard to execution by anyone else.
4.
Rights
of
Agent.
Each Guarantor
authorizes Agent for the benefit of the Guarantied Parties and each of the
other
Guarantied Parties individually, without notice or demand and without affecting
its liability hereunder, from time to time to:
(a)
renew,
compromise, extend, accelerate, or otherwise change the time for payment, or
otherwise change the terms of the Obligations or any part thereof, including
increase or decrease of the rate of interest
thereon,
or
otherwise change the terms of any Loan Documents;
(b)
receive and
hold security for the payment of this Guaranty or any Obligations and exchange,
enforce, waive, release, fail to perfect, sell, or otherwise dispose of any
such
security;
(c)
apply such
security and direct the order or manner of sale thereof as each of Agent or
any
of the other Guarantied Parties may determine in its discretion;
(d)
release or
substitute any Guarantor or any one or more of any endorsers or other guarantors
of any of the Obligations; and
(e)
permit the
Obligations to exceed each Guarantor's liability under this Guaranty, and each
Guarantor agrees that any amounts received, whether by Agent for the benefit
of
the Guarantied Parties, by any of the other Guarantied Parties individually,
or
by any group thereof, from any source other than such Guarantor shall be deemed
to be applied first to any portion of the Obligations not guaranteed by
Guarantor.
5.
Guaranty
to be
Absolute.
Each Guarantor
agrees that until the Obligations have been paid in full and any commitments
under the Credit Agreement with respect to the Obligations
have
been terminated, no Guarantor shall be released by or because of the taking,
or
failure to take, any action that might in any manner or to any extent vary
the
risks of any Guarantor under this Guaranty or that, but for this paragraph,
might discharge or otherwise reduce, limit, or modify any Guarantor's
obligations under this Guaranty. Each Guarantor waives and surrenders any
defense to any liability under this Guaranty based upon any such action,
including but not limited to any action of the Agent or any of the other
Guarantied Parties described in this Guaranty. It is the express intent of
each
Guarantor that such Guarantor’s obligations under this Guaranty are and shall be
absolute and unconditional.
6.
Guarantor's
Waivers of Certain Rights and Certain Defenses.
Guarantor
waives:
(a)
any right to
require Agent or any of the other Guarantied Parties to proceed against
Borrower, proceed against or exhaust any security for the Obligations, or pursue
any other remedy in Agent's power whatsoever;
(b)
any defense
arising by reason of any disability or other defense of Borrower, or the
cessation from any cause whatsoever of the liability of Borrower;
(c)
any defense
based on any claim that Guarantor's obligations exceed or are more burdensome
than those of Borrower; and
(d)
the benefit of
any statute of limitations affecting Guarantor's liability hereunder.
No
provision or waiver in this Guaranty shall be construed as limiting the
generality of any other waiver contained in this Guaranty.
7.
Waiver
of
Subrogation.
Until the
Obligations have been paid in full and any commitments, facilities or extensions
of credit provided by any of the Guarantied Parties with respect to the
Obligations have been terminated, even though the Obligations may be in excess
of Guarantor’s liability hereunder, each Guarantor waives to the extent
permitted by applicable law any right of subrogation, reimbursement,
indemnification, and contribution (contractual, statutory, or otherwise)
including, without limitation, any claim or right of subrogation under the
Bankruptcy Code (Title 11, United States Code) or any successor statute, arising
from the existence or performance of this Guaranty, and each Guarantor waives
to
the extent permitted by applicable law any
right to
enforce any remedy that Agent or any of the other Guarantied Parties now have
or
may hereafter have against Borrower, and waives any benefit of, and any right
to
participate in, any security now or hereafter held (i) by Agent for the benefit
of the Guarantied Parties or (ii) by any of the Guarantied Parties individually
or by any of the them.
8.
Waiver
of
Notices.
Each Guarantor
waives all presentments, demands for performance, notices of nonperformance,
protests, notices of protest, notices of dishonor, notices of intent to
accelerate, notices of acceleration, notices of any suit or any other action
against Borrower or any other person, any other notices to any party liable
on
any Loan Document (including any Guarantor), notices of acceptance of this
Guaranty, notices of the existence, creation, or incurring of new or additional
Obligations to which this Guaranty applies or any other Obligations of Borrower
pursuant to the Credit Agreement, and
notices of any
fact that might increase any Guarantor’s risk.
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9.
Subordination.
Any obligations
of Borrower to any Guarantor, now or hereafter existing, including but not
limited to any obligations to any Guarantor as subrogee of Agent or any of
the
other Guarantied Parties resulting from any Guarantor's performance under this
Guaranty, are hereby subordinated to the Obligations. In addition to each
Guarantor's waiver of any right of subrogation as set forth in this Guaranty
with no respect to any obligations of Borrower to any Guarantor as subrogee
of
Agent and the other Guarantied Parties, each Guarantor agrees that, if Agent
or
any of the other Guarantied Parties so request, Guarantor shall demand, take,
or
receive from Borrower, by setoff or in any other manner, payment of any other
obligations of Borrower to any Guarantor until the Obligations have been paid
in
full and any commitments under the Credit Agreement have been terminated. If
any
payments are received by any Guarantor in violation of such waiver or agreement,
such payments shall be received by such Guarantor as trustee for Agent and
the
other Guarantied Parties and shall be paid over to Agent for the benefit of
the
Guarantied Parties, on account of the Obligations, but without reducing or
affecting in any manner the liability of such Guarantor under the other
provisions of this Guaranty. Any security interest, lien, or other encumbrance
that any Guarantor may now or hereafter have on any property of Borrower is
hereby subordinated to any security interest, lien, or other encumbrance that
Agent, the other Guarantied Parties or any of them may have on any such
property.
10.
Reinstatement
of
Guaranty.
If this Guaranty
is revoked, returned, or canceled, and subsequently any payment or transfer
of
any interest in property by Borrower to Agent or any of the other Guarantied
Parties is rescinded or must be returned by Agent or any of the other Guarantied
Parties to Borrower, this Guaranty shall be reinstated with respect to any
such
payment or transfer, regardless of any such prior revocation, return, or
cancellation.
11.
Stay
of
Acceleration.
In the event that
acceleration of the time for payment of any of the Obligations is stayed upon
the insolvency, bankruptcy, or reorganization of Borrower or otherwise, all
such
Obligations guaranteed by each Guarantor shall nonetheless be payable by each
Guarantor immediately if requested by Agent.
12.
No
Setoff or
Deductions; Taxes.
(a)
Each Guarantor
represents and warrants that it is organized and resident in the United States
of America. All payments by each Guarantor hereunder shall be paid in full,
without setoff or counterclaim or any deduction or withholding whatsoever,
including, without limitation, for any and all present and future taxes. If
any
Guarantor must make a payment under this Guaranty, such Guarantor represents
and
warrants that it will make the payment from one of its U.S. resident offices
to
Agent so that no withholding tax is imposed on the payment. Notwithstanding
the
foregoing, if any Guarantor makes a payment under this Guaranty to which
withholding tax applies or if any taxes are at any time imposed on any payments
under or in respect of this Guaranty including, but not limited to, payments
made pursuant to this paragraph, each Guarantor shall pay all such taxes to
the
relevant authority in accordance with applicable law such that each of the
Guarantied Parties receives the sum it would have received had no such deduction
or withholding been made (or, if any Guarantor cannot legally comply with the
foregoing, such Guarantor shall pay to Agent for the benefit of the Guarantied
Parties such additional amounts as will result in each of the Guarantied Parties
receiving the sum it would have received had no such deduction or withholding
been made). Further, each Guarantor shall also pay to Agent for the benefit
of
the Guarantied Parties, on demand, all additional amounts that Agent specifies
as necessary to preserve the after-tax yield each of the Guarantied Parties
would have received if such taxes had not been imposed.
(b)
Each Guarantor
shall promptly provide Agent for the benefit of the Guarantied Parties with
an
original receipt or certified copy issued by the relevant authority evidencing
the payment of any such amount required to be deducted or withheld.
13.
Information
Relating to Borrower.
Each Guarantor
acknowledges and agrees that it shall have the sole responsibility for, and
has
adequate means of, obtaining from Borrower such information concerning
Borrower's financial condition or business operations as such Guarantor may
require, and that neither Agent nor any of the other Guarantied Parties has
any
duty, and no Guarantor is relying on Agent or any of the other Guarantied
Parties, at any time to disclose to Guarantors any information relating to
the
business operations or financial condition of Borrower.
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14.
Borrower's
Authorization.
Each Guarantor
agrees that it is not necessary for Agent or any of the other Guarantied Parties
to inquire into the powers of Borrower or of the officers, directors, partners,
members, managers, or agents acting or purporting to act on its behalf, and
any
Obligations made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
15.
Representations
and Warranties.
Each Guarantor
represents and warrants to the Guarantied Parties as follows:
(a)
Authorization.
Each Guarantor is
duly authorized to execute and perform this Guaranty, and this Guaranty has
been
properly authorized by all requisite corporate, membership, or partnership
action (as the case may be) of such Guarantor. No consent, approval or
authorization of, or declaration or filing with, any Governmental Authority
or
any other Person, is required in connection with such Guarantor’s execution,
delivery or performance of this Guaranty, except for those already duly
obtained.
(b)
Due
Execution.
This Guaranty has
been executed on behalf of each Guarantor by a legally competent Person duly
authorized to do so.
(c)
Enforceability.
This Guaranty
constitutes the legal, valid and binding obligation of each Guarantor,
enforceable against such Guarantor in accordance with its terms, except to
the
extent that the enforceability thereof against such Guarantor may be limited
by
bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting
creditor’s rights generally or by equitable principles of general
application.
(d)
Legal
Restraints.
The execution of
this Guaranty by each Guarantor, and the performance by such Guarantor of its
obligations under this Guaranty, will not violate or constitute a default under
the Organization Documents of such Guarantor, any material agreement, or any
material law, and will not, except as expressly contemplated or permitted in
this Guaranty, result in any security interest being imposed on any of such
Guarantor’s property.
(e)
No
Representation by the Guarantied Parties.
No Guarantied
Party has made any representation, warranty or statement to any Guarantor to
induce such Guarantor to execute this Guaranty.
All
representations, warranties, and covenants of each Guarantor contained herein
survive the execution and delivery of this Guaranty, and terminate only upon
Final Payment.
16.
Guarantor's
Covenants.
Until the
Obligations guaranteed under this Guaranty have been paid in full and any
commitments of Agent or any of the other Guarantied Parties with respect to
such
Obligations have been terminated and each and every term, covenant, and
condition of this Guaranty is fully performed, each Guarantor covenants and
agrees to perform and comply in all material respects with each covenant and
other undertaking in the Credit Agreement that the Borrower undertakes to cause
such Guarantor to perform, subject to any applicable grace periods, if any,
for
such performance provided for in the Credit Agreement.
17.
Remedies.
If Guarantor
fails to fulfill its duty to pay all Obligations guaranteed hereunder, Agent
and
each of the other Guarantied Parties shall have all of the remedies of a
creditor and, to the extent applicable, of a secured party, under all applicable
law. Without limiting the foregoing, each of Agent or any of the other
Guarantied Parties may, at its option and without notice or demand:
(a)
declare any
Obligations due and payable at once;
(b)
take possession
of any collateral pledged by Borrower or Guarantor, wherever located, and sell,
resell, assign, transfer, and deliver all or any part of the collateral at
any
public or private sale or otherwise dispose of any or all of the collateral
in
its then condition, for cash or on credit or for future delivery, and in
connection therewith Agent or any of the other Guarantied Parties may impose
reasonable conditions upon any such sale. Further, unless prohibited by law
the
provisions of which cannot be waived, the Agent (for the benefit of the
Guarantied Parties) or any of the other Guarantied Parties may purchase all
or
any part of the collateral to be sold, free from and discharged of all trusts,
claims, rights of redemption and equities of Borrower or any Guarantor
whatsoever. Each Guarantor acknowledges and agrees that the sale of any
collateral through any nationally recognized broker-dealer,
investment
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banker,
or any
other method common in the securities industry shall be deemed a commercially
reasonable sale under the Uniform Commercial Code or any other equivalent
statute or federal law, and expressly waives notice thereof except as provided
herein; and
(c)
set off against
any or all liabilities of any Guarantor all money owed by the Agent or any
of
the other Guarantied Parties or any agents or affiliates of any of them, whether
or not due, and also set off against all other liabilities of any Guarantor
to
Agent or any of the other Guarantied Parties all money owed by Agent or any
of
the other Guarantied Parties in any capacity to a Guarantor. If exercised by
Agent, Agent shall be deemed to have exercised such right of setoff and to
have
made a charge against any such money immediately upon the occurrence of such
default although made or entered on the books subsequent thereto.
18.
Notices.
All notices
required under this Guaranty shall be personally delivered or sent by first
class mail, postage prepaid, or by overnight courier, to the addresses set
forth
for such purposes in the Credit Agreement, or sent by facsimile to the fax
numbers listed on the signature page, or to such other addresses as Agent and
Guarantor may specify from time to time in writing. Notices sent by (a) first
class mail shall be deemed delivered on the earlier of actual receipt or on
the
fourth business day after deposit in the U.S. mail, postage prepaid,
(b) overnight courier shall be deemed delivered on the next business day,
and (c) telecopy shall be deemed delivered when transmitted.
19.
Successors
and
Assigns.
This Guaranty (a)
binds each Guarantor and such Guarantor's executors, administrators, successors,
and assigns, provided that such Guarantor may not assign its rights or
obligations under this Guaranty without the prior written consent of Agent,
and
(b) inures to the benefit of Agent for the benefit of the Guarantied Parties,
and to each of the other Guarantied Parties individually, and the indorsees,
successors, and assigns of each. Agent or any of the other Guarantied Parties
may, without notice to any Guarantor and without affecting any Guarantor's
obligations hereunder, sell, assign, grant participations in, or otherwise
transfer to any other person, firm, or corporation the Obligations and this
Guaranty, in whole or in part. Guarantor agrees that Agent or any of the other
Guarantied Parties may disclose to any assignee or purchaser, or any prospective
assignee or purchaser, of all or part of the Obligations any and all information
in Agent's possession concerning any Guarantor, this Guaranty, and any security
for this Guaranty.
20.
Amendments,
Waivers, and Severability.
No provision of
this Guaranty may be amended or waived except in writing. No failure by Agent
to
exercise, and no delay in exercising, any of its rights, remedies, or powers
shall operate as a waiver thereof, and no single or partial exercise of any
such
right, remedy, or power shall preclude any other or further exercise thereof
or
the exercise of any other right, remedy, or power. The unenforceability or
invalidity of any provision of this Guaranty shall not affect the enforceability
or validity of any other provision of this Guaranty.
21.
Costs
and
Expenses.
Each Guarantor
agrees to pay all reasonable attorneys' fees, including allocated costs of
Agent's or any of the other Guarantied Parties’ in-house counsel to the extent
permitted by applicable law, and all other costs and expenses that may be
incurred by Agent or any of the other Guarantied Parties (a) in the enforcement
of this Guaranty or (b) in the preservation, protection, or enforcement of
any
rights of Agent or any of the other Guarantied Parties in any case commenced
by
or against any Guarantor or Borrower under the Bankruptcy Code (Title 11, United
States Code) or any similar or successor statute.
22.
Governing
Law
and Jurisdiction.
This Guaranty
shall be governed by and construed and enforced in accordance with federal
law
and the law of the State of Missouri. Jurisdiction and venue for any action
or
proceeding to enforce this Guaranty shall be the forum appropriate for such
action or proceeding against Borrower, to which jurisdiction each Guarantor
irrevocably submits and to which venue each Guarantor waives to the fullest
extent permitted by law any defense asserting an inconvenient forum in
connection therewith. It is provided, however, that if any Guarantor owns
property in another state, notwithstanding that the forum for enforcement action
is elsewhere, Agent or any of the other Guarantied Parties may commence a
collection proceeding in any state in which any Guarantor owns property for
the
purpose of enforcing provisional remedies against such property. Service of
process by Agent in connection with such action or proceeding shall be binding
on each Guarantor if sent to Guarantor by registered or certified mail at its
address specified below.
23.
Waiver
of Jury
Trial.
The parties to
this agreement waive trial by jury in any action or proceeding to which they
may
be parties, arising out of, in connection with or in any way pertaining to,
this
agreement. It is agreed and understood that this waiver constitutes a waiver
of
trial by jury of all claims against all parties to such action or proceedings,
including claims against parties who are not parties to this agreement. This
waiver is knowingly, willingly and voluntarily made.
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Regulation
U of the
Board of Governors of the Federal Reserve System places certain restrictions
on
loans secured by margin stock (as defined in the Regulation). Bank and Borrower
shall comply with Regulation U. If any of the collateral is margin stock, the
Borrower and Guarantor shall provide to the Bank a Form U-1 Purpose
Statement.
24.
FINAL
AGREEMENT.
BY SIGNING
THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (A) THIS DOCUMENT
REPRESENTS THE FINAL AGREEMENT BETWEEN PARTIES WITH RESPECT TO THE SUBJECT
MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY COMMITMENT LETTER, TERM SHEET,
OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS RELATING TO THE SUBJECT MATTER
HEREOF, UNLESS SUCH COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE
OF
TERMS AND CONDITIONS EXPRESSLY PROVIDES TO THE CONTRARY, (C) THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (D) THIS DOCUMENT MAY NOT
BE
CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
25.
ORAL
AGREEMENTS. ORAL
AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE, REGARDLESS OF THE LEGAL THEORY UPON WHICH IT IS BASED
THAT
IS IN ANY WAY RELATED TO THE CREDIT AGREEMENT. TO PROTECT YOU (BORROWER(S))
AND
US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH
COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE
AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE
IN
WRITING TO MODIFY IT.
[Remainder
of page intentionally left blank; signature page follows]
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The
parties hereto
have executed this Master Guaranty as of the date first written
above.
|
GUARANTORS:
|
|
| INA ACQUISITION CORP. | INSITUFORM TECHNOLOGIES USA, INC. |
| By: /s/ Xxxxx X. Xxxxxx | By: /s/ Xxxxx X. Xxxxxx |
| Name: Xxxxx X. Xxxxxx | Name: Xxxxx X. Xxxxxx |
| Title: Vice President and Controller | Title: Vice President and Controller |
| XXXXXXXXX, INC. | MISSISSIPPI TEXTILES CORPORATION |
| By: /s/ Xxxxx X. Xxxxxx | By: /s/ Xxxxx X. Xxxxxx |
| Name: Xxxxx X. Xxxxxx | Name: Xxxxx X. Xxxxxx |
| Title: Vice President and Controller | Title: Vice President and Controller |
| XXXXXX INDUSTRIES, INC. | |
| By: /s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | |
| Title: Vice President and Controller | |
|
Acknowledged:
|
|
| BANK OF AMERICA, N.A., | |
| By: /s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | |
| Title: Senior Vice President |
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