Exhibit 4.2
Execution Version
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DAYTON SUPERIOR CORPORATION
13% SENIOR SUBORDINATED NOTES DUE 2009
FIFTH SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 4 , 0000
XXX XXXX XX XXX XXXX TRUST COMPANY, N.A.
AS TRUSTEE
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SUPPLEMENTAL INDENTURE, dated as of December 4, 2006 (this "Supplemental
Indenture"), between DAYTON SUPERIOR CORPORATION, an Ohio corporation (the
"Company"), and THE BANK OF NEW YORK TRUST COMPANY, N.A. a national banking
association duly organized under the laws of the United States, as successor
trustee (the "Trustee").
WHEREAS, the Company and the Trustee are parties to an Indenture, dated as
of June 16, 2000 (as amended to date, the "Indenture"), pursuant to which the
Company issued its 13% Senior Subordinated Notes Due 2009 (the "Notes");
WHEREAS, the Board of Directors of the Company has determined that it is in
the best interests of the Company to authorize and approve a proposed amendment
to a provision of the Indenture (the "Proposed Amendment");
WHEREAS, Section 9.02 of the Indenture provides that the Company and the
Trustee may amend the Indenture and the Notes with the consent of the Holders of
at least a majority in principal amount of the Notes then outstanding;
WHEREAS, the Company is soliciting consents pursuant to a supplement dated
November 30, 2006 (the "Supplement") to the Consent Solicitation Statement,
dated November 10, 2006 and the Consent Solicitation Statement, dated November
10, 2006 (collectively, the "Consent Solicitation Statement"), and accompanying
Consent Letter, from the Holders of the Notes in connection with the Proposed
Amendment as described in the Consent Solicitation Statement (the "Consent
Solicitation");
WHEREAS, the Holders of at least a majority in principal amount of the
Notes have consented to the Proposed Amendment to a provision of the Indenture
in accordance with Section 9.02 of the Indenture and to the other provisions of
this Supplemental Indenture; and
WHEREAS, the execution and delivery of this Supplemental Indenture have
been duly authorized and all conditions and requirements necessary to make this
Supplemental Indenture a valid and binding agreement have been duly performed
and complied with;
NOW, THEREFORE, for and in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, it is mutually covenanted and agreed, for the equal proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE I.
AMENDMENT TO ARTICLE I
Section 1.1 Paragraph (2) of the definition of "Permitted Indebtedness" in
Section 1.01 of the Indenture is hereby amended to read in its entirety as set
forth below:
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(2) Indebtedness of the Company or any of its Restricted Subsidiaries
incurred pursuant to one or more Credit Facilities in an aggregate
principal amount at any time outstanding pursuant to this clause (2)
not to exceed the greater of $130.0 million or the Borrowing Base;
provided that the amount of Indebtedness permitted to be incurred
pursuant to Credit Facilities in accordance with this clause (2) shall
be in addition to any Indebtedness permitted to be incurred pursuant
to Credit Facilities in reliance on, and in accordance with, clauses
(7), (13) and (15) below; and provided further that any Indebtedness
outstanding under the Senior Credit Facility on the Issue Date shall
initially be deemed to be incurred under this clause (2) and shall
initially be the only Indebtedness deemed to have been incurred under
this clause (2);
Section 1.2 The following definition of "Borrowing Base" in is hereby added
to Section 1.01 of the Indenture:
"Borrowing Base" means, as of any date, the sum of 75% of accounts
receivable, net, and 60% of the sum of inventories and rental
equipment, net (each as shown on the Company's most recently available
consolidated balance sheet as of such date); provided that any
accounts receivable, inventories or rental equipment that have been
sold, conveyed or otherwise transferred to a Securitization Entity in
connection with a Qualified Securitization Transaction shall not be
included when calculating the Borrowing Base.
ARTICLE II.
PAYMENT TO HOLDERS
Section 2.1 The term "Qualifying IPO" means any one or more public
offerings pursuant to a registration statement on Form S-1 under the Securities
Act of 1933 of shares of the Company's common stock pursuant to which the
Company raises aggregate gross proceeds of at least $50.0 million.
Section 2.2 Pursuant to the Consent Solicitation, the Company hereby agrees
to make a cash payment to each Holder of record as of 5:00 p.m. (New York City
time) on November 9, 2006 that delivered, and did not revoke, a duly executed
consent to the Proposed Amendment prior to 5:00 p.m. (New York City time), on
December 1, 2007, in the amount of $5.00 per $1,000 in outstanding principal
amount of Notes held by such Holder on November 9, 2006.
Section 2.3 Pursuant to the Consent Solicitation, the Company hereby agrees
to make a cash payment to each Holder of record as of 5:00 p.m. (New York City
time) on May 1, 2007, if and only if the Company has not consummated a
Qualifying IPO prior to that date, in the amount of $2.50 per $1,000 in
outstanding principal amount of Notes held by such Holder on May 1, 2007.
Section 2.4 Pursuant to the Consent Solicitation, the Company hereby agrees
to make a cash payment to each Holder of record as of 5:00 p.m. (New York City
time) on June 1, 2007, if and only if the Company has not consummated a
Qualifying IPO prior to that date, in the amount of $2.50 per $1,000 in
outstanding principal amount of Notes held by such Holder on June 1, 2007.
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Section 2.5 Payments, if any, pursuant to Sections 2.2, 2.3 and 2.4 shall
be made reasonably promptly after the dates referred to in such Sections.
ARTICLE III.
MISCELLANEOUS
Section 3.1 The Trustee accepts the trusts created by the Indenture, as
amended and supplemented by this Supplemental Indenture, and agrees to perform
the same upon the terms and conditions of the Indenture, as amended and
supplemented by this Supplemental Indenture.
Section 3.2 All capitalized terms used and not defined herein shall have
the respective meanings assigned to them in the Indenture.
Section 3.3 Upon execution and delivery of this Supplemental Indenture, the
terms and conditions of this Supplemental Indenture shall be part of the terms
and conditions of the Indenture for any and all purposes, and all the terms and
conditions of both shall be read together as though they constitute one and the
same instrument, except that in case of conflict, the provisions of this
Supplemental Indenture will control.
Section 3.4 Each of the Company and the Trustee hereby confirms and
reaffirms the Indenture in every particular except as amended and supplemented
by this Supplemental Indenture.
Section 3.5 Notwithstanding an earlier execution date, the provisions of
this Supplemental Indenture shall not become operative until such time as the
Company notifies the Information Agent for the Consent Solicitation, Global
Bondholder Services Corporation, that each of the conditions set forth in the
Consent Solicitation Statement, including the absence of any law or regulation
that would, and the absence of any injunction or action or other proceeding
(pending or threatened) that could, in the Company's sole judgment, make
unlawful or invalid or enjoin the implementation of the Proposed Amendment or
that would, in the Company's sole judgment, question the legality or validity
thereof. The Company shall promptly notify the Trustee in writing that this
Supplemental Indenture has become operative.
Section 3.6 All covenants and agreements in this Supplemental Indenture by
the Company or the Trustee shall bind their respective successors and assigns,
whether so expressed or not.
Section 3.7 In case any provisions in this Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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Section 3.8 Nothing in this Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto and their successors
under the Indenture and the Holders of the Notes, any benefit or any legal or
equitable right, remedy or claim under the Indenture.
Section 3.9 The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together shall
represent the same agreement. One signed copy is enough to prove this
Supplemental Indenture.
Section 3.10 This Supplemental Indenture shall be governed by and construed
in accordance with the laws of the State of New York, as applied to contracts
made and performed within the State of New York, without regard to principles of
conflicts of law. Each of the parties hereto agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Supplemental Indenture.
Section 3.11 All provisions of this Supplemental Indenture shall be deemed
to be incorporated in, and made a part of, the Indenture; and the Indenture, as
amended and supplemented by this Supplemental Indenture, shall be read, taken
and construed as one and the same instrument.
Section 3.12 The recitals contained herein shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee shall not be liable or responsible for the validity or sufficiency
of this Supplemental Indenture or the due authorization of this Supplemental
Indenture by the Company. In entering into this Supplemental Indenture, the
Trustee shall be entitled to the benefit of every provision of the Indenture
relating to the conduct of, affecting the liability of or affording protection
to the Trustee, whether or not elsewhere herein so provided.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first written above.
DAYTON SUPERIOR CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK TRUST
COMPANY, N.A., as Trustee
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Assistant Vice President
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