UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
___________________
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
Report (Date of earliest event reported): January 12,
2010
ESCO
TECHNOLOGIES INC.
(Exact
Name of Registrant as Specified in Charter)
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Missouri
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1-10596
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43-1554045
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(State
or Other
Jurisdiction
of Incorporation)
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(Commission
File
Number)
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(I.R.S.
Employer
Identification
No.)
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9900A
Clayton Road, St. Louis, Missouri
(Address
of Principal Executive Offices)
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63124-1186
(Zip
Code)
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Registrant’s
telephone number, including area
code: 314-213-7200
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
[ ]
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ]
Pre-commencement communications pursuant to Rule 14d-2 (b) under the Exchange
Act (17 CFR 240.14d-2 (b))
[ ]
Pre-commencement communications pursuant to Rule 13e-4 (c) under the Exchange
Act (17 CFR 240.13e-4 (c))
ITEM
1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
The
information set forth in Item 2.03 of this Form 8-K is incorporated in this Item
1.01 by reference.
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ITEM
2.03. CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN
OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A
REGISTRANT
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On
January 12, 2010, the Registrant entered into Amendment No. 1 To Credit
Agreement (“Amendment No. 1”), with retroactive effect to November 12, 2009,
among Registrant, the lenders from time to time party thereto, and PNC Bank,
National Association (successor to National City Bank), as administrative
agent. Amendment No. 1 amended the Credit Agreement dated as of
November 30, 2007 (the “Credit Agreement”) among Registrant, the lenders from
time to time party thereto, and National City Bank, as administrative
agent. Amendment No. 1 permits the Registrant to declare and pay
capital distributions consisting of dividends that are payable in cash, provided
that (i) no default or event of default shall have occurred and be continuing or
would result therefrom, (ii) the Registrant will be in compliance with certain
financial covenants both before and after giving pro forma effect to
each such capital distribution, and (iii) the aggregate amount of all such
capital distributions during any fiscal year shall not exceed
$15,000,000. Prior to Amendment No. 1, the Credit Agreement
prohibited the payment of cash dividends. For further information
regarding the Credit Agreement, see Item 1 “Business”—“Financing” of
Registrant’s Form 10-K for the fiscal year ended September 30,
2009.
ITEM
9.01 FINANCIAL STATEMENTS and EXHIBITS
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(c)
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Exhibits
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| Exhibit No. | Description of Exhibit |
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4.1
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Amendment
No. 1 to Credit Agreement dated as of November 12, 2009, and entered into
on January 12, 2010, among the Registrant, the lenders from time to time
party thereto, and PNC Bank, National
Association
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| ESCO TECHNOLOGIES INC. |
| Dated: January 14, 2010 | By: | /s/T.B. Martin |
| Assistant Secretary |
Index of
Exhibits
| Exhibit No. | Description of Exhibit |
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4.1
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Amendment
No. 1 to Credit Agreement dated as of November 12, 2009, and entered into
on January 12, 2010, among the Registrant, the lenders from time to time
party thereto, and PNC Bank, National
Association
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Exhibit 4.1
AMENDMENT
NO. 1
dated
as of November 12, 2009
to
Credit
Agreement
dated
as of
November
30, 2007
Among
ESCO
TECHNOLOGIES INC.,
as
Borrower,
THE
LENDING INSTITUTIONS NAMED HEREIN,
as
Lenders,
and
PNC
BANK, NATIONAL ASSOCIATION,
as
an LC Issuer, Swing Line Lender and as the
Lead
Arranger, Administrative Agent and Syndication Agent
AMENDMENT NO. 1 TO CREDIT
AGREEMENT
This
AMENDMENT NO. 1 TO CREDIT AGREEMENT (this “Amendment”) is
entered into as of November 12, 2009 among the following: (i) ESCO
TECHNOLOGIES INC., a Missouri corporation (the “Borrower”); (ii) the
lenders from time to time party hereto (each a “Lender” and
collectively, the “Lenders”); and (iii)
PNC BANK, NATIONAL ASSOCIATION (successor to National City Bank), as the
administrative agent (the “Administrative
Agent”).
RECITALS:
A. The
Borrower, the Administrative Agent, the Lenders, Bank of America, N.A. and
JPMorgan Chase Bank, N.A., as Co-Syndication Agents, are parties to the Credit
Agreement, dated as of November 30, 2007 (as the same may from time to time be
amended, restated or otherwise modified, the “Credit
Agreement”).
B. The
Borrower, the Administrative Agent and the Lenders desire to amend the Credit
Agreement to modify certain provisions thereof.
AGREEMENT:
In
consideration of the premises and mutual covenants herein and for other valuable
consideration, the Borrower, the Administrative Agent and the Lenders agree as
follows:
Section
1. Definitions. Unless
otherwise defined herein, each capitalized term used in this Amendment and not
defined herein shall be defined in accordance with the Credit
Agreement.
Section
2. Amendments.
2.1 New
Definitions. Article I of the Credit Agreement is hereby
amended to add the following new definitions thereto:
“Amendment No. 1”
means Amendment No. 1 to Credit Agreement dated as of November 12, 2009, among
the Borrower, the Administrative Agent and the Lenders.
“Amendment No. 1 Effective
Date” means November 12, 2009.
2.2 Omnibus
Amendments. All references in the Credit Agreement and the
exhibits thereto, the Notes, the Security Documents, the Subsidiary Guaranty and
each of the other Loan Documents to “National City Bank, a national banking
association” or “National City Bank” are deemed to be references to “PNC Bank,
National Association.”
2.3 Amendment to Section
7.06. Section 7.06 of the Credit Agreement is hereby amended
by adding a new clause (d) thereto which shall read in its entirety as
follows:
“(d) the
Borrower may declare and pay or make Capital Distributions consisting of
dividends that are payable in cash, provided that (i) no Default
or Event of Default shall have occurred and be continuing or would result
therefrom, (ii) the Borrower will be in compliance with the financial covenants
set forth in Section 7.07 both before and after giving pro forma effect to each such
Capital Distribution, and (iii) the aggregate amount of all such Capital
Distributions made by the Borrower pursuant to this clause (d) during any fiscal
year shall not exceed $15,000,000.”
Section
3. Fees. As
consideration for the modifications to the Credit Agreement contemplated in this
Amendment, the Borrower shall pay to the Administrative Agent, for the benefit
of each Lender that delivers a fully executed copy of its signature page to the
Administrative Agent by 5:00 P.M. (eastern time), December 10, 2009, an
amendment fee in an amount equal to 12.5 basis points times the amount of
such Lender’s Commitment.
Section
4. Effectiveness.
4.1 Conditions Precedent.
The effectiveness of this Amendment is subject to the satisfaction of the
following conditions precedent:
(i) Amendment
Executed. This Amendment shall have been executed by the
Borrower, each Subsidiary Guarantor, the Administrative Agent and the Required
Lenders, and counterparts hereof as so executed shall have been delivered to the
Administrative Agent.
(ii) Officer’s Certificate;
Resolutions. The Borrower and each Subsidiary Guarantor shall
have delivered to the Administrative Agent an officer’s certificate certifying
the names of the officers of the Borrower or such Subsidiary Guarantor
authorized to sign this Amendment and the other Loan Documents, if any, required
to be executed in connection herewith, together with the true signatures of such
officers.
(iii) Fees. The
Borrower shall have (i) paid to the Administrative Agent, for the benefit of the
Lenders, the fees required to be paid by it pursuant to Section 3 above and
(ii) paid all legal
fees and expenses of the Administrative Agent in connection with the preparation
and negotiation of this Amendment and the other documents being executed or
delivered in connection herewith.
(iv) Other
Matters. The Borrower and each Subsidiary Guarantor shall have
provided such other items and shall have satisfied such other conditions as may
be reasonably required by the Administrative Agent.
4.2 Amendment Effective
Date. This Amendment shall be effective on the date (the
“Amendment Effective
Date”) upon which the conditions precedent set forth in Section 4.1 above
are satisfied. The Administrative Agent shall provide the Borrower
and the Lenders written notice immediately upon the occurrence of the Amendment
Effective Date. Upon the occurrence of the Amendment Effective Date,
unless otherwise specifically set forth herein, each of the amendments and other
modifications set forth in this Amendment shall be effective on and after the
Amendment Effective Date, but with retroactive effect to the Amendment No. 1
Effective Date.
Section
5. Miscellaneous.
5.1 Representations and
Warranties. The Borrower and each Subsidiary Guarantor, by
signing below, hereby represents and warrants to the Administrative Agent and
the Lenders that:
(i) the
Borrower and each Subsidiary Guarantor has the legal power and authority to
execute and deliver this Amendment;
(ii) the
officers executing this Amendment on behalf of the Borrower and each Subsidiary
Guarantor have been duly authorized to execute and deliver the same and bind the
Borrower or such Subsidiary Guarantor with respect to the provisions
hereof;
(iii) the
execution and delivery hereof by the Borrower or each Subsidiary Guarantor and
the performance and observance by the Borrower and each Subsidiary Guarantor of
the provisions hereof do not violate or conflict with the Organizational
Documents of the Borrower or any Subsidiary Guarantor or any law applicable to
the Borrower or any Subsidiary Guarantor or result in a breach of any provision
of or constitute a default under any other agreement, instrument or document
binding upon or enforceable against the Borrower or such Subsidiary
Guarantor;
(iv) no
Default or Event of Default exists under the Credit Agreement, nor will any
occur immediately after the execution and delivery of this Amendment or by the
performance or observance of any provision hereof;
(v) neither
the Borrower nor any Subsidiary Guarantor has any claim or offset against, or
defense or counterclaim to, any obligations or liabilities of the Borrower or
such Subsidiary Guarantor under the Credit Agreement or any other Loan
Document;
(vi) this
Amendment constitutes a valid and binding obligation of the Borrower and each
Subsidiary Guarantor in every respect, enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency or
other similar laws of general application affecting the enforcement of
creditors’ rights or by general principles of equity limiting the availability
of equitable remedies; and
(vii) each of
the representations and warranties set forth in Article V of the Credit
Agreement is true and correct in all material respects as of the date hereof,
except to the extent that any thereof expressly relate to an earlier date, in
which case such representations and warranties are reaffirmed true and correct
as of such earlier date.
5.2 Credit Agreement
Unaffected. Each reference to the Credit Agreement or in any
other Loan Document shall hereafter be construed as a reference to the Credit
Agreement as amended hereby. Except as herein otherwise specifically
provided, all provisions of the Credit Agreement shall remain in full force and
effect and be unaffected hereby. This Amendment is a Loan
Document.
5.3 Subsidiary Guarantor
Acknowledgment. Each Subsidiary Guarantor, by signing this
Amendment:
(i) consents
and agrees to and acknowledges the terms of this Amendment;
(ii) acknowledges
and agrees that all of the Loan Documents to which such Subsidiary Guarantor is
a party or otherwise bound shall continue in full force and effect and that all
of such Subsidiary Guarantor’s obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment;
(iii) represents
and warrants to the Administrative Agent and the Lenders that all
representations and warranties made by such Subsidiary Guarantor and contained
in this Amendment or any other Loan Document to which it is a party are true and
correct in all material respects on and as of the Amendment No. 1 Effective Date
to the same extent as though made on and as of the Amendment No. 1 Effective
Date, except to the extent that any thereof expressly relate to an earlier date;
and
(iv) acknowledges
and agrees that (A) notwithstanding the conditions to effectiveness set
forth in this Amendment, such Subsidiary Guarantor is not required by the terms
of the Credit Agreement or any other Loan Document to which such Subsidiary
Guarantor is a party to consent to the amendments to the Credit Agreement
effected pursuant to this Amendment and (B) nothing in the Credit
Agreement, this Amendment or any other Loan Document shall be deemed to require
the consent of such Subsidiary Guarantor to any future amendments or
modifications to the Credit Agreement.
5.4 Waiver. The
Borrower and each Subsidiary Guarantor, by signing below, hereby waives and
releases the Administrative Agent and each of the Lenders and their respective
Related Parties from any and all claims, offsets, defenses and counterclaims of
which the Borrower and any Subsidiary Guarantor is aware, such waiver and
release being with full knowledge and understanding of the circumstances and
effect thereof and after having consulted legal counsel with respect
thereto.
5.5 Entire
Agreement. This Agreement, together with the Credit Agreement
and the other Loan Documents, integrate all the terms and conditions mentioned
herein or incidental hereto and supersede all oral representations and
negotiations and prior writings with respect to the subject matter
hereof.
5.6 Counterparts This
Amendment may be executed in any number of counterparts, by different parties
hereto in separate counterparts and by facsimile signature, each of which when
so executed and delivered shall be deemed to be an original and all of which
taken together shall constitute but one and the same agreement.
5.7 Governing
Law. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE BORROWER HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK GOVERNS THIS AMENDMENT OR ANY OF
THE OTHER LOAN DOCUMENTS.
5.8 JURY
TRIAL WAIVER. EACH OF THE PARTIES TO THIS AMENDMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OF THE OTHER
LOAN DOCUMENTS (INCLUDING, WITHOUT LIMITATION, ANY AMENDMENTS, WAIVERS OR OTHER
MODIFICATIONS RELATING TO ANY OF THE FOREGOING), OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
[Signature
pages follow.]
IN WITNESS WHEREOF, this Amendment has
been duly executed and delivered as of the date first above
written.
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ESCO
TECHNOLOGIES INC.
By: s/Alyson
S.
Barclay
Name:
Title:
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PNC
BANK, NATIONAL ASSOCIATION,
as
the Administrative Agent and as a Lender
By: s/Thomas
S.
Sherman
Name:
Title:
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JPMORGAN
CHASE BANK, N.A.,
as a Lender
By:
s/Krys Szremski
Name:
Title:
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BANK
OF AMERICA, N.A.,
as a Lender
By:
s/Stephen Bode
Name:
Title:
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BANK
OF TOKYO-MITSUBISHI, LTD.,
as a Lender
By:
s/Victor Pierzchalski
Name:
Title:
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SUNTRUST
BANK,
as a Lender
By:
s/J. Matthew Rowand
Name:
Title:
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THE
GOVERNOR AND COMPANY OF THE BANK OF IRELAND,
as a Lender
By:
s/Aoife M. Quinn
Name:
Title:
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FIFTH
THIRD BANK,
as a Lender
By:
s/Mary Ann Lemonds
Name:
Title:
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WACHOVIA
BANK,
as a Lender
By:
s/Bradford Vieira
Name:
Title:
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COMERICA
BANK,
as a Lender
By:
s/Mark J. Leveille
Name:
Title:
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REGIONS
BANK,
as a Lender
By:
s/John Holland
Name:
Title:
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HSBC
BANK USA,
as a Lender
By:
s/Andrew Bicker
Name:
Title:
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ASSOCIATED
BANK,
as a Lender
By:
s/Mark Weitekamp
Name:
Title:
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FIRST
BANK,
as a Lender
By:
s/Brenda J. Laux
Name:
Title:
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NORTHERN
TRUST,
as a Lender
By:
s/Rick J. Gomez
Name:
Title:
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FIRSTMERIT
BANK, N.A.,
as a Lender
By:
s/Robert G. Morlan
Name: Robert G.
Morlan
Title: Senior Vice
President
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COMMERCE
BANK,
as a Lender
By:
s/T. William White
Name:
Title:
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Each
of the undersigned acknowledge the terms of and consent to the
foregoing:
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ESCO
TECHNOLOGIES HOLDING INC.
By:
s/Alyson S.
Barclay
Name:
Title:
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VACCO
INDUSTRIES
By:
s/Alyson S.
Barclay
Name:
Title:
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LINDGREN
R.F. ENCLOSURES, INC.
By:
s/Alyson S.
Barclay
Name:
Title:
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LINDGREN,
INC.
By:
s/Alyson S.
Barclay
Name:
Title:
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DOBLE
ENGINEERING COMPANY
By:
Alyson S.
Barclay
Name:
Title:
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PTI
TECHNOLOGIES INC.
By: s/Alyson
S.
Barclay
Name:
Title:
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ACLARA
POWER-LINE SYSTEMS INC.
By: s/Alyson
S. Barclay
Name:
Title:
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ACLARA
RF SYSTEMS INC.
By: s/Alyson
S. Barclay
Name:
Title:
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ETS-LINDGREN
L.P.
By: Rantec
Commercial, Inc., its General Partner
By: s/Gary
E.
Muenster
Name:
Title:
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