Exhibit 4(e)
AMENDMENT NO. 1
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No.1 to Amended and Restated Credit Agreement (this
"Amendment") is entered into as of April 5, 2002, by and among ESCO Technologies
Inc., a Missouri corporation ("Company"), each financial institution signatory
hereto as a Lender (collectively the "Lenders" and individually each a
"Lender"), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line
Lender, Offshore Currency Fronting Lender and Issuing Lender ("Bank of
America").
RECITALS
A. Company, Bank of America and the Lenders are party to that certain
Amended and Restated Credit Agreement dated as of February 28, 2001 (the "Credit
Agreement"). Unless otherwise specified herein, capitalized terms used in this
Amendment shall have the meanings ascribed thereto in the Credit Agreement.
B. Company, Bank of America and the undersigned Lenders wish to amend the
Credit Agreement on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual execution hereof and other
good and valuable consideration, the parties hereto agree as follows:
1. Amendments to Credit Agreement.
(a) The definition of "Letter of Credit Sublimit" appearing in Section
1.01 of the Credit Agreement is hereby amended by inserting the amount
"$25,000,000" in replacement for the amount "$15,000,000" appearing
therein.
(b) Section 2.08(a) of the Credit Agreement is hereby amended by
deleting the following sentence appearing therein:
"Any such reduction or termination shall be accompanied by payment of
all accrued and unpaid participation fees under Section 2.10(d) with
respect to the portion of the Fronted Offshore Currency Commitment
being reduced or terminated."
(c) Section 2.08(c) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
" (c) Scheduled Commitment Reductions. In addition to any reductions
pursuant to Section 2.08(b), the combined Commitments will be permanently
reduced by $5,000,000 (as such amount may be reduced by any reduction in
the applicable year pursuant to Section 2.08(a)) on each of April 11, 2002,
April 11, 2003 and April 11, 2004. To the extent applicable, Company shall
make the prepayments required by Section 2.07(c) on such dates."
(d) Section 2.14(a) of the Credit Agreement is hereby amended by
inserting the date "April 11, 2004" in replacement for the date "April 11,
2002" appearing therein.
2. Representations and Warranties of Company. Company represents and
warrants that:
(a) The execution, delivery and performance by Company of this
Amendment have been duly authorized by all necessary corporate action and
this Amendment is a legal, valid and binding obligation of Company
enforceable against Company in accordance with its terms, except as the
enforcement hereof may be subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally;
(b) Each of the representations and warranties contained in Section 5
of the Credit Agreement is true and correct in all material respects on and
as of the date hereof as if made on the date hereof; and
(c) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing.
3. Effective Date. This Amendment shall become effective upon:
(a) The execution and delivery hereof by Company, Bank of America and
the Lenders; and
(b) Company's payment to Administrative Agent, for the respective
accounts of the Lenders pro rata according to their respective Pro Rata
Shares, an amendment fee in an amount equal to four (4) Basis Points on the
combined Commitments. Such amendment fee is for the Lenders amending the
Credit Agreement as contemplated hereby, and is fully earned on the date
paid. The amendment fee paid to the Lenders is solely for their own account
and is nonrefundable.
4. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically amended hereby, the Credit Agreement and
the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed; and
(b) The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of the Administrative
Agent or any Lender under the Credit Agreement or any Loan Document, nor
constitute a waiver of any provision of the Credit Agreement or any Loan
Document. Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of similar import shall mean and be a reference to the Credit
Agreement as amended hereby.
5. Costs and Expenses. Company hereby affirms its obligation under
Section 10.03 of the Credit Agreement to reimburse the Administrative Agent
for all costs and expenses paid or incurred by the Administrative Agent in
connection with the preparation, negotiation, execution and delivery of
this Amendment, including but not limited to the attorneys' fees and time
charges of attorneys for the Administrative Agent with respect thereto.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF MISSOURI (WITHOUT REGARD
TO CONFLICTS OF LAW PROVISIONS THEREOF); PROVIDED THAT COMPANY, THE
ADMINISTRATIVE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original
but all such counterparts shall constitute one and the same instrument.
[signature pages follow]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
ESCO TECHNOLOGIES INC.
By: Name: Title:
BANK OF AMERICA, N.A., as Administrative Agent
By: Name: Title:
BANK OF AMERICA, N.A., as Lender, Issuing Lender, Swing Line
Lender and Offshore Currency Fronting Lender
By: Name: Title:
BANK ONE, NA (Main Office Chicago), as a Lender
By: Name: Title:
THE NORTHERN TRUST COMPANY, as a Lender
By: Name: Title:
LASALLE BANK NATIONAL ASSOCIATION, as a Lender
By: Name: Title:
COMMERCE BANK, N.A., as a Lender
By: Name: Title: