Exhibit 4.17
AMENDMENT AND CONFIRMATION TO THE
PREFERRED SECURITIES GUARANTEE AGREEMENT
This AMENDMENT AND CONFIRMATION TO THE PREFERRED SECURITIES GUARANTEE
AGREEMENT (this "Amendment"), dated as of June , 2002, is by and between DT
Industries, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (the "Guarantor") and The Bank of New York, a New York
banking corporation, as trustee (the "Guarantee Trustee"), for the benefit of
the holders from time to time (the "Preferred Holders") of the Preferred
Securities (as hereinafter defined) of DT Capital Trust, a Delaware statutory
business trust (the "Issuer"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Preferred Guarantee Agreement.
WHEREAS, the Issuer issued and sold 1,400,000 Preferred Securities, having
an aggregate stated liquidation preference of $70,000,000, designated the 7.16%
Convertible Preferred Securities (the "Preferred Securities") to the Preferred
Holders, which are exchangeable for Debentures issued by the Guarantor pursuant
to an indenture dated June 1, 1997, as supplemented from time to time (the
"Indenture"), and currently held by the Property Trustee of the Issuer; and
WHEREAS, as an incentive for the Preferred Holders to purchase the
Preferred Securities, the Guarantor entered into a Preferred Securities
Guarantee Agreement with the Guarantee Trustee, dated June 12, 1997, as may be
amended from time to time (the "Preferred Guarantee Agreement"), pursuant to
which the Guarantor irrevocably and unconditionally agrees to pay to the
Preferred Holders the Guarantee Payments and to make certain other payments on
the terms and conditions set forth therein;
WHEREAS, pursuant to the Exchange Agreement dated as of May 9, 2002 among
the parties hereto and certain other parties named therein (the "Exchange
Agreement") the Guarantor has agreed to amend the terms of the Preferred
Guarantee Agreement as a part of, and concurrent with, the consummation of the
following series of transactions: (i) the ratable exchange of 700,000 of the
outstanding Preferred Securities for $35,000,000 in aggregate principal amount
of Debentures, and the immediate exchange of such Debentures for 4,375,000
shares of the Guarantor's common stock, par value $0.01 per share ("Common
Stock"); (ii) the ratable exchange of $15,085,254 in accrued and unpaid
distributions on the Preferred Securities held by the Preferred Holders for the
rights to $15,085,254 in accrued and unpaid interest on the Debentures held by
the Issuer, and the immediate exchange of such accrued and unpaid interest for
1,885,658 shares of Common Stock; (iii) the surrender and cancellation of all of
the accrued and unpaid distributions on the currently outstanding Common
Securities held by the Guarantor, and the surrender and cancellation of all the
accrued and unpaid interest on $2,165,000 in aggregate principal amount of the
Debentures; and (iv) the amendment of the terms of (A) the 700,000 of Preferred
Securities that will remain outstanding and held by the Preferred Holders after
the consummation of the transactions described above, (B) the 43,300 of Common
Securities that will remain outstanding and held by the Common Holder after the
consummation of the transactions described above, and (C) the $37,165,000 in
aggregate principal amount of
Debentures that will remain outstanding and held by the Property Trustee of the
Issuer after the consummation of the transactions described above; and
WHEREAS, the Guarantee Trustee and the Guarantor desire to enter into this
Amendment to amend the terms of the Preferred Guarantee Agreement as set forth
herein and to re-confirm the obligations of Guarantor under the terms of the
Preferred Guarantee Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
agreements, covenants and undertakings herein contained, the Guarantee Trustee
and the Guarantor intending to be legally bound, hereby agree as follows:
SECTION 1. RECITALS
The recitals set forth above are incorporated herein by this reference.
SECTION 2. EFFECTIVE DATE; ORGANIZATION OF AMENDMENT
Upon the consummation of the Exchange (as defined in the Exchange
Agreement) (the "Effective Time"), the Preferred Guarantee Agreement shall be
amended in accordance herewith, and this Amendment shall form a part of the
Preferred Guarantee Agreement for all purposes, and the Guarantee Trustee and
the Guarantor shall be bound thereby, as hereby amended; provided, however, that
the provisions of this Amendment shall not become operative until the Effective
Time (and at such time the provisions of this Amendment shall automatically
become operative without the requirement of any further action by or notice to
the Guarantor, the Guarantee Trustee or any Preferred Holder).
SECTION 3. AMENDMENTS TO THE PREFERRED GUARANTEE AGREEMENT
SECTION 3.1. Effective as of the Effective Time, the definition of
"Debentures" in Section 1.01 of the Preferred Guarantee Agreement is hereby
amended and restated in its entirety to read as follows:
""Debentures" means a series of convertible junior subordinated debt
securities of the Guarantor designated 7.16% Convertible Junior
Subordinated Deferrable Interest Debentures Due 2008 held by the Property
Trustee of the Issuer."
SECTION 3.2. Effective as of the Effective Time, Section 9.03(b) of the
Preferred Guarantee Agreement is hereby amended and restated in its entirety to
read as follows:
"(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Preferred Securities):
DT Industries, Inc.
000 Xxxx 0xx Xxxxxx
0
Xxxxxx, XX 00000"
SECTION 4. CONFIRMATION OF GUARANTOR'S OBLIGATIONS
Notwithstanding any amendments being made to the terms of the Preferred
Securities pursuant to the Exchange Agreement, Guarantor re-confirms that it
will honor all of its obligations and fulfill all of its duties pursuant to the
terms and conditions of the Preferred Guarantee Agreement.
SECTION 5. MISCELLANEOUS
SECTION 5.1. Reference to and Effect on the Preferred Guarantee Agreement.
After the Effective Time, each reference in the Preferred Guarantee Agreement to
"this Agreement", "hereunder", "hereof", "herein" or words of like import shall
mean and be a reference to such Preferred Guarantee Agreement, as amended
hereby, and each reference to the Preferred Guarantee Agreement shall mean and
be a reference to the Preferred Guarantee Agreement as amended hereby. Except as
specifically amended above, the Preferred Guarantee Agreement shall remain in
full force and effect.
SECTION 5.2. 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.
SECTION 5.3. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to principles of conflicts of laws.
SECTION 5.4. EXECUTION AND COUNTERPARTS. This Amendment may be executed in
any number of counterparts, each of which shall be an original but such
counterparts shall together constitute but one and the same instrument.
[SIGNATURE PAGE(S) FOLLOW]
3
IN WITNESS WHEREOF, the undersigned has caused this Amendment to be
executed as of the date first written above.
THE BANK OF NEW YORK, as Guarantee
Trustee
/s/ Authorized Signatory
------------------------------------------
DT INDUSTRIES, INC., as Guarantor
By: /s/ Authorized Signatory
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
