Exhibit 10.1
------------
FIRST AMENDMENT
---------------
FIRST AMENDMENT (this "Amendment"), dated as of October 2, 2002,
among DAYTON SUPERIOR CORPORATION, an Ohio corporation (the "Borrower"), the
lenders party to the Credit Agreement referred to below (the "Lenders"), and
DEUTSCHE BANK TRUST COMPANY AMERICAS (f/k/a Bankers Trust Company), as
Administrative Agent (in such capacity, the "Administrative Agent"). All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided such terms in the Credit Agreement referred to
below.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders and the Administrative Agent
are parties to a Credit Agreement, dated as of June 16, 2000 (as amended,
modified and/or supplemented to, but not including, the date hereof, the "Credit
Agreement"); and
WHEREAS, the Borrower has requested, and the Lenders have agreed
to, the amendments provided herein on the terms and conditions set forth herein;
NOW, THEREFORE, it is agreed:
1. Section 9.09 of the Credit Agreement is hereby amended by (i)
deleting the table appearing in said Section and inserting the following new
table in lieu thereof:
"Fiscal Quarter Ending
Closest to Amount
---------- ------
September 30, 2002 $59,800,000
December 31, 2002 $55,500,000
March 31, 2003 $55,500,000
June 30, 2003 $55,500,000
September 30, 2003 $55,500,000
December 31, 2003 $55,500,000
March 31, 2004 $57,000,000
June 30, 2004 $58,000,000
September 30, 2004 $60,000,000
December 31, 2004 $71,300,000
March 31, 2005 $71,300,000
June 30, 2005 $71,300,000
September 30, 2005 $71,300,000
December 31, 2005 $76,900,000
March 31, 2006 $76,900,000
June 30, 2006 $76,900,000
September 30, 2006 $76,900,000
December 31, 2006 $82,600,000
March 31, 2007 and
the last day of each
fiscal quarter of the
Borrower thereafter $86,800,000"
and (ii) inserting the text "occuring after the First Amendment Effective Date"
immediately following the text "From and after the consummation of any Permitted
Acquisition" appearing in the last sentence of said Section.
2. Section 9.10 of the Credit Agreement is hereby amended by
deleting the table appearing in said Section and inserting the following new
table in lieu thereof:
"Fiscal Quarter Ending
Closest to Ratio
---------- -----
September 30, 2002 1.75:1.00
December 31, 2002 1.65:1.00
March 31, 2003 1.65:1.00
June 30, 2003 1.65:1.00
September 30, 2003 1.65:1.00
December 31, 2003 1.65:1.00
March 31, 2004 1.75:1.00
June 30, 2004 1.75:1.00
September 30, 2004 1.85:1.00
December 31, 2004 2.30:1.00
March 31, 2005 2.30:1.00
June 30, 2005 2.30:1.00
September 30, 2005 2.30:1.00
December 31, 2005 2.30:1.00
March 31, 2006 2.30:1.00
June 30, 2006 2.30:1.00
September 30, 2006 2.30:1.00
December 31, 2006
and the last day of
each fiscal quarter of
the Borrower thereafter 2.50:1.00".
-2-
3. Section 9.11 of the Credit Agreement is hereby amended by
deleting the table appearing in said Section and inserting the following new
table in lieu thereof:
"Fiscal Quarter Ending
Closest to Ratio
---------- -----
September 30, 2002 5.35:1.00
December 31, 2002 5.35:1.00
March 31, 2003 5.75:1.00
June 30, 2003 5.85:1.00
September 30, 2003 5.60:1.00
December 31, 2003 5.25:1.00
March 31, 2004 5.50:1.00
June 30, 2004 5.50:1.00
September 30, 2004 5.25:1.00
December 31, 2004 4.75:1.00
March 31, 2005 5.00:1.00
June 30, 2005 5.00:1.00
September 30, 2005 4.85:1.00
December 31, 2005 4.50:1.00
March 31, 2006 4.75:1.00
June 30, 2006 4.75:1.00
September 30, 2006 4.60:1.00
December 31, 2006
and the last day of
each fiscal quarter of
the Borrower thereafter 4.25:1.00".
4. The definition of "Applicable Margin" appearing in Section 11
of the Credit Agreement is hereby amended by deleting the last sentence in said
definition and inserting the following new sentence in lieu thereof:
"Notwithstanding anything to the contrary contained in the immediately
preceding sentence, Level 7 pricing shall apply for the period from and
including February 15, 2003 to but not including the date which is the
first Start Date after the Borrower's fiscal quarter ending closest to
September 30, 2004.".
5. Section 11 of the Credit Agreement is hereby further amended by
inserting the following definitions in the appropriate alphabetical order in
said Section:
"First Amendment" shall mean the First Amendment to this
Agreement, dated as of October 2, 2002.
"First Amendment Effective Date" shall have the meaning
provided in the First Amendment.
-3-
6. This Amendment is limited as specified and shall not constitute
a modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
7. This Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
8. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
9. This Amendment shall become effective on the date (the "First
Amendment Effective Date") when (i) the Borrower and the Required Lenders shall
have signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered (including by way of facsimile transmission) the same
to the Administrative Agent at the Notice Office and (ii) the Borrower shall
have paid to each Lender which executes and delivers to the Administrative Agent
a counterpart of this Amendment on or before 5:00 p.m. (New York time) on
October 4, 2002, an amendment fee equal to 0.25% of the sum of (I) the aggregate
principal amount of such Lender's outstanding Term Loans on the First Amendment
Effective Date plus (II) such Lender's Initial A Term Loan Commitment on the
First Amendment Effective Date plus (III) such Lender's Revolving Loan
Commitment on the First Amendment Effective Date plus (IV) such Lender's
Acquisition Loan Commitment on the First Amendment Effective Date.
10. In order to induce the Lenders to enter into this Amendment,
the Borrower hereby represents and warrants that (i) no Default or Event of
Default exists as of the First Amendment Effective Date, both before and after
giving effect to this Amendment, and (ii) on the First Amendment Effective Date,
both before and after giving effect to this Amendment, all representations and
warranties contained in the Credit Agreement and in the other Credit Documents
are true and correct in all material respects (it being understood and agreed
that any representation or warranty which by its terms is made as of a specified
date shall be true and correct in all material respects only as of such
specified date).
11. From and after the First Amendment Effective Date, all
references in the Credit Agreement and each of the other Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
modified hereby. This Amendment shall constitute a Credit Document for all
purposes under the Credit Agreement and the other Credit Documents.
* * *
-4-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
DAYTON SUPERIOR CORPORATION
By: /s/ Xxxx X. XxXxxxx
---------------------------------------
Name: Xxxx X. XxXxxxx
Title: Vice President and CFO
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Individually and as Administrative
Agent
By:
----------------------------------
Name:
Title:
SIGNATURE PAGE TO THE FIRST
AMENDMENT, DATED AS OF OCTOBER 2,
2002, TO THE CREDIT AGREEMENT, DATED
AS OF JUNE 16, 2000, AMONG DAYTON
SUPERIOR CORPORATION, AN OHIO
CORPORATION, THE VARIOUS LENDERS
PARTY THERETO, AND DEUTSCHE BANK
TRUST COMPANY AMERICAS (F/K/A
BANKERS TRUST COMPANY), AS
ADMINISTRATIVE AGENT
NAME OF INSTITUTION:
____________________________________
By:_________________________________
Name:
Title:
