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EXHIBIT 2.15
EXECUTION
MONITORING AGREEMENT
This MONITORING AGREEMENT ("Agreement"), dated as of January 27,
2000, is made by and between GTCR Xxxxxx Xxxxxx, L.L.C., a Delaware limited
liability company ("GTCR"), and Synagro Technologies, Inc., a Delaware
corporation (the "Company").
WHEREAS, GTCR Capital Partners, L.P., a Delaware limited
partnership ("Capital Partners"), of which GTCR is the indirect general partner,
will make available to the Company loans in the aggregate amount of up to
$125,000,000 pursuant to that certain Senior Subordinated Loan Agreement of even
date herewith between the Company and Capital Partners (the "Subordinated Loan
Agreement"), including $20,000,000 that Capital Partners will lend to the
Company on the Closing Date (as defined in the Subordinated Loan Agreement);
WHEREAS, GTCR will devote significant time and effort in
monitoring, on behalf of Capital Partners, the financial performance of the
Company and its subsidiaries and the Company's compliance with the terms and
provisions of the Subordinated Loan Agreement (such activities, the "Monitoring
Activities"); and
WHEREAS, Capital Partners has 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 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 GTCR a
monitoring fee in immediately available funds equal to one-half of one percent
(0.5%) of the aggregate amount of such financing.
2. Expenses. The Company shall promptly reimburse GTCR for such
reasonable travel expenses and other out-of-pocket fees and expenses as may be
incurred by GTCR, its 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 Note (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
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incurred by GTCR in rendering services hereunder and not reimbursed by the
Company as of the effective date of such termination.
4. Liability. Neither GTCR nor any of its 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 GTCR.
5. Indemnification. The Company agrees to indemnify and hold
harmless GTCR, its 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. GTCR an Independent Contractor. GTCR and the Company agree
that GTCR shall perform the Monitoring Activities hereunder as an independent
contractor, retaining control over and responsibility for its own operations and
personnel. Neither GTCR nor its 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.
(a) "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.
(b) "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 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.
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):
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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 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 GTCR 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 GTCR in connection with the
subject matter hereof. This Agreement may not be amended or modified without the
prior written consent of the Company and GTCR.
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 GTCR nor the Company may assign its
rights or obligations under this Agreement without the express written consent
of the other; provided that GTCR, without the consent of the Company, may assign
its rights and obligations hereunder to any successor entity to GTCR.
12. Successors. This Agreement and all the obligations and
benefits hereunder shall inure to the successors and permitted assigns of the
parties.
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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 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.
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IN WITNESS WHEREOF, GTCR and the Company have caused this
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
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Its: Chairman/CEO
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