FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("Amendment") is
entered into as of February 28, 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 (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. Borrowers have requested that Agent and Lenders make
certain amendments to the Credit Agreement, 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 of 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. Paragraph (a) of Annex B of the Credit
Agreement is hereby amended by deleting the reference to "Ten Million Dollars
($10,000,000)" and replacing it with "Fifteen Million Dollars ($15,000,000)."
b. Paragraph (c) of Annex G of the Credit
Agreement is hereby amended by deleting the reference to "$(16,500,000)" and
replacing it with "($71,000,000)."
C. Paragraph (e) of Annex G of the Credit
Agreement is hereby amended by deleting the reference to $13,500,000," and
replacing it with "$13,750,000."
3. Consent. Notwithstanding any contrary term or provision set
forth in the Credit Agreement or the other Loan Documents, including Section
6.13 of the Credit Agreement, Agent and Lenders hereby consent, subject to the
terms and conditions set forth below, to the cancellation by Itron of
Indebtedness owing to it by Star Data Services in an amount not to exceed
$1,260,000 in connection with the transaction identified in Disclosure Schedule
(6.2).
4. Extension of Deadline for Certain Open Items. At Borrowers'
request, Agent agrees to extend the date for delivery of the following open
items under and as defined in that certain open items letter agreement dated
January 18, 2000 (the "Open Items Letter"), as follows:
a. Paragraph 1 of the Open Items Letter is
amended to provide that on or before March 31, 2000, Borrowers shall deliver
or cause to be delivered to Agent:
(i) with respect to UTS, a tax good standing certificate
for the State of Washington;
(ii) with respect to Itron, a tax good standing
certificate for the District of Columbia; and
(iii) with respect to Itron Finance, a tax good standing
certificate for the State of Washington.
b. Paragraph 2 of the Open Items Letter is
amended to provide that on or before March 31, 2000, Borrowers shall deliver or
cause to be delivered, a copy of Itron's and UTS' secretary's certificate to
Wells Fargo Bank, N.A., that attaches a duly authorized and adopted resolution
by the Board of Directors of such Borrower in form and substance satisfactory to
Wells Fargo Bank, N.A., regarding the Lockbox Account Agreement of such
Borrower.
If Borrowers are unable to deliver or cause the delivery by the applicable
period for delivery therefor, then such failure shall constitute an Event of
Default under the Credit Agreement.
5. Conditions to Effectiveness. The effectiveness of this
Amendment is subject to satisfaction of each of the following conditions:
a. receipt by Agent of copies of this Amendment
duly executed by each Borrower, each other Credit Party, and Lenders
constituting Requisite Lenders; and
b. the absence of any Defaults or Events of
Default as of the date hereof.
6. 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.
7. 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 applies 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.
8. 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.
9. 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, 3 and 4 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]
IN WITNESS WHEREOF, this Amendment 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
Name: David G. Remington
Title: Vice President & CEO
UTILITY TRANSLATION SYSTEMS, INC., as a
Borrower and a Credit Party
By: /s/ David G. Remington
Name: David G. Remington
Title: Vice President & CEO
ITRON INTERNATIONAL, INC., as a Guarantor
and a Credit Party
By: /s/ David G. Remington
Name: David G. Remington
Title: Treasurer
ITRON FINANCE, INC., as a Guarantor and a
Credit Party
By: /s/ David G. Remington
Name: David G. Remington
Title: Vice President & CEO
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and a Lender
By: /s/ Mark Mascia
Mark Mascia
Duly Authorized Signatory