Exhibit
10.1
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
THIRD
AMENDMENT
TO
NOTE PURCHASE
AGREEMENT
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 o
