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EXHIBIT 10.19
ELEVENTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT
FACILITIES AGREEMENT
THIS ELEVENTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT
FACILITIES AGREEMENT (this "Amendment") is entered into as of August 2, 2001, 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 has requested that the Lenders waive certain
Events of Default, and the Lenders have agreed to waive such Events of
Default, subject to the terms and conditions contained herein.
(c) Borrower, Administrative Agent, and the Lenders desire to
amend the Credit Agreement to provide for, among other things, (i)
modification to certain pricing terms, (ii) revisions to existing
financial covenants, (iii) an extension of the final maturity date for
the loans made thereunder, and (iv) other modifications described
below, all 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. WAIVER. Subject to the satisfaction of the conditions of
effectiveness set forth in Section 12 of this Amendment and the other conditions
contained herein, the Lenders hereby waive any Event of Default under Section
16.1. of the Credit Agreement which may occur or may have occurred as a result,
directly or indirectly, of (a) the failure of Borrower to comply with Sections
15.2., 15.3., 15.4., 15.5., and 15.6. or any of them for the fiscal quarters
ending on or about Xxxxx 00, 0000, xxx Xxxx 00, 0000, (x) the failure of the
Borrower to comply with financial covenants under the Bond Documents for the
fiscal quarters ending on or about March 25, 2001, and June 24, 2001, (c) the
failure of Borrower to comply with the other terms and conditions of the Bond
Documents prior to the date hereof, and (d) any Event of Default arising from
the Borrower's requests for Advances of the Revolving Loan while any of the
above Events of Default existed (the "Existing Events of Default"). The waiver
provided in this Section 1
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shall not be and shall not be deemed to be a waiver of any Defaults or Events of
Default under the Credit Agreement other than the Existing Events of Default.
2. WAIVER TERMINATION. Notwithstanding anything in Section 1 above to
the contrary, if at any time Fleet National Bank, formerly BankBoston, N.A.
("Fleet") shall take any collection action under the Bond Documents, the waiver
provided in Section 1 above shall immediately be null and void and of no further
force or effect, and the Administrative Agent and the Lenders may pursue any
rights and remedies afforded to them under the Loan Documents after the
occurrence and during the continuance of an Event of Default (including without
limitation an Event of Default deemed at any time to be an "Existing Event of
Default" pursuant to Section 1 above) as if the waiver provided in Section 1
above had not occurred.
3. AMENDMENTS TO THE CREDIT AGREEMENT. The Credit Agreement is hereby
amended as follows:
(a) New Sections 3.8, 3.9 and 3.10 are hereby added
immediately following Section 3.7, as follows:
3.8 REDENOMINATION OF DEUTSCHE MARKS. Each obligation under
this Agreement of a party to this Agreement which has been
denominated in Deutsche Marks shall be redenominated into the
Euro Unit at the end of the Interest Period in effect on
August 2, 2001, in accordance with EMU Legislation. From and
after the date of such redenomination, notwithstanding
anything in this Agreement or any other Loan Document to the
contrary, (a) German Borrower may only obtain Revolving
Advances denominated in the Euro Unit, (b) Letters of Credit
issued for the account of German Borrower may be denominated
only in the Euro Unit, (c) any amount payable by Borrower to
the Administrative Agent or any of the Lenders under this
Agreement in Deutsche Marks shall be paid in Euro Units, (d)
any amount payable by the Administrative Agent to the Lenders
under this Agreement in Deutsche Marks shall be paid in Euro
Units, and (e) each reference in this Agreement to an amount
(or an integral multiple thereof) of Deutsche Marks shall be
replaced by a reference to such reasonably comparable and
convenient amount (or an integral multiple thereof) of Euro
Units as the Administrative Agent may specify.
3.9 REISSUANCE OF NOTES. Concurrent with the redenomination
described in Section 3.8 above, (a) German Borrower shall
execute and deliver to each Lender a promissory note payable
to the order of such Lender in a maximum principal amount
denominated in Euro Units, having a Dollar Equivalent Amount
equal to its prorata share of the then effective sublimit of
the Aggregate Offshore Currency Revolving Loan Commitment with
respect to Deutsche Marks, and (b) each Lender will return to
German Borrower the promissory note previously delivered to
such Lender evidencing its pro rata share of amounts owing by
German Borrower under the Aggregate Offshore Currency
Revolving Loan Commitment.
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3.10 CONTINUITY OF CONTRACT. No implementation of the EMU or
change in currency nor any economic consequences resulting
therefrom shall (a) give rise to any right to terminate
prematurely, contest, cancel, rescind, alter, modify or
renegotiate the provisions of this Agreement or (b) discharge,
excuse or otherwise affect the performance of any obligations
of Borrower under this Agreement or any other Loan Document.
(b) The introductory language in Section 4.3. is entirely
amended, as follows:
The "Adjusted Eurodollar Rate" for any Eurodollar Loan is the
lesser of (a) the Eurodollar Rate plus the applicable
Eurodollar Increment, and (b) the Maximum Rate, and the
"Adjusted Base Rate" for any Base Rate Loan shall be the
lesser of (a) the Prime Rate plus the applicable Base Rate
Increment, and (b) the Maximum Rate. Beginning September 24,
1999, and continuing through and including October 9, 2000,
the Eurodollar Increment shall be 3.00%, and the Base Rate
Increment shall be 1.875%. Beginning October 10, 2000, and
continuing through and including February 14, 2001, the
Eurodollar Increment shall be 3.50%, and the Base Rate
Increment shall be 2.375%. Beginning February 15, 2001, and
continuing through and including August 2, 2001, the
Eurodollar Increment shall be 3.75%, and the Base Rate
Increment shall be 2.625%. Beginning August 2, 2001, and
continuing through and including December 31, 2001, the
Eurodollar Increment shall be 6.00%, and the Base Rate
Increment shall be 3.00%. Beginning January 1, 2002, and
continuing at all times thereafter, the Eurodollar Increment
shall be 6.50%, and the Base Rate Increment shall be 3.50%. At
all times before September 24, 1999, the Eurodollar Increment
and the Base Rate Increment shall be as prescribed for the
applicable Level in the following table:
(c) The second sentence of Section 5.2. is entirely amended,
as follows:
The "Letter of Credit Fee" for any Letter of Credit shall be
equal to a percentage, per annum, of the Dollar Equivalent
Amount of the aggregate undrawn amount of such Letter of
Credit, payable quarterly in advance on the day of its
issuance and as of the first day of each calendar quarter
thereafter, which percentage shall be the Base Rate Increment.
(d) Section 6.1.2. is entirely amended, as follows:
6.1.2. PRINCIPAL. Borrower shall repay the entire amount of
the Aggregate Revolving Loan as then outstanding on July 2,
2002. Canadian Borrowers shall repay the entire amount of the
Canadian Term Loan on July 2, 2002.
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(e) Section 6.2.3. is amended by entirely amending the first
sentence thereof, as follows:
Promptly upon receipt by Borrower or any Subsidiary of
Borrower of the proceeds from any sale, transfer, exchange,
lease, or other dispositions of any of the assets of Borrower
or any Subsidiary of Borrower (except for sales in the
ordinary course of business and sales of worn out or obsolete
assets to be immediately replaced by assets of equal or
greater value or quality), Borrower shall prepay the Loans
from the Net Proceeds of such transaction, which prepayment
shall be in a principal amount equal to (a) 100% of such Net
Proceeds until satisfaction of the Scheduled Reduction (as
defined in Section 6.2.5.) required to be made on the last day
of the calendar month during which such Net Proceeds are
received, and (b) 80% of such Net Proceeds after satisfaction
of the Scheduled Reduction required to be made on the last day
of the calendar month during which such Net Proceeds are
received. Any such prepayment shall be applied to the
Aggregate Canadian Term Loan and the Aggregate Revolving Loan,
pro rata based upon the respective principal amounts of the
Aggregate Canadian Term Loan and the Aggregate Revolving Loan
Commitment at the time of such prepayment, and shall be
applied to the Scheduled Reductions in the order of their
maturity. Notwithstanding anything herein to the contrary, the
Aggregate Revolving Loan Commitment shall be permanently
reduced by the amount of any such prepayment applied to the
Aggregate Revolving Loan.
(f) New Sections 6.2.4., 6.2.5. and 6.26 are added to the
Credit Agreement immediately following Section 6.2.3. thereof, as
follows:
6.2.4. PREPAYMENTS FROM WORKING CAPITAL. Promptly upon
delivery to the Administrative Agent of the monthly financial
information required hereunder, commencing September 30, 2001,
which indicates cash receipts received during the applicable
month and attributable to Assembly Technologies & Test, Inc.'s
contract with Detroit Diesel (the "Contract"), Borrower shall
prepay the Loans in an amount equal to 30% of such cash
receipts; provided that the aggregate amount of prepayments
hereunder shall not exceed 30% of the Contract Working Capital
Contribution (as defined below). For purposes hereof, the
"Contract Working Capital Contribution" shall mean the result
obtained by multiplying (a) the total amount of revenue to be
received under the Contract by (b) one minus the gross margin
realized under the Contract (expressed as a percentage). Any
such prepayment shall be applied to the Aggregate Canadian
Term Loan and the Aggregate Revolving Loan, pro rata based
upon the respective principal amounts of the Aggregate
Canadian Term Loan and the Aggregate Revolving Loan Commitment
at the time of such prepayment. Notwithstanding anything
herein to the contrary, the Aggregate Revolving Loan
Commitment shall be permanently reduced by the amount of any
such prepayment applied to the Aggregate Revolving Loan.
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6.2.5. OTHER PREPAYMENTS. In addition to any other payments or
prepayments made hereunder, Borrower shall prepay the Loans on
or before each date set forth below in such amounts as set
forth next to each such date below:
Prepayment Date Amount of Prepayment as of Each
--------------- Prepayment Date
---------------
August 31, 2001 $0
September 30, 2001 $5,000,000
October 31, 2001 $5,000,000
November 30, 2001 $5,000,000
December 31, 2001 $5,000,000
January 31, 2002 $2,000,000
February 28, 2002 $2,000,000
March 31, 2002 $2,000,000
April 30, 2002 $2,000,000
May 31, 2002 $2,000,000
June 30, 2002 $2,000,000
Any such prepayment shall be applied to the Aggregate Canadian
Term Loan and the Aggregate Revolving Loan, pro rata based
upon the respective principal amounts of the Aggregate
Canadian Term Loan and the Aggregate Revolving Loan Commitment
at the time of such prepayment. Notwithstanding anything
herein to the contrary, the Aggregate Revolving Loan
Commitment shall be permanently reduced by the amount of any
such prepayment applied to the Aggregate Revolving Loan. The
prepayments described in this Section 6.2.5. that are required
to be paid during the calendar year 2001 are herein
collectively referred to as the "2001 Reductions;" each of the
prepayments described in this Section 6.2.5. are herein
individually referred to as a "Scheduled Reduction" and
collectively referred to as the "Scheduled Reductions."
6.2.6. PREPAYMENT FROM EXCESS CASH. At any time the amount of
cash and cash equivalents held by Domestic Borrower and its
Subsidiaries in the United States exceeds $7,000,000, Borrower
will promptly prepay the Revolving Loan Advances in an amount
equal to such excess. Such prepayment will not result in a
permanent reduction of the Revolving Loan Commitment.
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(g) A new Section 6.8 is added to the Credit Agreement
immediately following Section 6.7. thereof, as follows:
6.8. TRUE-UP IN CONNECTION WITH ASSET SALES. Concurrent with
the payment of any prepayment required to be paid under
Section 6.2.3(b) hereof, and in addition to such prepayment,
Borrower shall prepay the Loans in an amount equal to the
amount of the applicable Net Proceeds, if any, required to be
paid by Administrative Agent to Fleet National Bank, formerly
BankBoston, N.A. ("Fleet") pursuant to that certain
Intercreditor Agreement dated as of December 1, 1999, by and
among Borrower, certain of its Subsidiaries, Fleet, Lenders,
and Administrative Agent.
(h) A new Section 7.13. is added to the Credit Agreement
immediately following Section 7.12. thereof, as follows:
7.13. TERMINATION OF EURODOLLAR OPTION. Notwithstanding
anything in this Agreement or any other Loan Document to the
contrary, beginning on August 2, 2001, and continuing at all
times thereafter, (a) each Revolving Loan Advance (other than
Advances made as part of Offshore Currency Loans) shall be a
Base Rate Advance, and (b) no Eurodollar Loan (other than
Offshore Currency Loans) may be continued for additional
Interest Periods, and no Base Rate Loan may be converted to a
Eurodollar Loan.
(i) Section 13.13.3. is entirely amended, as follows:
13.13.3. MONTHLY FINANCIAL STATEMENTS AND INFORMATION. Within
45 days after the end of each March, June, September and
December and within 30 days after the end of each other
calendar month, unaudited consolidated and consolidating (on a
company by company basis) financial statements of Domestic
Borrower and its Subsidiaries for the month then ended, in
each case containing a balance sheet, income statement, and
statement of cash flows and accompanied by (a) a report
comparing actual consolidated results of operations of
Domestic Borrower and its subsidiaries for such month compared
to budgeted performance, (b) a back-log report as of the end
of such month from each Subsidiary of Domestic Borrower, (c)
the ATT-NA Schedule of Completion Report for such month,
detailing, among other things, collections from the Detroit
Diesel contract during such month, and (d) a Compliance
Certificate of the Chief Financial Officer of Domestic
Borrower.
(j) Section 14.6. is entirely amended, as follows:
14.6. DISPOSAL OF PROPERTY. Sell, transfer, exchange, lease,
or otherwise dispose of any of its assets (except for sales in
the ordinary course of business and sales of worn out or
obsolete assets to be immediately replaced by assets of equal
or greater value or quality) including any shares of stock of
any Subsidiaries of Domestic Borrower or any Foreign Borrower
that are not pledged to Administrative Agent for the benefit
of Lenders,
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except for sales and other dispositions of assets approved by
consent of the Required Lenders.
(k) Section 14.11. is entirely amended, as follows:
14.11. CAPITAL EXPENDITURES. Make Capital Expenditures (for
all Covered Persons) in excess of the applicable amount in the
following table for the period indicated in the following
table:
During the period The applicable amount is
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From June 25, 2001 through $3,495,000
September 23, 2001
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From June 25, 2001 through $5,514,000
December 23, 2001
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From June 25, 2001 through $7,989,000
March 24, 2002
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From June 25, 2001 through July 2, $9,786,000
2002
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(l) Section 15.1. is amended by amending and restating the
definitions of "EBITDA" and "Interest Expense" found therein in their
entirety, and by adding the definition of "Write-Down Adjustment", as
follows:
"EBITDA" means, for any period of calculation, an amount equal
to the sum of (i) Net Income, (ii) federal, state and local
income tax expense (exclusive of any such tax benefit related
to the Domestic Borrower's special, one-time charges taken
during the fourth quarter of fiscal year 2001), (iii) Interest
Expense (including the interest component of payments on
Capital Leases and interest with respect to those certain
7.16% Convertible Junior Subordinated Deferrable Interest
Debentures) in such period, (iv) depreciation and amortization
expense and other non-cash charges that reduced net income
during such period, (v) losses on the sale or other
disposition of assets other than in the ordinary course of
business if included in the calculation of net income, (vi)
extraordinary losses if included in the calculation of net
income, minus (a) gains on the sale or other disposition of
assets other than in the ordinary course of business if
included in net income, and (b) extraordinary gains if
included in net income, all as accrued in such period, plus
(vii) one-time cash charges not to exceed $2,000,000 for
professional fees incurred outside of the ordinary course of
business during such period in connection with the
investigation of accounting irregularities, related litigation
and administrative proceedings, and preparation of the annual
audited financial statements of Domestic Borrower and its
Subsidiaries for
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fiscal year 2000, restated financial statements for fiscal
years 1997, 1998 and 1999, the interim quarters thereof and
the first three quarters of fiscal 2000, and the necessary SEC
filings.
Additionally, for the quarters ended September 2001, December
2001 and March 2002 "EBITDA" shall include an add back to Net
Income of $37,300,000 plus or minus the Write Down Adjustment,
as applicable, to reflect the Domestic Borrower's special,
one-time charges taken during the fourth quarter of fiscal
year 2001.
"Interest Expense" means, for any period of calculation, all
interest whether paid in cash or accrued as a liability, but
without duplication, on Indebtedness of Domestic Borrower and
its consolidated Subsidiaries, provided that, solely with
respect to those certain 7.16% Convertible Junior Subordinated
Deferrable Interest Debentures, such interest shall only
constitute Interest Expense to the extent paid in cash during
such period.
"Write-Down Adjustment" means, as applicable, (a) subtracting
the amount, if any, by which write downs of Domestic
Borrower's assets, as reflected on Domestic Borrower's
beginning balance sheet for fiscal year 2002, exceed
$37,300,000, but in no event to exceed $4,700,000, and (b)
adding the amount, if any, by which write downs of Domestic
Borrower's assets, as reflected on Domestic Borrower's
beginning balance sheet for fiscal year 2002, are less than
$37,300,000.
(m) Sections 15.2., 15.3., 15.4., 15.5. and 15.6. are entirely
amended, as follows:
15.2. MINIMUM NET WORTH. Domestic Borrower's Net Worth as of
the end of each fiscal quarter of Domestic Borrower shall at
no time be less than $88,821,000 (as adjusted up or down, as
the case may be, by the Write-Down Adjustment) plus (i) 50% of
Domestic Borrower's cumulative Net Income (but not any net
loss) for the period commencing June 25, 2001, and extending
through and including the end of the applicable fiscal quarter
and (ii) 75% of the amount of the cumulative net proceeds
received by Domestic Borrower for the period commencing June
25, 2001, 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).
15.3. MAXIMUM FUNDED DEBT TO EBITDA RATIO. The ratio of
Domestic Borrower's Funded Debt as of the end of any fiscal
quarter of Domestic Borrower to Domestic Borrower's EBITDA for
the four consecutive fiscal quarters then ended shall not
exceed the applicable ratio in the following table:
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During the period The applicable ratio is
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From June 25, 2001 through 3.76 to 1.0
September 23, 2001
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From September 24, 2001 through 3.13 to 1.0
December 23, 2001
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From December 24, 2001 through 2.49 to 1.0
March 24, 2002
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After March 24, 2002 2.07 to 1.0
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15.4 MINIMUM FIXED CHARGE COVERAGE. The ratio of Domestic
Borrower's Adjusted EBITDA to Domestic Borrower's Fixed
Charges, calculated at the end of each fiscal quarter of
Domestic Borrower for the four consecutive fiscal quarters
then ended, shall not be less than the applicable ration in
the following table:
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During the period The applicable ratio is
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From June 25, 2001 through 1.63 to 1.0
September 23, 2001
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From September 24, 2001 through 1.60 to 1.0
December 23, 2001
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From December 24, 2001 through 1.69 to 1.0
March 24, 2002
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After March 24, 2002 1.76 to 1.0
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15.5. MINIMUM EBITDA TO INTEREST EXPENSE RATIO. The ratio of
Domestic Borrower's EBITDA to Domestic Borrower's Interest
Expense, calculated at the end of each fiscal quarter of
Domestic Borrower for the four consecutive fiscal quarters
then ended, shall not be less than the applicable ratio in the
following table:
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During the period The applicable ratio is
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From June 25, 2001 through 1.91 to 1.0
September 23, 2001
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From September 24, 2001 through 2.08 to 1.0
December 23, 2001
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From December 24, 2001 through 2.63 to 1.0
March 24, 2002
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After March 24, 2002 3.32 to 1.0
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15.6. MINIMUM EBITDA. Domestic Borrower's EBITDA, calculated
at the end of each fiscal month for the twelve consecutive
fiscal months then ended, shall not be less than the
applicable amount in the following table as of the applicable
date of calculation set forth in the following table:
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Fiscal Month The applicable amount is
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September 2001 $26,692,531
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October 2001 $28,139,915
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November 2001 $30,228,900
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December 2001 $27,588,998
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January 2002 $30,016,479
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February 2002 $32,075,096
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March 2002 $31,093,166
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April 2002 $33,397,709
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May 2002 $34,250,965
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June 2002 $33,723,738
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(n) Section 19.2. is amended by entirely amending the fourth
sentence thereof, as follows:
The foregoing notwithstanding, no such amendment,
modification, waiver or consent shall, (a) 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%, 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.), (b) 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 66
2/3%: (i) permit Domestic Borrower or any Subsidiary to
provide cash collateral to Fleet (or any issuer of a
replacement letter of credit in respect of the letter of
credit issued by Fleet under the Bond Documents) in excess of
what is required under the Bond Documents, as in effect on the
date hereof, (ii) permit the issuance of a Letter of Credit to
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replace the letter of credit issued by Fleet under the Bond
Documents, or (iii) permit the making of a Revolving Loan to
satisfy the reimbursement obligations of Domestic Borrower or
any Subsidiary with respect to the letter of credit issued by
Fleet under the Bond Documents, and (c) 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.
(o) The following definitions are inserted in Exhibit 2.1 to
the Credit Agreement, each in the appropriate alphabetical order, as
follows:
EMU - the economic and monetary union as contemplated in the
Treaty of Rome of March 25, 1957, as amended by the Single
European Act of 1986 and the Maastricht Treaty (which was
signed at Maastricht on February 7, 1992 and came into force
on November 1, 1993), as amended from time to time.
EMU LEGISLATION - legislative measures of the European Council
for the introduction of, changeover to, or operation of, a
single or unified European currency, being in part the
implementation of the third stage of EMU.
EURO - the single currency of each state described as a
"Participating Member State" in any EMU Legislation.
EURO UNIT - the currency unit of the Euro.
(p) Exhibit 13.13 to the Credit Agreement is amended and
restated in the form of, and all references in the Credit Agreement to
Exhibit 13.13 are hereby deemed to be references to, the attached
Exhibit 13.13.
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4. AMENDMENT FEE. Borrower shall pay to the Administrative Agent, for
the pro rata benefit of each Lender, an amendment fee (the "Amendment Fee"),
earned and due and payable as of the date of this Amendment, which fee shall be
equal to the product of (a) 1.00% multiplied by (b) an amount equal to the sum
of (i) such Lender's portion of the Commitment plus (ii) the aggregate amount of
the Canadian Term Loan owed to such Lender as of the date of this Amendment.
5. CONTINGENT FEE. If Borrower fails to cause the 2001 Reductions to be
paid, in full, on or before December 31, 2001, an additional amendment fee shall
be earned and due and payable to the Administrative Agent, for the pro rata
benefit of each Lender, on January 2, 2002, which fee shall be equal to the
product of 1.00% of the sum of (a) the aggregate amount of the Canadian Term
Loan owed to such Lender, plus (b) the greater of (i) such Lender's portion of
the Commitment or (ii) the principal amount of Revolving Loan Advances
outstanding and due and owing to such Lender, in each case as of December 31,
2001. Borrower acknowledges and agrees that the charging of this fee is not and
shall not be deemed to be a waiver of any Event of Default arising from
Borrower's failure to make any prepayment required in connection with any of the
2001 Reductions.
6. FACILITY FEE. If Borrower fails to cause the Loan Obligations to be
paid, in full, and all commitments to lend under the Credit Agreement to be
cancelled, before June 2, 2002, an additional facility fee shall be fully earned
and due and payable to the Administrative Agent, for the pro rata benefit of
each Lender on such date, which fee shall be equal to the product of 1.00% of
the sum of (a) the aggregate amount of the Canadian Term Loan owed to such
Lender, plus (b) the greater of (i) such Lender's portion of the Commitment or
(ii) the principal amount of Revolving Loan Advances outstanding and due and
owing to such Lender, in each case as of June 2, 2002.
7. PREPAYMENT FROM TAX REFUND. In addition to any other payments or
prepayments made under the Credit Agreement, Borrower shall prepay the Loans in
an amount equal to $3,500,000 (the "Additional Reduction"), which prepayment
shall be due and payable in two equal installments in the amount of $1,750,000
each, one such installment due and payable on August 31, 2001, and one such
installment due and payable on September 15, 2001. The Additional Reduction
shall be applied to the Aggregate Canadian Term Loan and the Aggregate Revolving
Loan, pro rata based upon the respective principal amounts of the Aggregate
Canadian Term Loan and the Aggregate Revolving Loan Commitment at the time of
such prepayment. Notwithstanding anything in the Credit Agreement to the
contrary, the Aggregate Revolving Loan Commitment shall be permanently reduced
by the amount of the Additional Reduction applied to the Aggregate Revolving
Loan.
8. 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 (other than with respect to
the Existing Events of Default) 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.
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9. 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.
10. 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.
(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 10 shall survive termination of
this Amendment and the other Loan Documents.
11. REPRESENTATIONS AND WARRANTIES. By its execution and delivery
hereof, the Borrower represents and warrants to the Lenders that, as of the date
hereof:
(a) after giving effect to this Amendment, the representations
and warranties contained in the Credit Agreement and the other Loan
Documents are true and correct on and as of the date hereof as if made
on and as of such date; and
(b) after giving effect to this Amendment, no event has
occurred and is continuing which constitutes a Default or an Event of
Default.
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12. CONDITIONS OF EFFECTIVENESS. This Amendment shall be effective as
of August 2, 2001, so long as all corporate actions of Borrower and the
Significant Subsidiaries taken in connection herewith and the transactions
contemplated hereby shall be satisfactory in form and substance to
Administrative Agent and Lenders, and each of the following conditions precedent
shall have been satisfied:
(a) All reasonable out-of-pocket fees and expenses in
connection with the Loan Documents, including this Amendment, including
legal and other professional fees and expenses incurred on or prior to
the date of this Amendment by Administrative Agent or any Lender,
including, without limitation, the fees and expenses of Xxxxxxxx
Xxxxxxxx & Xxxxxx P.C. and Xxxxxx Xxxxxxxx L.L.P., shall have been
paid.
(b) Administrative Agent and each Lender shall have received
each of the following:
(i) a certificate of the Borrower, in form and
substance satisfactory to Administrative Agent, Required
Lenders and Administrative Agent's counsel, certifying (A) as
to the accuracy in all material respects, after giving effect
to this Amendment, of the representations and warranties set
forth in the Credit Agreement, this Amendment and the other
Loan Documents, and (B) that there exists no Default or Event
of Default, after giving effect to this Amendment, and the
execution, delivery and performance of this Amendment will not
cause a Default or Event of Default;
(ii) payment of the Amendment Fee;
(iii) certified copies of resolutions of the boards
of directors of the Borrower and each Significant Subsidiary
authorizing the transactions contemplated by this Amendment;
and
(iv) such other documents, certificates and
instruments as the Administrative Agent shall require prior to
the date hereof.
13. 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.
14. 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.
15. 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.
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16. 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.
17. 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.
18. 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]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
the date first above written.
DT INDUSTRIES, INC., XXXXXX INC. formerly Xxxxxx Canada Inc.,
a Delaware corporation a New Brunswick, Canada corporation
By: Xxxx X. Xxxxxx By: Xxxx X. Xxxxxx
-------------------------------- ------------------------------------
Xxxx X. Xxxxxx Xxxx X. Xxxxxx
Xx. Vice President/CFO Sr. Vice President/CFO
DT CANADA INC., ASSEMBLY TECHNOLOGIE &
a New Brunswick, Canada corporation AUTOMATION GMBH, a German
limited liability company
By: Xxxx X. Xxxxxx By: Xxxx X. Xxxxxx
-------------------------------- ------------------------------------
Xxxx X. Xxxxxx Xxxx X. Xxxxxx
Xx. Vice President/CFO Sr. Vice President/CFO
DT INDUSTRIES (UK) II LIMITED,
a corporation of England and Wales
By: Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
Xx. Vice President/CFO
17
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: By: Xxxxxx X. Xxxxx
-------------------------------------- ------------------------------
Xxxxxxx X. Xxxxxxxxxxx, XX Xxxxxx X. Xxxxx
Managing Director Vice President
By: Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
Vice President
XXXXXXX LYNCH, PIERCE, THE BANK OF NOVA SCOTIA
XXXXXX & XXXXX, INCORPORATED
By: Xxxxxxx X. Xxxxxx By: F.C.H. Xxxxx
-------------------------------------- ------------------------------
Xxxxxxx X. Xxxxxx F.C.H. Xxxxx
Managing Director Senior Manager Loan Operations
SUMITOMO MITSUI BANKING
CORPORATION FIRSTAR BANK, N.A.
By: Xxxxxxx X. Xxxx By: Xxxxxxx X. Xxxxxxx
-------------------------------------- ------------------------------
Xxxxxxx X. Xxxx Xxxxxxx X. Xxxxxxx
General Manager Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: Xxxxxxx Xxxx
--------------------------------------
Xxxxxxx Xxxx
Duly Authorized Signatory
NATIONAL CITY BANK
By: Xxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxx
Vice President
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ACKNOWLEDGED AND AGREED:
ADVANCED ASSEMBLY AUTOMATION, INC.
By: Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Vice President
ASSEMBLY TECHNOLOGY & TEST, INC.
By: Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Vice President
DETROIT TOOL AND ENGINEERING COMPANY
By: Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Vice President
DTI LEBANON SUBSIDIARY, INC.
By: Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Vice President
XXXXXXXX MANUFACTURING CORPORATION
By: Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Vice President
PHARMA GROUP, INC.
By: Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Vice President
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MID-WEST AUTOMATION ENTERPRISES, INC.
By: Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Vice President
MID-WEST AUTOMATION SYSTEMS, INC.
By: Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Vice President
SENCORP SYSTEMS, INC.
By: Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Vice President
VANGUARD TECHNICAL SOLUTIONS, INC.
By: Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Vice President
ARMAC INDUSTRIES CO.
By: Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Vice President
ASSEMBLY MACHINES, INC.
By: Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Vice President
