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EXHIBIT 2.2
GUARANTEE
OF
CARLYLE INFRASTRUCTURE PARTNERS, L.P.
GUARANTEE, dated as of January 28, 2007 (this "Guarantee"), by
Carlyle
Infrastructure Partners, L.P., a Delaware limited partnership
(the "Guarantor"),
in favor of Synagro Technologies, Inc., a Delaware corporation
(the "Company").
1. GUARANTEE. To induce the Company to enter into that certain
Agreement
and Plan of Merger, dated as of January 28, 2007 (as amended,
supplemented or
otherwise modified from time to time, the "Merger Agreement"),
by and among the
Company, Synatech Holdings, Inc., a Delaware corporation
("Parent"), and
Synatech, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent
("Merger Sub"), pursuant to which Merger Sub will merge with and
into the
Company, the Guarantor as primary obligor and not as surety,
absolutely,
unconditionally and irrevocably guarantees to the Company, the
due and punctual
observance, payment, performance and discharge of the obligation
of Parent and
Merger Sub to pay (a) the Termination Expenses and (b) the
Parent Liquidated
Damage Amount, pursuant to Section 8.03 of the Merger Agreement
(as such terms
are defined in the Merger Agreement) to the Company (the
"Obligations");
provided that notwithstanding anything to the contrary set forth
herein, the
maximum amount payable by the Guarantor under this Guarantee
shall not exceed
$13.9 million plus any amount payable pursuant to Section 11 of
this Guarantee
(the "Cap"), it being understood that this Guarantee may not be
enforced without
giving effect to the Cap.
2. NATURE OF GUARANTEE. The Company shall not be obligated to
seek payment
of the Obligations from Parent or Merger Sub or to file any
claim relating to
the Obligations in the event that Parent or Merger Sub becomes
subject to a
bankruptcy, reorganization or similar proceeding, and the
failure of the Company
to seek such payment or to so file shall not affect the
Guarantor's obligations
hereunder. In the event that any payment to the Company in
respect of any
Obligations is rescinded or must otherwise be returned for any
reason
whatsoever, the Guarantor shall remain liable hereunder with
respect to such
Obligations as if such payment had not been made. This is an
unconditional
guarantee of payment and not of collectibility. The Guarantor
reserves the right
to assert any defenses which Parent or Merger Sub may have to
payment of any
Obligations that arise under the terms of the Merger
Agreement.
3. CHANGES IN OBLIGATIONS, CERTAIN WAIVERS. The Guarantor agrees
that the
Company may at any time and from time to time, without notice to
or further
<PAGE>
consent of the Guarantor, extend the time of payment of any of
the
Obligations, and may also make any agreement with Parent or
Merger Sub for the
extension, renewal, payment, compromise, discharge or release
thereof, in whole
or in part, or for any modification of the terms thereof or of
any agreement
between the Company and Parent or Merger Sub or any such other
Person without in
any way impairing or affecting this Guarantee. The Guarantor
agrees that the
obligations of the Guarantor hereunder shall not be released or
discharged, in
whole or in part, or otherwise affected by (a) the failure of
the Company to
assert any claim or demand or to enforce any right or remedy
against Parent or
Merger Sub or any other entity or person liable with respect to
any of the
Obligations; (b) any change in the time, place or manner of
payment of any of
the Obligations; (c) the addition, substitution or release of
any other entity
or person liable with respect to any of the Obligations; (d) any
change in the
corporate existence, structure or ownership of Parent or Merger
Sub or any other
entity or person liable with respect to any of the Obligations;
(e) any
insolvency, bankruptcy, reorganization, or other similar
proceeding affecting
Parent or Merger Sub or any other entity or person liable with
respect to any of
the Obligations; (f) the existence of any claim, set-off or
other rights which
the Guarantor may have at any time against Parent, Merger Sub or
the Company,
whether in connection with the Obligations or otherwise; or (g)
the adequacy of
any other means the Company may have of obtaining payment of the
Obligations. To
the fullest extent permitted by law, the Guarantor hereby
expressly WAIVES any
and all rights or defenses arising by reason of any law which
would otherwise
require any election of remedies by the Company. The Guarantor
WAIVES
promptness, diligence, notice of the acceptance of this
Guarantee and of the
Obligations, presentment, demand for payment, notice of
non-performance,
default, dishonor and protest, notice of any Obligations
incurred and all other
notices of any kind (except for notices to be provided to Parent
and Merger Sub
in accordance with Section 9.02 of the Merger Agreement), all
defenses which may
be available by virtue of any valuation, stay, moratorium law or
other similar
law now or hereafter in effect, any right to require the
marshalling of assets
of the Parent or Merger Sub or any other entity or other person
liable with
respect to any of the Obligations, and all suretyship defenses
generally (other
than fraud by the Company or any of its Subsidiaries or defenses
to the payment
of the Obligations that are available to Parent or Merger Sub
under the terms of
the Merger Agreement or breach by the Company of this
Guarantee). The Guarantor
acknowledges that it will receive substantial direct and
indirect benefits from
the transactions contemplated by the Merger Agreement and that
the waivers set
forth in this Guarantee are knowingly made in contemplation of
such benefits.
Notwithstanding anything to the contrary contained in this
Guarantee, the
Company hereby agrees that to the extent Parent and Merger Sub
are relieved of
their obligations with respect to the Parent Liquidated Damage
Amount or the
Termination Expenses pursuant to the terms of the Merger
Agreement, the
Guarantor shall be similarly relieved of its Obligations under
this Guarantee
but only to the same extent.
2
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The Guarantor hereby unconditionally and irrevocably WAIVES, and
agrees not
to exercise, any rights that it may now have or hereafter
acquire against Parent
or Merger Sub that arise from the existence, payment,
performance, or
enforcement of the Guarantor's obligations under or in respect
of this
Guarantee, including, without limitation, any right of
subrogation,
reimbursement, exoneration, contribution or indemnification and
any right to
participate in any claim or remedy of the Company against Parent
or Merger Sub,
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 Parent or Merger Sub, directly or indirectly, in
cash or other
property or by setoff or in any other manner, payment or
security on account of
such claim, remedy or right, unless and until all of the
Obligations and any
amounts payable pursuant to Section 11 of this Guarantee shall
have been paid in
full in cash. If any amount shall be paid to the Guarantor in
violation of the
immediately preceding sentence at any time prior to the payment
in full in cash
of the Obligations and any amounts payable pursuant to Section
11 of this
Guarantee, such amount shall be received and held in trust for
the benefit of
the Company, shall be segregated from other property and funds
of the Guarantor
and shall forthwith be paid or delivered to the Company in the
same form as so
received (with any necessary endorsement or assignment) to be
credited and
applied to the Obligations and any amounts payable pursuant to
Section 11 of
this Guarantee, in accordance with the terms of the Merger
Agreement, whether
matured or unmatured, or to be held as collateral for any
Obligations or other
amounts payable pursuant to Section 11 of this Guarantee
thereafter arising.
4. NO WAIVER; CUMULATIVE RIGHTS. No failure on the part of the
Company to
exercise, and no delay in exercising, any right, remedy or power
hereunder shall
operate as a waiver thereof, nor shall any single or partial
exercise by the
Company of any right, remedy or power hereunder preclude any
other or future
exercise of any right, remedy or power hereunder. Each and every
right, remedy
and power hereby granted to the Company or allowed it by law or
other agreement
shall be cumulative and not exclusive of any other, and may be
exercised by the
Company at any time or from time to time.
5. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
represents and
warrants that:
(a) the execution, delivery and performance of this Guarantee
have
been duly authorized by all necessary action and do not
contravene any
provision of the Guarantor's partnership agreement, operating
agreemen
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