EXHIBIT 10.2
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INSITUFORM TECHNOLOGIES, INC.
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THIRD AMENDMENT
Dated as of February 28, 2003
to
NOTE PURCHASE AGREEMENTS
Dated as of February 14, 1997
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Re: $110,000,000 7.88% Senior Notes, Series A,
Due February 14, 2007
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THIRD AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS THIRD AMENDMENT dated as of February 28, 2003 (the or this "Third
Amendment") to the Note Purchase Agreements, each dated as of February 14, 1997,
is between INSITUFORM TECHNOLOGIES, INC., a Delaware corporation (the
"Company"), and each of the institutions which is a signatory to this Third
Amendment (collectively, the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore entered
into separate and several Note Purchase Agreements, each dated as of February
14, 1997 as amended by the First Amendment to the Note Purchase Agreements dated
as of August 20, 1997 and as further amended by the Second Amendment to Note
Purchase Agreements dated as of March 30, 2000 (collectively, the "Note
Agreements"), pursuant to which the Company has heretofore issued its 7.88%
Senior Notes, Series A, due February 14, 2007, in the aggregate principal amount
of $110,000,000 (the "Notes"). The Noteholders are the holders of 100% of the
outstanding principal amount of the Notes.
B. The Company and the Noteholders now desire to amend the Note
Agreements 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 Agreements 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 3.1 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. AMENDMENTS.
Section 1.1. The definition of "Loan Agreement" in Exhibit B of the
Note Agreement is hereby deleted in its entirety.
Section 1.2. The definition of "Priority Debt" in Exhibit B of the Note
Agreement is hereby deleted in its entirety and replaced by the following:
"Priority Debt" means, as of the date of any
determination thereof, the sum (without duplication) of (a)
Indebtedness of Subsidiaries on such date, other than (i)
Indebtedness owing to the
Company or any Wholly-owned Subsidiary and (ii) any Guaranty
by any Subsidiary of unsecured Indebtedness of the Company or
any other Subsidiary so long as such Subsidiary provides a
Subsidiary Guaranty and complies with the requirements of
Section 9.8 hereof, and (b) Indebtedness of the Company and
its Subsidiaries secured by Liens permitted by Section
10.5(l)."
Section 1.3. The definition of "Specified Subsidiary Indebtedness" in
Exhibit B of the Note Agreement is hereby deleted in its entirety.
Section 1.4. The second to last sentence of paragraph "E." of the
Intercreditor Agreement is hereby amended in its entirety to read as follows:
"The Bank Guaranty, the Noteholder Guaranty and any
other Guaranty executed by a Subsidiary of the Company for the
benefit of a Creditor which becomes a party to this Agreement
pursuant to ss.3.4 of this Agreement are hereinafter referred
to collectively as the "Subsidiary Agreements".
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 2.1. 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 Agreements, as amended by this Third Amendment,
constitute the legal, valid and binding obligations, contracts and
agreements of the Company enforceable against it in accordance with
their respective 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
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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 2.1(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; and
(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.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS THIRD AMENDMENT.
Section 3.1. This Third Amendment shall not become effective until, and
shall become effective when, each and every one of the following conditions
shall have been satisfied:
(a) executed counterparts of this Third Amendment, duly
executed by the Company and the holders of at least 66-2/3% of the
outstanding principal of the Notes, shall have been delivered to the
Noteholders;
(b) executed copies of a consent to this Agreement shall have
been duly executed by the Subsidiaries which are parties to the
Subsidiary Guaranties;
(c) executed counterparts of an amendment to the
Intercreditor Agreement reflecting the amendment set forth in Section
1.4 of this Agreement shall have been duly executed and delivered by
the Bank, the Company and each Subsidiary delivering a Guaranty to the
Noteholders and the Bank, and shall have been delivered to the
Noteholders; and
(d) the representations and warranties of the Company set
forth in Section 2 hereof are true and correct on and with respect to
the date hereof and a certificate of a Responsible Officer certifying
the same shall have been delivered to the Noteholders.
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 66-2/3% of the outstanding principal amount of the Notes,
shall acknowledge satisfaction of the foregoing conditions.
SECTION 4. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
Section 4.1. The Company agrees to pay upon demand, the reasonable fees
and expenses of Chapman and Cutler, counsel to the Noteholders, in connection
with the negotiation, preparation, approval, execution and delivery of this
Third Amendment.
SECTION 5. MISCELLANEOUS.
Section 5.1. This Third Amendment shall be construed in connection with
and as part of each of the Note Agreements, and except as modified and expressly
amended by this Third
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Amendment, all terms, conditions and covenants contained in the Note Agreements
and the Notes are hereby ratified and shall be and remain in full force and
effect.
Section 5.2. 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 Agreements without making specific
reference to this Third Amendment but nevertheless all such references shall
include this Third Amendment unless the context otherwise requires.
Section 5.3. 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 5.4. This Third Amendment shall be governed by and construed in
accordance with Illinois law.
Section 5.5. 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/ Joseph A. White
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Its Vice President and Chief Financial Officer
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Accepted and agreed to as of the date first written above:
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By /s/
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Its AUTHORIZED REPRESENTATIVE
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PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC, a
Delaware limited liability company,
Authorized Signatory
By /s/ DEBRA SVOBODA EPP
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Its COUNSEL
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By /s/ CLINT WOODS
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Its COUNSEL
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ALLSTATE LIFE INSURANCE COMPANY
By /s/ RHONDA L. HOPPS
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By /s/ JERRY D. ZINKULA
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Authorized Signatories
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CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By: CIGNA Investments, Inc.
By /s/ SEAN M. FEELEY
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Its VICE PRESIDENT
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LIFE INSURANCE COMPANY OF NORTH AMERICA
By: CIGNA Investments, Inc.
By /s/ SEAN M. FEELEY
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Its VICE PRESIDENT
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CONNECTICUT GENERAL LIFE INSURANCE COMPANY, on
behalf of one or more separate accounts
By: CIGNA Investments, Inc.
By /s/ SEAN M. FEELEY
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Its VICE PRESIDENT
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JEFFERSON PILOT FINANCIAL INSURANCE COMPANY
(successor by merger to Alexander Hamilton
Life Insurance Company of America)
By /s/
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Its VICE PRESIDENT
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ALEXANDER HAMILTON LIFE INSURANCE COMPANY OF
AMERICA
By /s/
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Its VICE PRESIDENT
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RELIASTAR LIFE INSURANCE COMPANY,
successor by merger to Northern Life
Insurance Company
RELIASTAR LIFE INSURANCE COMPANY,
successor by merger to ReliaStar United
Services Life Insurance Company
RELIASTAR BANKERS SECURITY LIFE INSURANCE
COMPANY
RELIASTAR LIFE INSURANCE COMPANY
By: ING Investment Management LLC, as Agent
By /s/ JAMES V. WITTICH
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Its SENIOR VICE PRESIDENT
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ACE PROPERTY & CASUALTY INSURANCE COMPANY
By: Stein Roe & Farnham Incorporated, as agent
By /s/ RICHARD A. HEGWOOD
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Name: Richard A. Hegwood
Title: Senior Vice President
THE SECURITY FINANCIAL LIFE INSURANCE CO.
(f/k/a The Security Mutual Life Insurance
Company of Lincoln, Nebraska)
By /s/ KEVIN W. HAMMOND
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Its VICE PRESIDENT - CHEIF INVESTMENT OFFICER
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