Exhibit 4.1
AMENDMENT NO. 4
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This AMENDMENT No. 4 dated as of December 1, 2006 ("Amendment No.4"), is
entered into by and among DAYTON SUPERIOR CORPORATION, an Ohio corporation
("Borrower"), the persons designated as "Lenders" on the signature pages hereto,
and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as Agent.
WHEREAS, Borrower, the other Credit Parties, the Lenders (as defined
therein) and Agent are party to the Credit Agreement dated as of January 30,
2004, as amended by Amendment No. 1, dated June 30, 2004, Amendment No. 2, dated
February 23, 2005, and Amendment No. 3, dated September 29, 2006 ("Original
Credit Agreement"; all capitalized terms defined in the Original Credit
Agreement and not otherwise defined herein to have the meanings assigned thereto
in the Original Credit Agreement or in Annex A thereto); and
WHEREAS, Borrower has requested that the Original Credit Agreement be
amended in the manner set forth below.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrower, Credit Parties, the Lenders
and Agent agree as follows:
SECTION 1.
AMENDMENTS
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Subject to the satisfaction of the conditions to effectiveness referred to
in Section 2 below, the Original Credit Agreement is hereby amended as follows:
(a) Section 1.3(a) of the Original Credit Agreement is amended by replacing
the date "June 30, 2004" appearing therein with the date "December 1, 2006".
(b) Annex A of the Original Credit Agreement is amended as follows:
(i) The definition of "Borrowing Base" is amended by replacing the
dollar figure "$10,000,000" appearing in clause (f) thereof, with the dollar
figure "$15,000,000".
(ii) The definition of "Change of Control" is amended and restated in
its entirety as follows:
"Change of Control" means and includes:
(a) prior to the consummation of an IPO, any of the following (i)
Odyssey Investment Partners and its Related Parties cease to
collectively beneficially own either (x) more than 50% of the voting
power of the issued and outstanding shares of Stock of Borrower having
the right to vote for the election of directors of Borrower under
ordinary circumstances or (y) more than 50% of the voting power of the
issued and outstanding shares of Stock of a corporation of which
Borrower is a wholly owned Subsidiary having the right to vote for the
election of directors of such corporation under ordinary
circumstances; or (ii) the occurrence of a "Change of Control" (as
defined in the Senior Notes Indenture) or a "Change of Control" (as
defined in the Senior Subordinated Notes Indenture), and
(b) from and after the consummation of an IPO, any of the following
(i) (x) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), other than Odyssey Investment Partners, one or
more of its Related Parties or a Permitted Group, shall become, or
obtain rights (whether by means or warrants, options or otherwise) to
become, the "beneficial owner" (as defined in Rules 13(d)-3 and
13(d)-5 under the Exchange Act, except that such person or group shall
be deemed to have beneficial ownership of all shares that any such
person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly
or indirectly, of more than 35% of the voting power of the issued and
outstanding shares of Stock of Borrower having the right to vote for
the election of directors of Borrower under ordinary circumstances,
and (y) Odyssey Investment Partners and its Related Parties and any
Permitted Group collectively "beneficially own" (as defined above),
directly or indirectly, in the aggregate a lesser percentage of the
voting power of the issued and outstanding shares of Stock of Borrower
having the right to vote for the election of directors of Borrower
under ordinary circumstances and do not have the right or ability to
designate for election a majority of the Board of Directors of
Borrower; or (ii) the occurrence of a "Change of Control" (as defined
in the Senior Notes Indenture) or a "Change of Control" (as defined in
the Senior Subordinated Notes Indenture).
(c) For the purposes of clause (b) of this definition, a person or
group shall be deemed to beneficially own Stock in a person held by a
parent entity if such person or group beneficially owns (as defined
above) more than 50% of the issued and outstanding shares of Stock of
such parent entity having the right to vote for the election of
directors of such parent entity under ordinary circumstances.
(iii) The definition of "Commitments" is amended by replacing the
phrase "ninety five million dollars ($95,000,000)" appearing therein with the
phrase "one hundred thirty million dollars ($130,000,000)".
(iv) The definition of "Revolving Loan Commitment" is amended by
replacing the phrase "ninety five million dollars ($95,000,000)" appearing
therein with the phrase "one hundred thirty million dollars ($130,000,000)".
(v) The definition of "Termination Date" is amended by replacing the
date "May 31, 2008" appearing therein with the date "July 31, 2008".
(vi) The following definitions are added to Annex A in the appropriate
alphabetical places:
"Amendment No. 3" means Amendment No. 3, dated as of September 29,
2006, to this Agreement.
"Amendment No. 4" means Amendment No. 4, dated as of December 1, 2006,
to this Agreement.
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"Exchange Act" has the meaning ascribed to it in the definition of
"Change of Control."
"IPO" means an initial public offering of common Stock by Borrower
pursuant to an effective registration statement under the Securities Act of
1933, as amended, as a result of which at least 15% of Borrower's total
issued and outstanding common Stock has been distributed.
"Permitted Group" means any group of investors that is deemed to be a
"person" (as that term is used in Section 13(d)(3) of the Exchange Act) by
virtue of a Voting Agreement or any similar agreement, as the same may be
amended, modified or supplemented from time to time; provided, however,
that no single Person (other than Odyssey Investment Partners and its
Related Parties) beneficially owns (together with its Affiliates) more of
the voting power of the issued and outstanding shares of Stock of Borrower,
having the right to vote for the election of directors of Borrower under
ordinary circumstances, that is beneficially owned by such group of
investors than is then collectively beneficially owned by Odyssey
Investment Partners and its Related Parties in the aggregate.
"Related Party" means:
(1) any controlling stockholder, 50% (or more) owned Subsidiary, or
immediate family member (in the case of an individual) of Odyssey
Investment Partners; or
(2) any trust, corporation, partnership, limited liability company or
other entity, the beneficiaries, stockholders, partners, members, owners or
Persons beneficially holding a 50% or more controlling interest of which
consist of Odyssey Investment Partners and/or such other Persons referred
to in the immediately preceding clause (1).
"Voting Agreement" means any voting trust or similar agreement among
current and/or former members of the management of Borrower and Odyssey
Investment Partners and/or one or more of its Related Parties pursuant to
which such current and/or former members of management grant Odyssey
Investment Partners and/or its Related Parties the right to vote shares of
Borrower's Stock.
(vii) Annex B to the Original Credit Agreement is amended and restated
as set forth on Schedule A hereto.
SECTION 2.
CONDITIONS TO EFFECTIVENESS
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This Amendment No. 4 shall become effective on the date (the "Effective
Date") that the following conditions shall have been satisfied, so long as such
date is on or prior to December 31, 2006:
(a) Agent shall have received one or more counterparts of this Amendment
No. 4 executed and delivered by Borrower, the other Credit Parties, Agent and
the Lenders.
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(b) Agent shall have received, in form and substance satisfactory to Agent,
such consents under and amendments or supplements to the Senior Notes Indenture
and Senior Subordinated Notes Indenture as may be necessary to permit the
execution, delivery and performance of this Amendment No. 4, and the incurrence
by Borrower of the maximum amount of Indebtedness contemplated by the Revolving
Loan Commitments (giving effect to this Amendment No. 4).
(c) Agent shall have received such lien search reports as it may have
requested to reflect the continued perfection and priority of the security
interests of Agent in the Collateral.
(d) Agent shall have received evidence, satisfactory to Agent, and as of a
date acceptable to Agent, of the good standing of Borrower and its qualification
in those jurisdictions in which the failure to qualify would have a Material
Adverse.
(e) Agent shall have received a certificate of the secretary or an
assistant secretary of Borrower certifying the incumbency of the officer
executing this Amendment No. 4 and the corporate resolutions authorizing the
execution, delivery and performance of this Amendment No. 4, each in form and
substance satisfactory to Agent.
(f) Agent shall have received a legal opinion, in form and substance
satisfactory to Agent, from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as to such matters relative to
the authorization, execution and delivery o this Amendment No. 4, including,
without limitation, that the incurrence by Borrower of Revolving Loans to the
extent of the Revolving Loan Commitments, as increased by this Amendment No. 4,
is permitted under each of the Senior Notes Indenture and Senior Subordinated
Notes Indenture, as Agent shall have requested.
(g) Agent shall have received that certain fee letter, dated as of December
1, 2006 between Borrower and Agent, in the form attached hereto as Exhibit A,
executed and delivered by Borrower and Agent and the payment in immediately
available funds of the fees payable on the Effective Date pursuant to such fee
letter.
(h) On such date, there shall be no continuing Default or Event of Default
and the representations and warranties of Borrower contained in this Amendment
No. 4 shall be true and correct in all material respects.
SECTION 3.
LIMITATION ON SCOPE
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Except as expressly amended hereby, all of the representations, warranties,
terms, covenants and conditions of the Loan Documents shall remain in full force
and effect in accordance with their respective terms. The amendments set forth
herein shall be limited precisely as provided for herein and shall not be deemed
to be waivers of, amendments of, consents to or modifications of any term or
provision of the Loan Documents or any other document or instrument referred to
therein or of any transaction or further or future action on the part of
Borrower or any other Credit Party requiring the consent of Agent or Lenders
except to the extent specifically provided for herein. Agent and Lenders have
not and shall not be deemed to have waived any of their respective rights and
remedies against Borrower or any other Credit Party for any existing or future
Defaults or Event of Default.
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SECTION 4.
MISCELLANEOUS
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(a) Borrower hereby represents and warrants as follows:
(i) this Amendment No. 4 has been duly authorized and executed by
Borrower, and the Original Credit Agreement, as amended by this Amendment No. 4,
is the legal, valid and binding obligation of Borrower, enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, moratorium and similar laws affecting the rights of
creditors in general; and
(ii) Borrower repeats and restates the representations and warranties
of Borrower contained in the Original Credit Agreement as of the date of this
Amendment No. 4 and as of the Effective Date, except to the extent such
representations and warranties relate to a specific date.
(b) This Amendment No. 4 is being delivered in the State of New York.
(c) Borrower hereby ratifies and confirms the Original Credit Agreement as
amended hereby, and agrees that, as amended hereby, the Original Credit
Agreement remains in full force and effect.
(d) Borrower agrees that all Loan Documents remains in full force and
effect notwithstanding the execution and delivery of this Amendment No. 4.
(e) This Amendment No. 4 may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which counterparts together shall constitute but one and
the same instrument.
(f) All references in the Loan Documents to the "Credit Agreement" and in
the Original Credit Agreement as amended hereby to "this Agreement," "hereof,"
"herein" or the like shall mean and refer to the Original Credit Agreement as
amended by this Amendment No. 4 (as well as by all subsequent amendments,
restatements, modifications and supplements thereto).
(g) Each of the following provisions of the Original Credit Agreement is
hereby incorporated herein by this reference with the same effect as though set
forth in its entirety herein, mutatis mutandis, and as if "this Agreement" in
any such provision read "this Amendment No. 4": Section 9.3 (Notices), Section
9.6, (Severability), Section 9.8 (Headings), Section 9.9 (Applicable Law),
Section 9.12 (Construction), Section 9.15 (Waiver of Jury Trial) and Section
9.17 (Entire Agreement).
[signature pages follow]
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WITNESS the due execution hereof by the respective duly authorized officers
of the undersigned as of the date first written above.
BORROWER:
DAYTON SUPERIOR CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and Chief
Financial Officer
[signatures continue on the next page]
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AGENT AND LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent, an L/C Issuer and a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Its Duly Authorized Signatory
[signatures continue on the next page]
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GMAC COMMERCIAL FINANCE LLC,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
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Schedule A
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ANNEX B (from Annex A - Commitments definition)
to
CREDIT AGREEMENT
PRO RATA SHARES AND COMMITMENT AMOUNTS
Lender(s)
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Revolving Loan Commitment
$65,000,000
(including a Swing Line Commitment
of $8,000,000) General Electric Capital Corporation
Revolving Loan Commitment
$65,000,000 GMAC Commercial Finance LLC
Schedule A
Exhibit A
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Exhibit A