THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT ("Amendment") is
entered into as of June 30, 2000, by and among ITRON, INC., a Washington
corporation ("Itron") and UTILITY TRANSLATION SYSTEMS, INC., a North Carolina
corporation ("UTS") (Itron and UTS are sometimes collectively referred to herein
as the "Borrowers" and individually as a "Borrower"), the other Credit Parties
signatory hereto; the lenders signatory hereto (each individually a "Lender")
and collectively the "Lenders"); and GENERAL ELECTRIC CAPITAL CORPORATION, a New
York corporation (in its individual capacity, "GE Capital"), for itself, as a
Lender, and as administrative agent for Lenders (in such capacity, "Agent").
RECITALS
A. Borrowers, the other Credit Parties signatory hereto,
Lenders, and Agent have entered into that certain Credit Agreement dated as of
January 18, 2000, as amended by the First Amendment to Credit Agreement dated as
of February 28, 2000, and the Second Amendment to Credit Agreement dated as of
March 30, 2000 (the "Credit Agreement"); pursuant to which Agent and Lenders are
providing financial accommodations to or for the benefit of Borrowers upon the
terms and conditions contained therein. Unless otherwise defined herein,
capitalized terms or matters of construction defined or established in Annex A
to the Credit Agreement shall be applied herein as defined or established
therein.
B. Borrower has requested that Agent and Lenders amend the
Credit Agreement and other Loan Documents, and Agent and Lenders are willing to
do so subject to the terms and conditions of this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the continued performance
by Borrowers and each other Credit Party of their respective promises and
obligations under the Credit Agreement and the other Loan Documents, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Borrowers, the other Credit Parties signatory hereto,
Lenders, and Agent hereby agree as follows:
1. Ratification and Incorporation of Credit Agreement
and Other Loan Documents. Except as expressly modified under this Amendment,
(a) each Borrower and each other Credit Party hereby acknowledges, confirms,
and ratifies all of the terms and conditions set forth in, and all of
their respective obligations under, the Credit Agreement and the other Loan
Documents, including the provisions of Section 12 of the Credit Agreement,
and (b) all of the terms and conditions set forth in the Credit Agreement and
the other Loan Documents are incorporated herein by this reference as if set
forth in full herein.
2. Amendments to Credit Agreement.
a. Section 6.2(h) of the Credit Agreement is
hereby deleted in its entirety and the following is substituted therefore:
(h) so long as Agent has not delivered an Activation
Notice, Credit Parties may make investments, subject
to Control Letters in favor of Agent for the benefit
of Lenders or otherwise subject to a perfected
security interest in favor of Agent for the benefit
of Lenders, in (i) marketable direct obligations
issued or unconditionally guaranteed by the United
States of America or any agency thereof maturing
within 13 months from the date of acquisition
thereof, (ii) master notes and commercial paper
maturing no more than 13 months from the date of
creation thereof and for which the issues or issuers
currently have the highest rating obtainable from
either Standard & Poor's Corporation or Moody's
Investors Service, Inc., (iii) certificates of
deposit maturing no more than 13 months from the date
of creation thereof issued by commercial banks
incorporated under the laws of the United States of
America, each having combined capital, surplus and
undivided profits of not less than $300,000,000 and
having a senior secured rating of "A" or better by a
nationally recognized rating agency (an "A Rated
Bank"), (iv) time deposits maturing no more than 30
days from the date of creation thereof with A Rated
Banks, and (v) reverse purchase agreements covering
obligations of the type specified in clause (i)
above.
b. Section 6.3(a)(viii) of the Credit
Agreement entirety and the following is substituted therefor:
(viii) unsecured Indebtedness of Itron (including unsecured
performance or bid bonds for which Itron may become directly
or contingently liable and that are in a form that is
customary for Itron's industry) that supports the obligations
of any Credit Party and that does not attain a priority over
the Liens granted to Agent, for the benefit of Agent and
Lenders, under the Loan Documents,
c. Section 8. 1 (e) of the Credit Agreement is
hereby deleted in its entirety and the following is substituted therefor:
(e) A default or breach shall occur under
(i) any other agreement, document or instrument (including any
performance or bid bond) to which any Credit Party is a party
that is not cured within any applicable grace period therefor,
and such default or breach (a) involves the failure to make
any payment when due or perform any obligation when due, in
either case in respect of any Indebtedness (other than the
Obligations) of any Credit Party in excess of $250,000 in the
aggregate, or (b) causes, or permits any holder of such
Indebtedness or a trustee to cause, Indebtedness or a portion
thereof in excess of $250,000 in the aggregate to become due
prior to its stated maturity or prior to its regularly
scheduled dates of payment, regardless of whether such default
is waived, or such right is exercised, by such holder or
trustee, or (ii) any of the Subordinated Debt Documents that
is not cured within any applicable grace period therefor.
d. Clause (c) of the definition of
"Indebtedness" in Annex of the Credit Agreement is hereby deleted in its
entirety and the following is substituted therefor:
(c) all payment or. performance obligations evidenced by
notes, bonds, debentures or similar instruments,
3. Conditions to Effectiveness. The effectiveness of
this Amendment satisfaction of each of the following conditions:
(a) receipt by Agent of copies of this Amendment
Borrower, each other Credit Party, and Lenders constituting Requisite Lenders;
(b) (i) receipt by Agent of copies of the
fully-executed letter agreement by and among each Borrower, each other Credit
Party, and GE Capital, as Agent and Lender, pursuant to which Borrowers are
acknowledging certain matters with respect to the bank accounts of Itron and
UTS, Account Nos. 4375688983 and 4375689015, at Wells Fargo Bank, N.A.
("Wells Fargo"), and (ii) satisfaction of all conditions set forth in such
letter agreement; and
(c) the absence of any Defaults or Events of
Default as of the date hereof.
4. Entire Agreement. This Amendment, together with the Credit
Agreement and the other Loan Documents, is the entire agreement between the
parties hereto with respect to the subject matter hereof. This Amendment
supersedes all prior and contemporaneous oral and written agreements and
discussions with respect to the subject matter hereof.
5. Representations and Warranties. Each of each Borrower and
each other Credit Party hereby represents and warrants that the representations
and warranties contained in the Credit Agreement were true and correct in all
material respects when made and, except to the extent that (a) a particular
representation or warranty by its terms expressly applie only to an earlier
date or (b) Borrowers or any other Credit Party, as applicable, has previously
advised Agent in writing as contemplated under the Credit Agreement, are true
and correct in all material respects as of the date hereof.
6. Guarantor Consents. By signing this Amendment, each
Guarantor hereby (a) ratifies and reaffirms, as of the date hereof, all of the
provisions of that certain Continuing Guaranty dated as of January 18, 2000,
in favor of Agent, (b) acknowledges receipt of a copy of this Amendment, and (c)
consents to all of the provisions of this Amendment.
7. Miscellaneous.
(a) Counterparts. This Amendment may be
executed in identical counterpart copies, each of which shall be an original,
but all of which shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart
thereof.
(b) Headings. Section headings used
herein are for convenience of reference only, are not part of this Amendment,
and are not to be taken into consideration in interpreting this Amendment.
(c) Recitals. The recitals set forth at
the beginning of this Amendment are true and correct, and such recitals are
incorporated into and are a part of this Amendment.
(d) Governing Law. This Amendment shall
be governed by, and construed and enforced in accordance with, the laws of the
State of California applicable to contracts made and performed in such state,
without regard to the principles thereof regarding conflict of laws.
(e) STATUTE OF FRAUDS. ORAL AGREEMENTS
OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING
REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
(f) Effect. Upon the effectiveness of
this Amendment, from and after the date hereof, each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," or words of like import
shall mean and be a reference to the Credit Agreement as amended hereby and
each reference in the other Loan Documents to the Credit Agreement,
"thereunder," "thereof," or words of like import shall mean and be a reference
to the Credit Agreement as amended hereby.
(g) No Novation. Except as expressly
provided in Sections 2 and 3 of this Amendment, the execution, delivery, and
effectiveness of this Amendment shall not (i) limit, impair, constitute a waiver
of, or otherwise affect any right, power, or remedy of Agent or any Lender
under the Credit Agreement or any other Loan Document, (ii) constitute a waiver
of any provision in the Credit Agreement or in any of the other Loan Documents,
or (iii) alter, modify, amend, or in any way affect any of the terms,
conditions, obligations, covenants, or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed
in all respects and shall continue in full force and effect.
(h) Conflict of Terms. In the event of any
inconsistency between the provisions of this Amendment and any provision of the
Credit Agreement, the terms and provisions of this Amendment shall govern
and control.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Third Amendment to Credit Agreement
has been duly executed as of the date first written above.
ITRON, INC., as a Borrower and a Credit Party
By: /s/ David G. Remington
David G. Remington
Vice President and Chief Financial Officer
UTILITY TRANSLATION SYSTEMS, INC., as a
Borrower and a Credit Party
By: /s/ David G. Remington
David G. Remington
Vice President and Chief Financial Officer
ITRON INTERNATIONAL, INC., as a Guarantor and
a Credit Party
By: /s/ David G. Remington
David G. Remington
Vice President and Chief Financial Officer
ITRON FINANCE, INC., as a Guarantor and a
Credit Party
By: /s/ David G. Remington
David G. Remington
Vice President and Chief Financial Officer
GENERAL ELECTRIC CAPITAL CORPORATION, as
Agent and a Lender
By: /s/ Mark Mascia
Mark Mascia
Duly Authorized Signatory
