================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(mark one)
|X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 2000
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
For the transition period from to
Commission file number 0-22418
ITRON, INC.
(Exact name of registrant as specified in its charter)
Washington 91-1011792
(State of Incorporation) (I.R.S. Employer Identification Number)
2818 North Sullivan Road
Spokane, Washington 99216-1897
(509) 924-9900
(Address and telephone number of registrant's principal executive offices)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes__X___ No_____
As of July 31, 2000, there were outstanding 15,242,615 shares of the
registrant's common stock, no par value, which is the only class of common
or voting stock of the registrant.
================================================================================
Itron, Inc.
Table of Contents
Page
Part 1: FINANCIAL INFORMATION
Item 1: Financial Statements (Unaudited)
Consolidated Statements of Operations 1
Consolidated Balance Sheets 2
Consolidated Statements of Cash Flows 3
Notes to Consolidated Financial Statements
Note 1: Basis of Presentation 4
Note 2: Earnings Per Share and Capital Structure 4
Note 3: Restructuring 4
Note 4: Balance Sheet Components 5
Note 5: Segment Information 5
Note 6: Contingencies 6
Item 2: Management's Discussion and Analysis of Financial Condition
and Results of Operations 7-10
Revenues 7
Gross Margin 8
Operating Expense 9
Other Income 9
Income Tax 10
Extraordinary Item 10
Cash Flow 10
Part 2: Other Information
Item 1: Legal Proceedings 11
Item 4: Submission of matters to a vote of security holders 12
Item 6: Exhibits and Reports on Form 8-K 12
Signature 13
Part 1: Financial Information
Item 1: Financial Statements
ITRON, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited, in thousands, except per share data)
Three months ended June 30, Six months ended June 30,
======================================================================================================================
Revenues 2000 1999 2000 1999
------------ ------------- ------------- ------------
Sales $ 34,706 $ 37,588 $ 70,372 $ 76,797
Service 10,108 13,633 22,100 26,369
------------- ------------- -------------- -------------
Total revenues 44,814 51,221 92,472 103,166
Cost of revenues
Sales 21,332 23,593 42,222 47,830
Service 6,309 10,910 15,001 19,954
------------- ------------- -------------- -------------
Total cost of revenues 27,641 34,503 57,223 67,784
------------- ------------- -------------- -------------
Gross profit 17,173 16,718 35,249 35,382
Operating expenses
Sales and marketing 5,104 6,577 10,223 12,375
Product development 5,306 6,953 11,482 13,555
General and administrative 4,167 3,362 8,683 6,387
Amortization of intangibles 465 490 931 980
Restructuring charges - - (185) 1,121
------------- ------------- -------------- -------------
Total operating expenses 15,042 17,382 31,134 34,418
------------- ------------- -------------- -------------
Operating income (loss) 2,131 (664) 4,115 964
Other income (expense)
Equity in affiliates 248 (146) 755 (311)
Interest, net (974) (1,530) (2,541) (3,405)
Other 1 87 342 107
------------- ------------- -------------- -------------
Total other income (expense) (725) (1,589) (1,444) (3,609)
Income (loss) before income taxes and
extraordinary item 1,406 (2,253) 2,671 (2,645)
Income tax (provision) benefit (530) 670 (1,010) 830
------------- ------------- -------------- -------------
Income (loss) before extraordinary item 876 (1,583) 1,661 (1,815)
Extraordinary gain on early retirement of
debt, net of income taxes of $570 and $1,970 - - 1,047 3,660
------------- ------------- -------------- -------------
Net income (loss) $ 876 $ (1,583) $ 2,708 $ 1,845
------------- ------------- -------------- -------------
Earnings per share
Basic and diluted
Income (loss) before extraordinary item $ 0.06 $ (0.11) $ 0.11 $ (0.12)
Extraordinary item - - 0.07 0.25
------------- ------------- -------------- -------------
Net income (loss) share $ 0.06 $ (0.11) $ 0.18 $ 0.12
The accompanying notes are an integral part of these financial statements.
ITRON, INC.
CONSOLIDATED BALANCE SHEETS
(Unaudited, in thousands)
June 30, December 31,
==========================================================================================================
2000 1999
--------------------------------------------------------------------------------------------------------
ASSETS
Current assets
Cash and cash equivalents $ 30,703 $ 1,538
Accounts receivable, net 35,814 46,561
Current portion of long-term contracts receivable 2,246 2,579
Inventories, net 16,373 15,300
Equipment held for sale, net - 32,750
Deferred income tax asset 6,532 8,016
Other 717 1,340
------------------- -----------------
Total current assets 92,385 108,084
------------------- -----------------
Property, plant and equipment, net 28,939 31,627
Equipment used in outsourcing, net 8,762 5,951
Intangible assets, net 14,005 15,196
Deferred income tax asset 25,726 26,922
Long-term contracts receivable 3,811 1,813
Other 3,167 2,486
------------------- -----------------
Total assets $ 176,795 $ 192,079
------------------- -----------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
Short-term borrowings $ - $ 3,646
Accounts payable and accrued expenses 32,121 35,369
Wages and benefits payable 8,896 16,396
Deferred revenue 7,476 8,413
------------------- -----------------
Total current liabilities 48,493 63,824
------------------- -----------------
Convertible subordinated debt 53,459 57,234
Mortgage notes and leases payable 5,975 6,280
Project financing 6,949 7,216
Warranty and other obligations 10,822 10,000
------------------- -----------------
Total liabilities 125,698 144,554
------------------- -----------------
Shareholders' equity
Common stock 108,732 107,603
Retained deficit (55,798) (58,506)
Accumulated other comprehensive income (1,837) (1,572)
------------------- -----------------
Total shareholders' equity 51,097 47,525
------------------- -----------------
Total liabilities and shareholders' equity $ 176,795 $ 192,079
------------------- -----------------
The accompanying notes are an integral part of these financial statements.
ITRON, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited, in thousands)
Six months ended June 30,
===============================================================================================================
2000 1999
- ---------------------------------------------------------------------------------------------------------------
OPERATING ACTIVITIES
Net income $ 2,708 $ 1,845
Noncash charges (credits) to income:
Depreciation and amortization 7,133 9,347
Deferred income tax provision (benefit) 2,110 (841)
Equity in affiliates, net (564) 311
Extraordinary gain on early extinguishment of debt, net of taxes (1,047) (3,660)
Changes in operating accounts:
Accounts receivable 10,988 15,960
Inventories (1,073) 326
Accounts payable and accrued expenses (2,063) (3,152)
Wages and benefits payable (7,500) 773
Long-term contracts receivable (1,665) (4,570)
Deferred revenue (937) (3,623)
Other, net (475) 251
-------------------- -----------------
Cash provided by operating activities 7,615 12,967
-------------------- -----------------
INVESTING ACTIVITIES
Acquisition of property, plant and equipment (2,490) (3,331)
Equipment used in outsourcing (3,074) (4,751)
Proceeds from sale of equipment used in outsourcing 32,690 -
Proceeds from sale of business interest 431 -
Other, net (739) 153
------------------- ------------------
Cash provided (used) by investing activities 26,818 (7,929)
------------------- ------------------
FINANCING ACTIVITIES
Change in short-term borrowings, net (3,646) (5,176)
Payments on project financing (267) (248)
Issuance of common stock 1,129 744
Purchase and retirement of subordinated debt (2,098) -
Other, net (386) (213)
------------------- ------------------
Cash provided (used) by financing activities (5,268) (4,893)
Increase in cash and cash equivalents 29,165 145
Cash and cash equivalents at beginning of period 1,538 2,743
------------------- ------------------
Cash and cash equivalents at end of period $ 30,703 $ 2,888
------------------- ------------------
The accompanying notes are an integral part of these financial statements.
ITRON, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2000
Note 1: Basis of Presentation
The consolidated financial statements presented in this Form 10-Q are unaudited
and reflect, in the opinion of management, all normal recurring adjustments
necessary for a fair presentation of operations for the three and six-month
periods ended June 30, 2000. Certain information and footnote disclosures
normally included in financial statements prepared in accordance with generally
accepted accounting principles have been condensed or omitted pursuant to the
rules and regulations of the Securities and Exchange Commission regarding
interim results. These condensed consolidated financial statements should be
read in conjunction with the audited consolidated financial statements and the
notes thereto included in our Form 10-K for the year ended December 31, 1999, as
filed with the Securities and Exchange Commission on March 30, 2000. The results
of operations for the three and six-month periods ended June 30, 2000 are not
necessarily indicative of the results expected for the full fiscal year or for
any other fiscal period.
Note 2: Earnings Per Share and Capital Structure
Three months ended June 30, Six months ended June 30,
(in thousands) 2000 1999 2000 1999
- ---------------------------------------------- -----------------------------------------------------------------
Weighted average shares outstanding 15,127 14,807 15,080 14,782
Effect of dilutive securities:
Stock options 211 - 280 556
Convertible debt - - - -
------------- ------------- ------------- -------------
Weighted average shares outstanding assuming
conversion 15,338 14,807 15,360 15,338
------------- ------------- ------------- -------------
Options to purchase common stock have been granted at fair market value to
directors, employees and other key personnel. These options will dilute the
ownership of our stock if they are exercised. The dilutive effect of these
options is included for purposes of calculating diluted earnings per share using
the "treasury stock" method. We also have subordinated convertible notes
outstanding. These notes are not included in the above calculation as the shares
are anti-dilutive in all periods when using the "if converted" method.
Note 3: Restructuring
We recorded charges totaling $20.6 million in 1998 and 1999 for restructuring
activities that have improved efficiencies and reduced costs. These activities
include workforce reductions, the sale or disposition of assets, the write-off
of certain of our intangible assets and the closure and consolidation of
facilities. In 1999, we aggressively extended our restructuring activities to
further reduce spending and to realign the Company into six market-focused
business units.
Restructuring reserves and activity for the first half of 2000 are detailed
below (in thousands).
Reserve Reserve
Cash/ Balance Restructuring Balance
Non-Cash 12/31/99 Charge Activity 6/30/00
------------- -------------- ------------------ ----------- -----------
Severance and related charges Cash $8,988 $315 $7,429 $1,874
Asset impairment Non-cash 3,600 (500) 2,620 480
Consolidation of facilities Cash 2,981 - (108) 3,089
-------------- ------------------ ----------- -----------
Totals $15,569 $(185) $9,941 $5,443
The reserve balances for severance and related charges and asset impairment are
expected to be fully utilized in 2000. Facility consolidation reserves are
dependent on our ability to sublease vacant space, which is under a
non-cancelable operating lease through 2008.
Note 4: Balance Sheet Components
June 30, December 31,
2000 1999
- ---------------------------------------------------------------------------------- ---------------- --- ----------------
Inventories (in thousands)
Raw material $ 7,807 $ 6,428
Work in process 580 1,462
Finished goods 6,561 5,702
Field inventories awaiting installation 473 466
---------------- --------------
Total manufacturing inventories 15,421 14,058
Service inventories 952 1,242
---------------- --------------
Total inventories $16,373 $15,300
---------------- --------------
Note 5: Segment Information
Effective January 2000, we reorganized internally around strategic business
units ("SBUs") focused on the customer segments that we serve. These SBUs
include Electric Systems, Natural Gas Systems, Water & Public Power Systems,
Energy Information Systems, and International Systems. As indicated below, our
new business SBU has been merged with Water & Public Power.
Sales for these SBUs include hardware, custom and licensed software, consulting,
project management, and installation and support activities. Service revenues
are derived from post-sale maintenance support and outsourcing services, where
we own and operate, or simply operate systems for a periodic fee. Intersegment
revenues are immaterial.
Management intends to review the operating results of each segment both before
and after allocations of corporate expenses. As of the date of this report,
allocations of such expenses have not been determined. It is management's
intention to finalize these allocations during 2000. Allocation methods may
change over time. Certain amounts in the 1999 financial statements have been
reclassified to conform with the 2000 presentation.
Segment revenues and gross profits for the comparable quarters are detailed
below. In the first quarter Form 10-Q, information was reported in the Segment
Information footnote and Management's Discussion and Analysis as "New
Businesses" and "Other" respectively. This information is now included in the
Water & Public Power segment.
June 30, June 30,
2000 1999
- ---------------------------------------------------------------------------------- ---------------- --- ---------------
(in thousands)
Revenues
Electric $12,780 $12,506
Natural Gas 9,671 16,915
Water & Public Power 13,884 13,901
Energy Information Systems 5,835 3,327
International 2,644 4,572
------------------- ------------------
Total revenues 44,814 51,221
------------------- ------------------
Gross profit
Electric 4,422 (958)
Natural Gas 4,254 9,260
Water & Public Power 4,314 5,284
Energy Information Systems 3,003 1,777
International 1,180 1,355
------------------- ------------------
Total gross profit 17,173 16,718
------------------- ------------------
CORPORATE ITEMS
Operating expenses
Sales and marketing 5,104 6,577
Product development 5,306 6,953
General and administrative 4,167 3,362
Amortization of intangibles 465 490
Restructuring charges - -
------------------- ------------------
Total operating expenses 15,042 17,382
Operating income (loss) 2,131 (664)
Other income (expense)
Equity in affiliates 248 (146)
Interest, net (974) (1,530)
Other 1 87
------------------- ------------------
Total other income (expense) (725) (1,589)
------------------- ------------------
Income (loss) before income taxes and extraordinary item $1,406 $ (2,253)
=================== ==================
Note 6: Contingencies
We are a party to various lawsuits and claims, both as plaintiff and defendant,
and have contingent liabilities arising from the conduct of business, none of
which, in the opinion of management, is expected to have a material effect on
our financial position or results of operations. We believe that we have made
adequate provisions for such contingent liabilities.
Item 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
OVERVIEW
We are a leading global provider of integrated systems solutions for utilities
and other customers to collect, communicate, analyze, and manage information
about energy and water usage. We design, develop, manufacture, market, install
and service hardware, software and integrated systems that enable customers to
obtain, analyze and use meter data.
Our solutions integrate a broad array of meter modules, radio and
telephone-based communications systems, and data management, delivery and
storage applications. In addition, we have handheld computers and supporting
products to record visually obtained meter data.
Sales include hardware, custom and licensed software, consulting, project
management and installation and sales support activities. Services include
post-sale maintenance support and outsourcing services where we own and operate,
or simply operate systems for a periodic fee.
We currently derive the majority of our revenues from sales of products and
services to utilities; however, our business may increasingly consist of sales
to other energy and water industry participants such as energy service
providers, end user customers, wholesale power markets, and others. We have
experienced variability of operating results on both an annual and a quarterly
basis due primarily to utility purchasing patterns and delays of purchasing
decisions. In recent years these delays have generally been a result of changes
or potential changes to federal and state regulation of the electric utility
industry and mergers and acquisitions in the utility industry.
RESULTS OF OPERATIONS
Revenues Three months ended June 30, Six months ended June 30,
(in millions) Increase Increase
2000 (Decrease) 1999 2000 (Decrease) 1999
---- ---------- ---- ---- ---------- ----
Electric $ 12.8 2% $ 12.5 $ 28.2 (10%) $ 31.3
Natural Gas 9.7 (43%) 16.9 22.0 (14%) 25.7
Water & Public Power 13.9 0% 13.9 25.5 (19%) 31.6
Energy Information Systems 5.8 76% 3.3 11.1 59% 7.0
International 2.6 (43%) 4.6 5.7 (25%) 7.6
-------- ---------- -------- -------- --------- ---------
Total revenues $ 44.8 (13%) $ 51.2 $ 92.5 (10%) $103.2
======== ========== ======== ======== ========= =========
Total revenues decreased 13% in the second quarter of 2000 compared to the
second quarter of 1999.
Electric segment revenues in the second quarter were approximately level with
the prior year's quarter. Year-to-date Electric revenues were down 10% from the
same period in 1999. Revenues for the three months and the six months ended June
30, 1999 in this segment were net of a $4.2 million price concession for a
network installation. Second quarter outsourcing revenues in the Electric
segment were $1.2 million compared to $5.1 million in last year's second
quarter. Outsourcing revenues decreased year-over-year due to the sale of our
network installation at Duquesne in the first quarter of 2000. This year's
outsourcing revenues are for a mobile AMR application that is expected to be
fully installed by the first quarter of 2001. Net of the price concession and
outsourcing activities, revenues for the three months and the six months ended
June 30, 2000 were comparable to the same periods in 1999.
Revenues in the Natural Gas segment decreased 43% in the second quarter of 2000
compared to the second quarter of 1999 largely due to unusually high shipments
in 1999 to one customer with a large multi-year contract.
Second quarter revenues for the Water & Public Power ("WPP") segment were
relatively level in 2000 compared with the comparable quarter in 1999. Revenues
for the six months ended June 30, 2000 were down 19% compared to 1999 because
the installation of equipment for two direct sales to large municipalities was
substantially completed in the second quarter of 1999. Sales to an affiliate
have lowered average selling prices compared with last year. The subsequent
resale by the affiliate to end-customers is reported using the equity method of
accounting (see "Other Income/Expense" below).
Revenues in the Energy Information Systems ("EIS") segment increased 76% and 59%
respectively for the three and six-month periods ended June 30, 2000 over the
comparable periods in 1999. EIS revenues primarily consist of product sales for
commercial and industrial customer energy usage, and product sales to the
wholesale energy market. EIS revenues increased largely as a result of
substantial consulting and software customization activities for a wholesale
energy settlement system in Ontario, Canada. Revenues from wholesale markets
were $2.1 million in the second quarter of 2000 compared to $500,000 in the
second quarter of 1999.
International revenues of $2.6 million in the second quarter of 2000 were 43%
less than the second quarter of 1999. The 1999 quarter included $700,000 of
revenues from a noncore-business subsidiary that was sold in January 2000. Most
of the remaining decrease is due the timing of orders and shipments of handheld
systems to the Asia/Pacific region.
Gross Margin
The following table shows gross margin as a percentage of corresponding revenue
and the percentage change in gross margin by business segment:
Three months ended June 30, Six months ended June 30,
Increase Increase
2000 (Decrease) 1999 2000 (Decrease) 1999
---- ---------- ---- ---- ---------- ----
Electric 35% 43% (8%) 34% 14% 10%
Natural Gas 44% (11%) 55% 45% (8%) 53%
Water and Public Power 31% (7%) 38% 30% (9%) 39%
Energy Information 51% (2%) 53% 50% 9% 59%
International 45% 15% 30% 46% 16% 30%
----- ---------- ----- ----- --------- ----
Total gross margin 38% 4% 34% 38% 4% 34%
===== ========== ===== ===== ========= ====
Total gross margin was 38% of revenues in the second quarter of 2000 compared
with 34% of revenues in the second quarter of 1999. During the three months and
six months ended June 30, 2000, gross margin benefited from the consolidation of
our high volume manufacturing operations in Minnesota. In an effort intended to
reduce fixed costs and benefit gross margin, the Company also outsourced low
volume manufacturing and service repair operations to Servatron during the
second quarter of 2000. Servatron is an affiliated company formed by a group of
former Company employees (see Exhibit 10.22 in Item 6).
Gross margin for the Electric segment improved to 35% of revenue in the current
quarter compared with (8)% for the second quarter last year. Last year's
negative gross margin was caused by the $4.2 million price concession discussed
above. The 1999 quarter also included significant outsourcing activities for the
Duquesne project which depressed the overall Electric gross margin by 13
percentage points when compared to the 2000 quarter. Year-to-date Electric gross
margins of 34% are much higher than the prior year gross margin of 10% for the
same reasons.
Higher material costs and lower production volume decreased Natural Gas gross
margins in the second quarter and six-month periods of 2000 as compared to the
similar periods in 1999.
Higher material costs and a higher mix of sales through indirect channels in
2000 has has resulted in lower gross margins in the WPP segment.
Operating Expenses
Three months ended June 30, Six months ended June 30,
(in millions) Increase Increase
2000 (Decrease) 1999 2000 (Decrease) 1999
---- ---------- ---- ---- ---------- ----
Sales and marketing $ 5.1 (22%) $ 6.6 $ 10.2 (17%) $ 12.4
Product development 5.2 (24%) 6.9 11.5 (15%) 13.5
General and administrative 4.2 24% 3.4 8.7 36% 6.4
Amortization of intangibles 0.5 (5%) 0.5 0.9 (5%) 1.0
Restructuring charges - 0% - (0.2) (117%) 1.1
-------- --------- -------- -------- ---------- --------
Total operating expenses $15.0 (13%) $17.4 $31.1 (10%) $34.4
======== ========= ======== ======== ========== ========
As discussed earlier, effective January 1, 2000 we reorganized into strategic
business units. With the reorganization, certain personnel related to management
and sales support that had been classified as sales and marketing in previous
years are now classified as general and administrative. Approximately one-half
of the year-to-date decrease in sales and marketing is due to this
reclassification. The remaining decrease results from a reduction in
international staff, fewer domestic salespeople for the comparative periods, and
lower commission expense from lower revenues.
The decrease in product development expenses in 2000 compared with 1999 results
primarily from restructuring measures in 1999 which included the closure of
several product development locations and associated staff reductions.
The increased general and administrative expenses in 2000 compared with 1999
result from: the reclassification of personnel previously included in sales and
marketing; expenses for executive recruiting and relocation; and increased legal
and consulting costs. Higher legal costs in the current year are mostly the
result of increased patent and FCC licensing activity.
Amortization of intangibles remained relatively constant for the comparative
periods.
Restructuring charges in the first half of 2000 were slightly negative due to
the partial reversal of expected losses for equipment to be sold or disposed.
Restructuring measures are substantially complete.
Other Income (Expense)
Three months ended June 30, Six months ended June 30,
(in millions) Increase Increase
2000 (Decrease) 1999 2000 (Decrease) 1999
---- ---------- ---- ---- ---------- ----
Equity in affiliates $ 0.3 270% $(0.2) $ 0.8 343% $(0.3)
Interest, net (1.0) 36% (1.5) (2.5) 25% (3.4)
Other - (100%) 0.1 0.3 220% 0.1
-------- ---------- -------- -------- --------- --------
Total other income (expense) $(0.7) 54% $(1.6) $(1.4) 60% $(3.6)
======== ========== ======== ======== ========= ========
We have a 50% ownership interest in an affiliate, which acts as a distributor
for our products in specific regions of the U.S. Equity in affiliates was
$248,000 in the second quarter of 2000 due to increased sales by this affiliate.
Year-to-date equity in affiliates includes a $150,000 net gain on the sale of
our interest in another partially-owned domestic affiliate.
Net interest expense decreased 36% from the similar quarter last year due to
lower bank borrowings, a reduction of subordinated debt outstanding, and net
invested cash during the current quarter. We received approximately $32.7
million from the sale of our outsourcing installation at Duquesne through June
of this year and used the proceeds to pay down short-term bank borrowings.
Excess cash is invested in short-term investment grade securities. The reduction
in subordinated debt resulted from a debt repurchase transaction in the first
quarter of 2000. The gain on the early retirement of subordinated debt for each
period is reflected as an extraordinary item on the statement of operations.
Income Taxes
The effective income tax rate was approximately 38% for the comparative
quarters. Our effective income tax rate can vary from period to period because
of fluctuations in foreign operating results, changes in the valuation
allowances for deferred tax assets, new or revised tax legislation, and changes
in the level of business performed in differing tax jurisdictions.
Extraordinary Item - Gain on Early Retirement of Debt
In the first quarter of 2000 we repurchased $3.8 million principal amount of
subordinated debt for $2.1 million in cash. The gain on this early retirement of
debt, net of expenses and income taxes, was $1.0 million. In March 1999 we
completed an offer to exchange $15.8 million principal amount of new
subordinated debt for $22.0 million principal amount of original subordinated
debt. The after-tax effect of the transaction, net of expenses, was a gain of
$3.7 million.
FINANCIAL CONDITION
Three months ended June 30, Six months ended June 30,
(in millions) Increase Increase
Cash flow information: 2000 (Decrease) 1999 2000 (Decrease) 1999
---- ---------- ---- ---- ---------- ----
Operating activities $ 0.4 (94%) $ 6.9 $ 7.6 (41%) $ 12.9
Investing activities (2.1) 53% (4.5) 26.8 439% (7.9)
Financing activities (3.6) (157%) (1.4) (5.2) (6%) (4.9)
-------- --------- -------- -------- ---------- --------
Increase (decrease) in cash $ (5.3) (630%) $ 1.0 $ 29.2 293% $ 0.1
======== ========= ======== ======== ========== ========
Year-to-date cash flow from operating activities was $7.6 million through June
of 2000 compared to $12.9 million in the same period last year. We used
approximately $2.6 million and $7.5 million of cash for involuntary termination
benefits and other restructuring related costs during the second quarter and
six-month periods ending June 30, 2000, respectively. Additional severance
payments of approximately $1.9 million will be made in the third quarter of
2000.
On March 31, 2000 we received $32.0 million from the sale of our network
installation at Duquesne Light Company to an affiliate of Duquesne, which is
reflected in investing activities. In the second quarter we collected an
additional $700,000 in sales proceeds which had been held in escrow pending
certain post-closing items. Other investing activities used $6 million in the
first half of 2000, consisting of normal capital additions and the acquisition
of equipment for our outsourcing contract with Southern California Edison. Total
capital additions for 2000, including outsourcing equipment requirements, are
expected to be approximately $10 million.
During the first half of 2000, financing activities used $5.2 million in cash,
$3.6 million of which was used to pay down short-term bank borrowings and $2.1
million was used for the repurchase and retirement of subordinated debt.
Management believes that existing cash resources and available borrowings under
the credit facility are more than adequate to meet the Company's needs for the
remainder of 2000.
Certain Forward-Looking Statements
When included in this discussion, the words "expects," "intends," "believes,"
"anticipates," "plans," "projects" and "estimates," and similar expressions
are intended to identify forward-looking statements. Such statements are
inherently subject to a variety of risks and uncertainties that could cause
actual results to differ materially from those reflected in such
forward-looking statements. Such risks and uncertainties include, among
others, changes in laws or regulations (including FCC licensing actions), the
rate of customer demand for our products, the effectiveness of our cost
reductions programs, our ability to effect additional initiatives for growth
and profitability, delays or difficulties in introducing new products and
acceptance of those products, ability to obtain project financing in amounts
necessary to fund future outsourcing agreements, increased competition and
various other matters, many of which are beyond the Company's control. For a
more complete description of these and other risks, see "FCC Regulations"
section in this document and "Certain Risk Factors" and "Description of
Business - FCC Regulation" included in the Company's Annual Report on Form
10-K for the year ended December 31, 1999. These forward-looking statements
speak only as of the date of this report. The Company expressly disclaims any
obligation or undertaking to release publicly any updates or revisions to any
forward-looking statement contained herein to reflect any change on the
Company's expectations with regard thereto or any change in events, conditions
or circumstances on which any such statement is based.
Part 2: Other Information
Item 1: Legal Proceedings
Benghiat Patent Litigation
On April 3, 1999, the Company served Ralph Benghiat, an individual,
with a complaint seeking a declaratory judgement that a patent owned by
Benghiat is invalid and not infringed by Itron's handheld meter reading
devices. Benghiat has filed a counterclaim alleging patent infringement
by the same devices. Both lawsuits were filed in the United States
District Court for the District of Minnesota. The lawsuit is currently
in the motion and discovery stage with a tentative trial date in
October 2000. Because of pending summary judgement motions, the trial
date will probably be rescheduled in 2001. While the Company believes
that its products do not infringe the Benghiat patent, there can be no
assurance that it will prevail in this matter, or that if it does
prevail, that legal costs incurred in connection therewith will not
have a material adverse effect on its financial condition.
FCC Regulation
In 1994 the Company was issued a non-exclusive nationwide Federal
Communications Commission (FCC) license to operate in the 1427-1432 MHz
band. With the exception of meter modules that operate in MAS bands and
the 910-920 MHz band, our network products operate in parts of this
band. At the time our license was issued, the 1427-1432 MHz band was
allocated primarily for use by the federal government, which consented
to our use of the band on a secondary, non-interference basis. Current
government use of the band is limited to a discrete number of
well-defined locations, and we did not expect the fact that we were
secondary to federal government operations to have either a present or
future material impact on our business.
The 1427-1432 MHz band is among 235 MHz of spectrum that has been
earmarked for reallocation from federal government users to private
sector users (to be licensed by the FCC). The band is subject to
continuing federal government use in specified areas through 2004. The
FCC initially decided to include the 1427-1432 MHz band in a spectrum
reserve that would not be reallocated and assigned until 2006. In July
1999, however, the FCC proposed to accelerate this timetable and
allocate the upper portion of the band to wireless medical telemetry
operations. We filed a petition with the FCC for rulemaking proposing
instead that the band be allocated for automatic meter reading and
utility telemetry operations.
On June 8, 2000, the FCC issued a Report and Order allocating three MHz
of the band (1429-1432MHz) on a primary basis for use by wireless
medical telemetry. Use of the remaining two MHz (1427-1429MHz) will be
the subject of further rulemaking proceedings by the FCC, which may or
may not grant Itron the right to use that band. Until that time, we may
continue operating in the 1427-1429MHz band. We have had discussions
with the FCC and the medical telemetry community concerning the sharing
of the entire five MHz of the band. In addition, we are working with
our congressional delegations in Washington, Minnesota and North
Carolina to provide a legislative solution that would permit Itron to
use the entire 5 MHz of the band on a co-primary basis with wireless
medical telemetry. While we believe we will reach an acceptable
solution for use of the band, there can be no assurance that there will
be an allocation for the band that is compatible with Itron's business.
If we are not successful in our efforts to continue operations in the
1427-1432 MHz band, we believe that current installations will be
permitted to continue under a grandfathering provision. However, there
can be no assurance that such grandfathering will be permitted or that
we will have any rights whatsoever in the band after final rulemaking
by the FCC. In such event, our network products (other than modules)
would have to be redesigned to operate at a different frequency
spectrum, which could have a material adverse effect on our business.
For further discussion, please see "FCC Regulation Intellectual
Property" and "Certain Risk Factors - Availability and Regulation of
Radio Spectrum" in our Annual Report on Form 10K on file with the SEC.
CellNet Patent Litigation
On October 3, 1996, the Company filed a patent infringement suit
against CellNet Data Systems ("CellNet") in the United States District
Court for the District of Minnesota. The suit alleges that CellNet is
infringing on its United States Patent No. 5,553,094 entitled "Radio
Communication Network for Remote Data Generating Stations," issued on
September 3, 1996. The Company is seeking injunctive relief as well as
monetary damages, costs and attorneys' fees. On January 28, 1999, the
Court issued its decision on motions and cross motions for summary
judgement that had previously been filed by the Company and CellNet. In
its decision, the Court held the Company's patent valid, but not
infringed. The Company believes the non-infringement decision was
incorrect and has filed an appeal. The litigation stay resulting from
CellNet's filing for bankruptcy protection has been lifted. All briefs
have been filed and oral arguments are expected this October. There can
be no assurance that the Company will prevail on appeal in this action.
The Company is not involved in any other material legal proceedings.
Item 4: Submission of Matters to a Vote of Security Holders
The Company held its annual meeting of shareholders on June 28, 2000.
Two directors were elected for a term of one year until 2001, Michael
J. Chesser and LeRoy D. Nosbaum. Three directors were elected for a
term of three years, Michael B. Bracy, Mary Ann Peters, and
Graham M. Wilson. Ted C. DeMerritt, Jon E. Eliassen, Paul A.
Redmond and S. Edward White continued their terms as directors.
The following summarizes all matters voted on at the meeting:
Matter 1. Election of Directors:
Nominee In Favor Withheld
--------------------------------------- -------------------------- ---------------------------
Michael J. Chesser 14,245,560 154,181
LeRoy D. Nosbaum 14,270,255 129,486
Michael B. Bracy 14,248,880 150,861
Mary Ann Peters 14,235,864 163,877
Graham M. Wilson 14,251,711 148,030
--------------------------------------- -------------------------- ---------------------------
Matter 2. Approval of the Company's 2000 Stock Incentive Compensation Plan:
For Against Abstain Broker Non-Votes
---------------------- -------------------- ------------------------- ------------------------
8,282,903 2,122,349 35,971 3,968,518
---------------------- -------------------- ------------------------- ------------------------
Item 6: Exhibits and Reports on Form 8-K
a) Exhibits
Exhibit 10.21 - Form of Change of Control Agreement between Registrant
and executive officers Tim Gelvin and Bob Whitney.
(A) (10.1)
Exhibit 10.22 - Contribution Agreement between Itron, Inc. and
Servatron, Inc. dated May 15, 2000.
Exhibit 10.23 - Credit Agreement between Itron, Inc. and Servatron,
Inc. dated June 22, 2000.
Exhibit 27 - Financial Data Schedule
- -------------------------------------------------------------------------------
(A) Incorporated by reference to designated exhibit included in the
Company's 1999 Annual Report on Form 10-K dated March 26, 2000.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Commission Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ITRON, INC.
(Registrant)
By: /s/ David G Remington
David G. Remington
Vice President and
Chief Financial Officer
(Authorized Officer and
Principal Financial Officer)
Date: August 14, 2000
CONTRIBUTION AGREEMENT
BETWEEN
SERVATRON, INC.
AND
ITRON, INC.
May 15, 2000
TABLE OF CONTENTS
Page
ARTICLE I
SALE OF ASSETS AND CLOSING.....................................................1
1.1 Assets Transferred...........................................1
1.2 Liabilities..................................................1
1.3 Purchase Price; Allocation...................................2
1.4 Closing......................................................2
1.5 Further Assurances; Post-Closing Cooperation.................2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ITRON........................................3
2.1 Organization of ITRON........................................3
2.2 Authority; Binding Nature of Agreement.......................3
2.3 Noncontravention.............................................4
2.4 Books and Records.................................... .......4
2.5 No Undisclosed Liabilities...................................4
2.6 No Warranties................................................4
2.7 Brokers............................................... ......4
2.8 Product Liability............................................4
2.9 Transition Benefits..........................................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SERVATRON....................................4
3.1 Organization.................................................4
3.2 Authority....................................................5
3.3 Capitalization...............................................5
3.4 Noncontravention.............................................5
3.5 Brokers......................................................5
3.6 Legal Proceedings............................................5
3.7 Insurance....................................................6
3.8 Labor Matters................................................6
3.9 Environmental, Health, and Safety Matters....................6
3.10 Employee Benefits............................................6
3.11 Tax Matters..................................................6
3.12 Intellectual Property........................................7
ARTICLE IV
COVENANTS OF ITRON.............................................................7
4.1 Regulatory and Other Approvals...............................7
4.2 Securities Law Matters.......................................8
4.3 Notice and Cure..............................................8
4.4 Fulfillment of Conditions....................................8
ARTICLE V
COVENANTS OF SERVATRON.........................................................8
5.1 Regulatory and Other Approvals...............................8
5.2 Notice and Cure..............................................9
5.3 Fulfillment of Conditions....................................9
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF SERVATRON.........................................9
6.1 Representations and Warranties...............................9
6.2 Performance.................................................10
6.3 Closing Certificates........................................10
6.4 Orders and Laws.............................................10
6.5 Regulatory Consents and Approvals...........................10
6.6 Opinion of Counsel..........................................10
6.7 Shareholders' Agreement.....................................10
6.8 Deliveries..................................................10
6.9 Completion of Due Diligence.................................11
6.10 Proceedings.................................................11
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF ITRON............................................11
7.1 Representations and Warranties..............................11
7.2 Performance.................................................11
7.3 Closing Certificates........................................11
7.4 Orders and Laws.............................................11
7.5 Regulatory Consents and Approvals...........................11
7.6 Opinion of Counsel..........................................12
7.7 Shareholders' Agreement.....................................12
7.8 Completion of Due Diligence.................................12
7.9 Proceedings.................................................12
ARTICLE VIII
NON-SOLICITATION..............................................................12
ARTICLE IX
SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS.............................................12
ARTICLE X
INDEMNIFICATION...............................................................13
10.1 ITRON's Indemnification.....................................13
10.2 Servatron's Indemnification.................................13
10.3 Indemnification Procedure...................................13
10.4 Exclusivity.................................................14
ARTICLE XI
TERMINATION...................................................................14
11.1 Termination.................................................14
11.2 Effect of Termination.......................................14
ARTICLE XII
DEFINITIONS...................................................................15
12.1 Defined Terms...............................................15
12.2 Construction of Certain Terms and Phrases...................19
ARTICLE XIII
MISCELLANEOUS.................................................................19
13.1 Notices.....................................................19
13.2 Entire Agreement............................................20
13.3 Expenses....................................................20
13.4 Public Announcements........................................20
13.5 Confidentiality.............................................21
13.6 Waiver......................................................21
13.7 Amendment...................................................21
13.8 No Third Party Beneficiary..................................21
13.9 No Assignment; Binding Effect...............................21
13.10 Headings 22
13.11 Arbitration.................................................22
13.12 Invalid Provisions..........................................22
13.13 Governing Law...............................................22
13.14 Remedies................................................... 23
13.15 Attorneys'Fees..............................................23
13.16 Counterparts................................................23
CONTRIBUTION AGREEMENT BETWEEN
SERVATRON, INC. AND ITRON, INC.
THIS CONTRIBUTION AGREEMENT, dated as of May 15, 2000, is made and
entered into by and between SERVATRON, INC., a Washington corporation
("Servatron"), and ITRON, INC., a Washington corporation ("ITRON"). Capitalized
terms not otherwise defined herein have the meanings set forth in Section 12.1.
RECITALS
A. ITRON is engaged in the business of manufacturing and
selling data acquisition and wireless communication equipment for collecting and
analyzing electric, gas, and water usage data; and
B. ITRON desires to sell, transfer and assign to Servatron, and
Servatron desires to purchase and acquire from ITRON, certain of the assets of
ITRON relating to the operation of ITRON's manufacturing and depot service
business.
C. As consideration for the sale of the manufacturing equipment,
Servatron has agreed to issue, and ITRON has agreed to accept, 3,000,000 shares
of Servatron's Series A Preferred Stock.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
SALE OF ASSETS AND CLOSING
1.1 Assets Transferred. On the terms and subject to the conditions set forth in
this Agreement, ITRON will sell, transfer, convey, assign and deliver to
Servatron, and Servatron will purchase and pay for, at the Closing, free and
clear of all Liens other than Permitted Liens, all of ITRON's right, title and
interest in, to and under the assets of ITRON listed in Section 1.1 of the
Disclosure Schedule, as the same shall exist on the Closing Date (collectively,
the "Assets"):
1.2 Liabilities. Except for obligations assumed in connection with the Depot
Repair Services Agreement and the Manufacturing Agreement, Servatron shall not
assume by virtue of this Agreement or the transactions contemplated hereby, and
shall have no liability for, any Liabilities of ITRON. ITRON shall be
responsible for any and all Liabilities of any kind, character or description
arising from the Assets prior to the Closing Date. Servatron shall be
responsible for any and all Liabilities of any kind, character or description
arising from the Assets as of the Closing Date.
1.3 Purchase Price; Allocation.
(a) Purchase Price. The consideration to be paid by Servatron to ITRON for the
Assets is the issuance to ITRON of 3,000,000 shares of preferred stock, $0.001
par value per share, of Servatron ("Servatron Preferred Stock"), which number of
shares shall be equal to thirty percent (30%) of the fully diluted issued and
outstanding shares of common stock of Servatron as of the date of Closing
(including any issued and outstanding convertible preferred stock of Servatron
and any shares of stock of Servatron reserved or set aside for issuance by
Servatron pursuant to stock options, warrants or other rights).
(b) Servatron and ITRON agree that the Assets have a fair market value of One
Million Dollars ($1,000,000) and agree to allocate that amount to the Assets as
set forth in Disclosure Schedule 1.1.
1.4 Closing. The Closing will take place at the offices of Graham & Dunn PC,
located at 1420 Fifth Avenue, 33rd Floor, Seattle, Washington 98101, or at such
other place as Servatron and ITRON mutually agree, at 11:00 A.M. Pacific
Standard Time, on May 15, 2000, or if the conditions specified in Articles VI
and VII are not satisfied on the Closing Date, at such later date when such
conditions are satisfied, as agreed to by the parties. ITRON will assign and
transfer to Servatron good and valid title in and to the Assets (free and clear
of all Liens by delivery of the duly executed: (a) Bill of Sale substantially in
the form of Exhibit A hereto (the "Bill of Sale"), (b) Manufacturing Agreement;
(c) Depot Repair Services Agreement; (d) Shareholders Agreement; (e) Closing
Certificate of ITRON; (f) Secretary's Certificate of ITRON; and (g) Opinion of
Counsel from ITRON's Counsel. At Closing Servatron shall deliver to ITRON the
duly executed: (a) original Stock Certificate representing the Servatron
Preferred Stock; (b) Manufacturing Agreement; (c) Depot Repair Services
Agreement; (d) Shareholders Agreement; (e) Closing Certificate of Servatron; (f)
Secretary's Certificate of Servatron; and (g) Opinion of Counsel from
Servatron's Counsel.
1.5 Further Assurances; Post-Closing Cooperation.
(a) At any time or from time to time after the Closing, at Servatron's request
and without further consideration, ITRON shall execute and deliver to Servatron
such other instruments of sale, transfer, conveyance, assignment and
confirmation, provide such materials and information and take such other actions
as Servatron may reasonably deem necessary or desirable in order more
effectively to transfer, convey and assign to Servatron, and to confirm
Servatron's title to, all of the Assets, and, to the full extent permitted by
Law, to put Servatron in actual possession and operating control of the Assets
(the "Assignment Instruments") and to assist Servatron in exercising all rights
with respect thereto, and otherwise to cause ITRON to fulfill its obligations
under this Agreement and the Operative Agreements.
(b) Following the Closing, each party will afford the other party, its counsel
and its accountants, during normal business hours, reasonable access to the
books, records and other data relating to the Assets in its possession with
respect to periods prior to the Closing and the right to make copies and
extracts therefrom, to the extent that such access may be reasonably required by
the requesting party in connection with (i) the preparation of Tax Returns, (ii)
the determination or enforcement of rights and obligations under this Agreement
or any Operative Agreement, (iii) compliance with the requirements of any
Governmental or Regulatory Authority, (iv) the determination or enforcement of
the rights and obligations of any Indemnified Party or (v) in connection with
any actual or threatened Action or Proceeding. Further each party agrees for a
period extending six (6) years after the Closing Date not to destroy or
otherwise dispose of any such books, records and other data unless such party
shall first offer in writing to surrender such books, records and other data to
the other party and such other party shall not agree in writing to take
possession thereof during the ten (10) day period after such offer is made.
(c) If, in order properly to prepare its Tax Returns, other documents or reports
required to be filed with Governmental or Regulatory Authorities or its
financial statements or to fulfill its obligations hereunder, it is necessary
that a party be furnished with additional information, documents or records
relating to the Assets not referred to in paragraph (c) above, and such
information, documents or records are in the possession or control of the other
party, such other party shall use its best efforts to furnish or make available
such information, documents or records (or copies thereof) at the recipient's
request, cost and expense. Any information obtained by either party in
accordance with this paragraph shall be held confidential by such party in
accordance with Section 13.5.
(d) Notwithstanding anything to the contrary contained in this Section 1.5, if
the parties are in an adversarial relationship in litigation or arbitration, the
furnishing of information, documents or records in accordance paragraphs (b) or
(c) of this Section shall be subject to applicable rules relating to discovery.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
ITRON
ITRON hereby represents and warrants to Servatron as follows:
2.1 Organization of ITRON. ITRON is a corporation validly existing under the
Laws of the State of Washington, and has full corporate power and authority to
own, use and lease the Assets.
2.2 Authority; Binding Nature of Agreement. ITRON has full corporate power and
authority to execute and deliver this Agreement and the Operative Agreements to
which it is a party, to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby, including, without
limitation, to sell and transfer (pursuant to this Agreement) the Assets. The
execution and delivery by ITRON of this Agreement and the Operative Agreements
to which it is a party, and the performance by ITRON of its obligations
hereunder and thereunder, have been duly and validly authorized by the Board of
Directors of ITRON. This Agreement has been duly and validly executed and
delivered by ITRON, and upon the execution and delivery by ITRON of the
Operative Agreements to which it is a party, such Operative Agreements will
constitute, legal, valid and binding obligations of ITRON enforceable against
ITRON in accordance with their terms.
2.3 Noncontravention. The execution, delivery and performance by ITRON of each
of this Agreement and the consummation of the transactions contemplated hereby,
do not violate or contravene any provision of its articles or certificate of
incorporation or by-laws and do not violate any applicable rule of Governmental
or Regulatory Authorities or result in a breach of or constitute a default under
any contract, obligation, indenture or other instrument to which it is a party
or by which it may be bound, which violation, breach or default would have an
ITRON Material Adverse Effect.
2.4 Books and Records. Except as set forth in Section 2.4 of the Disclosure
Schedule, none of the Books and Records are recorded, stored, maintained,
operated or otherwise wholly or partly dependent upon or held by any means
(including any electronic, mechanical or photographic process, whether
computerized or not) which (including all means of access thereto and therefrom)
are not under the exclusive ownership and direct control of one or more
Employees.
2.5 No Undisclosed Liabilities. Except as disclosed in Section 2.5 of the
Disclosure Schedule, ITRON has good, indefeasible, and merchantable title to and
ownership of the Assets free and clear of all Liens. There are no Liabilities or
Liens against, relating to or affecting any of the Assets.
2.6 No Warranties. ITRON does not warrant the condition of the Assets. All
Assets are provided "as is, where is," FOB ITRON's plant.
2.7 Brokers. All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried out by ITRON directly with Servatron
without the intervention of any Person on behalf of ITRON in such manner as to
give rise to any valid claim by any Person against Servatron for a finder's fee,
brokerage commission or similar payment.
2.8 Product Liability. To the Knowledge of ITRON, ITRON has no Liability, and
there is no known basis for any present or future action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand against ITRON giving
rise to any Liability, arising out of any injury to individuals or property as a
result of the ownership, possession, or use of any product distributed, sold or
delivered by ITRON that was manufactured using the Assets.
2.9 Transition Benefits. ITRON shall provide those Servatron employees who were
previously employed by ITRON and who are listed on Schedule 2.9 attached hereto
("Former Employees") with the transition benefits listed on such schedule for
the time periods specified thereon. The Former Employees and Larry Panattoni
shall not be subject to the non-solicitation provisions of Article VIII.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SERVATRON
Servatron hereby represents and warrants to ITRON as follows:
3.1 Organization. Servatron is a corporation validly existing under the Laws of
the State of Washington. Servatron has full corporate power and authority to
enter into this Agreement and the Operative Agreements to which it is a party,
to perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby.
3.2 Authority. Servatron has full corporate power and authority to execute and
deliver this Agreement and the Operative Agreements to which it is a party, to
perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby, including, without limitation, to
sell and transfer (pursuant to this Agreement) the Assets. The execution and
delivery by Servatron of this Agreement and the Operative Agreements to which it
is a party, and the performance by Servatron of its obligations hereunder and
thereunder, have been duly and validly authorized by the Board of Directors of
Servatron and the Shareholders. This Agreement has been duly and validly
executed and delivered by Servatron, and upon the execution and delivery by
Servatron of the Operative Agreements to which it is a party, such Operative
Agreements will constitute, legal, valid and binding obligations of Servatron
enforceable against Servatron in accordance with their terms.
3.3 Capitalization. The authorized capital stock of Servatron is as set forth in
Section 3.3 of the Disclosure Schedule. No shares of such capital stock are
issued and outstanding except for the shares as identified in Section 3.3 of the
Disclosure Schedule. The shares of capital stock of Servatron are owned of
record and beneficially by the Persons in the number set forth in Section 3.3 of
the Disclosure Schedule. All such shares of capital stock are validly issued,
fully paid and nonassessable. Except as set forth on Section 3.3 of the
Disclosure Schedule, there are no (i) securities convertible into or
exchangeable for any of the capital stock or other securities of Servatron, (ii)
options, warrants or other rights to purchase or subscribe to capital stock or
other securities of Servatron or securities which are convertible into or
exchangeable for capital stock or other securities of Servatron, (iii)
contracts, commitments, agreements, understandings or arrangements of any kind
relating to the issuance, sale or transfer of any capital stock or other equity
securities of Servatron, any such convertible or exchangeable securities or any
such options, warrants or other rights or (iv) other Persons with an ownership
interest in the assets, properties or business of Servatron.
3.4 Noncontravention. The execution, delivery and performance by Servatron of
each of this Agreement and the consummation of the transactions contemplated
hereby, do not violate or contravene any provision of its articles or
certificate of incorporation or by-laws and do not violate any applicable rule
of Governmental or Regulatory Authorities or result in a breach of or constitute
a default under any contract, obligation, indenture or other instrument to which
it is a party or by which it may be bound, which violation, breach or default
would have a Servatron Material Adverse Effect.
3.5 Brokers. All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried out by Servatron directly with ITRON
without the intervention of any Person on behalf of Servatron in such manner as
to give rise to any valid claim by any Person against Servatron for a finder's
fee, brokerage commission or similar payment.
3.6 Legal Proceedings. Except as disclosed in Section 3.6 of the Disclosure
Schedule there are no pending or, to Servatron's knowledge, threatened actions,
claims, investigations, suits or proceedings, by or before any governmental
authority, arbitrator, court or administrative agency that could have an
Servatron Material Adverse Effect.
3.7 Insurance. All current policies of insurance of any kind or nature owned by
or issued to Servatron, including, without limitation, policies of fire, theft,
product liability, public liability, property damage, other casualty, employee
fidelity, workers' compensation and employee health and welfare insurance, are
in full force and effect and are of a nature and provide such coverage as is
sufficient and as is customarily carried by companies of its size and character.
3.8 Labor Matters. Other than any of the following which in the aggregate have
no reasonable likelihood of having an Servatron Material Adverse Effect: (i)
there are no strikes, work stoppages, slowdowns or lockouts pending or to
Servatron's knowledge threatened against or involving it; (ii) there are no
arbitrations or grievances pending or to its knowledge threatened against or
involving it; (iii) there is no organizing activity involving it pending or to
its knowledge threatened by any labor union or group of employees; (iv) there
are no representation proceedings pending against it or to its knowledge
threatened with the National Labor Relations Board; (v) no labor organization or
group of its employees has made a pending demand on it for recognition; (vi)
there are no unfair labor practice charges, grievances or complaints pending or
in process or to its knowledge threatened by or on behalf of any employee or
group of its employees; (vii) there are no complaints or charges against it
pending or to its knowledge threatened to be filed with any federal, state or
local court, governmental agency or arbitrator based on, arising out of, in
connection with, or otherwise relating to its employment of any individual; and
(viii) it is in material compliance with all applicable rules and orders of
Governmental or Regulatory Authorities, and all orders of any Governmental
Authority or arbitrator, relating to the employment of labor including all such
laws relating to wages, hours, collective bargaining, discrimination, civil
rights, and the payment of withholding and/or social security and similar taxes.
As of the date hereof Servatron is not a party to, and has no obligations under,
any collective bargaining agreement.
3.9 Environmental, Health, and Safety Matters. Except as disclosed in Disclosure
Schedule 3.9, Servatron is in compliance in all material respects with all
Environmental Laws applicable to it, other than such noncompliance as in the
aggregate will not have an Servatron Material Adverse Effect. Servatron has not
received notice that it is the subject of any federal or state investigation
evaluating whether any Remedial Action is needed. There have been no Releases by
Servatron that could reasonably be expected to result in an Servatron Material
Adverse Effect.
3.10 Employee Benefits. Except as disclosed in Disclosure Schedule 3.10,
Servatron is in compliance in all material respects with the applicable
provisions of ERISA. Servatron has not violated any provision of any Plan
maintained or contributed to by it in a manner that could result in a Material
Adverse Effect. No "reportable event" (as defined in Title IV of ERISA) has
occurred and is continuing with respect to any Plan initiated by it.
3.11 Tax Matters. Except as disclosed in Disclosure Schedule 3.11, Servatron has
filed, or caused to be filed, all federal, state, local and foreign tax returns
required to be filed by it, and has paid, or caused to be paid, all taxes as are
shown on such returns, or on any assessment received by it, to the extent that
such taxes have become due, except as otherwise contested in good faith.
Servatron has set aside proper amounts on its books, determined in accordance
with GAAP, for the payment of all taxes for the years that have not been audited
by the respective tax authorities and for taxes being contested by it.
3.12 Intellectual Property. Except as disclosed in Disclosure Schedule 3.12,
Servatron owns or licenses or otherwise has the right to use all material
licenses, Permits, patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, copyright applications,
franchises, authorizations and other intellectual property rights that are
necessary for the operation of its businesses, without infringement upon or
conflict with the rights of any other Person with respect thereto, including
without limitation, all trade names. No slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now
contemplated to be employed, by Servatron infringes upon or conflicts with any
rights owned by any other Person, which infringement or conflict is reasonably
likely to have an Servatron Material Adverse Effect, and no claim or litigation
regarding any of the foregoing is pending or, to its knowledge, threatened, the
existence of which is reasonably likely to have an Servatron Material Adverse
Effect. No patent, invention, device, application, principle or any statute,
law, rule, regulation, standard or code is pending or, to its knowledge,
proposed, other than those the consequences of which in the aggregate have no
reasonable likelihood of having an Servatron Material Adverse Effect.
ARTICLE IV
COVENANTS OF ITRON
ITRON hereby covenants and agrees with Servatron that, at all times
from and after the date of this Agreement until the Closing and, with respect to
any covenant or agreement by its terms to be performed in whole or in part after
the Closing, for the period specified herein or, if no period is specified
herein, for a period of two (2) years after the Closing, ITRON will comply with
all covenants and provisions of this Article IV, except to the extent Servatron
may otherwise consent in writing.
4.1 Regulatory and Other Approvals. ITRON will (a) take all commercially
reasonable steps necessary or desirable, and proceed diligently and in good
faith and use all commercially reasonable efforts, as promptly as practicable to
obtain all consents, approvals or actions of, to make all filings with and to
give all notices to Governmental or Regulatory Authorities or any other Person
required of ITRON to consummate the transactions contemplated hereby and by the
Operative Agreements, (b) provide such other information and communications to
such Governmental or Regulatory Authorities or other Persons as Servatron or
such Governmental or Regulatory Authorities or other Persons may reasonably
request in connection therewith and (c) cooperate with Servatron as promptly as
practicable in obtaining all consents, approvals or actions of, making all
filings with and giving all notices to Governmental or Regulatory Authorities or
other Persons required of Servatron to consummate the transactions contemplated
hereby and by the Operative Agreements. ITRON will provide prompt notification
to Servatron when any such consent, approval, action, filing or notice referred
to in clause (a) above is obtained, taken, made or given, as applicable, and
will advise Servatron of any communications (and, unless precluded by Law,
provide copies of any such communications that are in writing) with any
Governmental or Regulatory Authority or other Person regarding any of the
transactions contemplated by this Agreement or any of the Operative Agreements.
4.2 Securities Law Matters. ITRON agrees to hold the Servatron Preferred Stock
received pursuant to this Agreement pursuant to the terms of the investment
letter attached hereto as Exhibit B.
4.3 Notice and Cure. ITRON will notify Servatron in writing (where appropriate,
through updates to the Disclosure Schedule) of, and contemporaneously will
provide Servatron with true and complete copies of any and all information or
documents relating to, and will use all commercially reasonable efforts to cure
before the Closing, any event, transaction or circumstance, as soon as
practicable after it becomes Known to ITRON, occurring after the date of this
Agreement that causes or will cause any covenant or agreement of ITRON under
this Agreement to be breached or that renders or will render untrue any
representation or warranty of ITRON contained in this Agreement as if the same
were made on or as of the date of such event, transaction or circumstance. ITRON
also will notify Servatron in writing (where appropriate, through updates to the
Disclosure Schedule) of, and will use all commercially reasonable efforts to
cure, before the Closing, any violation or breach, as soon as practicable after
it becomes Known to ITRON, of any representation, warranty, covenant or
agreement made by ITRON in this Agreement, whether occurring or arising before,
on or after the date of this Agreement. No notice given pursuant to this Section
shall have any effect on the representations, warranties, covenants or
agreements contained in this Agreement for purposes of determining satisfaction
of any condition contained herein or shall in any way limit Servatron's right to
seek indemnity under Article X.
4.4 Fulfillment of Conditions. ITRON will execute and deliver at the Closing
each Operative Agreement that ITRON is required hereby to execute and deliver as
a condition to the Closing, will take all commercially reasonable steps
necessary or desirable and proceed diligently and in good faith to satisfy each
other condition to the obligations of Servatron contained in this Agreement and
will not take or fail to take any action that could reasonably be expected to
result in the nonfulfillment of any such condition.
ARTICLE V
COVENANTS OF SERVATRON
Servatron covenants and agrees with ITRON that, at all times from and
after the date of this Agreement until the Closing and, with respect to any
covenant or agreement by its terms to be performed in whole or in part after the
Closing, for the period specified herein or, if no period is specified herein,
for a period of two (2) years after the Closing, Servatron will comply with all
covenants and provisions of this Article V, except to the extent ITRON may
otherwise consent in writing.
5.1 Regulatory and Other Approvals. Servatron will (a) take all commercially
reasonable steps necessary or desirable, and proceed diligently and in good
faith and use all commercially reasonable efforts, as promptly as practicable to
obtain all consents, approvals or actions of, to make all filings with and to
give all notices to Governmental or Regulatory Authorities or any other Person
required of Servatron to consummate the transactions contemplated hereby and by
the Operative Agreements, (b) provide such other information and communications
to such Governmental or Regulatory Authorities or other Persons as ITRON or such
Governmental or Regulatory Authorities or other Persons may reasonably request
in connection therewith and (c) cooperate with ITRON as promptly as practicable
in obtaining all consents, approvals or actions of, making all filings with and
giving all notices to Governmental or Regulatory Authorities or other Persons
required of ITRON to consummate the transactions contemplated hereby and by the
Operative Agreements. Servatron will provide prompt notification to ITRON when
any such consent, approval, action, filing or notice referred to in clause (a)
above is obtained, taken, made or given, as applicable, and will advise ITRON of
any communications (and, unless precluded by Law, provide copies of any such
communications that are in writing) with any Governmental or Regulatory
Authority or other Person regarding any of the transactions contemplated by this
Agreement or any of the Operative Agreements.
5.2 Notice and Cure. Servatron will notify ITRON in writing of, and
contemporaneously will provide ITRON with true and complete copies of any and
all information or documents relating to, and will use all commercially
reasonable efforts to cure before the Closing, any event, transaction or
circumstance, as soon as practicable after it becomes Known to Servatron,
occurring after the date of this Agreement that causes or will cause any
covenant or agreement of Servatron under this Agreement to be breached or that
renders or will render untrue any representation or warranty of Servatron
contained in this Agreement as if the same were made on or as of the date of
such event, transaction or circumstance. Servatron also will notify ITRON in
writing of, and will use all commercially reasonable efforts to cure, before the
Closing, any violation or breach, as soon as practicable after it becomes Known
to Servatron, of any representation, warranties, covenant or agreement made by
Servatron in this Agreement, whether occurring or arising before, on or after
the date of this Agreement. No notice given pursuant to this Section shall have
any effect on the representations, warranties, covenants or agreements contained
in this Agreement for purposes of determining satisfaction of any condition
contained herein or shall in any way limit ITRON's right to seek indemnity under
Article X.
5.3 Fulfillment of Conditions. Servatron will execute and deliver at the Closing
each Operative Agreement that Servatron is hereby required to execute and
deliver as a condition to the Closing, will take all commercially reasonable
steps necessary or desirable and proceed diligently and in good faith to satisfy
each other condition to the obligations of ITRON contained in this Agreement and
will not take or fail to take any action that could reasonably be expected to
result in the nonfulfillment of any such condition.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF SERVATRON
The obligations of Servatron hereunder to purchase the Assets are
subject to the fulfillment, at or before the Closing, of each of the following
conditions (all or any of which may be waived in whole or in part by Servatron
in its sole discretion):
6.1 Representations and Warranties. Each of the representations and warranties
made by ITRON in this Agreement (other than those made as of a specified date
earlier than the Closing Date) shall be true and correct in all material
respects on and as of the Closing Date as though such representation or warranty
was made on and as of the Closing Date, and any representation or warranty made
as of a specified date earlier than the Closing Date shall have been true and
correct in all material respects on and as of such earlier date.
6.2 Performance. ITRON shall have performed and complied with, in all material
respects, each agreement, covenant and obligation required by this Agreement or
any Operative Agreement to be so performed or complied with by ITRON at or
before the Closing.
6.3 Closing Certificates. ITRON shall have delivered to Servatron a certificate,
dated the Closing Date and executed by the Chairman of the Board, the President
or any Vice President of ITRON, substantially in the form and to the effect of
Exhibit C hereto, and a certificate, dated the Closing Date and executed by the
Secretary or any Assistant Secretary of ITRON, substantially in the form and to
the effect of Exhibit D hereto.
6.4 Orders and Laws. There shall not be in effect on the Closing Date any Order
or Law restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement or any of
the Operative Agreements or which could reasonably be expected to otherwise
result in a material diminution of the benefits of the transactions contemplated
by this Agreement or any of the Operative Agreements to Servatron, and there
shall not be pending or threatened on the Closing Date any Action or Proceeding
or any other action in, before or by any Governmental or Regulatory Authority
which could reasonably be expected to result in the issuance of any such Order
or the enactment, promulgation or deemed applicability to Servatron or the
transactions contemplated by this Agreement or any of the Operative Agreements
of any such Law.
6.5 Regulatory Consents and Approvals. All consents, approvals and actions of,
filings with and notices to any Governmental or Regulatory Authority necessary
to permit Servatron and ITRON to perform their obligations under this Agreement
and the Operative Agreements and to consummate the transactions contemplated
hereby and thereby (a) shall have been duly obtained, made or given, (b) shall
be in form and substance reasonably satisfactory to Servatron, (c) shall not be
subject to the satisfaction of any condition that has not been satisfied or
waived and (d) shall be in full force and effect, and all terminations or
expirations of waiting periods imposed by any Governmental or Regulatory
Authority necessary for the consummation of the transactions contemplated by
this Agreement and the Operative Agreements shall have occurred.
6.6 Opinion of Counsel. Servatron shall have received the opinion of Perkins
Coie. LLP, counsel to ITRON, dated the Closing Date, substantially in the form
and to the effect of Exhibit E hereto.
6.7 Shareholders' Agreement. ITRON shall have entered into a shareholders'
agreement and a stock restriction agreement, substantially in the form and to
the effect of Exhibit F hereto (the "Shareholders' Agreement").
6.8 Deliveries. ITRON shall have delivered to Servatron the Bill of Sale and the
other Assignment Instruments.
6.9 Completion of Due Diligence. Servatron shall have completed its due
diligence review of ITRON and shall have been satisfied, in its sole discretion,
with the results thereof.
6.10 Proceedings. All proceedings to be taken on behalf of ITRON in connection
with the transactions contemplated by this Agreement and all documents incident
thereto shall be reasonably satisfactory in form and substance to Servatron, and
Servatron shall have received copies of all such documents and other evidences
as Servatron may reasonably request in order to establish the consummation of
such transactions and the taking of all proceedings in connection therewith.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF ITRON
The obligations of ITRON hereunder to sell the Assets are subject to
the fulfillment, at or before the Closing, of each of the following conditions
(all or any of which may be waived in whole or in part by ITRON in its sole
discretion):
7.1 Representations and Warranties. Each of the representations and warranties
made by Servatron in this Agreement shall be true and correct in all material
respects on and as of the Closing Date as though such representation or warranty
was made on and as of the Closing Date.
7.2 Performance. Servatron shall have performed and complied with, in all
material respects, each agreement, covenant and obligation required by this
Agreement or any Operative Agreement to be so performed or complied with by
Servatron at or before the Closing.
7.3 Closing Certificates. Servatron shall have delivered to ITRON a certificate,
dated the Closing Date and executed by the Chairman of the Board, the President
or any Vice President of Servatron, substantially in the form and to the effect
of Exhibit G hereto, and a certificate, dated the Closing Date and executed by
the Secretary or any Assistant Secretary of Servatron, substantially in the form
and to the effect of Exhibit H hereto.
7.4 Orders and Laws. There shall not be in effect on the Closing Date any Order
or Law that became effective after the date of this Agreement restraining,
enjoining or otherwise prohibiting or making illegal the consummation of any of
the transactions contemplated by this Agreement or any of the Operative or which
could reasonably be expected to otherwise result in a material diminution of the
benefits of the transactions contemplated by this Agreement or any of the
Operative Agreements to ITRON, and there shall not be pending or threatened on
the Closing Date any Action or Proceeding or any other action in, before or by
any Governmental or Regulatory Authority which could reasonably be expected to
result in the issuance of any such Order or the enactment, promulgation or
deemed applicability to ITRON or the transactions contemplated by this Agreement
or any of the Operative Agreements of any such Law.
7.5 Regulatory Consents and Approvals. All consents, approvals and actions of,
filings with and notices to any Governmental or Regulatory Authority necessary
to permit ITRON and Servatron to perform their obligations under this Agreement
and the Operative Agreements and to consummate the transactions contemplated
hereby and thereby (a) shall have been duly obtained, made or given, (b) shall
not be subject to the satisfaction of any condition that has not been satisfied
or waived and (c) shall be in full force and effect, and all terminations or
expirations of waiting periods imposed by any Governmental or Regulatory
Authority necessary for the consummation of the transactions contemplated by
this Agreement and the Operative Agreements shall have occurred.
7.6 Opinion of Counsel. ITRON shall have received the opinion of Graham & Dunn
PC, counsel to Servatron, dated the Closing Date, substantially in the form and
to the effect of Exhibit I hereto.
7.7 Shareholders' Agreement. The shareholders of Servatron listed in Section 3.3
of the Disclosure Schedule shall have entered into the Shareholders' Agreement.
7.8 Completion of Due Diligence. ITRON shall have completed its due diligence
review of Servatron and shall have been satisfied, in its sole discretion, with
the results thereof.
7.9 Proceedings. All proceedings to be taken on the part of Servatron in
connection with the transactions contemplated by this Agreement and all
documents incident thereto shall be reasonably satisfactory in form and
substance to ITRON, and ITRON shall have received copies of all such documents
and other evidences as ITRON may reasonably request in order to establish the
consummation of such transactions and the taking of all proceedings in
connection therewith.
ARTICLE VIII
NON-SOLICITATION
Servatron agrees not to solicit or hire any employees of ITRON for one
year from the date of this Agreement. ITRON agrees not to hire any employees of
Servatron for one year from the date of this Agreement. Notwithstanding the
foregoing, Servatron may hire employees of ITRON who have been terminated by
ITRON or who have resigned at ITRON's request and ITRON may hire employees of
Servatron who have been terminated by Servatron who have resigned at Servatron's
request.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS
Notwithstanding any right of Servatron to investigate the accuracy of
the representations and warranties of the other party contained in this
Agreement, ITRON and Servatron have the right to rely fully upon the
representations, warranties, covenants and agreements of the other contained in
this Agreement. The representations, warranties, covenants and agreements of
ITRON and Servatron contained in this Agreement will survive the Closing (a)
until sixty (60) days after the expiration of all applicable statutes of
limitation (including all periods of extension, whether automatic or permissive)
with respect to the representations and warranties or (b) with respect to the
covenants or agreements contained in this Agreement, until sixty (60) days
following the last date on which such covenant or agreement is to be performed
or, if no such date is stated for twelve (12) months after Closing, except that
any representation, warranty, covenant or agreement that would otherwise
terminate in accordance with clause (a) or (b) above will continue to survive if
a claim for indemnity shall have been made under Article IX on or prior to such
termination date, until such claim has been satisfied or otherwise resolved.
ARTICLE X
INDEMNIFICATION
10.1 ITRON's Indemnification. ITRON shall indemnify the Servatron Indemnified
Parties in respect of, and hold each of them harmless from and against, any and
all Losses suffered, incurred or sustained by any of them or to which any of
them becomes subject, resulting from, arising out of or relating to any
misrepresentation, breach of warranty or nonfulfillment of or failure to perform
any covenant or agreement on the part of ITRON contained in this Agreement
(determined in all cases as if the terms "material" or "materially" were not
included therein) and for any Losses or Liabilities arising from the Assets
incurred prior to the Closing Date.
10.2 Servatron's Indemnification. Servatron shall indemnify the ITRON
Indemnified Parties in respect of, and hold each of them harmless from and
against, any and all Losses suffered, incurred or sustained by any of them or to
which any of them becomes subject, resulting from, arising out of or relating to
any misrepresentation, breach of warranty or nonfulfillment of or failure to
perform any covenant or agreement on the part of Servatron contained in this
Agreement (determined in all cases as if the terms "material" or "materially"
were not included therein) and for any Losses or Liabilities arising from the
Assets arising on or after the Closing Date.
10.3 Indemnification Procedure.
(a) Upon obtaining knowledge thereof, the party to be indemnified hereunder (the
"Indemnitee") shall promptly notify the indemnifying party hereunder (the
"Indemnitor") in writing of any damage, claim, loss, liability or expense or
other matter which the Indemnitee has determined has given or could give rise to
a claim for which indemnification rights are granted hereunder (such written
notice referred to as the "Notice of Claim"). The Notice of Claim shall specify,
in all reasonable detail, the nature and estimated amount of any such claim
giving rise to a right of indemnification, to the extent the same can reasonably
be estimated. Any failure on the part of an Indemnitee to give timely notice to
the Indemnitor of a claim shall not affect the right of the Indemnitee to obtain
indemnification from the Indemnitor with respect to such claim unless the
Indemnitor is actually harmed by such failure to notify, and, in such case, only
to the extent of such actual harm.
(b) With respect to any matter set forth in a Notice of Claim relating to a
third party claim the Indemnitor shall defend, in good faith and at its expense,
any such claim or demand, and the Indemnitee, at its expense, shall have the
right to participate in the defense of any such third party claim. So long as
Indemnitor is defending, in good faith, any such third party claim, the
Indemnitee shall not settle or compromise such third party claim. The Indemnitee
shall make available to the Indemnitor or its representatives all records and
other materials reasonably required by them for use in contesting any third
party claim and shall cooperate fully with the Indemnitor in the defense of all
such claims. If the Indemnitor does not defend any such third party claim or if
the Indemnitor does not provide the Indemnitee with prompt and reasonable
assurances that the Indemnitor will satisfy the third party claim, the
Indemnitee may, at its option, elect to defend any such third party claim, at
the Indemnitor's expense, but subject to the Indemnitor's right to assume such
defense from the Indemnitee at any time. An Indemnitor may not settle or
compromise any claim without obtaining a full and unconditional release of the
Indemnitee, unless the Indemnitee consents in writing to such settlement or
compromise.
10.4 Exclusivity. After the Closing, to the extent permitted by Law, the
indemnities set forth in this Article X shall be the exclusive remedies of
Servatron, ITRON and their respective officers, directors, employees, agents and
Affiliates for any misrepresentation, breach of warranty or nonfulfillment or
failure to be performed of any covenant or agreement contained in this
Agreement, and the parties shall not be entitled to a rescission of this
Agreement or to any further indemnification rights or claims of any nature
whatsoever in respect thereof, all of which the parties hereto hereby waive.
ARTICLE XI
TERMINATION
11.1 Termination. This Agreement may be terminated, and the transactions
contemplated hereby may be abandoned:
(a) at any time before the Closing, by mutual written agreement of ITRON and
Servatron;
(b) at any time before the Closing, by ITRON or Servatron, in the event (i) of a
material breach hereof by the non-terminating party if such non-terminating
party fails to cure such breach within five (5) Business Days following
notification thereof by the terminating party or (ii) upon notification of the
non-terminating party by the terminating party that the satisfaction of any
condition to the terminating party's obligations under this Agreement becomes
impossible or impracticable with the use of commercially reasonable efforts if
the failure of such condition to be satisfied is not caused by a breach hereof
by the terminating party; or
(c) at any time after June 30, 2000 (the "Termination Date") by ITRON or
Servatron upon notification of the non-terminating party by the terminating
party if the Closing shall not have occurred on or before such date and such
failure to consummate is not caused by a breach of this Agreement by the
terminating party.
11.2 Effect of Termination. If this Agreement is validly terminated pursuant to
Section 11.1, this Agreement will forthwith become null and void, and there will
be no liability or obligation on the part of ITRON or Servatron (or any of their
respective officers, directors, employees, agents or other representatives or
Affiliates), except as provided in the next succeeding sentence. Notwithstanding
any other provision in this Agreement to the contrary, upon termination of this
Agreement pursuant to Section 11.1(b) or (c), ITRON will remain liable to
Servatron for any breach of this Agreement by ITRON existing at the time of such
termination, and Servatron will remain liable to ITRON for any breach of this
Agreement by Servatron existing at the time of such termination, and ITRON or
Servatron may seek such remedies, including damages and fees of attorneys,
against the other with respect to any such breach as are provided in this
Agreement or as are otherwise available at Law or in equity.
ARTICLE XII
DEFINITIONS
12.1 Defined Terms.
(a) Defined Terms. As used in this Agreement, the following defined
terms have the meanings indicated below:
"AAA" has the meaning ascribed to it in Section 13.11.
"Actions or Proceedings" means any action, suit, proceeding,
arbitration or Governmental or Regulatory Authority investigation or audit.
"Affiliate" means any Person that directly, or indirectly
through one of more intermediaries, controls or is controlled by or is under
common control with the Person specified. For purposes of this definition,
control of a Person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise and, in any event and without limitation of the previous sentence, any
Person owning ten percent (10%) or more of the voting securities of another
Person shall be deemed to control that Person.
"Agreement" means this Contribution Agreement and the
Exhibits, the Disclosure Schedule and the Schedules hereto and the certificates
delivered in accordance with Sections 6.3 and 7.3, as the same shall be amended
from time to time.
"Assets" has the meaning ascribed to it in Section 1.1.
"Assignment Instruments" has the meaning ascribed to it in
Section 1.5.
"Books and Records" of any Person means all files, documents,
instruments, papers, books and records relating to the business, operations,
condition of (financial or other), results of operations and Assets of such
Person, including, without limitation, financial statements, Tax Returns and
related work papers and letters from accountants, budgets, pricing guidelines,
ledgers, journals, deeds, title policies, minute books, stock certificates and
books, stock transfer ledgers, contracts, customer lists, computer files and
programs, retrieval programs, operating data and plans and environmental studies
and plans.
"Business Day" means a day other than Saturday, Sunday or any
day on which banks located in the State of Washington are authorized or
obligated to close.
"Closing" means the closing of the transactions contemplated
by Section 1.5.
"Closing Date" means the date specified in Section 1.5.
"Code" means the Internal Revenue Code of 1986, as amended,
and the rules and regulations promulgated thereunder.
"Condition of the Assets" means the business, condition
(financial or otherwise), results of operations, and Assets.
"Disclosure Schedule" means the record delivered by the
parties and dated as of the date hereof, containing all lists, descriptions,
exceptions and other information and materials as are required to be included
therein by Servatron and ITRON pursuant to this Agreement.
"Employee" means each employee or officer of ITRON primarily
engaged in the conduct of the business dependent upon the Assets.
"Environmental Law" means all applicable federal, state and
local laws, statutes, ordinances and regulations, and any applicable judicial or
administrative interpretation, order, consent decree or judgment, relating to
the regulation and protection of the environment. Environmental Laws include but
are not limited to the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. ss. 9601 et seq.); the Hazardous
Material Transportation Act, as amended (49 U.S.C. ss. 180 et seq.); the Federal
Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. ss. 136 et
seq.); the Resource Conservation and Recovery Act, as amended (42 U.S.C. ss.
6901 et seq.); the Toxic Substance Control Act, as amended (42 U.S.C. ss. 7401
et seq.); the Clean Air Act, as amended (42 U.S.C. ss. 740 et seq.); the Federal
Water Pollution Control Act, as amended (33 U.S.C. ss. 1251 et seq.); and the
Safe Drinking Water Act, as amended (42 U.S.C. ss. 300f et seq.); and their
state and local counterparts or equivalents and any applicable transfer of
ownership notification or approval statutes.
"GAAP" means generally accepted accounting principles,
consistently applied throughout the specified period and in the immediately
prior comparable period.
"Governmental or Regulatory Authority" means any court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any foreign country or any domestic or
foreign state, county, city or other political subdivision.
"Indebtedness" of any Person means all obligations of such
Person (i) for borrowed money, (ii) evidenced by notes, bonds, debentures or
similar instruments, (iii) for the deferred purchase price of goods or services
(other than trade payables or accruals incurred in the ordinary course of
business), (iv) under capital leases and (v) in the nature of guarantees of the
obligations described in clauses (i) through (iv) above of any other Person.
"Indemnified Party" means a Servatron Indemnified Party or a
ITRON Indemnified Party.
"Indemnitee" has the meaning ascribed to it in Section 10.3.
"Indemnitor" has the meaning ascribed to it in Section 10.3.
"Intellectual Property" means all patents and patent rights,
trademarks and trademark rights, trade names and trade name rights, service
marks and service mark rights, service names and service name rights, brand
names, inventions, processes, formulae, copyrights and copyright rights, trade
dress, business and product names, logos, slogans, trade secrets, industrial
models, processes, designs, methodologies, Software and other computer programs
(including all source codes) and related documentation, research products,
technical information, manufacturing, engineering and technical drawings,
know-how and all pending applications for and registrations of patents,
trademarks, service marks and copyrights.
"IRS" means the United States Internal Revenue Service.
"ITRON" has the meaning ascribed to it in the forepart of this
Agreement.
"ITRON Indemnified Parties" means Servatron and its respective
officers, directors, employees, agents and Affiliates.
"ITRON Material Adverse Effect" means any event, occurrence,
fact, condition, change or effect that is materially financially adverse to the
business, operations, results of operations, condition (financial or otherwise),
prospects, properties (including intangible properties), assets (including
intangible assets) or liabilities of ITRON.
"Knowledge of Servatron" or "Known to Servatron" means the
knowledge of any officer, director or key employees of Servatron.
"Knowledge of ITRON" or "Known to ITRON" means the knowledge
of any officer, director or key employee of ITRON.
"Laws" means all laws, statutes, rules, regulations,
ordinances and other pronouncements having the effect of law of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision or of any Governmental or Regulatory Authority.
"Liabilities" means all Indebtedness, obligations and other
liabilities of a Person (whether absolute, accrued, contingent, fixed or
otherwise, or whether due or to become due).
"Licenses" means all licenses, permits, certificates of
authority, authorizations, approvals, registrations, franchises and similar
consents granted or issued by any Governmental or Regulatory Authority.
"Liens" means any mortgage, pledge, assessment, security
interest, lease, lien, adverse claim, levy, charge or other encumbrance of any
kind, or any conditional sale contract, title retention contract or other
contract to give any of the foregoing.
"Loss" means any and all damages, fines, fees, penalties,
deficiencies, losses and expenses (including, without limitation, interest,
court costs, fees of attorneys, accountants and other experts or other expenses
of litigation or other proceedings or of any claim, default or assessment).
"Manufacturing Agreement" means the Manufacturing Agreement
between Servatron, Inc. and ITRON, Inc. dated May 15, 2000.
"Notice of Claim" has the meaning ascribed to it in
Section 10.3.
"Operative Agreements" means, collectively, the Bill of Sale
and the other Assignment Instruments, the Shareholders' Agreement, the
Manufacturing Agreement, the Depot Repair Services Agreement and any support or
other agreements to be entered into in connection with this transaction.
"Order" means any writ, judgment, decree, injunction or
similar order of any Governmental or Regulatory Authority (in each such case
whether preliminary or final).
"Permit" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable governmental rule.
"Permitted Lien" means (i) any Lien for Taxes not yet due or
delinquent or being contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP, (ii) any
statutory Lien arising in the ordinary course of business by operation of Law
with respect to a Liability that is not yet due or delinquent and (iii) any
minor imperfection of title or similar Lien which individually or in the
aggregate with other such Liens does not materially impair the value of the
property subject to such Lien.
"Person" means any natural person, corporation, general
partnership, limited partnership, limited liability company, proprietorship,
other business organization, trust, union, association or Governmental or
Regulatory Authority.
"Purchase Price" has the meaning ascribed to it in
Section 1.3(a).
"Release" means, as to any Person, any unpermitted spill,
emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration of a Contaminant into the environment.
"Remedial Action" means all actions required to clean up,
remove, prevent or minimize a Release or threat of Release or to perform
pre-remedial studies and investigations and post-remedial monitoring and care.
"Servatron" has the meaning ascribed to it in the forepart of
this Agreement.
"Servatron Indemnified Parties" means ITRON and its respective
officers, directors, employees, agents and Affiliates.
"Servatron Preferred Stock" has the meaning ascribed to it in
Section 1.3(a).
"Servatron Material Adverse Effect" means any event,
occurrence, fact, condition, change or effect that is materially adverse to the
business, operations, results of operations, condition (financial or otherwise),
prospects, properties (including intangible properties), assets (including
intangible assets) or liabilities of Servatron.
"Shareholders" mean all the holders of capital stock of ITRON.
"Shareholders' Agreement" has the meaning ascribed to it in
Section 6.7.
"Tax Returns" means any return (including any information
return), report, statement, declaration, estimate, schedule, notice,
notification, form, election, certificate or other document or information filed
with or submitted to, or required to be filed with or submitted to, any
Governmental Body in connection with the determination, assessment, collection
or payment of any Tax or in connection with the administration, implementation
or enforcement of or compliance with any Legal Requirement relating to any Tax.
"Taxes" means any tax (including any income tax, franchise
tax, capital gains tax, gross receipts tax, value-added tax, surtax, excise tax,
ad valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax,
business tax, withholding tax or payroll tax), levy, assessment, tariff, duty
(including any customs duty), deficiency or fee, and any related charge or
amount (including any fine, penalty or interest), imposed, assessed or collected
by or under the authority of any Governmental or Regulatory Authority.
"Termination Date" has the meaning ascribed to it in
Section 11.1(c).
12.2 Construction of Certain Terms and Phrases. Unless the context of this
Agreement otherwise requires, (i) words of any gender include each other gender;
(ii) words using the singular or plural number also include the plural or
singular number, respectively; (iii) the terms "hereof," "herein," "hereby" and
derivative or similar words refer to this entire Agreement; (iv) the terms
"Article" or "Section" refer to the specified Article or Section of this
Agreement; and (v) the phrases "ordinary course of business" and "ordinary
course of business consistent with past practice" refer to the business and
practice of ITRON in connection with the business. Whenever this Agreement
refers to a number of days, such number shall refer to calendar days unless
Business Days are specified. All accounting terms used herein and not expressly
defined herein shall have the meanings given to them under GAAP.
ARTICLE XIII
MISCELLANEOUS
13.1 Notices. All notices, requests and other communications hereunder must be
in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
If to Servatron, to:
Servatron, Inc.
East 15520 Fairview Avenue
Spokane, WA 99216
(502) 891-3110
Facsimile No.: (509) 891-3110
Attn: Larry Panattoni (509) 891-3100
with a copy to:
Graham & Dunn PC
1420 Fifth Avenue, 33rd Floor
Seattle, WA 98101
Facsimile No.: (206) 340-9599
Attn: Michael Tobiason, Esq.
If to ITRON, to:
ITRON, Inc.
2818 North Sullivan Road
Spokane, WA 99216
Facsimile No.: (509) 891-3334
Attn: Chief Executive Officer
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other party hereto.
13.2 Entire Agreement. This Agreement and the Operative Agreements supersede all
prior discussions and agreements between the parties with respect to the subject
matter hereof and thereof, including, without limitation, that certain letter of
intent dated March 15, 2000, and contain the sole and entire agreement between
the parties hereto with respect to the subject matter hereof and thereof.
13.3 Expenses. Except as otherwise expressly provided in this Agreement
(including, without limitation, as provided in Section 11.2), whether or not the
transactions contemplated hereby are consummated, each party will pay its own
costs and expenses incurred in connection with the negotiation, execution and
closing of this Agreement and the Operative Agreements and the transactions
contemplated hereby and thereby.
13.4 Public Announcements. At all times at or before the Closing, ITRON and
Servatron will not issue or make any reports, statements or releases to the
public or generally to the employees, customers, suppliers or other Persons to
whom ITRON sells goods or provides services in connection with the Assets or
with whom ITRON otherwise has significant business relationships in connection
with the Assets with respect to this Agreement or the transactions contemplated
hereby without the consent of the other, which consent shall not be unreasonably
withheld. If either party is unable to obtain the approval of its public report,
statement or release from the other party and such report, statement or release
is, in the opinion of legal counsel to such party, required by Law in order to
discharge such party's disclosure obligations, then such party may make or issue
the legally required report, statement or release and promptly furnish the other
party with a copy thereof. ITRON and Servatron will also obtain the other
party's prior approval of any press release to be issued immediately following
the Closing announcing the consummation of the transactions contemplated by this
Agreement.
13.5 Confidentiality. Each party hereto will hold, and will use its best efforts
to cause its Affiliates, and their respective Representatives to hold, in strict
confidence from any Person (other than any such Affiliate), unless (a) compelled
to disclose by judicial or administrative process (including, without
limitation, in connection with obtaining the necessary approvals of this
Agreement and the transactions contemplated hereby of Governmental or Regulatory
Authorities) or by other requirements of Law or (b) disclosed in an Action or
Proceeding brought by a party hereto in pursuit of its rights or in the exercise
of its remedies hereunder, all documents and information concerning the other
party or any of its Affiliates furnished to it by the other party or such other
party's Representatives in connection with this Agreement or the transactions
contemplated hereby, except to the extent that such documents or information can
be shown to have been (i) previously known by the party receiving such documents
or information, (ii) in the public domain (either prior to or after the
furnishing of such documents or information hereunder) through no fault of such
receiving party or (iii) later acquired by the receiving party from another
source if the receiving party is not aware that such source is under an
obligation to another party hereto to keep such documents and information
confidential; provided that following the Closing the foregoing restrictions
will not apply to Servatron's use of documents and information concerning the
Assets furnished by ITRON hereunder.
13.6 Waiver. Any term or condition of this Agreement may be waived at any time
by the party that is entitled to the benefit thereof, but no such waiver shall
be effective unless set forth in a written instrument duly executed by or on
behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by Law or otherwise afforded, will be cumulative and not
alternative.
13.7 Amendment. This Agreement may be amended, supplemented or modified only by
a written instrument duly executed by or on behalf of each party hereto.
13.8 No Third Party Beneficiary. The terms and provisions of this Agreement are
intended solely for the benefit of each party hereto and their respective
successors or permitted assigns, and it is not the intention of the parties to
confer third-party beneficiary rights upon any other Person other than any
Person entitled to indemnity under Article X.
13.9 No Assignment; Binding Effect. Neither this Agreement nor any right,
interest or obligation hereunder may be assigned by any party hereto without the
prior written consent of the other party hereto and any attempt to do so will be
void, except (a) for assignments and transfers by operation of Law and (b) that
Servatron may assign any or all of its rights, interests and obligations
hereunder (including, without limitation, its rights under Article X) to (i) a
wholly-owned subsidiary, provided that any such subsidiary agrees in writing to
be bound by all of the terms, conditions and provisions contained herein, but no
such assignment shall relieve Servatron of its obligations hereunder. Subject to
the preceding sentence, this Agreement is binding upon, inures to the benefit of
and is enforceable by the parties hereto and their respective successors and
assigns.
13.10 Headings. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
13.11 Arbitration. Any controversy or claim arising out of or relating to this
Agreement shall be submitted to and be finally resolved by arbitration, pursuant
to the provisions of the United States Arbitration Act (9 U.S.C. ss. 1 et seq.),
to be conducted by an arbitration service mutually agreed upon by the parties,
with such arbitration to be held in Spokane, Washington in accordance with the
American Arbitration Association's ("AAA") Commercial Arbitration Rules then in
effect. If the parties cannot agree upon the arbitration service to conduct the
arbitration in Spokane, then the arbitration shall be conducted by Judicial
Dispute Resolution, LLC, and shall be held in Seattle, Washington. If the amount
in controversy is less than $500,000, the arbitration shall be conducted by a
single arbitrator; if the amount in controversy is $500,000 or more, the
arbitration shall be conducted by a panel of three arbitrators. The
arbitrator(s) shall be selected by mutual agreement of the parties. If the
parties cannot agree on the selection of the arbitrator(s) then the
arbitrator(s) shall be chosen by Judicial Dispute Resolution, LLC. Each party
hereby irrevocably agrees that service of process, summons, notices or other
communications related to the arbitration procedure shall be deemed served and
accepted by the other party if given in accordance with Section 13.1 of this
Agreement. The arbitrator(s) shall render a judgment of default against any
party who fails to appear in a properly noticed arbitration proceeding. Any
award or decision rendered in such arbitration shall be final and binding on
both parties, and judgment may be entered thereon in any court of competent
jurisdiction if necessary; provided, however, that the arbitrators' decision is
subject to judicial review as provided by applicable law. Either party may apply
for and obtain from any court of competent jurisdiction relief in the nature of
temporary interlocutory relief, provided such party simultaneously submits the
matter in controversy to arbitration for final resolution of the merits of such
controversy or claim pursuant to this Section 13.11.
13.12 Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future Law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, (c) the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance here from and (d) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
13.13 Governing Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of Washington applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Washington without reference to its
choice of law rules. The parties hereby irrevocably consent to exclusive
personal jurisdiction and venue in the state and federal courts located in
Spokane County, Washington with respect to any actions, claims or proceedings
arising out of or in connection with this Agreement, and agree not to commence
or prosecute any such action, claim or proceeding other than in the
aforementioned courts.
13.14 Remedies. With respect to the obligations of Section 2.9 hereof, each of
the parties expressly acknowledges and agrees that the other party would be
damaged irreparably in the event that any of the provisions of this Agreement
are not performed in accordance with their specific terms or otherwise are
breached. Accordingly, each of the parties hereto agrees that the other party
shall be entitled to an injunction to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in any court of competent jurisdiction, in addition to any
other remedy to which they may be entitled at law or in equity.
13.15 Attorneys' Fees. The prevailing party in any arbitration, legal or
equitable proceedings brought hereunder will be awarded reasonable attorneys'
fees, expert witness costs and expenses, and all other costs and expenses
incurred directly or indirectly in connection with such proceeding.
13.16 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
PURCHASER: ITRON:
Servatron, Inc., a Washington ITRON, Inc., a Washington corporation
corporation
By: ________________________ By: ____________________
/s/Larry Panattoni /s/Robert Nielsen
President COO
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is entered into as of May __, 2000 by and between
SERVATRON, INC., a Washington corporation ("Borrower"), and ITRON, INC., a
Washington corporation ("Lender").
RECITALS
Borrower has requested the credit facilities described herein from
Lender, and Lender has agreed to provide said credit facilities to Borrower on
the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
of the parties contained herein, Lender and Borrower hereby agree as follows:
ARTICLE I. DEFINITIONS
1.1 DEFINED TERMS
All terms defined above shall have the meanings set forth above. Any
accounting term used in this Agreement that is not specifically defined herein
shall have the meaning customarily given to it under GAAP, and all other terms
contained in this Agreement that are not defined herein shall, unless the
context indicates otherwise, have the meanings provided in the Code to the
extent such terms are defined therein. The following terms shall have the
meanings set forth below (with all such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Agreement" means this Credit Agreement as amended, modified or
supplemented from time to time.
"Applicable Rate" means, at any date, the lesser of (a) a per annum
rate equal to the sum of the Prime Rate plus 100 basis points, plus; during the
continuation of an Event of Default, an additional 300 basis points, or (b) the
Highest Lawful Rate.
"Bankruptcy Code" means the Bankruptcy Reform Act, Title 11 of the
United States Code, as amended or recodified from time to time, including
(unless the context otherwise requires) any rules or regulations promulgated
thereunder.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized or required to be closed in Spokane,
Washington.
"Closing Date" means the date of this Agreement.
"Code" means the Uniform Commercial Code of the State of Washington, as
amended from time to time.
"Collateral" means (a) all of Borrower's right, title, and interest in
and to all accounts, goods, general intangibles, money, instruments, chattel
paper, deposit accounts, documents and investment property; (b) all products,
proceeds, rents and profits of the foregoing; and (c) all of the foregoing,
whether now owned or existing or hereafter acquired or arising or in which
Borrower now has or hereafter acquires any rights.
"Contaminant" means any pollutant, hazardous substance, toxic
substance, hazardous waste or other substance regulated or forming the basis of
liability under any Environmental Law.
"Default" means (i) an Event of Default, (ii) an event or condition
that with the giving of notice or the passage of time, or both, would constitute
an Event of Default, or (iii) the filing against Borrower of a petition
commencing an involuntary case under the Bankruptcy Code.
"Disclosure Schedule" means Schedule I attached hereto.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended or recodified from time to time, including (unless the context otherwise
requires) any rules or regulations promulgated thereunder.
"Environmental Law" means all applicable federal, state and local laws,
statutes, ordinances and regulations, and any applicable judicial or
administrative interpretation, order, consent decree or judgment, relating to
the regulation and protection of the environment. Environmental Laws include but
are not limited to the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. ss. 9601 et seq.); the Hazardous
Material Transportation Act, as amended (49 U.S.C. ss. 180 et seq.); the Federal
Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. ss. 136 et
seq.); the Resource Conservation and Recovery Act, as amended (42 U.S.C. ss.
6901 et seq.); the Toxic Substance Control Act, as amended (42 U.S.C. ss. 7401
et seq.); the Clean Air Act, as amended (42 U.S.C. ss. 740 et seq.); the Federal
Water Pollution Control Act, as amended (33 U.S.C. ss. 1251 et seq.); and the
Safe Drinking Water Act, as amended (42 U.S.C. ss. 300f et seq.), and their
state and local counterparts or equivalents and any applicable transfer of
ownership notification or approval statutes.
"Environmental Liabilities and Costs" means, as to any Person, all
liabilities, obligations, responsibilities, Remedial Actions, losses, damages,
punitive damages, consequential damages, treble damages, costs and expenses
(including, without limitation, all fees, disbursements and expenses of counsel,
experts and consultants and costs of investigation and feasibility studies),
fines, penalties, sanctions and interest incurred as a result of any claim or
demand by any other Person, whether based in contract, tort, implied or express
warranty, strict liability, criminal or civil statute, including, without
limitation, any thereof arising under any Environmental Law, Permit, order or
agreement with any Governmental Authority or other Person, and which relate to
any violation or alleged violation of an Environmental Law or a Permit, or a
Release or threatened Release.
"Event of Default" has the meaning set forth in Section 8.1 hereof.
"GAAP" means generally accepted accounting principles as in effect in
the United States from time to time, consistently applied.
"Governmental Authority" means any domestic or foreign national, state
or local government, any political subdivision thereof, any department, agency,
authority or bureau of any of the foregoing, or any other entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including the Federal Deposit Insurance Corporation,
the Federal Reserve Board, the Comptroller of the Currency, any central bank or
any comparable authority.
"Governmental Rule" means any applicable law, rule, regulation,
ordinance, order, code interpretation, judgment, decree, directive, guidelines,
policy or similar form of decision of any Governmental Authority.
"Highest Lawful Rate" means, at the particular time in question, the
maximum rate of interest which,under applicable law, Lender is then permitted
to charge Borrower on the applicable Loan, and if the maximum rate changes at
any time, the Highest Lawful Rate shall increase or decrease, as the case may
be, as of the effective time of each such change, without notice to Borrower.
"Indebtedness" of any Person means, without duplication, (a) all
liabilities of such Person as determined in accordance with GAAP, (b) all
obligations of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (c) all lease obligations of such Person, (d) all contingent
obligations of such Person, (e) all obligations of such Person to purchase,
redeem, retire, defease or otherwise acquire for value any Stock or Stock
Equivalents of such Person with a mandatory repurchase or redemption date of
less than ten years from the date of issuance thereof, (f) all obligations
secured by (or for which the holder of such obligations has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property owned by
such Person, even though such Person has not assumed or become liable for the
payment of such obligations, and (g) all liabilities of such Person in
connection with the failure to make when due any contribution or payment
pursuant to or under any Plan. For purposes of determining the amount of
Indebtedness in a circumstance when the creditor has recourse only to specified
assets, the amount shall be the lesser of (i) the amount of such obligation or
(ii) the fair market value of such assets.
"Indemnitees" has the meaning set forth in Section 9.3 hereof.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
security interest, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever, including, without limitation, any
conditional sale or other title retention agreement or the interest of a lessor
under any capital lease.
"Loan" means an advance made by Lender to Borrower pursuant to
Section 2.1.
"Loan Documents" means this Agreement, the Note and each other
agreement, note, notice, document, contract or instrument to which Borrower now
or hereafter is a party and that is required by Lender in connection with the
Obligations.
"Material Adverse Effect" means a material adverse effect on (a) the
condition (financial or otherwise), business, performance, operations or
properties of Borrower, (b) the ability of Borrower to perform its obligations
under the Loan Documents, or (c) the rights and remedies of Lender under the
Loan Documents.
"Maturity Date" means the earlier of January 18, 2004 or the due date
determined pursuant to Section 8.2.
"Note" means a promissory note executed by Borrower in favor of Lender
evidencing Loans, substantially in the form attached as Exhibit A hereto.
"Obligations" means all of Borrower's obligations under the Loan
Documents, whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Title IV of ERISA.
"Permit" means any permit, approval, authorization, license, variance
or permission required from a Governmental Authority under an applicable
Governmental Rule.
"Permitted Liens" means
(a) Liens arising by operation of law for taxes, assessments or
governmental charges not yet due;
(b) statutory Liens of mechanics, materialmen, shippers, warehousemen,
carriers, and other similar persons for services or materials arising in the
ordinary course of business for which payment is not yet due;
(c) nonconsensual Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security;
(d) Liens for taxes or statutory Liens of mechanics, materialmen,
shippers, warehousemen, carriers and other similar persons for services or
materials that are due but are being contested in good faith and by appropriate
and lawful proceedings promptly initiated and diligently conducted and for which
reserves satisfactory to Lender have been established;
(e) Liens listed on the Disclosure Schedule;
(f) Liens granted in the Loan Documents;
(g) purchase money Liens upon or in any property of Borrower and used
by Borrower in the ordinary course of business and Liens to secure capital
leases and any related payment and performance obligations if, in each case, the
incurrence of such Indebtedness is permitted by Section 7.2; provided, however,
that: (i) any such Lien is created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, the cost
(including, without limitation, the cost of construction and the reasonable fees
and expenses relating to such Indebtedness) of the property subject thereto,
(ii) the principal amount of the Indebtedness secured by such Lien does not
exceed such cost, and (iii) such Lien does not extend to or cover any other
property other than such item of property, any improvements on such item, and
the proceeds from the disposition of such items;
(h) zoning restrictions, easements, rights of way, survey exceptions,
encroachments, covenants, licenses, reservations, leasehold interests,
restrictions on the use of real property or minor irregularities incident
thereto which do not in the aggregate materially detract from the value or use
of the property or assets of Borrower or impair, in any material manner, the use
of such property for the purposes for which such property is held by Borrower;
(i) the interests of lessors or lessees of property leased
pursuant to leases permitted hereunder;
(j) Liens of a depository institution arising solely by virtue of any
statutory or common law provision relating to banker's liens, rights of setoff,
or similar rights and remedies as to deposit accounts or other funds maintained
with such institution, provided that (i) such deposit account is not a dedicated
cash collateral account and is not subject to restrictions against access by
Borrower in excess of those set forth by regulations promulgated by any
Government Authority, and (ii) such deposit account is not intended by Borrower
to provide collateral to the depository institution;
(k) judgment Liens to the extent the existence of such Liens is not an
Event of Default under Section 8.1(g); (l) Liens granted to secure obligations
to the Senior Lender provided that the principal amount secured thereby does not
exceed $_________; (m) any Lien securing Indebtedness ("New Indebtedness") that
constitutes a refinancing of any Indebtedness (in whole or in part) secured, at
the time of refinancing, by a Permitted Lien ("Old Indebtedness"), provided that
(i) any such Lien is limited to all or part of the property that secured the Old
Indebtedness and (ii) the New Indebtedness is not greater than the Old
Indebtedness; and (n) Liens (other than Liens on the Collateral) on the property
of Borrower or any Subsidiary securing (i) the non-delinquent performance of
bids, trade contracts (other than for borrowed money), operating leases, and
statutory obligations, (ii) contingent obligations on surety and appeal bonds,
and (iii) other non-delinquent obligations of a like nature; in each case
incurred in the ordinary course of business, provided all such Liens in the
aggregate would not (even if enforced) cause a Material Adverse Effect.
"Person" means an individual, partnership, corporation (including,
without limitation, a business trust), joint stock company, limited liability
company, trust, unincorporated association, joint venture or other entity, or a
Governmental Authority.
"Plan" means an employee benefit plan, as defined in Section 3(3) of
ERISA, which Borrower maintains, contributes to or has an obligation to
contribute to on behalf of participants who are or were employed by any of them.
"Prime Rate" means, for any day, an interest rate per annum equal to
the rate of interest most recently announced by Bank of America, N.A. Bank at
its principal office as its prime rate, with any change in the prime rate to be
effective as of the day such change is publicly announced by Bank of America,
N.A.
"Release" means, as to any Person, any unpermitted spill, emission,
leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching
or migration of a Contaminant into the environment.
"Remedial Action" means all actions required to clean up, remove,
prevent or minimize a Release or threat of Release or to perform pre-remedial
studies and investigations and post-remedial monitoring and care.
"Senior Lender" means Sterling Savings Bank and its successors and
assigns.
"Stock" means shares of capital stock, beneficial or partnership
interests, participations or other equivalents (regardless of how designated) of
or in a corporation or other entity, whether voting or nonvoting, and includes,
without limitation, common stock and preferred stock.
"Stock Equivalents" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not presently convertible, exchangeable or
exercisable.
1.2 HEADINGS
Headings in this Agreement and each of the other Loan Documents are for
convenience of reference only and are not part of the substance hereof or
thereof.
1.3 ADDITIONAL DEFINITION PROVISIONS
Whenever the terms "herein," "hereof," "hereto," "hereunder,"
"therein," "thereof," "thereto," "thereunder," and similar terms contained in
this Agreement or any Loan Document refer to this Agreement or other Loan
Document, such terms refer to the whole of this Agreement or other Loan Document
and not to any particular article, section, paragraph or provision.
ARTICLE II. THE CREDIT
2.1 REVOLVING LOANS
(a) On the terms and subject to the conditions contained in this
Agreement, Lender agrees to make loans (each a "Loan") to Borrower from time to
time until the Maturity Date in an aggregate amount not to exceed $500,000 at
any time outstanding. Borrower may from time to time borrow, partially or wholly
repay its outstanding borrowings (subject to the limitations of Section 2.1(c)
below), and reborrow, subject to all the limitations, terms and conditions
contained herein. Borrower shall repay the outstanding principal balance of the
Loans, together with all accrued and unpaid interest and related fees on the
Maturity Date. The Loans shall be evidenced by a Note payable to the order of
Lender.
(b) Borrower shall request each advance of a Loan by giving Lender
irrevocable written notice at least one Business Day in advance of the proposed
date of borrowing, which specifies (i) the principal amount of the requested
advance (which amount must be a minimum of $50,000 with increments above $50,000
being in integral multiples of $50,000) and (ii) the proposed date of borrowing,
which shall be a Business Day. Borrower may not make more than one borrowing
request in any week.
(c) From time to time on any Business Day, Borrower may make a
voluntary prepayment, in whole or in part, of the outstanding principal amount
of the Loans; provided, however, that (i) each voluntary partial prepayment must
be in a minimum amount of $_______ with increments above $_______ being in
integral multiples of
$-------.
2.2 INTEREST
The outstanding principal balance of the Loans shall bear interest at
the Applicable Rate. All fees, expenses and other amounts not paid when due
shall bear interest (from the date due until paid) at the Applicable Rate.
Interest shall be computed on the basis of a 360-day year, actual days elapsed,
and shall be payable monthly, in arrears, on the first day of each month and on
the Maturity Date.
2.3 OTHER PAYMENT TERMS
(a) Manner. Borrower shall make all payments due to Lender under the
Loan Documents by payment to Lender in lawful money of the United States and in
same day or immediately available funds not later than 11:00 a.m. (Spokane time)
on the date due.
(b) Date. Whenever any payment due hereunder shall fall due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall be included in the computation of
interest or fees, as the case may be.
(c) Application of Payments. All payments under the Loan Documents
(including prepayments) shall be applied first to unpaid fees, costs and
expenses then due and payable under the Loan Documents, second to accrued
interest then due and payable under the Loan Documents and finally to reduce the
principal amount of the outstanding Loans.
(d) Payment Provisions. Borrower shall make all payments due hereunder
free and clear of, and without deduction or withholding for or on account of,
any setoff, counterclaim, defense, duties, taxes, levies, imposts, fees,
deductions, withholding, restrictions or conditions of any kind. If after
receipt of any payment of, or proceeds of Collateral applied to the payment of,
any of the Obligations Lender is required to surrender or return such payment or
proceeds to any person or entity for any reason, then the Obligations intended
to be satisfied by such payment or proceeds shall be reinstated and continue and
this Agreement shall continue in full force and effect as if such payment or
proceeds had not been received by Lender. Borrower hereby indemnifies and holds
Lender harmless for the amount of any payments or proceeds surrendered or
returned. This Section 2.3(d) shall remain effective notwithstanding any
contrary action which may be taken by Lender in reliance upon such payment or
proceeds and shall survive the payment in full and performance of all of
Borrower's other Obligations.
ARTICLE III. SECURITY
3.1 GRANT OF SECURITY INTEREST
Borrower hereby grants to Lender a security interest in all of the
Collateral as security for the full and prompt payment in cash and performance
of the Obligations.
3.2 PERFECTION; DUTY OF CARE
(a) Until all the Obligations have been fully satisfied and paid in
cash, Borrower shall perform all steps reasonably requested by Lender to
perfect, maintain and protect Lender's security interest in the Collateral,
including, without limitation, (i) executing and filing financing and
continuation statements in form and substance satisfactory to Lender, and (ii)
delivering all Collateral in which Lender's security interest may be perfected
by possession together with such indorsements as Lender may request. Borrower
hereby authorizes Lender to execute and file one or more UCC financing
statements signed only by Lender evidencing the security interest granted
hereby.
(b) Borrower shall pay all taxes, assessments and governmental charges
levied or assessed or imposed upon or with respect to the Collateral; provided,
however, Borrower shall not be required to pay any tax if the validity and/or
amount thereof is being contested in good faith and by appropriate and lawful
proceedings promptly initiated and diligently conducted of which Borrower has
given prior notice to Lender and for which appropriate reserves have been
established and so long as levy and execution have been and continue to be
stayed. If Borrower fails to pay or so contest and reserve for such taxes,
assessments and governmental charges, Lender may (but shall not be required to)
pay the same and add the amount of such payment to the principal of the Loans.
(c) In order to protect or perfect the security interest granted under
the Loan Documents, Lender may discharge any Lien that is not a Permitted Lien
or bond the same, pay for any insurance that Borrower has failed to maintain as
required by this Agreement and, upon an Event of Default, maintain guards, pay
any service bureau, or obtain any record and add the same to the principal of
the Loans.
(d) Lender shall have no duty of care with respect to the Collateral,
except to exercise reasonable care with respect to the Collateral in its
custody, but shall be deemed to have exercised reasonable care if such property
is accorded treatment either (i) substantially equal to that which it accords
its own property or (ii) as Borrower requests in writing, provided that no
failure to comply with any such request nor any omission to do any such act
requested by Borrower shall be deemed a failure to exercise reasonable care.
Lender's failure to take steps to preserve rights against any parties or
property shall not be deemed to be a failure to exercise reasonable care with
respect to the Collateral in its custody.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
Borrower makes the following representations and warranties to Lender,
subject to the exceptions set forth on the Disclosure Schedule, which
representations and warranties shall survive the execution of this Agreement and
shall continue in full force and effect until the performance and payment in
full, in cash, of all Obligations:
4.1 LEGAL STATUS; SUBSIDIARIES
Borrower is a corporation, duly organized and validly existing under
the laws of Washington, and is qualified or licensed to do business (and is in
good standing as a foreign corporation, if applicable) in all jurisdictions in
which such qualification or licensing is required or in which the failure to so
qualify or to be so licensed could have a Material Adverse Effect. Borrower is
not known by, and has not, during the preceding five years, been known as or
used, any other corporate or fictitious name and has not acquired any of its
assets in a bulk transfer (other than in the asset purchase involving Lender).
Borrower has no subsidiaries and does not own or hold, directly or indirectly,
any capital stock or equity security of, or any equity interest in, any Person.
4.2 AUTHORIZATION AND VALIDITY
The Loan Documents have been duly authorized and the performance by
Borrower of its obligations under the Loan Documents constitute a proper
corporate purpose under all applicable law. The Loan Documents, upon their
execution and delivery in accordance with the provisions hereof, will constitute
legal, valid and binding agreements and obligations of Borrower, enforceable
against it in accordance with their respective terms.
4.3 NO VIOLATION
The execution, delivery and performance by Borrower of each of the Loan
Documents do not violate or contravene any provision of its articles or
certificate of incorporation or by-laws and do not violate any Governmental Rule
or result in a breach of or constitute a default under any contract, obligation,
indenture or other instrument to which it is a party or by which it may be
bound, which violation, breach or default would have a Material Adverse Effect.
4.4 LITIGATION
There are no pending or, to Borrower's knowledge, threatened, actions,
claims, investigations, suits or proceedings, by or before any governmental
authority, arbitrator, court or administrative agency that could have a Material
Adverse Effect.
4.5 CORRECTNESS OF FINANCIAL STATEMENT
The financial statements of Borrower dated as of _________ heretofore
delivered by Borrower to Lender, (a) present fairly its financial condition and
results of operations; (b) disclose all liabilities of Borrower that are
required to be reflected or reserved against under GAAP, whether liquidated or
unliquidated, fixed or contingent; and (c) have been prepared in accordance with
GAAP. Except as disclosed to Lender pursuant to Section 6.3, since the date of
such financial statements, there has been no change or changes which have
resulted in a Material Adverse Effect.
4.6 TAXES
Borrower has filed, or caused to be filed, all federal, state, local
and foreign tax returns required to be filed by it, and has paid, or caused to
be paid, all taxes as are shown on such returns, or on any assessment received
by it, to the extent that such taxes have become due, except as otherwise
contested in good faith and except for those taxes the nonpayment of which would
not , in the aggregate, have a Material Adverse Effect. Borrower has set aside
proper amounts on its books, determined in accordance with GAAP, for the payment
of all taxes for the years that have not been audited by the respective tax
authorities and for taxes being contested by it.
4.7 ERISA
Borrower is in compliance in all material respects with the applicable
provisions of ERISA. Borrower has not violated any provision of any Plan
maintained or contributed to by it in a manner that could reasonably be expected
to result in a Material Adverse Effect. No "reportable event" (as defined in
Title IV of ERISA) has occurred and is continuing with respect to any Plan
initiated by it.
4.8 OTHER OBLIGATIONS
Borrower is not in default with respect to any Indebtedness or any of
its material contractual obligations.
4.9 ENVIRONMENTAL MATTERS
Borrower is in compliance in all material respects with all
Environmental Laws applicable to it, other than such noncompliance as in the
aggregate will not have a Material Adverse Effect. Borrower has not received
notice that it is the subject of any federal or state investigation evaluating
whether any Remedial Action is needed. There have been no Releases by Borrower
that could reasonably be expected to result in a Material Adverse Effect.
4.10 LIENS
Borrower has good, indefeasible, and merchantable title to and
ownership of the Collateral, free and clear of all Liens, except Permitted
Liens. There are no Liens of any nature whatsoever on any of Borrower's
properties other than Permitted Liens.
4.11 NO BURDENSOME RESTRICTIONS; NO DEFAULTS
Borrower is not a party to any contractual obligation the compliance
with which would have a Material Adverse Effect. No facts or circumstances exist
which would constitute a breach of any obligation, representation or warranty of
Borrower hereunder if this Agreement were in effect immediately prior to
Borrower's execution hereof.
4.12 INSURANCE
All current policies of insurance of any kind or nature owned by or
issued to Borrower, including, without limitation, policies of fire, theft,
product liability, public liability, property damage, other casualty, employee
fidelity, workers' compensation and employee health and welfare insurance, are
in full force and effect and are of a nature and provide such coverage as is
sufficient and as is customarily carried by companies of its size and character.
Borrower has no reason to believe that it will be unable to comply with Section
6.5.
4.13 LABOR MATTERS
Other than any of the following which in the aggregate have no
reasonable likelihood of having a Material Adverse Effect: (i) there are no
strikes, work stoppages, slowdowns or lockouts pending or to Borrower's
knowledge threatened against or involving it; (ii) there are no arbitrations or
grievances pending or to its knowledge threatened against or involving it; (iii)
there is no organizing activity involving it pending or to its knowledge
threatened by any labor union or group of employees; (iv) there are no
representation proceedings pending against it or to its knowledge threatened
with the National Labor Relations Board; (v) no labor organization or group of
its employees has made a pending demand on it for recognition; (vi) there are no
unfair labor practice charges, grievances or complaints pending or in process or
to its knowledge threatened by or on behalf of any employee or group of its
employees; (vii) there are no complaints or charges against it pending or to its
knowledge threatened to be filed with any federal, state or local court,
governmental agency or arbitrator based on, arising out of, in connection with,
or otherwise relating to its employment of any individual; and (viii) it is in
material compliance with all Governmental Rules, and all orders of any
Governmental Authority or arbitrator, relating to the employment of labor
including all such laws relating to wages, hours, collective bargaining,
discrimination, civil rights, and the payment of withholding and/or social
security and similar taxes. As of the date hereof Borrower is not a party to,
and has no obligations under, any collective bargaining agreement.
4.14 FORCE MAJEURE
Neither Borrower's business nor its properties are currently suffering
from the effects of any fire, explosion, accident, strike, lockout or other
labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the
public enemy or other casualty (whether or not covered by insurance), other than
those the consequences of which in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
4.15 INTELLECTUAL PROPERTY
Borrower owns or licenses or otherwise has the right to use all
material licenses, Permits, patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, copyright applications,
franchises, authorizations and other intellectual property rights that are
necessary for the operation of its businesses, without infringement upon or
conflict with the rights of any other Person with respect thereto, including,
without limitation, all trade names. No slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now
contemplated to be employed, by Borrower infringes upon or conflicts with any
rights owned by any other Person, which infringement or conflict is reasonably
likely to have a Material Adverse Effect, and no claim or litigation regarding
any of the foregoing is pending or, to its knowledge, threatened, the existence
of which is reasonably likely to have a Material Adverse Effect. No patent,
invention, device, application, principle or any statute, law, rule, regulation,
standard or code is pending or, to its knowledge, proposed, other than those the
consequences of which in the aggregate have no reasonable likelihood of having a
Material Adverse Effect.
4.16 SOLVENCY
Borrower has received consideration that is the reasonably equivalent
value of the obligations and liabilities that it has incurred to Lender.
Borrower is not insolvent as defined in any applicable state or federal statute,
nor will it be rendered insolvent by the execution and delivery of this
Agreement or the other Loan Documents. Borrower does not intend to, nor does it
believe that it will, incur debts beyond its ability to pay them as they mature.
Borrower has capital sufficient to carry on its business and transactions and
all business and transactions in which it is about to engage.
4.17 TRUTH, ACCURACY OF INFORMATION
All financial and other information furnished to Lender in connection
with this Agreement is accurate in all material respects and does not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the information furnished, in light of the
circumstances under which furnished, not misleading. The representations and
warranties in Sections 4.10 and 4.15 are based solely upon the representations
and warranties made by Lender to Borrower in connection with the sale of the
Collateral by Lender to Borrower.
4.18 CHIEF EXECUTIVE OFFICE AND OTHER LOCATIONS
Borrower's chief executive office and principal place of business is
East 15520 Fairview Avenue, Spokane, WA 99216. Borrower's books and records are
located at its chief executive office, and the only other offices and/or
locations where it keeps the Collateral (except for Inventory which is in
transit) or conducts any of its business are set forth in Section 4.18 of the
Disclosure Schedule.
4.19 COMPLIANCE WITH LAW
Borrower is in compliance with all Governmental Rules and law, except
where the failure to do so would not have a Material Adverse Effect.
ARTICLE V. CONDITIONS
5.1 CONDITIONS OF INITIAL EXTENSION OF CREDIT
The obligation of Lender to extend any credit contemplated by this
Agreement is subject to the fulfillment to Lender's satisfaction of all of the
following conditions:
(a) Documentation. Lender shall have received, in form and substance
satisfactory to it, each of the following duly executed:
(i) this Agreement, and the Note;
(ii) a corporate borrowing resolution from Borrower;
(iii) a good standing certificate and certified copy of
Borrower's articles of incorporation;
(iv) a copy of Borrower's by-laws certified by its
secretary as correct and complete;
(v) a certificate of incumbency from Borrower;
(vi) an opinion of Graham & Dunn, P.C., counsel to Borrower,
as to such matters as Lender shall reasonably require; and
(vii) such other documents as Lender may require.
(b) Financial Condition. No event or circumstance exists that
can reasonably be expected to have a Material Adverse Effect.
(c) Insurance. Borrower shall have delivered to Lender evidence of the
insurance coverage, including loss payable endorsements, required pursuant to
Section 6.5.
5.2 CONDITIONS OF EACH EXTENSION OF CREDIT
The obligation of Lender to make any Loan (including any Loan being
made by Lender on the Closing Date) shall be subject to the further conditions
precedent that:
(a) the following statements shall be true on the date of such Loan,
both before and after giving effect thereto and to the application of the
proceeds therefrom, and the acceptance by Borrower of the proceeds of such Loan
shall constitute a representation and warranty by Borrower that on the date of
such Loan or such issuance such statements are true:
(i) the representations and warranties of Borrower contained
in the Loan Documents are correct in all material respects on and as of
such date as though made on and as of such date or, as to those
representations and warranties limited by their terms to a specified
date, were correct in all material respects on and as of such date; and
(ii) no Default is continuing or would result from the
Loan being made;
(b) Lender shall have received such additional documents,
information and materials as Lender may reasonably request; and
(c) no event or circumstance exists that can reasonably be expected to
have a Material Adverse Effect.
ARTICLE VI. AFFIRMATIVE COVENANTS
Borrower covenants that so long as Lender remains committed to extend
credit to Borrower pursuant to the terms hereof and until performance and
payment in full, in cash, of all Obligations, Borrower shall:
6.1 PUNCTUAL PAYMENTS
Punctually pay all principal, interest, fees and other liabilities due
under any of the Loan Documents at the times and place and in the manner
specified therein.
6.2 ACCOUNTING RECORDS
Keep accurate books and records of its financial affairs sufficient to
permit the preparation of financial statements therefrom in accordance with
GAAP.
6.3 FINANCIAL STATEMENTS AND REPORTS
Provide to Lender all of the following, in form and detail reasonably
satisfactory to Lender and with sufficient copies for distribution to Lender:
(i) as soon as available but not later than 90 days after and
as of the end of each fiscal year, reviewed financial statements of
Borrower, prepared in accordance with GAAP and prepared by an
independent certified public accountant acceptable to Lender, together
with such accountant's report with respect thereto;
(ii) as soon as available but not later than 30 days after and
as of the end of each month, financial statements of Borrower prepared
in accordance with GAAP (subject to normal year-end adjustments and, if
Borrower so elects, without footnotes) together with a comparison of
Borrower's financial condition for such month and year-to-date with the
corresponding month and year-to-date in the immediately preceding
fiscal year;
(iii) contemporaneously with the delivery of each financial
statement required hereby, a certificate of Borrower's chief executive
officer substantially in the form of Exhibit B attached hereto (A)
certifying that such financial statements fairly present in all
material respects Borrower's balance sheet as of the end of such
month/year and income and cash flow for such month/year and
year-to-date (subject to normal year-end adjustments), and (B) stating
that no Default existed at any time during the period covered by such
statement, except for those events or conditions, if any, described in
such certificate in reasonable detail together with a statement of any
action taken or proposed to be taken with respect thereto;
(iv) not later than March 30 of each year, or sooner if
available, Borrower shall furnish to Lender detailed projections for
Borrower's current fiscal year setting forth projected income, cash
flow and borrowing availability under this Agreement for each quarter
and the projected balance sheet as of the end of each quarter, together
with a certificate of Borrower's chief executive officer setting forth
the assumptions on which such projections are based and certifying
that, in the judgment of such officer, such assumptions are reasonable
based on careful consideration and on the information known to Borrower
at the time such projections were prepared;
(v) not later than 20 days after and as of the end of each
month: (i) a report of the aging (based on due date) of Borrower's
accounts payable as of the end of the preceding month in the following
categories: current; 1-30 days past due; 31-60 days past due, 61-90
days past due and over 90 days past due; and (ii) a report of the aging
(based on due date) of Borrower's accounts as of the end of the
preceding month in the following categories: current; 1-30 days past
due; 31-60 days past due, 61-90 days past due and over 90 days past
due; and
(vi) from time to time such other information as Lender may
reasonably request.
6.4 COMPLIANCE
Preserve and maintain all licenses, Permits, governmental approvals,
rights, privileges, franchises, intellectual property and general intangibles
necessary for the conduct of its business and comply in all material respects,
with all Governmental Rules, contractual obligations, commitments, instruments,
licenses, Permits and franchises, other than such failure to preserve or
maintain or noncompliance the consequences of which in the aggregate are not
reasonably likely to have a Material Adverse Effect.
6.5 INSURANCE
(a) Maintain with responsible insurance companies reasonably acceptable
to Lender insurance with respect to its properties and business (including
business interruption and extra expense endorsements) against such casualties
and contingencies and of such types, with such deductibles and in such amounts
as is customary in the case of similar businesses. Such insurance shall contain
a lender's loss payable endorsement acceptable to Lender and shall name Lender
as an additional named insured. The policies or a certificate thereof signed by
the insurer shall be delivered to Lender within five Business Days after the
issuance or renewal of the policies to Borrower. Each such policy shall provide
that such policy may not be amended (except to increase coverage) or canceled
without thirty days prior written notice to Lender. At least fifteen days before
the expiration of a policy, Borrower shall deliver to Lender a binder (or other
evidence reasonably acceptable to Lender) indicating that such policy has been
renewed or that a substitute for such policy will be issued effective upon the
expiration of such policy. If Borrower fails to do so, Lender may (but shall not
be required to) procure such insurance and add the cost thereof to the Loans.
(b) Maintain in full force and effect such liability and other
insurance with respect to its activities as may be reasonably required by
Lender. Such liability insurance shall name Lender as an additional insured with
respect to the activities of Borrower and shall be provided by insurer(s)
acceptable to Lender.
6.6 FACILITIES
Keep all properties useful or necessary to its business in good repair
and condition, and from time to time make necessary repairs, renewals and
replacements thereto so that such property shall be fully and efficiently
preserved and maintained.
6.7 TAXES AND OTHER LIABILITIES
Pay and discharge when due any and all indebtedness, obligations,
assessments and taxes, both real or personal, including without limitation
Federal and state income taxes and state and local property taxes and
assessments, except such as Borrower may in good faith contest or as to which a
bona fide dispute may arise, and for which Borrower has made provision for
adequate reserves in accordance with GAAP.
6.8 LITIGATION
Promptly give notice in writing to Lender of any litigation pending or
threatened against it with a claim in excess of $50,000.
6.9 NOTICE TO LENDER
(a) Promptly (but in no event more than two Business Days after the
occurrence of each such event or matter) give written notice to Lender in
reasonable detail of: (i) the occurrence of any Default; (ii) any termination or
cancellation of any insurance policy which Borrower is required to maintain,
unless such policy is replaced without any break in coverage with an equivalent
or better policy; (iii) any uninsured or partially uninsured loss or losses
through liability or property damage, or through fire, theft or any other cause
affecting the property of Borrower in excess of an aggregate of $50,000 during
any twelve month period; (iv) any change in the organizational structure of
Borrower; or (v) the occurrence of any event that could reasonably be expected
to have a Material Adverse Effect.
(b) As soon as possible and in any event within ten days after Borrower
knows or has reason to know that any "reportable event" (as defined in Title IV
of ERISA) that triggers an obligation to file a notice with the PBGC with
respect to any Plan has occurred, deliver to Lender a statement of the President
or chief financial officer of Borrower setting forth details as to such
reportable event and the action which Borrower proposes to take with respect
thereto, together with a copy of the notice of such reportable event to the
PBGC.
(c) Promptly, upon receipt (but in no event more than two Business Days
after receipt) of a notice by Borrower, any affiliate of Borrower or any
administrator of any Plan that the PBGC has instituted proceedings to terminate
a Plan or to appoint a trustee to administer a Plan, provide to Lender a copy of
such notice.
6.10 CONDUCT OF BUSINESS
Except as otherwise permitted by this Agreement, (a) conduct its
business in the ordinary course and (b) use its reasonable efforts in the
ordinary course and consistent with past practice to (i) preserve its business
and the goodwill and business of the customers, advertisers, suppliers and
others with whom it has business relations, (ii) keep available the services and
goodwill of its present employees, and (iii) preserve all rights, Permits,
licenses, approvals, privileges, registered patents, trademarks, trade names,
copyrights and service marks and other intellectual property with respect to its
business.
6.11 PRESERVATION OF CORPORATE EXISTENCE, ETC.
Preserve and maintain its corporate existence, rights (charter and
statutory) and material franchises, licenses, permits, intellectual property and
general intangibles, unless the failure to so preserve and maintain is not
reasonably likely to have a Material Adverse Effect.
6.12 ACCESS
At any reasonable time and from time to time upon at least two Business
Days prior notice from Lender (unless a Default shall have occurred and be
continuing, in which case no prior notice is necessary), permit Lender and/or
any agents or representatives thereof, to (i) examine and make copies of and
abstracts from Borrower's records and books of account, (ii) visit Borrower's
properties, (iii) discuss Borrower's affairs, finances and accounts with any of
its officers or directors who may then be reasonably available, (iv) communicate
directly with Borrower's independent certified public accountants, (v) arrange
for verification of Borrower's accounts under reasonable procedures directly
with the obligors thereon or by other methods, and (vi) examine and inspect its
assets. Borrower shall authorize its independent certified public accountants to
disclose to Lender any and all financial statements and other information of any
kind, including, without limitation, copies of any management letter, work
papers or the substance of any oral information that such accountants may have
with respect to Borrower's business, financial condition, results of operations
or other affairs. Borrower shall execute and deliver at the request of Lender
such instruments as may be necessary for Lender to obtain such information
concerning the business of Borrower as Lender may require from accountants,
service bureaus or others having custody of or maintaining records or assets of
Borrower, provided that the foregoing shall not (and is not intended to) require
Borrower to take any action that would constitute a waiver of Borrower's
attorney/client privilege with any of Borrower's attorneys..
6.13 PERFORMANCE AND COMPLIANCE WITH OTHER COVENANTS
Perform and observe all the terms, covenants and conditions required to
be performed and observed by it under its contractual obligations (including,
without limitation, to pay all rent and other charges payable under any lease
and all debts and other obligations as the same become due), and do all things
necessary to preserve and to keep unimpaired its rights under such contractual
obligations, other than such failures the consequences of which in the aggregate
are not reasonably likely to have a Material Adverse Effect.
6.14 FISCAL YEAR; ACCOUNTING PRACTICES
Notify Lender at least 45 days in advance of any action Borrower
intends to take to change (i) its fiscal year or (ii) its method of accounting,
or any accounting practice used by it, or the application of GAAP in a manner
inconsistent with the financial statements previously delivered by it to Lender.
6.15 ENVIRONMENTAL
(a) Promptly give notice to Lender upon obtaining knowledge of (i) any
claim, injury, proceeding, investigation or other action, including a request
for information or a notice of potential environmental liability, by or from any
Governmental Authority or any third-party claimant that could result in Borrower
incurring Environmental Liabilities and Costs or (ii) the discovery of any
Release at, on, under or from any real property, facility or equipment owned or
leased by Borrower in excess of reportable or allowable standards or levels
under any applicable Environmental Law, or in any manner or amount that could
reasonably be expected to result in Borrower incurring Environmental Liabilities
and Costs.
(b) Upon discovery of the presence on any property owned or leased by
Borrower of any Contaminant that reasonably could be expected to result in
Environmental Liabilities and Costs, take all Remedial Action required by
applicable Environmental Law.
6.16 LIENS
Keep the Collateral free and clear of all Liens, except Permitted
Liens.
6.17 FURTHER ASSURANCES
At Lender's request at any time and from time to time, duly execute and
deliver, or cause to be duly executed and delivered, such further agreements,
documents and instruments, and do or cause to be done such further acts as may
be necessary or proper to evidence, perfect, maintain and enforce the security
interests and the priority thereof in the Collateral and to otherwise effectuate
the provisions or purposes of this Agreement or any of the other Loan Documents,
at Borrower's expense.
ARTICLE VII. NEGATIVE COVENANTS
Borrower covenants that so long as Lender remains committed to extend
credit to Borrower pursuant to the terms hereof and until performance and
payment in full, in cash, of all Obligations, Borrower will not:
7.1 LIENS
Create or suffer to exist any Lien upon or with respect to any of its
properties, whether now owned or hereafter acquired, or assign any right to
receive income, except Permitted Liens.
7.2 INDEBTEDNESS
Create or suffer to exist any Indebtedness except:
(a) the Obligations;
(b) current liabilities in respect of taxes, assessments and
governmental charges or levies incurred, or liabilities for labor, materials,
inventory, services, supplies and rentals incurred, or for goods or services
purchased, in the ordinary course of business consistent with industry practice
in respect of arm's length transactions and the past practice of Borrower;
(c) Indebtedness of Borrower referenced on Section 7.2 of the
Disclosure Schedule and all renewals, extensions, refinancing or refunding of
such Indebtedness in a principal amount which does not exceed the principal
amount outstanding immediately before such refinancing, together with all
prepayment fees, penalties and expenses in respect of the Indebtedness being
renewed, extended, refinanced or refunded, provided each such renewal,
extension, refinancing or refunding is on terms and conditions no less favorable
to the creditors than the Indebtedness being renewed, extended, refinanced or
refunded;
(d) purchase money Indebtedness (including capital leases) to finance
the purchase of fixed assets (including equipment); provided that (i) the total
of all such Indebtedness shall not exceed an aggregate principal amount of
$___________ at any one time outstanding (in addition to any such Indebtedness
referred to in Section 7.2(c)); (ii) such Indebtedness when incurred shall not
exceed the purchase price of the assets financed; and (iii) no such Indebtedness
shall be refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;
(e) Indebtedness subordinated in writing to the Obligations on terms
acceptable to Lender in favor of the prior payment in full in cash of the
Obligations;
(f) Indebtedness to the Senior Lender provided that the principal
amount thereof does not exceed $1,500,000 outstanding at any time; (g)
Indebtedness secured by Permitted Liens; and (h) In addition to all other
Indebtedness permitted by this Agreement, aggregate Indebtedness not to exceed
at any one time outstanding $______.
7.3 RESTRICTED PAYMENTS, REDEMPTIONS
(a) Declare or make any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities on account or in
respect of any of its Stock or Stock Equivalents except dividends paid by
Borrower solely in Stock or Stock Equivalents of Borrower;
(b) purchase, redeem or otherwise acquire for value any of
Borrower's Stock or Stock Equivalents; or
(c) prepay or redeem any Indebtedness that is subordinated to the
Obligations or make any payment in respect of such Indebtedness at any time that
a Default is continuing or would be caused by such payment.
7.4 MERGERS, STOCK ISSUANCES, SALE OF ASSETS, ETC.
(a) Merge or consolidate with any Person or acquire all or
substantially all of the Stock or Stock Equivalents of any Person, except for
(i) any such merger, consolidation, or acquisition in which the Stock or Stock
Equivalents are acquired in exchange for, or out of the cash proceeds of the
substantially concurrent sale of, new common or preferred equity of Borrower;
(b) Acquire all or substantially all of (i) the assets of any Person or
(ii) the assets constituting the business of a division, branch or other unit
operation of any Person, except for any such acquisition in which the assets are
acquired in exchange for, or out of the cash proceeds of the substantially
concurrent sale of, new common or preferred equity of Borrower; or
(c) Sell, convey, transfer, lease or otherwise dispose of any of its
assets or any interest therein to any Person, or permit or suffer any other
Person to acquire any interest in any of the assets of Borrower, except (i)
Permitted Liens, (ii) the sale or disposition of inventory in the ordinary
course of business and/or assets which have become obsolete or are replaced in
the ordinary course of business, (iii) equipment to the extent that such
equipment is exchanged for credit against the purchase price of similar
replacement equipment, or the proceeds of such sale are reasonably promptly
applied to the purchase price of such replacement equipment, and (iv) any other
assets or interest, provided that (A) at the time of any such sale, conveyance,
transfer or disposition, no Default shall exist or shall result from such
transaction, (B) at least 80% of the aggregate sales price from such sale,
conveyance, transfer or disposition shall be paid in cash, and (C) the aggregate
value of all assets so sold by Borrower shall not exceed in any fiscal year
$_____.
7.5 INVESTMENTS IN OTHER PERSONS
Directly or indirectly, make or maintain any loan or advance to any
other Person or own, purchase or otherwise acquire any Stock, Stock Equivalents,
other equity interest, obligations or other securities of, or otherwise invest
in, any other Person (any such transaction being an "Investment"), except:
(a) Investments in accounts, contract rights and chattel paper, notes
receivable and similar items arising in the ordinary course of business;
(b) incidental advances to employees of Borrower in the ordinary
course of business;
(c) Investments in direct obligations to the United States of America
or any agency thereof, banker's acceptances and certificates of deposit issued
by any commercial bank in the United States of America;
(d) Investments acquired in exchange for, or out of the cash proceeds
of the substantially concurrent sale of, new common or preferred equity of
Borrower; and
(e) In addition to the Investments permitted under this Agreement, any
other Investments to the extent that they do not exceed at any one time
outstanding $________.
7.6 CHANGE IN NATURE OF BUSINESS
Directly or indirectly engage in any business activity other than
contract manufacturing and new activities that are reasonably incidental to or
can reasonably be expected to facilitate such manufacturing.
7.7 GUARANTIES
Guarantee or become liable in any way as surety, endorser (other than
as endorser of negotiable instruments for deposit or collection in the ordinary
course of business), accommodation endorser or otherwise for, nor pledge or
hypothecate any assets of Borrower as security for, any liabilities or
obligations of any other Person except any of the foregoing required by this
Agreement.
7.8 PLANS
(a) Adopt or become obligated to contribute to any Plan subject to
Title IV or any multiemployer Plan or any other Plan subject to Section 412 of
the Internal Revenue Code (except for any such Plan listed on the Disclosure
Schedule on the Closing Date), (b) establish or become obligated with respect to
any new welfare benefit Plan, or modify any existing welfare benefit Plan, which
is reasonably likely to result in an increase of the present value of future
liabilities for post-retirement life insurance and medical benefits, or (c)
establish or become obligated to contribute to any new unfunded pension Plan, or
modify any existing unfunded pension Plan, which is reasonably likely to result
in an increase in the present value of future unfunded liabilities under all
such plans.
7.9 CANCELLATION OF INDEBTEDNESS OWED TO IT
Cancel any claim or Indebtedness owed to it except for legitimate
business purposes in the reasonable judgment of Borrower and in the ordinary
course of business.
7.10 ENVIRONMENTAL
Dispose, or permit any other Person to dispose, of any Contaminant by
placing it in or on the ground or waters of any property owned or leased by
Borrower, except in material compliance with Environmental Law or the terms of
any Permit, unless such action(s), in the aggregate, have no reasonable
likelihood of having a Material Adverse Effect.
7.11 TRANSACTIONS WITH AFFILIATES
Enter into any transaction directly or indirectly with or for any
affiliate except in the ordinary course of business on a basis no less favorable
to such affiliate than would be obtained in a comparable arm's length
transaction with a Person not an affiliate involving assets that are not
material to the business and operations of Borrower.
7.12 NEW LOCATION; NAME CHANGE
Open any new location or change its name unless (i) Borrower gives
Lender (a) 30 days prior written notice of the intended name change, (b) 30 days
prior written notice of the intended opening of such new location, and (ii)
Borrower executes and delivers to Lender such agreements, documents and
instruments as Lender deems reasonably necessary or desirable to protect its
interests in the Collateral, including, without limitation, UCC-1 financing
statements.
ARTICLE VIII. EVENTS OF DEFAULT
8.1 EVENTS OF DEFAULT
The occurrence of any of the following shall constitute an "Event of
Default" under this Agreement:
(a) Borrower shall fail to pay when due any amount payable under
any of the Loan Documents;
(b) any financial statement or certificate furnished to Lender in
connection with, or any representation or warranty made by Borrower under, any
of the Loan Documents shall prove to be false or misleading in any material
respect when furnished or made;
(c) any default by Borrower in the performance of or compliance with
any obligation, agreement or other provision contained in Sections 6.5, 6.11,
7.2, 7.3, 7.4, 7.5, 7.7, and 7.12;
(e) any default by Borrower in the performance of or compliance with
any obligation, agreement or other provision contained in any Loan Document
(other than those referred to in subsections (a) through (c) above) for ten
Business Days after written notice thereof has been given to Borrower by Lender;
(f) any breach by Borrower in the payment or performance of any
obligation under the terms of any contract or instrument (other than any of the
Loan Documents) evidencing Indebtedness in excess of $100,000 if such breach has
not been cured to the satisfaction of the affected creditor or waived by such
creditor within any applicable cure period provided under the contract or
instrument;
(g) any judgment(s), order(s) or writ(s) in excess of an aggregate of
$100,000 is/are rendered or entered against Borrower, except any judgment for
which Borrower is fully insured (subject to standard deductibles) or except if
the enforcement of such judgment, order or writ has been stayed or the liability
thereon bonded in a manner and on terms reasonably satisfactory to Lender; or
the service of notice(s) of levy and/or of writ(s) of attachment or execution,
or other like process, against any of the assets of Borrower with respect to
obligations in excess of an aggregate of $100,000;
(h) Borrower shall become insolvent, or shall suffer or consent to or
apply for the appointment of a receiver, trustee, custodian or liquidator of
itself or any of its property, or shall generally be unable to or fail to pay
its debts as they become due, or shall make a general assignment for the benefit
of creditors; Borrower shall file a voluntary petition in bankruptcy, or seek to
effect a plan or other arrangement with creditors or any other relief under the
Bankruptcy Code, or under any state or other Federal law granting relief to
debtors, whether now or hereafter in effect; or any involuntary petition or
proceeding pursuant to the Bankruptcy Code or any other applicable state or
other Federal law relating to bankruptcy, reorganization or other relief for
debtors is filed or commenced against Borrower and is not dismissed, stayed or
vacated within sixty days thereafter; Borrower shall file an answer admitting
the jurisdiction of the court and the material allegations of any involuntary
petition; or Borrower shall be adjudicated a bankrupt, or an order for relief
shall be entered by any court of competent jurisdiction under the Bankruptcy
Code or any other applicable state or Federal law relating to bankruptcy,
reorganization or other relief for debtors;
(i) tax lien(s) (other than a Permitted Lien) greater than $50,000 in
the aggregate shall have been filed against Borrower or any of its property by
any federal, state, or municipal authority;
(j) if any of the following events occur: (a) any Plan incurs any
"accumulated funding deficiency" (as defined in ERISA) whether waived or not,
(b) Borrower or any affiliate engages in any "prohibited transaction" (as
defined in ERISA), (c) any Plan is terminated, (d) a trustee is appointed by an
appropriate United States district court to administer any Plan, or (e) the PBGC
institutes proceedings to terminate any Plan or to appoint a trustee to
administer any Plan;
(k) the dissolution or liquidation of Borrower, or Borrower or its
directors or stockholders shall take action seeking to effect the dissolution or
liquidation of Borrower; or
(l) there shall exist or occur any event or condition that Lender in
good faith believes impairs, or is substantially likely to impair, the prospect
of payment or performance by Borrower of any of the Obligations.
8.2 REMEDIES
(a) During the continuance of any Event of Default (other than an Event
of Default referred to in Section 8.1(h) hereof), Lender may by written notice
to Borrower, (i) terminate the obligations of Lender to extend any further
credit under any of the Loan Documents, and (ii) declare all indebtedness of
Borrower under the Loan Documents to be immediately due and payable without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by Borrower, and/or take such enforcement action as is
permitted under this Section 8.2. Upon the occurrence or existence of any Event
of Default described in Section 8.1(h) hereof, immediately and without notice,
(A) the obligations, if any, of Lender to extend any further credit under any of
the Loan Documents shall automatically cease and terminate, and (B) all
indebtedness of Borrower under the Loan Documents shall automatically become
immediately due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by Borrower.
Borrower acknowledges that portions of the Collateral may be difficult to
preserve and dispose of and may be subject to complex maintenance and
management; accordingly, Lender shall have the widest possible latitude in the
exercise of its rights and remedies hereunder as to such portions of Collateral.
(b) During the continuance of an Event of Default, Lender, in addition
to any other rights and remedies contained in the Loan Documents, shall have all
of the rights and remedies of a secured party under the Code and all other
applicable law, all of which rights and remedies shall be cumulative and
nonexclusive to the extent permitted by law. Lender may cause the Collateral to
remain on Borrower's premises, at Borrower's expense, pending sale or other
disposition thereof. Lender shall have the right to conduct such sales on
Borrower's premises or elsewhere, at Borrower's expense, on such occasion(s) as
Lender may see fit, and Borrower, at Lender's request, will, at Borrower's
expense, assemble the Collateral and make it available to Lender at such
place(s) as Lender may reasonably designate from time to time. Any sale, lease
or other disposition by Lender of the Collateral, or any part thereof, may be
for cash or other value. Borrower shall execute and deliver, or cause to be
executed and delivered, such instruments, documents, assignments, deeds,
waivers, certificates and affidavits and take such further action as Lender
shall reasonably require in connection with such sale, and Borrower hereby
constitutes Lender as its attorney-in-fact to execute any such instrument,
document, assignment, deed, waiver, certificate or affidavit on behalf of
Borrower and in its name. At any sale of the Collateral, the Collateral to be
sold may be sold in one lot as an entirety or in separate lots as Lender may
determine. Lender shall not be obligated to make any sale of any Collateral if
it determines not to do so, regardless of the fact that notice of sale was
given. Lender may, without notice or publication, adjourn any public or private
sale or cause the sale to be adjourned from time to time by announcement at the
time and place fixed for sale, and such sale may, without further notice, be
made at the time and place to which it was so adjourned. In case any sale of
Collateral is made on credit or for future delivery, the Collateral so sold may
be retained by Lender until the sale price is paid, but Lender shall not incur
any liability if any purchaser fails to pay for any Collateral so sold and, in
case of any such failure, such Collateral may be sold again. At any public sale,
Lender (i) may bid for or purchase, free (to the extent permitted by law) from
any rights of redemption, stay or appraisal on the part of Borrower with respect
to the Collateral, the Collateral offered for sale, (ii) make payment on account
thereof by using any claim then due and payable to Lender from Borrower as a
credit against the purchase price, and (iii) upon compliance with the terms of
sale, hold, retain and dispose of such property without further accountability
to Borrower therefor.
(c) Lender is hereby granted a license and right to use, without charge
upon the occurrence and during the continuance of an Event of Default and until
the Obligations are fully and finally paid in cash, Borrower's labels, patents,
copyrights, rights of use of any name, trade secrets, trade names, trademarks,
service marks, advertising material or any property of a similar nature in
completing the production, advertising for sale and sale of any Collateral.
(d) Any notice required to be given by Lender with respect to any of
the Collateral which notice is given pursuant to Section 9.1 and deemed received
pursuant to Section 9.1 at least five Business Days before a sale, lease,
disposition or other intended action by Lender with respect to any of the
Collateral shall constitute fair and reasonable notice to Borrower of any such
action. A public sale in the following fashion shall be conclusively presumed to
be reasonable: (i) the sale is held in a county where any part of the Collateral
is located or in which Borrower has a place of business; (ii) the sale is
conducted by auction, but it need not be by a professional auctioneer; (iii) any
Collateral is sold as is and without any preparation for sale; and (iv) Borrower
is given notice of such public sale pursuant to the preceding sentence.
(e) Upon the occurrence and during the continuance of an Event of
Default, Lender shall have, with respect to Borrower's accounts, all rights and
powers to: (i) direct any and all account debtors to make all payments in
respect of such accounts directly to Lender or otherwise demand payment of any
or all of such accounts; (ii) enforce payment of any or all of such accounts by
legal proceedings or otherwise; (iii) exercise Borrower's rights and remedies
with respect to any actions or proceedings brought to collect such accounts;
(iv) sell or assign any such account upon such terms, for such amount and at
such time or times as Lender deems advisable; (v) settle, adjust, compromise,
extend or renew any such account; (vi) discharge or release any such accounts;
and (vii) prepare, file and sign Borrower's name on any proof of claim in
bankruptcy or any similar document against an account debtor, and to otherwise
exercise the rights granted herein.
(f) Lender shall have no obligation (i) to preserve any rights to the
Collateral against any Person, (ii) to make any demand upon or pursue or exhaust
any rights or remedies against Borrower or others with respect to payment of the
Obligations, (iii) to pursue or exhaust any rights or remedies with respect to
any of the Collateral or any other security for the Obligations, or (iv) to
marshal any assets in favor of Borrower or any other Person against or in
payment of any or all of the Obligations.
(g) Borrower shall pay to Lender on demand and as part of the
Obligations, all costs and expenses, including court costs and costs of sale,
incurred by Lender in exercising any of its rights or remedies hereunder, and
all costs and expenses incurred in connection with any review of any part of the
Collateral.
8.3 LENDER AS BORROWER'S ATTORNEY
Borrower hereby appoints Lender or any other Person whom Lender may
designate, as Borrower's attorney, with power during the continuation of an
Event of Default: to indorse Borrower's name on any checks, notes, acceptances,
money orders, drafts or other forms of payment or security that may come into
Lender's possession; to sign Borrower's name on any invoice or bill of lading
relating to any account, on drafts against customers, on schedules and
assignments of accounts, on notices of assignment, financing statements and
other public records, and on notices to customers; to notify the post office
authorities to change the address for delivery of Borrower's mail to an address
designated by Lender; to receive, open and process all mail addressed to
Borrower; to ask for, demand, sue for, collect, receive, receipt and give
aquittance for any and all moneys due or to become due with respect to any
Collateral; to settle, compromise, prosecute or defend any action, claim or
proceeding with respect to Collateral; to sell, assign, pledge, transfer and
make any agreement with respect to or otherwise deal with the Collateral; and to
do all things necessary to perfect Lender's security interest in the Collateral,
to preserve and protect the Collateral and to otherwise carry out this
Agreement; provided, however, that nothing contained in this Section 8.3 will be
construed as requiring or obligating Lender to take any action. Provided Lender
acts in a reasonable manner, Borrower ratifies and approves all acts of such
attorney, and neither Lender nor the attorney will be liable for any acts or
omissions nor for any error of judgment or mistake of fact or law. This power
being coupled with an interest is irrevocable until the Obligations have been
fully satisfied and indefeasibly paid in cash or the financing arrangements
between Lender and Borrower are terminated, whichever shall later occur.
ARTICLE IX. MISCELLANEOUS
9.1 NOTICES
Any notice required or permitted to be given hereunder will be
in writing, will be addressed to the party to be notified at the address set
forth below, or at such other address as each party may designate for itself
from time to time by notice hereunder, and will be deemed to have been validly
given (i) five days following deposit in the United States mail, with proper
first-class postage prepaid, (ii) the next Business Day after notice was
delivered to a regularly scheduled overnight delivery carrier, or (iii) upon
receipt of notice given by fax, mailgram, telegram, telex or personal delivery:
To Borrower: Servatron, Inc.
East 15520 Fairview Avenue
Spokane, Washington 99216
Attn: Larry Panattoni
Fax No.:
To Lender: Itron, Inc.
2818 N. Sullivan Road
Spokane, Washington 99216
Attn: David G. Remington
Fax No.: _____________
9.2 COSTS, EXPENSES, ATTORNEYS' FEES
Borrower shall pay immediately upon demand the full amount of all
payments, advances, charges, costs and expenses, including reasonable attorneys'
fees (whether incurred at the trial or appellate level, in an arbitration
proceeding, in bankruptcy, (including, without limitation, any adversary
proceeding, contested matter or motion) or otherwise), incurred by Lender in
connection with (a) the negotiation and preparation of the Loan Documents, (b)
the enforcement, preservation or protection (or attempted enforcement,
preservation or protection) of Lender's rights, including, without limitation,
periodic collateral examinations, and/or the collection of any amounts which
become due under any of the Loan Documents, and (c) the prosecution or defense
of any action in any way related to any of the Loan Documents, including without
limitation, any action for declaratory relief, and including any of the
foregoing incurred in connection with any bankruptcy proceeding relating to
Borrower.
9.3 INDEMNIFICATION
To the fullest extent permitted by law, Borrower hereby agrees to
protect, indemnify, defend and hold harmless each of Lender and its officers,
directors, shareholders, employees, agents, attorneys and affiliates
(collectively, "Indemnitees") from and against any liabilities, losses, damages
or expenses of any kind or nature and from any suits, claims or demands
(including in respect of or for reasonable attorneys' fees (whether incurred at
the trial or appellate level, in an arbitration proceeding, in bankruptcy
(including, without limitation, any adversary proceeding, contested matter or
motion) or otherwise) and other expenses, including the allocated costs and
expenses of internal counsel) arising on account of or in connection with any
matter or thing or action or failure to act by Indemnitees, or any of them,
arising out of or relating to this Agreement, any other Loan Document, including
without limitation any use by Borrower of any Loan proceeds, except to the
extent such liability arises from the willful misconduct or gross negligence of
the Indemnitees. Upon receiving knowledge of any suit, claim or demand asserted
by a third party that Lender believes is covered by this indemnity, such
Indemnitee shall give Borrower notice of the matter and an opportunity to defend
it, at Borrower's sole cost and expense, with legal counsel satisfactory to
Lender. Lender may also require Borrower to defend the matter. Any failure or
delay of Lender to notify Borrower of any such suit, claim or demand shall not
relieve Borrower of its obligations under this Section 9.3, but shall reduce
such obligations to the extent of any increase in those obligations caused
solely by an unreasonable failure or delay in providing such notice. This
Section 9.3 shall survive the payment in full and performance of all of
Borrower's other Obligations.
9.4 SUCCESSORS AND ASSIGNS
(a) The Loan Documents shall be binding upon and inure to the benefit
of the successors and assigns of the parties; provided, however, that Borrower
may not assign or transfer its interest hereunder. Lender reserves the right to
sell, assign, transfer, negotiate or grant participations in all or any part of,
or any interest in, Lender's rights and benefits under each of the Loan
Documents.
(b) Without limitation, Lender may disclose the Loan Documents, and any
financial or other information relating to Borrower, to its affiliates, auditors
and legal counsel, to any potential participant or assignee and to any
Governmental Authority to the extent that such disclosure is required by law and
as required in order to comply with a subpoena or order issued by a court of
competent jurisdiction or by a legislative or regulatory body.
9.5 SETOFF
In addition to any of Lender's others rights and remedies, Lender shall
have the right without prior notice to Borrower, any such notice being expressly
waived by Borrower to the extent permitted by applicable law, during the
continuance of an Event of Default to setoff and apply against any indebtedness,
whether matured or unmatured, of Borrower to Lender any amount owing from Lender
or any affiliate thereof to Borrower at any time during the continuation of an
Event of Default. This right of setoff may be exercised by Lender against
Borrower or against any trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, receiver or execution, judgment or attachment
creditor of Borrower or against anyone else claiming through or against Borrower
or such trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of setoff shall not have been exercised
by Lender prior to the occurrence of an Event of Default. Lender agrees promptly
to notify Borrower after any such setoff and application made by Lender,
provided that the failure to give such notice shall not affect the validity of
such setoff and application.
9.6 NO WAIVER; CUMULATIVE REMEDIES
No failure on the part of Lender to exercise, and no delay in
exercising, any right, power, privilege or remedy under any Loan Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power, privilege or remedy preclude any other or further exercise
thereof or the exercise of any other right, power, privilege or remedy. The
rights and remedies under the Loan Documents are cumulative and not exclusive of
any rights, powers, privileges and remedies that may otherwise be available to
Lender.
9.7 ENTIRE AGREEMENT; AMENDMENT
The Loan Documents constitute the entire agreement between Borrower and
Lender with respect to the Loans and supersede all prior negotiations,
communications, discussions, correspondence and agreements concerning the
subject matter hereof. The Loan Documents may be amended or modified only by a
written document executed by the parties hereto.
9.8 NO THIRD PARTY BENEFICIARIES
This Agreement is made and entered into for the sole protection and
benefit of the parties hereto and their respective permitted successors and
assigns, and no other person or entity shall be a third party beneficiary of, or
have any direct or indirect cause of action or claim in connection with, this
Agreement or any other of the Loan Documents to which it is not a party.
9.9 TIME
Time is of the essence of each and every provision of this Agreement
and each other of the Loan Documents.
9.10 SEVERABILITY OF PROVISIONS
If any provision of this Agreement shall be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or any remaining provisions of this Agreement.
9.11 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Washington.
9.12 WAIVER OF JURY TRIAL
EACH OF BORROWER AND LENDER, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION IN ANY WAY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER OF THE LOAN DOCUMENTS OR ANY OF THE
TRANSACTIONS OR EVENTS REFERENCED HEREIN OR THEREIN OR CONTEMPLATED HEREBY OR
THEREBY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND/OR ANY OTHER OF THE LOAN DOCUMENTS. A COPY
OF THIS SECTION MAY BE FILED WITH ANY COURT AS WRITTEN EVIDENCE OF THE WAIVER OF
THE RIGHT TO TRIAL BY JURY AND THE CONSENT TO TRIAL BY COURT.
9.13 COUNTERPARTS
This Agreement may be executed in any number of identical counterparts,
any set of which signed by all the parties hereto shall be deemed to constitute
a complete, executed original for all purposes.
9.14 WASHINGTON STATUTORY NOTICE
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR
FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.
SERVATRON, INC. ITRON, INC.
By: /s/ Larry Panattoni By: /s/ David G. Remington
Title: President Title: CFO
5
1000
6-MOS
DEC-31-2000
JUN-30-2000
30703
0
34519
(1295)
16373
92385
91870
(54169)
176795
48493
0
0
0
108732
(57635)
176795
92472
92472
57223
31134
(1097)
0
(2541)
2671
(1010)
1661
0
1047
0
2708
.18
.18