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Exhibit 10.1
CONSENT
CONSENT (this "Consent"), dated as of May 24, 2001, among
DAYTON SUPERIOR CORPORATION, an Ohio corporation (the "Borrower"), the lenders
party to the Credit Agreement referred to below (the "Lenders"), and 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");
WHEREAS, the Borrower has requested that the Lenders consent
to the Borrower's incurrence of $45,000,000 of Incremental B Term Loans under
the Credit Agreement on the terms and conditions provided herein (such
Incremental B Term Loans are referred to herein as the "Additional Incremental B
Term Loans"); and
WHEREAS, the Lenders have agreed to give their consent to the
Borrower's incurrence of the Additional Incremental B Term Loans on the terms
and conditions set forth herein;
NOW, THEREFORE, it is agreed:
I. Consents and Waiver under the Credit Agreement.
1. The Lenders hereby agree that the Borrower may incur
$45,000,000 of Additional Incremental B Term Loans from the Incremental B Term
Loan Lenders (as hereinafter defined) as provided in this Consent, which
Additional Incremental B Term Loans shall be considered "Incremental B Term
Loans" for all purposes of the Credit Agreement and the other Credit Documents
and shall be incurred pursuant to, and in accordance with, the terms and
conditions of the Credit Agreement (including, without limitation, Sections
1.01(d) and 1.15 thereof); provided that, notwithstanding the foregoing, (x) the
Additional Incremental B Term Loans shall be in addition to, and shall not
otherwise reduce the aggregate amount of, Incremental Term Loans permitted to be
incurred pursuant to Section 1.15 of the Credit Agreement (after giving effect
to all other Incremental Term Loans incurred thereunder prior to the Consent
Effective Date (as hereinafter defined)) and (y) the proceeds of the Additional
Incremental B Term Loans shall be used (i) to prepay $24,000,000 of outstanding
Acquisition Revolving Loans (without any reduction to the Total Acquisition Loan
Commitment), (ii) to prepay $18,611,000 of outstanding Revolving Loans (without
any reduction to the Total Revolving Loan Commitment) and (iii) to pay
transaction fees and expenses related to the matters referred to in this
Consent.
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2. Each Lender listed on Annex A hereto (each an "Incremental
B Term Loan Lender") hereby severally agrees to provide the Incremental B Term
Loan Commitment set forth opposite its name on Annex A hereto (for each such
Incremental B Term Loan Lender, its "Incremental B Term Loan Commitment") and to
make the Additional Incremental B Term Loans pursuant thereto on the Consent
Effective Date. Each Incremental B Term Loan Lender, the Administrative Agent
and the Borrower agree that, with respect to the Incremental B Term Loan
Commitment provided by each such Incremental B Term Loan Lender pursuant to this
Consent, such Incremental B Term Loan Lender shall receive an upfront fee equal
to that amount set forth opposite its name on Annex A hereto, which upfront fee
shall be due and payable to such Incremental B Term Loan Lender on the Consent
Effective Date. In addition, the Borrower and the Lenders hereby agree that this
Consent shall serve as the Incremental Term Loan Commitment Agreement for
purposes of the Additional Incremental B Term Loans to be made pursuant to this
Consent and that the Incremental B Term Loan Borrowing Date relating thereto
shall be the Consent Effective Date.
3. The Administrative Agent hereby waives the fee referred to
in Section 1.15(b)(ii) of the Credit Agreement solely in connection with the
incurrence of the Additional Incremental B Term Loans.
II. Acknowledgment with respect to various Credit Documents and
justification of Loans under the Senior Subordinated Note Indenture.
1. For the avoidance of doubt, each Credit Party hereby
acknowledges and confirms its due authorization, execution and delivery of all
Credit Documents to which it is a party, including all instruments, financing
statements, agreements, certificates and documents executed and delivered in
connection therewith, and hereby ratifies all actions heretofore taken in
connection therewith.
2. Each Credit Party, by its execution (or acknowledgment, as
the case may be) and delivery of this Consent, hereby consents to the extensions
of credit in the form of the Additional Incremental B Term Loans. Each Credit
Party further acknowledges and agrees that the Additional Incremental B Term
Loans shall be fully entitled to all benefits of, and shall be fully guaranteed
and secured pursuant to and in accordance with the terms of, each of the Credit
Documents, as applicable.
3. The Borrower hereby represents and warrants to the Lenders
that (i) all Loans and Letters of Credit heretofore incurred and/or issued under
the Credit Agreement were incurred and/or issued in accordance with the terms
and conditions of the Senior Subordinated Note Indenture such that all such
Obligations were, and remain, "Senior Debt" as defined therein, and (ii) all
Additional Incremental B Term Loans to be incurred hereunder will, when incurred
on the Consent Effective Date, be incurred in accordance with the terms and
conditions of the Senior Subordinated Note Indenture such that all such
Obligations will be "Senior Debt" as defined therein.
4. Each Incremental B Term Loan Lender party to this Consent
which is not a Lender under the Credit Agreement on the date hereof (and prior
to giving effect to this Consent)
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(i) confirms that it has received a copy of the Credit Agreement and the other
Credit Documents, together with copies of the financial statements referred to
therein and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Consent and, to the
extent applicable, to become a Lender under the Credit Agreement, (ii) agrees
that it will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement, (iii) appoints and authorizes the
Administrative Agent and the Collateral Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement and the other
Credit Documents as are delegated to the Administrative Agent and the Collateral
Agent, as the case may be, by the terms thereof, together with such powers as
are reasonably incidental thereto, (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender, and (v) in the
case of each lending institution organized under the laws of a jurisdiction
outside the United States, agrees to deliver to the Administrative Agent and the
Borrower the applicable forms described in Section 4.04(b) certifying as to its
entitlement to a complete exemption from United States withholding taxes with
respect to all payments to be made under the Credit Agreement and the other
Credit Documents. Upon the execution of a counterpart of this Consent by each
such Incremental B Term Loan Lender and the occurrence of the Consent Effective
Date, each such Incremental B Term Loan Lender (x) shall become a Lender
pursuant to the Credit Agreement and (y) to the extent provided in this Consent,
shall have the rights and obligations of a Lender thereunder and under the other
Credit Documents.
III. Miscellaneous.
1. This Consent 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.
2. This Consent 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.
3. THIS CONSENT 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.
4. This Consent shall become effective on the date (the
"Consent Effective Date") when:
(i) the Borrower, each other Credit Party, the Required
Lenders and each Incremental B Term Loan Lender 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;
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(ii) the Borrower shall have delivered to the Administrative
Agent for the account of each Incremental B Term Loan Lender that has requested
the same a new B Term Note reflecting the aggregate outstanding principal amount
of B Term Loans owed to such Incremental B Term Loan Lender after giving effect
to the Additional Incremental B Term Loans incurred on the Consent Effective
Date;
(iii) (x) the Borrower shall have delivered to the
Administrative Agent a certificate from the Borrower's chief financial officer
demonstrating in reasonable detail (and showing the justification and the
financial calculations therefor) that the full amount of all Loans and Letters
of Credit heretofore incurred and/or issued under the Credit Agreement, as well
as all Additional Incremental B Term Loans to be incurred on the Consent
Effective Date, were incurred, and shall be incurred, as the case may be, in
accordance with, and did not and will not, as the case may be, violate the
provisions of the Senior Subordinated Note Indenture and (y) the Borrower shall
have delivered to the trustee under the Senior Subordinated Note Indenture and
to the Administrative Agent the officers' certificate referred to in clause (vi)
of the second paragraph of the definition of "Senior Debt" contained in the
Senior Subordinated Note Indenture;
(iv) the Administrative Agent shall have received opinions,
addressed to the Administrative Agent, the Collateral Agent and each of the
Lenders and dated the Consent Effective Date, from Xxxxxx & Xxxxxxx, Xxxxxxxx
Xxxx LLP and Xxxxxxxxx Xxxxxxxx LLP, each special counsel to the Credit Parties,
which opinions shall be in form and substance reasonably satisfactory to the
Administrative Agent and shall cover (x) such of the matters contained in the
original opinions of counsel delivered on the Initial Borrowing Date (or such
other date) as the Administrative Agent may reasonably request and (y) a "no
conflicts" opinion with respect to the Senior Subordinated Note Indenture on a
basis reasonably satisfactory to the Administrative Agent;
(v) the Administrative Agent shall have received a solvency
certificate, in form and substance reasonably satisfactory to the Administrative
Agent, from the chief financial officer of the Borrower, setting forth the
conclusions that, after giving effect to the incurrence of the Additional
Incremental B Term Loans on the Consent Effective Date, the Borrower (on a
stand-alone basis) and the Borrower and its Subsidiaries (taken as a whole) are
not insolvent and will not be rendered insolvent by the indebtedness incurred in
connection therewith, will not be left with unreasonably small capital with
which to engage in their respective businesses and will not have incurred debts
beyond their ability to pay such debts as they mature;
(vi) the Administrative Agent shall have received from each
Credit Party certified copies of resolutions of their respective Boards of
Directors (or the equivalent governing body) or statements of unanimous written
consent in lieu thereof of each such Credit Party with respect to the matters
set forth in this Consent and the transactions contemplated herein (including
the incurrence of the Additional Incremental B Term Loans by the Borrower and
the guarantee of the Additional Incremental B Term Loans by each other Credit
Party), and such resolutions or statements, as the case may be, shall be in form
and substance reasonably satisfactory to the Administrative Agent;
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(vii) on or prior to the Consent Effective Date, nothing shall
have occurred (and neither the Lenders nor the Agents shall have become aware of
any facts or conditions not previously known) since December 31, 2000 which the
Required Lenders or the Agents shall reasonably determine has had, or could
reasonably be expected to have, a Material Adverse Effect;
(viii) the Borrower shall have paid to each Lender which
executes and delivers to the Administrative Agent a counterpart of this Consent
on or before 12:00 Noon (New York time) on May 23, 2001, a consent fee equal to
0.125% of the sum of (I) the aggregate principal amount of such Lender's
outstanding Term Loans on the Consent Effective Date (without giving effect to
any Additional Incremental B Term Loans incurred on the Consent Effective Date),
(II) such Lender's Initial A Term Loan Commitment on the Consent Effective Date,
(III) such Lender's Revolving Loan Commitment on the Consent Effective Date and
(iv) such Lender's Acquisition Loan Commitment on the Consent Effective Date;
(ix) the Borrower shall have paid to each Incremental B Term
Loan Lender the upfront fee set forth opposite each such Incremental B Term Loan
Lender's name on Annex A hereto; and
(x) the Borrower shall have paid to the Administrative Agent
all other fees, costs and expenses (including, without limitation, legal fees
and expenses) payable to the Administrative Agent to the extent then due.
In the event that the Consent Effective Date does not occur on
or prior to June 8, 2001, this Consent (and the provisions hereof) shall have no
further force and effect and the Credit Agreement shall continue to be effective
as the same may have been, or thereafter be, amended, modified or supplemented
from time to time.
5. In order to induce the Lenders to enter into this Consent,
the Borrower hereby represents and warrants that (i) no Default or Event of
Default exists as of the Consent Effective Date, both before and after giving
effect to this Consent, and (ii) on the Consent Effective Date, both before and
after giving effect to this Consent, 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).
6. From and after the Consent 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 Consent shall constitute a Credit Document for all purposes under
the Credit Agreement and the other Credit Documents.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Consent to be duly executed and delivered as of the date
first above written.
DAYTON SUPERIOR CORPORATION
By: /s/ Dayton Superior Corporation
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Name:
Title:
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BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By: /s/ Bankers Trust Company
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Name:
Title:
XXXXXXX XXXXX CAPITAL CORPORATION,
Individually and as Syndication Agent
By: /s/ Xxxxxxx Xxxxx Capital Corporation
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Name:
Title:
BANK ONE, MICHIGAN,
Individually and as Documentation Agent
By: /s/ Bank One, Michigan
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Name:
Title:
NATIONAL CITY BANK,
Individually and as Co-Agent
By: /s/ National City Bank
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Name:
Title:
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BANK of AMERICA, N.A.,
Individually and as Co-Agent
By: /s/ Bank of America, N.A.
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Name:
Title:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: /s/ Transamerica Business Credit Corporation
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Name:
Title:
SUMMIT BANK
By: /s/ Summit Bank
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Name:
Title:
COMERICA BANK
By: /s/ Comerica Bank
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Name:
Title:
MICHIGAN NATIONAL BANK
By: /s/ Michigan National Bank
-----------------------------------------------
Name:
Title:
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HUNTINGTON NATIONAL BANK
By: /s/ Huntington National Bank
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Name:
Title:
PROVIDENT BANK
By: /s/ Provident Bank
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Name:
Title:
KZH SOLEIL LLC
By: /s/ KZH Soleil LLC
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Name:
Title:
KZH ING 1
By: /s/ KZH ING 1
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Name:
Title:
KZH ING 3
By: /s/ KZH ING 3
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Name:
Title:
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XXXXX XXXXX CDO III, LTD.
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Xxxxx Xxxxx CDO III, Ltd.
----------------------------------------------
Name:
Title:
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Xxxxx Xxxxx Senior Income Trust
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Name:
Title:
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: Xxxxx Xxxxx Management,
as Investment Advisor
By: /s/ Xxxxx Xxxxx Institutional Senior Loan Fund
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Name:
Title:
XXXXXXX & CO
By: Boston Management and Research,
as Investment Advisor
By: /s/ Xxxxxxx & Co
----------------------------------------------
Name:
Title:
OXFORD STRATEGIC INCOME FUND
By: Xxxxx Xxxxx Management,
as Investment Advisor
By: /s/ Oxford Strategic Income Fund
----------------------------------------------
Name:
Title:
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By: /s/ Senior Debt Portfolio
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Name:
Title:
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Archimedes Funding III, Ltd.
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Name:
Title:
NEMEAN CLO, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Nemean CLO, Ltd.
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Name:
Title:
ING ARCHIMEDES IV
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ ING Archimedes IV
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Name:
Title:
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CERES II FINANCE LTD.
By: INVESCO Senior Secured Management, Inc.
As Sub-Managing Agent (Financial)
By: /s/ Ceres II Finance Ltd.
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Name:
Title:
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management, Inc.
As Sub-Managing Agent (Financial)
By: /s/ Avalon Capital Ltd. 2
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Name:
Title:
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XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxx Xxxxxx Senior Income Trust
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Name:
Title:
XXX XXXXXX CLO I, LTD.
By: Xxx Xxxxxx Management Inc.
as Collateral Manager
By: /s/ Xxx Xxxxxx CLO I, Ltd.
----------------------------------------------
Name:
Title:
XXX XXXXXX CLO II, LTD.
By: Xxx Xxxxxx Management Inc.
as Collateral Manager.
By: /s/ Xxx Xxxxxx CLO II, Ltd.
----------------------------------------------
Name:
Title:
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxx Xxxxxx Prime Rate Income Trust
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Name:
Title:
XXX XXXXXX SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxx Xxxxxx Senior Floating Rate Fund
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Name:
Title:
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Xxxxx Xxxxxx and Company Incorporated,
under Delegated authority from
Massachusetts Mutual Life Insurance
Company, its Collateral Manager
By: /s/ Massachusetts Mutual Life Insurance Company
-----------------------------------------------
Name:
Title:
MAPLEWOOD CDO, LIMITED
By: Xxxxx Xxxxxx and Company Incorporated,
under delegated authority from
Massachusetts Mutual Life Insurance
Company, its Collateral Manager
By: /s/ Maplewood CDO, Limited
----------------------------------------------
Name:
Title:
SUNAMERICA LIFE INSURANCE COMPANY
By: /s/ Sunamerica Life Insurance Company
----------------------------------------------
Name:
Title:
FLAGSHIP CLO - 2001-1
By: Flagship Capital Management, Inc.
as Agent
By: /s/ Flagship CLO - 2001-1
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Name:
Title:
FLAGSHIP CLO II
By: Flagship Capital Management, Inc.
as Agent
By: /s/ Flagship CLO II
----------------------------------------------
Name:
Title:
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XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By: /s/ Xxxxxx Xxxxxxx Xxxx Xxxxxx Prime Income Trust
-------------------------------------------------
Name:
Title:
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Acknowledged and Agreed to by:
DUR-O-WAL, INC.
XXXXXX CORPORATION
DAYTON SUPERIOR SPECIALTY CHEMICAL CORP.
TREVECCA HOLDINGS, INC.
JDC HOLDINGS, INC.
AZTEC CONCRETE ACCESSORIES, INC.
By: /s/ Dur-O-Wal, Inc.
/s/ Xxxxxx Corporation
/s/ Dayton Superior Specialty Chemical Corp.
/s/ Trevecca Holdings, Inc.
/s/ JDC Holdings, Inc.
/s/ Aztec Concrete Accessories, Inc.
-----------------------------------------------
Name:
Title:
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Annex A
List of Incremental B Term Loan Lenders
Name of Lender Amount of Incremental B Term Loan Upfront Fee
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Commitment
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Bankers Trust Company $15,000,000 $18,750
Flagship CLO - 2001-1 $4,000,000 $5,000
Flagship CLO II $1,000,000 $1,250
Transamerica Business Credit $5,000,000 $6,250
Corporation
SunAmerica Life Insurance Company $5,000,000 $6,250
Xxxxxx Xxxxxxx Xxxx Xxxxxx Prime $5,000,000 $6,250
Income Trust
ING Archimedes IV $2,000,000 $2,500
KZH ING 1 $2,000,000 $2,500
KZH ING 3 $1,000,000 $1,250
Xxx Xxxxxx Prime Rate Income Trust $3,000,000 $3,750
Xxx Xxxxxx Senior Income Trust $2,000,000 $2,500
