SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
SECOND
AMENDMENT TO
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
This SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT (this “Amendment”), dated as of April __,
2008, is among INSITUFORM TECHNOLOGIES, INC., a Delaware corporation
(“Borrower”), each lender party hereto (collectively, “Lenders” and
individually, a “Lender”), and BANK OF AMERICA, N.A., a national banking
association, as Administrative Agent and L/C Issuer (“Agent”).
WHEREAS, the Borrower, the Agent, and
the Lenders are parties to that certain Second Amended and Restated Credit
Agreement dated as of February 17, 2006, as amended by that certain First
Amendment to Second Amended and Restated Credit Agreement dated as of March 28,
2007 (as so amended, the “Original Credit Agreement”) (the Original Credit
Agreement, as amended by this Amendment is referred to herein as the “Credit
Agreement”);
WHEREAS, the Borrower has requested
that the Agent and the Lenders consent to certain amendments to the Original
Credit Agreement as more fully described herein; and
WHEREAS, the Agent and the Lenders are
willing to accede to such requests in reliance upon and in accordance with the
terms, conditions, representations and warranties set forth in this
Amendment;
NOW, THEREFORE, in consideration of the
mutual agreements herein and other sufficient consideration, the receipt of
which is hereby acknowledged, the Borrower, the Agent and the Lenders hereby
agree as follows:
1. Definitions.
Unless
otherwise specifically defined herein, each term used herein which is defined in
the Original Credit Agreement shall have the meaning assigned to such term in
the Original Credit Agreement. Each reference to “hereof”, “hereunder”, “herein”
and “hereby” and each other similar reference and each reference to “this
Agreement” and each other similar reference contained in the Original Credit
Agreement shall from the date hereof refer to the Credit Agreement as amended
hereby.
2. Effectiveness of
Agreement. The
effectiveness of this Amendment is subject to the satisfaction and occurrence of
the following conditions precedent:
(a) The Agent
shall have received the following documents in form and substance satisfactory
to the Agent:
(i) |
Executed
counterparts of this Amendment;
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(ii) |
Executed
copies of a consent to this Amendment duly executed by each Guarantor
party to the Master Guaranty;
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(iii) |
Such other
assurances, certificates, documents, consents or opinions as the Agent
reasonably may require.
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(b) The Agent
shall have received payment from Borrower of the amendment fee set forth in that
certain fee letter dated as of the date hereof among the Borrower and the
Agent.
3. Amendments to Credit
Agreement. Subject
to the terms and conditions set forth in Section 2 hereof, the Credit
Agreement is hereby amended as follows:
(a) The
defined term “Maturity Date” in Section 1.01 of the Credit Agreement is amended
and restated in its entirety as follows:
“Maturity Date” means
April 30, 2009.
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(b) The
defined term “Applicable Rate” in Section 1.01 of the Credit Agreement is
amended and restated in its entirety as follows:
“Applicable Rate”
means, from time to time, the following percentages per annum, based upon the
Consolidated Leverage Ratio (as defined in the Note Purchase Agreements) as set
forth in the most recent Compliance Certificate received by Agent pursuant to
Section
6.02(b):
APPLICABLE RATE
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Pricing
Level
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Consolidated Leverage Ratio
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Base
Rate Loans
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Eurodollar
Loans and Letters of Credit
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Commitment
Fee
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Level
V
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> 2.5 to 1.0
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0.00%
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2.25%
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0.250%
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Level
IV
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> 2.0 to 1.0 but < 2.5 to 1.0
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0.00%
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2.00%
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0.225%
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Level
III
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> 1.5 to 1.0 but < 2.0 to 1.0
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0.00%
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1.75%
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0.200%
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Level
II
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> 1.0 to 1.0 but < 1.5 to 1.0
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0.00%
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1.50%
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0.175%
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Level
I
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< 1.0 to 1.0
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0.00%
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1.25%
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0.175%
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Any
increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective commencing on the 5th
Business Day immediately following the date a Compliance Certificate is
delivered pursuant to Section 6.02(b);
provided, however, that if a
Compliance Certificate is not delivered when due in accordance with
such Section, then Pricing Level V shall apply commencing on the 5th Business
Day following the date such Compliance Certificate was required to have been
delivered. The Applicable Rate in effect on the Closing Date shall be
determined based upon Pricing Level IV.
(c) Section
6.01(c) of the Credit Agreement is hereby amended by deleting the number
“60” in the first line thereof and substituting therefor the number
“90.”
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(d) Section
6.02(f) of the Credit Agreement is hereby amended by deleting the word
“five” in the first line thereof and substituting therefor the word
“seven.”
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(e) The Agent and the Lenders acknowledge and agree that the Indebtedness outstanding under the Note Purchase Agreement-1997 has been paid in full by the Borrower, and, notwithstanding anything to the contrary set forth in the Credit Agreement, the Borrower, the Agent and the Lenders agree that the Borrower shall have no further obligation under the Credit Agreement to comply with any terms or covenants incorporated by reference to the Note Xxxxxxxx Xxxxxxxxx-0000. For the avoidance of doubt, the preceding sentence does not amend, modify or terminate any obligation of the Borrower under the Credit Agreement to comply with any terms or covenants incorporated by reference to the Note Purchase Agreement-2003. |
4. Representations and
Warranties of Borrower. Borrower
hereby represents and warrants to the Agent and the Lenders that (i) the
Borrower’s execution of this Amendment has been duly authorized by all requisite
action of the Borrower, (ii) no consents are necessary from any third parties
for the Borrower’s execution, delivery or performance of this Amendment, (iii)
each of this Amendment, the Credit Agreement and any other Loan Documents to
which a Loan Party is a party constitute the legal, valid and binding
obligations of such Loan Party, enforceable against such Loan Party in
accordance with its terms, except to the extent that the enforceability thereof
against such Loan Party may be limited by bankruptcy, insolvency or other laws
affecting the enforceability of creditors rights generally or by equity
principles of general application, (iv) the representations and warranties of
the Borrower contained in Article 5 of the Credit Agreement are true and correct
in all material respects on and as of the date hereof as if such representations
and warranties had been made on and as of the date hereof, except to the extent
such representations and warranties expressly relate to an earlier date, and (v)
after giving effect to this Amendment, there is no Default or Event of Default
under the Credit Agreement.
5. Expenses. The
Borrower agrees to pay all reasonable out of pocket expenses incurred by the
Agent (including the reasonable fees, charges and disbursements of counsel for
the Agent) in connection with the preparation, negotiation, execution, delivery
and administration of this Amendment and the other Loan Documents in accordance
with Section 10.04 of the Credit Agreement.
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6. Governing
Law. This
Amendment shall be governed by, and construed in accordance with, the law of the
State of Missouri applicable to agreements made and to be performed entirely
within such state; provided that Agent shall retain all rights arising under
Federal law.
7. Section
Titles. The
section titles in this Amendment are for convenience of reference only and shall
not be construed so as to modify any provisions of this Amendment.
8. Counterparts; Facsimile
Transmissions. This
Amendment may be executed in one or more counterparts and on separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures to
this Amendment may be given by facsimile or other electronic transmission, and
such signatures shall be fully binding on the party sending the
same.
9. Statutory Notice - Oral
Commitments. Nothing
contained in the following notice shall be deemed to limit or modify the terms
of the Loan Documents:
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,
REGARDLESS OF THE LEGAL
THEORY UPON WHICH IT IS BASED THAT IS IN ANY WAY RELATED TO THE CREDIT
AGREEMENT. TO PROTECT
YOU (BORROWER) AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH
IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS
WE MAY LATER AGREE IN WRITING TO MODIFY IT.
[The remainder of this page is
intentionally left blank.]
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IN WITNESS WHEREOF, this Amendment has
been duly executed as of the date first above written.
INSITUFORM
TECHNOLOGIES, INC.
By: /s/ Xxxxx X.
Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Vice President and Chief Financial
Officer
BANK OF
AMERICA, N.A., as Administrative Agent and L/C Issuer
By: /s/ Xxxxxxx
Xxxx
Name:
Xxxxxxx Xxxx
Title:
Senior Vice President -
Credit
BANK OF
AMERICA, N.A., as a Lender
By: /s/ Xxxxxxx
Xxxx
Name:
Xxxxxxx Xxxx
Title:
Senior Vice President -
Credit