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EXHIBIT 4.2.3
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CONFORMED
THIRD AMENDMENT TO
CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of May 14, 1999
(this "AMENDMENT"), to the Existing Credit Agreement (as defined below), is
among DAYTON SUPERIOR CORPORATION, an Ohio corporation (the "BORROWER"), each of
the entities identified as Consenting Obligors on the signature pages hereto
(collectively, the "CONSENTING OBLIGORS"), the various financial institutions
signatories hereto as Revolving Lenders (collectively, the "REVOLVING LENDERS"),
DLJ CAPITAL FUNDING, INC., as syndication agent (the "SYNDICATION AGENT"), BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as documentation agent (the
"DOCUMENTATION AGENT"), BANKERS TRUST COMPANY, as administrative agent (the
"ADMINISTRATIVE AGENT") and BANK ONE, N.A., as facility agent (the "FACILITY
AGENT").
WITNESSETH:
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WHEREAS, the Borrower, the lenders from time to time parties
thereto (including the Revolving Lenders), and the Agents are parties
-to a Credit Agreement, dated as of September 29, 1997 (as further
amended, supplemented, amended and restated or otherwise modified prior
to the date hereof, the "EXISTING CREDIT AGREEMENT");
WHEREAS, the Borrower has requested that the Revolving Lenders
amend the Existing Credit Agreement to increase the Revolving Loan
Commitment Amount;
WHEREAS, all Loans and Obligations shall continue to be and
shall be fully guaranteed pursuant to the Subsidiary Guaranty and fully
secured by, among other things, the Borrower Pledge Agreement, the
Subsidiary Pledge Agreement, the Borrower Security Agreement and the
Subsidiary Security Agreement; and
WHEREAS, the Revolving Lenders have agreed, subject to the
terms and conditions hereinafter set forth, to amend the Existing
Credit Agreement in certain respects as set forth below (the Existing
Credit Agreement, as amended by this Amendment, being referred to as
the "CREDIT AGREEMENT");
NOW, THEREFORE, in consideration of the agreements herein
contained, the parties hereto agree as follows:
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PART I
DEFINITIONS
SUBPART 1.1. CERTAIN DEFINITIONS. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural form thereof):
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE.
"AMENDMENT" is defined in the PREAMBLE.
"BORROWER" is defined in the PREAMBLE.
"CONSENTING OBLIGORS" means each of the entities identified as such on
the signature pages hereof.
"CREDIT AGREEMENT" is defined in the FOURTH RECITAL.
"DOCUMENTATION AGENT" is defined in the PREAMBLE.
"EXISTING CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"FACILITY AGENT" is defined in the PREAMBLE.
"REVOLVING LENDERS" is defined in the PREAMBLE.
"SYNDICATION AGE" is defined in the PREAMBLE.
"THIRD AMENDMENT EFFECTIVE DATE" is defined in SUBPART 4. 1.
SUBPART 1.2. OTHER DEFINITIONS. Terms for which meanings are provided
in the Existing Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendment with such meanings.
PART II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Third Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this PART II. Except as so amended, the Existing Credit Agreement shall
continue in full force and effect in accordance with its terms and is hereby
ratified and confirmed in all respects.
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SUBPART 2.1. AMENDMENT TO ARTICLE I. The definition of "Revolving Loan
Commitment Amount" contained in Section 1. 1 of the Existing Credit Agreement is
hereby amended by deleting the amount of "140,000,000" in the second line
thereof and inserting the amount of "$50,000,000" in its place.
PART III
AFFIRMATION AND CONSENT
SUBPART 3.1. ACKNOWLEDGMENT AND REAFFIRMATION. Each of the Consenting
Obligors hereby acknowledges the amendments to the Existing Credit Agreement
pursuant to the terms and provisions set forth in this Amendment. Each of the
Consenting Obligors hereby reaffirms, as of the Third Amendment Effective Date,
(i) the covenants and agreements contained in each Loan Document to which it is
a party, including, in each case, as such covenants and agreements may be
modified by this Amendment, (ii) its grant of a security interest pursuant to
the applicable Loan Document to which it is a party and (iii) its guarantee of
payment of the Obligations pursuant to the Subsidiary Guaranty.
SUBPART 3.2. REPRESENTATIONS AND WARRANTIES, ETC. Each of the
Consenting Obligors hereby certifies that, as of the date hereof (after giving
effect to the occurrence of the Third Amendment Effective Date), the
representations and warranties made by it in the Loan Documents to which it is a
party are true and correct in all material respects with the same effect as if
made on the date hereof (unless stated to relate solely to an earlier date, in
which case such representations and warranties were true and correct in all
material respects as of such earlier date).
SUBPART 3.3. LOAN DOCUMENTS. Each of the Consenting Obligors further
confirms that each Loan Document is and shall continue to be in full force and
effect and the same is hereby ratified and confirmed in all respects, except
that upon the occurrence of the Third Amendment Effective Date, all references
in each such Loan Document to the "Credit Agreement", "Loan Documents",
"thereunder", "thereof", or words of similar import shall mean the Credit
Agreement and the Loan Documents, as the case may be, in each case after giving
effect to the amendments and other modifications provided for in this Amendment.
SUBPART 3.4. COURSE OF DEALING, ETC. Each of the Consenting Obligors
hereby acknowledges and agrees that the acceptance by the Agents and each
Revolving Lender of this document shall not be construed in any manner to
establish any course of dealing on the Agents' or Revolving Lender's part,
including the providing of any notice or the requesting of any acknowledgment
not otherwise expressly provided for in any Loan Document with respect to any
future amendment, waiver, supplement or other modification to any Loan Document
or any arrangement contemplated by any Loan Document.
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PART I
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1. AMENDMENT EFFECTIVE DATE. This Amendment shall become
effective as of the date (the "THIRD AMENDMENT EFFECTIVE DATE") on which the
Agents shall have received counterparts of this Amendment duly executed by the
Borrower, the Consenting Obligors and each Revolving Lender (or evidence thereof
satisfactory to the Agents). The delivery of an executed counterpart hereof by
the Borrower shall constitute a representation and warranty by the Borrower
that, on the Third Amendment Effective Date, after giving effect to this
Amendment, all statements set forth in Article VI of the Credit Agreement, as
amended by this Amendment, are true and correct as of such date, except to the
extent that such statement expressly relates to an earlier date (in which case
such statement shall be true and correct on and as of such earlier date).
SUBPART 4.1.1. RESOLUTIONS, ETC. The Agents shall have received from
the Borrower and the Consenting Obligors certificates, each dated the Third
Amendment Effective Date with counterparts for each Revolving Lender, duly
executed and delivered by the Borrower's or such Consenting Obligor's Secretary
or Assistant Secretary as to. (i) resolutions of such Person's Board of
Directors then in full force and effect authorizing, to the extent relevant, the
execution, delivery and performance of this Amendment, the Revolving Notes and
each other Loan Document to be executed by such Person and the transactions
contemplated hereby and thereby, and (ii) the incumbency and signatures of those
of its officers authorized to act with respect to this Amendment, the Revolving
Notes and each other Loan Document executed by such Person, upon which
certificate each Revolving Lender may conclusively rely until it shall have
received a further certificate of the Secretary or Assistant Secretary of such
Person canceling or amending the prior certificate.
SUBPART 4.1.2. PAYMENT OF FEES AND EXPENSES. The Facility Agent shall
have received an amendment fee for the account of each Revolving Lender which
shall have delivered to the Agents a duly executed counterpart of this
Amendment. In addition, the Borrower hereby agrees to pay and reimburse the
Syndication Agent for all its reasonable fees and expenses incurred in
connection with the negotiation, preparation, execution and delivery of this
Amendment and related documents, including all reasonable fees and disbursements
of counsel to the Syndication Agent.
SUBPART 4.1.3. DELIVERY OF REVOLVING NOTES. The Facility Agent shall
have received, for the account of each Revolving Lender, its Revolving Notes,
issued in substitution and exchange for, and not in satisfaction of, the
Revolving Notes delivered under the terms of the Existing Credit Agreement, duly
executed and delivered on behalf of an Authorized Officer of the Borrower.
SUBPART 4.1.4. OPINION OF COUNSEL. The Agents shall have
received an opinion, dated
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the Third Amendment Effective Date and addressed to the Agents and all Revolving
Lenders, from Xxxxxxxx Xxxx & Xxxxx LLP, counsel to the Obligors, in form and
substance satisfactory to the Agents.
SUBPART 4.2. LEGAL DETAILS. The Agents and their counsel shall have
received all information, and such counterpart originals or such certified or
other copies of such materials, as the Agents or their counsel may reasonably
request, and all legal matters incident to the effectiveness of this Amendment
shall be satisfactory to the Agents and their counsel. All documents executed or
submitted pursuant hereto or in connection herewith shall be reasonably
satisfactory in form and substance to the Agents and their counsel.
SUBPART 4.3. LIMITATION. Except as expressly provided hereby, all of
the representations, warranties, terms, covenants and conditions of the Existing
Credit Agreement and each other Loan Document shall remain unwaived and shall
continue to be, and shall remain, in full force and effect in accordance with
their respective terms. The modifications and consents set forth herein shall be
limited precisely as provided for herein, and shall not be deemed to be a waiver
of, consent to or modification of any other term or provision of the Existing
Credit Agreement or of any term or provision of any other Loan Document or other
instrument referred to therein or herein, or of any transaction or further or
future action on the part of the Borrower or any other Person which would
require the consent of the Agents or any of the Revolving Lenders under the
Existing Credit Agreement or any such other Loan Document or instrument.
PART V
MISCELLANEOUS
SUBPART 5.1. CROSS-REFERENCES. References in this Amendment to any Part
or Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment. References in this Amendment to any Article or Section are, unless
otherwise specified, to such Article or Section of the Existing Credit
Agreement.
SUBPART 5.2. LOAN DOCUMENT PURSUANT TO EXISTING CREDIT AGREEMENT. This
Amendment is a Loan Document executed pursuant to the Existing Credit Agreement
and shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with all of the terms and provisions of
the Existing Credit Agreement, as amended hereby, including Article X thereof.
SUBPART 5.3. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 5.4. COUNTERPARTS. This Amendment may be executed by the
parties hereto in several counterparts, each of which when executed and
delivered shall be an original and all of which shall constitute together but
one and the same agreement.
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SUBPART 5.5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
BORROWER: DAYTON SUPERIOR CORPORATION
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By: /s/ XXXX X. XXXXXXXXXX
Name: Xxxx X. Xxxxxxxxxx
Title: Treasurer and Assistant Secretary
CONSENTING OBLIGORS: XXXXXX CORPORATION
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By: /s/ XXXX X. XXXXXXXXXX
Name: Xxxx X. Xxxxxxxxxx
Title: Treasurer and Assistant Secretary
DUR-O-WAL, INC.
By: /s/ XXXX X. XXXXXXXXXX
Name: Xxxx X. Xxxxxxxxxx
Title: Treasurer and Assistant Secretary
CONCRETE ACCESSORIES, INC.
By: /s/ XXXX X. XXXXXXXXXX
Name: Xxxx X. Xxxxxxxxxx
Title: Treasurer and Assistant Secretary
BANK ONE, N.A., as Facility Agent and a
Revolving Lender
By: /s/ XXXX XXXXXX
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Documentation
Agent and a Revolving Lender
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By: /s/ XXXXXX XXXXXXX
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
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NATIONAL CITY BANK
successor by merger to
National City Bank, Dayton,
formerly known as National
City Bank of Dayton as a
Revolving Lender
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
DLJ CAPITAL FUNDING, INC.,
as Syndication Agent
By_________________________
Name:
Title:
BANKERS TRUST COMPANY,
as Administrative Agent
By:________________________
Name:
Title:
