EXHIBIT 10.23
FOURTH AMENDMENT
Dated as of April 19, 2005
This FOURTH AMENDMENT (this "Amendment") is entered into among ITRON, INC.,
a Washington corporation (the "Borrower"), BEAR, XXXXXXX & CO. INC., as sole
lead arranger and sole bookrunner (in such capacity the "Lead Arranger"), BEAR
XXXXXXX CORPORATE LENDING INC., as syndication agent (in such capacity the
"Syndication Agent") and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
administrative agent acting upon consent by the Required Lenders (in such
capacity the "Administrative Agent").
PRELIMINARY STATEMENTS
1. Reference is made to the Credit Agreement dated as of December 17, 2003
among the Borrower, the Lenders party thereto, the Lead Arranger, the
Syndication Agent and the Administrative Agent (as amended by the First
Amendment dated as of March 15, 2004, the Second Amendment dated as of May 14,
2004 and the Third Amendment dated as of June 30, 2004, the "Credit Agreement").
Capitalized terms used but not otherwise defined herein are used with the
meanings given in the Credit Agreement.
2. The Borrower has requested that the Credit Agreement be amended as
herein set forth.
3. The Administrative Agent, acting upon consent by the Required Lenders,
and the Lead Arranger and Syndication Agent are willing to enter into such
amendment, on the terms and conditions stated below.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment to Credit Agreement.
(a) Section 1.1 of the Credit Agreement is amended to add the following new
definitions in the appropriate alphabetical order:
(i) "Fourth Amendment": the Fourth Amendment to this Agreement, dated
as of April 19, 2005.
(ii) "Fourth Amendment Effective Date": the date on which the Fourth
Amendment became effective as set forth in Section 2 thereof.
(iii) "Incremental Amount": at any time, the excess, if any, of (a)
$20,000,000 over (b) the aggregate amount of all Incremental Commitments
established prior to such time pursuant to Section 3.15.
(iv) "Incremental Commitment": a new or additional Revolving
Commitment permitted by Section 3.15.
(v) "Incremental Commitment Agreement": an agreement delivered by an
Incremental Lender, in form and substance reasonably satisfactory to the
Lead Arranger and Administrative Agent and accepted by them and the Loan
Parties, by which an Incremental Lender approved by the Lead Arranger and
Administrative Agent confirms its Incremental Commitment.
(vi) "Incremental Lender": a Lender, Approved Fund or other Person
that delivers an Incremental Commitment.
(b) The definition of "L/C Commitment" contained in Section 1.1 of the
Credit Agreement is amended so it reads as follows:
"L/C Commitment": $55,000,000 increasing to not more than $65,000,000
on a dollar for dollar basis with each Incremental Commitment as it becomes
effective.
(c) The Credit Agreement is amended by inserting the following new Section
3.15:
3.15 Increase in Revolving Commitments.
(a) With the consent of the Lead Arranger and the Administrative Agent,
the Borrower from time to time may request Incremental Commitments in
an amount not to exceed the Incremental Amount from Lenders or other
Persons approved by the Lead Arranger and Administrative Agent willing
to provide such Incremental Commitments. No Agent or Lender shall be
obligated to deliver or fund any Incremental Commitment. Incremental
Commitments shall be in minimum increments of $1,000,000 and a minimum
amount of $5,000,000 (or, if less, the remaining Incremental Amount).
(b) No Incremental Commitment shall be effective unless (i) the Borrower
delivers to the Administrative Agent an Incremental Commitment
Agreement executed and delivered by the Loan Parties and proposed
Incremental Lender and such other documentation relating thereto as
the Lead Arranger or Administrative Agent may reasonably request and
(ii) such Incremental Commitment Agreement is acceptable to, and
accepted by, the Lead Arranger and the Administrative Agent. Each
Incremental Commitment Agreement shall constitute a Loan Document and,
to the extent set forth therein, an amendment of this Agreement, and
such amendment shall be effective when and as set forth therein and
need not be executed, delivered or consented to by any other Agent or
Lender.
(c) The Administrative Agent shall promptly notify each Lender whenever
any Incremental Commitment becomes effective.
(d) No Incremental Commitment Agreement shall become effective unless the
Administrative Agent has received (i) a certificate executed by a
Responsible Officer of the Borrower to the effect that the conditions
set forth in Sections 6.2(a) and 6.2(b) are satisfied on the date the
Incremental Commitment Agreement is delivered to the Administrative
Agent and on its proposed effective date and (ii) such additional
Security Documents, legal opinions, board resolutions, certificates
and documentation as may be required by such Incremental Commitment
Agreement or reasonably requested by the Administrative Agent.
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(e) The Administrative Agent may reset Interest Periods for outstanding
Eurodollar Tranches, require repayment of non-pro rata fundings of
Revolving Loans and take other such action as it may deem appropriate
to cause all Revolving Commitments to be funded on a pro rata basis
and all Revolving Loans to be included on a pro rate basis in each
outstanding Borrowing of Revolving Loans, and the Borrowers agree that
Section 4.11 shall apply to any conversion of Eurodollar Loans to Base
Rate Loans or other reset of Interest Periods or repayment of
Revolving Loans required by the Administrative Agent to effect the
foregoing.
(d) The table in Section 8.1(a) of the Credit Agreement is amended by
inserting "3.75" in place of the amount set forth opposite "June 30, 2005" and
by inserting "3.50" in place of the amount set forth opposite "September 30,
2005".
(e) The table in Section 8.1(b) of the Credit Agreement is amended by
inserting "1.90" in place of the amount set forth opposite "June 30, 2005" and
by inserting "1.75" in place of the amount set forth opposite "September 30,
2005".
SECTION 2. Conditions to Effectiveness. The amendments contained in Section
1 shall be effective upon satisfaction of each of the following conditions
precedent on or before April 19, 2005:
(a) The Administrative Agent shall have executed this Amendment, shall have
received written authorization to execute this Amendment from Lenders
constituting the Required Lenders and shall have received counterparts of this
Amendment executed by the Lead Arranger, the Syndication Agent and the Borrower
and counterparts of the Consent appended hereto (the "Consent") executed by the
Grantors, as defined in the Guarantee and Collateral Agreement (the "Grantors").
(b) All fees and expense reimbursements payable by any Loan Party to any
Agent shall have been paid.
(c) The Administrative Agent shall have received such legal opinions,
certificates documents and instruments as any Agent may reasonably request..
SECTION 3. Representations and Warranties.
The Borrower represents and warrants that:
(a) Authority. The Borrower has the requisite power and authority to
execute, deliver and perform its obligations under this Amendment. Each Grantor
has the requisite power and authority to execute, deliver and perform its
obligations under the Consent and the Loan Documents, as amended hereby. The
execution, delivery and performance by the Borrower of this Amendment and by the
Grantors of the Consent, and the performance by each Loan Party of each Loan
Document (as amended hereby) to which it is a party have been duly approved by
all necessary organizational action of such Loan Party.
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(b) Enforceability. This Amendment has been duly executed and delivered by
the Borrower and the Consent has been duly executed and delivered by each
Grantor. When this Amendment becomes effective as set forth in Section 2, each
of this Amendment, the Consent and each Loan Document (as amended hereby) is the
legal, valid and binding obligation of each Loan Party party thereto,
enforceable against such Loan Party in accordance with its terms except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought in proceedings in equity or at law).
(c) Representations and Warranties. The representations and warranties made
by each Loan Party in the Loan Documents are true and correct in all material
respects on the date hereof, and will be true and correct in all material
respects when this Amendment becomes effective, both before and after giving
effect to this Amendment, except to the extent that such representations and
warranties refer to an earlier date (in which case they are true and correct in
all material respects as of such earlier date).
(d) No Default. No Default has occurred and is continuing.
SECTION 4. Reference to and Effect on the Loan Documents.
(a) If and when this Amendment becomes effective, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the other Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby.
(b) The Credit Agreement, as amended hereby, and the Guarantee and
Collateral Agreement and the other Loan Documents are and shall continue to be
in full force and effect and are hereby in all respects ratified and confirmed.
Without limiting the generality of the foregoing, the Security Documents and all
of the Collateral described therein do and shall continue to secure the payment
of all Obligations under and as defined in the Credit Agreement, as amended
hereby.
(c) The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of any Lender or Agent under
any of the Loan Documents or constitute, except as expressly set forth herein, a
waiver or amendment of any provision of any of the Loan Documents.
(d) This Amendment is a Loan Document. The provisions of Sections 11.12 and
11.16 of the Credit Agreement shall apply with like effect to this Amendment.
SECTION 5. Counterparts. This Amendment and the Consent may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same agreement. Delivery of an executed counterpart of a signature page to this
Amendment (or any authorization to execute this Amendment) or the Consent by
facsimile shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 6. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
ITRON, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: S.V.P. and C.F.O.
BEAR, XXXXXXX & CO. INC.,
as Lead Arranger
By: /s/ Xxxxxxx Xxxx Xxxxx
----------------------
Name: Xxxxxxx Xxxx Xxxxx
Title: Senior Managing Director
BEAR XXXXXXX CORPORATE LENDING INC.,
individually and as Syndication Agent
By: /s/ Xxxxxxx Xxxx Xxxxx
----------------------
Name: Xxxxxxx Xxxx Xxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
individually and as Administrative Agent
By: /s/ Xxx Xxxx
-----------------------------------
Name: Xxx Xxxx
Title: V.P. & SR. Relationship Manager
