AMENDMENT
to
SECOND AMENDED AND RESTATED CREDIT FACILITIES AGREEMENT
among
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS, as "Agent"
and
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
and
THE OTHER LENDERS LISTED ON THE SIGNATURE PAGES HEREOF, as "Lenders"
and
DT INDUSTRIES, INC.
and
THE OTHER BORROWERS LISTED ON THE SIGNATURE PAGES HEREOF, as "Borrowers"
This AMENDMENT to SECOND AMENDED AND RESTATED CREDIT FACILITIES
AGREEMENT (the "Amendment") is entered into as of September ___, 1996, by and
among DT INDUSTRIES, INC. ("DTI"), a Delaware corporation, DETROIT TOOL AND
ENGINEERING COMPANY, a Delaware corporation ("Engineering"), DETROIT TOOL METAL
PRODUCTS CO., a Missouri corporation, ("Metal Products"), SENCORP SYSTEMS, INC.,
a Delaware corporation ("Sencorp"), PHARMA GROUP, INC., a Delaware corporation,
formerly known as Xxxxxx-Xxxxxxx Corporation ("PGI"), ADVANCED ASSEMBLY
AUTOMATION, INC., an Ohio corporation ("AAA"), DT CANADA INC., a New Brunswick,
Canada corporation ("DT Canada"), XXXXXX CANADA INC., a New Brunswick, Canada
corporation ("Xxxxxx Canada"), and MID-WEST AUTOMATION ENTERPRISES, INC.
("Mid-West Enterprises") (DTI, Engineering, Metal Products, Sencorp, PGI, AAA,
DT Canada, Xxxxxx Canada, and Mid-West Enterprises are referred to herein both
collectively and individually as "Borrower"), THE BOATMEN'S NATIONAL BANK OF ST.
LOUIS ("Boatmen's"), as administrative agent ("Agent"), and the Lenders.
RECITALS:
A. Borrower and Lenders are party to that certain Second Amended and
Restated Credit Facilities Agreement dated as of July 19, 1996, (as it
may be amended, restated, extended, renewed, replaced, or otherwise
modified from time to time, the "Loan Agreement").
B. Agent has requested that certain other financial institutions become
Lenders by taking an assignment of the Commitments, as provided in
Section 20.4.1 of the Loan Agreement.
C. Borrower has requested that Lenders increase the Aggregate Revolving
Commitment by $10 million and finance the acquisition of Xxxxxxxx
Manufacturing Corporation, a New York corporation, by AAA. Lenders are
willing to do so subject to, and in reliance upon, the terms and
conditions contained herein.
D. Borrower and Lenders desire to amend the Loan Agreement upon the terms
and conditions hereinafter set forth.
Therefore, in consideration of the mutual agreements herein and other
sufficient consideration, the receipt of which is hereby acknowledged, Borrower
and Lenders hereby amend the Loan Agreement as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined herein
have the meanings given them in the Loan Agreement.
2. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This Amendment shall become
effective on September ___, 1996, (the "Amendment Effective Date") if the
following conditions precedent have been satisfied:
2.1. REQUIRED DOCUMENTS. Unless waived by Lenders, Agent shall have
received on or before the Amendment Effective Date all of the documents (or
facsimile counterpart copies thereof showing signatures) listed or described on
Part I of Exhibit A hereto, each (if applicable) duly executed and, (as
applicable), sealed, attested, acknowledged, certified, or authenticated; and
all the requirements described in Exhibit A hereto shall have been met. THE
ITEMS LISTED ON PART II OF EXHIBIT A HERETO MAY BE DELIVERED AFTER THE AMENDMENT
EFFECTIVE DATE, AND BORROWER AGREES THAT FAILURE TO DELIVER ANY SUCH ITEM TO
AGENT, IN FORM AND SUBSTANCE ACCEPTABLE TO AGENT, ON OR BEFORE NOVEMBER 1, 1996,
SHALL CONSTITUTE AN IMMEDIATE EVENT OF DEFAULT UNDER THE LOAN AGREEMENT.
2.2. REPRESENTATIONS AND WARRANTIES OF BORROWER. The representations
and warranties of each Borrower set forth in Section of this Amendment shall be
true and correct in all material respects on the Amendment Effective Date.
3. AMENDMENTS TO LOAN AGREEMENT.
3.1. DEFINITIONS.
3.1.1. NEW DEFINITIONS. The following definitions are hereby
added to the Loan Agreement in proper alphabetical order:
"'Xxxxxxxx': Xxxxxxxx Manufacturing Corporation, a New York
corporation."
"'Xxxxxxxx Acquisition Documents': The Agreement and Plan of Merger by
and among H022 Corporation, DT Industries, Inc., Xxxxxxxx, and the
stockholder listed therein dated of even date herewith, and all
documents executed or delivered in connection therewith."
"'Xxxxxxxx Letter of Credit' is defined in Section 3.8.
3.1.2. AMENDED DEFINITION. The definition of "Guarantor" is
hereby deleted in its entirety and the following is substituted in lieu
thereof:
"'Guarantor': Armac, AMI, Mid-West Systems, Xxxxxxxx, and any other
Person party to a Guaranty.
3.1.3. AMENDED DEFINITION. The definition of "Lenders" is
hereby deleted in its entirety and the following is substituted in lieu
thereof:
"'Lenders': shall collectively mean (a) The Boatmen's National Bank of
St. Louis, (b) each of the other banks and financial institutions
listed on the signature pages hereof, and (c) each bank or financial
institution which takes an assignment at any time of all or a portion
any of the foregoing's rights and obligations under the Agreement
pursuant to the terms of Section 20.4.1 and an Assignment and
Acceptance or which otherwise executes and delivers to Agent an
agreement, in form and substance acceptable to Agent, to join the Loan
Agreement as a "Lender"."
3.2. INCREASE IN REVOLVING COMMITMENT. Section 3.1.1 of the Loan
Agreement is hereby amended by deleting the sentence beginning with the words
"The 'Aggregate Revolving Commitment'" in its entirety and replacing it with the
following sentence:
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"The 'Aggregate Revolving Commitment' on any date shall be $65,000,000,
or such lesser or greater Dollar amount to which it may have been
changed as provided herein."
3.3. XXXXXXXX LETTER OF CREDIT. Section 3.8 of the Loan Agreement is
hereby amended by adding the following words after the last sentence:
"Notwithstanding anything to the contrary contained in this Section
3.8, Boatmen's will issue one or more standby letters of credit for the
account of Borrower to secure the payment of the deferred portion of
the merger consideration under the Xxxxxxxx Acquisition Documents
(collectively and individually, the "Xxxxxxxx Letter of Credit").
Lenders will not make any General Acquisition Advance in excess of an
amount equal to the General Acquisition Loan Commitment less the
original face amount of the Xxxxxxxx Letter of Credit, except for
General Acquisition Advances which are used solely to reimburse Lenders
for any draws on the Xxxxxxxx Letter of Credit. A Xxxxxxxx Letter of
Credit shall be deemed to be a "Letter of Credit" for all purposes
under this Agreement, except that the issuance thereof or payment of
draws thereon will not reduce the Letter of Credit Commitment, and in
the case of any draw on a Xxxxxxxx Letter of Credit, the "Revolving
Advance" in Section 7.5.2 shall be deemed to be a "General Acquisition
Advance"."
3.4. PERMITTED INDIRECT OBLIGATIONS. Section 16.4 of the Loan
Agreement is hereby amended by adding the following language before the words
"(collectively, the "Permitted Indirect Obligations")":
"and (viii) the guaranty of DTI of the obligations of Xxxxxxxx pursuant
to that certain Indemnification and Escrow Agreement among Xxxxxxxx,
DTI, XxxXxxxx X. Xxxxxxxx, Xx., and Escrow Agent of even date herewith,
and (ix) the guaranty of DTI of the obligations of Xxxxxxxx pursuant to
its lease of real property at 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxx
Xxxx, from XxxXxxxx X. Xxxxxxxx, Xx.".
3.5. FINANCIAL COVENANTS.
3.5.1. CAPITAL EXPENDITURES. The chart contained in Section
17.2 of the Loan Agreement is hereby deleted and the following chart
substituted in lieu thereof:
PERIOD MAXIMUM CAPITAL EXPENDITURES
Effective Date through 6/30/96 $13,000,000
7/1/96 through 6/30/97 $12,500,000
Each fiscal year thereafter $13,500,000
3.5.2. OPERATING LEASE OBLIGATIONS. Section 17.4 of the Loan
Agreement is hereby amended by deleting the words "does not exceed
$5,500,000 in any fiscal year" in the fifth line and substituting the
words "does not exceed $6,000,000 in any fiscal year" in lieu thereof.
3.6. EXHIBIT 13. Exhibit 13 to the Loan Agreement is hereby amended
as provided in Exhibit B, attached hereto and incorporated herein by this
reference.
4. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby represents
and warrants to Lenders as of the date hereof that (i) this Amendment has been
duly authorized by Borrower's Board of Directors, (ii) no consents are necessary
from any third parties for Borrower's execution, delivery or performance of
this Amendment, (iii) this Amendment constitutes the legal, valid and binding
obligation of Borrower enforceable against Borrower in accordance
3
with its terms except as the enforcement thereof may be limited by bankruptcy,
insolvency or other laws related to creditors rights generally or by the
application of equity principles, and (iv) there exists no Default or Event of
Default under the Loan Agreement, as amended or waived by this Amendment.
5. EFFECT OF AMENDMENT. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of Agent
or Lenders under the Loan Agreement or any of the other Loan Documents, nor
constitute a waiver of any provision of the Loan Agreement, any of the other
Loan Documents or any existing Default or Event of Default, nor act as a release
or subordination of the Security Interests of Agent or Lenders under the
Security Documents. Each reference in the Loan Agreement to "the Agreement",
"hereunder", "hereof", "herein", or words of like import, shall be read as
referring to the Loan Agreement as amended by this Amendment.
6. REAFFIRMATION. Borrower hereby acknowledges and confirms that (i)
except as expressly amended hereby the Loan Agreement remains in full force and
effect, (ii) the Loan Agreement, as amended hereby, is in full force and effect,
(iii) Borrower has no defenses to its obligations under the Loan Agreement and
the other Loan Documents, (iv) the Security Interests of Agent and Lenders under
the Security Documents secure all the Loan Obligations under the Loan Agreement
as amended by this Amendment, continue in full force and effect and have the
same priority as before this Amendment, and (v) Borrower has no claim against
Agent or any Lender arising from or in connection with the Loan Agreement or the
other Loan Documents.
7. GOVERNING LAW. This Amendment has been executed and delivered in St.
Louis, Missouri, and shall be governed by and construed under the laws of the
State of Missouri without giving effect to choice or conflicts of law principles
thereunder.
8. SECTION TITLES. The section titles in this Amendment are for
convenience of reference only and shall not be construed so as to modify any
provisions of this Amendment.
9. COUNTERPARTS; FACSIMILE TRANSMISSIONS. This Amendment may be executed
in one or more counterparts and on separate counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Signatures to this Amendment may be given by facsimile or other
electronic transmission, and such signatures shall be fully binding on the party
sending the same.
10. INCORPORATION BY REFERENCE. Lenders and Borrower hereby agree that all
of the terms of the Loan Documents are incorporated in and made a part of this
Amendment by this reference.
11. STATUTORY NOTICE The following notice is given pursuant to Section
432.045 of the Missouri Revised Statutes; nothing contained in such notice
will be deemed to limit or modify the terms of the Loan Documents or this
Amendment:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND
OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER(S))
AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS
WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
BORROWER AND LENDERS HEREBY AFFIRM THAT THERE IS NO UNWRITTEN ORAL CREDIT
AGREEMENT BETWEEN BORROWER AND LENDERS WITH RESPECT TO THE SUBJECT MATTER OF
THIS AMENDMENT.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first above written.
DT INDUSTRIES, INC. SENCORP SYSTEMS, INC.,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------------- --------------------------------
Xxxxx X. Xxxxx, Vice President - Xxxxx X. Xxxxx, Vice President
Finance and Secretary and Secretary
DETROIT TOOL AND ENGINEERING COMPANY, ADVANCED ASSEMBLY AUTOMATION, INC.,
a Delaware corporation an Ohio corporation
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------------- --------------------------------
Xxxxx X. Xxxxx, Vice President Xxxxx X. Xxxxx, Vice President
and Secretary and Secretary
DETROIT TOOL METAL PRODUCTS CO., PHARMA GROUP, INC., a Delaware
a Missouri corporation corporation
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------------- --------------------------------
Xxxxx X. Xxxxx, Vice President Xxxxx X. Xxxxx, Vice President
and Secretary and Secretary
DT CANADA INC., a New Brunswick, XXXXXX CANADA INC., a New Brunswick,
Canada corporation Canada corporation
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------------- --------------------------------
Xxxxx X. Xxxxx, Vice President Xxxxx X. Xxxxx, Vice President
and Secretary and Secretary
MID-WEST AUTOMATION ENTERPRISES, INC.,
an Illinois corporation
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Xxxxx X. Xxxxx, Vice President
and Secretary
"GUARANTORS" "GUARANTORS"
ASSEMBLY MACHINES, INC., ARMAC INDUSTRIES, CO., a Delaware
a Pennsylvania corporation corporation
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------------- --------------------------------
Xxxxx X. Xxxxx, Vice President Xxxxx X. Xxxxx, Vice President
and Secretary and Secretary
MID-WEST AUTOMATION SYSTEMS, XXXXXXXX MANUFACTURING CORPORATION,
INC., an Illinois corporation a New York corporation
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------------- --------------------------------
Xxxxx X. Xxxxx, Secretary Xxxxx X. Xxxxx, Vice President
and Secretary
THE BOATMEN'S NATIONAL BANK OF DRESDNER BANK AG CHICAGO AND GRAND
ST. LOUIS, as Agent and a Lender CAYMAN BRANCHES
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxx
-------------------------------- --------------------------------
Name: Name: Xxxx X. Xxxxxxx
----------------------------- ------------------------------
Title: Title: V.P.
----------------------------- ------------------------------
By: /s/ X. Xxxxxxxx
--------------------------------
Name: X. Xxxxxxxx
------------------------------
Title: VP
------------------------------
NOTE
The following page contains a list of Exhibits and Schedules which have
been intentionally omitted by the Registrant pursuant to Item 601(b)(2) of
Regulation S-K.
A copy of any omitted Exhibit or Schedule will be provided to the
Securities and Exchange Commission upon request.
Exhibit A Required Documents and Deliveries
Exhibit B Addition to Exhibit 13 of the Loan Agreement
