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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:
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(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.
(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) :
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APPLICABLE RATE
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Pricing Level
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Consolidated Leverage Ratio
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Base Rate
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