ex_4-6.htm


    
      Exhibit 4.6


       

      


       

       

      


       

      
        


         

        


         

         

        


         

         

        


         

        


      

       

      AMENDMENT
NO. 2 AND WAIVER

       

       

      


       

       

      among

       

       

      ITRON,
INC.,

       

       

      as
Borrower,

       

       

      The
Subsidiary Guarantors,

       

       

      and

       

       

      The
Lenders Party Hereto,

       

       

      dated
as of February 12, 2010

       

       

      


       

       

      


       

       

      


       

       

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

       

      AMENDMENT
NO. 2 AND WAIVER

       

       

      dated as
of February 12, 2010

       

       

      Reference
is made to the Credit Agreement, dated as of April 18, 2007 (as amended by the
Amendment No. 1, dated as of April 24, 2009 and as otherwise restated, amended
and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized
terms used but not otherwise defined herein having the meanings given to them in
the Credit Agreement), among Itron, Inc., a Washington corporation (“Borrower”), the Subsidiary
Guarantors, the Lenders, UBS Securities LLC, as Syndication Agent, Wells Fargo
Bank, National Association (“Wells Fargo”), as Swingline
Lender, as an Issuing Bank, as Administrative Agent and as Collateral Agent, and
Mizuho Corporate Bank, Ltd., as an Issuing Bank and as Documentation
Agent.

       

       

      PRELIMINARY
STATEMENTS:

       

       

      WHEREAS,
Borrower and the Subsidiary Guarantors have requested that the Required Lenders
agree to (i) amend the definition of “Consolidated Net Income” under the Credit
Agreement and (ii) waive certain provisions identified below under the
Credit Agreement in order to permit the Luxemburg Restructuring (as defined
below) and the Foreign Subsidiary Restructuring (as defined below), as set forth
in this Amendment No. 2 and Waiver (this “Amendment”); and

       

       

      WHEREAS,
Borrower, the Subsidiary Guarantors and the Lenders signatory hereto agree to
amend the definition of Consolidated Net Income and to waive certain provisions
identified below under the Credit Agreement in order to permit the Luxemburg
Restructuring (as defined below) and the Foreign Subsidiary Restructuring (as
defined below), subject to the terms and conditions of this
Amendment.

       

       

      NOW,
THEREFORE, in consideration of the premises and the agreements, provisions and
covenants herein contained, and for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:

       

      SECTION
1. Amendment.

       

      The definition of “Consolidated Net
Income” in Section 1.01 of the Credit Agreement is hereby amended by inserting
the following in clause (b)(i) of said definition, immediately after the phrase
“or similar distributions by such Subsidiary of that income” contained
therein:

       

      “(other
than such amounts paid or permitted to be paid, as principal or interest, on
intercompany notes constituting obligations of such Subsidiary owing to (x) the
Borrower or (y) another Subsidiary of the Borrower to the extent the terms of
the Organizational Documents of such other Subsidiary, or of any direct or
indirect parent company of such other Subsidiary, or any agreement, instrument
or Requirement of Law, do not restrict the declaration or payment of such
amounts as dividends, similar distributions or the payment of principal or
interest on intercompany notes, directly or indirectly through one or more
intermediate Subsidiaries, to the Borrower)”

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      SECTION
2. Limited
Waiver.

       

      (a) “Luxemburg Restructuring” shall
mean the following transactions:

       

      (i) the
formation by the Borrower of a new Wholly Owned direct Subsidiary of the
Borrower organized under the laws of Luxembourg (such Subsidiary, “New Lux”) (including the
investment of €12,500 by the Borrower in New Lux in exchange for shares of stock
in New Lux);

       

      (ii) the
conversion of share premium and convertible preferred equity certificates
(“CPECs”) of Itron
Acquisition Company (known currently as Itron Luxembourg Sarl) held by the
Borrower into share capital of Itron Acquisition Company;

       

      (iii) the
decrease in share capital of Itron Acquisition Company in order to offset
accumulated losses of Itron Acquisition Company;

       

      (iv) the
issuance of new shares of stock of Itron Acquisition Company to reflect the
adjusted amount of share capital; and

       

      (v) the
contribution by the Borrower of 100% of its Equity Interests in Itron
Acquisition Company to New Lux in exchange for (x) additional shares of stock of
New Lux and (y) CPECs issued by New Lux to the Borrower.

       

      (b) “Foreign Subsidiary
Restructuring” shall mean (i) the conversion to equity or write-off of
intercompany indebtedness of Foreign Subsidiaries of the Borrower which existed
prior to the Closing Date (and were Subsidiaries of the Borrower prior to the
Closing Date) and (ii) the transfer by the Borrower or Subsidiary Guarantors (by
investment, sale, merger or otherwise) of Foreign Subsidiaries of the Borrower
which existed prior to the Closing Date (and were Subsidiaries of the Borrower
prior to the Closing Date) and are not Subsidiaries of Itron Acquisition Company
to New Lux, Itron Acquisition Company or Subsidiaries of New Lux.

       

      (c) “Specified Covenants” shall
mean (x) the following Sections of the Credit Agreement: 6.04, 6.06, 6.07
(solely as provided for in clause (iii) of the definition of, the Luxembourg
Restructuring), 6.09 and 6.12(a) (solely as it relates to the terms of the CPECs
to be issued by New Lux to Borrower) and (y) the covenants contained in Section
8 of the Pledge Over Shares and CPECS, made on April 18, 2007, among the
Borrower, the Collateral Agent and Itron Acquisition Company (the “Existing Luxembourg Pledge
Agreement”) and (z) covenants or representations in any Security Document
which restrict the Foreign Subsidiary Restructuring.

       

      (d) Subject
to and on the condition that the Borrower and the Subsidiary Guarantors fully
perform and satisfy all obligations of the Borrower and the Subsidiary
Guarantors set forth in this Amendment within the times and in the manner set
forth in this Amendment, the Required Lenders hereby waive the Specified
Covenants solely for the purpose of permitting the Luxemburg Restructuring and
the Foreign Subsidiary Restructuring and any breach of any Specified Covenant
that has resulted or would result in any Default or Event of Default absent this
Amendment; provided
that the Luxemburg Restructuring is completed on or prior to April 30,
2010.  The calculation of permitted Investments pursuant to Section
6.04(f)(vi) of the Credit Agreement, as well as the amount of Acquisition
Consideration for Foreign Acquisitions shall not include any amounts as a result
of the Luxembourg Restructuring or any Foreign Subsidiary
Restructuring.  The Borrower and each Subsidiary Guarantor hereby
acknowledge and agree that (i) nothing contained in this Amendment or otherwise
shall constitute a waiver with respect to any other Default or Event of Default
that may now exist or that may at any time, from time to time, arise, other than
the waivers expressly provided for herein and the Agents, the Lenders and the
other Secured Parties shall have the right to exercise all remedies provided for
in the Loan Documents and otherwise available at law and in equity with respect
thereto and (ii) nothing contained in this Amendment or otherwise shall give
rise to any agreement or obligation by any Agent or any Lender to enter into any
further waiver or any amendment of any of the Credit Agreement or any other Loan
Document.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (e) The
Required Lenders hereby consent to the release by the Collateral Agent of its
Liens on (i) intercompany loans converted to equity or written off in connection
with a Foreign Subsidiary Restructuring and (ii) the Equity Interests of Itron
Acquisition Company and any Foreign Subsidiary transferred by the Borrower or a
Subsidiary Guarantor to New Lux or a Subsidiary thereof pursuant to the
Luxembourg Restructuring or the Foreign Subsidiary Restructuring and authorizes
the Collateral Agent and the Administrative Agent to enter into such documents,
instruments and releases, and such amendments or termination of Security
Documents as may be necessary to effectuate such releases.

       

      SECTION
3. Conditions
to Effectiveness.  This Amendment
shall become effective immediately satisfaction of all of the conditions set
forth below in this Section 3 (such
effective date, the “Amendment
Effective Date”) (provided that if all such
conditions are not satisfied by February 16, 2010, this Amendment shall
automatically terminate without further action or notice and shall be of no
further force or effect; provided, further, that the waivers set
forth in Section
2 of this Amendment, solely as they relate to the Luxembourg
Restructuring, shall also be subject to the prior satisfaction of the conditions
set forth in Section
4 below).

       

      (a) Execution
of Counterparts.  The Administrative Agent shall have received
counterparts of this Amendment, duly executed by each of the Loan Parties and
the Required Lenders.

       

      (b) Officers’
Certificates.  The Administrative Agent shall have received (i)
a certificate of the Secretary or Assistant Secretary (or other Responsible
Officer) of each Loan Party dated the Amendment Effective Date and certifying
that (A) attached thereto is a true and complete copy of resolutions duly
adopted by the board of directors, general partners, members or managers, as
applicable, of such Loan Party authorizing the execution, delivery and
performance of this Amendment and that such resolutions have not been modified,
rescinded or amended and are in full force and effect and (B) attached thereto
are true and complete copies of all other documents evidencing necessary
organizational action and governmental and other material third party approvals
and consents, if any, with respect to this Amendment and the matters and
transactions contemplated hereby, and (ii) such other documents as Wells Fargo
Securities, LLC (the “Lead
Arranger”) or the Administrative Agent may reasonably
request.

       

      SECTION
4. Conditions
to Luxembourg Restructuring.  The waivers set
forth in Section
2 of this Amendment, solely as they relate to the Luxembourg
Restructuring, shall become effective immediately upon satisfaction of all of
the conditions set forth below in this Section 4; provided, that if all such
conditions are not satisfied by April 30, 2010, such waivers shall not become
effective).

       

      (a) Legal
Opinions.  The
Administrative Agent shall have received, on behalf of itself and the Lenders, a
written opinion of (i) Perkins Coie LLP, special counsel for the Loan Parties
and (ii) AMMC Law, special Luxembourg counsel to the Loan Parties, in each case,
addressed to the Administrative Agent and the Lenders and covering such matters
relating to this Amendment and the Loan Documents as the Administrative Agent
shall reasonably request, which opinions shall be in form and substance
reasonably satisfactory to the Administrative Agent.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (b) Luxembourg
Pledge Agreement.   The Administrative Agent shall have
received (i) one or more fully executed pledge agreements in form and substance
satisfactory to the Administrative Agent and effective under Luxembourg law to
grant a Lien in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, on 66% of the Voting Stock of New Lux and 100% of the Equity
Interests of New Lux  not constituting Voting Stock (including,
without limitation, any CPECs issued by New Lux to the Borrower) and (ii) such
other documents, certificates, agreements and evidence of other actions
necessary to perfect the Lien in favor of the Collateral Agent, for the ratable
benefit of the Secured Parties, under the laws of Luxembourg on such Equity
Interests to the satisfaction of the Administrative Agent (such pledge
agreements and such other documents, certificates, agreements and actions are
collectively referred to herein as the “New Lux
Pledge”).  The effectiveness of the New Lux Pledge shall occur
concurrently with or prior to the effectiveness of the Itron Acquisition Company
release (as defined below).

       

      (c) Release
of Equity Pledge.  Execution and delivery of a release (the
“Itron Acquisition Company
Release”) of the Existing Luxembourg Pledge Agreement in form and
substance satisfactory to the Administrative Agent, the effectiveness of which
shall be concurrent with (and in no event prior to) the contribution of the
Collateral subject to such Pledge Over Shares and CPECS by the Borrower to New
Lux and the effectiveness of the New Lux Pledge.

       

      (d) Issuer’s
Acknowledgement.  The Administrative Agent shall have received
an issuer’s acknowledgement of the Security Agreement from New Lux, in form and
substance satisfactory to the Administrative Agent.

       

      (e) Renewal
Intercompany Note.  The Administrative Agent shall have
received satisfactory evidence that New Lux has become party to the Renewal
Intercompany Note, dated May 17, 2007.

       

      (f) Perfection
Certificate.  The Collateral Agent shall have received a
Perfection Certificate Supplement to the Perfection Certificate, in form and
substance acceptable to the Collateral Agent, reflecting the Luxembourg
Restructuring.

       

      SECTION
5. Representations
and Warranties.  Each Loan Party
represents and warrants to the Administrative Agent and each Lender as of the
Amendment Effective Date as follows:

       

      (a) Power;
Authorization; Enforceable Obligations.  Each Loan Party
has the requisite power and authority to enter into this
Amendment.  The execution, delivery and performance of this Amendment
has been duly authorized by all necessary action on the part of each Loan
Party.  Each of this Amendment and each other Loan Document
constitutes a legal, valid and binding obligation of each Loan Party party
hereto or thereto, as the case may be, enforceable against each such Loan Party
in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors’ rights generally or by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).

       

      (b) No Legal
Bar.  The execution,
delivery and performance of this Amendment by the Loan Parties does not and, to
the knowledge of the Loan Parties, will not (i) violate any provision of any law
or any governmental rule or regulation applicable to any Loan Party, or any
certificate of incorporation, certificate of formation, by-laws, operating
agreement or other organizational document of any Loan Party, or any order,
judgment or decree of any court or other Governmental Authority binding on any
Loan Party, (ii) violate any provision of, or result in any default or breach
under, any contractual obligation of any Loan Party except to the extent such
violation, default or breach could not reasonably be expected to have a Material
Adverse Effect, (iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of any Loan Party (other than the
Liens created by the Loan Documents) or (iv) require any approval of
stockholders or partners or any approval or consent of any Person under any
contractual obligation of any Loan Party, except for such approvals or consents
which have been obtained on or before the Amendment Effective Date (other than
any such approvals or consents the failure of which to obtain will not have a
Material Adverse Effect).

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (c) Accuracy
of Representations and Warranties.  Each of the
representations and warranties of each Loan Party set forth in the Loan
Documents are true and correct in all material respects (except that any
representation and warranty that is qualified as to “materiality” or “Material
Adverse Effect” shall be true and correct in all respects) on and as of the
Amendment Effective Date with the same effect as though made on and as of such
date, except to the extent such representations and warranties expressly relate
to an earlier date, in which case they are true and correct in all material
respects (or, if qualified as to materiality” or “Material Adverse Effect”, true
and correct in all respects) as of such earlier date.

       

      (d) No
Default.  On the Amendment
Effective Date, and after giving effect to this Amendment, no Default has
occurred and is continuing.

       

      SECTION
6. Validity of Obligations and
Liens; Grant of Security Interest.

       

      (a) Validity
of Obligations.  Each Loan Party
acknowledges and agrees that (i) each Loan Party is indebted to the Lenders, the
Issuing Banks and the Agents for the Obligations, without defense, counterclaim
or offset of any kind, and each Loan Party hereby ratifies and reaffirms the
validity, enforceability and binding nature of such Obligations and (ii) no Loan
Party has as of the Amendment Effective Date any claim, right or cause of action
of any kind against any Lender, Issuing Bank or Agent or any of such Lender’s,
Issuing Banks’ or Agents’ respective present or former subsidiaries, Affiliates,
officers, directors, employees, attorneys or other representatives or agents in
connection with this Amendment, the Credit Agreement and the other Loan
Documents, or the transactions contemplated hereby or thereby.

       

      (b) Validity
of Liens.  Each Loan Party
hereby ratifies and reaffirms the validity and enforceability (without defense,
counterclaim or offset of any kind) of the Liens and security interests granted
to secure the Obligations by such Loan Party to any Agent, for the ratable
benefit of the Secured Parties, pursuant to the Security Documents to which such
Loan Party is a party.

       

      SECTION
7. Payment
of Fees and Expenses of the Administrative Agent and the Lead
Arranger.  Borrower shall pay to the extent invoiced, all
reasonable out-of-pocket expenses incurred by the Agents and their Affiliates in
connection with the Loan Documents, this Amendment and the Luxembourg
Restructuring, including, without limitation, the fees, charges and
disbursements of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Administrative Agent.

       

      SECTION
8. Governing
Law.  This Amendment
shall be governed by, and construed in accordance with, the laws of the State of
New York (including without limitation Section 5-1401 of the General
Obligations Law of the State of New York), without regard to conflicts of laws
principles.

       

      SECTION
9. Execution
in Counterparts.  This Amendment
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.  Delivery of an executed counterpart of this Amendment by
telecopier or in PDF format via electronic mail shall be effective as delivery
of an original executed counterpart of this Amendment.

       

      SECTION
10. Continuing
Effectiveness.  Except as
modified by this Amendment, the Credit Agreement shall remain in full force and
effect and each is hereby ratified and confirmed in all respects, and this
Amendment shall be a Loan Document for all purposes.  This Amendment
shall not constitute an amendment or waiver of any provision of the Credit
Agreement except as expressly stated herein, and shall not be construed as an
amendment, waiver or consent to any action on the part of any Company that would
require an amendment, waiver or consent of any of the Lenders, Issuing Banks or
Agents except as expressly stated herein.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      SECTION
11. WAIVER OF
JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS
AMENDMENT, ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THIS WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.

       

      SECTION
12. Headings.  Section and
subsection headings in this Amendment are included herein for convenience of
reference only and shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.

       

      SECTION
13. Successors
and Assigns. This
Amendment shall be binding upon and inure to the benefit of each of the Loan
Parties and each of their respective successors and assigns, and upon the
Agents, the Issuing Banks and the Lenders and their successors and
assigns.  No Loan Parties’ rights or obligations hereunder nor any
interest therein may be assigned or delegated without the prior written consent
of all Lenders and the Administrative Agent.

       

       

      [Signature
pages follow]

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their officers thereunto duly authorized as of the date first above
written.

       

      ITRON,
INC.

       

      


       

      By:                 /s/ Steven M.
Helmbrecht                                           

       

      Name:           Steven
M. Helmbrecht

       

      Title:           Senior
V.P. and Chief Financial Officer

       

      ITRON
INTERNATIONAL, INC.

       

      


       

      By:                 /s/ David
Arkley                                           

       

      Name:           David
Arkley

       

      Title:           Vice
President

       

      ITRON
ENGINEERING SERVICES, INC.

       

      


       

      By:                 /s/ David
Arkley                                           

       

      Name:           David
Arkley

       

      Title:           Vice
President

       

      ITRON
BRAZIL I, LLC

       

      


       

      By:                 /s/ John W.
Holleran                                                      

       

      Name:           John
W. Holleran

       

      Title:           Manager

       

      ITRON
BRAZIL II, LLC

       

      


       

      By:                 /s/ John W.
Holleran                                                      

       

      Name:           John
W. Holleran

       

      Title:           Manager

       

      ITRON US
GAS LLC

       

      


       

      By:  Itron,
Inc., its Sole Member

       

      


       

      By:                 /s/ John W.
Holleran                                                      

       

      Name:           John
W Holleran

       

      Title:           Corporate
Secretary

       

      


       

      THE
REQUIRED LENDERS

       

       By:     /s/
The Required Lenders

       

      Lender