Exhibit 10.2
Execution Copy
$100,000,000
TERM LOAN CREDIT AGREEMENT
Dated as of March 3, 2008
among
DAYTON SUPERIOR CORPORATION, AS THE BORROWER
THE LENDERS PARTY HERETO
and
GENERAL ELECTRIC CAPITAL CORPORATION,
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT
- - -
GE CAPITAL MARKETS, INC.,
AS SOLE LEAD ARRANGER AND BOOKRUNNER
TERM LOAN CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS..............................................1
Section 1.1 Defined Terms...............................................................1
Section 1.2 UCC Terms..................................................................26
Section 1.3 Accounting Terms and Principles............................................26
Section 1.4 Payments...................................................................27
Section 1.5 Interpretation.............................................................27
ARTICLE 2 THE TERM LOAN FACILITY.......................................................................28
Section 2.1 The Commitments............................................................28
Section 2.2 Borrowing Procedures.......................................................28
Section 2.3 Omitted....................................................................28
Section 2.4 Omitted....................................................................28
Section 2.5 Reduction and Termination of the Commitments...............................28
Section 2.6 Repayment of Term Loans....................................................28
Section 2.7 Optional Prepayments.......................................................29
Section 2.8 Mandatory Prepayments......................................................29
Section 2.9 Interest...................................................................30
Section 2.10 Conversion and Continuation Options........................................31
Section 2.11 Fees.......................................................................31
Section 2.12 Application of Payments....................................................31
Section 2.13 Payments and Computations..................................................32
Section 2.14 Evidence of Debt...........................................................33
Section 2.15 Suspension of Eurodollar Rate Option.......................................34
Section 2.16 Breakage Costs; Increased Costs; Capital Requirements......................35
Section 2.17 Taxes......................................................................36
Section 2.18 Substitution of Lenders....................................................38
ARTICLE 3 CONDITIONS TO THE TERM LOANS.................................................................39
Section 3.1 Conditions Precedent to the Term Loans.....................................39
ARTICLE 4 REPRESENTATIONS AND WARRANTIES...............................................................42
Section 4.1 Corporate Existence; Compliance with Law...................................42
Section 4.2 Loan and Related Documents.................................................43
Section 4.3 Ownership of Group Members.................................................43
Section 4.4 Financial Statements.......................................................44
Section 4.5 Material Adverse Effect....................................................44
Section 4.6 Solvency...................................................................44
Section 4.7 Litigation.................................................................45
Section 4.8 Taxes......................................................................45
Section 4.9 Margin Regulations.........................................................45
Section 4.10 No Defaults................................................................45
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Section 4.11 Investment Company Act.....................................................45
Section 4.12 Labor Matters..............................................................45
Section 4.13 ERISA......................................................................46
Section 4.14 Environmental Matters......................................................46
Section 4.15 Intellectual Property......................................................47
Section 4.16 Title; Real Property.......................................................47
Section 4.17 Full Disclosure............................................................47
Section 4.18 Patriot Act................................................................47
ARTICLE 5 FINANCIAL COVENANTS..........................................................................48
Section 5.1 Maximum Consolidated Leverage Ratio........................................48
Section 5.2 Minimum Consolidated Interest Coverage Ratio...............................48
ARTICLE 6 REPORTING COVENANTS..........................................................................49
Section 6.1 Financial Statements.......................................................49
Section 6.2 Other Events...............................................................51
Section 6.3 Copies of Notices and Reports..............................................52
Section 6.4 Taxes......................................................................52
Section 6.5 Labor Matters..............................................................52
Section 6.6 ERISA Matters..............................................................52
Section 6.7 Environmental Matters......................................................53
Section 6.8 Other Information..........................................................53
ARTICLE 7 AFFIRMATIVE COVENANTS........................................................................53
Section 7.1 Maintenance of Corporate Existence.........................................53
Section 7.2 Compliance with Laws, Etc..................................................53
Section 7.3 Payment of Obligations.....................................................54
Section 7.4 Maintenance of Property....................................................54
Section 7.5 Maintenance of Insurance...................................................54
Section 7.6 Keeping of Books...........................................................54
Section 7.7 Access to Books and Property...............................................54
Section 7.8 Environmental..............................................................55
Section 7.9 Use of Proceeds............................................................55
Section 7.10 Additional Collateral and Guaranties.......................................55
Section 7.11 Deposit Accounts; Securities Accounts and Cash Collateral Accounts.........56
Section 7.12 Credit Rating..............................................................57
Section 7.13 Interest Rate Contracts....................................................57
ARTICLE 8 NEGATIVE COVENANTS...........................................................................57
Section 8.1 Indebtedness...............................................................57
Section 8.2 Liens......................................................................59
Section 8.3 Investments................................................................60
Section 8.4 Asset Sales................................................................60
Section 8.5 Restricted Payments........................................................61
Section 8.6 Prepayment of Indebtedness.................................................62
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Section 8.7 Fundamental Changes........................................................63
Section 8.8 Change in Nature of Business...............................................64
Section 8.9 Transactions with Affiliates...............................................64
Section 8.10 Third-Party Restrictions on Indebtedness, Liens, Investments or
Restricted Payments........................................................64
Section 8.11 Modification of Certain Documents..........................................65
Section 8.12 Accounting Changes; Fiscal Year............................................65
Section 8.13 Margin Regulations.........................................................65
Section 8.14 Compliance with ERISA......................................................65
Section 8.15 Hazardous Materials........................................................66
ARTICLE 9 EVENTS OF DEFAULT............................................................................66
Section 9.1 Definition.................................................................66
Section 9.2 Remedies...................................................................67
Section 9.3 Omitted....................................................................68
ARTICLE 10 THE ADMINISTRATIVE AGENT....................................................................68
Section 10.1 Appointment and Duties.....................................................68
Section 10.2 Binding Effect.............................................................69
Section 10.3 Use of Discretion..........................................................69
Section 10.4 Delegation of Rights and Duties............................................69
Section 10.5 Reliance and Liability.....................................................69
Section 10.6 Administrative Agent Individually..........................................71
Section 10.7 Lender Credit Decision.....................................................71
Section 10.8 Expenses; Indemnities......................................................71
Section 10.9 Resignation of Administrative Agent........................................72
Section 10.10 Release of Collateral or Guarantors........................................72
Section 10.11 Additional Secured Parties.................................................73
ARTICLE 11 MISCELLANEOUS...............................................................................73
Section 11.1 Amendments, Waivers, Etc...................................................73
Section 11.2 Assignments and Participations; Binding Effect.............................75
Section 11.3 Costs and Expenses.........................................................77
Section 11.4 Indemnities................................................................78
Section 11.5 Survival...................................................................79
Section 11.6 Limitation of Liability for Certain Damages................................79
Section 11.7 Lender-Creditor Relationship...............................................79
Section 11.8 Right of Setoff............................................................79
Section 11.9 Sharing of Payments, Etc...................................................79
Section 11.10 Marshaling; Payments Set Aside.............................................80
Section 11.11 Notices....................................................................80
Section 11.12 Electronic Transmissions...................................................81
Section 11.13 Governing Law..............................................................82
Section 11.14 Jurisdiction...............................................................82
Section 11.15 WAIVER OF JURY TRIAL.......................................................82
SECTION 11.16 Severability...............................................................83
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Section 11.17 Execution in Counterparts..................................................83
Section 11.18 Entire Agreement...........................................................83
Section 11.19 Use of Name................................................................83
Section 11.20 Non-Public Information; Confidentiality....................................83
Section 11.21 Patriot Act Notice.........................................................84
TERM LOAN CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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Schedules
---------
Schedule I - Commitments
Schedule 1.1(a) - Consolidated EBITDA
Schedule 4.2 - Filings and Permits
Schedule 4.3 - Group Members and Subsidiaries
Schedule 4.12 - Labor Matters
Schedule 4.13 - ERISA
Schedule 4.14 - Environmental Matters
Schedule 4.16 - Real Property
Schedule 8.1 - Indebtedness
Schedule 8.2 - Liens
Schedule 8.3 - Investments
Exhibits
--------
Exhibit A - Form of Assignment Agreement
Exhibit B - Form of Note
Exhibit C - Form of Notice of Borrowing
Exhibit F - Form of Notice of Conversion or Continuation
Exhibit G - Form of Compliance Certificate
Exhibit H - Form of Guaranty and Security Agreement
Exhibit I - Form of Closing Checklist
Exhibit J - Form of Intercreditor Agreement
TERM LOAN CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
v
This Term Loan Credit Agreement, dated as of March 3, 2008, is
entered into among DAYTON SUPERIOR CORPORATION, a Delaware corporation (the
"Borrower") the Lenders (as defined below) and GENERAL ELECTRIC CAPITAL
CORPORATION ("GE Capital"), as administrative agent and collateral agent for the
Lenders (in such capacity, and together with its successors and permitted
assigns, the "Administrative Agent").
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
Section 1.1 Defined Terms. As used in this Agreement, the
following terms have the following meanings:"Affected Lender" has the meaning
specified in Section 2.18.
"Affiliate" means, with respect to any Person, each officer, director,
general partner or joint-venturer of such Person and any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, such Person; provided, however, that no Secured Party shall be an
Affiliate of the Borrower. For purpose of this definition, "control" means the
possession of either (a) the power to vote, or the beneficial ownership of, 10%
or more of the Voting Stock of such Person or (b) the power to direct or cause
the direction of the management and policies of such Person, whether by contract
or otherwise.
"Agreement" means this Term Loan Credit Agreement, as it may be
amended, restated, supplemented or otherwise modified from time to time.
"Applicable Margin" means, in the case of Base Rate Loans, 2.75% per
annum and in the case of Eurodollar Rate Loans, 3.75% per annum.
"Approved Fund" means, with respect to any Lender, any Person (other
than a natural Person) that (a) is or will be engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business and (b) is advised or managed by
(i) such Lender, (ii) any Affiliate of such Lender or (iii) any Person (other
than an individual) or any Affiliate of any Person (other than an individual)
that administers or manages such Lender.
"Assignment" means an assignment agreement entered into by a Lender, as
assignor, and any Person, as assignee, pursuant to the terms and provisions of
Section 11.2 (with the consent of any party whose consent is required by Section
11.2), accepted by the Administrative Agent, in substantially the form of
Exhibit A, or any other form approved by the Administrative Agent.
"Base Rate" means, at any time, a rate per annum equal to the higher of
(a) the rate last quoted by The Wall Street Journal as the "base rate on
corporate loans posted by at least 75% of the nation's largest banks" in the
United States or, if The Wall Street Journal ceases to quote such rate, the
highest per annum interest rate published by the Federal Reserve Board in
Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the
"bank prime loan" rate or, if such rate is no longer quoted therein, any similar
rate quoted therein (as determined by the Administrative Agent) or any similar
release by the Federal Reserve Board (as determined by the Administrative Agent)
and (b) the sum of 0.5% per annum and the Federal Funds Rate.
"Base Rate Loan" means any Loan that bears interest based on the Base
Rate.
TERM LOAN CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
"Benefit Plan" means any employee benefit plan as defined in Section
3(3) of ERISA (whether governed by the laws of the United States or otherwise)
to which any Group Member incurs or otherwise has any obligation or liability,
contingent or otherwise.
"Business Day" means any day of the year that is not a Saturday, Sunday
or a day on which banks are required or authorized to close in New York City
and, when determined in connection with notices and determinations in respect of
any Eurodollar Rate or Eurodollar Rate Loan or any funding, conversion,
continuation, Interest Period or payment of any Eurodollar Rate Loan, that is
also a day on which dealings in Dollar deposits are carried on in the London
interbank market.
"Capital Lease" means, with respect to any Person, any lease of, or
other arrangement conveying the right to use, any property (whether real,
personal or mixed) by such Person as lessee that has been or should be accounted
for as a capital lease on a balance sheet of such Person prepared in accordance
with GAAP.
"Capitalized Lease Obligations" means, at any time, with respect to any
Capital Lease, any lease entered into as part of any Sale and Leaseback
Transaction of any Person or any synthetic lease, the amount of all obligations
of such Person that is (or that would be, if such synthetic lease or other lease
were accounted for as a Capital Lease) capitalized on a balance sheet of such
Person prepared in accordance with GAAP.
"Cash Collateral Account" means a deposit account or securities account
in the name of the Borrower and under the sole control (as defined in the
applicable UCC) of the Administrative Agent and (a) in the case of a deposit
account, from which the Borrower may not make withdrawals except as permitted by
the Administrative Agent and (b) in the case of a securities account, with
respect to which the Administrative Agent shall be the entitlement holder and
the only Person authorized to give entitlement orders with respect thereto.
"Cash Equivalents" means (a) any readily-marketable securities (i)
issued by, or directly, unconditionally and fully guaranteed or insured by the
United States federal government or (ii) issued by any agency of the United
States federal government the obligations of which are fully backed by the full
faith and credit of the United States federal government, (b) any
readily-marketable direct obligations issued by any other agency of the United
States federal government, any state of the United States or any political
subdivision of any such state or any public instrumentality thereof, in each
case having a rating of at least "A-1" from S&P or at least "P-1" from Xxxxx'x,
(c) any commercial paper rated at least "A-1" by S&P or "P-1" by Xxxxx'x and
issued by any Person organized under the laws of any state of the United States,
(d) any Dollar-denominated time deposit, insured certificate of deposit,
overnight bank deposit or bankers' acceptance issued or accepted by (i) any
Lender or (ii) any commercial bank that is (A) organized under the laws of the
United States, any state thereof or the District of Columbia, (B) "adequately
capitalized" (as defined in the regulations of its primary federal banking
regulators) and (C) has Tier 1 capital (as defined in such regulations) in
excess of $250,000,000 and (e) shares of any United States money market fund
that (i) has substantially all of its assets invested continuously in the types
of investments referred to in clause (a), (b), (c) or (d) above with maturities
as set forth in the proviso below, (ii) has net assets in excess of $500,000,000
and (iii) has obtained from either S&P or Xxxxx'x the highest rating obtainable
for money market funds in the United States; provided, however, that the
maturities of all obligations specified in any of clauses (a), (b), (c) and (d)
above shall not exceed 365 days.
TERM LOAN CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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"CERCLA" means the United States Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. xx.xx. 9601 et seq.).
"Change of Control" means 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 of 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 the Borrower having the
right to vote for the election of directors of the 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 than such "person" or
"group" of the voting power of the issued and outstanding shares of Stock of the
Borrower having the right to vote for the election of directors of the Borrower
under ordinary circumstances and do not have the right or ability to designate
for election a majority of the Board of Directors of the Borrower; or (ii) for
so long as any Senior Subordinated Notes are outstanding, the occurrence of a
"Change of Control" (as defined in the Senior Subordinated Notes Indenture).
For the purpose 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.
"Closing Checklist" means the checklist of closing items attached
hereto as Exhibit I.
"Closing Date" means the date and time on which all conditions
precedent set forth in Section 3.1 are satisfied or waived by the Administrative
Agent.
"Code" means the U.S. Internal Revenue Code of 1986.
"Collateral" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by any Loan Party in or upon which a
Lien is granted or purported to be granted pursuant to any Loan Document.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Term Loans to the Borrower, which commitment is in the amount set
forth opposite such Lender's name on Schedule I under the caption "Commitment",
as amended to reflect Assignments and as such amount may be reduced pursuant to
this Agreement. The aggregate amount of the Commitments on the date hereof
equals $100,000,000.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit G.
"Consolidated" means, with respect to any Person, the accounts of such
Person and its Subsidiaries consolidated in accordance with GAAP.
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"Consolidated Cash Interest Expense" means, with respect to any Person
for any period, the Consolidated Interest Expense of such Person for such period
less the sum of, in each case to the extent included in the definition of
Consolidated Interest Expense, (a) the amortized amount of debt discount and
debt issuance costs, (b) charges relating to write-ups or write-downs in the
book or carrying value of existing Consolidated Total Debt, (c) interest payable
in evidences of Indebtedness or by addition to the principal of the related
Indebtedness and (d) other non-cash interest.
"Consolidated Current Assets" means, with respect to any Person at any
date, the total Consolidated current assets of such Person at such date other
than cash, Cash Equivalents and any Indebtedness owing to such Person or any of
its Subsidiaries by Affiliates of such Person.
"Consolidated Current Liabilities" means, with respect to any Person at
any date, all amounts that would, in conformity with GAAP, be set forth opposite
the caption "total current liabilities" (or any like caption) on a Consolidated
balance sheet of the Borrower and its Subsidiaries at such date, but excluding
(a) the current portion of any Indebtedness of the Borrower and its Subsidiaries
(and accrued interest thereon), (b) without duplication of clause (a) above, all
Indebtedness consisting of Term Loans, Revolving Loans (under and as defined in
the Revolving Credit Agreement) and Swingline Loans (under and as defined in the
Revolving Credit Agreement) to the extent otherwise included therein and (c) the
current portion of any deferred taxes of the Borrower and its Subsidiaries.
"Consolidated EBITDA" means, with respect to any Person for any period,
(a) the Consolidated Net Income of such Person for such period plus (b) the sum
of, in each case to the extent included in the calculation of such Consolidated
Net Income but without duplication, (i) any provision for United States federal
income taxes or other taxes measured by net income, (ii) Consolidated Interest
Expense, amortization of debt discount and commissions and other fees and
charges associated with Indebtedness (including, in the case of the Borrower,
the Loans and Letters of Credit and the "Loans" under and as defined in the Term
Loan Credit Agreement), (iii) any loss from extraordinary items, (iv) any
depreciation, depletion or amortization expense, (v) any aggregate net loss on
the Sale of property (other than accounts (as defined under the applicable UCC)
and inventory) outside the ordinary course of business, (vi) any other non-cash
expenditure, charge or loss for such period (including, but not limited to,
impairment of goodwill and excluding any non-cash expenditure, charge or loss
relating to write-offs, write-downs or reserves with respect to accounts and
inventory), including the amount of any compensation deduction as the result of
any grant of Stock or Stock Equivalents to employees, officers, directors or
consultants, (vii) any financial advisory fees, accounting fees, legal fees and
other similar advisory and consulting fees and out-of-pocket expenses and
redemption premiums and costs incurred in connection with the Revolving Credit
Facility, the Term Loan Facility, the redemption of the Senior Notes or the
Senior Subordinated Notes or the refinancing of the Existing Credit Agreement or
any actual or proposed Permitted Investment (including any Permitted
Acquisition) or issuance of Permitted Indebtedness, (viii) expenses incurred in
connection with any Permitted Acquisition (whether or not consummated),
including expenses for early retirement of Indebtedness, consolidation or
discontinuance of any portion of the operations, employees and/or management, in
each case whether or not classified as restructuring charges under GAAP, (ix)
any one-time or non-recurring cash charges resulting from severance, relocation,
restructuring, integration and other similar adjustments, whether or not
classified as restructuring charges under GAAP or any business optimization
costs and expenses, in an aggregate amount not to exceed $5,000,000 during any
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Fiscal Year and minus (c) the sum of, in each case to the extent included in the
calculation of such Consolidated Net Income and without duplication, (i) any
credit for United States federal income taxes or other taxes measured by net
income, (ii) any interest income, (iii) any gain from extraordinary items and
any other non-recurring gain, (iv) any aggregate net gain from the Sale of
property (other than accounts (as defined in the applicable UCC) and inventory)
out of the ordinary course of business by such Person, (v) any other non-cash
gain, including any reversal of a charge referred to in clause (b)(vi) above by
reason of a decrease in the value of any Stock or Stock Equivalent, and (vi) any
other cash payment in respect of expenditures, charges and losses that have been
added to Consolidated EBITDA of such Person pursuant to clause (b)(vi) above in
any prior period. It is agreed that Consolidated EBITDA for the Fiscal Months
ended December 31, 2006 through December 31, 2007 is as set forth on Schedule
1.1(a).
"Consolidated Interest Coverage Ratio" means, with respect to any
Person for any period, the ratio of (a) Consolidated EBITDA of such Person for
such period to (b) Consolidated Cash Interest Expense of such Person for such
period.
"Consolidated Interest Expense" means, for any Person for any period,
(a) Consolidated total interest expense of such Person and its Subsidiaries for
such period and including, in any event, (i) interest capitalized during such
period and net costs under Interest Rate Contracts for such period and (ii) all
fees, charges, commissions, discounts and other similar obligations (other than
reimbursement obligations) with respect to letters of credit, bank guarantees,
banker's acceptances, surety bonds and performance bonds (whether or not
matured) payable by such Person and its Subsidiaries during such period minus
(b) the sum of (i) Consolidated net gains of such Person and its Subsidiaries
under Interest Rate Contracts for such period and (ii) Consolidated interest
income of such Person and its Subsidiaries for such period.
"Consolidated Leverage Ratio" means, with respect to any Person as of
any date, the ratio of (a) Consolidated Total Debt of such Person outstanding as
of such date to (b) Consolidated EBITDA for such Person for the last period of
four consecutive Fiscal Quarters most recently then ended for which Financial
Statements have been delivered pursuant to Section 6.1 or are available and
where required to be delivered pursuant to Section 6.1.
"Consolidated Net Income" means, with respect to any Person, for any
period, the Consolidated net income (or loss) of such Person and its
Subsidiaries for such period; provided, however, that the following shall be
excluded: (a) the net income of any other Person in which such Person or one of
its Subsidiaries has a joint interest with a third-party (which interest does
not cause the net income of such other Person to be Consolidated into the net
income of such Person), except to the extent of the amount of dividends or
distributions paid to such Person or Subsidiary, (b) the net income of any
Subsidiary of such Person that is, on the last day of such period, subject to
any restriction or limitation on the payment of dividends or the making of other
distributions, to the extent of such restriction or limitation and (c) the net
income of any other Person arising prior to such other Person becoming a
Subsidiary of such Person or merging or consolidating into such Person or its
Subsidiaries.
"Consolidated Total Debt" means with respect to any Person, at any
date, the aggregate principal or face amount of Indebtedness of such Person of a
type described in clause (a), (b), (c)(i), (d) or (f) of the definition thereof
and all Guaranty Obligations with respect to any such Indebtedness, in each case
determined on a Consolidated basis in accordance with GAAP; provided, that the
Senior Notes and the Senior Subordinated Notes shall not be counted for purposes
of calculating the Consolidated Total Debt if the Borrower shall have issued a
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notice of redemption to the holders of the Senior Notes or the Senior
Subordinated Notes (as applicable) calling for a redemption of the Senior Notes
or the Senior Subordinated Notes (as applicable) and shall have deposited with
the Trustee under the Senior Notes Indenture or the Senior Subordinated Notes
Indenture (as applicable) cash in an amount sufficient to fund such redemption.
"Constituent Documents" means, with respect to any Person, collectively
and, in each case, together with any modification of any term thereof, (a) the
articles of incorporation, certificate of incorporation, constitution or
certificate of formation of such Person, (b) the bylaws, operating agreement or
joint venture agreement of such Person, (c) any other constitutive,
organizational or governing document of such Person, whether or not equivalent,
and (d) any other document setting forth the manner of election or duties of the
directors, officers or managing members of such Person or the designation,
amount or relative rights, limitations and preferences of any Stock of such
Person.
"Contractual Obligation" means, with respect to any Person, any
provision of any Security issued by such Person or of any document or
undertaking (other than a Loan Document) to which such Person is a party or by
which it or any of its property is bound or to which any of its property is
subject.
"Control Agreement" means, with respect to any deposit account (other
than Excluded Accounts), any securities account, commodity account, securities
entitlement or commodity contract, an agreement, in form and substance
reasonably satisfactory to the Administrative Agent, among the Administrative
Agent, the financial institution or other Person at which such account is
maintained or with which such entitlement or contract is carried and the Loan
Party maintaining such account, entitlement or contract effective to grant
"control" (as defined under the applicable UCC) over such account, securities
entitlement or commodities contract to the Administrative Agent.
"Controlled Deposit Account" means each deposit account (including all
funds on deposit therein and excluding any Excluded Accounts) that is the
subject of an effective Control Agreement and that is maintained by any Loan
Party with a financial institution approved by the Administrative Agent.
"Controlled Securities Account" means each securities account or
commodity account (including all financial assets held therein and all
certificates and instruments, if any, representing or evidencing such financial
assets) that is the subject of an effective Control Agreement and that is
maintained by any Loan Party with a securities intermediary or commodity
intermediary approved by the Administrative Agent.
"Copyrights" means all rights, title and interests (and all related IP
Ancillary Rights) arising under any Requirement of Law in or relating to
copyrights and all mask work, database and design rights, whether or not
registered or published, all registrations and recordations thereof and all
applications in connection therewith.
"Corporate Chart" means a document in form reasonably acceptable to the
Administrative Agent and setting forth, as of a date set forth therein, for each
Person that is a Loan Party, that is subject to Section 7.10 or that is a
Subsidiary or joint venture of any of them, (a) the full legal name of such
Person, (b) the jurisdiction of organization and any organizational number and
tax identification number of such Person, (c) the location of such Person's
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chief executive office (or, if applicable, sole place of business) and (d) the
number of shares of each class of Stock of such Person authorized, the number
outstanding and the number and percentage of such outstanding shares for each
such class owned, directly or indirectly, by any Loan Party or any Subsidiary of
any of them.
"Customary Permitted Liens" means, with respect to any Person, any of
the following:
(a) Liens (i) with respect to the payment of taxes, assessments or
other governmental charges or (ii) of suppliers, carriers, materialmen,
warehousemen, workmen or mechanics and other similar Liens, in each case imposed
by law or arising in the ordinary course of business, and, for each of the Liens
in clauses (i) and (ii) above for amounts that are not yet due or that are being
contested in good faith by appropriate proceedings diligently conducted and with
respect to which adequate reserves or other appropriate provisions are
maintained on the books of such Person in accordance with GAAP;
(b) Liens of a collection bank on items in the course of collection
arising under Section 4-208 of the UCC as in effect in the State of New York or
any similar section under any applicable UCC or any similar Requirement of Law
of any foreign jurisdiction;
(c) pledges or cash deposits made in the ordinary course of business
(i) in connection with workers' compensation, unemployment insurance or other
types of social security benefits (other than any Lien imposed by ERISA), (ii)
to secure the performance of bids, tenders, leases (other than Capital Leases)
sales or other trade contracts (other than for the repayment of borrowed money)
or (iii) made in lieu of, or to secure the performance of, surety, customs,
reclamation or performance bonds (in each case not related to judgments or
litigation);
(d) judgment liens (other than for the payment of taxes, assessments or
other governmental charges) securing judgments and other proceedings not
constituting an Event of Default under Section 9.1(e) and pledges or cash
deposits made in lieu of, or to secure the performance of, judgment or appeal
bonds in respect of such judgments and proceedings;
(e) Liens (i) arising by reason of zoning restrictions, easements,
licenses, reservations, restrictions, covenants, rights-of-way, encroachments,
minor defects or irregularities in title (including leasehold title) and other
similar encumbrances on the use of real property or (ii) consisting of leases,
licenses or subleases granted by a lessor, licensor or sublessor on its property
(in each case other than Capital Leases) otherwise permitted under Section 8.4
that, for each of the Liens in clauses (i) and (ii) above, do not, in the
aggregate, materially (x) impair the value or marketability of such real
property or (y) interfere with the ordinary conduct of the business conducted
and proposed to be conducted at such real property;
(f) Liens of landlords and mortgagees of landlords (i) arising by
statute or under any lease or related Contractual Obligation entered into in the
ordinary course of business, (ii) on fixtures and movable tangible property
located on the real property leased or subleased from such landlord, (iii) for
amounts not yet due or that are being contested in good faith by appropriate
proceedings diligently conducted and (iv) for which adequate reserves or other
appropriate provisions are maintained on the books of such Person in accordance
with GAAP; and
(g) the title and interest of a lessor or sublessor in and to personal
property leased or subleased (other than through a Capital Lease), in each case
extending only to such personal property.
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"Default" means any Event of Default and any event that, with the
passing of time or the giving of notice or both, would become an Event of
Default.
"Disclosure Documents" means, collectively, (a) all confidential
information memoranda and related materials prepared in connection with the
syndication of the Term Loan Facility and (b) all other documents filed by any
Group Member with the United States Securities and Exchange Commission.
"Disqualified Stock" means that portion of any Stock or Stock
Equivalents which, by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event (other than an event which would
constitute a Change of Control), matures (excluding any maturity as the result
of an optional redemption by the issuer thereof) or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole
option of the holder thereof (except, in each case, upon the occurrence of a
Change of Control) on or before the date that is six months after the 6th
anniversary of the Closing Date.
"Dollars" and the sign "$" each mean the lawful money of the United
States.
"Domestic Person" means any "United States person" under and as defined
in Section 770l(a)(30) of the Code.
"Domestic Subsidiaries" means each Subsidiary of the Borrower that is
organized under the laws of a State of the United States or the District of
Columbia.
"E-Fax" means any system used to receive or transmit faxes
electronically.
"Electronic Transmission" means each document, instruction,
authorization, file, information and any other communication transmitted, posted
or otherwise made or communicated by e-mail or E-Fax, or otherwise to or from an
E-System or other equivalent service.
"Environmental Laws" means all Requirements of Law and Permits imposing
liability or standards of conduct for or relating to the regulation of Hazardous
Materials and/or the protection of human health, safety, the environment and
natural resources, including CERCLA, the SWDA, the Hazardous Materials
Transportation Act (49 U.S.C. xx.xx. 5101 et seq.), the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. xx.xx. 136 et seq.), the Toxic
Substances Control Act (15 U.S.C. xx.xx. 2601 et seq.), the Clean Air Act (42
U.S.C. xx.xx. 7401 et seq.), the Federal Water Pollution Control Act (33 U.S.C.
xx.xx. 1251 et seq.), the Occupational Safety and Health Act (29 U.S.C. xx.xx.
651 et seq.), the Safe Drinking Water Act (42 U.S.C. xx.xx. 300(f) et seq.), all
regulations promulgated under any of the foregoing, all analogous Requirements
of Law and Permits and any environmental transfer of ownership notification or
approval statutes, including the Industrial Site Recovery Act (N.J. Stat. Xxx.
xx.xx. 13:1K-6 et seq.).
"Environmental Liabilities" means all Liabilities (including costs of
Remedial Actions, natural resource damages and costs and expenses of
investigation and feasibility studies) that may be imposed on, incurred by or
asserted against any Group Member as a result of, or related to, any claim,
suit, action, investigation, proceeding or written demand by any Person, whether
based in contract, tort, implied or express warranty, strict liability, criminal
or civil statute or common law or otherwise, arising under any Environmental Law
or in connection with any environmental condition or with any Release and
TERM LOAN CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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resulting from the ownership, lease, sublease or other operation or occupation
of property by any Group Member, whether on, prior or after the date hereof.
"ERISA" means the United States Employee Retirement Income Security Act
of 1974.
"ERISA Affiliate" means, collectively, any Group Member, and any Person
under common control, or treated as a single employer, with any Group Member,
within the meaning of Section 414(b), (c), (m) or (o) of the Code.
"ERISA Event" means any of the following: (a) a reportable event
described in Section 4043(b) of ERISA (or, unless the 30-day notice requirement
has been duly waived under the applicable regulations, Section 4043(c) of ERISA)
with respect to a Title IV Plan, (b) the withdrawal of any ERISA Affiliate from
a Title IV Plan subject to Section 4063 of ERISA during a plan year in which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA, (c) the
complete or partial withdrawal of any ERISA Affiliate from any Multiemployer
Plan, (d) with respect to any Multiemployer Plan, the filing of a notice of
reorganization, insolvency or termination (or treatment of a plan amendment as
termination) under Section 4041A of ERISA, (e) the filing of a notice of intent
to terminate a Title IV Plan (or treatment of a plan amendment as termination)
under Section 4041 of ERISA, (f) the institution of proceedings to terminate a
Title IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make any
required contribution to any Title IV Plan or Multiemployer Plan when due, (h)
the imposition of a lien under Section 430(k) of the Code or Section 303(k) or
4068 of ERISA on any property (or rights to property, whether real or personal)
of any ERISA Affiliate, or a violation of Section 436 of the Code with respect
to a Title IV Plan, (i) the failure of a Benefit Plan or any trust thereunder
intended to qualify for tax exempt status under Section 401 or 501 of the Code
or other Requirements of Law to qualify thereunder and (j) any other event or
condition that might reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Title IV Plan or Multiemployer Plan or for the imposition of any
liability upon any ERISA Affiliate under Title IV of ERISA other than for PBGC
premiums due but not delinquent.
"E-Signature" means the process of attaching to or logically
associating with an Electronic Transmission an electronic symbol, encryption,
digital signature or process (including the name or an abbreviation of the name
of the party transmitting the Electronic Transmission) with the intent to sign,
authenticate or accept such Electronic Transmission.
"E-System" means any electronic system, including Intralinks(R) and
CleraPar(R) and any other Internet or extranet-based site, whether such
electronic system is owned, operated or hosted by the Administrative Agent, any
of its Related Persons or any other Person, providing for access to data
protected by passcodes or other security system.
"Eurodollar Base Rate" means, with respect to any Interest Period for
any Eurodollar Rate Loan, the greater of (i) 3.25% and (ii) the rate determined
by the Administrative Agent to be the offered rate for deposits in Dollars for
the applicable Interest Period appearing on the Reuters Screen LIBOR01 page as
of 11:00 a.m. (London time) on the second full Business Day next preceding the
first day of each Interest Period. In the event that such rate does not appear
on the Reuters Screen LIBOR01 page at such time, the "Eurodollar Base Rate"
shall be determined by reference to such other comparable publicly available
service for displaying the offered rate for deposit in Dollars in the London
interbank market as may be selected by the Administrative Agent and, in the
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[DAYTON SUPERIOR CORPORATION]
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absence of availability, such other method to determine such offered rate as may
be selected by the Administrative Agent in its sole discretion.
"Eurodollar Rate" means, with respect to any Interest Period and for
any Eurodollar Rate Loan, an interest rate per annum determined as the ratio of
(a) the Eurodollar Base Rate with respect to such Interest Period for such
Eurodollar Rate Loan to (b) the difference between the number one and the
Eurodollar Reserve Requirements with respect to such Interest Period and for
such Eurodollar Rate Loan.
"Eurodollar Rate Loan" means any Loan that bears interest based on the
Eurodollar Rate.
"Eurodollar Reserve Requirements" means, with respect to any Interest
Period and for any Eurodollar Rate Loan, a rate per annum equal to the
aggregate, without duplication, of the maximum rates (expressed as a decimal
number) of reserve requirements in effect 2 Business Days prior to the first day
of such Interest Period (including basic, supplemental, marginal and emergency
reserves) under any regulations of the Federal Reserve Board or other
Governmental Authority having jurisdiction with respect thereto dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "eurocurrency liabilities" in Regulation D of the Federal Reserve Board)
maintained by a member bank of the United States Federal Reserve System.
"Event of Default" has the meaning specified in Section 9.1.
"Excess Cash Flow" means, for any period, (a) Consolidated EBITDA of
the Borrower for such period, minus (b) without duplication, (i) any cash
principal payment on the Loans during such period other than any mandatory
prepayment required pursuant to Section 2.8(a) because of the existence of
Excess Cash Flow, (ii) any scheduled or other mandatory cash principal payment
made by the Borrower or any of its Subsidiaries during such period on any
Capitalized Lease Obligation or other Indebtedness (but only, if such
Indebtedness may be reborrowed, to the extent such payment results in a
permanent reduction in commitments thereof), (iii) any Capital Expenditure made
by such Person or any of its Subsidiaries during such period, excluding in each
case any such Capital Expenditure to the extent financed through the incurrence
of Capitalized Lease Obligations or any long-term Indebtedness other than the
Obligations, (iv) the Consolidated Interest Expense of such Person for such
period, (v) any cash losses from extraordinary items, (vi) any cash payment made
during such period to satisfy obligations for United States federal income taxes
or other taxes measured by net income, (vii) any increase in the Working Capital
of the Borrower during such period (measured as the excess of such Working
Capital at the end of such period over such Working Capital at the beginning of
such period), (viii) the aggregate amount actually paid by the Borrower and its
Subsidiaries in cash during such period on account of any Permitted Acquisition
or other Investments permitted under clause (d) of Section 8.3, in each case to
the extent such cash payment is made with internally generated cash flow, (ix)
any depreciation, depletion or amortization expense, (x) any aggregate net loss
on the Sale of property (other than accounts (as defined under the applicable
UCC) and inventory) outside the ordinary course of business, (xi) any other
non-cash expenditure, charge or loss for such period (including, but not limited
to, impairment of goodwill and excluding any non-cash expenditure, charge or
loss relating to write-offs, write-downs or reserves with respect to accounts
and inventory), including the amount of any compensation deduction as the result
of any grant of Stock or Stock Equivalents to employees, officers, directors or
consultants, (xii) any financial advisory fees, accounting fees, legal fees and
other similar advisory and consulting fees and out-of-pocket expenses and
TERM LOAN CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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redemption premiums and costs incurred in connection with the Revolving Credit
Facility, the Term Loan Facility, the redemption of the Senior Notes or the
Senior Subordinated Notes or the refinancing of the Existing Credit Agreement or
any actual or proposed Permitted Investment (including any Permitted
Acquisition) or issuance of Permitted Indebtedness, (xiii) expenses incurred in
connection with any Permitted Acquisition (whether or not consummated),
including expenses for early retirement of Indebtedness, consolidation or
discontinuance of any portion of the operations, employees and/or management, in
each case whether or not classified as restructuring charges under GAAP and
(xiv) any one-time or non-recurring cash charges resulting from severance,
relocation, restructuring, integration and other similar adjustments, whether or
not classified as restructuring charges under GAAP or any business optimization
costs and expenses, in an aggregate amount not to exceed $5,000,000 during any
Fiscal Year, plus (c) without duplication, any decrease in the Working Capital
of the Borrower during such period (measured as the excess of such Working
Capital at the beginning of such period over such Working Capital at the end
thereof).
"Excluded Accounts" means any (a) zero balance payroll, withholding tax
and other fiduciary accounts of any Group Member and (b) other deposit accounts
of any Group Member that in the aggregate do not hold more than $250,000 on an
overnight basis.
"Excluded Foreign Subsidiary" means (a) any Subsidiary of the Borrower
that is not a Domestic Person or is a Domestic Person all or substantially all
of whose assets consists of Stock of Subsidiaries that are not Domestic Persons,
and in respect of which the pledge of all of the Stock of such Subsidiary as
Collateral for any Obligation of the Borrower, would, in the good faith judgment
of the Borrower, result in materially adverse tax consequences to the Loan
Parties and their Subsidiaries, taken as a whole, and which has not guaranteed
any material Indebtedness of the Borrower or any Domestic Subsidiary of the
Borrower and more than 66 2/3% of the voting stock of such Domestic Person has
not been pledged to secure any such Indebtedness and (b) provided that it has
not guaranteed any material Indebtedness of the Borrower or any Domestic
Subsidiary thereof, Dayton Superior Canada Ltd.
"Existing Agent" means General Electric Capital Corporation, in its
capacity as administrative agent under the Existing Credit Agreement.
"Existing Credit Agreement" means that certain Credit Agreement, dated
as of January 30, 2004, as amended, among the Borrower, the institutions party
thereto as lenders and issuers and the Existing Agent.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as determined by the
Administrative Agent in its sole discretion.
"Federal Reserve Board" means the Board of Governors of the United
States Federal Reserve System and any successor thereto.
"Fee Letter" means the letter agreement, dated as of November 13, 2007,
addressed to the Borrower from the Administrative Agent and accepted by the
Borrower, with respect to certain fees to be paid from time to time to the
Administrative Agent and its Related Persons.
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"Financial Statement" means each financial statement delivered pursuant
to Section 4.4 or 6.1.
"Fiscal Month" means any of the monthly accounting periods of the
Borrower.
"Fiscal Quarter" means each 3 Fiscal Month period ending on March 31,
June 30, September 30 or December 31.
"Fiscal Year" means the twelve-month period ending on December 31.
"GAAP" means generally accepted accounting principles in the United
States, as in effect from time to time, set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants, in the statements and pronouncements of the
Financial Accounting Standards Board and in such other statements by such other
entity as may be in general use by significant segments of the accounting
profession that are applicable to the circumstances as of the date of
determination. Subject to Section 1.3, all references to "GAAP" shall be to GAAP
applied consistently with the principles used in the preparation of the
Financial Statements described in Section 4.4(a).
"Governmental Authority" means any nation, sovereign or government, any
state or other political subdivision thereof, any agency, authority or
instrumentality thereof and any entity or authority exercising executive,
legislative, taxing, judicial, regulatory or administrative functions of or
pertaining to government, including any central bank, stock exchange, regulatory
body, arbitrator, public sector entity, supra-national entity (including the
European Union and the European Central Bank) and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Group Members" means, collectively, the Borrower and its Subsidiaries.
"Group Members' Accountants" means Deloitte & Touche USA LLP or other
nationally-recognized independent registered certified public accountants
designated by the Borrower and reasonably acceptable to the Administrative
Agent.
"Guarantor" means each Subsidiary of the Borrower listed on Schedule
4.3 that is a Domestic Subsidiary and party to the Guaranty and Security
Agreement on the Closing Date and, after the Closing Date, each other Subsidiary
of the Borrower that is a Domestic Subsidiary and is not an Excluded Foreign
Subsidiary and that becomes a party to the Guaranty and Security Agreement
pursuant to Section 7.10.
"Guaranty and Security Agreement" means a guaranty and security
agreement, in substantially the form of Exhibit H, among the Administrative
Agent, the Borrower and each Guarantor from time to time party thereto, as the
same may from time to time be amended, restated, supplemented or otherwise
modified.
"Guaranty Obligation" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of such Person for any
Indebtedness, lease, dividend or other obligation (the "primary obligation") of
another Person (the "primary obligor"), if the purpose or intent of such Person
in incurring such liability, or the economic effect thereof, is to guarantee
such primary obligation or provide support, assurance or comfort to the holder
of such primary obligation or to protect or indemnify such holder against loss
TERM LOAN CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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with respect to such primary obligation, including (a) the direct or indirect
guaranty, endorsement (other than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse
by such Person of any primary obligation, (b) the incurrence of reimbursement
obligations with respect to any letter of credit or bank guarantee in support of
any primary obligation, (c) the existence of any Lien, or any right, contingent
or otherwise, to receive a Lien, on the property of such Person securing any
part of any primary obligation and (d) any liability of such Person for a
primary obligation through any Contractual Obligation (contingent or otherwise)
or other arrangement (i) to purchase, repurchase or otherwise acquire such
primary obligation or any security therefor or to provide funds for the payment
or discharge of such primary obligation (whether in the form of a loan, advance,
stock purchase, capital contribution or otherwise), (ii) to maintain the
solvency, working capital, equity capital or any balance sheet item, level of
income or cash flow, liquidity or financial condition of any primary obligor,
(iii) to make take-or-pay or similar payments, if required, regardless of
non-performance by any other party to any Contractual Obligation, (iv) to
purchase, sell or lease (as lessor or lessee) any property, or to purchase or
sell services, primarily for the purpose of enabling the primary obligor to
satisfy such primary obligation or to protect the holder of such primary
obligation against loss or (v) to supply funds to or in any other manner invest
in, such primary obligor (including to pay for property or services irrespective
of whether such property is received or such services are rendered); provided,
however, that "Guaranty Obligations" shall not include (x) endorsements for
collection or deposit in the ordinary course of business and (y) product
warranties given in the ordinary course of business. The outstanding amount of
any Guaranty Obligation shall equal the outstanding amount of the primary
obligation so guaranteed or otherwise supported or, if lower, the stated maximum
amount for which such Person may be liable under such Guaranty Obligation.
"Hazardous Material" means any substance, material or waste that is
classified, regulated or otherwise characterized under any Requirements of Law
as hazardous, toxic, a contaminant or a pollutant or by other words of similar
meaning or regulatory effect, including petroleum or any fraction thereof,
asbestos, polychlorinated biphenyls and radioactive substances.
"Hedging Agreement" means any Interest Rate Contract, foreign exchange,
swap, option or forward contract, spot, cap, floor or collar transaction, any
other derivative instrument and any other similar speculative transaction and
any other similar agreement or arrangement designed to alter the risks of any
Person arising from fluctuations in any underlying variable.
"Indebtedness" of any Person means, without duplication, any of the
following, whether or not matured: (a) all indebtedness for borrowed money, (b)
all obligations evidenced by notes, bonds, debentures or similar instruments,
(c) all reimbursement and all obligations with respect to (i) letters of credit,
bank guarantees or bankers' acceptances or (ii) surety, customs, reclamation or
performance bonds (in each case not related to judgments or litigation) other
than those entered into in the ordinary course of business, (d) all obligations
to pay the deferred purchase price of property or services, other than trade
payables incurred in the ordinary course of business, (e) all obligations
created or arising under any conditional sale or other title retention
agreement, regardless of whether the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such property, (f) all Capitalized Lease Obligations, (g) all obligations,
whether or not contingent, to purchase, redeem, retire, defease or otherwise
acquire for value any of its own Disqualified Stock (or Stock Equivalents
relating to any Disqualified Stock) valued at, in the case of redeemable
preferred Disqualified Stock, the greater of the voluntary liquidation
TERM LOAN CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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preference and the involuntary liquidation preference of such Disqualified Stock
plus accrued and unpaid dividends, (h) all payments that would be required to be
made in respect of any Hedging Agreement in the event of a termination
(including an early termination) on the date of determination and (i) all
Guaranty Obligations for obligations of any other Person constituting
Indebtedness of such other Person; provided, however, that the items in each of
clauses (a) through (i) above shall constitute "Indebtedness" of such Person
solely to the extent, directly or indirectly, (x) such Person is liable for any
part of any such item, (y) any such item is secured by a Lien on such Person's
property or (z) any other Person has a right, contingent or otherwise, to cause
such Person to become liable for any part of any such item or to grant such a
Lien.
"Indemnified Matter" has the meaning specified in Section 11.4.
"Indemnitee" has the meaning specified in Section 11.4.
"Initial Projections" means those financial projections, dated
February, 2008, covering the Fiscal Years ending in 2008 through 2012 and
delivered to the Administrative Agent by the Borrower prior to the date hereof.
"Intellectual Property" means all rights, title and interests in or
relating to intellectual property and industrial property arising under any
Requirement of Law and all IP Ancillary Rights relating thereto, including all
Copyrights, Patents, Trademarks, Internet Domain Names, Trade Secrets and IP
Licenses.
"Intercreditor Agreement" means the intercreditor agreement,
substantially in the form attached hereto as Exhibit J, among the Administrative
Agent, the Revolving Credit Administrative Agent, the Borrower and the other
Loan Parties, as the same may from time to time be amended, restated,
supplemented or otherwise modified.
"Interest Period" means, with respect to any Eurodollar Rate Loan, the
period commencing on the date such Eurodollar Rate Loan is made or converted to
a Eurodollar Rate Loan or, if such loan is continued, on the last day of the
immediately preceding Interest Period therefor and, in each case, ending 1, 2,
3, 6 or, subject to availability by all affected Lenders, 9 or 12 months
thereafter, as selected by the Borrower pursuant hereto; provided, however, that
(a) if any Interest Period would otherwise end on a day that is not a Business
Day, such Interest Period shall be extended to the next succeeding Business Day,
unless the result of such extension would be to extend such Interest Period into
another such Business Day falls in the next calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day, (b) any
Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of a
calendar month, (c) the Borrower may not select any Interest Period ending after
the Scheduled Maturity Date, (d) the Borrower may not select any Interest Period
in respect of any portion of the Term Loans having an aggregate principal amount
of less than $5,000,000 and (e) there shall be outstanding at any one time no
more than 10 Interest Periods.
"Interest Rate Contracts" means all interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements and interest rate
insurance.
"Internet Domain Names" means all rights, title and interests (and all
related IP Ancillary Rights) arising under any Requirement of Law in or relating
to Internet domain names.
TERM LOAN CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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"Investment" means, with respect to any Person, directly or indirectly,
(a) to own, purchase or otherwise acquire, in each case whether beneficially or
otherwise, any investment in, including any interest in, any Security of any
other Person (other than any evidence of any Obligation), (b) to purchase or
otherwise acquire, whether in one transaction or in a series of transactions,
all or a significant part of the property of any other Person or a business
conducted by any other Person or all or substantially all of the assets
constituting the business of a division, branch, brand or other unit operation
of any other Person, (c) to incur, or to remain liable under, any Guaranty
Obligation for Indebtedness of any other Person, to assume the Indebtedness of
any other Person or to make, hold, purchase or otherwise acquire, in each case
directly or indirectly, any deposit, loan, advance, commitment to lend or
advance, or other extension of credit (including by deferring or extending the
date of, in each case outside the ordinary course of business, the payment of
the purchase price for Sales of property or services to any other Person, to the
extent such payment obligation constitutes Indebtedness of such other Person),
excluding deposits with financial institutions available for withdrawal on
demand, prepaid expenses, accounts receivable and similar items created in the
ordinary course of business, (d) to make, directly or indirectly, any
contribution to the capital of any other Person or (e) to Sell to any Affiliate
any property for less than fair market value (including a disposition of cash or
Cash Equivalents in exchange for consideration of lesser value); provided,
however, that such Investment shall be valued at the difference between the
value of the consideration for such Sale and the fair market value of the
property Sold.
"IP Ancillary Rights" means, with respect to any other Intellectual
Property, as applicable, all foreign counterparts to, and all divisionals,
reversions, continuations, continuations-in-part, reissues, reexaminations,
renewals and extensions of, such Intellectual Property and all income,
royalties, proceeds and Liabilities at any time due or payable or asserted under
or with respect to any of the foregoing or otherwise with respect to such
Intellectual Property, including all rights to xxx or recover at law or in
equity for any past, present or future infringement, misappropriation, dilution,
violation or other impairment thereof, and, in each case, all rights to obtain
any other IP Ancillary Right.
"IP License" means all Contractual Obligations (and all related IP
Ancillary Rights), whether written or oral, granting any right title and
interest in or relating to any Intellectual Property.
"IRS" means the Internal Revenue Service of the United States and any
successor thereto.
"Lender" means each Lender that has a Commitment or that holds a Term
Loan.
"Liabilities" means all claims, actions, suits, judgments, damages,
losses, liability, obligations, and any related fines, penalties, sanctions,
costs, fees, taxes, commissions, charges, disbursements and expenses, in each
case of any kind or nature (including interest accrued thereon or as a result
thereto and fees, charges and disbursements of financial, legal and other
advisors and consultants), whether joint or several, whether or not indirect,
contingent, consequential, actual, punitive, treble or otherwise.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory
or other), security interest or other security arrangement and any other
preference, priority or preferential arrangement of any kind or nature
whatsoever, including any conditional sale contract or other title retention
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agreement, the interest of a lessor under a Capital Lease and any synthetic or
other financing lease having substantially the same economic effect as any of
the foregoing.
"Loan Documents" means, collectively, this Agreement, any Notes, the
Guaranty and Security Agreement, the Intercreditor Agreement, the Mortgages, the
Control Agreements, the Fee Letter, the Secured Hedging Agreements and, when
executed, each document executed by a Loan Party and delivered to the
Administrative Agent, any Lender in connection with or pursuant to any of the
foregoing or the Obligations, together with any modification of any term, or any
waiver with respect to, any of the foregoing.
"Loan Party" means the Borrower and each Guarantor.
"Material Adverse Effect" means an effect that results in or causes, or
could reasonably be expected to result in or cause, a material adverse change in
any of (a) the condition (financial or otherwise), business, performance,
operations or property of the Group Members, taken as a whole, (b) the ability
of any Loan Party to perform its obligations under any Loan Document and (c) the
validity or enforceability of any Loan Document or the rights and remedies of
the Administrative Agent, the Lenders and the other Secured Parties under any
Loan Document.
"Material Environmental Liabilities" means Environmental Liabilities
exceeding $500,000.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means any mortgage, deed of trust or other document executed
or required herein to be executed by any Loan Party and granting a security
interest over any owned real property in favor of the Administrative Agent as
security for the Obligations.
"Mortgage Supporting Documents" means, with respect to any Mortgage for
a parcel of owned real property, each document (including title policies or
marked-up unconditional insurance binders (in each case, together with copies of
all documents referred to therein), maps, ALTA (or TLTA, if applicable) as-built
surveys (in form and as to date that is sufficiently acceptable to the title
insurer issuing title insurance to the Administrative Agent for such title
insurer to deliver endorsements to such title insurance as reasonably requested
by the Administrative Agent), environmental assessments and reports (in the case
of owned real property acquired after the Closing Date) and evidence regarding
recording and payment of fees, insurance premium and taxes) that the
Administrative Agent may reasonably request, to create, register, perfect,
maintain, evidence the existence, substance, form or validity of or enforce a
valid lien on such parcel of real property in favor of the Administrative Agent
for the benefit of the Secured Parties, subject only to Permitted Liens and such
other Liens as the Administrative Agent may reasonably approve.
"Multiemployer Plan" means any multiemployer plan, as defined in
Section 400l(a)(3) of ERISA, to which any ERISA Affiliate incurs or otherwise
has any obligation or liability, contingent or otherwise.
"Net Cash Proceeds" means proceeds received in cash from (a) any Sale
of, or Property Loss Event with respect to, property, net of (i) the reasonable
out-of-pocket cash costs, fees and expenses paid or required to be paid in
connection therewith, (ii) any taxes paid or reasonably estimated to be payable
as a result thereof, (iii) any amount required to be applied to the repayment of
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Indebtedness other than owing to any Group Member (including any premium or
penalty, if any, and interest) secured by a Lien expressly permitted hereunder
on any asset that is the subject of such Sale or Property Loss Event (excluding
any Lien pursuant to a Loan Document but including, in the case of the Revolving
Credit Priority Collateral, the Revolving Credit Documents) and (iv) any amounts
provided as a reserve, in accordance with GAAP, against any liabilities in
respect of any indemnification obligations or purchase price adjustment
associated with such Sale (provided that, to the extent and at any time such
amounts are released from such reserve, such amounts shall constitute Net Cash
Proceeds), or (b) any sale or issuance of Stock or incurrence of Indebtedness,
in each case net of brokers', advisors' and investment banking fees and other
reasonable underwriting discounts, commissions and other reasonable
out-of-pocket cash costs, fees and expenses, in each case incurred in connection
with such transaction; provided, however, that any such proceeds received by any
Subsidiary of the Borrower that is not a Wholly Owned Subsidiary of the Borrower
shall constitute "Net Cash Proceeds" only to the extent of the aggregate direct
and indirect beneficial ownership interest of the Borrower therein.
"Non-Excluded Taxes" has the meaning specified in Section 2.17(a).
"Non- Funding Lender" has the meaning specified in Section 2.2(c).
"Non-U.S. Lender Party" means each of the Administrative Agent, each
Lender, each SPV and each participant, in each case that is not a Domestic
Person.
"Note" means a promissory note of the Borrower, in substantially the
form of Exhibit B, payable to the order of a Lender in a principal amount equal
to the amount of such Lender's Commitment.
"Notice of Borrowing" has the meaning specified in Section 2.2(a).
"Notice of Conversion or Continuation" has the meaning specified in
Section 2.10(b).
"Obligations" means, with respect to any Loan Party, all amounts,
obligations, liabilities, covenants and duties of every type and description
owing by such Loan Party to the Administrative Agent, any Lender, any other
Indemnitee, any participant, any SPV or any Secured Hedging Counterparty arising
out of, under, or in connection with, any Loan Document, whether direct or
indirect (regardless of whether acquired by assignment), absolute or contingent,
due or to become due, whether liquidated or not, now existing or hereafter
arising and however acquired, and whether or not evidenced by any instrument or
for the payment of money, including, without duplication, (a) if such Loan Party
is the Borrower, all Term Loans, (b) all interest, whether or not accruing after
the filing of any petition in bankruptcy or after the commencement of any
insolvency, reorganization or similar proceeding, and whether or not a claim for
post-filing or post-petition interest is allowed in any such proceeding, and (c)
all other fees, expenses (including fees, charges and disbursement of counsel),
interest, commissions, charges, costs, disbursements, indemnities and
reimbursement of amounts paid and other sums chargeable to such Loan Party under
any Loan Document.
"Odyssey Investment Partners" means Odyssey Investment Partners Fund,
L.P. and/or Odyssey Investment Partners, LLC and their respective Affiliates.
"Other Taxes" has the meaning specified in Section 2.17(c).
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"Patents" means all rights, title and interests (and all related IP
Ancillary Rights) arising under any Requirement of Law in or relating to letters
patent and applications therefor.
"PBGC" means the United States Pension Benefit Guaranty Corporation and
any successor thereto.
"Permit" means, with respect to any Person, any permit, approval,
authorization, license, registration, certificate, concession, grant, franchise,
variance or permission from, and any other Contractual Obligations with, any
Governmental Authority, in each case whether or not having the force of law and
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Permitted Acquisition" means any Proposed Acquisition satisfying each
of the following conditions: (a) the aggregate amounts payable in connection
with, and other consideration for (in each case, including any transaction
costs, indemnification obligations and all Indebtedness and liabilities incurred
or assumed in connection therewith or otherwise reflected in a Consolidated
balance sheet of the Borrower and the Proposed Acquisition Target), such
Proposed Acquisition and all other Permitted Acquisitions consummated on or
prior to the date of the consummation of such Proposed Acquisition shall not
exceed $45,000,000, plus earn-out payments that are reasonably acceptable to the
Administrative Agent, (b) the Administrative Agent shall have received
reasonable advance notice of such Proposed Acquisition including a reasonably
detailed description thereof at least 30 days prior to the consummation of such
Proposed Acquisition (or such later date as may be agreed by the Administrative
Agent) and on or prior to the date of such Proposed Acquisition, the
Administrative Agent shall have received copies of the acquisition agreement and
related Contractual Obligations and other documents (including financial
information and analysis, environmental assessments and reports, opinions,
certificates and lien searches) and information reasonably requested by the
Administrative Agent and (c) after giving effect to such Permitted Acquisition,
the Borrower shall be in compliance with the Financial Covenants set forth in
Article V on a Pro Forma Basis as of the last day of the last Fiscal Quarter for
which Financial Statements have been delivered hereunder.
"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 the Borrower, having the right to vote
for the election of directors of the 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.
"Permitted Indebtedness" means any Indebtedness of any Group Member
that is not prohibited by Section 8.1 or any other provision of any Loan
Document.
"Permitted Investment" means any Investment of any Group Member that is
not prohibited by Section 8.3 or any other provision of any Loan Document.
"Permitted Lien" means any Lien on or with respect to the property of
any Group Member that is not prohibited by Section 8.2 or any other provision of
any Loan Document.
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"Permitted Refinancing" means Indebtedness constituting a refinancing
or extension of Permitted Indebtedness that (a) has an aggregate outstanding
principal amount not greater than the aggregate principal amount of such
Permitted Indebtedness outstanding at the time of such refinancing or extension,
together with accrued interest, fees (including any prepayment fees or premiums)
payable in connection therewith, (b) has a weighted average maturity (measured
as of the date of such refinancing or extension) and maturity no shorter than
that of such Permitted Indebtedness and, in the case of any refinancing of the
Senior Subordinated Notes has no scheduled amortization prior to maturity and
matures no earlier than 6 months after the 6th anniversary of the Closing Date,
(c) is not entered into as part of a Sale and Leaseback transaction, (d) is not
secured by any property or any Lien other than those securing such Permitted
Indebtedness, and if such Permitted Indebtedness is subordinated to the
Obligations, such Indebtedness is subordinated to the Obligations at least to
the same extent as such Permitted Indebtedness and in a manner and pursuant to
documentation reasonably acceptable to the Administrative Agent; provided, that,
in the case of any refinancing of the Senior Subordinated Notes, such
Indebtedness may rank pari passu in right of payment with the Obligations if
such Indebtedness is either unsecured or is secured on a junior priority basis
(that is junior both to the Liens securing the Obligations and to the Liens
securing the Revolving Obligations) pursuant to an intercreditor agreement (that
binds all present and future holders of such Indebtedness and all
representatives and collateral agents therefor) and that is reasonably
satisfactory in all respects to the Administrative Agent, provided, further, in
the case of any refinancing of the Revolving Obligations, (x) such Indebtedness
shall be subject to the Intercreditor Agreement (or another intercreditor
agreement that is in form and substance reasonably satisfactory to the
Administrative Agent and in any event no less favorable to the Lenders than the
Intercreditor Agreement, as reasonably determined by the Administrative Agent)
and (y) the lenders in such refinancing or any agent or trustee for such lenders
executes and delivers to the Administrative Agent an agreement reasonably
satisfactory to the Administrative Agent confirming that such lenders and their
agent or trustee are bound by the obligations under the Intercreditor Agreement
of the lenders under the Revolving Credit Agreement and the Revolving Credit
Administrative Agent (and the Administrative Agent thereupon executes and
delivers to the lenders in such Permitted Refinancing or their agent or trustee
an agreement confirming that such lenders or their agent or trustee will be
entitled to enforce all rights under the Intercreditor Agreement of the lenders
under the Revolving Credit Agreement and the Revolving Credit Administrative
Agent) and (e) is otherwise on terms that the board of directors of the Borrower
shall have determined in good faith to be consistent with the market terms for
Indebtedness of such type reasonably available to the Borrower at such time and
that are reasonably satisfactory to the Administrative Agent; provided, however,
that, notwithstanding the foregoing and in the case of clauses (a) through (e),
Guaranty Obligations for such Indebtedness shall constitute part of such
Permitted Refinancing if and to the extent such similar Guaranty Obligations
with respect to such Permitted Indebtedness existed and constituted Permitted
Indebtedness prior to such refinancing or extension.
"Permitted Reinvestment" means, with respect to the Net Cash Proceeds
of any Sale or Property Loss Event, the acquisition, repair, replacement,
improvement or construction of, to the extent otherwise permitted hereunder,
property useful in the business of the Borrower or any of its Subsidiaries
(including through a Permitted Acquisition) or, if such Property Loss Event
involves loss or damage to property, to repair such loss or damage.
"Person" means any individual, partnership, corporation (including a
business trust and a public benefit corporation), joint stock company, estate,
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association, firm, enterprise, trust, limited liability company, unincorporated
association, joint venture and any other entity or Governmental Authority.
"Pro Forma Balance Sheet" has the meaning specified in Section 4.4(c).
"Pro Forma Basis" means, with respect to any determination for any
period and any Pro Forma Transaction, that such determination shall be made by
giving pro forma effect to each such Pro Forma Transaction, as if each such Pro
Forma Transaction had been consummated on the first day of such period, based on
historical results accounted for in accordance with GAAP and, to the extent
applicable, reasonable assumptions that are specified in detail in the relevant
Compliance Certificate, Financial Statement or other document provided to the
Administrative Agent or any Lender in connection herewith in accordance with
Regulation S-X of the Securities Act of 1933.
"Pro Forma Transaction" means (i) the redemption and retirement of the
Senior Notes, (ii) any transaction consummated as part of any Permitted
Acquisition, together with each other transaction relating thereto and
consummated in connection therewith, including any incurrence or repayment of
Indebtedness and (iii) any purchase, prepayment, acquisition or retirement for
value of any Senior Subordinated Note and any other Indebtedness.
"Projections" means, collectively, the Initial Projections and any
document delivered pursuant to Section 6.1(f).
"Property Loss Event" means, with respect to any property, any loss of
or damage to such property or any taking of such property or condemnation
thereof.
"Proposed Acquisition" means (a) any proposed acquisition that is
consensual and approved by the board of directors of such Proposed Acquisition
Target, of all or substantially all of the assets or Stock of any Proposed
Acquisition Target by the Borrower or any Subsidiary of the Borrower or (b) any
proposed merger of any Proposed Acquisition Target with or into the Borrower or
any Subsidiary of the Borrower (and, in the case of a merger with the Borrower,
with the Borrower being the surviving corporation).
"Proposed Acquisition Target" means any Person or any brand, line of
business, division, branch, operating division or other unit operation of any
Person.
"Pro Rata Outstandings" of any Lender at any time, means the sum of the
outstanding principal amount of Term Loans owing to such Lender.
"Pro Rata Share" means, with respect to any Lender at any time, the
percentage obtained by dividing (a) the sum of the Commitments (or, if such
Commitments are terminated, the Pro Rata Outstandings therein) of such Lender
then in effect by (b) the sum of the Commitments (or, if such Commitments are
terminated, the Pro Rata Outstandings therein) of all Lenders then in effect;
provided, however, that, if there are no Commitments and no Pro Rata
Outstandings, such Lender's Pro Rata Share shall be determined based on the Pro
Rata Share most recently in effect, after giving effect to any subsequent
assignment and any subsequent non-pro rata payments of any Lender pursuant to
Section 2.18.
"Qualified Capital Stock" means Stock that is not Disqualified Stock.
"Register" has the meaning specified in Section 2.14(b).
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"Reinvestment Prepayment Amount" means, with respect to any Net Cash
Proceeds on the Reinvestment Prepayment Date therefor, the amount of such Net
Cash Proceeds less any amount paid or required to be paid by any Group Member to
make Permitted Reinvestments with such Net Cash Proceeds pursuant to a
Contractual Obligation entered into prior to such Reinvestment Prepayment Date
with any Person that is not an Affiliate of the Borrower.
"Reinvestment Prepayment Date" means, with respect to any portion of
any Net Cash Proceeds of any Sale or Property Loss Event, the earliest of (a)
the 365th day after the completion of the portion of such Sale or Property Loss
Event corresponding to such Net Cash Proceeds, (b) the date that is 5 Business
Days after the date on which the Borrower shall have notified the Administrative
Agent of the Borrower's determination not to make Permitted Reinvestments with
such Net Cash Proceeds, (c) the occurrence of any Event of Default set forth in
Section 9.1(e)(ii) and (d) 5 Business Days after the delivery of a notice by the
Administrative Agent or the Required Lenders to the Borrower during the
continuance of any other Event of Default.
"Related Documents" means, collectively, the payoff letter with respect
to the Existing Credit Agreement executed and delivered to the Administrative
Agent in connection with Section 3.1(d), the notice of redemption issued in
connection with the redemption, satisfaction and discharge of the Senior Notes,
the Revolving Loan Documents, and each other document executed with respect to
any of the foregoing or any Related Transaction.
"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;
(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); or
(3) any investment partnership or investment fund controlled or managed
by Odyssey Investment Partners.
"Related Person" means, with respect to any Person, each Affiliate of
such Person and each director, officer, employee, agent, trustee,
representative, attorney, accountant and each insurance, environmental, legal,
financial and other advisor (including those retained in connection with the
satisfaction or attempted satisfaction of any condition set forth in Article
III) and other consultants and agents of or to such Person or any of its
Affiliates, together with, if such Person is the Administrative Agent, each
other Person or individual designated, nominated or otherwise mandated by or
helping the Administrative Agent pursuant to and in accordance with Section 10.4
or any comparable provision of any Loan Document.
"Related Transactions" means, collectively, the refinancing of the
Existing Credit Agreement, the redemption of the Senior Notes, the funding of
Indebtedness under the Revolving Credit Agreement, the execution and delivery of
all Related Documents and the payment of all related fees, costs and expenses.
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"Release" means any release, threatened release, spill, emission,
leaking, pumping, pouring, emitting, emptying, escape, injection, deposit,
disposal, discharge, dispersal, dumping, leaching or migration of Hazardous
Material into or through the environment.
"Remedial Action" means all actions required under Environmental Laws
to (a) clean up, remove, treat or in any other way address any Hazardous
Material in the indoor or outdoor environment, (b) prevent or minimize any
Release so that a Hazardous Material does not migrate or endanger or threaten to
endanger public health or welfare or the indoor or outdoor environment or (c)
perform pre-remedial studies and investigations and post-remedial monitoring and
care with respect to any Hazardous Material.
"Required Lenders" means, at any time, Lenders having at such time in
excess of 50% of the sum of the Pro Rata Outstandings then in effect.
"Requirements of Law" means, with respect to any Person, collectively,
the common law and all federal, state, local, foreign, multinational or
international laws, statutes, codes, treaties, standards, rules and regulations,
guidelines, ordinances, orders, judgments, writs, injunctions, decrees
(including administrative or judicial precedents or authorities) and the
interpretation or administration thereof by, and other determinations,
directives, requirements or requests of, any Governmental Authority, in each
case whether or not having the force of law and that are applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"Responsible Officer" means, with respect to any Person, any of the
president, chief executive officer, treasurer, assistant treasurer, controller,
managing member or general partner of such Person but, in any event, with
respect to financial matters, any such officer that is responsible for preparing
the Financial Statements delivered hereunder and, with respect to the Corporate
Chart and other documents delivered pursuant to Section 6.1(e), documents
delivered on the Closing Date and documents delivered pursuant to Section 7.10,
the secretary or assistant secretary of such Person or any other officer
responsible for maintaining the corporate and similar records of such Person.
"Restricted Payment" means (a) any dividend, return of capital,
distribution or any other payment or Sale of property for less than fair market
value, whether direct or indirect (including through the use of Hedging
Agreements, the making, repayment, cancellation or forgiveness of Indebtedness
and similar Contractual Obligations) and whether in cash, Securities or other
property, on account of any Stock or Stock Equivalent of the Borrower or any of
its Subsidiaries, in each case now or hereafter outstanding, including with
respect to a claim for rescission of a Sale of such Stock or Stock Equivalent
and (b) any redemption, retirement, termination, defeasance, cancellation,
purchase or other acquisition for value, whether direct or indirect (including
through the use of Hedging Agreements, the making, repayment, cancellation or
forgiveness of Indebtedness and similar Contractual Obligations), of any Stock
or Stock Equivalent of any Group Member or of any direct or indirect parent
entity of the Borrower, now or hereafter outstanding, and any payment or other
transfer setting aside funds for any such redemption, retirement, termination,
cancellation, purchase or other acquisition, whether directly or indirectly and
whether to a sinking fund, a similar fund or otherwise.
"Revolving Credit Administrative Agent" means General Electric Capital
Corporation, in its capacity as administrative agent under the Revolving Credit
Agreement.
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"Revolving Credit Agreement" shall mean that certain Credit Agreement
dated as of the date hereof among the Borrower, the other Loan Parties, the
lenders named therein, and the Revolving Credit Administrative Agent, as the
same may from time to time be amended, restated, replaced, supplemented or
otherwise modified solely as permitted by the Intercreditor Agreement.
"Revolving Loan Documents" shall have the meaning specified for the
term "Loan Documents" in the Revolving Credit Agreement.
"Revolving Obligations" shall have the meaning specified for the term
"Revolving Credit Obligations" in the Intercreditor Agreement and shall include
all increases thereto permitted by the Intercreditor Agreement.
"S&P" means Standard & Poor's Rating Services.
"Sale and Leaseback Transaction" means, with respect to any Person (the
"obligor"), any Contractual Obligation or other arrangement with any other
Person (the "counterparty") consisting of a lease by such obligor of any
property that, directly or indirectly, has been or is to be Sold by the obligor
to such counterparty or to any other Person to whom funds have been advanced by
such counterparty based on a Lien on, or an assignment of, such property or any
obligations of such obligor under such lease.
"Satisfaction Date" means the date on which the events described in
Section 10.10(b)(iii)(A), (B) and (C) occur.
"Scheduled Maturity Date" means either (i) if all the Senior
Subordinated Notes have not been redeemed and retired on or prior to such date,
March 14, 2009 or (ii) if all the Senior Subordinated Notes have been redeemed
and retired on or prior to March 14, 2009, the 6th anniversary of the Closing
Date.
"Secured Hedging Agreement" means any Hedging Agreement that (a) has
been entered into with a Secured Hedging Counterparty, (b) in the case of a
Hedging Agreement not entered into with or provided or arranged by the
Administrative Agent or an Affiliate of the Administrative Agent, is expressly
identified as being a "Secured Hedging Agreement" hereunder in a joint notice
from such Loan Party and such Person delivered to the Administrative Agent
reasonably promptly after the execution of such Hedging Agreement and (c) meets
the requirements of Section 8.1(f).
"Secured Hedging Counterparty" means (a) a Person who has entered into
a Hedging Agreement with a Loan Party if such Hedging Agreement was provided or
arranged by the Administrative Agent or an Affiliate of the Administrative
Agent, and any assignee of such Person or (b) a Lender or an Affiliate of a
Lender who has entered into a Hedging Agreement with a Loan Party (or a Person
who was a Lender or an Affiliate of a Lender at the time of execution and
delivery of the Hedging Agreement).
"Secured Parties" means the Lenders, the Administrative Agent, any
Secured Hedging Counterparty, each other Indemnitee and any other holder of any
Obligation of any Loan Party.
"Security" means all Stock, Stock Equivalents, voting trust
certificates, bonds, debentures, instruments and other evidence of Indebtedness,
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whether or not secured, convertible or subordinated, all certificates of
interest, share or participation in, all certificates for the acquisition of,
and all warrants, options and other rights to acquire, any Security.
"Sell" means, with respect to any property, to sell, convey, transfer,
assign, license, lease (as lessor) or otherwise dispose of, any interest therein
or to permit any Person to acquire any such interest, including, in each case,
through a Sale and Leaseback Transaction or through a sale, factoring at
maturity, collection of or other disposal, with or without recourse, of any
notes or accounts receivable. Conjugated forms thereof and the noun "Sale" have
correlative meanings.
"Senior Notes" means the "Notes" (as defined in the Senior Notes
Indenture) and "Exchange Notes" issued in exchange therefor in accordance with
the terms of the Senior Notes Indenture, not exceeding an aggregate principal
amount of $165,000,000.
"Senior Notes Indenture" means the Indenture, dated as of June 9, 2003,
by and among the Borrower, the guarantors named therein, and The Bank of New
York, as Trustee, relating to the Borrower's 10 3/4% Senior Second Secured Notes
due 2008, as amended, modified or supplemented from time to time in accordance
with its terms and the terms hereof.
"Senior Subordinated Notes" means the "Notes" (as defined in the Senior
Subordinated Notes Indenture) in an aggregate principal amount not exceeding
$155,000,000.
"Senior Subordinated Notes Indenture" means the Indenture, dated as of
June 16, 2000 among the Borrower, the guarantors party thereto and United States
Trust Company, as Trustee, relating to The Borrower's 13% Senior Subordinated
Notes due 2009, as supplemented through the Closing Date and as subsequently
amended, modified or supplemented in accordance with its term and the terms of
this Agreement.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including subordinated and contingent
liabilities, of such Person; (b) the present fair saleable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts and liabilities, including
subordinated and contingent liabilities as they become absolute and matured; (c)
such Person does not intend to, and does not believe that it will, incur debts
or liabilities beyond such Person's ability to pay as such debts and liabilities
mature; and (d) such Person is not engaged in a business or transaction, and is
not about to engage in a business or transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities (such as litigation, guaranties and pension plan
liabilities) at any time shall be computed as the amount that, in light of all
the facts and circumstances existing at the time, represents the amount that can
be reasonably be expected to become an actual or matured liability.
"SPV" means any special purpose funding vehicle identified as such in a
writing by any Lender to the Administrative Agent.
"Stock" means all shares of capital stock (whether denominated as
common stock or preferred stock), equity interests, beneficial, partnership or
membership interests, joint venture interests, participations or other ownership
or profit interests in or equivalents (regardless of how designated) of or in a
Person (other than an individual), whether voting or non-voting.
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"Stock Equivalents" means all securities convertible into or
exchangeable for Stock or any other Stock Equivalent and all warrants, options
or other rights to purchase, subscribe for or otherwise acquire any Stock or any
other Stock Equivalent, whether or not presently convertible, exchangeable or
exercisable.
"Subordinated Debt" means any Indebtedness that is subordinated to the
payment in full of the Obligations on terms and conditions reasonably
satisfactory to the Administrative Agent, including any Indebtedness under the
Senior Subordinated Notes.
"Subordinated Refinancing Indebtedness" means any Indebtedness, whether
or not constituting Subordinated Debt, resulting from any initial or subsequent
Permitted Refinancing of Subordinated Debt.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, joint venture, limited liability company, association or other
entity, the management of which is, directly or indirectly, controlled by, or of
which an aggregate of more than 50% of the outstanding Voting Stock is, at the
time, owned or controlled directly or indirectly by, such Person or one or more
Subsidiaries of such Person.
"Substitute Lender" has the meaning specified in Section 2.18(a).
"SWDA" means the Solid Waste Disposal Act (42 U.S.C. xx.xx. 6901 et
seq.).
"Tax Affiliate" means, (a) the Borrower and its Subsidiaries and (b)
any Affiliate of the Borrower with which the Borrower files or is eligible to
file consolidated, combined or unitary tax returns.
"Tax Return" has the meaning specified in Section 4.8.
"Taxes" has the meaning specified in Section 2.17(a).
"Term Loan" has the meaning specified in Section 2.1.
"Term Loan Facility" means the Commitments and the provisions herein
related to the Term Loans.
"Title IV Plan" means a pension plan subject to Title IV of ERISA,
other than a Multiemployer Plan, to which any ERISA Affiliate incurs or
otherwise has any obligation or liability, contingent or otherwise.
"Trademarks" means all rights, title and interests (and all related IP
Ancillary Rights) arising under any Requirement of Law in or relating to
trademarks, trade names, corporate names, company names, business names,
fictitious business names, trade styles, service marks, logos and other source
or business identifiers and, in each case, all goodwill associated therewith,
all registrations and recordations thereof and all applications in connection
therewith.
"Trade Secrets" means all right, title and interest (and all related IP
Ancillary Rights) arising under any Requirement of Law in or relating to trade
secrets.
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[DAYTON SUPERIOR CORPORATION]
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"UCC" means the Uniform Commercial Code of any applicable jurisdiction
and, if the applicable jurisdiction shall not have any Uniform Commercial Code,
the Uniform Commercial Code as in effect in the State of New York.
"United States" means the United States of America.
"U.S. Lender Party" means each of the Administrative Agent, each
Lender, each SPV and each participant, in each case that is a Domestic Person.
"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.
"Voting Stock" means Stock of any Person having ordinary power to vote
in the election of members of the board of directors, managers, trustees or
other controlling Persons, of such Person (irrespective of whether, at the time,
Stock of any other class or classes of such entity shall have or might have
voting power by reason of the occurrence of any contingency).
"Wholly Owned Subsidiary" of any Person means any Subsidiary of such
Person, all of the Stock of which (other than nominal holdings and director's
qualifying shares) is owned by such Person, either directly or through one or
more Wholly Owned Subsidiaries of such Person.
"Withdrawal Liability" means, at any time, any liability incurred
(whether or not assessed) by any ERISA Affiliate and not yet satisfied or paid
in full at such time with respect to any Multiemployer Plan pursuant to Section
4201 of ERISA.
"Working Capital" means, for any Person at any date, its Consolidated
Current Assets at such date minus its Consolidated Current Liabilities at such
date.
Section 1.2 UCC Terms. The following terms have the meanings
given to them in the applicable UCC: "commodity account", "commodity contract",
"commodity intermediary", "deposit account", "entitlement holder", "entitlement
order", "equipment", "financial asset", "general intangible", "goods",
"instruments", "inventory", "securities account", "securities intermediary" and
"security entitlement".
Section 1.3 Accounting Terms and Principles. (a) GAAP. All
accounting determinations required to be made pursuant hereto shall, unless
expressly otherwise provided herein, be made in accordance with GAAP. No change
in the accounting principles used in the preparation of any Financial Statement
hereafter adopted by the Borrower shall be given effect if such change would
affect a calculation that measures compliance with any provision of Article V or
VIII unless the Borrower, the Administrative Agent and the Required Lenders
agree to modify such provisions to reflect such changes in GAAP and, unless such
provisions are modified, all Financial Statements, Compliance Certificates and
similar documents provided hereunder shall be provided together with a
reconciliation between the calculations and amounts set forth therein before and
after giving effect to such change in GAAP.
(b) Pro Forma. All components of financial calculations made
to determine compliance with Article V or VIII shall be adjusted on a Pro Forma
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[DAYTON SUPERIOR CORPORATION]
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Basis to include or exclude, as the case may be, without duplication, such
components of such calculations attributable to any Pro Forma Transaction
consummated after the first day of the applicable period of determination and
prior to the end of such period, as determined in good faith by the Borrower
based on assumptions expressed therein and that were reasonable based on the
information available to the Borrower at the time of preparation of the
Compliance Certificate setting forth such calculations.
Section 1.4 Payments. The Administrative Agent may set up
standards and procedures to determine or redetermine the equivalent in Dollars
of any amount expressed in any currency other than Dollars and otherwise may,
but shall not be obligated to, rely on any determination made by any Loan Party.
Any such determination or redetermination by the Administrative Agent shall be
conclusive and binding for all purposes, absent manifest error. No determination
or redetermination by any Secured Party or Loan Party and no other currency
conversion shall change or release any obligation of any Loan Party or of any
Secured Party (other than the Administrative Agent and its Related Persons)
under any Loan Document, each of which agrees to pay separately for any
shortfall remaining after any conversion and payment of the amount as converted.
The Administrative Agent may round up or down, and may set up appropriate
mechanisms to round up or down, any amount hereunder to nearest higher or lower
amounts and may determine reasonable de minimis payment thresholds.
Section 1.5 Interpretation. (a) Certain Terms. Except as set
forth in any Loan Document, all accounting terms not specifically defined herein
shall be construed in accordance with GAAP (except for the term "property",
which shall be interpreted as broadly as possible, including, in any case, cash,
Securities, other assets, rights under Contractual Obligations and Permits and
any right or interest in any property). The terms "herein", "hereof" and similar
terms refer to this Agreement as a whole. In the computation of periods of time
from a specified date to a later specified date in any Loan Document, the terms
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding" and the word "through" means "to and including." In any other
case, the term "including" when used in any Loan Document means "including
without limitation." The term "documents" means all writings, however evidenced
and whether in physical or electronic form, including all documents,
instruments, agreements, notices, demands, certificates, forms, financial
statements, opinions and reports. The term "incur" means incur, create, make,
issue, assume or otherwise become directly or indirectly liable in respect of or
responsible for, in each case whether directly or indirectly, and the terms
"incurrence" and "incurred" and similar derivatives shall have correlative
meanings. All references to a time of day shall refer to such time of day in New
York.
(b) Certain References. Unless otherwise expressly indicated,
references (i) in this Agreement to an Exhibit, Schedule, Article, Section or
clause refer to the appropriate Exhibit or Schedule to, or Article, Section or
clause in, this Agreement and (ii) in any Loan Document, to (A) any agreement
shall include, without limitation, all exhibits, schedules, appendixes and
annexes to such agreement and, unless the prior consent of any Secured Party
required therefor is not obtained, any modification to any term of such
agreement, (B) any statute shall be to such statute as modified from time to
time and to any successor legislation thereto, in each case as in effect at the
time any such reference is operative and (C) any time of day shall be a
reference to New York time. Titles of articles, sections, clauses, exhibits,
schedules and annexes contained in any Loan Document are without substantive
meaning or content of any kind whatsoever and are not a part of the agreement
between the parties hereto. Unless otherwise expressly indicated, the meaning of
any term defined (including by reference) in any Loan Document shall be equally
applicable to both the singular and plural forms of such term.
TERM LOAN CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
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ARTICLE 2
THE TERM LOAN FACILITY
Section 2.1 The Commitments. On the terms and subject to the
conditions contained in this Agreement, each Lender severally, but not jointly,
agrees to make a loan (each a "Term Loan") in Dollars to the Borrower on the
Closing Date, in an amount not to exceed such Lender's Commitment. Amounts of
Term Loans repaid may not be reborrowed.
Section 2.2 Borrowing Procedures. (a) Notice From the
Borrower. The borrowing of the Term Loans shall be made on notice given by the
Borrower to the Administrative Agent not later than 1:00 p.m. (New York time) on
(i) the first Business Day, in the case of a borrowing of Base Rate Loans and
(ii) the third Business Day, in the case of a borrowing of Eurodollar Rate
Loans, prior to the Closing Date. Each such notice may be made in a writing
substantially in the form of Exhibit C (a "Notice of Borrowing") duly completed
or by telephone if confirmed promptly, but in any event within one Business Day
and prior to such borrowing, with such a Notice of Borrowing. The Term Loans
shall be made as Base Rate Loans unless, outside of a suspension period pursuant
to Section 2.15, the Notice of Borrowing specifies that all or a portion thereof
shall be Eurodollar Rate Loans.
(b) Notice to Each Lender. The Administrative Agent shall give
to each Lender prompt notice of the Administrative Agent's receipt of a Notice
of Borrowing and, if Eurodollar Rate Loans are properly requested in such Notice
of Borrowing, prompt notice of the applicable interest rate. Each Lender shall,
before 3:00 p.m. (New York time) on the Closing Date and before 1:00 p.m. (New
York time) on the Closing Date in the case of Eurodollar Rate Loans, make
available to the Administrative Agent at its address referred to in Section
11.11, such Lender's Pro Rata Share of the Term Loans. Upon fulfillment or due
waiver (i) on the Closing Date, of the applicable conditions set forth in
Section 3.1, the Administrative Agent shall make such funds available to the
Borrower.
Section 2.3 Omitted.
Section 2.4 Omitted.
Section 2.5 Omitted.
Section 2.6 Repayment of Term Loans. The Borrower promises to
repay the Term Loans at the dates and in the amounts set forth below, with the
remaining balance to be paid on the Scheduled Maturity Date:
DATE AMOUNT
June 30, 2008 $250,000
September 30, 2008 $250,000
December 31, 2008 $250,000
March 31, 2009 $250,000
June 30, 2009 $250,000
September 30, 2009 $250,000
December 31, 2009 $250,000
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March 31, 2010 $250,000
June 30, 2010 $250,000
September 30, 2010 $250,000
December 31, 2010 $250,000
March 31, 2011 $250,000
June 30, 2011 $250,000
September 30, 2011 $250,000
December 31, 2011 $250,000
March 31, 2012 $250,000
June 30, 2012 $250,000
September 30, 2012 $250,000
December 31, 2012 $250,000
March 31, 2013 $250,000
June 30, 2013 $250,000
September 30, 2013 $250,000
December 31, 2013 $250,000
Scheduled Maturity Date $94,250,000
Section 2.7 Optional Prepayments. The Borrower may prepay the
outstanding principal amount of the Term Loans without premium of penalty in
whole or in part at any time (together with any breakage costs that may be owing
pursuant to Section 2.16(a) after giving effect to such prepayment); provided,
however, that each partial prepayment that is not of the entire outstanding
amount shall be in an aggregate amount that is an integral multiple of
$1,000,000 and shall be applied to the Term Loans of the Lenders in accordance
with their Pro Rata Shares.
Section 2.8 Mandatory Prepayments.
(a) Excess Cash Flow. The Borrower shall pay or cause to be
paid to the Administrative Agent, within 5 Business Days after the last date
Financial Statements are required to be delivered pursuant to Section 6.1(c) for
any Fiscal Year beginning with the Fiscal Year ending December 31, 2009, an
amount equal to 75% of the Excess Cash Flow for such Fiscal Year; provided,
however, that should the Consolidated Leverage Ratio of the Borrower on the last
day of such Fiscal Year be (i) less than 4:1 and greater than or equal to 3.5:1,
such percentage shall be reduced to 50%; or (iii) less than 3.5:1, such
percentage shall be reduced to 25%.
(b) Debt Issuances. Upon receipt on or after the Closing Date
by any Loan Party or any of its Subsidiaries of Net Cash Proceeds arising from
the incurrence by any Loan Party or any of its Subsidiaries of Indebtedness of
the type specified in clause (a) or (b) of the definition thereof (other than
any such Indebtedness permitted to be incurred under Section 8.1), the Borrower
shall immediately pay or cause to be paid to the Administrative Agent an amount
equal to 50% of such Net Cash Proceeds.
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[DAYTON SUPERIOR CORPORATION]
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(c) Asset Sales and Property Loss Events. Upon receipt on or
after the Closing Date by any Loan Party or any of its Subsidiaries of Net Cash
Proceeds arising from (i) any Sale by any Group Member of any Collateral, to the
extent that such Net Cash Proceeds exceed $1,000,000 in any Fiscal Year, other
than Sales of property permitted hereunder in reliance upon any of clauses (a)
through (d) of Section 8.4 or (ii) any Property Loss Event with respect to any
Collateral of any Group Member to the extent resulting, in the aggregate with
all other such Property Loss Events, in the receipt by any of them of Net Cash
Proceeds in excess of $1,000,000, the Borrower shall immediately pay or cause to
be paid to the Administrative Agent an amount equal to 100% of such Net Cash
Proceeds; provided, however, that, upon any such receipt, as long as no Event of
Default shall be continuing, any Group Member may make Permitted Reinvestments
with such Net Cash Proceeds and the Borrower shall not be required to make or
cause such payment to the extent (x) such Net Cash Proceeds are intended to be
used to make Permitted Reinvestments and (y) on each Reinvestment Prepayment
Date for such Net Cash Proceeds, the Borrower shall pay or cause to be paid to
the Administrative Agent an amount equal to the Reinvestment Prepayment Amount
applicable to such Reinvestment Prepayment Date and such Net Cash Proceeds.
(d) Application of Payments. Any payments made to the
Administrative Agent pursuant to this Section 2.8 shall be applied to the
Obligations in accordance with Section 2.12(b).
Section 2.9 Interest. (a) Rate. The Term Loans and the
outstanding amount of all other Obligations (other than pursuant to Secured
Hedging Agreements) shall bear interest, in the case of the Term Loans, on the
unpaid principal amount thereof from the Closing Date and, in the case of such
other Obligations, from the date such other Obligations are due and payable
until, in all cases, paid in full, except as otherwise provided in clause (c)
below, as follows: (i) in the case of Base Rate Loans, at a rate per annum equal
to the sum of the Base Rate and the Applicable Margin, each as in effect from
time to time, (ii) in the case of Eurodollar Rate Loans, at a rate per annum
equal to the sum of the Eurodollar Rate and the Applicable Margin, each as in
effect for the applicable Interest Period, and (iii) in the case of other
Obligations, at a rate per annum equal to the sum of the Base Rate and the
Applicable Margin for Revolving Loans that are Base Rate Loans, each as in
effect from time to time.
(b) Payments. Interest accrued shall be payable in arrears (i)
if accrued on the principal amount of any Loan, (A) at maturity (whether by
acceleration or otherwise), (B) (1) if such Term Loan is a Base Rate Loan, on
the last day of each calendar quarter commencing on the first such day following
the making of such Loan, (2) if such Term Loan is a Eurodollar Rate Loan, on the
last day of each Interest Period applicable to such Term Loan and, if
applicable, on each date during such Interest Period occurring every 3 months
from the first day of such Interest Period and (ii) if accrued on any other
Obligation, on demand from any after the time such Obligation is due and payable
(whether by acceleration or otherwise).
(c) Default Interest. Notwithstanding the rates of interest
specified in clause (a) above or elsewhere in any Loan Document, effective
immediately upon (A) the occurrence of any Event of Default under Section
9.1(a), Section 9.1(d) or Section 9.1(e)(ii) or (B) the delivery of a notice by
the Administrative Agent or the Required Lenders to the Borrower during the
continuance of any other Event of Default pursuant to Sections 9.1(a),
9.1(c)(i), 9.1(d), 9.1(e)(i), 9.1(e)(iii) or 9.1(f) and, in each case, for as
long as such Event of Default shall be continuing, the principal balance of all
Obligations (including any Obligation that bears interest by reference to the
rate applicable to any other Obligation) then due and payable shall bear
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[DAYTON SUPERIOR CORPORATION]
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interest at a rate that is 2% per annum in excess of the interest rate
applicable to such Obligations from time to time, payable on demand or, in the
absence of demand, on the date that would otherwise be applicable.
Section 2.10 Conversion and Continuation Options. (a) Option.
The Borrower may elect (i) in the case of any Eurodollar Rate Loan, (A) to
continue such Eurodollar Rate Loan or any portion thereof for an additional
Interest Period on the last day of the Interest Period applicable thereto and
(B) to convert such Eurodollar Rate Loan or any portion thereof into a Base Rate
Loan at any time on any Business Day, subject to the payment of any breakage
costs required by Section 2.16(a), and (ii) in the case of Base Rate Loans, to
convert such Base Rate Loans or any portion thereof into Eurodollar Rate Loans
at any time on any Business Day upon 3 Business Days' prior notice; provided,
however, that, (x) for each Interest Period, the aggregate amount of Eurodollar
Rate Loans having such Interest Period must be an integral multiple of
$1,000,000 and (y) no conversion in whole or in part of Base Rate Loans to
Eurodollar Rate Loans and no continuation in whole or in part of Eurodollar Rate
Loans shall be permitted at any time at which (1) an Event of Default shall be
continuing and the Administrative Agent or the Required Lenders shall have
determined in their sole discretion not to permit such conversions or
continuations or (2) such continuation or conversion would be made during a
suspension imposed by Section 2.15.
(b) Procedure. Each such election shall be made by giving the
Administrative Agent at least 3 Business Days' prior notice in substantially the
form of Exhibit F (a "Notice of Conversion or Continuation") duly completed. The
Administrative Agent shall promptly notify each Lender of its receipt of a
Notice of Conversion or Continuation and of the options selected therein. If the
Administrative Agent does not receive a timely Notice of Conversion or
Continuation from the Borrower containing a permitted election to continue or
convert any Eurodollar Rate Loan, then, upon the expiration of the applicable
Interest Period, such Term Loan (or portion thereof) shall be automatically
converted to a Base Rate Loan. Each partial conversion or continuation shall be
allocated ratably among the Lenders in accordance with their Pro Rata Share.
Section 2.11 Fees. The Borrower shall pay to the
Administrative Agent and its Related Persons its reasonable and customary fees
and expenses in connection with any payments made pursuant to Section 2.16(a)
(Breakage Costs) and has agreed to pay the additional fees described in the Fee
Letter.
Section 2.12 Application of Payments. (a) Application of
Voluntary Prepayments. Unless otherwise provided in this Section 2.12 or
elsewhere in any Loan Document, all payments and any other amounts received by
the Administrative Agent from or for the benefit of the Borrower shall be
applied to repay the Obligations the Borrower designates.
(b) Application of Mandatory Prepayments. Subject to the
provisions of clause (c) below with respect to the application of payments
during the continuance of an Event of Default, any payment made by the Borrower
to the Administrative Agent pursuant to Section 2.8 or any other prepayment of
the Obligations required to be applied in accordance with this clause (b) shall
be applied first, to repay the outstanding principal balance of the Term Loans;
and, then, except to the extent required to pay other Indebtedness of the
Borrower, any excess shall be retained by the Borrower.
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(c) Application of Payments During an Event of Default. The
Borrower hereby irrevocably waives, and agrees to cause each Loan Party and each
other Group Member to waive, the right to direct the application during the
continuance of an Event of Default of any and all payments in respect of any
Obligation and any proceeds of Collateral and agrees that, notwithstanding the
provisions of clause (a) above, the Administrative Agent may, and, upon either
(A) the direction of the Required Lenders or (B) the termination of any
Commitment or the acceleration of any Obligation pursuant to Section 9.2, shall,
apply all payments in respect of any Obligation, all funds on deposit in any
Cash Collateral Account and all other proceeds of Collateral (i) first, to pay
Obligations in respect of any cost or expense reimbursements, fees or
indemnities then due to the Administrative Agent, (ii) second, to pay
Obligations in respect of any cost or expense reimbursements, fees or
indemnities then due to the Lenders, (iii) third, to pay interest then due and
payable in respect of the Term Loans, (iv) fourth, to repay the outstanding
principal amounts of the Term Loans and to pay amounts owing with respect to
Secured Hedging Agreements and (v) fifth, to the ratable payment of all other
Obligations.
(d) Application of Payments Generally. All repayments of any
Term Loans shall be applied first, to repay that portion of the Term Loans
outstanding as Base Rate Loans and then, to repay that portion of the Term Loans
outstanding as Eurodollar Rate Loans, with those Eurodollar Rate Loans having
earlier expiring Interest Periods being repaid prior to those having later
expiring Interest Periods. All repayments of Term Loans shall be applied pro
rata among the Term Loans and to reduce ratably the remaining installments of
such outstanding principal amounts of the Term Loans in the stated order of
their maturities. If sufficient amounts are not available to repay all
outstanding Obligations described in any priority level set forth in this
Section 2.12, the available amounts shall be applied, unless otherwise expressly
specified herein, to such Obligations ratably based on the proportion of the
Secured Parties' interest in such Obligations. Any priority level set forth in
this Section 2.12 that includes interest shall include all such interest,
whether or not accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or similar proceeding, and
whether or not a claim for post-filing or post-petition interest is allowed in
any such proceeding.
Section 2.13 Payments and Computations. (a) Procedure. The
Borrower shall make each payment under any Loan Document not later than 2:00
p.m. (New York time) on the day when due to the Administrative Agent by wire
transfer to the following account (or at such other account or by such other
means to such other address as the Administrative Agent shall have notified the
Borrower in writing within a reasonable time prior to such payment) in
immediately available Dollars and without setoff or counterclaim:
ABA No. 000-000-000
Account Number 000-000-00
Deutsche Bank Trust Company Americas, New York, New York
Account Name: GECC/CAF Depository,
Reference: CFN 8845 - GE Capital Re Dayton Superior Corporation
The Administrative Agent shall promptly thereafter cause to be distributed
immediately available funds relating to the payment of principal, interest or
fees to the Lenders, in accordance with the application of payments set forth in
Section 2.12. The Lenders shall make any payment under any Loan Document in
immediately available Dollars and without setoff or counterclaim.
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(b) Computations of Interests and Fees. All computations of
interest and of fees shall be made by the Administrative Agent on the basis of a
year of 360 days (or, in the case of Base Rate Loans whose interest rate is
calculated based on the rate set forth in clause (a) of the definition of "Base
Rate", 365/366 days), in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest and fees are payable. Each determination of an interest rate or the
amount of a fee hereunder shall be made by the Administrative Agent (including
determinations of a Eurodollar Rate or Base Rate in accordance with the
definitions of "Eurodollar Rate" and "Base Rate", respectively) and shall be
conclusive, binding and final for all purposes, absent manifest error.
(c) Payment Dates. Whenever any payment hereunder shall be
stated to be due on a day other than a Business Day, the due date for such
payment shall be extended to the next succeeding Business Day without any
increase in such payment as a result of additional interest or fees; provided,
however, that such interest and fees shall continue accruing as a result of such
extension of time.
(d) Advancing Payments. Unless the Administrative Agent shall
have received notice from the Borrower to the Lenders prior to the date on which
any payment is due hereunder that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date and the Administrative
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent that the Borrower shall not have made such payment in full to
the Administrative Agent, each Lender shall repay to the Administrative Agent on
demand such amount distributed to such Lender together with interest thereon (at
the Federal Funds Rate for the first Business Day and thereafter, at the rate
applicable to Base Rate Loans) for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent.
Section 2.14 Evidence of Debt. (a) Records of Lenders. Each
Lender shall maintain in accordance with its usual practice accounts evidencing
Indebtedness of the Borrower to such Lender resulting from each Term Loan of
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement. In
addition, each Lender having sold a participation in any of its Obligations or
having identified an SPV as such to the Administrative Agent, acting as agent of
the Borrower solely for this purpose and solely for tax purposes, shall
establish and maintain at its address referred to in Section 11.11 (or at such
other address as such Lender shall notify the Borrower) a record of ownership,
in which such Lender shall register by book entry (A) the name and address of
each such participant and SPV (and each change thereto, whether by assignment or
otherwise) and (B) the rights, interest or obligation of each such participant
and SPV in any Obligation, in any Commitment and in any right to receive any
payment hereunder.
(b) Records of Administrative Agent. The Administrative Agent,
acting as agent of the Borrower solely for tax purposes and solely with respect
to the actions described in this Section 2.14, shall establish and maintain at
its address referred to in Section 11.11 (or at such other address as the
Administrative Agent may notify the Borrower) (A) a record of ownership (the
"Register") in which the Administrative Agent agrees to register by book entry
the interests (including any rights to receive payment hereunder) of the
Administrative Agent and each Lender in each of their obligations under this
Agreement to make each Term Loan, and any assignment of any such interest,
obligation or right and (B) accounts in the Register in accordance with its
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usual practice in which it shall record (1) the names and addresses of the
Lenders (and each change thereto pursuant to Section 2.18 (Substitution of
Lenders) and Section 11.2 (Assignments and Participations; Binding Effect)), (2)
the Commitments of each Lender, (3) the amount of each Term Loan, and for
Eurodollar Rate Loans, the Interest Period applicable thereto, (4) the amount of
any principal or interest due and payable or paid and (5) any other payment
received by the Administrative Agent from the Borrower and its application to
the Obligations.
(c) Registered Obligations. Notwithstanding anything to the
contrary contained in this Agreement, the Term Loans (including any Notes
evidencing such Term Loans) are registered obligations, the right, title and
interest of the Lenders and their assignees in and to the Term Loans shall be
transferable only upon notation of such transfer in the Register and no
assignment thereof shall be effective until recorded therein. This Section 2.14
and Section 11.2 shall be construed so that the Term Loans are at all times
maintained in "registered form" within the meaning of Sections 163(f), 871(h)(2)
and 881(c)(2) of the Code and any related regulations (and any successor
provisions).
(d) Prima Facie Evidence. The entries made in the Register and
in the accounts maintained pursuant to clauses (a) and (b) above shall, to the
extent permitted by applicable Requirements of Law, be prima facie evidence of
the existence and amounts of the obligations recorded therein; provided,
however, that no error in such account and no failure of any Lender or the
Administrative Agent to maintain any such account shall affect the obligations
of any Loan Party to repay the Term Loans in accordance with their terms. In
addition, the Loan Parties, the Administrative Agent and the Lenders shall treat
each Person whose name is recorded in the Register as a Lender for all purposes
of this Agreement. Information contained in the Register with respect to any
Lender shall be available for access by the Borrower, the Administrative Agent,
such Lender at any reasonable time and from time to time upon reasonable prior
notice. No Lender shall, in such capacity, have access to or be otherwise
permitted to review any information in the Register other than information with
respect to such Lender unless otherwise agreed by the Administrative Agent.
(e) Notes. Upon any Lender's request, the Borrower shall
promptly execute and deliver Notes to such Lender evidencing the Term Loan of
such Lender and substantially in the form of Exhibit B; provided, however, that
only one Note shall be issued to each Lender, except (i) to an existing Lender
exchanging existing Notes to reflect changes in the Register relating to such
Lender, in which case the new Notes delivered to such Lender shall be dated the
date of the original Notes and (ii) in the case of loss, destruction or
mutilation of existing Notes and similar circumstances. Each Note, if issued,
shall only be issued as means to evidence the right, title or interest of a
Lender or a registered assignee in and to the related Loan, as set forth in the
Register, and in no event shall any Note be considered a bearer instrument or
obligation.
Section 2.15 Suspension of Eurodollar Rate Option.
Notwithstanding any provision to the contrary in this Article II, the following
shall apply:
(a) Interest Rate Unascertainable, Inadequate or Unfair. In
the event that (A) the Administrative Agent determines that adequate and fair
means do not exist for ascertaining the applicable interest rates by reference
to which the Eurodollar Rate is determined or (B) the Required Lenders notify
the Administrative Agent that the Eurodollar Rate for any Interest Period will
not adequately reflect the cost to the Lenders of making or maintaining a
Eurodollar Rate Loan for such Interest Period, the Administrative Agent shall
promptly so notify the Borrower and the Lenders, whereupon the obligation of
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each Lender to make or to continue Eurodollar Rate Loans shall be suspended as
provided in clause (c) below until the Administrative Agent shall notify the
Borrower that the Required Lenders have determined that the circumstances
causing such suspension no longer exist.
(b) Illegality. If any Lender determines that the introduction
of, or any change in or in the interpretation of, any Requirement of Law after
the date of this Agreement shall make it unlawful, or any Governmental Authority
shall assert that it is unlawful, for any Lender or its applicable lending
office to make Eurodollar Rate Loans or to continue to fund or maintain
Eurodollar Rate Loans, then, on notice thereof and demand therefor by such
Lender to the Borrower through the Administrative Agent, the obligation of such
Lender to make or to continue Eurodollar Rate Loans shall be suspended as
provided in clause (c) below until such Lender shall, through the Administrative
Agent, notify the Borrower that it has determined that it may lawfully make
Eurodollar Rate Loans.
(c) Effect of Suspension. If the obligation of any Lender to
make or to continue Eurodollar Rate Loans is suspended, (A) the obligation of
such Lender to convert Base Rate Loans into Eurodollar Rate Loans shall be
suspended, (B) such Lender shall make a Base Rate Loan at any time such Lender
would otherwise be obligated to make a Eurodollar Rate Loan, (C) the Borrower
may revoke any pending Notice of Borrowing or Notice of Conversion or
Continuation to make or continue any Eurodollar Rate Loan or to convert any Base
Rate Loan into a Eurodollar Rate Loan and (D) each Eurodollar Rate Loan of such
Lender shall automatically and immediately (or, in the case of any suspension
pursuant to clause (a) above, on the last day of the current Interest Period
thereof) be converted into a Base Rate Loan.
Section 2.16 Breakage Costs; Increased Costs; Capital
Requirements. (a) Breakage Costs. The Borrower shall compensate each Lender,
upon demand from such Lender to the Borrower (with copy to the Administrative
Agent), for all Liabilities (including, in each case, those incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by such
Lender to prepare to fund, to fund or to maintain the Eurodollar Rate Loans of
such Lender to the Borrower but excluding any loss of the Applicable Margin on
the relevant Eurodollar Rate Loans) that such Lender may incur (A) to the
extent, for any reason other than solely by reason of such Lender being a
Non-Funding Lender, a proposed borrowing, conversion into or continuation of
Eurodollar Rate Loans does not occur on a date specified therefor in a Notice of
Borrowing or a Notice of Conversion or Continuation or in a similar request made
by telephone by the Borrower, (B) to the extent any Eurodollar Rate Loan is paid
(whether through a scheduled, optional or mandatory prepayment) or converted to
a Base Rate Loan (including because of Section 2.15) on a date that is not the
last day of the applicable Interest Period or (C) as a consequence of any
failure by the Borrower to repay Eurodollar Rate Loans when required by the
terms hereof. For purposes of this clause (a), each Lender shall be deemed to
have funded each Eurodollar Rate Loan made by it using a matching deposit or
other borrowing in the London interbank market.
(b) Increased Costs. If at any time any Lender determines
that, after the date hereof, the adoption of, or any change in or in the
interpretation, application or administration of, or compliance with, any
Requirement of Law (other than any imposition or increase of Eurodollar Reserve
Requirements) from any Governmental Authority shall have the effect of (i)
increasing the cost to such Lender of making, funding or maintaining any
Eurodollar Rate Loan or to agree to do so or of participating, or agreeing to
participate, in extensions of credit, or (ii) imposing any other cost to such
Lender with respect to compliance with its obligations under any Loan Document,
then, upon demand by such Lender (with copy to the Administrative Agent), the
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Borrower shall pay to the Administrative Agent for the account of such Lender
amounts sufficient to compensate such Lender for such increased cost; provided,
however, that this Section 2.16(b) shall not apply to any increase in or
imposition of any taxes which shall be governed by Section 2.17.
(c) Increased Capital Requirements. If at any time any Lender
determines that, after the date hereof, the adoption of, or any change in or in
the interpretation, application or administration of, or compliance with, any
Requirement of Law (other than any imposition or increase of Eurodollar Reserve
Requirements) from any Governmental Authority regarding capital adequacy,
reserves, special deposits, compulsory loans, insurance charges against property
of, deposits with or for the account of, Obligations owing to, or other credit
extended or participated in by, any Lender or any similar requirement (in each
case other than any imposition or increase of Eurodollar Reserve Requirements)
shall have the effect of reducing the rate of return on the capital of such
Lender's (or any corporation controlling such Lender) as a consequence of its
obligations under or with respect to any Loan Document to a level below that
which, taking into account the capital adequacy policies of such Lender or
corporation, such Lender or corporation could have achieved but for such
adoption or change, then, upon demand from time to time by such Lender (with a
copy of such demand to the Administrative Agent), the Borrower shall pay to the
Administrative Agent for the account of such Lender amounts sufficient to
compensate such Lender for such reduction.
(d) Compensation Certificate. Each demand for compensation
under this Section 2.16 shall be accompanied by a certificate of the Lender
claiming such compensation, setting forth the amounts to be paid hereunder,
which certificate shall be conclusive, binding and final for all purposes,
absent manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.
Section 2.17 Taxes. (a) Payments Free and Clear of Taxes.
Except as otherwise provided in this Section 2.17, each payment by any Loan
Party under any Loan Document shall be made free and clear of and without
deduction for all present or future taxes, levies, imposts, deductions, charges
or withholdings and all liabilities with respect thereto (and without deduction
for any of them) (collectively, the "Taxes") other than for (i) taxes measured
by net income (including branch profits taxes) and franchise taxes imposed in
lieu of net income taxes, in each case imposed on any Secured Party as a result
of a present or former connection between such Secured Party and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than such connection
arising solely from any Secured Party having executed, delivered or performed
its obligations or received a payment under, or enforced, any Loan Document) or
(ii) taxes that are directly attributable to the failure (other than as a result
of a change in any Requirement of Law) by any Secured Party to deliver the
documentation required to be delivered pursuant to clause (f) below (all such
non-excluded taxes, "Non-Excluded Taxes").
(b) Gross-Up. If any Taxes shall be required by law to be
deducted from or in respect of any amount payable under any Loan Document (other
than any Secured Hedging Agreement) to any Secured Party (i) in the case of
Non-Excluded Taxes, such amount shall be increased as necessary to ensure that,
after all required deductions for Non-Excluded Taxes are made (including
deductions of Non-Excluded Taxes applicable to any increases to any amount under
this Section 2.17), such Secured Party receives the amount it would have
received had no such deductions been made, (ii) the relevant Loan Party shall
make deductions for all relevant Taxes, (iii) the relevant Loan Party shall
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timely pay the full amount deducted to the relevant taxing authority or other
authority in accordance with applicable Requirements of Law and (iv) within 30
days after such payment is made, the relevant Loan Party shall deliver to the
Administrative Agent an original or certified copy of a receipt evidencing such
payment or, if a receipt is not available, other evidence of payment reasonably
satisfactory to the Administrative Agent in the Administrative Agent's sole
discretion; provided, however, that no such increase shall be made with respect
to, and no Loan Party shall be required to indemnify any such Secured Party
pursuant to clause (d) below for, withholding taxes to the extent that the
obligation to withhold amounts existed on the date that such Secured Party
became a "Secured Party" under this Agreement in the capacity under which such
Secured Party makes a claim under this clause (b), except in each case to the
extent such Secured Party is a direct or indirect assignee (other than pursuant
to Section 2.18 (Substitution of Lenders)) of any other Secured Party that was
entitled, at the time the assignment of such other Secured Party became
effective, to receive additional amounts under this clause (b).
(c) Other Taxes. In addition, the Borrower agrees to pay, and
authorizes the Administrative Agent to pay in its name, any stamp, documentary,
excise or property tax, charges or similar levies imposed by any applicable
Requirement of Law or Governmental Authority and all Liabilities with respect
thereto (including by reason of any delay in payment thereof), in each case
arising from the execution, delivery or registration of, or otherwise with
respect to, any Loan Document or any transaction contemplated therein
(collectively, "Other Taxes"). The Swingline Lender may, without any need for
notice, demand or consent from the Borrower, by making funds available to the
Administrative Agent in the amount equal to any such payment, make a Swing Loan
to the Borrower in such amount, the proceeds of which shall be used by the
Administrative Agent in whole to make such payment. Within 30 days after the
date of any payment of Taxes or Other Taxes by any Loan Party pursuant to this
Section 2.17, the Borrower shall furnish to the Administrative Agent, at its
address referred to in Section 11.11, the original or a certified copy of a
receipt evidencing payment thereof or, if a receipt is not available, other
evidence of payment reasonably acceptable to the Administrative Agent in the
Administrative Agent's sole discretion.
(d) Indemnification. The Borrower shall reimburse and
indemnify, within 30 days after receipt of demand therefor (with copy to the
Administrative Agent), each Secured Party for all Non-Excluded Taxes and Other
Taxes (including any such Non-Excluded Taxes and Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.17) paid by such Secured
Party and any Liabilities arising therefrom or with respect thereto (other than
any taxes referred to in clauses (i) and (ii) of Section 2.17(a)), whether or
not such Non-Excluded Taxes or Other Taxes were correctly or legally asserted. A
certificate of the Secured Party (or of the Administrative Agent on behalf of
such Secured Party) claiming any compensation under this clause (d), setting
forth a calculation of the amounts to be paid thereunder and delivered to the
Borrower with a copy to the Administrative Agent, shall be conclusive, binding
and final for all purposes, absent manifest error.
(e) Mitigation. Any Lender claiming any additional amounts
payable pursuant to this Section 2.17 shall use its reasonable efforts
(consistent with its internal policies and Requirements of Law) to change the
jurisdiction of its lending office if such a change would reduce any such
additional amounts (or any similar amount that may thereafter accrue) and would
not, in the sole determination of such Lender, be otherwise disadvantageous to
such Lender.
(f) Tax Forms. (i) Each Non-U.S. Lender Party that, at any of
the following times, is entitled to an exemption from United States withholding
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tax or is subject to such withholding tax at a reduced rate under an applicable
tax treaty, shall (w) on or prior to the date such Non-U.S. Lender Party becomes
a "Non-U.S. Lender Party" hereunder, (x) on or prior to the date on which any
such form or certification expires or becomes obsolete, (y) after the occurrence
of any event requiring a change in the most recent form or certification
previously delivered by it pursuant to this clause (i) and (z) from time to time
if requested by the Borrower or the Administrative Agent (or, in the case of a
participant or SPV, the relevant Lender), provide the Administrative Agent and
the Borrower (or, in the case of a participant or SPV, the relevant Lender) with
two properly completed and duly executed originals of each of the following, as
applicable: (A) Forms W-8ECI (claiming exemption from U.S. withholding tax
because the income is effectively connected with a U.S. trade or business),
W-8BEN (claiming exemption from, or a reduction of, U.S. withholding tax under
an income tax treaty) and/or W-8IMY (together with any required accompanying
forms) or any successor forms, (B) in the case of a Non-U.S. Lender Party
claiming exemption under Sections 871(h) or 881(c) of the Code, Form W-8BEN
(claiming exemption from U.S. withholding tax under the portfolio interest
exemption) or any successor form and a certificate in form and substance
acceptable to the Administrative Agent that such Non-U.S. Lender Party is not
(1) a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (2) a "10
percent shareholder" of the Borrower within the meaning of Section 881(c)(3)(B)
of the Code or (3) a "controlled foreign corporation" described in Section
881(c)(3)(C) of the Code or (C) any other applicable document prescribed by the
IRS certifying as to the entitlement of such Non-U.S. Lender Party to such
exemption from United States withholding tax or reduced rate with respect to all
payments to be made to such Non-U.S. Lender Party under the Loan Documents.
Unless the Borrower and the Administrative Agent have received forms or other
documents satisfactory to them indicating that payments under any Loan Document
to or for a Non-U.S. Lender Party are not subject to United States withholding
tax, the Loan Parties and the Administrative Agent shall withhold amounts
required to be withheld by applicable Requirements of Law from such payments at
the applicable statutory rate or at a reduced rate under an applicable tax
treaty.
(i) Each U.S. Lender Party shall (A) on or prior to the date
such U.S. Lender Party becomes a "U.S. Lender Party" hereunder,
(B) on or prior to the date on which any such form or
certification expires or becomes obsolete, (C) after the
occurrence of any event requiring a change in the most recent
form or certification previously delivered by it pursuant to this
clause (f) and (D) from time to time if requested by the Borrower
or the Administrative Agent (or, in the case of a participant or
SPV, the relevant Lender), provide the Administrative Agent and
the Borrower (or, in the case of a participant or SPV, the
relevant Lender) with two properly completed and duly executed
originals of Form W-9 (certifying that such U.S. Lender Party is
entitled to an exemption from U.S. backup withholding tax) or any
successor form.
(ii) Each Lender having sold a participation in any of its
Obligations or identified an SPV as such to the Administrative
Agent shall collect from such participant or SPV the documents
described in this clause (f) and provide them, along with two
properly completed and duly executed originals of Form W-8IMY to
the Administrative Agent.
Section 2.18 Substitution of Lenders. (a) Substitution Right.
In the event that any Lender that is not an Affiliate of the Administrative
Agent (an "Affected Lender"), (i) makes a claim under clause (b) (Increased
Costs) or (c) (Increased Capital Requirements) of Section 2.16, (ii) notifies
the Borrower pursuant to Section 2.15(b) (Illegality) that it becomes illegal
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for such Lender to continue to fund or make any Eurodollar Rate Loan, (iii)
makes a claim for payment pursuant to Section 2.17(b) or (d) (Taxes), (iv)
becomes a Non-Funding Lender or (v) does not consent to any amendment, waiver or
consent to any Loan Document for which the consent of the Required Lenders is
obtained but that requires the consent of other Lenders, the Borrower may either
pay in full such Affected Lender with respect to amounts due with the consent of
the Administrative Agent or substitute for such Affected Lender any Lender or
any Affiliate or Approved Fund of any Lender or any other Person acceptable
(which acceptance shall not be unreasonably withheld or delayed) to the
Administrative Agent (in each case, a "Substitute Lender").
(b) Procedure. To substitute such Affected Lender or pay in
full the Obligations owed to such Affected Lender, the Borrower shall deliver a
notice to the Administrative Agent and such Affected Lender. The effectiveness
of such payment or substitution shall be subject to the delivery to the
Administrative Agent by the Borrower (or, as may be applicable in the case of a
substitution, by the Substitute Lender) of (i) payment for the account of such
Affected Lender, of, to the extent accrued through, and outstanding on, the
effective date for such payment or substitution, all Obligations owing to such
Affected Lender (including those that will be owed because of such payment),
(ii) in the case of a payment in full of the Obligations owing to such Affected
Lender, payment of any amount that, after giving effect to the termination of
the Commitment of such Affected Lender, is required to be paid pursuant to
Section 2.8(d) (Excess Outstandings) and (iii) in the case of a substitution,
(A) payment of the assignment fee set forth in Section 11.2(c) and (B) an
assumption agreement in form and substance reasonably satisfactory to the
Administrative Agent whereby the Substitute Lender shall, among other things,
agree to be bound by the terms of the Loan Documents and assume the Commitment
of the Affected Lender.
(c) Effectiveness. Upon satisfaction of the conditions set
forth in clause (b) above, the Administrative Agent shall record such
substitution or payment in the Register, whereupon (i) in the case of any
payment in full, such Affected Lender's Commitments shall be terminated and (ii)
in the case of any substitution, (A) the Affected Lender shall sell and be
relieved of, and the Substitute Lender shall purchase and assume, all rights and
claims of such Affected Lender under the Loan Documents, except that the
Affected Lender shall retain such rights expressly providing that they survive
the repayment of the Obligations and the termination of the Commitments, (B) the
Substitute Lender shall become a "Lender" hereunder having a Commitment in the
amount of such Affected Lender's Commitment and (C) the Affected Lender shall
execute and deliver to the Administrative Agent an Assignment to evidence such
substitution and deliver any Note in its possession; provided, however, that the
failure of any Affected Lender to execute any such Assignment or deliver any
such Note shall not render such sale and purchase (or the corresponding
assignment) invalid.
ARTICLE 3
CONDITIONS TO THE TERM LOANS
Section 3.1 Conditions Precedent to the Term Loans. The
obligation of each Lender to make any a Term Loan on the Closing Date is subject
to the satisfaction or due waiver of each of the following conditions precedent
on or before March 3, 2008:
(a) Certain Documents. The Administrative Agent shall have
received on or prior to the Closing Date each of the following, each (in the
case of clauses (i) through (iv), (vii) and (viii)) dated the Closing Date
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unless otherwise agreed by the Administrative Agent, in form and substance
reasonably satisfactory to the Administrative Agent:
(i) this Agreement duly executed by the Borrower and, for
the account of each Lender having requested the same by notice to
the Administrative Agent and the Borrower received by each at
least 3 Business Days prior to the Closing Date (or such later
date as may be agreed by the Borrower), Notes conforming to the
requirements set forth in Section 2.14(e);
(ii) the Guaranty and Security Agreement, duly executed by
each Guarantor, together with (A) copies of UCC, Intellectual
Property and other appropriate search reports and of all
effective prior filings listed therein, together with evidence of
the termination of such prior filings that are not in respect of
any Permitted Lien, in each case as may be reasonably requested
by the Administrative Agent, (B) all documents representing all
certificated Securities required to be pledged pursuant to such
Guaranty and Security Agreement and related undated powers or
endorsements duly executed in blank and (C) all Control
Agreements that, in the reasonable judgment of the Administrative
Agent, are required for the Loan Parties to comply with the Loan
Documents as of the Closing Date, each duly executed by, in
addition to the applicable Loan Party, the applicable financial
institution;
(iii) the Intercreditor Agreement, duly executed and
delivered by the Administrative Agent, the Revolving Credit
Administrative Agent, the Borrower and the other Loan Parties;
(iv) a duly executed favorable opinion of counsel to the
Loan Parties in New York, addressed to the Administrative Agent
and the Lenders and addressing such matters as the Administrative
Agent may reasonably request;
(v) a copy of each Constituent Document of each Loan Party
that is on file with any Governmental Authority in the
jurisdiction of organization of such Loan Party, certified as of
a recent date by such Governmental Authority, together with, if
applicable, certificates attesting to the good standing of such
Loan Party in such jurisdiction and each other jurisdiction where
such Loan Party is qualified to do business as a foreign entity
or where such qualification is necessary (and, if required in any
such jurisdiction, related tax certificates);
(vi) a certificate of the secretary or other officer of each
Loan Party in charge of maintaining books and records of such
Loan Party certifying as to (A) the names and signatures of each
officer of such Loan Party authorized to execute and deliver any
Loan Document, (B) the Constituent Documents of such Loan Party
attached to such certificate are complete and correct copies of
such Constituent Documents as in effect on the date of such
certification (or, for any such Constituent Document delivered
pursuant to clause (vi) above, that there have been no changes
from such Constituent Document so delivered) and (C) the
resolutions of such Loan Party's board of directors or other
appropriate governing body approving and authorizing the
execution, delivery and performance of each Loan Document to
which such Loan Party is a party;
(vii) a certificate of a Responsible Officer of the Borrower
to the effect that (A) the Loan Parties taken as a whole are
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Solvent after giving effect to the initial Loans and Letters of
Credit, the consummation of the Related Transactions, the
application of the proceeds thereof in accordance with Section
7.9 and the payment of all fees and expenses related hereto and
thereto and (B) attached thereto are complete and correct copies
of each Related Document (other than the payoff letter for the
Existing Credit Agreement and the Revolving Loan Documents);
(viii) insurance certificates in form and substance
reasonably satisfactory to the Administrative Agent demonstrating
that the insurance policies required by Section 7.5 are in full
force and effect and have all endorsements required by such
Section 7.5;
(ix) interim unaudited monthly and quarterly Financial
Statements of the Borrower and its Subsidiaries through the
Fiscal Month or Fiscal Quarter, as applicable, ending September
30, 2007 and each subsequent Fiscal Month and Fiscal Quarter
occurring no later than 30 days (or 45 days in the case of
monthly and quarterly financing statements for the Fiscal Month
and Fiscal Quarter, respectively, ending December 31, 2007) prior
to the Closing Date and for which Financial Statements are
available;
(x) (a) a pro forma estimated balance sheet of the Borrower
and its Subsidiaries at the last day of the Fiscal Month for
which Financial Statements are available prior to the Closing
Date (so long as such date is not more than 60 days prior to the
Closing Date) after giving effect to the refinancing of the
Existing Credit Agreement, the redemption of the Senior Notes and
the funding of the Indebtedness hereunder and under the Revolving
Credit Agreement, and (b) the Borrower's business plan which
shall include a financial forecast on a monthly basis for the
first twelve months after the Closing Date and on an annual basis
thereafter through 2012 prepared by the Borrower's management; in
each case, with such updates as the Administrative Agent shall
reasonably request; and
(xi) the other documents listed on the Closing Checklist.
(b) Fee and Expenses. There shall have been paid to the
Administrative Agent, for the account of the Administrative Agent, its Related
Persons or any Lender, as the case may be, all fees and all reimbursements of
costs or expenses, in each case due and payable under any Loan Document on or
before the Closing Date.
(c) Consents. Each Group Member shall have received all
consents and authorizations required pursuant to any material Contractual
Obligation with any other Person and shall have obtained all Permits of, and
effected all notices to and filings with, any Governmental Authority, in each
case, as may be necessary in connection with the consummation of the
transactions contemplated in any Loan Document or Related Document (including
the Related Transactions).
(d) Related Transactions. The Administrative Agent shall be
satisfied that, (i) subject only the funding of the Term Loans hereunder and the
Indebtedness under the Revolving Credit Agreement and the use of proceeds
thereof, (x) all obligations under the Existing Credit Agreement will have been
repaid in full, as evidenced by a payoff letter duly executed and delivered by
the Borrower and the Existing Agent and (y) the Borrower shall issue (and mail)
on the Closing Date a notice of redemption to the holders of the Senior Notes
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calling for a redemption of the Senior Notes no later than the date that is 30
days after the Closing Date (the "Redemption Date") and shall deposit on the
Closing Date with the Trustee under the Senior Notes Indenture cash in an amount
sufficient to fund such redemption on the Redemption Date which shall result on
the Closing Date in a discharge of the Senior Notes Indenture pursuant to the
terms thereof and a release of the Lien of the Senior Notes Indenture on the
Closing Date and (ii) all conditions precedent to the making of the revolving
loans under the Revolving Credit Agreement shall have been satisfied or waived,
and the lenders thereunder shall have made revolving loans in the amount of
$88,666,104.52.
(e) Minimum Consolidated EBITDA. The aggregate Consolidated
EBITDA of the Borrower for the most recent period of twelve months prior to the
Closing Date for which financial statements are required to have been delivered
under the Existing Credit Agreement shall not be less than $65,000,000.
(f) Senior Subordinated Notes. The Administrative Agent shall
have received evidence reasonably satisfactory to it that all Indebtedness of
the Borrower under this Agreement (taking into account the advances under the
Term Loan Credit Agreement) constitutes and will constitute "Permitted
Indebtedness," "Designated Senior Debt" and "Senior Debt" under (and as such
terms are defined in) the Senior Subordinated Notes Indenture and all liens
securing the Obligations and the Revolving Obligations constitute "Permitted
Liens" (under and as such term is defined in the Senior Subordinated Notes
Indenture), including, if applicable, certified copies of any supplemental
indentures needed to permit such indebtedness or liens.
(g) Request. The Administrative Agent shall have received, to
the extent required by Article II, a written, timely and duly executed and
completed Notice of Borrowing.
(h) Representations and Warranties. Each representation or
warranty by any Loan Party contained herein or in any other Loan Document shall
be true and correct in all material respects (without duplication of any
materiality qualifier contained herein) as of such date, except to the extent
that such representation or warranty expressly relates to an earlier date.
(i) No Default. There shall have occurred and be continuing no
Default or Event of Default and no Default or Event of Default would result
after making the Term Loans.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Administrative Agent to enter
into the Loan Documents, the Borrower (and, to the extent set forth in any other
Loan Document, each other Loan Party) represents and warrants to each of them
each of the following on and as the Closing Date:
Section 4.1 Corporate Existence; Compliance with Law. Each
Group Member (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) is duly qualified to do
business as a foreign entity and in good standing under the laws of each
jurisdiction where such qualification is necessary, except where the failure to
be so qualified or in good standing would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect, (c) has all requisite power and
authority and the legal right to own, pledge, mortgage and operate its property,
to lease or sublease any property it operates under lease or sublease and to
conduct its business as currently conducted, (d) is in compliance with all
TERM LOAN CREDIT AGREEMENT
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42
applicable Requirements of Law except where the failure to be in compliance
would not, in the aggregate, reasonably be expected to have a Material Adverse
Effect and (e) has all necessary Permits from or by, has made all necessary
filings with, and has given all necessary notices to, each Governmental
Authority having jurisdiction, to the extent required for such ownership, lease,
sublease, operation, occupation or conduct of business, except where the failure
to obtain such Permits, make such filings or give such notices would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
Section 4.2 Loan and Related Documents. (a) Power and
Authority. The execution, delivery and performance by each Loan Party of the
Loan Documents and Related Documents to which it is a party and the consummation
of the Related Transactions and other transactions contemplated therein (i) are
within such Loan Party's corporate or similar powers and, at the time of
execution thereof, have been duly authorized by all necessary corporate and
similar action (including, if applicable, consent of holders of its Securities),
(ii) do not (A) contravene such Loan Party's Constituent Documents, (B) violate
any applicable Requirement of Law, (C) conflict with, contravene, constitute a
default or breach under, or result in or permit the termination or acceleration
of, any material Contractual Obligation of any Loan Party or any of its
Subsidiaries (including other Related Documents or Loan Documents) other than in
the case of this clause (ii) those that would not, in the aggregate, reasonably
be expected to have a Material Adverse Effect or (D) result in the imposition of
any Lien (other than a Permitted Lien) upon any property of any Loan Party or
any of its Subsidiaries and (iii) do not require any Permit of, or filing with,
any Governmental Authority or any consent of, or notice to, any Person, other
than (A) with respect to the Loan Documents, the filings required to perfect the
Liens created by the Loan Documents, and (B) those listed on Schedule 4.2 and
that have been, or will be prior to the Closing Date, obtained or made, copies
of which have been, or will be prior to the Closing Date, delivered to the
Administrative Agent, and each of which on the Closing Date will be in full
force and effect.
(b) Due Execution and Delivery. From and after its delivery to
the Administrative Agent, each Loan Document and Related Document has been duly
executed and delivered to the other parties thereto by each Loan Party party
thereto, is the legal, valid and binding obligation of such Loan Party and is
enforceable against such Loan Party in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
(c) Senior Subordinated Notes. The Obligations (taking into
account the advances under the Term Loan Credit Agreement) constitute "Permitted
Indebtedness", "Senior Debt" and "Designated Senior Debt" under and as defined
in the Senior Subordinated Notes Indenture. No other Indebtedness (other than
the Revolving Obligations) qualifies as "Permitted Indebtedness", "Senior Debt"
or "Designated Senior Debt" under the Senior Subordinated Notes Indenture. The
Borrower hereby designates all Obligations and Indebtedness in respect of the
Term Loan Facility as "Designated Senior Debt" as such term is defined in the
Senior Subordinated Notes Indenture.
Section 4.3 Ownership of Group Members. Set forth on Schedule
4.3 is a complete and accurate list showing, as of the Closing Date, for each
Group Member and each Subsidiary of any Group Member and each joint venture of
any of them, its jurisdiction of organization, the number of shares of each
class of Stock authorized (if applicable), the number outstanding on the Closing
Date and the number and percentage of the outstanding shares of each such class
TERM LOAN CREDIT AGREEMENT
[DAYTON SUPERIOR CORPORATION]
43
owned (directly or indirectly) by the Borrower. All outstanding Stock of each of
them has been validly issued, is fully paid and non-assessable (to the extent
applicable) and, except in the case of the Borrower, is owned beneficially and
of record by a Group Member free and clear of all Liens other than the security
interests created by the Loan Documents and the Revolving Loan Documents, any
non-consensual Liens arising as a matter of law and permitted under Section 8.2
and, in the case of joint ventures, Permitted Liens. Except as provided in
Schedule 4.3, as of the Closing Date, there are no preemptive or other
outstanding rights, options, warrants, conversion rights or similar agreements
or understandings for the purchase or acquisition from any Group Member or any
of their Subsidiaries of any Stock of any such entity.
Section 4.4 Financial Statements. (a) Each of (i) the audited
Consolidated balance sheet of the Borrower as at December 31, 2006 and the
related Consolidated statements of income, retained earnings and cash flows of
the Borrower for the Fiscal Year then ended, certified by Deloitte & Touche USA
LLP and (ii) subject to the absence of footnote disclosure and normal recurring
year-end audit adjustments, the unaudited Consolidated balance sheets of the
Borrower as at December 31, 2007, and the related Consolidated statements of
income, retained earnings and cash flows of the Borrower for the twelve months
then ended, copies of each of which have been furnished to the Administrative
Agent, fairly present in all material respects the Consolidated financial
position, results of operations and cash flow of the Borrower as at the dates
indicated and for the periods indicated in accordance with GAAP.
(b) The Initial Projections have been prepared by the Borrower
in light of the past operations of the business of the Borrower and its
Subsidiaries and reflect projections for the 4 year period beginning with the
2008 Fiscal Year on a monthly basis for the first year and on a year-by-year
basis thereafter. As of the Closing Date, the Initial Projections are based upon
estimates and assumptions stated therein, all of which the Borrower believes to
be reasonable and fair in light of conditions and facts known to the Borrower as
of the Closing Date and reflect the good faith, reasonable and fair estimates by
the Borrower of the future Consolidated financial performance of the Borrower
and the other information projected therein for the periods set forth therein.
(c) The unaudited Consolidated balance sheet of the Borrower
(the "Pro Forma Balance Sheet") delivered to the Administrative Agent prior to
the date hereof, has been prepared as of the last day of the Fiscal Month ending
prior to the Closing Date and reflects as of such date, on a Pro Forma Basis for
the Related Transactions and the other transactions contemplated herein to occur
on the Closing Date, the Consolidated financial condition of the Borrower, and
the assumptions expressed therein are reasonable based on the information
available to the Borrower at such date and on the Closing Date.
Section 4.5 Material Adverse Effect. Since September 30, 2007,
there have been no events, circumstances, developments or other changes in facts
that would, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
Section 4.6 Solvency. Both before and after giving effect to
(a) the Term Loans made on or prior to the date this representation and warranty
is made, (b) the disbursement of the proceeds of the Term Loans, (c) the
consummation of the Related Transactions and (d) the payment and accrual of all
transaction costs in connection with the foregoing, the Loan Parties taken as a
whole are Solvent.
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Section 4.7 Litigation. There are no pending (or, to the
knowledge of any Group Member, threatened) actions, investigations, suits,
proceedings, audits, claims, demands, orders or disputes affecting the Borrower
or any of its Subsidiaries with, by or before any Governmental Authority other
than those that would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
Section 4.8 Taxes. All federal, state, local and foreign
income and franchise and other material tax returns, reports and statements
(collectively, the "Tax Returns") required to be filed by any Tax Affiliate have
been filed with the appropriate Governmental Authorities in all jurisdictions in
which such Tax Returns are required to be filed, all such Tax Returns are true
and correct in all material respects, and all taxes, charges and other
impositions reflected therein or otherwise due and payable have been paid prior
to the date on which any Liability may be added thereto for non-payment thereof
except for those contested in good faith by appropriate proceedings diligently
conducted and for which adequate reserves are maintained on the books of the
appropriate Tax Affiliate in accordance with GAAP. No Tax Return is under audit
or examination by any Governmental Authority and no notice of such an audit or
examination or any assertion of any claim for Taxes has been given or made by
any Governmental Authority. Proper and accurate amounts have been withheld by
each Tax Affiliate from their respective employees for all periods in full and
complete compliance with the tax, social security and unemployment withholding
provisions of applicable Requirements of Law and such withholdings have been
timely paid to the respective Governmental Authorities. No Tax Affiliate has
participated in a "listed transaction" within the meaning of Treasury Regulation
Section 1.6011-4(b)(2) or has participated in a "reportable transaction" within
the meaning of Treasury Regulation Section 1.6011-4(b)(2) that has not been or
will not be properly reported. No Tax Affiliate has been with respect to any
open tax year a member of an affiliated, combined or unitary group of which a
Tax Affiliate is the common parent.
Section 4.9 Margin Regulations. The Borrower is not engaged in
the business of extending credit for the purpose of, and no proceeds of any Term
Loan or other extensions of credit hereunder will be used for the purpose of,
buying or carrying margin stock (within the meaning of Regulation U of the
Federal Reserve Board) or extending credit to others for the purpose of
purchasing or carrying any such margin stock, in each case in contravention of
Regulation T, U or X of the Federal Reserve Board.
Section 4.10 No Defaults. No Group Member (and, to the
knowledge of each Group Member, no other party thereto) is in default under or
with respect to any Contractual Obligation of any Group Member, other than those
that would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section 4.11 Investment Company Act. No Group Member is an
"investment company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company", as such terms are defined in the
Investment Company Act of 1940.
Section 4.12 Labor Matters. There are no strikes, work
stoppages, slowdowns or lockouts existing, pending (or, to the knowledge of any
Group Member, threatened) against or involving any Group Member, except, for
those that would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect. Except as set forth on Schedule 4.12, as of the Closing
Date, (a) there is no collective bargaining or similar agreement with any union,
labor organization, works council or similar representative covering any
employee of any Group Member, (b) no petition for certification or election of
TERM LOAN CREDIT AGREEMENT
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any such representative is existing or pending with respect to any employee of
any Group Member and (c) no such representative has sought certification or
recognition with respect to any employee of any Group Member.
Section 4.13 ERISA. Schedule 4.13 sets forth, as of the
Closing Date, a complete and correct list of, and that separately identifies,
(a) all Title IV Plans, (b) all Multiemployer Plans and (c) all material Benefit
Plans. Each Benefit Plan, and each trust thereunder, intended to qualify for tax
exempt status under Section 401 or 501 of the Code or other Requirements of Law
has been determined by the Internal Revenue Service to so qualify and nothing
has occurred since such determination that could adversely affect such status.
Except for those that would not, in the aggregate, have a Material Adverse
Effect, (x) each Benefit Plan is in compliance with applicable provisions of
ERISA, the Code and other Requirements of Law, (y) there are no existing or
pending (or to the knowledge of any Group Member, threatened) claims (other than
routine claims for benefits in the normal course), sanctions, actions, lawsuits
or other proceedings or investigation involving any Benefit Plan to which any
Group Member incurs or otherwise has or could have an obligation or any
Liability and (z) no ERISA Event is reasonably expected to occur. On the Closing
Date, no ERISA Event has occurred in connection with which obligations and
liabilities (contingent or otherwise) remain outstanding. No ERISA Affiliate
would have any Withdrawal Liability in excess of $500,000 as a result of a
complete withdrawal from any Multiemployer Plan on the date this representation
is made which Withdrawal Liability could be reasonably likely to require any
Group Member to make any payment in satisfaction thereof.
Section 4.14 Environmental Matters. Except as set forth on
Schedule 4.14, (a) the operations of each Group Member are and, for the past
five years, have been in compliance with all applicable Environmental Laws,
including obtaining, maintaining and complying with all Permits required by any
applicable Environmental Law, other than non-compliances that, in the aggregate,
would not have a reasonable likelihood of resulting in Material Environmental
Liabilities, (b) no Group Member is party to, and no Group Member is subject to
or, with respect to any real property currently (or to the knowledge of any
Group Member previously) owned, leased, subleased, operated or otherwise
occupied by or for any Group Member, the subject of, any Contractual Obligation
by any Group Member or any pending (or, to the knowledge of any Group Member,
threatened) order, action, suit, proceeding, claim, written demand, dispute or
notice of violation or of potential liability or similar notice under or
pursuant to any Environmental Law other than those that, in the aggregate, are
not reasonably likely to result in Material Environmental Liabilities, (c) no
Lien in favor of any Governmental Authority securing, in whole or in part,
Environmental Liabilities has attached to any property of any Group Member and,
to the knowledge of any Group Member, no facts, circumstances or conditions
exist that could reasonably be expected to result in any such Lien attaching to
any such property, (d) no Group Member has caused or permitted to occur a
Release of Hazardous Materials at, to or from any real property of any Group
Member and each such real property is free of contamination by any Hazardous
Materials except for such Release or contamination that could not reasonably be
expected to result, in the aggregate, in Material Environmental Liabilities and
(e) no Group Member (i) is or has been engaged in, or has permitted any current
or former tenant to engage in, operations, or (ii) knows of any facts,
circumstances or conditions, including receipt of any information request or
notice of potential responsibility under CERCLA or similar Environmental Laws,
that, in the aggregate, would have a reasonable likelihood of resulting in
Material Environmental Liabilities.
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Section 4.15 Intellectual Property. Each Group Member owns or
licenses all Intellectual Property that is necessary for the conduct of its
businesses as currently conducted. To the knowledge of each Group Member, (a)
the conduct and operations of the businesses of each Group Member does not
infringe, misappropriate, dilute, violate or otherwise impair any Intellectual
Property that is necessary for the conduct of its businesses and owned by any
other Person and (b) no other Person has contested any right, title or interest
of any Group Member in, or relating to, any Intellectual Property that is
necessary for the conduct of its businesses, other than, in each case, as would
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
In addition, (x) there are no pending (or, to the knowledge of any Group Member,
threatened) actions, investigations, suits, proceedings, audits, claims,
demands, orders or disputes affecting any Group Member with respect to, (y) no
judgment or order regarding any such claim has been rendered by any competent
Governmental Authority, no settlement agreement or similar Contractual
Obligation has been entered into by any Group Member, with respect to and (z) no
Group Member knows of any valid basis for any claim based on, any such
infringement, misappropriation, dilution, violation or impairment or contest,
other than, in each case, as would not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
Section 4.16 Title; Real Property. (a) Each Group Member has
good fee simple title to all owned real property and valid leasehold interests
in all leased real property, and none of such property is subject to any Lien
except Permitted Liens.
(b) Set forth on Schedule 4.16 is, as of the Closing Date, (i)
a complete and correct list of all real property owned in fee simple by any
Group Member or in which any Group Member owns a leasehold interest setting
forth, for each such real property, the current street address (including, where
applicable, county, state and other relevant jurisdictions), the record owner
thereof and, where applicable, each lessee and sublessee thereof, (ii) any
lease, or sublease of such real property by any Group Member and (iii) for each
such real property that is required to be subject to a Mortgage pursuant to the
terms hereof, each Contractual Obligation by any Group Member, whether
contingent or otherwise, to Sell such real property.
Section 4.17 Full Disclosure. No representation or warranty of
any Loan Party contained in this Agreement, the Financial Statements referred to
in Section 6.1, the other Related Documents or any other document, certificate
or written statement furnished to the Administrative Agent or any Lender by or
on behalf of any such Person for use in connection with the Loan Documents or
the Related Documents contains any untrue statement of a material fact or taken
as a whole, omitted, omits or will omit to state a material fact necessary in
order to make the statements contained herein or therein not misleading in light
of the circumstances in which the same were made.
Section 4.18 Patriot Act. No Group Member (and, to the
knowledge of each Group Member, no joint venture or subsidiary thereof) is in
violation in any material respects of any United States Requirements of Law
relating to terrorism, sanctions or money laundering (the "Anti-Terrorism
Laws"), including the United States Executive Order No. 13224 on Terrorist
Financing (the "Anti-Terrorism Order") and the Patriot Act.
TERM LOAN CREDIT AGREEMENT
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ARTICLE 5
FINANCIAL COVENANTS
The Borrower (and, to the extent set forth in any other Loan
Document, each other Loan Party) agrees with the Lenders and the Administrative
Agent to perform and observe each of the following covenants until the
Satisfaction Date:
Section 5.1 Maximum Consolidated Leverage Ratio. The Borrower
shall not have, on the last day of any Fiscal Quarter set forth below, a
Consolidated Leverage Ratio greater than the maximum ratio set forth opposite
such Fiscal Quarter:
------------------------------------------------------------------------------
FISCAL QUARTER ENDING MAXIMUM CONSOLIDATED LEVERAGE RATIO
------------------------------------------------------------------------------
------------------------------------------------------------------------------
June 30, 2008 6.50 to 1
------------------------------------------------------------------------------
September 30, 2008 6.25 to 1
------------------------------------------------------------------------------
December 31, 2008 6.25 to 1
------------------------------------------------------------------------------
March 31, 2009 6.00 to 1
------------------------------------------------------------------------------
June 30, 2009 6.00 to 1
------------------------------------------------------------------------------
September 30, 2009 5.75 to 1
------------------------------------------------------------------------------
December 31, 2009 5.75 to 1
------------------------------------------------------------------------------
March 31, 2010 5.00 to 1
------------------------------------------------------------------------------
June 30, 2010 5.00 to 1
------------------------------------------------------------------------------
September 30, 2010 5.00 to 1
------------------------------------------------------------------------------
December 31, 2010 5.00 to 1
------------------------------------------------------------------------------
March 31, 2011 4.25 to 1
------------------------------------------------------------------------------
June 30, 2011 4.25 to 1
------------------------------------------------------------------------------
September 30, 2011 4.25 to 1
------------------------------------------------------------------------------
December 31, 2011 4.25 to 1
------------------------------------------------------------------------------
March 31, 2012 4.00 to 1
------------------------------------------------------------------------------
June 30, 2012 4.00 to 1
------------------------------------------------------------------------------
September 30, 2012 4.00 to 1
------------------------------------------------------------------------------
December 31, 2012 4.00 to 1
------------------------------------------------------------------------------
March 31, 2013 4.00 to 1
------------------------------------------------------------------------------
June 30, 2013 4.00 to 1
------------------------------------------------------------------------------
September 30, 2013 4.00 to 1
------------------------------------------------------------------------------
December 31, 2013 4.00 to 1
------------------------------------------------------------------------------
Section 5.2 Minimum Consolidated Interest Coverage Ratio. The
Borrower shall not have, on the last day of any Fiscal Quarter set forth below,
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a Consolidated Interest Coverage Ratio for the 4 Fiscal Quarter period ending on
such day less than the minimum ratio set forth opposite such Fiscal Quarter:
------------------------------------------------------------------------------
FISCAL QUARTER ENDING MINIMUM CONSOLIDATED INTEREST
COVERAGE RATIO
------------------------------------------------------------------------------
------------------------------------------------------------------------------
June 30, 2008 1.55 to 1
------------------------------------------------------------------------------
September 30, 2008 1.55 to 1
------------------------------------------------------------------------------
December 31, 2008 1.60 to 1
------------------------------------------------------------------------------
March 31, 2009 1.60 to 1
------------------------------------------------------------------------------
June 30, 2009 1.60 to 1
------------------------------------------------------------------------------
September 30, 2009 1.65 to 1
------------------------------------------------------------------------------
December 31, 2009 1.70 to 1
------------------------------------------------------------------------------
March 31, 2010 2.00 to 1
------------------------------------------------------------------------------
June 30, 2010 2.00 to 1
------------------------------------------------------------------------------
September 30, 2010 2.00 to 1
------------------------------------------------------------------------------
December 31, 2010 2.00 to 1
------------------------------------------------------------------------------
March 31, 2011 2.10 to 1
------------------------------------------------------------------------------
June 30, 2011 2.10 to 1
------------------------------------------------------------------------------
September 30, 2011 2.10 to 1
------------------------------------------------------------------------------
December 31, 2011 2.10 to 1
------------------------------------------------------------------------------
March 31, 2012 2.25 to 1
------------------------------------------------------------------------------
June 30, 2012 2.25 to 1
------------------------------------------------------------------------------
September 30, 2012 2.25 to 1
------------------------------------------------------------------------------
December 31, 2012 2.25 to 1
------------------------------------------------------------------------------
March 31, 2013 2.25 to 1
------------------------------------------------------------------------------
June 30, 2013 2.25 to 1
------------------------------------------------------------------------------
September 30, 2013 2.25 to 1
------------------------------------------------------------------------------
December 31, 2013 2.25 to 1
------------------------------------------------------------------------------
ARTICLE 6
REPORTING COVENANTS
The Borrower (and, to the extent set forth in any other Loan
Document, each other Loan Party) agrees with the Lenders and the Administrative
Agent to perform and observe each of the following covenants until the
Satisfaction Date:
Section 6.1 Financial Statements. The Borrower shall deliver
to the Administrative Agent each of the following:
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(a) Monthly Reports. As soon as available, and in any event
within 30 days after the end of each of the first two Fiscal Months in each
Fiscal Quarter, the Consolidated unaudited balance sheet of the Borrower as of
the close of such Fiscal Month and related Consolidated statements of income and
cash flow for such Fiscal Month and that portion of the Fiscal Year ending as of
the close of such Fiscal Month, setting forth in comparative form the figures
for the corresponding period in the prior Fiscal Year, in each case certified by
a Responsible Officer of the Borrower as fairly presenting in all material
respects the Consolidated financial position, results of operations and cash
flow of the Borrower as at the dates indicated and for the periods indicated in
accordance with GAAP (subject to the absence of footnote disclosure and normal
year-end audit adjustments).
(b) Quarterly Reports. As soon as available, and in any event
within 45 days after the end of each of the first three Fiscal Quarters of each
Fiscal Year, the Consolidated unaudited balance sheet of the Borrower as of the
close of such Fiscal Quarter and related Consolidated statements of income and
cash flow for such Fiscal Quarter and that portion of the Fiscal Year ending as
of the close of such Fiscal Quarter, setting forth in comparative form the
figures for the corresponding period in the prior Fiscal Year and the figures
contained in the latest Projections, in each case certified by a Responsible
Officer of the Borrower as fairly presenting in all material respects the
Consolidated financial position, results of operations and cash flow of the
Borrower as at the dates indicated and for the periods indicated in accordance
with GAAP (subject to the absence of footnote disclosure and normal year-end
audit adjustments).
(c) Annual Reports. As soon as available, and in any event
within 90 days after the end of each Fiscal Year, the Consolidated balance sheet
of the Borrower as of the end of such year and related Consolidated statements
of income, stockholders' equity and cash flow for such Fiscal Year, each
prepared in accordance with GAAP, together with a certification by the Group
Members' Accountants that (i) such Consolidated Financial Statements fairly
present in all material respects the Consolidated financial position, results of
operations and cash flow of the Borrower as at the dates indicated and for the
periods indicated therein in accordance with GAAP without qualification as to
the scope of the audit or as to going concern and without any other similar
qualification and (ii) in the course of the regular audit of the businesses of
the Group Members, which audit was conducted in accordance with the standards of
the United States' Public Company Accounting Oversight Board (or any successor
entity), such Group Members' Accountants have obtained no knowledge that a
Default in respect of any financial covenant contained in Article V is
continuing or, if in the opinion of the Group Members' Accountants such a
Default is continuing, a statement as to the nature thereof; provided, that the
certification in this clause (ii) shall not be required if contrary to the
published pronouncements of The American Institute of Certified Public
Accountants.
(d) Compliance Certificate. Together with each delivery of any
Financial Statement pursuant to clause (b) or (c) above, a Compliance
Certificate duly executed by a Responsible Officer of the Borrower that, among
other things, states that, to the best of his or her knowledge, no Default is
continuing as of the date of delivery of such Compliance Certificate or, if a
Default is continuing, states the nature thereof and the action that the
Borrower proposes to take with respect thereto.
(e) Corporate Chart and Other Collateral Updates. As part of
the Compliance Certificate delivered pursuant to clause (d) above, each in form
and substance satisfactory to the Administrative Agent, a certificate by a
Responsible Officer of the Borrower that (i) the Corporate Chart attached
thereto (or the last Corporate Chart delivered pursuant to this clause (e)) is
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correct and complete as of the date of such Compliance Certificate, (ii) the
Loan Parties have delivered all documents (including updated schedules as to
locations of Collateral and acquisition of Intellectual Property or real
property) they are required to deliver pursuant to any Loan Document on or prior
to the date of delivery of such Compliance Certificate and (iii) complete and
correct copies of all documents modifying any term of any Constituent Document
of any Group Member or any Subsidiary or joint venture thereof on or prior to
the date of delivery of such Compliance Certificate have been delivered to the
Administrative Agent or are attached to such certificate.
(f) Additional Projections. As soon as available and in any
event not later than 30 days after the end of each Fiscal Year, any significant
revisions to, (i) the annual business plan of the Group Members for the Fiscal
Year next succeeding such Fiscal Year and (ii) forecasts prepared by management
of the Borrower (A) for each Fiscal Quarter in such next succeeding Fiscal Year
and (B) for each other succeeding Fiscal Year through the Fiscal Year containing
the Scheduled Maturity Date, in each case including in such forecasts (x) a
projected year-end Consolidated balance sheet, income statement and statement of
cash flows, (y) a statement of all of the material assumptions on which such
forecasts are based and (z) substantially the same type of financial information
as that contained in the Initial Projections.
(g) Management Discussion and Analysis. Together with each
delivery of any Compliance Certificate pursuant to clause (d) above, a
discussion and analysis of the financial condition and results of operations of
the Group Members for the portion of the Fiscal Year then elapsed and discussing
the reasons for any significant variations from the Projections for such period
and the figures for the corresponding period in the previous Fiscal Year.
(h) Audit Reports, Management Letters, Etc. Together with each
delivery of any Financial Statement for any Fiscal Year pursuant to clause (c)
above, copies of each management letter, audit report or similar letter or
report received by any Group Member from any independent registered certified
public accountant (including the Group Members' Accountants) in connection with
such Financial Statements or any audit thereof, each certified to be complete
and correct copies by a Responsible Officer of the Borrower as part of the
Compliance Certificate delivered in connection with such Financial Statements.
(i) Insurance. Together with each delivery of any Financial
Statement for any Fiscal Year pursuant to clause (c) above, each in form and
substance reasonably satisfactory to the Administrative Agent and certified as
complete and correct by a Responsible Officer of the Borrower as part of the
Compliance Certificate delivered in connection with such Financial Statements, a
summary of all material insurance coverage maintained as of the date thereof by
any Group Member, together with such other related documents and information as
the Administrative Agent may reasonably require.
Section 6.2 Other Events. The Borrower shall give the
Administrative Agent notice of each of the following (which may be made by
telephone if promptly confirmed in writing) promptly after any Responsible
Officer of any Group Member has knowledge thereof: (a)(i) any Default and (ii)
any event that would reasonably be expected to have a Material Adverse Effect,
specifying, in each case, the nature and anticipated effect thereof and any
action proposed to be taken in connection therewith, (b) any event (other than
any event involving loss or damage to property) reasonably expected to result in
a mandatory payment of the Obligations pursuant to Section 2.8, stating the
material terms and conditions of such transaction and estimating the Net Cash
Proceeds thereof, (c) the commencement of, or any material developments in, any
TERM LOAN CREDIT AGREEMENT
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action, investigation, suit, proceeding, audit, claim, demand, order or dispute
with, by or before any Governmental Authority affecting any Group Member or any
property of any Group Member that (i) seeks injunctive or similar relief, (ii)
in the reasonable judgment of the Borrower, exposes any Group Member to
liability in an aggregate amount in excess of $5,000,000 or (iii) if adversely
determined would reasonably be expected to have a Material Adverse Effect and
(d) the acquisition of any material real property or the entering into any
material lease.
Section 6.3 Copies of Notices and Reports. The Borrower shall,
promptly upon their becoming available, deliver to the Administrative Agent
copies of each of the following: (a) all reports that the Borrower transmits to
its security holders generally, (b) all documents that any Group Member files
with the Securities and Exchange Commission, the National Association of
Securities Dealers, Inc., any securities exchange or any Governmental Authority
exercising similar functions, (c) all press releases not made available directly
to the general public and (d) any material document transmitted or received
pursuant to, or in connection with, any Contractual Obligation governing
Indebtedness of any Group Member in excess of $25,000,000.
Section 6.4 Taxes. The Borrower shall give the Administrative
Agent notice of each of the following (which may be made by telephone if
promptly confirmed in writing) promptly after any Responsible Officer of any
Group Member knows or has reason to know of it: (a) the creation, or filing with
the IRS or any other Governmental Authority, of any Contractual Obligation or
other document extending, or having the effect of extending, the period for
assessment or collection of any taxes with respect to any Tax Affiliate and (b)
the creation of any Contractual Obligation of any Tax Affiliate, or the receipt
of any request directed to any Tax Affiliate, to make any adjustment under
Section 481(a) of the Code, by reason of a change in accounting method or
otherwise, which would in the case of either (a) or (b) have a Material Adverse
Effect.
Section 6.5 Labor Matters. The Borrower shall give the
Administrative Agent notice of each of the following (which may be made by
telephone if promptly confirmed in writing), promptly after, and in any event
within 30 days after any Responsible Officer of any Group Member knows or has
reason to know of it: (a) the commencement of any material labor dispute to
which any Group Member is or may become a party, including any strikes, lockouts
or other disputes relating to any of such Person's plants and other facilities
and (b) the incurrence by any Group Member of any Worker Adjustment and
Retraining Notification Act or related or similar liability incurred with
respect to the closing of any plant or other facility of any such Person (other
than those that, in the case of either (a) or (b), would not, in the aggregate,
have a Material Adverse Effect).
Section 6.6 ERISA Matters. The Borrower shall give the
Administrative Agent (a) on or prior to any filing by any ERISA Affiliate of any
notice of intent to terminate any Title IV Plan, which termination could be
reasonably likely to require any Group Member to make any payment in respect
thereof, a copy of such notice and (b) promptly, and in any event within 10
days, after any Responsible Officer of any ERISA Affiliate knows or has reason
to know that a request for a minimum funding waiver under Section 412 of the
Code has been filed with respect to any Title IV Plan or Multiemployer Plan,
which, in either case, could be reasonably likely to require any Group Member to
make any payment in respect thereof, a notice (which may be made by telephone if
promptly confirmed in writing) describing such waiver request and any action
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that any ERISA Affiliate proposes to take with respect thereto, together with a
copy of any notice filed with the PBGC or the IRS pertaining thereto.
Section 6.7 Environmental Matters. (a) The Borrower shall
provide the Administrative Agent notice of each of the following (which may be
made by telephone if promptly confirmed by the Administrative Agent in writing)
promptly after any Responsible Officer of any Group Member knows (and, upon
reasonable request of the Administrative Agent, documents and information in
connection therewith): (i)(A) unpermitted Releases, (B) the receipt by any Group
Member of any notice of violation of or potential liability or similar notice
under, or the existence of any condition that could reasonably be expected to
result in violations of or liabilities under, any Environmental Law or (C) the
commencement of, or any material change to, any action, investigation, suit,
proceeding, audit, claim, written demand, dispute alleging a violation of or
liability under any Environmental Law, that, for each of clauses (A), (B) and
(C) above (and, in the case of clause (C), if adversely determined), in the
aggregate for each such clause, could reasonably be expected to result in
Environmental Liabilities in excess of $500,000, (ii) the receipt by any Group
Member of notification that any property of any Group Member is subject to any
Lien in favor of any Governmental Authority securing, in whole or in part,
Environmental Liabilities and (iii) any proposed acquisition or lease of real
property (except as part of any Permitted Acquisition) if such acquisition or
lease would have a reasonable likelihood of resulting in aggregate Environmental
Liabilities in excess of $500,000.
(b) Upon reasonable request of the Administrative Agent, the
Borrower shall provide the Administrative Agent a report containing an update as
to the status of any environmental, health or safety compliance, hazard or
liability issue identified in any document delivered to any Secured Party
pursuant to any Loan Document or as to any condition reasonably believed by the
Administrative Agent to result in material Environmental Liabilities.
Section 6.8 Other Information. The Borrower shall provide the
Administrative Agent with such other documents and information with respect to
the business, property, condition (financial or otherwise), legal, financial or
corporate or similar affairs or operations of any Group Member as the
Administrative Agent or such Lender through the Administrative Agent may from
time to time reasonably request.
ARTICLE 7
AFFIRMATIVE COVENANTS
The Borrower (and, to the extent set forth in any other Loan
Document, each other Loan Party) agrees with the Lenders and the Administrative
Agent to perform and observe each of the following covenants until the
Satisfaction Date:
Section 7.1 Maintenance of Corporate Existence. Each Group
Member shall (a) preserve and maintain its legal existence, except in the
consummation of transactions expressly permitted by Sections 8.4 and 8.7, and
(b) preserve and maintain its rights (charter and statutory), privileges
franchises and Permits required in the conduct of its business, except, in the
case of this clause (b), where the failure to do so would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 7.2 Compliance with Laws, Etc. Each Group Member shall
comply with all applicable Requirements of Law, Contractual Obligations and
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Permits, except for such failures to comply that would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 7.3 Payment of Obligations. Each Group Member shall
pay or discharge before they become delinquent (a) all material claims, taxes,
assessments, charges and levies imposed by any Governmental Authority and (b)
all other lawful claims, in each case, that if unpaid would, by the operation of
applicable Requirements of Law, become a Lien upon any property of any Group
Member, except, in each case, for those whose amount or validity is being
contested in good faith by proper proceedings diligently conducted and for which
adequate reserves are maintained on the books of the appropriate Group Member in
accordance with GAAP.
Section 7.4 Maintenance of Property. Each Group Member shall
maintain and preserve (a) in good working order and condition all of its
property necessary in the conduct of its business and (b) all rights, permits,
licenses, approvals and privileges (including all Permits) necessary, in the
conduct of its business and shall make all necessary or appropriate filings
with, and give all required notices to, Government Authorities, except for such
failures to maintain and preserve the items set forth in clauses (a) and (b)
above that would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
Section 7.5 Maintenance of Insurance. Each Group Member shall
(a) maintain or cause to be maintained in full force and effect all policies of
insurance of any kind with respect to the property and businesses of the Group
Members (including policies of life, fire, theft, product liability, public
liability, property damage, other casualty, employee fidelity, workers'
compensation, business interruption and employee health and welfare insurance)
with financially sound and reputable insurance companies or associations (in
each case that are not Affiliates of the Borrower) of a nature and providing
such coverage as is customarily carried by businesses of the size and character
of the business of the Group Members and (b) cause all such insurance relating
to any property or business of any Loan Party to name the Administrative Agent
on behalf of the Secured Parties as additional insured or loss payee, as
appropriate, and to provide that no cancellation, material addition in amount or
material change in coverage shall be effective until after 30 days' notice
thereof to the Administrative Agent.
Section 7.6 Keeping of Books. The Group Members shall keep
proper books of record and account, in which full, true and correct entries
shall be made in accordance with GAAP and all other applicable Requirements of
Law of all financial transactions and the assets and business of each Group
Member.
Section 7.7 Access to Books and Property. Each Group Member
shall permit the Administrative Agent, the Lenders and any Related Person of any
of them, as often as reasonably requested, at any reasonable time during normal
business hours and with reasonable advance notice (except that, during the
continuance of an Event of Default, no such notice shall be required) to (a)
visit and inspect the property of each Group Member and examine and make copies
of and abstracts from, the corporate (and similar), financial, operating and
other books and records of each Group Member, (b) discuss the affairs, finances
and accounts of each Group Member with any officer or director of any Group
Member and (c) communicate directly with any registered certified public
accountants (including the Group Members' Accountants); provided that if such
visit or inspection occurs at any time when no Default has occurred and is
continuing, such visit or inspection shall be coordinated through the
Administrative Agent and shall be limited to two visits and two inspections
during any consecutive twelve-month period. Each Group Member shall authorize
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their respective registered certified public accountants (including the Group
Members' Accountants) to communicate directly with the Administrative Agent, the
Lenders and their Related Persons and to disclose to the Administrative Agent,
the Lenders and their Related Persons all financial statements and other
documents and information as they might have and the Administrative Agent or any
Lender reasonably requests with respect to any Group Member.
Section 7.8 Environmental. Each Group Member shall comply
with, and maintain its real property, whether owned, leased, subleased or
otherwise operated or occupied, in compliance with, all applicable Environmental
Laws (including by implementing any Remedial Action necessary to achieve such
compliance or that is required by orders and directives of any Governmental
Authority) except for failures to comply that would not, in the aggregate, have
a Material Adverse Effect. Without limiting the foregoing, if an Event of
Default is continuing or if the Administrative Agent at any time has a
reasonable basis to believe that there exist violations of Environmental Laws by
any Group Member or that there exist any Environmental Liabilities, in each
case, that would have, in the aggregate, a Material Adverse Effect, then each
Group Member shall, promptly upon receipt of request from the Administrative
Agent, cause the performance of, and allow the Administrative Agent and its
Related Persons access to such real property for the purpose of conducting, such
environmental audits and assessments, including subsurface sampling of soil and
groundwater, and cause the preparation of such reports, in each case as the
Administrative Agent may from time to time reasonably request. Such audits,
assessments and reports, to the extent not conducted by the Administrative Agent
or any of its Related Persons, shall be conducted and prepared by reputable
environmental consulting firms reasonably acceptable to the Administrative Agent
and shall be in form and substance reasonably acceptable to the Administrative
Agent.
Section 7.9 Use of Proceeds. The proceeds of the Term Loans
shall be used by the Borrower (and, to the extent distributed to them by the
Borrower, each other Group Member) solely (a) to consummate the Related
Transactions and for the payment of related transaction costs, fees and expenses
and (b) for the payment of transaction costs, fees and expenses incurred in
connection with the Loan Documents and the transactions contemplated therein.
Section 7.10 Additional Collateral and Guaranties. To the
extent not delivered to the Administrative Agent on or before the Closing Date
(including in respect of after-acquired property and Persons that become
Subsidiaries of any Loan Party after the Closing Date), each Group Member shall,
promptly, do each of the following, unless otherwise agreed by the
Administrative Agent:
(a) deliver to the Administrative Agent such modifications to
the terms of the Loan Documents (or, to the extent applicable as determined by
the Administrative Agent, such other documents), in each case, in form and
substance reasonably satisfactory to the Administrative Agent and as the
Administrative Agent deems reasonably necessary to ensure the following:
(i) each Wholly Owned Subsidiary of the Borrower that is not
an Excluded Foreign Subsidiary (including any such Subsidiary
acquired or created after the Closing Date) shall be a Guarantor
hereunder and under the Guaranty and Security Agreement; and
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(ii) each Loan Party (including any Person required to
become a Guarantor pursuant to clause (i) above) shall grant to
the Administrative Agent, for the benefit of the Secured Parties,
a valid and enforceable security interest in all of its property
(other than property of a type excluded from the granting clauses
of the Guaranty and Security Agreement or constituting leased
real property), including all of its Stock and Stock Equivalents
and other Securities, as security for the Obligations of such
Loan Party;
provided, however, that in no event shall the Loan Parties, individually or
collectively, be required to pledge in excess of 66% of the outstanding Voting
Stock of any Excluded Foreign Subsidiary or any Subsidiary of an Excluded
Foreign Subsidiary;
(b) deliver to the Administrative Agent all documents
representing all certificated Stock, Stock Equivalents and other Securities
required to be pledged pursuant to the documents delivered pursuant to clause
(a) above, together with undated powers or endorsements duly executed in blank;
(c) upon request of the Administrative Agent, deliver to the
Administrative Agent a Mortgage on any real property owned by any Loan Party the
fair market value of which exceeds $1,000,000 on the date of determination,
together with all Mortgage Supporting Documents relating thereto (or, if such
real property is located in a jurisdiction outside the United States, similar
documents deemed reasonably necessary by the Administrative Agent to obtain the
equivalent in such jurisdiction of a first-priority mortgage on such real
property);
(d) to take all other actions reasonably necessary to ensure
the validity or continuing validity of any guaranty for any Obligation or any
Lien securing any Obligation, to perfect, maintain, evidence or enforce any Lien
securing any Obligation or to ensure such Liens have the same priority as that
of the Liens on similar Collateral set forth in the Loan Documents executed on
the Closing Date (or, for Collateral located outside the United States, a
similar priority reasonably acceptable to the Administrative Agent), including
the filing of UCC financing statements in such jurisdictions as may be required
by the Loan Documents or applicable Requirements of Law or as the Administrative
Agent may otherwise reasonably request and to become a party to the
Intercreditor Agreement as an "Obligor" pursuant to documents in form and
substance reasonably acceptable to the Administrative Agent; and
(e) deliver to the Administrative Agent legal opinions
relating to the matters described in this Section 7.10, which opinions shall be
as reasonably required by, and in form and substance and from counsel reasonably
satisfactory to, the Administrative Agent.
Section 7.11 Deposit Accounts; Securities Accounts and Cash
Collateral Accounts. (a) Each Loan Party shall (i) deposit all of its cash
(other than cash in respect of any Excluded Account) into deposit accounts that
are Controlled Deposit Accounts, and (ii) deposit all of its Cash Equivalents
into securities accounts that are Controlled Securities Accounts.
(b) The Administrative Agent shall not have any responsibility
for, or bear any risk of loss of, any investment or income of any funds in any
Controlled Deposit Account, Controlled Securities Account or Cash Collateral
Account. From time to time after funds are required to be deposited in any Cash
Collateral Account pursuant to the terms hereof or any other Loan Document, the
Administrative Agent may apply funds then held in such Cash Collateral Account
to the payment of Obligations in accordance with Section 2.12. No Group Member
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and no Person claiming on behalf of or through any Group Member shall have any
right to demand payment of any funds held in any Cash Collateral Account at any
time prior to the termination of all Commitments and the payment in full of all
Obligations and, in the case of L/C Cash Collateral Accounts, the termination,
or to the extent acceptable to the L/C Issuers, the issuance of back-to back
letters of credit issued by issuers and in form and substance satisfactory in
all respects to the applicable L/C Issuers and the Administrative Agent in
respect of, and in an aggregate amount equal to 105% of the amount of, the
outstanding Letters of Credit.
(c) The Administrative Agent will exercise its rights to block
access to and direct payment and delivery of cash or securities in any
Controlled Deposit Account or Controlled Securities Account only while an Event
of Default is continuing, and will terminate such exercise promptly thereafter
once no Event of Default is continuing.
Section 7.12 Credit Rating. The Borrower shall at all times
use its commercially reasonable efforts to obtain and to cause a credit rating
by S&P and by Xxxxx'x to be maintained with respect to the Term Loan Facility
and the Borrower hereunder.
Section 7.13 Interest Rate Contracts. The Borrower shall,
within 120 days after the Closing Date, enter into and thereafter maintain
Interest Rate Contracts on terms and with counterparties reasonably satisfactory
to the Administrative Agent, to provide protection against fluctuation of
interest rates until the 3rd anniversary of the Closing Date for a notional
amount equal to at least 50% of the sum of the aggregate Commitments on the date
hereof.
ARTICLE 8
NEGATIVE COVENANTS
The Borrower (and, to the extent set forth in any other Loan
Document, each other Loan Party) agrees with the Lenders and the Administrative
Agent to perform and observe each of the following covenants until the
Satisfaction Date:
Section 8.1 Indebtedness. No Group Member shall, directly or
indirectly, incur or otherwise remain liable with respect to or responsible for,
any Indebtedness except for the following:
(a) the Obligations;
(b) Indebtedness existing on the date hereof and set forth on
Schedule 8.1, together with any Permitted Refinancing of any Indebtedness
permitted hereunder in reliance upon this clause (b);
(c) Indebtedness consisting of Capitalized Lease Obligations
(other than with respect to a lease entered into as part of a Sale and Leaseback
Transaction) and purchase money Indebtedness, in each case incurred by any Group
Member to finance the acquisition, repair, improvement or construction of fixed
or capital assets of such Group Member, together with any Permitted Refinancing
of any Indebtedness permitted hereunder in reliance upon this clause (c);
provided, however, that (i) the aggregate outstanding principal amount of all
such Indebtedness does not exceed $5,000,000 at any time and (ii) the principal
amount of such Indebtedness does not exceed the lower of the cost or fair market
value of the property so acquired or built or of such repairs or improvements
financed, whether directly or through a Permitted Refinancing, with such
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Indebtedness (each measured at the time such acquisition, repair, improvement or
construction is made);
(d) Capitalized Lease Obligations arising under Sale and
Leaseback Transactions entered into prior to the date hereof;
(e) intercompany loans owing to any Group Member and
constituting Permitted Investments of such Group Member;
(f) (i) obligations under Interest Rate Contracts entered into
to comply with Section 7.13 and (ii) obligations under other Hedging Agreements
entered into for the sole purpose of hedging in the normal course of business
and consistent with industry practices;
(g) Guaranty Obligations of any Group Member with respect to
Indebtedness of any Group Member (other than Indebtedness permitted hereunder in
reliance upon clause (b) or (c) above, for which Guaranty Obligations may be
permitted to the extent set forth in such clauses);
(h) unsecured Indebtedness of the Borrower owing under the
Senior Subordinated Notes pursuant to the Senior Subordinated Notes Indenture
and any Permitted Refinancing thereof; provided, however, that the aggregate
outstanding principal amount of all such Indebtedness shall not exceed
$155,000,000 at any time, plus, in the case of any Permitted Refinancing
thereof, any fees, premiums, costs and expenses financed thereby;
(i) the Revolving Obligations and any Permitted Refinancing
thereof;
(j) any unsecured Indebtedness of any Group Member and any
Permitted Refinancing thereof; provided, however, that the aggregate outstanding
principal amount of all such unsecured Indebtedness shall not exceed $10,000,000
at any time;
(k) Indebtedness arising from agreements of the Borrower or a
Subsidiary of the Borrower providing for indemnification, adjustment of purchase
price, earn out or other similar obligations, in each case, incurred or assumed
in connection with the disposition of any business, assets or Subsidiary of the
Borrower, other than guarantees of Indebtedness incurred by any Person acquiring
all or any portion of such business, assets or Subsidiary for the purpose of
financing such acquisition; provided that the maximum assumable liability in
respect of all such Indebtedness shall at no time exceed the gross proceeds
actually received by the Borrower and its Subsidiaries in connection with such
disposition and such disposition shall be permitted by the terms of this
Agreement;
(l) Indebtedness of Dayton Superior Canada Ltd. in a principal
amount not exceeding $5,000,000 or its equivalent in Canadian dollars
outstanding at any time and any Permitted Refinancing thereof, provided, that
(i) the credit agreement and related documents are in form and substance
reasonably satisfactory to the Administrative Agent and (ii) no other Loan Party
shall have any liability with respect to such Indebtedness or shall provide any
collateral security or other support with respect thereto;
(m) unsecured Indebtedness issued or acquired in connection
with a Permitted Acquisition in an amount not to exceed $7,500,000 on the date
of issuance or assumption, as applicable, and any Permitted Refinancing thereof;
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provided that, in the case of any such Indebtedness that was issued in
connection with a Permitted Acquisition, the final maturity of such Indebtedness
is on or after the date that is six months after the 6th anniversary of the
Closing Date;
(n) Indebtedness arising from performance and surety bonds and
completion guarantees provided by the Borrower or any Subsidiary of the Borrower
in the ordinary course of business not in excess of $2,000,000 in the aggregate
outstanding at any time; and
(o) Indebtedness arising under indemnity agreements to title
insurers to cause such title insurers to issue to the Administrative Agent
mortgagee title insurance policies.
Section 8.2 Liens. No Group Member shall incur, maintain or
otherwise suffer to exist any Lien upon or with respect to any of its property,
whether now owned or hereafter acquired, or assign any right to receive income
or profits, except for the following:
(a) Liens created pursuant to any Loan Document;
(b) Customary Permitted Liens of Group Members;
(c) Liens existing on the date hereof and set forth on
Schedule 8.2 and any extensions or renewals thereof;
(d) Liens on the property of the Borrower or any of its
Subsidiaries securing Indebtedness permitted hereunder in reliance upon Section
8.1(c); provided, however, that (i) such Liens exist prior to the acquisition
of, or attach substantially simultaneously with, or within 90 days after, the
acquisition, repair, improvement or construction of, such property financed,
whether directly or through a Permitted Refinancing, by such Indebtedness and
(ii) such Liens do not extend to any property of any Group Member other than the
property (and proceeds thereof) acquired or built, or the improvements or
repairs, financed, whether directly or through a Permitted Refinancing, by such
Indebtedness;
(e) Liens on the property of the Borrower or any of its
Subsidiaries securing the Permitted Refinancing of any Indebtedness secured by
any Lien on such property permitted hereunder in reliance upon clause (c) or (d)
above or this clause (e) without any change in the property subject to such
Liens;
(f) Liens securing the Revolving Obligations and Liens
securing any Permitted Refinancing of the Revolving Obligations, so long as the
Intercreditor Agreement or in the case of such a Permitted Refinancing, another
intercreditor agreement satisfying the requirements of the term "Permitted
Refinancing" is in effect;
(g) Liens securing any Permitted Refinancing of the Senior
Subordinated Notes; and
(h) Liens on any property of the Borrower or any of its
Subsidiaries securing any of their Indebtedness or their other liabilities;
provided, however, that the aggregate outstanding principal amount of all such
Indebtedness and other liabilities shall not exceed $10,000,000 at any time.
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Section 8.3 Investments. No Group Member shall make or
maintain, directly or indirectly, any Investment except for the following:
(a) Investments existing on the date hereof and set forth on
Schedule 8.3;
(b) Investments in cash and Cash Equivalents;
(c) (i) endorsements for collection or deposit in the ordinary
course of business consistent with past practice, (ii) extensions of trade
credit (other than to Affiliates of the Borrower) arising or acquired in the
ordinary course of business and (iii) Investments received in settlements in the
ordinary course of business of such extensions of trade credit;
(d) Investments made as part of a Permitted Acquisition;
(e) Investments by (i) any Loan Party in any other Loan Party,
(ii) any Group Member that is not a Loan Party in any Group Member or in any
joint venture or (iii) any Loan Party in any Group Member that is not a Loan
Party or in any joint venture; provided, however, that the aggregate outstanding
amount of all Investments permitted pursuant to this clause (iii) shall not
exceed $5,000,000 at any time; and provided, further, that any Investment
consisting of loans or advances to any Loan Party pursuant to clause (ii) above
shall be subordinated in full to the payment of the Obligations of such Loan
Party on terms and conditions reasonably satisfactory to the Administrative
Agent;
(f) loans or advances to employees of the Borrower or any of
its Subsidiaries to finance travel, entertainment and relocation expenses and
other ordinary business purposes in the ordinary course of business as presently
conducted; provided, however, that the aggregate outstanding principal amount of
all loans and advances permitted pursuant to this clause (f) shall not exceed
$5,000,000 at any time;
(g) other Investments of the Borrower and its Subsidiaries to
the extent paid for with Qualified Capital Stock of the Borrower the proceeds of
which have not been used for any other purpose or any other calculation
hereunder;
(h) Guaranty Obligations permitted to be incurred under
Section 8.1;
(i) Investments made by the Borrower or its Subsidiaries as a
result of consideration received in connection with Sales of assets made in
compliance with Section 8.4; and
(j) any Investment by the Borrower or any of its Subsidiaries;
provided, however, that the aggregate outstanding amount of all such Investments
shall not exceed $10,000,000 at any time.
Section 8.4 Asset Sales. No Group Member shall Sell any of its
property (other than cash or Cash Equivalents) or issue shares of its own Stock,
except for the following:
(a) in each case to the extent entered into in the ordinary
course of business and made to a Person that is not an Affiliate of the
Borrower, (i) Sales of Cash Equivalents, inventory (including items in the
rental fleet), (ii) Sales of property that has become obsolete or worn out and
(ii) non-exclusive licenses of Intellectual Property;
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(b) a true lease or sublease of real property not constituting
Indebtedness and not entered into as part of a Sale and Leaseback Transaction;
(c) (i) any Sale of any property (other than their own Stock
or Stock Equivalents) by any Group Member to any other Group Member to the
extent any resulting Investment constitutes a Permitted Investment, (ii) any
Restricted Payment by any Group Member permitted pursuant to Section 8.5 and
(iii) any distribution by the Borrower of the proceeds of Restricted Payments
from any other Group Member to the extent permitted in Section 8.5;
(d) (i) any Sale or issuance by the Borrower of its own Stock,
(ii) any Sale or issuance by any Subsidiary of the Borrower of its own Stock to
any Group Member or any other Person to the extent not prohibited by this
Agreement or creating a Default or Event of Default, provided, however, that in
the case of this clause (ii), the proportion of such Stock and of each class of
such Stock (both on an outstanding and fully-diluted basis) held by the Loan
Parties, taken as a whole, does not change as a result of such Sale or issuance
and (iii) to the extent necessary to satisfy any Requirement of Law in the
jurisdiction of incorporation of any Subsidiary of the Borrower, any Sale or
issuance by such Subsidiary of its own Stock constituting directors' qualifying
shares or nominal holdings; and
(e) as long as no Default is continuing or would result
therefrom, any Sale of property (other than as part of a Sale and Leaseback
Transaction) of, or Sale or issuance of its own Stock by, any Group Member for
at least the fair market value thereof and where at least 75% of the
consideration in respect thereof is in the form of cash, except as otherwise
agreed by the Administrative Agent; provided, however, that the aggregate
consideration received during any Fiscal Year for all such Sales shall not
exceed $5,000,000.
Section 8.5 Restricted Payments. No Group Member shall
directly or indirectly, declare, order, pay, make or set apart any sum for any
Restricted Payment except for the following:
(a) (i) Restricted Payments (A) by any Group Member that is a
Loan Party to any Loan Party and (B) by any Group Member that is not a Loan
Party to any Group Member and (ii) dividends and distributions by any Subsidiary
of the Borrower that is not a Loan Party to any holder of its Stock, to the
extent made to all such holders ratably according to their ownership interests
in such Stock;
(b) dividends and distributions declared and paid on the
common Stock of any Group Member ratably to the holders of such common Stock and
payable only in common Stock of such Group Member;
(c) omitted;
(d) if no Default or Event of Default shall have occurred and
be continuing or shall occur as a consequence thereof, the acquisition of any
shares of Stock of the Borrower (the "Retired Capital Stock") either (i) solely
in exchange for shares of Qualified Capital Stock of the Borrower (the
"Refunding Capital Stock") or (ii) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of the
Borrower) or shares of Qualified Capital Stock of the Borrower;
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(e) if no Default or Event of Default shall have occurred and
be continuing or shall occur as a consequence thereof, the redemption or
repurchase of the Borrower's common equity or options in respect thereof, in
each case in connection with the repurchase provisions of employee stock option
or stock purchase agreements or other agreements to compensate management
employees; provided that all such redemptions or repurchases pursuant to this
paragraph (f) shall not exceed $2,500,000 (with unused amounts in any fiscal
year being carried over to succeeding Fiscal Years subject to a maximum of
$5,000,000 in any Fiscal Year) in any Fiscal Year; provided, further, that the
cancellation of Indebtedness owing to the Borrower from members of management of
the Borrower or any of its Subsidiaries in connection with any repurchase of
Stock of the Borrower (or warrants or options or rights to acquire such Stock)
will not be deemed to constitute a Restricted Payment under this Agreement;
(f) repurchases of Stock deemed to occur upon the exercise of
stock options if such Stock represents a portion of the exercise price thereof;
(g) if no Default or Event of Default shall have occurred and
be continuing or shall occur as a consequence thereof, other Restricted Payments
in an aggregate amount not to exceed $5,000,000; and
(h) the Borrower may pay merger and acquisition advisory fees
in connection with Permitted Acquisitions in an amount not exceeding one percent
(1%) of the transaction value, and reasonable out-of-pocket expense
reimbursements payable to Odyssey Investment Partners, LLC; provided, that no
Default or Event of Default exists at the time of any such Restricted Payment or
would occur as a result thereof.
Section 8.6 Prepayment of Indebtedness. No Group Member shall
(x) prepay, redeem, purchase, defease or otherwise satisfy prior to the
scheduled maturity thereof any Subordinated Debt or Subordinated Refinancing
Indebtedness, (y) set apart any property for such purpose, whether directly or
indirectly and whether to a sinking fund, a similar fund or otherwise, or (z)
make any payment in violation of any subordination terms of any Indebtedness;
provided, however, that each Group Member may, to the extent not otherwise
prohibited by the Loan Documents, do each of the following:
(a) prepay, redeem, purchase, defease or otherwise satisfy
prior to the scheduled maturity thereof (or set apart any property for such
purpose) (A) in the case of any Group Member that is not a Loan Party, any
Indebtedness owing by such Group Member to any other Group Member and (B)
otherwise, any Indebtedness owing to any Loan Party;
(b) (i) make regularly scheduled cash interest payments
pursuant to the terms of the Senior Subordinated Notes, any other Subordinated
Debt or Subordinated Refinancing Indebtedness (but only, in the case of the
Senior Subordinated Notes or other Subordinated Debt, to the extent permitted by
the subordination provisions thereof) or pursuant to the terms of any other
Subordinated Refinancing Indebtedness, and (ii) prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof the Senior
Subordinated Notes, other Subordinated Debt or Subordinated Refinancing
Indebtedness, in each case, (A) with the proceeds of a Permitted Refinancing;
(B) solely in exchange for shares of Qualified Capital Stock of the Borrower;
(C) through the application of net proceeds of a substantially concurrent sale
for cash (other than to a Subsidiary of the Borrower) of shares of Qualified
Capital Stock of the Borrower and (D) in connection solely with the payment or
prepayment in full or redemption of all Senior Subordinated Notes or the
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defeasance or other satisfaction of the Senior Subordinated Note Indenture in
respect of all outstanding Senior Subordinated Notes and only if and after
giving effect thereto Borrowing Availability is at least $20,000,000, from (x)
up to $25,000,000 in proceeds from an increase in the Term Loan Obligations and
(y) other cash resources of the Borrower (including proceeds of the Revolving
Loans) not exceeding $25,000,000 in the aggregate, less (in the case of this
clause (y)) all amounts (if any) expended as permitted by Section 8.6(e);
(c) make regularly scheduled or otherwise required repayments
or redemptions of the Senior Subordinated Notes, other Subordinated Debt or
Subordinated Refinancing Indebtedness, but only, in the case of the Senior
Subordinated Notes or other Subordinated Debt, to the extent permitted by the
subordination provisions thereof;
(d) the acquisition of any Subordinated Debt or Subordinated
Refinancing Indebtedness of the Borrower that is subordinate or junior in right
of payment to the Obligations either (i) solely in exchange for shares of
Qualified Capital Stock of the Borrower or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of the Borrower) of shares of Qualified Capital Stock of the Borrower; and
(e) the purchase, prepayment, acquisition or retirement for
value of up to $25,000,000 in aggregate principal amount of Senior Subordinated
Notes during the term of this Agreement, so long as (i) no Default or Event of
Default shall have occurred and be continuing or shall occur as a consequence
thereof, (ii) after giving effect thereto and the incurrence of any Obligations
in connection therewith, on a Pro Forma Basis as of the end of the period for
which financial statements have been delivered under Section 6.1 or a Borrowing
Base Certificate (as defined in the Revolving Credit Agreement) has been
delivered under Section 6.1 of the Revolving Credit Agreement most recently
prior to such purchase, prepayment, acquisition or retirement for value, (x) the
Consolidated Leverage Ratio shall not be greater than 3.5:1.0 and (y) Borrowing
Availability (as defined in the Revolving Credit Agreement as of the Closing
Date) shall be greater than $40,000,000 and the Borrower has delivered to the
Administrative Agent projections, in form and substance reasonably acceptable to
the Administrative Agent, that Borrowing Availability for the ensuing six months
will not be less than $40,000,000, and (iii) any such Senior Subordinated Note
is retired upon any such purchase, prepayment or acquisition for value.
Section 8.7 Fundamental Changes. No Group Member shall (a)
merge, consolidate or amalgamate with any Person, (b) acquire all or
substantially all of the Stock or Stock Equivalents of any Person or (c) acquire
all or substantially all of the assets of any Person or all or substantially all
of the assets constituting any line of business, division, branch, operating
division or other unit operation of any Person, in each case except for the
following: (x) to consummate any Permitted Acquisition, (y) the merger,
consolidation or amalgamation of (i) any Subsidiary of the Borrower into any
Loan Party or (ii) of any Subsidiary of the Borrower that is not a Loan Party
into any other Subsidiary of the Borrower that is not a Loan Party and (z) the
merger, consolidation or amalgamation of any Group Member for the sole purpose,
and with the sole material effect, of changing its State of organization or
formation, as applicable, within the United States; provided, however, that (A)
in the case of any merger, consolidation or amalgamation involving the Borrower,
the Borrower shall be the surviving Person and (B) in the case of any merger,
consolidation or amalgamation involving any other Loan Party, a Loan Party shall
be the surviving corporation and all actions required to maintain the perfection
of the Lien of the Administrative Agent on the Stock or property of such Loan
Party shall have been made.
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Section 8.8 Change in Nature of Business. No Group Member
shall carry on any business, operations or activities (whether directly, through
a joint venture, in connection with a Permitted Acquisition or otherwise)
substantially different from those carried on by the Group Members at the date
hereof and any business, operations and activities reasonably related or
incidental thereto.
Section 8.9 Transactions with Affiliates. No Group Member
shall, except as otherwise expressly permitted herein, enter into any other
transaction directly or indirectly with, or for the benefit of, any Affiliate of
the Borrower that is not a Loan Party (including Guaranty Obligations with
respect to any obligation of any such Affiliate) other than (x) transactions
with any such Affiliate that are on terms that are not materially less favorable
to such Group Member than those that might reasonably have been obtained in a
comparable transaction at such time on an arm's-length basis from a Person not
an Affiliate of such Group Member and (y) each of the following:
(a) reasonable fees and compensation paid to, and indemnity
provided on behalf of, officers, directors, employees or consultants of the
Borrower or any Subsidiary of the Borrower as determined in good faith by the
Borrower's Board of Directors or senior management;
(b) transactions exclusively between or among the Borrower and
any of its Subsidiaries that are Loan Parties or exclusively between or among
such Subsidiaries, provided such transactions are not otherwise prohibited by
this Agreement;
(c) Restricted Payments permitted by this Agreement and
Investments permitted by this Agreement;
(d) the payment of customary annual management, consulting and
advisory fees and related expenses to Odyssey Investment Partners and general or
limited partners made pursuant to any financial advisory, financing,
underwriting or placement agreement or in respect of other investment banking
activities, including, without limitation, in connection with acquisitions or
divestitures which are approved by the Board of Directors of Borrower or such
Subsidiary in good faith;
(e) payments or loans to employees or consultants that are
approved by the Board of Directors of Borrower in good faith; and
(f) sales of Qualified Capital Stock.
Section 8.10 Third-Party Restrictions on Indebtedness, Liens,
Investments or Restricted Payments. No Group Member shall incur or otherwise
suffer to exist or become effective or remain liable on or responsible for any
Contractual Obligation limiting the ability of (a) any Subsidiary of the
Borrower to make Restricted Payments to, or Investments in, or repay
Indebtedness or otherwise Sell property to, any Group Member or (b) any Group
Member to incur or suffer to exist any Lien upon any property of any Group
Member, whether now owned or hereafter acquired, securing any of its Obligations
(including any "equal and ratable" clause and any similar Contractual Obligation
requiring, when a Lien is granted on any property, another Lien to be granted on
such property or any other property), except, for each of clauses (a) and (b)
above, (x) pursuant to the Loan Documents, the Revolving Loan Documents and the
Senior Subordinated Notes Indenture and the documents governing any Permitted
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Refinancing of the Senior Subordinated Notes or the Revolving Loan Documents,
(y) limitations on Liens (other than those securing any Obligation) on any
property whose acquisition, repair, improvement or construction is financed by
purchase money Indebtedness, Capitalized Lease Obligations or Permitted
Refinancings permitted hereunder in reliance upon Section 8.1(b) or (c) set
forth in the Contractual Obligations governing such Indebtedness, Capitalized
Lease Obligations or Permitted Refinancing or Guaranty Obligations with respect
thereto.
Section 8.11 Modification of Certain Documents. No Group
Member shall do any of the following:
(a) waive or otherwise modify any term of any Related Document
or any Constituent Document of, or otherwise change the capital structure of,
any Group Member (including the terms of any of their outstanding Stock or Stock
Equivalents), in each case except for those modifications and waivers that (x)
do not elect, or permit the election, to treat the Stock or Stock Equivalents of
any limited liability company (or similar entity) as certificated and (y) do not
materially and adversely affect the rights and privileges of any Group Member
and do not materially and adversely affect the interests of any Secured Party
under the Loan Documents or in the Collateral;
(b) waive or otherwise modify any term of any Subordinated
Debt in a manner contrary to any applicable subordination agreement or in any
manner that would not be permitted as a Permitted Refinancing thereof; or
(c) permit any Indebtedness (other than the Obligations and
the Revolving Obligations) to qualify as "Designated Senior Debt" under the
Senior Subordinated Notes Indenture or permit the Obligations to cease
qualifying as such or as "Senior Debt" as defined in the Senior Subordinated
Notes Indenture.
Section 8.12 Accounting Changes; Fiscal Year. No Group Member
shall change its (a) accounting treatment or reporting practices, except as
permitted or required by GAAP or any Requirement of Law, or (b) its Fiscal Year
or its method for determining Fiscal Quarters or Fiscal Months; provided that
upon thirty (30) days' prior notice to the Administrative Agent the Group
Members may change their Fiscal Year, Fiscal Quarter or Fiscal Month (such
change to be applicable to all Group Members included in consolidated financial
reporting under GAAP); provided, further, that (i) such change does not defer
the delivery of audited financial statements required hereunder by more than one
Fiscal Quarter and (ii) the Borrower shall deliver such financial information
(including reconciliations if required under GAAP) as the Administrative Agent
may reasonably request with respect to such change in Fiscal Year.
Section 8.13 Margin Regulations. No Group Member shall use all
or any portion of the proceeds of any credit extended hereunder to purchase or
carry margin stock (within the meaning of Regulation U of the Federal Reserve
Board) in contravention of Regulation U of the Federal Reserve Board.
Section 8.14 Compliance with ERISA. No ERISA Affiliate shall
cause or suffer to exist (a) any event that could result in the imposition of a
Lien with respect to any Title IV Plan or Multiemployer Plan or (b) any other
ERISA Event, that would, in the aggregate, have a Material Adverse Effect. No
Group Member shall cause or suffer to exist any event that could result in the
imposition of a Lien with respect to any Benefit Plan.
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Section 8.15 Hazardous Materials. No Group Member shall cause,
or permit any other Person to cause, any Release of any Hazardous Material at,
to or from any real property owned, leased, subleased or otherwise operated or
occupied by any Group Member that would violate any Environmental Law, form the
basis for any Environmental Liabilities or otherwise adversely affect the value
or marketability of any real property (whether or not owned by any Group
Member), other than such violations, Environmental Liabilities and effects that
would not, in the aggregate, have a Material Adverse Effect.
ARTICLE 9
EVENTS OF DEFAULT
Section 9.1 Definition. Each of the following shall be an
Event of Default:
(a) the Borrower shall fail to pay (i) any principal of any
Term Loan when the same becomes due and payable or (ii) any interest on any Term
Loan, any fee under any Loan Document or any other Obligation (other than those
set forth in clause (i) above) and, in the case of this clause (ii), such
non-payment continues for a period of 3 Business Days after the due date
therefor; or
(b) any representation, warranty or certification made or
deemed made by or on behalf of any Loan Party in any Loan Document or by or on
behalf of any Loan Party (or any Responsible Officer thereof) in connection with
any Loan Document (including in any document delivered in connection with any
Loan Document) shall prove to have been incorrect in any material respect when
made or deemed made; or
(c) any Loan Party shall fail to comply with (i) any provision
of Section 6.1 (Financial Statements), 6.2(a)(i) (Other Events), 7.1
(Maintenance of Corporate Existence), 7.9 (Use of Proceeds), Article V
(Financial Covenants) or Article VIII (Negative Covenants) or (ii) any other
provision of any Loan Document (other than those specified in clauses (a), (b)
and (c)(i) of this Section 9.1) if, in the case of this clause (ii), such
failure shall remain unremedied for 30 days after the earlier of (A) the date on
which a Responsible Officer of the Borrower becomes aware of such failure and
(B) the date on which notice thereof shall have been given to the Borrower by
the Administrative Agent or the Required Lenders; or
(d) (i) any Group Member shall fail to make any payment when
due (whether due because of scheduled maturity, required prepayment provisions,
acceleration, demand or otherwise), after giving effect to any applicable grace
period, on any Indebtedness of any Group Member (other than the Obligations or
any Hedging Agreement) and, in each case, such failure relates to Indebtedness
having a principal amount of $5,000,000 or more, (ii) any other event shall
occur or condition shall exist under any Contractual Obligation relating to any
such Indebtedness (other than the Obligations), if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of
such Indebtedness having an individual principal amount in excess of $5,000,000
or (iii) any such Indebtedness (other than the Obligations) having an individual
principal amount in excess of $5,000,000 shall become or be declared to be due
and payable, or be required to be prepaid, redeemed, defeased or repurchased
(other than by a regularly scheduled required prepayment), prior to the stated
maturity thereof; or
(e) (i) any Group Member shall generally not pay its debts as
such debts become due, shall admit in writing its inability to pay its debts
generally or shall make a general assignment for the benefit of creditors, (ii)
any proceeding shall be instituted by or against any Group Member seeking to
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adjudicate it a bankrupt or insolvent or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, composition of it
or its debts or any similar order, in each case under any Requirement of Law
relating to bankruptcy, insolvency or reorganization or relief of debtors or
seeking the entry of an order for relief or the appointment of a custodian,
receiver, trustee, conservator, liquidating agent, liquidator, other similar
official or other official with similar powers, in each case for it or for any
substantial part of its property and, in the case of any such proceedings
instituted against (but not by or with the consent of) any Group Member, either
such proceedings shall remain undismissed or unstayed for a period of 60 days or
more or any action sought in such proceedings shall occur or (iii) any Group
Member shall take any corporate or similar action or any other action to
authorize any action described in clause (i) or (ii) above; or
(f) one or more judgments, orders or decrees (or other similar
process) shall be rendered against any Group Member (i)(A) in the case of money
judgments, orders and decrees, involving an aggregate amount (excluding amounts
adequately covered by insurance payable to any Group Member, to the extent the
relevant insurer has not denied coverage therefor) in excess of $5,000,000 or
(B) otherwise, that would have, in the aggregate, a Material Adverse Effect and
(ii)(A) enforcement proceedings shall have been commenced by any creditor upon
any such judgment, order or decree or (B) such judgment, order or decree shall
not have been vacated or discharged for a period of 30 consecutive days and
there shall not be in effect (by reason of a pending appeal or otherwise) any
stay of enforcement thereof; or
(g) except pursuant to a valid, binding and enforceable
termination or release permitted under the Loan Documents and executed by the
Administrative Agent or as otherwise expressly permitted under any Loan
Document, (i) any provision of any Loan Document shall, at any time after the
delivery of such Loan Document, fail to be valid and binding on, or enforceable
against, any Loan Party party thereto, (ii) any Loan Document purporting to
xxxxx x Xxxx to secure any Obligation shall, at any time after the delivery of
such Loan Document, fail to create a valid and enforceable Lien on any
Collateral or such Lien shall fail or cease to be a perfected Lien with the
priority required in the relevant Loan Document on any Collateral or (iii) any
subordination provision pertaining to Subordinated Debt shall, in whole or in
part, terminate or otherwise fail or cease to be valid and binding on, or
enforceable against any holder of Subordinated Debt or any trustee or
representative thereof, or any Group Member shall state in writing that any of
the events described in clause (i), (ii) or (iii) above shall have occurred; or
(h) there shall occur any Change of Control.
Section 9.2 Remedies. During the continuance of any Event of
Default, the Administrative Agent may, and, at the request of the Required
Lenders, shall, in each case by notice to the Borrower and in addition to any
other right or remedy provided under any Loan Document or by any applicable
Requirement of Law, do each of the following: declare immediately due and
payable all or part of any Obligation (including any accrued but unpaid interest
thereon), whereupon the same shall become immediately due and payable, without
presentment, demand, protest or further notice or other requirements of any
kind, all of which are hereby expressly waived by the Borrower (and, to the
extent provided in any other Loan Document, other Loan Parties); provided,
however, that, effective immediately upon the occurrence of the Events of
Default specified in Section 9.1(e)(ii), each Obligation (including in each case
any accrued all accrued but unpaid interest thereon) shall automatically become
and be due and payable, without presentment, demand, protest or further notice
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or other requirement of any kind, all of which are hereby expressly waived by
the Borrower (and, to the extent provided in any other Loan Document, any other
Loan Party).
Section 9.3 Omitted.
ARTICLE 10
THE ADMINISTRATIVE AGENT
Section 10.1 Appointment and Duties. (a) Appointment of
Administrative Agent. Each Lender hereby appoints GE Capital (together with any
successor Administrative Agent pursuant to Section 10.9) as the Administrative
Agent hereunder and authorizes the Administrative Agent to (i) execute and
deliver the Loan Documents and accept delivery thereof on its behalf from any
Group Member, (ii) take such action on its behalf and to exercise all rights,
powers and remedies and perform the duties as are expressly delegated to the
Administrative Agent under such Loan Documents and (iii) exercise such powers as
are reasonably incidental thereto. Without limitation of the foregoing, each
Lender acknowledges that it has been provided with a copy of the Intercreditor
Agreement, authorizes the Administrative Agent to enter into such Intercreditor
Agreement, agrees that upon the execution and delivery of the Intercreditor
Agreement by the parties thereto, such Lender shall be bound by the terms of the
Intercreditor Agreement, the terms of which, to the extent inconsistent with
this Agreement and the other Loan Documents shall govern.
(b) Duties as Collateral and Disbursing Agent. Without
limiting the generality of clause (a) above, the Administrative Agent shall have
the sole and exclusive right and authority (to the exclusion of the Lenders),
and is hereby authorized, to (i) act as the disbursing and collecting agent for
the Lenders with respect to all payments and collections arising in connection
with the Loan Documents (including in any proceeding described in Section
9.1(e)(ii) or any other bankruptcy, insolvency or similar proceeding), and each
Person making any payment in connection with any Loan Document to any Secured
Party is hereby authorized to make such payment to the Administrative Agent,
(ii) file and prove claims and file other documents necessary or desirable to
allow the claims of the Secured Parties with respect to any Obligation in any
proceeding described in Section 9.1(e)(ii) or any other bankruptcy, insolvency
or similar proceeding (but not to vote, consent or otherwise act on behalf of
such Secured Party), (iii) act as collateral agent for each Secured Party for
purposes of the perfection of all Liens created by such agreements and all other
purposes stated therein, (iv) manage, supervise and otherwise deal with the
Collateral, (v) take such other action as is necessary or desirable to maintain
the perfection and priority of the Liens created or purported to be created by
the Loan Documents, (vi) except as may be otherwise specified in any Loan
Document, exercise all remedies given to the Administrative Agent and the other
Secured Parties with respect to the Collateral, whether under the Loan
Documents, applicable Requirements of Law or otherwise and (vii) execute any
amendment, consent or waiver under the Loan Documents on behalf of any Lender
that has consented in writing to such amendment, consent or waiver; provided,
however, that the Administrative Agent hereby appoints, authorizes and directs
each Lender to act as collateral sub-agent for the Administrative Agent, the
Lenders for purposes of the perfection of all Liens with respect to the
Collateral, including any deposit account maintained by a Loan Party with, and
cash and Cash Equivalents held by, such Lender, and may further authorize and
direct the Lenders to take further actions as collateral sub-agents for purposes
of enforcing such Liens or otherwise to transfer the Collateral subject thereto
to the Administrative Agent, and each Lender hereby agrees to take such further
actions to the extent, and only to the extent, so authorized and directed.
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(c) Limited Duties. Under the Loan Documents, the
Administrative Agent (i) is acting solely on behalf of the Lenders (except to
the limited extent provided in Section 2.14(b) with respect to the Register and
in Section 10.11), with duties that are entirely administrative in nature,
notwithstanding the use of the defined term "Administrative Agent", the terms
"agent", "administrative agent" and "collateral agent" and similar terms in any
Loan Document to refer to the Administrative Agent, which terms are used for
title purposes only, (ii) is not assuming any obligation under any Loan Document
other than as expressly set forth therein or any role as agent, fiduciary or
trustee of or for any Lender or any other Secured Party and (iii) shall have no
implied functions, responsibilities, duties, obligations or other liabilities
under any Loan Document, and each Lender hereby waives and agrees not to assert
any claim against the Administrative Agent based on the roles, duties and legal
relationships expressly disclaimed in clauses (i) through (iii) above.
Section 10.2 Binding Effect. Each Lender agrees that (i) any
action taken by the Administrative Agent or the Required Lenders (or, if
expressly required hereby, a greater proportion of the Lenders) in accordance
with the provisions of the Loan Documents, (ii) any action taken by the
Administrative Agent in reliance upon the instructions of Required Lenders (or,
where so required, such greater proportion) and (iii) the exercise by the
Administrative Agent or the Required Lenders (or, where so required, such
greater proportion) of the powers set forth herein or therein, together with
such other powers as are reasonably incidental thereto, shall be authorized and
binding upon all of the Secured Parties.
Section 10.3 Use of Discretion. (a) No Action without
Instructions. The Administrative Agent shall not be required to exercise any
discretion or take, or to omit to take, any action, including with respect to
enforcement or collection, except any action it is required to take or omit to
take (i) under any Loan Document or (ii) pursuant to instructions from the
Required Lenders (or, where expressly required by the terms of this Agreement, a
greater proportion of the Lenders).
(b) Right Not to Follow Certain Instructions. Notwithstanding
clause (a) above, the Administrative Agent shall not be required to take, or to
omit to take, any action (i) unless, upon demand, the Administrative Agent
receives an indemnification satisfactory to it from the Lenders (or, to the
extent applicable and acceptable to the Administrative Agent, any other Secured
Party) against all Liabilities that, by reason of such action or omission, may
be imposed on, incurred by or asserted against the Administrative Agent or any
Related Person thereof or (ii) that is, in the opinion of the Administrative
Agent or its counsel, contrary to any Loan Document or applicable Requirement of
Law.
Section 10.4 Delegation of Rights and Duties. The
Administrative Agent may, upon any term or condition it specifies, delegate or
exercise any of its rights, powers and remedies under, and delegate or perform
any of its duties or any other action with respect to, any Loan Document by or
through any trustee, co-agent, employee, attorney-in-fact and any other Person
(including any Secured Party). Any such Person shall benefit from this Article X
to the extent provided by the Administrative Agent.
Section 10.5 Reliance and Liability. (a) The Administrative
Agent may, without incurring any liability hereunder, (i) treat the payee of any
Note as its holder until such Note has been assigned in accordance with Section
11.2(e), (ii) rely on the Register to the extent set forth in Section 2.14,
(iii) consult with any of its Related Persons and, whether or not selected by
it, any other advisors, accountants and other experts (including advisors to,
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and accountants and experts engaged by, any Loan Party) and (iv) rely and act
upon any document and information (including those transmitted by Electronic
Transmission) and any telephone message or conversation, in each case believed
by it to be genuine and transmitted, signed or otherwise authenticated by the
appropriate parties.
(b) None of the Administrative Agent and its Related Persons
shall be liable for any action taken or omitted to be taken by any of them under
or in connection with any Loan Document, and each Lender and the Borrower hereby
waive and shall not assert (and the Borrower shall cause each other Loan Party
to waive and agree not to assert) any right, claim or cause of action based
thereon, except to the extent of liabilities resulting primarily from the gross
negligence or willful misconduct of the Administrative Agent or, as the case may
be, such Related Person (each as determined in a final, non-appealable judgment
by a court of competent jurisdiction) in connection with the duties expressly
set forth herein. Without limiting the foregoing, the Administrative Agent:
(i) shall not be responsible or otherwise incur liability
for any action or omission taken in reliance upon the
instructions of the Required Lenders or for the actions or
omissions of any of its Related Persons selected with reasonable
care (other than employees, officers and directors of the
Administrative Agent, when acting on behalf of the Administrative
Agent);
(ii) shall not be responsible to any Secured Party for the
due execution, legality, validity, enforceability, effectiveness,
genuineness, sufficiency or value of, or the attachment,
perfection or priority of any Lien created or purported to be
created under or in connection with, any Loan Document;
(iii) makes no warranty or representation, and shall not be
responsible, to any Secured Party for any statement, document,
information, representation or warranty made or furnished by or
on behalf of any Related Person or any Loan Party in connection
with any Loan Document or any transaction contemplated therein or
any other document or information with respect to any Loan Party,
whether or not transmitted or (except for documents expressly
required under any Loan Document to be transmitted to the
Lenders) omitted to be transmitted by the Administrative Agent,
including as to completeness, accuracy, scope or adequacy
thereof, or for the scope, nature or results of any due diligence
performed by the Administrative Agent in connection with the Loan
Documents; and
(iv) shall not have any duty to ascertain or to inquire as
to the performance or observance of any provision of any Loan
Document, whether any condition set forth in any Loan Document is
satisfied or waived, as to the financial condition of any Loan
Party or as to the existence or continuation or possible
occurrence or continuation of any Default or Event of Default and
shall not be deemed to have notice or knowledge of such
occurrence or continuation unless it has received a notice from
the Borrower or any Lender describing such Default or Event of
Default clearly labeled "notice of default" (in which case the
Administrative Agent shall promptly give notice of such receipt
to all Lenders);
and, for each of the items set forth in clauses (i) through (iv) above, each
Lender and the Borrower hereby waives and agrees not to assert (and the Borrower
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shall cause each other Loan Party to waive and agree not to assert) any right,
claim or cause of action it might have against the Administrative Agent based
thereon.
Section 10.6 Administrative Agent Individually. The
Administrative Agent and its Affiliates may make loans and other extensions of
credit to, acquire Stock and Stock Equivalents of, engage in any kind of
business with, any Loan Party or Affiliate thereof as though it were not acting
as Administrative Agent and may receive separate fees and other payments
therefor. To the extent the Administrative Agent or any of its Affiliates makes
any Term Loan or otherwise becomes a Lender hereunder, it shall have and may
exercise the same rights and powers hereunder and shall be subject to the same
obligations and liabilities as any other Lender and the terms "Lender",
"Required Lender", and any similar terms shall, except where otherwise expressly
provided in any Loan Document, include, without limitation, the Administrative
Agent or such Affiliate, as the case may be, in its individual capacity as
Lender or as one of the Required Lenders, respectively.
Section 10.7 Lender Credit Decision. Each Lender acknowledges
that it shall, independently and without reliance upon the Administrative Agent,
any Lender or any of their Related Persons or upon any document (including the
Disclosure Documents) solely or in part because such document was transmitted by
the Administrative Agent or any of its Related Persons, conduct its own
independent investigation of the financial condition and affairs of each Loan
Party and make and continue to make its own credit decisions in connection with
entering into, and taking or not taking any action under, any Loan Document or
with respect to any transaction contemplated in any Loan Document, in each case
based on such documents and information as it shall deem appropriate. Except for
documents expressly required by any Loan Document to be transmitted by the
Administrative Agent to the Lenders, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any Loan Party or any Affiliate of
any Loan Party that may come in to the possession of the Administrative Agent or
any of its Related Persons.
Section 10.8 Expenses; Indemnities. (a) Each Lender agrees to
reimburse the Administrative Agent and each of its Related Persons (to the
extent not reimbursed by any Loan Party) promptly upon demand for such Lender's
Pro Rata Share of any costs and expenses (including fees, charges and
disbursements of financial, legal and other advisors and Other Taxes paid in the
name of, or on behalf of, any Loan Party) that may be incurred by the
Administrative Agent or any of its Related Persons in connection with the
preparation, syndication, execution, delivery, administration, modification,
consent, waiver or enforcement (whether through negotiations, through any
work-out, bankruptcy, restructuring or other legal or other proceeding or
otherwise) of, or legal advice in respect of its rights or responsibilities
under, any Loan Document.
(b) Each Lender further agrees to indemnify the Administrative
Agent and each of its Related Persons (to the extent not reimbursed by any Loan
Party), from and against such Lender's aggregate Pro Rata Share of the
Liabilities (including taxes, interests and penalties imposed for not properly
withholding or backup withholding on payments made to on or for the account of
any Lender) that may be imposed on, incurred by or asserted against the
Administrative Agent or any of its Related Persons in any matter relating to or
arising out of, in connection with or as a result of any Loan Document, any
Related Document or any other act, event or transaction related, contemplated in
or attendant to any such document, or, in each case, any action taken or omitted
to be taken by the Administrative Agent or any of its Related Persons under or
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with respect to any of the foregoing; provided, however, that no Lender shall be
liable to the Administrative Agent or any of its Related Persons to the extent
such liability has resulted primarily from the gross negligence or willful
misconduct of the Administrative Agent or, as the case may be, such Related
Person, as determined by a court of competent jurisdiction in a final
non-appealable judgment or order.
Section 10.9 Resignation of Administrative Agent. (a) The
Administrative Agent may resign at any time by delivering notice of such
resignation to the Lenders and the Borrower, effective on the date set forth in
such notice or, if not such date is set forth therein, upon the date such notice
shall be effective. If the Administrative Agent delivers any such notice, the
Required Lenders shall have the right to appoint a successor Administrative
Agent. If, within 30 days after the retiring Administrative Agent having given
notice of resignation, no successor Administrative Agent has been appointed by
the Required Lenders that has accepted such appointment, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent from among the Lenders. Each appointment under this clause
(a) shall be subject to the prior consent of the Borrower, which may not be
unreasonably withheld but shall not be required during the continuance of a
Default.
(b) Effective immediately upon its resignation, (i) the
retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents, (ii) the Lenders shall assume and perform
all of the duties of the Administrative Agent until a successor Administrative
Agent shall have accepted a valid appointment hereunder, (iii) the retiring
Administrative Agent and its Related Persons shall no longer have the benefit of
any provision of any Loan Document other than with respect to any actions taken
or omitted to be taken while such retiring Administrative Agent was, or because
such Administrative Agent had been, validly acting as Administrative Agent under
the Loan Documents and (iv) subject to its rights under Section 10.3, the
retiring Administrative Agent shall take such action as may be reasonably
necessary to assign to the successor Administrative Agent its rights as
Administrative Agent under the Loan Documents. Effective immediately upon its
acceptance of a valid appointment as Administrative Agent, a successor
Administrative Agent shall succeed to, and become vested with, all the rights,
powers, privileges and duties of the retiring Administrative Agent under the
Loan Documents.
Section 10.10 Release of Collateral or Guarantors. Each Lender
hereby consents to the release and hereby directs the Administrative Agent to
release (or, in the case of clause (b)(ii) below, release or subordinate) the
following:
(a) any Subsidiary of the Borrower from its guaranty of any
Obligation of any Loan Party if all of the Securities of such Subsidiary owned
by any Group Member are Sold in a Sale permitted under the Loan Documents
(including pursuant to a waiver or consent), to the extent that, after giving
effect to such Sale, such Subsidiary would not be required to guaranty any
Obligations pursuant to Section 7.10; and
(b) any Lien held by the Administrative Agent for the benefit
of the Secured Parties against (i) any Collateral that is Sold by a Loan Party
in a Sale permitted by the Loan Documents (including pursuant to a valid waiver
or consent), to the extent all Liens required to be granted in such Collateral
pursuant to Section 7.10 after giving effect to such Sale have been granted,
(ii) any property subject to a Lien permitted hereunder in reliance upon Section
8.2(d) or (e) and (iii) all of the Collateral and all Loan Parties, upon (A)
termination of the Commitments, (B) payment and satisfaction in full of all
Loans, all L/C Reimbursement Obligations and all other Obligations (other than
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contingent indemnification Obligations not relating to Letters of Credit and as
to which no underlying claim has arisen or been asserted) that the
Administrative Agent has been notified in writing are then due and payable by
the holder of such Obligation, (C) deposit of cash collateral with respect to
all contingent Obligations (or, in the case of any L/C Obligation, deposit of
funds in the applicable L/C Cash Collateral Account equal to at least 105% of
such L/C Obligation, or to the extent acceptable to the L/C Issuers, the
issuance of back-to back letters of credit issued by issuers and in form and
substance satisfactory in all respects to the applicable L/C Issuer and the
Administrative Agent and in an amount equal to 105% of each outstanding Letter
of Credit), in amounts and on terms and conditions and with parties reasonably
satisfactory to the Administrative Agent.
Each Lender hereby directs the Administrative Agent, and the Administrative
Agent hereby agrees, upon receipt of reasonable advance notice from the
Borrower, to execute and deliver or file such documents and to perform other
actions reasonably necessary to release the guaranties and Liens when and as
directed in this Section 10.10.
Section 10.11 Additional Secured Parties. The benefit of the
provisions of the Loan Documents directly relating to the Collateral or any Lien
granted thereunder shall extend to and be available to any Secured Party that is
not a Lender as long as, by accepting such benefits, such Secured Party agrees,
as among the Administrative Agent and all other Secured Parties, that such
Secured Party is bound by (and, if requested by the Administrative Agent, shall
confirm such agreement in a writing in form and substance acceptable to the
Administrative Agent) this Article X, Section 11.8 (Right of Setoff), Section
11.9 (Sharing of Payments) and Section 11.20 (Confidentiality) and the decisions
and actions of the Administrative Agent and the Required Lenders (or, where
expressly required by the terms of this Agreement, a greater proportion of the
Lenders) to the same extent a Lender is bound; provided, however, that,
notwithstanding the foregoing, (a) such Secured Party shall be bound by Section
10.8 only to the extent of Liabilities, costs and expenses with respect to or
otherwise relating to the Collateral held for the benefit of such Secured Party,
in which case the obligations of such Secured Party thereunder shall not be
limited by any concept of Pro Rata Share or similar concept, (b) except as set
forth specifically herein, each of the Administrative Agent, the Lenders shall
be entitled to act at its sole discretion, without regard to the interest of
such Secured Party, regardless of whether any Obligation to such Secured Party
thereafter remains outstanding, is deprived of the benefit of the Collateral,
becomes unsecured or is otherwise affected or put in jeopardy thereby, and
without any duty or liability to such Secured Party or any such Obligation and
(c) except as set forth specifically herein, such Secured Party shall not have
any right to be notified of, consent to, direct, require or be heard with
respect to, any action taken or omitted in respect of the Collateral or under
any Loan Document.
ARTICLE 11
MISCELLANEOUS
Section 11.1 Amendments, Waivers, Etc. (a) No amendment or
waiver of any provision of any Loan Document (other than the Fee Letter, the
Control Agreements and the Secured Hedging Agreements) and no consent to any
departure by any Loan Party therefrom shall be effective unless the same shall
be in writing and signed (1) in the case of an amendment, consent or waiver to
cure any ambiguity, omission, defect or inconsistency or granting a new Lien for
the benefit of the Secured Parties or extending an existing Lien over additional
property, by the Administrative Agent and the Borrower, (2) in the case of any
other waiver or consent, by the Required Lenders (or by the Administrative Agent
with the consent of the Required Lenders) and (3) in the case of any other
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amendment, by the Required Lenders (or by the Administrative Agent with the
consent of the Required Lenders) and the Borrower; provided, however, that no
amendment, consent or waiver described in clause (2) or (3) above shall, unless
in writing and signed by each Lender directly affected thereby (or by the
Administrative Agent with the consent of such Lender), in addition to any other
Person the signature of which is otherwise required pursuant to any Loan
Document, do any of the following:
(i) waive any condition specified in Section 3.1, except any
condition referring to any other provision of any Loan Document;
(ii) increase the Commitment of such Lender or subject such
Lender to any additional obligation; provided, that increases in
the aggregate amount of the Commitments shall only require the
consent of the Required Lenders and each Lender providing such
increase in the Commitments;
(iii) reduce (including through release, forgiveness,
assignment or otherwise) (A) the principal amount of, the
interest rate on, or any obligation of the Borrower to repay
(whether or not on a fixed date), any outstanding Term Loan owing
to such Lender or (B) any fee or accrued interest payable to such
Lender; provided, however, that this clause (iii) does not apply
to any change to any provision increasing any interest rate or
fee during the continuance of an Event of Default or to any
payment of any such increase;
(iv) waive or postpone any scheduled maturity date or other
scheduled date fixed for the payment, in whole or in part, of
principal of or interest on any Term Loan or fee owing to such
Lender or for the reduction of such Lender's Commitment;
provided, however, that this clause (iv) does not apply to any
change to mandatory prepayments, including those required under
Section 2.8, or to the application of any payment, including as
set forth in Section 2.12;
(v) except as provided in Section 10.10, release all or
substantially all of the Collateral or any Guarantor from its
guaranty of any Obligation of the Borrower;
(vi) reduce or increase the proportion of Lenders required
for the Lenders (or any subset thereof) to take any action
hereunder or change the definition of the terms "Required
Lenders", "Pro Rata Share" or "Pro Rata Outstandings"; or
(vii) amend Section 10.10 (Release of Collateral or
Guarantor), Section 11.9 (Sharing of Payments) or this Section
11.1;
and provided, further, that (x) no amendment, waiver or consent shall affect the
rights or duties under any Loan Document of, or any payment to, the
Administrative Agent (or otherwise modify any provision of Article X or the
application thereof), any SPV that has been granted an option pursuant to
Section 11.2(f) unless in writing and signed by the Administrative Agent or, as
the case may be, such SPV in addition to any signature otherwise required and
(y) the consent of the Borrower shall not be required to change any order of
priority set forth in Section 2.12. No amendment, modification or waiver of this
Agreement or any Loan Document altering the ratable treatment of Obligations
arising under Secured Hedging Agreement resulting in such Obligations being
junior in right of payment to principal of the Term Loans or resulting in
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Obligations owing to any Secured Hedging Counterparty being unsecured (other
than releases of Liens in accordance with the terms hereof), in each case in a
manner adverse to any Secured Hedging Counterparty, shall be effective without
the written consent of such Secured Hedging Counterparty or, in the case of a
Secured Hedging Agreement provided or arranged by the Administrative Agent or an
Affiliate thereof, the Administrative Agent.
(b) Each waiver or consent under any Loan Document shall be
effective only in the specific instance and for the specific purpose for which
it was given. No notice to or demand on any Loan Party shall entitle any Loan
Party to any notice or demand in the same, similar or other circumstances. No
failure on the part of any Secured Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right.
Section 11.2 Assignments and Participations; Binding Effect.
(a) Binding Effect. This Agreement shall become effective when it shall have
been executed by the Borrower and the Administrative Agent and when the
Administrative Agent shall have been notified by each Lender that such Lender
has executed it. Thereafter, it shall be binding upon and inure to the benefit
of, but only to the benefit of, the Borrower (in each case except for Article
X), the Administrative Agent, each Lender and, to the extent provided in Section
10.11, each other Indemnitee and Secured Party and, in each case, their
respective successors and permitted assigns. Except as expressly provided in any
Loan Document (including in Section 10.9), none of the Borrower or the
Administrative Agent shall have the right to assign any rights or obligations
hereunder or any interest herein.
(b) Right to Assign. Each Lender may sell, transfer, negotiate
or assign all or a portion of its rights and obligations hereunder (including
all or a portion of its Commitments and its rights and obligations with respect
to the Term Loans) to (i) any existing Lender, (ii) any Affiliate or Approved
Fund of any existing Lender or (iii) any other Person acceptable (which
acceptance shall not be unreasonably withheld or delayed) to the Administrative
Agent and, as long as no Event of Default is continuing, the Borrower; provided,
however, that (x) such Sales must be ratable among the obligations owing to and
owed by such Lender with respect to the Term Loan Facility and (y) the aggregate
outstanding principal amount (determined as of the effective date of the
applicable Assignment) of the Term Loans and Commitments subject to any such
Sale shall be in a minimum amount of $1,000,000, unless such Sale is made to an
existing Lender or an Affiliate or Approved Fund of any existing Lender, is of
the assignor's (together with its Affiliates and Approved Funds) entire interest
in the Term Loan Facility or is made with the prior consent of the Borrower and
the Administrative Agent.
(c) Procedure. The parties to each Sale made in reliance on
clause (b) above (other than those described in clause (e) or (f) below) shall
execute and deliver to the Administrative Agent an Assignment via an electronic
settlement system designated by the Administrative Agent (or if previously
agreed with the Administrative Agent, via a manual execution and delivery of the
assignment) evidencing such Sale, together with any existing Note subject to
such Sale (or any affidavit of loss therefor acceptable to the Administrative
Agent), any tax forms required to be delivered pursuant to Section 2.17(f) and
payment of an assignment fee in the amount of $3,500, provided that (1) if a
Sale by a Lender is made to an Affiliate or an Approved Fund of such assigning
Lender, then no assignment fee shall be due in connection with such Sale, and
(2) if a Sale by a Lender is made to an assignee that is not an Affiliate or
Approved Fund of such assignor Lender, and concurrently to one or more
Affiliates or Approved Funds of such assignee, then only one assignment fee of
$3,500 shall be due in connection with such Sale. Upon receipt of all the
foregoing, and conditioned upon such receipt and, if such assignment is made in
accordance with Section 11.2(b)(iii), upon the Administrative Agent (and the
Borrower, if applicable) consenting to such Assignment, from and after the
effective date specified in such Assignment, the Administrative Agent shall
record or cause to be recorded in the Register the information contained in such
Assignment.
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(d) Effectiveness. Subject to the recording of an Assignment
by the Administrative Agent in the Register pursuant to Section 2.14(b), (i) the
assignee thereunder shall become a party hereto and, to the extent that rights
and obligations under the Loan Documents have been assigned to such assignee
pursuant to such Assignment, shall have the rights and obligations of a Lender,
(ii) any applicable Note shall be transferred to such assignee through such
entry and (iii) the assignor thereunder shall, to the extent that rights and
obligations under this Agreement have been assigned by it pursuant to such
Assignment, relinquish its rights (except for those surviving the termination of
the Commitments and the payment in full of the Obligations) and be released from
its obligations under the Loan Documents, other than those relating to events or
circumstances occurring prior to such assignment (and, in the case of an
Assignment covering all or the remaining portion of an assigning Lender's rights
and obligations under the Loan Documents, such Lender shall cease to be a party
hereto except that each Lender agrees to remain bound by Article X, Section 11.8
(Right of Setoff) and Section 11.9 (Sharing of Payments) to the extent provided
in Section 10.11 (Additional Secured Parties)).
(e) Grant of Security Interests. In addition to the other
rights provided in this Section 11.2, each Lender may grant a security interest
in, or otherwise assign as collateral, any of its rights under this Agreement,
whether now owned or hereafter acquired (including rights to payments of
principal or interest on the Term Loans), to (A) any federal reserve bank
(pursuant to Regulation A of the Federal Reserve Board), without notice to the
Administrative Agent or (B) any holder of, or trustee for the benefit of the
holders of, such Lender's Securities by notice to the Administrative Agent;
provided, however, that no such holder or trustee, whether because of such grant
or assignment or any foreclosure thereon (unless such foreclosure is made
through an assignment in accordance with clause (b) above), shall be entitled to
any rights of such Lender hereunder and no such Lender shall be relieved of any
of its obligations hereunder.
(f) Participants and SPVs. In addition to the other rights
provided in this Section 11.2, each Lender may, (x) with notice to the
Administrative Agent, grant to an SPV the option to make all or any part of any
Term Loan that such Lender would otherwise be required to make hereunder (and
the exercise of such option by such SPV and the making of Term Loans pursuant
thereto shall satisfy the obligation of such Lender to make such Term Loans
hereunder) and such SPV may assign to such Lender the right to receive payment
with respect to any Obligation and (y) without notice to or consent from the
Administrative Agent or the Borrower, sell participations to one or more Persons
in or to all or a portion of its rights and obligations under the Loan Documents
(including all its rights and obligations with respect to the Term Loans);
provided, however, that, whether as a result of any term of any Loan Document or
of such grant or participation, (i) no such SPV or participant shall have a
commitment, or be deemed to have made an offer to commit, to make Term Loans
hereunder, and, except as provided in the applicable option agreement, none
shall be liable for any obligation of such Lender hereunder, (ii) such Lender's
rights and obligations, and the rights and obligations of the Loan Parties and
the Secured Parties towards such Lender, under any Loan Document shall remain
unchanged and each other party hereto shall continue to deal solely with such
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Lender, which shall remain the holder of the Obligations in the Register, except
that (A) each such participant and SPV shall be entitled to the benefit of
Sections 2.16 (Breakage Costs; Increased Costs; Capital Requirements) and 2.17
(Taxes), but only to the extent such participant or SPV delivers the tax forms
such Lender is required to collect pursuant to Section 2.17(f) and then only to
the extent of any amount to which such Lender would be entitled in the absence
of any such grant or participation and (B) each such SPV may receive other
payments that would otherwise be made to such Lender with respect to Term Loans
funded by such SPV to the extent provided in the applicable option agreement and
set forth in a notice provided to the Administrative Agent by such SPV and such
Lender, provided, however, that in no case (including pursuant to clause (A) or
(B) above) shall an SPV or participant have the right to enforce any of the
terms of any Loan Document, and (iii) the consent of such SPV or participant
shall not be required (either directly, as a restraint on such Lender's ability
to consent hereunder or otherwise) for any amendments, waivers or consents with
respect to any Loan Document or to exercise or refrain from exercising any
powers or rights such Lender may have under or in respect of the Loan Documents
(including the right to enforce or direct enforcement of the Obligations),
except for those described in clauses (iii) and (iv) of Section 11.1(a) with
respect to amounts, or dates fixed for payment of amounts, to which such
participant or SPV would otherwise be entitled and, in the case of participants,
except for those described in Section 11.1(a)(v) (or amendments, consents and
waivers with respect to Section 10.10 to release all or substantially all of the
Collateral). No party hereto shall institute (and each of the Borrower shall
cause each other Loan Party not to institute) against any SPV grantee of an
option pursuant to this clause (f) any bankruptcy, reorganization, insolvency,
liquidation or similar proceeding, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper of such SPV;
provided, however, that each Lender having designated an SPV as such agrees to
indemnify each Indemnitee against any Liability that may be incurred by, or
asserted against, such Indemnitee as a result of failing to institute such
proceeding (including a failure to get reimbursed by such SPV for any such
Liability). The agreement in the preceding sentence shall survive the
termination of the Commitments and the payment in full of the Obligations.
Section 11.3 Costs and Expenses. Any action taken by any Loan
Party under or with respect to any Loan Document, even if required under any
Loan Document or at the request of any Secured Party, shall be at the expense of
such Loan Party, and no Secured Party shall be required under any Loan Document
to reimburse any Loan Party or Group Member therefor except as expressly
provided therein. In addition, the Borrower agrees to pay or reimburse upon
demand (a) the Administrative Agent for all reasonable out-of-pocket costs and
expenses incurred by it or any of its Related Persons in connection with the
investigation, development, preparation, negotiation, syndication, execution,
interpretation or administration of, any modification of any term of or
termination of, any Loan Document, any commitment or proposal letter therefor,
any other document prepared in connection therewith or the consummation and
administration of any transaction contemplated therein (including periodic
audits and appraisals in connection therewith and environmental audits and
assessments), in each case including the reasonable fees, charges and
disbursements of legal counsel to the Administrative Agent or such Related
Persons, reasonable fees, costs and expenses incurred in connection with
Intralinks(R) or any other E-System and reasonable fees, charges and
disbursements of the auditors, appraisers, printers and other of their Related
Persons retained by or on behalf of any of them or any of their Related Persons,
(b) the Administrative Agent for all reasonable costs and expenses incurred by
it or any of its Related Persons in connection with internal audit reviews,
field examinations and Collateral examinations (which shall be reimbursed, in
addition to the reasonable out-of-pocket costs and expenses of such examiners,
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at the per diem rate per individual charged by the Administrative Agent for its
examiners) and (c) each of the Administrative Agent, its Related Persons, and
each Lender and L/C Issuer for all costs and expenses incurred in connection
with (i) any refinancing or restructuring of the credit arrangements provided
hereunder in the nature of a "work-out", (ii) the enforcement or preservation of
any right or remedy under any Loan Document, any Obligation, with respect to the
Collateral or any other related right or remedy or (iii) the commencement,
defense, conduct of, intervention in, or the taking of any other action with
respect to, any proceeding (including any bankruptcy or insolvency proceeding)
related to any Group Member, Loan Document, Obligation or Related Transaction
(or the response to and preparation for any subpoena or request for document
production relating thereto), including fees and disbursements of counsel,
limited, solely in the case of Lenders other than the Administrative Agent, to
one legal counsel.
Section 11.4 Indemnities. (a) The Borrower agrees to
indemnify, hold harmless and defend the Administrative Agent, each Lender, each
Secured Hedging Counterparty, and each of their respective Related Persons (each
such Person being an "Indemnitee") from and against all Liabilities (including
brokerage commissions, fees and other compensation) that may be imposed on,
incurred by or asserted against any such Indemnitee in any matter relating to or
arising out of, in connection with or as a result of (i) any Loan Document, any
Related Document, any Disclosure Document, any Obligation (or the repayment
thereof), the use or intended use of the proceeds of any Loan, any Related
Transaction, or any securities filing of, or with respect to, any Group Member,
(ii) any commitment letter, proposal letter or term sheet with any Person or any
Contractual Obligation, arrangement or understanding with any broker, finder or
consultant, in each case entered into by or on behalf of any Group Member or any
Affiliate of any of them in connection with any of the foregoing and any
Contractual Obligation entered into in connection with any E-Systems or other
Electronic Transmissions, (iii) any actual or prospective investigation,
litigation or other proceeding, whether or not brought by any such Indemnitee or
any of its Related Persons, any holders of Securities or creditors (and
including attorneys' fees in any case), whether or not any such Indemnitee,
Related Person, holder or creditor is a party thereto, and whether or not based
on any securities or commercial law or regulation or any other Requirement of
Law or theory thereof, including common law, equity, contract, tort or
otherwise, or (iv) any other act, event or transaction related, contemplated in
or attendant to any of the foregoing (collectively, the "Indemnified Matters");
provided, however, that the Borrower shall not have any liability under this
Section 11.4 to any Indemnitee with respect to any Indemnified Matter, and no
Indemnitee shall have any liability with respect to any Indemnified Matter other
than (to the extent otherwise liable), to the extent such liability has resulted
primarily from the gross negligence, bad faith or willful misconduct of such
Indemnitee, as determined by a court of competent jurisdiction in a final
non-appealable judgment or order. Furthermore, the Borrower waives and agrees
not to assert against any Indemnitee, and shall cause each other Loan Party to
waive and not assert against any Indemnitee, any right of contribution with
respect to any Liabilities that may be imposed on, incurred by or asserted
against any Related Person.
(b) Without limiting the foregoing, "Indemnified Matters"
includes all Environmental Liabilities, including those arising from, or
otherwise involving, any property of any Related Person or any actual, alleged
or prospective damage to property or natural resources or harm or injury alleged
to have resulted from any Release of Hazardous Materials on, upon or into such
property or natural resource or any property on or, to the extent caused or
alleged to have been caused by any Related Person, contiguous to any real
property of any Related Person, whether or not, with respect to any such
Environmental Liabilities, any Indemnitee is a mortgagee pursuant to any
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leasehold mortgage, a mortgagee in possession, the successor-in-interest to any
Related Person or the owner, lessee or operator of any property of any Related
Person through any foreclosure action, in each case except to the extent such
Environmental Liabilities (i) are incurred solely following foreclosure by any
Secured Party or following any Secured Party having become the
successor-in-interest to any Loan Party and (ii) are attributable solely to acts
of such Indemnitee.
Section 11.5 Survival. Any indemnification or other protection
provided to any Indemnitee pursuant to any Loan Document (including pursuant to
Section 2.17 (Taxes), Section 2.16 (Breakage Costs; Increased Costs; Capital
Requirements), Article X (The Administrative Agent), Section 11.3 (Costs and
Expenses), Section 11.4 (Indemnities) or this Section 11.5) and all
representations and warranties made in any Loan Document shall (A) survive the
termination of the Commitments and the payment in full of other Obligations and
(B) inure to the benefit of any Person that at any time held a right thereunder
(as an Indemnitee or otherwise) and, thereafter, its successors and permitted
assigns.
Section 11.6 Limitation of Liability for Certain Damages. In
no event shall any Indemnitee be liable on any theory of liability for any
special, indirect, consequential or punitive damages (including any loss of
profits, business or anticipated savings). The Borrower hereby waives, releases
and agrees (and shall cause each other Loan Party to waive, release and agree)
not to xxx upon any such claim for any special, indirect, consequential or
punitive damages, whether or not accrued and whether or not known or suspected
to exist in its favor.
Section 11.7 Lender-Debtor Relationship. The relationship
between the Lenders and the Administrative Agent, on the one hand, and the Loan
Parties, on the other hand, is solely that of lender and debtor. No Secured
Party has any fiduciary relationship or duty to any Loan Party arising out of or
in connection with, and there is no agency, tenancy or joint venture
relationship between the Secured Parties and the Loan Parties by virtue of, any
Loan Document or any transaction contemplated therein.
Section 11.8 Right of Setoff. Each of the Administrative
Agent, each Lender and each Affiliate (including each branch office thereof) of
any of them is hereby authorized, without notice or demand (each of which is
hereby waived by the Borrower), at any time and from time to time during the
continuance of any Event of Default and to the fullest extent permitted by
applicable Requirements of Law, to set off and apply any and all deposits
(whether general or special, time or demand, provisional or final) at any time
held and other Indebtedness, claims or other obligations at any time owing by
the Administrative Agent, such Lender or any of their respective Affiliates to
or for the credit or the account of the Borrower against any Obligation of any
Loan Party now or hereafter existing, whether or not any demand was made under
any Loan Document with respect to such Obligation and even though such
Obligation may be unmatured. Each of the Administrative Agent, each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender or its Affiliates; provided,
however, that the failure to give such notice shall not affect the validity of
such setoff and application. The rights under this Section 11.8 are in addition
to any other rights and remedies (including other rights of setoff) that the
Administrative Agent, the Lenders and their Affiliates and other Secured Parties
may have.
Section 11.9 Sharing of Payments, Etc. If any Lender, directly
or through an Affiliate or branch office thereof, obtains any payment of any
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Obligation of any Loan Party (whether voluntary, involuntary or through the
exercise of any right of setoff or the receipt of any Collateral or "proceeds"
(as defined under the applicable UCC) of Collateral) other than pursuant to
Sections 2.16 (Breakage Costs; Increased Costs; Capital Requirements), 2.17
(Taxes) and 2.18 (Substitution of Lenders) and such payment exceeds the amount
such Lender would have been entitled to receive if all payments had gone to, and
been distributed by, the Administrative Agent in accordance with the provisions
of the Loan Documents, such Lender shall purchase for cash from other Secured
Parties such participations in their Obligations as necessary for such Lender to
share such excess payment with such Secured Parties to ensure such payment is
applied as though it had been received by the Administrative Agent and applied
in accordance with this Agreement (or, if such application would then be at the
discretion of the Borrower, applied to repay the Obligations in accordance
herewith); provided, however, that (a) if such payment is rescinded or otherwise
recovered from such Lender in whole or in part, such purchase shall be rescinded
and the purchase price therefor shall be returned to such Lender without
interest and (b) such Lender shall, to the fullest extent permitted by
applicable Requirements of Law, be able to exercise all its rights of payment
(including the right of setoff) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
Section 11.10 Marshaling; Payments Set Aside. No Secured Party
shall be under any obligation to marshal any property in favor of any Loan Party
or any other party or against or in payment of any Obligation. To the extent
that any Secured Party receives a payment from the Borrower, from the proceeds
of the Collateral, from the exercise of its rights of setoff, any enforcement
action or otherwise, and such payment is subsequently, in whole or in part,
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, receiver or any other party, then to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens, rights and remedies therefor, shall be revived and continued in
full force and effect as if such payment had not occurred.
Section 11.11 Notices. (a) Addresses. All notices, demands,
requests, directions and other communications required or expressly authorized
to be made by this Agreement shall, whether or not specified to be in writing
but unless otherwise expressly specified to be given by any other means, be
given in writing and (i) addressed to (A) if to the Borrower, to 0000 Xxxxxxxxxx
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, Fax:
(000) 000-0000, with copy to Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxxx, Fax: (000) 000-0000, (B) if to
the Administrative Agent, to General Electric Capital Corporation, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, CFN 8845, Attention: Xxxx Xxxxxxx, Fax: (513)
000-0000, with copy to King & Spalding LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, Fax: (000) 000-0000 and (C)
otherwise to the party to be notified at its address specified on the signature
page of any applicable Assignment, (ii) posted to Intralinks(R) (to the extent
such system is available and set up by or at the direction of the Administrative
Agent prior to posting) in an appropriate location by uploading such notice,
demand, request, direction or other communication to xxx.xxxxxxxxxx.xxx, faxing
it to 000-000-0000 with an appropriate bar-coded fax coversheet or using such
other means of posting to Intralinks(R) as may be available and reasonably
acceptable to the Administrative Agent prior to such posting, (iii) posted to
any other E-System set up by or at the direction of the Administrative Agent in
an appropriate location or (iv) addressed to such other address as shall be
notified in writing (A) in the case of the Borrower and the Administrative
Agent, to the other parties hereto and (B) in the case of all other parties, to
the Borrower and the Administrative Agent. Transmission by electronic mail
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(including E-Fax, even if transmitted to the fax numbers set forth in clause (i)
above) shall not be sufficient or effective to transmit any such notice under
this clause (a) unless such transmission is an available means to post to any
E-System.
(b) Effectiveness. All communications described in clause (a)
above and all other notices, demands, requests and other communications made in
connection with this Agreement shall be effective and be deemed to have been
received (i) if delivered by hand, upon personal delivery, (ii) if delivered by
overnight courier service, one Business Day after delivery to such courier
service, (iii) if delivered by mail, when deposited in the mails, (iv) if
delivered by facsimile (other than to post to an E-System pursuant to clause
(a)(ii) or (a)(iii) above), upon sender's receipt of confirmation of proper
transmission, and (v) if delivered by posting to any E-System, on the later of
the date of such posting in an appropriate location and the date access to such
posting is given to the recipient thereof in accordance with the standard
procedures applicable to such E-System; provided, however, that no
communications to the Administrative Agent pursuant to Article II or Article X
shall be effective until received by the Administrative Agent.
Section 11.12 Electronic Transmissions. (a) Authorization.
Subject to the provisions of Section 11.11(a), each of the Administrative Agent,
the Borrower, the Lenders, the L/C Issuers and each of their Related Persons is
authorized (but not required) to transmit, post or otherwise make or
communicate, in its sole discretion, Electronic Transmissions in connection with
any Loan Document and the transactions contemplated therein. Each of the
Borrower and each other Group Member and each Secured Party hereby acknowledges
and agrees that the use of Electronic Transmissions is not necessarily secure
and that there are risks associated with such use, including risks of
interception, disclosure and abuse and each indicates it assumes and accepts
such risks by hereby authorizing the transmission of Electronic Transmissions.
(b) Signatures. Subject to the provisions of Section 11.11(a),
(i)(A) no posting to any E-System shall be denied legal effect merely because it
is made electronically, (B) each E-Signature on any such posting shall be deemed
sufficient to satisfy any requirement for a "signature" and (C) each such
posting shall be deemed sufficient to satisfy any requirement for a "writing",
in each case including pursuant to any Loan Document, any applicable provision
of any UCC, the federal Uniform Electronic Transactions Act, the Electronic
Signatures in Global and National Commerce Act and any substantive or procedural
Requirement of Law governing such subject matter, (ii) each such posting that is
not readily capable of bearing either a signature or a reproduction of a
signature may be signed, and shall be deemed signed, by attaching to, or
logically associating with such posting, an E-Signature, upon which each Secured
Party and Loan Party may rely and assume the authenticity thereof, (iii) each
such posting containing a signature, a reproduction of a signature or an
E-Signature shall, for all intents and purposes, have the same effect and weight
as a signed paper original and (iv) each party hereto or beneficiary hereto
agrees not to contest the validity or enforceability of any posting on any
E-System or E-Signature on any such posting under the provisions of any
applicable Requirement of Law requiring certain documents to be in writing or
signed; provided, however, that nothing herein shall limit such party's or
beneficiary's right to contest whether any posting to any E-System or
E-Signature has been altered after transmission.
(c) Separate Agreements. All uses of an E-System shall be
governed by and subject to, in addition to Section 11.11 and this Section 11.12,
separate terms and conditions posted or referenced in such E-System and related
Contractual Obligations executed by Secured Parties and Group Members in
connection with the use of such E-System.
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(d) Limitation of Liability. All E-Systems and Electronic
Transmissions shall be provided "as is" and "as available". None of
Administrative Agent or any of its Related Persons warrants the accuracy,
adequacy or completeness of any E-Systems or Electronic Transmission, and each
disclaims all liability for errors or omissions therein. No Warranty of any kind
is made by the Administrative Agent or any of its Related Persons in connection
with any E-Systems or Electronic Communication, including any warranty of
merchantability, fitness for a particular purpose, non-infringement of
third-party rights or freedom from viruses or other code defects. Each of the
Borrower and each other Loan Party and each Secured Party agrees that the
Administrative Agent has no responsibility for maintaining or providing any
equipment, software, services or any testing required in connection with any
Electronic Transmission or otherwise required for any E-System.
Section 11.13 Governing Law. This Agreement, each other Loan
Document that does not expressly set forth its applicable law, and the rights
and obligations of the parties hereto and thereto shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
Section 11.14 Jurisdiction. (a) Submission to Jurisdiction.
Any legal action or proceeding with respect to any Loan Document may be brought
in the courts of the State of New York located in the City of New York, Borough
of Manhattan, or of the United States for the Southern District of New York and,
by execution and delivery of this Agreement, the Borrower hereby accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The parties hereto (and, to the extent set
forth in any other Loan Document, each other Loan Party) hereby irrevocably
waive any objection, including any objection to the laying of venue or based on
the grounds of forum non conveniens, that any of them may now or hereafter have
to the bringing of any such action or proceeding in such jurisdictions.
(b) Service of Process. The Borrower (and, to the extent set
forth in any other Loan Document, each other Loan Party) hereby irrevocably
waives personal service of any and all legal process, summons, notices and other
documents and other service of process of any kind and consents to such service
in any suit, action or proceeding brought in the United States with respect to
or otherwise arising out of or in connection with any Loan Document by any means
permitted by applicable Requirements of Law, including by the mailing thereof
(by registered or certified mail, postage prepaid) to the address of the
Borrower specified in Section 11.11 (and shall be effective when such mailing
shall be effective, as provided therein). The Borrower (and, to the extent set
forth in any other Loan Document, each other Loan Party) agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(c) Non-Exclusive Jurisdiction. Nothing contained in this
Section 11.14 shall affect the right of the Administrative Agent or any Lender
to serve process in any other manner permitted by applicable Requirements of Law
or commence legal proceedings or otherwise proceed against any Loan Party in any
other jurisdiction.
Section 11.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT
TO, OR DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH, ANY
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREIN OR RELATED THERETO
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(WHETHER FOUNDED IN CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO OTHER PARTY AND NO RELATED PERSON OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THE LOAN
DOCUMENTS, AS APPLICABLE, BY THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 11.15.
Section 11.16 Severability. Any provision of any Loan Document
being held illegal, invalid or unenforceable in any jurisdiction shall not
affect any part of such provision not held illegal, invalid or unenforceable,
any other provision of any Loan Document or any part of such provision in any
other jurisdiction.
Section 11.17 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Signature pages may be detached from multiple separate counterparts and attached
to a single counterpart. Delivery of an executed signature page of this
Agreement by facsimile transmission or Electronic Transmission shall be as
effective as delivery of a manually executed counterpart hereof.
Section 11.18 Entire Agreement. The Loan Documents embody the
entire agreement of the parties and supersede all prior agreements and
understandings relating to the subject matter thereof and any prior letter of
interest, commitment letter, fee letter, confidentiality and similar agreements
involving any Loan Party and any of the Administrative Agent, any Lender or any
of their respective Affiliates relating to a financing of substantially similar
form, purpose or effect. In the event of any conflict between the terms of this
Agreement and any other Loan Document, the terms of this Agreement shall govern
(unless such terms of such other Loan Documents are necessary to comply with
applicable Requirements of Law, in which case such terms shall govern to the
extent necessary to comply therewith).
Section 11.19 Use of Name. The Borrower agrees, and shall
cause each other Loan Party to agree, that it shall not, and none of its
Affiliates shall, issue any press release or other public disclosure (other than
any document filed with any Governmental Authority relating to a public offering
of the Securities of any Loan Party) using the name, logo or otherwise referring
to GE Capital or of any of its Affiliates, the Loan Documents or any transaction
contemplated therein to which the Secured Parties are party without at least 2
Business Days' prior notice to GE Capital and without the prior consent of GE
Capital except to the extent required to do so under applicable Requirements of
Law and then, only after consulting with GE Capital prior thereto.
Section 11.20 Non-Public Information; Confidentiality. (a)
Each Lender and the Administrative Agent acknowledges and agrees that it may
receive material non-public information hereunder concerning the Loan Parties
and their Affiliates and Securities and agrees to use such information in
compliance with all relevant policies, procedures and Contractual Obligations
and applicable Requirements of Laws (including United States federal and state
security laws and regulations).
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(b) Each Lender, L/C Issuer and the Administrative Agent
agrees to use all reasonable efforts to maintain, in accordance with its
customary practices, the confidentiality of information obtained by it pursuant
to any Loan Document and designated in writing by any Loan Party as
confidential, except that such information may be disclosed (i) with the
Borrower's consent, (ii) to Related Persons of such Lender, L/C Issuer or the
Administrative Agent, as the case may be, or to any Person that any L/C Issuer
causes to Issue Letters of Credit hereunder, that are advised of the
confidential nature of such information and are instructed to keep such
information confidential, (iii) to the extent such information presently is or
hereafter becomes available to such Lender, L/C Issuer or the Administrative
Agent, as the case may be, on a non-confidential basis from a source other than
any Loan Party, (iv) to the extent disclosure is required by applicable
Requirements of Law or other legal process or requested or demanded by any
Governmental Authority; provided that, unless prohibited by applicable
Requirements of Law or by the rules governing the process requiring such
disclosure, (x) it will promptly notify the Borrower of the existence, terms and
circumstances surrounding such requirement, (y) it will consult with the
Borrower on the advisability of taking legally available steps to resist or
narrow such requirement, and (z) it will identify to the Borrower any such
information which is legally required to be disclosed, (v) to the extent
necessary or customary for inclusion in league table measurements or in any
tombstone or other advertising materials (and the Loan Parties consent to the
publication of such tombstone or other advertising materials by the
Administrative Agent, any Lender, any L/C Issuer or any of their Related
Persons), (vi) to the National Association of Insurance Commissioners or any
similar organization, any examiner or any nationally recognized rating agency in
each case to the extent required by such examiner, association, organization or
agency in connection with the administration of the Loans, regulatory
examinations or ratings or proposed rating of the Loans or otherwise to the
extent consisting of general portfolio information that does not identify any
Loan Party or any of their Subsidiaries, (vii) to current or prospective
assignees, SPVs grantees of any option described in Section 11.2(f) or
participants, direct or contractual counterparties to any Hedging Agreement
permitted hereunder and to their respective Related Persons, in each case to the
extent such assignees, participants, counterparties or Related Persons agree to
be bound by provisions substantially similar to the provisions of this Section
11.20 and (viii) in connection with the exercise of any remedy under any Loan
Document. In the event of any conflict between the terms of this Section 11.20
and those of any other Contractual Obligation entered into with any Loan Party
(whether or not a Loan Document), the terms of this Section 11.20 shall govern.
Section 11.21 Patriot Act Notice. Each Lender subject to the
USA Patriot Act of 2001 (31 U.S.C. 5318 et seq.) hereby notifies the Borrower
that, pursuant to Section 326 thereof, it is required to obtain, verify and
record information that identifies the Borrower, including the name and address
of the Borrower and other information allowing such Lender to identify the
Borrower in accordance with such Act.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
DAYTON SUPERIOR CORPORATION,
as the Borrower
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
DAYTON SUPERIOR CANADA LTD.,
as a Group Member (as to Section 11.12)
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
GENERAL ELECTRIC CAPITAL CORPORATION, as
Administrative Agent and Lender
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
S-1
SCHEDULE I
COMMITMENTS
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Lender Commitment
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General Electric Capital Corporation $100,000,000.00
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Total $100,000,000.00
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