Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Current Report 11 51K
2: EX-1 Underwriting Agreement 7 29K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 7 28K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 7 30K
5: EX-4 Instrument Defining the Rights of Security Holders 138 521K
6: EX-5 Opinion re: Legality 30 97K
7: EX-6 Opinion re: Discount on Capital Shares 5 21K
8: EX-7 Opinion re: Liquidation Preference 4 18K
9: EX-23.A Consent of Experts or Counsel 1 8K
10: EX-23.B Consent of Experts or Counsel 1 8K
11: EX-99 Miscellaneous Exhibit 42 213K
EX-6 — Opinion re: Discount on Capital Shares
| EX-6 | 1st Page of 5 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 5(c)
SWING LINE PROMISSORY NOTE
$5,000,000 October 25, 1995
For value received, the undersigned, INSITUFORM TECHNOLOGIES,
INC., a Delaware corporation (the "Borrower") promises to pay on
the earlier of DEMAND or the Swing Line Termination Date to the
order of SUNTRUST BANK, NASHVILLE, NATIONAL ASSOCIATION, a national
banking association (the "Lender") at its principal office in
Nashville, Tennessee, or at such other place as Lender may
designate in writing, the principal sum of up to Five Million
Dollars ($5,000,000) in lawful money of the United States of
America, or, if less, so much thereof as may be from time to time
advanced by Lender to the Borrower hereunder and remain
outstanding, together with interest from the date hereof on the
unpaid principal balance outstanding from time to time hereon
computed from the date of each advance until the Maturity Date
(hereafter defined) at a varying rate of interest which is one-half
of one percentage point (0.5%) per annum below the base rate of
interest from time to time charged by SunTrust Bank, Nashville,
National Association. Interest for each year shall be computed
based upon a 360-day year of actual days elapsed. The "base rate of
interest" is defined as that rate of interest established from time
to time and announced by SunTrust Bank, Nashville, National
Association as its "base rate," such rate being an interest rate
used as an index for establishing interest rates on loans. The rate
of interest provided herein shall be determined daily to reflect
changes in the base rate of interest charged by SunTrust Bank,
Nashville, National Association as such base rate of interest may
change from time to time. Interest shall be paid to the Lender on
the last Business Day of each month for the preceding month (or
portion thereof) following the date of execution.
This Note is issued pursuant to, and is the Swing Line Note
referred to in, that certain Credit Agreement of even date herewith
by and between Borrower, Lender, the other lenders set forth on the
signature pages thereof and SunTrust Bank, Nashville, National
Association, as Agent (as it may be amended, restated and/or
modified from time to time, the "Credit Agreement"). This Note, and
all advances hereunder, and repayment hereof, is subject to the
terms and provisions of the Credit Agreement. Any term not
otherwise defined in this Note shall have the same meaning as in
the Credit Agreement. Reference is made to the Credit Agreement,
which, among other things, provides for the automatic maturity
hereof upon the occurrence of certain events in certain
circumstances and upon certain terms and conditions. Borrower's
failure to pay this Note prior to the Maturity Date (as hereinafter
defined) shall not be considered a default hereunder if full
payment of this Note is made by Borrower on the Maturity Date.
Borrower shall be entitled to borrow, repay and reborrow funds
hereunder, up to the Swing Line Loan Maximum Amount, pursuant to
the terms and conditions of this Note and the Credit Agreement. On
any Business Day on or prior to the Swing Line Termination Date,
Borrower may request an advance pursuant to this Note by a
communication received by Lender not later than 11:00 a.m. o'clock
Central Standard Time or Central Daylight Time, whichever is in
effect, requesting an advance in a minimum amount of $10,000. The
following persons are authorized to request an advance hereunder:
James D. Krugman, Jean-Paul Richard or William A. Martin, or such
other person as may be designated in writing by Borrower (which
writing purportedly shall be signed by one of the aforementioned
individuals or by his successor designated as aforesaid).
Nothing in this Note shall be deemed a commitment to make an
advance to Borrower subsequent to the Swing Line Termination Date
or the Maturity Date. The Lender shall make the advance by
depositing such advance into the Borrower's operating account
maintained with Lender. The term "Business Day" means a day other
than a Saturday, Sunday, or a day on which commercial banks are
authorized to close under federal laws or the laws of the State of
Tennessee, or other day on which Lender is closed.
On the date that is the earlier of (a) three Business Days
after demand by Lender for repayment hereunder, or (b) the date
Borrower files any petition in bankruptcy or three Business Days
after it has had filed against it any such petition, or three
Business Days after any other date on which Lender is for any
reason precluded under law from making demand on Borrower under
this Note, or (c) the Swing Line Termination Date (the earliest of
such dates being referred to herein as the "Maturity Date"), the
entire principal amount outstanding hereunder, together with all
accrued interest and any fees or other charges hereunder, shall be
immediately due and payable. Borrower acknowledges that the actual
crediting of the amount of any advance to an account of Borrower,
or the transfer to Borrower, or to any bank for the account of
Borrower, of any advance shall constitute presumptive evidence of
such advance and that an advance to Borrower was made pursuant to
this Note.
Any borrowing under this Note shall be deemed a representation
and warranty that all amounts outstanding under this Note, plus all
advances requested to be made hereunder, do not exceed the Swing
Line Loan Maximum Amount, and that all amounts outstanding under
the this Note, plus all advances requested to be made hereunder,
plus all amounts outstanding under all Revolving Credit Loans
described in the Credit Agreement, plus the aggregate face amounts
of all Letters of Credit then outstanding, do not exceed the
Maximum Total Amount (as such term is used in the Credit
Agreement). Any request for a borrowing shall also be deemed a
representation by Borrower that it does not have any knowledge that
any Event of Default has occurred and is then existing, and that
the representations and warranties set forth in the Credit
Agreement are true and correct.
Advances may be prepaid at any time before their or its
maturity without penalty or premium.
This Note is a revolving credit note and it is contemplated
that by reason of payments hereon, there may be times when no
indebtedness is owing hereunder. Notwithstanding such occurrence,
this Note shall remain valid and in full force and effect as to
each advance made hereunder. This Note shall be valid and
enforceable as to the aggregate amount advanced at any time
hereunder, plus interest thereon, whether or not the full face
amount hereof is advanced.
Notwithstanding anything to the contrary contained herein,
Lender may cancel its option to make advances under this Note, in
its sole discretion, at any time in accordance with the Credit
Agreement, and/or upon any Event of Default by Borrower under the
Credit Agreement. Any such cancellation shall in no way lessen or
release Borrower's obligations hereunder.
All parties now or hereafter liable with respect to this Note,
whether the Borrower or any guarantor, endorser or any other person
or entity, hereby waive presentment for payment, demand, notice of
non-payment or dishonor, protest and notice of protest. No delay or
omission on the part of the Lender, or any holder hereof, in
exercising its rights under this Note shall operate as a waiver of
such rights or any other right of the Lender or of any holder
hereof of any such right or rights on any occasion be deemed a bar
to, or waiver of, the same right or rights on any future occasion.
Lender may, but shall not be required to, apply to the payment
of any advance hereunder, on or after the maturity of such advance,
any funds or credit held by Lender on deposit for the account of
Borrower or any other party liable hereon.
Following the earlier of (a) three Business Days after demand
by Lender for repayment hereunder, or (b) the occurrence of any
Event of Default under the Loan Agreement (any such event being a
default hereunder), then at the option of Lender or automatically
in the case of Events of Default under Sections 8.01(h) or (i)
under the Credit Agreement, all unpaid amounts advanced hereunder
and interest thereon may be accelerated and become due in
accordance with the Credit Agreement regardless of the due date of
any advance made hereunder. Lender may waive any default before or
after the same has been declared and restore this Note to full
force and effect without impairing any of Lender's rights
hereunder, such right of waiver being a continuing one.
Borrower shall have no right to assign any rights or
obligations under this Note without the written consent of Lender.
Following the earlier to occur of (a) three Business Days
after demand is made hereunder, or (b) the occurrence of an Event
of Default, principal and unpaid interest shall bear interest at
the rate that is the lesser of (a) the maximum lawful rate of
interest permitted by law, or (b) four percentage points (4%) above
the Base Rate, until paid. The undersigned will pay all costs and
expenses in connection with the collection, enforcement, protection
and/or litigation with regard to this Note and/or any of Lender's
rights hereunder, including without limitation reasonable
attorneys' fees.
The makers, endorsers, guarantors and all parties to this Note
and all who may become liable for same, jointly and severally waive
presentment for payment, protest, notice of protest, notice of
nonpayment of this Note, demand and all legal diligence in
enforcing collection, and hereby expressly agree that the lawful
owner or holder of this Note may defer or postpone collection of
the whole or any part thereof, either principal and/or interest, or
may extend or renew the whole or any part thereof, either principal
and/or interest, or may accept additional collateral or security
for the payment of this Note, or may release the whole or any part
of any collateral security and/or liens given to secure the payment
of this Note, or may release from liability on account of this Note
any one or more of the makers, endorsers, guarantors and/or other
parties thereto, all without notice to them or any of them; and
such deferment, postponement, renewal, extension, acceptance of
additional collateral or security and/or release shall not in any
way affect or change the obligation of any such maker, endorser,
guarantor or other party to this Note, or of any who may become
liable for the payment thereof.
Borrower shall pay a "late charge" of five percent (5%) of any
payments of principal and/or interest due when paid after the due
date thereof (provided that in no event shall said "late charge"
result in the payment of interest in excess of the maximum lawful
rate of interest permitted by applicable law), to cover the extra
expenses involved in handling delinquent payments.
The term "maximum lawful rate of interest" as used herein
shall mean a rate of interest equal to the higher or greater of the
following: (a) the "applicable formula rate" defined in Tennessee
Code Annotated Section 47-14-102(2), or (b) such other rate of
interest as may be charged under other applicable laws or
regulations.
This Note has been executed and delivered in, and shall be
governed by and construed according to the laws of the State of
Tennessee except to the extent pre-empted by applicable laws of the
United States of America.
This Note may not be changed or terminated without the prior
written approval of Lender and Borrower. No waiver of any term or
provision hereof shall be valid unless in writing signed by the
holder.
IN WITNESS WHEREOF, the duly authorized officer of the
Borrower, being an authorized signatory, has executed this Note as
of the day and date first set forth above.
INSITUFORM TECHNOLOGIES, INC.
By: s/William A. Martin
--------------------------------
Title: Senior Vice President
-----------------------------
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘8-K’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 11/1/95 |
| For Period End: | | 10/25/95 | | 1 | | | | | 10-C |
| List all Filings |
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