FIRST AMENDMENT
to
FOURTH AMENDED AND RESTATED CREDIT FACILITIES AGREEMENT
among
NATIONSBANK, N.A., as "Administrative Agent"
and
NATIONSBANK, N.A.
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 FIRST AMENDMENT to FOURTH AMENDED AND RESTATED CREDIT FACILITIES
AGREEMENT (this "Amendment") is entered into as of December 31, 1997, by and
among DT INDUSTRIES, INC., a Delaware corporation, DT INDUSTRIES (UK) II
LIMITED, ASSEMBLY TECHNOLOGIE & AUTOMATION GMBH, XXXXXX CANADA INC., and DT
CANADA INC. (separately and collectively, "Borrower"), NATIONSBANK, N.A.
("NationsBank"), as administrative agent ("Administrative Agent"), and the
Lenders.
RECITALS:
A. Borrower and Lenders are party to that certain Fourth Amended and Restated
Credit Facilities Agreement dated as of July 21, 1997 (the "Original Loan
Agreement").
B. DT Industries, Inc. (referred to herein and in the Original Loan Agreement
as "Domestic Borrower") desires to have the ability to repurchase its
common stock from time to time with the proceeds of Revolving Loan
Advances.
C. The Required Lenders have agreed to amend the Original Loan Agreement to
permit such stock repurchases on the terms and conditions contained herein.
AMENDMENT
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 Original Loan Agreement as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein have
the meanings given them in the Loan Agreement. All references to the "Agreement"
or the "Loan Agreement" in the Original Loan Agreement and in this Amendment
shall be deemed to be references to the Original Loan Agreement as it is
amended hereby and as it may be further amended, restated, extended, renewed,
replaced, or otherwise modified from time to time.
2. Conditions to Effectiveness of Amendment. This Amendment shall become
effective as of December 31, 1997 (the "Amendment Effective Date"), but only if
this Amendment has been executed by Borrower and the Required Lenders.
3. Amendments to Original Loan Agreement.
3.1. Use of Proceeds. Section 13.1 of the Original Loan Agreement is hereby
amended by inserting the following words after the words "Permitted
Acquisition": ", to pay all or any part of the consideration payable by Domestic
Borrower for any Permitted Stock Repurchase".
3.2. Investments. Section 14.1 of the Original Loan Agreement is hereby
amended by inserting the following Section 14.1.8:
"14.1.8. Any Investments that are Permitted Stock Repurchases."
3.3. Transactions with Affiliates. Section 14.7 of the Original Loan
Agreement is hereby amended by inserting the following sentence at the end of
the section: "Notwithstanding the foregoing two sentences, Domestic Borrower may
make any Permitted Stock Repurchase."
3.4. Minimum Net Worth. The text of Section 15.2 of the Original Loan
Agreement is hereby deleted in its entirety and the following is substituted in
lieu thereof:
"Domestic Borrower's Net Worth as of the end of each fiscal quarter of
Domestic Borrower shall at no time be less than an amount equal to (i)
90% of the amount which is (a) Domestic Borrower's Net Worth as of
June 29, 1997, reduced by (b) one Dollar for each Dollar paid by
Domestic Borrower, on a cumulative basis, to repurchase its common
stock in Permitted Stock Repurchases which have been consummated as of
the date of calculation, plus (ii) 50% of Domestic Borrower's
cumulative Net Income (but not any net loss) for the period commencing
June 29, 1997 and extending through and including the end of the
applicable fiscal quarter, plus (iii) 75% of the amount of the
cumulative net proceeds received by Domestic Borrower for the period
commencing June 29, 1997 and extending through and including the end
of the applicable fiscal quarter from the issuance of equity
securities of any Covered Person (other than in connection with any
employee benefit plan or employee compensation arrangement)."
3.5. Glossary. Exhibit 2.1 of the Original Loan Agreement is hereby amended
by inserting the following definition in proper alphabetical order:
"Permitted Stock Repurchase - any purchase by Domestic Borrower of its
own common stock made on reasonable terms in an arm's length
transaction (including open market purchases) which does not cause the
total expenditures by Domestic Borrower in all such transactions, in
the aggregate, to exceed $35,000,000."
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The definition of "Affiliate" in Exhibit 2.1 of the Original Loan Agreement is
hereby further amended by replacing the word "stockholder" in clause (a) of the
definition with the words "beneficial owner of 5% or more of the outstanding
capital stock".
3.6. Compliance Certificate. Schedule II of Exhibit 13.13 of the Original
Loan Agreement is hereby amended by deleting Section I (Minimum Net Worth) and
substituting in lieu thereof the Section I attached hereto as Exhibit A.
4. Effect of Amendment. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of
Administrative 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 Administrative
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.
5. 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 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 Administrative 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
Administrative Agent or any Lender arising from or in connection with the Loan
Agreement or the other Loan Documents.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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
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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.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the date
first above written.
DT INDUSTRIES, INC. a Delaware XXXXXX CANADA INC., a New Brunswick,
Corporation Canada corporation
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
---------------------------------- ---------------------------------
Xxxxx X. Xxxxx, Vice President - Xxxxx X. Xxxxx, Vice President,
Finance and Secretary Treasurer, and Secretary
DT CANADA INC. a New Brunswick, ASSEMBLY TECHNOLOGIE & AUTOMATION
Canada corporation GMBH, a German limited liability
company
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
---------------------------------- ---------------------------------
Xxxxx X. Xxxxx, Vice President, Xxxxx X. Xxxxx,
Treasurer and Secretary Geschaftsfuhrer
DT INDUSTRIES (UK) II LIMITED, a
corporation of England and Wales
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx, Director
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NATIONSBANK, N.A., as Administrative DRESDNER BANK AG NEW YORK AND
Agent and a Lender GRAND CAYMAN BRANCHES
By: /s/ Xxxx X. Xxxxxxx By: /s/ Brigitte Sacin
---------------------------------- ---------------------------------
Xxxx X. Xxxxxxx Xxxxxxxx Sacin
Vice President Assistant Treasurer
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Xxxx X. Xxxxxxx
V.P.
THE BANK OF NEW YORK THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx X'Xxxx By: /s/ F.C.H. Xxxxx
---------------------------------- ---------------------------------
Xxxxxxx X'Xxxx F.C.H. Xxxxx
Vice President Senior Manager Loan Operations
THE SAKURA BANK, LIMITED BANK OF TOKYO-MITSUBISHI
NEW YORK BRANCH
By: /s/ Xxxxxxxx Xxxxxxxx By: /s/ Xxxxxxxxx X. Xxxxx
---------------------------------- ---------------------------------
Xxxxxxxx Xxxxxxxx Xxxxxxxxx X. Xxxxx
Joint General Manager Attorney In Fact
THE LONG-TERM CREDIT BANK OF THE SUMITOMO BANK, LIMITED
JAPAN, LTD.
By: /s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxx
---------------------------------- ---------------------------------
Xxxxxx X. Xxxxxx, Xx. Xxxxxx X. Xxxxxx
Senior Vice President Vice President
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
Vice President & Manager
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NATIONAL CITY BANK
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxx
Vice President
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Exhibit A
I. Minimum Net Worth (Section 15.2)
A. Total Assets $___________
B. Total Liabilities (Excludes Convertible Preferred
Securities) $___________
C. Net Worth (Item 1.A. minus 1.B) $___________
D. Minimum Net Worth Required
1. Net Worth at June 29, 1997 $255,267,000
2. Total expended by Domestic Borrower since June 29,
1997 in Permitted Stock Repurchases $___________
3. Adjusted Net Worth (D.1 minus D.2) $___________
4. Minimum percentage to maintain 90%
5. Minimum Net Worth Required Prior to
Adjustment for Net Income (D.3*D.4) $___________
6. Adjustments for Net Income
(i) 50% of Net Income in Prior Fiscal Years $___________
(ii) 50% of Net Income in Current Fiscal Year $___________
(iii) Total Adjustments for Net Income (D.6.(i)
plus D.6.(ii)) $___________
7. 75% of Cumulative Net Proceeds of Equity
Issuances Since Effective Date $___________
8. Minimum Net Worth Required by Section 15.2
(Sum of Items I.D.5, I.D.6.(iii), and I.D.7) $___________
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