Exhibit
4.10


 


EXECUTION VERSION


 


 


DAYTON SUPERIOR
CORPORATION,


 


AZTEC CONCRETE
ACCESSORIES, INC.,


 


DAYTON SUPERIOR
SPECIALTY CHEMICAL CORP.,


 


DUR-O-WAL, INC.,


 


SOUTHERN
CONSTRUCTION PRODUCTS, INC.,


 


SYMONS
CORPORATION,


 


TREVECCA HOLDINGS,
INC.


 


(“GRANTORS”)


 


AND


 


THE BANK OF NEW
YORK, 

AS COLLATERAL AGENT AND AS TRUSTEE


 


 


SECOND AMENDED AND
RESTATED 

SECURITY AGREEMENT


 

















 


	
  1.

  	
  DEFINED TERMS

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  GRANT OF LIEN

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  COLLATERAL AGENT’S RIGHTS:  LIMITATIONS ON COLLATERAL AGENT’S
  OBLIGATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  BANK ACCOUNTS; COLLECTION OF ACCOUNTS
  AND PAYMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  COLLATERAL AGENT’S APPOINTMENT
  AS ATTORNEY-IN-FACT

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  REMEDIES:  RIGHTS UPON DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  GRANT OF LICENSE TO USE
  INTELLECTUAL PROPERTY COLLATERAL

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  LIMITATION ON COLLATERAL AGENT’S
  DUTY IN RESPECT OF COLLATERAL

  	
   

  
	
   

  	
   

  	
   

  
	
  11.

  	
  REINSTATEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  12.

  	
  SURETYSHIP WAIVERS BY GRANTOR;
  OBLIGTIONS ABSOLUTE

  	
   

  
	
   

  	
   

  	
   

  
	
  13.

  	
  EXPENSES AND ATTORNEY’S FEES

  	
   

  
	
   

  	
   

  	
   

  
	
  14.

  	
  NOTICES

  	
   

  
	
   

  	
   

  	
   

  
	
  15.

  	
  SEVERABILITY

  	
   

  
	
   

  	
   

  	
   

  
	
  16.

  	
  NO WAIVER; CUMULATIVE REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  17.

  	
  LIMITATION BY LAW

  	
   

  
	
   

  	
   

  	
   

  
	
  18.

  	
  TERMINATION OF THIS AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  19.

  	
  SUCCESSORS AND ASSIGNS

  	
   

  
	
   

  	
   

  	
   

  
	
  20.

  	
  COUNTERPARTS

  	
   

  
	
   

  	
   

  	
   

  
	
  21.

  	
  GOVERNING LAW

  	
   

  
	
   

  	
   

  	
   

  
	
  22.

  	
  WAIVER
  OF JURY TRIAL

  	
   

  
	
   

  	
   

  	
   

  
	
  23.

  	
  HEADINGS

  	
   

  
	
   

  	
   

  	
   

  
	
  24.

  	
  NO STRICT CONSTRUCTION

  	
   

  
	
   

  	
   

  	
   

  
	
  25.

  	
  ADVICE OF COUNSEL

  	
   

  
	
   

  	
   

  	
   

  
	
  26.

  	
  BENEFIT OF NOTEHOLDERS

  	
   

  
	
   

  	
   

  	
   

  
	
  27.

  	
  INTERCREDITOR AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  28.

  	
  COLLATERAL
  AGENCY

  	
   

  



 


i

















 


SECOND AMENDED AND
RESTATED SECURITY AGREEMENT


 


THIS SECOND AMENDED AND RESTATED SECURITY AGREEMENT,
dated as of January 30, 2004 (this “Agreement”), amends and
restates that certain Amended and Restated Security Agreement, originally dated
June 16, 2000 and amended and restated on June 9, 2003 (the “Existing
Security Agreement”), and is by and among DAYTON SUPERIOR CORPORATION, a
Ohio corporation (“Borrower”), AZTEC CONCRETE ACCESSORIES, INC., a
California corporation, DAYTON SUPERIOR SPECIALTY CHEMICAL CORP. a Kansas
corporation, DUR-O-WAL, INC. a Delaware corporation, SOUTHERN CONSTRUCTION
PRODUCTS, INC. a Alabama corporation, SYMONS CORPORATION a Delaware corporation
and TREVECCA HOLDINGS, INC. a Delaware corporation (together with Borrower,
each referred to herein individually as a “Grantor” and collectively as
“Grantors”), THE BANK OF NEW YORK (the “Collateral Agent”), as
successor to Deutsche Bank Trust Company Americas as Collateral Agent under the
Existing Security Agreement and THE BANK OF NEW YORK (the “Trustee”), as
trustee for the beneficial holders (the “Noteholders”) under that
certain Indenture, dated as of June 9, 2003, by and among Borrower, the
Obligors parties thereto as Guarantors and The Bank Of New York, governing the
rights and duties of Borrower under 10 3⁄4% Senior Second Secured Notes due 2008
in the initial aggregate principal amount of $165,000,000 (the “Indenture”).


 


WHEREAS:


 


(A)                              The
Existing Security Agreement provides for an assignment, pledge and grant of a
security interest in certain collateral in favor of Deutsche Bank Trust Company
Americas, as collateral agent for the benefit of the Noteholders (as that term
is defined therein), the Trustee and for the benefit of the Lender Creditors,
the Other Creditors and Additional First Lien Creditors (as each term is
defined therein) and Deutsche Bank Trust Company Americas, as administrative
agent;


 


(B)                                In
connection with the repayment of that
certain Credit Agreement (the “DB Credit Agreement”), dated as of
June 16, 2000, among Borrower, the lenders party thereto in their
capacities as lenders and Deutsche Bank Trust Company Americas as
administrative agent, the Borrower has entered into that certain Credit
Agreement, dated as of the date hereof (including all annexes, exhibits and
schedules thereto, and as from time to time amended, restated, supplemented or
otherwise modified, the “Credit Agreement”) by and among Grantors and
General Electric Capital Corporation, in its capacity as Agent for itself and
Lenders from time to time party to the Credit Agreement (the “Agent”);


 


(C)                                Deutsche
Bank Trust Company Americas, as collateral agent under the Existing Security
Agreement, has resigned pursuant to a payoff letter of even date herewith and
is being replaced as collateral agent hereunder by the Collateral Agent;


 


(D)                               There
are no Other Obligations (as defined in the Existing Security Agreement) or
Additional First Lien Obligations (as defined in the Existing Security
Agreement) outstanding on the date hereof and the Grantors desire that
Additional First Lien Obligations (as defined in the Existing Security
Agreement) no longer be secured hereby;


 


(E)                                 The
Grantors, Agent, Trustee and Collateral Agent have entered into that certain
Intercreditor Agreement (as amended, modified or supplemented from time to
time, the “Intercreditor Agreement”)
dated as of the date hereof, to establish the priority of the Senior Lender’s
security interests in Grantors’ assets; and


 

















 


(F)                                 The
Trustee and Collateral Agent are, subject to the terms of the Intercreditor
Agreement, required to amend and restate the Existing Security Agreement to
provide for the subordination of their security interests to that of the Agent
under that certain Security Agreement (the “Senior Security Agreement”),
dated the date hereof, among Borrower, the other parties named therein as Grantors
and the Agent.


 


NOW,
THEREFORE, in consideration of the premises and mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree to amend and restate the Existing Security Agreement as follows:


 


1.                                       DEFINED TERMS 


 


(a)                                  All
capitalized terms used but not otherwise defined herein have the meanings given
to them in the Indenture or if not defined in the Indenture, in Exhibit B to
this Agreement.  All other terms
contained in this Agreement, unless the context indicates otherwise, have the
meanings provided for by the Code to the extent the same are used or defined
therein.


 


(b)                                 “Uniform
Commercial Code jurisdiction” means any jurisdiction that has adopted all
or substantially all of Article 9 as contained in the 2000 Official Text
of the Uniform Commercial Code, as recommended by the National Conference of
Commissioners on Uniform State Laws and the American Law Institute, together
with any subsequent amendments or modifications to the Official Text.


 


2.                                       GRANT OF LIEN 


 


(a)                                  To
secure the prompt and complete payment, performance and observance of all of
the Second Priority Lien Obligations and all renewals, extensions,
restructurings and refinancings thereof, and all obligations, liabilities, and
indebtedness of Grantors arising under this Agreement, each Grantor, hereby
grants, assigns, conveys, mortgages, pledges, hypothecates and transfers to
Collateral Agent, for the benefit of the Trustee and the Noteholders, a Lien
upon all of its right, title and interest in, to and under all personal
property and other assets, whether now owned by or owing to, or hereafter
acquired by or arising in favor of such Grantor (including under any trade
names, styles or derivations thereof), and whether owned or consigned by or to,
or leased from or to, such Grantor, and regardless of where located (all of
which being hereinafter collectively referred to as the “Collateral”),
including:


 


(i)                                     all
Accounts;


 


(ii)                                  all
Chattel Paper;


 


(iii)                               all
Documents;


 


(iv)                              all
General Intangibles (including all Payment Intangibles (as defined in the
Code), trademarks, patents, copyrights, other intellectual property and
licenses thereof, payment intangibles and Software);


 


(v)                                 all
Goods (including Inventory, Equipment and Fixtures);


 


(vi)                              all
Instruments;


 


(vii)                           all
Investment Property;


 


2

















 


(viii)                        all
Deposit Accounts (as defined in the Code) of such Grantor, including all
blocked accounts and all other bank accounts and all deposits therein;


 


(ix)                                all
money, cash or Cash Equivalents of such Grantor;


 


(x)                                   all
Supporting Obligations (as defined in the Code) and Letter-of-Credit Rights (as
defined in the Code) of such Grantor;


 


(xi)                                all
Intercompany Notes; and


 


(xii)                             to
the extent not otherwise included, all Proceeds (as defined in the Code), tort
claims, insurance claims and other rights to payments not otherwise included in
the foregoing and products of the foregoing and all accessions to,
substitutions and replacements for, and income, benefits, rents and profits of,
each of the foregoing and, to the extent related to any of the foregoing, all
books, correspondence, credit files, records, invoices, and other papers
(including without limitation all tapes, cards, computer runs and other papers
and documents in the possession or under the control of such Grantor or any
computer bureau or service company from time to time acting for such Grantor).


 


Notwithstanding anything herein to the contrary, in no
event shall the security interest granted hereunder attach to any lease,
license, contract, property rights or agreement to which any Grantor is a party
or any of its rights or interests thereunder if and for so long as the grant of
such security interest shall constitute or result in (a) the abandonment,
invalidation or unenforceability of any right, title or interest of any Grantor
therein or (b) in a breach or termination pursuant to the terms of, or a
default under, any such lease, license, contract, property rights or agreement
(other than to the extent that any provision resulting in such a breach,
termination or default would be rendered ineffective pursuant to Sections
9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code (or any successor
provision or provisions) of any relevant jurisdiction or any other applicable
law (including the Bankruptcy Code) or principles of equity); and none of the
property described in the first portion of this sentence shall constitute
“Collateral” for any purpose of this Agreement; provided, however,
that to the extent such security interest shall not so attach, the applicable
Grantor shall, in any event, be subject to the provisions of Section 5(a)(i)
below; provided further, however, that such security interest
shall attach immediately at such time as the condition causing such
abandonment, invalidation, unenforceability, breach termination or default
shall be remedied and, to the extent severable, shall attach immediately to any
portion of such lease, license, contract, property rights or agreement that
does not result in any of the consequences specified in (a) or (b) of the first
portion of this sentence.


 


(b)                                 In
addition, to secure the prompt and complete payment, performance and observance
of the Second Priority Lien Obligations, all renewals, extensions,
restructurings and refinancings thereof and all obligations, liabilities and
indebtedness of Grantors arising under this Agreement, and in order to induce
the Collateral Agent, Trustee and Noteholders as aforesaid, each Grantor hereby
grants to Collateral Agent, for the benefit of Trustee and Noteholders, a right
of setoff against the property of such Grantor held by Collateral Agent,
Trustee or any Noteholder, consisting of property described above in Section 2(a)
now or hereafter in the possession or custody of or in transit to Collateral
Agent, Trustee or any Noteholder, for any purpose, including safekeeping,
collection or 


 


3

















 


pledge, for the account
of such Grantor, or as to which such Grantor may have any right or power.


 


(c)                                  Notwithstanding
the foregoing, the Collateral covered by this Agreement shall not include any
equity interests in Borrower or any other Grantor, such equity interests being
subject to the Second Amended and Restated Pledge Agreement by and among
certain Grantors, the Collateral Agent and the Trustee.


 


3.                                       COLLATERAL AGENT’S RIGHTS:  LIMITATIONS ON COLLATERAL AGENT’S OBLIGATIONS 


 


(a)                                  Subject
to the terms of the Intercreditor Agreement, it is expressly agreed by each
Grantor that, anything herein or in any other Security Document to the contrary
notwithstanding, each Grantor shall remain liable under each of its respective
Contractual Obligations, including all Licenses, to observe and perform all the
conditions and obligations to be observed and performed by it thereunder; provided,
however, that such liability of any Grantor shall terminate with respect
to any Contractual Obligation upon the foreclosure thereof by Collateral Agent.  Neither Collateral Agent, Trustee nor any
Noteholder shall have any obligation or liability under any Contractual
Obligation by reason of or arising out of this Agreement or any other Security
Document or the granting herein of a Lien thereon or the receipt by Collateral
Agent, Trustee or any Noteholder of any payment relating to any Contractual
Obligation pursuant hereto.  Neither
Collateral Agent, Trustee nor any Noteholder shall be required or obligated in
any manner to perform or fulfill any of the obligations of any Grantor under or
pursuant to any Contractual Obligation, or to make any payment, or to make any
inquiry as to the nature or the sufficiency of any payment received by it or
the sufficiency of any performance by any party under any Contractual
Obligation, or to present or file any claims, or to take any action to collect
or enforce any performance or the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.


 


(b)                                 Subject
to the terms of the Intercreditor Agreement, Collateral Agent may at any time
after an Event of Default has occurred and is continuing (or if any rights of
set-off (other than set-offs against an Account arising under the Contract
giving rise to the same Account) or contra accounts may be asserted with
respect to the following), without prior notice to any Grantor, notify each
Grantor’s Account Debtors and all other Persons obligated on any of the
Collateral that Collateral Agent has a security interest therein, and that
payments shall be made directly to Collateral Agent, for the benefit of Trustee
and Noteholders.  At any time following
the occurrence and during the continuance of an Event of Default, upon the
request of Trustee, each Grantor shall so notify its Account Debtors and other
Persons obligated on the Collateral. 
Once any such notice has been given to any Account Debtor or other
Person obligated on the Collateral, none of the Grantors shall give any
contrary instructions to such Account Debtor or other Person without Collateral
Agent’s prior written consent.


 


(c)                                  Subject
to the terms of the Intercreditor Agreement, Collateral Agent may at any time,
upon prior notice to the relevant Grantor, in Collateral Agent’s own name, in
the name of a nominee of Collateral Agent or in the name of any Grantor
communicate (by mail, telephone, facsimile or otherwise) with Account Debtors,
parties to Contractual Obligations and obligors in respect of Instruments to
verify with such Persons, to Collateral Agent’s satisfaction, the existence,
amount, terms of, and any other matter 


 


4

















 


relating to, Accounts,
Instruments, Chattel Paper and/or payment intangibles.  If an Event of Default shall have occurred
and be continuing, each Grantor, at its own expense, shall cause the
independent certified public accountants then engaged by such Grantor to
prepare and deliver to Collateral Agent at any time and from time to time
promptly upon Collateral Agent’s request the following reports with respect to
such Grantor:  (i) a reconciliation of
all Accounts; (ii) an aging of all Accounts; (iii) trial balances; and (iv) a
test verification of such Accounts as Collateral Agent may request.  Each Grantor, at its own expense, shall
deliver to Collateral Agent the results of each physical verification, if any,
which such Grantor may in its discretion have made, or caused any other Person
to have made on its behalf, of all or any portion of its Inventory.


 


4.                                       REPRESENTATIONS AND WARRANTIES 


 


Each Grantor, jointly and severally, represents and
warrants that:


 


(a)                                  Each
Grantor has rights in and the power to transfer each item of the Collateral
upon which it purports to grant a Lien hereunder free and clear of any and all
Liens other than  Permitted Liens.


 


(b)                                 No
effective security agreement, financing statement, equivalent security or Lien
instrument or continuation statement covering all or any part of the Collateral
is on file or of record in any public office, except such as may have been
filed (i) by any Grantor in favor of Collateral Agent pursuant to this
Agreement, the Indenture or the Security Documents and (ii) in connection with
any other Permitted Liens.


 


(c)                                  This
Agreement is effective to create a valid and continuing Lien on and, upon the
filing of the appropriate financing statements in the filing offices listed on Schedule I
hereto or the entering into of three-party control agreements, as applicable, a
perfected Lien in favor of Collateral Agent, for the benefit of Trustee and
Noteholders, on the Collateral with respect to which a Lien may be perfected by
filing pursuant to the Code or by obtaining control through a control
agreement.  With respect to such
Collateral, such Lien is (after giving effect to the Intercreditor Agreement)
prior to all other Liens, except (i) First Priority Liens and (ii) Permitted
Liens that would be prior to Liens in favor of Collateral Agent for the benefit
of Trustee and Noteholders as a matter of law, and is enforceable as such as
against any and all creditors of and purchasers from any Grantor (other than
purchasers and lessees of Inventory in the ordinary course of business and
non-exclusive licensees of General Intangibles in the ordinary course of
business).


 


(d)                                 Schedule II
hereto lists all Instruments (other than checks), Documents and Letter of
Credit Rights (including any Intercompany Notes) of each Grantor.  All actions by each Grantor necessary or
desirable to protect and perfect the Lien of Collateral Agent on each item set
forth on Schedule II (including the delivery of all originals
thereof as required by Section 5(a)(ii) hereof) have been duly taken.  The Lien of Collateral Agent, for the
benefit of Trustee and Noteholders, on the Collateral listed on Schedule II
hereto is prior to all other Liens, except (i) First Priority Liens and (ii)
Permitted Liens that would be prior to the Liens in favor of Trustee as a
matter of law, and is enforceable as such against any and all creditors of and
purchasers from each Grantor.


 


(e)                                  Each
Grantor’s name as it appears in official filings in the state of its
incorporation or other organization, all prior names of each Grantor used
during the past five years, as 


 


5

















 


they appeared from time
to time in official filings in the state of its incorporation or other
organization, the type of entity of each Grantor (including corporation,
partnership, limited partnership or limited liability company), organizational
identification number issued by each Grantor’s state of incorporation or
organization or a statement that no such number has been issued, each Grantor’s
state of organization or incorporation, the mailing address of each Grantor as
of the date hereof, the location of each Grantor’s chief executive office,
principal place of business, other offices, all warehouses and premises where
Collateral is stored or located, and the locations of each Grantor’s books and
records concerning the Collateral are set forth on Schedule IIIA, Schedule IIIB,
Schedule IIIC, Schedule IIID, Schedule IIIE,
Schedule IIIF and Schedule IIIG, respectively,
hereto.  Each Grantor is a registered
organization and has only one state of incorporation or organization.


 


(f)                                    With
respect to the Accounts, except as specifically disclosed in writing to Collateral
Agent, (i) they represent bona fide sales of Inventory or rendering of services
to Account Debtors in the ordinary course of each Grantor’s business and are
not evidenced by (A) a judgment, (B) Instrument or (C) Chattel Paper (unless,
in the case of (B) of this clause (i), such item is listed on Schedule II
and delivered pursuant to Section 5(a)(ii) hereof); (ii) except as to
which there would not be a Material Adverse Effect, there are no set-offs,
claims or disputes existing or asserted with respect thereto and none of the
Grantors has made any agreement with any of its Account Debtors for any
extension of time for the payment thereof, any compromise or settlement for
less than the full amount thereof, any release of any of its Account Debtors from
liability therefor, or any deduction therefrom except a discount or allowance
allowed by any Grantor in the ordinary course of its business for prompt
payment and disclosed to Collateral Agent and Trustee; (iii) to each Grantor’s
knowledge, there are no facts, events or occurrences which in any way impair
the validity or enforceability thereof or could reasonably be expected to
reduce the amount payable thereunder to the extent that there would be a
Material Adverse Effect as shown on such Grantor’s books and records and any
invoices, statements or other collateral report delivered to Collateral Agent
and Trustee with respect thereto; (iv) none of the Grantors has received any
notice of proceedings or actions which are threatened or pending against any of
its Account Debtors which might result in any adverse change in such Account
Debtor’s financial condition and which would have a Material Adverse Effect on
any of the Grantors; (v) none of the Grantors has knowledge that any of its
Account Debtors is unable generally to pay its debts as they become due; and
(vi) to each Grantor’s knowledge, they constitute the legally valid and binding
obligation of the applicable Account Debtors. 
Further, with respect to the Accounts (x) the amounts shown on all
invoices, statements or other collateral reports which may be delivered to
Collateral Agent with respect thereto are actually owing to such Grantor as
indicated thereon and are not in any way contingent, except for such
contingencies as may exist under trade custom and practice; and (y) to each
Grantor’s knowledge, all of its Account Debtors have the capacity to contract.


 


(g)                                 With
respect to any Inventory, (i) such Inventory (other than Inventory leased or
rented to a third party) is located at one of the applicable Grantor’s
locations set forth on Schedule IIIA, Schedule IIIB, Schedule IIIC,
Schedule IIID, Schedule IIIE, Schedule IIIF
or Schedule IIIG, hereto, as applicable, (ii) no Inventory (other
than Inventory leased or rented to a third party) is now, or shall at any time
or times hereafter be stored at any other location without prior notice to
Collateral Agent, and the applicable Grantor will concurrently therewith
obtain, to the extent required by the Indenture, bailee, landlord 


 


6

















 


and mortgagee agreements,
(iii) each Grantor has good and merchantable title to its Inventory and
such Inventory is not subject to any Lien or security interest or document
whatsoever except for the Lien granted to Collateral Agent, for the benefit of
Trustee and Noteholders, and except for Permitted Liens, (iv) except as
specifically disclosed to Collateral Agent and Trustee, such Inventory is of
good and merchantable quality, free from any defects, ordinary wear and tear
excepted, (v) such Inventory is not subject to any licensing, patent, royalty,
trademark, trade name or copyright agreements with any third parties that would
require any consent of any third party upon sale or other disposition of that
Inventory or the payment of any monies to any third party upon such sale or
other disposition, and (vi) the completion of manufacture, sale or other
disposition of such Inventory by Collateral Agent following an Event of Default
shall not require the consent of any Person and shall not constitute a breach
or default under any contract or agreement to which any Grantor is a party or
to which such property is subject.


 


(h)                                 Schedule IVA
sets forth under the name of each Grantor a complete and correct list of all
issued Patents, registered Trademarks and registered Copyrights, and pending
applications for the foregoing, owned by such Grantor on the date hereof; and
all registrations listed in Schedule IVA are valid and in full
force and effect.  None of the Grantors
has any interest in, or title to, any Patent, Trademark or Copyright except as
set forth in Schedule IVA hereto. 
This Agreement is effective to create a valid and continuing Lien on
and, upon filing of appropriate financing statements in the filing offices
listed on Schedule I hereto and of the Copyright Security
Agreements with the United States Copyright Office and filing of the Patent
Security Agreements and the Trademark Security Agreements with the United
States Patent and Trademark Office, perfected Liens in favor of Collateral
Agent on each Grantor’ s Patents, Trademarks and Copyrights and such perfected
Liens are enforceable as such as against any and all creditors of and
purchasers from any Grantor.  Upon
filing of the Copyright Security Agreements with the United States Copyright
Office and filing of the Patent Security Agreements and the Trademark Security
Agreements with the United States Patent and Trademark Office and the filing of
appropriate financing statements listed on Schedule I hereto, all
action necessary or desirable to protect and perfect Collateral Agent ‘s Lien
on each Grantor’s Patents, Trademarks or Copyrights shall have been duly taken.


 


(i)                                     Schedule IVB
sets forth a complete and correct list of all material licenses granting
Grantors the right to use Intellectual Property in effect on the date hereof
(other than license agreements for “off the shelf” software).


 


5.                                       COVENANTS 


 


Without limiting any Grantor’s covenants and
agreements contained in the Indenture, each Grantor covenants and agrees with
Collateral Agent, for the benefit of Trustee and Noteholders, that from and
after the date of this Agreement and until the Termination Date:


 


(a)                                  Further
Assurances; Pledge of Instruments; Chattel Paper.


 


(i)                                     At
any time and from time to time, upon the written request of Collateral Agent
and at the sole expense of such Grantor, such Grantor shall promptly and duly
execute and deliver any and all such further instruments and documents and take
such further actions as Collateral Agent may deem desirable to obtain the full
benefits of this Agreement and of the rights and powers herein granted,
including 


 


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(A) using commercially
reasonable efforts to secure all consents and approvals necessary or
appropriate for the assignment to or for the benefit of Collateral Agent of any
material Contractual Obligation, including any License, held by such Grantor
and to enforce the security interests granted hereunder; and (B) filing any
financing or continuation statements under the Code with respect to the Liens
granted hereunder or under any other Security Document as to those
jurisdictions that are not Uniform Commercial Code jurisdictions.


 


(ii)                                  Following
the Discharge of Senior Lender Claims, unless Collateral Agent shall otherwise
consent in writing (which consent may be revoked), such Grantor shall deliver
to Collateral Agent all Collateral consisting of negotiable Documents,
certificated securities representing Collateral and Instruments (other than
checks but including Intercompany Notes) (in each case, (a) only if such item
of Collateral shall have a value greater than $200,000 and (b) accompanied by
stock powers, allonges or other instruments of transfer executed in blank)
promptly after such Credit Party receives the same; provided, that,
regardless of the value of any such individual item of Collateral, no greater
than $500,000 in the aggregate of all such items of Collateral may be withheld
from delivery at any one time.  Prior to
a Discharge of Senior Lender Claims all such property shall be delivered to the
Agent in accordance with the Intercreditor Agreement.


 


(iii)                               Such
Grantor shall, if required under the Credit Agreement with respect to First
Priority Liens, obtain waivers or subordinations of Liens from landlords,
bailees and mortgagees, and such Grantor shall in all instances obtain signed
acknowledgements of Collateral Agent ‘s Liens from bailees having possession of
such Grantor’s Goods that they hold for the benefit of Collateral Agent.


 


(iv)                              To
the extent required under the Credit Agreement with respect to First Priority
Liens, such Grantor shall use its commercially reasonable efforts to obtain
(and following the Discharge of Senior Lender Claims, to the extent required by
Collateral Agent, such Grantor shall use its commercially reasonable efforts to
obtain) authenticated control letters in form and substance satisfactory to
Collateral Agent from each issuer of uncertificated securities constituting
Collateral, securities intermediary, or commodities intermediary issuing or
holding any financial assets or commodities to or for such Grantor, such
control of the Collateral Agent being subject to the Intercreditor
Agreement.  Collateral Agent shall not
terminate such Grantor’s access to any such financial assets or commodities
except during the continuation of an Event of Default.


 


(v)                                 Following
the Discharge of Senior Lender Claims, if such Grantor is or becomes the
beneficiary of a letter of credit with a face value in excess of $250,000, such
Grantor shall promptly, and in any event within five (5) Business Days after
becoming a beneficiary, notify Collateral Agent thereof and enter into a
tri-party agreement with Collateral Agent and the issuer and/or confirmation
bank with respect to Letter-of-Credit Rights assigning such Letter-of-Credit
Rights to Collateral Agent and directing all payments thereunder to an account
specified by the Collateral Agent, all in form and substance reasonably
satisfactory to Collateral Agent.  The
requirement of this Section 5(a)(v) shall not apply to any letters of
credit that are supporting obligations for other Collateral.


 


8

















 


(vi)                              Such
Grantor shall use commercially reasonable efforts to grant Collateral Agent
control of all electronic Chattel Paper in accordance with the Code and all
“transferable records” as defined in each of the Uniform Electronic
Transactions Act and the Electronic Signatures in Global and National Commerce
Act, such control of the Collateral Agent being subject to the Intercreditor
Agreement.


 


(vii)                           Such
Grantor hereby irrevocably authorizes Collateral Agent at any time and from
time to time to file in any filing office in any Uniform Commercial Code
jurisdiction any initial financing statements and amendments thereto that (a)
indicate the Collateral (i) as all assets or personal property of such Grantor
or words of similar effect, regardless of whether any particular asset
comprised in the Collateral falls within the scope of Article 9 of the
Code or such jurisdiction, or (ii) as being of an equal or lesser scope or with
greater detail, and (b) contain any other information required by part 5 of
Article 9 of the Code for the sufficiency or filing office acceptance of
any financing statement or amendment, including (i) whether such Grantor is an
organization, the type of organization and any organization identification
number issued to such Grantor, and (ii) in the case of a financing statement
filed as a fixture filing or indicating Collateral as as-extracted collateral
or timber to be cut, a sufficient description of real property to which the
Collateral relates.  Such Grantor agrees
to furnish any such information to Collateral Agent promptly upon request.  Such Grantor also hereby ratifies its
authorization for Collateral Agent to have filed in any Uniform Commercial Code
jurisdiction any initial financing statements or amendments thereto if filed
prior to the date hereof.


 


(viii)                        Such
Grantor shall promptly, and in any event within five (5) Business Days after the
same is acquired by it, notify Collateral Agent of any Commercial Tort Claim
(as defined in the Code) acquired by it in excess of $250,000 and unless
otherwise consented by Collateral Agent (which consent may be revoked), such
Grantor shall enter into a supplement to this Agreement, granting to Collateral
Agent a Lien in such commercial tort claim.


 


(ix)                                Each
Grantor agrees to file all financing statements necessary to establish and
maintain a valid, enforceable and perfected security interest in the Collateral.


 


(b)                                 Maintenance
of Records.  Such Grantor shall keep
and maintain, at its own cost and expense, satisfactory and customary records
of the Collateral, including a record of any and all payments received and any
and all credits granted with respect to the Collateral and all other dealings
with the Collateral.  Such Grantor shall
mark its books and records pertaining to the Collateral to evidence this
Agreement and the Liens granted hereby. 
If any Grantor retains possession of any Instruments (including
Intercompany Notes) with Collateral Agent’s consent, such Instruments (other
than checks, but including Intercompany Notes) shall be marked with the
following legend:  “This writing and the
obligations evidenced or secured hereby are subject to the security interest of
The Bank of New York, as Collateral Agent, for the benefit of Trustee and
certain Noteholders.”


 


(c)                                  Covenants
Regarding Patent, Trademark and Copyright Collateral.


 


(i)                                     Such
Grantor shall notify Collateral Agent immediately if it knows or has reason to
know that any application or registration relating to any Patent, Trademark or 


 


9

















 


Copyright (now or
hereafter existing) is reasonably likely to become abandoned or dedicated, or
of any adverse determination or development (including the institution of, or
any such determination or development in, any proceeding in the United States
Patent and Trademark Office, the United States Copyright Office or any court)
regarding such Grantor’s ownership of any Patent, Trademark or Copyright, its
right to register the same, or to keep and maintain the same.


 


(ii)                                  In
no event shall such Grantor, either directly or through any agent, employee,
licensee or designee, file an application for the registration of any Patent,
Trademark or Copyright with the United States Patent and Trademark Office, the
United States Copyright Office or any similar office or agency without giving
Collateral Agent prior written notice thereof, and, upon request of Collateral
Agent, such Grantor shall execute and deliver any and all Patent Security
Agreements, Copyright Security Agreements or Trademark Security Agreements as
Collateral Agent may reasonably request to evidence Collateral Agent’s Lien on
such Patent, Trademark or Copyright, and the General Intangibles of such
Grantor relating thereto or represented thereby.


 


(iii)                               Such
Grantor shall take all commercially reasonable actions necessary or requested
by Collateral Agent to maintain and pursue (and not abandon) each application,
to obtain the relevant registration and to maintain the registration of each of
the Patents, Trademarks and Copyrights (now or hereafter existing), including
the filing of applications for renewal, affidavits of use, affidavits of
noncontestability and opposition and interference and cancellation proceedings,
unless such Grantor shall determine that such Patent, Trademark or Copyright is
not material to the conduct of its business.


 


(iv)                              In
the event that any of the Patent, Trademark or Copyright Collateral is
infringed upon, or misappropriated or diluted by a third party, each Grantor
shall comply with Section 5(a)(ix) of this Agreement.  Such Grantor shall, unless it shall
reasonably determine that such infringement, misappropriation or dilution of Patent,
Trademark or Copyright Collateral is in no way material to the conduct of its
business or operations, promptly sue for infringement, misappropriation or
dilution and to recover any and all damages for such infringement,
misappropriation or dilution, and shall take such other actions as Collateral
Agent shall reasonably deem appropriate under the circumstances to protect such
Patent, Trademark or Copyright Collateral.


 


(d)                                 Indemnification.  In any suit, proceeding or action brought by
Collateral Agent relating to any Collateral for any sum owing with respect
thereto or to enforce any rights or claims with respect thereto, such Grantor
will save, indemnify and keep Collateral Agent, Trustee and Noteholders
harmless from and against all expense (including reasonable attorneys’ fees and
expenses), loss or damage suffered by reason of any defense, set-off,
counterclaim, recoupment or reduction of liability whatsoever of its Account
Debtors or other Person obligated on the Collateral, arising out of a breach by
such Grantor of any obligation thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to, or in favor of, such
obligor or its successors from such Grantor, except in the case of Collateral
Agent, Trustee or Noteholders, to the extent such expense, loss, or damage is
attributable solely to the gross negligence or willful misconduct of Collateral
Agent, Trustee or Noteholders as finally determined by a court 


 


10

















 


of competent
jurisdiction. All such obligations of each Grantor shall be and remain
enforceable against and only against such Grantor and shall not be enforceable
against Collateral Agent, Trustee and Noteholders.


 


(e)                                  Compliance
with Terms of Accounts, etc.  In all
material respects, such Grantor will perform and comply with all obligations in
respect of the Collateral and all other agreements to which it is a party or by
which it is bound relating to the Collateral.


 


(f)                                    Limitation
on Liens on Collateral.  Such
Grantor will not create, permit or suffer to exist, and will defend the
Collateral against, and take such other action as is necessary to remove, any
Lien on any of the Collateral except Permitted Liens, and will defend the
right, title and interest of Collateral Agent in and to any of such Grantor’s
rights under the Collateral against the claims and demands of all Persons
whomsoever, except claims pursuant to the Permitted Liens.


 


(g)                                 Limitations
on Disposition.  Such Grantor will
not sell, license, lease, transfer or otherwise dispose of any of the
Collateral, or attempt or contract to do so except as permitted by
Section 4.10 of the Indenture.


 


(h)                                 Further
Identification of Collateral.  Such
Grantor will, if so requested by Collateral Agent (but in no event more than
once per Fiscal Year), furnish to Collateral Agent statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the Collateral as Collateral Agent may reasonably request, all
in such detail as Collateral Agent may reasonably specify.  Grantor shall promptly notify Collateral
Agent in writing upon acquiring any interest hereafter in property that is of a
type where a security interest or Lien must be or may be registered, recorded
or filed under, or notice thereof given under, any federal statute or
regulation and that is not already covered by this Agreement.


 


(i)                                     Notices.  Such Grantor will advise Collateral Agent
promptly, in reasonable detail (i) of any Lien (other than Permitted Liens) or
claim made or asserted against any of the Collateral, and (ii) of the
occurrence of any other event which could reasonably be expected to have a
Material Adverse Effect on the aggregate value of the Collateral or on the
Liens created hereunder or under any other Security Document.


 


(j)                                     Good
Standing Certificates.  Not less
frequently than once during each calendar year, such Grantor shall, unless
Collateral Agent shall otherwise consent (which consent may be revoked),
provide to Collateral Agent a certificate of good standing from its state of
incorporation or organization.


 


(k)                                  Organizational/Collateral
Location Changes; No Reincorporation. 
Such Grantor will give Collateral Agent prior written notice of any
change required to be made to Schedule IIIA, Schedule IIIB,
Schedule IIIC, Schedule IIID, Schedule IIIE,
Schedule IIIF or Schedule IIIG.  Without limiting the prohibitions on mergers
involving any Grantor as contained in the Indenture, none of the Grantors shall
reincorporate or reorganize itself under the laws of any jurisdiction other
than the jurisdiction in which it is incorporated or organized as of the date
hereof without 30 days prior written notice to Collateral Agent.


 


(l)                                     Terminations;
Amendments Not Authorized.  Such
Grantor acknowledges that it is not authorized to file any financing statement
or amendment or termination statement with 


 


11

















 


respect to any financing
statement without the prior written consent of Collateral Agent and agrees that
it will not do so without the prior written consent of Collateral Agent,
subject to such Grantor’s rights under Section 9-509(d)(2) of the Code.


 


(m)                               Authorized
Terminations.  Collateral Agent will
promptly deliver to such Grantor for filing or authorize such Grantor to
prepare and file termination statements and releases in accordance with Section 10.10
of the Indenture.


 


6.                                       BANK ACCOUNTS; COLLECTION OF ACCOUNTS AND PAYMENTS 


 


Prior to the Discharge of Senior Lender Claims, each
Grantor shall use its commercially reasonable efforts to enter into a control
agreement with each bank or financial institution holding a Deposit Account
(other than a payroll account which is a zero balance account) for such Grantor
establishing the Collateral Agent’s control within the meaning of
Section 9-104 of the Code if such an agreement has been established for
the benefit of the Agent and the Lenders. 
Following the Discharge of Senior Lender Claims, no Grantor shall
establish any Deposit Account (other than a payroll account which is a zero
balance account) with any bank or financial institution unless prior thereto
Collateral Agent and such Grantor shall have entered into a control agreement
satisfactory to Collateral Agent with such bank or financial institution.  For the avoidance of doubt, no Grantor shall
be obligated to enter into a lockbox agreement for the benefit of Collateral
Agent, and any lockbox agreement of Grantor existing in favor of Agent shall
not be for the benefit of Collateral Agent.


 


Subject to the foregoing and the terms of the
Intercreditor Agreement, each Grantor hereby agrees that all payments received
by Collateral Agent whether by cash, check, wire transfer or any other
instrument, made to such Deposit Accounts or otherwise received by Collateral
Agent and whether on the Accounts or as proceeds of other Collateral or
otherwise will be the sole and exclusive property of Noteholders.  Each Grantor, and any of its Affiliates,
employees, agents and other Persons acting for or in concert with such Grantor
shall, acting as trustee for Collateral Agent, receive, as the sole and
exclusive property of Collateral Agent, Trustee and Noteholders, any moneys,
checks, notes, drafts or other payments relating to and/or constituting
proceeds of Accounts or other Collateral which come into the possession or
under the control of such Grantor or any Affiliates, employees, agent, or other
Persons acting for or in concert with such Grantor, and immediately upon
receipt thereof, such Grantor or such Persons shall deposit the same or cause
the same to be deposited in kind, in a Deposit Account or other account subject
to a blocked account, lockbox or similar agreement satisfactory to Collateral
Agent.


 


Following the Discharge of Senior Lender Claims, each
Grantor shall close each of its Deposit Accounts (and promptly establish
replacement deposit accounts with a financial institution which has executed,
or is willing to execute, a Bank Agency and Control Agreement) maintained
with any financial institution which is the subject of a notice from Collateral
Agent that the creditworthiness of such financial institution or any of its
affiliates is no longer acceptable to Collateral Agent, or that the operating
performance, funds transfer or availability procedures or performance with
respect to any blocked account, lockbox or similar agreement of such financial
institution is no longer acceptable in Collateral Agent’s reasonable judgment.


 


7.                                       COLLATERAL AGENT’S APPOINTMENT AS
ATTORNEY-IN-FACT 


 


On the Closing Date each Grantor shall execute and
deliver to Collateral Agent a power of attorney (the “Power of Attorney”)
substantially in the form attached hereto as Exhibit A.  The


 


12

















 


power of attorney granted pursuant to the Power of
Attorney is a power coupled with an interest and shall be irrevocable until the
Termination Date.  The powers conferred
on Collateral Agent, for the benefit of Trustee and Noteholders, under the
Power of Attorney are solely to protect Collateral Agent’s interests (for the
benefit of Trustee and Noteholders) in the Collateral and shall not impose any
duty upon Collateral Agent to exercise any such powers.  Collateral Agent agrees that (a) except for
the powers granted in clause (h) of the Power of Attorney, it shall not
exercise any power or authority granted under the Power of Attorney unless an
Event of Default has occurred and is continuing, and (b) Collateral Agent shall
account for any moneys received by Collateral Agent in respect of any
foreclosure on or disposition of Collateral pursuant to the Power of Attorney
provided that Collateral Agent shall not have any duty as to any Collateral,
and Collateral Agent shall be accountable only for amounts it actually receives
as a result of the exercise of such powers. 
NEITHER THE COLLATERAL AGENT NOR ITS OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS OR REPRESENTATIVES SHALL BE RESPONSIBLE TO ANY GRANTOR FOR ANY ACT OR
FAILURE TO ACT UNDER ANY POWER OF ATTORNEY OR OTHERWISE, EXCEPT IN RESPECT OF
DAMAGES ATTRIBUTABLE SOLELY TO THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION, NOR FOR ANY
PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES.  The Collateral Agent shall not exercise the
power of attorney in a manner inconsistent with the Intercreditor Agreement.


 


8.                                       REMEDIES: 
RIGHTS UPON DEFAULT 


 


(a)                                  In
addition to all other rights and remedies granted to it under this Agreement,
the Indenture and under any other instrument or agreement securing, evidencing
or relating to any of the Second Priority Lien Obligations, if any Event of
Default shall have occurred and be continuing, Collateral Agent may, subject to
the terms of the Intercreditor Agreement, exercise all rights and remedies of a
secured party under the Code.  Without
limiting the generality of the foregoing, each Grantor expressly agrees that in
any such event Collateral Agent, without demand of performance or other demand,
advertisement or notice of any kind (except the notice specified below of time
and place of public or private sale) to or upon any Grantor or any other Person
(all and each of which demands, advertisements and notices are hereby expressly
waived to the maximum extent permitted by the Code and other applicable law),
may forthwith (personally or through its agents) enter upon the premises where
any Collateral is located through self-help, without judicial process, without
first obtaining a final judgment or giving any Grantor or any other Person
notice and opportunity for a hearing on Collateral Agent’s claim or action and
may take possession of, collect, receive, assemble, process, appropriate,
remove and realize upon the Collateral, or any part thereof, and may forthwith
sell, lease, license, assign, give an option or options to purchase, or sell or
otherwise dispose of and deliver said Collateral (or contract to do so), or any
part thereof, in one or more parcels at a public or private sale or sales, at
any exchange at such prices as it may deem acceptable, for cash or on credit or
for future delivery without assumption of any credit risk.  Collateral Agent shall have the right upon
any such public sale or sales and, to the extent permitted by law, upon any
such private sale or sales, to purchase for the benefit of Trustee and
Noteholders, the whole or any part of said Collateral so sold, free of any
right or equity of redemption, which equity of redemption each Grantor hereby
releases.  Such sales may be adjourned
and continued from time to time with or without notice.  Collateral Agent shall have the right to
conduct such sales on each 


 


13

















 


Grantor’s premises or
elsewhere and shall have the right to use each Grantor’s premises without
charge for such time or times as Collateral Agent deems necessary or advisable.


 


If any Event of Default shall have occurred and be
continuing, each Grantor further agrees, at Collateral Agent’s request, subject
to the terms of the Intercreditor Agreement, to assemble the Collateral and
make it available to Collateral Agent at a place or places designated by
Collateral Agent which are reasonably convenient to Collateral Agent and such
Grantor, whether at such Grantor’s premises or elsewhere.  Without limiting the foregoing, Collateral
Agent shall, subject to the terms of the Intercreditor Agreement, also have the
right to require that each Grantor store and keep any Collateral pending
further action by Collateral Agent, and while Collateral is so stored or kept,
provide such guards and maintenance services as shall be necessary to protect
the same and to preserve and maintain Collateral in good condition.  Until Collateral Agent is able to effect a
sale, lease, license or other disposition of Collateral, Collateral Agent shall
have the right to hold or use Collateral, or any part thereof, to the extent
that it deems appropriate for the purpose of preserving Collateral or its value
or for any other purpose deemed appropriate by Collateral Agent.  Collateral Agent shall not have any
obligation to any Grantor to maintain or preserve the rights of any Grantor as
against third parties with respect to Collateral while Collateral is in the
possession of Collateral Agent. 
Collateral Agent may, subject to the terms of the Intercreditor
Agreement, seek the appointment of a receiver or keeper to take possession of
Collateral and to enforce any of Collateral Agent’s remedies (for the benefit
of Trustee and Noteholders), with respect to such appointment without prior
notice or hearing as to such appointment. 
To the maximum extent permitted by applicable law, each Grantor waives
all claims, damages, and demands against Collateral Agent, Trustee and
Noteholders arising out of the repossession, retention or sale of the
Collateral except such as arise solely out of the gross negligence or willful
misconduct of Collateral Agent, Trustee or Noteholders as finally determined by
a court of competent jurisdiction.  Each
Grantor agrees that ten (10) days prior notice by Collateral Agent of the time
and place of any public sale or of the time after which a private sale may take
place is reasonable notification of such matters.  Notwithstanding any such notice of sale, Collateral Agent shall
not be obligated to make any sale of Collateral.  In connection with any sale, lease, license or other disposition
of Collateral, Collateral Agent may disclaim any warranties that might arise in
connection therewith and Collateral Agent shall have no obligation to provide
any warranties at such time.  Each
Grantor shall remain liable for any deficiency if the proceeds of any sale or
disposition of the Collateral are insufficient to pay all Second Priority Lien
Obligations, including any attorneys’ fees or other expenses incurred by
Collateral Agent to collect such deficiency.


 


(b)                                 Except
as otherwise specifically provided herein, each Grantor hereby waives
presentment, demand, protest or any notice (to the maximum extent permitted by
applicable law) of any kind in connection with this Agreement or any
Collateral.


 


(c)                                  To
the extent that applicable law imposes duties on Collateral Agent to exercise
remedies in a commercially reasonable manner, each Grantor acknowledges and
agrees that it is not commercially unreasonable for Collateral Agent (i) to
fail to incur expenses reasonably deemed significant by Collateral Agent to
prepare Collateral for disposition or otherwise to complete raw material or
work in process into finished goods or other finished products for disposition,
(ii) if not required by other law, to fail to obtain governmental or third
party consents for the collection or disposition of Collateral to be 


 


14

















 


collected or disposed of,
(iii) to fail to exercise collection remedies against Account Debtors or other
Persons obligated on Collateral or to remove Liens on or any adverse claims
against Collateral, (iv) to exercise collection remedies against Account
Debtors and other Persons obligated on Collateral directly or through the use
of collection agencies and other collection specialists, (v) to advertise
dispositions of Collateral through publications or media of general
circulation, whether or not the Collateral is of a specialized nature, (vi) to
contact other Persons, whether or not in the same business as any Grantor, for
expressions of interest in acquiring all or any portion of such Collateral,
(vii) to hire one or more professional auctioneers to assist in the disposition
of Collateral, whether or not the Collateral is of a specialized nature, (viii)
to dispose of Collateral by utilizing internet sites that provide for the
auction of assets of the types included in the Collateral or that have the
reasonable capacity of doing so, or that match buyers and sellers of assets,
(ix) to dispose of assets in wholesale rather than retail markets, (x) to
disclaim disposition warranties, such as title, possession or quiet enjoyment,
(xi) to purchase insurance or credit enhancements to insure Collateral Agent
against risks of loss, collection or disposition of Collateral or to provide to
Collateral Agent a guaranteed return from the collection or disposition of
Collateral, or (xii) to the extent deemed appropriate by Collateral Agent, to
obtain the services of other brokers, investment bankers, consultants and other
professionals to assist Collateral Agent in the collection or disposition of
any of the Collateral.  Each Grantor
acknowledges that the purpose of this Section 8(c) is to provide
non-exhaustive indications of what actions or omissions by Collateral Agent
would be commercially reasonable in Collateral Agent’s exercise of remedies
against the Collateral and that other actions or omissions by Collateral Agent
shall not be deemed commercially unreasonable solely on account of not being
indicated in this Section 8(c). 
Without limitation upon the foregoing, nothing contained in this
Section 8(c) shall be construed to grant any rights to any Grantor or to
impose any duties on Collateral Agent that would not have been granted or
imposed by this Agreement or by applicable law in the absence of this Section 8(c).


 


(d)                                 Collateral
Agent shall not be required to make any demand upon, or pursue or exhaust any
of their rights or remedies against, any Grantor, any other obligor, guarantor,
pledgor or any other Person with respect to the payment of the Second Priority
Lien Obligations or to pursue or exhaust any of their rights or remedies with
respect to any Collateral therefor or any direct or indirect guarantee
thereof.  Collateral Agent shall not be
required to marshal the Collateral or any guarantee of the Second Priority Lien
Obligations or to resort to the Collateral or any such guarantee in any
particular order, and all of its and their rights hereunder or under any other
Security Document shall be cumulative. 
To the extent it may lawfully do so, each Grantor absolutely and
irrevocably waives and relinquishes the benefit and advantage of, and covenants
not to assert against Collateral Agent, any valuation, stay, appraisement,
extension, redemption or similar laws and any and all rights or defenses it may
have as a surety now or hereafter existing which, but for this provision, might
be applicable to the sale of any Collateral made under the judgment, order or
decree of any court, or privately under the power of sale conferred by this
Agreement, or otherwise.


 


(e)                                  Subject
to the terms of the Intercreditor Agreement, if the Collateral Agent collects
any money pursuant to this Section 8, it shall pay out the money in the
following order:


 


15

















 


First, to the
Collateral Agent, its agents and attorneys for amounts due under
Section 28, including payment of all compensation, expense and liabilities
incurred, and all advances made by the Collateral Agent and the costs and
expenses and collection, and


 


Second, to the
Trustee for application and distribution in accordance with the Indenture.


 


9.                                       GRANT OF LICENSE TO USE INTELLECTUAL PROPERTY
COLLATERAL 


 


For the purpose of enabling Collateral Agent to
exercise rights and remedies under Section 8 hereof (including,
without limiting the terms of Section 8 hereof, in order to take
possession of, hold, preserve, process, assemble, prepare for sale, market for
sale, sell or otherwise dispose of Collateral) at such time as Collateral Agent
shall be lawfully entitled to exercise such rights and remedies, each Grantor
hereby grants to Collateral Agent, for the benefit of Trustee and Noteholders,
an irrevocable, nonexclusive license (exercisable without payment of royalty or
other compensation to such Grantor) to use, license or sublicense any
Intellectual Property now owned or hereafter acquired by such Grantor, and
wherever the same may be located, and including in such license access to all
media in which any of the licensed items may be recorded or stored and to all
computer software and programs used for the compilation or printout thereof and
an irrevocable license (exercisable without payment of rent or other
compensation to such Grantor) to use and occupy all real estate owned or leased
by such Grantor; provided, however, that if and to the extent that the
grant of license to Collateral Agent would result in a violation of any
agreements relating to the Intellectual Property or the real estate or cause
any such agreement to be void or voidable, the license granted hereunder shall be
deemed limited to only such license or rights as Grantors may be authorized to
give without consent under such agreements without breaching or voiding such
agreements.


 


10.                                 LIMITATION ON COLLATERAL AGENT’S DUTY IN RESPECT
OF COLLATERAL 


 


Collateral Agent shall use reasonable care with
respect to the Collateral in its possession or under its control.  Collateral Agent shall not have any other
duty as to any Collateral in its possession or control or in the possession or
control of any agent or nominee of Collateral Agent, or any income thereon or
as to the preservation of rights against prior parties or any other rights
pertaining thereto.  Collateral Agent
shall not be liable or responsible for any loss or damage to any of the
Collateral, or for any diminution in the value thereof, by reason of the act or
omission of any warehousemen, carrier, forwarding agency, consignee or other
agent or bailee selected by Collateral Agent in good faith.


 


11.                                 REINSTATEMENT  


 


This Agreement shall remain in full force and effect
and continue to be effective should any petition be filed by or against any
Grantor for liquidation or reorganization, should any Grantor become insolvent
or make an assignment for the benefit of any creditor or creditors or should a
receiver or trustee be appointed for all or any significant part of any
Grantor’s assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Second Priority Lien
Obligations, or any part thereof, is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any obligee of
the Second Priority Lien Obligations, whether as a “voidable preference,”
“fraudulent conveyance,” or otherwise, all as though such payment or
performance had not been made.  In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the 


 


16

















 


Second Priority Lien Obligations shall be reinstated
and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.


 


12.                                 SURETYSHIP WAIVERS BY GRANTOR; OBLIGATIONS ABSOLUTE 


 


(a)                                  Except
as expressly provided herein, each Grantor waives demand, notice, protest,
notice of acceptance of this Agreement, notice of loans made, credit extended,
collateral received or delivered or other action taken in reliance hereon and
all other demands and notices of any description thereof, all in such manner
and at such time or times as Collateral Agent may deem advisable.  Collateral Agent shall have no duty as to
the collection or protection of the Collateral or any income thereon, nor as to
the preservation of rights against prior parties, nor as to the preservation of
any rights pertaining thereto beyond the safe custody thereof.


 


(b)                                 All
rights of Collateral Agent hereunder, the security interests and all
obligations of each Grantor hereunder shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Indenture, any
Security Document, any agreement with respect to any of the Second Priority
Lien Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Second Priority Lien Obligations, or any other
amendment or waiver of or any consent to any departure from the Indenture, any
other Security Document, or any other agreement or instrument, (c) any
exchange, release or non-perfection of any Lien on other collateral, or any
release or amendment or waiver of or consent under or departure from or any
acceptance of partial payment thereon and or settlement, compromise or
adjustment of any Second Priority Lien Obligation or of any guarantee, securing
or guaranteeing all or any of the Second Priority Lien Obligations, or (d) any
other circumstance that might otherwise constitute a defense available to, or a
discharge of, such Grantor in respect of the Second Priority Lien Obligations
or this Agreement.


 


13.                                 EXPENSES AND ATTORNEY’S FEES 


 


Without limiting any Grantor’s obligations under the
Indenture or the other Security Documents, Grantors agree, jointly and
severally, to promptly pay all fees, costs and expenses (including reasonable
attorneys’ fees and expenses) incurred in connection with (a) protecting,
storing, warehousing, appraising, insuring, handling, maintaining and shipping
the Collateral, (b) creating, perfecting, maintaining and enforcing Collateral
Agent’s Liens and (c) collecting, enforcing, retaking, holding, preparing for
disposition, processing and disposing of Collateral.


 


14.                                 NOTICES 


 


Any notice or other communication required shall be in
writing addressed to the respective party as set forth below and may be
personally served, telecopied, sent by overnight courier service or U.S. mail
and shall be deemed to have been given: 
(a) if delivered in person, when delivered; (b) if delivered by fax, on
the date of transmission if transmitted on a Business Day before 4:00 p.m.
New York time;  (c) if delivered by overnight courier, one (1) Business Day
after delivery to the courier properly addressed; or (d) if delivered by U.S.
mail, four (4) Business Days after deposit with postage prepaid and properly
addressed.


 


Notices shall be addressed as follows:


 


17

















 


	
  If to any Grantor:

  	
   

  	
  c/o Dayton Superior Corporation

  
	
   

  	
   

  	
  777 Washington Village Drive, Suite 130

  
	
   

  	
   

  	
  Dayton, Ohio 45459

  
	
   

  	
   

  	
  Attn:  Edward
  Puisis

  
	
   

  	
   

  	
  Fax No.: 
  (937) 428-9115

  
	
   

  	
   

  	
   

  
	
  With
  a copy to:

  	
   

  	
  LATHAM
  & WATKINS LLP

  
	
   

  	
   

  	
  885
  Third Avenue, Suite 1000

  
	
   

  	
   

  	
  New
  York, New York  10022

  
	
   

  	
   

  	
  Attn:  Kirk Davenport, Esq.

  
	
   

  	
   

  	
  Fax:  (212) 751-4864

  
	
   

  	
   

  	
   

  
	
  If
  to Trustee

  	
   

  	
  THE
  BANK OF NEW YORK

  
	
   

  	
   

  	
  101
  Barclay Street – 8W

  
	
   

  	
   

  	
  New
  York, New York 10286

  
	
   

  	
   

  	
  Attention:
  Corporate Trust Administration

  
	
   

  	
   

  	
  Facsimile:
  (212) 815-5707

  



 


15.                                 SEVERABILITY 


 


The invalidity, illegality, or unenforceability in any
jurisdiction of any provision under the Indenture or this Agreement shall not
affect or impair the remaining provisions in the Indenture or this Agreement.


 


16.                                 NO WAIVER; CUMULATIVE REMEDIES 


 


Collateral Agent shall not, by any act, delay,
omission or otherwise, be deemed to have waived any of its rights or remedies
hereunder, and no waiver shall be valid unless in writing, signed by Collateral
Agent and then only to the extent therein set forth.  A waiver by Collateral Agent of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy that
Collateral Agent would otherwise have had on any future occasion.  No failure to exercise nor any delay in
exercising on the part of Collateral Agent or Trustee, any right, power or
privilege hereunder, shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or future exercise thereof or the exercise of any other right, power or
privilege.  The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law.  None of the terms or provisions of this
Agreement may be waived, altered, modified or amended except by an instrument
in writing, duly executed by Collateral Agent and each Grantor, the Collateral
Agent and the Trustee (acting in accordance with the Indenture).


 


17.                                 LIMITATION BY LAW 


 


All rights, remedies and powers provided in this
Agreement may be exercised only to the extent that the exercise thereof does
not violate any applicable provision of law, and all the provisions of this
Agreement are intended to be subject to all applicable mandatory provisions of
law that may be controlling and to be limited to the extent necessary so that
they shall not render this Agreement invalid, unenforceable, in whole or in
part, or not entitled to be recorded, registered or filed under the provisions
of any applicable law.


 


18

















 


18.                                 TERMINATION OF THIS AGREEMENT 


 


Subject to Section 11 hereof, this
Agreement shall terminate upon the Termination Date. Following the termination
of this agreement, Collateral Agent shall, upon reasonable request, and at the
sole cost and expense of Grantors, execute such termination statements and
other releases (in form and substance reasonably satisfactory to Collateral
Agent) with respect to security granted hereunder, and Collateral Agent shall
at such time transfer any Instrument or Chattel Paper or other item of
Collateral delivered to the Collateral Agent hereunder to the Grantors, without
recourse and without representation of warranty.


 


19.                                 SUCCESSORS AND ASSIGNS 


 


This Agreement and all obligations of each Grantor
hereunder shall be binding upon the successors and permitted assigns of such
Grantor (including any debtor-in-possession on behalf of such Grantor) and
shall, together with the rights and remedies of Collateral Agent, for the
benefit of Trustee and Noteholders, hereunder, inure to the benefit of Trustee
and Noteholders, all future holders of any instrument evidencing any of the
Second Priority Lien Obligations and their respective successors and permitted
assigns except that Grantors may not assign any of their rights or obligations
hereunder without the written consent of the Collateral Agent and Trustee
(acting in accordance with the provisions of the Indenture) which assignment
without such consent shall be void.  No
sales of participations, other sales, assignments, transfers or other
dispositions of any agreement governing or instrument evidencing the Second
Priority Lien Obligations or any portion thereof or interest therein shall in
any manner impair the Lien granted to Collateral Agent, for the benefit of
Trustee and Noteholders, hereunder.


 


20.                                 COUNTERPARTS 


 


This Agreement and any amendments, waivers, consents
or supplements may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all of which counterparts together
shall constitute but one in the same instrument.  This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.


 


21.                                 GOVERNING LAW 


 


(a)                                  THIS
AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES WHICH SHALL BE DEEMED
NOT TO INCLUDE SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.


 


(b)                                 EACH
GRANTOR HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN NEW YORK COUNTY, STATE OF NEW YORK AND IRREVOCABLY AGREES THAT,
SUBJECT TO COLLATERAL AGENT’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE OTHER SECURITY DOCUMENTS SHALL BE LITIGATED
IN SUCH COURTS.  EACH GRANTOR EXPRESSLY
SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY
DEFENSE OF FORUM NON CONVENIENS.  EACH 


 


19

















 


GRANTOR HEREBY WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF
PROCESS  MAY BE
MADE UPON SUCH GRANTOR BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, ADDRESSED TO SUCH GRANTOR, AT THE ADDRESS SET FORTH IN THIS
AGREEMENT AND SERVICE  SO MADE SHALL BE COMPLETE TEN (10) DAYS
AFTER THE SAME HAS BEEN POSTED.  IN ANY LITIGATION, TRIAL, ARBITRATION OR OTHER
DISPUTE RESOLUTION PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER
SECURITY DOCUMENTS, ALL THEN CURRENT DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
OF GRANTORS, CREDIT PARTIES OR ANY OF THEIR RESPECTIVE SUBSIDIARIES SHALL BE
DEEMED TO BE EMPLOYEES OR MANAGING AGENTS OF GRANTORS OR SUCH CREDIT PARTIES
FOR PURPOSES OF ALL APPLICABLE LAW OR COURT RULES REGARDING THE PRODUCTION OF
WITNESSES BY NOTICE FOR TESTIMONY (WHETHER IN A DEPOSITION, AT TRIAL OR
OTHERWISE).  GRANTORS AND CREDIT PARTIES
AGREE THAT COLLATERAL AGENT’S OR TRUSTEE’S COUNSEL IN ANY SUCH DISPUTE
RESOLUTION PROCEEDING MAY EXAMINE ANY OF THESE INDIVIDUALS AS IF UNDER
CROSS-EXAMINATION AND THAT ANY DISCOVERY DEPOSITION OF ANY OF THEM MAY BE
USED IN THAT PROCEEDING AS IF IT WERE AN EVIDENCE DEPOSITION.  GRANTORS AND CREDIT PARTIES IN ANY EVENT WILL USE ALL COMMERCIALLY REASONABLE
EFFORTS TO PRODUCE IN ANY SUCH DISPUTE RESOLUTION PROCEEDING, AT THE TIME AND
IN THE MANNER REQUESTED BY COLLATERAL AGENT, ALL PERSONS, DOCUMENTS (WHETHER IN
TANGIBLE, ELECTRONIC OR OTHER FORM) OR OTHER THINGS UNDER THEIR CONTROL AND
RELATING TO THE DISPUTE.


 


22.                                 WAIVER OF JURY TRIAL 


 


EACH GRANTOR HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS SECURITY
AGREEMENT AND THE OTHER SECURITY DOCUMENTS. 
EACH GRANTOR ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO
ENTER INTO A BUSINESS RELATIONSHIP, AND THAT COLLATERAL AGENT HAS RELIED ON THE
WAIVER IN ENTERING INTO THIS SECURITY AGREEMENT AND THE OTHER SECURITY
DOCUMENTS AND WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE
DEALINGS.  EACH GRANTOR WARRANTS AND
REPRESENTS THAT SUCH GRANTOR HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY
WAIVER WITH LEGAL COUNSEL, AND THAT SUCH GRANTOR KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS.


 


23.                                 HEADINGS 


 


Section and subsection headings are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purposes or be given substantive effect.


 


24.                                 NO STRICT CONSTRUCTION 


 


The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. 
In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be 


 


20

















 


construed as if drafted jointly by the parties hereto
and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any provisions of this Agreement.


 


25.                                 ADVICE OF COUNSEL 


 


Each of the parties represents to each other party
hereto that it has discussed this Agreement and, specifically, the provisions
of Section 21 and Section 22, with its counsel.


 


26.                                 BENEFIT OF LIENS 


 


All Liens granted or contemplated hereby shall be for
the benefit of Collateral Agent, Trustee and Noteholders, and all proceeds or
payments realized from Collateral in accordance herewith shall be applied to
the Second Priority Lien Obligations in accordance with the terms of the
Intercreditor Agreement, Indenture and the Security Documents.


 


27.                                 INTERCREDITOR AGREEMENT 


 


Notwithstanding anything herein to the contrary, the
lien and security interest granted to the Collateral Agent pursuant to this
Agreement and the exercise of any right or remedy by the Collateral Agent
hereunder, in each case in respect of any collateral constituting Noteholder
Collateral (as defined in the Intercreditor Agreement) are subject in all
respects to the provisions of the Intercreditor Agreement.  In the event of any conflict between the
terms of the Intercreditor Agreement and this Agreement, the terms of the
Intercreditor Agreement shall govern  No
failure to specify or preface any clause herein with the words “subject to the
terms of the Intercreditor Agreement” or words of like import shall be deemed
to imply that any such clause or any right or remedy of the Collateral Agent
hereunder is not subject in all respects to the terms and provisions of the
Intercreditor Agreement.


 


28.                                 COLLATERAL AGENCY


 


The Trustee hereby designates and appoints the
Collateral Agent to act as the Collateral Agent under the Security Documents,
and authorizes the Collateral Agent to take such actions on its behalf under
the provisions of the Security Documents and to exercise such powers and
perform such duties as are expressly delegated to the Collateral Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto.  The rights, duties
and obligations of the Collateral Agent with respect to the Trustee and the
Noteholders shall be identical to the rights, duties and obligations of the
Trustee with respect to the Noteholders as specified in Article 7 of the
Indenture (including but not limited to Section 7.07 of the Indenture), mutatis mutandis.  Notwithstanding any provision to the
contrary in any Security Document, the Collateral Agent shall not have any
duties or responsibilities, except those expressly set forth in the Security
Documents, and no implied covenants, functions or responsibilities, fiduciary
or otherwise, shall be read into any of the Security Documents or otherwise
exist against the Collateral Agent. 
Notwithstanding any provision to the contrary in any Security Document,
the Collateral Agent shall not be required to exercise any discretionary rights
or remedies under any of the Security Documents or give any consent under any
of the Security Documents or enter into any agreement amending, modifying, supplementing
or waiving any provision of any Security Document unless it shall have been
directed to do so by the Trustee (with the consent of the Noteholders, to the
extent required under the Indenture).


 


21

















 


IN
WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.


 


	
   

  	
  DAYTON
  SUPERIOR CORPORATION,

  
	
   

  	
  as a
  Grantor

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J.
  Puisis

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Edward J.
  Puisis

  	
   

  	
   

  
	
   

  	
   

  	
  Title:Vice
  President and Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  AZTEC
  CONCRETE ACCESSORIES, INC.,

  
	
   

  	
  as a
  Grantor

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Edward J. Puisis 

  	
   

  	
   

  
	
   

  	
  Name:
  Edward J. Puisis

  	
   

  	
   

  
	
   

  	
  Title:  Vice
  President and Chief Financial 

  	
   

  	
   

  
	
   

  	
   

  	
  Officer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DAYTON
  SUPERIOR SPECIALTY CHEMICAL CORP.,

  
	
   

  	
  as a
  Grantor

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Edward J. Puisis 

  	
   

  	
   

  
	
   

  	
  Name:
  Edward J. Puisis

  	
   

  	
   

  
	
   

  	
  Title:  Vice
  President and Chief Financial 

  	
   

  	
   

  
	
   

  	
   

  	
  Officer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DUR-O-WAL,
  INC.,

  	
   

  	
   

  
	
   

  	
  as a
  Grantor

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Edward J. Puisis 

  	
   

  	
   

  
	
   

  	
  Name:
  Edward J. Puisis

  	
   

  	
   

  
	
   

  	
  Title:  Vice
  President and Chief Financial 

  	
   

  	
   

  
	
   

  	
   

  	
  Officer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SOUTHERN
  CONSTRUCTION PRODUCTS, INC.,

  
	
   

  	
  as a
  Grantor

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Edward J. Puisis 

  	
   

  	
   

  
	
   

  	
  Name:
  Edward J. Puisis

  	
   

  	
   

  
	
   

  	
  Title:  Vice
  President and Chief Financial 

  	
   

  	
   

  
	
   

  	
   

  	
  Officer

  	
   

  	
   

  



 


 


SIGNATURE
PAGE TO DAYTON SECURITY AGREEMENT


 

















 


	
   

  	
  SYMONS
  CORPORATION,

  	
   

  	
   

  
	
   

  	
  as a
  Grantor

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Edward J. Puisis 

  	
   

  	
   

  
	
   

  	
  Name: Edward
  J. Puisis

  	
   

  	
   

  
	
   

  	
  Title:  Vice
  President and Chief Financial 

  	
   

  	
   

  
	
   

  	
   

  	
  Officer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TREVECCA
  HOLDINGS, INC.,

  	
   

  	
   

  
	
   

  	
  as a
  Grantor

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J.
  Puisis 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Edward
  J. Puisis

  	
   

  	
   

  
	
   

  	
   

  	
  Title:    Vice
  President and Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK,

  	
   

  	
   

  
	
   

  	
  as
  Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Cynthia
  Chaney 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Cynthia
  Chaney

  	
   

  	
   

  
	
   

  	
   

  	
  Title:    Vice
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK,

  	
   

  	
   

  
	
   

  	
  as
  Collateral Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Cynthia
  Chaney 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Cynthia
  Chaney

  	
   

  	
   

  
	
   

  	
   

  	
  Title:    Vice
  President

  	
   

  	
   

  



 


 


[SIGNATURE
PAGE TO DAYTON SECURITY AGREEMENT]


 

















 


EXHIBIT A


 


POWER OF ATTORNEY


 


This Power of Attorney is executed and delivered by
each of DAYTON SUPERIOR CORPORATION, AZTEC CONCRETE ACCESSORIES, INC., DAYTON
SUPERIOR SPECIALTY CHEMICAL CORP., DUR-O-WAL, INC., SOUTHERN CONSTRUCTION
PRODUCTS, INC., SYMONS CORPORATION and TREVECCA HOLDINGS, INC. (referred to
herein individually as “Grantor” and collectively as “Grantors”)
to THE BANK OF NEW YORK (hereinafter referred to as “Attorney”), as
collateral agent under that certain Second Amended and Restated Security
Agreement, dated as of January 30, 2004, by and among Grantors, The Bank
Of New York, as collateral agent, and The Bank Of New York, as trustee.  No person to whom this Power of Attorney is
presented, as authority for Attorney to take any action or actions contemplated
hereby, shall be required to inquire into or seek confirmation from any Grantor
as to the authority of Attorney to take any action described below, or as to
the existence of or fulfillment of any condition to this Power of Attorney, which
is intended to grant to Attorney unconditionally the authority to take and
perform the actions contemplated herein, and each Grantor irrevocably waives
any right to commence any suit or action, in law or equity, against any person
or entity which acts in reliance upon or acknowledges the authority granted
under this Power of Attorney.  The power
of attorney granted hereby is coupled with an interest, and may not be revoked
or canceled by any Grantor without Attorney’s written consent.


 


Each Grantor hereby irrevocably constitutes and
appoints Attorney (and all officers, employees or agents designated by
Attorney), with full power of substitution, as such Grantor’s true and lawful
attorney-in-fact with full irrevocable power and authority in the place and stead
of such Grantor and in the name of such Grantor or in its own name, from time
to time in Attorney’s discretion, to take any and all appropriate action and to
execute and deliver any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of the Security Documents
upon the occurrence and during the continuance of an Event of Default as
defined and described in the Security Documents.  Without limiting the generality of the foregoing, each Grantor
hereby grants to Attorney the power and right, on behalf of such Grantor,
without notice to or assent by any Grantor, and at any time, to do the
following upon the occurrence and during the continuance of an Event of
Default:  (a) change the mailing address
of such Grantor, open a post office box on behalf of such Grantor, open mail
for such Grantor, and ask, demand, collect, give acquittances and receipts for,
take possession of, endorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against debtors, assignments,
verifications, and notices in connection with any property of such Grantor; (b)
effect any repairs to any asset of such Grantor, or continue or obtain any
insurance and pay all or any part of the premiums therefor and costs thereof,
and make, settle and adjust all claims under such policies of insurance, and
make all determinations and decisions with respect to such policies; (c) pay or
discharge any taxes, liens, security interests, or other encumbrances levied or
placed on or threatened against such Grantor or its property; (d) defend any
suit, action or proceeding brought against such Grantor if such Grantor does
not defend such suit, action or proceeding or if Attorney believes that such
Grantor is not pursuing such defense in a manner that will maximize the
recovery to Attorney, and settle, compromise or adjust any suit, action, or
proceeding described above and, in connection therewith, give such discharges
or releases as Attorney may deem appropriate; (e) file or prosecute any claim,
litigation, suit or proceeding in any court of competent jurisdiction or before
any arbitrator, or take any other action otherwise deemed appropriate by
Attorney for the purpose of collecting any and all such moneys due to such
Grantor whenever payable and to enforce any other right in respect of such
Grantor’s property; (f) cause the certified public accountants then engaged by
such Grantor to prepare and deliver to Attorney at any time and from time to
time, promptly upon Attorney’s request, the following reports:  (1) a reconciliation of all accounts, (2) an
aging of all accounts, (3) trial balances, (4) test verifications of such
accounts as Attorney may request, and (5) the results of each physical
verification of inventory; (g) communicate in its own name with any 


 

















 


party to any 
Contract with regard to the assignment of the right, title and interest
of such Grantor in and under the Contracts and other matters relating thereto;
(h) to file such financing statements with respect to the Security Agreement,
with or without such Grantor’s signature, or to file a photocopy of the
Security Agreement in substitution for a financing statement, as Attorney may
deem appropriate and to execute in such Grantor’s name such financing statements
and amendments thereto and continuation statements which may require such
Grantor’s signature; (i) execute, in connection with any sale provided for in
any Security Document, any endorsements, assignments or other instruments of
conveyance or transfer with respect to any collateral subject to the Security
Documents and to otherwise direct such sale or resale; (j) exercise the rights
of such Grantor with respect to the obligation of all account debtors to make
payment or otherwise render performance to such Grantor; (k) exercise the
rights of such Grantor to, and take any and all actions that Attorney deems
appropriate to realize the benefit of, any intellectual property; and (l)
assert any claims such Grantor may have, from time to time, against any other party
to any contract to which such Grantor is a party and to otherwise exercise any
right or remedy of such Grantor thereunder, all as though Attorney were the
absolute owner of the property of such Grantor for all purposes, and to do, at
Attorney’s option and such Grantor’s expense, at any time or from time to time,
all acts and other things that Attorney reasonably deems necessary to perfect,
preserve, or realize upon such Grantor’s property or assets and Attorney’s
Liens thereon, all as fully and effectively as such Grantor might do.  Each Grantor hereby ratifies, to the extent
permitted by law, all that said Attorney shall lawfully do or cause to be done
by virtue hereof.


 

















 


IN WITNESS WHEREOF, this Power of Attorney is executed
by each Grantor pursuant to the authority of its board of directors on this
30th day of  January, 2004.


 


	
   

  	
  DAYTON
  SUPERIOR CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J.
  Puisis 

  
	
   

  	
   

  	
  Name: Edward J.
  Puisis

  
	
   

  	
   

  	
  Title:  Vice President and Chief Financial 

  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  AZTEC
  CONCRETE ACCESSORIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J.
  Puisis

  
	
   

  	
   

  	
  Name: Edward J.
  Puisis

  
	
   

  	
   

  	
  Title:  Vice President and Chief Financial
 Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  DAYTON
  SUPERIOR SPECIALTY 

  CHEMICAL CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Edward J. Puisis 

  
	
   

  	
   

  	
  Name:
  Edward J. Puisis

  
	
   

  	
   

  	
  Title:  Vice President and Chief Financial 

  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  DUR-O-WAL,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J.
  Puisis 

  
	
   

  	
   

  	
  Name: Edward J.
  Puisis

  
	
   

  	
   

  	
  Title:  Vice President and Chief Financial 

  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  SOUTHERN
  CONSTRUCTION 

  PRODUCTS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J.
  Puisis 

  
	
   

  	
   

  	
  Name: Edward J.
  Puisis

  
	
   

  	
   

  	
  Title:  Vice President and Chief Financial 

  Officer

  



 

















 


	
   

  	
  SYMONS
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J.
  Puisis 

  
	
   

  	
   

  	
  Name: Edward J.
  Puisis

  
	
   

  	
   

  	
  Title:  Vice President and Chief Financial
 Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TREVECCA
  HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J.
  Puisis

  
	
   

  	
   

  	
  Name: Edward J.
  Puisis

  
	
   

  	
   

  	
  Title:  Vice President and Chief Financial
 Officer

  
	
   

  	
   

  	
   

  



 

















 


 


EXHIBIT
B


 


DEFINITIONS


 


“Accounts”
means all “accounts,” as such term is defined in the Code, now owned or
hereafter acquired by any Grantor, including (a) all accounts receivable,
other receivables, Rentals, book debts and other forms of obligations (other
than, except in the case of Rentals, forms of obligations evidenced by Chattel
Paper or Instruments), (including any such obligations that may be characterized
as an account or contract right under the Code), (b) all of each Grantor’s
rights in, to and under all purchase orders or receipts for goods or services,
(c) all of each Grantor’s rights to any goods represented by any of the
foregoing (including unpaid sellers’ rights of rescission, replevin,
reclamation and stoppage in transit and rights to returned, reclaimed or
repossessed goods), (d) all rights to payment due to any Grantor for
property sold, leased, licensed, assigned or otherwise disposed of, for a
policy of insurance issued or to be issued, for a secondary obligation incurred
or to be incurred, for energy provided or to be provided, for the use or hire
of a vessel under a charter or other contract, arising out of the use of a
credit card or charge card, or for services rendered or to be rendered by such
Grantor or in connection with any other transaction (whether or not yet earned
by performance on the part of such Grantor), (e) all healthcare insurance
receivables, and (f) all collateral security of any kind, now or hereafter
in existence, given by any Account Debtor or other Person with respect to any
of the foregoing.


 


“Account Debtor”
means any Person who may become obligated to any Grantor under, with respect
to, or on account of, an Account, Chattel Paper or General Intangibles
(including a payment intangible).


 


“Cash
Equivalents” means: 
(i) marketable securities (A) issued or directly and
unconditionally guaranteed as to interest and principal by the United States
government or (B) issued by any agency of the United States government the
obligations of which are backed by the full faith and credit of the United
States, in each case maturing within one (1) year after acquisition thereof;
(ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after
acquisition thereof and having, at the time of acquisition, a rating of at
least A-1 from S&P or at least P-1 from Moody’s; (iii) commercial
paper maturing no more than one year from the date of acquisition and, at the
time of acquisition, having a rating of at least A-1 from S&P or at least
P-1 from Moody’s; (iv) certificates of deposit or bankers’ acceptances
issued or accepted by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof or the District of
Columbia that is at least (A) ”adequately capitalized” (as defined in the
regulations of its primary Federal banking regulator) and (B) has Tier 1
capital (as defined in such regulations) of not less than $250,000,000, in each
case maturing within one year after issuance or acceptance thereof; and
(v) shares of any money market mutual or similar funds that (A) has
substantially all of its assets invested continuously in the types of
investments referred to in clauses (i) through (iv) above, (B) has net
assets of not less than $500,000,000 and (C) has the highest rating obtainable
from either S&P or Moody’s.


 


“Chattel Paper”
means any “chattel paper,” as such term is defined in the Code, including
electronic chattel paper, now owned or hereafter acquired by any Grantor,
wherever located.


 


“Code”
means the Uniform Commercial Code as the same may, from time to time, be
enacted and in effect in the State of 
New York; provided, that to the extent that the Code is used to
define any term herein or in any Loan Document and such term is defined
differently in different Articles or Divisions of the Code, the definition of
such term contained in Article or Division 9 shall govern; provided
further, that in the event that, by reason of mandatory provisions of law,
any or all of the attachment, perfection or 


 

















 


priority of, or
remedies with respect to, Collateral Agent’s Lien on any Collateral is governed
by the Uniform Commercial Code as enacted and in effect in a jurisdiction other
than the State of New York, the term “Code” shall mean the Uniform
Commercial Code as enacted and in effect in such other jurisdiction solely for
purposes of the provisions thereof relating to such attachment, perfection,
priority or remedies and for purposes of definitions related to such
provisions.


 


“Contractual
Obligations” means, as applied to any Person, any indenture, mortgage, deed
of trust, contract, undertaking, agreement or other instrument to which that
Person is a party or by which it or any of its properties is bound or to which
it or any of its properties is subject.


 


“Copyright
Security Agreements” means that certain Copyright Security Agreements made
in favor of Collateral Agent, on behalf of Trustee and Noteholders, by each
applicable Grantor.


 


“Copyrights”
means all of the following now owned or hereafter adopted or acquired by any
Grantor:  (a) all copyrights and
General Intangibles of like nature (whether registered or unregistered), all
registrations and recordings thereof, and all applications in connection
therewith, including all registrations, recordings and applications in the
United States Copyright Office or in any similar office or agency of the United
States, any state or territory thereof, or any other country or any political
subdivision thereof; and (b) all reissues, extensions or renewals thereof.


 


“Discharge of
Senior Lender Claims” shall have the meaning assigned to it in the
Intercreditor Agreement.


 


“Documents”
means any “document,” as such term is defined in the Code, including electronic
documents, now owned or hereafter acquired by any Grantor, wherever located.


 


“General
Intangibles” means “general intangibles,” as such term is defined in the
Code, now owned or hereafter acquired by any Grantor, including all right,
title and interest that such Grantor may now or hereafter have in or under any
Contractual Obligation, all payment intangibles, customer lists, Licenses,
Copyrights, Trademarks, Patents, and all applications therefor and reissues,
extensions or renewals thereof, rights in Intellectual Property, interests in
partnerships, joint ventures and other business associations, licenses,
permits, copyrights, trade secrets, proprietary or confidential information,
inventions (whether or not patented or patentable), technical information,
procedures, designs, knowledge, know-how, software, data bases, data, skill,
expertise, experience, processes, models, drawings, materials and records,
goodwill (including the goodwill associated with any Trademark or Trademark
License), all rights and claims in or under insurance policies (including
insurance for fire, damage, loss and casualty, whether covering personal
property, real property, tangible rights or intangible rights, all liability,
life, key man and business interruption insurance, and all unearned premiums),
uncertificated securities, chooses in action, deposit, checking and other bank
accounts, rights to receive tax refunds and other payments, rights to receive
dividends, distributions, cash, Instruments and other property in respect of or
in exchange for pledged Stock and Investment Property, rights of
indemnification, all books and records, correspondence, credit files, invoices
and other papers, including all tapes, cards, computer runs and other papers
and documents in the possession or under the control of such Grantor or any
computer bureau or service company from time to time acting for such Grantor.


 


“Goods”
means any “goods,” as such term is defined in the Code, now owned or hereafter
acquired by any Grantor, wherever located, including embedded software to the
extent included in “goods” as defined in the Code, manufactured homes, standing
timber that is cut and removed for sale and unborn young of animals.


 

















 


“Instruments”
means all “instruments,” as such term is defined in the Code, now owned or
hereafter acquired by any Grantor, wherever located, and, in any event,
including all certificated securities, all certificates of deposit, and all
promissory notes and other evidences of indebtedness, other than instruments
that constitute, or are a part of a group of writings that constitute, Chattel
Paper.


 


“Intellectual
Property” means any and all Licenses, Patents, Copyrights, Trademarks, and
the goodwill associated with such Trademarks.


 


“Intercompany
Notes” means any demand note evidencing loans and advances made by Borrower to
any Grantor or by any Grantor to Borrower.


 


“Inventory”
means any “inventory,” as such term is defined in the Code, now owned or
hereafter acquired by any Grantor, wherever located, including inventory,
merchandise, goods and other personal property that are held by or on behalf of
any Grantor for sale or lease (or that are being leased and located within a
state of the United States of America) or are furnished or are to be furnished
under a contract of service, or that constitute raw materials, work in process,
finished goods, returned goods, supplies or materials of any kind, nature or
description used or consumed or to be used or consumed in such Grantor’s
business or in the processing, production, packaging, promotion, delivery or
shipping of the same, including all supplies and embedded software.


 


“Investment
Property” means all “investment property,” as such term is defined in the
Code now owned or hereafter acquired by any Grantor, wherever located,
including:  (i) all securities,
whether certificated or uncertificated, including stocks, bonds, interests in
limited liability companies, partnership interests, treasuries, certificates of
deposit, and mutual fund shares; (ii) all securities entitlements of any
Grantor,  including the rights of such
Grantor to any securities account and the financial assets held by a securities
intermediary in such securities account and any free credit balance or other
money owing by any securities intermediary with respect to that account;
(iii) all securities accounts of any Grantor; (iv) all commodity
contracts of any Grantor; and (v) all commodity accounts held by any
Grantor.


 


“License”
means any Copyright License, Patent License, Trademark License or other license
of rights or interests now held or hereafter acquired by any Grantor.


 


“Material
Adverse Effect” means a material adverse effect on the financial condition,
Collateral, operations, industry, or business of Grantors, taken as a whole.


 


“Patent Security
Agreement” means that certain Patent Security Agreement, dated as of
January 30, 2004, made in favor of Collateral Agent, on behalf of Trustee
and Noteholders, by each applicable Grantor.


 


“Patents”
means all of the following in which any Grantor now holds or hereafter acquires
any interest:  (a) all letters
patent of the United States or any other country, all registrations and
recordings thereof, and all applications for letters patent of the United
States or of any other country, including registrations, recordings and
applications in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any State or any other country, and
(b) all reissues, continuations, continuations-in-part or extensions
thereof.


 


“Rentals”
means rental payments due to Borrower for any Domestic Subsidiary from the
rental of Inventory owned by Borrower or such Domestic Subsidiary.


 


“Termination
Date” means the date on which (a) the Notes have been repaid in full,
(b) all other Obligations under the Indenture and the other Security
Documents (other than contingent indemnification 


 

















 


Obligations to the
extent no claim has been asserted) have been completely discharged,
(c) Borrower shall not have any further right to borrow any monies under
the Agreement.


 


“Trademarks”
means all of the following now owned or hereafter adopted or acquired by any
Grantor:  (a) all trademarks, trade
names, corporate names, business names, trade styles, service marks, logos,
internet domain names, other source or business identifiers, prints and labels
on which any of the foregoing have appeared or appear, designs and general
intangibles of like nature (whether registered or unregistered), all
registrations and recordings thereof, and all applications in connection
therewith, including registrations, recordings and applications in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any state or territory thereof, or any other country or any
political subdivision thereof; (b) all reissues, extensions or renewals
thereof; and (c) all goodwill associated with or symbolized by any of the
foregoing.


 


“Trademark
Security Agreement” means that certain Trademark Security Agreement, dated
as of January 30, 2004,  made in
favor of Collateral Agent, on behalf of Trustee and Noteholders, by each
applicable Grantor.