INSITUFORM TECHNOLOGIES, INC. THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT Dated as of March 28, 2007 Re: Note Purchase Agreement dated as of April 24, 2003 and $65,000,000 Senior Notes, Series 2003-A, Due April 24, 2013
Exhibit
10.1
INSITUFORM
TECHNOLOGIES, INC.
___________________________________
THIRD AMENDMENT
TO
Dated
as
of March 28, 2007
___________________________________
Re:
Note
Purchase Agreement dated as of April 24, 2003
and
$65,000,000
Senior Notes, Series 2003-A,
Due
April 24, 2013
THIRD
AMENDMENT
TO
THIS
THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT dated as of March 28, 2007 (the
or
this “Third Amendment”) is between INSITUFORM TECHNOLOGIES, INC., a
Delaware corporation (the “Company”), and each of the institutions
holding a Note (as hereinafter defined) and party hereto (collectively, the
“Noteholders”).
Recitals:
A. The
Company entered into the Note Purchase Agreement dated as of April 24, 2003
(as amended, supplemented or otherwise modified through the date hereof, the
“Note
Agreement”),
pursuant to which the Company issued its 5.29% Senior Notes, Series 2003-A,
due April 24, 2013 in the original aggregate principal amount of
$65,000,000 (as amended, supplemented or otherwise modified through the date
hereof, the “Notes”).
B. The
Company and the Noteholders now desire to amend the Note Agreement in the
respects, but only in the respects, hereinafter set forth in order to reflect
certain agreements between the Company and the Noteholders.
C. Capitalized
terms used herein shall have the respective meanings ascribed thereto in the
Note Agreement unless herein defined or the context shall otherwise
require.
D. All
requirements of law have been fully complied with and all other acts and things
necessary to make this Third Amendment a valid, legal and binding instrument
according to its terms for the purposes herein expressed have been done or
performed.
NOW,
THEREFORE,
upon
the full and complete satisfaction of the conditions precedent to the
effectiveness of this Third Amendment set forth in Section 3 hereof, and in
consideration of good and valuable consideration the receipt and sufficiency
of
which is hereby acknowledged, the Company and the Noteholders do hereby agree
as
follows:
SECTION
1. AMENDMENT TO THE NOTE
AGREEMENT.
Amendment
to
Schedule B (Definitions).
Schedule
B of the Note Agreement shall be and is hereby amended by amending the
definition of “EBITDA”
therein
by adding a new clause (e) at the end thereof to read as follows:
“;
plus
(e) all non-recurring charges taken during the fiscal year ending December
31,
2007 relating to the discontinuance/disposition of the tunneling business of
the
Company and its Subsidiaries to the extent deducted in determining Consolidated
Net Income for such period;
provided that
the
aggregate pretax amount of such charges included in EBITDA pursuant to this
clause (e) shall not exceed $34,200,000.”
SECTION 2. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
To
induce
the Noteholders to execute and deliver this Third Amendment, the Company
represents and warrants (which representations shall survive the execution
and
delivery of this Third Amendment) to the Noteholders that:
(a) this
Third Amendment has been duly authorized, executed and delivered by it and
this
Third Amendment constitutes the legal, valid and binding obligation, contract
and agreement of the Company enforceable against it in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles relating
to
or limiting creditors’ rights generally;
(b) the
Note
Agreement, as amended by this Third Amendment, constitutes the legal, valid
and
binding obligation, contract and agreement of the Company enforceable against
it
in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors’ rights generally;
(c) the
execution, delivery and performance by the Company of this Third Amendment
(i) has been duly authorized by all requisite corporate action and, if
required, shareholder action, (ii) does not require the consent or approval
of any governmental or regulatory body or agency, and (iii) will not
(A) violate (1) any provision of law, statute, rule or regulation or
its certificate of incorporation or bylaws, (2) any order of any court or
any rule, regulation or order of any other agency or government binding upon
it,
or (3) any provision of any material indenture, agreement or other
instrument to which it is a party or by which its properties or assets are
or
may be bound, or (B) result in a breach or constitute (alone or with due
notice or lapse of time or both) a default under any indenture, agreement or
other instrument referred to in clause (iii)(A)(3) of this Section 2(c),
other than any violation, breach or default which individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect;
(d) as
of the
date hereof and after giving effect to this Third Amendment, no Default or
Event
of Default has occurred which is continuing;
(e) the
financial statements of the Company for the fiscal year ended December 31,
2006 furnished to you do not, nor does any written statement furnished by the
Company to you in connection with the execution and delivery of this Third
Amendment, contain any untrue statement of a material fact or omit to state
any
material fact necessary to make the statements contained therein not misleading
in light of the circumstances under which they were made. There is no fact
known
to the Company which the Company has not disclosed to you in writing which
could
reasonably be expected to have a Material Adverse Effect; and
(f) The
Company has not paid any consideration to any holder of indebtedness of the
Company in connection with the transactions contemplated by this Third
Amendment, except for (i) the legal fees of counsel to the holders of such
indebtedness, and (ii) a fee of 5 bps paid to Bank of America, N.A. for the
amendment to the Second Amended and Restated Credit Agreement dated as of March
26, 2006 (the “Bank
Credit Agreement”)
between
the Company and Bank of America, N.A.
|
SECTION 3.
|
CONDITIONS
TO EFFECTIVENESS OF THIS THIRD
AMENDMENT.
|
This
Third Amendment shall become effective when each of the following conditions
has
been satisfied:
(a) executed
counterparts of this Third Amendment, duly executed by the Company and the
holders of at least 51% of the outstanding principal of the Notes, shall have
been delivered to the Noteholders;
(b) executed
copies of a consent to this Third Amendment shall have been duly executed by
the
Subsidiaries which are parties to the Subsidiary Guaranties;
(c) the
representations and warranties of the Company set forth in Section 2 hereof
shall be true and correct on and with respect to the date hereof;
(d) the
Company shall have paid a fee to each Noteholder in an amount equal to 5 bps
of
the outstanding principal amount of the Notes held by such
Noteholder;
(e) the
amendment to the Bank Credit Agreement dated March 28, 2007 shall have been
duly executed and delivered by the parties thereto and such agreement shall
be
in form and substance satisfactory to each Noteholder executing this Third
Ame the
Company shall have paid the fees, costs, expenses and disbursements of Xxxxxxx
and Xxxxxx LLP, special counsel to the Noteholders, incurred in connection
with
the consummation of the transactions contemplated by this Third
Amendment.
Upon
receipt of all of the foregoing, this Third Amendment shall become effective.
Delivery of this Third Amendment to the Company, duly executed by the holders
of
at least 51% of the outstanding principal amount of the Notes, shall acknowledge
satisfaction of the foregoing conditions.
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SECTION 4.
|
MISCELLANEOUS.
|
SECTION
4.1. The
Company
acknowledges and agrees that by agreeing to the amendments of the Note Agreement
set forth herein, the Noteholders shall not be deemed to have waived any rights
as on account of any Default or Event of Default which may at any time hereafter
exist under the Note Agreement, which rights are hereby expressly reserved
by
the holders of the Notes.
SECTION 4.2. This
Third Amendment shall be construed in connection with and as part of the Note
Agreement, and except as modified and expressly amended by this Third Amendment,
all terms, conditions and covenants contained in the Note Agreement and the
Notes are hereby ratified and shall be and remain in full force and
effect.
SECTION 4.3. Any
and
all notices, requests, certificates and other instruments executed and delivered
after the execution and delivery of this Third Amendment may refer to the Note
Agreement without making specific reference to this Third Amendment but
nevertheless all such references shall include this Third Amendment unless
the
context otherwise requires.
SECTION 4.4. The
descriptive headings of the various Sections or parts of this Third Amendment
are for convenience only and shall not affect the meaning or construction of
any
of the provisions hereof.
SECTION 4.5. This
Third Amendment shall be governed by and construed in accordance with Illinois
law.
[Signature
Pages to Follow]
The
execution hereof by you shall constitute a contract between us for the uses
and
purposes hereinabove set forth, and this Third Amendment may be executed
in any
number of counterparts, each executed counterpart constituting an original,
but
all together only one agreement.
INSITUFORM
TECHNOLOGIES, INC.
By
/s/
Xxxxx X. Xxxxxx
Its Vice President and Controller
Accepted
and agreed to as of the date first written above:
WACHOVIA
CAPITAL MARKETS, LLC
By
/s/
Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Its Managing Director
Accepted
and agreed to as of the date first written above:
THE
NORTHWESTERN MUTUAL LIFE
INSURANCE
COMPANY
By /s/
Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx
Its
Authorized
Representative
Accepted
and agreed to as of the date first written above:
PRINCIPAL
LIFE INSURANCE COMPANY
By
Principal Global Investors, LLC, a
Delaware limited liability company, its
Authorized Signatory
By /s/
Xxxxx Xxxxxxx
Xxxxx
Xxxxxxx
Its
EPP Counsel
By /s/
Xxxxx X. Xxxxxxx
Xxxxx
X. Xxxxxxx
Its
Assistant General Counsel
MELLON
BANK, N.A., solely
in
its capacity as
Custodian for the Aviva Life - Principal
Glob Priv Structured Settlements XXX XXX
(as directed by the Principal Global
Investors, LLC), and not in its individual
capacity (MAC & CO) - Nominee Name
By
/s/
Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx
Its Authorized Signatory
XXXXXXX
&
CO.,
as
nominee for Comerica
Bank & Trust, National Association, Trustee
to the Trust created by Trust Agreement
dated October 1, 2002
By
/s/
Xxxxxxx Xxxxxx
Xxxxxxx
Xxxxxx
Its
Attorney-in-Fact and Agent
Accepted
and agreed to as of the date first written above:
ASSURITY
LIFE INSURANCE COMPANY
(Successor in Interest to Security
Financial Life Insurance Co.)
By /s/
Xxxxxx X. Xxxxx
Xxxxxx
X.
Xxxxx
Its
Senior Director - Investments
