Exhibit 10.6
Insituform Technologies, Inc.
$110,000,000
7.88% Senior Notes, Series A, Due February 14, 2007
______________
Note Purchase Agreement
_____________
Dated as of February 14, 1997
Table of Contents
(Not a part of the Agreement)
Section Heading Page
- ------- ------- ----
Section 1. Authorization of Notes 1
Section 2. Sale and Purchase of Notes 1
Section 2.1. Series A Notes 1
Section 2.2. Additional Notes 2
Section 3. Closing 2
Section 4. Conditions to Closing 2
Section 4.1. Representations and Warranties 2
Section 4.2. Performance; No Default 3
Section 4.3. Compliance Certificates 3
Section 4.4. Opinions of Counsel 3
Section 4.5. Purchase Permitted By Applicable
Law, etc 3
Section 4.6. Sale of Other Notes 3
Section 4.7. Payment of Special Counsel Fees 4
Section 4.8. Private Placement Number 4
Section 4.9. Changes in Corporate Structure 4
Section 4.10. Repayment of Certain Indebtedness 4
Section 4.11. Proceedings and Documents 4
Section 5. Representations and Warranties
of the Company 4
Section 5.1. Organization; Power and Authority 4
Section 5.2. Authorization, etc 4
Section 5.3. Disclosure 5
Section 5.4. Organization and Ownership of Shares
of Subsidiaries; Affiliates 5
Section 5.5. Financial Statements 6
Section 5.6. Compliance with Laws, Other
Instruments, etc 6
Section 5.7. Governmental Authorizations, etc 7
Section 5.8. Litigation; Observance of Agreements,
Statutes and Orders 7
Section 5.9. Taxes 7
Section 5.10. Title to Property; Leases 8
Section 5.11. Licenses, Permits, etc 8
Section 5.12. Compliance with ERISA 8
Section 5.13. Private Offering by the Company 9
Section 5.14. Use of Proceeds; Margin Regulations 10
Section 5.15. Existing Indebtedness; Future Liens 10
Section 5.16. Foreign Assets Control Regulations,
etc 10
Section 5.17. Status under Certain Statutes 10
Section 5.18. Environmental Matters 10
Section 6. Representations of the Purchaser 11
Section 6.1. Purchase for Investment 11
Section 6.2. Source of Funds 11
Section 7. Information as to Company 13
Section 7.1. Financial and Business Information 13
Section 7.2. Officer's Certificate 16
Section 7.3. Inspection 16
Section 7.4. Reporting Treatment of Certain
Subsidiaries 17
Section 8. Prepayment of the Notes 17
Section 8.1. Required Prepayments 17
Section 8.2. Optional Prepayments with Make-Whole
Amount 18
Section 8.3. Prepayment of Notes upon Change of
Control 18
Section 8.4. Allocation of Partial Prepayments 20
Section 8.5. Maturity; Surrender, etc 20
Section 8.6. Purchase of Notes 20
Section 8.7. Make-Whole Amount 20
Section 9. Affirmative Covenants 22
Section 9.1. Compliance with Law 22
Section 9.2. Insurance 22
Section 9.3. Maintenance of Properties 22
Section 9.4. Payment of Taxes and Claims 23
Section 9.5. Corporate Existence, etc 23
Section 9.6. Maintenance of Business 23
Section 9.7. Notes to Rank Pari Passu 23
Section 9.8. Guaranty by Subsidiaries 23
Section 10. Negative Covenants 25
Section 10.1. Consolidated Adjusted Net Worth 25
Section 10.2. Fixed Charges Coverage Ratio 25
Section 10.3. Consolidated Indebtedness Ratio 25
Section 10.4. Priority Debt 25
Section 10.5. Limitation on Liens 26
Section 10.6. Restricted Payments 29
Section 10.7. Mergers, Consolidations and Sales of
Assets 29
Section 10.8. Transactions with Affiliates 32
Section 11. Events of Default 32
Section 12. Remedies on Default, etc 34
Section 12.1. Acceleration 34
Section 12.2. Other Remedies 35
Section 12.3. Rescission 35
Section 12.4. No Waivers or Election of Remedies,
Expenses, etc 35
Section 13. Registration; Exchange; Substitution
of Notes 36
Section 13.1. Registration of Notes 36
Section 13.2. Transfer and Exchange of Notes 36
Section 13.3. Replacement of Notes 36
Section 14. Payments on Notes 37
Section 14.1. Place of Payment 37
Section 14.2. Home Office Payment 37
Section 15. Expenses, Etc 37
Section 15.1. Transaction Expenses 37
Section 15.2. Survival 38
Section 16. Survival of Representations and Warranties;
Entire Agreement 38
Section 17. Amendment and Waiver 38
Section 17.1. Requirements 38
Section 17.2. Solicitation of Holders of Notes 39
Section 17.3. Binding Effect, etc 39
Section 17.4. Notes Held by Company, etc 39
Section 18. Notices 40
Section 19. Reproduction of Documents 40
Section 20. Confidential Information 40
Section 21. Substitution of Purchaser 41
Section 22. Miscellaneous 42
Section 22.1. Successors and Assigns 42
Section 22.2. Payments Due on Non-Business Days 42
Section 22.3. Severability 42
Section 22.4. Construction 42
Section 22.5. Counterparts 42
Section 22.6. Governing Law 42
Section 22.7. Submission to Jurisdiction 43
Signature 44
Schedule A - Information Relating To Purchasers
Schedule B - Defined Terms
Schedule 4.9 - Changes in Corporate Structure
Schedule 5.3 - Disclosure Materials
Schedule 5.4 - Subsidiaries of the Company and
Ownership of Subsidiary Stock
Schedule 5.5 - Financial Statements
Schedule 5.6 - Agreements to Be Terminated on Date of Closing
Schedule 5.8 - Certain Litigation
Schedule 5.11 - Patents, etc.
Schedule 5.14 - Use of Proceeds
Schedule 5.15 - Existing Indebtedness
Schedule 10.5 - Existing Liens
Exhibit 1 - Form of 7.88% Senior Note, Series A,
Due February 14, 2007
Exhibit 4.4(a) - Form of Opinion of Special Counsel for the Company
Exhibit 4.4(b) - Form of Opinion of Special Counsel for the
Purchasers
Exhibit 9.8(a) - Form of Subsidiary Guaranty
Exhibit 9.8(e) - Form of Intercreditor Agreement
Insituform Technologies, Inc.
1770 Kirby Parkway, Suite 300
Memphis, Tennessee 38138
7.88% Senior Notes, Series A, Due February 14, 2007
Dated as of February 14, 1997
To the Purchaser listed in
the attached Schedule A
who is a signatory hereto:
Ladies and Gentlemen:
Insituform Technologies, Inc., a Delaware corporation (the
"Company"), agrees with you as follows:
Section 1. Authorization of Notes.
The Company will authorize the issue and sale of $110,000,000
aggregate principal amount of its 7.88% Senior Notes, Series A, due
February 14, 2007 (the "Notes", such term to include any such notes
issued in substitution therefor pursuant to Section 13 of this
Agreement or the Other Agreements (as hereinafter defined)). The
Notes shall be substantially in the form set out in Exhibit 1, with
such changes therefrom, if any, as may be approved by you and the
Company. Certain capitalized terms used in this Agreement are
defined in Schedule B; references to a "Schedule" or an "Exhibit"
are, unless otherwise specified, to a Schedule or an Exhibit
attached to this Agreement.
Section 2. Sale and Purchase of Notes.
Section 2.1 Series A Notes.
Subject to the terms and conditions of this Agreement, the
Company will issue and sell to you and you will purchase from the
Company, at the Closing provided for in Section 3, Series A Notes
in the principal amount specified opposite your name in Schedule A
at the purchase price of 100% of the principal amount thereof.
Contemporaneously with entering into this Agreement, the Company is
entering into separate Note Purchase Agreements (the "Other
Agreements") identical with this Agreement with each of the other
purchasers named in Schedule A (the "Other Purchasers"), providing
for the sale at such Closing to each of the Other Purchasers of
Series A Notes in the principal amount specified opposite its name
in Schedule A. Your obligation hereunder, and the obligations of
the Other Purchasers under the Other Agreements, are several and
not joint obligations, and you shall have no obligation under any
Other Agreement and no liability to any Person for the performance
or nonperformance by any Other Purchaser thereunder.
Section 2.2. Additional Notes.
Subject to the terms and provisions hereof, the Company may,
from time to time in its sole discretion, issue and sell additional
unsecured promissory notes ranking pari passu with the Notes and
may in its sole discretion, in connection with the documentation
thereof, incorporate by reference various provisions of this
Agreement or use the form of this Agreement as the basis for the
issuance of such additional notes. Such incorporation by reference
or use of the form of this Agreement shall not dilute or otherwise
affect the relative priority or other rights of the holders of the
Notes hereunder or in any way affect the percentages of these Notes
required to approve an amendment or effectuate a waiver under the
provisions of Section 17 or the percentages of these Notes required
to accelerate the Notes or rescind such an acceleration under the
provisions of Sections 12.1 or 12.3.
Section 3. Closing.
The sale and purchase of the Notes to be purchased by you and
the Other Purchasers shall occur at the offices of Chapman and
Cutler, 111 West Monroe Street, Chicago, Illinois 60603, at 10:00
a.m. Chicago time, at a closing (the "Closing") on February 14,
1997 or on such other Business Day thereafter on or prior to
February 28, 1997 as may be agreed upon by the Company and you and
the Other Purchasers. At the Closing the Company will deliver to
you the Notes to be purchased by you in the form of a single Note
(or such greater number of Notes in denominations of at least
$100,000 as you may request) dated the date of the Closing and
registered in your name (or in the name of your nominee), against
delivery by you to the Company or its order of immediately
available funds in the amount of the purchase price therefor by
wire transfer of immediately available funds for the account of the
Company to account number 670040002362252 at SunTrust Bank,
Nashville, N.A., 201 Fourth Avenue, North, Nashville, Tennessee
37219, A.B.A. No. 064000046 (Attention: Carol Yochem (901)
766-7561). If at the Closing the Company shall fail to tender such
Notes to you as provided above in this Section 3, or any of the
conditions specified in Section 4 shall not have been fulfilled to
your satisfaction, you shall, at your election, be relieved of all
further obligations under this Agreement, without thereby waiving
any rights you may have by reason of such failure or such
nonfulfillment.
Section 4. Conditions to Closing.
Your obligation to purchase and pay for the Notes to be sold
to you at the Closing is subject to the fulfillment to your
satisfaction, prior to or at the Closing, of the following
conditions:
Section 4.1. Representations and Warranties.
The representations and warranties of the Company in this
Agreement shall be correct when made and at the time of the
Closing.
Section 4.2. Performance; No Default.
The Company shall have performed and complied with all
agreements and conditions contained in this Agreement required to
be performed or complied with by it prior to or at the Closing, and
after giving effect to the issue and sale of the Notes (and the
application of the proceeds thereof as contemplated by Schedule
5.14), no Default or Event of Default shall have occurred and be
continuing. Neither the Company nor any Subsidiary shall have
entered into any transaction since the date of the Memorandum that
would have been prohibited by any covenant contained in any of
Sections 9.1 through 9.6 or Sections 10.4 through 10.8 hereof had
such Sections applied since such date.
Section 4.3. Compliance Certificates.
(a) Officer's Certificate. The Company shall have delivered
to you an Officer's Certificate, dated the date of the Closing,
certifying that the conditions specified in Sections 4.1, 4.2 and
4.9 have been fulfilled.
(b) Secretary's Certificate. The Company shall have
delivered to you a certificate certifying as to the resolutions
attached thereto and other corporate proceedings relating to the
authorization, execution and delivery of the Notes and the
Agreements.
Section 4.4. Opinions of Counsel.
You shall have received opinions in form and substance
satisfactory to you, dated the date of the Closing (a) from
Krugman, Chapnick & Grimshaw, counsel for the Company, covering the
matters set forth in Exhibit 4.4(a) and covering such other matters
incident to the transactions contemplated hereby as you or your
counsel may reasonably request (and the Company hereby instructs
its counsel to deliver such opinion to you) and (b) from Chapman
and Cutler, your special counsel in connection with such
transactions, substantially in the form set forth in Exhibit 4.4(b)
and covering such other matters incident to such transactions as
you may reasonably request.
Section 4.5. Purchase Permitted By Applicable Law, etc.
On the date of the Closing your purchase of Notes shall (a) be
permitted by the laws and regulations of each jurisdiction to which
you are subject, without recourse to provisions (such as Section
1405(a)(8) of the New York Insurance Law) permitting limited
investments by insurance companies without restriction as to the
character of the particular investment, (b) not violate any
applicable law or regulation (including, without limitation,
Regulation G, T or X of the Board of Governors of the Federal
Reserve System) and (c) not subject you to any tax, penalty or
liability under or pursuant to any applicable law or regulation,
which law or regulation was not in effect on the date hereof. If
requested by you, you shall have received an Officer's Certificate
certifying as to such matters of fact as you may reasonably specify
to enable you to determine whether such purchase is so permitted.
Section 4.6. Sale of Other Notes.
Contemporaneously with the Closing, the Company shall sell to
the Other Purchasers, and the Other Purchasers shall purchase, the
Notes to be purchased by them at the Closing as specified in
Schedule A.
Section 4.7. Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company
shall have paid on or before the Closing the fees, charges and
disbursements of your special counsel referred to in Section 4.4 to
the extent reflected in a statement of such counsel rendered to the
Company at least one Business Day prior to the Closing.
Section 4.8. Private Placement Number.
A Private Placement number issued by Standard & Poor's CUSIP
Service Bureau (in cooperation with the Securities Valuation Office
of the National Association of Insurance Commissioners) shall have
been obtained for the Notes.
Section 4.9. Changes in Corporate Structure.
Except as specified in Schedule 4.9, the Company shall not
have changed its jurisdiction of incorporation or been a party to
any merger or consolidation and shall not have succeeded to all or
any substantial part of the liabilities of any other entity, at any
time following the date of the most recent financial statements
referred to in Schedule 5.5.
Section 4.10. Repayment of Certain Indebtedness.
On the Closing Date, the Company shall have delivered to you
and your special counsel evidence of the discharge of the
agreements described in Schedule 5.6 and the concurrent release of
all related Guaranties in their entirety.
Section 4.11. Proceedings and Documents.
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be satisfactory to
you and your special counsel, and you and your special counsel
shall have received all such counterpart originals or certified or
other copies of such documents as you or they may reasonably
request.
Section 5. Representations and Warranties of the Company.
The Company represents and warrants to you that:
Section 5.1. Organization; Power and Authority.
The Company is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation, and is duly qualified as a foreign corporation and
is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as
to which the failure to be so qualified or in good standing could
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The Company has the corporate power
and authority to own or hold under lease the properties it purports
to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Agreement and
the Other Agreements and the Notes and to perform the provisions
hereof and thereof.
Section 5.2. Authorization, etc.
This Agreement, the Other Agreements and the Notes have been
duly authorized by all necessary corporate action on the part of
the Company, and this Agreement constitutes, and upon execution and
delivery thereof each Note will constitute, a legal, valid and
binding obligation of the Company enforceable against the Company
in accordance with its terms, except as such enforceability may be
limited by (a) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (b) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
Section 5.3. Disclosure.
The Company, through its agents, SPP Hambro & Co., LLC and The
Boatmen's National Bank of St. Louis, has delivered to you and each
Other Purchaser a copy of a Direct Placement Memorandum dated
December 1996 (including the exhibits thereto, the "Memorandum"),
relating to the transactions contemplated hereby. The Memorandum
fairly describes, in all material respects, the general nature of
the business and principal properties of the Company and its
Subsidiaries (before giving effect to the transactions contemplated
by this Agreement). Except as disclosed in Schedule 5.3, this
Agreement, the Memorandum, the documents, certificates or other
writings which were prepared by the Company and delivered to you by
or on behalf of the Company in connection with the transactions
contemplated hereby and the financial statements listed in Schedule
5.5, taken as a whole, do not contain any untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein not misleading in light of the circumstances
under which they were made. Except as disclosed in the Memorandum
or as disclosed in Schedule 5.3, or in one of the documents,
certificates or other writings identified therein, or in the
financial statements listed in Schedule 5.5, since December 31,
1995, there has been no change in the financial condition,
operations, business, properties or prospects of the Company or any
Subsidiary except changes that individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect.
There is no fact known to the Company unique to the operation by
the Company and its Subsidiaries, taken as a whole, of their
business as currently conducted or proposed to be conducted that
could reasonably be expected to have a Material Adverse Effect that
has not been set forth herein or in the Memorandum or in the other
documents, certificates and other writings delivered to you by or
on behalf of the Company specifically for use in connection with
the transactions contemplated hereby.
Section 5.4. Organization and Ownership of Shares
of Subsidiaries; Affiliates.
(a) Schedule 5.4 contains (except as noted therein) complete
and correct lists (i) of the Company's Subsidiaries, showing, as to
each Subsidiary, the correct name thereof, the jurisdiction of its
organization, and the percentage of shares of each class of its
capital stock or similar equity interests outstanding owned by the
Company and each other Subsidiary (exclusive of directors'
qualifying shares), (ii) of the Company's Affiliates (excluding
directors and officers of Subsidiaries), other than Subsidiaries,
and (iii) of the Company's directors and executive officers.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 5.4 as being
owned by the Company and its Subsidiaries have been validly issued,
are fully paid and nonassessable and (other than directors'
qualifying shares) are owned by the Company or another Subsidiary
free and clear of any Lien (except as otherwise disclosed in
Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a
corporation or other legal entity duly organized, validly existing
and, with respect to the Subsidiaries which are incorporated, in
good standing under the laws of its jurisdiction of organization,
and is duly qualified as a foreign corporation or other legal
entity and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as
to which the failure to be so qualified or in good standing could
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. Each such Subsidiary has the
corporate or other power and authority to own or hold under lease
the properties it purports to own or hold under lease and to
transact the business it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any
legal restriction or any agreement (other than (i) this Agreement,
(ii) the agreements listed on Schedule 5.4 and (iii) customary
limitations imposed by corporate law statutes or, in the case of
Subsidiaries organized under any foreign jurisdiction, limitations
of general application imposed by such foreign jurisdictions)
restricting the ability of such Subsidiary to pay dividends out of
profits or make any other similar distributions of profits to the
Company or any of its Subsidiaries that owns outstanding shares of
capital stock or similar equity interests of such Subsidiary.
Section 5.5. Financial Statements.
The Company has delivered to each Purchaser copies of the
consolidated financial statements of the Company and its
Subsidiaries listed on Schedule 5.5. All of said financial
statements (including in each case the related schedules and notes)
fairly present in all material respects the consolidated financial
position of the Company and its Subsidiaries as of the respective
dates specified in such Schedule and the consolidated results of
their operations and cash flows for the respective periods so
specified and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set
forth in the notes thereto (subject, in the case of any interim
financial statements, to normal year-end adjustments).
Section 5.6. Compliance with Laws, Other Instruments, etc.
(a) The execution, delivery and performance by the Company of
this Agreement and the Notes will not, upon the application of the
proceeds from the sale of the Notes and the concurrent termination
and release of the agreements disclosed in Schedule 5.6, (i)
contravene, result in any breach of, or constitute a default under,
or result in the creation of any Lien in respect of any property of
the Company or any Subsidiary under, any indenture, mortgage, deed
of trust, loan, purchase or credit agreement, lease, corporate
charter or by-laws, or any other agreement or instrument to which
the Company or any Subsidiary is bound or by which the Company or
any Subsidiary or any of their respective properties may be bound
or affected, (ii) conflict with or result in a breach of any of the
terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority
applicable to the Company or any Subsidiary or (iii) violate any
provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Company or any Subsidiary,
other than any contravention, breach, default, creation, conflict
or violation under clauses (i) through (iii), inclusive, of this
Section 5.6(a) which individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect.
(b) The Notes and all other obligations under this Agreement
of the Company are direct and unsecured obligations of the Company
ranking pari passu with all other existing unsecured Indebtedness
of the Company (actual or contingent) which is not expressed to be
subordinated or junior in rank to any other unsecured Indebtedness
of the Company.
Section 5.7. Governmental Authorizations, etc.
Based to the extent relevant upon the accuracy of your
representation set forth in Section 6.2, no consent, approval or
authorization of, or registration, filing or declaration with, any
Governmental Authority is required in connection with the
execution, delivery or performance by the Company of this Agreement
or the Notes.
Section 5.8. Litigation; Observance of Agreements,
Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no
actions, suits or proceedings pending or, to the knowledge of the
Company, threatened against or affecting the Company or any
Subsidiary or any property of the Company or any Subsidiary in any
court or before any arbitrator of any kind or before or by any
Governmental Authority that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default
under any term of any agreement or instrument to which it is a
party or by which it is bound, or any order, judgment, decree or
ruling of any court, arbitrator or Governmental Authority or is in
violation of any applicable law, ordinance, rule or regulation
(including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or
in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
Section 5.9. Taxes.
The Company and its Subsidiaries have filed all tax returns
that are required to have been filed in any jurisdiction, and have
paid all taxes shown to be due and payable on such returns and all
other taxes and assessments levied upon them or their properties,
assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become
delinquent, except for any taxes and assessments (a) the amount of
which is not individually or in the aggregate Material or (b) the
amount, applicability or validity of which is currently being
contested in good faith by appropriate proceedings and with respect
to which the Company or a Subsidiary, as the case may be, has
established adequate reserves in accordance with GAAP. The Company
knows of no basis for any other tax or assessment which may be
imposed with respect to periods covered by such returns that could
reasonably be expected to have a Material Adverse Effect. The
charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of Federal, state or other taxes for all
fiscal periods are adequate in all material respects. The Federal
income tax liabilities of the Company and its Subsidiaries have
been determined by the Internal Revenue Service and paid for all
fiscal years up to and including the fiscal year ended December 31,
1992, except that the Company continues to carry forward net
operating losses from the fiscal years ended December 31, 1979
through December 31, 1985, and accordingly, such fiscal years
remain open with respect to, and only with respect to, such
carryforwards.
Section 5.10. Title to Property; Leases.
The Company and its Subsidiaries have good and sufficient
title to their respective properties that individually or in the
aggregate are Material, including all such properties reflected in
the most recent audited balance sheet referred to in Section 5.5 or
purported to have been acquired by the Company or any Subsidiary
after said date (except as sold or otherwise disposed of in the
ordinary course of business), in each case free and clear of Liens
prohibited by this Agreement. All leases that individually or in
the aggregate are Material are valid and subsisting and are in full
force and effect in all material respects.
Section 5.11. Licenses, Permits, etc.
Except as disclosed in Schedule 5.11,
(a) the Company and its Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights,
service marks, trademarks and trade names, or rights thereto, that
individually or in the aggregate are Material, without known
conflict with the rights of others, other than conflicts which,
individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect;
(b) to the best knowledge of the Company, no product of the
Company or any of its Subsidiaries infringes in any Material
respect any license, permit, franchise, authorization, patent,
copyright, service mark, trademark, trade name or other right owned
by any other Person; and
(c) to the best knowledge of the Company, there is no
Material violation by any Person of any right of the Company or any
of its Subsidiaries with respect to any patent, copyright, service
mark, trademark, trade name or other right owned or used by the
Company or any of its Subsidiaries.
Section 5.12. Compliance with ERISA.
(a) The Company and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws
except for such instances of noncompliance as have not resulted in
and could not reasonably be expected to result in a Material
Adverse Effect. Neither the Company nor any ERISA Affiliate has
incurred any liability pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to employee
benefit plans (as defined in Section 3 of ERISA), and no event,
transaction or condition has occurred or exists that could
reasonably be expected to result in the incurrence of any such
liability by the Company or any ERISA Affiliate, or in the
imposition of any Lien on any of the rights, properties or assets
of the Company or any ERISA Affiliate, in either case pursuant to
Title I or IV of ERISA or to such penalty or excise tax provisions
or to Section 401(a)(29) or 412 of the Code, other than such
liabilities or Liens as would not be individually or in the
aggregate Material.
(b) The present value of the aggregate benefit liabilities
under each of the Plans (other than Multiemployer Plans),
determined as of the end of such Plan's most recently ended plan
year on the basis of the actuarial assumptions specified for
funding purposes in such Plan's most recent actuarial valuation
report, did not exceed the aggregate current value of the assets
(including contributions with respect to such plan year made by the
due date under Section 404(a)(6) of the Code) of such Plan
allocable to such benefit liabilities. The terms "benefit
liabilities" has the meaning specified in section 4001 of ERISA and
the terms "current value" and "present value" have the meaning
specified in section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred
any currently outstanding withdrawal liabilities (and are not
subject to contingent withdrawal liabilities) under section 4201 or
4204 of ERISA in respect of Multiemployer Plans that individually
or in the aggregate are Material.
(d) The expected post-retirement benefit obligation
(determined as of the last day of the Company's most recently ended
fiscal year in accordance with Financial Accounting Standards Board
Statement No. 106, without regard to liabilities attributable to
continuation coverage mandated by section 4980B of the Code or Part
6 of Title I of ERISA) of the Company and its Subsidiaries is not
Material.
(e) The execution and delivery of this Agreement and the
issuance and sale of the Notes hereunder will not involve any
transaction that is subject to the prohibitions of section 406 of
ERISA or in connection with which a tax could be imposed pursuant
to section 4975(c)(1)(A)-(D) of the Code. The representation by the
Company in the first sentence of this Section 5.12(e) is made in
reliance upon and subject to the accuracy of your representation in
Section 6.2 as to the sources of the funds used to pay the purchase
price of the Notes to be purchased by you.
(f) Each Foreign Pension Plan has been maintained in
substantial compliance with its terms and with the requirements of
any and all applicable laws, statutes, rules, regulations and
orders and has been maintained, where required, in good standing
with applicable regulatory authorities; neither the Company nor any
Subsidiary has incurred any currently outstanding obligation in
connection with the termination of or withdrawal from any Foreign
Pension Plan; and, the present value of the accrued benefit
liabilities (whether or not vested) under each Foreign Pension
Plan, determined as of the end of the Company's most recently ended
fiscal year on the basis of actuarial assumptions, each of which is
reasonable, did not exceed the present value of the assets of such
Foreign Pension Plan allocable to such benefit liabilities. All
contributions required to be made with respect to a Foreign Pension
Plan have been timely made.
Section 5.13. Private Offering by the Company.
Neither the Company nor anyone acting on its behalf has
offered the Notes or any similar securities for sale to, or
solicited any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any Person other
than you, the Other Purchasers and not more than 64 other
Institutional Investors, each of which has been offered the Notes
at a private sale for investment. Based to the extent relevant on
the accuracy of your representation set forth in Section 6.1,
neither the Company nor anyone acting on its behalf has taken, or
will take, any action that would subject the issuance or sale of
the Notes to the registration requirements of Section 5 of the
Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations.
The Company will apply the proceeds of the sale of the Notes
as set forth in Schedule 5.14. Except as described in Schedule
5.14, no part of the proceeds from the sale of the Notes hereunder
will be used, directly or indirectly, for the purpose of buying or
carrying any margin stock within the meaning of Regulation G of the
Board of Governors of the Federal Reserve System (12 CFR 207); or
for the purpose of buying or carrying or trading in any securities
under such circumstances as to involve the Company in a violation
of Regulation X of said Board (12 CFR 224) or to involve any broker
or dealer in a violation of Regulation T of said Board (12 CFR
220). Margin stock does not constitute more than 1% of the value of
the consolidated assets of the Company and its Subsidiaries and the
Company does not have any present intention that margin stock will
constitute more than 10% of the value of such assets. As used in
this Section, the terms "margin stock" and "purpose of buying or
carrying" shall have the meanings assigned to them in said
Regulation G.
Section 5.15. Existing Indebtedness; Future Liens.
(a) Schedule 5.15 sets forth a complete and correct list of
all outstanding Indebtedness of the Company and its Subsidiaries as
of December 31, 1996, since which date there has been no Material
change in the amounts, interest rates, sinking funds, installment
payments or maturities of the Indebtedness of the Company or its
Subsidiaries (other than as contemplated in connection with the
Closing). Neither the Company nor any Subsidiary is in default and
no waiver of default is currently in effect, in the payment of any
principal or interest on any Indebtedness of the Company or such
Subsidiary. No event or condition exists with respect to any
Indebtedness of the Company or any Subsidiary that would permit (or
that with notice or the lapse of time, or both, would permit) one
or more Persons to cause such Indebtedness to become due and
payable before its stated maturity or before its regularly
scheduled dates of payment, which event or condition could
reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary has agreed or
consented to cause or permit in the future (upon the happening of
a contingency or otherwise) any of its property, whether now owned
or hereafter acquired, to be subject to a Lien not permitted by
Section 10.5.
Section 5.16. Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Company hereunder nor its
use of the proceeds thereof will violate the Trading with the Enemy
Act, as amended, or any of the foreign assets control regulations
of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or any enabling legislation or executive
order relating thereto.
Section 5.17. Status under Certain Statutes.
Neither the Company nor any Subsidiary is subject to
regulation under the Investment Company Act of 1940, as amended,
the Public Utility Holding Company Act of 1935, as amended, the
Interstate Commerce Act, as amended, or the Federal Power Act, as
amended.
Section 5.18. Environmental Matters.
Neither the Company nor any Subsidiary has knowledge of any
claim or has received any notice of any claim, and no proceeding
has been instituted raising any claim against the Company or any of
its Subsidiaries or any of their respective real properties now or
formerly owned, leased or operated by any of them or other assets,
alleging any damage to the environment or violation of any
Environmental Laws, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect.
Except as otherwise disclosed to you in writing:
(a) neither the Company nor any Subsidiary has knowledge of
any facts which would give rise to any claim, public or private, of
violation of Environmental Laws or damage to the environment
emanating from, occurring on or in any way related to real
properties now or formerly owned, leased or operated by any of them
or to other assets or their use, except, in each case, such as
could not reasonably be expected to result in a Material Adverse
Effect;
(b) neither the Company nor any of its Subsidiaries has
stored any Hazardous Materials on real properties now or formerly
owned, leased or operated by any of them or has disposed of any
Hazardous Materials in a manner contrary to any Environmental Laws
which storage or disposal could reasonably be expected to result in
a Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or
operated by the Company or any of its Subsidiaries are in
compliance with applicable Environmental Laws, except where failure
to comply could not reasonably be expected to result in a Material
Adverse Effect.
Section 6. Representations of the Purchaser.
Section 6.1. Purchase for Investment.
You represent that you are purchasing the Notes for your own
account or for one or more separate accounts maintained by you or
for the account of one or more pension or trust funds and not with
a view to the distribution thereof; provided that the disposition
of your or their property shall at all times be within your or
their control. You understand that the Notes have not been
registered under the Securities Act and agree that the Notes may be
resold only if registered pursuant to the provisions of the
Securities Act or if an exemption from registration is available,
except under circumstances where neither such registration nor such
an exemption is required by law, and that the Company is not
required to register the Notes.
Section 6.2. Source of Funds.
You represent that at least one of the following statements is
an accurate representation as to each source of funds (a "Source")
to be used by you to pay the purchase price of the Notes to be
purchased by you hereunder:
(a) if you are an insurance company, the Source is an
"insurance company general account" within the meaning of
Department of Labor Prohibited Transaction Exemption ("PTE") 95-60
(issued July 12, 1995) and there is no employee benefit plan,
treating as a single plan all plans maintained by the same employer
or employee organization, with respect to which the amount of the
general account reserves and liabilities for all contracts held by
or on behalf of such plan exceeds ten percent (10%) of the total
reserves and liabilities of such general account (exclusive of
separate account liabilities) plus surplus, as set forth in the
NAIC Annual Statement filed with your state of domicile; or
(b) if you are an insurance company, the Source does not
include assets allocated to any separate account maintained by you
in which any employee benefit plan (or its related trust) has any
interest, other than a separate account that is maintained solely
in connection with your fixed contractual obligations under which
the amounts payable, or credited, to such plan and to any
participant or beneficiary of such plan (including any annuitant)
are not affected in any manner by the investment performance of the
separate account; or
(c) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1 (issued January
29, 1990), or (ii) a bank collective investment fund, within the
meaning of the PTE 91-38 (issued July 12, 1991) and, except as you
have disclosed to the Company in writing pursuant to this paragraph
(c), no employee benefit plan or group of plans maintained by the
same employer or employee organization beneficially owns more than
10% of all assets allocated to such pooled separate account or
collective investment fund; or
(d) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the
meaning of Part V of the QPAM Exemption), no employee benefit
plan's assets that are included in such investment fund, when
combined with the assets of all other employee benefit plans
established or maintained by the same employer or by an affiliate
(within the meaning of Section V(c)(1) of the QPAM Exemption) of
such employer or by the same employee organization and managed by
such QPAM, exceed 20% of the total client assets managed by such
QPAM, the conditions of Part l(c) and (g) of the QPAM Exemption are
satisfied, neither the QPAM nor a Person controlling or controlled
by the QPAM (applying the definition of "control" in Section V(e)
of the QPAM Exemption) owns a 5% or more interest in the Company
and (i) the identity of such QPAM and (ii) the names of all
employee benefit plans whose assets are included in such investment
fund have been disclosed to the Company in writing pursuant to this
paragraph (d); or
(e) the Source is a governmental plan; or
(f) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Company in
writing pursuant to this paragraph (f); or
(g) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA.
If you or any subsequent transferee of the Notes indicates
that you or such transferee are relying on any representation
contained in paragraph (c), (d) or (f) above, the Company shall
deliver on the date of Closing and on the date of any applicable
transfer a certificate, which shall either state that (i) it is
neither a party in interest nor a "disqualified person" (as defined
in Section 4975(e)(2) of the Code), with respect to any employee
benefit plan identified pursuant to paragraphs (c) or (f) above, or
(ii) with respect to any employee benefit plan, identified pursuant
to paragraph (d) above, neither it nor any "affiliate" (as defined
in Section V(c) of the QPAM Exemption) has at such time, and during
the immediately preceding one year, exercised the authority to
appoint or terminate said QPAM as manager of any plan identified in
writing pursuant to paragraph (d) above or to negotiate the terms
of said QPAM's management agreement on behalf of any such
identified plan. As used in this Section 6.2, the terms "employee
benefit plan", "governmental plan", "party in interest" and
"separate account" shall have the respective meanings assigned to
such terms in Section 3 of ERISA.
Section 7. Information as to Company.
Section 7.1. Financial and Business Information.
Subject to the provisions of Section 7.4, the Company shall
deliver to each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements - within 60 days after the end of
each quarterly fiscal period in each fiscal year of the Company
(other than the last quarterly fiscal period of each such fiscal
year), duplicate copies of:
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of operations, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries for such quarter and (in the case of the second
and third quarters) for the portion of the fiscal year ending
with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP applicable to
quarterly financial statements generally, and certified by a Senior
Financial Officer as fairly presenting, in all material respects,
the financial position of the companies being reported on and their
results of operations and cash flows, subject to changes resulting
from year-end adjustments; provided that delivery within the time
period specified above of copies of the Company's Quarterly Report
on Form 10-Q prepared in compliance with the requirements therefor
and filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this Section 7.1(a);
(b) Annual Statements - within 90 days after the end of each
fiscal year of the Company (unless the Company has timely filed a
Form 12b-25 with the SEC with respect to any fiscal year, in which
case the Company shall be required to deliver the following reports
within 105 days after the end of such fiscal year), duplicate
copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of operations, changes in
shareholders' equity and cash flows of the Company and its
Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP, and accompanied
(A) by an opinion thereon of independent certified
public accountants of recognized national standing, which
opinion shall state that such financial statements present
fairly, in all material respects, the financial position of
the companies being reported upon and their results of
operations and cash flows and have been prepared in conformity
with GAAP, and that the examination of such accountants in
connection with such financial statements has been made in
accordance with generally accepted auditing standards, and
that such audit provides a reasonable basis for such opinion
in the circumstances, and
(B) a certificate of such accountants stating that they
have reviewed this Agreement and stating further whether, in
making their audit, they have become aware of any condition or
event that then constitutes a Default or an Event of Default,
and, if they are aware that any such condition or event then
exists, specifying the nature and period of the existence
thereof (it being understood that such accountants shall not
be liable, directly or indirectly, for any failure to obtain
knowledge of any Default or Event of Default unless such
accountants should have obtained knowledge thereof in making
an audit in accordance with generally accepted auditing
standards or did not make such an audit),
provided that the delivery within the time period specified above
of the Company's Annual Report on Form 10-K for such fiscal year
(and delivery of the Company's annual report to shareholders, if
any, prepared pursuant to Rule 14a-3 under the Exchange Act,
delivered concurrently with the delivery of such annual report to
shareholders generally whether within or after the time period
prescribed above) prepared in accordance with the requirements
therefor and filed with the Securities and Exchange Commission,
together with the accountant's certificate described in clause (B)
above, shall be deemed to satisfy the requirements of this Section
7.1(b);
(c) SEC and Other Reports - promptly upon their becoming
available, one copy of (i) each financial statement, report, notice
or proxy statement sent by the Company or any Subsidiary to public
securities holders generally, and (ii) each regular or periodic
report, each registration statement (without exhibits except as
expressly requested by such holder), other than a registration
statement on Form S-8 (or any successor form), and each prospectus
and all amendments thereto filed by the Company or any Subsidiary
with the Securities and Exchange Commission and (iii) all press
releases and other statements concerning developments that are
Material made available generally by the Company or any Subsidiary
to the public and made available by the Company or any Subsidiary
to shareholders generally or to any Institutional Investor;
(d) Notice of Default or Event of Default - promptly, and in
any event within five days after a Responsible Officer becoming
aware of the existence of any Default or Event of Default or that
any Person has given any notice or taken any action with respect to
a claimed default hereunder or that any Person has given any notice
or taken any action with respect to a claimed default of the type
referred to in Section 11(f), a written notice specifying the
nature and period of existence thereof and what action the Company
is taking or proposes to take with respect thereto;
(e) ERISA Matters - promptly, and in any event within five
days after a Responsible Officer becoming aware of any of the
following, a written notice setting forth the nature thereof and
the action, if any, that the Company or an ERISA Affiliate proposes
to take with respect thereto:
(i) with respect to any Plan, any reportable event, as
defined in section 4043(b) of ERISA and the regulations
thereunder, for which notice thereof has not been waived
pursuant to such regulations as in effect on the date hereof;
or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings
under section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could
result in the incurrence of any liability by the Company or
any ERISA Affiliate pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to
employee benefit plans, or in the imposition of any Lien on
any of the rights, properties or assets of the Company or any
ERISA Affiliate pursuant to Title I or IV of ERISA or such
penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then
existing, could reasonably be expected to have a Material
Adverse Effect;
(f) Notices from Governmental Authority - promptly, and in
any event within 30 days of receipt thereof, copies of any notice
to the Company or any Subsidiary from any Federal or state
Governmental Authority relating to any order, ruling, statute or
other law or regulation that could reasonably be expected to have
a Material Adverse Effect;
(g) Notice of Proposed Change of Control - promptly following
knowledge by any Responsible Officer of any proposed Change of
Control which such officer believes in good faith will more likely
than not occur, a written notice setting forth in reasonable detail
the facts and circumstances giving rise to such proposed Change of
Control, including an estimate of the date on which such officer
believes the Change of Control will occur; and
(h) Requested Information - with reasonable promptness, such
other data and information relating to the business, operations,
affairs, financial condition, assets or properties of the Company
or any of its Subsidiaries or relating to the ability of the
Company to perform its obligations hereunder and under the Notes as
from time to time may be reasonably requested by any such holder of
Notes.
Section 7.2. Officer's Certificate.
Each set of financial statements delivered to a holder of
Notes pursuant to Section 7.1(a) or Section 7.1(b) hereof shall be
accompanied by a certificate of a Senior Financial Officer setting
forth:
(a) Covenant Compliance - the information (including
reasonably detailed calculations of covenants and amounts
representing pertinent defined terms) required in order to
establish whether the Company was in compliance with the
requirements of Section 10.1 through Section 10.7 hereof,
inclusive, during the quarterly or annual period covered by the
statements then being furnished (including with respect to each
such Section, where applicable, the calculations of the maximum or
minimum amount, ratio or percentage, as the case may be,
permissible under the terms of such Sections, and the calculation
of the amount, ratio or percentage then in existence); and
(b) Event of Default - a statement that such officer has
reviewed the relevant terms hereof and has made, or caused to be
made, under his or her supervision, a review of the transactions
and conditions of the Company and its Subsidiaries from the
beginning of the quarterly or annual period covered by the
statements then being furnished to the date of the certificate and
that such review shall not have disclosed the existence during such
period of any condition or event that constitutes a Default or an
Event of Default or, if any such condition or event existed or
exists (including, without limitation, any such event or condition
resulting from the failure of the Company or any Subsidiary to
comply with any Environmental Law), specifying the nature and
period of existence thereof and what action the Company shall have
taken or proposes to take with respect thereto.
Section 7.3. Inspection.
The Company shall permit the representatives of each holder of
Notes that is an Institutional Investor:
(a) No Default - if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior
notice to the Company, to visit the principal executive office of
the Company, to discuss the affairs, finances and accounts of the
Company and its Subsidiaries with the Company's officers, and (with
the consent of the Company, which consent will not be unreasonably
withheld) its independent public accountants, and (with the consent
of the Company, which consent will not be unreasonably withheld) to
visit the other offices and properties of the Company and each
Subsidiary, all at such reasonable times and as often as may be
reasonably requested in writing; and
(b) Default - if a Default or Event of Default then exists,
at the expense of the Company and upon one Business Day prior
notice to the Company, to visit and inspect any of the offices or
properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to
make copies and extracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective officers and
independent public accountants (and by this provision the Company
authorizes said accountants to discuss the affairs, finances and
accounts of the Company and its Subsidiaries), all at such times
and as often as may be reasonably requested.
Section 7.4. Reporting Treatment of Certain Subsidiaries.
Notwithstanding anything to the contrary contained in this
Agreement, including without limitation the definition of
"Subsidiary" contained in Exhibit B, so long as Midsouth Partners
and Insituform Linings Plc each own less than 1.0% of Consolidated
Total Assets and contribute less than 1.0% of Consolidated Net
Earnings in any fiscal period, the Company shall be permitted to
include, for purposes of the financial reporting requirements
contained in Sections 7.1(a) and (b), and only for purposes of such
Sections, and in no event for purposes of determining compliance
with any of the covenants contained in Sections 9 or 10 hereof, the
financial information of such entities on a consolidated basis. If
at any time either Midsouth Partners or Insituform Linings Plc
shall own 1.0% or more of Consolidated Total Assets or contribute
1.0% or more of Consolidated Net Earnings in any fiscal period and
not be a Subsidiary (as defined in Schedule B), the Company shall
either: (a) provide consolidating financial statements setting
forth separately the financial information for Midsouth or
Insituform Linings Plc, as the case may be, for such period, to-
gether with the financial information of such entity on a con-
solidated basis for purposes of the financial reporting require-
ments contained in Sections 7.1(a) and (b) and only for purposes of
such Sections (and in no event for purposes of determining
compliance with any of the covenants contained in Sections 9 and 10
hereof) or (b) exclude the financial information on a consolidated
basis for Midsouth Partners or Insituform Linings Plc, as the case
may be, from the consolidated financial statements required to be
delivered by the Company for such period pursuant to Sections
7.1(a) and (b) (and shall in no event include such financial
information for purposes of any determination of compliance with
any of the covenants contained in Sections 9 or 10 hereof).
Section 8. Prepayment of the Notes.
Section 8.1. Required Prepayments.
On February 14, 2001 and on each February 14 thereafter to and
including February 14, 2006 the Company will prepay $15,715,000
principal amount (or such lesser principal amount as shall then be
outstanding) of the Notes at par and without payment of the Make-
Whole Amount or any premium; provided that upon any partial prepay-
ment of the Notes pursuant to Section 8.2 or 8.3 or purchase of the
Notes permitted by Section 8.6, the principal amount of each re-
quired prepayment of the Notes becoming due under this Section 8.1
on and after the date of such prepayment or purchase shall be
reduced in the same proportion as the aggregate unpaid principal
amount of the Notes is reduced as a result of such prepayment or
purchase.
Section 8.2. Optional Prepayments with Make-Whole Amount.
The Company may, at its option, upon notice as provided below,
prepay at any time all, or from time to time any part, of the
Notes, in a minimum aggregate amount not less than $5,000,000 in
the case of a partial prepayment, or in amounts equal to any
prepayment made pursuant to the terms of Section 10.7(b)(iii)(C),
in each case, at 100% of the principal amount so prepaid, plus the
Make-Whole Amount determined for the prepayment date with respect
to such principal amount, together with interest accrued to the
date of prepayment. The Company will give each holder of Notes
written notice of each optional prepayment under this Section 8.2
not less than 30 days and not more than 60 days prior to the date
fixed for such prepayment. Each such notice shall specify such
date, the aggregate principal amount of the Notes to be prepaid on
such date, the principal amount of each Note held by such holder to
be prepaid (determined in accordance with Section 8.4), and the
interest to be paid on the prepayment date with respect to such
principal amount being prepaid, and shall be accompanied by a
certificate of a Senior Financial Officer as to the estimated
Make-Whole Amount due in connection with such prepayment
(calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Not
later than five Business Days prior to prepayment date specified in
such notice, the Company shall provide to the holders of the Notes
written notice (the "Calculation Notice") of the Make-Whole Amount
payable in connection with such prepayment of the Notes and,
whether or not a Make Whole Amount is payable, a reasonably
detailed calculation of the Make-Whole Amount. The calculations
with respect to the Make-Whole Amount shall in any event be subject
to the review and approval of the holders of the Notes and, in the
case of any disagreement among such holders and the Company with
respect to such calculations or method of computation thereof, the
conclusion of such holders shall, in the absence of manifest error,
be deemed, binding and conclusive. It is understood and agreed that
the failure of such holders to respond to such Calculation Notice
shall be deemed to be a concurrence by such holders to such
calculation. Two Business Days prior to such prepayment, the
Company shall deliver to each holder of Notes a certificate of a
Senior Financial Officer specifying the calculation of such
Make-Whole Amount as of the specified prepayment date.
Section 8.3. Prepayment of Notes upon Change of Control.
(a) In the event that any Responsible Officer has knowledge
of the occurrence of any Change of Control, the Company will give
written notice (the "Company Notice") of such fact in the manner
provided in Section 18 to each holder of the Notes. The Company
Notice shall be delivered promptly upon receipt of such knowledge
by the Company and in any event no later than five Business Days
following knowledge by such Responsible Officer thereof. The
Company Notice shall (i) describe the facts and circumstances of
such Change of Control in reasonable detail, (ii) make reference to
this Section 8.3 and the right of each holder of the Notes to
require prepayment of all, but not less than all, of such holder's
Notes on the terms and conditions provided for in this Section 8.3,
(iii) offer in writing to prepay the outstanding Notes together
with accrued interest to the date of prepayment, but without a
premium, and (iv) specify a date for such prepayment (the "Change
of Control Prepayment Date"), which Change of Control Prepayment
Date shall be not more than 30 days nor less than 20 days following
the date of such Company Notice. Each holder of the then
outstanding Notes shall have the right to accept such offer and
require prepayment of the Notes held by such holder in full by
written notice to the Company (a "Noteholder Notice") given not
later than 10 days after receipt of the Company Notice (the
"Noteholder Notice Period"). Subject to the provisions of the
immediately succeeding sentence, the failure by a holder of Notes
to accept or reject any offer to prepay made by the Company
pursuant to this Section 8.3 shall be deemed to constitute an
acceptance of such offer to prepay. Within 3 days following the
expiration of the Noteholder Notice Period, the Company shall
deliver by telecopy in the manner provided in Section 18 to each
holder of the Notes a second written notice (the "Secondary Company
Notice") specifying the decision of each other holder of the Notes
to accept or reject the original offer of prepayment and offering
to prepay on the Change of Control Payment Date all, but not less
than all, of the Notes held by each holder which has rejected or
otherwise failed to respond to the offer contained in the initial
Company Notice, on the same terms as provided in the initial
Company Notice. Each holder of the then outstanding Notes which
rejected or otherwise failed to respond to (and is deemed to have
accepted) the Company's initial offer to prepay its Notes shall
have the right to accept or reject such secondary offer and, if
accepted, require prepayment of the Notes held by such holder in
full by written notice to the Company given not later than 3 days
after receipt of the Secondary Company Notice. The Company shall on
the Change of Control Prepayment Date prepay in full all of the
Notes held by holders which have so accepted such offer of
prepayment. The prepayment price of the Notes payable upon the
occurrence of any Change of Control shall be an amount equal to
100% of the outstanding principal amount of the Notes so to be
prepaid and accrued interest thereon to the date of such
prepayment, but without a premium.
(b)(i) Without limiting the foregoing, notwithstanding any
failure on the part of the Company to give the Company Notice
herein required as a result of the occurrence of a Change of
Control, each holder of the Notes shall have the right by delivery
of written notice to the Company to require the Company to prepay,
and the Company will prepay, such holder's Notes in full, together
with accrued interest thereon to the date of prepayment, but
without a premium. Notice of any required prepayment pursuant to
this Section 8.3(b)(i) shall be delivered by any holder of the
Notes which was entitled to, but did not receive, such Company
Notice to the Company after such holder has actual knowledge of
such Change of Control. On the date (the "Change of Control Delayed
Prepayment Date") designated in such holder's notice (which shall
be not more than 90 days nor less than 30 days following the date
of such holder's notice), the Company shall prepay in full all of
the Notes held by such holder, together with accrued interest
thereon to the date of prepayment, but without a premium. If the
holder of any Note gives any notice pursuant to this Section
8.3(b)(i), the Company shall give a Company Notice within three
Business Days of receipt of such notice and identify the Change of
Control Delayed Prepayment Date to all other holders of the Notes
and each of such other holders shall then and thereupon have the
right to accept the Company's offer to prepay the Notes held by
such holder in full and require prepayment of such Notes by
delivery of a Noteholder Notice within 20 days following receipt of
such Company Notice; provided only that any date for prepayment of
such holder's Notes shall be the Change of Control Delayed
Prepayment Date. On the Change of Control Delayed Prepayment Date,
the Company shall prepay in full the Notes of each holder thereof
which has accepted such offer of prepayment at a prepayment price
equal to 100% of the outstanding principal amount of the Notes so
to be prepaid and accrued interest thereon to the date of such
prepayment, but without a premium.
(ii) Compliance with the provisions of this Section 8.3(b)
shall not be deemed to constitute a waiver of, or consent to, any
Default or Event of Default caused by any violation of the
provisions of Section 8.3(a).
Section 8.4. Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes pursuant
to Section 8.1 or Section 8.2, the principal amount of the Notes to
be prepaid shall be allocated among all of the Notes at the time
outstanding in proportion, as nearly as practicable, to the
respective unpaid principal amounts thereof not theretofore called
for prepayment. All partial prepayments made pursuant to Section
8.3 shall be applied only to the Notes of the holders who have
elected to participate in such prepayment.
Section 8.5. Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this
Section 8, the principal amount of each Note to be prepaid shall
mature and become due and payable on the date fixed for such
prepayment, together with interest on such principal amount accrued
to such date and the applicable Make-Whole Amount, if any. From and
after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the
interest and Make-Whole Amount, if any, as aforesaid, interest on
such principal amount shall cease to accrue. Any Note paid or
prepaid in full shall be surrendered to the Company and cancelled
and shall not be reissued, and no Note shall be issued in lieu of
any prepaid principal amount of any Note.
Section 8.6. Purchase of Notes.
The Company will not and will not permit any Affiliate
(excluding any Affiliate which is not controlled by the Company,
but including any Affiliate which is a member of the Senior
Management Group) to purchase, redeem, prepay or otherwise acquire,
directly or indirectly, any of the outstanding Notes except upon
the payment or prepayment of the Notes in accordance with the terms
of this Agreement and the Notes. The Company will promptly cancel
all Notes acquired by it or any Affiliate (excluding any Affiliate
which is not controlled by the Company, but including any Affiliate
which is a member of the Senior Management Group) pursuant to any
payment, prepayment or purchase of Notes pursuant to any provision
of this Agreement and no Notes may be issued in substitution or
exchange for any such Notes.
Section 8.7. Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to any Note,
an amount equal to the excess, if any, of the Discounted Value of
the Remaining Scheduled Payments with respect to the Called
Principal of such Note over the amount of such Called Principal;
provided that the Make-Whole Amount may in no event be less than
zero. For the purposes of determining the Make-Whole Amount, the
following terms have the following meanings:
"Called Principal" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section
8.2 or Section 10.7 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
"Discounted Value" means, with respect to the Called Principal
of any Note, the amount obtained by discounting all Remaining
Scheduled Payments with respect to such Called Principal from their
respective scheduled due dates to the Settlement Date with respect
to such Called Principal, in accordance with accepted financial
practice and at a discount factor (applied on the same periodic
basis as that on which interest on the Notes is payable) equal to
the Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of any Note, .50% over the yield to maturity implied by
(a) the yields reported, as of 10:00 A.M. (New York City time) on
the second Business Day preceding the Settlement Date with respect
to such Called Principal, on the display designated as "Page USD"
on the Bloomberg Financial Markets Services Screen (or such other
display as may replace Page USD on Bloomberg Financial Markets
Services Screen) for actively traded U.S. Treasury securities
having a maturity equal to the Remaining Average Life of such
Called Principal as of such Settlement Date, or (b) if such yields
are not reported as of such time or the yields reported as of such
time are not ascertainable, the Treasury Constant Maturity Series
Yields reported, for the latest day for which such yields have been
so reported as of the second Business Day preceding the Settlement
Date with respect to such Called Principal, in Federal Reserve
Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a
constant maturity equal to the Remaining Average Life of such
Called Principal as of such Settlement Date. Such implied yield
will be determined, if necessary, by (i) converting U.S. Treasury
bill quotations to bond-equivalent yields in accordance with
accepted financial practice and (ii) interpolating linearly between
(1) the actively traded U.S. Treasury security with the average
life closest to and greater than the Remaining Average Life and (2)
the actively traded U.S. Treasury security with the average life
closest to and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest
one-twelfth year) obtained by dividing (i) such Called Principal
into (ii) the sum of the products obtained by multiplying (a) the
principal component of each Remaining Scheduled Payment with
respect to such Called Principal by (b) the number of years
(calculated to the nearest one-twelfth year) that will elapse
between the Settlement Date with respect to such Called Principal
and the scheduled due date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the
Called Principal of any Note, all payments of such Called Principal
and interest thereon that would be due after the Settlement Date
with respect to such Called Principal if no payment of such Called
Principal were made prior to its scheduled due date; provided that
if such Settlement Date is not a date on which interest payments
are due to be made under the terms of the Notes, then the amount of
the next succeeding scheduled interest payment will be reduced by
the amount of interest accrued to such Settlement Date and required
to be paid on such Settlement Date pursuant to Section 8.2 or
Section 10.7 or Section 12.1.
"Settlement Date" means, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be
prepaid pursuant to Section 8.2 or Section 10.7 or has become or is
declared to be immediately due and payable pursuant to Section
12.1, as the context requires.
Section 9. Affirmative Covenants;.
The Company covenants that so long as any of the Notes are
outstanding:
Section 9.1. Compliance with Law.
The Company will and will cause each of its Subsidiaries to
comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without
limitation, Environmental Laws and ERISA, and will obtain and
maintain in effect all licenses, certificates, permits, franchises
and other governmental authorizations necessary to the ownership of
their respective properties or to the conduct of their respective
businesses, in each case to the extent necessary to ensure that
non-compliance with such laws, ordinances or governmental rules or
regulations or failures to obtain or maintain in effect such
licenses, certificates, permits, franchises and other governmental
authorizations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect or, in
connection with any non-compliance with ERISA, could reasonably be
expected to result in any liability to a holder of any Note.
Section 9.2. Insurance.
The Company will and will cause each of its Subsidiaries to
maintain, with financially sound and reputable insurers, insurance
with respect to their respective properties and businesses against
such casualties and contingencies, of such types, on such terms and
in such amounts (including deductibles, co-insurance and
self-insurance, if adequate reserves are maintained with respect
thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly
situated.
Section 9.3. Maintenance of Properties.
The Company will and will cause each of its Subsidiaries to
maintain and keep, or cause to be maintained and kept, their
respective properties in good repair, working order and condition
(other than ordinary wear and tear), so that the business carried
on in connection therewith may be properly conducted at all times;
provided that this Section shall not prevent the Company or any
Subsidiary from discontinuing the operation and the maintenance of
any of its properties if such discontinuance is desirable in the
conduct of its business and the Company has concluded that such
discontinuance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 9.4. Payment of Taxes and Claims.
The Company will and will cause each of its Subsidiaries to
file all tax returns required to be filed in any jurisdiction and
to pay and discharge all taxes shown to be due and payable on such
returns and all other taxes, assessments, governmental charges, or
levies imposed on them or any of their properties, assets, income
or franchises, to the extent such taxes and assessments have become
due and payable and before they have become delinquent and all
claims for which sums have become due and payable that have or
might become a Lien on properties or assets of the Company or any
Subsidiary; provided that neither the Company nor any Subsidiary
need pay any such tax or assessment or claims if (a) the amount,
applicability or validity thereof is contested by the Company or
such Subsidiary on a timely basis in good faith and in appropriate
proceedings, and the Company or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of
the Company or such Subsidiary or (b) the nonpayment of all such
taxes and assessments in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
Section 9.5. Corporate Existence, etc.
The Company will at all times preserve and keep in full force
and effect its corporate existence. Subject to Section 10.7(a)(i),
the Company will at all times preserve and keep in full force and
effect the corporate or other existence of each of its Subsidiaries
and all rights and franchises of the Company and its Subsidiaries
unless, in the good faith judgment of the Company, the termination
of or failure to preserve and keep in full force and effect such
right or franchise could not, individually or in the aggregate,
have a Material Adverse Effect.
Section 9.6. Maintenance of Business.
Neither the Company nor any Subsidiary will engage to any
substantial extent in any business other than the businesses in
which the Company and its Subsidiaries are engaged on the date of
this Agreement and as described in the Memorandum and businesses
reasonably related thereto or in furtherance thereof.
Section 9.7. Notes to Rank Pari Passu.
The Notes and all other obligations under this Agreement of
the Company are and at all times shall remain direct and unsecured
obligations of the Company ranking pari passu as against the assets
of the Company with all other Notes from time to time issued and
outstanding hereunder without any preference among themselves and
pari passu with all other present and future unsecured Indebtedness
(actual or contingent) of the Company which is not expressed to be
subordinate or junior in rank to any other unsecured Indebtedness
of the Company.
Section 9.8. Guaranty by Subsidiaries.
The Company will cause each Subsidiary which delivers a
Guaranty to any Person with respect to Indebtedness of the Company
of the types described in clauses (a) through (e) of the definition
thereof to concurrently enter into a Subsidiary Guaranty, and
within three Business Days thereafter shall deliver to each of the
holders of the Notes the following items:
(a) an executed counterpart of such Subsidiary Guaranty
substantially in the form of Exhibit 9.8(a);
(b) a certificate signed by the President, a Vice President
or another authorized Responsible Officer of such Subsidiary making
representations and warranties to the effect of those contained in
Sections 5.1, 5.2, 5.6 and 5.7, but with respect to such Subsidiary
and such Subsidiary Guaranty, as applicable;
(c) such documents and evidence with respect to such
Subsidiary as any holder of the Notes may reasonably request in
order to establish the existence and good standing of such
Subsidiary and the authorization of the transactions contemplated
by such Subsidiary Guaranty;
(d) an opinion of counsel reasonably satisfactory to the
Required Holders to the effect that such Subsidiary Guaranty has
been duly authorized, executed and delivered and constitutes the
legal, valid and binding contract and agreement of such Subsidiary
enforceable in accordance with its terms, except as an enforcement
of such terms may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles; and
(e) an executed counterpart of an intercreditor agreement
substantially in the form of Exhibit 9.8(e) among the holders of
the Notes and each such Person to which a Subsidiary is then
delivering a Guaranty giving rise to the requirements of this
Section 9.8, which agreement shall provide that the proceeds from
the enforcement of any such Guaranty shall be shared on an equal
and ratable basis with the holders of the Notes.
Notwithstanding the foregoing, it is understood and agreed that the
delivery of a Subsidiary Guaranty shall not be required under this
Section 9.8 as a result of
(w) the delivery by a Subsidiary of a Guaranty to any Person
in the ordinary course of business securing bids to obtain
construction contracts, or securing construction contracts or bonds
relating to work to be performed by the Company or any Subsidiary
or Joint Venture and not incurred or made in connection with the
incurrence of Indebtedness, the obtaining of advances or credit or
the payment of the deferred purchase of property, or
(x) any liability (other than for borrowed money) in respect
of the obligations of a Joint Venture, or
(y) the Guaranties outstanding on the date of Closing, or
renewals or replacements thereof without increase in the maximum
principal amount as of the date of such renewal or replacement,
given by Insituform Holdings (UK) Limited of Indebtedness of
Rohrsanierungstechnik GmbH and its Subsidiaries to (1) Deutsche
Bank AG in an aggregate principal amount not exceeding DM6,000,000
and (2) the State of Thuringen in an aggregate principal amount not
exceeding DM600,000, or
(z) the delivery by a Wholly-owned Subsidiary of a Guaranty
to another Wholly-owned Subsidiary with respect to a third
Wholly-owned Subsidiary.
Section 10. Negative Covenants.
The Company covenants that so long as any of the Notes are
outstanding:
Section 10.1. Consolidated Adjusted Net Worth.
The Company will at all times keep and maintain Consolidated
Adjusted Net Worth at an amount not less than the sum of (a)
$100,000,000 plus (b) 50% of Consolidated Net Earnings computed on
a cumulative basis for each of the elapsed fiscal years ending
after December 31, 1996; provided that notwithstanding that
Consolidated Net Earnings for any such elapsed fiscal year may be
a deficit figure, no reduction as a result thereof shall be made on
the sum to be maintained pursuant hereto.
Section 10.2. Fixed Charges Coverage Ratio.
The Company will as at the end of each fiscal quarter keep and
maintain the ratio of Consolidated Cash Flow Available for Fixed
Charges for the four consecutive fiscal quarter period ending at
such date to Consolidated Fixed Charges for such four consecutive
fiscal quarter period at not less than 2.5 to 1.0.
Section 10.3. Consolidated Indebtedness Ratio.
The Company will not at any time permit the ratio of
Consolidated Total Indebtedness to Consolidated Total
Capitalization to exceed .55 to 1.00; provided that in connection
with any calculation of Indebtedness for purposes of determining
compliance with this Section 10.3, there shall be excluded all
Indebtedness of the Company and its Subsidiaries outstanding under
any revolving credit agreement between the Company and a committed
bank or banks if, during the 365-day period immediately preceding
the date of any such calculation of Indebtedness, there shall have
been a period of at least 60 consecutive days on each day of which
Indebtedness of the Company and its Subsidiaries outstanding under
such revolving credit agreement is equal to zero by virtue, and
solely by virtue, of such Indebtedness having been paid from
general corporate funds of the Company and not from funds borrowed
by the Company or any Subsidiary pursuant to any other revolving
credit agreement for the purpose of paying such Indebtedness. If
there shall not have been such 60 consecutive day period on each
day of which such Indebtedness was equal to zero, then and in such
event there shall be included in such calculation of Indebtedness
for purposes of this Section 10.3 an amount equal to the average
aggregate amount of all Indebtedness outstanding under such
revolving credit agreement during such preceding 365-day period.
Section 10.4. Priority Debt.
The Company will not, and will not permit any Subsidiary to
create, issue, assume, guarantee or otherwise incur or in any
manner become liable in respect of any Priority Debt unless at the
time of creation, issuance, assumption, guarantee or incurrence
thereof and after giving effect thereto and to the application of
the proceeds thereof: (a) no Specified Default or Event of Default
would exist and (b) the aggregate amount of all Priority Debt would
not exceed 10% of Consolidated Adjusted Net Worth determined as of
the end of the immediately preceding fiscal quarter.
Any Person which becomes a Subsidiary after the date of this
Agreement, shall, for all purposes of this Section 10.4, be deemed
to have created, issued, assumed, guaranteed or incurred, at the
time it becomes a Subsidiary, all Priority Debt of such Person
existing immediately after it becomes a Subsidiary.
Section 10.5. Limitation on Liens.
The Company will not, and will not permit any Subsidiary to,
create or incur, or suffer to be incurred or to exist, any Lien on
its or their property or assets, whether now owned or hereafter
acquired, or upon any income or profits therefrom, or transfer any
property for the purpose of subjecting the same to the payment of
obligations in priority to the payment of its or their general
creditors, or acquire or agree to acquire, or permit any Subsidiary
to acquire, any property or assets upon conditional sales
agreements or other title retention devices (unless it concurrently
makes, or causes to be made, effective provision whereby the Notes
will be equally and ratably secured with any and all other
obligations thereby secured, such security to be pursuant to such
agreements reasonably satisfactory to the Required Holders
providing for such security (including an opinion of counsel to the
Company to the effect that the holders of the Notes are so equally
and ratably secured) and, in any such case, the Notes shall have
the benefit, to the fullest extent that, and with such priority as,
the holders of the Notes may be entitled under applicable law, of
an equitable Lien on such property), except:
(a) Liens for taxes and assessments or governmental charges
or levies; provided that payment thereof is not at the time
required by Section 9.4;
(b) Liens of or resulting from any attachment, judgment or
award, the time for the appeal or petition for rehearing of which
shall not have expired, or in respect of which the Company or a
Subsidiary shall at any time in good faith and by appropriate
proceedings be prosecuting an appeal or proceeding for a review and
in respect of which a stay of execution pending such appeal or
proceeding for review shall have been secured;
(c) Liens incidental to the conduct of business or the
ownership of properties and assets (including Liens in connection
with worker's compensation, unemployment insurance and other like
laws, warehousemen's and attorneys' and like liens and statutory
landlords' liens) and Liens to secure (or to obtain letters of
credit to secure) the performance of bids, tenders or purchase,
construction or trade contracts, or to secure statutory
obligations, surety, performance or appeal bonds or other Liens of
like general nature, in any such case incurred in the ordinary
course of business and not in connection with the borrowing of
money; provided that in each case: (i) the obligation secured is
not overdue or, if overdue, is being contested in good faith by
appropriate actions or proceedings, and (ii) such Lien would not
materially impair the use of such property in the operation of the
business of the Company and its Subsidiaries or the value of such
property for the purposes of such business;
(d) survey exceptions or encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and
other similar purposes, or zoning or other restrictions as to the
use of real properties, which are incidental to the conduct of the
activities of the Company and its Subsidiaries or which customarily
exist on properties of corporations engaged in similar activities
and similarly situated and which do not in any event materially
impair their use in the operation of the business of the Company
and its Subsidiaries or their value for the purposes of such
business;
(e) Liens securing Indebtedness of a Subsidiary to the
Company or to another Wholly-owned Subsidiary;
(f) Liens securing Indebtedness existing as of the date of
Closing and described on Schedule 10.5 hereto;
(g) Liens created or incurred after the date of Closing given
to secure the payment of, or to secure Indebtedness incurred or
assumed to pay all or any part of, the purchase price incurred in
connection with the acquisition or purchase of tangible property
(or any improvement thereon) or the cost of construction of
improvements to tangible property, in any such case, useful and
intended to be used in carrying on the business of the Company or
a Subsidiary; provided that in each such case: (i) the Lien shall
attach solely to the tangible property (or any improvement thereon)
acquired, purchased or constructed and, if required by the terms of
the instrument originally creating such Lien, other property which
is an improvement to or is acquired for specific use in connection
with such acquired or constructed property (or improvement thereon)
or which is real property being improved by such acquired or
constructed property (or improvement thereon), (ii) such Lien shall
have been created or incurred within 180 days of the date of
acquisition or purchase of, or the date of completion of
construction of improvements to, such tangible property, as the
case may be, (iii) at the time of the imposition of such Lien, the
aggregate amount remaining unpaid on all Indebtedness secured by
such Lien (whether or not assumed by the Company or a Subsidiary)
shall not exceed an amount equal to the lesser of the total
acquisition or purchase price or cost of construction, as the case
may be, or the fair market value at the time of acquisition,
purchase or completion of construction, as the case may be (as
determined in good faith by the Board of Directors of the Company),
and (iv) at the time of creation, issuance, assumption, guarantee
or incurrence of the Indebtedness secured by such Lien and after
giving effect thereto and to the application of the proceeds
thereof, no Specified Default or Event of Default would exist;
(h) Liens created or incurred after the date of Closing given
to secure the payment of the purchase price incurred in connection
with the acquisition or purchase of intangible property, in any
such case, useful and intended to be used in carrying on the
business of the Company or a Subsidiary; provided that in each such
case: (i) the Lien shall attach solely to the intangible property
acquired or purchased, (ii) such Lien shall have been created or
incurred within 180 days of the date of acquisition or purchase of
such property, as the case may be, (iii) at the time of the
imposition of such Lien, the aggregate amount remaining unpaid on
all Indebtedness secured by such Lien (whether or not assumed by
the Company or a Subsidiary) shall not exceed an amount equal to
the lesser of the total acquisition or purchase price, as the case
may be, or the fair market value at the time of acquisition or
purchase, as the case may be (as determined in good faith by the
Board of Directors of the Company), and (iv) at the time of
creation, issuance, assumption, guarantee or incurrence of the
Indebtedness secured by such Lien and after giving effect thereto
and to the application of the proceeds thereof, no Specified
Default or Event of Default would exist;
(i) Liens on tangible property existing: (i) at the time of
acquisition thereof, whether or not the Indebtedness secured
thereby is assumed by the Company or any Subsidiary or (ii) on the
property of a Person at the time such Person is acquired or merged
into or consolidated with the Company or any Subsidiary or at the
time of a sale, lease or other disposition of the property or
outstanding shares or Indebtedness of the Person in its entirety to
the Company or any Subsidiary; provided that in each such case:
(i) the Lien shall attach solely to such tangible property and, if
required by the terms of the instrument originally creating such
Lien, other property which is an improvement to or is acquired for
specific use in connection with such acquired property, (ii) the
amount of Indebtedness secured by such Lien shall not exceed an
amount equal to the lesser of the acquisition or purchase price or
fair market value of such tangible property (as determined by good
faith by the Board of Directors of the Company), (iii) such Lien
shall not have been incurred in contemplation of the acquisition of
such property, and (iv) at the time of creation, issuance,
assumption, guarantee or incurrence of the Indebtedness secured by
such Lien and after giving effect thereto and to the application of
the proceeds thereof, no Specified Default or Event of Default
would exist;
(j) Liens constituting limitations on the disposition or
transfer of the Company's or any Subsidiary's equity investment in
a Joint Venture (if such limitations are reciprocal) or a
Subsidiary inuring to the benefit of Persons owning equity in the
same Joint Venture or Subsidiary;
(k) any extension, renewal or refunding of any Lien permitted
by the preceding clause (f) of this Section 10.5 in respect of the
same property theretofore subject to such Lien in connection with
the extension, renewal or refunding of the Indebtedness secured
thereby; provided that: (i) such extension, renewal or refunding
of Indebtedness shall be without increase in the principal amount
remaining unpaid as of the date of such extension, renewal or
refunding, (ii) such Lien shall attach solely to the same such
property, and (iii) as of the date of such extension, renewal or
refunding and after giving effect thereto, no Specified Default or
Event of Default would exist; and
(l) Liens created or incurred after the date of Closing given
to secure Indebtedness of the Company or any Subsidiary in addition
to the Liens permitted by the preceding clauses (a) through (k)
hereof; provided that: (i) at the time of creation, issuance,
assumption, guarantee or incurrence of the Indebtedness secured by
any such Lien and after giving effect thereto and to the
application of the proceeds thereof, no Specified Default or Event
of Default would exist and (ii) all Indebtedness secured by such
Lien shall have been incurred within the limitations provided in
Section 10.4.
Section 10.6. Restricted Payments.
(a) The Company will not:
(1) declare or pay any dividends, either in cash or property,
on any shares of its capital stock of any class (except dividends
or other distributions payable solely in shares of common stock of
the Company),
(2) directly or indirectly, or through any Subsidiary or
through any Affiliate of the Company, purchase, redeem or retire
any shares of its capital stock of any class or any warrants,
rights or options to purchase or acquire any shares of its capital
stock (other than in exchange for or out of the net cash proceeds
to the Company from the substantially concurrent issue or sale of
shares of common stock of the Company or warrants, rights or
options to purchase or acquire any shares of its common stock), or
(3) make any other payment or distribution, either directly
or indirectly or through any Subsidiary, in respect of its capital
stock, (such declarations or payments of dividends, purchases,
redemptions or retirements of capital stock and warrants, rights or
options and all such other payments or distributions being herein
collectively called "Restricted Payments"), if: (i) immediately
prior to the making of any Restricted Payment, a Specified Default
or Event of Default exists, (ii) immediately after giving effect to
the making of any Restricted Payment, a Specified Default or Event
of Default would exist, and (iii) immediately after giving effect
to the making of any Restricted Payment, the Company could not
incur at least $1.00 of additional Indebtedness pursuant to Section
10.3.
(b) The Company will not declare any dividend which
constitutes a Restricted Payment payable more than 60 days after
the date of declaration thereof.
Section 10.7. Mergers, Consolidations and Sales of Assets.
(a) The Company will not, and will not permit any Subsidiary
to, consolidate with or be a party to a merger with any other
Person, or sell, lease or otherwise dispose of all or substantially
all of its assets; provided that:
(i) any Subsidiary may merge or consolidate with or into
the Company or any Wholly-owned Subsidiary so long as in (1)
any merger or consolidation involving the Company, the Company
shall be the surviving or continuing corporation and (2) in
any merger or consolidation involving a Wholly-owned
Subsidiary (and not the Company), a Wholly-owned Subsidiary
shall be the surviving or continuing corporation; and
(ii) the Company may consolidate or merge with or into
any other corporation if (1) the corporation which results
from such consolidation or merger (the "surviving
corporation") is organized under the laws of any state of the
United States or the District of Columbia, (2) if the Company
is not the surviving corporation, the due and punctual payment
of the principal of and premium, if any, and interest on all
of the Notes, according to their tenor, and the due and
punctual performance and observation of all of the covenants
in the Notes and this Agreement to be performed or observed by
the Company are expressly assumed in writing by the surviving
corporation and the surviving corporation shall furnish to the
holders of the Notes an opinion of counsel reasonably
satisfactory to such holders to the effect that the instrument
of assumption has been duly authorized, executed and delivered
and constitutes the legal, valid and binding contract and
agreement of the surviving corporation enforceable in
accordance with its terms, except as enforcement of such terms
may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting the enforcement of
creditors' rights generally and by general equitable
principles, and (3) at the time of such consolidation or
merger and immediately after giving effect thereto: (A) no
Default or Event of Default would exist and (B) the surviving
corporation would be permitted by the provisions of Section
10.3 to incur at least $1.00 of additional Indebtedness.
(b) The Company will not, and will not permit any Subsidiary
to, sell, lease, transfer, abandon as obsolete or otherwise dispose
of assets (except assets sold, leased or otherwise disposed of in
the ordinary course of business for fair market value); provided
that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of
assets of a Subsidiary to the Company or a Wholly-owned
Subsidiary or from the Company to a Wholly-owned Subsidiary;
or
(ii) the sale, transfer, abandonment or other disposition
of assets of the Company or a Subsidiary if in the opinion of
a Responsible Officer of the Company or such Subsidiary such
assets are obsolete, worn-out or without material economic
value to the business or operations of the Company or such
Subsidiary; or
(iii) the sale, lease, transfer or other disposition of
assets for cash or other property to a Person or Persons if
all of the following conditions are met:
(1) such assets (valued at net book value) do not,
together with all other assets of the Company and its
Subsidiaries previously disposed of during the period from the
date of this Agreement to and including the date of the sale
of such assets (other than in the ordinary course of business
or pursuant to clauses (i) or (ii) above), exceed 25% of
Consolidated Total Assets, determined as set forth in the
Company's most recently filed Form 10-K;
(2) in the opinion of a Responsible Officer of the
Company or such Subsidiary if the aggregate sale price of such
assets is $5,000,000 or less and the opinion of the Company's
Board of Directors if the aggregate sale price of such assets
is more than $5,000,000, the sale is for fair value and is in
the best interests of the Company or such Subsidiary; and
(3) immediately after the consummation of the
transaction and after giving effect thereto, no Specified
Default or Event of Default would exist;
(y) provided, however, that for purposes of the foregoing
calculation, there shall not be included any assets the net
proceeds of which were or are within twelve months of the date
of sale, lease, transfer or other disposition of such assets
either: (A) applied to the acquisition of property useful and
intended to be used in the operation of the business of the
Company and its Subsidiaries as described in Section 9.6
(provided that proceeds from the disposition of tangible
property shall be applied to the acquisition of tangible
property) and having a fair market value (as determined in
good faith by a Responsible Officer of the Company if the
aggregate purchase price of such assets is $5,000,000 or less
and in the opinion of the Company's Board of Directors if the
aggregate purchase price of such assets is more than
$5,000,000) at least equal to that of the assets so disposed
of, or (B) committed to the acquisition of property useful and
intended to be used in the operation of the business of the
Company and its Subsidiaries as described in Section 9.6
(provided that proceeds from the disposition of tangible
property shall be committed to the acquisition of tangible
property) and having a fair market value (as determined in
good faith by a Responsible Officer of the Company if the
aggregate purchase price of such assets is $5,000,000 or less
and in the opinion of the Company's Board of Directors if the
aggregate purchase price of such assets is more than
$5,000,000) at least equal to the assets so disposed of
pursuant to a written agreement binding on the Company or the
relevant Subsidiary which provides for the consummation of the
acquisition of such property to be completed within 60 days
from the date of such agreement or (C) offered on a pro rata
basis towards the prepayment at any applicable prepayment
premium, of Senior Indebtedness of the Company and (z)
provided further that in no event will the Company or any of
its Subsidiaries transfer title to any patent to Insituform
Linings Plc or to Midsouth Partners.
In the event the Company shall offer to prepay Senior
Indebtedness pursuant to clause (C) above, the Company shall offer
pursuant to a written notice (the "Asset Disposition Prepayment
Notice") to apply on a pro rata basis the proceeds to which such
assets relate towards the prepayment of all outstanding Senior
Indebtedness of the Company (including, without limitation, the
Notes). Such Asset Disposition Prepayment Notice shall specify (A)
a date (the "Asset Disposition Prepayment Date"), which shall be
not less than 120 days nor more than 180 days following the date of
such Asset Disposition Prepayment Notice, on which the Company will
apply such proceeds to the prepayment on a pro rata basis of all of
the outstanding Senior Indebtedness of the Company held by any
Person which accepts such offer of prepayment and (B) a date, which
shall be not more than 60 days nor less than 30 days prior to such
Asset Disposition Prepayment Date, on which each holder of Senior
Indebtedness of the Company must accept or decline such offer of
prepayment. On such Asset Disposition Prepayment Date, the Company
shall apply the amount of such proceeds which has been agreed or
deemed to be agreed by holders of Senior Indebtedness of the
Company pursuant to any agreement pursuant to which any such Senior
Indebtedness is outstanding shall be applied to the prepayment of
Senior Indebtedness held by each holder thereof which has accepted
such initial offer of prepayment to the prepayment of Senior
Indebtedness as and to the extent herein contemplated. It is
understood and agreed by the Company and each holder of the Notes
by its acceptance thereof that any such holder may decline any such
offer of prepayment, that the failure of any such holder to accept
or decline any such offer of prepayment shall be deemed to be an
election by such holder to accept such prepayment and that if any
such offer is accepted, the proceeds so offered towards the
prepayment of the Notes and accepted shall be prepaid as and to the
extent provided in Section 8.2.
Section 10.8. Transactions with Affiliates.
The Company will not and will not permit any Subsidiary to
enter into directly or indirectly any Material transaction or
Material group of related transactions (including without
limitation the purchase, lease, sale or exchange of properties of
any kind or the rendering of any service) with any Affiliate (other
than the Company or another Wholly-owned Subsidiary), except in the
ordinary course and pursuant to the reasonable requirements of the
Company's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Company or such
Subsidiary than would be obtainable in a comparable arm's-length
transaction with a Person not an Affiliate.
Section 11. Events of Default.
An "Event of Default" shall exist if any of the following
conditions or events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or
Make-Whole Amount, if any, on any Note when the same becomes due
and payable, whether at maturity or at a date fixed for prepayment
or by declaration or otherwise; or
(b) the Company defaults in the payment of any interest on
any Note for more than five Business Days after the same becomes
due and payable; or
(c) the Company defaults in the performance of or compliance
with any term contained in Sections 7.1(d), 9.8 or 10.1 through
10.8; or
(d) the Company defaults in the performance of or compliance
with any term contained herein (other than those referred to in
paragraphs (a), (b) and (c) of this Section 11) 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 any holder of
a Note; or
(e) any representation or warranty made in writing by or on
behalf of the Company or by any officer of the Company in this
Agreement or in any writing furnished in connection with the
transactions contemplated hereby proves to have been false or
incorrect in any material respect on the date as of which made; or
(f) (i) the Company or any Subsidiary is in default (as
principal or as guarantor or other surety) in the payment of any
principal of or premium or make-whole amount or interest on any
Indebtedness that is outstanding in an aggregate principal amount
of at least $5,000,000 beyond any period of grace provided with
respect thereto, or (ii) the Company or any Subsidiary is in
default in the performance of or compliance with any term of any
evidence of any Indebtedness in an aggregate outstanding principal
amount of at least $5,000,000 or of any mortgage, indenture or
other agreement relating thereto or any other condition exists, and
as a consequence of such default or condition such Indebtedness has
become, or has been declared, due and payable before its stated
maturity or before its regularly scheduled dates of payment, or
(iii) as a consequence of the occurrence or continuation of any
event or condition (other than the passage of time or the right of
the holder of Indebtedness to convert such Indebtedness into equity
interests), (x) the Company or any Subsidiary has become obligated
to purchase or repay Indebtedness before its regular maturity or
before its regularly scheduled dates of payment in an aggregate
outstanding principal amount of at least $5,000,000, or (y) in the
case of an event or condition described in clause (i) above, one or
more Persons have the right to require the Company or any
Subsidiary so to purchase or repay such Indebtedness; or
(g) Any Subsidiary Guaranty delivered pursuant to Section 9.8
hereof shall cease to be in full force and effect for any reason
whatsoever, including, without limitation, a determination by any
governmental body or court that such Subsidiary Guaranty is
invalid, void or unenforceable or such Subsidiary shall contest or
deny in writing the validity or enforceability of any of its
obligations under the Subsidiary Guaranty; or
(h) the Company or any Subsidiary (i) is generally not
paying, or admits in writing its inability to pay, its debts as
they become due, (ii) files, or consents by answer or otherwise to
the filing against it of, a petition for relief or reorganization
or arrangement or any other petition in bankruptcy, for liquidation
or to take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an
assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any
substantial part of its property, (v) is adjudicated as insolvent
or to be liquidated, or (vi) takes corporate action for the purpose
of any of the foregoing; or
(i) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the
Company or any of its Subsidiaries, a custodian, receiver, trustee
or other officer with similar powers with respect to it or with
respect to any substantial part of its property, or constituting an
order for relief or approving a petition for relief or
reorganization or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy or insolvency
law of any jurisdiction, or ordering the dissolution, winding-up or
liquidation of the Company or any of its Subsidiaries, or any such
petition shall be filed against the Company or any of its
Subsidiaries and such petition shall not be dismissed within 60
days; or
(j) a final judgment or judgments for the payment of money
aggregating in excess of $3,000,000 are rendered against one or
more of the Company and its Subsidiaries and which judgments are
not, within 45 days after entry thereof, bonded, discharged or
stayed pending appeal, or are not discharged within 45 days after
the expiration of such stay; or
(k) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or
a waiver of such standards or extension of any amortization period
is sought or granted under section 412 of the Code, (ii) a notice
of intent to terminate any Plan shall have been or is reasonably
expected to be filed with the PBGC or the PBGC shall have
instituted proceedings under ERISA section 4042 to terminate or
appoint a trustee to administer any Plan or the PBGC shall have
notified the Company or any ERISA Affiliate that a Plan may become
a subject of any such proceedings, (iii) the aggregate "amount of
unfunded benefit liabilities" (within the meaning of section
4001(a)(18) of ERISA) under all Plans, determined in accordance
with Title IV of ERISA, shall exceed $1,000,000, (iv) the Company
or any ERISA Affiliate shall have incurred or is reasonably
expected to incur any liability pursuant to Title I or IV of ERISA
or the penalty or excise tax provisions of the Code relating to
employee benefit plans, (v) the Company or any ERISA Affiliate
withdraws from any Multiemployer Plan, or (vi) the Company or any
Subsidiary establishes or amends any employee welfare benefit plan
that provides post-employment welfare benefits in a manner that
would increase the liability of the Company or any Subsidiary
thereunder; and any such event or events described in clauses (i)
through (vi) above, either individually or together with any other
such event or events, could reasonably be expected to have a
Material Adverse Effect.
As used in Section 11(k), the terms "employee benefit plan"
and "employee welfare benefit plan" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
Section 12. Remedies on Default, etc.
Section 12.1. Acceleration.
(a) If an Event of Default with respect to the Company
described in paragraph (h) or (i) of Section 11 (other than an
Event of Default described in clause (i) of paragraph (h) or
described in clause (vi) of paragraph (h) by virtue of the fact
that such clause encompasses clause (i) of paragraph (h)) has
occurred, all the Notes then outstanding shall automatically become
immediately due and payable.
(b) If any other Event of Default has occurred and is
continuing, any holder or holders of more than 37% in principal
amount of the Notes at the time outstanding may at any time at its
or their option, by notice or notices to the Company, declare all
the Notes then outstanding to be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b)
of Section 11 has occurred and is continuing, any holder or holders
of Notes at the time outstanding affected by such Event of Default
may at any time, at its or their option, by notice or notices to
the Company, declare all the Notes held by it or them to be
immediately due and payable.
Upon any Note's becoming due and payable under this Section
12.1, whether automatically or by declaration, such Note will
forthwith mature and the entire unpaid principal amount of such
Note, plus (x) all accrued and unpaid interest thereon and (y) the
Make-Whole Amount determined in respect of such principal amount
(to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without
presentment, demand, protest or further notice, all of which are
hereby waived. The Company acknowledges, and the parties hereto
agree, that each holder of a Note has the right to maintain its
investment in the Notes free from repayment by the Company (except
as herein specifically provided for), and that the provision for
payment of a Make-Whole Amount by the Company in the event that the
Notes are prepaid or are accelerated as a result of an Event of
Default, is intended to provide compensation for the deprivation of
such right under such circumstances.
Section 12.2. Other Remedies.
If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or
have been declared immediately due and payable under Section 12.1,
the holder of any Note at the time outstanding may proceed to
protect and enforce the rights of such holder by an action at law,
suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or in any
Note, or for an injunction against a violation of any of the terms
hereof or thereof, or in aid of the exercise of any power granted
hereby or thereby or by law or otherwise.
Section 12.3. Rescission.
At any time after any Notes have been declared due and payable
pursuant to clause (b) or (c) of Section 12.1, the holders of not
less than 70% in principal amount of the Notes then outstanding, by
written notice to the Company, may rescind and annul any such
declaration and its consequences if (a) the Company has paid all
overdue interest on the Notes, all principal of and Make-Whole
Amount, if any, on any Notes that are due and payable and are
unpaid other than by reason of such declaration, and all interest
on such overdue principal and Make-Whole Amount, if any, and (to
the extent permitted by applicable law) any overdue interest in
respect of the Notes, at the Default Rate, (b) all Events of
Default and Defaults, other than non-payment of amounts that have
become due solely by reason of such declaration, have been cured or
have been waived pursuant to Section 17, and (c) no judgment or
decree has been entered for the payment of any monies due pursuant
hereto or to the Notes. No rescission and annulment under this
Section 12.3 will extend to or affect any subsequent Event of
Default or Default or impair any right consequent thereon.
Section 12.4. No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of
any Note in exercising any right, power or remedy shall operate as
a waiver thereof or otherwise prejudice such holder's rights,
powers or remedies. No right, power or remedy conferred by this
Agreement or by any Note upon any holder thereof shall be exclusive
of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or
otherwise. Without limiting the obligations of the Company under
Section 15, the Company will pay to the holder of each Note on
demand such further amount as shall be sufficient to cover all
costs and expenses of such holder incurred in any enforcement or
collection under this Section 12, including, without limitation,
reasonable attorneys' fees, expenses and disbursements.
Section 13. Registration; Exchange; Substitution of Notes.
Section 13.1. Registration of Notes.
The Company shall keep at its principal executive office a
register for the registration and registration of transfers of
Notes. The name and address of each holder of one or more Notes,
each transfer thereof and the name and address of each transferee
of one or more Notes shall be registered in such register. Prior to
due presentment for registration of transfer, the Person in whose
name any Note shall be registered shall be deemed and treated as
the owner and holder thereof for all purposes hereof, and the
Company shall not be affected by any notice or knowledge to the
contrary. The Company shall give to any holder of a Note that is an
Institutional Investor promptly upon request therefor, a complete
and correct copy of the names and addresses of all registered
holders of Notes.
Section 13.2. Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office
of the Company for registration of transfer or exchange (and in the
case of a surrender for registration of transfer, duly endorsed or
accompanied by a written instrument of transfer duly executed by
the registered holder of such Note or its attorney duly authorized
in writing and accompanied by the address for notices of each
transferee of such Note or part thereof), the Company shall execute
and deliver, at the Company's expense (except as provided below),
one or more new Notes (as requested by the holder thereof) in
exchange therefor, in an aggregate principal amount equal to the
unpaid principal amount of the surrendered Note. Each such new Note
shall be payable to such Person as such holder may request and
shall be substantially in the form of Exhibit 1. Each such new Note
shall be dated and bear interest from the date to which interest
shall have been paid on the surrendered Note or dated the date of
the surrendered Note if no interest shall have been paid thereon.
The Company may require payment of a sum sufficient to cover any
stamp tax or governmental charge imposed in respect of any such
transfer of Notes. Notes shall not be transferred in denominations
of less than $1,000,000 (other than Notes held by the original
Purchasers); provided that if necessary to enable the registration
of transfer by a holder of its entire holding of Notes, one Note
may be in a denomination of less than $1,000,000. Any transferee,
by its acceptance of a Note registered in its name (or the name of
its nominee), shall be deemed to have made the representation set
forth in Section 6.2.
Section 13.3. Replacement of Notes.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be, in
the case of an Institutional Investor, notice from such
Institutional Investor of such ownership and such loss, theft,
destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such
Note is, or is a nominee for, an original Purchaser or another
holder of a Note with a minimum net worth of at least $5,000,000,
such Person's own unsecured agreement of indemnity shall be deemed
to be satisfactory), or
(b) in the case of mutilation, upon surrender and
cancellation thereof,
the Company at its own expense shall execute and deliver, in lieu
thereof, a new Note, dated and bearing interest from the date to
which interest shall have been paid on such lost, stolen, destroyed
or mutilated Note or dated the date of such lost, stolen, destroyed
or mutilated Note if no interest shall have been paid thereon.
Section 14. Payments on Notes.
Section 14.1. Place of Payment.
Subject to Section 14.2, payments of principal, Make-Whole
Amount, if any, and interest becoming due and payable on the Notes
shall be made in Chicago, Illinois at the principal office of a
bank or trust company in such jurisdiction which the Company agrees
to designate at any time when there is any holder of any Note not
entitled to the benefits of Section 14.2.
Section 14.2. Home Office Payment.
So long as you or your nominee shall be the holder of any
Note, and notwithstanding anything contained in Section 14.1 or in
such Note to the contrary, the Company will pay all sums becoming
due on such Note for principal, Make-Whole Amount, if any, and
interest by the method and at the address specified for such
purpose below your name in Schedule A, or by such other method or
at such other address as you shall have from time to time specified
to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any
notation thereon, except that upon written request of the Company
made concurrently with or reasonably promptly after payment or
prepayment in full of any Note, you shall surrender such Note for
cancellation, reasonably promptly after any such request, to the
Company at its principal executive office or at the place of
payment most recently designated by the Company pursuant to Section
14.1. Prior to any sale or other disposition of any Note held by
you or your nominee you will, at your election, either endorse
thereon the amount of principal paid thereon and the last date to
which interest has been paid thereon or surrender such Note to the
Company in exchange for a new Note or Notes pursuant to Section
13.2. The Company will afford the benefits of this Section 14.2 to
any Institutional Investor that is the direct or indirect
transferee of any Note purchased by you under this Agreement and
that has made the same agreement relating to such Note as you have
made in this Section 14.2.
Section 15. Expenses, Etc.
Section 15.1. Transaction Expenses.
Whether or not the transactions contemplated hereby are
consummated, the Company will pay all costs and expenses (including
reasonable attorneys' fees of a special counsel and, if reasonably
required, local or other counsel) incurred by you and each Other
Purchaser or holder of a Note in connection with such transactions
and in connection with any amendments, waivers or consents under or
in respect of this Agreement or the Notes (whether or not such
amendment, waiver or consent becomes effective) or the delivery of
any Subsidiary Guaranty, including, without limitation: (a) the
costs and expenses incurred in enforcing or defending (or
determining whether or how to enforce or defend) any rights under
this Agreement, any Subsidiary Guaranty or the Notes or in
responding to any subpoena or other legal process or informal
investigative demand issued in connection with this Agreement, any
Subsidiary Guaranty or the Notes, or by reason of being a holder of
any Note, and (b) the costs and expenses, including financial
advisors' fees, incurred in connection with the insolvency or
bankruptcy of the Company or any Subsidiary or in connection with
any work-out or restructuring of the transactions contemplated
hereby and by the Notes. The Company will pay, and will save you
and each other holder of a Note harmless from, all claims in
respect of any fees, costs or expenses, if any, of brokers and
finders (other than those retained by you).
Section 15.2. Survival.
The obligations of the Company under this Section 15 will
survive the payment or transfer of any Note, the enforcement,
amendment or waiver of any provision of this Agreement or the
Notes, and the termination of this Agreement.
Section 16. Survival of Representations and Warranties;
Entire Agreement.
All representations and warranties contained herein shall
survive the execution and delivery of this Agreement and the Notes,
the purchase or transfer by you of any Note or portion thereof or
interest therein and the payment of any Note, and may be relied
upon by any subsequent holder of a Note, regardless of any
investigation made at any time by or on behalf of you or any other
holder of a Note. All statements contained in any certificate or
other instrument delivered by or on behalf of the Company pursuant
to this Agreement shall be deemed representations and warranties of
the Company under this Agreement. Subject to the preceding
sentence, this Agreement and the Notes embody the entire agreement
and understanding between you and the Company and supersede all
prior agreements and understandings relating to the subject matter
hereof.
Section 17. Amendment and Waiver.
Section 17.1. Requirements.
This Agreement and the Notes may be amended, and the
observance of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written
consent of the Company and the Required Holders, except that (a) no
amendment or waiver of any of the provisions of Section 1, 2, 3, 4,
5, 6 or 21 hereof, or any defined term (as it is used therein),
will be effective as to you unless consented to by you in writing,
and (b) no such amendment or waiver may, without the written
consent of the holder of each Note at the time outstanding affected
thereby, (i) subject to the provisions of Section 12 relating to
acceleration or rescission, change the amount or time of any
prepayment or payment of principal of, or reduce the rate or change
the time of payment or method of computation of interest or of the
Make-Whole Amount on, the Notes, (ii) change the percentage of the
principal amount of the Notes the holders of which are required to
consent to any such amendment or waiver, or (iii) amend any of
Sections 8, 11(a), 11(b), 12, 17 or 20.
Section 17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of
the Notes (irrespective of the amount of Notes then owned by it)
with sufficient information, sufficiently far in advance of the
date a decision is required, to enable such holder to make an
informed and considered decision with respect to any proposed
amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Company will deliver executed or true
and correct copies of each amendment, waiver or consent effected
pursuant to the provisions of this Section 17 to each holder of
outstanding Notes promptly following the date on which it is
executed and delivered by, or receives the consent or approval of,
the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay
or cause to be paid any remuneration, whether by way of
supplemental or additional interest, fee or otherwise, or grant any
security, to any holder of Notes as consideration for or as an
inducement to the entering into by any holder of Notes or any
waiver or amendment of any of the terms and provisions hereof
unless such remuneration is concurrently paid, or security is
concurrently granted, on the same terms, ratably to each holder of
Notes then outstanding even if such holder did not consent to such
waiver or amendment.
Section 17.3. Binding Effect, etc.
Any amendment or waiver consented to as provided in this
Section 17 applies equally to all holders of Notes and is binding
upon them and upon each future holder of any Note and upon the
Company without regard to whether such Note has been marked to
indicate such amendment or waiver. No such amendment or waiver will
extend to or affect any obligation, covenant, agreement, Default or
Event of Default not expressly amended or waived or impair any
right consequent thereon. No course of dealing between the Company
and the holder of any Note nor any delay in exercising any rights
hereunder or under any Note shall operate as a waiver of any rights
of any holder of such Note. As used herein, the term "this
Agreement" and references thereto shall mean this Agreement as it
may from time to time be amended or supplemented.
Section 17.4. Notes Held by Company, etc.
Solely for the purpose of determining whether the holders of
the requisite percentage of the aggregate principal amount of Notes
then outstanding approved or consented to any amendment, waiver or
consent to be given under this Agreement or the Notes, or have
directed the taking of any action provided herein or in the Notes
to be taken upon the direction of the holders of a specified
percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Company or
any of its Affiliates shall be deemed not to be outstanding.
Section 18. Notices.
All notices and communications provided for hereunder shall be
in writing and sent (a) by telefacsimile if the sender on the same
day sends a confirming copy of such notice by a recognized
overnight delivery service (charges prepaid), or (b) by registered
or certified mail with return receipt requested (postage prepaid),
or (c) by a recognized overnight delivery service (with charges
prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such other
address as you or it shall have specified to the Company in
writing,
(ii) if to any other holder of any Note, to such holder at
such address as such other holder shall have specified to the
Company in writing, or
(iii) if to the Company, to the Company at its address set
forth at the beginning hereof to the attention of the President, or
at such other address as the Company shall have specified to the
holder of each Note in writing.
Notices under this Section 18 will be deemed given only when
actually received.
Section 19. Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications that
may hereafter be executed, (b) documents received by you at the
Closing (except the Notes themselves), and (c) financial
statements, certificates and other information previously or
hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature
photographic or other similar process and you may destroy any
original document so reproduced. The Company agrees and stipulates
that, to the extent permitted by applicable law, any such
reproduction shall be admissible in evidence as the original itself
in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was
made by you in the regular course of business) and any enlargement,
facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. This Section 19 shall not
prohibit the Company or any other holder of Notes from contesting
any such reproduction to the same extent that it could contest the
original, or from introducing evidence to demonstrate the
inaccuracy of any such reproduction.
Section 20. Confidential Information.
For the purposes of this Section 20, "Confidential
Information" means information delivered to you by or on behalf of
the Company or any Subsidiary in connection with the transactions
contemplated by or otherwise pursuant to this Agreement that is
proprietary in nature and that was clearly marked or labeled or
otherwise adequately identified in writing when received by you as
being confidential information of the Company or such Subsidiary;
provided that such term does not include information that (a) was
publicly known or otherwise known to you prior to the time of such
disclosure, (b) subsequently becomes publicly known through no act
or omission by you or any Person acting on your behalf, (c)
otherwise becomes known to you other than through disclosure by the
Company or any Subsidiary or (d) constitutes financial statements
delivered to you under Section 7.1 that are otherwise publicly
available. You will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by
you in good faith to protect confidential information of third
parties delivered to you; provided that you may deliver or disclose
Confidential Information to (i) your directors, trustees, officers,
employees, agents, attorneys and affiliates (to the extent such
disclosure reasonably relates to the administration of the
investment represented by your Notes), (ii) your financial advisors
and other professional advisors who agree to hold confidential the
Confidential Information substantially in accordance with the terms
of this Section 20, (iii) any other holder of any Note, (iv) any
Institutional Investor to which you sell or offer to sell such Note
or any part thereof or any participation therein (if such Person
has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 20), (v)
any Person from which you offer to purchase any security of the
Company (if such Person has agreed in writing prior to its receipt
of such Confidential Information to be bound by the provisions of
this Section 20), (vi) any federal or state regulatory authority
having jurisdiction over you, (vii) the National Association of
Insurance Commissioners or any similar organization, or any
nationally recognized rating agency that requires access to
information about your investment portfolio or (viii) any other
Person to which such delivery or disclosure may be necessary or
appropriate (w) to effect compliance with any law, rule, regulation
or order applicable to you, (x) in response to any subpoena or
other legal process, (y) in connection with any litigation to which
you are a party or (z) if an Event of Default has occurred and is
continuing, to the extent you may reasonably determine such
delivery and disclosure to be necessary or appropriate in the
enforcement or for the protection of the rights and remedies under
your Notes and this Agreement. Each holder of a Note, by its
acceptance of a Note, will be deemed to have agreed to be bound by
and to be entitled to the benefits of this Section 20 as though it
were a party to this Agreement. On reasonable request by the
Company in connection with the delivery to any holder of a Note of
information required to be delivered to such holder under this
Agreement or requested by such holder (other than a holder that is
a party to this Agreement or its nominee), such holder will enter
into an agreement with the Company embodying the provisions of this
Section 20.
Section 21. Substitution of Purchaser.
You shall have the right to substitute any one of your
Affiliates as the purchaser of the Notes that you have agreed to
purchase hereunder, by written notice to the Company, which notice
shall be signed by both you and such Affiliate, shall contain such
Affiliate's agreement to be bound by this Agreement and shall
contain a confirmation by such Affiliate of the accuracy with
respect to it of the representations set forth in Section 6. Upon
receipt of such notice, wherever the word "you" is used in this
Agreement (other than in this Section 21), such word shall be
deemed to refer to such Affiliate in lieu of you. In the event that
such Affiliate is so substituted as a purchaser hereunder and such
Affiliate thereafter transfers to you all of the Notes then held by
such Affiliate, upon receipt by the Company of notice of such
transfer, wherever the word "you" is used in this Agreement (other
than in this Section 21), such word shall no longer be deemed to
refer to such Affiliate, but shall refer to you, and you shall have
all the rights of an original holder of the Notes under this
Agreement.
Section 22. Miscellaneous.
Section 22.1. Successors and Assigns.
All covenants and other agreements contained in this Agreement
by or on behalf of any of the parties hereto bind and inure to the
benefit of their respective successors and assigns (including,
without limitation, any subsequent holder of a Note) whether so
expressed or not.
Section 22.2. Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or Make-Whole Amount
or interest on any Note that is due on a date other than a Business
Day shall be made on the next succeeding Business Day without
including the additional days elapsed in the computation of the
interest payable on such next succeeding Business Day.
Section 22.3. Severability.
Any provision of this Agreement 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
hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not
invalidate or render unenforceable such provision in any other
jurisdiction.
Section 22.4. Construction.
Each covenant contained herein shall be construed (absent
express provision to the contrary) as being independent of each
other covenant contained herein, so that compliance with any one
covenant shall not (absent such an express contrary provision) be
deemed to excuse compliance with any other covenant. Where any
provision herein refers to action to be taken by any Person, or
which such Person is prohibited from taking, such provision shall
be applicable whether such action is taken directly or indirectly
by such Person.
Section 22.5. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall
constitute one instrument. Each counterpart may consist of a number
of copies hereof, each signed by less than all, but together signed
by all, of the parties hereto.
Section 22.6. Governing Law.
This Agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law
of the State of Illinois, excluding choice-of-law principles of the
law of such State that would require the application of the laws of
a jurisdiction other than such State.
Section 22.7. Submission to Jurisdiction.
The Company hereby irrevocably submits and consents to the
nonexclusive jurisdiction of the Federal court located within the
Northern District of the State of Illinois (or if such court lacks
jurisdiction, the state courts located therein) and irrevocably
agrees that all actions or proceedings related to this Agreement or
the Notes may be litigated in such courts, and unconditionally
waives any objection which it may have based on improper venue or
forum non conveniens to the conduct of any proceeding in any such
court and waives personal service of any and all process upon it,
and consents that all such service of process be made by delivery
to the Company as set forth in Section 18. Nothing contained in
this section shall affect the right of any holder of Notes to serve
legal process in any other manner permitted by law or to bring any
action or proceeding in the courts of any jurisdiction against the
Company or to enforce a judgment obtained in the courts of any
other jurisdiction.
* * * * *
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By s/A. Kipp Koester
------------------------------
Vice President
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY
By s/Shabnam B. Miglani
------------------------------
Its Counsel
By s/Karen A. Pearston
------------------------------
Its Counsel
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
ALLSTATE LIFE INSURANCE COMPANY
By s/Jerry D. Zinkula
------------------------------
Authorized Signatories
By s/Patricia W. Wilson
------------------------------
Authorized Signatories
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY
By: CIGNA Investments, Inc.
By s/Daniel E. Feder
------------------------------
Vice President
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
CIGNA PROPERTY AND CASUALTY
INSURANCE COMPANY
By: CIGNA Investments, Inc.
By s/Daniel E. Feder
------------------------------
Vice President
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY, ON BEHALF OF ONE OR MORE
SEPARATE ACCOUNTS
By: CIGNA Investments, Inc.
By s/Daniel E. Feder
------------------------------
Vice President
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
JEFFERSON PILOT LIFE INSURANCE
COMPANY
By s/James E. McDonald, Jr.
------------------------------
Second Vice President
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
ALEXANDER HAMILTON LIFE INSURANCE
COMPANY OF AMERICA
By s/James E. McDonald, Jr.
------------------------------
Second Vice President
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
THE MINNESOTA MUTUAL LIFE INSURANCE
COMPANY
By: MIMLIC Asset Management Company
By s/Loren A. Haugland
------------------------------
Vice President
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
MUTUAL TRUST LIFE INSURANCE
COMPANY
By: MIMLIC Asset Management Company
By s/Loren A. Haugland
------------------------------
Vice President
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
MUTUAL TRUST LIFE INSURANCE COMPANY
By: MIMLIC Asset Management Company
By s/Lauren A. Haugland
------------------------------
Vice President
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
NORTHERN LIFE INSURANCE COMPANY
By s/James V. Wittich
------------------------------
Assistant Treasurer
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
RELIASTAR UNITED SERVICES LIFE
INSURANCE COMPANY
By s/James V. Wittich
------------------------------
Assistant Treasurer
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
RELIASTAR BANKERS SECURITY LIFE
INSURANCE COMPANY
By s/James V. Wittich
------------------------------
Vice President
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
PIERCE NATIONAL LIFE INSURANCE
COMPANY
By s/Douglas W. Kroske
------------------------------
Authorized Officer
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become
a binding agreement between you and the Company.
Very truly yours,
INSITUFORM TECHNOLOGIES, INC.
By s/William A. Martin
------------------------------
Senior Vice President
The foregoing is hereby agreed
to as of the date thereof.
Accepted as of February 14, 1997:
THE SECURITY MUTUAL LIFE INSURANCE
COMPANY OF LINCOLN, NEBRASKA
By s/Kevin W. Hammond
------------------------------
Vice President
Chief Investment Officer
Principal Amount of
Name of Note Purchaser Notes Being Purchased
The Northwestern Mutual Life $20,000,000
Insurance Company
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Securities Department
Telecopier Number: (414) 299-7124
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as Insituform Technologies, Inc., 7.88%
Senior Notes, Series A, Due 2007, PPN 457667 A* 4, principal,
premium or interest") to:
Bankers Trust Company (ABA #0210-0103-3)
16 Wall Street
Insurance Unit, 4th Floor
New York, New York 10005
for credit to: The Northwestern Mutual Life Insurance Company
Account Number 00-000-027
Notices
All notices and communications to be addressed as first provided
above, except notices with respect to payments and written
confirmation of each such payment to be addressed, Attention:
Investment Operations.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 39-0509570
Schedule A
(to Note Purchase Agreement)
Principal Amount of
Name of Note Purchaser Notes Being Purchased
Principal Mutual Life Insurance Company $20,000,000
711 High Street
Des Moines, Iowa 50392-0800
Attention: Investment Department-Securities Division
Regarding Bond No. 1-B-60981
Telefacsimile: (515) 248-2490
Confirmation: (515) 248-3495
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds to:
ABA #073 000 228
Norwest Bank Iowa, N.A.
7th and Walnut Streets
Des Moines, Iowa 50309
Account Number 014752
OBI PFGSE(S) B60981 (Insituform Technologies, Inc.)
Each wire transfer shall identify such payment as Insituform
Technologies, Inc., 7.88% Senior Notes, Series A, Due 2007, PPN
457667 A* 4, Bond No. 1-B-60981 principal, premium or interest".
Notices
All notices concerning payment on or in respect of the Notes, to:
Principal Mutual Life Insurance Company
711 High Street
Des Moines, Iowa 50392-0960
Attention: Investment Accounting and Treasury - Securities
Facsimile: (515) 248-2643
Confirmation: (515) 248-8301
All notices and communications other than those in respect to
payments to be addressed as provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 42-0127290
Principal Amount of
Name of Note Purchaser Notes Being Purchased
Allstate Life Insurance Company $4,000,000
$4,000,000
3075 Sanders Road, STE G3A $3,000,000
Northbrook, Illinois 60062-7127 $3,000,000
Attention: Private Placements Department
Telephone Number: (847) 402-4394
Telecopier Number: (847) 402-3092
Payments
All payments on or in respect of the Notes to be made by Fedwire
transfer of immediately available funds (identifying each payment
as Insituform Technologies, Inc., 7.88% Senior Notes, Series A, Due
2007, PPN 457667 A* 4, principal, premium or interest) in the exact
format as follows:
BBK = Harris Trust and Savings Bank
ABA #071000288
BNF = Allstate Life Insurance Company
Collection Account #168-117-0
ORG = Insituform Technologies, Inc.
OBI = DPP - PPN 457667 A* 4 -
Payment Due Date (MM/DD/YY) -
P ______ (enter "P" and the amount of principal
being remitted, for example, P5000000.00) -
I ______ (enter "I" and the amount of interest being
remitted, for example, I225000.00)
Notices
All notices of scheduled payments and written confirmation of each
such payment, to be addressed:
Allstate Insurance Company
Investment Operations-Private Placements
3075 Sanders Road, STE G4A
Northbrook, Illinois 60062-7127
Telephone: (847) 402-8709
Telecopy: (847) 402-7331
All financial reports, compliance certificates and all other
written communications, including notice of prepayments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 36-2554642
Principal Amount of
Name of Note Purchaser Notes Being Purchased
Connecticut General Life Insurance $3,000,000
Company $3,000,000
c/o CIGNA Investments, Inc.
900 Cottage Grove Road
Hartford, Connecticut 06152-2307
Attention: Private Securities Division - S-307
Fax: 860-726-7203
Payments
All payments on or in respect of the Notes to be by Federal Funds
Wire Transfer to:
Chase NYC/CTR/
BNF=CIGNA Private Placements/AC=9009001802
ABA #021000021
OBI=Insituform Technologies, Inc.; 7.88% Senior Notes, Series
A, Due 2007; PPN 457667 A* 4; principal, premium or interest;
contact name and phone.
Address for Notices Related to Payments:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
900 Cottage Grove Road
Hartford, Connecticut 06152-2309
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
Operations Group
900 Cottage Grove Road
Hartford, Connecticut 06152-2307
Fax: 860-726-7203
with a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
P. O. Box 1508
Bowling Green Station
New York, New York 10081
Attention: CIGNA Private Placements
Fax: 212-552-3107/1005
Address for All Other Notices:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
Daniel E. Feder
900 Cottage Grove Road
Hartford, Connecticut 06152-2307
Fax: 860-726-7203
Name of Nominee in which Notes are to be issued: CIG & Co.
Taxpayer I.D. Number for CIG & Co.: 13-3574027
Principal Amount of
Name of Note Purchaser Notes Being Purchased
CIGNA Property and Casualty Insurance $5,000,000
Company
c/o CIGNA Investments, Inc.
900 Cottage Grove Road
Hartford, Connecticut 06152-2307
Attention: Private Securities Division - S-307
Fax: 860-726-7203
Payments
All payments on or in respect of the Notes to be by Federal Funds
Wire Transfer to:
Chase NYC/CTR/
BNF=CIGNA Private Placements/AC=9009001802
ABA #021000021
OBI=Insituform Technologies, Inc.; 7.88% Senior Notes, Series
A, Due 2007; PPN 457667 A* 4; principal, premium or interest;
contact name and phone.
Address for Notices Related to Payments:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
900 Cottage Grove Road
Hartford, Connecticut 06152-2309
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
Operations Group
900 Cottage Grove Road
Hartford, Connecticut 06152-2307
Fax: 860-726-7203
with a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
P. O. Box 1508
Bowling Green Station
New York, New York 10081
Attention: CIGNA Private Placements
Fax: 212-552-3107/1005
Address for All Other Notices:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
Daniel E. Feder
900 Cottage Grove Road
Hartford, Connecticut 06152-2307
Fax: 860-726-7203
Name of Nominee in which Notes are to be issued: CIG & Co.
Taxpayer I.D. Number for CIG & Co.: 13-3574027
Principal Amount of
Name of Note Purchaser Notes Being Purchased
Connecticut General Life Insurance $3,000,000
Company, on behalf of one or
more separate accounts
c/o CIGNA Investments, Inc.
900 Cottage Grove Road
Hartford, Connecticut 06152-2307
Attention: Private Securities Division - S-307
Fax: 860-726-7203
Payments
All payments on or in respect of the Notes to be by Federal Funds
Wire Transfer to:
Chase NYC/CTR/
BNF=CIGNA Private Placements/AC=9009001802
ABA #021000021
OBI=Insituform Technologies, Inc.; 7.88% Senior Notes, Series
A, Due 2007; PPN 457667 A* 4; principal, premium or interest;
contact name and phone.
Address for Notices Related to Payments:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
900 Cottage Grove Road
Hartford, Connecticut 06152-2309
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
Operations Group
900 Cottage Grove Road
Hartford, Connecticut 06152-2307
Fax: 860-726-7203
with a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
P. O. Box 1508
Bowling Green Station
New York, New York 10081
Attention: CIGNA Private Placements
Fax: 212-552-3107/1005
Address for All Other Notices:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division - S-307
Daniel E. Feder
900 Cottage Grove Road
Hartford, Connecticut 06152-2307
Fax: 860-726-7203
Name of Nominee in which Notes are to be issued: CIG & Co.
Taxpayer I.D. Number for CIG & Co.: 13-3574027
Principal Amount of
Name of Note Purchaser Notes Being Purchased
Jefferson-Pilot Life Insurance Company $7,000,000
P. O. Box 21008*
Greensboro, North Carolina 27420
Attention: Securities Administration - 3630
Telefacsimile: (910) 691-3025
*for hand delivery:
100 North Greene Street
Greensboro, NC 27401
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as Insituform Technologies, Inc., 7.88%
Senior Notes, Series A, Due 2007, PPN 457667 A* 4, principal,
premium or interest") to:
Jefferson-Pilot Life Insurance Company
c/o The Bank of New York
ABA #021 000 018 BNF: IOC566
Attention: P&I Department
Notices
All notices of payment on or in respect of the Notes and written
confirmation of each such payment, to be addressed to:
Jefferson-Pilot Life Insurance Company
c/o The Bank of New York
P. O. Box 19266
Newark, NJ 07195
Attention: P&I Department
with duplicate notice to Jefferson-Pilot Life Insurance Company at
the address first provided above.
All notices and communications other than those in respect to
payments to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 56-0359860
Principal Amount of
Name of Note Purchaser Notes Being Purchased
Alexander Hamilton Life Insurance $7,000,000
Company of America
P. O. Box 21008*
Greensboro, North Carolina 27420
Attention: Securities Administration - 3630
Telefacsimile: (910) 691-3025
*for hand delivery:
100 North Greene Street
Greensboro, NC 27401
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as Insituform Technologies, Inc., 7.88%
Senior Notes, Series A, Due 2007, PPN 457667 A* 4, principal,
premium or interest") to:
Alexander Hamilton Life Insurance Company of America
c/o The Bank of New York
ABA #021 000 018 BNF: IOC566
Attention: P&I Department
Notices
All notices of payment on or in respect of the Notes and written
confirmation of each such payment, to be addressed to:
Alexander Hamilton Life Insurance Company of America
c/o The Bank of New York
P. O. Box 19266
Newark, NJ 07195
Attention: P&I Department
with duplicate notice to Alexander Hamilton Life Insurance Company
of America at the address first provided above.
All notices and communications other than those in respect to
payments to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 56-1311063
Principal Amount of
Name of Note Purchaser Notes Being Purchased
The Minnesota Mutual Life Insurance $13,000,000
Company
400 Robert Street North
St. Paul, Minnesota 55101
Attention: MIMLIC Asset Management Company
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as Insituform Technologies, Inc., 7.88%
Senior Notes, Series A, Due 2007, PPN 457667 A* 4, principal,
premium or interest") to:
First Bank National Association (ABA #091000022)
Minneapolis, Minnesota
BNF The Minnesota Mutual Life Insurance Company
Account Number 1801-10-00600-4
Notices
All notices and communications, including notices with respect to
payments and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 41-0417830
Principal Amount of
Name of Note Purchaser Notes Being Purchased
Mutual Trust Life Insurance $1,000,000
Company
c/o MIMLIC Asset Management Company
400 Robert Street North
St. Paul, Minnesota 55101
Attention: Client Administrator
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as Insituform Technologies, Inc., 7.88%
Senior Notes, Series A, Due 2007, PPN 457667 A* 4, principal,
premium or interest") to:
The Northern Trust Company (ABA #071-000-152)
Chicago, IL
For Credit to: Account Number 5186041000
For further credit to : Mutual Trust Life Insurance Company
Account Number 26-00621
Attn. MBS Department
Notices
All notices and communications, including notices with respect to
payments and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: ELL & Co.
Taxpayer I.D. Number: 36-1516780
Principal Amount of
Name of Note Purchaser Notes Being Purchased
Northern Life Insurance $4,000,000
Company
c/o ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, Minnesota 55401-2147
Attention: Analyst Name
Phone: (612) 372-5257
Fax: (612) 372-5368
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as Insituform Technologies, Inc., 7.88%
Senior Notes, Series A, Due 2007, PPN 457667 A* 4, principal,
premium or interest") to:
First National Bank N.A./Mpls.
601 2nd Avenue South
Acct. #1602-3237-6105
Bank ABA #091000022
Attention: Securities Accounting
Ref: Issuer, Cusip, Coupon & Maturity
Notices
All notices and communications, including notices with respect to
payments and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 41-1295933
Principal Amount of
Name of Note Purchaser Notes Being Purchased
ReliaStar United Services Life $1,000,000
Insurance Company
c/o ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, Minnesota 55401-2121
Attention: Analyst Name
Phone: (612) 372-5257
Fax: (612) 372-5368
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as Insituform Technologies, Inc., 7.88%
Senior Notes, Series A, Due 2007, PPN 457667 A* 4, principal,
premium or interest") to:
Bankers Trust
New York, New York
ABA #021001033
A/C #99-911-145
Ref: Security description & P&I Breakdown
Notices
All notices and communications, including notices with respect to
payments and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: SALKELD & CO.
Taxpayer I.D. Number: 53-0159267
Principal Amount of
Name of Note Purchaser Notes Being Purchased
ReliaStar Bankers Security Life $1,000,000
Insurance Company
c/o ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, Minnesota 55401-2121
Attention: Analyst Name
Phone: (612) 372-5257
Fax: (612) 372-5368
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as Insituform Technologies, Inc., 7.88%
Senior Notes, Series A, Due 2007, PPN 457667 A* 4, principal,
premium or interest") to:
Chase Manhattan
New York, New York
A/C #544755102
F/C #1960 Dept 571 NonStandard Securities
Bank ABA #021000021
Ref: Issue Name, PPN and P&I Breakdown
Notices
All notices and communications, including notices with respect to
payments and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: SIGLER & CO.
Taxpayer I.D. Number: 53-0242530
Principal Amount of
Name of Note Purchaser Notes Being Purchased
ReliaStar Life Insurance Company $3,000,000
c/o ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, Minnesota 55401-2147
Attention: Analyst Name
Phone: (612) 372-5257
Fax: (612) 372-5368
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as Insituform Technologies, Inc., 7.88%
Senior Notes, Series A, Due 2007, PPN 457667 A* 4, principal,
premium or interest") to:
First National Bank N.A./Mpls.
601 2nd Avenue South
Acct. #1102-4001-4461
Bank ABA #091000022
Attention: Securities Accounting
Ref: Issuer, Cusip, Coupon & Maturity
Notices
All notices and communications, including notices with respect to
payments and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 41-0451140
Principal Amount of
Name of Note Purchaser Notes Being Purchased
Pierce National Life Insurance Company $4,000,000
c/o Liberty Capital Advisors
Post Office Box 789
Greenville, South Carolina 29602
Attention: Patrick Weston, Securities Department
Overnight Mail Address:
2000 Wade Hampton Boulevard
Greenville, South Carolina 29615
Attention: Patrick Weston, Securities Department
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as Insituform Technologies, Inc., 7.88%
Senior Notes, Series A, Due 2007, PPN 457667 A* 4, principal,
premium or interest") to:
The Bank of New York (ABA #021000018)
BNF IOC 566
Attention: P&I Department
For account name: Pierce National Life Insurance Company
Account: #288431
Notices
All notices and communications to be addressed as first provided
above, except notices with respect to payments and written
confirmation of each such payment to:
Pierce National Life Insurance Company
c/o The Bank of New York
Attention: P&I Department
P.O. Box 19266
Newark, New Jersey 07195
with a duplicate notice to Liberty Capital Advisors at the address
provided above.
Name of Nominee in which Notes are to be issued: Hare & Co.
Principal Amount of
Name of Note Purchaser Notes Being Purchased
The Security Mutual Life Insurance $1,000,000
Company of Lincoln, Nebraska
200 Centennial Mall North
Lincoln, Nebraska 68508
Attention: Investment Department
Payments
All payments on or in respect of the Notes to be by bank wire
transfer of Federal or other immediately available funds
(identifying each payment as Insituform Technologies, Inc., 7.88%
Senior Notes, Series A, Due 2007, PPN 457667 A* 4, principal,
premium or interest") to:
National Bank of Commerce (ABA #1040-00045)
13th and "O" Streets
Lincoln, Nebraska
for credit to: Security Mutual Life
Account Number 40-797-624
Notices
All notices and communications, including notices with respect to
payments and written confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 47-0293990
Defined Terms
As used herein, the following terms have the respective
meanings set forth below or set forth in the Section hereof
following such term:
"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; provided that notwithstanding the
foregoing, "Acquiring Person" shall not be deemed to include either
member of the Senior Management Group (or any group including such
member) unless such member has, directly or indirectly, transferred
control (whether by means of voting trust agreement or otherwise),
of the voting rights relating to all or any portion of the Voting
Stock of the Company, directly or indirectly owned or controlled by
such member to or for the benefit of the Acquiring Person or any
other member thereof.
"Affiliate" means, at any time, and with respect to any
Person, (a) any other Person that at such time directly or
indirectly through one or more intermediaries Controls, or is
Controlled by, or is under common Control with, such first Person,
(b) (1) any Person beneficially owning or holding, directly or
indirectly, 5% or more of any class of voting or equity interests
of the Company or any Subsidiary or (2) any corporation of which
the Company and its Subsidiaries beneficially own or hold, in the
aggregate, directly or indirectly, 5% or more of any class of
voting or equity interests, and (c) any officer or director of the
Company or its Subsidiaries. As used in this definition, "Control"
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by
contract or otherwise. Unless the context otherwise clearly
requires, any reference to an "Affiliate" is a reference to an
Affiliate of the Company.
"Asset Disposition Prepayment Date" is defined in Section
10.7.
"Asset Disposition Prepayment Notice" is defined in Section
10.7.
"Business Day" means (a) for the purposes of Section 8.7 only,
any day other than a Saturday, a Sunday or a day on which
commercial banks in New York City are required or authorized to be
closed, and (b) for the purposes of any other provision of this
Agreement, any day other than a Saturday, a Sunday or a day on
which commercial banks in Chicago, Illinois or Memphis, Tennessee
are required or authorized to be closed.
"Calculation Notice" is defined in Section 8.2.
Schedule B
(to Note Purchase Agreement)
"Capital Lease" means, at any time, a lease with respect to
which the lessee is required concurrently to recognize the
acquisition of an asset and the incurrence of a liability in
accordance with GAAP.
"Capitalized Rentals" of any Person means as of the date of
any determination thereof, without duplication, the amount at which
the aggregate Rentals due and to become due under all Capital
Leases under which such Person is a lessee would be reflected as a
liability on a consolidated balance sheet of such Person.
"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 the 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 the Company then
outstanding, or (c) the date of a merger or statutory share
exchange between the Company and any other Person, a consolidation
of the Company with any other Person or an acquisition of any other
Person by the Company, if immediately after such event, the
Acquiring Person shall hold 50% or more of the Voting Stock of the
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 the 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 the 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;
provided, that no Change of Control shall be deemed to have
occurred under this clause (d) in connection with changes to the
Board of Directors approved by a member of the Senior Management
Group.
"Change of Control Delayed Prepayment Date" is defined in
Section 8.3(b).
"Change of Control Prepayment Date" is defined in Section
8.3(a).
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations promulgated
thereunder from time to time.
"Company" means Insituform Technologies, Inc., a Delaware
corporation.
"Company Notice" is defined in Section 8.3(a).
"Confidential Information" is defined in Section 20.
"Consolidated Adjusted Net Worth" means as of the date of any
determination thereof, without duplication, the arithmetic sum of:
(a) the amount of the consolidated stockholders' equity of
the Company and its Subsidiaries as reflected in its most recent
quarterly financial statements,
PLUS
(b) Minority Interests and deferred tax liabilities of the
Company and its Subsidiaries up to an amount not exceeding
$10,000,000 in the aggregate;
MINUS
(c) the net book value, after deducting any reserves
applicable thereto, of all items of the following character which
are included in the assets of the Company and its Subsidiaries, to
wit:
(i) the incremental increase in an asset resulting from
any reappraisal, revaluation or write-up of assets (other than
any revaluation or write-up of assets in accordance with
GAAP);
(ii) goodwill or the "cost in excess of net assets of
businesses acquired" to the extent and in the amount by which
the net book value thereof exceeds $70,000,000; and
(iii) patents, patent applications, permits, trademarks,
trade names, copyrights, licenses, franchises, experimental
expense, organizational expense, unamortized debt discount and
expense, and such other assets (other than goodwill or the
"cost in excess of net assets of businesses acquired") as are
properly classified as "intangible assets" in accordance with
GAAP to the extent and in the amount by which the net book
value thereof exceeds $20,000,000;
all determined in accordance with GAAP.
"Consolidated Cash Flow Available for Fixed Charges" for any
period means, without duplication, the sum of (a) Consolidated Net
Earnings during such period plus (to the extent deducted in
determining Consolidated Net Earnings), (b) all provisions for any
Federal, state or other income taxes made by the Company and its
Subsidiaries during such period, (c) all provisions for
depreciation and amortization (other than the amortization of debt
discount) made by the Company and its Subsidiaries during such
period, (d) merger and restructuring charges provided with respect
to the period prior to the date of the Closing (including those
provided with respect to the fiscal year ended December 31, 1996,
provided that in no event shall the amount thereof provided with
respect to the fiscal year ended December 31, 1996 and included in
any computation of Consolidated Cash Flow Available for Fixed
Charges exceed $8,000,000), and (e) Consolidated Fixed Charges
during such period.
"Consolidated Fixed Charges" for any period means on a
consolidated basis (in each case, eliminating all offsetting debits
and credits between the Company and its Subsidiaries and all other
items to be eliminated in the course of the preparation of
consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP), without duplication, the sum
of (a) all Rentals (other than Rentals on Capital Leases) payable
during such period by the Company and its Subsidiaries, and (b) all
Interest Expense on all Indebtedness of the Company and its
Subsidiaries payable during such period.
"Consolidated Net Earnings" for any period means, without
duplication, the gross revenues of the Company and its Subsidiaries
for such period less all expenses and other proper charges
(including taxes on income), determined on a consolidated basis
after eliminating earnings or losses attributable to outstanding
Minority Interests, but excluding in any event:
(a) any gains or losses on the sale or other disposition of
Investments or fixed or capital assets, and any taxes on such
excluded gains and any tax deductions or credits on account of any
such excluded losses;
(b) the proceeds of any life insurance policy, net of
out-of-pocket expenses;
(c) net earnings and losses of any Subsidiary accrued prior
to the date it became a Subsidiary;
(d) net earnings and losses of any Person (other than a
Subsidiary), substantially all the assets of which have been
acquired in any manner by the Company or any Subsidiary, realized
by such Person prior to the date of such acquisition;
(e) net earnings and losses of any Person (other than a
Subsidiary) with which the Company or a Subsidiary shall have
consolidated or which shall have merged into or with the Company or
a Subsidiary prior to the date of such consolidation or merger;
(f) net earnings of any business entity (other than a
Subsidiary) in which the Company or any Subsidiary has an ownership
interest unless such net earnings shall have actually been received
by the Company or such Subsidiary in the form of cash
distributions;
(g) any portion of the net earnings of any Subsidiary which
for any reason is unavailable for payment of dividends to the
Company or any other Subsidiary;
(h) earnings resulting from any reappraisal, revaluation or
write-up of assets;
(i) any deferred or other credit representing any excess of
the equity in any Subsidiary at the date of acquisition thereof
over the amount invested in such Subsidiary;
(j) any gain arising from the acquisition of any securities
of the Company or any Subsidiary;
(k) any reversal of any contingency reserve, except to the
extent that provision for such contingency reserve shall have been
made from income arising during such period; and
(l) any other extraordinary gain;
all determined in accordance with GAAP.
"Consolidated Total Assets" means as of the date of any
determination thereof, without duplication, total assets of the
Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Consolidated Total Capitalization" means as of the date of
any determination thereof, without duplication, the sum of (a)
Consolidated Total Indebtedness plus (b) Consolidated Adjusted Net
Worth.
"Consolidated Total Indebtedness" means as of the date of any
determination thereof, without duplication, all Indebtedness of the
Company and its Subsidiaries after eliminating all offsetting
debits and credits between the Company and its Subsidiaries and all
other items to be eliminated in the course of the preparation of
consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP.
"Default" means an event or condition the occurrence or
existence of which would, with the lapse of time or the giving of
notice or both, become an Event of Default.
"Default Rate" means that rate of interest that is the greater
of (i) 9.88% per annum above the rate of interest stated in clause
(a) of the first paragraph of the Notes or (ii) 2% over the rate of
interest publicly announced by Morgan Guaranty Trust Company of New
York in New York, New York as its "base" or "prime" rate.
"Environmental Laws" means any and all Federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions
relating to pollution and the protection of the environment or the
release of any materials into the environment, including but not
limited to those related to hazardous substances or wastes, air
emissions and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with
the Company under section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Foreign Pension Plan" means any plan, fund, or other similar
program established or maintained outside the United States of
America by the Company or any one or more of the Subsidiaries
primarily for the benefit of employees of the Company or such
Subsidiaries residing outside the United States of America, which
plan, fund or other similar program provides for retirement income
for such employees or a deferral of income for such employees in
contemplation of retirement and is not subject to ERISA or the
Code.
"GAAP" means generally accepted accounting principles as in
effect from time to time in the United States of America; provided,
that for purposes of determining compliance with the terms of this
Agreement, the Company will in any event amortize goodwill created
or acquired after the date of the Closing over a period not to
exceed twenty years.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State or other
political subdivision thereof, or
(ii) any other jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or which
asserts jurisdiction over any properties of the Company or any
Subsidiary, or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any
such government.
"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.
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.
"Hazardous Material" means any and all pollutants, toxic or
hazardous wastes or any other substances that might pose a hazard
to health or safety, the removal of which may be required or the
generation, manufacture, refining, production, processing,
treatment, storage, handling, transportation, transfer, use,
disposal, release, discharge, spillage, seepage, or filtration of
which is or shall be restricted, prohibited or penalized by any
applicable law (including, without limitation, asbestos, urea
formaldehyde foam insulation and polychlorinated biphenyls).
"holder" means, with respect to any Note, the Person in whose
name such Note is registered in the register maintained by the
Company pursuant to Section 13.1.
"Indebtedness" with respect to any Person means, at any time,
without duplication,
(a) its liabilities for borrowed money and its redemption
obligations in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable
arising in the ordinary course of business but including all
liabilities created or arising under any conditional sale or other
title retention agreement with respect to any such property);
(c) all liabilities appearing on its balance sheet in
accordance with GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien
with respect to any property owned by such Person (whether or not
it has assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or
instruments serving a similar function issued or accepted for its
account by banks and other financial institutions valued (i) in the
case of letters of credit supporting obligations for borrowed
money, at the face amount of such letters of credit and (ii) in the
case of other letters of credit, at the amount drawn on such
letters of credit at such time and not reimbursed;
(f) Swaps of such Person; and
(g) any Guaranty of such Person with respect to liabilities
of a type described in any of clauses (a) through (f) hereof.
Indebtedness of any Person shall include all obligations of
such Person of the character described in clauses (a) through (g)
to the extent such Person remains legally liable in respect thereof
notwithstanding that any such obligation is deemed to be
extinguished under GAAP, but shall not include Unfunded Pension
Liabilities of any Plan of the Company and its Subsidiaries, which
amount, as of December 31, 1996, was zero.
"Interest Expense" of the Company and its Subsidiaries for any
period means, without duplication, all (a) interest (including
capitalized interest and the interest component on Rentals on
Capital Leases) and all amortization of debt discount and expense
on any particular Indebtedness (including payment-in-kind, zero
coupon and other like securities) for which such calculations are
being made, (b) expenses, fees and commissions for letters of
credit and bankers' acceptances, and (c) the net interest cost of
Swaps.
"Insituform Linings Plc" mean Insituform Linings Plc, a United
Kingdom corporation.
"Institutional Investor" means (a) any original purchaser of
a Note, (b) any holder of a Note holding more than 2% of the
aggregate principal amount of the Notes then outstanding, and (c)
any bank, trust company, savings and loan association or other
financial institution, any pension plan, any investment company,
any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"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 acquisition of
shares of capital stock, Indebtedness or other obligations or
securities or by loan, advance, capital contribution or otherwise.
"Joint Venture" means any Person (other than a Subsidiary) in
which the Company or any Subsidiary holds, directly or indirectly
15% or more of any class of equity or voting interests.
"Lien" means, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any
interest or title of any vendor, lessor, lender or other secured
party to or of such Person under any conditional sale or other
title retention agreement or Capital Lease, upon or with respect to
any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all
similar arrangements).
"Make-Whole Amount" is defined in Section 8.7.
"Material" means material in relation to the business,
operations, affairs, financial condition, assets, properties, or
prospects of the Company and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations, affairs, financial condition, assets
or properties of the Company and its Subsidiaries taken as a whole,
or (b) the ability of the Company to perform its obligations under
this Agreement and the Notes, or (c) the validity or enforceability
of this Agreement or the Notes.
"Memorandum" is defined in Section 5.3.
"Midsouth Partners" means Midsouth Partners, a Tennessee
partnership.
"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 the
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.
"Multiemployer Plan" means any Plan that is a "multiemployer
plan" (as such term is defined in section 4001(a)(3) of ERISA).
"Noteholder Notice" is defined in Section 8.3(a).
"Notes" is defined in Section 1.
"Officer's Certificate" means a certificate of a Senior
Financial Officer or of any other officer of the Company whose
responsibilities extend to the subject matter of such certificate.
"Other Agreements" is defined in Section 2.
"Other Purchasers" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation,
limited liability company, association, trust, unincorporated
organization, or a government or agency or political subdivision
thereof.
"Plan" means an "employee benefit plan" (as defined in section
3(3) of ERISA) that is or, within the preceding five years, has
been established or maintained, or to which contributions are or,
within the preceding five years, have been made or required to be
made, by the Company or any ERISA Affiliate or with respect to
which the Company or any ERISA Affiliate may have any liability.
"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.
"Priority Debt" means, as of the date of any determination
thereof, without duplication, (a) all Indebtedness of Subsidiaries
(other than the Indebtedness owing to the Company or another
Wholly-owned Subsidiary) and (b) all Indebtedness of the Company
and its Subsidiaries secured by Liens within the limitations of
Section 10.5(l).
"property" or "properties" means, unless otherwise
specifically limited, real or personal property of any kind,
tangible or intangible, choate or inchoate.
"QPAM Exemption" means Prohibited Transaction Class Exemption
84-14 issued by the United States Department of Labor.
"Rentals" means and includes as of the date of any
determination thereof, without duplication, all fixed payments
(including as such all payments which the lessee is obligated to
make to the lessor on termination of the lease or surrender of the
property) payable by the Company or a Subsidiary, as lessee or
sublessee under a lease of real or personal property, but shall be
exclusive of any amounts required to be paid by the Company or a
Subsidiary (whether or not designated as rents or additional rents)
on account of maintenance, repairs, insurance, taxes and similar
charges. Fixed rents under any so-called "percentage leases" shall
be computed solely on the basis of the minimum rents, if any,
required to be paid by the lessee regardless of sales volume or
gross revenues.
"Required Holders" means, at any time, the holders of at least
66-2/3% in principal amount of the Notes at the time outstanding
(exclusive of Notes then owned by the Company or any of its
Affiliates).
"Responsible Officer" means any Senior Financial Officer and
any other officer of the Company or Subsidiary, as the case may be,
with responsibility for the administration of the relevant portion
of this agreement.
"Restricted Payments" is defined in Section 10.6.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Senior Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or comptroller of the
Company.
"Senior Indebtedness" means Indebtedness of the Company which
is not expressed to be subordinate or junior in rank to any other
Indebtedness of the Company.
"Senior Management Group" means, for purposes of any
determination of whether or not a Change of Control has occurred,
either of Jerome Kalishman and Anthony W. Hooper; provided that
after giving effect to the subject transaction such Person
beneficially owns (within the meaning of Section 13(d) of the
Exchange Act) ten percent (10%) or more of the Voting Stock of the
Company and is an "executive officer" of the Company within the
meaning of Rule 405 of the Securities Act as in effect on the date
of Closing.
"Specified Default" means (a) any event or condition under or
pursuant to Sections 7.1(a), 7.1(b), 7.2, 9.7 or 9.8 (which has
occurred and which, with the lapse of time or the giving of notice
or both become an Event of Default), (b) any Default in the
performance of or compliance with any term contained in any of
Sections 10.1 through 10.8 hereof, (c) any Default by the Company
in the payment of interest on any Note on the due date thereof or
(d) any other Default (other than any event, condition, default or
other term referred to in clauses (a), (b) or (c) hereof, provision
for which is made in said foregoing clauses (a), (b) or (c)) and
either a Responsible Officer has obtained actual knowledge of such
Default or has received notice thereof pursuant to Section 7.1(d)
hereof. The Company understands and agrees with the holders of the
Notes that the definition "Specified Default" has been created
solely for the purpose of the specified covenants where utilized in
this Agreement, and that such definition shall not modify or waive
any of the rights or remedies of the holders of the Notes or
obligations of the Company herein contained (except and to the
extent expressly stated in said Sections and then only as and to
the extent expressly contemplated by said definition as contained
in said Sections).
"Subsidiary" means, as to any Person, any corporation,
association or other business entity in which such Person or one or
more of its Subsidiaries or such Person and one or more of its
Subsidiaries owns sufficient equity or voting interests to enable
it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons
performing similar functions) of such entity, and any partnership
or joint venture if more than a 50% interest in the profits or
capital thereof is owned by such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries
(unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one
or more of its Subsidiaries), provided, however, that (y) for all
purposes of this Agreement other than Sections 5, 7.1 and 20, and
subject to the provisions of Section 7.4, the term "Subsidiary"
shall not include (1) Midsouth Partners and (2) Insituform Linings
Plc, unless and until the Company or any Subsidiary shall acquire
the entire interest in such companies, respectively, and (z) for
all purposes of this Agreement, the term "Subsidiary" shall not
include dormant Persons otherwise constituting "Subsidiaries"
pursuant to the terms hereof which, taken as a group, (1) own less
than 1.0% of Consolidated Total Assets and (2) contribute less than
1.0% of Consolidated Net Earnings in any fiscal year. Unless the
context otherwise clearly requires, any reference to a "Subsidiary"
is a reference to a Subsidiary of the Company.
"Subsidiary Guaranty" means any Guaranty of any Subsidiary of
the Company with respect to the payment of the Notes and all other
sums due and owing by the Company under this Agreement, which
Guaranty shall be in form and substance reasonably satisfactory to
the Required Holders.
"Swaps" means, with respect to any Person, without
duplication, payment obligations with respect to interest rate
swaps, currency swaps and similar obligations obligating such
Person to make payments, whether periodically or upon the happening
of a contingency. For the purposes of this Agreement, the amount of
the obligation under any Swap shall 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" of any Plan means the amount, if
any, by which the actuarial present value of the accumulated plan
benefits under the Plan as of the close of its most recent plan
year, determined in accordance with statement of Financial
Accounting Standards No. 35, based upon the actuarial assumptions
used by the Plan's actuary in the most recent annual valuation of
the Plan, exceeds the fair market value of the assets allocable
thereto, determined in accordance with Section 412 of the Code.
"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 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
one hundred percent (100%) of all of the equity interests (except
directors' qualifying shares) and voting interests of which are
owned by any one or more of the Company and the Company's other
Wholly-Owned Subsidiaries at such time.
This Note has not been registered under the Securities Act of 1933,
as amended, and may not be transferred in violation of such Act.
[Form of Note]
Insituform Technologies, Inc.
7.88% Senior Note, Series A, due February 14, 2007
No. _________ Date
$____________ PPN 457667 A* 4
For Value Received, the undersigned, Insituform Technologies,
Inc. (herein called the "Company"), a corporation organized and
existing under the laws of the State of Delaware, hereby promises
to pay to ________________, or registered assigns, the principal
sum of ________________ Dollars on February 14, 2007, with interest
(computed on the basis of a 360-day year of twelve 30-day months)
(a) on the unpaid balance thereof at the rate of 7.88% per annum
from the date hereof, payable semiannually, on the fourteenth day
of February and August in each year, commencing with August 14,
1997 until the principal hereof shall have become due and payable,
and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue
payment of interest and any overdue payment of any Make-Whole
Amount (as defined in the Note Purchase Agreements referred to
below), payable semiannually as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time
to time equal to the greater of (i) 9.88% or (ii) 2% over the rate
of interest publicly announced by Morgan Guaranty Trust Company of
New York from time to time in New York, New York as its "base" or
"prime" rate.
Payments of principal of, interest on and any Make-Whole
Amount with respect to this Note are to be made in lawful money of
the United States of America at Chicago, Illinois or at such other
place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreements
referred to below.
This Note is one of a series of Senior Notes, Series A (herein
called the "Notes"), issued pursuant to separate Note Purchase
Agreements, each dated as of February 14, 1997 (as from time to
time amended, the "Note Purchase Agreements"), between the Company
and the respective Purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its
acceptance hereof, (1) to have agreed to the confidentiality
provisions set forth in Section 20 of the Note Purchase Agreements
and (2) to have made the representation set forth in Section 6.2 of
the Note Purchase Agreements.
As more fully provided in Section 2.2 of the Note Purchase
Agreements, the Company may issue and sell additional series of
unsecured promissory notes ranking pari passu with the Notes and,
in connection therewith, may incorporate by reference provisions of
the Note Purchase Agreements or use the form of the Note Purchase
Agreements as the basis for the issuance of such additional notes.
Exhibit 1
(to Note Purchase Agreement)
Such incorporation by reference or use of the form of the Note
Purchase Agreements shall not dilute or otherwise affect the
relative priority or other rights of the holders of the Notes or in
any way affect the percentages of the Notes required to take action
under the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note
Purchase Agreements, upon surrender of this Note for registration
of transfer, duly endorsed, or accompanied by a written instrument
of transfer duly executed, by the registered holder hereof or such
holder's attorney duly authorized in writing, a new Note for a like
principal amount will be issued to, and registered in the name of,
the transferee. Prior to due presentment for registration of
transfer, the Company may treat the person in whose name this Note
is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company will not be
affected by any notice to the contrary.
The Company will make required prepayments of principal on the
dates and in the amounts specified in the Note Purchase Agreements.
This Note is also subject to optional prepayment, in whole or from
time to time in part, at the times and on the terms specified in
the Note Purchase Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase
Agreements, occurs and is continuing, the principal of this Note
may be declared or otherwise become due and payable in the manner,
at the price (including any applicable Make-Whole Amount) and with
the effect provided in the Note Purchase Agreements.
This Note shall be construed and enforced in accordance with,
and the rights and parties shall be governed by, the law of the
State of Illinois, excluding choice-of-law principles of the law of
such State which would require application of the laws of the
jurisdiction other than such State.
INSITUFORM TECHNOLOGIES, INC.
By
----------------------------------
[Title]
Description of Closing Opinion of Counsel to the Company
The closing opinion of Krugman, Chapnick & Grimshaw, counsel
for the Company, which is called for by Section 4.4 of the Note
Purchase Agreements, shall be dated the date of Closing and
addressed to you and the Other Purchasers, shall be satisfactory in
scope and form to you and the Other Purchasers and shall be to the
effect that:
1. The Company is a corporation, duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, has the corporate power and the corporate authority to
execute and perform the Note Purchase Agreements and to issue the
Notes and has the full corporate power and the corporate authority
to conduct the activities in which it is now engaged and is duly
licensed or qualified and is in good standing as a foreign
corporation in each jurisdiction in which the character of the
properties owned or leased by it or the nature of the business
transacted by it makes such licensing or qualification necessary.
2. Each Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and is duly licensed or qualified and is in good
standing in each jurisdiction in which the character of the
properties owned or leased by it or the nature of the business
transacted by it makes such licensing or qualification necessary
and all of the issued and outstanding shares of capital stock of
each such Subsidiary have been duly issued, are fully paid and
non-assessable and are owned by the Company, by one or more
Subsidiaries, or by the Company and one or more Subsidiaries.
3. Each Note Purchase Agreement has been duly authorized by
all necessary corporate action on the part of the Company, has been
duly executed and delivered by the Company and constitutes the
legal, valid and binding contract of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency or
similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
4. The Notes have been duly authorized by all necessary
corporate action on the part of the Company, have been duly
executed and delivered by the Company and constitute the legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency or
similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
5. No approval, consent or withholding of objection on the
part of, or filing, registration or qualification with, any
governmental body, Federal, state or local, is necessary in
connection with the execution, delivery and performance of the Note
Purchase Agreements or the Notes.
Exhibit 4.4(a)
(to Note Purchase Agreement)
6. The issuance and sale of the Notes and the execution,
delivery and performance by the Company of the Note Purchase
Agreements do not conflict with or result in any breach of any of
the provisions of or constitute a default under or result in the
creation or imposition of any Lien upon any of the property of the
Company pursuant to the provisions of the Certificate of
Incorporation or By-laws of the Company or any agreement or other
instrument known to such counsel to which the Company is a party or
by which the Company may be bound.
7. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Purchase Agreements does
not, under existing law, require the registration of the Notes
under the Securities Act of 1933, as amended, or the qualification
of an indenture under the Trust Indenture Act of 1939, as amended.
8. The issuance of the Notes and the use of the proceeds of
the sale of the Notes in accordance with the provisions of and
contemplated by the Note Purchase Agreements do not violate or
conflict with Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System.
9. There is no litigation pending or, to the best knowledge
of such counsel, threatened which in such counsel's opinion could
reasonably be expected to have a materially adverse effect on the
Company's business or assets or which would impair the ability of
the Company to issue and deliver the Notes or to comply with the
provisions of the Note Purchase Agreements.
The opinion of Krugman, Chapnick & Grimshaw shall cover such
other matters relating to the sale of the Notes as you and the
Other Purchasers may reasonably request. With respect to matters of
fact on which such opinion is based, such counsel shall be entitled
to rely on appropriate certificates of public officials and
officers of the Company.
Form of Opinion of Special Counsel
to the Purchasers
The closing opinion of Chapman and Cutler, special counsel to
the Purchasers, called for by Section 4.4 of the Note Purchase
Agreements, shall be dated the date of Closing and addressed to you
and the Other Purchasers, shall be satisfactory in form and
substance to you and the Other Purchasers and shall be to the
effect that:
1. The Company is a corporation, validly existing and in
good standing under the laws of the State of Delaware and has the
corporate power and the corporate authority to execute and deliver
the Note Purchase Agreements and to issue the Notes.
2. The Note Purchase Agreements have been duly authorized by
all necessary corporate action on the part of the Company, have
been duly executed and delivered by the Company and constitute the
legal, valid and binding contracts of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights
generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding in
equity or at law).
3. The Notes have been duly authorized by all necessary
corporate action on the part of the Company, have been duly
executed and delivered by the Company and constitute the legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights
generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding in
equity or at law).
4. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Purchase Agreements does
not, under existing law, require the registration of the Notes
under the Securities Act of 1933, as amended, or the qualification
of an indenture under the Trust Indenture Act of 1939, as amended.
The opinion of Chapman and Cutler shall also state that the
opinion of Krugman, Chapnick & Grimshaw is satisfactory in scope
and form to Chapman and Cutler and that, in their opinion, you and
the Other Purchasers are justified in relying thereon.
In rendering the opinion set forth in paragraph 1 above,
Chapman and Cutler may rely solely upon an examination of the
Certificate of Incorporation certified by, and a certificate of
good standing of the Company from, the Secretary of State of the
State of Delaware, the By-laws of the Company and the general
business corporation law of the State of Delaware. The opinion of
Exhibit 4.4(b)
(to Note Purchase Agreement)
Chapman and Cutler is limited to the laws of the State of Illinois,
the general business corporation law of the State of Delaware and
the Federal laws of the United States.
With respect to matters of fact upon which such opinion is
based, Chapman and Cutler may rely on appropriate certificates of
public officials and officers of the Company.
GUARANTY AGREEMENT
Dated as of
---------------------
By
[SUBSIDIARY GUARANTOR]
Re: $110,000,000 7.88% Senior Notes, Series A,
Due February , 2007
of
INSITUFORM TECHNOLOGIES, INC.
EXHIBIT 9.8(a)
(to Note Purchase Agreement)
TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
Parties 1
Recitals 1
SECTION 1. Definitions 1
SECTION 2. GUARANTY OF NOTES AND NOTE AGREEMENT 2
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE 2
SECTION 4. GENERAL PROVISIONS RELATING TO THE
GUARANTY 3
SECTION 5. REPRESENTATIONS AND WARRANTIES OF
THE GUARANTOR 7
SECTION 6. GUARANTOR COVENANTS 8
Section 6.1. Compliance with Law 8
Section 6.2. Insurance 9
Section 6.3. Maintenance of Properties 9
Section 6.4. Payment of Taxes and Claims 9
Section 6.5. Corporate Existence, etc. 9
SECTION 7. SUBMISSION TO JURISDICTION 10
SECTION 8. JUDGMENTS 10
SECTION 9. NOTICES 10
SECTION 10. AMENDMENTS AND MODIFICATIONS;
SOLICITATION OF NOTEHOLDERS 11
SECTION 11. PROCEEDS 12
SECTION 12. MISCELLANEOUS 12
Signatures 13
-i-
GUARANTY AGREEMENT
Re: $110,000,000 7.88% Senior Notes, Series A,
Due January 31, 2007;
of
INSITUFORM TECHNOLOGIES, INC.
This GUARANTY AGREEMENT (the or this "Guaranty") is dated as
of , by [Subsidiary Guarantor], a corporation
organized under the laws of (the "Guarantor").
RECITALS:
A. The Guarantor is a Subsidiary of Insituform Technologies,
Inc., a Delaware corporation (the "Company").
B. The Company has entered into separate and several Note
Purchase Agreements each dated as of February , 1997
(collectively, the "Note Purchase Agreements") between the Company
and each of the Purchasers named on Schedule A attached to the Note
Purchase Agreements (together with their successors and assigns,
the "Noteholders"), providing for, among other things, the issue
and sale by the Company to the Noteholders of $110,000,000
aggregate principal amount of its 7.88% Senior Notes, Series A, due
February , 2007 (the "Notes").
C. Pursuant to Section 9.8 of the Note Purchase Agreements,
upon which the Noteholders relied at the time of the original
issuance of the Notes, and upon which each subsequent holder of the
Notes relied at the time of its subsequent acquisition of the
Notes, the Company is required to cause the Guarantor to enter into
this Guaranty.
D. The Guarantor is part of an affiliated group of
corporations with the Company and will receive substantial direct
and indirect benefit by reason of the original issue and sale by
the Company of the Notes.
NOW, THEREFORE, in consideration of the premises and in
further consideration of the sum of Ten Dollars ($10.00) paid to
the Guarantor by the Noteholders, the receipt whereof is hereby
acknowledged, the Guarantor does hereby covenant and agree as
follows:
SECTION 1. DEFINITIONS.
Unless the context otherwise requires, capitalized terms used
herein shall have the meanings assigned thereto in the Note
Purchase Agreements and such definitions shall be equally
applicable to both the singular and plural forms of any of the
terms so defined.
SECTION 2. GUARANTY OF NOTES AND NOTE AGREEMENT.
(a) Subject to Section 2(b) below, the Guarantor does hereby
irrevocably, absolutely and unconditionally guaranty unto the
Noteholders (i) the full and prompt payment of the principal of,
premium, if any, and interest on the Notes from time to time
outstanding, as and when such payments shall become due and
payable, whether by lapse of time, upon redemption or prepayment,
by extension or by acceleration or declaration or otherwise
(including (to the extent legally enforceable) interest due on
overdue payments of principal, premium, if any, or interest at the
rate set forth in the Notes) in coin or currency of the United
States of America which at the time of payment or demand therefor
shall be legal tender for the payment of public and private debts,
(ii) the full and prompt performance and observance by the Company
of each and all of the obligations, covenants and agreements
required to be performed or owned by the Company under the terms of
the Notes and the Note Purchase Agreements, and (iii) the full and
prompt payment, upon demand by any Noteholder of all costs and
expenses, legal or otherwise (including reasonable attorneys'
fees), if any, as shall have been expended or incurred in the
protection or enforcement of any right or privilege under the Notes
or the Note Purchase Agreements or in the protection or enforcement
of any rights, privileges or liabilities under this Guaranty or in
any consultation or action in connection therewith or herewith and
in each and every case irrespective of the validity, regularity, or
enforcement of any of the Notes or the Note Purchase Agreements or
any of the terms thereof or of any other like circumstance or
circumstances.
(b) The obligations of the Guarantor hereunder shall be
limited to the lesser of (i) the obligations of the Company
guaranteed hereunder, or (ii) a maximum aggregate amount equal to
the largest amount that would not render its obligations hereunder
subject to avoidance as a fraudulent transfer or conveyance under
Section 548 of Title 11 of the United States Code or any applicable
provisions of comparable state law (collectively, the "Fraudulent
Transfer Laws"), if and to the extent the Guarantor (or a trustee
on its behalf) has properly invoked the protections of the
Fraudulent Transfer Laws in each case after giving effect to all
other liabilities of the Guarantor, contingent or otherwise, that
are relevant under the Fraudulent Transfer Laws.
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE.
This is a guaranty of payment and performance and the
Guarantor hereby waives, to the fullest extent permitted by law,
any right to require that any action on or in respect of any Note
or the Note Purchase Agreements be brought against the Company or
that resort be had to any direct or indirect security for the Notes
or for this Guaranty or any other remedy. Any Noteholder may, at
its option, proceed hereunder against the Guarantor in the first
instance to collect monies when due, the payment of which is
guaranteed hereby, without first proceeding against the Company or
any other Person and without first resorting to any direct or
indirect security for the Notes or for this Guaranty or any other
remedy. The liability of the Guarantor hereunder shall in no way be
affected or impaired by any acceptance by any Noteholder of any
direct or indirect security for, or other guaranties of, any
indebtedness, liability or obligation of the Company or any other
Person to any Noteholder or by any failure, delay, neglect or
omission by the Noteholder to realize upon or protect any such
indebtedness, liability or obligation or any notes or other
instruments evidencing the same or any direct or indirect security
therefor or by any approval, consent, waiver, or other action
taken, or omitted to be taken by any such Noteholder.
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY.
(a) The Guarantor hereby consents and agrees that any
Noteholder or Noteholders from time to time, with or without any
further notice to or assent from the Guarantor, may, without in any
manner affecting the liability of the Guarantor under this
Guaranty, upon such terms and conditions as any such Noteholder may
deem advisable:
(i) extend in whole or in part (by renewal or
otherwise), modify, change, compromise, release or extend the
duration of the time for the performance or payment of any
indebtedness, liability or obligation of the Company or any
other Person secondarily or otherwise liable for any
indebtedness, liability or obligations of the Company on the
Notes, or waive any Default with respect thereto, or waive,
modify, amend or change any provision of any other instruments
and this Guaranty; or
(ii) sell, release, surrender, modify, impair, exchange
or substitute any and all property, of any nature and from
whomsoever received, held by, or for the benefit of, any such
Noteholder as direct or indirect security for the payment or
performance of any indebtedness, liability or obligation of
the Company or any other Person secondarily or otherwise
liable for any indebtedness, liability or obligation of the
Company on the Notes; or
(iii) settle, adjust or compromise any claim of the
Company against any other Person secondarily or otherwise
liable for any indebtedness, liability or obligation of the
Company on the Notes.
The Guarantor hereby ratifies and confirms any such extension,
renewal, change, sale, release, waiver, surrender, exchange,
modification, amendment, impairment, substitution, settlement,
adjustment or compromise and that the same shall be binding upon
it, and hereby waives, to the fullest extent permitted by law, any
and all defenses, counterclaims or offsets which it might or could
have by reason thereof, it being understood that the Guarantor
shall at all times be bound by this Guaranty and remain liable
hereunder.
(b) The Guarantor hereby waives, to the fullest extent
permitted by law: (i) notice of acceptance of this Guaranty by the
Noteholders or of the creation, renewal or accrual of any liability
of the Company, present or future, or of the reliance of such
Noteholders upon this Guaranty (it being understood that every
indebtedness, liability and obligation described in Section 1 shall
conclusively be presumed to have been created, contracted or
incurred in reliance upon the execution of this Guaranty); (ii)
demand of payment by any Noteholder from the Company or any other
Person indebted in any manner on or for any of the indebtedness,
liabilities or obligations hereby guaranteed; and (iii) presentment
for the payment by any Noteholder or any other Person of the Notes
or any other instrument, protest thereof and notice of its dishonor
to any party thereto and to the Guarantor. The obligations of the
Guarantor under this Guaranty and the rights of any Noteholder to
enforce such obligations by any proceedings, whether by action at
law, suit in equity or otherwise, shall not be subject to any
reduction, limitation, impairment or termination, whether by reason
of any claim of any character whatsoever or otherwise and shall not
be subject to any defense, set-off, counterclaim (other than any
compulsory counterclaim), recoupment or termination whatsoever.
(c) The obligations of the Guarantor hereunder shall be
binding upon the Guarantor and its successors and assigns, and
shall remain in full force and effect irrespective of:
(i) the genuineness, validity, regularity or
enforceability of the Notes, the Note Purchase Agreements or
any other instruments relating thereto or any of the terms of
any thereof, the continuance of any obligation on the part of
the Company or any other Person on the Notes or under the Note
Purchase Agreements or the power or authority or the lack of
power or authority of the Company to issue the Notes or
execute and deliver the Note Purchase Agreements or to perform
any of its obligations thereunder or the existence or
continuance of the Company or any other Person as a legal
entity; or
(ii) any default, failure or delay, willful or otherwise,
in the performance by the Company or any other Person of any
obligations of any kind or character whatsoever of the Company
or any other Person (including, without limitation, the
obligations and undertakings of the Company or any other
Person under the Notes or the Note Purchase Agreements); or
(iii) any creditors' rights, bankruptcy, receivership or
other insolvency proceeding of the Company or any other Person
or in respect of the property of the Company or any other
Person or any merger, consolidation, reorganization,
dissolution, liquidation or winding up of the Company or any
other Person; or
(iv) impossibility or illegality of performance on the
part of the Company or any other Person of its obligations
under the Notes, the Note Purchase Agreements or any other
instruments; or
(v) in respect of the Company or any other Person, any
change of circumstances, whether or not foreseen or
foreseeable, whether or not imputable to the Company or any
other Person, or other impossibility of performance through
fire, explosion, accident, labor disturbance, floods,
droughts, embargoes, wars (whether or not declared), civil
commotions, acts of God or the public enemy, delays or failure
of suppliers or carriers, inability to obtain materials,
action of any Federal or state regulatory body or agency,
change of law or any other causes affecting performance, or
any other force majeure, whether or not beyond the control of
the Company or any other Person and whether or not of the kind
hereinbefore specified; or
(vi) any attachment, claim, demand, charge, Lien, order,
process, encumbrance or any other happening or event or
reason, similar or dissimilar to the foregoing, or any
withholding or diminution at the source, by reason of any
taxes, assessments, expenses, indebtedness, obligations or
liabilities of any character, foreseen or unforeseen, and
whether or not valid, incurred by or against any Person, or
any claims, demands, charges or Liens of any nature, foreseen
or unforeseen, incurred by any Person, or against any sums
payable under this Guaranty, so that such sums would be
rendered inadequate or would be unavailable to make the
payments herein provided; or
(vii) any order, judgment, decree, ruling or regulation
(whether or not valid) of any court of any nation or of any
political subdivision thereof or any body, agency, department,
official or administrative or regulatory agency of any thereof
or any other action, happening, event or reason whatsoever
which shall delay, interfere with, hinder or prevent, or in
any way adversely affect, the performance by any party of its
respective obligations under the Notes, the Note Purchase
Agreements or any instrument relating thereto; or
(viii) the failure of the Guarantor to receive any
benefit from or as a result of its execution, delivery and
performance of this Guaranty; or
(ix) any failure or lack of diligence in collection or
protection, failure in presentment or demand for payment,
protest, notice of protest, notice of Default and of
nonpayment, any failure to give notice to the Guarantor of
failure of the Company or any other Person to keep and perform
any obligation, covenant or agreement under the terms of the
Notes or the Note Purchase Agreements or failure to resort for
payment to the Company or any other Person or to any other
guaranty or to any property, security, Liens or other rights
or remedies; or
(x) the acceptance of any additional security or other
guaranty, the advance of additional money to the Company or
any other Person, the renewal or extension of the Notes or
amendments, modifications, consents or waivers with respect to
the Notes or the Note Purchase Agreements, or the sale,
release, substitution or exchange of any security for the
Notes; or
(xi) any defense whatsoever that the Company or any other
Person might have to the payment of the Notes (principal,
premium, if any, or interest), other than payment in cash
thereof, or to the performance or observance of any of the
provisions of the Note Purchase Agreements, whether through
the satisfaction or purported satisfaction by the Company or
any other Person of its debts due to any cause such as
bankruptcy, insolvency, receivership, merger, consolidation,
reorganization, dissolution, liquidation, winding-up or
otherwise; or
(xii) any act or failure to act with regard to the Notes,
the Note Purchase Agreements or anything which might vary the
risk of the Guarantor; or
(xiii) any other circumstance which might otherwise
constitute a defense available to, or a discharge of the
Guarantor in respect of the obligations of the Guarantor under
this Guaranty;
provided, that the specific enumeration of the above-mentioned
acts, failures or omissions shall not be deemed to exclude any
other acts, failures or omissions, though not specifically
mentioned above, it being the purpose and intent of this Guaranty
that the obligations of the Guarantor shall be absolute and
unconditional and shall not be discharged, impaired or varied
except by the payment of the principal of, premium, if any, and
interest on the Notes in accordance with their respective terms
whenever the same shall become due and payable as in the Notes
provided and all other sums due and payable under the Note Purchase
Agreements, at the place specified in and all in the manner and
with the effect provided in the Notes and the Note Purchase
Agreements, as amended or modified from time to time. Without
limiting the foregoing, it is understood that repeated and
successive demands may be made and recoveries may be had hereunder
as and when, from time to time, the Company shall Default under the
terms of the Notes or the Note Purchase Agreements and that
notwithstanding recovery hereunder for or in respect of any given
Default or Defaults by the Company under the Notes or the Note
Purchase Agreements, this Guaranty shall remain in full force and
effect and shall apply to each and every subsequent Default.
(d) Subject to the provisions of the Note Purchase
Agreements, all rights of any Noteholder may be transferred or
assigned at any time and shall be considered to be transferred or
assigned at any time or from time to time upon the transfer of such
Note whether with or without the consent of or notice to the
Guarantor under this Guaranty or the Company.
(e) To the extent of any payments made under this Guaranty,
the Guarantor shall be subrogated to the rights of the Noteholder
upon whose Note such payment was made, but the Guarantor covenants
and agrees that such right of subrogation shall be subordinate in
right of payment to the rights of any Noteholder for which full
payment has not been made or provided for and, to that end, the
Guarantor agrees not to claim or enforce any such right of
subrogation or any right of set-off or any other right which may
arise on account of any payment made by the Guarantor in accordance
with the provisions of this Guaranty, including, without
limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any
claim or remedy of any Noteholder or Noteholders against the
Company, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including, without
limitation, the right to take or receive from the Company, directly
or indirectly, in cash or other property or by set-off or in any
other manner, payment or security on account of such claim, remedy
or right unless and until 366 days after all of the Notes and all
other sums due and payable under the Note Purchase Agreements have
been fully paid and discharged. If any amount shall be paid to the
Guarantor in violation of the preceding sentence at any time prior
to the indefeasible cash payment in full of the Notes and all other
amounts payable under the Note Purchase Agreements and this
Guaranty, such amounts shall be held in trust for the benefit of
the Noteholders and shall forthwith be paid to the Noteholders to
be credited and applied to the amounts due or to become due with
respect to the Notes and all other amounts payable under the Note
Purchase Agreements and this Guaranty, whether matured or
unmatured. The Guarantor acknowledges that it has received direct
and indirect benefits from the financing arrangements contemplated
by the Note Purchase Agreements and that the waiver set forth in
this subsection is knowingly made as a result of the receipt of
such benefits.
(f) The Guarantor agrees that to the extent the Company or
any other Person makes any payment on any Note, which payment or
any part thereof is subsequently invalidated, voided, declared to
be fraudulent or preferential, set aside, recovered, rescinded or
is required to be retained by or repaid to a trustee, liquidator,
receiver, or any other Person under any bankruptcy code, common
law, or equitable cause, then and to the extent of such payment,
the obligation or the part thereof intended to be satisfied shall
be revived and continued in full force and effect with respect to
the Guarantor's obligations hereunder, as if said payment had not
been made. The liability of the Guarantor hereunder shall not be
reduced or discharged, in whole or in part, by any payment to any
Noteholder from any source that is thereafter paid, returned or
refunded in whole or in part by reason of the assertion of a claim
of any kind relating thereto, including, but not limited to, any
claim for breach of contract, breach of warranty, preference,
illegality, invalidity, or fraud asserted by any account debtor or
by any other Person.
(g) No Noteholder shall be under any obligation (i) to
marshal any assets in favor of the Guarantor or in payment of any
or all of the liabilities of the Company under or in respect of the
Notes or the obligations of the Guarantor hereunder or (ii) to
pursue any other remedy that the Guarantor may or may not be able
to pursue itself and that may lighten the Guarantor's burden or any
right to which the Guarantor hereby expressly waives.
(h) The obligations of the Guarantor with respect to the
guaranty and all other obligations under this Guaranty of the
Guarantor are direct and unsecured obligations of the Guarantor
ranking pari passu as against the assets of the Guarantor and pari
passu with all other present and future Indebtedness of the
Guarantor which is not expressed to be subordinate or junior in
rank to any other Indebtedness of the Guarantor (except to the
extent that the foregoing is not true by virtue of, and solely by
virtue of, Liens expressly permitted by the Note Purchase
Agreements securing other Indebtedness).
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR.
The Guarantor represents and warrants to you as follows:
(a) Organization; Power and Authority. The Guarantor is duly
organized, validly existing and, if a corporation, in good standing
under the laws of its jurisdiction of incorporation and is duly
qualified as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is required by law, other
than those jurisdictions as to which the failure to be so qualified
or in good standing could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The
Guarantor has the corporate or other power and authority to own or
hold under lease the properties it purports to own or hold under
lease, to transact the business it transacts and proposes to
transact, to execute and deliver this Guaranty and to perform the
provisions hereof.
(b) Authorization, etc. This Guaranty has been duly
authorized by all necessary corporate or other action under its
organizational and governing instruments on the part of the
Guarantor, and this Guaranty constitutes a legal, valid and binding
obligation of the Guarantor enforceable against the Guarantor in
accordance with its terms, except as such enforceability may be
limited by (1) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (2) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(c) Compliance with Laws, Other Instruments, etc. (1) The
execution, delivery and performance by the Guarantor of this
Guaranty will not (i) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien
in respect of any property of the Guarantor or any subsidiary
thereof under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws,
or any other agreement or instrument to which the Guarantor or any
subsidiary thereof is bound or by which the Guarantor or any
subsidiary thereof or any of their respective properties may be
bound or affected, (ii) conflict with or result in a breach of any
of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental
Authority applicable to the Guarantor or any subsidiary thereof or
(iii) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the
Guarantor or any subsidiary thereof, other than any contravention,
breach, default, creation, conflict or violation under clauses (i)
through (iii), inclusive, of this Section 5(c) which individually
or in the aggregate could reasonably be expected to have a Material
Adverse Effect.
(2) All obligations of the Guarantor under this Guaranty
are direct and unsecured obligations of the Guarantor ranking
pari passu with all other existing unsecured Indebtedness of
the Guarantor (actual or contingent) which is not expressed to
be subordinated or junior in rank to any other unsecured
Indebtedness of the Guarantor.
(d) Governmental Authorizations, etc. No consent, approval or
authorization of, or registration, filing or declaration with, any
Governmental Authority is required in connection with the
execution, delivery or performance by the Guarantor of this
Guaranty.
SECTION 6. GUARANTOR COVENANTS.
Section 6.1. Compliance with Law. The Guarantor will and will
cause each of its subsidiaries to comply with all laws, ordinances
or governmental rules or regulations to which each of them is
subject, including, without limitation, Environmental Laws and
ERISA, and will obtain and maintain in effect all licenses,
certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective
properties or to the conduct of their respective businesses, in
each case to the extent necessary to ensure that non-compliance
with such laws, ordinances or governmental rules or regulations or
failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental
authorizations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 6.2. Insurance. The Guarantor will and will cause each
of its Subsidiaries to maintain, with financially sound and
reputable insurers, insurance with respect to their respective
properties and businesses against such casualties and
contingencies, of such types, on such terms and in such amounts
(including deductibles, co-insurance and self-insurance, if
adequate reserves are maintained with respect thereto) as is
customary in the case of entities of established reputations
engaged in the same or a similar business and similarly situated.
Section 6.3. Maintenance of Properties. The Guarantor will and
will cause each of its Subsidiaries to maintain and keep, or cause
to be maintained and kept, their respective Material properties in
good repair, working order and condition (other than ordinary wear
and tear), so that the business carried on in connection therewith
may be properly conducted at all times; provided that this Section
shall not prevent the Guarantor or any subsidiary from
discontinuing the operation and the maintenance of any of its
properties if such discontinuance is desirable in the conduct of
its business and the Guarantor has concluded that such
discontinuance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 6.4. Payment of Taxes and Claims. The Guarantor will
and will cause each of its subsidiaries to file all tax returns
required to be filed in any jurisdiction and to pay and discharge
all taxes shown to be due and payable on such returns and all other
taxes, assessments, governmental charges, or levies imposed on them
or any of their properties, assets, income or franchises, to the
extent such taxes and assessments have become due and payable and
before they have become delinquent and all claims for which sums
have become due and payable that have or might become a Lien on
properties or assets of the Guarantor or any subsidiary thereof;
provided that neither the Guarantor nor any subsidiary need pay any
such tax or assessment or claims if (a) the amount, applicability
or validity thereof is contested by the Guarantor or such
subsidiary on a timely basis in good faith and in appropriate
proceedings, and the Guarantor or a subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of
the Guarantor or such subsidiary or (b) the nonpayment of all such
taxes and assessments in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
Section 6.5. Corporate Existence, etc. The Guarantor will at
all times preserve and keep in full force and effect its corporate
or other existence. The Guarantor will at all times preserve and
keep in full force and effect the corporate existence of each of
its Subsidiaries and all rights and franchises of the Guarantor and
its subsidiaries unless, in the good faith judgment of the
Guarantor, the termination of or failure to preserve and keep in
full force and effect such right or franchise could not,
individually or in the aggregate, have a Material Adverse Effect.
SECTION 7. SUBMISSION TO JURISDICTION.
The Guarantor hereby irrevocably submits and consents to the
nonexclusive jurisdiction of the Federal court located within the
Northern District of the State of Illinois (or if such court lacks
jurisdiction, the state courts located therein) and irrevocably
agrees that all actions or proceedings relating to this Guaranty
may be litigated in such courts, and the Guarantor waives any
objection which it may have based on improper venue or forum non
conveniens to the conduct of any proceeding in any such court and
waives personal service of any and all process upon it, and
consents that all such service of process be made by delivery to it
at the address set forth in Section 9 or to its agent referred to
below at such agent's address set forth below and that service so
made shall be deemed to be completed upon actual receipt. The
Guarantor hereby irrevocably appoints the Company as its agent for
the purpose of accepting service of any process within the State of
Illinois. Nothing contained in this Section 7 shall affect the
right of any Noteholder to serve legal process in any other manner
permitted by law or to bring any action or proceeding in the courts
of any jurisdiction against the Guarantor or to enforce a judgment
obtained in the courts of any other jurisdiction.
SECTION 8. JUDGMENTS.
The Guarantor agrees that any payment made by the Guarantor to
any Noteholder or for the account of any such Noteholder in respect
of any amount required to be paid by the Guarantor in lawful
currency of the United States of America, which payment is made in
any currency other than lawful currency of the United States of
America, whether pursuant to any judgment or order of the court or
tribunal or otherwise, shall constitute a discharge of the
obligations of the Guarantor only to the extent of the amount of
lawful currency of the United States of America which may be
purchased with such other currency on the day of payment. The
Guarantor covenants and agrees that it shall, as a separate and
independent obligation, which shall not be merged in any such
judgment or order, pay or cause to be paid the amount not so
discharged and required to be paid in lawful currency of the United
States of America.
SECTION 9. NOTICES.
All communications provided for herein shall be in writing,
and (a) if to the Company or the Guarantor, delivered or mailed
prepaid by registered or certified mail or express commercial air
courier, or by facsimile communication (prompt express commercial
air courier delivery of hard copy to follow such facsimile
communication), or (b) if to any Noteholder, delivered or mailed
prepaid by express commercial air courier, or by facsimile
communication (prompt express commercial air courier delivery of
hard copy to follow such facsimile communication), in any case at
the addresses set forth below, or to such other address as such
person may designate to the other persons named below by notice
given in accordance with this Section 9:
If to any Noteholder: To its address for notices appearing
in Schedule A to the Note Purchase
Agreements, as the case may be
If to the Guarantor:
-------------------------------
-------------------------------
Attention:---------------------
If to the Company: Insituform Technologies, Inc.
1770 Kirby Parkway, Suite 300
Memphis, Tennessee 38138
Attention: President
SECTION 10. AMENDMENTS AND MODIFICATIONS;
SOLICITATION OF NOTEHOLDERS.
(a) This Guaranty may only be amended and/or modified by an
instrument in writing signed by the Guarantor and by the Noteholder
or Noteholders of at least 66 2/3% in aggregate principal amount of
the Notes then outstanding; provided, that without the written
consent of the Noteholders of all of the Notes then outstanding, no
such waiver, modification, alteration or amendment shall be
effective which will reduce the scope of the guaranty set forth in
this Guaranty or amend the requirements of Sections 2, 3, 4 or 8
hereof or amend this Section 10. No such amendment or modification
shall extend to or affect any obligation not expressly amended or
modified or impair any right consequent thereon.
(b) The Guarantor agrees that it will not solicit, request or
negotiate for or with respect to any proposed waiver or amendment
of any of the provisions of this Guaranty, the Note Purchase
Agreements or the Notes unless each Noteholder (irrespective of the
amount of Notes then owned by it) shall be informed thereof by the
Guarantor and shall be afforded the opportunity of considering the
same for a period of not less than 30 days and shall be supplied by
the Guarantor with a brief statement regarding the reasons for any
such proposed waiver or amendment, a copy of the proposed waiver or
amendment and such other information regarding such amendment or
waiver as any Noteholder shall reasonably request to enable it to
make an informed decision with respect thereto. Executed or true
and correct copies of any waiver or amendment effected pursuant to
the provisions of this Section 10 shall be delivered by the
Guarantor to each Noteholder of outstanding Notes within 30 days
following the date on which the same shall have been executed and
delivered by the holder or holders of the requisite percentage of
the outstanding Notes. The Guarantor agrees that it will not,
directly or indirectly, pay or cause to be paid any remuneration,
whether by way of supplemental or additional interest, fee or
otherwise, to any Noteholder as consideration for or as an
inducement to the entering into by any Noteholder of any waiver or
amendment of any of the terms and provisions of this Guaranty, the
Note Purchase Agreements or the Notes unless such remuneration is
concurrently paid, on the same terms, ratably to the Noteholders of
all of the Notes then outstanding.
SECTION 11. PROCEEDS.
Each beneficiary of this Guaranty by its execution and
acceptance hereof agrees that any proceeds recovered hereunder will
be shared pro rata among each beneficiary hereunder or under any
other guaranty of the Guarantor.
SECTION 12. MISCELLANEOUS.
(a) No remedy herein conferred upon or reserved to any
Noteholder is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given
under this Guaranty now or hereafter existing at law or in equity.
No delay or omission to exercise any right or power accruing upon
any default, omission or failure of performance hereunder shall
impair any such right or power or shall be construed to be a waiver
thereof, but any such right or power may be exercised from time to
time and as often as may be deemed expedient. In order to entitle
any Noteholder to exercise any remedy reserved to it under the
Guaranty, it shall not be necessary for such Noteholder to
physically produce its Note in any proceedings instituted by it or
to give any notice, other than such notice as may be herein
expressly required.
(b) In case any one or more of the provisions contained in
this Guaranty shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be
affected or impaired thereby.
(c) This Guaranty shall be binding upon the undersigned
Guarantor and its respective successors and assigns and shall inure
to the benefit of each Noteholder and its successors and assigns so
long as its Note remains outstanding and unpaid.
(d) The Guarantor hereby agrees that the obligations of the
Guarantor hereunder are joint and several with the obligations of
any other guarantor of all or any portion of the indebtedness
guaranteed hereby.
(e) This Guaranty shall be governed by and construed in
accordance with Illinois law, including all matters of
construction, validity and performance.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be duly executed by an authorized officer as of the day of
, .
[SUBSIDIARY GUARANTOR]
By
---------------------------------
Title:
Acknowledged By:
INSITUFORM TECHNOLOGIES, INC.
By
-----------------------------
Title:
INTERCREDITOR AGREEMENT
Dated as of ,
Among
[LENDERS]
And
[NOTEHOLDERS]
Exhibit 9.8(e)
(to Note Purchase Agreement)
TABLE OF CONTENTS
SECTION HEADING PAGE
Parties 1
Recitals 1
SECTION 1. DEFINITIONS 2
SECTION 2. SHARING OF RECOVERIES 4
SECTION 3. AGREEMENTS AMONG THE CREDITORS 5
Section 3.1. Independent Actions by Creditors 5
Section 3.2 Relation of Creditors 5
Section 3.3. Acknowledgment of Guaranties 5
Section 3.4. Additional Creditors 5
SECTION 4. MISCELLANEOUS 6
Section 4.1. Entire Agreement 6
Section 4.2. Notices 6
Section 4.3. Successors and Assigns 6
Section 4.4. Consents, Amendment, Waivers 6
Section 4.5. Governing Law 6
Section 4.6. Counterparts 6
Section 4.7. Sale of Interest 6
Section 4.8. Severability 6
Section 4.9. Expenses 6
Section 4.10. Term of Agreement 6
Signature Page 8
-i-
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of , ,
is made among (i) each of the Lenders (as hereinafter defined) and
(ii) each of the Noteholders (as hereinafter defined); the
Noteholders, the Lenders and each of the additional Persons, if
any, that become Creditors hereunder as contemplated by Section 3.4
hereof are individually referred to herein as a "Creditor" and are
collectively referred to herein as the "Creditors".
R E C I T A L S
A. Under and pursuant to the separate and several Note
Purchase Agreements, each dated as of February 14, 1997 (as such
agreements may be modified or amended from time to time,
collectively, the "Note Purchase Agreements"), between Insituform
Technologies, Inc., a Delaware corporation (the "Company"), and
each of the Purchasers named on Schedule A attached thereto
respectively, the Company has heretofore issued and sold its 7.88%
Senior Notes, Series A, due February 14, 2007 in the aggregate
principal amount of $110,000,000 (the "Notes"). The holders of the
Notes currently outstanding are referred to herein individually as
a "Noteholder" and collectively as the "Noteholders."
B. Under and pursuant to that certain [Lender Facility]
dated as (as such agreement may be modified, amended,
renewed or replaced, including any increase in the amount thereof,
the ["Lender Facility"]) between the Company and the Lenders which
are parties thereto (individually a "Lender" and collectively the
"Lenders"), the Lenders have made available to the Company certain
credit facilities in a current aggregate principal amount up to
$ (all obligations in respect of said credit facilities
being hereinafter collectively referred to as the "Loans").
C. As required by the Note Purchase Agreements, each of
, a corporation and , a
corporation (collectively, the "Subsidiary Guarantors") have
concurrently herewith executed and delivered a Guaranty Agreement
or Guaranty Agreements (as such agreement(s) may be modified or
amended from time to time, collectively, the "Noteholder Guaranty")
dated as of pursuant to which the Subsidiary Guarantors
have irrevocably, absolutely and unconditionally guaranteed to the
Noteholders the payment of the principal of, premium, if any, and
interest on the Notes and the payment and performance of all other
obligations of the Company under the Note Purchase Agreements.
D. As required by the [Lender Facility], the Subsidiary
Guarantors have concurrently herewith executed and delivered a
Guaranty Agreement or Guaranty Agreements (as such agreement(s) may
be modified or amended from time to time, collectively, the "Lender
Guaranty") dated as of pursuant to which the Subsidiary
Guarantors have irrevocably, absolutely and unconditionally
guaranteed to the Lenders the payment and performance of all
obligations of the Company under the [Lender Facility]. The Lender
Guaranty and the Noteholder Guaranty are hereinafter referred to as
the "Subsidiary Agreements."
E. Pursuant to the requirements of the Note Purchase
Agreements, the Company and the Subsidiary Guarantors have
requested and the Lenders have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. DEFINITIONS.
The following terms shall have the meanings assigned to them
below in this Section 1 or in the provisions of this Agreement
referred to below:
"Bankruptcy Proceeding" shall mean, with respect to any
person, (i) the filing by such person, or consent by answer or
otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy,
for liquidation or to take advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of any
jurisdiction, (ii) the making of an assignment for the benefit of
such person's creditors, (iii) consent by such person to the
appointment of a custodian, receiver, trustee or other officer with
similar powers with respect to such person or with respect to any
substantial part of its property, (iv) the adjudication of such
person as insolvent or to be liquidated, (v) the taking by such
person of corporate action for the purpose of any of the foregoing,
or (vi) the entry by a court or governmental authority of competent
jurisdiction of an order appointing, without consent by such
person, a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any
substantial part of its property, or constituting an order for
relief or approving a petition for relief or reorganization or any
other petition in bankruptcy or for liquidation or to take
advantage of any bankruptcy or insolvency law of any jurisdiction,
or ordering the dissolution, winding-up or liquidation of such
person.
"Company" shall have the meaning assigned thereto in the
Recitals hereof.
"Credit Documents" shall mean, collectively, the Note Purchase
Agreements, the [Lender Facility] and each other agreement or
document pursuant to which any Person becomes an additional
Creditor pursuant to Section 3.4.
"Creditor" shall have the meaning assigned thereto in the
introductory paragraph hereto.
"Excess Subsidiary Payment" shall mean as to any Creditor an
amount equal to the Subsidiary Payment received by such Creditor
less the Pro Rata Share of Subsidiary Payments to which such
Creditor is then entitled.
"Lender" and "Lenders" shall have the meanings assigned
thereto in the introductory paragraph hereto.
["Lender Facility"] shall have the meaning assigned thereto in
the Recitals hereof.
"Lender Guaranty" shall have the meaning assigned thereto in
the Recitals hereof.
"Loans" shall have the meaning assigned thereto in the
Recitals hereof.
"Note Purchase Agreements" shall have the meaning assigned
thereto in the Recitals hereof.
"Noteholder" and "Noteholders" shall have the meanings
assigned thereto in the introductory paragraph hereto.
"Noteholder Guaranty" shall have the meaning assigned thereto
in the Recitals hereof.
"Notes" shall have the meaning assigned thereto in the
Recitals hereof.
"Person" shall mean an individual, partnership, limited
liability company, corporation, trust or unincorporated
organization, and a government or agency or political subdivision
thereof.
"Pro Rata Share of Subsidiary Payments" shall mean as of the
date of any Subsidiary Payment to a Creditor in respect to a
Subsidiary Agreement an amount equal to the product obtained by
multiplying (x) the amount of all Subsidiary Payments made by the
Subsidiary Guarantors to all Creditors concurrently with the
payments to such Creditor less all reasonable costs incurred by
such Creditors in connection with the collection of such Subsidiary
Payments by (y) a fraction, the numerator of which shall be the
Specified Amount owing to such Creditor, and the denominator of
which is the aggregate amount of all outstanding Subject
Obligations (without giving effect to the application of any such
Subsidiary Payments).
"Receiving Creditor" shall have the meaning assigned thereto
in Section 2.
"Specified Amount" shall mean, as to any Creditor, the
aggregate amount of the Subject Obligations owed to such Creditor.
"Subject Obligations" shall mean (i) all principal of,
premium, if any, and interest on, the Notes and the Loans and all
other obligations of the Company under or in respect of the Notes
and the Loans and under the Note Purchase Agreements and the
[Lender Facility] and any other obligations of the Company to the
Lender which are guaranteed by the Lender Guaranty and (ii) all
principal of, premium, if any, and interest on, the obligations of
the Subsidiary Guarantors under or in respect of [additional
facility included pursuant to Section 3.4] and any other
obligations of the Subsidiary Guarantors to [such additional
Person]; provided that any amount of such Subject Obligations which
is not allowed as a claim enforceable against the Company in a
Bankruptcy Proceeding under applicable law shall be excluded from
the computation of "Subject Obligations" hereunder.
"Subsidiary Agreements" shall have the meaning assigned
thereto in the Recitals hereof.
"Subsidiary Guarantors" shall have the meaning assigned
thereto in the Recitals hereof.
"Subsidiary Payments" shall have the meaning assigned thereto
in Section 2.
SECTION 2. SHARING OF RECOVERIES.
Each Creditor hereby agrees with each other Creditor that
payments (including payments made through setoff of deposit
balances or otherwise or payments or recoveries from any security
interest granted to any Creditor securing any Subsidiary Agreement)
made pursuant to the terms of the Subsidiary Agreements (a
"Subsidiary Payments") (x) within 90 days prior to the commencement
of a Bankruptcy Proceeding with respect to the Subsidiary
Guarantors or the Company, as the case may be, or (y) following the
acceleration of the Notes generally or the Loans or the
acceleration of any other Subject Obligation, shall be shared so
that each Creditor shall receive its Pro Rata Share of Subsidiary
Payments. Accordingly, each Creditor hereby agrees that in the
event (a) an event described in clauses (x) or (y) above shall have
occurred, (b) any Creditor shall receive a Subsidiary Payment (a
"Receiving Creditor"), and (c) any other Creditor shall not
concurrently receive its Pro Rata Share of Subsidiary Payments from
the Subsidiary Guarantors, then the Receiving Creditor shall
promptly remit the Excess Subsidiary Payment to each other Creditor
who shall then be entitled thereto so that after giving effect to
such payment (and any other payments then being made by any other
Receiving Creditor pursuant to this Section 2) each Creditor shall
have received its Pro Rata Share of Subsidiary Payments.
Any such payments shall be deemed to be and shall be made in
consideration of the purchase for cash at face value, but without
recourse, ratably from the other Creditors of such amount of Notes
or Loans (or interest therein), as the case may be (exclusive of
any lien or security interest granted to such other Creditors and
not securing a Subsidiary Agreement), necessary to cause such
Creditor to share such Excess Subsidiary Payment with the other
Creditors as hereinabove provided; provided, however, that if any
such purchase or payment is made by any Receiving Creditor and if
such Excess Subsidiary Payment or part thereof is thereafter
recovered from such Receiving Creditor by the Subsidiary Guarantors
(including, without limitation, by any trustee in bankruptcy of the
Subsidiary Guarantors or any creditor thereof), the related
purchase from the other Creditors shall be rescinded ratably and
the purchase price restored as to the portion of such Excess
Subsidiary Payment so recovered, but without interest; and provided
further nothing herein contained shall obligate any Creditor to
resort to any setoff, application of deposit balance or other means
of payment under any Subsidiary Agreement or avail itself of any
recourse by resort to any property of the Company or the Subsidiary
Guarantors, the taking of any such action to remain within the
absolute discretion of such Creditor without obligation of any kind
to the other Creditors to take any such action.
SECTION 3. AGREEMENTS AMONG THE CREDITORS.
Section 3.1. Independent Actions by Creditors. Nothing
contained in this Agreement shall prohibit any Creditor from
accelerating the maturity of, or demanding payment from the
Subsidiary Guarantors on, any Subject Obligation of the Company or
the Subsidiary Guarantors, as the case may be, to such Creditor or
from instituting legal action against the Company or the Subsidiary
Guarantors to obtain a judgment or other legal process in respect
of such Subject Obligation, but any funds received from the
Subsidiary Guarantors in connection with any recovery under any
Subsidiary Agreement (exclusive of recoveries arising from liens or
security interests granted to other Creditors and not securing any
Subsidiary Agreement) shall be subject to the terms of this
Agreement.
Section 3.2. Relation of Creditors. This Agreement is entered
into solely for the purposes set forth herein, and no Creditor
assumes any responsibility to any other party hereto to advise such
other party of information known to such regarding the financial
condition of the Company or the Subsidiary Guarantors or of any
other circumstances bearing upon the risk of nonpayment of the
Subject Obligations. Each Creditor specifically acknowledges and
agrees that nothing contained in this Agreement is or is intended
to be for the benefit of the Company or the Subsidiary Guarantors
and nothing contained herein shall limit or in any way modify any
of the obligations of the Company or the Subsidiary Guarantors to
the Creditors.
Section 3.3. Acknowledgment of Guaranties. The Lender hereby
expressly acknowledges the existence of the Noteholder Guaranty and
the Noteholders hereby expressly acknowledge the existence of the
Lender Guaranty.
Section 3.4. Additional Creditors. Additional Persons may
become "Creditors" hereunder by executing and delivering to each of
the then existing Creditors (i) a copy of this Agreement so
executed and (ii) a copy of the agreement or documents pursuant to
which such Person becomes a creditor of the Subsidiary Guarantors.
Accordingly, upon the execution and delivery of any such copy of
this Agreement by any such Person, such Person shall thereinafter
become a Creditor for all purposes of this Agreement.
Notwithstanding the foregoing or any other provision of this
Agreement, the provisions hereof shall not in any manner modify any
covenant, obligation or agreement of the Company and its
Subsidiaries contained in the Credit Documents with respect to (x)
limitations on additional indebtedness of the Company or any
Subsidiary permitted under any Credit Document or (y) limitations
on liens or security interests which may be created or granted by
the Company or any Subsidiary under such Credit Document.
SECTION 4. MISCELLANEOUS.
Section 4.1. Entire Agreement. This Agreement represents the
entire Agreement among the Creditors and, except as otherwise
provided, this Agreement may not be altered, amended or modified
except in a writing executed by all the parties to this Agreement.
Section 4.2. Notices. Notices hereunder shall be given to the
Creditors at their addresses as set forth in the Note Purchase
Agreements or the [Lender Facility], as the case may be, or at such
other address as may be designated by each in a written notice to
the other parties hereto.
Section 4.3. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of each of the Creditors and
their respective successors and assigns, whether so expressed or
not, and, in particular, shall inure to the benefit of and be
enforceable by any future holder or holders of any Subject
Obligations, and the term "Creditor" shall include any such
subsequent holder of Subject Obligations, wherever the context
permits.
Section 4.4. Consents, Amendment, Waivers. All amendments,
waivers or consents of any provision of this Agreement shall be
effective only if the same shall be in writing and signed by all of
the Creditors.
Section 4.5. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Illinois.
Section 4.6. Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall
constitute one Agreement, and any of the parties hereto may execute
this Agreement by signing any such counterpart.
Section 4.7. Sale of Interest. No Creditor will sell, transfer
or otherwise dispose of any interest in the Subject Obligations
unless such purchaser or transferee shall agree, in writing, to be
bound by the terms of this Agreement, or unless the Subject
Obligations are sold, transferred or disposed of at a time when the
Subsidiary Agreements are no longer in effect for the benefit of
such Subject Obligations.
Section 4.8. Severability. In case any one or more of the
provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions of this Agreement shall
not in any way be affected or impaired thereby.
Section 4.9. Expenses. In the event of any litigation to
enforce this Agreement, the prevailing party shall be entitled to
its reasonable attorney's fees (including the allocated costs of
in-house counsel).
Section 4.10. Term of Agreement. This Agreement shall
terminate when all Subject Obligations are paid in full and such
payments are not subject to any possibility of revocation or
rescission or until all of the parties hereto mutually agree in a
writing to terminate this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first above written.
[NOTEHOLDER]
By
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Its
[NOTEHOLDER]
By
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Its
[NOTEHOLDER]
By
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Its
[LENDER]
By
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Its
[LENDER]
By
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Its
[LENDER]
By
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Its
The undersigned hereby acknowledge and agree to the foregoing
Agreement.
INSITUFORM TECHNOLOGIES, INC.
By
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Its
[SUBSIDIARY GUARANTOR]
By
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Its