EXHIBIT 99.3
TWELFTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT
FACILITIES AGREEMENT
THIS TWELFTH AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT FACILITIES
AGREEMENT (this "Amendment") is entered into as of May , 2002, 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. 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 December 23, 2001, March 24, 2002, and June 30, 2002, and the
fiscal months ending on or about January 31, 2002 through and including June 30,
2002, (b) the failure of the Borrower to comply with financial covenants under
the Bond Documents for the fiscal quarters ending on or about December 23, 2001,
March 24, 2002, and June 30, 2002, and the fiscal months ending on or about
January 31, 2002 through and including June 30, 2002, (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 Revolving Loan Advances while any of the above Events of
Default existed (the "Existing Events of Default"). The waivers provided in this
Section 1 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. The waivers set forth in
this Section 1 shall be rescinded without further action or notice in the event
the Borrower fails to satisfy the conditions precedent to the effectiveness of
all other provisions of this Amendment on or prior to July 2, 2002.
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 and
all 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 3.2.7 and 3.2.8. are added to the Credit
Agreement immediately following Section 3.2.6. thereof, as follows:
3.2.7. MANDATORY COMMITMENT REDUCTION. On the Twelfth
Amendment Effective Date, the Aggregate Revolving Loan
Commitment shall be reduced to $70,000,000, and Borrower shall
make any necessary prepayments of principal, together with
accrued and unpaid interest thereon, to cause the outstanding
principal under the Aggregate Revolving Loan Commitment not to
exceed $70,000,000. Notwithstanding anything to the contrary
contained in Section 3.1, on the Twelfth Amendment Effective
Date, the Aggregate Offshore Currency Revolving Loan
Commitment shall be reduced to $60,000,000, and Borrower shall
make any necessary prepayments of principal, together with
accrued and unpaid interest thereon, to cause the outstanding
principal under the Aggregate Offshore Currency Revolving Loan
Commitment not to exceed $60,000,000.
3.2.8. LIMITATION ON PRIORITY ADVANCES. Notwithstanding
anything herein to the contrary, no Priority Advance shall be
made if, after giving effect thereto, the sum of (a) the
aggregate outstanding principal amount of all Priority
Advances plus (b) the aggregate Dollar Equivalent Amount of
the Letter of Credit Exposure with respect to all Priority
Letters of Credit, would exceed the Priority Advance Asset
Coverage Base.
(b) Section 3.7 is amended by adding the following sentence at
the end of such Section, as follows:
Notwithstanding anything herein to the contrary, no Priority
Letter of Credit shall be made if, after giving effect
thereto, the sum of (a) the aggregate outstanding principal
amount of all Priority Advances plus (b) the aggregate Dollar
Equivalent Amount of the Letter of Credit Exposure with
respect to all Priority Letters of Credit, would exceed the
Priority Advance Asset Coverage Base.
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(c) 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 on the Twelfth
Amendment Effective Date, and continuing at all times
thereafter, the Eurodollar Increment shall be 4.00%, and the
Base Rate Increment with respect to all Advances other than
Priority Advances shall be 3.50%, and the Base Rate Increment
with respect to Priority Advances shall be 4.00%. Except as
set forth in Section 7.13 below, the Borrower may elect
Advances to be either Eurodollar Advances or Base Rate
Advances.
(d) A new Section 5.5 is added to the Credit Agreement
immediately following Section 5.4 thereof, as follows:
5.5. AGENCY FEE. Borrower agrees to pay to the Administrative
Agent for its own account an agency fee in the amount of
$150,000 per year payable annually in advance beginning on the
Twelfth Amendment Effective Date, which fee shall be
nonrefundable when paid. Such fee shall be in replacement of
any fees heretofore payable to the Administrative Agent under
fee letters between the Borrower and the Administrative Agent
relating to the Credit Agreement, which fee letters shall be
superceded, replaced and restated in their entirety by the
terms of this Credit Agreement.
(e) Section 6.1.2. is entirely amended, as follows:
6.1.2. PRINCIPAL. Borrower shall repay the entire amount of
the Aggregate Revolving Loan then outstanding on July 2, 2004.
Canadian Borrowers shall repay the entire amount of the
Canadian Term Loan on July 2, 2004.
(f) Section 6.2.1. is entirely amended by adding the following
sentence at the end of such Section, as follows:
Notwithstanding anything herein to the contrary, any
prepayment of the Aggregate Revolving Loan pursuant to this
Section 6.2.1 shall first be applied to pay the Priority
Advances prior to application to any other Aggregate Revolving
Loans and shall not constitute a permanent reduction in the
Aggregate Revolving Loan Commitment other than in accordance
with the Scheduled Reductions.
(g) Section 6.2.3. is entirely amended, as follows:
6.2.3. MANDATORY PREPAYMENT FROM ASSET SALES. 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 as
to which replacement shall be commenced with assets of equal
or greater value or quality within 90 days and shall be
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diligently thereafter pursued), Borrower shall repay the Loans
from the Net Proceeds of such transaction, which prepayment
shall be in the principal amount equal to 100% of such Net
Proceeds. Any such prepayment shall be applied first, to
repayment of up to $2,000,000 in the aggregate for all such
prepayments of Scheduled Reductions in order of their maturity
during the term of this Agreement, second to the Aggregate
Revolving Loan to the extent of any outstanding Priority
Advances, and third, if there are no outstanding Priority
Advances, 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 pro rata with respect to all
future Scheduled Reductions due under such Loans.
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. For purposes hereof, "Net Proceeds" means the
aggregate amount of cash and cash equivalents received by
Borrower or any Subsidiary of Borrower in connection with any
transaction described in this Section 6.2.3. minus necessary
and reasonable fees, costs and expenses and related taxes paid
or payable as a result of such transaction, provided that
mandatory prepayments shall not be required in connection with
Net Proceeds received from (i) the sale of the Sencorp
Systems, Inc. facility in Hyannis, Massachusetts, to the
extent same shall be used to satisfy the $7,000,000 Multi-Mode
Industrial Revenue Bonds (Sencorp Systems, Inc. Project-1998
Series A) issued by the Massachusetts Industrial Finance
Agency to the extent necessary to repay such bonds, interest
thereon, and all reasonable and necessary costs and expenses
of such repayment, and (ii) the disposition of assets in
connection with Borrower's restructuring of operations so long
as such restructuring costs constitute Restructuring Charges
permitted under this Agreement, are in an aggregate amount not
to exceed $500,000 during the term of this Agreement, and are
incurred in connection with the disposition of assets related
to the facility and/or operations with respect to which such
Restructuring Charges relate. Nothing in this Section 6.2.3.
permits any violation of Section 14.6. of this Agreement.
(h) Section 6.2.4. is entirely amended, as follows:
6.2.4. PREPAYMENTS FROM WORKING CAPITAL. Commencing September
30, 2001 through the Twelfth Amendment Effective Date,
promptly upon delivery to the Administrative Agent of the
monthly financial information required hereunder 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 first,
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to the Aggregate Revolving Loan to the extent of any
outstanding Priority Advances, and second, if there are no
outstanding Priority Advances, 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.
(i) Section 6.2.5. is entirely amended, as follows:
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:
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Prepayment Date Amount of Prepayment as of Each Prepayment Date
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September 30, 2002 $1,500,000
December 31, 2002 $1,500,000
March 31, 2003 $1,500,000
June 30, 2003 $1,500,000
September 30, 2003 $1,500,000
December 31, 2003 $1,500,000
March 31, 2004 $1,500,000
June 30, 2004 $1,500,000
July 2, 2004 Outstanding principal balance
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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. 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."
(j) New Sections 6.2.7., 6.2.8. and 6.2.9. are added to the
Credit Agreement immediately following Section 6.2.6. thereof, as
follows:
6.2.7. PREPAYMENT FROM EQUITY ISSUANCES. Promptly upon receipt
by Borrower or any Subsidiary of Borrower, at any time after
the Twelfth Amendment Effective Date, of the proceeds from any
issuance of any shares, interests, partnership interests,
participations, rights in or other equivalents
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(however designated) of such Person's equity interest (however
designated), Borrower shall prepay the Loans from the Net
Proceeds of such transaction, which prepayment shall be in
principal amount equal to 100% of such Net Proceeds. Any such
prepayment shall be applied first, to the Aggregate Revolving
Loan to the extent of any outstanding Priority Advances, and
second, if there are no outstanding Priority Advances, 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
pro rata with respect to all future Scheduled Reductions due
under such Loans. 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. For purposes hereof,
"Net Proceeds" means the aggregate amount of cash and cash
equivalents received by Borrower or any Subsidiary of Borrower
in connection with any transaction described in this Section
6.2.7. minus necessary and reasonable fees, costs and expenses
and related taxes paid or payable as a result of such
transaction, provided that mandatory prepayments shall not be
required in connection with Net Proceeds received from (i) the
sale of 7,000,000 shares of common stock of the Domestic
Borrower to certain existing stockholders in a private
placement upon the effective date of the Twelfth Amendment,
(ii) the issuance of shares of common stock of the Domestic
Borrower in connection with the conversion of the 7.16%
Convertible Junior Subordinated Deferrable Interest Debentures
at any time, and (iii) the issuance of any shares of common
stock of the Domestic Borrower in connection with option
exercises or other transactions made pursuant to any employee
benefit plan or employee compensation arrangement.
6.2.8. PREPAYMENT FROM EXCESS CASH FLOW. On September 30,
2003, Borrower shall prepay the Loans in a principal amount
equal to 50% of Excess Cash Flow for the fiscal year of
Borrower ended on or about June 30, 2003. Any such prepayment
shall be applied first, to the Aggregate Revolving Loan to the
extent of any outstanding Priority Advances, and second, if
there are no outstanding Priority Advances, 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 pro rata
with respect to all future Scheduled Reductions due under such
Loans. 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.
6.2.9. PREPAYMENT OF PRIORITY ADVANCES. If, at any time, the
sum of (a) the aggregate outstanding principal amount of all
Priority Advances plus (b) the aggregate Dollar Equivalent
Amount of the Letter of Credit Exposure with respect to all
Priority Letters of Credit, exceeds the Priority Advance Asset
Coverage Base, then Borrower shall within 5 Business Days make
a prepayment of principal on the Priority Advances in an
amount equal to such excess, together
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with accrued interest, and if no Priority Advances are
outstanding at such time, Borrower shall within 5 Business
Days provide cash collateral in the amount of such excess as
security for the Letter of Credit Exposure in respect of
Priority Letters of Credit.
(k) Section 7.13. is entirely amended, as follows:
7.13. SUSPENSION OF EURODOLLAR OPTION; PRICING OF PRIORITY
ADVANCES. Notwithstanding anything in this Agreement or any
other Loan Document to the contrary, beginning on the Twelfth
Amendment Effective Date, each Priority Advance (other than
Advances made as part of Offshore Currency Loans) shall be a
Base Rate Advance.
(l) A new Section 13.13.4. is added to the Credit Agreement
immediately following Section 13.13.3. thereof, as follows:
13.13.4. PRIORITY ADVANCE ASSET COVERAGE REPORT. Within 10
days after the end of each fiscal month of Borrower, a
Priority Advance Asset Coverage Report as of the end of such
fiscal month. The Borrower may, at its option, submit an
updated Priority Advance Asset Coverage Report at any time
following delivery of the required Priority Advance Asset
Coverage Report, and the Priority Advance Asset Coverage Base
shall be changed to the Priority Advance Asset Coverage Base
set forth in the updated Priority Advance Asset Coverage
Report.
(m) Section 13.16. is entirely amended, as follows:
13.16. AUDITS BY ADMINISTRATIVE AGENT. Administrative Agent or
Persons authorized by and acting on behalf of Administrative
Agent or any Lender may at any time during normal business
hours audit the books and records and inspect any of the
property of each Covered Person from time to time upon
reasonable notice to such Covered Person, and in the course
thereof may make copies or abstracts of such books and records
and discuss the affairs, finances and books and records of
such Covered Person with its accountants, officers and
employees. Without limiting the generality of the foregoing,
Borrower hereby agrees that, upon request of Administrative
Agent but no more than twice in any calendar year so long as
no Event of Default then exists, Borrower shall engage, at
Borrower's sole expense, an independent third party
satisfactory to Administrative Agent for the purpose of
auditing the Covered Persons' accounts receivable and
inventory, which audit shall be provided to the Lenders
promptly upon its completion. Each Covered Person shall
cooperate with Administrative Agent and any such other Persons
referenced herein in the conduct of such audits and shall
deliver to Administrative Agent or its agent or advisor any
instrument necessary for such Persons to obtain records from
any service bureau maintaining records for such Covered
Person.
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(n) 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:
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During the period The applicable amount is
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From June 25, 2001 through June 30, 2002 $2,700,000
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From July 1, 2002 through June 29, 2003 $5,750,000
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From June 30, 2003 through June 27, 2004 $7,000,000
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(o) Section 15.1. is amended by amending and restating the
definitions of "EBITDA" and "Interest Expense" found therein in their
entirety, as follows:
"EBITDA" means, for any period of calculation and without
duplication, 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 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, (vii) during all calculation
periods which include the third fiscal quarter of the
Borrower's fiscal year 2002, a one-time non-cash credit in an
amount not to exceed $1,900,000 as a result of a third fiscal
quarter 2002 change in percentage of completion accounting,
and (viii) Restructuring Charges, 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.
"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, including, without limitation,
amortization of deferred financing costs.
(p) 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 $119,000,000 plus 50% of Domestic
Borrower's cumulative Net Income (but not
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any net loss) for the period commencing July 2, 2002, and
extending through and including the end of the applicable
fiscal quarter.
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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For the Quarter Ended on or About: The applicable ratio is
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June 30, 2002 3.74 to 1.0
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September 30, 2002 3.71 to 1.0
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December 31, 2002 3.86 to 1.0
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March 31, 2003 2.75 to 1.0
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June 30, 2003 2.50 to 1.0
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September 30, 2003 2.50 to 1.0
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December 31, 2003 and any time thereafter 2.00 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 (excluding non-cash Interest Expense during such
period), 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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For the Quarter Ended on or About: The applicable ratio is
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June 30, 2002 2.64 to 1.0
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September 30, 2002 2.59 to 1.0
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December 31, 2002 2.55 to 1.0
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March 31, 2003 and any time thereafter 2.26 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 (excluding non-cash Interest Expense during such
period), 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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For the Quarter Ended on or About: The applicable ratio is
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June 30, 2002 1.75 to 1.0
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September 30, 2002 1.62 to 1.0
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December 31, 2002 2.37 to 1.0
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March 31, 2003 and any time thereafter 3.50 to 1.0
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15.6. MINIMUM EBITDA. Domestic Borrower's EBITDA, calculated
at the end of each fiscal month (or quarter, as applicable)
for the twelve consecutive fiscal months (or 4 consecutive
fiscal quarters, as applicable) 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 (except as noted) The applicable amount is
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September 2002 (quarterly test) $ 11,200,000
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October 2002 $ 12,600,000
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November 2002 $ 11,700,000
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December 2002 $ 13,100,000
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January 2003 $ 15,900,000
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February 2003 $ 18,100,000
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March 2003 $ 20,500,000
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April 2003 $ 21,700,000
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May 2003 $ 23,000,000
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June 2003 $ 24,500,000
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September 2003 (quarterly test) $ 27,000,000
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December 2003 (quarterly test) $ 28,100,000
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March 2004 (quarterly test) $ 28,700,000
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(q) Section 16.1.17. is entirely amended, as follows:
16.1.17. DEFAULT UNDER CERTAIN OTHER AGREEMENTS. In respect of
any Indebtedness incurred in connection with (a) that certain
Reimbursement Agreement between Domestic Borrower and
BankBoston, N.A. ("BankBoston") dated as of July 1, 1998 (as
amended, extended, renewed or restated from time to time) and
those certain $7,000,000 Multi-Mode Industrial Revenue Bonds
(Sencorp Systems, Inc. Project-1998 Series A) issued by the
Massachusetts Industrial Finance Agency (collectively, the
"Bond Documents"), and (b) those certain 7.16% Convertible
Junior Subordinated Deferrable Interest Debentures, any
default or other event or condition occurs or exists at any
time beyond the applicable grace or cure period (and, solely
with respect to the Bond Documents,
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only after BankBoston has obtained a Security Interest in the
Collateral which is pari passu with the Lenders), the effect
of which is to cause or to permit any holder of that
Indebtedness to cause (whether or not it elects to cause) any
of that Indebtedness to become due before its stated maturity
or regularly scheduled payment dates, or BankBoston shall take
any collection action under the Bond Documents as a result of
defaults thereunder.
(r) Section 16.1.18. is entirely amended, as follows:
16.1.18. CONTROL/MANAGEMENT. (i) Individuals who on October
10, 2000, were members of the board of directors of Domestic
Borrower (together with any new directors whose election to
such board of directors or whose nomination for election by
the stockholders of Domestic Borrower was approved by a vote
of a majority of the directors then still in office who were
either directors on October 10, 2000, or whose election or
nomination for election was previously so approved) cease for
any reason to constitute a majority of such board of directors
then in office, (ii) a "person" or "group" (within the meaning
of Section 13(d) of the Exchange Act), becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act) of
more than 20% of the total issued and outstanding common stock
of Domestic Borrower, other than any Person or group that is a
stockholder of Domestic Borrower as of the Twelfth Amendment
Effective Date, (iii) Domestic Borrower shall fail to engage,
on or before October 31, 2000, and at all times thereafter
maintain additional management resources satisfactory to
Required Lenders, which management resources shall be subject
solely to Domestic Borrower's direction and authority, or (iv)
any two of Xxxxxxx X. Xxxxxxx, Xxxx X. Xxxxxx and Xxxx X.
Xxxxxx shall no longer be employed and fulfilling the
requirements of their positions as in effect on April 15,
2002, with Borrower unless as a result of their termination
due to death or disability or termination by the Board of
Directors of Domestic Borrower in the exercise of its
fiduciary responsibilities, provided that no Event of Default
shall arise as a result of the occurrence of the event
described in this clause (iv) of this Section 16.1.18. unless
Required Lenders so elect to declare an Event of Default as a
result thereof by sending to the Domestic Borrower written
notice of such election.
(s) Exhibit 2.1 to the Credit Agreement is hereby amended by
adding or entirely amending the following definitions, as follows:
ELIGIBLE ACCOUNTS - accounts receivable of the Covered Persons
in which the Administrative Agent has a perfected first
priority Security Interest as security for the Loan
Obligations, excluding (a) receivables owing by account
debtors not domiciled in the United States of America;
provided that such receivables shall not be excluded if the
aggregate of all such Eligible Accounts shall not comprise in
excess of 35% of the component of the Priority Asset Coverage
Base comprised of Eligible Accounts and (i) the receivables
are secured by a bank guarantee or an irrevocable letter of
credit provided by a reputable banking institution upon
commercially standard terms, or (ii) the account debtor
maintains a credit rating of not less than BBB+ as determined
by Standard & Poor's Ratings
-11-
Services or Baa2 by Xxxxx'x Investors Service, Inc., (b)
progress xxxxxxxx, (c) receivables outstanding more than 90
days past invoice date, (d) any portion of receivables which
may be subject to offset, discount or dispute, (e) receivables
owing by Affiliates, officers, directors, and employees of the
Covered Persons, (f) receivables owing by the United States of
America or any state or any department, agency or
instrumentality thereof, and (g) receivables subject to any
Security Interest other than the Security Interest in favor of
the Administrative Agent and Permitted Security Interests
(other than those described in Section 14.4.9 thereof).
ELIGIBLE INVENTORY - inventory of the Covered Persons in which
the Administrative Agent has a perfected first priority
Security Interest as security for the Loan Obligations,
excluding (a) inventory not located in the United States of
America or in transit, (b) work-in-process, (c) any excess and
obsolete inventory reserve, (d) any LIFO reserve, and (e)
inventory subject to any Security Interest other than the
Security Interest in favor of the Administrative Agent and
Permitted Security Interests (other than those described in
Sections 14.4.6 and 14.4.9 thereof).
EXCESS CASH FLOW - for any period, for Domestic Borrower and
all of its Subsidiaries, on a consolidated basis, an amount
equal to (i) EBITDA for such period minus Capital Expenditures
for such period to the extent permitted by this Agreement,
minus (ii) $27,600,000.
LOAN DOCUMENTS - this Agreement, the Notes, the Guaranties,
the Security Documents, any reimbursement agreements between
Borrower and the Letter of Credit Issuer, all other
agreements, certificates, documents, instruments and other
writings executed in connection herewith, and any documents,
agreements or instruments related to cash management and
treasury management services provided to the Domestic Borrower
and its Subsidiaries by Bank of America, N.A.
LOAN OBLIGATIONS - all Indebtedness owing to Letter of Credit
Issuer, Administrative Agent or Lenders under the Loan
Documents, whether as principal, interest, fees or otherwise,
all reimbursement obligations to Letter of Credit Issuer or
Lenders with respect to the Letter of Credit Exposure, all
other obligations and liabilities to Administrative Agent or
Lenders under the Loan Documents and all Rate Hedging
Obligations, and any obligations now or hereafter owed to Bank
of America, N.A. as provider of cash management and treasury
management services to the Domestic Borrower and its
Subsidiaries (in each case including all extensions, renewals,
modifications, rearrangements, restructures, replacements and
refinancings of the foregoing, whether or not the same involve
modifications to interest rates or other payment terms),
whether now existing or hereafter created, absolute or
contingent, direct or indirect, joint or several, secured or
unsecured, due or not due, contractual or tortious, liquidated
or unliquidated, arising by operation of law or otherwise,
including but not limited to the obligation to repay future
advances by Administrative Agent or Lenders hereunder, whether
or not made pursuant to commitment and whether or not
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presently contemplated by any Borrower or Guarantor,
Administrative Agent or Lenders in the Loan Documents.
PRIORITY ADVANCE - any Advance made after the Twelfth
Amendment Effective Date, if, after giving effect to such
Advance, the sum of (a) the aggregate outstanding principal
amount of all Priority Advances plus (b) the aggregate Dollar
Equivalent Amount of the Letter of Credit Exposure with
respect to all Priority Letters of Credit, exceeds the
Priority Threshold Amount.
PRIORITY ADVANCE ASSET COVERAGE BASE - the sum of (a) 65% of
the outstanding amount due of Eligible Accounts plus (b) 25%
of the lower of the cost or market value of Eligible
Inventory.
PRIORITY ADVANCE ASSET COVERAGE REPORT - a report in the form
of Exhibit 13.13.4 attached hereto, certified by the chief
financial officer of Domestic Borrower.
PRIORITY LETTER OF CREDIT - any Letter of Credit issued after
the Twelfth Amendment Effective Date, if, after giving effect
to such issuance, the sum of (a) the aggregate outstanding
principal amount of all Priority Advances plus (b) the
aggregate Dollar Equivalent Amount of the Letter of Credit
Exposure with respect to all Priority Letters of Credit,
exceeds the Priority Threshold Amount.
PRIORITY THRESHOLD AMOUNT - $53,000,000 less the net proceeds
of equity issuances received on the Twelfth Amendment
Effective Date to the extent that the gross proceeds thereof
exceeds $22,400,000.
RESTRUCTURING CHARGES - for any period of calculation, without
duplication, and excluding any costs paid out of the proceeds
of sale or other disposition of assets, any costs whether paid
in cash or reserved in accordance with Generally Accepted
Accounting Principles related to severance costs associated
with workforce reductions, personnel relocation costs, idle
facility costs, and non-cash write-downs of fixed assets,
provided that during the term of this Agreement the aggregate
amount thereof shall not exceed $11,000,000 and the cash
amount thereof shall not exceed $8,200,000.
TWELFTH AMENDMENT EFFECTIVE DATE - the date on which all
conditions precedent to the Twelfth Amendment to Fourth
Amended and Restated Credit Facilities Agreement (the "Twelfth
Amendment") are satisfied.
-13-
(t) 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.
(u) A new Exhibit 13.13.4 is hereby added to the Credit
Agreement in the form of, and all references in the Credit Agreement to
Exhibit 13.13.4 are hereby deemed to be references to, the attached
Exhibit 13.13.4.
4. LIMITED CONSENT. Subject to the covenants, terms and conditions set
forth in this Amendment, the Lenders hereby consent to the restructuring of
those certain 7.16% Convertible Preferred Securities (the "Preferred
Securities") of DT Capital Trust (the "Trust") and the related junior
subordinated debentures of the Domestic Borrower held by the Trust so that,
among other things, $35,000,000 principal of the outstanding Preferred
Securities are converted into or otherwise exchanged for 4,375,000 shares of the
Domestic Borrower's common stock, par value $0.01 per share (the "Common
Stock"), the $15,085,254 in accrued paid-in-kind distributions on the Preferred
Securities as of March 31, 2002 are converted into or otherwise exchanged for
1,885,658 shares of Common Stock, the conversion price of the remaining
$35,000,000 of outstanding Preferred Securities (and the related junior
subordinated debentures of the Domestic Borrower held by the Trust) is lowered
to $14.00 per share, distributions on the Preferred Securities do not accrue
after March 31, 2002, until no earlier than July 3, 2004, and the maturity date
of the Preferred Securities is accelerated to a date no earlier than May 31,
2008, and all other terms thereof are satisfactory to the Administrative Agent
in its sole discretion (the "TIDES Restructure"). The consent set forth in this
Section 4 is limited to the extent specifically set forth above and no other
terms, covenants or provisions of the Credit Agreement are intended to be
effected hereby.
5. 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 after giving effect to the
reduction thereof on the effective date of this Amendment, plus (ii) the
aggregate amount of the Canadian Term Loan owed to such Lender as of the
effective date of this Amendment.
6. FACILITY FEE. Borrower shall pay to the Administrative Agent, for
the pro rata benefit of each Lender, a facility fee equal to the product of (a)
2.00% multiplied by (b) an amount equal to the sum of (i) such Lender's portion
of the Commitment after giving effect to the reduction thereof on the effective
date of this Amendment, plus (ii) the aggregate amount of the Canadian Term Loan
owed to such Lender as of the effective date of this Amendment. Such facility
fee shall be fully earned and due and payable as of the date of this Amendment,
but payment thereof shall be made in two equal installments and shall be
deferred until July 2, 2003, and June 2, 2004, provided that, in each case that
payment of such fee shall be forgiven if Borrower causes the Loan Obligations to
be paid, in full, and all commitments to lend under the Credit Agreement to be
cancelled, before the date such facility fee is payable. Borrower hereby
acknowledges and agrees that failure to make any such installment payment shall
constitute an immediate Event of Default.
-14-
7. 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.
8. 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.
9. 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.
-15-
(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 9 shall survive termination of
this Amendment and the other Loan Documents.
10. 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.
11. CONDITIONS OF EFFECTIVENESS. Except as expressly set forth in
Section 1 above with respect to certain waivers which shall become effective
immediately upon execution of this Amendment, this Amendment shall not be
effective unless and until 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; provided that all such conditions precedent must be satisfied on or
before July 2, 2002, or the agreements of the Administrative Agent and the
Lenders herein shall terminate:
(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 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;
-16-
(iii) certified copies of resolutions of the boards
of directors of the Domestic Borrower and each Significant
Subsidiary authorizing the transactions contemplated by this
Amendment;
(iv) documentation in form and substance satisfactory
to the Lenders evidencing the TIDES Restructure, and evidence
satisfactory to the Lenders that the equity conversion
contemplated by such documents has been consummated;
(v) evidence satisfactory to the Lenders that the
Domestic Borrower has raised no less than $18,800,000 in gross
proceeds in new equity from certain existing shareholders upon
terms and conditions reasonably satisfactory to the
Administrative Agent (the "Subject Equity Issuance");
(vi) prepayment of the Aggregate Revolving Loan in an
amount equal to 100% of the proceeds (net of reasonable fees,
taxes and other expenses of closing) from the Subject Equity
Issuance;
(vii) no event or circumstance shall have occurred or
arisen as a result of a loss of a significant customer or
revenue stream prior to the date hereof which would have a
Material Adverse Effect; and
(viii) such other documents, certificates and
instruments as the Administrative Agent shall require prior to
the date hereof.
(c) The Administrative Agent shall have received payment of
its agency fee.
(d) The Administrative Agent shall have received a Priority
Advance Asset Coverage Report dated as of a date proximate to the
Twelfth Amendment Effective Date, together with such supporting
information with respect thereto as may be reasonably required by the
Administrative Agent.
12. 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.
13. 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.
14. 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.
15. 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-
16. 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.
17. 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]
-18-
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
the date first above written.
DT INDUSTRIES, INC., XXXXXX INC. formerly Xxxxxx Canada
a Delaware corporation Inc., a New Brunswick, Canada
corporation
By: /s/ Authorized Signature By: /s/ Authorized Signature
----------------------------------- -----------------------------------
Name: Name:
-------------------------------- --------------------------------
Title: Title:
------------------------------- -------------------------------
DT CANADA INC., ASSEMBLY TECHNOLOGIE &
a New Brunswick, Canada corporation AUTOMATION GMBH, a German
limited liability company
By: /s/ Authorized Signature By: /s/ Authorized Signature
----------------------------------- -----------------------------------
Name: Name:
-------------------------------- -----------------------------
Title: Title:
------------------------------- -------------------------------
DT INDUSTRIES (UK) II LIMITED,
a corporation of England and Wales
By: /s/ Authorized Signature
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
BANK OF AMERICA, N.A., formerly DRESDNER BANK AG, NEW YORK
NationsBank, N.A., as Administrative Agent AND GRAND CAYMAN
and a Lender BRANCHES
By: /s/ Xxxxxxx X. Xxxxxxxxxx, XX By: /s/ Authorized Signature
--------------------------------------- --------------------------------
Xxxxxxx X. Xxxxxxxxxxx, XX Name:
Managing Director ------------------------------
Title:
-----------------------------
By: /s/ Authorized Signature
--------------------------------
Name:
------------------------------
Title:
-----------------------------
BEAR, XXXXXXX & CO. INC. THE BANK OF NOVA SCOTIA
By: /s/ Authorized Signature By: /s/ Authorized Signature
--------------------------------------- --------------------------------
Name: Name:
------------------------------------- ------------------------------
Title: Title:
------------------------------------ -----------------------------
XXXXXXX X. XXXXXX & SONS SPECIAL U.S. BANK, NATIONAL
SITUATION PARTNERS, L.P. ASSOCIATION
By: /s/ Authorized Signature By: /s/ Authorized Signature
--------------------------------------- -------------------------------
Name: Name:
------------------------------------- -----------------------------
Title: Title:
------------------------------------ ----------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Authorized Signature
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
NATIONAL CITY BANK
By: /s/ Authorized Signature
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
ACKNOWLEDGED AND AGREED:
ADVANCED ASSEMBLY AUTOMATION, INC.
By: /s/ Authorized Signature
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
ASSEMBLY TECHNOLOGY & TEST, INC.
By: /s/ Authorized Signature
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
DETROIT TOOL AND ENGINEERING COMPANY
By: /s/ Authorized Signature
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
DTI LEBANON SUBSIDIARY, INC.
By: /s/ Authorized Signature
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
XXXXXXXX MANUFACTURING CORPORATION
By: /s/ Authorized Signature
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
PHARMA GROUP, INC.
By: /s/ Authorized Signature
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
MID-WEST AUTOMATION ENTERPRISES, INC.
By: /s/ Authorized Signature
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
MID-WEST AUTOMATION SYSTEMS, INC.
By: /s/ Authorized Signature
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SENCORP SYSTEMS, INC.
By: /s/ Authorized Signature
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
VANGUARD TECHNICAL SOLUTIONS, INC.
By: /s/ Authorized Signature
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
ARMAC INDUSTRIES CO.
By: /s/ Authorized Signature
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
ASSEMBLY MACHINES, INC.
By: /s/ Authorized Signature
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
