Exhibit 10.5
AMENDMENT NUMBER ONE
TO
LOAN AGREEMENT
Effective August 20, 1997
by and between
NATIONSBANK, N.A.
and
INSITUFORM TECHNOLOGIES, INC.
In consideration of their mutual agreements herein and for other
sufficient consideration, the receipt of which is hereby
acknowledged, INSITUFORM TECHNOLOGIES, INC. ("Borrower") and
NATIONSBANK, N.A. ("Lender") agree as follows:
1. Definitions; Section References. The term "Original Loan
Agreement" means the Loan Agreement Effective August 20, 1997,
between Borrower and Lender. The term "this Amendment" means this
Amendment. The term "Loan Agreement" means the Original Loan
Agreement as amended by this Amendment. Capitalized terms used and
not otherwise defined herein have the meanings defined in the Loan
Agreement.
2. Effective Date of this Amendment. This Amendment will be
effective as of August 20, 1997, and is intended to correct a
scrivener's error in the Original Loan Agreement.
3. Amendments to Loan Agreement. Section 17.4 of the Original
Loan Agreement is amended to read in its entirety as follows:
"17.4 Maximum Funded Debt to EBITDA Ratio. The ratio of
Borrower's Funded Debt as of the end of any fiscal
quarter of Borrower to Borrower's EBITDA for the four
consecutive fiscal quarters then ended shall not be
greater than 3.5 to 1.0."
4. Effect of Amendment. The execution, delivery and effectiveness
of this Amendment shall not operate as a waiver of any right, power
or remedy of Lender under the Loan Agreement or any of the other
Loan Documents, nor constitute a waiver of any provision of the
Loan Agreement, any of the other Loan Documents or any Existing
Default. Each reference in the Loan Agreement to "the Agreement",
"hereunder", "hereof", "herein", or words of like import, shall be
read as referring to the Loan Agreement as amended hereby.
5. Reaffirmation. Borrower hereby acknowledges and confirms that
except as expressly amended hereby the Original Loan Agreement and
other Loan Documents remain in full force and effect.
6. Counterparts. This Amendment may be executed by the parties
hereto on any number of separate counterparts, and all such
counterparts taken together shall constitute one and the same
instrument. It shall not be necessary in making proof of this
Amendment to produce or account for more than one counterpart
signed by the party to be charged.
7. Counterpart Facsimile Execution. This Amendment, or a
signature page thereto intended to be attached to a copy of this
Amendment, signed and transmitted by facsimile machine or
telecopier shall be deemed and treated as an original document. The
signature of any person thereon, for purposes hereof, is to be
considered as an original signature, and the document transmitted
is to be considered to have the same binding effect as an original
signature on an original document. At the request of any party
hereto, any facsimile or telecopy document is to be re-executed in
original form by the Persons who executed the facsimile or telecopy
document. No party hereto may raise the use of a facsimile machine
or telecopier or the fact that any signature was transmitted
through the use of a facsimile or telecopier machine as a defense
to the enforcement of this Amendment.
8. Governing Law; No Third party Rights. This Amendment and the
rights and obligations of the parties hereunder shall be governed
by and construed and interpreted in accordance with the internal
laws of the State of Missouri applicable to contracts made and to
be performed wholly within such state, without regard to choice or
conflict of laws provisions.
9. Incorporation by Reference. Lender and Borrower hereby agree
that all of the terms of the Loan Documents are incorporated in and
made a part of this Amendment by this reference.
10. Statutory Notice. The following notice is given pursuant to
Section 432.045 of the Missouri Revised Statutes; nothing contained
in such notice will be deemed to limit or modify the terms of the
Loan Documents or this Amendment.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT
ENFORCEABLE. TO PROTECT YOU (BORROWER(S)) AND US
(CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED
INT HIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY
LATER AGREE IN WRITING TO MODIFY IT.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by appropriate duly authorized officers as of the
effective date first above written.
INSITUFORM TECHNOLOGIES, INC. NATIONSBANK, N.A.
by its Senior Vice President by its Vice President
s/Xxxxxxx X. Xxxxxx s/Xxxx X. Xxxxxxx
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Name: Name:
