Exhibit 10.2
THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT dated as of June 21, 2013 (the “Agreement”) is entered into among Aegion Corporation (as successor to Insituform Technologies, LLC, f/k/a Insituform Technologies, Inc.), a Delaware corporation (the “Borrower”), the Guarantors, the Lenders and Bank of America, N.A., as Administrative Agent. All capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement (as defined below).
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders and Bank of America, N.A., as Administrative Agent entered into that certain Credit Agreement dated as of August 31, 2011 (as amended and modified from time to time, the “Credit Agreement”);
WHEREAS, the Borrower has informed the Administrative Agent and the Lenders that it intends to acquire all of the Equity Interestsof General Energy Services, a California corporation, Brinderson, L.P., a California limited partnership and Brinderson Constructors, Inc., a California corporation for aggregate consideration not to exceed $150,000,000 plus or minus target working capital adjustments (the “Acquisition Transaction”);
WHEREAS, the Borrower has requested that the Lenders (a) permit the Borrower to consummate the Acquisition Transaction notwithstanding the fact that the Borrower would not be in compliance with the limitations on Acquisitions contained in clause (viii) of the definition of Permitted Acquisitions in Section 1.01 of the Credit Agreement after giving effect to the Acquisition Transaction and (b) amend the Credit Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Consent. Subject to the other terms and conditions of this Agreement, the Lenders hereby agree that the Borrower shall be permitted to consummate the Acquisition Transaction notwithstanding the limitations contained in clause (viii) of the definition of Permitted Acquisitions in Section 1.01 of the Credit Agreement;provided that the Borrower complies with all other conditions contained in the definition of Permitted Acquisitions in Section 1.01 of the Credit Agreement with respect to the Acquisition Transaction. The above consent shall not otherwise modify or affect the Loan Parties’ obligations to comply fully with the terms of Section 8.02 of the Credit Agreement or any other duty, term, condition or covenant contained in the Credit Agreement or any other Loan Document in the future. This consent is limited solely to the Acquisition Transaction, and nothing contained in this Agreement shall be deemed to constitute a waiver of any other rights or remedies the Administrative Agent or any Lender may have under the Credit Agreement or any other Loan Documents or under applicable Law.
2. Amendment. The Credit Agreement is hereby amended as follows:
(a) The following definition is hereby added to Section 1.01 of the Credit Agreement in the appropriate alphabetical order to read as follows:
“Brinderson Acquisition” means the Acquisition by the Borrower of all of the Equity Interestsof General Energy Services, a California corporation, Brinderson, L.P., a California limited partnership and Brinderson Constructors, Inc., a California corporation.
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Confidential Treatment Requested. Certain confidential information in this agreement has been redacted in reliance upon a confidential treatment request filed with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 24 b-2 under the Securities Exchange Act of 1934. In this agreement, we indicate redaction by use of the following symbol [*****]. Such confidential portions have been omitted and filed separately with the Commission. |
(b) The following sentence is hereby added to the end of the definition of “Applicable Rate” in Section 1.01 of the Credit Agreement to read as follows:
Notwithstanding anything to the contrary contained herein, if the Brinderson Acquisition is consummated, the Applicable Rate in effect from the day on which the Brinderson Acquisition is consummated through the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant toSection 7.02(a) for the fiscal quarter ending June 30, 2013 shall be determined based upon the Consolidated Leverage Ratio set forth in the Pro Forma Compliance Certificate received by the Administrative Agent in connection with the Brinderson Acquisition.
(c) The definition of “Consolidated EBITDA” in Section 1.01 of the Credit Agreement is hereby amended to read as follows:
“Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis (inclusive of the acquired operations of Fyfe, *****, Hockway, Ltd., CRTS, Inc., General Energy Services, Brinderson, L.P., and Brinderson Constructors, Inc., as applicable, on a Pro Forma Basis), an amount equal to Consolidated Net Income for such periodplus the following to the extent deducted in calculating such Consolidated Net Income: (a) Consolidated Interest Charges for such period, (b) the provision for federal, state, local and foreign income taxes payable by the Borrower and its Subsidiaries for such period, (c) depreciation and amortization expense for such period, (d) non-cash stock based compensation expense for such period, (e) transaction costs (not including any costs that will be capitalized) of (i) the Borrower in respect of the *****, the Fyfe Acquisition and the Acquisitions of Hockway, Ltd. and CRTS, Inc. and/or their Affiliates or Subsidiaries in an aggregate amount not to exceed $7,200,000, (ii) ***** in an aggregate amount not to exceed $1,000,000, (iii) Fyfe in an aggregate amount not to exceed $2,000,000,(iv) Hockway, Ltd. in an aggregate amount not to exceed $750,000, and (v) CRTS, Inc. in an aggregate amount not to exceed $1,000,000, (f) transaction costs (not including any costs that will be capitalized) of the Borrower in respect of the attempted ***** in an aggregate amount not to exceed $1,000,000, (g) restructuring costs (including severance payments) in an aggregate amount not to exceed $3,000,000 during the twelve-month period ending June 30, 2012, (h) deferred costs associated with refinancing the Existing Credit Agreement, (i) costs (including deferred costs) associated with the redemption of the Senior Notes (including the Make-Whole Payments), and (j) transaction costs (not including any costs that will be capitalized) in respect of the Brinderson Acquisition in an aggregate amount not to exceed (i) $7,000,000 for the Borrower and (ii) $19,000,000 for the Person(s) being acquired pursuant to the Brinderson Acquisition, all as determined in accordance with GAAP and without duplication of any other income statement items used in calculating Consolidated EBITDA on a Pro Forma Basis.
(d) Section 8.11 of the Credit Agreement is hereby amended to read as follows:
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Borrower to be greater than (i) 3.00 to 1.0 as of the end of any fiscal quarter ending during the period from the Closing Date to and including March 31, 2012, (ii) 2.75to 1.0 as of the end of any fiscal quarter ending during the period from June 30, 2012 to and including March 31, 2013, (iii) 2.50to 1.0 as of the end of any fiscal quarter ending during the period from June 30, 2013 to and including March 31, 2014 and (iv) 2.25 to 1.0 as of the end of any fiscal quarter ending thereafter;provided that if the BrindersonAcquisition is consummated, the Borrower shall not permit the Consolidated Leverage Ratio after the end of any fiscal quarter of the Borrower to be greater than (x) 3.00 to 1.0 as of the end of any fiscal quarter ending during the period from June 30, 2013 to and including December 31, 2013, (y) 2.75 to 1.0 as the end of any fiscal quarter ending during the period from March 31, 2014 to and including September 30, 2014 and (y) 2.50 to 1.0 as of the end of any fiscal quarter ending thereafter.
3. Conditions Precedent. This Agreement shall be effective upon receipt by the Administrative Agent of counterparts of this Agreement executed by the Borrower, the Guarantors, the Required Lenders, Lenders holding a majority of the Revolving Commitments and the Administrative Agent.
4. Miscellaneous.
(a) The Credit Agreement and the obligations of the Loan Parties thereunder and under the other Loan Documents, are hereby ratified and confirmed and shall remain in full force and effect according to their terms. This Agreement is a Loan Document.
(b) Each Guarantor (a) acknowledges and consents to all of the terms and conditions of this Agreement, (b) affirms all of its obligations under the Loan Documents and (c) agrees that this Agreement and all documents executed in connection herewith do not operate to reduce or discharge its obligations under the Credit Agreement or the other Loan Documents.
(c) The Borrower and the Guarantors hereby represent and warrant as follows:
(i) Each Loan Party has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement has been duly executed and delivered by the Loan Parties and constitutes each of the Loan Parties’ legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforceability may be subject to (A) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(iii) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by any Loan Party of this Agreement.
(d) The Loan Parties represent and warrant to the Lenders that (i) the representations and warranties of the Loan Parties set forth inArticle VI of the Credit Agreement and in each other Loan Document are true and correct as of the date hereof with the same effect as if made on and as of the date hereof, except to the extent such representations and warranties expressly relate solely to an earlier date and (ii) no event has occurred and is continuing which constitutes a Default or an Event of Default.
(e) This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by telecopy or other secure electronic format (.pdf) shall be effective as an original and shall constitute a representation that an executed original shall be delivered.
(f) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF,the parties hereto have caused this Amendment to be duly executed as of the date first above written.
BORROWER: AEGION CORPORATION,
a Delaware corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
GUARANTORS: INSITUFORM TECHNOLOGIES USA, LLC,
a Delaware limited liability company
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
INA ACQUISITION CORP.,
a Delaware corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
ITI INTERNATIONAL SERVICES, INC.,
a Delaware corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
MISSISSIPPI TEXTILES CORPORATION,
a Mississippi corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
THE BAYOU COMPANIES, LLC,
a Delaware limited liability company
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
KINSEL INDUSTRIES, INC.,
a Texas corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
COMMERCIAL COATING SERVICES INTERNATIONAL, LLC,
a Texas limited liability company
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
INFRASTRUCTURE GROUP HOLDINGS, LLC,
a Delaware limited liability company
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
FIBRWRAP CONSTRUCTION SERVICES, INC.,
a Delaware corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
FIBRWRAP CONSTRUCTION SERVICES USA, INC.,
a Delaware corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
FYFE CO. LLC,
a Delaware limited liability company
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
SPECIALIZED FABRICS LLC,
a Washington limited liability company
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
UNITED PIPELINE SYSTEMS INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
UNITED PIPELINE MIDDLE EAST, INC.,
a Delaware corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
ENERGY & MINING HOLDING COMPANY, LLC,
a Delaware limited liability company
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
CRTS, INC.,
an Oklahoma corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
CORRPRO COMPANIES, INC.,
an Ohio corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
CORRPRO COMPANIES INTERNATIONAL, INC.,
a Nevada corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
OCEAN CITY RESEARCH CORPORATION,
a New Jersey corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
CORRPRO CANADA HOLDINGS, INC.,
a Delaware corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
CORRPRO HOLDINGS LLC,
a Delaware limited liability company
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
INSITUFORM TECHNOLOGIES, LLC,
a Delaware limited liability company
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
UNITED PIPELINE SYSTEMS, INC.,
a Nevada corporation
By: /s/ David A. Martin
Name: David A. Martin
Title: SVP & CFO
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Angelo M. Martorana
Name: Angelo M. Martorana
Title: Assistant Vice President
LENDERS: BANK OF AMERICA, N.A.,
as a Lender, Swing Line Lender and L/C Issuer
By: /s/ Eric A. Escagne
Name: Eric A. Escagne
Title: Senior Vice President
JPMORGAN CHASE BANK, N.A.,
as a Lender and L/C Issuer
By: /s/ Donna B. Kirtian
Name: Donna B. Kirtian
Title: Senior Vice President
FIFTH THIRD BANK,
as a Lender
By: /s/ Traci L. Dodson
Name: Traci L. Dodson
Title: Vice President
REGIONS BANK,
as a Lender
By: /s/ John Holland
Name: John Holland
Title: Senior Vice President
U.S. BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Derek L. Martin
Name: Derek L. Martin
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ David Bentzinger
Name: David Bentzinger
Title: SVP
COMPASS BANK,
as a Lender
By: /s/ John R. Bozalis, Jr.
Name: John R. Bozalis, Jr.
Title: Senior Vice President
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Suzannah Valdivia
Name: Suzannah Valdivia
Title: Vice President
BANK OF THE WEST,
as a Lender
By: /s/ Roger Lumley
Name: Roger Lumley
Title: Senior Vice President
ASSOCIATED BANK, N.A.,
as a Lender
By: /s/ Dennis B. Hirstein
Name: Dennis B. Hirstein
Title: Senior Vice President
HSBC BANK,
as a Lender and L/C Issuer
By: /s/ Matthew McLaurin
Name: Matthew McLaurin
Title: Vice President
BRANCH BANKING & TRUST COMPANY,
as a Lender
By: /s/ Eric Searls
Name: Eric Searls
Title: Senior Vice President
COMERICA BANK,
as a Lender
By: /s/ Mark J. Leveille
Name: Mark J. Leveille
Title: Vice President
NATIONAL BANK OF KUWAIT S.A.K., CAYMAN BRANCH,
as a Lender
By: /s/ Arlette Kittaneh
Name: Arlette Kittaneh
Title: Executive Manager
NATIONAL BANK OF KUWAIT S.A.K., CAYMAN BRANCH
as a Lender
By: /s/ Michael G. McHugh
Name: Michael G. McHugh
Title: Executive Manager
STIFEL BANK & TRUST,
as a Lender
By: /s/ Matthew L. Diehl
Name: Matthew L. Diehl
Title: Senior Vice President
