Exhibit 4.11
SIXTH AMENDMENT
Dated as of December 19, 2005
This SIXTH AMENDMENT (this "Amendment") is entered into among
ITRON, INC., a Washington corporation (the "Borrower"), the Tranche C Term
Lenders party hereto, 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 (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 from time to time
prior to the date hereof 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 parties hereto 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 correct alphabetical order:
(i) "Liberty Lake Facility": the office building located at 0000
Xxxxx Xxxxxx Xxxx, Xxxxxxx Xxxx, XX 00000.
(ii) "Spokane Facility": the corporate headquarters of the
Borrower, located at 0000 Xxxxx Xxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxx.
(b) Section 8.2 of the Credit Agreement is hereby amended (i) to
delete the word "and" at the end of clause (i) thereof, (ii) re-letter clause
"(j)" thereof as clause "(k)" and (iii) add the following new clause (j):
"(j) Indebtedness of the Borrower incurred to finance or
refinance the Liberty Lake Facility in an aggregate
principal amount not to exceed $20,000,000; and"
(c) Section 8.3 of the Credit Agreement is hereby amended (i) to
delete the word "and" at the end of clause (i) thereof; (ii) re-letter clause
"(k)" thereof as clause "(l)"; and (iii) add the following new clause (k):
"(k) Liens on the Liberty Lake Facility securing
Indebtedness permitted by Section 8.2(j); and"
(d) Section 8.5(g) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"(g) the Disposition (i) of the Spokane Facility (provided
that all of the Net Cash Proceeds therefrom are applied
toward the prepayment of the Term Loans) and (ii) of other
property having a fair market value not to exceed
$15,000,000 in the aggregate for any Fiscal year of the
Borrower."
(e) Section 8.7 of the Credit Agreement is hereby amended so it
reads as follows:
"Make or commit to make any Capital Expenditure, except (a)
Capital Expenditures of the Borrower and its Subsidiaries in
the ordinary course of business not exceeding $35,000,000
with respect to fiscal year 2004, not exceeding $40,000,000
with respect to fiscal year 2005 and, with respect to any
fiscal year thereafter, an amount equal to 6% of budgeted
revenue for such fiscal year, as approved by the board of
directors of the Borrower and by the Administrative Agent;
provided, that (i) up to 25% of any such amount referred to
above, if not so expended in the fiscal year for which it is
permitted, may be carried over for expenditure in the next
succeeding fiscal year and (ii) Capital Expenditures made
pursuant to this clause (a) during any fiscal year shall be
deemed made, first, in respect of amounts permitted for such
fiscal year as provided above and, second, in respect of
amounts carried over from the prior fiscal year pursuant to
subclause (i) above and (b) Capital Expenditures made with
the proceeds of any Reinvestment Deferred Amount."
SECTION 2. Conditions to Effectiveness. The amendment contained in Section 1
shall not be effective unless each of the following conditions precedent is
satisfied (the date on which such conditions are satisfied, the "Amendment
Effective Date"):
(a) the Administrative Agent shall have received counterparts of
this Amendment executed by the Administrative Agent and Borrower and
counterparts of the Consent appended hereto (the "Consent") executed by the
Guarantors, as defined in the Guarantee and Collateral Agreement.
(b) the Administrative Agent shall have received executed
counterparts of this Amendment or a signed authorization to execute this
Amendment from the Required Lenders;
(c) all fees and expenses then due and payable to the Lead
Arranger or any Agent or Lender under the Loan Documents or relating thereto (to
the extent invoiced at least one day Business Day prior) shall have been paid in
full in immediately available funds; and
(d) the Administrative Agent shall have received such other
documents and instruments as it or the Lead Arranger may reasonably request.
SECTION 3. Representations and Warranties. The Borrower represents and warrants
to the Lead Arranger; Agents and Lenders that:
(a) Authority. The Borrower has the requisite corporate power and
authority to execute and deliver this Amendment and to perform its obligations
hereunder and under the Credit Agreement (as amended hereby). Each Guarantor 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
Guarantors of the Consent and the performance by the Borrower of the Credit
Agreement (as amended hereby) have been duly approved by all necessary corporate
action of the Borrower, and no other corporate proceedings on the part of the
Borrower or any Guarantor are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and
delivered by the Borrower and the Consent has been duly executed and delivered
by each Guarantor. When this Amendment becomes effective in accordance with its
terms, this Amendment, the Credit Agreement (as amended hereby) and the Consent
each will be the legal, valid and binding obligation of the Borrower, or in the
case of the Consent, each Guarantor, enforceable against the Borrower, or in the
case of the Consent, each Guarantor 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 of the Borrower in the Credit Agreement (other than any such
representations and warranties that, by their terms, are specifically made as of
a date other than the date hereof) are and will be true and correct on and as of
the date of this Amendment and the Amendment Effective Date as though made on
and as of each such date.
(d) No Conflicts. Neither the execution and delivery of this
Amendment, not the execution and delivery of the Consent, nor the consummation
of the transactions contemplated hereby and thereby, nor the performance of and
compliance with the terms and provisions hereof or of the Credit Agreement (as
amended hereby) by the Borrower or any Guarantors will, at the time of such
performance, (i) violate or conflict with any provision of its articles or
certificate of incorporation or bylaws or other organizational or governing
documents, (ii) violate, contravene or materially conflict with any Requirement
of Law (including, without limitation, Regulation U) or Contractual Obligation,
except for any violation, contravention or conflict which could not reasonably
be expected to have a Material Adverse Effect or (iii) result in or require the
creation of any Lien (other than those permitted by the Loan Documents) upon or
with respect to its properties. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the transactions contemplated
hereby.
(e) No Default. No event has occurred and is continuing that
constitutes a Default or Event of Default.
SECTION 4. Reference to and Effect on Credit Agreement.
(a) Upon and after the effectiveness of this Amendment, 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. This Amendment is a Loan
Document.
(b) Except as specifically amended above, the Credit Agreement
and the Guarantee and Collateral Agreement and the other Loan Documents are and
shall continue to be in full force and effect and is hereby in all respects
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Secured Party under any of the Loan Documents,
nor, except as expressly provided herein, constitute a waiver or amendment of
any provision of the Credit Agreement.
SECTION 5. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Amendment signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
SECTION 6. Severability. Any provision of this Amendment that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 7. Governing Law. This Amendment and the rights and obligations of the
parties under this Amendment shall be governed by, and construed and interpreted
in accordance with, the law of the State of New York.
[signature pages follow]
IN WITNESS WHEREOF, the party hereto has caused this Amendment to
be executed by its respective officers thereunto duly authorized, as of the date
first written above.
ITRON, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
Chief Financial Officer
[signatures continued on the next page]
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent
By: /s/ Xxx Xxxx
-----------------------------------------
Name: Xxx Xxxx
Title: Vice President Relationship Manager
CONSENT
Dated as of December 19, 2005
The undersigned, as Guarantors under the Guarantee and Collateral
Agreement and, as applicable, as parties to the other Security Documents hereby
consent and agree to the foregoing Sixth Amendment and hereby confirm and agree
that (i) each of the Guarantee and Collateral Agreement and the other Security
Documents is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects except that, upon the effectiveness of,
and on and after the date of, said Sixth Amendment, each reference therein to
the "Credit Agreement", "thereunder", "thereof" and words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as amended by said Sixth Amendment and (ii) each of the Guarantee and
Collateral Agreement and the other Security Documents and the Collateral
described therein does, and shall continue to, secure the payment and
performance of all of the Obligations as defined in the Guarantee and Collateral
Agreement, after giving effect to said Sixth Amendment.
EMD HOLDING, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Treasurer
ITRON INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Treasurer
ITRON ENGINEERING SERVICES, INC.
(f/k/a Itron Spectrum Holdings, Inc.)
By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Treasurer
ITRON ELECTRICITY METERING, INC.
(f/k/a Schlumberger Electricity, Inc.)
By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President, Treasurer
