FIFTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT
FACILITIES AGREEMENT
THIS FIFTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT FACILITIES
AGREEMENT (this "AMENDMENT") is entered into as of December 1, 1999, by and
among DT INDUSTRIES, INC., a Delaware corporation ("DOMESTIC BORROWER"), DT
INDUSTRIES (UK) II LIMITED, ASSEMBLY TECHNOLOGIE & AUTOMATION GMBH, XXXXXX
INC., formerly Xxxxxx Canada Inc., and DT CANADA INC. (together with Domestic
Borrower, separately and collectively, "BORROWER"), BANK OF AMERICA, N.A.,
formerly NationsBank, N.A., as administrative agent ("ADMINISTRATIVE AGENT"),
and the other lenders listed on the signature pages hereof (the "LENDERS").
RECITALS
(a) Borrower, Administrative Agent and the Lenders are parties to that certain
Fourth Amended and Restated Credit Facilities Agreement dated as of July
21,1997 (as amended through the date hereof, the "CREDIT AGREEMENT"; terms
defined in the Credit Agreement and not otherwise defined herein shall be
used herein as defined in the Credit Agreement).
(b) Borrower, Administrative Agent, and the Lenders desire to amend the Credit
Agreement as described below, subject to the terms and conditions
contained herein.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the parties
hereto covenant and agree as follows:
1. AMENDMENT TO THE CREDIT AGREEMENT. The Credit Agreement is hereby
amended by entirely amending the fourth sentence of Section 19.2. thereof, as
follows:
The foregoing notwithstanding, no such amendment, modification,
waiver or consent shall release any of the Collateral or any Covered
Person or any Guarantor from its obligations under the Loan
Documents in connection with any sale, disposition or refinancing of
assets (other than in connection with sales or dispositions
permitted under Section 14.6. and upon compliance with Section
6.2.3.) unless signed by authorized officers of Borrower and any one
or more Lenders whose shares of Lenders' Exposure at the relevant
time aggregate at least 80%, and no such amendment, modification,
waiver or consent shall, unless signed by authorized officers of
Borrower and of all the Lenders: (i) increase any Revolving Loan
Commitment of any Lender, or increase the Letter of Credit
Commitment or subject any Lender or the Letter of Credit Issuer to a
greater obligation than expressly provided for in this Agreement,
(ii) reduce or forgive the repayment of principal of any Advance or
the reimbursement of any draw on a Letter of Credit or decrease the
rate, or change the mechanism for determining the rate, of interest
on any Advance
or any fees or other amounts payable by Borrower hereunder, (iii)
change to a later date the regularly scheduled dates for payments of
principal or interest of any Advance or other fees or amounts payable
to any Lender under the Loan Documents (including, without limitation,
the Revolving Loan Maturity Date), (iv) change the provisions of
Section 17 to the detriment of any Lender, (v) change the definition
of Required Lenders herein, (vi) change the provisions of this
Section, (vii) change any provisions of this Agreement requiring
ratable distributions to Lender, (viii) release any of the Collateral
or any Covered Person or any Guarantor from its obligations under the
Loan Documents in connection with any transaction or other event or
circumstance other than a sale, disposition or refinancing of a
Covered Person's assets, or (ix) subordinate the Loan Obligations to
any other Indebtedness.
2. ACKNOWLEDGMENT OF THE BORROWER. The Borrower acknowledges and agrees
that the Lenders executing this Amendment have done so in their sole discretion
and without any obligation. The Borrower further acknowledges and agrees that
any action taken or not taken by the Lenders or the Administrative Agent prior
to, on or after the date hereof shall not constitute a waiver or modification of
any term, covenant or provision of any Loan Document or prejudice any rights or
remedies which the Administrative Agent or any Lender now has or may have in the
future under any Loan Document, Applicable Law or otherwise, all of which rights
and remedies are expressly reserved by the Administrative Agent and the Lenders.
3. SUBSIDIARIES ACKNOWLEDGMENT. By signing below, each of the Domestic
Borrower's Subsidiaries which has executed a guaranty of the Loan Obligations
(a) consents and agrees to this Amendment's execution and delivery, (b) ratifies
and confirms its obligations under its guaranty, (c) acknowledges and agrees
that its obligations under its guaranty are not released, diminished, impaired,
reduced, or otherwise adversely affected by this Amendment, and (d) acknowledges
and agrees that it has no claims or offsets against, or defenses or
counterclaims to, its guaranty.
4. RELEASE.
(a) Upon this Amendment becoming effective, the Domestic Borrower and
each of its Subsidiaries hereby unconditionally and irrevocably remises,
acquits, and fully and forever releases and discharges the Administrative
Agent and the Lenders and all respective affiliates and subsidiaries of the
Administrative Agent and the Lenders, their respective officers, servants,
employees, agents, attorneys, principals, directors and shareholders, and
their respective heirs, legal representatives, successors and assigns
(collectively, the "RELEASED LENDER PARTIES") from any and all claims,
demands, causes of action, obligations, remedies, suits, damages and
liabilities (collectively, the "BORROWER CLAIMS") of any nature whatsoever,
whether now known, suspected or claimed, whether arising under common law,
in equity or under statute, which the Domestic Borrower or any of its
Subsidiaries ever had or now has against the Released Lender Parties which
may have arisen at any time on or prior to the date of this Amendment and
which were in any manner related to any of the Loan Documents or the
enforcement or attempted enforcement by the Administrative Agent or the
Lenders of rights, remedies or recourses related thereto.
2
(b) Upon this Amendment becoming effective, the Domestic Borrower and
each of its Subsidiaries covenants and agrees never to commence,
voluntarily aid in any way, prosecute or cause to be commenced or
prosecuted against any of the Released Lender Parties any action or other
proceeding based upon any of the Borrower Claims which may have arisen at
any time on or prior to the date of this Amendment and were in any manner
related to any of the Loan Documents.
(c) The agreements of the Domestic Borrower and each of its
Subsidiaries set forth in this SECTION 4 shall survive termination of this
Amendment and the other Loan Documents.
5. CONDITIONS OF EFFECTIVENESS. This Amendment shall be effective as of
December 1, 1999, so long as Administrative Agent shall have received executed
counterparts of this Amendment from each of the parties listed on the signature
pages hereof.
6. REFERENCE TO CREDIT AGREEMENT. Upon the effectiveness of this Amendment,
each reference in the Credit Agreement to "this Agreement," "hereunder," or
words of like import shall mean and be a reference to the Credit Agreement, as
affected and amended by this Amendment.
7. COUNTERPARTS; EXECUTION VIA FACSIMILE. This Amendment may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. This Amendment
may be validly executed and delivered by facsimile or other electronic
transmission.
8. GOVERNING LAW: BINDING EFFECT. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas and shall be binding
upon the Borrower, the Administrative Agent, each Lender and their respective
successors and assigns.
9. 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.
10. LOAN DOCUMENT. This Amendment is a Loan Document and is subject to all
provisions of the Credit Agreement applicable to Loan Documents, all of which
are incorporated in this Amendment by reference the same as if set forth in this
Amendment verbatim.
11. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as the
date first above written.
BORROWER:
DT INDUSTRIES, INC., XXXXXX INC. formerly Xxxxxx Canada Inc.,
a Delaware corporation a New Brunswick, Canada corporation
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------------- ---------------------------------------
Xxxxx X. Xxxxx, Senior Vice President- Xxxxx X. Xxxxx, Vice President and
Finance and Administration Treasurer
DT CANADA INC., ASSEMBLY TECHNOLOGIE &
a New Brunswick, Canada corporation AUTOMATION GMBH, a German
limited liability company
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
---------------------------------- ---------------------------------------
Xxxxx X. Xxxxx, Vice President Xxxxx X. Xxxxx, Geschaftsfuhrer
and Treasurer
DT INDUSTRIES (UK) II LIMITED,
a corporation of England and Wales
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx, Director
SUBSIDIARIES:
ADVANCED ASSEMBLY AUTOMATION, INC. ASSEMBLY TECHNOLOGY & TEST, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
---------------------------------- --------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Vice President
DETROIT TOOL AND ENGINEERING CO. MID-WEST AUTOMATION SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
---------------------------------- --------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Vice President
DETROIT TOOL METAL PRODUCTS CO. SENCORP SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
---------------------------------- --------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Vice President
XXXXXXXX MANUFACTURING CORPORATION ARMAC INDUSTRIES, CO.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
---------------------------------- --------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Vice President
PHARMA GROUP, INC. ASSEMBLY MACHINES, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
---------------------------------- --------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Vice President
MID-WEST AUTOMATION ENTERPRISES, INC. VANGUARD TECHNICAL SOLUTIONS, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
---------------------------------- -------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Vice President
ADMINISTRATIVE AGENT AND LENDERS:
BANK OF AMERICA, N.A., formerly DRESDNER BANK AG, NEW YORK
NationsBank, N.A., as Administrative Agent AND GRAND CAYMAN BRANCHES
and a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxxxx, XX By: /s/ Xxxx X. Xxxxxxx
---------------------------------- ---------------------------------
Xxxxxxx X. Xxxxxxxxxxx, XX Name: Xxxx X. Xxxxxxx
Managing Director Title: Vice President
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
THE BANK OF NEW YORK THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxx X. XxXxxxx By: /s/ M.D. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. XxXxxxx Name: M.D. Xxxxx
Title: Vice President Title: Agent
THE SAKURA BANK, LIMITED MERCANTILE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- ---------------------------------
Name: Xxxxxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President Title: Vice President
GENERAL ELECTRIC CAPITAL THE SUMITOMO BANK, LIMITED
CORPORATION
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxx X. Tata
--------------------------------- ---------------------------------
Name: Xxxxxxx Xxxx Name: Xxxxxx X. Tata
Title: Duly Authorized Signatory Title: Senior Vice President
NATIONAL CITY BANK
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
