Ex. 10/2 - First Amendment to Second Amended and Restated Credit Agreement


    Exhibit
      10.2

    
 

    FIRST
      AMENDMENT TO

    SECOND
      AMENDED AND RESTATED CREDIT AGREEMENT

    


    


    This
      FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”) dated as of March 28, 2007, is among INSITUFORM TECHNOLOGIES,
      INC., a Delaware corporation (“Borrower”), each lender party thereto
      (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 (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 Note Purchase Agreement-2003 and 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:

     

    (i)  Executed
      counterparts of this Amendment;

     

    (ii)  Executed
      copies of a consent to this Amendment duly executed by each Guarantor party
      to
      the Master Guaranty;

     

    (iii)  An
      amendment to the Note Purchase Agreement-2003 (the “2003 NPA Amendment”), duly
      executed and delivered by the Borrower and the requisite noteholders thereunder
      needed to approve such amendments and such agreements shall be in form and
      substance satisfactory to the Agent and the Required Lenders; 

     

    (iv)  Copies
      of
      any certificates, documents, consents or opinions delivered by any Loan Party
      in
      connection with the 2003 NPA Amendment; and

     

    (v)  Such
      other assurances, certificates, documents, consents or opinions as the Agent
      reasonably may require.

     

    (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 “Note Purchase Agreement-2003” in Section 1.01 of the Credit
      Agreement is amended and restated in its entirety as follows:

     

    “Note
      Purchase Agreement-2003” means the Note Purchase Agreement dated as of April 24,
      2003, as amended to and including March 28, 2007, among the Borrower and other
      parties signatory thereto under which the Borrower issued certain 5.29% Senior
      Notes, Series 2003-A, due April 24, 2013, of $65,000,000 aggregate principal
      amount; provided,
      however,
      that,
      except with respect to Section
      8.01(e)
      of this
      Agreement (which is a cross default to other Indebtedness, including the Note
      Purchase Agreement-2003 as in effect from time to time), after March 28, 2007,
      no amendments to, or waivers of, the terms, conditions and definitions of the
      Note Purchase Agreement-2003 referred to or incorporated by reference herein
      shall be deemed to amend or waive such terms, conditions and definitions for
      purposes of this Agreement unless the Agent separately agrees or consents
      thereto hereunder. The terms, conditions and definitions referred to or
      incorporated by reference herein will survive termination, restatement or
      cancellation of the Note Purchase Agreement-2003 for purposes of this Agreement
      (other than Section
      8.01(e)).

     

    (b)  The
      Agent
      and the Lenders acknowledge and agree that the Indebtedness outstanding under
      the Note Purchase Agreement-1997 has been paid in full by the Borrower, and,
      notwithstanding anything to the contrary set forth in the Credit Agreement,
      the
      Borrower, the Agent and the Lenders agree that the Borrower shall have no
      further obligation under the Credit Agreement to comply with any terms or
      covenants incorporated by reference to the Note Purchase Agreement-1997. For
      the
      avoidance of doubt, the preceding sentence does not amend, modify or terminate
      any obligation of the Borrower under the Credit Agreement to comply with any
      terms or covenants incorporated by reference to the Note Purchase
      Agreement-2003. 

     

    4.  Waivers
      and Consents.   Subject
      to the terms and conditions set forth herein, the Agent and the Lenders hereby
      consent to the execution and delivery by the Borrower of the 2003 NPA Amendment.
      The consent contained in this Section 4
      is
      specific in intent and is valid only for the specific purpose for which given.
      Nothing contained herein obligates the Agent or the Lenders to agree to any
      additional consents.

     

    5.  Representations
      and Warranties of Borrower.  
      Borrower
      hereby represents and warrants to the Agent and the Lenders that (i) the
      Borrower’s execution of this Amendment has been duly authorized by all requisite
      action of the Borrower; (ii) no consents are necessary from any third parties
      for the Borrower’s execution, delivery or performance of this Amendment, (iii)
      each of this Amendment, the Credit Agreement and any other Loan Documents to
      which a Loan Party is a party constitute the legal, valid and binding
      obligations of such Loan Party, enforceable against such Loan Party in
      accordance with its terms, except to the extent that the enforceability thereof
      against such Loan Party may be limited by bankruptcy, insolvency or other laws
      affecting the enforceability of creditors rights generally or by equity
      principles of general application, (iv) the representations and warranties
      of
      the Borrower contained in Article 5 of the Credit Agreement are true and correct
      in all material respects on and as of the date hereof as if such representations
      and warranties had been made on and as of the date hereof, except to the extent
      such representations and warranties expressly relate to an earlier date, and
      (v)
      after giving effect to this Amendment, there is no Default or Event of Default
      under the Credit Agreement.

     

    6.  Expenses.  The
      Borrower agrees to pay all reasonable out of pocket expenses incurred by the
      Agent (including the reasonable fees, charges and disbursements of counsel
      for
      the Agent) in connection with the preparation, negotiation, execution, delivery
      and administration of this Amendment and the other Loan Documents in accordance
      with Section 10.04 of the Credit Agreement.

     

    7.  Governing
      Law.  This
      Amendment shall be governed by, and construed in accordance with, the law of
      the
      State of Missouri applicable to agreements made and to be performed entirely
      within such state; provided that Agent shall retain all rights arising under
      Federal law.

     

    8.  Section
      Titles.   
      The
      section titles in this Amendment are for convenience of reference only and
      shall
      not be construed so as to modify any provisions of this Amendment.

     

    9.  Counterparts;
      Facsimile Transmissions.   This
      Amendment may be executed in one or more counterparts and on separate
      counterparts, each of which shall be deemed an original, but all of which
      together shall constitute one and the same instrument. Signatures to this
      Amendment may be given by facsimile or other electronic transmission, and such
      signatures shall be fully binding on the party sending the same.

     

    10.  Statutory
      Notice - Oral Commitments.   Nothing
      contained in the following notice shall be deemed to limit or modify the terms
      of the Loan Documents:

     

    ORAL
      AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
      ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
      ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER) AND US (CREDITOR) FROM
      MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
      MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
      STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
      TO MODIFY IT.

    


    


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      IN
        WITNESS WHEREOF, this Amendment has been duly executed as of the date first
        above written.

      


      INSITUFORM
        TECHNOLOGIES, INC. 

      
 

      By:      
           /s/
        David A. Martin     

      Name:   
        David
        A. Martin     

      Title:     
         Vice
        President and Controller  


      


      BANK
        OF
        AMERICA, N.A., as Administrative Agent

       

       

      By:        
        /s/
        Stephen Bode     

      Name:   
        Stephen
        Bode     

      Title:     
        Vice
        President  


      


      


      BANK
        OF
        AMERICA, N.A., as a Lender

       

      
 

      By:        
        /s/
        Stephen Bode     

      Name:   
        Stephen
        Bode     

      Title:     
        Vice
        President