Exhibit
4.7


 


Execution




 





 


CREDIT AGREEMENT


 


DATED AS OF
JANUARY 30, 2004


 


by and among


 


DAYTON SUPERIOR
CORPORATION


as Borrower


 


and


 


THE OTHER PERSONS
PARTY HERETO THAT ARE


DESIGNATED AS
CREDIT PARTIES


 


and


 


GENERAL ELECTRIC
CAPITAL CORPORATION


as Agent, L/C
Issuer and a Lender


 


and


 


THE OTHER
FINANCIAL INSTITUTIONS PARTY HERETO


as Lenders


 


and


 


GECC CAPITAL
MARKETS GROUP, INC.

as Lead Arranger




 





 

















 


TABLE OF
CONTENTS


 


	
  SECTION 1.

  	
  AMOUNTS AND TERMS OF LOANS

  	
   

  
	
  1.1.

  	
  Loans

  	
   

  
	
  1.2.

  	
  Interest and Applicable
  Margins

  	
   

  
	
  1.3.

  	
  Fees

  	
   

  
	
  1.4.

  	
  Payments

  	
   

  
	
  1.5.

  	
  Prepayments

  	
   

  
	
  1.6.

  	
  Maturity

  	
   

  
	
  1.7.

  	
  Eligible Accounts

  	
   

  
	
  1.8.

  	
  Eligible Inventory

  	
   

  
	
  1.9.

  	
  Loan Accounts

  	
   

  
	
  1.10.

  	
  Yield Protection; Illegality

  	
   

  
	
  1.11.

  	
  Taxes

  	
   

  
	
  SECTION 2.

  	
  AFFIRMATIVE COVENANTS

  	
   

  
	
  2.1.

  	
  Compliance With Laws and
  Contractual Obligations

  	
   

  
	
  2.2.

  	
  Insurance; Damage
  to or Destruction of Collateral

  	
   

  
	
  2.3.

  	
  Inspection; Lender Meeting

  	
   

  
	
  2.4.

  	
  Organizational Existence

  	
   

  
	
  2.5.

  	
  Environmental Matters

  	
   

  
	
  2.6.

  	
  Omitted.

  	
   

  
	
  2.7.

  	
  Conduct
  of Business

  	
   

  
	
  2.8.

  	
  Further Assurances

  	
   

  
	
  2.9.

  	
  [Reserved]

  	
   

  
	
  2.10.

  	
  Cash Management Systems

  	
   

  
	
  SECTION 3.

  	
  NEGATIVE COVENANTS

  	
   

  
	
  3.1.

  	
  Indebtedness

  	
   

  
	
  3.2.

  	
  Liens and Related Matters

  	
   

  
	
  3.3.

  	
  Investments

  	
   

  
	
  3.4.

  	
  Contingent Obligations

  	
   

  
	
  3.5.

  	
  Restricted Payments

  	
   

  
	
  3.6.

  	
  Restriction on Fundamental Changes

  	
   

  
	
  3.7.

  	
  Disposal of Assets or Subsidiary
  Stock

  	
   

  
	
  3.8.

  	
  Transactions with Affiliates

  	
   

  
	
  3.9.

  	
  Conduct of Business

  	
   

  



 


i

















 


	
  3.10.

  	
  Changes Relating to Indebtedness

  	
   

  
	
  3.11.

  	
  Fiscal Year

  	
   

  
	
  3.12.

  	
  Press Release; Public Offering Materials

  	
   

  
	
  3.13.

  	
  Subsidiaries

  	
   

  
	
  3.14.

  	
  Bank Accounts

  	
   

  
	
  3.15.

  	
  Hazardous Materials

  	
   

  
	
  3.16.

  	
  ERISA

  	
   

  
	
  3.17.

  	
  Sale-Leasebacks

  	
   

  
	
  3.18.

  	
  Prepayments of Other Indebtedness

  	
   

  
	
  3.19.

  	
  OFAC

  	
   

  
	
  SECTION 4.

  	
  FINANCIAL COVENANTS/REPORTING

  	
   

  
	
  4.1.

  	
  Omitted

  	
   

  
	
  4.2.

  	
  Omitted

  	
   

  
	
  4.3.

  	
  Omitted

  	
   

  
	
  4.4.

  	
  Omitted

  	
   

  
	
  4.5.

  	
  Omitted

  	
   

  
	
  4.6.

  	
  Omitted

  	
   

  
	
  4.7.

  	
  Omitted

  	
   

  
	
  4.8.

  	
  Omitted

  	
   

  
	
  4.9.

  	
  Financial Statements and Other
  Reports

  	
   

  
	
  4.10.

  	
  Accounting Terms; Utilization of GAAP
  for Purposes of Calculations Under Agreement

  	
   

  
	
  SECTION 5.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
  5.1.

  	
  Disclosure

  	
   

  
	
  5.2.

  	
  No Material Adverse Effect

  	
   

  
	
  5.3.

  	
  No Conflict

  	
   

  
	
  5.4.

  	
  Organization,
  Powers, Capitalization and Good Standing

  	
   

  
	
  5.5.

  	
  Financial
  Statements and Business Plan

  	
   

  
	
  5.6.

  	
  Intellectual Property

  	
   

  
	
  5.7.

  	
  Investigations, Audits, Etc.

  	
   

  
	
  5.8.

  	
  Employee Matters

  	
   

  
	
  5.9.

  	
  Solvency

  	
   

  
	
  5.10.

  	
  Litigation

  	
   

  



 


ii

















 


	
  5.11.

  	
  Use of Proceeds; Margin Regulations

  	
   

  
	
  5.12.

  	
  Ownership
  of Property; Liens

  	
   

  
	
  5.13.

  	
  Environmental Matters

  	
   

  
	
  5.14.

  	
  ERISA

  	
   

  
	
  5.15.

  	
  Brokers

  	
   

  
	
  5.16.

  	
  Deposit
  and Disbursement Accounts

  	
   

  
	
  5.17.

  	
  Agreements and Other Documents

  	
   

  
	
  5.18.

  	
  Insurance

  	
   

  
	
  5.19.

  	
  Anti-Terrorism

  	
   

  
	
  5.20.

  	
  Designated Senior Debt.

  	
   

  
	
  5.21.

  	
  Other Obligations.

  	
   

  
	
  SECTION 6.

  	
  DEFAULT, RIGHTS AND REMEDIES

  	
   

  
	
  6.1.

  	
  Event of Default

  	
   

  
	
  6.2.

  	
  Suspension or Termination of Commitments

  	
   

  
	
  6.3.

  	
  Acceleration and Other Remedies

  	
   

  
	
  6.4.

  	
  Performance by Agent

  	
   

  
	
  6.5.

  	
  Application of Proceeds

  	
   

  
	
  SECTION 7.

  	
  CONDITIONS TO LOANS

  	
   

  
	
  7.1.

  	
  Conditions to Initial Loans

  	
   

  
	
  7.2.

  	
  Conditions to All Loans

  	
   

  
	
  SECTION 8.

  	
  ASSIGNMENT AND PARTICIPATION

  	
   

  
	
  8.1.

  	
  Assignment and Participations

  	
   

  
	
  8.2.

  	
  Agent

  	
   

  
	
  8.3.

  	
  Set Off and Sharing of Payments

  	
   

  
	
  8.4.

  	
  Disbursement of Funds

  	
   

  
	
  8.5.

  	
  Disbursements of Advances; Payment

  	
   

  
	
  SECTION 9.

  	
  MISCELLANEOUS

  	
   

  
	
  9.1.

  	
  Indemnities

  	
   

  
	
  9.2.

  	
  Amendments and Waivers

  	
   

  
	
  9.3.

  	
  Notices

  	
   

  
	
  9.4.

  	
  Failure or Indulgence Not Waiver;
  Remedies Cumulative

  	
   

  
	
  9.5.

  	
  Marshaling; Payments Set Aside

  	
   

  



 


iii

















 


	
  9.6.

  	
  Severability

  	
   

  
	
  9.7.

  	
  Lenders’ Obligations Several;
  Independent Nature of Lenders’ Rights

  	
   

  
	
  9.8.

  	
  Headings

  	
   

  
	
  9.9.

  	
  Applicable Law

  	
   

  
	
  9.10.

  	
  Successors and Assigns

  	
   

  
	
  9.11.

  	
  No Fiduciary Relationship; Limited
  Liability

  	
   

  
	
  9.12.

  	
  Construction

  	
   

  
	
  9.13.

  	
  Confidentiality

  	
   

  
	
  9.14.

  	
  CONSENT
  TO JURISDICTION

  	
   

  
	
  9.15.

  	
  WAIVER OF JURY TRIAL

  	
   

  
	
  9.16.

  	
  Survival of Warranties and
  Certain Agreements

  	
   

  
	
  9.17.

  	
  Entire Agreement

  	
   

  
	
  9.18.

  	
  Counterparts; Effectiveness

  	
   

  
	
  9.19.

  	
  Replacement of Lenders

  	
   

  
	
  9.20.

  	
  Delivery of Termination Statements and
  Mortgage Releases

  	
   

  



 


iv

















 


INDEX
OF APPENDICES


 


	
  Annexes

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Annex A

  	
  -

  	
  Definitions

  
	
  Annex B

  	
  -

  	
  Pro Rata Shares and Commitment Amounts

  
	
  Annex C

  	
  -

  	
  Closing Checklist

  
	
  Annex D

  	
  -

  	
  [Reserved]

  
	
  Annex E

  	
  -

  	
  Lenders’ Bank Accounts

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 1.1(a)(i)

  	
  -

  	
  Revolving
  Note

  
	
  Exhibit 1.1(a)(ii)

  	
  -

  	
  Notice of
  Revolving Credit Advance

  
	
  Exhibit 1.1(c)

  	
  -

  	
  Swing Line Note

  
	
  Exhibit 1.2(e)

  	
  -

  	
  Notice of
  Continuation/Conversion

  
	
  Exhibit 4.9(d)

  	
  -

  	
  Borrowing Base
  Certificate

  
	
  Exhibit 4.9(k)

  	
  -

  	
  Compliance and
  Pricing Certificate

  
	
  Exhibit 8.1

  	
  -

  	
  Assignment
  Agreement

  
	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 2.7

  	
  -

  	
  Corporate and
  Trade Names

  
	
  Schedule 2.8

  	
  -

  	
  Certain Liens

  
	
  Schedule 3.1

  	
  -

  	
  Indebtedness

  
	
  Schedule 3.2

  	
  -

  	
  Liens

  
	
  Schedule 3.4

  	
  -

  	
  Contingent
  Obligations

  
	
  Schedule 5.4(a)

  	
  -

  	
  Jurisdictions of
  Organization and Qualifications

  
	
  Schedule 5.4(b)

  	
  -

  	
  Capitalization

  
	
  Schedule 5.6

  	
  -

  	
  Intellectual
  Property

  
	
  Schedule 5.7

  	
  -

  	
  Investigations
  and Audits

  
	
  Schedule 5.8

  	
  -

  	
  Employee Matters

  
	
  Schedule 5.10

  	
  -

  	
  Litigation

  
	
  Schedule 5.11

  	
  -

  	
  Use of Proceeds

  
	
  Schedule 5.12

  	
  -

  	
  Real Estate

  
	
  Schedule 5.13

  	
  -

  	
  Environmental
  Matters

  
	
  Schedule 5.14

  	
  -

  	
  ERISA

  
	
  Schedule 5.16

  	
  -

  	
  Deposit and
  Disbursement Accounts

  
	
  Schedule 5.17

  	
  -

  	
  Agreements and
  Other Documents

  
	
  Schedule 5.18

  	
  -

  	
  Insurance

  



 


v

















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT is dated as of January 30,
2004 and entered into by and among DAYTON SUPERIOR CORPORATION, an Ohio
corporation (“Borrower”), the other persons designated as “Credit
Parties” on the signature pages hereof, the financial institutions who are or
hereafter become parties to this Agreement as “Lenders”, and GENERAL ELECTRIC
CAPITAL CORPORATION, a Delaware corporation  (in its individual capacity “GE Capital”),
as the initial L/C Issuer and as Agent.


 


R  E  C  I  T
A  L  S:


 


WHEREAS, Borrower desires that Lenders extend a
revolving credit facility to Borrower to fund the repayment of certain
indebtedness of Borrower, to provide working capital financing for Borrower, to
fund future acquisitions and to provide funds for other general corporate
purposes of Borrower; and


 


WHEREAS, Borrower desires to secure all of its
Obligations (as hereinafter defined) under the Loan Documents (as hereinafter
defined) by granting to Agent, for the benefit of Agent and Lenders, a security
interest in and lien upon substantially all of its personal and real property; and


 


WHEREAS, each of Borrower’s Domestic Subsidiaries is
willing to guaranty all of the Obligations of Borrower and to grant to Agent,
for the benefit of Agent and Lenders, a security interest in and lien upon
substantially all of its personal and real property to secure the Obligations;
and


 


WHEREAS, all capitalized terms herein shall have the meanings ascribed
thereto in Annex A hereto which is incorporated herein by
reference.


 


NOW, THEREFORE, in consideration of the premises and
the agreements, provisions and covenants herein contained, Borrower, Credit
Parties, Lenders and Agent agree as follows:


 


SECTION 1.


 


AMOUNTS
AND TERMS OF LOANS


 


1.1.                              Loans.  Subject to
the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Borrower and the other Credit Parties
contained herein:


 


(a)                                  Revolving
Loans.


 


(i)                                     Each
Revolving Lender agrees, severally and not jointly, to make available to
Borrower from time to time until the Commitment Termination Date its Pro Rata
Share of advances (each a “Revolving Credit Advance”) requested by
Borrower hereunder.  The Pro Rata Share
of the Revolving Loan of any Revolving Lender (including, without duplication,
Swing Line Loans) shall not at any time exceed its separate Revolving Loan
Commitment.  Revolving Credit Advances
may be repaid and reborrowed; provided, that the amount of any Revolving Credit
Advance to be made at any time shall not exceed Borrowing Availability.
Borrowing Availability may be further reduced by Reserves imposed by Agent in
its reasonable credit judgment.  All
Revolving Loans shall be repaid in full on the Commitment Termination
Date.  Unless otherwise elected by any
Revolving Lender pursuant to Section 1.9, the Borrower shall
execute and deliver to each Revolving Lender a note to evidence the Revolving
Loan Commitment of that Revolving Lender. 
Each note shall be in the maximum principal amount of the Revolving Loan
Commitment of the applicable Revolving Lender, dated the Closing Date and
substantially in the form of Exhibit 1.1(a)(i) (each as amended,
modified, extended, substituted or 


 

















 


replaced from time to
time, a “Revolving Note” and, collectively, the “Revolving Notes”).  Other than pursuant to Section 1.1(a)(ii),
if at any time the outstanding Revolving Loans (including the Swing Line Loans)
exceed the Borrowing Base (any such excess Revolving Loans are herein referred
to collectively as “Overadvances”), Lenders shall not be obligated to
make Revolving Credit Advances, no additional Letters of Credit shall be issued
and, except as provided in Section 1.1(a)(ii) below, Revolving
Loans must be repaid immediately and Letters of Credit cash collateralized in
an amount sufficient to eliminate any Overadvances.  All Overadvances shall constitute Index Rate Loans and shall bear
interest at the Default Rate.  Revolving
Credit Advances which are to be made as Index Rate Loans may be requested in
any amount with one (1) Business Day’s prior written notice required for
funding requests equal to or greater than $5,000,000.  For funding requests for such Revolving Credit Advances in an
amount less than $5,000,000, written notice must be provided by 1:00 p.m.
(New York time) on the Business Day on which such Revolving Credit Advance is
to be made.  All requests for Revolving Credit
Advances that are to be made as LIBOR Loans require three (3) Business Days
prior written notice.  Written notices
for funding requests shall be in the form attached as Exhibit 1.1(a)(ii)
(“Notice of Revolving Credit Advance”).


 


(ii)                                  If
Borrower requests that Revolving Lenders make, or permit to remain outstanding
any Overadvances, Agent may, in its sole discretion, elect to make, or permit
to remain outstanding such Overadvances; provided, however, that
Agent may not cause Revolving Lenders to make, or permit to remain outstanding,
(a) aggregate Revolving Loans (including, without duplication, Swing Line
Loans) in excess of the Maximum Amount or (b) Overadvances in an aggregate
amount in excess of $2,000,000.  If an
Overadvance is made, or permitted to remain outstanding, pursuant to the
preceding sentence, then all Revolving Lenders shall be bound to make, or
permit to remain outstanding, such Overadvance based upon their Pro Rata Shares
of the Revolving Loan Commitment in accordance with the terms of this
Agreement.  If an Overadvance remains
outstanding for more than ninety (90) days during any one hundred eighty (180)
day period, Revolving Loans must be repaid immediately in an amount sufficient
to eliminate all of such Overadvances. 
Furthermore, Requisite Lenders may prospectively revoke Agent’s ability
to make or permit Overadvances by written notice to Agent.  Any Overadvance may be made as a Swing Line
Advance.


 


(b)                                 Omitted.


 


(c)                                  Swing
Line Facility.


 


(i)                                     Agent
shall notify the Swing Line Lender upon Agent’s receipt of any Notice of
Revolving Credit Advance.  Subject to
the terms and conditions hereof, the Swing Line Lender may, in its discretion,
make available from time to time after the Closing Date and until the
Commitment Termination Date advances (each, a “Swing Line Advance”) to
Borrower in accordance with any such notice. 
The provisions of this Section 1.1(c) shall not relieve
Revolving Lenders of their obligations to make Revolving Credit Advances under Section 1.1(a);
provided that if the Swing Line Lender makes a Swing Line Advance pursuant to
any such notice, such Swing Line Advance shall be in lieu of any Revolving
Credit Advance that otherwise may be made by Revolving Lenders pursuant to such
notice.  Except as provided in Section 1.1(a)(ii)
above, the aggregate amount of Swing Line Advances outstanding shall not exceed
at any time the lesser of (A) the Swing Line Commitment and
(B) Borrowing Availability (“Swing Line Availability”).  Until the Commitment Termination Date,
Borrower may from time to time borrow, repay and reborrow under this Section 1.1(c).  Each Swing Line Advance shall be made
pursuant to a Notice of Revolving Credit Advance delivered by Borrower to Agent
in accordance with Section 1.1(a). 
Unless the Swing Line Lender has received at least one (1) Business
Day’s prior written notice from Requisite Lenders instructing it not to make a
Swing Line Advance, the Swing Line Lender shall, notwithstanding the failure of
any condition precedent set forth in Section 7.2, be entitled to
fund that Swing Line Advance, and to have each Revolving Lender make Revolving
Credit Advances in 


 


2

















 


accordance with Section 1.1(c)(iii)
or purchase participating interests in accordance with Section 1.1(c)(iv).  Notwithstanding any other provision of this
Agreement or the other Loan Documents, the Swing Line Loan shall constitute an
Index Rate Loan.  Borrower shall repay
the aggregate outstanding principal amount of the Swing Line Loan upon demand
therefor by Agent.  The entire unpaid
balance of the Swing Line Loan and all other noncontingent Obligations shall be
immediately due and payable in full in immediately available funds on the
Commitment Termination Date if not sooner paid in full.  If at any time the outstanding Swing Line
Loan exceeds the Swing Line Commitment then no further Swing Line Advances
shall be made until any such excess is eliminated and, to the extent that such
excess is not repaid under Section 1.1(c)(iii), the Borrower shall immediately
repay such excess.


 


(ii)                                  Unless
otherwise elected by the Swing Line Lender pursuant to Section 1.9,
Borrower shall execute and deliver to the Swing Line Lender a promissory note
to evidence the Swing Line Commitment. 
Such note shall be in the principal amount of the Swing Line Commitment
of the Swing Line Lender, dated the Closing Date and substantially in the form
of Exhibit 1.1(c) (as amended, modified, extended, substituted or
replaced from time to time, the “Swing Line Note”).  The Swing Line Note shall represent the
obligation of Borrower to pay the amount of the Swing Line Commitment or, if
less, the aggregate unpaid principal amount of all Swing Line Advances made to
Borrower together with interest thereon as prescribed in Section 1.2.


 


(iii)                               The
Swing Line Lender, at any time and from time to time in its sole and absolute
discretion but no less frequently than once weekly, shall on behalf of Borrower
(and Borrower hereby irrevocably authorizes the Swing Line Lender to so act on
its behalf) request each Revolving Lender (including the Swing Line Lender) to
make a Revolving Credit Advance to Borrower (which shall be an Index Rate Loan)
in an amount equal to that Revolving Lender’s Pro Rata Share of the principal
amount of the Swing Line Loan (the “Refunded Swing Line Loan”)
outstanding on the date such notice is given. 
Unless any of the events described in Sections 6.1(f) and 6.1(g)
has occurred (in which event the procedures of Section 1.1(c)(iv)
shall apply) and regardless of whether the conditions precedent set forth in
this Agreement to the making of a Revolving Credit Advance are then satisfied,
each Revolving Lender shall disburse directly to Agent, its Pro Rata Share of a
Revolving Credit Advance on behalf of the Swing Line Lender, prior to
3:00 p.m. (New York time), in immediately available funds on the Business
Day next succeeding the date that notice is given.  The proceeds of those Revolving Credit Advances shall be
immediately paid to the Swing Line Lender and applied to repay the Refunded
Swing Line Loan.


 


(iv)                              If,
prior to refunding a Swing Line Loan with a Revolving Credit Advance pursuant
to Section 1.1(c)(iii), one of the events described in Sections 6.1(f)
or 6.1(g) has occurred, then, subject to the provisions of Section 1.1(c)(v)
below, each Revolving Lender shall, on the date such Revolving Credit Advance
was to have been made for the benefit of Borrower, purchase from the Swing Line
Lender an undivided participation interest in the Swing Line Loan in an amount
equal to its Pro Rata Share (determined with respect to Revolving Loans) of
such Swing Line Loan.  Upon request,
each Revolving Lender shall promptly transfer to the Swing Line Lender, in
immediately available funds, the amount of its participation interest.


 


(v)                                 Each
Revolving Lender’s obligation to make Revolving Credit Advances in accordance
with Section 1.1(c)(iii) and to purchase participation interests in
accordance with Section 1.1(c)(iv) shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any setoff, counterclaim, recoupment, defense or other right that such
Revolving Lender may have against the Swing Line Lender, Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of any
Default or Event of Default; (C) any inability of Borrower to satisfy the
conditions precedent to borrowing set forth in this Agreement at any time or
(D) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.  Swing
Line Lender shall be entitled to recover, on demand, from each Revolving Lender
the amounts required 


 


3

















 


pursuant to Sections 1.1.(c)(iii)
or 1.1(c)(iv), as the case may be. 
If any Revolving Lender does not make available such amounts to Agent or
the Swing Line Lender, as applicable, the Swing Line Lender shall be entitled
to recover, on demand, such amount on demand from such Revolving Lender,
together with interest thereon for each day from the date of non-payment until
such amount is paid in full at the Federal Funds Rate for the first two
Business Days and at the Index Rate thereafter.


 


(d)                                 Letters
of Credit.  The Revolving Loan
Commitment may, in addition to advances under the Revolving Loan, be utilized,
upon the request of Borrower, for the issuance of Letters of Credit, provided,
that no Letter of Credit shall be issued that would cause the Revolving Loan to
exceed Borrowing Availability. 
Immediately upon the issuance by an L/C Issuer of a Letter of Credit,
and without further action on the part of Agent or any of the Lenders, each
Revolving Lender shall be deemed to have purchased from such L/C Issuer a
participation in such Letter of Credit (or in its obligation under a risk
participation agreement with respect thereto) equal to such Revolving Lender’s
Pro Rata Share of the aggregate amount available to be drawn under such Letter
of Credit.


 


(i)                                     Maximum
Amount.  The aggregate amount of
Letter of Credit Obligations with respect to all Letters of Credit outstanding
or unreimbursed at any time shall not exceed $30,000,000 (“L/C Sublimit”).


 


(ii)                                  Reimbursement.  Borrower shall be irrevocably and
unconditionally obligated forthwith without presentment, demand, protest or
other formalities of any kind, to reimburse any L/C Issuer on demand in
immediately available funds for any amounts paid by such L/C Issuer with
respect to a Letter of Credit, including all reimbursement payments, Fees,
Charges, costs and expenses paid by such L/C Issuer.  Borrower hereby authorizes and directs Agent, at Agent’s option,
to debit Borrower’s account (by increasing the outstanding principal balance of
the Revolving Credit Advances) in the amount of any payment made by an L/C
Issuer with respect to any Letter of Credit. 
All amounts paid by an L/C Issuer with respect to any Letter of Credit
that are not immediately repaid by Borrower with the proceeds of a Revolving
Credit Advance or otherwise shall bear interest at the interest rate applicable
to Revolving Loans which are Index Rate Loans plus, at the election of Agent or
Requisite Lenders, an additional two percent (2.00%) per annum.  Each Revolving Lender agrees to fund its Pro
Rata Share of any Revolving Loan made pursuant to this Section 1.1(d)(ii).  In the event Agent elects not to debit
Borrower’s account and Borrower fails to reimburse the L/C Issuer in full on
the date of any payment in respect of a Letter of Credit, Agent shall promptly
notify each Revolving Lender of the amount of such unreimbursed payment and the
accrued interest thereon and each Revolving Lender, on the next Business Day
prior to 3:00 p.m. (New York time), shall deliver to Agent an amount equal
to its Pro Rata Share thereof in same day funds.  Each Revolving Lender hereby absolutely and unconditionally
agrees to pay to the L/C Issuer upon demand by the L/C Issuer such Revolving
Lender’s Pro Rata Share of each payment made by the L/C Issuer in respect of a
Letter of Credit and not immediately reimbursed by Borrower or satisfied
through a debit of Borrower’s account. 
Each Revolving Lender acknowledges and agrees that its obligations
pursuant to this subsection in respect of Letters of Credit are absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including setoff, counterclaim, the occurrence and continuance of a Default or
an Event of Default or any failure by Borrower to satisfy any of the conditions
set forth in Section 7.2. 
If any Revolving Lender fails to make available to the L/C Issuer the
amount of such Revolving Lender’s Pro Rata Share of any payments made by the
L/C Issuer in respect of a Letter of Credit as provided in this Section 1.1(d)(ii),
the L/C Issuer shall be entitled to recover such amount on demand from such
Revolving Lender together with interest at the Index Rate.


 


(iii)                               Request
for Letters of Credit.  Borrower
shall give Agent at least three (3) Business Days prior written notice
specifying the date a Letter of Credit is requested to be issued, the amount
and the name and address of the beneficiary and a description of the
transactions proposed to be supported thereby. 
If Agent informs Borrower that the L/C Issuer cannot issue the requested
Letter of 


 


4

















 


Credit directly, Borrower
may request that L/C Issuer arrange for the issuance of the requested Letter of
Credit under a risk participation agreement with another financial institution
reasonably acceptable to Agent, L/C Issuer and Borrower.  The issuance of any Letter of Credit under
this Agreement shall be subject to the conditions that the Letter of Credit
(i) supports a transaction entered into in the ordinary course of business
of Borrower and (ii) is in a form, is for an amount and contains such
terms and conditions as are reasonably satisfactory to the L/C Issuer and, in
the case of standby letters of credit, Agent. 
The initial notice requesting the issuance of a Letter of Credit shall
be accompanied by the form of the Letter of Credit and the Master Standby
Agreement or Master Documentary Agreement, as applicable, and an application
for a letter of credit, if any, then required by the L/C Issuer completed in a
manner satisfactory to such L/C Issuer. 
If any provision of any application or reimbursement agreement is
inconsistent with the terms of this Agreement, then the provisions of this
Agreement, to the extent of such inconsistency, shall control.  A request to amend an outstanding Letter of
Credit to increase the maximum amount thereof or to extend the expiration date
of a Letter of Credit shall be deemed to be a request to issue a Letter of
Credit hereunder.


 


(iv)                              Expiration
Dates of Letters of Credit.  The
expiration date of each Letter of Credit shall be on a date which is not later
than the earlier of (a) one year from its date of issuance or (b) the
thirtieth (30th) day prior to the date set forth in clause (a)
of the definition of the term Commitment Termination Date.  Notwithstanding the foregoing, a Letter of
Credit may provide for automatic extensions of its expiration date for one (1)
or more successive one (1) year periods provided that the L/C Issuer has the
right to terminate such Letter of Credit on each such annual expiration date
and no renewal term may extend the term of the Letter of Credit to a date that
is later than the thirtieth (30th) day prior to the date set forth in
clause (a) of the definition of the term Commitment Termination Date.  The L/C Issuer may elect not to renew any
such Letter of Credit and, upon direction by Agent or Requisite Lenders, shall
not renew any such Letter of Credit at any time during the continuance of an
Event of Default, provided that, in the case of a direction by Agent or
Requisite Lenders, the L/C Issuer receives such directions prior to the date
notice of non-renewal is required to be given by the L/C Issuer and the L/C
Issuer has had a reasonable period of time to act on such notice.


 


(v)                                 Obligations
Absolute.  The obligation of
Borrower to reimburse the L/C Issuer, Agent and Lenders for payments made in
respect of Letters of Credit issued by the L/C Issuer shall be unconditional
and irrevocable and shall be paid under all circumstances strictly in
accordance with the terms of this Agreement, including the following
circumstances:  (a) any lack of
validity or enforceability of any Letter of Credit; (b) any amendment or
waiver of or any consent or departure from all or any of the provisions of any
Letter of Credit or any Loan Document; (c) the existence of any claim,
set-off, defense or other right which Borrower, any of its Subsidiaries or Affiliates
or any other Person may at any time have against any beneficiary of any Letter
of Credit, Agent, any L/C Issuer, any Lender or any other Person, whether in
connection with this Agreement, any other Loan Document or any other related or
unrelated agreements or transactions; (d) any draft or other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; (e) payment under any Letter of Credit against
presentation of a draft or other document that does not substantially comply
with the terms of such Letter of Credit; or (f) any other act or omission
to act or delay of any kind of any L/C Issuer, Agent, any Lender or any other
Person or any other event or circumstance whatsoever that might, but for the
provisions of this Section 1.1(d)(v), constitute a legal or
equitable discharge of Borrower’s obligations hereunder.


 


(vi)                              Obligations
of L/C Issuers.  Each L/C Issuer
(other than GE Capital) hereby agrees that it will not issue a Letter of Credit
hereunder until it has provided Agent with written notice specifying the amount
and intended issuance date of such Letter of Credit and Agent has returned a
written acknowledgment of such notice to L/C Issuer.  Each L/C Issuer (other than GE Capital) further agrees to provide
to Agent:  (a) a copy of each
Letter of Credit issued by such L/C Issuer promptly after 


 


5

















 


its issuance; (b) a
weekly report summarizing available amounts under Letters of Credit issued by
such L/C Issuer, the dates and amounts of any draws under such Letters of
Credit, the effective date of any increase or decrease in the face amount of
any Letters of Credit during such week and the amount of any unreimbursed draws
under such Letters of Credit; and (c) such additional information
reasonably requested by Agent from time to time with respect to the Letters of
Credit issued by such L/C Issuer. 
Without limiting the generality of the foregoing, it is expressly
understood and agreed by Borrower that the absolute and unconditional
obligation of Borrower to Agent and Lenders hereunder to reimburse payments
made under a Letter of Credit will not be excused by the gross negligence or
willful misconduct of the L/C Issuer. 
However, the foregoing shall not be construed to excuse an L/C Issuer
from liability to Borrower to the extent of any direct damages (as opposed to
consequential damages, with Borrower hereby waiving all claims for any
consequential damages to the extent permitted by applicable law) suffered by
Borrower that are not subject to indemnification in favor of the L/C Issuer
under the Master Standby Agreement or the Master Documentary Agreement.


 


(e)                                  Funding
Authorization.  The proceeds of all
Loans made pursuant to this Agreement subsequent to the Closing Date are to be
funded by Agent by wire transfer to the account designated by Borrower below
(the “Disbursement Account”):


 


Bank:  Bank
One, N.A.

ABA No.:  044000037

Bank Address:  100 Broad St., Columbus,
Ohio

Account No.:  618856538

Account Name:  Dayton Superior
Concentration Account


 


Borrower shall provide Agent with written notice of
any change in the foregoing instructions at least three (3) Business Days
before the desired effective date of such change.


 


1.2.                              Interest and Applicable Margins.


 


(a)                                  Borrower
shall pay interest to Agent, for the ratable benefit of Lenders in arrears on
each applicable Interest Payment Date, (i) with respect to the Revolving Credit
Advances which are designated as Index Rate Loans (and for all other
Obligations not otherwise set forth below), the Index Rate plus the Applicable
Revolver Index Margin per annum or, with respect to Revolving Credit Advances
which are designated as LIBOR Loans, the applicable LIBOR Rate plus the
Applicable Revolver LIBOR Margin per annum; and (ii) with respect to the
Swing Line Loan, the Index Rate plus the Applicable Revolver Index Margin per
annum.


 


The Applicable Margins are as follows:


 


	
  Applicable Revolver Index Margin

  	
   

  	
  .50

  	
  %

  
	
  Applicable Revolver LIBOR Margin

  	
   

  	
  2.50

  	
  %

  



 


The Applicable Margins shall be adjusted (up or down)
prospectively on a quarterly basis as determined by Borrower’s and its
Subsidiaries’ consolidated financial performance, commencing with the first day
of the first calendar month that occurs more than one (1) day after delivery of
Borrower’s quarterly Financial Statements to Lenders for the Fiscal Quarter
ending December 31, 2003. 
Adjustments in Applicable Margins will be determined by reference to the
following grids:


 


6

















 


	
  If Daily Average Borrowing
  Availability for

  the Fiscal Quarter is:

  	
   

  	
  Level of
  Applicable Margins:

  
	
  less than
  $40,000,000

  	
   

  	
  Level I

  
	
  less than
  $65,000,000, but equal to or more than $40,000,000

  	
   

  	
  Level II

  
	
  more than
  65,000,000

  	
   

  	
  Level III

  



 


	
   

  	
   

  	
  Applicable
  Margins

  	
   

  
	
   

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  	
  Level III

  	
   

  
	
  Applicable Revolver Index Margin

  	
   

  	
  .50

  	
  %

  	
  .25

  	
  %

  	
  0

  	
  %

  
	
  Applicable Revolver LIBOR Margin

  	
   

  	
  2.50

  	
  %

  	
  2.25

  	
  %

  	
  2.00

  	
  %

  



 


All adjustments in the Applicable Margins after
December 31, 2003 shall be implemented quarterly on a prospective basis,
for each calendar month commencing at least one (1) day after the date of
delivery to Agent and Lenders of the quarterly unaudited Financial Statements (with
the accompanying Compliance and Pricing Certificate) evidencing the need for an
adjustment.  Concurrently with the
delivery of those Financial Statements (with the accompanying Compliance and
Pricing Certificate), Borrower shall deliver to Agent and Lenders a
certificate, signed by its chief financial officer, setting forth in reasonable
detail the basis for the continuance of, or any change in, the Applicable
Margins.  Failure to timely deliver such
Financial Statements (with the accompanying Compliance and Pricing Certificate)
shall, in addition to any other remedy provided for in this Agreement, result
in an increase in the Applicable Margins to the highest level set forth in the
foregoing grid, until the first day of the first calendar month following the delivery
of those Financial Statements (with the accompanying Compliance and Pricing
Certificate) demonstrating that such an increase is not required.  If any Event of Default has occurred and is
continuing at the time any reduction in the Applicable Margins is to be
implemented, that reduction shall be deferred until the first day of the first
calendar month following the date on which all Events of Default are waived or
cured.


 


(b)                                 If
any payment on any Loan becomes due and payable on a day other than a Business
Day, the maturity thereof will be extended to the next succeeding Business Day
(except as set forth in the definition of LIBOR Period) and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension.


 


(c)                                  All
computations of Fees calculated on a per annum basis and all computations of
interest shall be made by Agent on the basis of a 360-day year, in each case
for the actual number of days occurring in the period for which such Fees and
interest are payable.  The Index Rate is
a floating rate determined for each day. 
Each determination by Agent of an interest rate and Fees hereunder shall
be final, binding and conclusive on Borrower, absent manifest error.


 


(d)                                 So
long as an Event of Default has occurred and is continuing under Section 6.1(a),
6.1(b), (f) or (g) and without notice of any kind, or so long as any other
Event of Default has occurred and is continuing and at the election of Agent
(or upon the written request of Requisite Lenders) confirmed by written notice
from Agent to Borrower, the interest rates applicable to the Loans and the
Letter of Credit Fee shall be increased by two percentage points (2%) per annum
above the rates of interest or the rate of such Fee otherwise applicable
hereunder (“Default Rate”), and all outstanding Obligations shall bear
interest at the Default Rate applicable to such Obligations.  Interest and Letter of Credit Fees at the
Default Rate shall accrue from the initial date of such Event 


 


7

















 


of Default until that Event of Default is cured or
waived and shall be payable upon demand, but in any event, shall be payable on
the next regularly scheduled payment date set forth herein for such Obligation.


 


(e)                                  Borrower
shall have the option to (i) request that any Revolving Credit Advance be
made as a LIBOR Loan, (ii) convert at any time all or any part of
outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to
LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject
to payment of the LIBOR Breakage Fee in accordance with Section 1.3(e)
if such conversion is made prior to the expiration of the LIBOR Period
applicable thereto, or (iv) continue all or any portion of any Loan (other
than the Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable
LIBOR Period and the succeeding LIBOR Period of that continued Loan shall
commence on the first day after the last day of the LIBOR Period of the Loan to
be continued.  Any Loan or group of
Loans having the same proposed LIBOR Period to be made or continued as, or
converted into, a LIBOR Loan must be in a minimum amount of $1,000,000 and
integral multiples of $500,000 in excess of such amount.  Any such election must be made by
1:00 p.m. (New York time) on the 3rd Business Day prior to (1) the
date of any proposed Revolving Credit Advance which is to bear interest at the
LIBOR Rate, (2) the end of each LIBOR Period with respect to any LIBOR
Loans to be continued as such, or (3) the date on which Borrower wishes to
convert any Index Rate Loan (other than the Swing Line Loan) to a LIBOR Loan
for a LIBOR Period designated by Borrower in such election.  If no election is received with respect to
an existing LIBOR Loan by 1:00 p.m. (New York time) on the 3rd Business
Day prior to the end of the LIBOR Period with respect thereto, that LIBOR Loan
shall be converted to an Index Rate Loan at the end of its LIBOR Period.  Borrower must make such election by notice
to Agent in writing, by fax or overnight courier.  In the case of any conversion or continuation, such election must
be made pursuant to a written notice (a “Notice of Conversion/Continuation”)
in the form of Exhibit 1.2(e). 
No Loan shall be made, converted into or continued as a LIBOR Loan, if
an Event of Default has occurred and is continuing and Agent or Requisite
Lenders have determined not to make or continue any Loan as a LIBOR Loan as a
result thereof.  No Loan may be made as
or converted into a LIBOR Loan until the earlier of (i) 45 days after the
Closing Date or (ii) completion of primary syndication as determined by
Agent.


 


(f)                                    Notwithstanding
anything to the contrary set forth in this Section 1.2, if a court
of competent jurisdiction determines in a final order that any rate of interest
payable hereunder exceeds the highest rate of interest permissible under law
(the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate
would be so exceeded, such rate of interest payable hereunder shall be equal to
the Maximum Lawful Rate; provided, however, that if at any time
thereafter such rate of interest payable hereunder is less than the Maximum
Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum
Lawful Rate until such time as the total interest received by Agent, on behalf
of Lenders, is equal to the total interest that would have been received had
such interest rate payable hereunder been (but for the operation of this
paragraph) the interest rate payable since the Closing Date as otherwise provided
in this Agreement.  Thereafter, such
interest hereunder shall be paid at the rate(s) of interest and in the manner
provided in Sections 1.2(a) through (e), as applicable, unless and
until any such rate of interest again exceeds the Maximum Lawful Rate, and at
that time this paragraph shall again apply. 
In no event shall the total interest received by any Lender pursuant to
the terms hereof exceed the amount that such Lender could lawfully have
received had the interest due hereunder been calculated for the full term
hereof at the Maximum Lawful Rate.  If
the Maximum Lawful Rate is calculated pursuant to this paragraph, such interest
shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by
the number of days in the year in which such calculation is made.  If, notwithstanding the provisions of this Section 1.2(f),
a court of competent jurisdiction shall determine by a final, non-appealable
order that a Lender has received interest hereunder in excess of the Maximum
Lawful Rate, Agent shall, to the extent permitted by applicable law, promptly
apply such excess as specified in Section 1.5(e) and thereafter
shall refund any excess to Borrower or as such court of competent jurisdiction
may otherwise order.


 


8

















 


1.3.                              Fees.


 


(a)                                  Fee
Letter.  Borrower shall pay to GE
Capital, individually, the Fees specified in that certain fee letter dated as
of November 10, 2003 between Borrower and GE Capital (the “GE Capital
Fee Letter”), at the times specified for payment therein.


 


(b)                                 Unused
Line Fee.  As additional
compensation for the Revolving Lenders, Borrower shall pay to Agent, for the
ratable benefit of such Lenders, in arrears, on the first Business Day of each
month prior to the Commitment Termination Date and on the Commitment
Termination Date, a fee for Borrower’s non-use of available funds in an amount
equal to 37.5 basis points (.375%) per annum multiplied by the difference
between (x) the Maximum Amount (as it may be reduced from time to time)
and (y) the average for the period of the daily closing balances of the
Revolving Loan (including, without duplication, Swing Line Advances and Letter
of Credit Obligations) outstanding during the period for which such Fee is due.


 


(c)                                  Closing
Fee.  As additional compensation for
the Lenders, Borrower shall pay to Agent, for the ratable benefit of such
Lenders, on the Closing Date, a nonrefundable fee of $800,000.


 


(d)                                 Letter
of Credit Fee.  Borrower agrees to
pay to Agent for the benefit of Revolving Lenders, as compensation to such
Revolving Lenders for Letter of Credit Obligations incurred hereunder,
(i) all costs and expenses incurred by Agent or any Lender on account of
such Letter of Credit Obligations, and (ii) for each month during which
any Letter of Credit Obligation shall remain outstanding, a fee (the “Letter
of Credit Fee”) in an amount equal to the product of the average daily
undrawn face amount of all Letters of Credit issued, guaranteed or supported by
risk participation agreements multiplied by a per annum rate equal to the
Applicable Revolver LIBOR Margin then in effect.  Such fee shall be paid to Agent for the benefit of the Revolving
Lenders in arrears, on the first Business Day of each month and on the
Commitment Termination Date.  In addition,
Borrower shall pay to each L/C Issuer, on demand, such fees (including all per
annum fees), reasonable charges and expenses of such L/C Issuer in respect of
the issuance, negotiation, acceptance, amendment, transfer and payment of such
Letter of Credit or otherwise payable pursuant to the application and related
documentation under which such Letter of Credit is issued.


 


(e)                                  LIBOR
Breakage Fee.  Upon (i) any
default by Borrower in making any borrowing of, conversion into or continuation
of any LIBOR Loan following Borrower’s delivery to Agent of any LIBOR Loan
request in respect thereof or (ii) any payment of a LIBOR Loan on any day
that is not the last day of the LIBOR Period applicable thereto (regardless of
the source of such prepayment and whether voluntary, by acceleration or
otherwise), Borrower shall pay Agent, for the benefit of all Lenders that
funded or were prepared to fund any such LIBOR Loan, the LIBOR Breakage Fee.


 


(f)                                    Omitted.


 


(g)                                 Expenses
and Attorneys’ Fees.  Borrower
agrees to promptly pay all reasonable fees, charges, costs and expenses
(including reasonable attorneys’ fees and expenses) incurred by Agent in
connection with any matters contemplated by or arising out of the Loan
Documents, in connection with the examination, review, due diligence
investigation, documentation, negotiation, closing and syndication of the
transactions contemplated herein and in connection with the continued
administration of the Loan Documents including any amendments, modifications,
consents and waivers.  Borrower agrees
to reimburse Agent for all due and payable out of pocket costs (including
reasonable fees and expenses) as incurred by Agent to third party appraisers
and auditors, and a fee of $750 per audit day per in-house auditor, plus out of
pocket expenses incurred by any such appraisers and auditors in an amount not 


 


9

















 


exceeding (while no Event of Default is continuing and
while Borrowing Availability is at least $20,000,000) $50,000 in the aggregate
for each field audit and $60,000 in the aggregate for each appraisal.  Borrower agrees to promptly pay reasonable
documentation charges assessed by Agent for amendments, waivers, consents and
any of the documentation prepared by Agent’s internal legal staff.  Borrower agrees to promptly pay all
reasonable fees, charges, costs and expenses (including fees, charges, costs
and reasonable expenses of attorneys, auditors (whether internal or external),
appraisers, consultants and advisors and the allocated cost of internal legal
staff) incurred by Agent in connection with any Event of Default, work-out or
action to enforce any Loan Document or to collect any payments due from
Borrower or any other Credit Party.  All
fees, charges, costs and expenses for which Borrower is responsible under this Section 1.3(g)
shall be deemed part of the Obligations when incurred, payable upon demand or
in accordance with the final sentence of Section 1.4 and secured by
the Collateral.


 


1.4.                              Payments.  All
payments by Borrower of the Obligations shall be without deduction, defense,
setoff or counterclaim and shall be made in same day funds and delivered to
Agent, for the benefit of Agent and Lenders, as applicable, by wire transfer to
the following account or such other place as Agent may from time to time
designate in writing.


 


ABA No. 021–001–033


Account Number 502–328–54


Bankers Trust Company


New York, New York


ACCOUNT NAME: 
GECC/CAF DEPOSITORY


Reference: 
DaytonSupCo – CFN 5434


 


Borrower shall receive credit on the day of receipt
for funds received by Agent by 2:00 p.m. (New York time).  In the absence of timely receipt, such funds
shall be deemed to have been paid on the next Business Day.  Whenever any payment to be made hereunder
shall be stated to be due on a day that is not a Business Day, the payment may
be made on the next succeeding Business Day and such extension of time shall be
included in the computation of the amount of interest and Fees due hereunder.


 


Borrower hereby authorizes Lenders to make Revolving
Credit Advances or Swing Line Advances, on the basis of their Pro Rata Shares,
for the payment of interest, Fees and expenses, Letter of Credit reimbursement
obligations and any amounts required to be deposited with respect to
outstanding Letter of Credit Obligations pursuant to Sections 1.5(g) or
6.3.


 


1.5.                              Prepayments.


 


(a)                                  Voluntary
Prepayments of Loans.  At any time,
Borrower may prepay the Loans, in whole or in part, without premium or penalty
subject to the payment of LIBOR Breakage Fees, if applicable.


 


(b)                                 Termination
and Reduction of Revolving Loan Commitment.  Upon not less than ten (10) Business Days prior irrevocable
written notice to Agent, Borrower at any time may (i) terminate the Revolving
Loan Commitment and on the date specified in such notice the Revolving Loan
Commitment shall terminate and all Obligations shall become immediately due and
payable or (ii) reduce, in part in increments of not less than $1,000,000 or
amounts in excess thereof in integral multiples of $500,000, the Revolving Loan
Commitment of each Lender pro rata, so long as at the time of giving of any
such notice and at the time of the effective date of such notice the Revolving
Loan does not exceed the Revolving Loan Commitment.


 


10

















 


(c)                                  Prepayments
from Asset Dispositions.  Except as
otherwise provided in Section 1.5(f) hereof, immediately upon
receipt of any Net Proceeds in respect of any Asset Disposition in excess of
$1,000,000 for any single transaction or series of related transactions,
Borrower shall repay the Revolving Credit Advances (without reduction of the
Revolving Loan Commitment) by an amount equal to the amount of such Net
Proceeds and the Revolving Loan Commitment shall be permanently reduced by the
amount of such Net Proceeds provided, however, that any such
requirement to repay Revolving Credit Advances in respect of such Net Proceeds
shall be reduced to the extent that Borrower shall have certified to Agent that
such Net Proceeds have been deemed to have been applied to effect a permanent
reduction of Revolving Loan Commitment under clause 3(A) of Section 4.10 of the
Senior Notes Indenture and clause 3(A) of Section 4.10 of the Senior
Subordinated Notes Indenture. 
Notwithstanding the foregoing, Borrower or their Subsidiaries may
reinvest all Net Proceeds of such Asset Disposition, within three hundred
sixty-five (365) days, in Productive Assets. 
If the applicable Credit Party does not intend to so reinvest such Net
Proceeds or if the period set forth in the immediately preceding sentence
expires without such reinvestment of such Net Proceeds, Borrower shall prepay
the Revolving Credit Advances in an amount equal to such remaining Net Proceeds
of such Asset Disposition to the extent otherwise required by this Section 1.5(c).  The payments shall be applied in accordance
with Section 1.5(e).


 


(d)                                 Omitted.


 


(e)                                  Application
of Proceeds.  With respect to the
prepayments described in Sections 1.5(a) and 1.5(c), such
prepayments shall first be applied to reduce the outstanding principal balance
of the Swing Line Loan and then the Revolving Credit Advances and, except in
the case of Section 1.5(a), as a permanent reduction of the Revolving Loan
Commitment.  Considering each type of
Loan being prepaid separately, any such prepayment shall be applied first to
Index Rate Loans of the type required to be prepaid before application to LIBOR
Loans of the type required to be prepaid, in each case in a manner which
minimizes any resulting LIBOR Breakage Fee.


 


(f)                                    Application
of Prepayments from Insurance Proceeds. 
Prepayments from insurance in accordance with Section 2.2 or
condemnation proceeds shall be applied as follows:  insurance proceeds from casualties or losses shall be applied
first, to the Swing Line Loans and, second, to the Revolving Credit
Advances.  Neither the Revolving Loan
Commitment nor the Swing Line Loan Commitment shall be permanently reduced by
the amount of any such prepayments.


 


(g)                                 Letter
of Credit Obligations.  In the event
any Letters of Credit are outstanding at the time that the Revolving Loan
Commitment is terminated, Borrower shall (1)  with respect to each Letter
of Credit so outstanding, deposit with Agent for the benefit of all Lenders
cash, or, with the consent of Agent in each instance, provide a standby
back-to-back letter of credit in form and substance, and issued by a bank or
other financial institution, acceptable to Agent in all respects, in each case
an amount equal to 105% of the Letter of Credit Obligations arising from such
Letter of Credit and to be available to Agent to reimburse payments of drafts
drawn under such Letters of Credit and pay any Fees and expenses related
thereto and (2) prepay the fee payable under Section 1.3(d)
with respect to such Letters of Credit for the full remaining terms of such
Letters of Credit.  Upon termination of
any such Letter of Credit, the unearned portion of such prepaid fee
attributable to such Letter of Credit shall be refunded to Borrower.


 


1.6.                              Maturity.  All
of the Obligations shall become due and payable as otherwise set forth herein,
but in any event all of the remaining Obligations (other than contingent
indemnification Obligations to the extent no unsatisfied claim has been
asserted) shall become due and payable upon termination of this Agreement.  Until all Obligations have been fully paid
and satisfied (other than contingent indemnification obligations to the extent
no unsatisfied claim has been asserted), the Revolving Loan Commitment has been
terminated and all Letters of Credit have been terminated or 


 


11

















 


otherwise secured to the satisfaction of Agent, Agent
shall be entitled to retain the security interests in the Collateral granted
under the Collateral Documents and the ability to exercise all rights and
remedies available to it under the Loan Documents and applicable laws.  Notwithstanding anything contained in this
Agreement to the contrary, upon any termination of the Revolving Loan
Commitment, all of the Obligations shall be due and payable.


 


1.7.                              Eligible Accounts.  All of the Accounts owned by Borrower or any of its Domestic
Subsidiaries and reflected in the most recent Borrowing Base Certificate
delivered by Borrower to Agent shall be “Eligible Accounts” for purposes
of this Agreement, except any Account to which any of the exclusionary criteria
set forth below applies.  Agent shall
have the right to establish, modify or eliminate Reserves against Eligible
Accounts from time to time in its reasonable credit judgment.  In addition, Agent reserves the right, at
any time and from time to time after the Closing Date, to adjust any of the
criteria set forth below, to establish new criteria and to adjust advance rates
with respect to Eligible Accounts, in its reasonable credit judgment exercised
in good faith, subject to the approval of Supermajority Revolving Lenders in
the case of adjustments, new criteria or changes in advance rates which have
the effect of making more credit available. 
Eligible Accounts shall not include any Account of Borrower or its
Domestic Subsidiaries:


 


(a)                                  that
does not arise from the sale of goods or the performance of services by
Borrower or a Domestic Subsidiary in the ordinary course of its business;


 


(b)                                 (i) upon
which Borrower’s or a Domestic Subsidiary’s right to receive payment is not
absolute or is contingent upon the fulfillment of any condition whatsoever or
(ii) as to which Borrower or such Domestic Subsidiary is not able to bring
suit or otherwise enforce its remedies against the Account Debtor through judicial
process, or (iii) if the Account represents a progress billing consisting
of an invoice for goods sold or used or services rendered pursuant to a
contract under which the Account Debtor’s obligation to pay that invoice is
subject to Borrower’s or a Domestic Subsidiary’s completion of further
performance under such contract or is subject to the equitable lien of a surety
bond issuer;


 


(c)                                  to
the extent that any defense, counterclaim, setoff or dispute is asserted as to
such Account;


 


(d)                                 that
is not a true and correct statement of bona fide indebtedness incurred in the
amount of the Account for merchandise sold to or services rendered and accepted
by the applicable Account Debtor;


 


(e)                                  with
respect to which an invoice has not been sent to the applicable Account Debtor;


 


(f)                                    that
(i) is not owned by Borrower or a Domestic Subsidiary or (ii) is
subject to any right, claim, security interest or other interest of any other
Person, other than Permitted Encumbrances that are junior to the Lien of the
Agent securing the Obligations);


 


(g)                                 that
arises from a sale to any Credit Party, director, officer, other employee or
Affiliate of any Credit Party, or to any entity that has any common officer or
director with any Credit Party;


 


(h)                                 that
is the obligation of an Account Debtor that is the United States government or
a political subdivision thereof, or any state, county or municipality or
department, agency or instrumentality thereof to the extent such obligations in
the aggregate exceed $2,500,000 unless Agent, in 


 


12

















 


its sole discretion, has agreed to the contrary in
writing and Borrower or the applicable Domestic Subsidiary, if necessary or
desirable, has complied with respect to such obligation with the Federal
Assignment of Claims Act of 1940, or any applicable state, county or municipal
law restricting the assignment thereof with respect to such obligation;


 


(i)                                     that
is the obligation of an Account Debtor located in a foreign country other than
Canada unless payment thereof is assured by a letter of credit assigned and
delivered to Agent, satisfactory to Agent as to form, amount and issuer;


 


(j)                                     to
the extent Borrower or any Subsidiary thereof is liable for goods sold or
services rendered by the applicable Account Debtor to Borrower or any
Subsidiary thereof but only to the extent of the potential offset;


 


(k)                                  that
arises with respect to goods that are delivered on a bill-and-hold,
cash-on-delivery basis or placed on consignment, guaranteed sale or other terms
by reason of which the payment by the Account Debtor is or may be conditional;


 


(l)                                     that
is in default; provided, that, without limiting the generality of the
foregoing, an Account shall be deemed in default upon the occurrence of any of
the following:


 


(i)                                     (x)
the Account has not been paid and there has elapsed 120 (but not more than 150)
days since its invoice date and the Account is not otherwise ineligible; (y)
the Account has not been paid and there has elapsed more than 150 days since
its invoice date; or (z) the Account has not been paid and there has elapsed
more than 90 days since its due date and it is not an Account taken into
account under clause (y);


 


(ii)                                  the
Account Debtor obligated upon such Account suspends business, makes a general
assignment for the benefit of creditors or fails to pay its debts generally as
they come due; or


 


(iii)                               a
petition is filed by or against any Account Debtor obligated upon such Account
under any bankruptcy law or any other federal, state or foreign (including any
provincial) receivership, insolvency relief or other law or laws for the relief
of debtors;


 


(m)                               that
is the obligation of an Account Debtor if 50% or more of the Dollar amount of
all Accounts owing by that Account Debtor are ineligible under the other
criteria set forth in paragraph (l) of this Section 1.7;


 


(n)                                 as
to which Agent’s Lien thereon, on behalf of itself and Lenders, is not a first
priority perfected Lien;


 


(o)                                 as
to which any of the representations or warranties in the Loan Documents are
untrue;


 


(p)                                 to
the extent such Account is evidenced by a judgment, Instrument or, except in
the case of a Rental, Chattel Paper;


 


(q)                                 to
the extent that such Account, together with all other Accounts owing by such
Account Debtor and its Affiliates as of any date of determination exceed 10% of
all Eligible Accounts, except as otherwise agreed by Agent;


 


13

















 


(r)                                    that
is payable in any currency other than Dollars;


 


(s)                                  in
the case of any Rental, is not subject to a written lease agreement; and


 


(t)                                    in
the case of any Rental, is not subject to a first priority security interest of
Agent on behalf of Lenders, perfected by possession of all Chattel Paper
related to such Rental by possession or by the filing of a financing statement,
which financing statement indicates that a purchase of or security interest in
such chattel paper by or in favor of any Person other than Agent or the trustee
under the Senior Notes is violative of the rights of Agent.


 


1.8.                              Eligible Inventory.  All of the Inventory owned by the Borrower or any of its Domestic
Subsidiaries and reflected in the most recent Borrowing Base Certificate
delivered by Borrower to Agent shall be “Eligible Inventory” for
purposes of this Agreement, except any Inventory to which any of the
exclusionary criteria set forth below applies. 
Agent shall have the right to establish, modify, or eliminate Reserves
against Eligible Inventory from time to time in its reasonable credit judgment.  In addition, Agent reserves the right, at
any time and from time to time after the Closing Date, to adjust any of the
criteria set forth below, to establish new criteria and to adjust advance rates
with respect to Eligible Inventory in its reasonable credit judgment exercised
in good faith, subject to the approval of Supermajority Revolving Lenders in
the case of adjustments, new criteria or changes in advance rates which have
the effect of making more credit available. 
Eligible Inventory shall not include any Inventory of Borrower or a
Domestic Subsidiary that:


 


(a)                                  is
not owned by Borrower or a Domestic Subsidiary free and clear of all Liens and
rights of any other Person (including the rights of a purchaser that has made
progress payments and the rights of a surety that has issued a bond to assure Borrower’s
or a Domestic Subsidiary’s performance with respect to that Inventory), except
the Liens in favor of Agent, on behalf of itself and Lenders;


 


(b)                                 (i) except
in the case of Inventory on lease to customers in the ordinary course of
business (w) is not located on premises located in a state of the United States
of America or the District of Columbia owned, leased or rented by Borrower or a
Domestic Subsidiary and set forth in Disclosure Schedule (5.12),
(x) is stored at a leased location, unless Agent has given its prior
consent thereto and unless (1) a reasonably satisfactory, landlord waiver
has been delivered to Agent, or (2) Reserves in an amount equal to four
months rent have been established with respect thereto, (y) is stored with
a bailee or warehouseman or is in a processor or converter facility unless a
reasonably satisfactory, acknowledged waiver or subordination of all Liens and
claims by the bailee, warehouseman, processor or converter has been received by
Agent or Reserves reasonably satisfactory to Agent have been established with
respect thereto, or (z) is located at an owned location subject to a
mortgage in favor of a lender other than Agent, unless a reasonably
satisfactory mortgagee waiver has been delivered to Agent or Reserves reasonably
satisfactory to Agent have been established with respect thereto, or
(ii) is located at any site if the aggregate book value of Inventory at
any such location is less than $100,000;


 


(c)                                  is
placed on consignment or is in transit, except for Inventory in transit between
domestic locations of Credit Parties as to which Agent’s Liens have been
perfected at origin and destination;


 


(d)                                 is
covered by a negotiable document of title, unless such document has been
delivered to Agent with all necessary endorsements, free and clear of all Liens
except those in favor of Agent and Lenders;


 


(e)                                  is
excess, obsolete, unsaleable, shopworn, seconds, damaged or unfit for sale;


 


14

















 


(f)                                    consists
of display items or packing or shipping materials, manufacturing supplies,
work-in-process Inventory to the extent such work-in-process Inventory in the
aggregate exceeds $5,000,000 or replacement parts;


 


(g)                                 is
not held for sale or lease in the ordinary course of Borrower’s or a Domestic
Subsidiary’s business;


 


(h)                                 is
not subject to a first priority lien in favor of Agent on behalf of itself and
Lenders subject to no other Lien other than Permitted Encumbrances that are
junior to the Lien of Agent securing the Obligations;


 


(i)                                     breaches
any of the representations or warranties pertaining to Inventory set forth in
the Loan Documents;


 


(j)                                     consists
of any costs associated with “freight-in” charges, to the extent such
“freight-in” charges can be determined by the Credit Parties;


 


(k)                                  consists
of Hazardous Materials or goods that can be transported or sold only with
licenses that are not readily available;


 


(l)                                     is
not covered by casualty insurance in accordance with Section 2.2;


 


(m)                               is
being leased to a third party as lessee subject to a lease that is not owned by
Borrower or a Domestic Subsidiary or is subject to a lease owned by Borrower or
a Domestic Subsidiary that is subject to a Lien (other than a Permitted
Encumbrance); and


 


(n)                                 is
being leased to a third party as lessee (i) which has commenced a voluntary
case or has consented to the entry of an order for relief in an involuntary
case or to the conversion of an involuntary case to a voluntary case, under the
Bankruptcy Code or (ii) with respect to which a court has entered a decree or
order for relief in an involuntary case under the Bankruptcy Code.


 


1.9.                              Loan Accounts. 
Agent shall maintain a loan account (the “Loan Account”) on its
books to record:  all Advances, all
payments made by Borrower, and all other debits and credits as provided in this
Agreement with respect to the Loans or any other Obligations.  All entries in the Loan Account shall be
made in accordance with Agent’s customary accounting practices as in effect
from time to time.  The balance in the
Loan Account, as recorded on Agent’s most recent printout or other written
statement, shall, absent manifest error, be presumptive evidence of the amounts
due and owing to Agent and Lenders by Borrower; provided that any
failure to so record or any error in so recording shall not limit or otherwise
affect Borrower’s duty to pay the Obligations. 
Agent shall render to Borrower a monthly accounting of transactions with
respect to the Loans setting forth the balance of the Loan Account for the
immediately preceding month.  Unless
Borrower notifies Agent in writing of any objection to any such accounting
(specifically describing the basis for such objection), within sixty (60) days
after the date thereof, each and every such accounting shall, absent manifest
error, be deemed final, binding and conclusive on Borrower in all respects as
to all matters reflected therein.  Only
those items expressly objected to in such notice shall be deemed to be disputed
by Borrower.  Notwithstanding any
provision herein contained to the contrary, any Lender may elect (which
election may be revoked) to dispense with the issuance of Notes to that Lender
and may rely on the Loan Account as evidence of the amount of Obligations from
time to time owing to it.


 


15

















 


1.10.                        Yield Protection; Illegality.


 


(a)                                  Capital
Adequacy and Other Adjustments.  In
the event that any Lender shall have determined that the adoption after the
date hereof of any law, treaty, governmental (or quasi-governmental) rule,
regulation, guideline or order regarding capital adequacy, reserve requirements
or similar requirements or compliance by any Lender or any corporation
controlling such Lender with any request or directive regarding capital
adequacy, reserve requirements or similar requirements (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful) from any central bank or governmental agency or body having
jurisdiction does or shall have the effect of increasing the amount of capital,
reserves or other funds required to be maintained by such Lender or any
corporation controlling such Lender and thereby reducing the rate of return on
such Lender’s or such corporation’s capital as a consequence of its obligations
hereunder, then Borrower shall from time to time within fifteen (15) days after
notice and demand from such Lender (together with the certificate referred to
in the next sentence and with a copy to Agent) pay to Agent, for the account of
such Lender, additional amounts sufficient to compensate such Lender for such
reduction; provided, however, that Borrower shall not be required
to compensate any Lender pursuant to this paragraph for any amounts incurred
more than 180 days prior to the date that such Lender notifies Borrower of such
Lender’s intention to claim compensation therefor, and provided, further,
that if the circumstances giving rise to such claim have a retroactive effect,
then such 180-day period shall be extended to include the period of such
retroactive effect.  A certificate as to
the amount of such cost and showing the basis of the computation of such cost
submitted by such Lender to Borrower and Agent shall, absent manifest error, be
final, conclusive and binding for all purposes.


 


(b)                                 Increased
LIBOR Funding Costs; Illegality. 
Notwithstanding anything to the contrary contained herein, if the
introduction of or any change in any law, rule, regulation, treaty or directive
(or any change in the interpretation thereof) shall make it unlawful, or any
central bank or other Governmental Authority shall assert that it is unlawful,
for any Lender to agree to make or to make or to continue to fund or maintain
any LIBOR Loan, then, unless that Lender is able to make or to continue to fund
or to maintain such LIBOR Loan at another branch or office of that Lender
without, in that Lender’s opinion, adversely affecting it or its Loans or the
income obtained therefrom, on notice thereof and demand therefor by such Lender
to Borrower through Agent, (i) the obligation of such Lender to agree to
make or to make or to continue to fund or maintain LIBOR Loans shall terminate
and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR
Loans owing to such Lender, together with interest accrued thereon, unless
Borrower, within five (5) Business Days after the delivery of such notice and
demand, converts all LIBOR Loans into Index Rate Loans.  If, after the date hereof, the introduction
of, change in or interpretation of any law, rule, regulation, treaty or
directive would impose or increase reserve requirements (other than as taken
into account in the definition of LIBOR) or otherwise increase the cost to any
Lender of making or maintaining a LIBOR Loan, then Borrower shall from time to
time within fifteen (15) days after notice and demand from Agent (together with
the certificate referred to in the next sentence) pay to Agent, for the account
of all such affected Lenders, additional amounts sufficient to compensate such
Lenders for such increased cost; provided, however, that Borrower
shall not be required to compensate any Lender pursuant to this paragraph for
any amounts incurred more than 180 days prior to the date that such Lender
notifies Borrower of such Lender’s intention to claim compensation therefor,
and provided, further, that if the circumstances giving rise to
such claim have a retroactive effect, then such 180-day period shall be
extended to include the period of such retroactive effect.  A certificate as to the amount of such cost
and showing the basis of the computation of such cost submitted by Agent on
behalf of all such affected Lenders to Borrower shall, absent manifest error,
be final, conclusive and binding for all purposes.


 


16

















 


1.11.                        Taxes.


 


(a)          No
Deductions.  Subject to the
immediately succeeding sentence and Section 1.11(c) below, any and
all payments or reimbursements made hereunder or under the Notes or other Loan
Documents shall be made free and clear of and without deduction for any and all
Charges, taxes, levies, imposts, deductions or withholdings, and all
liabilities with respect thereto of any nature whatsoever imposed by any taxing
authority, excluding such Charges, taxes, levies, imposts, deductions or
withholdings to the extent imposed on Agent’s or a Lender’s net income
(including franchise taxes, capital taxes, minimum taxes and other taxes
imposed in lieu of net income taxes) by the jurisdiction in which Agent or such
Lender is organized or is engaged in business (including the jurisdiction in
which a lending office is located) (“Excluded Taxes”).  Except as otherwise provided in this Section
1.11, if any Credit Party shall be required by current or future law to
deduct any such amounts from or in respect of any sum payable hereunder or
under any other Loan Document to any Lender or Agent, then the sum payable
hereunder shall be increased as may be necessary so that, after making all
required deductions, such Lender or Agent receives an amount equal to the sum
it would have received had no such deductions been made.  All required deductions shall be complied
with and paid over to the relevant taxing authority or other Governmental
Authority in accordance with applicable law. 
Notwithstanding anything to the contrary, no Credit Party shall have any
obligation to increase the sum payable hereunder or under any other Loan
Document (or pay additional amounts) pursuant to this Section 1.11(a)
with respect to any taxes, deductions or withholdings that are in effect and
would apply to a payment hereunder or under any other Loan Document made to any
Lender that changes its applicable lending office to an office outside the
United States as of the date of such change of the applicable lending office.


 


(b)         Changes
in Laws.  In the event that,
subsequent to the Closing Date, (1) any changes in any existing law,
regulation, treaty or directive or in the interpretation or application
thereof, (2) any new law, regulation, treaty or directive enacted or any
interpretation or application thereof, or (3) compliance by Agent or any
Lender with any request or directive (whether or not having the force of law)
from any Governmental Authority:


 


(i)                                     does
or shall subject Agent or any Lender to any tax of any kind whatsoever with
respect to this Agreement, the other Loan Documents or any Loans made or
Letters of Credit issued hereunder, or change the basis of taxation of payments
to Agent or such Lender of principal, fees, interest or any other amount
payable hereunder (except, in each case, for Excluded Taxes and any changes with
respect thereto and taxes that are covered by Section 1.11(a), 1.11(f) or
1.11(g)); or


 


(ii)                                  does
or shall impose on Agent or any Lender any other condition or increased cost in
connection with the transactions contemplated hereby or participations herein;


 


and the result of any of the foregoing is to increase
the cost to Agent or any such Lender of issuing any Letter of Credit or making
or continuing any Loan hereunder, as the case may be, or to reduce any amount
receivable hereunder or under any other Loan Document, then, in any such case,
subject to Section 1.11(c) below and without duplication, Credit Parties
shall promptly pay to Agent or such Lender, upon its demand, any additional
amounts necessary to compensate Agent or such Lender, on an after-tax basis,
for such additional cost or reduced amount receivable, as determined by Agent
or such Lender with respect to this Agreement or the other Loan Documents.  If Agent or such Lender becomes entitled to
claim any additional amounts pursuant to this Section 1.11(b), it shall
promptly notify Borrower of the event by reason of which Agent or such Lender
has become so entitled.  A certificate
as to any additional amounts payable pursuant to the foregoing sentence
submitted by Agent or such Lender to Borrower (with a copy to Agent) shall,
absent manifest error, be final, conclusive and binding for all purposes.


 


17

















 


(c)          Tax
Certificate. Prior to becoming a Lender under this Agreement and on or
before a previously delivered Certificate of Exemption (defined below) expires
or becomes inapplicable or obsolete, other than by reason of a change in the
applicable rules as in effect at the time the Lender becomes a Lender under
this Agreement, each Lender organized under the laws of a jurisdiction outside
the United States (a “Foreign Lender”) shall provide to Borrower
Representative and Agent (i) a properly completed and executed IRS Form W-8BEN
(claiming a complete exemption or a reduction under an applicable treaty) or Form
W-8ECI plus any additional form, certificate or document or a successor form
prescribed by the IRS of the United States, certifying as to such Foreign
Lender’s entitlement to a complete exemption from or a reduction in United
States federal withholding tax under the applicable rules as in effect at the
time the Lender becomes a Lender under this Agreement with respect to payments
to be made to such Foreign Lender under this Agreement and under the Notes, or
(ii) in the case of a Foreign Lender that is not a “bank” (within the meaning
of Section 881(c)(3)(A) of the IRC), cannot claim an exemption under any
applicable treaty and meets the qualifications under the “portfolio interest”
exemption rules, a properly completed and executed IRS Form W-8BEN and a
written certificate to the effect that such Foreign Lender is eligible for a
complete exemption under the applicable rules as in effect at the time the
Lender becomes a Lender under this Agreement under Section 871(h) or 881(c) of
the IRC (in each case, a “Certificate of Exemption”).  Notwithstanding anything to the contrary, if
a Foreign Lender is unable to provide or does not provide a Certificate of
Exemption to Borrower and Agent claiming a complete exemption from United
States withholding tax within the time periods set forth in the preceding
sentence, other than by reason of a change in the applicable rules as in effect
at the time the Lender becomes a Lender under this Agreement, Credit Parties
shall withhold taxes from payments to such Foreign Lender at the applicable
statutory and treaty rates (taking into account such Foreign Lender’s
compliance with applicable certification requirements), and Credit Parties
shall not be required to pay any additional amounts under Section 1.11(a)
as a result of such withholding, provided that such withholding shall
cease (or be reduced to the applicable treaty rate) upon delivery by such
Foreign Lender of a Certificate of Exemption to Borrower and Agent and provided further that Credit Parties
shall be required to pay additional amounts under Section 1.11(a) in
respect of any additional taxes withheld in excess of the initial rate of
United States federal withholding tax indicated in the initial Certificate of
Exemption by reason of a change in the applicable rules as in effect at the
time the Foreign Lender becomes a Lender under this Agreement.  In addition, each Lender shall from time to
time, at a reasonable written request of any Credit Party or Agent, provide
other certificates or forms that are necessary in order for payments made
hereunder or under the Notes to be qualified for an exemption from, or a
reduction in, withholding taxes or deductions.


 


(d)         If a Credit
Party is required to increase the sum payable hereunder (or pay additional
amounts) to any Lender or Agent pursuant to this Section 1.11, such
Lender or Agent shall, at the request of the Credit Party, change the
jurisdiction of its applicable lending office if such change (i) will
eliminate or reduce any such increase in the payment obligation (or additional
amounts) and (ii) is, at such Lender’s sole discretion, determined not to be
materially disadvantageous to such Lender.


 


(e)          To the
extent any Lender is able (as determined by the Lender in its sole discretion)
to apply or otherwise take advantage of any tax credit or refund in conjunction
with any taxes, deductions or withholdings which give rise to an obligation on
a Credit Party to pay an increased sum or additional amounts pursuant to this Section
1.11, such Lender shall pay the amount of such tax credit or refund (net of
any expenses) to the Credit Party.


 


(f)            In
addition, the Credit Parties agree to pay any current or future stamp or
documentary taxes or any other excise or property taxes, charges, assessments
or similar levies (excluding, for avoidance of doubt, any Excluded Taxes) that
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement, the other Loan
Documents or any Loans made or Letters of Credit issued hereunder (“Other
Taxes”).


 


18

















 


(g)         The Credit
Parties will indemnify each Lender and the Agent for the full amount of
non-Excluded Taxes and Other Taxes paid by such Lender or the Agent, as the
case may be, and any liability (including penalties, interest and expenses
other than penalties, interest and expenses resulting from the Lender’s gross
negligence) arising therefrom or with respect thereto, whether or not such
non-Excluded Taxes or Other Taxes were correctly or legally asserted by the
relevant taxing authority or other Governmental Authority.  Such indemnification shall be made within 30
days after the date any Lender or the Agent, as the case may be, makes written
demand therefor.  Notwithstanding the foregoing,
the Credit Parties shall not be required to provide any indemnity pursuant to
the preceding sentence with respect to taxes, deductions or withholdings (and
any liability relating thereto) for which the Credit Parties would have no
obligation to increase the sum payable hereunder (or pay additional amounts)
pursuant to Section 1.11(a) or 1.11(c).


 


(h)         Within 30
days after the date of any payment of non-Excluded Taxes or Other Taxes
described in Section 1.11(f) above withheld by a Credit Party in respect
of any payment to any Lender (or Assignee Lender) or the Agent, the Credit
Party will furnish to the Agent, at its address referred to on the signature
pages hereof, the original or a certified copy of any available receipt
evidencing payment thereof.


 


SECTION 2.


 


AFFIRMATIVE
COVENANTS


 


Each Credit Party executing this Agreement jointly and
severally agrees as to all Credit Parties that from and after the date hereof
and until the Termination Date:


 


2.1.                              Compliance With Laws and Contractual
Obligations.  Each Credit Party will
(a) comply with and shall cause each of its Subsidiaries to comply with
(i) the requirements of all applicable laws, rules, regulations and orders
of any Governmental Authority (including, without limitation, laws, rules,
regulations and orders relating to taxes, employer and employee contributions,
securities, employee retirement and welfare benefits, environmental protection
matters and employee health and safety) as now in effect and which may be
imposed in the future in all jurisdictions in which such Credit Party or any of
such Credit Party’s Subsidiaries is now doing business or may hereafter be
doing business and (ii) the obligations, covenants and conditions
contained in all Contractual Obligations of such Credit Party or any of its
Subsidiaries other than those laws, rules, regulations, orders and provisions
of such Contractual Obligations the noncompliance with which could not be
reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect and except for Contractual Obligations contested in
good faith, and (b) maintain or obtain and shall cause each of its
Subsidiaries to maintain or obtain all licenses, qualifications and permits now
held or hereafter required to be held by such Credit Party or any of its
Subsidiaries, for which the loss, suspension, revocation or failure to obtain
or renew, could reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect. 
This Section 2.1 shall not preclude any Credit Party or its
Subsidiaries from contesting any taxes or other payments, if they are being
diligently contested in good faith in a manner which stays enforcement thereof
and if appropriate expense provisions have been recorded in conformity with
GAAP, subject to Section 3.2(a). 
Each Credit Party represents and warrants that it (i) is in
compliance and each of its Subsidiaries is in compliance with the requirements
of all applicable laws, rules, regulations and orders of any Governmental
Authority and the obligations, covenants and conditions contained in all
Contractual Obligations other than those laws, rules, regulations, orders and
provisions of such Contractual Obligations the noncompliance with which could
not be reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect, and (ii) maintains and each of its Subsidiaries
maintains all licenses, qualifications and permits referred to above.


 


19

















 


2.2.                              Insurance; Damage to or Destruction
of Collateral.


 


(a)                                  The
Credit Parties shall, at their sole cost and expense, maintain with financially
sound and reputable insurance companies, insurance on all their property in at
least such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption coverage) as are
usually insured against in the same general area by companies engaged in the
same or a similar business.  Such policies
of insurance (or the loss payable and additional insured endorsements delivered
to Agent) shall contain provisions pursuant to which the insurer agrees to
provide 30 days prior written notice to Agent in the event of any non-renewal,
cancellation or amendment of any such insurance policy.  If any Credit Party at any time or times
hereafter shall fail to obtain or maintain any of the policies of insurance
required above or to pay all premiums relating thereto, Agent may at any time
or times thereafter obtain and maintain such policies of insurance and pay such
premiums and take any other action with respect thereto that Agent deems
advisable.  Agent shall have no
obligation to obtain insurance for any Credit Party or pay any premiums
therefor.  By doing so, Agent shall not
be deemed to have waived any Default or Event of Default arising from any
Credit Party’s failure to maintain such insurance or pay any premiums
therefor.  All sums so disbursed,
including reasonable attorneys’ fees, court costs and other charges related
thereto, shall be payable on demand by Borrower to Agent and shall be
additional Obligations hereunder secured by the Collateral.


 


(b)                                 Agent
reserves the right at any time upon any change in any Credit Party’s risk
profile (including any change in the product mix maintained by any Credit Party
or any laws affecting the potential liability of such Credit Party) to require
additional forms and limits of insurance to, in Agent’s opinion, adequately
protect both Agent’s and Lenders’ interests in all or any portion of the
Collateral and to ensure that each Credit Party is protected by insurance in
amounts and with coverage customary for its industry.  If reasonably requested by Agent, each Credit Party shall deliver
to Agent from time to time a report of a reputable insurance broker, reasonably
satisfactory to Agent, with respect to its insurance policies.


 


(c)                                  Each
Credit Party shall deliver to Agent, in form and substance reasonably
satisfactory to Agent, endorsements to (i) all “All Risk” and business
interruption insurance naming Agent, on behalf of itself and Lenders, as loss
payee, and an assignment to Agent of business interruption insurance and
(ii) all general liability and other liability policies naming Agent, on
behalf of itself and Lenders, as additional insured.  Each Credit Party irrevocably makes, constitutes and appoints
Agent (and all officers, employees or agents designated by Agent), so long as
any Default or Event of Default has occurred and is continuing or the
anticipated insurance proceeds exceed $10,000,000, as each Credit Party’s true
and lawful agent and attorney-in-fact for the purpose of making, settling and
adjusting claims under such “All Risk” policies of insurance, endorsing the
name of each Credit Party on any check or other item of payment for the proceeds
of such “All Risk” policies of insurance and for making all determinations and
decisions with respect to such “All Risk” policies of insurance.  Agent shall have no duty to exercise any
rights or powers granted to it pursuant to the foregoing power-of-attorney.  Borrower shall promptly notify Agent of any
loss, damage, or destruction to the Collateral in the amount of $1,000,000 or
more, whether or not covered by insurance. 
After deducting from any insurance proceeds the expenses, if any,
incurred by Agent in the collection or handling thereof, Agent may, at its
option, apply such proceeds to the reduction of the Obligations in accordance
with Section 1.5(f), provided that in the case of insurance
proceeds pertaining to any Credit Party other than Borrower, such insurance
proceeds shall be applied as if Borrower owned the property that generated such
proceeds.  Notwithstanding the
foregoing, Agent shall permit the applicable Credit Party to use such insurance
proceeds to replace, restore, repair or rebuild the property; provided
that if such Credit Party has not completed or entered into binding agreements
to complete such replacement, restoration, repair or rebuilding within 365 days
of such casualty, a prepayment under Section 1.5(f) in the amount of any
then unutilized insurance proceeds shall become due and payable; provided
further that in the case of 


 


20

















 


insurance proceeds pertaining to any Credit Party
other than Borrower, such insurance proceeds shall be applied as if Borrower
owned the property that generated such proceeds.


 


2.3.                              Inspection; Lender Meeting.  Each Credit Party shall permit any
authorized representatives of Agent to visit, audit and inspect any of the
properties of such Credit Party and its Subsidiaries, including its and their
financial and accounting records, and to make copies and take extracts
therefrom, and to discuss its and their affairs, finances and business with its
and their officers and certified public accountants, at such reasonable times
during normal business hours and as often as may be reasonably requested.  Representatives of each Lender will be
permitted to accompany representatives of Agent during each visit, inspection
and discussion referred to in the immediately preceding sentence, at the
expense of such Lender or, following an Event of Default, at the expense of
such Credit Party.  Without in any way
limiting the foregoing, each Credit Party will participate and will cause key
management personnel of each Credit Party and its Subsidiaries to participate
in a meeting with Agent and Lenders at least once during each year, which
meeting shall be held at such time and such place as may be reasonably
requested by Agent.


 


2.4.                              Organizational Existence.  Except as otherwise permitted by Section 3.6,
each Credit Party will and will cause its Subsidiaries to at all times preserve
and keep in full force and effect its organizational existence and all rights
and franchises material to its business.


 


2.5.                              Environmental Matters.  Each Credit Party shall and shall cause each
Person within its control to: 
(a) conduct its operations and keep and maintain its Real Estate in
compliance with all Environmental Laws and Environmental Permits other than
noncompliance that could not reasonably be expected to have a Material Adverse
Effect; (b) implement any and all investigation, remediation, removal and
response actions that are appropriate or necessary to comply with Environmental
Laws and Environmental Permits pertaining to the presence, generation,
treatment, storage, use, disposal, transportation or Release of any Hazardous
Material on, at, in, under, above, to, from or about any of its Real Estate;
(c) notify Agent promptly after such Credit Party or any Person within its
control becomes aware of any violation of Environmental Laws or Environmental
Permits or any Release on, at, in, under, above, to, from or about any Real
Estate that is reasonably likely to result in Environmental Liabilities to a
Credit Party or its Subsidiaries in excess of $500,000; and (d) promptly
forward to Agent a copy of any order, notice, request for information or any
communication or report received by such Credit Party or any Person within its
control in connection with any such violation or Release or any other matter
relating to any Environmental Laws or Environmental Permits that could
reasonably be expected to result in Environmental Liabilities in excess
$500,000, in each case whether or not the Environmental Protection Agency or
any Governmental Authority has taken or threatened any action in connection
with any such violation, Release or other matter.  If Agent at any time has a reasonable basis to believe that there
may be a violation of any Environmental Laws or Environmental Permits by any
Credit Party or any Person under its control or any Environmental Liability
arising thereunder, or a Release of Hazardous Materials on, at, in, under,
above, to, from or about any of its Real Estate, that, in each case, could
reasonably be expected to have a Material Adverse Effect, then each Credit
Party and its Subsidiaries shall, upon Agent’s written request (i) cause
the performance of such environmental audits including subsurface sampling of
soil and groundwater, and preparation of such environmental reports, at
Borrowers’ expense, as Agent may from time to time reasonably request, which
shall be conducted by reputable environmental consulting firms reasonably
acceptable to Agent and shall be in form and substance reasonably acceptable to
Agent, and (ii) permit Agent or its representatives to have access to all
Real Estate for the purpose of conducting such environmental audits and testing
as Agent deems appropriate, including subsurface sampling of soil and
groundwater.  Borrower shall reimburse
Agent for the costs of such audits and tests and the same will constitute a
part of the Obligations secured hereunder.


 


21

















 


2.6.                              Omitted..


 


2.7.                              Conduct of Business.  Each Credit Party shall at all times maintain, preserve and
protect all of its assets and properties used or useful in the conduct of its
business, and keep the same in good repair, working order and condition in all
material respects (taking into consideration ordinary wear and tear) and from
time to time make, or cause to be made, all necessary or appropriate repairs,
replacements and improvements thereto consistent with industry practices.


 


2.8.                              Further Assurances.


 


(a)                                  Each
Credit Party shall, from time to time, execute such guaranties, financing
statements, documents, control agreements, security agreements and reports as
Agent or Requisite Lenders at any time may reasonably request to evidence,
perfect or otherwise implement the guaranties and security for repayment of the
Obligations contemplated by the Loan Documents.  Within ten (10) Business Days following the date hereof, Borrower
shall obtain and deliver to Agent a good standing certificate from the State of
Alabama, dated no earlier than January 28, 2004, for Southern
Construction Products, Inc.  Within five
Business Days following the Closing Date , Borrower shall cause to be delivered
to Agent the endorsements described in Section 2.2(c).  Within thirty (30) days following the
Closing Date, Borrower shall open a new deposit account and shall designate
such deposit account as the Disbursement Account.  Within sixty (60) days following the Closing Date, Borrower (i)
shall use its reasonable efforts to remove of record liens recorded against the
trademarks listed on Schedule 2.8 by Continental Illinois National Bank
and Trust Company of Chicago and (ii) shall cause to be removed of record the
financing statements filed by Union Bank of California, N.A. and listed on Schedule
2.8.  On or prior to December 31,
2004, Borrower shall cause all Domestic Subsidiaries of Borrower (other than
Symons) to be merged into Borrower, with Borrower being the survivor of such
mergers, provided that no such merger shall be required to the extent
that such merger shall have a Material Adverse Effect on Borrower or such Domestic
Subsidiary or shall require the payment of material sums to any Person whose
consent is required for any such merger and no such merger shall be required
until Borrower and such Domestic Subsidiary, through diligent efforts, have
complied with any legal or regulatory and obtained any necessary consents or
approvals from applicable Governmental Authorities.


 


(b)                                 At
the request of Agent with respect to any real property now owned or hereafter
acquired by any Credit Party, such Credit Party shall deliver to Agent a fully
executed mortgage or deed of trust over such ownership or other interest in
real property in form and substance reasonably satisfactory to Agent in favor
of Agent for the benefit of Agent and the Lenders, together with such title
insurance policies, surveys, appraisals, evidence of insurance, legal opinions,
environmental assessments and other documents and certificates as shall
reasonably be required by Agent.


 


(c)                                  Borrower
shall (i) cause each Person, upon its becoming a Subsidiary of Borrower
(provided that this shall not be construed to constitute consent by any of the
Lenders to any transaction referred to above which is prohibited by the terms
of this Agreement), promptly, in the event that such Subsidiary is a Domestic
Subsidiary, to execute and deliver this Agreement as a Credit Party and to
guaranty the Obligations and to grant to Agent, for the benefit of Agent and
Lenders, a security interest in the real, personal and mixed property of such
Person to secure the Obligations and (ii) pledge, or cause to be pledged,
to Agent all of the Stock of such Subsidiary (if such Subsidiary is a Domestic
Subsidiary) or 65% of the Stock of such Subsidiary (if such Subsidiary is a
Foreign Subsidiary directly owned by Borrower or by a Domestic Subsidiary) to
secure the Obligations.  The
documentation for such guaranty, security and pledge shall be substantially
similar to the Loan Documents executed concurrently herewith with such
modifications as are reasonably requested by Agent and shall be accompanied by
such certificates, legal opinions and other documents as may be reasonably
requested by Agent.


 


(d)                                 After
the acquisition by Borrower or any of its Subsidiaries of assets or personal
property of the type that would have constituted Collateral on the Closing
Date, including investments of 


 


22

















 


the type that would have constituted Collateral on the
Closing Date, Borrower will promptly upon request by Agent take, or will cause
their Subsidiaries to take, all necessary action, including (i) the filing
of appropriate financing statements under the applicable provisions of the UCC,
applicable foreign, domestic or local laws, rules or regulations in each of the
offices where such filing is necessary or appropriate, (ii) the execution
and delivery of Control Agreements, and (iii) the notation of the Lien of
Agent on any certificate of title, in each case, to create and perfect a Lien
in such Collateral (or comparable interest under foreign law in the case of
foreign Collateral) pursuant to and to the full extent required by the Security
Agreements and this Agreement.


 


2.9.                              [Reserved].


 


2.10.                        Cash Management Systems.  Borrower shall, and shall cause each other
Credit Party to, enter into Control Agreements with respect to each deposit
account maintained by Borrower or any Subsidiary of Borrower (other than any
payroll account so long as such payroll account is a zero balance account) as
of or after the Closing Date.  Each such
deposit account control agreement shall be in form and substance satisfactory
to Agent.  The Borrower and each
Guarantor shall enter into and maintain with one or more banks and pursuant to
agreements inform and substance satisfactory to Agent, lock box arrangements,
it being understood that unless an Event of Default shall be continuing and
notice has been given by Agent in accordance with the applicable Blocked
Account Agreement, amounts credited to the lock-box account will not be
transferred on a daily basis to the Agent’s and shall be available to Borrower
and each such Guarantor.  


 


SECTION 3.


 


NEGATIVE
COVENANTS


 


Each Credit Party executing this Agreement jointly and
severally agrees as to all Credit Parties that from and after the date hereof
until the Termination Date:


 


3.1.                              Indebtedness. 
The Credit Parties shall not and shall not cause or permit their
Subsidiaries directly or indirectly to create, incur, assume or otherwise
become directly or indirectly liable with respect to any Indebtedness (other
than pursuant to a Contingent Obligation permitted under Section 3.4)
except:


 


(a)                                  the
Obligations;


 


(b)                                 Indebtedness
consisting of intercompany loans and advances made by Borrower to Symons or by
Symons to Borrower or by Borrower to any one or more of Dur-O-Wall, Aztech or
DSC; provided, that: 
(i) the obligor under any such loan shall have executed and
delivered to the obligee thereof, on the Closing Date, a demand note
(collectively, the “Intercompany Notes”) to evidence any such
intercompany Indebtedness owing at any time by such obligor, which Intercompany
Notes shall be in form and substance reasonably satisfactory to Agent and shall
be pledged and delivered to Agent pursuant to the applicable Pledge Agreement
or Security Agreement as additional collateral security for the Obligations;
(ii) the obligee of such Intercompany Note shall record all intercompany
transactions on its books and records in a manner reasonably satisfactory to
Agent; (iii) the obligations of each obligor under any such Intercompany
Notes shall be subordinated to the Obligations of such obligor in a manner
reasonably satisfactory to Agent; (iv) at the time any such intercompany
loan or advance is made by any such obligor and after giving effect thereto,
each party to such intercompany loan shall be Solvent; (v) after giving effect
to such intercompany loan Borrowing Availability shall be at least $10,000,000,
and (vi) no Default or Event of Default would occur and be continuing
after giving effect to any such proposed intercompany loan;


 


23

















 


(c)                                  Indebtedness
of Borrower under the Senior Notes;


 


(d)                                 Indebtedness
of Borrower under the Senior Subordinated Notes;


 


(e)                                  Indebtedness
of Borrower and its Subsidiaries outstanding on the date hereof and listed on Schedule
3.1 reduced by any scheduled mandatory amortization payments or mandatory
prepayments when actually paid and permanent reductions thereof;


 


(f)                                    Indebtedness
arising from agreements of Borrower or a Subsidiary of Borrower providing for
indemnification, adjustment of purchase price, earn out or other similar
obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or Subsidiary of Borrower, other than
guarantees of Indebtedness incurred by any Person acquiring all or any portion
of such business, assets or Subsidiary for the purpose of financing such
acquisition; provided that the maximum assumable liability in respect of
all such Indebtedness shall at no time exceed the gross proceeds actually
received by Borrower and its Subsidiaries in connection with such disposition
and such disposition was permitted by the terms of this Agreement;


 


(g)                                 unsecured
Indebtedness issued or acquired in connection with a Permitted Acquisition in
an amount reflected on the consolidated balance sheet of Borrower not to exceed
$7,500,000 on the date of issuance; provided that the final maturity of such
Indebtedness is after the final maturity of the Senior Notes


 


(h)                                 Indebtedness
not to exceed $5,000,000 in aggregate principal or notional principal amount at
any time outstanding secured by purchase money Liens or incurred with respect
to Capital Leases;


 


(i)                                     any
other unsecured Indebtedness not to exceed $5,000,000 in aggregate principal
amount at any time outstanding;


 


(j)                                     unsecured
Indebtedness of Borrower or any Subsidiary thereof permitted under Section 4.09
of the Senior Notes Indenture (other than Permitted Indebtedness as defined
therein) and Section 4.09 of the Senior Subordinated Notes Indenture (other
than Permitted Indebtedness as defined therein);


 


(k)                                  any
Refinancing Indebtedness;


 


(l)                                     Indebtedness
of Dayton Superior Canada Ltd. in a principal amount not exceeding $5,000,000
or its equivalent in Canadian dollars outstanding at any time, provided,
that (i) the credit agreement and related documents are in form and
substance reasonably satisfactory to Agent and (ii) no other Credit Party shall
have any liability with respect to such Indebtedness or shall provide any
collateral security or other support with respect thereto; and


 


(m)                               Contingent
Obligations permitted pursuant to Section 3.4 hereof.


 


3.2.                              Liens and Related Matters.


 


(a)                                  No
Liens.  The Credit Parties shall not
and shall not cause or permit their Subsidiaries to directly or indirectly
create, incur, assume or permit to exist any Lien on or with respect to any
property or asset of such Credit Party or any such Subsidiary, whether now
owned or hereafter acquired, or any income or profits therefrom, except
Permitted Encumbrances.


 


24

















 


(b)                                 No
Negative Pledges.  The Credit
Parties shall not and shall not cause or permit their Domestic Subsidiaries to
directly or indirectly enter into or assume any agreement (other than the Loan
Documents, any Capital Lease permitted by this Agreement (as to the assets
subject to such Capital Lease) and, on substantially the same terms of such
agreement as in effect on the date hereof, the Senior Notes Indenture and the
Senior Subordinated Notes Indenture) prohibiting the creation or assumption of any
Lien upon its properties or assets, whether now owned or hereafter acquired,
unless such prohibition is contained in Indebtedness incurred or assumed in
connection with a Permitted Acquisition and such prohibition permits all
Permitted Encumbrances.


 


(c)                                  No
Restrictions on Subsidiary Distributions to Borrower.  Except as provided herein, the Credit
Parties shall not and shall not cause or permit their Subsidiaries to directly
or indirectly create or otherwise cause or suffer to exist or become effective
any consensual encumbrance or restriction of any kind on the ability of any
such Subsidiary to:  (1) pay
dividends or make any other distribution on any of such Subsidiary’s Stock
owned by Borrower or any other Subsidiary; (2) pay any Indebtedness owed
to Borrower or any other Subsidiary; (3) make loans or advances to
Borrower or any other Subsidiary; or (4) transfer any of its property or
assets to Borrower or any other Subsidiary, in each case except as permitted by
Section 4.08 of the Senior Notes Indenture as in effect on the date hereof and
without regard to any waiver of any such provision.


 


3.3.                              Investments. 
The Credit Parties shall not and shall not cause or permit their
Subsidiaries to directly or indirectly make or own any Investment in any Person
except:


 


(a)                                  Investments
in cash and Cash Equivalents subject to (in all cases other than with respect
to any payroll account so long as such payroll account is a zero balance
account) Control Agreements in favor of Agent; provided that such cash
and Cash Equivalents are not subject to setoff rights;


 


(b)                                 intercompany
loans to other Credit Parties to the extent permitted under Section 3.1;


 


(c)                                  loans
and advances to employees and officers of Borrower and its Subsidiaries for
bona fide business purposes in an aggregate principal amount not to exceed
$5,000,000 at any one time outstanding; and


 


(d)                                 Currency
Agreements, Hedging Agreements and Interest Rate Agreements entered into by
Borrower and its Subsidiaries in the ordinary course of business and otherwise
in compliance with this Agreement and not for purposes of speculation;


 


(e)                                  Investments
by Borrower and its Subsidiaries in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers or in good faith
settlement of delinquent obligations of such trade creditors or customers;


 


(f)                                    Investments
made by Borrower or its Subsidiaries as a result of consideration received in
connection with an Asset Disposition made in compliance with Section 3.7;


 


(g)                                 accounts
receivable and extended payment terms of Borrower and its Subsidiaries provided
to customers that are made, created or acquired in the ordinary course of
business;


 


(h)                                 guarantees
by Borrower or a Subsidiary of Borrower permitted to be incurred under this
Agreement;


 


25

















 


(i)                                     other
Investments of Borrower and its Subsidiaries to the extent paid for with
Qualified Capital Stock of the Company.


 


(j)                                     Investments
of Borrower and its Subsidiaries existing on June 9, 2003 or made pursuant to
commitments existing on June 9, 2003;


 


(k)                                  any
Investment in a Person engaged in a business permitted under Section 3.9 in an
amount, taken together with all other Investments made pursuant to this clause
(k) that are at that time outstanding, not to exceed $10,000,000; and


 


(l)                                     Permitted
Acquisitions made by Borrower and its Domestic Subsidiaries.


 


3.4.                              Contingent Obligations.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to directly or indirectly create or become
or be liable with respect to any Contingent Obligation except:


 


(a)                                  Letter
of Credit Obligations;


 


(b)                                 those
arising from Interest Rate Agreements of Borrower or any of its Subsidiaries
covering Indebtedness of Borrower or any of its Subsidiaries; provided
that any Indebtedness to which any such Interest Rate Agreement corresponds is
otherwise permitted to be incurred under this Agreement; and provided, further,
that such Interest Rate Agreements are entered into, in the judgment of
Borrower, to protect Borrower or any of its Subsidiaries from fluctuations in
interest rates on its outstanding Indebtedness and not for purposes of
speculation;


 


(c)                                  those
arising from Hedging Agreements and Currency Agreements so long as such
agreement has been entered into in the ordinary course of business and not for
purposes of speculation;


 


(d)                                 guarantees
by Borrower and the Guarantors of the Indebtedness of Borrower or any of its Subsidiaries;
provided that such Indebtedness is permitted to be incurred under this
Agreement and (i) in the case of Indebtedness under Section 3.1(c), such
guarantees are required by the terms of the Senior Notes Indenture as in effect
on the Closing Date, (ii) in the case of Indebtedness under Section 3.1(d),
such guarantees are required by the terms of the Senior Subordinated Notes
Indenture, as in effect on the Closing Date, (iii) in the case of Indebtedness
under Section 3.1(e), such guarantees were outstanding on the Closing
Date, and (iv) in the case of Indebtedness under Section 3.1(f), such
guarantees were required by the agreements referred to in such Section as of
the date of execution and delivery thereof; provided, further,
that any such guarantee is subordinated to the Obligations to the same extent
as the Indebtedness guaranteed;


 


(e)                                  those
arising from performance and surety bonds and completion guarantees provided by
Borrower or any Subsidiary of Borrower in the ordinary course of business not
in excess of $2,000,0000 in the aggregate outstanding at any time;


 


(f)                                    those
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of
business; provided, that such Indebtedness is extinguished within five
Business Days of incurrence;


 


(g)                                 omitted;


 


26

















 


(h)                                 those
existing on the Closing Date and described in Schedule 3.4; and


 


(i)                                     those
arising under indemnity agreements to title insurers to cause such title
insurers to issue to Agent mortgagee title insurance policies;


 


3.5.                              Restricted Payments.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to directly or indirectly declare, order,
pay, make or set apart any sum for any Restricted Payment, except:


 


(a)                                  if no Default or Event of Default shall have
occurred and be continuing or shall occur as a consequence thereof and if after
giving effect thereto and to any Obligations incurred in connection therewith,
Borrowing Availability is at least $40,000,000, Borrower may (i)
purchase, prepay, acquire or retire for value Senior Notes or (ii) make
Restricted Payments of the type described in clause (a) through (e) of the
definition of “Restricted Payments” if such purchase, prepayment, acquisition,
retirement or Restricted Payment is not prohibited by any of clauses (i)
through (iii) of Section 4.07 of the Senior Notes Indenture, without regard to
any waiver thereof and is not prohibited by any of clauses (i) through (iii) of
Section 4.07 of the Senior Subordinated Notes Indenture, without regard to any
waiver thereof;


 


(b)                                 if no Default or Event of Default shall have
occurred and be continuing or shall occur as a consequence thereof and if after
giving effect thereto and to any Obligations incurred in connection therewith,
Borrowing Availability is at least $40,000,000, Borrower may pay any dividend
or consummate any irrevocable redemption within 60 days after the date of
declaration of such dividend or notice of such redemption if the dividend or
payment of the redemption price, as the case may be, would have been permitted
under this Agreement on the date of declaration or notice;


 


(c)                                  if no Default or Event of Default shall have
occurred and be continuing or shall occur as a consequence thereof, the
acquisition of any shares of Stock of Borrower (the “Retired Capital Stock”)
either (i) solely in exchange for shares of Qualified Capital Stock of Borrower
(the “Refunding Capital Stock”) or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of Borrower) of shares of Qualified Capital Stock of Borrower and,
in the case of subclause (i) of this paragraph (a), if immediately prior to the
retirement of the Retired Capital Stock the declaration and payment of
dividends thereon was permitted under paragraph (c) of this Section 3.5,
the declaration and payment of dividends on the Refunding Capital Stock in an
aggregate amount per year no greater than the aggregate amount of dividends per annum
that was declarable and payable on such Retired Capital Stock immediately prior
to such retirement; provided that at the time of the declaration of any
such dividends on the Refunding Capital Stock, no Default or Event of Default
shall have occurred and be continuing or shall occur as a consequence thereof;


 


(d)                                 if no Default or Event of Default shall have
occurred and be continuing or shall occur as a consequence thereof, the
acquisition of any Indebtedness of the Company that is subordinate or junior in
right of payment to the Obligations either (i) solely in exchange for shares of
Qualified Capital Stock of Borrower or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of Borrower) of (A) shares of Qualified Capital Stock of Borrower or
(B) Refinancing Indebtedness;


 


(e)                                  if no Default or Event of Default shall have occurred
and be continuing or shall occur as a consequence thereof, the declaration and
payment of dividends to holders of any class or series of Disqualified Capital
Stock issued after June 9, 2003 (including, without limitation, the declaration
and payment of dividends on Refunding Capital Stock in excess of the dividends
declarable and payable thereon pursuant to paragraph (c) of this Section 3.5);
provided that, at the time of such issuance, 


 


27

















 


Borrower, after giving effect to
such issuance (i) on a pro forma basis, would have been able to
incur $1.00 of additional Indebtedness (other than “Permitted Indebtedness” as
defined in the Senior Notes Indenture or Senior Subordinated Notes Indenture)
in compliance with Section 4.09 of the Senior Notes Indenture without regard to
any waiver thereof and in compliance with Section 4.09 of the Senior
Subordinated Notes Indenture without regard to any waiver thereof and (ii) and
if after giving effect to any Obligations incurred in connection therewith,
Borrowing Availability is at least $40,000,000;


 


(f)                                    if no Default or Event of Default shall have
occurred and be continuing or shall occur as a consequence thereof, the
redemption or repurchase of Borrower’s common equity or options in respect
thereof, in each case in connection with the repurchase provisions of employee
stock option or stock purchase agreements or other agreements to compensate
management employees; provided that all such redemptions or repurchases
pursuant to this paragraph (f) shall not exceed $2,500,000 (with unused amounts
in any fiscal year being carried over to succeeding Fiscal Years subject to a
maximum of $5,000,000 in any Fiscal Year) in any Fiscal Year (which amount
shall be increased by the amount of any net cash proceeds received from the
sale since June 9, 2003 of Qualified Capital Stock of Borrower to members of
Borrower’s or any of its Subsidiaries’ management team that have not otherwise
been applied to the payment of Restricted Payments pursuant to the terms of
clause (iii) of Section 4.07 of the Senior Notes Indenture as in effect on the
Closing Date and by the cash proceeds of any “key-man” life insurance policies
that are used to make such redemptions or repurchases) since June 9, 2003; provided,
further, that the cancellation of Indebtedness owing to Borrower from
members of management of Borrower or any of its Subsidiaries in connection with
any repurchase of Stock of Borrower (or warrants or options or rights to
acquire such Stock) will not be deemed to constitute a Restricted Payment under
this Agreement;


 


(g)                                 repurchases of Stock deemed to occur upon the
exercise of stock options if such Stock represents a portion of the exercise
price thereof;


 


(h)                                 Omitted;


 


(i)                                     if no Default or Event of Default shall have
occurred and be continuing or shall occur as a consequence thereof, other
Restricted Payments in an aggregate amount not to exceed $5,000,000; and


 


(j)                                     if no Default or Event of Default shall have
occurred and be continuing or shall occur as a consequence thereof, the
purchase, prepayment, acquisition or retirement for value of Senior
Subordinated Notes with up to $15,000,000 in the aggregate during the term of
this Agreement, so long as after giving effect thereto and the incurrence of
any Obligations in connection therewith, Borrowing Availability shall be at
least $30,000,000; and


 


(k)                                  Borrower
may make regularly scheduled cash interest payments pursuant to the terms of
the Senior Subordinated Notes as in effect on the Closing Date subject to the
terms of Article 10 of the Senior Subordinated Notes Indenture; and


 


(l)                                     Borrower
may pay merger and acquisition advisory fees in connection with Permitted
Acquisitions in an amount not exceeding one percent (1%) of the transaction
value, and reasonable out-of-pocket expense reimbursements payable to Odyssey
Investment Partners, LLC; provided, that no Default or Event of
Default exists at the time of any such Restricted Payment or would occur as a
result thereof.


 


28

















 


3.6.                              Restriction on Fundamental Changes.


 


(a)                                  The
Credit Parties shall not and shall not cause or permit their Subsidiaries to
directly or indirectly: (i) amend, modify or waive any term or provision of its
organizational documents, including its articles of incorporation, certificates
of designations pertaining to preferred stock, by-laws, partnership agreement
or operating agreement that is adverse to Lenders, unless required by law;
(ii) enter into any transaction of merger or consolidation except, upon
not less than five (5) Business Days prior written notice to Agent, (A) any
wholly-owned Subsidiary of Borrower may be merged with or into Borrower (provided
that Borrower is the surviving entity) or  with or into any other wholly-owned
Subsidiary of Borrower (which must be a Domestic Subsidiary of Borrower if the
Subsidiary being merged is a Domestic Subsidiary of Borrower) and (B) Borrower
may become a wholly-owned Subsidiary of a corporation organized under the laws
of any State of the United States of America so long as (x) no Change of
Control results, (y) the new parent of Borrower is a newly formed
single-purpose entity and (z) the new parent guarantees the Obligations and
secures the Obligations with a pledge in favor of Agent of all of the Stock of
Borrower and a general security agreement in favor of Agent over all of its
assets, in each case, in form substantially similar to the Loan Documents
executed concurrently herewith and delivers to Agent such legal opinions as Agent
shall have requested in connection therewith; (iii) liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), except that any
wholly-owned Subsidiary of Borrower may liquidate or dissolve; or
(iv) acquire by purchase or otherwise all or any substantial part of the
business or assets of any other Person.


 


(b)                                 Notwithstanding
the foregoing, Borrower or a wholly-owned Domestic Subsidiary thereof may
acquire all or substantially all of the assets or Stock of any Person (the “Target”)
(in each case, a “Permitted Acquisition”) subject to the satisfaction of
each of the following conditions:


 


(i)                                     Agent
shall receive at least 30 days’ prior written notice of such proposed Permitted
Acquisition, which notice shall include a reasonably detailed description of
such proposed Permitted Acquisition;


 


(ii)                                  such
Permitted Acquisition shall only involve assets located in the United States
and used for or by a Target engaged in businesses permitted under Section
3.9;


 


(iii)                               such Permitted
Acquisition shall be consensual and shall have been approved by the Target’s
board of directors;


 


(iv)                              no
additional Indebtedness, Guaranteed Indebtedness or Contingent Obligations
shall be incurred in connection with such Permitted Acquisition, except (A)
Indebtedness, Guaranteed Indebtedness and Contingent Obligations permitted
under the terms of this Agreement and (B) unsecured Indebtedness of the Target
to the extent no Default or Event of Default has occurred and is continuing or
would result after giving effect to such Permitted Acquisition;


 


(v)                                 the
sum of all amounts payable in connection with all Permitted Acquisitions
(including all transaction costs and all Indebtedness, liabilities and
Contingent Obligations incurred or assumed in connection therewith or otherwise
reflected on a consolidated balance sheet of Borrower and Target) shall not
exceed $30,000,000 for all Permitted Acquisitions;


 


(vi)                              the
Target shall not have incurred an operating loss for the trailing twelve-month
period preceding the date of the Permitted Acquisition, as determined based
upon the Target’s financial statements for its most recently completed fiscal
year and its most recent interim financial period completed within sixty (60)
days prior to the date of consummation of such Permitted Acquisition after
taking into account cost add-backs approved by Agent;


 


29

















 


(vii)                           the business and assets
acquired in such Permitted Acquisition shall be free and clear of all Liens
(other than Permitted Encumbrances) and if Stock of Target is acquired, Target
shall constitute upon acquisition a wholly-owned Domestic Subsidiary;


 


(viii)                        at or prior to the closing of
any Permitted Acquisition, Agent will be granted a first priority perfected
Lien (subject to Permitted Encumbrances) in all assets acquired pursuant
thereto or in the assets and Stock of the Target, and Borrower and the Target
shall have executed such documents (including a Guaranty and Security
Agreement) and taken such actions as may be required by Agent in connection
therewith;


 


(ix)                                concurrently
with delivery of the notice referred to in clause (i) above, Borrower
shall have delivered to Agent, in form and substance reasonably satisfactory to
Agent:


 


(A)                              a
pro forma consolidated balance sheet, income statement and cash flow statement
of Borrower and its Subsidiaries (the “Acquisition Pro Forma”), based on
recent financial statements, which shall be complete and shall fairly present
in all material respects the assets, liabilities, financial condition and
results of operations of Borrower and its Subsidiaries in accordance with GAAP
consistently applied, but taking into account such Permitted Acquisition and
the funding of all Loans and incurrence of all Indebtedness and Liens in
connection therewith, and such Acquisition Pro Forma shall reflect that (x)
average daily Borrowing Availability for the 30-day period preceding the
consummation of such Permitted Acquisition would have exceeded $20,000,000 on a
pro forma basis (after giving effect to such Permitted Acquisition and all
Loans funded and all Indebtedness and Liens incurred in connection therewith as
if made on the first day of such period) and (y) on a pro forma basis, no
Event of Default has occurred and is continuing or would result after giving
effect to such Permitted Acquisitions;


 


(B)                                updated
versions of the most recently delivered Business Plan covering the 3 year
period commencing on the date of such Permitted Acquisition and otherwise
prepared in accordance with the Business Plan (the “Acquisition Projections”)
and based upon historical financial data of a recent date reasonably
satisfactory to Agent, taking into account such Permitted Acquisition an
indicating anticipated monthly Borrowing Availability during such 3 year period


 


(C)                                a
certificate of the chief financial officer of Borrower to the effect that:  (w) Borrower (after taking into
consideration all rights of contribution and indemnity Borrower has against and
each other Subsidiary of Borrower) will be Solvent upon the consummation of the
Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the
financial condition of Borrower and its Subsidiaries (on a consolidated basis)
as of the date thereof after giving effect to the Permitted Acquisition it
being understood that to the extent that such certification is based on the
financial statements or condition of Target, such certification may be made
upon such chief financial officer’s best knowledge; and (y) Borrower and its
Subsidiaries have completed their due diligence investigation with respect to
the Target and such Permitted Acquisition, which investigation was conducted in
a manner similar to that which would have been conducted by a prudent purchaser
of a comparable business and the results of which investigation were delivered
to Agent and Lenders;


 


(D)                               such
environmental assessments with results satisfactory to Agent and conducted by a
Person reasonably satisfactory to Agent with respect to real property owned,
operated or leased by Target as Agent shall have required; and


 


(E)                                 copies
of all material regulatory and third party approvals required for consummation
of such Permitted Acquisition;


 


30

















 


(x)                                   on
or prior to the date of such Permitted Acquisition, Agent shall have received,
in form and substance reasonably satisfactory to Agent, copies of the
acquisition agreement and related agreements and instruments, and all opinions,
certificates, lien search results and other documents reasonably requested by
Agent, including those specified in Section 2.6; and


 


(xi)                                at
the time of such Permitted Acquisition and after giving effect thereto, no
Default or Event of Default has occurred and is continuing.


 


(c)                                  Notwithstanding
the foregoing, the Accounts and Inventory of the Target shall not be included
in Eligible Accounts or Eligible Inventory without the prior written consent of
Agent not to be unreasonably withheld.


 


3.7.                              Disposal of Assets or Subsidiary Stock.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to directly or indirectly convey, sell,
lease, sublease, transfer or otherwise dispose of, or grant any Person an
option to acquire, in one transaction or a series of related transactions, any
of its property, business or assets, whether now owned or hereafter acquired,
except for (a) sales and rentals of Inventory in good faith to customers
for fair value in the ordinary course of business and dispositions of Sales
Offices or obsolete equipment not used or useful in the business and (b) Asset
Dispositions by Borrower and its Subsidiaries (excluding sales of Accounts,
Chattel Paper, Rentals and Stock of any of Borrower’s Subsidiaries) if all of
the following conditions are met: 
(i) the market value of assets sold or otherwise disposed of in any
single transaction or series of related transactions does not exceed
$10,000,000 and the aggregate market value of assets sold or otherwise disposed
of in any Fiscal Year does not exceed $25,000,000; (ii) the consideration
received is at least equal to the fair market value of such assets;
(iii) at least 75% of the consideration is Productive Assets, cash or
Deemed Cash; (iv) the Net Proceeds of such Asset Disposition are applied
as required by Section 1.5(c); and (v) no Default or Event of
Default then exists or would result from such Asset Disposition.


 


3.8.                              Transactions with Affiliates.


 


(a)                                  The
Credit Parties shall not and shall not cause or permit their Subsidiaries to
directly or indirectly enter into or permit to exist any transaction (including
the purchase, sale, lease or exchange of any property or the rendering of any
management, consulting, investment banking, advisory or other similar services)
with any Affiliate or with any director, officer or employee of any Credit
Party, (an “Affiliate Transaction”),
other than Affiliate Transactions on terms that are not materially less
favorable than those that might reasonably have been obtained in a comparable
transaction at such time on an arm’s-length basis from a Person that is not an
Affiliate of Borrower or such Subsidiary; provided,  that for an Affiliate
Transaction with an aggregate value of $2,500,000 or more, at Borrower’s
option, either:


 


(i)                                     a majority of the disinterested members of the
Board of Directors of Borrower shall determine in good faith that such
Affiliate Transaction is on terms that are not materially less favorable than
those that might reasonably have been obtained in a comparable transaction at
such time on an arm’s-length basis from a Person that is not an Affiliate of Borrower;
or


 


(ii)                                  the Board of Directors of Borrower or any such
Subsidiary party to such Affiliate Transaction shall obtain an opinion from a
nationally recognized investment banking, appraisal or accounting firm that
such Affiliate Transaction is on terms that are not materially less favorable
than those that might reasonably have been obtained in a comparable transaction
at such time on an arm’s-length basis from a Person that is not an Affiliate of
Borrower;


 


(b)                                 The
restrictions of paragraph (a) of this Section 3.8 shall not apply to:


 


31

















 


(i)                                     reasonable fees and compensation paid to, and
indemnity provided on behalf of, officers, directors, employees or consultants
of Borrower or any Subsidiary of Borrower as determined in good faith by
Borrower’s Board of Directors or senior management;


 


(ii)                                  transactions exclusively between or among
Borrower and any of its Subsidiaries or exclusively between or among such
Subsidiaries, provided such transactions are not otherwise prohibited by this
Agreement;


 


(iii)                               any agreement as in effect as of June 9, 2003 or
any amendment thereto or any transaction contemplated thereby (including
pursuant to any amendment thereto) in any replacement agreement thereto so long
as any such amendment or replacement agreement is not more disadvantageous to
the Lenders in any material respect than the original agreement as in effect on
June 9, 2003;


 


(iv)                              Restricted Payments permitted by this Agreement
and Investments permitted by this Agreement;


 


(v)                                 the payment of customary annual management,
consulting and advisory fees and related expenses to the Permitted Holders and
their Affiliates made pursuant to any financial advisory, financing,
underwriting or placement agreement or in respect of other investment banking
activities, including, without limitation, in connection with acquisitions or
divestitures which are approved by the Board of Directors of Borrower or such
Subsidiary in good faith;


 


(vi)                              payments or loans to employees or consultants
that are approved by the Board of Directors of Borrower in good faith;


 


(vii)                           sales
of Qualified Capital Stock; and


 


(viii)                        the existence of, or the performance by Borrower
or any of its Subsidiaries of its obligations under the terms of, any stockholders
agreement (including any registration rights agreement or purchase agreement
related thereto) to which it is a party as of June 9, 2003 and any similar
agreements which it may enter into thereafter; provided, that
the existence of, or the performance by Borrower or any of its Subsidiaries of
obligations under, any future amendment to any such existing agreement or under
any similar agreement entered into after June 9, 2003 shall only be permitted
by this clause (vii) to the extent that the terms of any such amendment or new
agreement are not disadvantageous to the Lenders in any material respect.


 


3.9.                              Conduct of Business.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to engage in any businesses a majority of
whose revenues are not derived from businesses that are the same as or
reasonably similar, ancillary or related to, or a reasonable extension,
development or expansion of, the businesses in which the Credit Parties and
their Subsidiaries are engaged on the Closing Date.


 


3.10.                        Changes Relating to Indebtedness.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to directly or indirectly change or amend
the terms of any of its Indebtedness permitted by Section 3.1(c) or
Section 3.1(d) (or any Refinancing Indebtedness permitted thereof) if
the effect of such amendment is to: 
(a) increase the interest rate on such Indebtedness;
(b) change the dates upon which payments of principal or interest are due
on or principal amount of such Indebtedness; (c) change any event of
default or add or make more restrictive any covenant with respect to such
Indebtedness; (d) change the redemption or prepayment provisions of such
Indebtedness; (e) change the subordination provisions thereof (or the
subordination terms of any guaranty thereof); (f) change or 


 


32

















 


amend any other term if such change or amendment would
materially increase the obligations of the obligor or confer additional
material rights on the holder of such Indebtedness in a manner adverse to any
Credit Party or Lenders; or (g) increase the portion of interest payable
in cash with respect to any Indebtedness for which interest is payable by the
issuance of payment-in-kind notes or is permitted to accrue.  Neither Borrower nor Symons will amend or
modify the Safway Note.  No Credit Party
shall enter into any control agreement, landlord waiver, bailee letter or
similar agreement in favor of the Trustee (or the “Collateral Agent” as such
term is defined in the Intercreditor Agreement) without the prior written
consent of Agent, provided, however, that notwithstanding the
foregoing, the consent of Agent shall not be required in order for any Credit
Party to enter into (i) any control agreement to which Agent and such
Collateral Agent are parties on terms substantially similar to those entered
into as of the Closing Date and (ii) any control agreement that provides
respective rights and remedies to Agent and such Collateral Agent that are
substantially similar to those provided to Agent and Collateral Agent,
respectively, in the control agreements referred to in clause (i) and that
are consistent with the Intercreditor Agreement.  No Credit Party shall enter into any security agreement, pledge
agreement, mortgage, deed of trust or similar agreement in favor of the Trustee
and/or such Collateral Agent except upon terms that are consistent with the
Intercreditor Agreement and reflect the terms thereof in a manner substantially
similar to the manner contained in the security agreement and pledge agreement
in favor of the Trustee and such Collateral Agent as the Closing Date.


 


3.11.                        Fiscal Year. No
Credit Party shall change its Fiscal Year or permit any of its Subsidiaries to
change their respective fiscal years; provided, that upon thirty (30) days’
prior notice to Agent the Credit Parties may change their Fiscal Year (such
change to be applicable to all Credit Parties included in consolidated
financial reporting under GAAP); provided further, that (i) such change does
not defer the delivery of audited financial statements required hereunder by
more than one Fiscal Quarter and (ii) Borrowers shall deliver such financial
information (including reconciliations if required under GAAP) as Agent may
reasonably request with respect to such change in Fiscal Year.


 


3.12.                        Press Release; Public Offering Materials.  Each Credit Party executing this Agreement
agrees that neither it nor its Affiliates will in the future issue any press
releases or other public disclosure, including any prospectus, proxy statement
or other materials filed with any Governmental Authority relating to a public
offering of the Stock of any Credit Party, using the name of GE Capital or any
of its Affiliates or referring to this Agreement, the other Loan Documents or
the Related Transactions Documents without at least two (2) Business Days’
prior notice to GE Capital and without the prior written consent of GE Capital
unless (and only to the extent that) such Credit Party or Affiliate is required
to do so under law and then, in any event, such Credit Party or Affiliate will
consult with GE Capital before issuing such press release or other public
disclosure.  Each Credit Party consents
to the publication by Agent or any Lender of a tombstone or similar advertising
material relating to the financing transactions contemplated by this
Agreement.  Agent or such Lender shall
provide a draft of any such tombstone or similar advertising material to each
Credit Party for review and comment prior to the publication thereof.  Agent reserves the right to provide to
industry trade organizations information necessary and customary for inclusion
in league table measurements. 
Notwithstanding the foregoing, the parties hereto may disclose the tax
treatment and the tax structure of the transactions contemplated by the Loan
Documents as provided in Section 9.13.


 


3.13.                        Subsidiaries. 
The Credit Parties shall not and shall not cause or permit their
Domestic Subsidiaries to directly or indirectly establish, create or acquire any
new Subsidiary except in connection with a Permitted Acquisition or with the
consent of Agent.


 


3.14.                        Bank Accounts. 
The Borrower shall not and shall not cause or permit any of its Domestic
Subsidiaries to establish any new bank accounts without prior written notice to
Agent and (except as otherwise permitted by Section 2.10) unless
Agent and the bank at which the account is to be 


 


33

















 


opened enter into a tri-party agreement regarding such
bank account in form and substance satisfactory to Agent pursuant to which,
among other things, such bank acknowledges the security interest of Agent in
such bank account, agrees to comply with instructions originated by Agent
directing disposition of the funds in the bank account without further consent
from such Credit Party or Subsidiary, and agrees to subordinate and limit any
security interest the bank may have in the bank account on terms satisfactory
to Agent, provided, that Agent shall issue no such instructions except
following the occurrence and during the continuance of an Event of Default
..  The Borrower shall not and shall not
suffer or permit any of its Domestic Subsidiaries to establish after the
Closing Date any securities account or commodities account other than a
securities account or commodities account subject to a Control Agreement in
favor of Agent and in form and substance satisfactory to Agent.


 


3.15.                        Hazardous Materials.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to cause or permit a Release of any
Hazardous Material on, at, in, under, above, to, from or about any of the Real
Estate where such Release would (a) violate in any respect, or form the
basis for any Environmental Liabilities by the Credit Parties or any of their
Subsidiaries under, any Environmental Laws or Environmental Permits or
(b) otherwise adversely impact the value or marketability of any of the
Real Estate or any of the Collateral, other than such violations or
Environmental Liabilities that could not reasonably be expected to have a
Material Adverse Effect.


 


3.16.                        ERISA.  The Credit
Parties shall not and shall not cause or permit any ERISA Affiliate to, cause
or permit to occur an ERISA Event to the extent such ERISA Event could
reasonably be expected to have a Material Adverse Effect.


 


3.17.                        Sale–Leasebacks.  The Credit Parties shall not and shall not cause or permit any of
their Subsidiaries to engage in any sale-leaseback, synthetic lease or similar
transaction involving any of its assets, except for sale-leaseback, synthetic
lease or similar transactions the unpaid notional principal amount of which in
the aggregate do not exceed $5,000,000 at any time.


 


3.18.                        Prepayments of Other Indebtedness.  No Credit Party shall, directly or
indirectly, voluntarily purchase, redeem, defease or prepay any principal of,
premium, if any, interest or other amount payable in respect of any Senior
Notes or Senior Subordinated Notes or any refinancing or replacement of any
thereof, except as otherwise permitted by Section 3.5.


 


3.19.                        OFAC.  No Credit
Party (i) will become a person whose property or interests in property are
blocked or subject to blocking pursuant to Section 1 of Executive Order
13224 of September 23, 200l Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg.
49079 (2001)), (ii) will engage in any dealings or transactions prohibited by
Section 2 of such executive order, or be otherwise associated with any such
person in any manner violative of Section 2, or (iii) will otherwise
become a person on the list of Specially Designated Nationals and Blocked
Persons or subject to the limitations or prohibitions under any other OFAC
regulation or executive order.


 


SECTION 4.


 


FINANCIAL
COVENANTS/REPORTING


 


Borrower covenants and agrees that from and after the
date hereof until the Termination Date, Borrower shall perform and comply with,
and shall cause each of the other Credit Parties to perform and comply with,
all requirements in this Section 4 applicable to such Person.


 


34

















 


4.1.                              Omitted.


 


4.2.                              Omitted.


 


4.3.                              Omitted.


 


4.4.                              Omitted.


 


4.5.                              Omitted.


 


4.6.                              Omitted.


 


4.7.                              Omitted.


 


4.8.                              Omitted.


 


4.9.                              Financial Statements and Other Reports.  Borrower will maintain, and cause each of
its Subsidiaries to maintain, a system of accounting established and
administered in accordance with sound business practices to permit preparation
of Financial Statements in conformity with GAAP (it being understood that
monthly Financial Statements are not required to have footnote disclosures need
not include a Consolidating statement of cash flows and will be subject to
year-end adjustment).  Borrower will
deliver each of the Financial Statements and other reports described below to
Agent (and each Lender in the case of the Financial Statements and other
reports described in Sections 4.9(a), (b), (c), (d), (e), (f), (g),
(h), (j) and (k) and any other report in this Section 4.9 that a Lender has
requested in writing that Borrower deliver directly to such Lender).


 


(a)                                  Monthly
Financials.  As soon as available
and in any event within thirty (30) days after the end of each month (including
the last month of Borrower’s Fiscal Year) (or in the case of clause (4) below,
forty-five (45) days after the end of each Fiscal Quarter), Borrower will
deliver (1) the consolidated and Consolidating balance sheets of Borrower  and
its Subsidiaries, as at the end of such month, and the related consolidated and
(except in the case of cash flows) Consolidating statements of income,
stockholders’ equity and cash flow for such month and for the period from the
beginning of the then current Fiscal Year of Borrower to the end of such month,
(2) a report setting forth in comparative form the corresponding figures
for the corresponding periods of the previous Fiscal Year and the corresponding
figures from the most recent Business Plan for the current Fiscal Year
delivered pursuant to Section 4.9(f), (3) a schedule of the
outstanding Indebtedness for borrowed money of Borrower  and its Subsidiaries
describing in reasonable detail each such debt issue or loan outstanding and
the principal amount and amount of accrued and unpaid interest with respect to
each such debt issue or loan, and (4) in the case of each month the last day of
which coincides with the end of a Fiscal Quarter, a management discussion and
analysis of the financial condition and results of operations of the Borrower
and its Subsidiaries for such Fiscal Quarter and for the Fiscal Year to date.


 


(b)                                 Year-End
Financials.  As soon as available
and in any event within ninety (90) days after the end of each Fiscal Year of
Borrower, Borrower will deliver (1) the consolidated and Consolidating
balance sheets of Borrower and its Subsidiaries, as at the end of such year,
and the related consolidated and Consolidating statements of income,
stockholders’ equity and cash flow for such Fiscal Year, (2) a schedule of
the outstanding Indebtedness for borrowed money of Borrower and its Subsidiaries
describing in reasonable detail each such debt issue or loan outstanding and
the principal amount and amount of accrued and unpaid interest with respect to
each such debt issue or loan and (3) a report with respect to the
consolidated Financial Statements from a firm of Certified Public Accountants
selected by Borrower and reasonably acceptable to Agent, which report shall be
prepared in accordance with Statement of Auditing Standards No. 58 (the “Statement”)
“Reports on Audited Financial Statements” and such report shall be
“Unqualified” (as such term is defined in such Statement).


 


35

















 


(c)                                  Accountants’
Reports.  Promptly upon receipt
thereof, Borrower will deliver copies of all significant reports submitted by
Borrower’s firm of certified public accountants in connection with each annual,
interim or special audit or review of any type of the Financial Statements or
related internal control systems of Borrower  or its Subsidiaries  made
by such accountants, including any comment letter submitted by such accountants
to management in connection with their services.


 


(d)                                 Additional
Deliveries.


 


(i)                                     To
Agent, upon its request, and in any event no less frequently than noon New York
time on (x) at any time when Borrowing Availability is equal to or more than
$40,000,000, the twentieth day and (y) at any time when Borrowing Availability
is less than $40,000,000, the tenth Business Day, in each case, after the end
of each Fiscal Month (together with a copy of any of the following reports
requested by any Lender in writing after the Closing Date), each of the
following reports, each of which shall be prepared by Borrower as of the last
day of the immediately preceding Fiscal Month or the date 3 days prior to the
date of any such request:


 


(A)      a Borrowing Base Certificate
with respect to Borrower and its Domestic Subsidiaries, accompanied by such
supporting detail and documentation as shall be requested by Agent in its
reasonable discretion (in substantially the same form as Exhibit 4.9(d),
the “Borrowing Base Certificate”) as at the last day of such period;


 


(B)        with respect to Borrower
and its Domestic Subsidiaries, a summary of Inventory by location and, to the
extent available, by type with a supporting perpetual Inventory report, in each
case accompanied by such supporting detail and documentation as shall be
requested by Agent in its reasonable discretion; and


 


(C)        with respect to Borrower,
a monthly trial balance showing Accounts outstanding aged from invoice date as
follows:  1 to 30 days, 31 to 60 days,
61 to 90 days, 91 to 120 days, 121 to 150 days and 150 days or more,
accompanied by such supporting detail and documentation as shall be requested
by Agent in its reasonable discretion.


 


(ii)                                  At
any time during which Agent has blocked Borrower’s access to funds in the
deposit account associated with any lock-box established in connection with
this Agreement, to Agent, on a weekly basis or at such more frequent intervals
as Agent may request from time to time (together with a copy of all or any part
of such delivery requested by any Lender in writing after the Closing Date),
collateral reports with respect to Borrower, including all additions and
reductions (cash and non-cash) with respect to Accounts of Borrower, in each case
accompanied by such supporting detail and documentation as shall be requested
by Agent in its reasonable discretion each of which shall be prepared by the
applicable Borrower as of the last day of the immediately preceding week or the
date 2 days prior to the date of any request;


 


(iii)                               To
Agent, at the time of delivery of each of the monthly Financial Statements
delivered pursuant to this Section 4.9:


 


(A)      a reconciliation of the most
recent Borrowing Base, general ledger and month-end Inventory reports of
Borrower to Borrower’s general ledger and monthly Financial Statements
delivered pursuant to this Section 4.9, in each case accompanied by
such supporting detail and documentation as shall be requested by Agent in its
reasonable discretion;


 


(B)        to the extent available, a
reconciliation of the perpetual inventory by location to Borrower’s most recent
Borrowing Base Certificate, general ledger and monthly 


 


36

















 


Financial Statements
delivered pursuant to this Section 4.9, in each case accompanied by
such supporting detail and documentation as shall be requested by Agent in its
reasonable discretion;


 


(C)        an aging of accounts
payable and a reconciliation of that accounts payable aging to Borrower’s
general ledger and monthly Financial Statements delivered pursuant to this Section 4.9,
in each case accompanied by such supporting detail and documentation as shall
be requested by Agent in its reasonable discretion;


 


(D)       a reconciliation of the
outstanding Loans as set forth in the monthly Loan Account statement provided
by Agent to Borrower’s general ledger and monthly Financial Statements
delivered pursuant to this Section 4.9, in each case accompanied by
such supporting detail and documentation as shall be requested by Agent in its
reasonable discretion;


 


(E)         a certification that (1)
no Credit Party has sold, granted a lien with respect to or advanced against,
any Chattel Paper (other than under and pursuant to the Loan Documents) and (2)
no Chattel Paper is in the possession of third parties;


 


(iv)                              To
Agent, at the time of delivery of each of the annual Financial Statements
delivered pursuant to Section 4.9, (i) a listing of government
contracts of Borrower subject to the Federal Assignment of Claims Act of 1940;
and (ii) a list of any applications for the registration of any Patent,
Trademark or Copyright filed by any Credit Party with the United States Patent
and Trademark Office, the United States Copyright Office or any similar office
or agency in the prior Fiscal Quarter.


 


(e)                                  Appraisals;
Inspections.


 


(i)                                     omitted;


 


(ii)                                  Borrower,
at its own expense, shall, promptly upon request by Agent, deliver to Agent the
results of each physical verification, if any, that Borrower or any of its
Subsidiaries may in their discretion have made, or caused any other Person to
have made on their behalf, of all or any portion of their Inventory (and, if a
Default or an Event of Default has occurred and is continuing, Borrower shall,
upon the request of Agent, conduct, and deliver the results of, such physical
verifications as Agent may require); and


 


(iii)                               Borrower,
at its own expense, shall cause to be delivered to Agent an appraisal,
performed by Rouse Asset Services or another an independent appraiser
acceptable to Agent, of the Net Orderly Liquidation Value of its Inventory once
in each Fiscal Year (and at the time during such Fiscal Year determined by
Agent), provided, that that so long as an Event of Default is continuing or any
monthly average Borrowing Availability is less than $20,000,000, Borrower, at
its own expense, shall cause such appraisals to be performed at such times as
Agent shall require.  For the purposes
of this clause (iii), an appraisal requested or initiated by Agent while an
Event of Default is continuing or while any monthly average Borrowing
Availability is less than $20,000,000, shall be required whether or not such
Event of Default continues or such any monthly average Borrowing Availability
continues at less than $20,000,000 through the time of completion of such
appraisal


 


(iv)                              Borrower,
at its own expense, shall permit Agent or a Person designated by Agent to
conduct up to two collateral audits during each Fiscal Year (at the cost and
expense of Borrower); provided, that that so long as an Event of Default
is continuing or any monthly average Borrowing Availability is less than
$20,000,000, Borrower, at its own expense, shall permit Agent or a Person
designated by Agent to perform such audits at such times as Agent shall
require.  For the purposes 


 


37

















 


of this clause (iv), an
audit initiated by Agent or such Person while an Event of Default is continuing
or while any monthly average Borrowing Availability is less than $20,000,000,
shall be required whether or not such Event of Default continues or such
Borrowing Availability continues at less than $20,000,000 through the time of
completion of such audit.


 


(f)                                    Business
Plans.  As soon as available and in
any event no later than thirty days after the last day of each of Borrower’s
Fiscal Years, Borrower will deliver the Business Plan of Borrower and its
Subsidiaries for the forthcoming three (3) fiscal years, year by year, and for
the forthcoming fiscal year, month by month.


 


(g)                                 SEC
Filings and Press Releases. 
Promptly upon their becoming available, Borrower will deliver copies of
(1) all Financial Statements, reports, notices and proxy statements sent
or made available by Borrower or any of its Subsidiaries to its Stockholders,
(2) all regular and periodic reports and all registration statements and
prospectuses, if any, filed by Borrower or any of its  Subsidiaries with any
securities exchange or with the Securities and Exchange Commission, any
Governmental Authority or any private regulatory authority, and (3) all
press releases and other statements made available by Borrower or any of its
Subsidiaries to the public concerning developments in the business of any such
Person.


 


(h)                                 Events
of Default, Etc.  Promptly upon any
officer of any Credit Party obtaining knowledge of any of the following events
or conditions, Borrower shall deliver copies of all notices given or received
by Borrower or any of its Subsidiaries with respect to any such event or
condition and a certificate of Borrower’s chief executive officer specifying
the nature and period of existence of such event or condition and what action
Borrower or any of its Subsidiaries has taken, is taking and proposes to take
with respect thereto:  (1) any
condition or event that constitutes, or which Borrower expects or should
reasonably expect to result in the occurrence of, an Event of Default or
Default; (2) any notice that any Person has given to Borrower or any of
its Subsidiaries or any other action taken with respect to a claimed default or
event or condition of the type referred to in Section 6.1(b);
(3) any event or condition that could reasonably be expected to result in
any Material Adverse Effect; or (4) any default or event of default with
respect to any Indebtedness of Borrower or any of its Subsidiaries.


 


(i)                                     Litigation.  Promptly upon any officer of any Credit
Party obtaining knowledge of (1) the institution of any action, charge,
claim, demand, suit, proceeding, petition, governmental investigation, tax
audit or arbitration now pending or, to the best knowledge of such Credit Party
after due inquiry, threatened against or affecting any Credit Party or any of
its Subsidiaries or any property of any Credit Party or any of its Subsidiaries
(“Litigation”) not previously disclosed by Borrower to Agent or
(2) any material development in any action, suit, proceeding, governmental
investigation or arbitration at any time pending against or affecting any
Credit Party or any property of any Credit Party which, in each case, could
reasonably be expected to have a Material Adverse Effect, Borrower will
promptly give notice thereof to Agent and provide such other information as may
be reasonably available to them to enable Agent and its counsel to evaluate
such matter.


 


(j)                                     Notice
of Corporate and other Changes. 
Borrower shall provide prompt written notice of (1) all
jurisdictions in which a Credit Party becomes qualified after the Closing Date
to transact business, (2) any change after the Closing Date in the authorized
and issued Stock of any Credit Party or any Subsidiary of any Credit Party or
any amendment to their articles or certificate of incorporation, by-laws,
partnership agreement or other organizational documents, and (3) any
Subsidiary created or acquired by any Credit Party or any of its Subsidiaries
after the Closing Date, such notice, in each case, to identify the applicable
jurisdictions, capital structures or Subsidiaries, as applicable.  The foregoing notice requirement shall not
be construed to constitute consent by any of the Lenders to any transaction
referred to above which is not expressly permitted by the terms of this
Agreement.


 


38

















 


(k)                                  Compliance
and Pricing Certificate.  Together
with each delivery of Financial Statements of Borrower and its Subsidiaries
pursuant to Sections 4.9(a) and (b), Borrower will deliver a fully
and properly completed Compliance and Pricing Certificate (in substantially the
same form as Exhibit 4.9(k) (the “Compliance and Pricing
Certificate”) signed by Borrower’s chief executive officer or chief
financial officer.


 


(l)                                     Omitted.


 


(m)                               Other
Information.  With reasonable
promptness, Borrower will deliver such other information and data with respect
to any Credit Party or any Subsidiary of any Credit Party as from time to time
may be reasonably requested by Agent or any Lender.


 


(n)                                 Taxes.  Borrower shall provide prompt written notice
of (i) the execution or filing with the IRS or any other Governmental
Authority of any agreement or other document extending, or having the effect of
extending, the period for assessment or collection of any Charges by any Credit
Party or any of its Subsidiaries and (ii) any agreement by any Credit
Party or any of its Subsidiaries or request directed to any Credit Party or any
of its Subsidiaries to make any adjustment under IRC Section 481(a), by
reason of a change in accounting method or otherwise, which could reasonably be
expected to have a Material Adverse Effect.


 


(o)                                 Subleases.  Concurrently with each regular monthly
delivery of a Borrowing Base Certificate, Borrower shall provide a list of
those Persons that lease Equipment or Inventory from any Credit Party and that
are known by any Credit Party to sublease Inventory or Equipment in the
ordinary course of business.


 


4.10.                        Accounting Terms; Utilization of GAAP for
Purposes of Calculations Under Agreement. 
For purposes of this Agreement, all accounting terms that are defined by
GAAP and not otherwise defined herein shall have the meanings assigned to such
terms in conformity with GAAP. 
Financial statements and other information furnished to Agent pursuant
to Section 4.9 or any other section (unless specifically indicated
otherwise) shall be prepared in accordance with GAAP as in effect at the time
of such preparation.


 


SECTION 5.


 


REPRESENTATIONS AND WARRANTIES


 


To induce Agent and Lenders to enter into the Loan
Documents, to make Loans and to issue or cause to be issued Letters of Credit,
Borrower and the other Credit Parties executing this Agreement, jointly and
severally, represent, warrant and covenant to Agent and each Lender that the
following statements are true, correct and complete with respect to all Credit
Parties and on each Funding Date will be true, correct and complete:


 


5.1.                              Disclosure. 
No representation or warranty of any Credit Party contained in this
Agreement, the Financial Statements referred to in Section 5.5, the
other Related Transactions Documents or any other document, certificate or
written statement furnished to Agent or any Lender by or on behalf of any such
Person for use in connection with the Loan Documents or the Related
Transactions Documents contains any untrue statement of a material fact or
taken as a whole omitted, omits or will omit to state a material fact necessary
in order to make the statements contained herein or therein not misleading in
light of the circumstances in which the same were made.


 


39

















 


5.2.                              No Material Adverse Effect.  Since December 31, 2002 there have been no
events or changes in facts or circumstances affecting any Credit Party or any
of their Subsidiaries which individually or in the aggregate have had or could
reasonably be expected to have a Material Adverse Effect.


 


5.3.                              No Conflict. 
The consummation of the Related Transactions does not and will not
violate or conflict with any laws, rules, regulations or orders of any
Governmental Authority or violate, conflict with, result in a breach of, or
constitute a default (with due notice or lapse of time or both) under any
Contractual Obligation or organizational documents of any Credit Party or any
of its Subsidiaries except if such violations, conflicts, breaches or defaults
could not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect. 
None of the Credit Parties is an “investment company” within the meaning
of the Investment Company Act of 1940, as amended, or a “holding company” or a
“subsidiary company” of a “holding company” within the meaning of the Pubic
Utility Holding Company Act of 1935, as amended.


 


5.4.                              Organization, Powers, Capitalization and Good
Standing.


 


(a)                                  Organization
and Powers.  Each of the Credit
Parties and each of their Subsidiaries is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization and
qualified to do business in all states where such qualification is required
except where failure to be so qualified could not reasonably be expected to
have a Material Adverse Effect.  The
jurisdiction of organization and all jurisdictions in which each Credit Party
is qualified to do business are set forth on Schedule 5.4(a).  Each of the Credit Parties and each of their
Subsidiaries has all requisite organizational power and authority to own and
operate its properties, to carry on its business as now conducted and proposed
to be conducted, to enter into each Related Transactions Document to which it
is a party and to incur the Obligations, grant liens and security interests in
the Collateral and carry out the Related Transactions.


 


(b)                                 Capitalization.  As of the Closing Date:  (i) the authorized Stock of each of the
Credit Parties and each of their Subsidiaries is as set forth on Schedule 5.4(b);
(ii) all issued and outstanding Stock of each of the Credit Parties and
each of their Subsidiaries is duly authorized and validly issued, fully paid,
nonassessable, free and clear of all Liens other than those in favor of Agent
for the benefit of Agent and Lenders and Permitted Encumbrances, and such Stock
was issued in compliance with all applicable state, federal and foreign laws
concerning the issuance of securities; (iii) the identity of the holders
of the Stock of each of the Credit Parties and each of their Subsidiaries and
the percentage of their fully-diluted ownership of the Stock of each of the
Credit Parties and each of their Subsidiaries is set forth on Schedule 5.4(b);
and (iv) no Stock of any Credit Party or any of their Subsidiaries, other
than those described above, are issued and outstanding.  Except as provided in Schedule 5.4(b),
as of the Closing Date, there are no preemptive or other outstanding rights,
options, warrants, conversion rights or similar agreements or understandings
for the purchase or acquisition from any Credit Party or any of their
Subsidiaries of any Stock of any such entity.


 


(c)                                  Binding
Obligation.  This Agreement is, and
the other Related Transactions Documents when executed and delivered will be,
the legally valid and binding obligations of the Credit Parties party thereto,
each enforceable against each of such parties, as applicable, in accordance
with their respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and (ii) the availability of equitable
remedies may be limited by equitable principles of general applicability.


 


5.5.                              Financial Statements and Business Plan.  All Financial Statements concerning Borrower
and its Subsidiaries which have been or will hereafter be furnished to Agent
pursuant to this Agreement, 


 


40

















 


including those listed below, have been or will be
prepared in accordance with GAAP consistently applied (except as disclosed
therein) and do or will present fairly in all material respects the financial
condition of the entities covered thereby as at the dates thereof and the
results of their operations for the periods then ended, subject to, in the case
of unaudited Financial Statements, the absence of footnotes and normal year-end
adjustments.


 


(a)                                  The
consolidated balance sheets at December 31, 2002 and the related statement of
income of Borrower and its Subsidiaries, for the Fiscal Year then ended,
audited by Deloitte and Touche LLP.


 


(b)                                 The
unaudited consolidated balance sheet at September 30, 2003 and the related
statement of income of Borrower and its Subsidiaries for the nine months then
ended.


 


The Business Plan delivered on or prior to the Closing
Date and the updated Business Plans delivered pursuant to Section 4.9(f)
represent and will represent as of the date thereof the good faith Business
Plan of Borrower, it being understood that such Business Plan represents only
the best estimate of the Borrower’s officers and that no assurance can be made
with respect to actual results.


 


5.6.                              Intellectual Property.  Each of the Credit Parties and its
Subsidiaries owns, is licensed to use or otherwise has the right to use, all
Intellectual Property used in or necessary for the conduct of its business as
currently conducted that is material to the condition (financial or other),
business or operations of such Credit Party and its Subsidiaries and all such
registered Intellectual Property owned by any Credit Party or Subsidiary is
identified on Schedule 5.6 and fully protected and/or duly and
properly registered, filed or issued in the appropriate office and
jurisdictions for such registrations, filings or issuances.  Except as disclosed in Schedule 5.6,
the use of such Intellectual Property by the Credit Parties and their
Subsidiaries and the conduct of their businesses does not and has not been
alleged by any Person to infringe on the rights of any Person.


 


5.7.                              Investigations, Audits, Etc.  As of the Closing Date, except as set forth
on Schedule 5.7, no Credit Party or any of their Subsidiaries is,
to the knowledge of any Credit Party, the subject of any review or audit by the
IRS or any governmental investigation concerning the violation or possible
violation of any law.


 


5.8.                              Employee Matters.  Except as set forth on Schedule 5.8, (a) no
Credit Party or Subsidiary of a Credit Party nor any of their respective
employees is subject to any collective bargaining agreement, (b) no
petition for certification or union election is pending with respect to the
employees of any Credit Party or any of their Subsidiaries and no union or
collective bargaining unit has sought such certification or recognition with
respect to the employees of any Credit Party or any of their Subsidiaries other
than any that if successful could not reasonably be expected to have
individually or in the aggregate, a Material Adverse Effect, (c) there are
no strikes, slowdowns, work stoppages or controversies pending or, to the best
knowledge of any Credit Party after due inquiry, threatened between any Credit
Party or any of their Subsidiaries and its respective employees, other than
employee grievances arising in the ordinary course of business which could not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect and (d) hours worked by and payment made to
employees of each Credit Party and each of their Subsidiaries comply with the
Fair Labor Standards Act and each other federal, state, local or foreign law
applicable to such matters.  Except as
set forth on Schedule 5.8, neither Borrower nor any of its
Subsidiaries is party to any material employment contract.


 


5.9.                              Solvency.  (i)
The Borrower and each other Credit Party, on a consolidated basis, are Solvent
and (ii) Symons is Solvent.


 


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5.10.                        Litigation . 
Except as set forth on Schedule 5.10, there are no judgments
outstanding against any Credit Party or any of its Subsidiaries or affecting
any property of any Credit Party or to any of its Subsidiaries, nor is there
any Litigation pending, or to the best knowledge of any Credit Party
threatened, against any Credit Party or any of its Subsidiaries which, in each
case, could reasonably be expected to result in any Material Adverse Effect.


 


5.11.                        Use of Proceeds; Margin Regulations.


 


(a)                                  No
part of the proceeds of any Loan will be used for “buying” or “carrying”
“margin stock” within the respective meanings of such terms under
Regulation U of the Board of Governors of the Federal Reserve System as
now and from time to time hereafter in effect or for any other purpose that
violates the provisions of the regulations of the Board of Governors of the
Federal Reserve System.  If requested by
Agent, each Credit Party will furnish to Agent and each Lender a statement to
the foregoing effect in conformity with the requirements of FR Form G-3 or
FR Form U-1, as applicable, referred to in Regulation U.


 


(b)                                 Borrower
shall utilize the proceeds of the Loans solely for the Closing Refinancing and
for any other lawful purpose that is not prohibited by the terms of this
Agreement.  Schedule 5.11
contains a description of Borrower’s sources and uses of funds as of the
Closing Date, including Loans and Letter of Credit Obligations to be made or
incurred on that date, and a funds flow memorandum detailing how funds from
each source are to be transferred for particular uses.


 


5.12.                        Ownership of Property; Liens.  As of the Closing Date, the real estate
(together with real estate acquired by any Credit Party after the Closing Date,
“Real Estate”) listed in Schedule 5.12 constitutes all of
the real property owned, leased, subleased, or used by any Credit Party or any
of its Subsidiaries.  Each of the Credit
Parties and each of its Subsidiaries owns good and fee simple title to all of
its owned Real Estate, and valid leasehold interests in all of its leased Real
Estate, all as described on Schedule 5.12, and copies of all such
leases or a summary of terms thereof reasonably satisfactory to Agent have been
delivered to Agent.  Schedule 5.12
further describes any Real Estate with respect to which any Credit Party or any
of its Subsidiaries is a lessor, sublessor or assignor as of the Closing
Date.  As of the Closing Date, no
portion of any Credit Party’s Real Estate has suffered any material damage by
fire or other casualty loss that has not heretofore been repaired and restored
in all material respects to its original condition or otherwise remedies.  As of the Closing Date, all material permits
required to have been issued or appropriate to enable the Real Estate to be
lawfully occupied and used for all of the purposes for which it is currently
occupied and used have been lawfully issued and are in full force and effect.


 


5.13.                        Environmental Matters.


 


(a)                                  Except
as set forth in Schedule 5.13, as of the Closing Date:  (i) the Real Estate is free of
contamination from any Hazardous Material except for such contamination that
could not reasonably be expected to adversely impact the value or marketability
of such Real Estate and that could not reasonably be expected to result in
Environmental Liabilities of the Credit Parties or their Subsidiaries in excess
of $500,000 in the aggregate; (ii) no Credit Party and no Subsidiary of a
Credit Party has caused or suffered to occur any Release of Hazardous Materials
on, at, in, under, above, to, from or about any of their Real Estate that could
reasonably be expected to result in Environmental Liabilities of the Credit
Parties and their Subsidiaries in excess of $500,000 in the aggregate;
(iii) the Credit Parties and their Subsidiaries are and have been in
compliance with all Environmental Laws, except for such noncompliance that
could not reasonably be expected to result in Environmental Liabilities of the
Credit Parties or their Subsidiaries in excess of $500,000 in the aggregate;
(iv) the Credit Parties and their Subsidiaries have obtained, and are in
compliance with, all Environmental Permits required by 


 


42

















 


Environmental Laws for the operations of their respective
businesses as presently conducted or as proposed to be conducted, except where
the failure to so obtain or comply with such Environmental Permits could not
reasonably be expected to result in Environmental Liabilities of the Credit
Parties or their Subsidiaries in excess of $500,000 in the aggregate, and all
such Environmental Permits are valid, uncontested and in good standing;
(v) no Credit Party and no Subsidiary of a Credit Party is involved in
operations or knows of any facts, circumstances or conditions, including any
Releases of Hazardous Materials, that could reasonably be expected to result in
any Environmental Liabilities of such Credit Party or Subsidiary which could
reasonably be expected to be in excess of $500,000 in the aggregate, and no
Credit Party or Subsidiary of a Credit Party has permitted any current or
former tenant or occupant of the Real Estate to engage in any such operations;
(vi) there is no Litigation arising under or related to any Environmental
Laws, Environmental Permits or Hazardous Material that seeks damages,
penalties, fines, costs or expenses in excess of $500,000 in the aggregate or
injunctive relief against, or that alleges criminal misconduct by any Credit
Party or any Subsidiary of a Credit Party; (vii) no notice has been
received by any Credit Party or any Subsidiary of a Credit Party identifying
any of them as a “potentially responsible party” or requesting information
under CERCLA or analogous state statutes, and to the knowledge of the Credit
Parties, there are no facts, circumstances or conditions that may result in any
of the Credit Parties or their Subsidiaries being identified as a “potentially
responsible party” under CERCLA or analogous state statutes that could
reasonably be expected to result in Environmental Liabilities of the Credit
Parties and their Subsidiaries in excess of $500,000  in the aggregate; and (viii) the Credit Parties have
provided to Agent copies of all environmental reports, reviews, audits and
other written information in their possession or control to actual or potential
Environmental Liabilities, in each case relating to any of the Credit Parties
or their Subsidiaries during the previous five years.


 


(b)                                 Each
Credit Party hereby acknowledges and agrees that Agent (i) is not now, and
has not ever been, in control of any of the Real Estate or affairs of such
Credit Party or its Subsidiaries, and (ii) does not have the capacity
through the provisions of the Loan Documents or otherwise to influence any
Credit Party’s or its Subsidiaries’ conduct with respect to the ownership,
operation or management of any of their Real Estate or compliance with
Environmental Laws or Environmental Permits.


 


5.14.                        ERISA.


 


(a)                                  Schedule 5.14
lists all Plans and separately identifies all Pension Plans, including
Title IV Plans, Multiemployer Plans, ESOPs and Welfare Plans, including
all Retiree Welfare Plans.  Copies of
all such listed Plans, together with a copy of the latest form IRS/DOL
5500-series for each such Plan have been delivered to Agent.  Except with respect to Multiemployer Plans,
each Qualified Plan has been determined by the IRS to qualify under
Section 401 of the IRC, the trusts created thereunder have been determined
to be exempt from tax under the provisions of Section 501 of the IRC, and
nothing has occurred that would cause the loss of such qualification or
tax-exempt status.  Each Plan is in
compliance with the applicable provisions of ERISA and the IRC, including the
timely filing of all reports required under the IRC or ERISA, including the
statement required by 29 CFR Section 2520.104-23.  Neither any Credit Party nor ERISA Affiliate
has failed to make any contribution or pay any amount due as required by either
Section 412 of the IRC or Section 302 of ERISA or the terms of any
such Plan.  Neither any Credit Party nor
ERISA Affiliate has engaged in a “prohibited transaction,” as defined in
Section 406 of ERISA and Section 4975 of the IRC, in connection with
any Plan, that would subject any Credit Party to a material tax on prohibited
transactions imposed by Section 502(i) of ERISA or Section 4975 of
the IRC.


 


(b)                                 Except
as set forth in Schedule 5.14: 
(i) no Title IV Plan has any Unfunded Pension Liability;
(ii) no ERISA Event or event described in Section 4062(e) of ERISA
with respect to any Title IV Plan has occurred or is reasonably expected
to occur; (iii) there are no pending, or to the knowledge of Borrower,
threatened claims (other than claims for benefits in the normal course), 


 


43

















 


sanctions, actions or lawsuits, asserted or instituted
against any Plan or any Person as fiduciary or sponsor of any Plan;
(iv) no Credit Party or ERISA Affiliate has incurred or reasonably expects
to incur any liability as a result of a complete or partial withdrawal from a
Multiemployer Plan; (v) within the last five years no Title IV Plan
of any Credit Party or ERISA Affiliate has been terminated, whether or not in a
“standard termination” as that term is used in Section 404(b)(1) of ERISA,
nor has any Title IV Plan of any Credit Party or ERISA Affiliate
(determined at any time within the past five years) with Unfunded Pension
Liabilities been transferred outside of the “controlled group” (within the
meaning of Section 4001(a)(14) of ERISA) of any Credit Party or ERISA
Affiliate; (vi) except in the case of any ESOP, Stock of all Credit
Parties and their ERISA Affiliates makes up, in the aggregate, no more than 10%
of fair market value of the assets of any Plan measured on the basis of fair
market value as of the latest valuation date of any Plan; and (vii) no
liability under any Title IV Plan has been satisfied with the purchase of
a contract from an insurance company that is not rated AAA by S&P or an
equivalent rating by another nationally recognized rating agency.


 


5.15.                        Brokers.  No
broker or finder acting on behalf of any Credit Party or Affiliate thereof
brought about the obtaining, making or closing of the Loans or the Related
Transactions, and no Credit Party or Affiliate thereof has any obligation to
any Person in respect of any finder’s or brokerage fees in connection
therewith.


 


5.16.                        Deposit and Disbursement Accounts.  Schedule 5.16 lists all banks
and other financial institutions at which any Credit Party maintains deposit,
securities or other accounts as of the Closing Date, including any Disbursement
Accounts, and such Schedule correctly identifies the name, address and
telephone number of each depository, the name in which the account is held, a
description of the purpose of the account, and the complete account number
therefor.


 


5.17.                        Agreements and Other Documents.  As of the Closing Date, each Credit Party
has provided to Agent or its counsel, on behalf of Lenders, accurate and
complete copies (or summaries) of all of the following agreements or documents
to which it is subject and each of which is listed in Schedule 5.17:  licenses and permits held by the Credit
Parties, the absence of which could reasonably be expected to have a Material
Adverse Effect; instruments and documents evidencing any Indebtedness or
Guaranteed Indebtedness of such Credit Party and any Lien granted by such
Credit Party with respect thereto; and instruments and agreements evidencing
the issuance of any equity securities, warrants, rights or options to purchase
equity securities of such Credit Party.


 


5.18.                        Insurance. 
Schedule 5.18 lists all insurance policies of any nature
maintained, as of the Closing Date, for current occurrences by each Credit
Party, as well as a summary of the key business terms of each such policy such
as deductibles, coverage limits and term of policy.


 


5.19.                        Anti-Terrorism. 
Neither the borrowing of the Loans by the Borrower, nor any other
Related Transaction, nor the use of the respective proceeds thereof, shall
cause the Lenders or Agent to violate the U.S. Bank Secrecy Act, as amended,
and any applicable regulations thereunder or any of the sanctions programs
administered by the U.S. Department of the Treasury’s Office of Foreign Assets
Control (“OFAC”) of the United States Department of Treasury, any
regulations promulgated thereunder by OFAC or under any affiliated or successor
governmental or quasi-governmental office, bureau or agency and any enabling
legislation or executive order relating thereto.  Without limiting the foregoing, no Credit Party (i) is a
person whose property or interests in property are blocked or subject to
blocking pursuant to Section 1 of Executive Order 13224 of September 23,
200l Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)),
(ii) engages in any dealings or transactions prohibited by Section 2 of
such executive order, or be otherwise associated with any such person in any
manner violative of Section 2, or (iii) is a person on the list of
Specially Designated Nationals and Blocked Persons or subject to the
limitations or prohibitions 


 


44

















 


under any other OFAC regulation or executive
order.  The Credit Parties are in
compliance, in all material respects, with the Strengthening of America by Providing
the Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.  No part of the proceeds of the Loans or
Letters of Credit will be used, directly or indirectly, for any payments to any
governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper
advantage, in violation of the United States Foreign Corrupt Practices Act of
1977, as amended.


 


5.20.                        Designated Senior Debt.  This Agreement and the credit facilities
created hereunder (i) constitute the “New Credit Facility” under and as such
term is defined in the Senior Subordinated Notes Indenture and all present and
future Obligations constitute “Senior Debt” under and as such terms are defined
in the Senior Subordinated Notes Indenture. 
Borrower hereby designates all Obligations and Indebtedness in respect
thereof as “Designated Senior Debt” as such term is defined in the Senior
Subordinated Notes Indentures.  This
Agreement constitutes a “Senior Credit Facility” and a “Credit Facility” as
such terms are defined in the Senior Notes Indenture.  This Agreement constitutes the New Credit Facility as such term
is defined in the Safway Note.


 


5.21.                        Other Obligations.  Immediately prior to the Closing Date, there were no “Other
Obligations” or “Additional First Lien Debt Obligations” (as such terms are
defined in the Amended and Restated Security Agreement, dated as of June 16,
2000 and amended and restated as of June 9, 2003, among Borrower, certain of
its Subsidiaries and Deutsche Bank Trust Company Americas, as Collateral Agent)
outstanding.


 


SECTION 6.


 


DEFAULT,
RIGHTS AND REMEDIES


 


6.1.                              Event of Default.  “Event of Default” shall mean the occurrence or existence
of any one or more of the following:


 


(a)                                  Payment.  (1) Failure to pay any installment or
other payment of principal of any Loan when due, or to repay Revolving Loans to
reduce their balance to the maximum amount of Revolving Loans then permitted to
be outstanding or to reimburse any L/C Issuer for any payment made by such L/C
Issuer under or in respect of any Letter of Credit when due, (2) failure
to pay, within three (3) days after the due date, any interest on any Loan or
any other amount due under this Agreement or any of the other Loan Documents or
(3) failure to pay or reimburse Agent, the L/C Issuer or any lender for any
expense payable or reimburseable by any Credit Party hereunder or under any
other Loan Document within ten (10) days following the date on which such
reimbursement or payment of expenses has become due; or


 


(b)                                 Default
in Other Agreements.  (1) Any
Credit Party or any of its Subsidiaries fails to pay when due and within any
applicable grace period any principal or interest on Indebtedness (other than
the Loans) or any Contingent Obligations having an individual or aggregate
principal amount in excess of $100,000 or (2) breach or default of any
Credit Party or any of its Subsidiaries, or the occurrence of any condition or
event, with respect to any Indebtedness (other than the Loans) or any
Contingent Obligations, if the effect of such breach, default or occurrence
(other than a failure to pay) is to cause or to permit the holder or holders
then to cause, Indebtedness and/or Contingent Obligations having an individual
principal amount in excess of $1,000,000 or having an aggregate principal
amount in excess of $5,000,000 to become or be declared due prior to its stated
maturity; or


 


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(c)                                  Breach
of Certain Provisions; Breach of Warranty. 
Failure of any Credit Party, within five (5) Business Days of such
failure, to perform or comply with any term or condition contained in
Section 1.11, that portion of Section 2.2 relating to the
Credit Parties’ obligation to maintain insurance, Section 2.3, Section
3 or Section 4; or


 


(d)                                 Borrowing
Base Certificate; Breach of Warranty. 
Any information contained in any Borrowing Base Certificate is untrue or
incorrect in any respect (other than inadvertent, immaterial errors not
exceeding $250,000 in the aggregate in any Borrowing Base Certificate), or any
representation or warranty herein or in any Loan Document or in any written
statement, report, financial statement or certificate (other than a Borrowing
Base Certificate) made or delivered to Agent or any Lender by any Credit Party
is untrue or incorrect in any material respect (without duplication of
materiality qualifiers contained therein) as of the date when made or deemed
made; or


 


(e)                                  Other
Defaults Under Loan Documents.  Any
Credit Party defaults in the performance of or compliance with any term
contained in this Agreement or the other Loan Documents (other than occurrences
described in other provisions of this Section 6.1 for which a
different grace or cure period is specified, or for which no cure period is
specified and which constitute immediate Events of Default) and such default is
not remedied or waived within thirty (30) days after the earlier of
(1) receipt by Borrower of notice from Agent or Requisite Lenders of such
default or (2) written acknowledgement by Borrower or any other Credit
Party of such default; or


 


(f)                                    Involuntary
Bankruptcy; Appointment of Receiver, Etc. 
(1) A court enters a decree or order for relief with respect to any
Credit Party in an involuntary case under the Bankruptcy Code, which decree or
order is not stayed or other similar relief is not granted under any applicable
federal or state law; or (2) the continuance of any of the following
events for forty-five (45) days unless dismissed, bonded or discharged:  (a) an involuntary case is commenced
against  any
Credit Party, under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect; or (b) a decree or order of a court for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over  any Credit Party, or over all or a
substantial part of its property, is entered; or (c) a receiver, trustee
or other custodian is appointed without the consent of a Credit Party, for all
or a substantial part of the property of  the Credit Party; or


 


(g)                                 Voluntary
Bankruptcy; Appointment of Receiver, Etc. 
(1) any Credit Party commences a voluntary case under the
Bankruptcy Code, or consents to the entry of an order for relief in an
involuntary case or to the conversion of an involuntary case to a voluntary case
under any such law or consents to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
property; (2) any Credit Party makes any assignment for the benefit of
creditors; or (3) the Board of Directors of any Credit Party adopts any
resolution or otherwise authorizes action to approve any of the actions
referred to in this Section 6.1(g); or


 


(h)                                 Judgment
and Attachments.  Any money
judgment, writ or warrant of attachment, or similar process (other than those
described elsewhere in this Section 6.1) involving (1) an
amount in any individual case in excess of $1,000,000 or (2) an amount in
the aggregate at any time in excess of $5,000,000 (in either case to the extent
not adequately covered by insurance in Agent’s sole discretion as to which the
insurance company has acknowledged coverage) is entered or filed against one or
more of the Credit Parties or any of their respective assets and remains
undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days
or in any event later than five (5) Business Days prior to the date of any
proposed sale thereunder; or


 


46

















 


(i)                                     Dissolution.  Any order, judgment or decree is entered
against any Credit Party decreeing the dissolution or split up of such Credit
Party and such order remains undischarged or unstayed for a period in excess of
fifteen (15) days; or


 


(j)                                     Solvency.  Borrower ceases or the Credit Parties taken
as a whole cease to be Solvent, fails to pay its debts as they become due or
admits in writing its present or prospective inability to pay its debts as they
become due; or;


 


(k)                                  Invalidity
of Loan Documents.  Any of the Loan
Documents for any reason, other than a partial or full release or termination
in accordance with the terms thereof, ceases to be in full force and effect or
is declared to be null and void, or any Credit Party denies that it has any
further liability under any Loan Documents to which it is party, or gives
notice to such effect; or


 


(l)                                     Omitted.


 


(m)                               Omitted.


 


(n)                                 Change
of Control.  A Change of Control
occurs; or


 


(o)                                 Subordinated
Debt.  The failure of any Credit
Party or any of its Subsidiaries to comply with the terms of any subordination
or intercreditor agreement or any subordination provisions of any note or other
document running to the benefit of Agent or Lenders.


 


6.2.                              Suspension or Termination of Commitments.  Upon the occurrence of any Default or Event
of Default, Agent may, and at the request of Requisite Lenders Agent shall,
without notice or demand, immediately suspend or terminate all or any portion
of Lenders’ obligations to make additional Revolving Credit Advances or issue
or cause to be issued Letters of Credit under the Revolving Loan Commitment; provided
that, in the case of a Default, if the subject condition or event is waived by
Requisite Lenders or cured within any applicable grace or cure period, the
Revolving Loan Commitment shall be reinstated.


 


6.3.                              Acceleration and Other Remedies.  Upon the occurrence of any Event of Default
described in Sections 6.1(f) or 6.1(g), the Commitments shall be
immediately terminated and all of the Obligations, including the Revolving
Loans, shall automatically become immediately due and payable, without
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or other requirements of any kind, all of which are hereby
expressly waived by Borrower, and the Commitments shall thereupon
terminate.  Upon the occurrence and
during the continuance of any other Event of Default, Agent may, and at the
request of the Requisite Lenders, Agent shall, by written notice to Borrower
(a) reduce the aggregate amount of the Commitments from time to time,
(b) declare the Loans and the other Obligations to be, and the same shall
forthwith become, immediately due and payable together with accrued interest
thereon, (c) terminate the obligations of Agent, L/C Issuers and Lenders
to make Revolving Credit Advances and issue Letters of Credit, (d) demand
that Borrower immediately deliver cash to Agent for the benefit of L/C Issuers
(and Borrower shall then immediately so deliver) in an amount equal to 105% of
the aggregate outstanding Letter of Credit Obligations and (e) exercise
any other remedies which may be available under the Loan Documents or applicable
law.  Borrower hereby grants to Agent,
for the benefit of L/C Issuers and each Lender with a participation in any
Letters of Credit then outstanding, a security interest in such cash collateral
to secure all of the Letter of Credit Obligations.  Any such cash collateral shall be made available by Agent to L/C
Issuers to reimburse L/C Issuers for payments of drafts drawn under such
Letters of Credit and any Fees, Charges and expenses of L/C Issuers with
respect to such Letters of Credit and the unused portion thereof, after all
such Letters of Credit shall have expired or been fully drawn upon, shall be
applied to repay any other Obligations. 
After 


 


47

















 


all such Letters of Credit shall have expired or been fully
drawn upon and all Obligations shall have been satisfied and paid in full, the
balance, if any, of such cash collateral shall be returned to Borrower.  Borrower shall from time to time execute and
deliver to Agent such further documents and instruments as Agent may request
with respect to such cash collateral.


 


6.4.                              Performance by Agent.  If any Credit Party shall fail to perform
any covenant, duty or agreement contained in any of the Loan Documents, Agent
may perform or attempt to perform such covenant, duty or agreement on behalf of
such Credit Party after the expiration of any cure or grace periods set forth
herein.  In such event, such Credit
Party shall, at the request of Agent, promptly pay any amount reasonably
expended by Agent in such performance or attempted performance to Agent,
together with interest thereon at the highest rate of interest in effect upon
the occurrence of an Event of Default as specified in Section 1.2(d)
from the date of such expenditure until paid. 
Notwithstanding the foregoing, it is expressly agreed that Agent shall
not have any liability or responsibility for the performance of any obligation
of any Credit Party under this Agreement or any other Loan Document.


 


6.5.                              Application of Proceeds.  Notwithstanding anything to the contrary
contained in this Agreement, upon the occurrence and during the continuance of
an Event of Default, (a) Borrower irrevocably waives the right to direct
the application of any and all payments at any time or times thereafter
received by Agent from or on behalf of Borrower, and Agent shall have the
continuing and exclusive right to apply and to reapply any and all payments
received at any time or times after the occurrence and during the continuance
of an Event of Default against the Obligations in such manner as Agent may deem
advisable notwithstanding any previous application by Agent and (b) in the
absence of a specific determination by Agent with respect thereto, the proceeds
of any sale of, or other realization upon, all or any part of the Collateral
shall be applied:  first, to all
Fees, costs and expenses incurred by or owing to Agent and any Lender with
respect to this Agreement, the other Loan Documents or the Collateral; second,
to accrued and unpaid interest on the Obligations (including any interest which
but for the provisions of the Bankruptcy Code, would have accrued on such
amounts); third, to the principal amount of the Obligations (other than
Obligations owed to a Lender under an Interest Rate Agreement) outstanding; and
fourth to any other obligations of Borrower owing to Agent or any Lender
under the Loan Documents or an Interest Rate Agreement.  Any balance remaining shall be delivered to
Borrower or to whomever may be lawfully entitled to receive such balance or as
a court of competent jurisdiction may direct.


 


SECTION 7.


 


CONDITIONS
TO LOANS


 


The obligations of Lenders and L/C Issuers to make
Loans and to issue or cause to be issued Letters of Credit are subject to
satisfaction of all of the applicable conditions set forth below.


 


7.1.                              Conditions to Initial Loans.  The obligations of Lenders and L/C Issuers
to make the initial Loans and to issue or cause to be issued Letters of Credit
on the Closing Date are, in addition to the conditions precedent specified in Section 7.2,
subject to the delivery of all documents listed on, the taking of all actions
set forth on and the satisfaction of all other conditions precedent listed on
the Closing Checklist attached hereto as Annex C, all in form and
substance, or in a manner, satisfactory to Agent and Lenders.


 


7.2.                              Conditions to All Loans.  Except as otherwise expressly provided
herein, no Lender or L/C Issuer shall be obligated to fund any Advance or incur
any Letter of Credit Obligation, if, as of the date thereof (the “Funding
Date”):


 


48

















 


(a)                                  any
representation or warranty by any Credit Party contained herein or in any other
Loan Document is untrue or incorrect in any material respect (without
duplication of any materiality qualifier contained therein) as of such date,
except to the extent that such representation or warranty expressly relates to
an earlier date, and Agent or Requisite Lenders shall have determined not to
make such Advance or incur such Letter of Credit Obligation as a result of the
fact that such warranty or representation is untrue or incorrect;


 


(b)                                 any
Default or Event of Default has occurred and is continuing or would result
after giving effect to any Advance (or the incurrence of any Letter of Credit
Obligation), and Agent or Requisite Lenders shall have determined not to make
any Advance or incur any Letter of Credit Obligation as a result of that
Default or Event of Default; or


 


(c)                                  after
giving effect to any Advance (or the incurrence of any Letter of Credit Obligations),
the outstanding amount of the aggregate Revolving Loan would exceed remaining
Borrowing Availability (except as provided in Section 1.l(a)(ii)).


 


The request and acceptance by Borrower of the proceeds
of any Advance, the incurrence of any Letter of Credit Obligations or the
conversion or continuation of any Loan into, or as, a LIBOR Loan shall be
deemed to constitute, as of the date thereof, (i) a representation and
warranty by Borrower that the conditions in this Section 7.2  have been satisfied and (ii) a
reaffirmation by Borrower of the granting and continuance of Agent’s Liens, on
behalf of itself and Lenders, pursuant to the Collateral Documents.


 


SECTION 8.


 


ASSIGNMENT
AND PARTICIPATION


 


8.1.                              Assignment and Participations.


 


(a)                                  Subject
to the terms of this Section 8.1, any Lender may make an assignment
to a Qualified Assignee of, or sale of participations in, at any time or times,
the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or
any portion thereof or interest therein, including any Lender’s rights, title,
interests, remedies, powers or duties thereunder.  Any assignment by a Lender shall:  (i) require the consent of Agent (which consent shall not be
unreasonably withheld or delayed with respect to a Qualified Assignee) and the
execution of an assignment agreement (an “Assignment Agreement”
substantially in the form attached hereto as Exhibit 8.1 and
otherwise in form and substance reasonably satisfactory to, and acknowledged
by, Agent); (ii) be conditioned on such assignee Lender representing to
the assigning Lender and Agent that it is purchasing the applicable Loans to be
assigned to it for its own account, for investment purposes and not with a view
to the distribution thereof; (iii) after giving effect to any such partial
assignment, the assignee Lender shall have Commitments in an amount at least
equal to $5,000,000  and the assigning Lender shall have
retained Commitments in an amount at least equal to $5,000,000;
(iv) require a payment to Agent by such assignee or the assignor of an
assignment fee of $3,500; and (v) so long as no Event of Default is continuing,
require the consent of Borrower, which consent shall not be unreasonably
withheld or delayed and shall be deemed granted if not objected to within three
(3) Business Days following notice thereof. 
Notwithstanding the above, Agent may in its sole and absolute discretion
permit any assignment by a Lender to a Person or Persons that are not Qualified
Assignees, but such assignment shall nonetheless require the consent of
Borrower to the extent required above. 
In the case of an assignment by a Lender under this Section 8.1,
the assignee shall have, to the extent of such assignment, the same rights,
benefits and obligations as all other Lenders hereunder.  The assigning Lender shall be relieved of
its obligations hereunder with respect to its Commitments or assigned portion
thereof from and after the date of such assignment.  Borrower hereby acknowledges and agrees that any assignment shall
give rise to a direct obligation of Borrower to the assignee and that the 


 


49

















 


assignee shall be considered to be a “Lender.”  In all instances, each Lender’s liability to
make Loans hereunder shall be several and not joint and shall be limited to
such Lender’s Pro Rata Share of the applicable Commitment.  In the event Agent or any Lender assigns or
otherwise transfers all or any part of the Obligations, Agent or any such
Lender shall so notify Borrower and Borrower shall, upon the request of Agent
or such Lender, execute new Notes in exchange for the Notes, if any, being
assigned.  Notwithstanding the foregoing
provisions of this Section 8.1(a), without the consent of any
Person (a) any Lender may at any time pledge the Obligations held by it
and such Lender’s rights under this Agreement and the other Loan Documents to a
Federal Reserve Bank, (b) any Lender that is an investment fund may assign
the Obligations held by it and such Lender’s rights under this Agreement and
the other Loan Documents to another investment fund managed by the same
investment advisor or pledge such Obligations and rights to a trustee for the
benefit of its investors or holders of obligations of such Lender and
(c) any Lender may assign the Obligations to an Affiliate of such Lender
or to a Person that is a Lender prior to the date of such assignment.


 


(b)                                 Any
participation by a Lender of all or any part of its Commitments shall be made
with the understanding that all amounts payable by Borrower hereunder shall be
determined as if that Lender had not sold such participation, and that the
holder of any such participation shall not be entitled to require such Lender
to take or omit to take any action hereunder except actions directly affecting
(i) any reduction in the principal amount of, or interest rate or Fees
payable with respect to, any Loan in which such holder participates,
(ii) any extension of the scheduled amortization of the principal amount
of any Loan in which such holder participates or the final maturity date
thereof, and (iii) any release of all or substantially all of the
Collateral (other than in accordance with the terms of this Agreement, the
Collateral Documents or the other Loan Documents).  Solely for purposes of Sections 1.10, 1.11, 8.3 and 9.1,
Borrower acknowledges and agrees that a participation shall give rise to a
direct obligation of Borrower to the participant and the participant shall be
considered to be a “Lender.”  Except as
set forth in the preceding sentence neither Borrower nor any other Credit Party
shall have any obligation or duty to any participant.  Neither Agent nor any Lender (other than the Lender selling a
participation) shall have any duty to any participant and may continue to deal
solely with the Lender selling a participation as if no such sale had occurred.


 


(c)                                  Except
as expressly provided in this Section 8.1, no Lender shall, as
between Borrower and that Lender, or Agent and that Lender, be relieved of any
of its obligations hereunder as a result of any sale, assignment, transfer or
negotiation of, or granting of participation in, all or any part of the Loans,
the Notes or other Obligations owed to such Lender.


 


(d)                                 Each
Credit Party shall assist each Lender permitted to sell assignments or
participations under this Section 8.1 as required to enable the
assigning or selling Lender to effect any such assignment or participation,
including the execution and delivery of any and all agreements, notes and other
documents and instruments as shall be requested and, in connection with the
primary syndication of the Loans and Commitments, the prompt preparation of
informational materials for, and the participation of management in meetings
with, potential assignees or participants, all on a timetable established by
Agent in its sole discretion and thereafter providing reasonable access to
information and senior management of each Credit Party as Agent may reasonably
request.  Each Credit Party executing
this Agreement shall certify the correctness, completeness and accuracy of all
descriptions of the Credit Parties and their respective affairs contained in
any selling materials provided by it and all other information provided by it
and included in such materials, except that any Business Plans delivered by
Borrower shall only be certified by Borrower as having been prepared by
Borrower in compliance with the representations contained in Section 5.5.  Agent shall maintain, on behalf of Borrower,
in its offices located at 335 Madison Avenue, 12th Floor, New York,
New York 10017 a “register” for recording the name, address, commitment and
Loans owing to each Lender (including assignees and participants) and the
assignment of, or sale of participations in, the Loan Documents, Loans, Letter
of Credit Obligations 


 


50

















 


and any Commitment or any portion thereof or interest
therein, including any Lender’s rights, title, interests, remedies, powers or
duties thereunder.  The entries in such
register shall be conclusive evidence of the amounts due and owing to each
Lender in the absence of manifest error. 
Borrower, Agent and each Lender may treat each Person whose name is
recorded in such register pursuant to the terms hereof as a Lender for all
purposes of this Agreement.  The
register described herein shall be available for inspection by Borrower and any
Lender, at any reasonable time upon reasonable prior notice.


 


(e)                                  A
Lender may furnish any information concerning Credit Parties in the possession
of such Lender from time to time to assignees and participants (including
prospective assignees and participants); provided that such Lender shall obtain
from assignees or participants confidentiality covenants substantially
equivalent to those contained in Section 9.13.


 


(f)                                    So
long as no Event of Default has occurred and is continuing, no Lender shall
assign or sell participations in any portion of its Loans or Commitments to a
potential Lender or participant, if, as of the date of the proposed assignment
or sale, the assignee Lender or participant would be subject to capital
adequacy or similar requirements under Section 1.10(a), increased
costs or an inability to fund LIBOR Loans under Section 1.10(b), or
withholding taxes in accordance with Section 1.11.


 


8.2.                              Agent.


 


(a)                                  Appointment.  Each Lender hereby designates and appoints
GE Capital as its Agent under this Agreement and the other Loan Documents, and
each Lender hereby irrevocably authorizes Agent to execute and deliver the
Collateral Documents and to take such action or to refrain from taking such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers as are set forth herein or therein,
together with such other powers as are reasonably incidental thereto.  Agent is authorized and empowered to amend,
modify, or waive any provisions of this Agreement or the other Loan Documents
on behalf of Lenders subject to the requirement that certain of Lenders’
consent be obtained in certain instances as provided in this Section 8.2
and Section 9.2.  The
provisions of this Section 8.2 are solely for the benefit of Agent
and Lenders and neither Borrower nor any other Credit Party shall have any
rights as a third party beneficiary of any of the provisions hereof.  In performing its functions and duties under
this Agreement, Agent shall act solely as agent of Lenders and does not assume
and shall not be deemed to have assumed any obligation toward or relationship
of agency or trust with or for Borrower or any other Credit Party.  Agent may perform any of its duties
hereunder, or under the Loan Documents, by or through its agents or employees.


 


(b)                                 Nature
of Duties.  The duties of Agent
shall be mechanical and administrative in nature.  Agent shall not have by reason of this Agreement a fiduciary
relationship in respect of any Lender. 
Nothing in this Agreement or any of the Loan Documents, express or
implied, is intended to or shall be construed to impose upon Agent any
obligations in respect of this Agreement or any of the Loan Documents except as
expressly set forth herein or therein. 
Each Lender shall make its own independent investigation of the
financial condition and affairs of each Credit Party in connection with the
extension of credit hereunder and shall make its own appraisal of the creditworthiness
of each Credit Party, and Agent shall have no duty or responsibility, either
initially or on a continuing basis, to provide any Lender with any credit or
other information with respect thereto (other than as expressly required
herein).  If Agent seeks the consent or
approval of any Lenders to the taking or refraining from taking any action
hereunder, then Agent shall send notice thereof to each Lender.  Agent shall promptly notify each Lender any
time that the Requisite Lenders or Supermajority Revolving Lenders have
instructed Agent to act or refrain from acting pursuant hereto.


 


51

















 


(c)                                  Rights,
Exculpation, Etc.  Neither Agent nor
any of its officers, directors, employees or agents shall be liable to any
Lender for any action taken or omitted by them hereunder or under any of the
Loan Documents, or in connection herewith or therewith, except that Agent shall
be liable to the extent of its own gross negligence or willful misconduct as
determined by a final non-appealable order by a court of competent
jurisdiction.  Agent shall not be liable
for any apportionment or distribution of payments made by it in good faith and
if any such apportionment or distribution is subsequently determined to have
been made in error the sole recourse of any Lender to whom payment was due but
not made, shall be to recover from other Lenders any payment in excess of the
amount to which they are determined to be entitled (and such other Lenders
hereby agree to return to such Lender any such erroneous payments received by
them).  In no event shall Agent be
liable for punitive, special, consequential, incidental, exemplary or other
similar damages.  In performing its
functions and duties hereunder, Agent shall exercise the same care which it
would in dealing with loans for its own account, but neither Agent nor any of
its agents or representatives shall be responsible to any Lender for any
recitals, statements, representations or warranties herein or for the
execution, effectiveness, genuineness, validity, enforceability,
collectibility, or sufficiency of this Agreement or any of the Loan Documents
or the transactions contemplated thereby, or for the financial condition of any
Credit Party.  Agent shall not be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement or any of the Loan
Documents or the financial condition of any Credit Party, or the existence or
possible existence of any Default or Event of Default.  Agent may at any time request instructions
from Requisite Lenders, Supermajority Revolving Lenders or all affected Lenders
with respect to any actions or approvals which by the terms of this Agreement
or of any of the Loan Documents Agent is permitted or required to take or to
grant.  If such instructions are
promptly requested, Agent shall be absolutely entitled to refrain from taking
any action or to withhold any approval and shall not be under any liability
whatsoever to any Person for refraining from any action or withholding any
approval under any of the Loan Documents until it shall have received such
instructions from the Requisite Lenders, Supermajority Revolving Lenders or
such other portion of the Lenders as shall be prescribed by this
Agreement.  Without limiting the
foregoing, no Lender shall have any right of action whatsoever against Agent as
a result of Agent acting or refraining from acting under this Agreement or any
of the other Loan Documents in accordance with the instructions of Requisite
Lenders, Supermajority Revolving Lenders or all affected Lenders, as
applicable; and, notwithstanding the instructions of Requisite Lenders,
Supermajority Revolving Lenders or all affected Lenders, as applicable, Agent
shall have no obligation to take any action if it believes, in good faith, that
such action is deemed to be illegal by Agent or exposes Agent to any liability
for which it has not received satisfactory indemnification in accordance with Section 8.2(e).


 


(d)                                 Reliance.  Agent shall be entitled to rely, and shall
be fully protected in relying, upon any written or oral notices, statements,
certificates, orders or other documents or any telephone message or other
communication (including any writing, telex, fax or telegram) believed by it in
good faith to be genuine and correct and to have been signed, sent or made by
the proper Person, and with respect to all matters pertaining to this Agreement
or any of the Loan Documents and its duties hereunder or thereunder.  Agent shall be entitled to rely upon the
advice of legal counsel, independent accountants, and other experts selected by
Agent in its sole discretion.


 


(e)                                  Indemnification.  Lenders will reimburse and indemnify Agent
for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, attorneys’ fees and expenses), advances or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against Agent in any way relating to or arising out of this Agreement or any of
the Loan Documents or any action taken or omitted by Agent under this Agreement
or any of the Loan Documents, in proportion to each Lender’s Pro Rata Share,
but only to the extent that any of the foregoing is not reimbursed by Borrower;
provided, however, that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions, 


 


52

















 


judgments, suits, costs, expenses, advances or
disbursements to the extent resulting from Agent’s gross negligence or willful
misconduct as determined by a final non-appealable order by a court of
competent jurisdiction.  If any indemnity
furnished to Agent for any purpose shall, in the opinion of Agent, be
insufficient or become impaired, Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against even if so directed
by the Requisite Lenders, Supermajority Revolving Lenders or such other portion
of the Lenders as shall be prescribed by this Agreement until such additional
indemnity is furnished.  The obligations
of Lenders under this Section 8.2(e) shall survive the payment in
full of the Obligations and the termination of this Agreement.


 


(f)                                    GE
Capital Individually.  With respect
to its Commitments hereunder, GE Capital shall have and may exercise the same
rights and powers hereunder and is subject to the same obligations and
liabilities as and to the extent set forth herein for any other Lender.  The terms “Lenders”, “Requisite Lenders,”
“Supermajority Revolving Lenders” or any similar terms shall, unless the
context clearly otherwise indicates, include GE Capital in its individual
capacity as a Lender or one of the Requisite Lenders, or Supermajority
Revolving Lenders.  GE Capital, either
directly or through strategic affiliations, may lend money to, acquire equity
or other ownership interests in, provide advisory services to and generally engage
in any kind of banking, trust or other business with any Credit Party as if it
were not acting as Agent pursuant hereto and without any duty to account
therefor to Lenders.  GE Capital, either
directly or through strategic affiliations, may accept fees and other
consideration from any Credit Party for services in connection with this
Agreement or otherwise without having to account for the same to Lenders.


 


(g)                                 Successor
Agent.


 


(i)                                     Resignation.  Agent may resign from the performance of all
its agency functions and duties hereunder at any time by giving at least thirty
(30) Business Days’ prior written notice to Borrower and Lenders.  Such resignation shall take effect upon the
acceptance by a successor Agent of appointment pursuant to clause (ii)
below or as otherwise provided in clause (ii) below.


 


(ii)                                  Appointment
of Successor.  Upon any such notice
of resignation pursuant to clause (i) above, Requisite Lenders
shall appoint a successor Agent which, unless an Event of Default has occurred
and is continuing, shall be reasonably acceptable to Borrower.  If a successor Agent shall not have been so
appointed within the thirty (30) Business Day period referred to in
clause (i) above, the retiring Agent, upon notice to Borrower, shall then
appoint a successor Agent who shall serve as Agent until such time, if any, as
Requisite Lenders appoint a successor Agent as provided above.


 


(iii)                               Successor
Agent.  Upon the acceptance of any
appointment as Agent under the Loan Documents by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under the Loan
Documents.  After any retiring Agent’s
resignation as Agent, the provisions of this Section 8.2 shall
continue to inure to its benefit as to any actions taken or omitted to be taken
by it in its capacity as Agent.


 


(h)                                 Collateral
Matters.


 


(i)                                     Release
of Collateral.  Lenders hereby
irrevocably authorize Agent, at its option and in its discretion, to release
any Lien granted to or held by Agent upon any Collateral (x) upon
termination of the Commitments and payment and satisfaction of all Obligations
(other than contingent indemnification obligations to the extent no claims giving
rise thereto have been asserted) or (y) constituting property being sold
or disposed of if Borrower certifies to Agent that the sale or disposition is
made in compliance with the provisions of this Agreement (and Agent may rely in
good 


 


53

















 


faith conclusively on any
such certificate, without further inquiry) or (z) on assets of a Subsidiary of
a Credit Party, if all of the Stock of such Credit Party or Subsidiary is sold
to a Person that is not an Affiliate of a Credit Party in a sale permitted
under Section 3.7.


 


(ii)                                  Confirmation
of Authority; Execution of Releases. 
Without in any manner limiting Agent’s authority to act without any
specific or further authorization or consent by Lenders (as set forth in Section 8.2(h)(i)),
each Lender agrees to confirm in writing, upon request by Agent or Borrower,
the authority to release any Collateral conferred upon Agent under
clauses (x) and (y) of Section 8.2(h)(i).  Upon receipt by Agent of any required
confirmation from the Requisite Lenders of its authority to release any
particular item or types of Collateral, and upon at least ten (10) Business
Days’ prior written request by Borrower, Agent shall (and is hereby irrevocably
authorized by Lenders to) execute such documents as may be necessary to
evidence the release of the Liens granted to Agent upon such Collateral; provided,
however, that (x) Agent shall not be required to execute any such
document on terms which, in Agent’s opinion, would expose Agent to liability or
create any obligation or entail any consequence other than the release of such
Liens without recourse or warranty, and (y) such release shall not in any
manner discharge, affect or impair the Obligations or any Liens upon (or
obligations of any Credit Party, in respect of), all interests retained by any
Credit Party, including the proceeds of any sale, all of which shall continue
to constitute part of the Collateral.


 


(iii)                               Absence
of Duty.  Agent shall have no
obligation whatsoever to any Lender, L/C Issuer or any other Person to assure
that the property covered by the Collateral Documents exists or is owned by
Borrower or any other Credit Party or is cared for, protected or insured or has
been encumbered or that the Liens granted to Agent have been properly or
sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise at all or in any particular
manner or under any duty of care, disclosure or fidelity, or to continue
exercising, any of the rights, authorities and powers granted or available to
Agent in this Section 8.2(h) or in any of the Loan Documents, it
being understood and agreed that in respect of the property covered by the
Collateral Documents or any act, omission or event related thereto, Agent may
act in any manner it may deem appropriate, in its discretion, given Agent’s own
interest in property covered by the Collateral Documents as one of the Lenders
and that Agent shall have no duty or liability whatsoever to any of the other Lenders,
provided that Agent shall exercise the same care which it would in
dealing with loans for its own account.


 


(i)                                     Agency
for Perfection.  Agent and each
Lender hereby appoint each other Lender as agent for the purpose of perfecting
Agent’s security interest in assets which, in accordance with the Code in any
applicable jurisdiction, can be perfected by possession or control.  Should any Lender (other than Agent) obtain
possession or control of any such assets, such Lender shall notify Agent
thereof, and, promptly upon Agent’s request therefor, shall deliver such assets
to Agent or in accordance with Agent’s instructions or transfer control to
Agent in accordance with Agent’s instructions. 
Each Lender agrees that it will not have any right individually to
enforce or seek to enforce any Collateral Document or to realize upon any
collateral security for the Loans unless instructed to do so by Agent in
writing, it being understood and agreed that such rights and remedies may be
exercised only by Agent.


 


(j)                                     Notice
of Default.  Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default except with respect to defaults in the payment of principal, interest
and Fees required to be paid to Agent for the account of Lenders, unless Agent
shall have received written notice from a Lender or Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a “notice of default”.  Agent
will use reasonable efforts to notify each Lender of its receipt of any such
notice, unless such notice is with respect to defaults in the payment of
principal, interest and fees, in which case Agent will notify each Lender of
its receipt of such notice.  Agent shall
take such action with respect to such Default or Event of Default as may be
requested 


 


54

















 


by Requisite Lenders in accordance with Section 6.  Unless and until Agent has received any such
request, Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Default or Event of Default as it
shall deem advisable or in the best interests of Lenders.


 


(k)                                  Lender
Actions Against Collateral.  Each
Lender agrees that it will not take any action, nor institute any actions or
proceedings, with respect to the Loans, against Borrower or any Credit Party
hereunder or under the other Loan Documents or against any of the Real Estate
encumbered by Mortgages without the consent of the Requisite Lenders.  With respect to any action by Agent to
enforce the rights and remedies of Agent and the Lenders under this Agreement
and the other Loan Documents, each Lender hereby consents to the jurisdiction
of the court in which such action is maintained, and agrees to deliver its
Notes to Agent to the extent necessary to enforce the rights and remedies of
Agent for the benefit of the Lenders under the Mortgages in accordance with the
provisions hereof.


 


8.3.                              Set Off and Sharing of Payments.  In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
during the continuance of any Event of Default, each Lender is hereby
authorized by Borrower at any time or from time to time, with reasonably prompt
subsequent notice to Borrower (any prior or contemporaneous notice being hereby
expressly waived) to set off and to appropriate and to apply any and all
(A) balances held by such Lender at any of its offices for the account of
Borrower or any of its Subsidiaries (regardless of whether such balances are
then due to Borrower or its Subsidiaries), and (B) other property at any
time held or owing by such Lender to or for the credit or for the account of
Borrower or any of its Subsidiaries, against and on account of any of the
Obligations; except that no Lender shall exercise any such right without the
prior written consent of Agent.  Any
Lender exercising a right to set off shall purchase for cash (and the other
Lenders shall sell) interests in each of such other Lender’s Pro Rata Share of
the Obligations as would be necessary to cause all Lenders to share the amount
so set off with each other Lender in accordance with their respective Pro Rata
Shares.  Borrower agrees, to the fullest
extent permitted by law, that any Lender may exercise its right to set off with
respect to amounts in excess of its Pro Rata Share of the Obligations and upon
doing so shall deliver such amount so set off to the Agent for the benefit of
all Lenders in accordance with their Pro Rata Shares.


 


8.4.                              Disbursement of Funds.  Agent may, on behalf of Lenders, disburse
funds to Borrower for Loans requested. 
Each Lender shall reimburse Agent on demand for all funds disbursed on
its behalf by Agent, or if Agent so requests, each Lender will remit to Agent
its Pro Rata Share of any Loan before Agent disburses same to Borrower.  If Agent elects to require that each Lender
make funds available to Agent prior to a disbursement by Agent to Borrower,
Agent shall advise each Lender by telephone or fax of the amount of such
Lender’s Pro Rata Share of the Loan requested by Borrower no later than 1:00
p.m. (New York time) on the Funding Date applicable thereto, and each such
Lender shall pay Agent such Lender’s Pro Rata Share of such requested Loan, in
same day funds, by wire transfer to Agent’s account on such Funding Date.  If any Lender fails to pay the amount of its
Pro Rata Share within one (1) Business Day after Agent’s demand, Agent shall
promptly notify Borrower, and Borrower shall immediately repay such amount to
Agent.  Any repayment required pursuant
to this Section 8.4 shall be without premium or penalty.  Nothing in this Section 8.4 or
elsewhere in this Agreement or the other Loan Documents, including the
provisions of Section 8.5, shall be deemed to require Agent to
advance funds on behalf of any Lender or to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights that
Agent or Borrower may have against any Lender as a result of any default by such
Lender hereunder.


 


55

















 


8.5.                              Disbursements of Advances; Payment.


 


(a)                                  Advances;
Payments.


 


(i)                                     Revolving
Lenders shall refund or participate in the Swing Line Loan in accordance with
clauses (iii) and (iv) of Section 1.1(c).  If the Swing Line Lender declines to make a
Swing Line Loan or if Swing Line Availability is zero, Agent shall notify
Revolving Lenders, promptly after receipt of a Notice of Revolving Credit
Advance and in any event prior to 1:00 p.m. (New York time)  on
the date such Notice of a Revolving Credit Advance is received, by fax,
telephone or other similar form of transmission.  Each Revolving Lender shall make the amount of such Lender’s Pro
Rata Share of such Revolving Credit Advance available to Agent in same day
funds by wire transfer to Agent’s account as set forth in Section 1.1(e)
not later than 3:00 p.m. (New York time) on the requested Funding Date in
the case of an Index Rate Loans and not later than 11:00 a.m. (New York
time) on the requested Funding Date in the case of a LIBOR Loan.  After receipt of such wire transfers (or, in
the Agent’s sole discretion, before receipt of such wire transfers), subject to
the terms hereof, Agent shall make the requested Revolving Credit Advance to Borrower.  All payments by each Revolving Lender shall
be made without setoff, counterclaim or deduction of any kind.


 


(ii)                                  At
least once each calendar week or more frequently at Agent’s election (each, a “Settlement
Date”), Agent shall advise each Lender by telephone or fax of the amount of
such Lender’s Pro Rata Share of principal, interest and Fees paid for the
benefit of Lenders with respect to each applicable Loan.  Provided that each Lender has funded all
payments and Advances required to be made by it and purchased all
participations required to be purchased by it under this Agreement and the
other Loan Documents as of such Settlement Date, Agent shall pay to each Lender
such Lender’s Pro Rata Share of principal, interest and Fees paid by Borrower
since the previous Settlement Date for the benefit of such Lender on the Loans
held by it.  Such payments shall be made
by wire transfer to such Lender’s account (as specified by such Lender in Annex E
or the applicable Assignment Agreement) not later than 2:00 p.m. (New York
time) on the next Business Day following each Settlement Date.  To the extent that any Lender (a “Non-Funding
Lender”) has failed to fund all such payments and Advances or failed to
fund the purchase of all such participations, Agent shall be entitled to set
off the funding short-fall against that Non-Funding Lender’s Pro Rata
Share of all payments received from Borrower.


 


(b)                                 Availability
of Lender’s Pro Rata Share.  Agent
may assume that each Revolving Lender will make its Pro Rata Share of each
Revolving Credit Advance available to Agent on each Funding Date.  If such Pro Rata Share is not, in fact, paid
to Agent by such Revolving Lender when due, Agent will be entitled to recover
such amount on demand from such Revolving Lender without setoff, counterclaim
or deduction of any kind.  If any
Revolving Lender fails to pay the amount of its Pro Rata Share forthwith upon
Agent’s demand, Agent shall promptly notify Borrower and Borrower shall
immediately repay such amount to Agent. 
Nothing in this Section 8.5(b) or elsewhere in this
Agreement or the other Loan Documents shall be deemed to require Agent to
advance funds on behalf of any Revolving Lender or to relieve any Revolving
Lender from its obligation to fulfill its Commitments hereunder or to prejudice
any rights that Borrower may have against any Revolving Lender as a result of
any default by such Revolving Lender hereunder.  To the extent that Agent advances funds to Borrower on behalf of
any Revolving Lender and is not reimbursed therefor on the same Business Day as
such Advance is made, Agent shall be entitled to retain for its account all
interest accrued on such Advance until reimbursed by the applicable Revolving
Lender.


 


(c)                                  Return
of Payments.


 


(i)                                     If
Agent pays an amount to a Lender under this Agreement in the belief or
expectation that a related payment has been or will be received by Agent from
Borrower and such 


 


56

















 


related payment is not
received by Agent, then Agent will be entitled to recover such amount from such
Lender on demand without setoff, counterclaim or deduction of any kind.


 


(ii)                                  If
Agent determines at any time that any amount received by Agent under this
Agreement must be returned to Borrower or paid to any other Person pursuant to
any insolvency law or otherwise, then, notwithstanding any other term or
condition of this Agreement or any other Loan Document, Agent will not be
required to distribute any portion thereof to any Lender.  In addition, each Lender will repay to Agent
on demand any portion of such amount that Agent has distributed to such Lender,
together with interest at such rate, if any, as Agent is required to pay to
Borrower or such other Person, without setoff, counterclaim or deduction of any
kind.


 


(d)                                 Non-Funding
Lenders.  The failure of any
Non-Funding Lender to make any Revolving Credit Advance or any payment required
by it hereunder, or to purchase any participation in any Swing Line Loan to be
made or purchased by it on the date specified therefor shall not relieve any
other Lender (each such other Revolving Lender, an “Other Lender”) of
its obligations to make such Advance or purchase such participation on such
date, but neither any Other Lender nor Agent shall be responsible for the
failure of any Non-Funding Lender to make an Advance, purchase a participation
or make any other payment required hereunder. 
Notwithstanding anything set forth herein to the contrary, a Non-Funding
Lender shall not have any voting or consent rights under or with respect to any
Loan Document or constitute a “Lender” or a “Revolving Lender” (or have the
amounts owing to it be included in the calculation of “Requisite Lenders” or
“Supermajority Revolving Lenders” hereunder) for any voting or consent rights
under or with respect to any Loan Document.


 


(e)                                  Dissemination
of Information.  Agent shall use
reasonable efforts to provide Lenders with any notice of Default or Event of
Default received by Agent from, or delivered by Agent to, any Credit Party,
with notice of any Event of Default of which Agent has actually become aware
and with notice of any action taken by Agent following any Event of Default;
provided, that Agent shall not be liable to any Lender for any failure to do
so.


 


(f)                                    Actions
in Concert.  Anything in this Agreement
to the contrary notwithstanding, each Lender hereby agrees with each other
Lender that no Lender shall take any action to protect or enforce its rights
arising out of this Agreement or the Notes (including exercising any rights of
setoff) without first obtaining the prior written consent of Agent and
Requisite Lenders, it being the intent of Lenders that any such action to
protect or enforce rights under this Agreement and the Notes shall be taken in
concert and at the direction or with the consent of Agent or Requisite
Lenders.  Agent is authorized to issue
all notices to be issued by or on behalf of the Lenders with respect to any
Subordinated Debt and the Senior Notes.


 


SECTION 9.


 


MISCELLANEOUS


 


9.1.                              Indemnities. 
Borrower agrees to indemnify, pay, and hold Agent, each Lender, each L/C
Issuer and their respective officers, directors, employees, agents, and
attorneys (the “Indemnitees”) harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs and expenses (including all reasonable fees and expenses
of counsel to such Indemnitees) of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against any Indemnitee as a result of such
Indemnitee being a party to this Agreement or the transactions consummated
pursuant to this Agreement or otherwise relating to any of the Related
Transactions; provided, that Borrower shall have no obligation to an
Indemnitee hereunder with respect to liabilities to the extent resulting from
the gross negligence or willful misconduct of that Indemnitee as determined by
a 


 


57

















 


court of competent jurisdiction.  If and to the extent that the foregoing
undertaking may be unenforceable for any reason, Borrower agrees to make the
maximum contribution to the payment and satisfaction thereof which is
permissible under applicable law.


 


9.2.                              Amendments and Waivers.


 


(a)                                  Except
for actions expressly permitted to be taken by Agent, no amendment,
modification, termination or waiver of any provision of this Agreement or any
other Loan Document, or any consent to any departure by any Credit Party
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Borrower, and by Requisite Lenders, Supermajority Revolving
Lenders or all affected Lenders, as applicable.  Except as set forth in clauses (b) and (c) below, all such
amendments, modifications, terminations or waivers requiring the consent of any
Lenders shall require the written consent of Requisite Lenders.


 


(b)                                 No
amendment, modification, termination or waiver of or consent with respect to
any provision of this Agreement that increases the percentage advance rates set
forth in the definition of the Borrowing Base or adjusts criteria or
establishes new criteria for determining eligibility of Accounts, Rentals or
Inventory that has the effect of making more credit available shall be
effective unless the same shall be in writing and signed by Agent, Supermajority
Revolving Lenders and Borrower.


 


(c)                                  No
amendment, modification, termination or waiver shall, unless in writing and
signed by Agent and each Lender directly affected thereby:  (i) increase the principal amount of
any Lender’s Commitment (which increase shall also require the consent of
Requisite Lenders); (ii) reduce the principal of, rate of interest on or
Fees payable with respect to any Loan or Letter of Credit Obligations of any
affected Lender; (iii) extend any scheduled payment date or final maturity
date of the principal amount of any Loan of any affected Lender;
(iv) waive, forgive, defer, extend or postpone any payment of interest or
Fees as to any affected Lender (which action shall be deemed only to affect
those Lenders to whom such payments are made); (v) except in connection
with a sale of Stock permitted by this Agreement, release any Guaranty or,
except as otherwise permitted in Section 3.7, release Collateral
with a book value exceeding 5% of the book value of all assets in the aggregate
in any one (1) year (which action shall be deemed to directly affect all
Lenders); (vi) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans that shall be required for
Lenders or any of them to take any action hereunder; and (vii) amend or
waive this Section 9.2 or the definitions of the terms “Requisite
Lenders” or “Supermajority Revolving Lenders” insofar as such definitions
affect the substance of this Section 9.2.  Furthermore, no amendment, modification, termination or waiver
affecting the rights or duties of Agent or L/C Issuers under this Agreement or
any other Loan Document shall be effective unless in writing and signed by
Agent or L/C Issuers, as the case may be, in addition to Lenders required
hereinabove to take such action.  Each
amendment, modification, termination or waiver shall be effective only in the
specific instance and for the specific purpose for which it was given.  No amendment, modification, termination or
waiver shall be required for Agent to take additional Collateral pursuant to
any Loan Document.  No amendment,
modification, termination or waiver of any provision of any Note shall be
effective without the written concurrence of the holder of that Note.  No notice to or demand on any Credit Party
in any case shall entitle such Credit Party or any other Credit Party to any
other or further notice or demand in similar or other circumstances.  Any amendment, modification, termination,
waiver or consent effected in accordance with this Section 9.2
shall be binding upon each holder of the Notes at the time outstanding and each
future holder of the Notes.


 


9.3.                              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 


 


58

















 


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:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  If to Borrower:

  	
   

  	
  Dayton Superior Corporation

  777 Washington Village Drive, Suite 130

  Dayton, OH  45459

  ATTN:  Edward J. Puisis

  Fax:  (937) 428-9115

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Latham & Watkins

  885 Third Avenue, Suite 1000

  New York, NY  10022

  ATTN:  Kirk Davenport

  Fax:  (212) 751-4864

  
	
   

  	
   

  	
   

  
	
  If to Agent or GE Capital:

  	
   

  	
  GENERAL ELECTRIC CORPORATION

  335 Madison Avenue

  12th Floor

  New York, New York  10017

  ATTN:  Dayton Superior Account Officer

  Fax:  (212) 983-8767

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  GENERAL ELECTRIC CAPITAL CORPORATION

  201 High Ridge Road

  Stamford, Connecticut  06927-5100

  ATTN:  Corporate Counsel

    Corporate Financial Services – Global Sponsor Finance

  Fax:  (203) 316-7899

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  And

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GENERAL ELECTRIC CAPITAL CORPORATION

  335 Madison Avenue, 11th Floor

  New York, New York  10017

  ATTN:  Corporate Counsel

    Corporate Financial Services – Global Sponsor Finance 

  Fax:  (212) 983-8767

  
	
   

  	
   

  	
   

  
	
  If to a Lender:

  	
   

  	
  To the address set forth on the signature page
  hereto or in the applicable Assignment Agreement

  



 


9.4.                              Failure or Indulgence Not Waiver;
Remedies Cumulative.  No failure or
delay on the part of Agent or any Lender to exercise, nor any partial exercise
of, any power, right or privilege hereunder or 


 


59

















 


under any other Loan Documents shall impair such
power, right, or privilege or be construed to be a waiver of any Default or
Event of Default.  All rights and
remedies existing hereunder or under any other Loan Document are cumulative to
and not exclusive of any rights or remedies otherwise available.


 


9.5.                              Marshaling; Payments Set Aside.  Neither Agent nor any Lender shall be under
any obligation to marshal any assets in payment of any or all of the
Obligations.  To the extent that
Borrower makes payment(s) or Agent enforces its Liens or Agent or any Lender
exercises its right of set-off, and such payment(s) or the proceeds of such
enforcement or set-off is subsequently invalidated, declared to be fraudulent
or preferential, set aside, or required to be repaid by anyone, then to the
extent of such recovery, the Obligations or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been made or such
enforcement or set-off had not occurred.


 


9.6.                              Severability. 
The invalidity, illegality, or unenforceability in any jurisdiction of
any provision under the Loan Documents shall not affect or impair the remaining
provisions in the Loan Documents.


 


9.7.                              Lenders’ Obligations Several; Independent
Nature of Lenders’ Rights.  The
obligation of each Lender hereunder is several and not joint and no Lender
shall be responsible for the obligation or commitment of any other Lender
hereunder.  In the event that any Lender
at any time should fail to make a Loan as herein provided, the Lenders, or any
of them, at their sole option, may make the Loan that was to have been made by
the Lender so failing to make such Loan. 
Nothing contained in any Loan Document and no action taken by Agent or
any Lender pursuant hereto or thereto shall be deemed to constitute Lenders to
be a partnership, an association, a joint venture or any other kind of
entity.  The amounts payable at any time
hereunder to each Lender shall be a separate and independent debt.


 


9.8.                              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.


 


9.9.                              Applicable Law. 
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS WHICH DOES NOT
EXPRESSLY SET FORTH APPLICABLE LAW 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.


 


9.10.                        Successors and Assigns.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns except that Borrower may not assign its rights or obligations hereunder
without the written consent of all Lenders.


 


9.11.                        No Fiduciary Relationship; Limited Liability.  No provision in the Loan Documents and no
course of dealing between the parties shall be deemed to create any fiduciary
duty owing to any Credit Party by Agent or any Lender.  Borrower agrees that neither Agent nor any
Lender shall have liability to any Credit Party (whether sounding in tort,
contract or otherwise) for losses suffered by any Credit Party in connection
with, arising out of, or in any way related to the transactions contemplated
and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless and to the extent that it is
determined that such losses resulted from the gross negligence or willful
misconduct of the party from which recovery is sought as determined by a final non-appealable
order by a court of competent jurisdiction. 
Neither Agent nor any Lender shall have any liability with respect to,
and Borrower hereby waives, releases and agrees not to sue for, any special,
indirect or 


 


60

















 


consequential damages suffered by any Credit Parties
in connection with, arising out of, or in any way related to the Loan Documents
or the transactions contemplated thereby.


 


9.12.                        Construction. 
Agent, each Lender, Borrower and each other Credit Party acknowledge
that each of them has had the benefit of legal counsel of its own choice and
has been afforded an opportunity to review the Loan Documents with its legal
counsel and that the Loan Documents shall be construed as if jointly drafted by
Agent, each Lender, Borrower and each other Credit Party.


 


9.13.                        Confidentiality.  Agent and each Lender agree to exercise their best efforts to
keep confidential any non-public information delivered pursuant to the Loan
Documents and identified as such by Borrower and not to disclose such
information to Persons other than to potential assignees or participants or to
Persons employed by or engaged by Agent, a Lender or a Lender’s assignees or
participants including attorneys, auditors, professional consultants, rating
agencies, insurance industry associations and portfolio management
services.  The confidentiality
provisions contained in this Section 9.13 shall not apply to
disclosures (i) required to be made by Agent or any Lender to any
regulatory or governmental agency or pursuant to legal process or
(ii) consisting of general portfolio information that does not identify
Borrower.  The obligations of Agent and
Lenders under this Section 9.13 shall supersede and replace the
obligations of Agent and Lenders under any confidentiality agreement in respect
of this financing executed and delivered by Agent or any Lender prior to the
date hereof.  Notwithstanding anything
to the contrary set forth herein or in any other written or oral understanding
or agreement to which the parties hereto are parties or by which they are
bound, the parties acknowledge and agree that (i) any obligations of
confidentiality contained herein and therein do not apply and have not applied
from the commencement of discussions between the parties to the tax treatment
and tax structure of the transactions contemplated by the Loan Documents (and
any related transactions or arrangements), and (ii) each party (and each of its
employees, representatives, or other agents) may disclose to any and all
Persons, without limitation of any kind, the tax treatment and tax structure of
such transactions and all materials of any kind (including opinions or other
tax analyses) that are provided to such party relating to such tax treatment
and tax structure, all within the meaning of Treasury Regulations Section
1.6011-4; provided, however, that each party recognizes that the
privilege each has to maintain, in its sole discretion, the confidentiality of
a communication relating to such transactions, including a confidential
communication with its attorney or a confidential communication with a
federally authorized tax practitioner under IRC Section 7525, is not intended
to be affected by the foregoing.


 


9.14.                        CONSENT TO JURISDICTION.  BORROWER AND CREDIT PARTIES HEREBY CONSENT
TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN NEW YORK
COUNTY, STATE OF NEW YORK AND IRREVOCABLY AGREE THAT, SUBJECT TO AGENT’S
ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS.  BORROWER AND CREDIT PARTIES EXPRESSLY SUBMIT
AND CONSENT TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE
OF FORUM NON CONVENIENS.  BORROWER AND
CREDIT PARTIES HEREBY WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREE
THAT ALL SUCH SERVICE OF PROCESS  MAY BE MADE UPON BORROWER AND CREDIT
PARTIES BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO
BORROWER, 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 LOAN DOCUMENTS, ALL DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS OF BORROWER, CREDIT PARTIES OR ANY OF THEIR AFFILIATES
SHALL BE DEEMED TO BE EMPLOYEES OR MANAGING AGENTS OF BORROWER OR SUCH CREDIT 


 


61

















 


PARTY 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).  BORROWER AND CREDIT PARTIES AGREE THAT
AGENT’S OR ANY LENDER’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.  BORROWER
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 AGENT OR ANY LENDER, ALL PERSONS, DOCUMENTS (WHETHER IN
TANGIBLE, ELECTRONIC OR OTHER FORM) OR OTHER THINGS UNDER THEIR CONTROL AND
RELATING TO THE DISPUTE.


 


9.15.                        WAIVER OF JURY TRIAL.  BORROWER, CREDIT PARTIES, AGENT AND EACH
LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.  BORROWER, CREDIT PARTIES,
AGENT AND EACH LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN
ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THAT EACH WILL
CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS.  BORROWER, CREDIT PARTIES, AGENT AND EACH
LENDER WARRANT AND REPRESENT THAT EACH HAS HAD THE OPPORTUNITY OF REVIEWING
THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS.


 


9.16.                        Survival of Warranties and Certain
Agreements.  All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement, the making of the Loans, issuances of Letters of
Credit and the execution and delivery of the Notes.  Notwithstanding anything in this Agreement or implied by law to
the contrary, the agreements of Borrower set forth in Sections 1.3(g),
1.10, 1.11 and 9.1 shall survive the repayment of the Obligations and the
termination of this Agreement as unsecured liabilities following release of the
Collateral.


 


9.17.                        Entire Agreement.  This Agreement, the Notes and the other Loan Documents embody the
entire agreement among the parties hereto and supersede all prior commitments,
agreements, representations, and understandings, whether oral or written,
relating to the subject matter hereof, and may not be contradicted or varied by
evidence of prior, contemporaneous, or subsequent oral agreements or
discussions of the parties hereto.  All
Exhibits, Schedules and Annexes referred to herein are incorporated in this
Agreement by reference and constitute a part of this Agreement.


 


9.18.                        Counterparts; Effectiveness.  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.


 


9.19.                        Replacement of Lenders.


 


(a)                                  Within
fifteen (15) days after receipt by Borrower of written notice and demand from
any Lender for payment pursuant to Section 1.10 or 1.11 or, as
provided in this Section 9.19(c), in the case of certain refusals
by any Lender to consent to certain proposed amendments, modifications, 


 


62

















 


terminations or waivers with respect to this Agreement
that have been approved by Requisite Lenders, Supermajority Revolving Lenders
or all affected Lenders, as applicable (any such Lender demanding such payment
or refusing to so consent being referred to herein as an “Affected Lender”),
Borrower may, at its option, notify Agent and such Affected Lender of its
intention to do one of the following:


 


(i)                                     Borrower
may obtain, at Borrower’s expense, a replacement Lender   (“Replacement Lender”) for such
Affected Lender, which Replacement Lender shall be reasonably satisfactory to
Agent.  In the event Borrower obtains a
Replacement Lender that will purchase all outstanding Obligations owed to such
Affected Lender and assume its Commitments hereunder within ninety (90) days
following notice of Borrower’s intention to do so, the Affected Lender shall
sell and assign all of its rights and delegate all of its obligations under
this Agreement to such Replacement Lender in accordance with the provisions of Section 8.1,
provided that Borrower has reimbursed such Affected Lender for any
administrative fee payable pursuant to Section 8.1 and, in any case
where such replacement occurs as the result of a demand for payment pursuant to
Section 1.10 or 1.11, paid all amounts required to be paid to such
Affected Lender pursuant to Section 1.10 or 1.11 through the date
of such sale and assignment; or


 


(ii)                                  Borrower
may, with Agent’s consent, prepay in full all outstanding Obligations owed to
such Affected Lender and terminate such Affected Lender’s Pro Rata Share of the
Revolving Loan Commitment, in which case the Revolving Loan Commitment will be
reduced by the amount of such Pro Rata Share. 
Borrower shall, within ninety (90) days following notice of its
intention to do so, prepay in full all outstanding Obligations owed to such
Affected Lender (including, in any case where such prepayment occurs as the
result of a demand for payment for increased costs, such Affected Lender’s
increased costs for which it is entitled to reimbursement under this Agreement
through the date of such prepayment), and terminate such Affected Lender’s
obligations under the Revolving Loan Commitment.


 


(b)                                 In
the case of a Non-Funding Lender pursuant to Section 8.5(a), at
Borrower’s request, Agent or a Person acceptable to Agent shall have the right
with Agent’s consent and in Agent’s sole discretion (but shall have no
obligation) to purchase from any Non-Funding Lender, and each Non-Funding
Lender agrees that it shall, at Agent’s request, sell and assign to Agent or
such Person, all of the Loans and Commitments of that Non-Funding Lender for an
amount equal to the principal balance of all Loans held by such Non-Funding
Lender and all accrued interest and Fees with respect thereto through the date
of sale, such purchase and sale to be consummated pursuant to an executed
Assignment Agreement.


 


(c)                                  If,
in connection with any proposed amendment, modification, waiver or termination
pursuant to Section 9.2 (a “Proposed Change”):


 


(i)                                     requiring
the consent of all affected Lenders, the consent of Requisite Lenders is
obtained, but the consent of other Lenders whose consent is required is not
obtained (any such Lender whose consent is not obtained as described in this
clause (i) and in clauses (ii), (iii) and (iv) below being referred
to as a “Non-Consenting Lender”),


 


(ii)                                  requiring
the consent of Supermajority Revolving Lenders, the consent of Requisite
Lenders is obtained, but the consent of Supermajority Revolving Lenders is not
obtained,


 


(iii)                               requiring
the consent of Requisite Lenders, the consent of Lenders holding 51% or more of
the aggregate Revolving Loan Commitments is obtained, but the consent of
Requisite Lenders is not obtained, or


 


63

















 


then, so long as Agent is not a Non-Consenting Lender,
at Borrower’s request Agent, or a Person reasonably acceptable to Agent, shall
have the right with Agent’s consent and in Agent’s sole discretion (but shall
have no obligation) to purchase from such Non-Consenting Lenders, and such
Non-Consenting Lenders agree that they shall, upon Agent’s request, sell and
assign to Agent or such Person, all of the Loans and Commitments of such
Non-Consenting Lenders for an amount equal to the principal balance of all
Loans held by the Non-Consenting Lenders and all accrued interest and Fees with
respect thereto through the date of sale, such purchase and sale to be
consummated pursuant to an executed Assignment Agreement.


 


9.20.                        Delivery of Termination Statements and Mortgage
Releases.  Upon payment in full in
cash and performance of all of the Obligations (other than contingent
indemnification Obligations to the extent no unsatisfied claim has been
asserted), termination of the Commitments and the provision of cash collateral
(or back-to-back standby letters of credit) for all Letter of Credit
Obligations to the extent required (or permitted) by this Agreement and a
release of all claims against Agent and Lenders, and so long as no suits,
actions proceedings, or claims are pending or threatened against any Indemnitee
asserting any damages, losses or liabilities that are indemnified liabilities
hereunder, Agent shall deliver to Borrower termination statements, mortgage
releases and other documents necessary or appropriate to evidence the
termination of the Liens securing payment of the Obligations.


 


9.21.                        Subordination Of Intercompany Debt


 


(a)                                  Each
Credit Party hereby agrees that any intercompany Indebtedness or other
intercompany payables or receivables, or intercompany advances directly or
indirectly owed to such Credit Party by any other Credit Party (collectively, “Intercompany
Debt”), of whatever nature at any time outstanding shall be subordinate and
subject in right of payment to the prior payment in full in cash of the
Obligations.  Each Credit Party hereby
agrees that, while any Event of Default is continuing, to the extent so
directed in writing by Agent, such Credit Party will not accept any payment,
including by offset, on any Intercompany Debt until the Termination Date.


 


(b)                                 In
the event that any payment on any Intercomapny Debt shall be received by a
Credit Party other than as permitted by this Section 9.21 before the
Termination Date, such Credit Party shall receive such payments and hold the
same in trust for, segregate the same from its own assets and shall immediately
pay over to, the Agent for the benefit of the Agent and Lenders all such sums
to the extent necessary so that Agent and the Lenders shall have been paid in
full, in cash, all Obligations owed or which may become owing.


 


(c)                                  Upon
any payment or distribution of any assets of any Credit Party of any kind or
character, whether in cash, property or securities by set-off, recoupment or
otherwise, to creditors in any liquidation or other winding-up of such Credit
Party or in the event of any Proceeding, Agent and Lenders shall first be
entitled to receive payment in full in cash, in accordance with the terms of
the Obligations and of this Agreement, of all amounts payable under or in
respect of such Obligations, before any payment or distribution is made on, or in
respect of, any Intercompany Debt, in any such Proceeding, any distribution or
payment, to which Agent or any Lender would be entitled except for the
provisions hereof shall be paid by such Credit Party or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution directly to Agent (for the benefit of Agent and the
Lenders) to the extent necessary to pay all such Obligations in full in cash,
after giving effect to any concurrent payment or distribution to Agent and
Lenders (or to Agent for the benefit of Agent and Lenders).


 


64

















 


Witness the due execution hereof by the respective
duly authorized officers of the undersigned as of the date first written above.


 


	
   

  	
  DAYTON SUPERIOR CORPORATION,

  	
   

  
	
   

  	
  as Borrower

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J. Puisis

  	
   

  	
   

  
	
   

  	
   

  	
  Edward J. Puisis

  	
   

  
	
   

  	
   

  	
  Vice President and Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  AZTEC CONCRETE ACCESSORIES, INC.,

  	
   

  
	
   

  	
  as a Credit
  Party

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J. Puisis

  	
   

  	
   

  
	
   

  	
   

  	
  Edward J. Puisis

  	
   

  
	
   

  	
   

  	
  Vice President and Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DAYTON SUPERIOR SPECIALTY CHEMICAL
  CORP.,

  
	
   

  	
  as a Credit
  Party

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J. Puisis

  	
   

  	
   

  
	
   

  	
   

  	
  Edward J. Puisis

  	
   

  
	
   

  	
   

  	
  Vice President and Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DUR-O-WAL, INC.,

  	
   

  
	
   

  	
  as a Credit
  Party

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J. Puisis

  	
   

  	
   

  
	
   

  	
   

  	
  Edward J. Puisis

  	
   

  
	
   

  	
   

  	
  Vice President and Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SOUTHERN CONSTRUCTION PRODUCTS,
  INC.,

  
	
   

  	
  As a Credit
  Party

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J. Puisis

  	
   

  	
   

  
	
   

  	
   

  	
  Edward J. Puisis

  	
   

  
	
   

  	
   

  	
  Vice President and Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SYMONS CORPORATION,

  	
   

  
	
   

  	
  as a Credit
  Party

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J. Puisis

  	
   

  	
   

  
	
   

  	
   

  	
  Edward J. Puisis

  	
   

  
	
   

  	
   

  	
  Vice President and Chief Financial Officer

  	
   

  



 


65

















 


	
   

  	
  TREVECCA HOLDINGS, INC.,

  	
   

  
	
   

  	
  as a Credit
  Party

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward J. Puisis

  	
   

  	
   

  
	
   

  	
   

  	
  Edward J. Puisis

  	
   

  
	
   

  	
   

  	
  Vice President and Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GENERAL ELECTRIC CAPITAL
  CORPORATION,

  
	
   

  	
  as Agent, an L/C
  Issuer and a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  /s/ Marc C. Robinson

  	
   

  	
   

  
	
   

  	
   

  	
  Its Duly Authorized Signatory

  	
   

  	
   

  
						



 


66

















 


ANNEX A


to


CREDIT
AGREEMENT


 


DEFINITIONS


 


Capitalized terms used in the Loan Documents shall have
(unless otherwise provided elsewhere in the Loan Documents) the following
respective meanings and all references to Sections, Exhibits, Schedules or
Annexes in the following definitions shall refer to Sections, Exhibits,
Schedules or Annexes of or to the Agreement:


 


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


 


“Accounts” means all “accounts,” as such term
is defined in the Code, now owned or hereafter acquired by any Credit Party,
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 Credit Party’s rights in,
to and under all purchase orders or receipts for goods or services,
(c) all of each Credit Party’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 Credit Party 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
Credit Party or in connection with any other transaction (whether or not yet earned
by performance on the part of such Credit Party), (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.


 


“Acquisition Pro Forma” has the meaning
ascribed to it in Section 3.6(b)(ix)(A).


 


“Acquisition Projections” has the meaning
ascribed to it in Section 3.6(b)(ix)(B).


 


“Advances” means any Revolving Credit Advance
or Swing Line Advance, as the context may require.


 


“Affected Lender” has the meaning ascribed to
it in Section 9.19(a).


 


“Affiliate” means, with respect to any Person,
(a) each Person that, directly or indirectly, owns or controls, whether
beneficially, or as a trustee, guardian or other fiduciary, 5% or more of the
Stock having ordinary voting power in the election of directors of such Person,
(b) each Person that controls, is controlled by or is under common control
with such Person, (c) each of such Person’s officers, directors, joint
venturers and partners and (d) in the case of Borrower, the immediate
family members, spouses and lineal descendants of individuals who are
Affiliates of Borrower.  For the
purposes of this definition, “control” of a Person shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of
voting securities, by contract or otherwise; provided, however,
that the term “Affiliate” shall specifically exclude Agent and each
Lender.


 


67

















 


“Affiliate Transaction” has the meaning
ascribed to it in Section 3.8.


 


“Agent” means GE Capital in its capacity as
Agent for Lenders or its successor appointed pursuant to Section 8.2.


 


“Agreement” means this Credit Agreement
(including all schedules, subschedules, annexes and exhibits hereto), as the
same may be amended, supplemented, restated or otherwise modified from time to
time.


 


“Applicable Margins” means collectively the
Applicable Revolver Index Margin and the Applicable Revolver LIBOR Margin.


 


“Applicable Revolver Index Margin” means the
per annum interest rate margin from time to time in effect and payable in
addition to the Index Rate applicable to the Revolving Loan, as determined by
reference to Section 1.2(a).


 


“Applicable Revolver LIBOR Margin” means the
per annum interest rate from time to time in effect and payable in addition to
the LIBOR Rate applicable to the Revolving Loan, as determined by reference to Section 1.2(a).


 


“Asset Disposition” means the disposition
whether by sale, lease, transfer, loss, damage, destruction, casualty,
condemnation or otherwise of any of the following:  (a) any of the Stock or other equity or ownership interest
of any of Borrower’s direct or indirect Subsidiaries or (b) any or all of
the assets of Borrower or any of its Subsidiaries other than sales (including
the sale of rental Inventory), lease, transfer, rentals or other disposition of
Inventory in the ordinary course of business.


 


“Assignment Agreement” has the meaning ascribed
to it in Section 8.1(a).


 


“Aztech” means Aztech Concrete Accessories,
Inc.


 


“Bankruptcy Code” means the provisions of
Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. or other
applicable bankruptcy, insolvency or similar laws.


 


“Borrower” has the meaning ascribed to it in
the preamble to the Agreement.


 


“Borrowing Availability” means as of any date
of determination the least of (i) the Maximum Amount less the sum
of (a) the Revolving Loan then outstanding (including, without
duplication, the outstanding balance of Letter of Credit Obligations then
outstanding),  and  (b) the Swing Line Loan then
outstanding (ii) the Borrowing Base, less the sum of (a) the
Revolving Loan then outstanding (including, without duplication, the
outstanding balance of Letter of Credit Obligations then outstanding),  (b) the
Swing Line Loan then outstanding, and (c) Reserves required by Agent in its
reasonable credit judgment and (iii) the maximum amount that if advanced on
such date under this Agreement, whether as a Revolving Credit Advance or a
Letter of Credit, would constitute “Permitted Indebtedness” (under and as such
term is defined in the Senior Notes Indenture as in effect at such date).


 


“Borrowing Base” means, as of any date of
determination by Agent, an amount equal to the sum at such time of:


 


(d)                                 85%  of
the net amount of Eligible Accounts of Borrower and its Domestic Subsidiaries
which are not more than 120 days past invoice date and 80% of the net amount of
Eligible Accounts of Borrower and its Domestic Subsidiaries which are more 


 


68

















 


than 120 and not more
then 150 days past invoice date, in each case, at such time (such percentages
being subject to adjustment as provided in Section 1.7); plus


 


(e)                                  the
lesser of 60% of the cost or 85% of the Net Orderly Liquidation Value of
Eligible Inventory of Borrower and its Domestic Subsidiaries (such percentages
being subject to adjustment as provided in Section 1.8); minus


 


(f)                                    $10,000,000;
minus


 


(g)                                 the
amount by which, as of the calendar month most recently ended on or prior to
such date of determination, the current liabilities of Symons as determined in
accordance with GAAP (other than the current portion of the Loans and other
than Intercompany Notes) exceeds $7,500,000.


 


“Borrowing Base Certificate” has the meaning
ascribed to it in Section 4.9(d).


 


“Business Day” means any day that is not a
Saturday, a Sunday or a day on which banks are required or permitted to be
closed in the State of New York or Ohio and in reference to LIBOR Loans shall
mean any such day that is also a LIBOR Business Day.


 


“Business Plan” means Borrower’s forecasted
consolidated and Consolidating:  (a)
balance sheets; (b) profit and loss statements; (c) cash flow statements; and
(d) capitalization statements, all prepared for Borrower and its Subsidiaries
in form consistent with the historical Financial Statements of Borrower and its
Subsidiaries (including those of any Target acquired in a Permitted
Acquisition), together with appropriate supporting details and a statement of
underlying assumptions.


 


“Capital Lease” means, with respect to any
Person, any lease of any property (whether real, personal or mixed) by such
Person as lessee that, in accordance with GAAP, would be required to be
classified and accounted for as a capital lease on a balance sheet of such
Person.


 


“Capital Lease Obligation” means, with respect
to any Capital Lease of any Person, the amount of the obligation of the lessee
thereunder that, in accordance with GAAP, would appear on a balance sheet of
such lessee in respect of such Capital Lease.


 


“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.


 


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“Certificate of Exemption” has the meaning
ascribed to it in Section 1.11(c).


 


“Change of Control” means any of the
following:  (a) Odyssey Investment
Partners ceases to own either (i) more than 50% of the issued and outstanding
shares of stock of Borrower having the right to vote for the election of
directors of Borrower under ordinary circumstances or (ii) more than 50% of the
issued and outstanding shares of stock of a corporation of which the Borrower
is a wholly owned Subsidiary having the right to vote for the election of
directors of such corporation under ordinary circumstances; or (b) the
occurrence of a “Change of Control” (as defined in the Senior Notes Indenture)
or a “Change of Control” (as defined in the Senior Subordinated Notes
Indenture).


 


“Charges” means all federal, state, county,
city, municipal, local, foreign or other governmental taxes (including premiums
and other amounts owed to the PBGC at the time due and payable), levies,
assessments, charges, liens, claims or encumbrances upon or relating to
(a) the Collateral, (b) the Obligations, (c) the employees,
payroll, income or gross receipts of any Credit Party, (d) any Credit
Party’s ownership or use of any properties or other assets, or (e) any
other aspect of any Credit Party’s business.


 


“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 Credit Party, wherever located.


 


“Closing Checklist” means the schedule,
including all appendices, exhibits or schedules thereto, listing certain
documents and information to be delivered in connection with the Agreement, the
other Loan Documents and the transactions contemplated thereunder,
substantially in the form attached hereto as Annex C.


 


“Closing Date” means January 30, 2004.


 


“Closing Refinancing” means the payment in full
by Borrower of the Prior Lender Obligations on the Closing Date (and the provision
of required cash collateral for letters of credit outstanding under the
Existing Credit Facility).


 


“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, Agent’s or
any Lender’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.


 


“Collateral” means the property covered by the
Security Agreement, the Mortgages and the other Collateral
Documents and any other property, real or personal, tangible or intangible, now
existing or hereafter acquired, that may at any time be or become subject to a
security interest or Lien in favor of Agent, on behalf of itself and Lenders,
to secure the Obligations or any portion thereof.


 


“Collateral Documents” means the Security
Agreement, the Pledge Agreements, the Guaranties, the Mortgages, the Patent
Security Agreements, the Trademark Security Agreements, the Copyright Security
Agreements, the Control Agreements, lock-box account agreements, and all
similar agreements 


 


70

















 


entered into guaranteeing payment of, or granting a
Lien upon property as security for payment of, the Obligations or any portion
thereof.


 


“Commitment Termination Date” means the
earliest of (a) January 30, 2007, (b) the date of termination of
Lenders’ obligations to make Advances and to incur Letter of Credit Obligations
or permit existing Loans to remain outstanding pursuant to Section 6.3,
and (c) the date of (i)  prepayment in full by Borrower of the Loans,
(ii) the cancellation and return of (or, to the extent permitted hereby,
the provision of back-to-back stand-by letters of credit for) all Letters of
Credit or the cash collateralization of all Letter of Credit Obligations
pursuant to Section 1.5(g), and (iii) the permanent reduction
of the Commitments to zero dollars ($0).


 


“Commitments” means (a) as to any Lender,
the aggregate of such Lender’s Revolving Loan Commitment and Swing Line
Commitment as set forth on Annex B to the Agreement or in the most
recent Assignment Agreement executed by such Lender and (b) as to all
Lenders, the aggregate of all Lenders’ Revolving Loan Commitments and Swing
Line Commitments, which aggregate commitment shall be eighty million dollars
($80,000,000) on the Closing Date, as such Commitments may be reduced,
amortized or adjusted from time to time in accordance with the Agreement.


 


“Compliance and Pricing Certificate” has the
meaning ascribed to it in Section 4.9(k).


 


“Consolidating” means, for purposes of Section
4.9 hereof, financials reflecting the consolidating information of (i) the
Borrower and its Subsidiaries (other than Symons and Dayton Superior Canada
Ltd.), (ii) Symons and (iii) Dayton Superior Canada Ltd.


 


“Contingent Obligation” means, as applied to
any Person, any direct or indirect liability of that Person:  (i) with respect to Guaranteed
Indebtedness and with respect to any Indebtedness, lease, dividend or other
obligation of another Person if the purpose or intent of the Person incurring
such liability, or the effect thereof, is to provide assurance to the obligee
of such liability that such liability will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
liability will be protected (in whole or in part) against loss with respect
thereto; (ii) with respect to any letter of credit issued for the account
of that Person or as to which that Person is otherwise liable for reimbursement
of drawings; (iii) under any foreign exchange contract, currency swap
agreement, interest rate swap agreement or other similar agreement or
arrangement designed to alter the risks of that Person arising from
fluctuations in currency values or interest rates, (iv) any agreement,
contract or transaction involving commodity options or future contracts,
(v) to make take-or-pay or similar payments if required regardless of
nonperformance by any other party or parties to an agreement, or
(vi) pursuant to any agreement to purchase, repurchase or otherwise acquire
any obligation or any property constituting security therefor, to provide funds
for the payment or discharge of such obligation or to maintain the solvency,
financial condition or any balance sheet item or level of income of another.  The amount of any Contingent Obligation
shall be equal to the amount of the obligation so guaranteed or otherwise
supported or, if not a fixed and determined amount, the maximum amount so
guaranteed.


 


“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 including the Related Transactions Documents.


 


“Control Agreements” means tri-party deposit
account, securities account or commodities account control agreements by and
among the applicable Credit Party, Agent and the depository, securities
intermediary or commodities intermediary, and each in form and substance
satisfactory in all respects to Agent and in any event providing to Agent
control of such deposit account, securities account 


 


71

















 


or commodities account within the meaning of Articles
8 and 9 of the New York Uniform Commercial Code.


 


“Copyright License” means any and all rights
nor owned or hereafter acquired by any Credit Party under any written agreement
granting any right to use any Copyright or Copyright registration.


 


“Copyright Security Agreements” means the
Copyright Security Agreements made in favor of Agent, on behalf of itself and
Lenders, by each applicable Credit Party.


 


“Copyrights” means all of the following now
owned or hereafter adopted or acquired by any Credit Party:  (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.


 


“Credit Parties” means Borrower, and each of
its Domestic Subsidiaries and each other Person who executes this Agreement as
a “Credit Party” or a Guaranty or who grants a Lien on all or part of its
assets to secure all of part of the Obligations.


 


“Currency Agreement” means any foreign exchange contracts, currency swap agreements or other
similar agreements or arrangements designed to protect Borrower or any
Subsidiary of Borrower against fluctuations in currency values.


 


“DSC” means Dayton
Superior Specialty Chemical Corp.


 


“Deemed Cash”
means:


 


(a)          liabilities (as shown on Borrower’s or the applicable Subsidiary’s most
recent balance sheet) of Borrower or any such Subsidiary (other than
liabilities that are by their terms subordinated to the Obligations) that are
assumed by the transferee of any such assets and for which Borrower and its
Subsidiaries receive a written release from all creditors;


 


(b)                                 any notes or other obligations received by
Borrower or any such Subsidiary from such transferee that are converted by
Borrower or such Subsidiary into cash within 180 days of the receipt thereof
(to the extent of the cash received); and


 


(c)                                  any Designated Noncash Consideration received by
Borrower or any of its Subsidiaries in such Asset Disposition having an
aggregate fair market value, when taken together with all other Designated
Noncash Consideration received pursuant to this clause (C) that is at that time
outstanding, not to exceed 5% of Total Assets at the time of the receipt of
such Designated Noncash Consideration with the fair market value of each item
of Designated Noncash Consideration being measured at the time received and
without giving effect to subsequent changes in value.


 


“Default” means any event that, with the
passage of time or notice or both, would, unless cured or waived, become an
Event of Default.


 


“Default Rate” has the meaning ascribed to it
in Section 1.2(d).


 


“Designated Noncash Consideration” means any non-cash consideration received by
Borrower or one of its Subsidiaries in connection with an Asset Disposition
that is designated as Designated Noncash 


 


72

















 


Consideration pursuant to a
certificate of principal executive officer and the principal financial officer
of Borrower that is delivered to Agent and executed at the time of such Asset
Disposition. Any particular item of Designated Noncash Consideration will cease
to be considered to be outstanding once it has been sold for cash or Cash
Equivalents. At the time of receipt of any Designated Noncash Consideration,
Borrower shall deliver a certificate of an authorized officer of Borrower to
Agent that shall state the fair market value of such Designated Noncash
Consideration and shall state the basis of such valuation, which shall be a
report of a nationally recognized investment banking, appraisal or accounting
firm with respect to the receipt in one transaction or a series of related
transactions, of Designated Noncash Consideration with a fair market value in
excess of $10,000,000.


 


“Disbursement Account” has the meaning ascribed
to it in Section 1.1(e).


 


“Disclosure Schedules” means the Schedules
prepared by Borrower and denominated as Schedules 2.7 through 5.18
in the index to the Agreement.


 


“Disqualified Stock” means that portion of any Stock which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder thereof), or upon the happening of any event (other than
an event which would constitute a Change of Control), matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof (except, in each case,
upon the occurrence of a Change of Control) on or prior to the final maturity
date of the Senior Notes.


 


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


 


“Dollars” or “$” means lawful currency
of the United States of America.


 


“Domestic Subsidiaries” means each of
Dur-O-Wal, Symons, DSC, Trevecca Holdings, Inc., and Aztec and each other
Subsidiary of Borrower that is organized under the laws of a State of the
United States of America or under the laws of the United States of America.


 


“Dur-O-Wall” means Dur-O-Wall, Inc.


 


“Eligible Accounts” has the meaning ascribed to
it in Schedule 1 to Exhibit 4.9(d).


 


“Eligible Inventory” has the meaning ascribed
to it in Schedule 1 to Exhibit 4.9(d).


 


“Environmental Laws” means all applicable
federal, state, local and foreign laws, statutes, ordinances, codes, rules,
standards and regulations, now or hereafter in effect, and any applicable
judicial or administrative interpretation thereof, including any applicable
judicial or administrative order, consent decree, order or judgment, imposing
liability or standards of conduct for or relating to the regulation and
protection of human health, safety, the environment and natural resources (including
ambient air, surface water, groundwater, wetlands, land surface or subsurface
strata, wildlife, aquatic species and vegetation).  Environmental Laws include the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C. §§ 9601 et
seq.) (“CERCLA”); the Hazardous Materials Transportation
Authorization Act of 1994 (49 U.S.C. §§ 5101 et seq.); the
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et
seq.); the Solid Waste Disposal Act (42 U.S.C. §§ 6901 et seq.);
the Toxic Substance Control Act (15 U.S.C. §§ 2601 et seq.); the Clean
Air Act (42 U.S.C. §§ 7401 et seq.); the Federal Water
Pollution Control Act (33 U.S.C. §§ 1251 et seq.); the
Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.);
and the Safe Drinking Water Act (42 U.S.C. §§ 300(f) et seq.),
and any 


 


73

















 


and all regulations promulgated thereunder, and all
analogous state, local and foreign counterparts or equivalents and any
environmental transfer of ownership notification or approval statutes.


 


“Environmental Liabilities” means, with respect
to any Person, all liabilities, obligations, responsibilities, response,
remedial and removal costs, investigation and feasibility study costs, capital
costs, operation and maintenance costs, losses, damages, punitive damages,
property damages, natural resource damages, consequential damages, treble
damages, costs and expenses (including all reasonable fees, disbursements and
expenses of counsel, experts and consultants), fines, penalties, sanctions and
interest incurred as a result of or related to any claim, suit, action,
investigation, proceeding or demand by any Person, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute
or common law, including any arising under or related to any Environmental
Laws, Environmental Permits, or in connection with any Release or threatened
Release or presence of a Hazardous Material whether on, at, in, under, from or
about or in the vicinity of any real or personal property.


 


“Environmental Permits” means all permits,
licenses, authorizations, certificates, approvals or registrations required by
any Governmental Authority under any Environmental Laws.


 


“Equipment” means all “equipment,” as such term
is defined in the Code, now owned or hereafter acquired by any Credit Party,
wherever located and, in any event, including all such Credit Party’s machinery
and equipment, including processing equipment, conveyors, machine tools, data
processing and computer equipment, including embedded software and peripheral
equipment and all engineering, processing and manufacturing equipment, office
machinery, furniture, materials handling equipment, tools, attachments,
accessories, automotive equipment, trailers, trucks, forklifts, molds, dies,
stamps, motor vehicles, rolling stock and other equipment of every kind and
nature, trade fixtures and fixtures not forming a part of real property,
together with all additions and accessions thereto, replacements therefor, all
parts therefor, all substitutes for any of the foregoing, fuel therefor, and
all manuals, drawings, instructions, warranties and rights with respect
thereto, and all products and proceeds thereof and condemnation awards and
insurance proceeds with respect thereto.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and any regulations
promulgated thereunder.


 


“ERISA Affiliate” means, with respect to any
Credit Party, any trade or business (whether or not incorporated) that,
together with such Credit Party, are treated as a single employer within the
meaning of Sections 414(b), (c), (m) or (o) of the IRC.


 


“ERISA Event” means, with respect to any Credit
Party or any ERISA Affiliate, (a) any event described in
Section 4043(c) of ERISA with respect to a Title IV Plan;
(b) the withdrawal of any Credit Party or ERISA Affiliate from a
Title IV Plan subject to Section 4063 of ERISA during a plan year in
which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (c) the complete or partial withdrawal of any Credit Party or any
ERISA Affiliate from any Multiemployer Plan; (d) the filing of a notice of
intent to terminate a Title IV Plan or the treatment of a plan amendment
as a termination under Section 4041 of ERISA; (e) the institution of
proceedings to terminate a Title IV Plan or Multiemployer Plan by the
PBGC; (f) the failure by any Credit Party or ERISA Affiliate to make when
due required contributions to a Multiemployer Plan or Title IV Plan unless
such failure is cured within 30 days; (g) any other event or condition
that might reasonably be expected to constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to administer,
any Title IV Plan or Multiemployer Plan or for the imposition of liability
under Section 4069 or 4212(c) of ERISA; (h) the termination of a
Multiemployer Plan under Section 4041A of ERISA or the reorganization or
insolvency of a Multiemployer Plan under Section 4241 or 4245 of ERISA; or
(i) the loss of a Qualified 


 


74

















 


Plan’s qualification or tax exempt status; or
(j) the termination of a Plan described in Section 4064 of ERISA.


 


“ESOP” means a Plan that is intended to satisfy
the requirements of Section 4975(e)(7) of the IRC.


 


“Event of Default” has the meaning ascribed to
it in Section 6.1.


 


“Existing Credit Facility” has the meaning
ascribed to it in the definition of “Prior Lender.”


 


“Excluded Taxes” has the meaning ascribed to it
in Section 1.11(a).


 


“Fair Labor Standards Act” means the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq.


 


“Federal Funds Rate” means, for any day, a
floating rate equal to the weighted average of the rates on overnight federal
funds transactions among members of the Federal Reserve System, as determined
by Agent in its sole discretion, which determination shall be final, binding
and conclusive (absent manifest error).


 


“Federal Reserve Board” means the Board of
Governors of the Federal Reserve System.


 


“Fees” means any and all fees payable to Agent
or any Lender pursuant to the Agreement or any of the other Loan Documents.


 


“Financial Statements” means the consolidated
and Consolidating income statements, statements of cash flows and balance
sheets of Borrower and its Subsidiaries delivered in accordance with Section 4.9.


 


“Fiscal Month” means any of the monthly
accounting periods of Borrower.


 


“Fiscal Quarter” means any of the quarterly
accounting periods of Borrower, ending on March 31, June 30, September 30 and
December 31 of each year.


 


“Fiscal Year” means any of the annual
accounting periods of Borrower ending on December 31 of each year.


 


“Fixtures” means all “fixtures” as such term is
defined in the Code, now owned or hereafter acquired by any Credit Party.


 


“Foreign Lender” has the meaning ascribed to it
in Section 1.11(c).


 


“Foreign Subsidiary” means a Subsidiary of
Borrower other than a Domestic Subsidiary.


 


“Funding Date” has the meaning ascribed to it
in Section 7.2.


 


“GAAP” means generally accepted accounting
principles in the United States of America, consistently applied.


 


“GE Capital” has the meaning ascribed to it in
the Preamble.


 


“GE Capital Fee Letter” has the meaning
ascribed to it in Section 1.3(a).


 


75

















 


“General Intangibles” means “general
intangibles,” as such term is defined in the Code, now owned or hereafter
acquired by any Credit Party, including all right, title and interest that such
Credit Party 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 Credit Party or any computer bureau or service company from
time to time acting for such Credit Party.


 


“Goods” means any “goods,” as such term is
defined in the Code, now owned or hereafter acquired by any Credit Party,
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.


 


“Governmental Authority” means any nation or
government, any state or other political subdivision thereof, and any agency,
department or other entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.


 


“Guaranteed Indebtedness” means, as to any
Person, any obligation of such Person guaranteeing, providing comfort or
otherwise supporting any Indebtedness, lease, dividend, or other obligation (“primary
obligation”) of any other Person (the “primary obligor”) in any
manner, including any obligation or arrangement of such Person to
(a) purchase or repurchase any such primary obligation, (b) advance
or supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet condition of the primary obligor, (c) purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation, (d) protect the beneficiary of such
arrangement from loss (other than product warranties given in the ordinary
course of business) or (e) indemnify the owner of such primary obligation
against loss in respect thereof.  The amount
of any Guaranteed Indebtedness at any time shall be deemed to be an amount
equal to the lesser at such time of (x) the stated or determinable amount
of the primary obligation in respect of which such Guaranteed Indebtedness is
incurred and (y) the maximum amount for which such Person may be liable
pursuant to the terms of the instrument embodying such Guaranteed Indebtedness,
or, if not stated or determinable, the maximum reasonably anticipated liability
(assuming full performance) in respect thereof.


 


“Guaranties” means, collectively, each
Subsidiary Guaranty and any other guaranty executed by any Guarantor in favor
of Agent and Lenders in respect of the Obligations.


 


“Guarantors” means Borrower and each Domestic
Subsidiary of Borrower and each other Person, if any, that executes a guaranty
or other similar agreement in favor of Agent, for itself and the ratable 


 


76

















 


benefit of Lenders, in connection with the
transactions contemplated by the Agreement and the other Loan Documents.


 


“Hazardous Material” means any substance,
material or waste that is regulated by, or forms the basis of liability now or
hereafter under, any Environmental Laws, including any material or substance
that is (a) defined as a “solid waste,” “hazardous waste,” “hazardous
material,” “hazardous substance,” “extremely hazardous waste,”  “restricted hazardous waste,” “pollutant,”
“contaminant,” “hazardous constituent,” “special waste,” “toxic substance” or
other similar term or phrase under any Environmental Laws, or
(b) petroleum or any fraction or by-product thereof, asbestos,
polychlorinated biphenyls (PCB’s), or any radioactive substance.


 


“Hedging Agreement” means any agreement with respect to the hedging of price risk associated
with the purchase of commodities used in the business of Borrower and its
Subsidiaries.


 


“Indebtedness” means, with respect to any
Person, without duplication (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property payment (other
than deferred employment compensation obligations) for which is deferred twelve
(12) months or more, but excluding obligations to trade creditors incurred in
the ordinary course of business that are unsecured and not overdue by more than
six (6) months unless being contested in good faith, (b) all reimbursement
and other obligations with respect to letters of credit, bankers’ acceptances
and surety bonds, whether or not matured, (c) all obligations evidenced by
notes, bonds, debentures or similar instruments, (d) all indebtedness
created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property), (e) all
Capital Lease Obligations and the present value (discounted at the Index Rate
as in effect on the Closing Date) of future rental payments under all synthetic
leases, (f) all obligations of such Person under commodity purchase or
option agreements or other commodity price hedging arrangements, in each case
whether contingent or matured, (g) all obligations of such Person under
any foreign exchange contract, currency swap agreement, interest rate swap, cap
or collar agreement or other similar agreement or arrangement designed to alter
the risks of that Person arising from fluctuations in currency values or
interest rates, in each case whether contingent or matured, (h) all Indebtedness
referred to above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon or
in property or other assets (including accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness, (i) ”earnouts” and similar payment
obligations, (j) the Obligations and (k) all Disqualified Stock issued by
such Person, with the amount of such Indebtedness represented by such
Disqualified Stock being equal to the greater of its maximum fixed repurchase ,
redemption or put price, but excluding accrued dividends, if any.


 


“Indemnitees” has the meaning ascribed to it in
Section 9.1.


 


“Index Rate” means, for any day, a floating
rate equal to the higher of (i) the rate publicly quoted from time to time
by The Wall Street Journal as the “base rate on corporate
loans posted by at least 75% of the nation’s 30 largest banks” (or, if The Wall Street
Journal ceases quoting a base rate of the type described, the highest per
annum rate of interest published by the Federal Reserve Board in Federal
Reserve statistical release H.15 (519) entitled “Selected Interest Rates”
as the Bank prime loan rate or its equivalent), and (ii) the Federal Funds
Rate plus 50 basis points per annum. 
Each change in any interest rate provided for in the Agreement based
upon the Index Rate shall take effect at the time of such change in the Index
Rate.


 


77

















 


“Index Rate Loan” means a Loan or portion
thereof bearing interest by reference to the Index Rate.


 


“Instruments” means all “instruments,” as such
term is defined in the Code, now owned or hereafter acquired by any Credit
Party, 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 Debt” has the meaning ascribed to
it in Section 9.21.


 


“Intercompany Notes” has the meaning ascribed
to it in Section 3.1.


 


“Intercreditor Agreement” means the
intercreditor agreement, dated as of the Closing Date, among the Credit
Parties, Agent and The Bank of New York as collateral agent and trustee under
the Senior Notes Indenture, as such intercreditor agreement may be amended,
modified or supplemented from time to time.


 


“Interest Payment Date” means (a) as to
any Index Rate Loan, the first Business Day of each month to occur while such
Loan is outstanding, and (b) as to any LIBOR Loan, the last day of the
applicable LIBOR Period; provided, that in the case of any LIBOR Period
greater than three months in duration, interest shall be payable at three month
intervals and on the last day of such LIBOR Period; and  provided  further  that,
in addition to the foregoing, each of (x) the date upon which all of the
Commitments have been terminated and the Loans have been paid in full and
(y) the Commitment Termination Date shall be deemed to be an “Interest
Payment Date” with respect to any interest that has then accrued under the
Agreement.


 


“Interest Rate Agreement” means any interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement or similar agreement or arrangement designed to protect Borrower
against fluctuations in interest rates entered into between Borrower and any
Lender.


 


“Inventory” means any “inventory,” as such term
is defined in the Code, now owned or hereafter acquired by any Credit Party,
wherever located, including inventory, merchandise, goods and other personal property
that are held by or on behalf of any Credit Party 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 Credit Party’s business or in the processing,
production, packaging, promotion, delivery or shipping of the same, including
all supplies and embedded software.


 


“Investment” means (i) any direct or
indirect purchase or other acquisition by Borrower or any of its Subsidiaries
of any Stock, or other ownership interest in, any other Person, and (ii) any
direct or indirect loan, advance or capital contribution by Borrower or any of
its Subsidiaries to any other Person, including all indebtedness and accounts
receivable from that other Person that are not current assets or did not arise
from sales to that other Person in the ordinary course of business.  The amount of any Investment shall be the
original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment.


 


78

















 


“Investment Property” means all “investment
property,” as such term is defined in the Code now owned or hereafter acquired
by any Credit Party, 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 Credit Party,  including the rights of such Credit Party 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 Credit Party; (iv) all commodity
contracts of any Credit Party; and (v) all commodity accounts held by any
Credit Party.


 


“IRC” means the Internal Revenue Code of 1986,
as amended, and all regulations promulgated thereunder.


 


“IRS” means the Internal Revenue Service.


 


“L/C Issuer” means GE Capital or a Subsidiary
thereof or a bank or other legally authorized Person selected by or acceptable
to Agent in its sole discretion, in such Person’s capacity as an issuer of
Letters of Credit hereunder.


 


“L/C Sublimit” has the meaning ascribed to it
in Section 1.1(d).


 


“Lenders” means GE Capital, the other Lenders
named on the signature pages of the Agreement, and, if any such Lender shall
assign all or any portion of the Obligations in accordance with Section 8.1,
such term shall include any assignee of such Lender.


 


“Letters of Credit” means documentary or
standby letters of credit issued for the account of Borrower by L/C Issuers,
and bankers’ acceptances issued by Borrower, for which Agent and Lenders have
incurred Letter of Credit Obligations.


 


“Letter of Credit Fee” has the meaning ascribed
to it in Section 1.3(d).


 


“Letter of Credit Obligations” means all
outstanding obligations incurred by Agent and Lenders at the request of
Borrower, whether direct or indirect, contingent or otherwise, due or not due,
in connection with the issuance of Letters of Credit by L/C Issuers or the
purchase of a participation as set forth in Section 1.1(d) with respect
to any Letter of Credit.  The amount of
such Letter of Credit Obligations shall equal the maximum amount that may be
payable by Agent and Lenders thereupon or pursuant thereto.


 


“LIBOR Breakage Fee” means an amount equal to
the amount of any losses, expenses, liabilities (including, without limitation,
any loss (including interest paid) and lost opportunity cost in connection with
the re-employment of such funds) that any Lender may sustain as a result of
(i) any default by Borrower in making any borrowing of, conversion into or
continuation of any LIBOR Loan following Borrower’s delivery to Agent of any
LIBOR Loan request in respect thereof or (ii) any payment of a LIBOR Loan
on any day that is not the last day of the LIBOR Period applicable thereto
(regardless of the source of such prepayment and whether voluntary, by
acceleration or otherwise).  For
purposes of calculating amounts payable to a Lender under Section 1.3(e),
each Lender shall be deemed to have actually funded its relevant LIBOR Loan through
the purchase of a deposit bearing interest at LIBOR in an amount equal to the
amount of that LIBOR Loan and having a maturity and repricing characteristics
comparable to the relevant LIBOR Period; provided, however, that
each Lender may fund each of its LIBOR Loans in any manner it sees fit, and the
foregoing assumption shall be utilized only for the calculation of amounts
payable under Section 1.3(e).


 


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“LIBOR Business Day” means a Business Day on which
banks in the City of London are generally open for interbank or foreign
exchange transactions.


 


“LIBOR Loans” means a Loan or any portion
thereof bearing interest by reference to the LIBOR Rate.


 


“LIBOR Period” means, with respect to any LIBOR
Loan, each period commencing on a LIBOR Business Day selected by Borrower
pursuant to the Agreement and ending one, two, three or six months thereafter,
as selected by Borrower’s irrevocable notice to Agent as set forth in Section 1.2(e);
provided, that the foregoing provision relating to LIBOR Periods is
subject to the following:


 


(a)                                  if
any LIBOR Period would otherwise end on a day that is not a LIBOR Business Day,
such LIBOR Period shall be extended to the next succeeding LIBOR Business Day
unless the result of such extension would be to carry such LIBOR Period into
another calendar month in which event such LIBOR Period shall end on the
immediately preceding LIBOR Business Day;


 


(b)                                 any
LIBOR Period that would otherwise extend beyond the date set forth in clause (a)
of the definition of “Commitment Termination Date” shall end two (2) LIBOR
Business Days prior to such date;


 


(c)                                  any
LIBOR Period that begins on the last LIBOR Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar
month at the end of such LIBOR Period) shall end on the last LIBOR Business Day
of a calendar month;


 


(d)                                 Borrower
shall select LIBOR Periods so as not to require a payment or prepayment of any
LIBOR Loan during a LIBOR Period for such Loan; and


 


(e)                                  Borrower
shall select LIBOR Periods so that there shall be no more than 8 separate LIBOR
Loans in existence at any one time.


 


“LIBOR Rate” means for each LIBOR Period, a
rate of interest determined by Agent equal to:


 


(a)                                  the
offered rate for deposits in United States Dollars for the applicable LIBOR
Period that appears on Telerate Page 3750 as of 11:00 a.m. (London
time), on the second full LIBOR Business Day next preceding the first day of
such LIBOR Period (unless such date is not a Business Day, in which event the
next succeeding Business Day will be used); divided by


 


(b)                                 a
number equal to 1.0 minus the aggregate (but without duplication) of the
rates (expressed as a decimal fraction) of reserve requirements in effect on
the day that is two (2) LIBOR Business Days prior to the beginning of such
LIBOR Period (including basic, supplemental, marginal and emergency reserves
under any regulations of the Federal Reserve Board or other Governmental
Authority having jurisdiction with respect thereto, as now and from time to
time in effect) for Eurocurrency funding (currently referred to as
“Eurocurrency Liabilities” in Regulation D of the Federal Reserve Board that
are required to be maintained by a member bank of the Federal Reserve System.


 


If such interest rates shall cease to be available
from Telerate News Service, the LIBOR Rate shall be determined from such
financial reporting service or other information as shall be available to
Agent.


 


80

















 


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


 


“Lien” means any mortgage or deed of trust,
pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim,
security interest, easement or encumbrance, or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including any lease or title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of, or agreement to give, any financing statement perfecting a security
interest under the Code or comparable law of any jurisdiction).


 


“Litigation” has the meaning ascribed to it in Section 4.9(i).


 


“Loan Account” has the meaning ascribed to it
in Section 1.10.


 


“Loan Documents” means the Agreement, the
Notes, the Collateral Documents, the Intercreditor Agreement, the GE Capital
Fee Letter and all other agreements, instruments, documents and certificates
identified in the Closing Checklist executed and delivered to, or in favor of,
Agent or any Lenders and including all other pledges, powers of attorney,
consents, assignments, contracts, notices, and all other written matter whether
heretofore, now or hereafter executed by or on behalf of any Credit Party, or
any employee of any Credit Party, and delivered to Agent or any Lender in
connection with the Agreement or the transactions contemplated thereby.  Any reference in the Agreement or any other
Loan Document to a Loan Document shall include all appendices, exhibits or
schedules thereto, and all amendments, restatements, supplements or other
modifications thereto, and shall refer to the Agreement or such Loan Document
as the same may be in effect at any and all times such reference becomes
operative.


 


“Loans” means the Revolving Loan and the Swing
Line Loan.


 


“Master Documentary Agreement” has the meaning
the ascribed to it in Annex C.


 


“Master Standby Agreement” means has the
meaning the ascribed to it in Annex C.


 


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


 


“Maximum Amount” means, as of any date of
determination, an amount equal to the Revolving Loan Commitment of all Lenders
as of that date.


 


“Maximum Lawful Rate” has the meaning ascribed
to it in Section 1.2(f).


 


“Moody’s” means Moody’s Investor’s Service,
Inc.


 


“Mortgages” means each of the mortgages, deeds
of trust, leasehold mortgages, leasehold deeds of trust, collateral assignments
of leases or other real estate security documents delivered by any Credit Party
to Agent on behalf of itself and Lenders with respect to the Real Estate.


 


“Multiemployer Plan” means a “multiemployer
plan” as defined in Section 4001(a)(3) of ERISA, and to which any Credit
Party or ERISA Affiliate is making, is obligated to make or has made or been
obligated to make, contributions on behalf of participants who are or were
employed by any of them.


 


“Net Orderly Liquidation Value” means, at any
time, as to any Eligible Inventory, the net orderly liquidation value
determined most recently at or prior to such time in writing by an independent
appraiser 


 


81

















 


selected by Agent with the consent of Borrower, such
consent not to be unreasonably withheld, each such determination to be made
using the same basis and or approach to valuation consistent with the approach
used in the initial determination and calculating the orderly liquidation value
net of liquidation costs.


 


“Net Proceeds” means (i) cash proceeds
received by Borrower or any of its Subsidiaries from any Asset Disposition
(including insurance proceeds, awards of condemnation, and payments under notes
or other debt securities received in connection with any Asset Disposition),
net of (a) the costs of such Asset Disposition (including taxes
attributable to such sale, lease or transfer) and (b) amounts applied to
repayment of Indebtedness (other than the Obligations) secured by a Lien on the
asset or property disposed, and (ii) cash proceeds attributable to any
working capital, earnings, balance sheet or similar adjustment under the
Acquisition Agreement.


 


“Non-Consenting Lender” has the meaning
ascribed to it in Section 9.19(c).


 


“Non-Funding Lender” has the meaning ascribed
to it in Section 8.5(a).


 


“Notes” means, collectively, the Revolving
Notes and the Swing Line Note.


 


“Notice of Conversion/Continuation” has the
meaning ascribed to it in Section 1.2(e).


 


“Notice of Revolving Credit Advance” has the
meaning ascribed to it in Section 1.1(a).


 


“Obligations” means all loans, advances, debts,
liabilities and obligations, for the performance of covenants, tasks or duties
or for payment of monetary amounts (whether or not such performance is then
required or contingent, or such amounts are liquidated or determinable),
including obligations pursuant to Interest Rate Agreements, Letter of Credit
Obligations, owing by any Credit Party to Agent or any Lender, and all
covenants and duties regarding such amounts, of any kind or nature, present or
future, whether or not evidenced by any note, agreement or other instrument,
arising under the Agreement or any of the other Loan Documents.  This term includes all principal, interest
(including all interest that accrues after the commencement of any case or
proceeding by or against any Credit Party in bankruptcy, whether or not allowed
in such case or proceeding), Fees, Charges, expenses, attorneys’ fees and any
other sum chargeable to any Credit Party under the Agreement or any of the
other Loan Documents or any Interest Rate Agreement.


 


“Other Lender” has the meaning ascribed to it
in Section 8.5(d).


 


“Overadvance” has the meaning ascribed to it in
Section 1.1(a).


 


“Patent License” means rights under any written
agreement now owned or hereafter acquired by any Credit Party granting any
right with respect to any invention on which a Patent is in existence.


 


“Patent Security Agreements” means the Patent
Security Agreements made in favor of Agent, on behalf of itself and Lenders, by
each applicable Credit Party.


 


“Patents” means all of the following in which
any Credit Party 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.


 


82

















 


“PBGC” means the Pension Benefit Guaranty
Corporation.


 


“Pension Plan” means a Plan described in
Section 3(2) of ERISA.


 


“Permitted Acquisition” has the meaning
ascribed to it in Section 3.6(b).


 


“Permitted Encumbrances” means the following types of Liens:


 


(1)                                  Liens
in favor of the Agent securing the Obligations and, to the extent subject to
the Intercreditor Agreement, Liens on Collateral securing the Senior Notes and
obligations in respect thereof;


 


(2)                                  Liens
on assets of Borrower or any of its Subsidiaries securing up to $5.0 million in
aggregate principal amount of Indebtedness at any one time outstanding;


 


(3)                                  Liens
for taxes, assessments or governmental charges or claims either:


 


(a)                                  not
delinquent; or


 


(b)                                 contested
in good faith by appropriate proceedings and as to which Borrower or the
applicable Subsidiary has set aside on its books such reserves as may be
required pursuant to GAAP and which do not have priority over the Lien of the
Agent securing the Obligations;


 


(4)                                  subject
to Section 2.6, statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen and repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP has been made in
respect thereof;


 


(5)                                  Liens
incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social
security, including any Lien securing letters of credit issued in the ordinary
course of business consistent with past practice in connection therewith, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the payment
of borrowed money);


 


(6)                                  judgment
Liens not giving rise to an Event of Default;


 


(7)                                  easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in
respect of real property not interfering in any material respect with the
ordinary conduct of the business of Borrower or any of its Subsidiaries;


 


(8)                                  any
interest or title of a lessor under any Capital Lease permitted under Section
3.1(h) and purchase money Liens to finance property or assets or
improvements thereof of Borrower or any Subsidiary of Borrower; provided,
that


 


(a)                                  the
related purchase money Indebtedness or Capital Lease shall not exceed the cost
of such property, assets or improvements and shall not be secured by any 


 


83

















 


property or assets of Borrower or any Subsidiary of
Borrower other than the property and assets so acquired, and


 


(b)                                 the
Lien securing such Indebtedness shall be created within 90 days of such
acquisition;


 


(9)                                  Liens
encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual or warranty requirements of Borrower or any of its
Subsidiaries, including rights of offset and set-off;


 


(10)                            Liens
securing Interest Rate Agreements as to which the counterparty thereto was, at
the time or origination thereof, a Lender entered into in the ordinary course
of business and not for the purposes of speculation which Interest Rate
Agreements relate to Indebtedness that is otherwise permitted under this
Agreement;


 


(11)                            leases
or subleases granted to others that do not materially interfere with the
ordinary course of business of Borrower and its Subsidiaries;


 


(12)                            Liens
arising from filing Uniform Commercial Code financing statements regarding
leases that are not Capital Leases;


 


(13)                            Liens
in favor of customs and revenue authorities arising as a matter of law to
secure payment of custom duties in connection with the importation of goods;


 


(14)                            Liens
on property of Dayton Superior Canada Ltd. and its Subsidiaries securing
Indebtedness described in Section 3.1(1).


 


(15)                            Liens
existing on June 9, 2003 and listed on Schedule 3.2, together with any
Liens securing Indebtedness incurred in reliance on Section 3.1(j) in
order to refinance the Indebtedness secured by Liens existing on June 9, 2003; provided
that the Liens securing the Refinancing Indebtedness shall not extend to any
categories of property other than that pledged under the Liens securing the
Indebtedness being refinanced; and


 


(16)                            Liens
in favor of Continental Illinois National Bank and Trust Company of Chicago,
described on Schedule 2.8 and, until the date sixty (60) days following
the Closing Date, Liens in favor of Union Bank of California, N.A. listed on Schedule 2.8.


 


“Permitted Holders” means Odyssey Investment
Partners Fund, L.P, its Affiliates and any general or limited partners on the
date of this Indenture of Odyssey Investment Partners Fund, L.P. and
co-investors as of the Closing Date.


 


“Person” means any individual, sole
proprietorship, partnership, joint venture, trust, unincorporated organization,
association, corporation, limited liability company, institution, public
benefit corporation, other entity or government (whether federal, state,
county, city, municipal, local, foreign, or otherwise, including any
instrumentality, division, agency, body or department thereof).


 


“Plan” means, at any time, an “employee benefit
plan,” as defined in Section 3(3) of ERISA, that any Credit Party or ERISA
Affiliate maintains, contributes to or has an obligation to contribute to on
behalf of participants who are or were employed by any Credit Party.


 


84

















 


“Pledge Agreements” means the Pledge Agreement,
dated as of the Closing Date by one or more Credit Parties in favor of Agent,
and each other pledge agreement entered into on or after the Closing Date by
any Credit Party.


 


“Prior Lender” means, collectively, the lenders
and other obligees party to that certain Credit Agreement, dated as of June 16,
2000, as amended from time to time, among Borrower, the lenders party thereto
in their capacities as lenders and Deutsche Bank Trust Company Americas as
administrative agent (the “Existing Credit Facility”).


 


“Prior Lender Obligations” means all amounts
payable under the Existing Credit Facility and the documents relating thereto
as of the date of the Closing Refinancing.


 


“Productive Assets” means
assets (including Stock) that are used or usable by Borrower and its
Subsidiaries in businesses permitted by Section 3.9.


 


“Pro Rata Share” means with respect to all
matters relating to any Lender (a) with respect to the Revolving Loan, the
percentage obtained by dividing (i) the Revolving Loan Commitment of that
Lender by (ii) the aggregate Revolving Loan Commitments of all Lenders,
and (b) with respect to all Loans on and after the Commitment Termination
Date, the percentage obtained by dividing (i) the aggregate outstanding
principal balance of the Loans held by that Lender, by (ii) the
outstanding principal balance of the Loans held by all Lenders, as any such
percentages may be adjusted by assignments pursuant to Section 8.1.


 


“Proposed Change” has the meaning ascribed to
it in Section 9.19(c).


 


“Qualified Capital Stock” means Stock that is
not Disqualified Stock.


 


“Qualified Assignee” means (a) any Lender,
any Affiliate of any Lender and, with respect to any Lender that is an
investment fund that invests in commercial loans, any other investment fund
that invests in commercial loans and that is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment
advisor, and (b) any commercial bank, savings and loan association or
savings bank or any other entity which is an “accredited investor” (as defined
in Regulation D under the Securities Act of 1933) which extends credit or buys
loans as one of its businesses, including insurance companies, mutual funds, lease
financing companies and commercial finance companies, in each case, which has a
rating of BBB or higher from S&P and a rating of Baa2 or higher from
Moody’s at the date that it becomes a Lender and which, through its applicable
lending office, is capable of lending to Borrower without the imposition of any
withholding or similar taxes; provided that no Person determined by Agent to be
acting in the capacity of a vulture fund or distressed debt purchaser shall be
a Qualified Assignee and no Person or Affiliate of such Person (other than a
Person that is already a Lender) holding Subordinated Debt or Stock issued by
any Credit Party shall be a Qualified Assignee.


 


“Qualified Plan” means a Pension Plan that is
intended to be tax-qualified under Section 401(a) of the IRC.


 


“Real Estate” has the meaning ascribed to it in
Section 5.12.


 


“Refinance” means,
in respect of any security or Indebtedness, to refinance, extend, renew,
refund, repay, prepay, redeem, defease or retire, or to issue a security or
Indebtedness in exchange or replacement for, such security or Indebtedness in
whole or in part. “Refinanced” and “Refinancing” shall have correlative
meanings.


 


85

















 


“Refinancing
Indebtedness” means any Refinancing, modification,
replacement, restatement, refunding, deferral, extension, substitution,
supplement, reissuance or resale of existing or future Indebtedness (other than
intercompany Indebtedness), including any additional Indebtedness incurred to
pay interest or premiums required by the instruments governing such existing or
future Indebtedness as in effect at the time of issuance thereof (“Required Premiums”) and fees in connection therewith; provided that
any such event shall:


 


(1)                                  not
directly or indirectly result in an increase in the aggregate principal amount
of Permitted Indebtedness, except to the extent such increase is a result of a
simultaneous incurrence of additional Indebtedness:


 


(a)                                  to
pay Required Premiums and related fees; or


 


(b)                                 otherwise
permitted to be incurred under this Agreement;


 


(2)                                  not create Indebtedness with a Weighted
Average Life to Maturity at the time such Indebtedness is incurred that is less
than the Weighted Average Life to Maturity at such time of the Indebtedness
being refinanced, modified, replaced, renewed, restated, refunded, deferred,
extended, substituted, supplemented, reissued or resold;


 


(3)                                  except
for changes within the limits of clause (2) immediately above, not contain
terms that taken as a whole, are more adverse to Borrower of any Subsidiary or
to Lenders than those contained in the Indebtedness being Refinanced as
reasonably determined by Borrower as reflected in a certificate delivered to
Agent reasonably detailing such determination ; and


 


                                                (4)                                  be
subordinated to the Obligations on substantially the same terms as the
Indebtedness Refinanced or as otherwise reasonably acceptable to Agent.


 


“Refunded Swing Line Loan” has the meaning
ascribed to it in Section 1.1(c)(iii).


 


“Refunding Capital Stock:” has the meaning
ascribed to it in Section 3.5(c).


 


“Related Transactions” means the initial
borrowing under the Revolving Loan on the Closing Date, the Closing
Refinancing, the payment of all Fees, costs and expenses associated with all of
the foregoing and the execution and delivery of all of the Related Transactions
Documents.


 


“Related Transactions Documents” means the Loan
Documents, and all other agreements or instruments executed in connection with
the Related Transactions.


 


“Release” means any release, threatened release,
spill, emission, leaking, pumping, pouring, emitting, emptying, escape,
injection, deposit, disposal, discharge, dispersal, dumping, leaching or
migration of Hazardous Material in the indoor or outdoor environment, including
the movement of Hazardous Material through or in the air, soil, surface water,
ground water or property.


 


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


 


“Replacement Lender” has the meaning ascribed
to it in Section 9.19(a).


 


86

















 


“Requisite Lenders” means Lenders having
(a) more than 66 2/3% of the Commitments of all Lenders, or
(b) if the Commitments have been terminated, more than 66 2/3% of the
aggregate outstanding amount of the Loans.


 


“Reserves” means, with respect to the Borrowing
Base (a) reserves established by Agent from time to time against Eligible
Accounts, Eligible Inventory pursuant to Exhibit 4.9(d) and
(b) such other reserves against Eligible Accounts, Eligible Inventory or
Borrowing Availability that Agent may, in its reasonable credit judgment,
establish from time to time.  Without
limiting the generality of the foregoing, Reserves established to ensure the
payment of accrued Interest Expenses or Indebtedness shall be deemed to be a
reasonable exercise of Agent’s credit judgment.


 


“Restricted Payment” means, with respect to any
Credit Party (a) the declaration or payment of any dividend or the
incurrence of any liability to make any other payment or distribution of cash
or other property or assets in respect of Stock; (b) any payment on
account of the purchase, redemption, defeasance, sinking fund or other
retirement of such Credit Party’s Stock or any other payment or distribution
made in respect thereof, either directly or indirectly; (c) any payment or
prepayment of principal of, premium, if any, or interest, fees or other charges
on or with respect to, and any redemption, purchase, retirement, defeasance,
sinking fund or similar payment and any claim for rescission with respect to,
any Subordinated Debt; (d) any payment made to redeem, purchase,
repurchase or retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire Stock of such Credit Party now or hereafter
outstanding; (e) any payment of a claim for the rescission of the purchase
or sale of, or for material damages arising from the purchase or sale of, any
shares of such Credit Party’s Stock or of a claim for reimbursement,
indemnification or contribution arising out of or related to any such claim for
damages or rescission; (f) any payment, loan, contribution, or other
transfer of funds or other property to Odyssey Investment Partners Fund LP or
to another Credit Party in its capacity as Stockholder, other than payment of
compensation in the ordinary course of business to Stockholders who are
employees of such Credit Party; and (g) any payment of management fees (or
other fees of a similar nature) or out-of-pocket expenses in connection
therewith by such Credit Party to any Stockholder of such Credit Party or its
Affiliates.


 


“Retired Capital Stock” has the meaning
ascribed to it in Section 3.5(c).


 


“Retiree Welfare Plan” means, at any time, a
Welfare Plan that provides for continuing coverage or benefits for any
participant or any beneficiary of a participant after such participant’s
termination of employment, other than continuation coverage provided pursuant
to Section 4980B of the IRC and at the sole expense of the participant or
the beneficiary of the participant.


 


“Revolving Credit Advance” has the meaning
ascribed to it in Section 1.1(a).


 


“Revolving Loan(s)” means, at any time, the sum
of (i) the aggregate amount of Revolving Credit Advances outstanding to
Borrower (including Swing Line Advances) plus (ii) the aggregate
Letter of Credit Obligations incurred on behalf of Borrower.  Unless the context otherwise requires,
references to the outstanding principal balance of the Revolving Loan shall
include the outstanding balance of Letter of Credit Obligations.


 


“Revolving Loan Commitment” means (a) as
to any Lender, the commitment of such Lender to make its Pro Rata Share of
Revolving Credit Advances or incur its Pro Rata Share of Letter of Credit
Obligations (including, in the case of the Swing Line Lender, its commitment to
make Swing Line Advances as a portion of its Revolving Loan Commitment) as set
forth on Annex B or in the most recent Assignment Agreement, if
any, executed by such Lender and (b) as to all Lenders, the aggregate
commitment of all Lenders to make the Revolving Credit Advances (including, in
the case of the Swing 


 


87

















 


Line Lender, Swing Line Advances) or incur Letter of
Credit Obligations, which aggregate commitment shall be eighty million dollars
($80,000,000) on the Closing Date, as such amount may be adjusted, if at all,
from time to time in accordance with the Agreement.


 


“Revolving Notes” has the meaning ascribed to
it in Section 1.1(a).


 


“Rouse” means Rouse Asset Services.


 


“S&P” means Standard & Poor’s Ratings
Services, a division of the McGraw-Hill Companies, Inc.


 


“Safway Note” means the senior unsecured
promissory note, dated July 29, 2003, by Borrower and Symons in favor of Safway
Formwork Systems, L.L.C. in the original principal amount of $12,000,000.


 


“Sales Office” means a location used by
Borrower or a Subsidiary primarily to sell or lease (but not primarily to
manufacture or warehouse) inventory.


 


“Security Agreement” means the Security Agreement
of even date herewith entered into by and among Agent, on behalf of itself and
Lenders, and each Credit Party that is a signatory thereto.


 


“Senior Notes” means the “Notes” (as defined in
the Senior Notes Indenture) and “Exchange Notes” issued in exchange therefor in
accordance with the terms of the Senior Notes Indenture, not exceeding an
aggregate principal amount of $165,000,000.


 


“Senior Notes Indenture” means the Indenture,
dated as of June 9, 2003, by and among Borrower, the guarantors named therein,
and The Bank of New York, as Trustee, relating to Borrower’s 10 3/4%
Senior Second Secured Notes due 2008, as amended, modified or supplemented from
time to time in accordance with its terms and the terms hereof.


 


“Senior Subordinated Notes” means the “Notes”
(as defined in the Senior Subordinated Notes Indenture) in an aggregate
principal amount not exceeding $170,000,000.


 


“Senior Subordinated Notes Indenture” means the
Indenture, dated as of June 16, 2000 among Borrower, the guarantors party thereto
and United States Trust Company, as Trustee, relating to Borrower’s 13% Senior
Subordinated Notes due 2009, as supplemented through the Closing Date and as
subsequently amended, modified or supplemented in accordance with its term and
the terms of this Agreement.


 


“Settlement Date” has the meaning ascribed to
it in Section 8.5(a)(ii).


 


“Software” means all “software” as such term is
defined in the Code, now owned or hereafter acquired by any Credit Party, other
than software embedded in any category of Goods, including all computer
programs and all supporting information provided in connection with a
transaction related to any program.


 


“Solvent” means, with respect to any Person on
a particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including
subordinated and contingent liabilities, of such Person; (b) the present
fair saleable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its debts
and liabilities, including subordinated and contingent liabilities as they
become absolute and matured; (c) such 


 


88

















 


Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person’s ability to pay as such
debts and liabilities mature; and (d) such Person is not engaged in a
business or transaction, and is not about to engage in a business or
transaction, for which such Person’s property would constitute an unreasonably
small capital.  The amount of contingent
liabilities (such as Litigation, guaranties and pension plan liabilities) at
any time shall be computed as the amount that, in light of all the facts and
circumstances existing at the time, represents the amount that can be
reasonably be expected to become an actual or matured liability.


 


“Statement” has the meaning ascribed to it in Section 4.9(b).


 


“Stock” means all shares, options, warrants,
general or limited partnership interests, membership interests or other
equivalents (regardless of how designated) of or in a corporation, partnership,
limited liability company or equivalent entity whether voting or nonvoting,
including common stock, preferred stock or any other “equity security” (as such
term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated
by the Securities and Exchange Commission under the Securities Exchange Act of
1934).


 


“Stockholder” means, with respect to any
Person, each holder of Stock of such Person.


 


“Subordinated Debt” means the Indebtedness of
Borrower evidenced by the Senior Subordinated Notes and  any other Indebtedness of
any Credit Party that is contractually subordinated in right of payment to the
Obligations on substantially the terms of the Senior Subordinated Notes
Indenture or other terms that, taken as a whole, are no less favorable to the
interests of the Lenders (as reasonably determined by Agent).


 


“Subsidiary” means, with respect to any Person,
(a) any corporation of which an aggregate of more than 50% of the
outstanding Stock having ordinary voting power to elect a majority of the board
of directors of such corporation (irrespective of whether, at the time, Stock
of any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time,
directly or indirectly, owned legally or beneficially by such Person or one or
more Subsidiaries of such Person, or with respect to which any such Person has
the right to vote or designate the vote more than 50% or more of such Stock
whether by proxy, agreement, operation of law or otherwise, and (b) any
partnership or limited liability company in which such Person and/or one or
more Subsidiaries of such Person shall have an interest (whether in the form of
voting or participation in profits or capital contribution) of more than 50% or
of which any such Person is a general partner or may exercise the powers of a
general partner.  Unless the context otherwise
requires, each reference to a Subsidiary shall be a reference to a Subsidiary
of the Borrower.


 


“Subsidiary Guaranty” means the Subsidiary
Guaranty of even date herewith executed by one or more Subsidiaries of Borrower
in favor of Agent, on behalf of itself and Lenders.


 


“Supermajority Revolving Lenders” means Lenders
having (a) 80% or more of the Revolving Loan Commitments of all Lenders,
or (b) if the Revolving Loan Commitments have been terminated, 80% or more
of the aggregate outstanding amount of the Revolving Loan (with the Swing Line
Loan being attributed to the Lender making such Loan).


 


“Swing Line Advance” has the meaning ascribed
to it in Section 1.1(c).


 


“Swing Line Availability” has the meaning
ascribed to it in Section 1.1(c).


 


89

















 


“Swing Line Commitment” means the commitment of
the Swing Line Lender to make Swing Line Advances as set forth on Annex B
to the Agreement, which commitment constitutes a subfacility of the Revolving
Loan Commitment of the Swing Line Lender.


 


“Swing Line Lender” means GE Capital.


 


“Swing Line Loan” means at any time, the
aggregate amount of Swing Line Advances outstanding to Borrower.


 


“Swing Line Note” has the meaning ascribed to
it in Section 1.1(c).


 


“Symons” means Symons Corporation.


 


“Target” has the meaning ascribed to it in Section
3.6(b).


 


“Termination Date” means the date on which
(a) the Loans have been repaid in full, (b) all other Obligations
under the Agreement and the other Loan Documents (other than contingent
indemnification Obligations to the extent no claim has been asserted) have been
completely discharged, (c) all Letter of Credit Obligations have been cash
collateralized in the amount set forth in Section 1.5(g), cancelled
or to the extent permitted by this Agreement, backed by back-to-back standby
letters of credit acceptable to Agent and (d) Borrower shall not have any
further right to borrow any monies under the Agreement.


 


“Title IV Plan” means a Pension Plan
(other than a Multiemployer Plan), that is covered by Title IV of ERISA,
and that any Credit Party or ERISA Affiliate maintains, contributes to or has
an obligation to contribute to on behalf of participants who are or were
employed by any of them.


 


“Trademark Security Agreements” means the
Trademark Security Agreements made in favor of Agent, on behalf of itself and
Lenders, by each applicable Credit Party.


 


“Trademark License” means rights under any
written agreement now owned or hereafter acquired by any Credit Party granting
any right to use any Trademark.


 


“Trademarks” means all of the following now
owned or hereafter adopted or acquired by any Credit Party:  (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.


 


“Unfunded Pension Liability” means, at any
time, the aggregate amount, if any, of the sum of (a) the amount by which
the present value of all accrued benefits under each Title IV Plan exceeds
the fair market value of all assets of such Title IV Plan allocable to
such benefits in accordance with Title IV of ERISA, all determined as of
the most recent valuation date for each such Title IV Plan using the
actuarial assumptions for funding purposes in effect under such Title IV
Plan, and (b) for a period of 5 years following a transaction which might
reasonably be expected to be covered by Section 4069 of ERISA, the liabilities
(whether or not accrued) that could be avoided by any Credit Party or any ERISA
Affiliate as a result of such transaction.


 


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“Weighted Average Life to Maturity” means, when
applied to any Indebtedness at any date, the number of years obtained by
dividing:


 


(1)                                  the
then outstanding aggregate principal amount of such Indebtedness into


 


(2)                                  the sum of the total of the products obtained by
multiplying


 


(a)                                  the
amount of each then remaining installment, sinking fund, serial maturity or
other required payment of principal, including payment at final maturity, in
respect thereof by


 


(b)                                 the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.


 


“Welfare Plan” means a Plan described in
Section 3(l) of ERISA.


 


Rules of construction with respect to accounting terms
used in the Agreement or the other Loan Documents shall be as set forth or
referred to in this Annex A. 
All other undefined terms contained in any of the Loan Documents shall,
unless the context indicates otherwise, have the meanings provided for by the
Code to the extent the same are used or defined therein; in the event that any
term is defined differently in different Articles or Divisions of the Code, the
definition contained in Article or Division 9 shall control.  Unless otherwise specified, references in
the Agreement or any of the Appendices to a Section, subsection or clause refer
to such Section, subsection or clause as contained in the Agreement.  The words “herein,” “hereof” and “hereunder”
and other words of similar import refer to the Agreement as a whole, including
all Annexes, Exhibits and Schedules, as the same may from time to time be
amended, restated, modified or supplemented, and not to any particular section,
subsection or clause contained in the Agreement or any such Annex, Exhibit or
Schedule.


 


Wherever from the context it appears appropriate, each
term stated in either the singular or plural shall include the singular and the
plural, and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, feminine and neuter genders.  The words “including”, “includes” and “include” shall be deemed to
be followed by the words “without limitation”; the word “or” is not exclusive;
references to Persons include their respective successors and assigns (to the
extent and only to the extent permitted by the Loan Documents) or, in the case
of governmental Persons, Persons succeeding to the relevant functions of such
Persons; and all references to statutes and related regulations shall include
any amendments of the same and any successor statutes and regulations.  Whenever any provision in any Loan Document
refers to the knowledge (or an analogous phrase) of any Credit Party, such
words are intended to signify that such Credit Party has actual knowledge or
awareness of a particular fact or circumstance or that such Credit Party, if it
had exercised reasonable diligence, would have known or been aware of such fact
or circumstance.


 


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ANNEX B (from Annex A - Commitments definition)


to


CREDIT
AGREEMENT


 


PRO RATA SHARES AND COMMITMENT
AMOUNTS


 


	
   

  	
   

  	
  Lender(s)

  
	
  Revolving Loan Commitment

  $80,000,000

  (including a Swing Line Commitment

  of $8,000,000)

  	
   

  	
  General Electric Capital Corporation

  



 


92

















 


ANNEX C




to


CREDIT
AGREEMENT







CLOSING
CHECKLIST


 


 


A.                                   DOCUMENTS


 


1.                                       Credit
Agreement:  This Agreement or
counterparts hereof shall have been duly executed by, and delivered to, each
Credit Party, Agent and Lenders.


 


2.                                       Revolving
Notes:  Duly executed
originals of the Revolving Notes for each requesting Lender, dated the Closing
Date, shall have been delivered to Agent.


 


3.                                       Master
Agreement for Documentary Letters of Credit:  Duly executed original of the Master
Agreement for Documentary Letters of Credit, dated as of the Closing Date,
shall have been delivered to the Agent 
(as amended, modified or supplemented from time to time, the “Master
Documentary Agreement”).


 


4.                                       Master
Agreement for Standby Letters of Credit: Duly executed original of
the Master Agreement for Standby Letters of Credit, dated as of the Closing
Date, shall have been delivered to the Agent (as amended, modified or
supplemented from time to time, the “Master Standby Agreement”).


 


5.                                       Guaranties:  Duly executed originals of the Guaranty from
each Domestic Subsidiary of Borrower dated the Closing Date, and all documents,
instruments and agreements executed pursuant thereto shall have been delivered
to Agent.


 


6.                                       Security
Agreement:  Duly executed
originals of the Security Agreement executed by Borrower and each Domestic
Subsidiary of Borrower, dated the Closing Date, and all instruments, documents
and agreements executed pursuant thereto shall have been delivered to Agent.


 


7.                                       Pledge
Agreements:  Duly executed
originals of the Pledge Agreements executed by Borrower and each Domestic
Subsidiary of Borrower, dated the Closing Date, and all instruments, documents
and agreements executed pursuant thereto shall have been delivered to Agent.


 


8.                                       Insurance:  Satisfactory evidence shall have been
delivered to Agent that the insurance policies required by Section 2.2
are in full force and effect, together with appropriate evidence showing loss
payable and/or additional insured clauses or endorsements, as requested by
Agent, in favor of Agent, on behalf of Lenders.  The requirement for delivery of endorsements is waived as a
condition to closing, and delivery after the Closing Date is required as
provided in Section 2.8(a).


 


9.                                       Omitted.


 


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10.                                 Security
Interests and Code Filings.


 


(a)                                  Evidence
satisfactory to Agent shall have been delivered to Agent that Agent (for the
benefit of itself and Lenders) has a valid and perfected (to the extent
possible under applicable law following filing of the relevant documents,
including UCC financing statements, filings with the US Copyright Office and US
Patent and Trademark Office, and obtaining control as to deposit accounts and
securities accounts) first priority security interest in the Collateral
(including, without limitation, books and records, intellectual property and
general intangibles relating to inventory and accounts) including (i) such
documents duly executed by each Credit Party (including financing statements
under the Code and other applicable documents under the laws of any
jurisdiction with respect to the perfection of Liens) as Agent may request in
order to perfect its security interests in the Collateral and (ii) copies of
Code search reports listing all effective financing statements that name any
Credit Party as debtor, together with copies of such financing statements, none
of which shall cover the Collateral, except for those relating to Permitted
Encumbrances.


 


(b)                                 UCC-3
or other appropriate termination statements (or, to the extent approved by
Agent, UCC statements of amendment) and payoff letters, each in form and
substance reasonably satisfactory to Agent, releasing all liens on the
Collateral of each Credit Party shall have been delivered to Agent, as well as
termination of all control agreements, blocked account agreements, bank agency
agreements or other similar agreements or arrangements in favor of any creditors
other than Lenders and the Senior Notes Trustee.  Release of the Liens described or Schedule 2.8 is
waived as a condition to closing, and the obligation to obtain release of such
Liens is as described in Section 2.8(a).


 


11.                                 Intellectual
Property Security Agreements: 
Duly executed originals of Copyright Security Agreements, Trademark
Security Agreements and Patent Security Agreements, each dated the Closing Date
and signed by each Credit Party that owns Copyrights, Trademarks and/or Patents
as applicable, all in form and substance reasonably satisfactory to Agent,
together will instruments, documents and agreements executed pursuant thereto
shall have been delivered to Agent.


 


12.                                 Lockbox
Account Agreements and Control Agreements:  Duly executed originals of tri-party lockbox account agreements,
blocked account agreements and control agreements in form and substance
reasonably satisfactory to Agent shall have been delivered to Agent with
respect to all bank accounts of the Credit Parties (other than payroll accounts)
and creating lockboxes and lockbox accounts as required by Section 2.10.


 


13.                                 Certificate
of Formation and Good Standing: 
For each Credit Party, (a) its articles or certificate of incorporation
or certificate of formation, as applicable, and all amendments thereto and (b)
good standing certificates (including verification of tax status) in its state
of incorporation or formation, as applicable, each dated a recent date prior to
the Closing Date and certified by the applicable Secretary of State or other
authorized Governmental Authority shall have been delivered to Agent.


 


14.                                 By-laws and
Resolutions:  For each Credit
Party, (a) its by-laws or operating agreement, as applicable, together with all
amendments thereto and (b) resolutions of such Person’s Board of Directors or
Board of Members, as applicable, approving and authorizing the execution,
delivery and performance of the Loan Documents to which it is a party and the
transactions to be consummated in connection therewith, each certified as of the
Closing Date by such Person’s secretary or an assistant secretary as being in
full force and effect without any modification or amendment shall have been
delivered to Agent.


 


94

















 


15.                                 Incumbency
Certificates:  For each
Credit Party, signature and incumbency certificates of the officers of such
Person executing any of the Loan Documents, certified as of the Closing Date by
such Person’s secretary or an assistant secretary as being true, accurate,
correct and complete shall have been delivered to Agent.


 


16.                                 Opinions of
Counsel:  Duly executed
originals of an opinion of Latham & Watkins LLP, special New York, Delaware
and California counsel for the Credit Parties, and duly executed originals
opinions of Balch & Bingham LLP, special Alabama counsel for the Credit
Parties, Thompson Hine LLP, special Ohio counsel for the Credit Parties and
Armstrong Teasdale LLP, special Kansas counsel for the Credit Parties,,.


 


17.                                 Accountants’
Letter:  A letter from the
Credit Parties to the independent auditors authorizing the independent
certified public accountants of the Credit Parties to communicate with Agent
and Lenders in accordance with Section 2.3 and acknowledging
Lenders’ reliance on the auditor’s certification of past and future Financial
Statements shall have been delivered to Agent.


 


18.                                 Borrowing
Base Certificate.  A
Borrowing Base Certificate for Borrower and its Domestic Subsidiaries.


 


19.                                 GE Capital
Fee Letter:  Duly executed
originals of the GE Capital Fee Letter in form and substance satisfactory to GE
Capital shall have been delivered to Agent.


 


20.                                 Officer’s
Certificate:  Duly executed
originals of a certificate of an authorized officer of each Credit Party, dated
the Closing Date, certifying on behalf of such Credit Party that, since
December 31, 2002 (a) no event or condition has occurred or is existing which
could reasonably be expected to have a Material Adverse Effect; (b) there has
been no material adverse change in the assets, liabilities, properties, prospects
or condition, financial or otherwise of any Credit party; (c) no Litigation has
been commenced against such Credit Party which, if successful, would have a
Material Adverse Effect or could challenge any of the transactions contemplated
by the Agreement and the other Loan Documents; (d) there have been no
Restricted Payments made by any Credit Party; (e) there has been no material
increase in liabilities, liquidated or contingent, and no material decrease in
assets of Borrower or any of their Subsidiaries and (f) Borrowing Availability
after giving effect to the initial fundings and issuances of Letters of Credit
under the Credit Agreement and the application of proceeds thereof, exceeds
$10,000,000.


 


21.                                 Waivers:  Landlord’s waivers and consents, bailee
letters and mortgagee agreements in form and substance reasonably satisfactory
to Agent, in each case as required pursuant to Section 2.6 shall
have been delivered to Agent.


 


22.                                 Audited
Financials; Financial Condition: 
The Financial Statements and Business Plan specifically identified in Section 5.5,
all certified by an authorized officer of Borrower shall have been delivered
and satisfactory to Agent.  Agent shall
have further received a certificate of an authorized officer of each Credit
Party to the effect that (a) such Credit Party will be Solvent upon the
consummation of the transactions contemplated herein; (b) the Business Plan are
based upon estimates and assumptions stated therein, all of which such Credit
Party believes to be reasonable and fair in light of current conditions and
current facts known to such Credit Party and, as of the Closing Date, reflect
such Credit Party’s good faith and reasonable estimates of its future financial
performance and of the other information projected therein for the period set
forth therein; and (c) containing such other statements with respect to the
Solvency of such Credit Party and matters related thereto as Agent shall
request.  Agent shall have received a
business plan for Borrower, in form and substance satisfactory to Agent.


 


95

















 


23.                                 Approvals:  Copies of any material third-party,
Governmental Authority or other regulatory approvals and consents necessary to
consummate the Loan Documents shall have been delivered to Agent and shall be
final and non-appealable.


 


24.                                 Evidence of
Retirement of Prior Lender Obligations:  Agent shall have received payoff letters from the Prior Lenders,
each in form and substance reasonably satisfactory to Agent, as to the Prior
Lender Obligations.


 


25.                                 Tax Forms:  Borrower Representative and Agent shall have
received a properly completed and executed IRS Form W-9, W-8BEN or W-8ECI
(whichever is applicable) or other applicable form, certificate or document
from each Lender.


 


26.                                 Intercreditor
Agreement:  Duly executed
originals of the Intercreditor Agreement among the Trustee for the Senior
Notes, each Credit Party and Agent, and all documents, instruments and
agreements required to be executed pursuant thereto.


 


27.                                 Amendment to
Security Documents for the Senior Notes:  Duly executed amendments to (or amendments and restatements of)
all collateral agreements and mortgages for the Senior Notes, each in form and
substance reasonably satisfactory to Agent.


 


28.                                 Business
Plan. Agent shall have received a business plan, including monthly
financial projections satisfactory in form and substance to Agent.


 


29.                                 Environmental
Audit Reports: Agent and its environmental consultant shall have
approved the scope and content of any environmental audit reports required by
Agent to be provided by Borrower with respect to real property owned, operated
or leased by Borrower or any of its subsidiaries and shall be satisfied that
there are no existing or potential environmental liabilities which could have
an adverse impact on the financial condition of Borrower. Any environmental
audit report required by Agent must be prepared by a nationally recognized
environmental engineering firm acceptable to Agent and delivered at least ten
(10) days prior to closing.


 


30.                                 Other
Documents:  Agent shall have
received such other certificates, documents and agreements respecting any
Credit Party as Agent may, in its sole discretion, request.


 


B.                                     NON-DOCUMENTARY
CONDITIONS


 


1.                                       Payment of
Fees:  Borrower shall have paid
the Fees required to be paid on the Closing Date, including but not limited to
such Fees specified in the GE Capital Fee Letter.


 


2.                                       Capital
Structure:  The
organizational documents, terms of equity interests, ownership, capital,
corporate, tax and legal structure of each Credit Party and the terms and
conditions of all Indebtedness of each Credit Party shall be reasonably
acceptable to Agent with no material change from that reported in Borrower
September 30, 2003 financial statements.


 


3.                                       No Material
Adverse Change; No Litigation: Since December 31, 2002, there shall
have been no material adverse change with respect to the financial condition,
collateral, operations, industry, business of Borrower or any of its
subsidiaries, taken as a whole. There shall have been no litigation commenced
which, if successful, could have a material adverse effect upon any of the
foregoing.


 


96

















 


4.                                       Solvency. Agent
and Lenders shall be satisfied, based on Consolidating financial statements
(actual and pro forma), projections and other evidence provided by Borrower, or
requested by Agent, that Borrower and its subsidiaries after incurring the
indebtedness contemplated by the Revolving Credit Facility, will be solvent,
able to satisfy its obligations as they mature and adequately capitalized.


 


5.                                       Due
Diligence:  Agent and Lenders
shall have completed its business, legal and environmental due diligence,
including a review of the Senior Notes Indenture (and, without limitation, the
intercreditor provisions thereof), Senior Subordinated Notes Indenture and
collective bargaining agreements with results reasonably satisfactory to Agent
and Lenders.


 


6.                                       Unused
Availability:  After giving
effect to the payment of, or the creation of a reserve for, all fees and
expenses related to the closing and to the satisfaction of the Prior Lender
Obligations, Borrower shall have at least $38,000,000 of Borrowing Availability
on the Closing Date.


 


7.                                       Retirement
of Prior Lender Obligations: 
Borrower shall have made provisions for the payment and satisfied on the
Closing Date in full of the Prior Lender Obligations (other than obligations in
respect of letters of credit outstanding on the Closing Date and issued by
Deutsche Bank Trust Company Americas, which shall have been backed by stand-by
Letters of Credit as required by the pay-off letter for the Existing Credit
Facility).


 


8.                                       Field
Examination and Inventory Appraisal:  Agent or its representatives shall have completed field
examination of Borrower’s and its subsidiaries’ respective business,
operations, financial condition and assets with results reasonably satisfactory
to Agent.


 


9.                                       Other
Requirements:  Such other
requirements of any Credit Party as Agent may, in its sole discretion, request.


 


97

















 


ANNEX D


 


to


 


CREDIT
AGREEMENT


 


[RESERVED]


 


98

















 


ANNEX E


 


to


 


CREDIT
AGREEMENT


 


WIRE
TRANSFER INFORMATION


 


99

















 


EXHIBIT 4.9(d)


 


BORROWING
BASE CERTIFICATE


 


DAYTON
SUPERIOR CORPORATION


 


Date: 
            ,
      


 


This Certificate is given by Dayton Superior
Corporation (“Borrower”) pursuant to subsection 4.9(d) of that certain
Credit Agreement dated as of January   , 2004 among Borrower, the other Credit
Parties party thereto, the Lenders from time to time party thereto and General
Electric Capital Corporation, as agent for the Lenders (as such agreement may
have been amended, restated, supplemented or otherwise modified from time to
time the “Credit Agreement”). 
Capitalized terms used herein without definition shall have the meanings
set forth in the Credit Agreement.


 


The undersigned is duly authorized to execute and
deliver this Certificate on behalf of Borrower.  By executing this Certificate such officer hereby certifies on
behalf of the Borrower (and not individually) to Agent and Lenders that:


 


(a)                                  Attached
hereto as Schedule 1 is a calculation of the proposed Borrowing Base for
Borrower as of the above date;


 


(b)                                 Based
on such schedule, the proposed Borrowing Base as of the above date is:


 


$                      


 


(c)                                  Agent
shall have the right to establish or modify or eliminate Reserves against
Eligible Accounts, Eligible Inventory and Borrowing Availability from time to
time in its reasonable credit judgment exercised in good faith based on events
or occurrences after the Closing Date that adversely affect the collectibility
of Accounts or the saleability of Inventory. 
In addition, Agent reserves the right at any time to adjust any of the
criteria set forth below and to establish new criteria in its reasonable credit
judgment exercised in good faith, subject to the approval of Supermajority
Revolving Lenders in the case of adjustments which have the effect of making
more credit available.  Borrower
acknowledges that the exercise by Agent of any right pursuant to this clause
(c) shall have the effect of adjusting the proposed Borrowing Base set forth
above.


 


IN WITNESS WHEREOF, Borrower has caused this Certificate
to be executed by its
                          
this         day of                          ,
200  .


 


	
   

  	
  DAYTON SUPERIOR CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
  Title:

  
				



 


100

















 


Schedule 1


to Exhibit 4.9(d)


BORROWING
BASE CALCULATION


 


DAYTON
SUPERIOR CORPORATION


 


	
  Accounts of the Borrower and its Domestic
  Subsidiaries reflected as accounts receivable on the Borrower’s consolidated
  balance sheet (as of the date above), but solely to the extent of the unpaid
  portion of the obligations stated on the respective invoices issued to a
  customer of Borrower or any of its Domestic Subsidiaries with respect to
  inventory sold and shipped or services performed in the ordinary course of
  business, net of any credits, rebates or offsets owed by Borrower or any of
  its Domestic Subsidiaries to the respective customer.

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less: Ineligible 

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts: Accounts that do not arise from the sale
  of goods or the performance of services by Borrower or a Domestic Subsidiary
  in the ordinary course of its business;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts (i) upon which Borrower’s or a Domestic
  Subsidiary’s right to receive payment is not absolute or is contingent upon
  the fulfillment of any condition whatsoever or (ii) as to which Borrower or
  such Domestic Subsidiary is not able to bring suit or otherwise enforce its
  remedies against the Account Debtor through judicial process, or (iii) if the
  Account represents a progress billing consisting of an invoice for goods sold
  or used or services rendered pursuant to a contract under which the Account
  Debtor’s obligation to pay that invoice is subject to Borrower’s or a
  Domestic Subsidiary’s completion of further performance under such contract
  or is subject to the equitable lien of a surety bond issuer;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Any Account to the extent that any defense,
  counterclaim, setoff or dispute is asserted as to such Account;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts that are not true and correct statements of
  bona fide indebtedness incurred in the amount of such Account for merchandise
  sold to or services rendered and accepted by the applicable Account Debtor;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts with respect to which an invoice has not
  been sent to the applicable Account Debtor;

  	
   

  	
   

  	
   

  	
   

  



 


101

















 


	
  Accounts that (i) are not owned by Borrower or a
  Domestic Subsidiary or (ii) are subject to any right, claim, security
  interest or other interest of any other Person, other than Permitted
  Encumbrances that are junior to the Lien of the Agent securing the Obligations;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts that arise from a sale to any Credit Party,
  director, officer, other employee or Affiliate of any Credit Party, or to any
  entity that has any common officer or director with any Credit Party;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts that are the obligation of an Account
  Debtor that is the United States government or a political subdivision
  thereof, or any state, county or municipality or department, agency or
  instrumentality thereof if such obligations in the aggregate exceed
  $2,500,000 unless Agent, in its sole discretion, has agreed to the contrary
  in writing and Borrower, if necessary or desirable, has complied with respect
  to such obligation with the Federal Assignment of Claims Act of 1940, or any
  applicable state, county or municipal law restricting the assignment thereof]
  with respect to such obligation;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts that are the obligations of an Account
  Debtor located in a foreign country other than Canada unless payment thereof
  is assured by a letter of credit assigned and delivered to Agent,
  satisfactory to Agent as to form, amount and issuer;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts to the extent Borrower or any Subsidiary
  thereof is liable for goods sold or services rendered by the applicable
  Account Debtor to Borrower or any Subsidiary thereof but only to the extent
  of the potential offset;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts that arise with respect to goods that are
  delivered on a bill-and-hold, cash-on-delivery basis or placed on
  consignment, guaranteed sale or other terms by reason of which the payment by
  the Account Debtor is or may be conditional;

  	
   

  	
   

  	
   

  	
   

  



 


102

















 


	
  Accounts that are in default; provided, that,
  without limiting the generality of the foregoing, an Account shall be deemed
  in default upon the occurrence of any of the following (other than clause
  (i)(x) below, which is for information and Borrowing Base calculation
  only):       

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)                                     (x) the Account
  has not been paid and there has elapsed 120 (but not more than 150) days
  since its invoice date and the Account is not otherwise ineligible;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (y) the Account has not been paid and there has
  elapsed more than 150 days since its invoice date; or

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (z) the Account has not been paid and there has
  elapsed more than 90 days since its due date and it is not an Account taken
  into account under clause (y);

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (ii)                                  the Account Debtor
  obligated upon such Account suspends business, makes a general assignment for
  the benefit of creditors or fails to pay its debts generally as they come
  due; or

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (iii)                               a petition is filed by
  or against any Account Debtor obligated upon such Account under any
  bankruptcy law or any other federal, state or foreign (including any
  provincial) receivership, insolvency relief or other law or laws for the
  relief of debtors;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts that are the obligations of an Account
  Debtor if 50% or more of the Dollar amount of all Accounts owing by that
  Account Debtor are ineligible under the other criteria set forth in this Schedule 1
  to Exhibit 4.9(d);

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts as to which Agent’s Lien thereon, on behalf
  of itself and Lenders, is not a first priority perfected Lien;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts as to which any of the representations or
  warranties in the Loan Documents are untrue;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts that are evidenced by a judgment,
  Instrument or, except in the case of a Rental, Chattel Paper;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts to the extent that such Account, together
  with all other Accounts owing to such Account Debtor and its Affiliates
  (other than) as of any date of determination exceed 10% of all Eligible
  Accounts, except as otherwise agreed by Agent;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts that are payable in any currency other than
  Dollars; or

  	
   

  	
   

  	
   

  	
   

  



 


103

















 


	
  In the case of any Rental, Accounts that are not
  subject to a written lease agreement;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  In the case of any Rental, Accounts that are not
  subject to a first priority security interest of Agent on behalf of Lenders,
  perfected by possession of all Chattel Paper related to such Rental by possession
  or by the filing of a financing statement which financing statement indicates
  that a purchase of or security interest in such Chattel Paper by or in favor
  of any Person other than Agent or the trustee under the Senior Notes is
  violative of the rights of Agent;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Ineligible Accounts

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Eligible Accounts (Accounts less Total Ineligible Accounts)

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Eligible Accounts 
  120-150 days

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Advance Rate

  	
   

  	
   

  	
  [80

  	
  ]%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Eligible Accounts 
  <120 days

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Advance Rate

  	
   

  	
   

  	
  [85

  	
  ]%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts Availability

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inventory owned by, and in the possession of the Borrower or any of
  its Domestic Subsidiaries, and located in the United States of America,
  reflected as inventory on the Borrower’s consolidated balance sheet (as of
  the date above), valued at the lower of cost or market (including adequate
  reserves for obsolete, slow moving or excess quantities), on a first-in,
  first-out basis

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less: Ineligible Inventory: 

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inventory that is not owned by Borrower or a
  Domestic Subsidiary free and clear of all Liens and rights of any other
  Person (including the rights of a purchaser that has made progress payments
  and the rights of a surety that has issued a bond to assure Borrower’s or a
  Domestic Subsidiary’s performance with respect to that Inventory), except the
  Liens in favor of Agent, on behalf of itself and Lenders;

  	
   

  	
   

  	
   

  	
   

  



 


104

















 


	
  (i) Except in the case of Inventory on lease to
  customers in the ordinary course of business, Inventory that (w) is not
  located on premises owned, leased or rented by Borrower or a Domestic
  Subsidiary and set forth in Disclosure Schedule (5.12) to the Security
  Agreement, (x) is stored at a leased location, unless Agent has given
  its prior consent thereto and unless (1) a reasonably satisfactory landlord
  waiver has been delivered to Agent, or (2) Reserves in an amount equal
  to four months rent have been established with respect thereto, (y) is
  stored with a bailee or warehouseman or is in a processor or converter
  facility unless a reasonably satisfactory, acknowledged waiver or
  subordination of all Liens and claims by the bailee, warehouseman, processor
  or converter has been received by Agent or Reserves reasonably satisfactory
  to Agent have been established with respect thereto, or (z) is located at an
  owned location subject to a mortgage in favor of a lender other than Agent,
  unless a reasonably satisfactory mortgagee waiver has been delivered to Agent
  or Reserves reasonably satisfactory to Agent have been established with
  respect thereto, or (ii) is located at any site if the aggregate book value
  of Inventory at any such location is less than $100,000;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inventory that is placed on consignment or is in transit,
  except for Inventory in transit between domestic locations of Credit Parties
  as to which Agent’s Liens have been perfected at origin and destination;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inventory that is covered by a negotiable document
  of title, unless such document has been delivered to Agent with all necessary
  endorsements, free and clear of all Liens except those in favor of Agent and
  Lenders;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inventory that is excess, obsolete, unsaleable,
  shopworn, seconds, damaged or unfit for sale;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inventory that consists of display items or packing
  or shipping materials, manufacturing supplies, work-in-process Inventory to
  the extent such work-in-process Inventory in the aggregate exceeds $5,000,000
  or replacement parts;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inventory that is not held for sale in the ordinary
  course of Borrower’s or a Domestic Subsidiary’s business;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inventory that is not subject to a first priority
  lien in favor of Agent on behalf of itself and Lenders subject to no other
  Lien other than Permitted Encumbrances that are junior to the Lien of Agent
  securing the Obligations;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inventory that breaches any of the representations
  or warranties pertaining to Inventory set forth in the Loan Documents;

  	
   

  	
   

  	
   

  	
   

  



 


105

















 


	
  Inventory that consists of any costs associated with
  “freight-in” charges, to the extent such “freight-in” charges can be
  determined by the Credit Parties;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inventory that consists of Hazardous Materials or
  goods that can be transported or sold only with licenses that are not readily
  available;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inventory that is not covered by casualty insurance
  in accordance with Section 2.2;

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inventory that is being leased to a third party as
  lessee subject to a lease that is not owned by Borrower or a Domestic
  Subsidiary or is subject to a lease owned by Borrower or a Domestic
  Subsidiary that is subject to a Lien (other than a Permitted Encumbrance); or

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inventory that is being leased to a lessee (i) which
  has commenced a voluntary case or has consented to the entry of an order for
  relief in an involuntary case or to the conversion of an involuntary case to
  a voluntary case, under the Bankruptcy Code or (ii) with respect to which a
  court has entered a decree or order for relief in an involuntary case under
  the Bankruptcy Code.

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Ineligible Inventory

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Eligible Inventory at NOLV

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Advance Rate

  	
   

  	
   

  	
  [85

  	
  ]%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A.

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Eligible Inventory at cost

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Advance Rate

  	
   

  	
   

  	
  [60

  	
  ]%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Inventory Availability (lesser of A and B)

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less current liabilities (other than Loans and
  Intercompany Notes) of Symons

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Borrowing Base (Accounts Availability plus Inventory
  Availability less $10,000,000 less such current liabilities of Symons)

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Indenture Borrowing
  Base

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  75% of net accounts receivable on Borrower’s most
  recent consolidated balance sheet

  	
   

  	
  $

  	
   

  	
   

  



 


106

















 


	
  60% of net inventories and rental equipment on
  Borrower’s most recent consolidated balance sheet

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
   

  	
   

  



 


107

















 


EXHIBIT 4.9(k)


COMPLIANCE
AND PRICING CERTIFICATE


 


DAYTON
SUPERIOR CORPORATION


 


Date: 
             ,
      


 


This Certificate is given by Dayton Superior
Corporation (“Borrower”) pursuant to Section 4.9(k) of that certain
Credit Agreement dated as of January   ,
2004 among Borrower, the other Credit Parties party thereto, the Lenders from
time to time party thereto and General Electric Capital Corporation, as agent
for the Lenders (as such agreement may have been amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”).  Capitalized terms used herein without
definition shall have the meanings set forth in the Credit Agreement.


 


The undersigned is duly authorized to execute and
deliver this Certificate on behalf of Borrower.  By executing this Certificate such officer hereby certifies on
behalf of Borrower (and not individually) to Agent and Lenders that:


 


(a)                                  the
financial statements delivered with this Certificate in accordance with
Section 4.9(a) and/or 4.9(b) of the Credit Agreement fairly present in all
material respects the results of operations and financial condition of Borrower
and its Subsidiaries as of the dates of such financial statements (except that
monthly Financial Statements do not include footnote disclosures or any
Consolidating statement and are subject to year-end adjustment);


 


(b)                                 I
have reviewed the terms of the Credit Agreement and have made, or caused to be
made under my supervision, a review in reasonable detail of the transactions
and conditions of the Credit Parties during the accounting period covered by
such financial statements;


 


(c)                                  such
review has not disclosed the existence during or at the end of such accounting
period, and I have no knowledge of the existence as of the date hereof, of any
condition or event that constitutes a Default or an Event of Default, except as
set forth on Schedule 1 hereto, which includes a description of the
nature and period of existence of such Default or an Event of Default and what
action Borrower has taken, is taking and proposes to take with respect thereto;


 


(d)                                 except
as set forth on Schedule 1 hereto, Borrower is in compliance with
the covenants contained in Sections 3.1, 3.3, 3.4, 3.5, 3.7 and 3.8 and
Section 4 of the Credit Agreement, as demonstrated on Schedule 1
hereto;


 


(e)                                  Daily
Average Borrowing Availability for the Fiscal Quarter in respect of which this
Certificate is being delivered was: $___________;


 


(f)                                    except
as set forth on Schedule 3 hereto, subsequent to the date of the
most recent Certificate submitted by Borrower pursuant to Section 4.9(k)
of the Credit Agreement, no Credit Party has (i) changed its name as it appears
in official filings in the jurisdiction of its organization, (ii) changed its
chief executive office, principal place of business, corporate offices,
warehouses or locations at which Collateral is held or stored, or the location
of its records concerning Collateral, (iii) changed the type of entity that it
is, (iv) changed (or has had changed) its organization identification number,
if any, issued by its jurisdiction of organization, (v) changed its jurisdiction
of organization, (vi) changed the end of its 


 


108

















 


Fiscal Year, or (vii) formed any new Subsidiary or
entered into any partnership or joint venture with any other Person; and


 


(g)                                 except
as set forth on Schedule 4 hereto, subsequent to the date of the
most recent Certificate submitted by Borrower pursuant to Section 4.9(k)
of the Credit Agreement, there has been no event which would alter any of the
disclosures set forth on Schedule 5.4(b) of the Credit Agreement.


 


(h)                                 Borrower
and its Subsidiaries have possession of all their respective Chattel Paper and
have not created any lien on any Chattel Paper other than liens in favor of the
Agent and the Collateral Agent under the Senior Notes Indenture.


 


IN WITNESS WHEREOF, Borrower has caused this
Certificate to be executed by its
                            
this         day of
                      ,
200  .


 


	
   

  	
  DAYTON
  SUPERIOR CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


109

















 


SCHEDULE 1


Exhibit 4.9(k)


 


ALL
AMOUNTS IN EXHIBIT 4.9(K) ARE WITHOUT DUPLICATION AND, UNLESS OTHERWISE
INDICATED, ARE CALCULATED FOR BORROWER AND ITS SUBSIDIARIES ON A CONSOLIDATED
BASIS


 


INDEBTEDNESS


(Section 3.1)


 


 


Unsecured Indebtedness issued in connection with each
Permitted Acquisition as reflected on the consolidated balance sheet of
Borrower.


 


	
  Actual in the aggregate

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Permitted in the aggregate

  	
   

  	
  $

  	
  7,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Actual in the aggregate

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Permitted in the aggregate

  	
   

  	
  $

  	
  7,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  
						



 


Indebtedness secured by purchase money Liens or
incurred with respect to Capital Leases:


 


	
  Actual in the aggregate

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Permitted in the aggregate

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


Unsecured Subordinated Debt (excluding Indebtedness
evidenced by the Senior Subordinated Notes):


 


	
  Actual in the aggregate

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Permitted in the aggregate

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


110

















 


Indebtedness of Dayton Superior Canada Ltd:


 


	
  Actual in the aggregate

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Permitted in the aggregate

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  provided,
  no other Credit Party has any liability with respect thereto or has provided
  any collateral security or other support with respect thereto

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


111

















 


INVESTMENTS


(Section 3.3)


 


Loans and advances to employees and officers for bona
fide business purposes:


 


	
  Actual in the aggregate

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Permitted in the aggregate

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


Investments in Persons engaged in a business permitted
under Section 3.9:


 


	
  Actual in the aggregate

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Permitted in the aggregate

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


112

















 


CONTINGENT OBLIGATIONS 


(Section 3.4)


 


Contingent Obligations arising from performance and
surety bonds and completion guarantees provided by Borrower or any Subsidiary
of Borrower in the ordinary course of business:


 


	
  Actual in the aggregate

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Permitted in the aggregate

  	
   

  	
  $

  	
  [          

  	
  ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


113

















 


RESTRICTED JUNIOR PAYMENTS


(Section 3.5)


 


 


Purchase, prepayment, acquisition or retirement for
value of Senior Notes or Restricted Payments described in clauses (a) through
(e) of the definition of Restricted Payments:


 


	
  Actual

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Borrowing Availability at the relevant time (after
  giving effect to any such purchases, prepayments, acquisitions or
  retirements)

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Permitted (provided no Default or Event of Default
  and Borrowing Availability, at relevant time, was at least $40,000,000)

  	
   

  	
  Yes/No

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


Redemption or repurchase of Borrower’s common equity
or options in respect thereof in connection with repurchase provisions of
employee stock option, stock purchase agreements and/or other agreements to
compensate management employees:


 


	
  Actual (current Fiscal Year)

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Permitted (current Fiscal Year)

  	
   

  	
  $

  	
  2,5000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Carryover from prior Fiscal Years (up to $5,000,000
  may be carried over from preceding fiscal years)

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


Purchase, prepayment, acquisition or retirement for
value of Senior Subordinated Notes:


 


	
  Actual

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Borrowing Availability at the relevant time (after
  giving effect to any such purchases, prepayments, acquisitions or
  retirements)

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Permitted (provided no Default or Event of Default
  and Borrowing Availability, at relevant time, was at least $30,000,000)

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


114

















 


Dividend or irrevocable redemption (paid within 60
days of declaration of dividend or notice of redemption, as the case may be):


 


	
  Actual

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Borrowing Availability (at the relevant time after
  giving effect to any such dividend or redemption)

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Permitted (provided no Default or Event of Default
  and Borrowing Availability, at the relevant time, was at least $40,000,000)

  	
   

  	
  Yes/No

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


Dividend on Disqualified
Capital Stock issued after June 9, 2003:


 


	
  Actual

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  On pro forma basis would have been able to
  incur $1 of additional Indebtedness

  	
   

  	
  Yes/No

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Borrowing Availability (at the relevant time after
  giving effect to the incurrence of Obligations)

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Permitted (provided no Default or Event of Default
  and Borrowing Availability, at the relevant time, was at least $40,000,000)

  	
   

  	
  Yes/No

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


Merger and acquisition
advisory fees:


 


	
  Value of Permitted Acquisition and related
  reasonable out-of-pocket expense reimbursements

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Merger and acquisition advisory fees paid

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


115

















 


RESTRICTION ON FUNDAMENTAL CHANGES


(Section 3.6)


 


Describe any Permitted Acquisitions made during the
period (list each transaction by amounts payable in connection therewith
(including all transaction costs and all Indebtedness, liabilities and
Contingent Obligations incurred or assumed):


 


	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  



 


	
  Aggregate amounts payable in connection with of all
  Permitted Acquisitions

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Permitted amounts payable in connection with all
  Permitted Acquisitions

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


116

















 


DISPOSAL OF ASSETS 


(Section 3.7)


 


Describe any Asset Dispositions made during the period
(list each transaction by market value of assets sold or otherwise disposed
of):


 


	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  



 


	
  Permitted Asset Dispositions in a single transaction
  or series of related transactions (asset market value)

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Aggregate market value of Asset Dispositions in
  Fiscal Year

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Permitted aggregate market value of Asset
  Dispositions in any Fiscal Year

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


117

















 


TRANSACTIONS WITH AFFILIATES


(Section 3.8)


 


Describe any Transactions with Affiliates with an
aggregate value of $2,500,000 or more made during the period:


 


	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  



 


	
  Majority of Board of Directors good faith
  determination in accordance with 3.8(a)(i)

  	
   

  	
  Yes/No

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Favorable opinion obtained in accordance with
  3.8(a)(ii)

  	
   

  	
  Yes/No

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  



 


118

















 


SALE-LEASEBACKS


(Section 3.17)


 


Sale-Leasebacks, synthetic leases or similar
transactions:


 


	
  Actual in the aggregate (unpaid notional principal
  amount)

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Permitted in the aggregate (unpaid notional
  principal amount)

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  	
   

  
						



 


119

















 


CONDITIONS
OR EVENTS WHICH CONSTITUTE A DEFAULT OR


EVENT
OF DEFAULT


 


[If
any condition or event exists that constitutes a Default or Event of Default,
specify nature and period of existence and what action Borrower has taken, is
taking or proposes to take with respect thereto; if no condition or event
exists, state “None.”]


 


120

















 


SCHEDULE 3


Exhibit 4.9(k)


ORGANIZATION/LOCATION
CHANGES


 


[If
any Credit Party has (i) changed its name as it appears in official filings in
the state of its organization, (ii) changed its chief executive office,
principal place of business, corporate offices, warehouses or locations at
which Collateral is held or stored, or the location of its records concerning
Collateral, (iii) changed the type of entity that it is, (iv) changed (or has
had changed) its organization identification number, if any, issued by its
jurisdiction or organization, (v) changed its jurisdiction of organization,
(vi) changed the end of its Fiscal Year, or (vii) formed any new Subsidiary or
entered into any partnership or joint venture with any Person, such change
shall be specified below; if no such change has been made, state “None.”]


 


121

















 


SCHEDULE 4


Exhibit 4.9(k)


CAPITALIZATION
CHANGES


 


[If
with respect to any Credit Party there has been a change in authorized Stock,
issued and outstanding Stock or the identity of the holders of any Stock, or if
with respect to any Credit Party there has been a change pertaining to
preemptive rights or any other outstanding rights, options, warrants,
conversion rights or similar agreements or understandings for the purchase or
acquisition of any Stock, such change shall be set forth below; if no such
change has occurred, state “None.”]


 


122

















 


EXHIBIT 1.1(a)(i)


to


CREDIT
AGREEMENT


 


FORM
OF REVOLVING NOTE


 


New York, New York


 


$    ,    ,                     
    ,          


 


FOR VALUE RECEIVED, the undersigned, Dayton Superior
Corporation, an Ohio corporation (“Borrower”), HEREBY PROMISES TO PAY to
the order of
                                        
(“Lender”), at the offices of GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation, as Agent for Lenders (“Agent”), at its address at
335 Madison Avenue, New York, New York 10017, or at such other place as Agent
may designate from time to time in writing, in lawful money of the United
States of America and in immediately available funds, the amount of
                                        
DOLLARS AND
              
CENTS
($    ,    ,    )
or, if less, the aggregate unpaid amount of all Revolving Credit Advances made
to the undersigned under the “Credit Agreement” (as hereinafter defined).  All capitalized terms used but not otherwise
defined herein have the meanings given to them in the Credit Agreement or in Annex A
thereto.


 


This Revolving Note is one of the Revolving Notes
issued pursuant to that certain Credit Agreement dated as of January    , 2004 by and among Borrower, the other
Persons named therein as Credit Parties, Agent, Lender and the other Persons
signatory thereto from time to time as Lenders (including all annexes, exhibits
and schedules thereto, and as from time to time amended, restated, supplemented
or otherwise modified, the “Credit Agreement”), and is entitled to the
benefit and security of the Credit Agreement, the Security Agreement and all of
the other Loan Documents referred to therein. 
Reference is hereby made to the Credit Agreement for a statement of all
of the terms and conditions under which the Loans evidenced hereby are made and
are to be repaid.  The date and amount
of each Revolving Credit Advance made by Lenders to Borrower, the rates of
interest applicable thereto and each payment made on account of the principal
thereof, shall be recorded by Agent on its books; provided that the failure of
Agent to make any such recordation shall not affect the obligations of Borrower
to make a payment when due of any amount owing under the Credit Agreement or
this Revolving Note in respect of the Revolving Credit Advances made by Lender
to Borrower.


 


The principal amount of the indebtedness evidenced
hereby shall be payable in the amounts and on the dates specified in the Credit
Agreement, the terms of which are hereby incorporated herein by reference.  Interest thereon shall be paid until such
principal amount is paid in full at such interest rates and at such times, and
pursuant to such calculations, as are specified in the Credit Agreement.  The terms of the Credit Agreement are hereby
incorporated herein by reference.


 


If any payment on this Revolving Note becomes due and
payable on a day other than a Business Day, the payment thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.


 


Upon and after the occurrence of any Event of Default,
this Revolving Note may, as provided in the Credit Agreement, and without
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or other legal requirement of any kind (all of which are hereby
expressly waived by Borrower), be declared, and immediately shall become, due
and payable.


 


123

















 


Time is of the essence of this Revolving Note.


 


Except as provided in the Credit Agreement, this
Revolving Note may not be assigned by Lender to any Person.


 


THIS
REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAW PRINCIPLES OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.


 


	
   

  	
   

  	
  DAYTON SUPERIOR CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


124

















 


EXHIBIT 1.1(a)(ii)


to


CREDIT
AGREEMENT


 


FORM OF NOTICE OF REVOLVING
CREDIT ADVANCE


 


                    ,
        


 


General Electric Capital Corporation,


for itself, as Lender, and as Agent


for Lenders


335 Madison Avenue 


New York, New York 10017 


Attention:  Dayton Superior Corporation 


 Account Manager


 


Ladies and Gentlemen:


 


The undersigned, Dayton Superior Corporation (“Borrower”)
refers to the Credit Agreement, dated as of January   , 2004 (the “Credit Agreement,” the terms defined therein
being used herein and in the accompanying officer’s certificate as therein
defined), by and among Borrower, the other Credit Parties signatory thereto,
General Electric Capital Corporation, for itself, as Lender, and as Agent for
Lenders,  and Lenders, and hereby gives
you notice, irrevocably, pursuant to Section 1.1(a) of the Credit
Agreement, that the undersigned hereby requests a Revolving Credit Advance
under the Credit Agreement, and in that connection sets forth below the
information relating to such Revolving Credit Advance as required by Section 1.1(a)
of the Credit Agreement:


 


(i)                                     The
date of the requested Revolving Credit Advance is
                   ,
         .


 


(ii)                                  The
aggregate amount of the requested Revolving Credit Advance is
$                    .


 


(iii)                               The requested Revolving
Credit Advance is [an Index Rate Loan] [a LIBOR Loan with a LIBOR Period
of
                ].


 


(iv)                              The
requested Revolving Credit Advance is to be sent to:


 


[Name of Bank]


[City of Bank]


Beneficiary:


Account No.: 
[number]


ABA No.: 
[number]


Attn:  [name]


 


The undersigned hereby certifies on behalf of Borrower
(and not individually) that all of the statements contained in Section 7.2
of the Credit Agreement are true and correct in all material respects on the
date hereof, and will be true in all material respects on the date of the
requested Revolving Credit Advance, before and after giving effect thereto and
to the application of the proceeds therefrom. 
The undersigned certifies on behalf of Borrower (and not
individually)  that the Revolving Credit
Advance 


 


125

















 


requested hereby shall constitute “Permitted
Indebtedness” (as such term is defined in the Senior Notes Indenture) and
“Senior Debt” and “Designated Senior Debt” (as such terms are defined in the
Senior Subordinated Notes Indenture).


 


	
   

  	
   

  	
  DAYTON SUPERIOR
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


[Add for Initial Revolving Credit Advance]


 


OFFICER’S CERTIFICATE


 


The undersigned, being the duly elected
               
of Dayton Superior Corporation, currently serving as such, hereby certifies to
Agent and the Lenders that the incurrence of the Liens of the Agent for the
benefit of itself and the Lenders contemplated by the Credit Agreement and the
other Loan Documents and securing the Obligations is permitted under clause (3)
of the definition of “Permitted Liens” (under and as such term is defined in
the Senior Notes Indenture) for the entire amount of the Revolving Loan
Commitment.


 


IN WITNESS WHEREOF, the undersigned has signed this
certificate as contemplated by clause (3) of the definition of “Permitted
Liens” (under and as such term is defined in the Senior Notes Indenture) as of
this     day of January, 2004.


 


	
   

  	
   

  
	
  Name:

  



 


126

















 


EXHIBIT 1.1(c)


to


CREDIT
AGREEMENT


 


FORM
OF SWING LINE NOTE


 


New York, New York


 


$    ,    ,                     
    ,          


 


FOR VALUE RECEIVED, the undersigned, Dayton Superior
Corporation an Ohio corporation (“Borrower”), HEREBY PROMISES TO PAY to
the order of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation (“Swing
Line Lender”) at the offices of GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation, as Agent (in such capacity, the “Agent”) at the
Agent’s address at 335 Madison Avenue, New York, New York 10017, or at such
other place as Agent may designate from time to time in writing, in lawful
money of the United States of America and in immediately available funds, the
amount of
                                    
DOLLARS AND NO CENTS
($    ,    ,     )
or, if less, the aggregate unpaid amount of all Swing Line Advances made to the
undersigned under the “Credit Agreement” (as hereinafter defined).  All capitalized terms used but not otherwise
defined herein have the meanings given to them in the Credit Agreement or in Annex A
thereto.


 


This Swing Line Note is issued pursuant to that
certain Credit Agreement dated as of January     , 2004 by
and among Borrower, the other Persons named therein as Credit Parties, Agent,
Swing Line Lender and the other Persons signatory thereto from time to time as
Lenders (including all annexes, exhibits and schedules thereto and as from time
to time amended, restated, supplemented or otherwise modified, the “Credit
Agreement”), and is entitled to the benefit and security of the Credit
Agreement, the Security Agreement and all of the other Loan Documents.  Reference is hereby made to the Credit
Agreement for a statement of all of the terms and conditions under which the
Loans evidenced hereby are made and are to be repaid.  The date and amount of each Swing Line Advance made by Swing Line
Lender to Borrower, the rate of interest applicable thereto and each payment
made on account of the principal thereof, shall be recorded by Agent on its
books; provided that the failure of Agent to make any such recordation shall
not affect the obligations of Borrower to make a payment when due of any amount
owing under the Credit Agreement or this Swing Line Note in respect of the
Swing Line Advances made by Swing Line Lender to Borrower.


 


The principal amount of the indebtedness evidenced
hereby shall be payable in the amounts and on the dates specified in the Credit
Agreement, the terms of which are hereby incorporated herein by reference.  Interest thereon shall be paid until such
principal amount is paid in full at such interest rates and at such times, and
pursuant to such calculations, as are specified in the Credit Agreement.  The terms of the Credit Agreement are hereby
incorporated herein by reference.


 


If any payment on this Swing Line Note becomes due and
payable on a day other than a Business Day, the payment thereof shall be
extended to the next succeeding Business Day and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension.


 


Upon and after the occurrence of any Event of Default,
this Swing Line Note may, as provided in the Credit Agreement, and without
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or other legal requirement of any kind (all of which are hereby
expressly waived by Borrower), be declared, and immediately shall become, due
and payable.


 


127

















 


Time is of the essence of this Swing Line Note.


 


Except as provided in the Credit Agreement, this Swing
Line Note may not be assigned by Lender to any Person.


 


THIS
SWING LINE NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAW PRINCIPLES OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.


 


	
   

  	
   

  	
  DAYTON SUPERIOR
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


128

















 


EXHIBIT 1.2(e)


to


CREDIT
AGREEMENT


 


FORM
OF NOTICE OF CONVERSION/CONTINUATION


 


 


Reference is made to that certain Credit Agreement
dated as of January    , 2004 by and among the undersigned (“Borrower”),
the other Persons named therein as Borrowers, the other Persons named therein
as Credit Parties, General Electric Capital Corporation (“Agent”) and
the Lenders from time to time signatory thereto (including all annexes, exhibits
or schedules thereto, and as from time to time amended, restated, supplemented
or otherwise modified, the “Credit Agreement”).  Capitalized terms used herein without
definition are so used as defined in the Credit Agreement.


 


Borrower hereby gives irrevocable notice, pursuant to Section 1.2(e)
of the Credit Agreement, of its request to:


 


(a)                                  on
[  date 
] convert
$[             ]of
the aggregate outstanding principal amount of the [             ]
Loan, bearing interest at the
[             ]
Rate, into a(n)
[             ]
Loan [and, in the case of a LIBOR Loan, having a LIBOR Period of
[           ] month(s)];


 


[(b)                             on
[  date  ] continue
$[             ]of
the aggregate outstanding principal amount of the
[             ]
Loan, bearing interest at the LIBOR Rate, as a LIBOR Loan having a LIBOR Period
of [            ]
month(s)].


 


Borrower certifies that the conversion and/or
continuation of the Loans requested above is for the separate account of the
Borrower in the following amount: 
[$                              ].


 


Borrower hereby (i) certifies that all of the
statements contained in Section 7.2 of the Credit Agreement are
true and correct in all material respects on the date hereof, and will be true
in all material respects on the date of the requested conversion/continuation,
before and after giving effect thereto and (ii) reaffirms the guaranty and
continuance of Agent’s Liens, on behalf of itself and Lenders, pursuant to the
Collateral Documents.


 


	
   

  	
   

  	
  DAYTON SUPERIOR
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


129

















 


EXHIBIT 8.1


to


CREDIT
AGREEMENT


 


ASSIGNMENT
AGREEMENT


 


This Assignment Agreement (this “Agreement”) is
made as of January    , 2004 by and between
                                                     
(“Assignor Lender”) and
                                       
(“Assignee Lender”) and acknowledged and consented to by GENERAL
ELECTRIC CAPITAL CORPORATION, as agent (“Agent”).  All capitalized terms used in this Agreement
and not otherwise defined herein will have the respective meanings set forth in
the Credit Agreement as hereinafter defined.


 


RECITALS:


 


WHEREAS, Dayton Superior Corporation, an Ohio
corporation and certain of its Subsidiaries (“Credit Parties”), Agent,
Assignor Lender and other Persons signatory thereto as Lenders have entered
into that certain Credit Agreement dated as of January __, 2004 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”) pursuant to which Assignor Lender has agreed to make certain
Loans to, and incur certain Letter of Credit Obligations for, Borrower;


 


WHEREAS, Assignor Lender desires to assign to Assignee
Lender [all/a
portion] of its interest in the Loans (as described below), the
Letter of Credit Obligations and the Collateral and to delegate to Assignee
Lender [all/a
portion] of its Commitments and other duties with respect to such
Loans, Letter of Credit Obligations and Collateral;


 


WHEREAS, Assignee Lender desires to become a Lender
under the Credit Agreement and to accept such assignment and delegation from
Assignor Lender; and


 


WHEREAS, Assignee Lender desires to appoint Agent to
serve as agent for Assignee Lender under the Credit Agreement.


 


NOW, THEREFORE, in consideration of the premises and
the agreements, provisions, and covenants herein contained, Assignor Lender and
Assignee Lender agree as follows:


 


1.                                       ASSIGNMENT,
DELEGATION, AND ACCEPTANCE


 


1.1                                 Assignment.  Assignor Lender hereby transfers and assigns
to Assignee Lender, without recourse and without representations or warranties
of any kind (except as set forth in Section 3.2), [all/such
percentage] of Assignor Lender’s right, title, and interest in [the
Revolving Loan ], [the Loans], [Letter of Credit Obligations], Loan
Documents and the Collateral as will result in Assignee Lender having as of the
Effective Date (as hereinafter defined) a Pro Rata Share thereof, as follows:


 


	
  Assignee Lender’s Loans

  	
   

  	
  Principal Amount

  	
   

  	
  Pro Rata Share

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Revolving Loan

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
							



 


1.2                                 Delegation.  Assignor Lender hereby irrevocably assigns
and delegates to Assignee Lender [all/a portion] of its Commitments and its
other duties and obligations as a Lender under the Loan Documents equivalent to  the
Pro Rata Shares set forth above.


 


130

















 


1.3                                 Acceptance
by Assignee Lender.  By its
execution of this Agreement, Assignee Lender irrevocably purchases, assumes and
accepts such assignment and delegation and agrees to be a Lender with respect
to the delegated interest under the Loan Documents and to be bound by the terms
and conditions thereof.  By its
execution of this Agreement, Assignor Lender agrees, to the extent provided
herein, to relinquish its rights and be released from its obligations and
duties under the Credit Agreement.


 


1.4                                 Effective
Date.  Such assignment and
delegation by Assignor Lender and acceptance by Assignee Lender will be
effective and Assignee Lender will become a Lender under the Loan Documents as
of [the
date of this Agreement][_____ __, ____] (“Effective Date”)
and upon payment of the Assigned Amount and the Assignment Fee (as each term is
defined below).  [Interest and Fees accrued prior to the
Effective Date are for the account of Assignor Lender, and Interest and Fees
accrued from and after the Effective Date are for the account of Assignee
Lender.]


 


2.                                       INITIAL
PAYMENT AND DELIVERY OF NOTES


 


2.1                                 Payment
of the Assigned Amount.  Assignee
Lender will pay to Assignor Lender, in immediately available funds, not later
than 12:00 noon (New York time on the Effective Date, an amount equal to its
Pro Rata Share of the then outstanding principal amount of the Loans as set
forth above in Section 1.1  [together with accrued interest, fees and other
amounts as set forth on Schedule 2.1] (the “Assigned Amount”).


 


2.2                                 Payment
of Assignment Fee.  [Assignor Lender
and/or Assignee Lender] will pay to Agent, for its own account in immediately
available funds, not later than 12:00 noon (New York time on the Effective
Date, the assignment fee in the amount of $3,500 (the “Assignment Fee”)
as required pursuant to Section 8.1(a) of the Credit Agreement.


 


2.3                                 Execution
and Delivery of Notes.  Following
payment of the Assigned Amount and the Assignment Fee, Assignor Lender will
deliver to Agent the Notes previously delivered to Assignor Lender for
redelivery to Borrowers and Agent will obtain from Borrowers for delivery to [Assignor
Lender and] Assignee Lender, new executed Notes evidencing Assignee
Lender’s [and
Assignor Lender’s respective] Pro Rata Share[s] in the Loans after
giving effect to the assignment described in Section 1.  Each new Note will be issued in the
aggregate maximum principal amount of the [applicable] Commitment [of the
Lender to whom such Note is issued]  OR  [the Assignee Lender].


 


3.                                       REPRESENTATIONS,
WARRANTIES AND COVENANTS


 


3.1                                 Assignee
Lender’s Representations, Warranties and Covenants.  Assignee Lender hereby represents, warrants,
and covenants the following to Assignor Lender and Agent:


 


(a)                                  This
Agreement is a legal, valid, and binding agreement of Assignee Lender,
enforceable according to its terms;


 


(b)                                 The
execution and performance by Assignee Lender of its duties and obligations
under this Agreement and the Loan Documents will not require any registration
with, notice to, or consent or approval by any Governmental Authority;


 


(c)                                  Assignee
Lender is familiar with transactions of the kind and scope reflected in the
Loan Documents and in this Agreement;


 


(d)                                 Assignee
Lender has made its own independent investigation and appraisal of the financial
condition and affairs of each Credit Party, has conducted its own evaluation of
the Loans and 


 


131

















 


Letter of Credit Obligations, the Loan Documents and
each Credit Party’s creditworthiness, has made its decision to become a Lender
to Borrowers under the Credit Agreement independently and without reliance upon
Assignor Lender or Agent, and will continue to do so;


 


(e)                                  Assignee
Lender is entering into this Agreement in the ordinary course of its business,
and is acquiring its interest in the Loans and Letter of Credit Obligations for
its own account and not with a view to or for sale in connection with any
subsequent distribution; provided, however, that at all times the distribution
of Assignee Lender’s property shall, subject to the terms of the Credit
Agreement, be and remain within its control;


 


(f)                                    No
future assignment or participation granted by Assignee Lender pursuant to
Section 8.1 of the Credit Agreement will require Assignor Lender, Agent,
or Borrower to file any registration statement with the Securities and Exchange
Commission or to apply to qualify under the blue sky laws of any state;


 


(g)                                 Assignee
Lender has no loans to, written or oral agreements with, or equity or other
ownership interest in any Credit Party;


 


(h)                                 Assignee
Lender will not enter into any written or oral agreement with, or acquire any
equity or other ownership interest in, any Credit Party without the prior
written consent of Agent; and


 


(i)                                     As
of the Effective Date, Assignee Lender (i) is entitled to receive payments of
principal and interest in respect of the Obligations without deduction for or
on account of any taxes imposed by the United States of America or any
political subdivision thereof , (ii) is not subject to capital adequacy or
similar requirements under Section 1.10(a) of the Credit Agreement, (iii)
does not require the payment of any increased costs under Section 1.10(b)
of the Credit Agreement, and (iv) is not unable to fund LIBOR Loans under Section 1.10(b)
of the Credit Agreement, ] and Assignee Lender will indemnify Agent from and
against all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, or expenses that result from Assignee Lender’s failure
to fulfill its obligations under the terms of Section 1.11(c) of the
Credit Agreement [or from any other inaccuracy in the foregoing.


 


3.2                                 Assignor
Lender’s Representations, Warranties and Covenants.  Assignor Lender hereby represents, warrants
and covenants the following to Assignee Lender:


 


(a)                                  Assignor
Lender is the legal and beneficial owner of the Assigned Amount;


 


(b)                                 This
Agreement is a legal, valid and binding agreement of Assignor Lender,
enforceable according to its terms;


 


(c)                                  The
execution and performance by Assignor Lender of its duties and obligations
under this Agreement and the Loan Documents will not require any registration
with, notice to or consent or approval by any Governmental Authority;


 


(d)                                 Assignor
Lender has full power and authority, and has taken all action necessary to
execute and deliver this Agreement and to fulfill the obligations hereunder and
to consummate the transactions contemplated hereby;


 


(e)                                  Assignor
Lender is the legal and beneficial owner of the interests being assigned
hereby, free and clear of any adverse claim, lien, encumbrance, security
interest, restriction on transfer, purchase option, call or similar right of a
third party; and


 


132

















 


(f)                                    This
Assignment by Assignor Lender to Assignee Lender complies, in all material
respects, with the terms of the Loan Documents.


 


4.                                       LIMITATIONS
OF LIABILITY


 


Neither Assignor Lender (except as provided in Section 3.2)
nor Agent makes any representations or warranties of any kind, nor assumes any
responsibility or liability whatsoever, with regard to (a) the Loan Documents
or any other document or instrument furnished pursuant thereto or the Loans,
Letter of Credit Obligations or other Obligations, (b) the creation, validity,
genuineness, enforceability, sufficiency, value or collectibility of any of
them, (c) the amount, value or existence of the Collateral,  (d) the perfection or priority of any Lien
upon the Collateral, or (e) the financial condition of any Credit Party or
other obligor or the performance or observance by any Credit Party of its
obligations under any of the Loan Documents. 
Neither Assignor Lender nor Agent has or will have any duty, either
initially or on a continuing basis, to make any investigation, evaluation,
appraisal of, or any responsibility or liability with respect to the accuracy
or completeness of, any information provided to Assignee Lender which has been
provided to Assignor Lender or Agent by any Credit Party.  Nothing in this Agreement or in the Loan
Documents shall impose upon the Assignor Lender or Agent any fiduciary
relationship in respect of the Assignee Lender.


 


5.                                       FAILURE
TO ENFORCE


 


No failure or delay on the part of Agent or Assignor
Lender in the exercise of any power, right, or privilege hereunder or under any
Loan Document will impair such power, right, or privilege or be construed to be
a waiver of any default or acquiescence therein.  No single or partial exercise of any such power, right, or
privilege will preclude further exercise thereof or of any other right, power,
or privilege.  All rights and remedies
existing under this Agreement are cumulative with, and not exclusive of, any
rights or remedies otherwise available.


 


6.                                       NOTICES


 


Unless otherwise specifically provided herein, any
notice or other communication required or permitted to be given will be in
writing and addressed to the respective party as set forth below its signature
hereunder, or to such other address as the party may designate in writing to
the other.


 


7.                                       AMENDMENTS
AND WAIVERS


 


No amendment, modification, termination, or waiver of
any provision of this Agreement will be effective without the written
concurrence of Assignor Lender, Agent and Assignee Lender.


 


8.                                       SEVERABILITY


 


Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under
applicable law.  In the event any
provision of this Agreement is or is held to be invalid, illegal, or
unenforceable under applicable law, such provision will be ineffective only to
the extent of such invalidity, illegality, or unenforceability, without
invalidating the remainder of such provision or the remaining provisions of the
Agreement.  In addition, in the event
any provision of or obligation under this Agreement is or is held to be
invalid, illegal, or unenforceable in any jurisdiction, the validity, legality,
and enforceability of the remaining provisions or obligations in any other
jurisdictions will not in any way be affected or impaired thereby.


 


133

















 


9.                                       SECTION
TITLES


 


Section and Subsection titles in this Agreement are
included for convenience of reference only, do not constitute a part of this
Agreement for any other purpose, and have no substantive effect.


 


10.                                 SUCCESSORS
AND ASSIGNS


 


This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.


 


11.                                 APPLICABLE
LAW


 


THIS AGREEMENT WILL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF  NEW YORK  APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN THAT STATE.


 


12.                                 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, will be deemed an original and all of which shall together
constitute one and the same instrument.


 


[Signature
page follows]


 


IN WITNESS WHEREOF, this Agreement has been duly
executed as of the date first written above.


 


	
  ASSIGNEE
  LENDER:  

  	
  ASSIGNOR
  LENDER:  

  
	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
  By: 

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Notice Address:

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


	
  ACKNOWLEDGED AND CONSENTED TO:

  	
   

  
	
   

  	
   

  
	
  GENERAL ELECTRIC CAPITAL

  CORPORATION, as Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  [ADD WHEN NO EVENT OF DEFAULT

  	
   

  
					



 


134

















 


	
  IS CONTINUING:]

  	
   

  
	
   

  	
   

  
	
  ACCEPTED AND AGREED

  	
   

  
	
   

  	
   

  
	
  DAYTON SUPERIOR CORPORATION

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
					



 


135

















 


SCHEDULE 2.1


 


Assignor Lender’s Loans


 


	
  Principal Amount

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Revolving Loan

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Accrued Interest

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Unused Line Fee

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Other + or -$

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
   

  	
   

  



 


All determined as of the
Effective Date.


 


136