FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10.2
FIRST
AMENDMENT TO
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
This
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”) dated as of March 28, 2007, is among INSITUFORM TECHNOLOGIES,
INC., a Delaware corporation (“Borrower”), each lender party thereto
(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 (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 Note Purchase Agreement-2003 and 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;
(ii) Executed
copies of a consent to this Amendment duly executed by each Guarantor party
to
the Master Guaranty;
(iii) An
amendment to the Note Purchase Agreement-2003 (the “2003 NPA Amendment”), duly
executed and delivered by the Borrower and the requisite noteholders thereunder
needed to approve such amendments and such agreements shall be in form and
substance satisfactory to the Agent and the Required Lenders;
(iv) Copies
of
any certificates, documents, consents or opinions delivered by any Loan Party
in
connection with the 2003 NPA Amendment; and
(v) Such
other assurances, certificates, documents, consents or opinions as the Agent
reasonably may require.
(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 “Note Xxxxxxxx Xxxxxxxxx-0000” in Section 1.01 of the Credit
Agreement is amended and restated in its entirety as follows:
“Note
Purchase Agreement-2003” means the Note Purchase Agreement dated as of April 24,
2003, as amended to and including March 28, 2007, among the Borrower and other
parties signatory thereto under which the Borrower issued certain 5.29% Senior
Notes, Series 2003-A, due April 24, 2013, of $65,000,000 aggregate principal
amount; provided,
however,
that,
except with respect to Section
8.01(e)
of this
Agreement (which is a cross default to other Indebtedness, including the Note
Purchase Agreement-2003 as in effect from time to time), after March 28, 2007,
no amendments to, or waivers of, the terms, conditions and definitions of the
Note Purchase Agreement-2003 referred to or incorporated by reference herein
shall be deemed to amend or waive such terms, conditions and definitions for
purposes of this Agreement unless the Agent separately agrees or consents
thereto hereunder. The terms, conditions and definitions referred to or
incorporated by reference herein will survive termination, restatement or
cancellation of the Note Purchase Agreement-2003 for purposes of this Agreement
(other than Section
8.01(e)).
(b) 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. Waivers
and Consents. Subject
to the terms and conditions set forth herein, the Agent and the Lenders hereby
consent to the execution and delivery by the Borrower of the 2003 NPA Amendment.
The consent contained in this Section 4
is
specific in intent and is valid only for the specific purpose for which given.
Nothing contained herein obligates the Agent or the Lenders to agree to any
additional consents.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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. 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.
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remainder of this page is intentionally left blank.]
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 Controller
BANK
OF
AMERICA, N.A., as Administrative Agent
By:
/s/
Xxxxxxx Xxxx
Name:
Xxxxxxx
Xxxx
Title:
Vice
President
BANK
OF
AMERICA, N.A., as a Lender
By:
/s/
Xxxxxxx Xxxx
Name:
Xxxxxxx
Xxxx
Title:
Vice
President
