EXHIBIT 10.1
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AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF MARCH 12, 2004
BETWEEN
INSITUFORM TECHNOLOGIES, INC.,
AND
BANK OF AMERICA, N.A.
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TABLE OF CONTENTS
PAGE
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SECTION 1. DEFINITIONS AND ACCOUNTING TERMS..................................... 1
1.01 Defined Terms......................................................... 1
1.02 Use of Certain Terms.................................................. 12
1.03 Accounting Terms...................................................... 13
1.04 Rounding.............................................................. 13
1.05 Exhibits and Schedules................................................ 13
1.06 References to Agreements and Laws..................................... 13
SECTION 2. THE COMMITMENTS AND EXTENSIONS OF CREDIT............................. 13
2.01 Amount and Terms of Commitments....................................... 13
2.02 Borrowings of Loans................................................... 13
2.03 Letters of Credit..................................................... 14
2.04 Prepayments........................................................... 17
2.05 Not Used.............................................................. 17
2.06 Reduction or Termination of Commitments............................... 17
2.07 Principal and Interest................................................ 17
2.08 Fees.................................................................. 18
2.09 Computation of Interest and Fees...................................... 18
2.10 Making Payments....................................................... 18
2.11 Funding Sources....................................................... 18
SECTION 3. TAXES, YIELD PROTECTION AND ILLEGALITY............................... 18
3.01 Taxes................................................................. 18
3.02 Not Used.............................................................. 19
3.03 Not Used.............................................................. 19
3.04 Increased Cost and Reduced Return; Capital Adequacy................... 19
3.05 Not Used.............................................................. 19
3.06 Matters Applicable to all Requests for Compensation................... 19
3.07 Survival.............................................................. 20
SECTION 4. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT......................... 20
4.01 Conditions of Initial Extension of Credit............................. 20
4.02 Conditions to all Extensions of Credit................................ 22
4.03 Conditions for a Domestic Subsidiary Becoming a Guarantor............. 22
SECTION 5. REPRESENTATIONS AND WARRANTIES....................................... 23
5.01 Organization and Existence............................................ 23
5.02 Authorization......................................................... 23
5.03 Due Execution......................................................... 23
5.04 Enforceability of Obligations......................................... 23
5.05 Burdensome Obligations................................................ 23
5.06 Legal Restraints...................................................... 23
5.07 Labor Disputes........................................................ 24
5.08 No Material Proceedings............................................... 24
5.09 Material Licenses..................................................... 24
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5.10 Compliance with Material Laws......................................... 24
5.11 Financial Statements.................................................. 24
5.12 No Change in Condition................................................ 25
5.13 No Defaults........................................................... 25
5.14. Tax Liabilities; Governmental Charges................................. 25
5.15 Pension Benefit Plans................................................. 25
5.16 Employee Benefit Plans................................................ 26
5.17 State of Property..................................................... 26
5.18 Subsidiaries.......................................................... 26
5.19 Margin Stock.......................................................... 26
5.20 Hostile Securities Transactions....................................... 26
5.21 Investment Company Act, Etc........................................... 26
5.22 Filings............................................................... 27
5.23 Broker's Fees......................................................... 27
5.24 Indebtedness Outstanding on Closing Date.............................. 27
5.25 Projections........................................................... 27
5.26 Full Disclosure....................................................... 27
5.27 Use of Proceeds....................................................... 27
5.28 Bonding Capacity...................................................... 27
SECTION 6. AFFIRMATIVE COVENANTS................................................ 27
6.01 Financial Statements.................................................. 27
6.02 Certificates, Notices and Other Information........................... 28
6.03 Use of Proceeds....................................................... 29
6.04 Corporate Existence................................................... 29
6.05 Maintenance of Property and Leases.................................... 29
6.06 Insurance............................................................. 29
6.07 Payment of Taxes and Other Obligations................................ 30
6.08 Compliance With Laws.................................................. 30
6.09 Accounting System..................................................... 30
6.10 Additional Guarantors................................................. 30
6.11 Audits by Lender...................................................... 31
6.12 Access to Officers and Auditors....................................... 31
6.13 Further Assurances.................................................... 31
SECTION 7. NEGATIVE COVENANTS................................................... 31
7.01 Note Purchase Agreements.............................................. 31
7.02 Amendments; Prepayments............................................... 31
SECTION 8. EVENTS OF DEFAULT AND REMEDIES....................................... 32
8.01 Events of Default..................................................... 32
8.02 Remedies Upon Event of Default........................................ 33
SECTION 9. NOT USED............................................................. 34
SECTION 10. MISCELLANEOUS....................................................... 34
10.01 Amendments; Consents.................................................. 34
10.02 Transmission and Effectiveness of Communications and Signatures....... 34
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10.03 Attorney Costs, Expenses and Taxes.................................... 35
10.04 Binding Effect; Assignment............................................ 36
10.05 Set off............................................................... 37
10.06 Not Used.............................................................. 37
10.07 No Waiver; Cumulative Remedies........................................ 37
10.08 Usury................................................................. 37
10.09 Counterparts.......................................................... 38
10.10 Integration........................................................... 38
10.11 Nature of Lenders' Obligations........................................ 38
10.12 Survival of Representations and Warranties............................ 38
10.13 Indemnity by Borrower................................................. 38
10.14 Nonliability of Lenders............................................... 39
10.15 No Third Parties Benefited............................................ 40
10.16 Severability.......................................................... 40
10.17 Confidentiality....................................................... 40
10.18 Further Assurances.................................................... 41
10.19 Headings.............................................................. 41
10.20 Time of the Essence................................................... 41
10.21 Not Used.............................................................. 41
10.22 Compelled Return of Payments or Proceeds.............................. 41
10.23 Governing Law......................................................... 41
10.24 Waiver of Right to Trial by Jury...................................... 42
10.25 Oral Agreements....................................................... 42
10.26 Credit Agreement...................................................... 42
EXHIBITS
FORM OF:
A Request for Extension of Credit
B Compliance Certificate
C Promissory Note
D Master Guaranty
E Instrument of Joinder
SCHEDULES
1.01 List of Outstanding Letters of Credit
4.01(b) Guarantors as of Closing Date
5.08 Certain Proceedings
5.18 Subsidiaries as of Closing Date
5.24 Existing Indebtedness, Liens and Negative Pledges and Note
Purchase Agreement-2003
10.02 Notice Addresses and Lending office
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is entered
into as of March 12, 2004 by and between INSITUFORM TECHNOLOGIES, INC., a
Delaware corporation ("Company" or "Borrower") and BANK OF AMERICA, N.A.,
("Lender").
RECITAL
Lender, Borrower and certain other institutional lender parties entered
into a Credit Agreement dated as of March 27, 2003, as amended thereafter
("Original Credit Agreement");
All of the parties to the Original Credit Agreement desire to amend and
restate in its entirety the Original Credit Agreement;
Lender and Borrower, as the sole parties to this Agreement, desire to
reflect the terms and conditions of the Amended and Restated Credit Agreement;
In consideration of the mutual covenants and agreements hereto
contained, the parties hereto covenant and agree as follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquiring Person" means a "person" or "group of persons" within the
meaning of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended.
"Affiliate" means, with respect to any Person (a) any other Person who
is a partner, director or executive officer of such Person; and (b) any other
Person which, directly or indirectly, is in control of, is controlled by or is
under common control with such Person, and any partner, director or executive
officer of such other Person. For purposes of this Agreement, control of a
Person by another Person shall be deemed to exist if such other Person has the
power, directly or indirectly, either to (i) vote twenty percent (20%) or more
of the securities having the power to vote in an election of directors of such
Person, or (ii) direct the management of such Person, whether by contract or
otherwise and whether alone or in combination with others.
"Agreement" means this Amended And Restated Credit Agreement, as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time.
"Applicable Payment Date" means the last Business Day of each calendar
quarter and the Maturity Date; provided, further, that interest accruing at the
Default Rate shall be payable from time to time upon demand of Lender.
"Applicable Time" means St. Louis, Missouri time.
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"Assignment and Acceptance" means an Assignment and Acceptance
substantially in the form of Exhibit F.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel and the reasonable
allocated cost of internal legal services and all disbursements of internal
counsel.
"Base Rate" means a fluctuating rate per annum equal to the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate." Such rate is a rate set by Bank of America based
upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Borrower" means the Company.
"Borrower Party" means Company and each Guarantor.
"Borrowing" and "Borrow" each mean a borrowing of Loans hereunder.
"Borrowing Date" means the date that a Loan is made, which shall be a
Business Day.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City or St. Louis, Missouri are authorized
or required by law to close.
"Change of Control" means the earliest to occur of: (a) the date a
tender offer or exchange offer results in an Acquiring Person, directly or
indirectly, beneficially owning 50% or more of the Voting Stock of Company then
outstanding, or (b) the date an Acquiring Person becomes, directly or
indirectly, the beneficial owner of 50% or more of the Voting Stock of Company
then outstanding, or (c) the date of a merger or statutory share exchange
between Company and any other Person, a consolidation of Company with any other
Person or an acquisition of any other Person by Company, if immediately after
such event, the Acquiring Person shall hold 50% or more of the Voting Stock of
Company outstanding immediately after giving effect to such merger, statutory
share exchange, consolidation or acquisition, or (d) the replacement (other than
solely by reason of retirement, death or disability) of 50% or more of the
members of the Board of Directors of Company over a one year period from the
directors who constituted such Board of Directors at the beginning of such
period and such replacement shall not have been approved by a vote of at least a
majority of the Board of Directors of Company then still in office who either
were members of such Board of Directors at the beginning of such one year period
or whose election as members of the Board of Directors was previously so
approved.
"Charter Documents" means the articles or certificates of incorporation
and bylaws of a corporation; the certificate of limited partnership and
partnership agreement of a limited partnership; the partnership agreement of a
general partnership; the articles of organization and operating agreement of a
limited liability company; or the indenture of a trust, or comparable documents
for other entities.
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"Closing Date" means the date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 4.01.
"Cobra" means the Consolidated Omnibus Budget Reconciliation Act of
1986, as amended from time to time.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, for the Lender, the amount of $25,000,000.
"Commonly Controlled Entity" means a Person which is under common
control with another Person within the meaning of Section 414(b) or (c) of the
Code.
"Company" has the meaning set forth in the introductory paragraph
hereto.
"Compliance Certificate" means a certificate in the form of Exhibit B,
properly completed and signed by a Responsible Officer of Company.
"Contract" means any contract, note, bond, indenture, deed, mortgage,
deed of trust, security agreement, pledge, hypothecation agreement, assignment,
or other agreements or undertaking, or any security.
"Covered Person" means Company and each of its presently existing or
future acquired, organized or created Subsidiaries separately. The words
"Covered Persons" refer to the Company and its presently existing or future
acquired, organized or created Subsidiaries collectively.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect affecting the rights
of creditors generally.
"Default" means any of the events listed in Section 8.01, without
giving effect to any requirement for the giving of notice, for the lapse of
time, or both, or for the happening of any other condition, event or act.
"Default Rate" means an interest rate equal to the Base Rate plus 2%
per annum.
"Designated Deposit Account" means a deposit account maintained by
Company with Lender.
"DOL" means the United States Department of Labor.
"Dollar" and $ means lawful money of the United States of America.
"Domestic Subsidiary" means any Subsidiary of Company organized under
the laws of the United States or a state of the United States existing on the
Closing Date or created or acquired after the Closing Date.
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"Eligible Assignee" means (a) a financial institution organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States; (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Lender; (ii) a Subsidiary
of a Person of which a Lender is a Subsidiary, or (iii) a Person of which a
Lender is a Subsidiary; (d) another Lender; (e) any other entity which is an
"accredited investor" (as defined in Regulation D under the Securities Act of
1933, as amended) which extends credit or buys loans as one of its businesses,
including but not limited to, insurance companies, mutual funds and lease
financing companies; or (f) other lenders or institutional investors consented
to in writing in advance by Lender and Company. No Borrower Party or any
Affiliate of a Borrower Party shall be an Eligible Assignee.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means as to any Person, any trade or business
(irrespective of whether incorporated) which is a member of a group of which
such Person is a member and thereafter treated as a single employer under
Section 414(b), (c), (m) or (o) of the Code or applicable Treasury Regulations.
"Event of Default" means any of the events listed in Section 8.01 as to
which any requirement for the giving of notice, for the lapse of time, or both,
or for the happening of any further condition, event or act has been satisfied.
"Extension of Credit" means (a) the Borrowing of any Loans, or (b) a
Letter of Credit Action wherein a new Letter of Credit is issued or which has
the effect of increasing the amount of, extending the maturity of, or making a
material modification to an outstanding Letter of Credit or the reimbursement of
drawings thereunder (collectively the "Extension of Credit").
"Final Payment" means payment in full of the Loans, all unpaid interest
accrued thereon and all commitments fees, accompanied by the cancellation or
termination of all Commitment and expiration of all undrawn outstanding Letters
of Credit for which Company has not provided a back-to-back letter of credit in
favor of Lender in form and substance reasonably satisfactory to Lender covering
all Letter of Credit Usage with respect thereto issued by a financial
institution (a) whose long-term senior unsecured indebtedness is rated at least
A by Standard & Poor's Rating Services, a division of the The XxXxxx-Xxxx
Companies, Inc., at least A2 by Xxxxx'x Investors Service, Inc., or an
equivalent rating by any other credit rating agency of recognized national
standing, and (b) which would qualify as an Eligible Assignee.
"Financial Statements" means the most recent of the financial
statements of the Company that are furnished to Lender as required in Section
6.01.
"FRB" means the Board of Governors of the Federal Reserve System and
any successor thereto or to the functions thereof.
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"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession, that are
applicable to the circumstances as of the date of determination, consistently
applied. If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either
Company or Lender shall so request, Lender and Company shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP, provided that, until so amended, (a) such ratio
or requirement shall continue to be computed in accordance with GAAP prior to
such change therein and (b) Company shall provide to Lender financial statements
and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
"Governmental Authority" means the federal government of the United
States; the government of any foreign country that is recognized by the United
States or is a member of the United Nations; any state of the United States; any
local government or municipality within the territory or under the jurisdiction
of any of the foregoing; any department, agency, division, or instrumentality of
any of the foregoing; and any court, arbitrator, or board of arbitrators whose
orders or judgments are enforceable by or within the territory of any of the
foregoing.
"Guarantor" means each Domestic Subsidiary of Company, except
Mississippi Textiles Corporation and Insituform (Netherlands) B.V., Inc., and
any other Person executing a Guaranty of the Obligations (collectively, the
"Guarantors").
"Guaranty" means, with respect to any Person, without duplication, any
obligation (except the endorsement in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person guaranteeing or
in effect guaranteeing (including, without limitation, having recourse
obligations for the Guaranties of another Person) any indebtedness, dividend or
other obligation of any other Person in any manner, whether directly or
indirectly, including (without limitation) obligations incurred through an
agreement, contingent or otherwise, by such Person:
(a) to purchase such Indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or
payment of such indebtedness or obligation, or (ii) to maintain any
working capital or other balance sheet condition or any income
statement condition of any other Person or otherwise to advance or make
available funds for the purchase or payment of such Indebtedness or
obligation;
(c) to lease properties or to purchase properties or
services primarily for the purpose of assuring the owner of such
Indebtedness or obligation of the ability of any other Person to make
payment of the Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or
obligation against loss in respect thereof.
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In any computation of the Indebtedness or other liabilities of the obligor under
any Guaranty, the Indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"Guaranty Obligation" means as to any Person, (a) any guaranty by such
Person of any obligation of another Person; (b) any Security Interest in any
property of such Person that secures any obligation of another Person; (c) any
enforceable contractual requirement that such Person (i) purchase an obligation
of another Person or any property that is security for such obligation, (ii)
advance or contribute funds to another Person for the payment of an obligation
of such other Person or to maintain the working capital, net worth or solvency
of such other Person as required in any documents evidencing an obligation of
such other Person, (iii) purchase property, securities or services from another
Person for the purpose of assuring the beneficiary of any obligation of such
other Person that such other Person has the ability to timely pay or discharge
such obligation, (iv) grant a Security Interest in any property of such Person
to secure any obligation of another person, or (v) otherwise assure or hold
harmless the beneficiary of any obligation of another Person against loss in
respect thereof; and (d) any other contractual requirement enforceable against
such Person that has the same substantive effect as any of the foregoing. The
term "Guaranty Obligation" does not, however, include the endorsement by a
Person of instruments for deposit or collection in the ordinary course of
business or the liability of a general partner or a partnership for obligations
of such partnership. The amount of any Guaranty Obligation of a Person shall be
deemed to be the stated or determinable amount of the obligation in respect of
which such Guaranty Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
such Person in good faith.
"Hazardous Material" means any hazardous, radioactive, toxic, solid or
special waste, material substance or constituent thereof, or any other such
substance (as defined under any applicable law or regulation), including
Asbestos or asbestos containing hazardous constituents which are not considered
to be waste under the applicable Environmental Law or which are considered to be
waste but are transported, handled or disposed of in accordance with the
applicable Environmental Law or which are considered to be waste but are
transported, handled or disposed or in accordance with the applicable
Environmental Law, or asbestos or asbestos containing material which is not
friable.
"Indemnified Liabilities" has the meaning set forth in Section 9.12.
"Indemnitees" has the meaning set forth in Section 9.12.
"Instrument of Joinder" means the Instrument of Joinder substantially
in the form of Exhibit E executed and delivered by any Subsidiary of Borrower,
as contemplated by Section 4.03 and any amendments or supplements thereto.
"Intercreditor Agreement" means that certain Amended and Restated
Intercreditor Agreement dated as of April 24, 2003, by and among Bank of America
and the other lenders party thereto, as further amended, supplemented or
otherwise modified from time to time.
"Investments" means, without duplication, all investments, in cash or
by delivery of property, made directly or indirectly in any property or assets
or in any Person, whether by
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acquisition of shares of capital stock, Indebtedness or other obligations or
securities or by loan, advance, capital contribution or otherwise.
"IRS" means the United States Internal Revenue Service.
"Laws" or "Law" means all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorization and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"Lender" means Bank of America, N.A.
"Lending Office" means the office or offices of Lender at 000 Xxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or such other office or offices as a Lender
may from time to time notify Borrower.
"Letter of Credit" means any letter of credit issued or outstanding
hereunder, including, without limitation, the Letters of Credit outstanding on
the Closing Date and listed on Schedule 1.01 hereto. A Letter of Credit may be a
commercial letter of credit or a standby letter of credit.
"Letter of Credit Action" means the issuance, supplement, amendment,
renewal, extension modification or other action relating to a Letter of Credit
hereunder.
"Letter of Credit Application" means an application for a Letter of
Credit Action from time to time in general use by Lender.
"Letter of Credit Cash Collateral Account" means a blocked deposit
account at Bank of America in which Borrower shall grant a security interest to
Lender as security for Letter of Credit Usage by Borrower and with respect to
which Borrower agrees to execute and deliver from time to time, on the date
hereafter required, such documentation as Lender may reasonably request to
further assure and confirm such security interest.
"Letter of Credit Sublimit" means an amount equal to the Commitment.
The Letter of Credit Sublimit is part of, and not in addition to, the
Commitment.
"Letter of Credit Usage" means, as at any date of determination, the
aggregate undrawn face amount of outstanding Letters of Credit plus the
aggregate amount of all drawings under the Letters of Credit not reimbursed by
Borrower or converted into Loans.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement (in the nature of compensating balances, cash collateral accounts or
security interests), encumbrance, lien (statutory or other), charge, or
preference, priority or other security interests or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the Uniform Commercial Code or comparable Laws of any jurisdiction), including
the interest of a purchaser of accounts receivable.
"Loan" means any advance made as provided in Section 2.01
(collectively, the Loans").
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"Loan Documents" means this Agreement, any Compliance Certificate, the
Master Guaranty, the Intercreditor Agreement, any Letter of Credit Application,
any Request for Extension of Credit and any Note, certificate, any fee letter,
and other instrument, document or agreement from time to time delivered in
connection with this Agreement.
"Master Guaranty" means the continuing guaranty of the Obligations to
be executed and delivered by the Guarantors, substantially in the form of
Exhibit D, and any amendments or supplements thereto.
"Material Adverse Effect" means with respect to any event or occurrence
of whatever nature (including any adverse determination in any litigation,
arbitration, investigation or proceeding), a material adverse effect on the
business, operations, revenues, financial condition or property of Company and
its Subsidiaries taken as a whole, without reference to the ability of Company
to timely pay or perform Company's obligations generally, or the ability of
Company to pay or perform any of the Obligations.
"Material Agreement" means as to any Person, any Contract to which such
Person is a part or by which such Person is bound which, if violated or
breached, would have a Material Adverse Effect.
"Material Law" means any Law whose violation by a Person would have a
Material Adverse Effect.
"Material License" means (a) as to any Person, any license, permit or
consent from a Governmental Authority or other Person and any registration and
filing with a Governmental Authority or other Person which if not obtained, held
or made would have a Material Adverse effect, and (b) as to any Person who is a
party to this Agreement or any of the other Loan Documents, any license, permit
or consent from a Governmental Authority or other Person and any registration or
filing with a Governmental Authority or other Person that is necessary for the
execution or performance by such party, or the validity or enforceability
against such party, of this Agreement or such other Loan Document.
"Material Obligation" means as to any Person, an obligation of such
Person which if not fully and timely paid or performed would have a Material
Adverse Effect.
"Material Proceeding" means any litigation, investigation or other
proceeding by or before any Governmental Authority (a) which involves any of the
Loan Documents or any of the transactions contemplated thereby, or involves a
Covered Person as a party or any property of Covered Person, and its reasonably
likely to have a Material Adverse Effect, or (b) in which there has been issued
an injunction, writ, temporary restraining order or any other order of any
nature which purports to restrain or enjoin the making of any Loan, the
consummation of any other transaction contemplated by the Loan Documents, or the
enforceability of any provision of any of the Loan Documents.
"Maturity Date" means (a) September 12, 2005 or (b) such earlier date
upon which the Commitment may be terminated in accordance with the terms of this
Agreement.
"Minimum Amount" means, with respect to each Request for Extension of
Credit (other than with respect to (i) a Letter of Credit Action and (ii) a
Borrowing to fund a draw under a Letter
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of Credit not reimbursed by Borrower), a prepayment of a Loan, or reduction or
termination of Commitment, the minimum amount of $500,000 and any multiples in
excess thereof of $50,000.
"Minority Interests" means, without duplication, any shares of stock of
any class of a Subsidiary (other than directors' qualifying shares as required
by law) that are not owned by Company and/or one or more of its Subsidiaries.
Minority Interests shall be valued by valuing Minority Interests constituting
preferred stock at the voluntary or involuntary liquidating value of such
preferred stock, whichever is greater, and by valuing Minority Interests
constituting common stock at the book value of common stock, additional paid-in
capital and retained earnings applicable thereto adjusted, if necessary, to
reflect any changes from the book value of such common stock required by the
foregoing method of valuing Minority Interests in preferred stock.
"Multi-Employer Plan" means a Pension Benefit Plan which is a
multi-employer plan as defined in Section 4001(a)(3) of ERISA.
"Note" means a promissory note made by Borrower in favor of Lender
evidencing Loans made by Lender, substantially in the form of Exhibit C.
"Note Xxxxxxxx Xxxxxxxxx-0000" means the Note Purchase Agreement dated
as of February 14, 1997, as amended to and including the Closing Date, among
Company and other parties signatory thereto under which Company issued certain
7.88% Senior Notes, Series A, due February 14, 2007, of $110,000,000 aggregate
principal amount; provided, however, that, except with respect to Section
8.01(f) of this Agreement ( which is a cross default to other Indebtedness,
including the Note Purchase Agreement-1997 as in effect from time to time),
after the Closing Date no amendments to, or waivers of, the terms, conditions
and definitions of the Note Purchase Agreement-1997 referred to or incorporated
by reference herein shall be deemed to amend or waive such terms, conditions and
definitions for purposes of this Agreement unless Lender separately agrees or
consents thereto hereunder. The terms, conditions and definitions referred to or
incorporated by reference herein will survive termination, restatement or
cancellation of the Note Purchase Agreement-1997 for purposes of this Agreement
(other than Section 8.01(f)).
"Note Purchase Agreement-2003" means the Note Purchase Agreement dated
as of April 24, 2003, as amended to and including Closing Date, among Company
and other parties signatory thereto under which Company issued certain 5.29%
Senior Notes, Series 2003-A, due April 24, 2013, of $65,000,000 aggregate
principal amount; provided, however, that, except with respect to Section
8.01(f) of this Agreement (which is a cross default to other Indebtedness,
including the Note Purchase Agreement-2003 as in effect from time to time),
after the Closing Date no amendments to, or waivers of, the terms, conditions
and definitions of the Note Purchase Agreement-2003 referred to or incorporated
by reference herein shall be deemed to amend or waive such terms, conditions and
definitions for purposes of this Agreement unless Lender separately agrees or
consents thereto hereunder. The terms, conditions and definitions referred to or
incorporated by reference herein will survive termination, restatement or
cancellation of the Note Purchase Agreement for purposes of this Agreement
(other than Section 8.01(f)).
"Obligations" means all advances to, and debts, liabilities
(contractual or tortious), obligations, covenants and duties of, any Borrower
Party arising under any Loan Document and Swaps entered into with a Lender,
whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
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including interest that accrues after the commencement of any proceeding under
any Debtor Relief Laws by or against any Borrower Party or any Subsidiary or
Affiliate of any Borrower Party.
"Outstanding Obligations" means, as of any date, and giving effect to
making any Extensions of Credit requested on such date and all payments,
repayments and prepayments made on such date, the sum of (a) the aggregate
outstanding principal amount of all Loans, and (b) all Letter of Credit Usage.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Benefit Plan" means any pension or profit-sharing plan which
is covered by Title I of ERISA and in respect of which a Person or a Commonly
Controlled Entity of such Person is an "employer" as defined in Section 3(5) of
ERISA.
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture, Governmental Authority, or otherwise.
"Plan" means any employee benefit plan maintained or contributed to by
a Borrower Party or by any trade or business (whether or not incorporated) under
common control with a Borrower Party as defined in Section 4001(b) of ERISA and
insured by the Pension Benefit Guaranty Corporation under Title IV of ERISA.
"Preferred Stock" means any class of capital stock of a corporation
that is preferred over any other class of capital stock of such corporation as
to the payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
"Regulation D," "Regulation U" and "Regulation X" means, respectively,
Regulation D, Regulation U and Regulation X issued by the FRB.
"Reportable Event" means a reportable event as defined in Title IV of
ERISA or the regulations thereunder.
"Request for Extension of Credit" means, unless otherwise specified
herein, (a) a written request substantially in the form of Exhibit A, and (b)
with respect to a Letter of Credit Action, a Letter of Credit Application, in
each case duly completed and signed by a Responsible Officer of Company and
delivered by Requisite Notice.
"Requisite Notice" means, unless otherwise provided herein, (a)
irrevocable written notice to the intended recipient or (b) except with respect
to Letter of Credit Action (which must be in writing), irrevocable telephonic
notice to the intended recipient, promptly followed by a written notice to such
recipient. Such notices shall be (i) delivered to Lender, and (ii) if made by
any Borrower Party, given or made by a Responsible Officer of such Borrower
Party. Any written notice delivered in connection with any Loan Document shall
be in the form, if any, prescribed herein or therein. Any notice sent by other
than hardcopy shall be promptly confirmed by a telephone call to the recipient
and, if requested by Lender, by a manually signed hardcopy thereof.
"Requisite Time" means, with respect to any of the actions listed
below, the time and date set forth below opposite such action:
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APPLICABLE
TYPE OF ACTION TIME DATE OF ACTION
------------------------------------------------------------------------------------------------
Delivery of Request for Extension of
Credit for, or notice for:
- Borrowing or prepayment of, or 10:00 a.m. Same date as such borrowing, prepayment
Conversion into, Base Rate Loan or Conversion
- Letter of Credit Action 10:00 a.m. 5 Business Days prior to such action
(or such lesser time which is
acceptable to Lender)
- Voluntary reduction in or 10:00 a.m. 2 Business Days prior to such reduction
termination of Commitment or termination
"Responsible Officer" means, as to any Person that is not an
individual, partnership or trust, the Chairman of the Board of Directors, the
President, the chief executive officer, the chief operating officer, the chief
financial officer, the Treasurer, any Assistant to the Treasurer, or any Vice
President in charge of a principal business unit; as to any partnership, any
individual who is a general partner thereof or any individual who has general
management or administrative authority over all or any principal unit of the
partnership's business; and as to any trust, any individual who is a trustee.
"Xxxxxxxx-Xxxxx Act" means the federal Xxxxxxxx-Xxxxx Act of 2002.
"Security Interest" means as to any item of tangible or intangible
property, any interest therein or right with respect thereto that secures an
obligation or Guaranty Obligation , whether such interest or right is created
under a Contract, or by operation of law or statute (such as but not limited to
a statutory lien for work or materials), or as a result of a judgment, or which
arises under any form of preferential or title retention agreement or
arrangement (including a conditional sale agreement or a lease) that has
substantially the same economic effect as any of the foregoing.
"Subsidiary" means, as to any Person, a corporation with respect to
which more than 50% of the outstanding shares of stock of each class having
ordinary voting power (other than stock having such power only by reason of the
happening of a contingency) is at the time owned by such Person or by one or
more Subsidiaries of such Person, other than a corporation which has no
significant assets and is not actively engaged in a trade or business.
"Swaps" means, with respect to any Person, without duplication, payment
obligations with respect to interest rate swaps or options, currency swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
equity or equity index swaps or options, bond or bond price index swaps or
options or forward bond index transactions, or forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions,
currency swap transactions, cross-currency swap transactions, currency options,
spot contracts, any transaction subject to the terms of or governed by any form
of master agreement published by the International Swaps and Derivatives
Association, Inc., any International Foreign Exchange Master Agreement, and
similar obligations obligating such Person to make payments, whether
periodically or upon the happening of a contingency. For the
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purposes of this Agreement, the amount of the obligation under any Swap shall,
unless otherwise expressly set forth herein, be the amount determined in respect
thereof as of the end of the then most recently ended fiscal quarter of such
Person, based on the assumption that such Swap had terminated at the end of such
fiscal quarter, and in making such determination, if any agreement relating to
such Swap provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligation shall be the net amount so determined.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" means, when used in a geographical sense, all the
states of the United States of America and the District of Columbia; and when
used in a legal jurisdictional sense, the government of the country that is the
United States of America.
"United States Assets" means the identifiable United States assets of
Company and its Subsidiaries, as shown on the most recent annual Financial
Statements.
"Voting Stock" means capital stock of any class or classes of a
corporation, the holders of which are ordinarily, in the absence of
contingencies, entitled to elect the majority of the corporate directors (or
Persons performing similar functions), irrespective of whether or not at the
time capital stock of any such class or classes shall have or might have special
voting power or rights by reason of the occurrence of any contingency.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary, 100% of
all the equity shares (except directors' qualifying shares) and voting interests
of which are owned by any one or more of Company and Company's other
Wholly-Owned Subsidiaries at such time.
1.02 USE OF CERTAIN TERMS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or thereto, unless otherwise defined therein.
(b) As used herein, unless the context requires otherwise, the
masculine, feminine and neuter genders and the singular and plural include one
another.
(c) The words "herein" and "hereunder" and words of similar import
when used in any Loan Document shall refer to the Loan Documents as a whole and
not to any particular provision thereof. The term "including" is by way of
example and not limitation. References herein to a Section, subsection or clause
shall, unless the context otherwise requires, refer to the appropriate Section,
subsection or clause in this Agreement.
(d) The term "or" is disjunctive; the term "and" is conjunctive.
The term "shall" is mandatory; the term "may" is permissive.
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1.03 ACCOUNTING TERMS. Subject to the definition of GAAP herein,
all accounting terms not specifically or completely defined in this Agreement
shall be construed in conformity with, and all financial data required to be
submitted by this Agreement shall be prepared in conformity with, GAAP applied
on a consistent basis, as in effect from time to time, applied in a manner
consistent with that used in preparing the financial statements contained in the
2002 Form 10-K, except as otherwise specifically prescribed herein.
1.04 ROUNDING. Any financial ratios required to be maintained by
Company pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.05 EXHIBITS AND SCHEDULES. All exhibits and schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.06 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall include all amendments, restatements,
extensions, supplements and other modifications thereto (unless prohibited by
any Loan Document), and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
SECTION 2.
THE COMMITMENTS AND EXTENSIONS OF CREDIT
2.01 AMOUNT AND TERMS OF COMMITMENTS.
(a) Subject to the terms and conditions set forth herein, Lender
agrees to make loans (each such loan, a "Loan") to Borrower in Dollars in such
amounts as Borrower may from time to time request on any Business Day during the
period from the Closing Date to the Maturity Date, in an aggregate amount not to
exceed at any time outstanding the Commitment.
(b) Loans made by Lender shall be evidenced by one or more Notes.
Lender may attach schedules to its Note(s) and endorse thereon the date, amount,
and maturity of its Loans and payments with respect thereto. Such Notes and
records shall be conclusive absent manifest error of the amount of such Loan and
payments thereon . Any failure so to record or any error in doing so shall not,
however, limit or otherwise affect the obligation of Borrower to pay any amount
owing with respect to the Loans.
2.02 BORROWINGS OF LOANS.
(a) Borrower may irrevocably request a Borrowing of Loans in a
Minimum Amount therefor by delivering a Request for Extension of Credit therefor
by Requisite Notice to Lender not later than the Requisite Time therefor.
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(b) Upon satisfaction of the applicable conditions set forth in
Section 4.02, (and if the initial Extension of Credit hereunder, Section 4.01),
the requested loan shall be made available to the Borrower.
2.03 LETTERS OF CREDIT.
(a) THE LETTER OF CREDIT COMMITMENT. Subject to the terms and
conditions set forth in this Agreement, until the Maturity Date, Lender shall
take such Letter of Credit Actions denominated in Dollars as Borrower may from
time to time request; provided, however, that (i) the Outstanding Obligations of
Lender shall not exceed the Commitment, and (ii) all Letter of Credit Usage
shall not exceed the Letter of Credit Sublimit at any time. Subject to
subsection (f) below and, unless consented to by Lender, no Letter of Credit
(other than Letter of Credit #705264 in the face amount of $25,000 in favor of
City of Chicago, Department of Transportation) may expire more than 12 months
after the date of its issuance or last renewal; provided, however, that no
Letter of Credit shall expire more than 12 months after the Maturity Date. If
any Letter of Credit Usage remains outstanding after the Maturity Date, Borrower
shall, not later than such date, deposit cash in an amount equal to such Letter
of Credit Usage in a Letter of Credit Cash Collateral Account. Letters of Credit
issued and outstanding on the Closing Date shall be deemed validly issued and
outstanding Letters of Credit with the same terms and maturity under this
Agreement as under the Original Credit Agreement.
(b) REQUESTING LETTER OF CREDIT ACTIONS. Borrower may irrevocably
request a Letter of Credit Action by delivering a Letter of Credit Application
therefor to Lender by Requisite Notice not later than the Requisite Time
therefor. Each Letter of Credit Action shall be in a form acceptable to Lender
in its reasonable discretion. Unless Lender notifies Borrower that it has
determined in good faith that such Letter of Credit Action is contrary to any
Laws or policies of Lender, Lender shall, upon satisfaction of the applicable
conditions set forth in Section 4.02 with respect to any Letter of Credit Action
constituting an Extension of Credit, effect such Letter of Credit Action. This
Agreement shall control in the event of any conflict with any Letter of Credit
Application, including without limitation, any definition of "Default" or "Event
of Default" in any such Letter of Credit Application, which shall be deemed
superseded by the definitions thereof in this Agreement. Any requirement therein
or in any provision of this Agreement to grant a security interest shall be
subject to the prohibitions contained in Section 10.5 of the Note Purchase
Agreement-1997 and Section 10.4 in the Note Purchase Agreement-2003.
(c) REIMBURSEMENT OF PAYMENTS UNDER LETTERS OF CREDIT. Borrower
shall reimburse Lender for any payment that Lender makes under a Letter of
Credit on or before the date of such payment; provided, however, that if the
conditions precedent set forth in Section 4.02 can be satisfied, Borrower may
request a Borrowing of Loans to reimburse Lender for such payment pursuant to
Section 2.02, or, failing to make such request, Borrower shall be deemed to have
requested a Borrowing on such payment date pursuant to subsection (e) below.
(d) NOT USED.
(e) NOT USED.
(f) SPECIAL PROVISIONS RELATING TO EVERGREEN LETTERS OF CREDIT.
Borrower may request Letters of Credit that have automatic extension or renewal
provisions ("evergreen" Letters
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of Credit) so long as Lender consents in its sole and absolute discretion
thereto and has the right to not permit any such extension or renewal at least
annually within a notice period to be agreed upon at the time each such Letter
of Credit is issued. Lender may, in its sole and absolute discretion, elect not
to permit an evergreen Letter of Credit to be extended or renewed at any time.
(g) OBLIGATIONS ABSOLUTE. The obligation of Borrower to pay to
Lender the amount of any payment made by Lender under any Letter of Credit
issued for its account shall be absolute, unconditional, and irrevocable.
Without limiting the foregoing, Borrower's obligation shall not be affected by
any of the following circumstances:
(i) any lack of validity or enforceability of such Letter
of Credit, this Agreement, or any other agreement or instrument
relating thereto;
(ii) any amendment or waiver of or any consent to
departure from such Letter of Credit, this Agreement, or any other
agreement or instrument relating hereto or thereto;
(iii) the existence of any claim, setoff, defense, or other
rights which Borrower may have at any time against Lender or any
beneficiary of such Letter of Credit (or any persons or entities for
whom any such beneficiary may be acting) or any other Person, whether
in connection with such Letter of Credit, this Agreement, or any other
agreement or instrument relating thereto, or any unrelated
transactions;
(iv) any demand, statement, or any other document
presented under such Letter of Credit proving to be forged, fraudulent,
invalid, or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect whatsoever so long as any such
document appeared to comply with the terms of the Letter of Credit;
(v) payment by Lender in good faith under such Letter of
Credit against presentation of a draft or any accompanying document
which does not strictly comply with the terms of such Letter of Credit;
or any payment made by Lender under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Laws;
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any property purported to be
represented by documents presented in connection with such Letter of
Credit or for any difference between any such property and the
character, quality, quantity, condition, or value of such property as
described in such documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of property as described in documents presented
in connection with such Letter of Credit or the existence, nature and
extent of any insurance relative thereto;
(viii) the solvency or financial responsibility of any party
issuing any documents in connection with such Letter of Credit;
(ix) any failure or delay in notice of shipments or
arrival of any property;
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(x) any error in the transmission of any message relating
to such Letter of Credit not caused by Lender, or any delay or
interruption in any such message;
(xi) any error, neglect or default of any correspondent of
Lender in connection with such Letter of Credit;
(xii) any consequence arising from acts of God, wars,
insurrections, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of Lender;
(xiii) so long as Lender in good faith determines that the
document appears to comply with the terms of the Letter of Credit, the
form, accuracy, genuineness or legal effect of any contract or document
referred to in any document submitted to Lender in connection with such
Letter of Credit; and
(xiv) any other circumstances whatsoever where Lender has
acted in good faith.
In addition, Borrower will promptly examine a copy of each Letter of
Credit and amendments thereto delivered to it and, in the event of any claim of
noncompliance with Borrower's instructions or other irregularity, Borrower will
immediately notify Lender in writing. Borrower shall be conclusively deemed to
have waived any such claim against Lender and its correspondents unless such
notice is given as aforesaid.
(h) ROLE OF LENDER. Lender and Borrower agree that, in paying any
drawing under a Letter of Credit, Lender shall not have any responsibility to
obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as to the
validity or accuracy of any such document or the authority of the Person
executing or delivering any such document. Borrower hereby assumes all risks of
the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit. None of the respective correspondents, participants or
assignees of Lender, shall be liable or responsible for any of the matters
described in subsection (g) above. In furtherance and not in limitation of the
foregoing, Lender may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary, and Lender shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(i) APPLICABILITY OF ISP98 AND UCP. Unless otherwise expressly
agreed by Lender and Borrower when a Letter of Credit is issued and subject to
applicable laws, performance under Letters of Credit by Lender, its
correspondents, and beneficiaries will be governed by (i) with respect to
standby Letters of Credit, the rules of the "International Standby Practices
1998" ("ISP98") or such later revision as may be published by the Institute of
International Banking Law & Practice, subject to applicable laws, and (ii) with
respect to commercial Letters of Credit, the rules of the Uniform Customs and
Practice for Documentary Credits, as published in its most recent version by the
International Chamber of Commerce (the "ICC") on the date any commercial Letter
of Credit is issued, and including the ICC decision published by the Commission
on Banking Technique and Practice on April 6, 1998 regarding the European single
currency (euro).
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(j) LETTER OF CREDIT FEE. With respect to standby Letters of
Credit, Company shall pay to Lender on each March 31, June 30, September 30 and
December 31, in arrears, a Letter of Credit fee equal to an annual rate of two
and one-fourth percent (2.25%) of the actual daily maximum amount available to
be drawn under each Letter of Credit since the later of the Closing Date and the
previous Applicable Payment Date.
(k) DOCUMENTARY AND PROCESSING CHARGES PAYABLE TO LENDER. Company
shall pay directly to Lender, upon demand, for its sole account its customary
documentary and processing charges in accordance with its standard schedule, as
from time to time in effect, for any Letter of Credit Action or other occurrence
relating to a Letter of Credit for which such charges are customarily made.
2.04 PREPAYMENTS. Upon Requisite Notice to Lender not later than
the Requisite Time therefor, Borrower may at any time and from time to time
voluntarily prepay Loans in part in the Minimum Amount therefor or in full
without premium or penalty. If for any reason the Outstanding Obligations exceed
the Commitment as in effect or as reduced or because of any limitation set forth
in this Agreement or otherwise, Borrower shall immediately prepay its Loans in
an amount sufficient to eliminate such excess.
2.05 NOT USED.
2.06 REDUCTION OR TERMINATION OF COMMITMENTS. Upon Requisite Notice
to Lender not later than the Requisite Time therefor, Borrower may at any time
and from time to time, without premium or penalty, permanently and irrevocably
reduce the Commitment in a Minimum Amount therefor to an amount not less than
the Outstanding Obligations at such time, or terminate the Commitment. Any such
reduction or termination shall be accompanied by payment of all accrued and
unpaid commitment fees with respect to the portion of the Commitment being
reduced or terminated.
2.07 PRINCIPAL AND INTEREST.
(a) Except as otherwise provided hereunder, if not sooner paid,
Borrower agrees to pay the outstanding principal amount of each Loan on the
Maturity Date.
(b) Subject to subsection (c) below, and unless otherwise
specified herein, Borrower shall pay interest on the unpaid principal amount of
each Loan (before and after default, before and after maturity, before and after
judgment, and before and after the commencement of any proceeding under any
Debtor Relief Laws) from the date borrowed until paid in full (whether by
acceleration or otherwise) on each Applicable Payment Date at a rate per annum
equal to the Base Rate. Lender shall invoice Company for the amount of interest
due on the due date thereof.
(c) If any amount payable by any Borrower Party under any Loan
Document is not paid when due (without regard to any applicable grace periods),
it shall thereafter bear interest (after as well as before entry of judgment
thereon to the extent permitted by law) at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
applicable Law. Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be payable upon demand.
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2.08 FEES.
(a) COMMITMENT FEE. Company shall pay to Lender a Commitment Fee
equal to an annual rate of four-tenths of one percent (.40%) of the actual daily
amount by which the Commitment exceeds the Outstanding Obligations. The
commitment fee shall accrue at all times from the Closing Date until the
Maturity Date and shall be payable quarterly in arrears on each March 31, June
30, September 30 and December 31. The Commitment Fee shall accrue at all times,
including at any time during which one or more conditions in Section 4 are not
met.
2.09 COMPUTATION OF INTEREST AND FEES. Computation of interest on
the Loans shall be calculated on the basis of a year of 365 or 366 days, as the
case may be, and the actual number of days elapsed. Computation of all other
types of interest and all fees shall be calculated on the basis of a year of 360
days and the actual number of days elapsed, which results in a higher yield to
Lenders than a method based on a year of 365 or 366 days. Interest shall accrue
on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is
paid, provided that any Loan that is repaid on the same day on which it is made
shall bear interest for one day.
2.10 MAKING PAYMENTS.
(a) Except as otherwise provided herein, all payments by Borrower
shall be made to Lender at Lender's Office not later than the Requisite Time for
such type of payment. All payments received after such Requisite Time shall be
deemed received on the next succeeding Business Day. All payments shall be made
in immediately available funds in U.S. Dollars. All payments by Borrower shall
be made without condition or deduction for any counterclaim, defense, recoupment
or setoff.
(b) Not used.
(c) If any payment to be made by any Borrower Party shall come due
on a day other than a Business Day, payment shall instead be considered due on
the next succeeding Business Day, and such extension of time shall be reflected
in computing interest and fees.
2.11 FUNDING SOURCES. Nothing in this Agreement shall be deemed to
obligate Lender to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by Lender that it has obtained or will
obtain the funds for any Loan in any particular place or manner.SECTION 3.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by Borrower to or for the account of
Lender under any Loan Document shall be made free and clear of and without
deduction for any and all present or future taxes, duties, levies, imposts,
deductions, assessments, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of Lender, taxes
imposed on or measured by its net income or branch profits or franchise taxes
imposed on it (in lieu of net income or branch profits taxes), by the United
States of America or by the jurisdiction (or any political subdivision thereof)
under the Laws of which Lender is organized, in which its principal office is
located or in which it maintains a lending office, and any other taxes withheld
because Lender failed to timely
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deliver the forms required pursuant to Section 10.21 (all such non-excluded
taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and liabilities being hereinafter referred to as "Taxes"). If
Borrower shall be required by any Laws to deduct any Taxes from or in respect of
any sum payable under any Loan Document to Lender, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section), Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) Borrower shall make such deductions, (iii) Borrower
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Laws, and (iv) within 30 days after the
date of such payment, Borrower shall furnish Lender the original or a certified
copy of a receipt evidencing payment thereof.
(b) In addition, Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If Borrower shall be required by the Laws of any jurisdiction
outside the United States to deduct any Taxes from or in respect of any sum
payable under any Loan Document to Lender, Borrower shall also pay to Lender at
the time interest is paid, such additional amount that Lender specifies as
necessary to preserve the after-tax yield (after factoring in United States
(federal and state) taxes imposed on or measured by net income) Lender would
have received if such deductions (including deductions applicable to additional
sums payable under this Section) had not been made.
(d) Borrower agrees to indemnify Lender for the full amount of
Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by
any jurisdiction on amounts payable under this Section) paid by Lender and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto.
3.02 NOT USED.
3.03 NOT USED.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY.(a) If any
change in or the interpretation of any Laws have the effect of reducing the rate
of return on the capital of Lender or compliance by Lender (or its Lending
Office) or any corporation controlling Lender as a consequence of Lender's
obligation hereunder (taking into consideration its policies with respect to
capital adequacy and Lender's desired return on capital), then from time to time
upon demand of Lender, Borrower shall pay to Lender such additional amounts as
will compensate Lender for such reduction.
3.05 NOT USED.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) If Lender is claiming compensation under this Section 3,
Lender shall in each case furnish a certificate to Borrower that states in
reasonable detail in good faith the additional amount
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or amounts to be paid to it hereunder and the basis therefor. Any such
certificate shall be conclusive in the absence of clearly demonstrable error. In
determining such amount, Lender may use any reasonable averaging and attribution
methods.
3.07 SURVIVAL. All of Borrower's obligations under this Section 3
shall survive termination of the Commitments and payment in full of all
Obligations.
SECTION 4.
CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT
4.01 CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of
Lender to make its initial Extension of Credit hereunder is subject to
satisfaction of the following conditions precedent:
(a) Receipt of the following, each of which shall be originals or
facsimiles (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the signing Borrower Party, each
dated on, or in the case of third-party certificates, recently before the
Closing Date and each in form and substance reasonably satisfactory to Lender
and its legal counsel:
(i) AGREEMENT. Executed counterparts of this Agreement,
sufficient in number for distribution to, Lender and Borrower;
(ii) NOTE. The Note duly executed and delivered by
Borrower in favor of Lender, in a principal amount equal to the
Commitment;
(iii) MASTER GUARANTY. The Master Guaranty duly executed
and delivered by each Guarantor.
(iv) RESOLUTIONS; INCUMBENCY.
(A) Copies of the resolutions of the board of
directors or the executive committee of the board of directors
of each Borrower Party approving and authorizing the
execution, delivery and performance by such Borrower Party of
the Loan Documents to which it is a party, certified as of the
Closing Date by the Secretary or an Assistant Secretary of
such Borrower Party; and
(B) A certificate of the Secretary or Assistant
Secretary of each Borrower Party, certifying the names and
true signatures of the officers of each Borrower Party
authorized to execute and deliver the Loan Documents to which
it is a party.
(v) ARTICLES OF INCORPORATION; BY-LAWS AND GOOD STANDING.
Each of the following documents:
(A) the articles or certificate of incorporation
of each Borrower Party as in effect on the Closing Date,
certified by the Secretary of State of the State of
incorporation of each Borrower Party as of a recent date and
by the Secretary or Assistant Secretary of each Borrower Party
as of the Closing Date and the bylaws of
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each Borrower Party as in effect on the Closing Date,
certified by the Secretary or Assistant Secretary of each
Borrower Party as of the Closing Date and
(B) a good standing certificate for Borrower
from the Secretary of State of Delaware and the State of
Missouri as of a recent date.
(vi) AMENDMENT TO NOTE PURCHASE AGREEMENT-1997 AND NOTE
PURCHASE AGREEMENT-2003. Evidence that Company has amended the Note
Purchase Agreement-1997 and the Note Purchase Agreement-2003 with terms
and conditions satisfactory to Lender.
(vii) NOT USED.
(viii) LEGAL OPINION. An opinion of Xxxxxxxx Xxxxxx, LLP,
counsel to the Borrower Parties, and addressed to Lender.
(ix) PAYMENT OF FEES. Borrower shall have paid all accrued
and unpaid fees, costs and expenses to the extent then due and payable
on the Closing Date, together with reasonable attorney fees, costs and
expenses to the extent invoiced prior to or on the Closing Date.
(x) CERTIFICATE. A certificate signed by a Responsible
Officer, dated as of the Closing Date, stating that: (i) the
representations and warranties contained in Section 5 are true and
correct in all material respects on and as of such date, as though made
on and as of such date; (ii) no Default or Event of Default exists on
the Closing Date and (iii) since December 31, 2003, there has been no
change that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect.
(xi) OTHER DOCUMENTS. Such other assurances, certificates,
documents, consents or opinions as Lender reasonably may require.
(b) The representations and warranties of any Borrower Party
contained in Section 5, or which are contained in the Master Guaranty, any
Compliance Certificates or any other material certificate furnished at any time
under or in connection with any Loan Document shall be correct in all material
respects on and as of the Closing Date except to the extent such representations
and warranties specifically refer to an earlier date.
(c) No Default or Event of Default shall have occurred and be
continuing.
(d) Lender shall have received and reviewed, with results
reasonably satisfactory to it, information confirming that Borrower and its
Subsidiaries are taking all reasonably necessary and appropriate steps to comply
with the Xxxxxxxx-Xxxxx Act and the implementing regulations thereunder.
(e) The lenders party to the Existing Credit Agreement shall each
have evidenced to Lender the termination of their commitments and the payment in
full of obligations owing to them under the Existing Credit Agreement.
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4.02 CONDITIONS TO ALL EXTENSIONS OF CREDIT. In addition to any
applicable conditions precedent set forth elsewhere in this Section 4 or in
Section 2, the obligation of Lender to honor any Request for Extension of Credit
is subject to the following conditions precedent:
(a) the representations and warranties of any Borrower Party
contained in Section 5, or which are contained in the Master Guaranty, any
Compliance Certificates or any other material certificate furnished at any time
under or in connection with any Loan Document shall be correct in all material
respects on and as of the date of such Extension of Credit, except to the extent
that such representations and warranties specifically refer to an earlier date.
(b) no Default or Event of Default exists, or would result from
such proposed Extension of Credit.
(c) Lender shall have timely received a Request for Extension of
Credit by Requisite Notice by the Requisite Time therefor.
(d) Lender shall have received, in form and substance satisfactory
to it, such other assurances, certificates, documents or consents related to the
foregoing as Lender reasonably may require.
Each Request for Extension of Credit by Borrower shall be deemed to be
a representation and warranty that the conditions specified in Sections 4.02(a)
and (b) have been satisfied on and as of the date of such Extension of Credit.
4.03 CONDITIONS FOR A DOMESTIC SUBSIDIARY BECOMING A GUARANTOR. As
a condition precedent to a Domestic Subsidiary becoming a Guarantor under the
Master Guaranty, Lender shall have received the following with respect to such
Subsidiary, in form and substance satisfactory to Lender:
(a) With respect to all such Subsidiaries, the items referred to
in Section 4.01(a)(iv) and, to the extent not previously delivered, the items
referred in Section 4.01(a)(v).
(b) With respect to all Subsidiaries, the opinion of the general
counsel or assistant general counsel of Company (or such other counsel
designated by Company and reasonably acceptable to Lender), in form reasonably
acceptable to Lender, as to (i) such Subsidiary's obligations under the Loan
Documents to which it will be a party being the legal, valid, binding and
enforceable obligation of such Subsidiary and (ii) the execution, delivery and
performance of such Loan Documents by such Subsidiary (A) being authorized by
all necessary corporate, company or partnership action, as applicable, (B) not
violating any law, decree, judgment or, to the knowledge of such counsel,
contractual obligation to which such Subsidiary is a party or by which it or its
assets are bound, and (C) not requiring any government approvals, consents,
registrations or filings.
(c) Exhibit A to the Master Guaranty duly executed by such
Domestic Subsidiary, whereby such Domestic Subsidiary agrees to be bound by the
terms and conditions of the Master Guaranty and, if the Intercreditor Agreement
remains in effect, an acknowledgement to be bound by the Intercreditor Agreement
in accordance with the terms thereof and each Note Purchase Agreement.
(d) Such other opinions or documents as Lender may reasonably
request.
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SECTION 5.
REPRESENTATIONS AND WARRANTIES
Each Borrower severally represents and warrants to Lender that:
5.01 ORGANIZATION AND EXISTENCE. Each Covered Person is duly
organized and existing in good standing under the laws of the jurisdiction of
its organization, is duly qualified to do business and is in good standing in
every jurisdiction where the nature or extent of its business or properties
require it to be qualified to do business, except where the failure to so
qualify will not have a Material Adverse Effect. Each Covered Person has the
power and authority to own its properties and carry on its business as now being
conducted.
5.02 AUTHORIZATION. Each Borrower Party is duly authorized to
execute and perform every Loan Document to which such Borrower Party is a party,
and each Borrower is duly authorized to borrow hereunder, and the Loan Documents
to which it is a party have been duly authorized by all requisite corporate (or,
if not a corporation, comparable) action of Borrower Party. No consent, approval
or authorization of, or declaration or filing with, any Governmental Authority,
and no consent of any other Person, is required in connection with any Borrower
Party's execution, delivery or performance of this Agreement and the other Loan
Documents, except for those already duly obtained or explicitly contemplated
hereunder.
5.03 DUE EXECUTION. Every Loan Document to which a Borrower Party
is a party has been executed on behalf of such Borrower Party by a legally
competent Person duly authorized to do so.
5.04 ENFORCEABILITY OF OBLIGATIONS. Each of the Loan Documents to
which a Borrower Party is a party constitutes the legal, valid and binding
obligation of such Borrower Party, enforceable against such Borrower Party in
accordance with its terms, except to the extent that the enforceability thereof
against such Borrower Party may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
or by equitable principles of general application.
5.05 BURDENSOME OBLIGATIONS. No Covered Person is a party to or
bound by any Contract or is subject to any provision in the Charter Documents of
such Covered Person which would, if performed by such Covered Person, result in
a Default or Event of Default either immediately or upon the elapsing of time.
5.06 LEGAL RESTRAINTS. The execution of any Loan Document by a
Borrower Party will not violate or constitute a default under the Charter
Documents of such Borrower Party, any Material Agreement of such Borrower Party,
or any Material Law, and will not, except as expressly contemplated or permitted
in this Agreement, result in any Security Interest being imposed on any of such
Borrower Party's property. The performance by any Borrower Party of its
obligations under any Loan Document to which it is a party will not violate or
constitute a default under the Charter Documents of such Borrower Party, any
Material Agreement of such Borrower Party, or any Material Law, and will not,
except as expressly contemplated or permitted in this Agreement, result in any
Security Interest being imposed on any of such Borrower Party's property.
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5.07 LABOR DISPUTES. There is no pending or, to Borrower's
knowledge, threatened, strike, work stoppage, material unfair labor practice
claim or other material labor dispute against or affecting any Covered Person or
its employees, which is reasonably likely to have a Material Adverse Effect.
5.08 NO MATERIAL PROCEEDINGS. There are no Material Proceedings
pending or, to the best knowledge of Company, threatened, other than as
described in item Schedule 5.08, copies of which have been furnished to Lender.
5.09 MATERIAL LICENSES. All Material Licenses have been obtained or
exist for each Covered Person.
5.10 COMPLIANCE WITH MATERIAL LAWS. Each Covered Person is in
compliance with all Material Laws. Without limiting the generality of the
foregoing:
(a) GENERAL COMPLIANCE WITH ENVIRONMENTAL LAWS. The operations and
employee compensation practices of every Covered Person comply in all material
respects with all applicable Environmental Laws, the failure to comply with
which is reasonably likely to have a Material Adverse Effect.
(b) PROCEEDINGS. None of the operations of any Covered Person are
the subject of any judicial or administrative complaint, order or proceeding
alleging the violation of any applicable Environmental Laws.
(c) INVESTIGATIONS REGARDING HAZARDOUS MATERIALS. None of the
operations of any Covered Person are the subject of investigation by any
Governmental Authority regarding the improper transportation, storage, disposal,
generation or release into the environment of any Hazardous Material.
(d) NOTICES AND REPORTS REGARDING HAZARDOUS MATERIALS. No notice
or report under any Environmental Law indicating a past or present spill or
release into the environment of any Hazardous Material from any property owned
or operated by a Covered Person has been filed within the immediately preceding
four fiscal years of such Covered Person, or is required to be filed by any
Covered Person, to the extent such spill or release had or will have a Material
Adverse Effect.
(e) HAZARDOUS MATERIALS ON REAL PROPERTY. No Covered Person, nor
to Company's knowledge, any other Person, has at any time transported, stored,
disposed of, generated or released any Hazardous Material on the surface, below
the surface, or within the boundaries of any real property owned or operated by
such Covered Person, which event is reasonably likely to have a Material Adverse
Effect. Company has no knowledge of any Hazardous Material on the surface, below
the surface, or within the boundaries of any real property owned or operated by
such Covered Person, which is reasonably likely to have a Material Adverse
Effect. No property of such Covered Person is subject to a Security Interest in
favor of any Governmental Authority for any liability under any Environmental
Law or damages arising from or costs included by such Governmental Authority in
response to a spill or release of Hazardous Material into the environment.
5.11 FINANCIAL STATEMENTS. The Financial Statements of Company as
of December 31, 2003 as delivered to Lender by Company, are complete and correct
in all material respects, have
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been prepared in accordance with GAAP, and fairly reflect the financial
condition, results of operations and cash flows of Company as of the date and
for the periods stated therein.
5.12 NO CHANGE IN CONDITION. Since December 31, 2003, there has
been no change which is reasonably likely to have a Material Adverse Effect.
5.13 NO DEFAULTS. No Covered Person has breached or violated or has
defaulted under any Material Agreement, or has defaulted with respect to any
Material Obligation of such Covered Person. No Default or Event of Default
exists.
5.14. TAX LIABILITIES; GOVERNMENTAL CHARGES. Each Covered Person has
filed or caused to be filed all tax reports and returns required to be filed by
it with any Governmental Authority, except where extensions have been properly
obtained or where failure to file is not reasonably likely to have a Material
Adverse Effect. Each Covered Person has paid or made adequate provision for
payment of all Taxes of such Covered Person, except (a) Taxes which are being
diligently contested in good faith by appropriate proceedings and as to which
such Covered Person has established adequate reserves in conformity with GAAP or
(b) where failure to pay is not reasonably likely to have a Material Adverse
Effect. No Security Interests for any such Taxes has been filed and no claims
are being asserted with respect to any such Taxes which, if adversely
determined, are reasonably likely to have a Material Adverse Effect. There are
no material unresolved issues concerning any liability of a Covered Person for
any Taxes which, if adversely determined, are reasonably like to have a Material
Adverse Effect.
5.15 PENSION BENEFIT PLANS. All Pension Benefit Plans maintained by
each Covered Person or an ERISA Affiliate of such Covered Person qualify under
Section 401 of the Code and are in compliance in all material respects with the
provisions of ERISA. Except with respect to events or occurrences which do not
have and are not reasonably likely to have a Material Adverse Effect:
(a) PROHIBITED TRANSACTIONS. None of such Pension Benefit Plans
has participated in, engaged in or been a party to any non exempt prohibited
transaction as defined in ERISA or the Code, and no officer, director or
employee of a Covered Person or of an ERISA Affiliate of such Covered Person has
committed a breach of any of the responsibilities or obligations imposed upon
fiduciaries by Title I of ERISA.
(b) CLAIMS. Other than normal claims for benefits, there are no
claims, pending or threatened, involving any such Pension Benefit Plan by a
current or former employee (or beneficiary thereof) of such Covered Person or
ERISA Affiliate of such Covered Person, nor is there any reasonable basis to
anticipate any claims involving any such Pension Benefit Plan which would likely
be successfully maintained against such Covered Person or ERISA Affiliate of
such Covered Person.
(c) REPORTING AND DISCLOSURE REQUIREMENTS. There are no violations
of any reporting or disclosure requirements with respect to any such Pension
Benefit Plan and none of such Pension Benefit Plans has violated any applicable
Law, including ERISA and the Code.
(d) ACCUMULATED FUNDING DEFICIENCY. No such Pension Benefit Plan
has (i) incurred an accumulated funding deficiency (within the meaning of
Section 412(a) of the Code), whether or not waived; (ii) been a Pension Benefit
Plan with respect to which a Reportable Event (to the extent that the reporting
of such events to the PBGC within thirty days of the occurrence has not been
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waived) has occurred and is continuing; or (iii) been a Pension Benefit Plan
with respect to which there exist conditions or events which have occurred that
present a significant risk of termination of such Pension Benefit Plan by the
PBGC.
(e) MULTI EMPLOYER PLAN. No Covered Person or ERISA Affiliate of
such Covered Person has received notice that any Multi Employer Plan to which
any Covered Person contributes or is obligated to contribute is in
reorganization or has been terminated within the meaning of Title IV of ERISA,
and no such Multi Employer Plan is reasonably expected to be in reorganization
or to be terminated within the meaning of Title IV of ERISA.
5.16 EMPLOYEE BENEFIT PLANS. No Covered Person or ERISA Affiliate
of such Covered Person maintains an employee benefit plan that has a liability
which, if enforced or collected, would have a Material Adverse Effect. Each
Covered Person and ERISA Affiliate of such Covered Person has complied in all
material respects with the applicable requirements of Section 4980B of the Code
pertaining to continuation coverage as mandated by COBRA.
5.17 STATE OF PROPERTY. Each Covered Person has good and marketable
or merchantable title to all real and personal property purported to be owned by
it or reflected in the Initial Financial Statements, except for property sold in
the ordinary course of business after the date of the Initial Financial
Statements and except for any defects in title which are not reasonably likely
to have a Material Adverse Effect. There are no Security Interests on any of the
property purported to be owned by any Covered Person except Security Interests
permitted under this Agreement.
5.18 SUBSIDIARIES. As of the Closing Date, Company has no
Subsidiaries other than the Subsidiaries listed in Schedule 5.18, and all
Domestic Subsidiaries other than Mississippi Textiles Corporation and Insituform
(Netherlands) B.V., Inc. are Guarantors. After the Closing Date, all Domestic
Subsidiaries other than Mississippi Textiles Corporation and Insituform
(Netherlands) B.V., Inc. are Guarantors within the time period set forth in
Section 6.10.
5.19 MARGIN STOCK. Company is not engaged and will not engage,
principally or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U), and none of the proceeds of any Loan will be used to
purchase or carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation U.
None of the transactions contemplated by any Permitted Acquisition will violate
Regulation U of the FRB.
5.20 HOSTILE SECURITIES TRANSACTIONS. No proceeds of any Loan will
be used to acquire from any Person any security in a transaction that is hostile
from the point of view of such Person.
5.21 INVESTMENT COMPANY ACT, ETC. No Borrower Party is an
investment company registered or required to be registered under the Investment
Company Act of 1940, as amended, or a company controlled (within the meaning of
such Investment Company Act) by such an investment company or an affiliated
person of, or promoter or principal underwriter for, an investment company, as
such terms are defined in the Investment Company Act of 1940, as amended. No
Borrower Party is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act or the Interstate Commerce Act.
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5.22 FILINGS. All registration statements, reports, proxy
statements and other documents, if any, required to be filed by Company with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended, have been filed,
and such filings are complete and accurate in all material respects and contain
no untrue statements of material fact or omit to state any material facts
required to be stated therein or necessary in order to make the statements there
in not misleading in light of the circumstances in which made.
5.23 BROKER'S FEES. No broker or finder is entitled to compensation
for services rendered with respect to the loan transactions contemplated by this
Agreement and the other Loan Documents.
5.24 INDEBTEDNESS OUTSTANDING ON CLOSING DATE. Schedule 5.24 lists,
as of the Closing Date, all outstanding Indebtedness of Company and its
Subsidiaries in excess of $1,000,000, all Liens on property of Company and its
Subsidiaries securing Indebtedness in excess of $1,000,000 and all contractual
obligations undertaken by the Company and its Subsidiaries in connection with
Indebtedness in excess of $1,000,000 restricting Liens on property of Company
and its Subsidiaries.
5.25 PROJECTIONS. Notwithstanding anything in the Loan Documents to
the contrary, no Borrower Party shall be construed as having made any
representation, warranty or covenant with respect to any projection or forecast,
or the achievement thereof, except that whenever Company or its Subsidiaries
shall from time to time deliver projections in connection with any Loan
Document, to the best knowledge of Company when delivered, the assumptions set
forth in such projections are reasonable and consistent with each other and with
all facts known to Company at such time, and such projections are reasonably
based on such assumptions.
5.26 FULL DISCLOSURE. Company has disclosed to Lender all
information regarding the business, operations, property, financial condition,
or business prospects of itself and every Covered Person which is reasonably
likely to have a Material Adverse Effect.
5.27 USE OF PROCEEDS. None of the proceeds of the Loans will be
used directly or indirectly to fund a personal loan to or for the benefit of a
director or executive officer of Borrower or a Guarantor.
5.28 BONDING CAPACITY. Company and its Subsidiaries have in place
and available to it and them surety and performance bonds adequate in amount and
credit quality to continue in the ordinary course of their business as presently
projected over the course of the next eighteen (18) months.
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SECTION 6.
AFFIRMATIVE COVENANTS
Until Final Payment, Company shall, and shall (except in the case of
Company's reporting covenants under Sections 6.01 and 6.02), cause each
Subsidiary to:
6.01 FINANCIAL STATEMENTS. Deliver to Lender:
(a) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the close of
each fiscal year of Company (unless Company has timely filed a Form 12b-25 with
the Securities and Exchange Commission with respect to such fiscal year, in
which case such period shall be 105 days after the close of such fiscal year),
year-end consolidated and consolidating Financial Statements of Company and its
Subsidiaries (to include balance sheet, income statement and statement of cash
flows), setting forth in each case in comparable form the figures for the
previous year, all in reasonable detail and containing an audit report without
qualification (except the qualification Pricewaterhouse Coopers LLP does not
express any opinion with respect to the financial statements of the Company and
its Subsidiaries for fiscal years 2000 and 2001) with respect to such
consolidated statements by Pricewaterhouse Coopers, LLP or such other
independent certified public accounting firm selected by Company and
satisfactory to Lender, and certified by the officers of the Company as required
by the Xxxxxxxx-Xxxxx Act.
(b) QUARTERLY FINANCIAL STATEMENTS. Within 45 days after the end
of each fiscal quarter of Company (unless Company has timely filed a Form 12b-25
with the Securities and Exchange Commission with respect to such fiscal quarter,
in which case such period shall be 50 days after the close of such fiscal
quarter), unaudited consolidated and consolidating Financial Statements of
Company and its Subsidiaries (to include balance sheet, income statement and
statement of cash flows) for the most recent quarter not covered by the latest
year-end Financial Statements required hereunder to be delivered to Lender.
6.02 CERTIFICATES, NOTICES AND OTHER INFORMATION. Deliver to Lender
in form and detail reasonably satisfactory to Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of the independent certified
public accounting firm that examined such consolidated Financial Statements to
the effect that they have reviewed and are familiar with this Agreement and
that, in examining such consolidated Financial Statements, nothing came to their
attention that caused them to believe that an event or condition that
constitutes a Default or Event of Default has occurred or existed insofar as
such conditions or events relate to accounting matters, except for those, if
any, described in reasonable detail in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), or as promptly as available thereafter, the
management letter and report on internal controls delivered by such independent
certified public accounting firm in connection with their audit of such
financials;
(c) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate
signed by a Responsible Officer of Company, along with the current compliance
certificates submitted pursuant to the Note Purchase Agreement-1997 and the Note
Purchase Agreement-2003;
(d) promptly after their preparation, copies of any and all (i)
proxy statement, financial statements and reports which Company makes available
to its stockholders generally, and (ii) reports, registration statements and
prospectuses, if any, filed by Company with any securities exchange or the
Securities and Exchange Commission or any Governmental Authority succeeding to
any of its functions;
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(e) within the 60 days following the first day of each fiscal year
of Company, projected or forecasted consolidated balance sheets, statements of
income and expense, and statements of cash flows for Company and its
Subsidiaries (including any Subsidiary then proposed to be acquired, organized
or created in connection with a Permitted Acquisition and to continue in
existence after consummation thereof) as of the end of and for each fiscal
quarter in such fiscal year in such reasonable detail as Lender may require;
(f) within forty-five (45) days after the end of each fiscal
quarter, a job status report for each project of Company and its Subsidiaries
containing such detail and information as are satisfactory to Lender;
(g) promptly upon any Responsible Officer of Company becoming
aware of the occurrence thereof, notice of any Default or Event of Default;
(h) concurrently with delivery to the noteholders under the Note
Purchase Agreement-1997 and the Note Purchase Agreement-2003, such other
reports, certificates and notices are delivered or given under either or both of
said Note Purchase Agreements; and
(i) promptly after any Responsible Officer becomes aware thereof,
notice of the cancellation of or refusal to extend a performance or payment bond
or surety contract to Company or a Subsidiary in connection with work to be
performed by Company or any Subsidiary or any joint venture in which Company or
any Subsidiary participates, and notice of the face amount of claims against
such performance or payment bonds or surety contracts to the extent such claims
in the aggregate exceed $500,000 at any one time.
6.03 USE OF PROCEEDS. Use all proceeds of the Loans solely for
working capital and other lawful corporate purposes.
6.04 CORPORATE EXISTENCE. Except as permitted by the Note Purchase
Agreement - 1997 or the Note Purchase Agreement - 2003, maintain its existence
in good standing and shall maintain in good standing its right to transact
business in those states in which it is now or hereafter doing business, except
where the failure to so qualify is not reasonably likely to have a Material
Adverse Effect, and obtain and maintain all Material Licenses for such Covered
Person.
6.05 MAINTENANCE OF PROPERTY AND LEASES. Maintain in good condition
and working order, and repair and replace as required, all buildings, equipment,
machinery, fixtures and other real and personal property whose useful economic
life has not elapsed and which is necessary for the ordinary conduct of the
business of such Covered Person, and maintain in good standing and free of
defaults all of its leases of buildings, equipment, machinery, fixtures and
other real and personal property whose useful economic life has not elapsed and
which is necessary for the ordinary conduct of the business of such Covered
Person.
6.06 INSURANCE. At all times keep insured or cause to be kept
insured, with financially sound and reputable insurers, all property owned by it
of a character usually insured by others carrying on businesses similar to that
of such Covered Person in such manner and to such extent and covering such risks
as such properties are usually insured, and at all times carry insurance, with
financially sound and reputable insurers, against liability on account of damage
to persons or property (including product liability insurance and insurance
required under all applicable workers'
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compensation laws) and covering all other liabilities common to such Covered
Person's business, in such manner and to such extent as such coverage is usually
carried by others conducting businesses similar to that of such Covered Person.
6.07 PAYMENT OF TAXES AND OTHER OBLIGATIONS. Promptly pay and
discharge or cause to be paid and discharged, as and when due, all taxes
lawfully assessed or imposed on it, and all taxes lawfully assessed upon any of
its property, or upon the income or profits therefrom, and all claims of
materialmen, mechanics, carriers, warehousemen, landlords and other like Persons
for labor, materials, supplies, storage or other items or services which if
unpaid might be or become a Security Interest or charge upon any of its
property; provided, however, that a Covered Person may diligently contest in
good faith by appropriate proceedings the validity of any such taxes or claims
if Company has established adequate reserves therefor in conformity with GAAP on
the books of such Covered Person, and no Security Interest, other than a
Permitted Security Interest, results from such non-payment.
6.08 COMPLIANCE WITH LAWS. Comply with all Material Laws. Without
limiting the generality of the foregoing:
(a) ENVIRONMENTAL LAWS. Comply and shall use commercially
reasonable efforts to ensure compliance by all tenants, subtenants and other
occupants of the property of such Covered Person, if any, with all Environmental
Laws whose violation is reasonably likely to have a Material Adverse Affect.
(b) PENSION BENEFIT PLANS. Shall, and shall cause each ERISA
Affiliate of such Covered Person to, at all times make prompt payments or
contributions to meet the minimum funding standards under ERISA and the Code
with respect to any Pension Benefit Plan maintained by such Covered Person or
ERISA Affiliate of such Covered Person, and shall comply with all reporting and
disclosure requirements and all provisions of the Code and ERISA applicable to
any Pension Benefit Plan maintained by such Covered Person or ERISA Affiliate to
such Covered Person, if non compliance therewith is reasonably likely to have a
Material Adverse Affect.
(c) DISCOVERY AND CLEAN UP OF HAZARDOUS MATERIAL. Upon receiving
notice of any violation of Environmental Laws or any similar notice described in
Section 6.02, or upon otherwise discovering Hazardous Material on any property
owned or operated by such Covered Person which is in violation of, or which is
reasonably likely to result in liability under, any Environmental Law which is
reasonably likely to have a Material Adverse Effect, shall: (i) promptly take
such acts as may be necessary to prevent danger or harm to the affected property
or any person therein as a result of such Hazardous Material, and (ii) take all
necessary steps to initiate and expeditiously complete all removal, remedial,
response, corrective and other action to eliminate any such environmental
problems, and keep Lender informed of such actions and the results thereof.
6.09 ACCOUNTING SYSTEM. Maintain a system of accounting established
and administered in accordance with GAAP.
6.10 ADDITIONAL GUARANTORS. Cause each Domestic Subsidiary other
than Mississippi Textiles Corporation and Insituform (Netherlands) B.V., Inc. to
become a Guarantor by complying, within 90 days of becoming a Domestic
Subsidiary, with the applicable provisions of Section 4.03 on its part to be
performed in such cases. Each and every obligation and condition under this
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Agreement with respect to the delivery of the Master Guaranty or a Domestic
Subsidiary becoming a Guarantor hereunder shall be subject to the prior or
contemporaneous execution and delivery by Lender of such agreements as are
contemplated by Section 9.8(e) of the Note Purchase Agreement-1997 and the
equivalent provision, if any, in the Note Xxxxxxxx Xxxxxxxxx-0000, on their part
to be performed in such cases. Upon Final Payment, the Master Guaranty shall
terminate and be of no further force or effect, except with respect to
provisions thereof which by their terms survive the termination thereof, subject
to reinstatement as contemplated in Section 10.23.
6.11 AUDITS BY LENDER. Permit Lender or Persons authorized by and
acting on behalf of Lender at any time and from time to time during normal
business hours to audit the books and records, and inspect any of the property,
of each Covered Person from time to time upon reasonable prior notice to such
Covered Person, and in the course thereof permit Lender or such Persons to make
copies or abstracts of such books and records and discuss the affairs, finances
and books and records of such Covered Person with its accountants, bonding and
surety companies, officers and employees. Company shall cause each Covered
Person to cooperate with Lender and such Persons in the conduct of such audits
and shall deliver to Lender any instrument necessary for Lender to obtain
records from any service bureau maintaining records for such Covered Person. The
reasonable expenses of Lender incurred in conducting the foregoing audits and
inspections, after a Default or Event of Default, shall be reimbursed by Company
to Lender.
6.12 ACCESS TO OFFICERS AND AUDITORS. Permit Lender and Persons
authorized by them, upon reasonable prior notice and during normal business
hours, to discuss the affairs, finances and accounts of such Covered Person with
its officers and independent auditors as often as they may reasonably request,
and direct such officers and independent auditors to cooperate with them and
make full disclosure to them of these matters that they may deem relevant to the
continuing ability of Company timely to pay and perform the Obligations.
6.13 FURTHER ASSURANCES. Execute and deliver to Lender such
documents and agreements, and shall take or cause to be taken such actions, as
Lender may from time to time reasonably request to carry out the terms and
conditions of this Agreement and the other Loan Documents.
SECTION 7.
NEGATIVE COVENANTS
Until Final Payment, Company shall not, nor shall it permit any Covered
Person to directly or indirectly:
7.01 NOTE PURCHASE AGREEMENTS. Fail to observe or perform any of
the covenants on the part of a Covered Person to be observed or performed under
Section 10 of the Note Purchase Agreement-1997 and the Note Purchase
Agreement-2003.
7.02 AMENDMENTS; PREPAYMENTS. Amend Section 10 or the defined terms
contained therein or Section 11 of the Note Purchase Agreement-2003 or the Note
Purchase Agreement-1997, or voluntarily prepay in whole or in part the notes
issued pursuant to the Note Purchase Agreement-1997 or the Note Purchase
Agreement-2003. Nothing in the preceding sentence shall
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prohibit or restrict the mandatory or required prepayment of said notes in
accordance with the terms of the Note Purchase Agreement - 1997 and the Note
Purchase Agreement - 2003.
7.03 TERMINATION OF PENSION BENEFIT PLAN. Terminate or amend,
or permit any ERISA Affiliate of any Covered Person to terminate or amend, any
Pension Benefit Plan maintained by such Covered Person or ERISA Affiliate of
such Covered Person if such termination or amendment would result in any
liability to such Covered Person or ERISA Affiliate of such Covered Person under
ERISA which is reasonably likely to have a Material Adverse Effect or any
increase in current liability for the plan year for which such Covered Person or
ERISA Affiliate of such Covered Person is required to provide security to such
Pension Benefit Plan under the Code which is reasonably likely to have a
Material Adverse Effect.
7.04 CONFLICTING AGREEMENTS. Enter into any agreement, engage
in any transaction, acquire or create any Subsidiary, or transfer assets to any
Subsidiary (whether or not it is actively engaged in a trade or business) that
would immediately or in a reasonably foreseeable time result in a Default or
Event of Default; or enter into any agreement that would immediately or in a
reasonably foreseeable time, if fully complied with or performed by it, result
in a Default or Event of Default.
SECTION 8.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any one or more of the following events
shall constitute an Event of Default:
(a) PAYMENT OF PRINCIPAL. Borrower fails to pay any principal on
any Outstanding Obligation (other than fees) as and on the date when due; or
(b) PAYMENT OF INTEREST, FEES AND OTHER AMOUNTS. Any Borrower
Party fails to pay (i) any interest on any Outstanding Obligation within five
days after the date when due or (ii) any other fees or amount due under any Loan
Document within five days after notice from Lender that the same is due; or
(c) REPORTING, AUDITS AND ACCESS COVENANTS AND CERTAIN NEGATIVE
COVENANTS. Any default occurs in the observance or performance of any agreement
contained in Section 6.01, 6.02(a), (b), (c), or 6.11, 6.12, 7.01, 7.02; or
(d) OTHER DEFAULTS. Any Borrower Party defaults in the performance
of or compliance with any term contained in any Loan Document (other than those
otherwise referred to in this Section 8) and such default is not remedied within
30 days after the earlier of (i) a Responsible Officer obtaining actual
knowledge of such default and (ii) the Company receiving written notice of such
default from Lender; or
(e) REPRESENTATIONS AND WARRANTIES. Any representation or warranty
contained in Section 5, or which is contained in the Master Guaranty, any
Compliance Certificate or any other material certificate furnished at any time
under or in connection with any Loan Document proves to have been incorrect in
any material respect when made or deemed made; or
(f) CROSS DEFAULT. An "Event of Default" occurs as defined in the
Note Purchase Agreement-2003 or the Note Purchase Agreement-1997 (and
irrespective of whether such an
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Event of Default is declared or waived by the noteholders thereunder or cured by
the issuer thereunder);
(g) BANKRUPTCY; INSOLVENCY; ETC. Any Borrower Party (i) fails to
pay, or admits in writing its inability to pay, its debts generally as they
become due, or otherwise becomes insolvent (however evidenced); (ii) makes a
general assignment for the benefit of creditors; (iii) files a petition in
bankruptcy, is adjudicated insolvent or bankrupt, petitions or applies to any
tribunal for any receiver or any trustee of any Borrower Party or any
substantial part of its property; (iv) commences any proceeding relating to any
Borrower Party under any reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, whether now or
hereafter in effect; (v) has commenced against it any such proceeding which
remains undismissed for a period of 60 days, or by any act indicates its consent
to, approval of, or acquiescence in any such proceeding or the appointment of
any receiver of or any trustee for it or any substantial part of its property,
or allows any such receivership or trusteeship to continue undischarged for a
period of 60 days; or (vi) takes any corporate action to authorize any of the
foregoing; or
(h) LIQUIDATION OR DISSOLUTION. Except as permitted by the Note
Purchase Agreement - 1997 or the Note Purchase Agreement - 2003, any Borrower
Party files a certificate of dissolution under applicable state law or is
liquidated or dissolved, or has commenced against it any action or proceeding
for its liquidation or dissolution which is not dismissed within 60 days, or
takes any corporate action in furtherance thereof.
8.02 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other
rights or remedies of Lender provided for elsewhere in this Agreement, or the
other Loan Documents, or by applicable Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any Event
of Default other than an Event of Default described in Section 8.01(g):
(i) Lender may, in its sole discretion, terminate the
Commitment and/or declare all or any part of the unpaid principal of
all Loans, all interest accrued and unpaid thereon and all other
amounts payable under the Loan Documents to be immediately due and
payable, whereupon the same shall become and be immediately due and
payable, without protest, presentment, notice of dishonor, demand or
further notice of any kind, all of which are expressly waived by each
Borrower Party; and
(ii) Lender may, in its sole discretion but subject to
Section 2.03(b), demand immediate payment by Borrower of an amount
equal to the aggregate amount of all outstanding Letter of Credit Usage
to be held in a Letter of Credit Cash Collateral Account.
(b) Upon the occurrence of any Event of Default described in
Section 8.01(g):
(i) the Commitment and all other obligations of Lender
shall automatically terminate without notice to or demand upon any
Borrower Party, which are expressly waived by Borrower;
(ii) the unpaid principal of all Loans, all interest
accrued and unpaid thereon and all other amounts payable under the Loan
Documents shall be immediately due and payable,
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without protest, presentment, notice of dishonor, demand or further
notice of any kind, all of which are expressly waived by each Borrower
Party; and
(iii) subject to Section 2.03(b), an amount equal to the
aggregate amount of all outstanding Letter of Credit Usage shall be
immediately due and payable to Lender without notice to or demand upon
any Borrower Party, which are expressly waived by each Borrower Party,
to be held in a Letter of Credit Cash Collateral Account.
(c) Upon the occurrence of any Event of Default, Lender, without
notice to (except as expressly provided for in any Loan Document) or demand,
which are expressly waived by each Borrower Party (except as to notices
expressly provided for in any Loan Document), may proceed to protect, exercise
and enforce its rights and remedies under the Loan Documents against any
Borrower Party and such other rights and remedies as are provided by Law or
equity.
(d) The order and manner in which Lenders' rights and remedies are
to be exercised shall be as determined by Lender in its sole and absolute
discretion. Regardless of how Lender may treat payments for the purpose of its
own accounting, for the purpose of computing the Obligations hereunder, payments
shall be applied first, to costs and expenses (including Attorney Costs)
incurred by Lender, second, to the payment of accrued and unpaid interest on the
Loans to and including the date of such application, third, to the payment of
the unpaid principal of the Loans, and fourth, to the payment of all other
amounts (including fees) then owing Lender under the Loan Documents. No
application of payments will cure any Event of Default, or prevent acceleration,
or continued acceleration, of amounts payable and the Loan Documents, or prevent
the exercise, or continued exercise, of rights or remedies of Lender hereunder
or thereunder or at Law or in equity.
SECTION 9.
NOT USED
SECTION 10.
MISCELLANEOUS
10.01 AMENDMENTS; CONSENTS. No amendment, modification, supplement ,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by any Borrower Party therefrom shall be effective unless in writing
signed by Borrower and Lender, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. Except as otherwise expressly provided herein, without the approval in
writing of Lender, no amendment, modification, supplement, termination, waiver
or consent will be effective.
10.02 TRANSMISSION AND EFFECTIVENESS OF COMMUNICATIONS AND
SIGNATURES.
(a) MODES OF DELIVERY. Except as otherwise provided in any Loan
Document, notices, requests, demands, directions, agreements and documents
delivered in connection with the Loan Documents (collectively, "communications")
shall be transmitted by Requisite Notice to the number and address set forth on
Schedule 10.02, may be delivered by the following modes of delivery, and shall
be effective as follows:
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MODE OF DELIVERY EFFECTIVE ON EARLIER OF ACTUAL RECEIPT AND:
---------------- -------------------------------------------
Courier Scheduled delivery date
Facsimile When transmission in legible form complete
Mail Fourth Business Day after deposit in U.S. mail first
class postage pre-paid
Personal delivery When received
Telephone When conversation completed
Electronic Mail When received
provided, however, that communications delivered to Lender pursuant to Section 2
shall not be effective until actually received by Lender.
(b) RELIANCE BY LENDER. Lender shall be entitled to rely and act
on any communications purportedly given by or on behalf of any Borrower Party
even if (i) such communications (A) were not made in a manner specified herein,
(B) were incomplete or (C) were not preceded or followed by any other notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any subsequent related communications provided for herein. Company
shall indemnify Lender from any loss, cost, expense or liability as a result of
relying on any communications permitted herein.
(c) EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such document and signatures shall, subject to applicable Law, have the same
force and effect as hard-copies with manual signatures and shall be binding on
all Borrower Parties and Lender. Lender may also require that any such documents
and signatures be confirmed by a manually signed hardcopy thereof; provided,
however, that the failure to request or deliver any such manually signed
hardcopy shall not affect the effectiveness of any facsimile document or
signature.
(d) EFFECTIVENESS OF ELECTRONIC MAIL. Electronic mail may be used
to distribute routine communications, such as financial statements and other
information and to distribute agreements and other documents to be signed by
Lender; provided, however, that no Request for Extension of Credit or executed
or legally-binding notice, agreement, waiver, amendment or other communication
may be sent by electronic mail.
10.03 ATTORNEY COSTS, EXPENSES AND TAXES. Company agrees (a) to pay
or reimburse Lender for all costs and expenses incurred in connection with the
development, preparation, negotiation and execution of any amendment, waiver,
consent, supplement or modification requested by Company to, any Loan Documents,
and any other documents prepared in connection therewith, including all Attorney
Costs, and (b) after the occurrence of a Default or Event of Default (whether or
not waived) or in connection with transactions requested by Company, to pay or
reimburse Lender for all costs and expenses incurred in connection with any
refinancing, restructuring, reorganization (including a bankruptcy
reorganization) and enforcement or attempted enforcement, or preservation of any
rights under any Loan Documents, and any other documents
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prepared in connection herewith or therewith, or in connection with any
refinancing, or restructuring of any such documents in the nature of a "workout"
or of any insolvency or bankruptcy proceeding, including Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
out of pocket expenses incurred by Lender and the cost of independent public
accountants and other outside experts retained by Lender. The agreements in this
Section shall survive repayment of all Obligations.
10.04 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents to which a
Borrower Party is a party will be binding upon and inure to the benefit of each
Borrower Party, Lender and their respective successors and assigns, except that,
no Borrower Party may assign its rights hereunder or thereunder or any interest
herein or therein without the prior written consent of Lender and any such
attempted assignment shall be void. Lender may at any time pledge its Note or
any other instrument evidencing its rights as a Lender under this Agreement to a
Federal Reserve Bank, but no such pledge shall release such Lender from its
obligations hereunder or grant to such Federal Reserve Bank the rights of a
Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, Lender may
assign to one or more Eligible Assignees all or any portion of its Commitment
and/or Extensions of Credit; provided that (i) such assignment, if not to an
Affiliate of the Lender, shall be subject to the prior written consent of
Company at all times other than during the existence of a Default or Event of
Default (which approval of Company shall not be unreasonably withheld or
delayed), (ii) a copy of a duly signed and completed endorsement and assignment
shall be executed, (iii) the effective date of any such assignment shall be as
specified in the endorsement and assignment and (iv) such assignee shall become
a "Creditor" under and as defined in the Intercreditor Agreement by executing
and delivering a counterpart thereof and complying with the provisions thereof.
Upon obtaining any consent required as set forth in the prior sentence and
payment of the requisite fee described below, the assignee named therein shall
be Lender for all purposes of this Agreement, and the assigning Lender shall be
released from its further obligations under this Agreement. Borrower agrees that
it shall execute and deliver upon request (against delivery by the assigning
Lender to Borrower of the Note) to such assignee Lender, the Note evidencing
such assignee Lender's Loans. For purposes hereof, each mutual fund that is an
Affiliate of Lender shall be deemed to be a single Eligible Assignee, whether or
not such fund is managed by the same fund manager as other mutual funds that are
Affiliates of the same Lender.
(c) Lender may from time to time, without the consent of any other
Person, grant participations to one or more other Person all or any portion of
its Commitment and/or Extensions of Credit; provided, however, that (i) Lender's
obligations under this Agreement shall remain unchanged, (ii) Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other financial institutions
shall not be a Lender hereunder for any purpose except, if the participation
agreement so provides, for the purposes of Section 3 (but only to the extent
that the cost of such benefits to Company does not exceed the cost which Company
would have incurred in respect of Lender absent the participation) and subject
to Sections 10.05 and 10.06, (iv) Borrower shall continue to deal solely and
directly with Lender in connection with Lender's rights and obligations under
this Agreement, (v) the participation agreement shall not restrict an increase
in the combined Commitment or in granting
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Lender's Commitment, so long as the amount of the participation interest is not
increased, and (vi) the consent of the holder of such participation interest
shall not be required for amendments or waivers of provisions of the Loan
Documents; provided, however, that Lender may, in any agreement with a
participant, give such participant the right to consent to any matter which (A)
extends the Maturity Date as to such participant or any other date upon which
any payment of money is due to such participant, (B) reduces the rate of
interest owing to such participant, any fee or any other monetary amount owing
to such participant, or (C) reduces the amount of any installment of principal
owing to such participant. If Lender sells a participation to any Person that is
a "foreign corporation, partnership or trust" within the meaning of the Code, it
shall include in its participation agreement with such Person a covenant by such
Person that such Person will comply with the provisions of Section 10.21 as if
such Person were a Lender and provide that Borrower shall be a third party
beneficiary of such covenant.
10.05 SET OFF. In addition to any rights and remedies of Lender or
any assignee or participant of Lender or any Affiliate thereof (each a,
"Proceeding Party") provided by law, upon the occurrence and during the
continuance of any Event of Default, each Proceeding Party is authorized at any
time and from time to time, without prior notice to any Borrower Party, any such
notice being waived by Borrower Parties to the fullest extent permitted by law,
to proceed directly, by right of set off, banker's lien or otherwise, against
any assets of the Borrower Parties which may be in the hands of such Proceeding
Party (including all general or special, time or demand, provisional or other
deposits and other indebtedness owing by such Proceeding Party to or for the
credit or the account of Borrower) and apply such assets against the
Obligations, irrespective of whether such Proceeding Party shall have made any
demand therefor and although such Obligations may be unmatured. Lender agrees
promptly to notify Company after any such set-off and application made by
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such set off and application.
10.06 NOT USED.
10.07 NO WAIVER; CUMULATIVE REMEDIES.
(a) No failure by Lender to exercise, and no delay by Lender in
exercising, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege under any Loan Document preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
(b) The rights, remedies, powers and privileges herein or therein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by Law. Any decision by Lender not to require payment of any
interest (including Default Interest), fee, cost or other amount payable under
any Loan Document or to calculate any amount payable by a particular method on
any occasion shall in no way limit or be deemed a waiver of Lender's right to
require full payment thereof, or to calculate an amount payable by another
method that is not inconsistent with this Agreement, on any other or subsequent
occasion.
(c) The terms and conditions of Section 9 are for the sole benefit
of Lender.
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10.08 USURY. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan
Documents shall not exceed the maximum rate of non-usurious interest permitted
by applicable Law (the "Maximum Rate"). If Lender shall receive interest in an
amount that exceeds the Maximum Rate, the excessive interest shall be applied to
the principal of the Outstanding Obligations or, if it exceeds the unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by Lender exceeds the Maximum Rate, such
Person may, to the extent permitted by applicable Law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total
amount of interest throughout the contemplated term of the Obligations.
10.09 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.10 INTEGRATION. This Agreement, together with the other Loan
Document is and any letter agreements referred to herein, comprises the complete
and integrated agreement of the parties on the subject matter hereof and
supersedes all prior agreements, written or oral, on the subject matter hereof.
In the event of any conflict between the provisions of this Agreement and those
of any other Loan Document, the provisions of this Agreement shall control and
govern; provided that the inclusion of supplemental rights or remedies in favor
of Lender in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
10.11 NATURE OF LENDERS' OBLIGATIONS. Nothing contained in this
Agreement or any other Loan Document and no action taken by Lender pursuant
hereto or thereto may, or may be deemed to, make Lender a partnership, an
association, a joint venture or other entity, either among themselves or with
Borrower or any Affiliate of Borrower.
10.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document,
certificate or statement delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery thereof. Such
representations and warranties have been or will be relied upon by Lender,
notwithstanding any investigation made by Lender or on its behalf.
10.13 INDEMNITY BY BORROWER.
(a) Borrower agrees to indemnify, save and hold harmless Lender
and its Affiliates, directors, officers, agents, attorneys and employees
(collectively the "Indemnitees") from and against: (i) any and all claims,
demands, actions or causes of action that are asserted against any Indemnitee by
any Person (other than Lender) relating directly or indirectly to a claim,
demand, action or cause of action that such Person asserts or may assert against
any Borrower Party, any of their Affiliates or any of their officers or
directors; (ii) any and all claims, demands, actions or causes of action (other
than by Lender) arising out of or relating to, the Loan Documents, any
predecessor loan documents, the Commitment, the use or contemplated use of the
proceeds of any Loan, or the relationship of any Borrower Party and Lender under
this Agreement; (iii) any administrative or investigative proceeding by any
Governmental Authority arising out of or related to a claim, demand, action or
cause of action described in subsection (i) or (ii) above; and (iv) any and all
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liabilities, losses, costs or expenses (including Attorney Costs) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action, cause of action or proceeding, or as a result of the
preparation of any defense in connection with any foregoing claim, demand,
action, cause of action or proceeding, in all cases, whether or not arising out
of the negligence of an Indemnitee, except as aforesaid, whether or not an
Indemnitee is a party to such clam, demand, action, cause of action or
proceeding (all the foregoing, collectively, the "Indemnified Liabilities");
provided that no Indemnitee shall be entitled to indemnification for any loss
caused by its own gross negligence or willful misconduct or for any loss
asserted against it by another Indemnitee. The foregoing indemnity shall not
extend to any indirect or consequential damages except to the extent such
damages are recoverable under a third-party claim against an Indemnitee. The
agreements in this Section shall survive repayment of all Obligations.
(b) Promptly after receipt by an Indemnitee of a notice of the
commencement of any action or proceeding that may give rise to indemnification
hereunder, such Indemnitee will notify Company. Company shall have the right to
undertake, conduct and control through counsel of its own choosing (which
counsel shall be reasonably acceptable to the Indemnitees) and at the sole
expense of Company, the conduct and settlement of any Indemnified Liabilities,
and the Indemnitees shall cooperate with Company in connection therewith;
provided that Company shall permit any Indemnitee to participate in such conduct
and settlement through counsel chosen by such Indemnitee, but the fees and
expenses of such counsel shall be borne by such Indemnitee. Notwithstanding the
foregoing, if the interests of Company and any Indemnitee become adverse in any
such claim or course of action, such Indemnitee shall have the right to employ
its own counsel, and the reasonable fees and expenses of such counsel shall be
at Company's costs and expense. Borrower shall not be liable for any settlement
of any claim or action effected without its prior written consent, such consent
not to be unreasonably withheld.
10.14 NONLIABILITY OF LENDERS. Borrower acknowledges and agrees
that:
(a) Any inspections of any property of any Borrower Party made by
or through Lender are for purposes of administration of the Loan Documents only,
and Borrower is not entitled to rely upon the same (whether or not such
inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to Lender pursuant to the Loan Documents, Lender
shall not be deemed to have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not constitute
a warranty or representation to anyone with respect thereto by Lender;
(c) The relationship between Borrower and Lender is, and shall at
all times remain, solely that of borrower and lender; Lender shall not under any
circumstance be deemed to be in a relationship of confidence or trust or a
fiduciary relationship with Borrower or its Affiliates, or to owe any fiduciary
duty to Borrower or its Affiliates; Lender does not undertake or assume any
responsibility or duty to Borrower or its Affiliates to select, review, inspect,
supervise, pass judgment upon or inform Borrower or its Affiliates of any matter
in connection with their property or the operations of Borrower or its
Affiliates; Borrower and its Affiliates shall rely entirely upon their own
judgment with respect to such matters; and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or assumed by Lender in
connection with such matters is solely
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for the protection of Lender and neither Borrower nor any other Person is
entitled to rely thereon; and
(d) Lender shall not be responsible or liable to any Person for
any loss, damage, liability or claim of any kind relating to injury or death to
Persons or damage to property caused by the actions, inaction or negligence of
Borrower and/or its Affiliates, and Borrower hereby indemnifies and holds Lender
and its Affiliates harmless from any such loss, damage, liability or claim
subject to the procedures and limitations governing indemnification under
Section 10.13.
10.15 NO THIRD PARTIES BENEFITED. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrower and Lender in connection with the Extensions of Credit, and is made for
the sole benefit of Borrower and Lender, and Lender's successors and assigns.
Except as provided in Sections 10.04 and 10.13, no other Person shall have any
rights of any nature hereunder or by reason hereof.
10.16 SEVERABILITY. Any provision of the Loan Documents that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.17 CONFIDENTIALITY. Lender shall use any confidential non-public
information concerning the Borrower Parties and their Subsidiaries that is
furnished to Lender by or on behalf of the Borrower Parties and their
Subsidiaries in connection with the Loan Documents (collectively, "Confidential
Information") solely for the purpose of evaluating and providing products and
services to them and administering and enforcing the Loan Documents, and it will
hold the Confidential Information in confidence. Notwithstanding the foregoing,
Lender may disclose Confidential Information (a) to its affiliates or any of its
affiliates' directors, officers, employees, auditors, counsel, advisors, or
representatives (collectively, the "Representatives") whom it determines need to
know such information for the purposes set forth in this Section; (b) to any
bank or financial institution or other entity to which Lender has assigned or
desires to assign an interest or participation in the Loan Documents or the
Obligations, provided that any such foregoing recipient of such Confidential
Information agrees to keep such Confidential Information confidential as
specified herein; (c) to any governmental agency or regulatory body having or
claiming to have authority to regulate or oversee any aspect of Lender's
business or that of its Representatives in connection with the exercise of such
authority or claimed authority ; (d) to the extent necessary or appropriate to
effect or preserve Lender's or any of its Affiliates' security (if any) for any
Obligation or to enforce any right or remedy or in connection with any claims
asserted by or against Lender or any of its Representatives; and (e) pursuant to
any subpoena or any similar legal process. For purposes hereof, the term
"Confidential Information" shall not include information that (x) is in Lender's
possession prior to its being provided by or on behalf of the Borrower Parties,
provided that such information is not known by Lender to be subject to another
confidentiality agreement with, or other legal or contractual obligation of
confidentiality to, a Borrower Party, (y) is or becomes publicly available
(other than through a breach hereof by Lender), or (z) becomes available to
Lender on a nonconfidential basis, provided that the source of such information
was not known by Lender to be bound by a confidentiality agreement or other
legal or contractual obligation of confidentiality with respect to such
information.
-40-
10.18 FURTHER ASSURANCES. Each Borrower Party shall, and shall cause
its Subsidiaries to, at their expense and without expense to Lender, do, execute
and deliver such further acts and documents as Lender from time to time
reasonably requires for the assuring and confirming unto Lender the rights
hereby created or intended now or hereafter so to be, or for carrying out the
intention or facilitating the performance of the terms of any Loan Document.
10.19 HEADINGS. Section headings in this Agreement and the other
Loan Documents are included for convenience of reference only and are not part
of this Agreement or the other Loan Documents for any other purpose.
10.20 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents
10.21 NOT USED.
10.22 COMPELLED RETURN OF PAYMENTS OR PROCEEDS. If Lender is for any
reason compelled to surrender any payment from Borrower because such payment is
for any reason invalidated, declared fraudulent, set aside, or determined to be
void or voidable as a preference, an impermissible setoff, or a diversion of
trust funds, then each Loan Document and the Obligations to which such payment
was applied or intended to be applied shall be revived with respect thereto as
if such application was never made; and Borrower shall be liable to pay to
Lender, and shall indemnify Lender for, and hold Lender harmless from, any loss
with respect to, the amount of such payment surrendered. This Section shall be
effective notwithstanding any contrary action Lender may take in reliance upon
its receipt of any such payment. Any such contrary action so taken by Lender
shall be without prejudice to Lender's rights under this Agreement and shall be
deemed to have been conditioned upon the application of such payment having
become final and indefeasible. The provisions of this Section shall survive
termination of the Commitment, the expiration of the Letters of Credit and the
payment and satisfaction of all Obligations.
10.23 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF MISSOURI APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT LENDER SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF MISSOURI
SITTING IN THE COUNTY OF ST. LOUIS OR OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
BORROWER PARTY AND LENDER CONSENT, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH BORROWER PARTY AND EACH
LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH
-41-
BORROWER PARTY AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF
SUCH STATE.
10.24 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.25 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. TO PROTECT YOU
(BORROWER) AND US (LENDERS) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH,
TOGETHER WITH THE LOAN DOCUMENTS, IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
10.26 CREDIT AGREEMENT. This Agreement amends and restates in its
entirety the Original Credit Agreement.
-42-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
INSITUFORM TECHNOLOGIES, INC.
By: /s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President & Chief
Financial Officer
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
-43-
EXHIBIT A
FORM OF REQUEST FOR EXTENSION OF CREDIT
Date: _________, ____
To: Bank of America, N.A.
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of March 12, 2004 between Insituform Technologies, Inc., a Delaware
corporation ("Company"), and BANK OF AMERICA, N.A., (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Agreement"; the terms defined therein being used herein as therein defined).
The undersigned hereby requests (select one):
A Borrowing of Loans
1. On _______________________________________.
2. In the amount of $____________
The foregoing request complies with the requirements of Section 2.01 of
the Agreement. The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the above date, before and
after giving effect and to the application of the proceeds therefrom:
(a) The representations and warranties made by any
Borrower Party in the Agreement, or which are contained in the Master
Guaranty, any Compliance Certificate, the Intercreditor Agreement or
any other material certificate furnished at any time under or in
connection therewith, are and will be correct on and as of the date of
this Extension of Credit in all material respects, except to the extent
that such representations and warranties specifically refer to any
earlier date; and
(b) No Default or Event of Default has occurred and is
continuing on the date hereof or after giving effect to this Extension
of Credit.
INSITUFORM TECHNOLOGIES, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
Form of Request for Extension of Credit
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _________, ____,
To: Bank of America, N.A.
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of March 12, 2004 between Insituform Technologies, Inc., a Delaware
corporation ("Company") and BANK OF AMERICA, N.A., (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined).
The undersigned Responsible Officer hereby certifies as of the date
hereof that he is the ______________________________ of Company, and that, as
such, he is authorized to execute and deliver this Certificate to Lender on the
behalf of Company, and that:
[Use following for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited
financial statements required by Section 6.01(a) of the Agreement for the fiscal
year of Company ended as of the above date, together with the report and opinion
of an independent certified public accountant required by such section.
[Use following for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial
statements required by Section 6.01(b) of the Agreement for the fiscal quarter
of Company ended as of the above date. Such financial statements fairly present
in all material respects the financial condition, results of operations and
changes in cash flows of Company and its Subsidiaries in accordance with GAAP as
at such date and for such periods, subject only to normal year-end audit
adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of
the Agreement and has made, or has caused to be made under his supervision, a
detailed review of the transactions and conditions (financial or otherwise) of
Company during the accounting period covered by the attached financial
statements.
3. A review of the activities of Borrower Parties during such
fiscal period has been made under my supervision with a view to determining
whether during such fiscal period Borrower Parties performed and observed all
their respective Obligations under the Loan Documents, and
Form of Compliance Certificate
B-1
[SELECT ONE]
[THE EXAMINATIONS DESCRIBED IN PARAGRAPHS 2 AND 3 ABOVE DID NOT
DISCLOSE, AND I HAVE NO KNOWLEDGE OF, THE EXISTENCE OF ANY CONDITION OR EVENT
WHICH CONSTITUTES A DEFAULT OR EVENT OF DEFAULT AS OF THE DATE OF THIS
COMPLIANCE CERTIFICATE.]
-OR-
[THE FOLLOWING IS A LIST OF EACH DEFAULT OR EVENT OF DEFAULT AND ITS
NATURE AND STATUS:]
4. There is no Default or Event of Default as defined and
provided in the Note Purchase Agreement-1997 and the Note Purchase
Agreement-2003.
5. Attached hereto are the most recent compliance certificates
submitted by Borrower pursuant to the Note Purchase Agreement-1997 and the Note
Purchase Agreement-2003.
6. The representations and warranties of the Borrower contained
in Article V of the Agreement, or which are contained in any document furnished
at any time under or in connection with the Loan Documents, are true and correct
on and as of the date hereof, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this
Compliance Certificate, the representations and warranties contained in Section
5.11 of the Agreement shall be deemed to refer to the most recent statements
furnished pursuant to Section 6.01 of the Agreement, including the statements in
connection with which the Compliance Certificate is delivered.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
________________, ____.
INSITUFORM TECHNOLOGIES, INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
Form of Compliance Certificate
B-2
EXHIBIT C
PROMISSORY NOTE
$25,000,000.00 March 12, 2004
FOR VALUE RECEIVED, the undersigned, Insituform Technologies, Inc.
("Borrower"), hereby promises to pay to the order of Bank of America, N.A.
("Lender"), on the Maturity Date (as defined in the Credit Agreement referred
below) the sum of Twenty-Five Million Dollars ($25,000,000.00), or such lesser
principal amount of Loans (as defined in the Credit Agreement referred to below)
payable by Borrower to Lender on such Maturity Date under that certain Amended
and Restated Credit Agreement dated as of March 12, 2004 between Borrower, and
Lender (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined).
Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates, and payable at such times as are specified in the
Agreement. All payments of principal and interest shall be made to Lender in
immediately available funds at Lender's Payment office. If any amount is not
paid in full when due hereunder, such unpaid amount shall bear interest, to be
paid upon demand, from the due date thereof until the date of actual payment
(and before as well as after judgment) computed at the per annum rate set forth
in the Agreement.
This Note is one of the "Notes" referred to in the Agreement. Reference
is hereby made to the Agreement for rights and obligations of payment and
prepayment, events of default and the right of Lender to accelerate the maturity
hereof upon the occurrence of such events. Loans made by Lender shall be
evidenced by one or more loan accounts or records maintained by Lender in the
ordinary course of business. Lender may also attach schedules to this Note and
endorse thereon the date, amount and maturity of its Loans and payments with
respect thereto.
Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
Form Promissory Note
C-1
Borrower agrees to pay all collection expenses, court costs and
Attorney Costs (whether or not litigation is commenced) which may be incurred by
Lender in connection with the collection or enforcement of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF MISSOURI.
INSITUFORM TECHNOLOGIES, INC.
By ________________________________
Name ______________________________
Title _____________________________
Form Promissory Note
C-2
EXHIBIT D
MASTER GUARANTY
This MASTER GUARANTY ("Guaranty"), dated as of March 12, 2004, is made
by each of the corporations from time to time party hereto (each, in its
capacity hereunder, a "Guarantor" and collectively "Guarantors"), jointly and
severally in favor of the Guarantied Parties referred to below with reference to
the following facts:
RECITALS
A. Pursuant to that Amended and Restated Credit Agreement dated
as of March 12, 2004 among Insituform Technologies, Inc., a Delaware corporation
("Company") and BANK OF AMERICA, N.A. ("Lender") (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Credit Agreement") the Lender and its successors and assigns, (collectively,
the "Guarantied Parties") are making certain credit facilities available to
Borrower.
B. As a condition to the availability of such credit facilities,
Guarantors are required to enter into this Master Guaranty and to guaranty the
Guarantied Obligations as hereinafter provided.
C. Guarantors expect to realize direct and indirect benefits as
the result of the availability of the aforementioned credit facilities to
Borrowers, as the result of financial or business support which will be provided
to the Guarantors by Borrowers.
AGREEMENT
NOW, THEREFORE, in order to induce the Guarantied Parties to extend the
aforementioned credit facilities, and for other good and valuable consideration,
the receipt and adequacy of which hereby are acknowledged, Guarantors hereby
covenant, agree and guaranty as follows:
1. GENERAL. Unless the context of this Guaranty clearly requires
otherwise, (a) references to the plural include the singular and vice versa, (b)
references to any Person include such Person's successors and assigns but, if
applicable, only if such successors and assigns are permitted by this Guaranty,
(c) references to one gender include all genders, (d) "including" is not
limiting, (e) "or" has the inclusive meaning represented by the phrase "and/or,"
(f) the words "hereof", "herein", "hereby", "hereunder" and similar terms in
this Guaranty refer to this Guaranty as a whole, including its Exhibits, and not
to any particular provision of this Guaranty, (g) the word "Section" or
"section" and "Page" or "page" refer to a section or page, respectively, of this
Guaranty unless it expressly refers to something else, (h) reference to any
agreement, document, or instrument, including this Guaranty, any other Loan
Document and any agreement, document or instrument defined herein, means such
agreement, document, or instrument as it may have been or may be amended,
restated, extended, renewed, replaced, or otherwise modified and in effect from
time to time in accordance with the terms thereof and, if applicable, the terms
hereof, and includes all attachments thereto and instruments incorporated
therein, if any, and (i) general and specific references to any Law means such
Law as amended, modified, codified or reenacted, in whole or in
Form of Master Guaranty
D-1
part, and in effect from time to time. Section captions are for convenience only
and do not affect the interpretation or construction of this Guaranty.
2. DEFINITIONS. All capitalized terms not otherwise defined
herein have the meanings given them in the Credit Agreement.
3. ACKNOWLEDGEMENT OF CAPACITY AS A COVERED PERSON UNDER THE
CREDIT AGREEMENT. Each Guarantor acknowledges that it has reviewed the Credit
Agreement and agrees that it is a "Covered Person" (as that term is defined in
the Credit Agreement and used in the Credit Agreement and the other Loan
Documents). All of the representations and warranties, covenants, and agreements
contained in the Credit Agreement and the other Loan Documents which are
applicable to a Covered Person are incorporated into this Guaranty by this
reference and each Guarantor, as such a Covered Person, hereby makes such
representations and warranties to, and makes such covenants and agreements with,
the Guarantied Parties. Each Guarantor further acknowledges and agrees that the
failure of a Guarantor to comply with any terms of the Credit Agreement or the
other Loan Documents applicable to such Guarantor as a Covered Person will,
subject to the terms of the Credit Agreement, result in a Default and/or Event
of Default under the Credit Agreement and the other Loan Documents, entitling
the Guarantied Parties to all of their remedies thereunder and under applicable
law and in equity.
4. GUARANTY.
(a) UNLIMITED GUARANTY OF PAYMENT AND PERFORMANCE. Guarantors
hereby jointly and severally guaranty to the Guarantied Parties, for the benefit
of the Guarantied Parties, the full and prompt payment and performance of all
Obligations of Company, any Subsidiary Borrower and any other Borrower Party at
any time and from time to time owed to the Guarantied Parties under one or more
of the Loan Documents, whether due or to become due, matured or unmatured,
liquidated or unliquidated, or contingent or noncontingent, including
obligations of performance as well as obligations of payment, and including
interest that accrues after the commencement of any bankruptcy or insolvency
proceeding by or against any Borrower, any Guarantor or any other Person
(collectively, the "Guarantied Obligations"). Subject to Section 21, each
Guarantor understands and acknowledges that there is no limit on the Guarantied
Obligations.
(b) CURRENCY OF PAYMENT. Payments hereunder in respect of any
Guarantied Obligations shall be made in Dollars.
(c) NATURE OF GUARANTY. This is a continuing, absolute and
unconditional guaranty of payment and performance and not merely of collection.
Each Guarantor's liability with respect to the Guarantied Obligations is
primary, not secondary. Upon the occurrence of any Event of Default and at any
time thereafter, the Guarantied Parties may proceed directly against any
Guarantor without first proceeding against any Borrower, any other Person liable
for the payment or performance of the Guarantied Obligations, or any collateral
or other security for the Guarantied Obligations. The Guarantied Parties will
not be required to mitigate damages or take any other action to reduce, collect
or enforce the Guarantied Obligations. Only upon Final Payment shall this
Guaranty be released, subject to being automatically reinstated as provided in
Section 7 herein.
(d) PLACE FOR PERFORMANCE. All obligations of Guarantors under
this Guaranty are performable and payable at the Lending Office.
Form of Master Guaranty
D-2
5. NO RELEASE OF GUARANTORS. Each Guarantor's liability under
this Guaranty will not be reduced, extinguished, discharged or released by, and
no Guarantor is entitled to raise as a defense, any:
(a) invalidity, irregularity or unenforceability of the Guarantied
Obligations, any Borrower's Obligations or other obligations under the Loan
Documents to which it is a party, or of such Guarantor's obligations under the
Loan Documents to which it is a party, including this Guaranty;
(b) existing or future offset, claim, counterclaim or defense of
any Borrower, such Guarantor or any other party against the Guarantied Parties
or against payment of the Obligations or the Guarantied Obligations (whether
such offset, claim, counterclaim or defense arises in connection with the
Obligations or the Guarantied Obligations or the transactions creating the
Obligations or the Guarantied Obligations or otherwise);
(c) failure of such Guarantor to be given notice of a Default or
Event of Default by any Borrower;
(d) waivers of Defaults or Events of Default or other waivers
under the Loan Documents;
(e) extensions of due dates for payments, modifications of
interest rates or other payment terms with respect to the Guarantied Obligations
or any other accommodation, indulgence or forbearance granted to any Borrower;
(f) reorganization, merger or consolidation of any Borrower or
such Guarantor into or with any other Person;
(g) release of or non-perfection with respect to any or all of any
collateral or any other security for the Guarantied Obligations;
(h) taking or accepting of any other security or collateral for,
or guaranty of, any or all of the Guarantied Obligations;
(i) the death of or release of, or settlement or compromise with,
any one or more other Persons who have guarantied, or are otherwise liable for
the payment or performance of, any or all of the Guarantied Obligations;
(j) assignment or other transfer of, or granting of a
participation in, any of the Guarantied Obligations or any collateral or other
security therefor, by the Guarantied Parties;
(k) other acts or omissions which, in the absence of this Section
5 would operate so as to reduce, extinguish, discharge or release such
Guarantor's liability under this Guaranty (except for the full and indefeasible
payment of the Guarantied Obligations, cancellation or termination of the
Commitment, expiration of all Letters of Credit, and termination of any other
commitment to extend credit or make advances to or for the account of any
Borrower).
6. WAIVERS.
Form of Master Guaranty
D-3
(a) NOTICE. Each Guarantor hereby waives notice of (i) acceptance
of this Guaranty, (ii) any amendment, restatement or other modification of any
of the Loan Documents (including modifications to interest rates or other
payment terms of the Guarantied Obligations), (iii) Extensions of Credit to any
Borrowers by the Guarantied Parties and fundings of Extensions of Credit to any
Borrower by the Guarantied Parties, (iv) the occurrence of a Default or Event of
Default, (v) any matter referred to in Section 5 of this Guaranty, and (vi) any
other action at any time taken or omitted by the Guarantied Parties, and
generally, all demands and notices of every kind in connection with this
Guaranty and the Loan Documents, except as expressly provided herein and in the
Credit Agreement.
(b) RIGHT OF CONTRIBUTION, ETC. Each Guarantor hereby waives any
right of contribution, subrogation, reimbursement, indemnity, or repayment, and
any other "claim", as that term is defined in the United States Bankruptcy Code,
which such Guarantor might now have or hereafter acquire against any Borrower or
any other Person liable for the payment or performance of the Obligations (other
than pursuant to this Guaranty) that arises from the existence or performance of
such Guarantor's obligations under this Guaranty; and such Guarantor waives the
right to participate in any existing or future collateral or other security for
the Guarantied Obligations. Each Guarantor further agrees that such Guarantor
will not enter into any agreement providing, directly or indirectly, for any
contribution, subrogation, reimbursement, indemnity or repayment by Borrowers on
account of any payment made by such Guarantor hereunder, and that any such
agreement would be void. Until payment in full of all Obligations and
termination of the Commitment, no Guarantor has any right of contribution,
subrogation, reimbursement, indemnity or repayment and no right of recourse to
or with respect to any assets or property of any other guarantor (including any
Guarantor) or other Person liable for any of the Guarantied Obligations (other
than pursuant to Section 20 below).
(c) OTHER. Each Guarantor hereby waives (i) diligence,
presentment, demand for payment, protest or notice, whether of nonpayment,
dishonor, protest or otherwise, (ii) any and all claims, counterclaims or
defenses based upon, related to or arising out of (a) any matter referred to in
Section 5 of this Guaranty, (b) any issue as to whether any sale or other
disposition of any security for the Guarantied Obligations was conducted in a
commercially reasonable fashion, (c) any election of remedies by the Guarantied
Parties, and (d) a theory that this Guaranty should be strictly construed
against the Guarantied Parties, and (iv) all other defenses (except payment in
full of all Obligations and termination of the Commitment), including any
statute(s) of limitations, under applicable Law that would, but for this clause
(iv), be available to such Guarantor as a defense against, or a reduction,
extinguishment, discharge or release of its obligations under, this Guaranty.
7. REINSTATEMENT OR GUARANTY IN CERTAIN CIRCUMSTANCES. Each
Guarantor agrees that, if any or all of a payment made by or on behalf of
Borrowers of any Guarantied Obligation is returned by any Person at any time for
any reason, including pursuant to any settlement, order (whether or not final)
of a court of competent jurisdiction, provision of any Debtor Relief Law or
other applicable Law or because of acts or omissions of Borrowers, the
Guarantied Obligations will not be deemed to have been satisfied to the extent
of the returned payment and the obligations of such Guarantor will be deemed to
be reinstated automatically and to continue in full force and effect. If any
Borrower ceases to be liable to the Guarantied Parties for any of the
Obligations (other than by reason of payment in full of all Obligations and
termination of the Commitment), then any prior release or discharge from this
Guaranty will be without effect and this Guaranty and
Form of Master Guaranty
D-4
the obligations of each Guarantor hereunder will be automatically reinstated and
continue in full force and effect.
8. 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 Charter 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) INDEPENDENT CREDIT EVALUATION. Each Guarantor has
independently, and without reliance on any information supplied by the
Guarantied Parties, taken, and will continue to take, whatever steps such
Guarantor deems necessary to evaluate the financial condition and affairs of
Borrowers and each other Guarantor. No Guarantied Party has any duty to advise
any Guarantor of information at any time known to it regarding the financial
condition or affairs of any Borrower or any other Guarantor.
(f) 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.
9. SURVIVAL OF REPRESENTATIONS. All representations, warranties,
and covenants of each Guarantor contained herein survive the execution and
delivery of this Guaranty, and terminate only upon Final Payment.
10. AUTHORIZATION TO CHARGE ACCOUNTS. Each Guarantor hereby
authorizes each Guarantied Party, if and to the extent any amount payable by
such Guarantor under this Guaranty is not otherwise paid when due, to charge
such amount against any or all of the accounts of such Guarantor with such
Guarantied Party or any Affiliate of such Guarantied Party, with such Guarantor
remaining liable for any deficiency.
Form of Master Guaranty
D-5
11. GUARANTIED PARTIES' OFFSET RIGHTS. Upon the occurrence of any
Event of Default and at any time and from time to time thereafter, each
Guarantied Party is hereby authorized, without notice to any Guarantor (any such
notice being expressly waived by each Guarantor), to setoff against the
Guarantied Obligations any and all deposits (general or special, time or demand,
provisional or final) at any time held, or any other Indebtedness at any time
owing by such Guarantied Party to or for the credit or the account of such
Guarantor, irrespective of whether or not demand has been made under the Credit
Agreement, any Note, or this Guaranty, and to remit the proceeds of such setoff
to such Guarantied Party for distribution to such Guarantied Party and
application to the Guarantied Obligations as provided in the Credit Agreement.
12. ENFORCEMENT. Each Guarantor acknowledges that all of the
Guarantors are liable jointly and severally for the full amount of the
Guarantied Obligations. Suits for the enforcement of this Guaranty may be
brought, at the option of the Guarantied Parties, against all Guarantors, or
successively against each Guarantor, or against one or more but not against all
Guarantors.
13. ATTORNEY'S FEES AND OTHER COSTS. If Guarantors fail to pay the
Guarantied Obligations as required by this Guaranty, then Guarantors will pay
all reasonable costs and expenses incurred by the Guarantied Parties in
enforcing this Guaranty, including Attorney Costs (whether or not there is
litigation), court costs and all costs incurred in connection with any
proceedings under any Debtor Relief Law.
14. RECORDS. The Guarantied Parties' books and records showing the
accounts between the Guarantied Parties and any Borrower are admissible in
evidence in any action or proceeding with respect to this Guaranty and
constitute prima facie proof of the information therein.
15. BINDING NATURE OF CERTAIN ADJUDICATIONS. Each Guarantor will
be conclusively bound by the final adjudication in any action or proceeding,
legal or otherwise, involving any controversy arising under, in connection with,
or in any way related to, any of the Guarantied Obligations, and by a final
judgment, award or decree entered therein, if such Guarantor had the right, or
was given the opportunity, to participate in such action or proceeding and was
given notice of such action or proceeding in time to exercise such right or
avail itself of such opportunity.
16. APPLICATION OF PAYMENTS. All payments made under this Guaranty
will be allocated among the principal and interest and other components of the
Guarantied Obligations and the other obligations of a Guarantor hereunder in
such order and amount as the Guarantied Parties may determine in their sole and
absolute discretion.
17. LIMITATION OF LIABILITY. No Guarantied Party will have any
liability with respect to, and each Guarantor hereby waives, releases and agrees
not to xxx for, (a) any loss or damage sustained by any Guarantor that may occur
as a result of, in connection with, or that is in any way related to, any act or
failure to act referred to in Section 5 of this Guaranty, or (b) any special,
indirect or consequential damages suffered by any Guarantor in connection with
any claim related to this Guaranty.
Form of Master Guaranty
D-6
18. MISCELLANEOUS.
(a) NOTICES. All notices, consents, requests and demands to or
upon the respective parties hereto shall be given by Requisite Notice at the
address of Company set forth on Schedule 9.02 to the Credit Agreement. No notice
given to or demand made on any Guarantor by the Guarantied Parties in any
instance entitles any Borrower to notice or demand in any other instance.
(b) AMENDMENTS AND WAIVERS. No amendment to, waiver of, or
departure from full compliance with any provision of this Guaranty, or consent
to any departure by any Guarantor herefrom, will be effective unless it is in
writing and signed by authorized officers of such Guarantor and Lender;
provided, however, that any such waiver or consent will be effective only in the
specific instance and for the purpose for which given. No failure by Lender to
exercise, and no delay by any Guarantied Party in exercising, any right, remedy,
power or privilege hereunder will operate as a waiver thereof, nor will any
single or partial exercise by any Guarantied Party of any right, remedy, power
or privilege hereunder preclude any other exercise thereof, or the exercise of
any other right, remedy, power or privilege.
(c) RIGHTS CUMULATIVE. Each of the rights and remedies of the
Guarantied Parties under this Guaranty is in addition to all of their other
rights and remedies under applicable Law, and nothing in this Guaranty may be
construed as limiting any such rights or remedies.
(d) SUCCESSORS AND ASSIGNS. This Guaranty binds Guarantors and
their respective successors and assigns and inures to the benefit of the
Guarantied Parties, and each of its successors, transferees, participants and
assignees. No Guarantor may delegate or transfer any of its obligations under
this Guaranty without the prior written consent of Lender. With respect to each
Guarantor's successors and assigns, such successors and assigns include any
receiver, trustee or debtor-in-possession of or for such Guarantor.
(e) SEVERABILITY. Any provision of this Guaranty which is
prohibited, unenforceable or not authorized in any jurisdiction is, as to such
jurisdiction, ineffective to the extent of such prohibition, unenforceability or
nonauthorization without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in any
other jurisdiction.
(f) NO THIRD PARTY RIGHTS. This Guaranty is solely for the benefit
of the parties hereto and the Guarantied Parties, and their respective
successors and assigns, and no other Person has any right, benefit, priority or
interest under, or because of the existence of, this Guaranty.
(g) COUNTERPARTS. This Guaranty may be executed by the parties
hereto on any number of separate counterparts, and all such counterparts taken
together constitute one and the same instrument. It is not necessary in making
proof of this Guaranty to produce or account for more than one counterpart
signed by the party to be charged.
(h) COUNTERPART FACSIMILE EXECUTION. For purposes of this
Guaranty, a document (or signature page thereto) signed and transmitted by
facsimile machine or telecopier is to be treated as an original document. The
signature of any Person thereon, for purposes hereof, is to be considered as an
original signature, and the document transmitted is to be considered to have the
same binding effect as an original signature on an original document. At the
request of any party hereto, any facsimile or telecopy document is to be
re-executed in original form by the Persons who executed the facsimile or
telecopy document. No party hereto may raise the use of a facsimile
Form of Master Guaranty
D-7
machine or telecopier or the fact that any signature was transmitted through the
use of a facsimile or telecopier machine as a defense to the enforcement of this
Guaranty or any amendment or other document executed in compliance with this
Section.
(i) FINAL EXPRESSION; NO COURSE OF DEALING. This Guaranty,
together with the Credit Agreement, the other Loan Documents and any other
agreement executed in connection herewith or therewith, is intended by the
parties as a final expression of their agreement and is intended as a complete
and exclusive statement of the terms and conditions thereof. Acceptance of or
acquiescence in a course of performance or course of dealing rendered or taken
under or with respect to this Guaranty, the Credit Agreement or the other Loan
Documents will not be relevant to determine the meaning of this Guaranty, the
Credit Agreement or the other Loan Documents even though the accepting or
acquiescing party had knowledge of the nature of the performance and opportunity
for objection.
(j) NEGOTIATED TRANSACTION. Each Guarantor and Guarantied Party
represent to the other that in the negotiation and drafting of this Guaranty
each has been represented by and has relied upon the advice of counsel of its
choice. Each Guarantor and Guarantied Party affirm that its counsel has had a
substantial role in the drafting and negotiation of this Guaranty; therefore,
this Guaranty will be deemed drafted by each of Borrowers and the Guarantied
Parties, and the rule of construction to the effect that any ambiguities are to
be resolved against the drafter will not be employed in the interpretation of
this Guaranty.
(k) ASSIGNMENT BY GUARANTIED PARTIES. To the extent permitted in
the Credit Agreement, the Guarantied Parties may grant a participation interest
in or assign or transfer to another Person any instrument, document or agreement
evidencing any of the Guarantied Obligations and the Guarantied Parties' rights
under this Guaranty.
(l) CHOICE OF LAW, FORUM. WAIVER OF JURY TRIAL.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF MISSOURI APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT LENDER SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF MISSOURI
SITTING IN THE COUNTY OF ST. LOUIS OR OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY, EACH
GUARANTOR AND LENDER CONSENT, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH GUARANTOR AND LENDER
IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH GUARANTOR AND
LENDER WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
Form of Master Guaranty
D-8
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
(c) EACH PARTY TO THIS GUARANTY HEREBY EXPRESSLY WAIVES ANY RIGHT
TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER
ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT,
OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS GUARANTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
19. ADDITIONAL GUARANTORS. Any Person required to become a
Guarantor pursuant to Section 6.10 of the Credit Agreement shall, upon complying
with such section, be deemed a Guarantor and this Guaranty shall be deemed
amended to include such additional Person as a party hereto as though a
signatory hereto, with no amendment or further action required hereunder, and
thereafter, all references to Guarantors shall include such additional Person.
20. RIGHT OF CONTRIBUTION. Each Guarantor hereby agrees that to
the extent that a Guarantor shall have paid more than its proportionate share of
all payments made hereunder, such Guarantor shall be entitled to seek and
receive contribution from and against any other Guarantor hereunder who has not
paid its proportionate share of all such payments. The provisions of this
Section shall in no respect limit the obligations and liabilities of any
Guarantor to the Guarantied Parties, and, subject to the provisions of Section
21 below, each Guarantor shall remain liable to the Guarantied Parties for the
full amount guaranteed by such Guarantor hereunder. The "proportionate share" of
any Guarantor shall be a fraction (which shall in no event exceed 1.00) the
numerator of which is the excess, if any, of the fair value of the assets of
such Guarantor over a fair estimate of the liabilities of such Guarantor and the
denominator of which is the excess (but not less than $1.00) of the fair value
of the aggregate assets (without duplication) of all Guarantors over a fair
estimate of the aggregate liabilities (without duplication) of all Guarantors.
All relevant calculations shall be made as of the date such Guarantor became a
Guarantor.
21. LIABILITY. Notwithstanding anything to the contrary elsewhere
contained herein or in any Loan Document to which any Guarantor is a Party, the
aggregate liability of each Guarantor hereunder (other than Company) for payment
and performance of the Guarantied Obligations shall not exceed an amount which,
in the aggregate, is $1.00 less than that amount which if so paid or performed
would constitute or result in a "fraudulent transfer," "fraudulent conveyance"
or terms of similar import, under applicable state or federal Law, including
without limitation, Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code. The
liability of each Guarantor hereunder is independent of any other guaranties at
any time in effect with respect to all or any part of the Guarantied
Obligations, and each Guarantor's liability hereunder may be enforced regardless
of the existence of any such guaranties. Any termination by or release of any
Guarantor in whole or in part (whether it be another Guarantor under this
instrument or not) shall not affect the continuing liability of any
Form of Master Guaranty
D-9
Guarantor hereunder, and no notice of any such termination or release shall be
required. The execution hereof by each Guarantor is not founded upon an
expectation or understanding that there will be any other Guarantor of the
Guarantied Obligations.
22. NOT USED.
(b) Guarantors shall indemnify the Guarantied Parties against and
hold the Guarantied Parties harmless from all loss and damage resulting from any
change in exchange rates between the date any claim is reduced to judgment and
the date of payment (or, in the case of partial payments, the date of each
partial payment) thereof by any Guarantor. This indemnity shall constitute an
obligation separate and independent from the other obligations contained in this
Guaranty, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by the Guarantied Parties from time
to time, and shall continue in full force and effect notwithstanding any
judgment or order for a liquidated sum in respect of an amount due hereunder or
under any judgment or order.
23. PAYMENTS EXEMPT FROM TAXES. (a) Any and all payments by
Guarantors to or for the account of the Guarantied Parties hereunder shall be
made free and clear of and without deduction for any and all present or future
taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and all liabilities with respect thereto, excluding, in the
case of any Guarantied Party, taxes imposed on or measured by its net income,
branch profits or franchise taxes imposed on it (in lieu of net income or branch
profits taxes), by the United States of America or by the jurisdiction (or any
political subdivision thereof) under the Laws of which such Guarantied Party is
organized, in which its principal office is located or in which it maintains a
lending office, and any other taxes withheld because such Guarantied Party
failed to timely deliver the forms required pursuant to Section 10.21 of the
Credit Agreement (all such non-excluded taxes, duties, levies, imposts,
deductions, assessments, fees, withholdings or similar charges, and liabilities
being hereinafter referred to as "Taxes").
(b) If a Guarantor shall be required by any Laws to deduct any
Taxes from or in respect of any sum payable under any Loan Document to any
Guarantied Party, (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section), such Guarantied Party receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Guarantor shall make such deductions, (iii) such Guarantor shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable Laws, and (iv) within 30 days after the date of
such payment, such Guarantor shall furnish to Lender the original or a certified
copy of a receipt evidencing payment thereof.
(c) Each Guarantor will provide the Guarantied Parties with
original tax receipts, notarized copies of tax receipts, or such other
documentation as will prove payment of tax in a court of law applying the United
States Federal Rules of Evidence, for all taxes paid by a Guarantor pursuant to
subsection (b) above. Each Guarantor will deliver receipts to Lender within 30
days after the due date for the related tax.
IN WITNESS WHEREOF, this Guaranty has been duly executed as of the date
first above written.
Form of Master Guaranty
D-10
GUARANTORS:
XXXXXXXXX, INC.
By ________________________________
Name ______________________________
Title _____________________________
INA ACQUISITION CORP
By ________________________________
Name ______________________________
Title _____________________________
INSITUFORM TECHNOLOGIES USA, INC.
By ________________________________
Name ______________________________
Title _____________________________
XXXXXX INDUSTRIES, INC.
By ________________________________
Name ______________________________
Title _____________________________
Form of Master Guaranty
D-11
TRACKS OF TEXAS, INC.
By ________________________________
Name ______________________________
Title _____________________________
ACKNOWLEDGED:
BANK OF AMERICA, N.A.,
By: ________________________________
Form of Master Guaranty
D-12
EXHIBIT E
INSTRUMENT OF JOINDER FOR
ADDITIONAL GUARANTORS
Dated: _____, _____
Reference is made to that certain Amended and Restated Credit Agreement
dated as of March 12, 2004 between Insituform Technologies, Inc., a Delaware
corporation ("Company") and BANK OF AMERICA, N.A. (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined).
_________________________________, a direct or indirect Domestic
Subsidiary of Company ("Subsidiary") hereby agrees to become a Guarantor and
agrees to be bound by all the terms and conditions of the Guaranty applicable to
a Guarantor from and after the date hereof as if a signatory to the Guaranty.
The undersigned Subsidiary hereby represents and warrants to the matters set
forth in Section 15 of the Guaranty applicable to it as of the date hereof.
Instrument of Joinder For
Additional Guarantors and Borrowers
E-1
The undersigned hereby consent to the Subsidiary becoming a party to
the Guaranty. This Instrument of Joinder is executed by the parties hereto as of
the date first written above.
"NEW GUARANTOR"
By ___________________________________
Name _________________________________
Title ________________________________
EXISTING BORROWER PARTY TO THE CREDIT
AGREEMENT AND EXISTING GUARANTORS
PARTY TO THE GUARANTY:
INSITUFORM TECHNOLOGIES, INC.
By ___________________________________
Name _________________________________
Title ________________________________
XXXXXXXXX, INC.
By ___________________________________
Name _________________________________
Title ________________________________
INA ACQUISITION CORP
By ___________________________________
Name _________________________________
Title ________________________________
-1-
INSITUFORM TECHNOLOGIES USA, INC.
By ___________________________________
Name _________________________________
Title ________________________________
XXXXXX INDUSTRIES, INC.
By ___________________________________
Name _________________________________
Title ________________________________
TRACKS OF TEXAS, INC.
By ___________________________________
Name _________________________________
Title ________________________________
Consented:
BANK OF AMERICA, N.A.,
By ___________________________________
Title ________________________________
-2-
