Exhibit 4.5.2
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this "Second Supplemental
Indenture"), dated as of January 4, 2001, among Trevecca Holdings, Inc., a
Delaware corporation, JDC Holdings, Inc., a Delaware corporation, and Aztec
Concrete Accessories, Inc., a California corporation (each a "Guaranteeing
Subsidiary"), each a subsidiary of Dayton Superior Corporation (or its permitted
successor), an Ohio corporation (the "Company"), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and United States
Trust Company of New York, as trustee under the indenture referred to below (the
"Trustee").
WITNESSETH:
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WHEREAS, the Company has heretofore executed and delivered to
the Trustee an indenture, dated as of June 16, 2000, as amended by a
supplemental indenture, dated as of August 3, 2000, among you, as the Trustee,
the Company, Conspec Marketing and Manufacturing Co., Inc. and Bristol
Investments (the "Indenture"), providing for the issuance of an aggregate
principal amount of up to $270.0 million of 13% Senior Subordinated Notes due
2009 (the "Notes");
WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
shall unconditionally guarantee all of the Company's Obligations under the Notes
and the Indenture on the terms and conditions set forth herein (the
"Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee is authorized to execute and deliver this Second Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees as
follows:
(a) Along with all Guarantors named in the Indenture, to
jointly and severally Guarantee to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability of the
Indenture, the Notes or the Obligations of the Company hereunder or
thereunder, that:
(i) the principal of, premium, if any, and interest
on the Notes will be promptly paid in full when due, whether
at maturity, by
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acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if
lawful, and all other Obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in accordance with the
terms hereof and thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other Obligations, that
same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors
shall be jointly and severally obligated to pay the same
immediately.
(b) The Obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes
or the Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of
a guarantor.
(c) The following is hereby waived: diligence, presentment,
demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands
whatsoever.
(d) This Guarantee shall not be discharged except by complete
performance of the Obligations contained in the Notes and the Indenture
or pursuant to Section 6 hereof.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any custodian,
Trustee, liquidator or other similar official acting in relation to
either the Company or the Guarantors, any amount paid by either to the
Trustee or such Holder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any
right of subrogation in relation to the Holders in respect of any
Obligations guaranteed hereby until payment in full of all Obligations
guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the
Obligations guaranteed hereby may be accelerated as provided in Article
6 of the Indenture for the purposes of this Guarantee, notwithstanding
any stay, injunction or other
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prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any declaration of
acceleration of such Obligations as provided in Article 6 of the
Indenture, such Obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of
this Guarantee.
(h) The Guarantors shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Guarantee.
(i) Pursuant to Section 11.03 of the Indenture, the
Obligations of a Guaranteeing Subsidiary shall be limited to such a
maximum amount as after giving effect to any maximum amount and any
other contingent and fixed liabilities that are relevant under any
applicable Bankruptcy or fraudulent conveyance laws (including, without
limitation, all Senior Debt of such Guarantor), and after giving effect
to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in respect of the
Obligations of such other Guarantor under Article 11 of the Indenture,
shall result in the Obligations of such Guarantor under its Guarantee
not constituting a fraudulent transfer or conveyance.
3. SUBORDINATION. The Obligations of the Guaranteeing Subsidiary under
its Guarantee pursuant to this Second Supplemental Indenture shall be junior and
subordinated to the Senior Debt of the Guaranteeing Subsidiary on the same basis
as the Notes are junior and subordinated to the Senior Debt of the Company. For
the purposes of the foregoing sentence, the Trustee and the Holders shall have
the right to receive and/or retain payments by the Guaranteeing Subsidiary only
at such time as they may receive and/or retain payments in respect of the Notes
pursuant to the Indenture, including Article 10 thereof.
4. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that the
Guarantees shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
5. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) The Guaranteeing Subsidiary may not consolidate with or
merge with or into (whether or not such Guarantor is the surviving
Person) another corporation, Person or entity whether or not affiliated
with such Guarantor unless:
(i) subject to Section 11.05 of the Indenture, the
Person formed by or surviving any such consolidation or merger
(if other than a Guarantor or the Company) shall be a
corporation organized and validly existing under the laws of
the United States or any state thereof or the District of
Columbia, and unconditionally assumes all the Obligations of
such Guarantor, pursuant to a supplemental indenture in form
and substance reasonably satisfactory to the Trustee, under
the Notes, the Indenture and the Guarantee on the terms set
forth herein or therein;
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(ii) immediately after giving effect to such
transaction, no Default or Event of Default exists; and
(iii) the Company would be permitted, immediately
after giving effect to such transaction, to incur at least
$1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.09 of the Indenture.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person, by
supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the Guarantee endorsed upon the
Notes and the due and punctual performance of all of the covenants and
conditions of the Indenture to be performed by the Guarantor, such
successor Person shall succeed to and be substituted for the Guarantor
with the same effect as if it had been named herein as a Guarantor.
Such successor Person thereupon may cause to be signed any or all of
the Guarantees to be endorsed upon all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Guarantees so issued shall in all
respects have the same legal rank and benefit under the Indenture as
the Guarantees theretofore and thereafter issued in accordance with the
terms of the Indenture as though all of such Guarantees had been issued
at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture,
and notwithstanding clause (a)(iii) above, nothing contained in the
Indenture or in any of the Notes shall prevent any consolidation or
merger of a Guarantor with or into the Company or another Guarantor, or
shall prevent any sale or conveyance of the property of a Guarantor as
an entirety or substantially as an entirety to the Company or another
Guarantor.
6. RELEASES. In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all to the capital stock of any Guarantor, then such
Guarantor (in the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the capital stock of such Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Guarantor) will be
released and relieved of any Obligations under its Guarantee; provided that the
Net Cash Proceeds of such sale or other disposition are applied in accordance
with the applicable provisions of the Indenture, including without limitation
Section 4.10 of the Indenture. Upon delivery by the Company to the Trustee of an
Officers' Certificate and an Opinion of Counsel to the effect that such sale or
other disposition was made by the Company in accordance with the applicable
provisions of the Indenture, including without limitation Section 4.10 of the
Indenture, the Trustee shall execute any documents reasonably required in order
to evidence the release of any Guarantor from its Obligations under its
Guarantee.
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Any Guarantor not released from its Obligations under its Guarantee
shall remain liable for the full amount of principal of and interest on the
Notes and for the other Obligations of any Guarantor under the Indenture as
provided in Article 11 of the Indenture.
7. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any Obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Guarantees, the Indenture or
this Second Supplemental Indenture or for any claim based on, in respect of, or
by reason of, such Obligations or their creation. Each Holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. Such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the Commission that such a waiver is against public policy.
8. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SECOND SUPPLEMENTAL INDENTURE WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
9. COUNTERPARTS. The parties may sign any number of copies of this
Second Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
10. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
11. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Second
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
DAYTON SUPERIOR CORPORATION,
as Issuer
By:
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Name:
Title:
TREVECCA HOLDINGS, INC.,
as a Guaranteeing Subsidiary
By:
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Name:
Title:
JDC HOLDINGS, INC.,
as a Guaranteeing Subsidiary
By:
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Name:
Title:
AZTEC CONCRETE ACCESSORIES, INC.,
as a Guaranteeing Subsidiary
By:
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Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:
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Name: Xxxxxxx Xxxxxx
Title: Assistant Vice President
