Ex. 10.1 - Note Purchase Agreement Amendment


    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 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 Chapman
      and Cutler 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.  

     

    
      	
              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/
        David A. Martin

             
        Its Vice President and Controller

      


       

      
        
          
            


          

          
          

        

        
          
          

          
            

          

        

        
          
          

          
          

        

      


      


      Accepted
        and agreed to as of the date first written above:

       

      WACHOVIA
        CAPITAL MARKETS, LLC

      


      


      By  
         /s/
        Mark W. Ponder

             
        Mark W. Ponder

             
        Its Managing Director

      


       

      
        
          
             

          

          
          

        

        
          
          

          
            

          

        

        
          
          

          
          

        

      

      


       

      Accepted
        and agreed to as of the date first written above:

       

      


      THE
        NORTHWESTERN MUTUAL LIFE 

      INSURANCE
        COMPANY

      


      


      By    /s/
        Richard A. Strait

              Richard
        A. Strait

                                                  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/
          Debra Svoboda 

                 Debra
          Svoboda 

                 Its
          EPP Counsel

        


                

        By    /s/
          James C. Fifield 

                 James
          C. Fifield

                 Its
          Assistant General Counsel

                      

      

      


      MELLON
        BANK, N.A., solely
        in
        its capacity as 

           
        Custodian for the Aviva Life - Principal 

           
        Glob Priv Structured Settlements IMM ANN 

           
        (as directed by the Principal Global 

           
        Investors, LLC), and not in its individual 

           
        capacity (MAC & CO) - Nominee Name

      


       

      By    
        /s/
        Bernadette Rist 

              
        Bernadette Rist

              
        Its Authorized Signatory

              

                                     
 CALHOUN
&
CO.,
as
        nominee for Comerica 

                                                   
        Bank & Trust, National Association, Trustee 

                                                                                                                   
        to the Trust created by Trust Agreement 

                                                                                                                   
        dated October 1, 2002

       

       

                                                                                    
        By    
        /s/
        Annette Lawson 

                                                                                                                 Annette
        Lawson

      
           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/
        Victor D. Weber 

                Victor
        D.
        Weber

      Its
        Senior Director - Investments