-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Af2AxvkblL9YalzqLzrXpDyXcs3X02don8cOGfroMZWoOcl2XOY/rfphBaeO/sav fP81iV1nK8duDVgg8M/AyA== 0001157523-06-011917.txt : 20061205 0001157523-06-011917.hdr.sgml : 20061205 20061205170527 ACCESSION NUMBER: 0001157523-06-011917 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20061130 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Regulation FD Disclosure ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20061205 DATE AS OF CHANGE: 20061205 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DAYTON SUPERIOR CORP CENTRAL INDEX KEY: 0000854709 STANDARD INDUSTRIAL CLASSIFICATION: STEEL PIPE & TUBES [3317] IRS NUMBER: 310676346 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-11781 FILM NUMBER: 061258156 BUSINESS ADDRESS: STREET 1: 7777 WASHINGTON VILLAGE DRIVE STREET 2: SUITE 130 CITY: DAYTON STATE: OH ZIP: 45459 BUSINESS PHONE: 9374287172 MAIL ADDRESS: STREET 1: 7777 WASHINGTON VILLAGE DRIVE STREET 2: SUITE 130 CITY: DAYTON STATE: OH ZIP: 45459 8-K 1 a5288293.txt DAYTON SUPERIOR CORP. 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934 Date of Report (Date of earliest event reported): November 30, 2006 Dayton Superior Corporation (Exact name of Registrant as specified in its charter) Ohio 1-11781 31-0676346 - -------------------------------------------------------------------------------- (State or other jurisdiction of (Commission (IRS Employer incorporation or organization) File Number) Identification No.) 7777 Washington Village Drive, Dayton, Ohio 45459 - -------------------------------------------------------------------------------- (Address of principal executive offices) (Zip code) 937-428-6360 ------------ (Registrant's telephone number including area code) Not applicable -------------- (Former name and former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 1.01 Entry into a Material Definitive Agreement On December 1, 2006, Dayton Superior Corporation (the "Company") entered into an amendment (the "Amendment") to its Credit Agreement dated as of January 30, 2004 with General Electric Capital Corporation and GMAC Commercial Finance LLC. The Amendment extends the maturity of the revolving credit facility from May 31, 2008 to July 31, 2008, increases the existing commitments under the facility by $35.0 million to $130.0 million and amends the definition of "change of control" in the events of default provisions of the facility. A copy of the Amendment is attached to this Report as Exhibit 4.1 and incorporated herein by reference. On December 4, 2006, the Company entered into a Fifth Supplemental Indenture (the "Supplemental Indenture") with United States Trust Company which amends the Indenture dated as of June 16, 2000, as amended (the "Indenture"), with respect to the Company's 13% Senior Subordinated Notes Due 2009 (the "Notes"). The Supplemental Indenture revises the calculation of the amount of indebtedness the Company may incur under its credit facilities pursuant to clause 2 of the definition of "Permitted Indebtedness" contained in the Indenture. A copy of the Supplemental Indenture is attached to this Report as Exhibit 4.2 and incorporated herein by reference. Item 7.01 Regulation FD Disclosure On November 30, 2006, the Company issued a press release announcing the extension of the expiration time of its previously announced solicitation of consent from holders of the Notes to the amendment of the Indenture by the Supplemental Indenture. A copy of the press release is attached as Exhibit 99.1 to this Report and is incorporated herein by reference. On December 4, 2006, Dayton Superior Corporation issued a press release announcing that it had received the requisite consents to enter into the Supplemental Indenture amending the Indenture and also had entered into the Amendment. A copy of the press release is attached as Exhibit 99.2 to this Report and is incorporated herein by reference. The foregoing information (including the exhibits hereto referenced in this Item 7.01) is being furnished under "Item 7.01 Regulation FD Disclosure." Such information (including the exhibits hereto referenced in this Item 7.01) shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, except as shall be expressly set forth by specific reference in such filing. The filing of this Report and the furnishing of the information pursuant to Item 7.01 (including the exhibits hereto referenced in this Item 7.01) do not mean that such information is material or that disclosure of such information is required. Item 9.01 Financial Statements and Exhibits (c) Exhibits. The following are furnished as exhibits to this Form 8-K pursuant to Item 601 of Regulation S-K: 4.1 Amendment No. 4 dated as of December 1, 2006 among the Company, General Electric Capital Corporation and GMAC Commercial Finance LLC. 4.2 Fifth Supplemental Indenture dated as of December 4, 2006 between the Company and United States Trust Company of New York. 99.1 Press Release of the Company dated November 30, 2006. 99.2 Press Release of the Company dated December 4, 2006. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. DAYTON SUPERIOR CORPORATION Date: December 5, 2006 By: /s/ Edward J. Puisis --------------------------------- Edward J. Puisis Executive Vice President and Chief Financial Officer EXHIBIT INDEX Exhibit 4.1 Amendment No. 4 dated as of December 1, 2006 among the Company, General Electric Capital Corporation and GMAC Commercial Finance LLC. Exhibit 4.2 Fifth Supplemental Indenture dated as of December 4, 2006 between the Company and United States Trust Company of New York. Exhibit 99.1 Press Release dated November 30, 2006 Exhibit 99.2 Press Release dated December 4, 2006 EX-4.1 2 a5288293ex4-1.txt EXHIBIT 4.1 Exhibit 4.1 AMENDMENT NO. 4 --------------- This AMENDMENT No. 4 dated as of December 1, 2006 ("Amendment No.4"), is entered into by and among DAYTON SUPERIOR CORPORATION, an Ohio corporation ("Borrower"), the persons designated as "Lenders" on the signature pages hereto, and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as Agent. WHEREAS, Borrower, the other Credit Parties, the Lenders (as defined therein) and Agent are party to the Credit Agreement dated as of January 30, 2004, as amended by Amendment No. 1, dated June 30, 2004, Amendment No. 2, dated February 23, 2005, and Amendment No. 3, dated September 29, 2006 ("Original Credit Agreement"; all capitalized terms defined in the Original Credit Agreement and not otherwise defined herein to have the meanings assigned thereto in the Original Credit Agreement or in Annex A thereto); and WHEREAS, Borrower has requested that the Original Credit Agreement be amended in the manner set forth below. NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, Borrower, Credit Parties, the Lenders and Agent agree as follows: SECTION 1. AMENDMENTS ---------- Subject to the satisfaction of the conditions to effectiveness referred to in Section 2 below, the Original Credit Agreement is hereby amended as follows: (a) Section 1.3(a) of the Original Credit Agreement is amended by replacing the date "June 30, 2004" appearing therein with the date "December 1, 2006". (b) Annex A of the Original Credit Agreement is amended as follows: (i) The definition of "Borrowing Base" is amended by replacing the dollar figure "$10,000,000" appearing in clause (f) thereof, with the dollar figure "$15,000,000". (ii) The definition of "Change of Control" is amended and restated in its entirety as follows: "Change of Control" means and includes: (a) prior to the consummation of an IPO, any of the following (i) Odyssey Investment Partners and its Related Parties cease to collectively beneficially own either (x) more than 50% of the voting power 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 (y) more than 50% of the voting power of the issued and outstanding shares of Stock of a corporation of which Borrower is a wholly owned Subsidiary having the right to vote for the election of directors of such corporation under ordinary circumstances; or (ii) 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), and (b) from and after the consummation of an IPO, any of the following (i) (x) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), other than Odyssey Investment Partners, one or more of its Related Parties or a Permitted Group, shall become, or obtain rights (whether by means or warrants, options or otherwise) to become, the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act, except that such person or group shall be deemed to have beneficial ownership of all shares that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 35% of the voting power 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, and (y) Odyssey Investment Partners and its Related Parties and any Permitted Group collectively "beneficially own" (as defined above), directly or indirectly, in the aggregate a lesser percentage of the voting power 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 and do not have the right or ability to designate for election a majority of the Board of Directors of Borrower; or (ii) 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). (c) For the purposes of clause (b) of this definition, a person or group shall be deemed to beneficially own Stock in a person held by a parent entity if such person or group beneficially owns (as defined above) more than 50% of the issued and outstanding shares of Stock of such parent entity having the right to vote for the election of directors of such parent entity under ordinary circumstances. (iii) The definition of "Commitments" is amended by replacing the phrase "ninety five million dollars ($95,000,000)" appearing therein with the phrase "one hundred thirty million dollars ($130,000,000)". (iv) The definition of "Revolving Loan Commitment" is amended by replacing the phrase "ninety five million dollars ($95,000,000)" appearing therein with the phrase "one hundred thirty million dollars ($130,000,000)". (v) The definition of "Termination Date" is amended by replacing the date "May 31, 2008" appearing therein with the date "July 31, 2008". (vi) The following definitions are added to Annex A in the appropriate alphabetical places: "Amendment No. 3" means Amendment No. 3, dated as of September 29, 2006, to this Agreement. "Amendment No. 4" means Amendment No. 4, dated as of December 1, 2006, to this Agreement. 2 "Exchange Act" has the meaning ascribed to it in the definition of "Change of Control." "IPO" means an initial public offering of common Stock by Borrower pursuant to an effective registration statement under the Securities Act of 1933, as amended, as a result of which at least 15% of Borrower's total issued and outstanding common Stock has been distributed. "Permitted Group" means any group of investors that is deemed to be a "person" (as that term is used in Section 13(d)(3) of the Exchange Act) by virtue of a Voting Agreement or any similar agreement, as the same may be amended, modified or supplemented from time to time; provided, however, that no single Person (other than Odyssey Investment Partners and its Related Parties) beneficially owns (together with its Affiliates) more of the voting power 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, that is beneficially owned by such group of investors than is then collectively beneficially owned by Odyssey Investment Partners and its Related Parties in the aggregate. "Related Party" means: (1) any controlling stockholder, 50% (or more) owned Subsidiary, or immediate family member (in the case of an individual) of Odyssey Investment Partners; or (2) any trust, corporation, partnership, limited liability company or other entity, the beneficiaries, stockholders, partners, members, owners or Persons beneficially holding a 50% or more controlling interest of which consist of Odyssey Investment Partners and/or such other Persons referred to in the immediately preceding clause (1). "Voting Agreement" means any voting trust or similar agreement among current and/or former members of the management of Borrower and Odyssey Investment Partners and/or one or more of its Related Parties pursuant to which such current and/or former members of management grant Odyssey Investment Partners and/or its Related Parties the right to vote shares of Borrower's Stock. (vii) Annex B to the Original Credit Agreement is amended and restated as set forth on Schedule A hereto. SECTION 2. CONDITIONS TO EFFECTIVENESS --------------------------- This Amendment No. 4 shall become effective on the date (the "Effective Date") that the following conditions shall have been satisfied, so long as such date is on or prior to December 31, 2006: (a) Agent shall have received one or more counterparts of this Amendment No. 4 executed and delivered by Borrower, the other Credit Parties, Agent and the Lenders. 3 (b) Agent shall have received, in form and substance satisfactory to Agent, such consents under and amendments or supplements to the Senior Notes Indenture and Senior Subordinated Notes Indenture as may be necessary to permit the execution, delivery and performance of this Amendment No. 4, and the incurrence by Borrower of the maximum amount of Indebtedness contemplated by the Revolving Loan Commitments (giving effect to this Amendment No. 4). (c) Agent shall have received such lien search reports as it may have requested to reflect the continued perfection and priority of the security interests of Agent in the Collateral. (d) Agent shall have received evidence, satisfactory to Agent, and as of a date acceptable to Agent, of the good standing of Borrower and its qualification in those jurisdictions in which the failure to qualify would have a Material Adverse. (e) Agent shall have received a certificate of the secretary or an assistant secretary of Borrower certifying the incumbency of the officer executing this Amendment No. 4 and the corporate resolutions authorizing the execution, delivery and performance of this Amendment No. 4, each in form and substance satisfactory to Agent. (f) Agent shall have received a legal opinion, in form and substance satisfactory to Agent, from Latham & Watkins LLP, as to such matters relative to the authorization, execution and delivery o this Amendment No. 4, including, without limitation, that the incurrence by Borrower of Revolving Loans to the extent of the Revolving Loan Commitments, as increased by this Amendment No. 4, is permitted under each of the Senior Notes Indenture and Senior Subordinated Notes Indenture, as Agent shall have requested. (g) Agent shall have received that certain fee letter, dated as of December 1, 2006 between Borrower and Agent, in the form attached hereto as Exhibit A, executed and delivered by Borrower and Agent and the payment in immediately available funds of the fees payable on the Effective Date pursuant to such fee letter. (h) On such date, there shall be no continuing Default or Event of Default and the representations and warranties of Borrower contained in this Amendment No. 4 shall be true and correct in all material respects. SECTION 3. LIMITATION ON SCOPE ------------------- Except as expressly amended hereby, all of the representations, warranties, terms, covenants and conditions of the Loan Documents shall remain in full force and effect in accordance with their respective terms. The amendments set forth herein shall be limited precisely as provided for herein and shall not be deemed to be waivers of, amendments of, consents to or modifications of any term or provision of the Loan Documents or any other document or instrument referred to therein or of any transaction or further or future action on the part of Borrower or any other Credit Party requiring the consent of Agent or Lenders except to the extent specifically provided for herein. Agent and Lenders have not and shall not be deemed to have waived any of their respective rights and remedies against Borrower or any other Credit Party for any existing or future Defaults or Event of Default. 4 SECTION 4. MISCELLANEOUS ------------- (a) Borrower hereby represents and warrants as follows: (i) this Amendment No. 4 has been duly authorized and executed by Borrower, and the Original Credit Agreement, as amended by this Amendment No. 4, is the legal, valid and binding obligation of Borrower, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, moratorium and similar laws affecting the rights of creditors in general; and (ii) Borrower repeats and restates the representations and warranties of Borrower contained in the Original Credit Agreement as of the date of this Amendment No. 4 and as of the Effective Date, except to the extent such representations and warranties relate to a specific date. (b) This Amendment No. 4 is being delivered in the State of New York. (c) Borrower hereby ratifies and confirms the Original Credit Agreement as amended hereby, and agrees that, as amended hereby, the Original Credit Agreement remains in full force and effect. (d) Borrower agrees that all Loan Documents remains in full force and effect notwithstanding the execution and delivery of this Amendment No. 4. (e) This Amendment No. 4 may be executed by the 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 and the same instrument. (f) All references in the Loan Documents to the "Credit Agreement" and in the Original Credit Agreement as amended hereby to "this Agreement," "hereof," "herein" or the like shall mean and refer to the Original Credit Agreement as amended by this Amendment No. 4 (as well as by all subsequent amendments, restatements, modifications and supplements thereto). (g) Each of the following provisions of the Original Credit Agreement is hereby incorporated herein by this reference with the same effect as though set forth in its entirety herein, mutatis mutandis, and as if "this Agreement" in any such provision read "this Amendment No. 4": Section 9.3 (Notices), Section 9.6, (Severability), Section 9.8 (Headings), Section 9.9 (Applicable Law), Section 9.12 (Construction), Section 9.15 (Waiver of Jury Trial) and Section 9.17 (Entire Agreement). [signature pages follow] 5 WITNESS the due execution hereof by the respective duly authorized officers of the undersigned as of the date first written above. BORROWER: DAYTON SUPERIOR CORPORATION By: /s/ Edward J. Puisis -------------------- Name: Edward J. Puisis Executive Vice President and Chief Financial Officer [signatures continue on the next page] 6 AGENT AND LENDERS: GENERAL ELECTRIC CAPITAL CORPORATION, as Agent, an L/C Issuer and a Lender By: /s/ Daniel D. McCready ---------------------- Name: Daniel D. McCready Title: Its Duly Authorized Signatory [signatures continue on the next page] 7 GMAC COMMERCIAL FINANCE LLC, as a Lender By: /s/ Robert J. Brandow --------------------- Name: Robert J. Brandow Title: Director 8 Schedule A ---------- ANNEX B (from Annex A - Commitments definition) to CREDIT AGREEMENT PRO RATA SHARES AND COMMITMENT AMOUNTS Lender(s) --------- Revolving Loan Commitment $65,000,000 (including a Swing Line Commitment of $8,000,000) General Electric Capital Corporation Revolving Loan Commitment $65,000,000 GMAC Commercial Finance LLC Schedule A Exhibit A --------- Exhibit A EX-4.2 3 a5288293ex4-2.txt EXHIBIT 4.2 Exhibit 4.2 Execution Version ================================================================================ DAYTON SUPERIOR CORPORATION 13% SENIOR SUBORDINATED NOTES DUE 2009 FIFTH SUPPLEMENTAL INDENTURE DATED AS OF DECEMBER 4 , 2006 THE BANK OF NEW YORK TRUST COMPANY, N.A. AS TRUSTEE ================================================================================ 1 SUPPLEMENTAL INDENTURE, dated as of December 4, 2006 (this "Supplemental Indenture"), between DAYTON SUPERIOR CORPORATION, an Ohio corporation (the "Company"), and THE BANK OF NEW YORK TRUST COMPANY, N.A. a national banking association duly organized under the laws of the United States, as successor trustee (the "Trustee"). WHEREAS, the Company and the Trustee are parties to an Indenture, dated as of June 16, 2000 (as amended to date, the "Indenture"), pursuant to which the Company issued its 13% Senior Subordinated Notes Due 2009 (the "Notes"); WHEREAS, the Board of Directors of the Company has determined that it is in the best interests of the Company to authorize and approve a proposed amendment to a provision of the Indenture (the "Proposed Amendment"); WHEREAS, Section 9.02 of the Indenture provides that the Company and the Trustee may amend the Indenture and the Notes with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding; WHEREAS, the Company is soliciting consents pursuant to a supplement dated November 30, 2006 (the "Supplement") to the Consent Solicitation Statement, dated November 10, 2006 and the Consent Solicitation Statement, dated November 10, 2006 (collectively, the "Consent Solicitation Statement"), and accompanying Consent Letter, from the Holders of the Notes in connection with the Proposed Amendment as described in the Consent Solicitation Statement (the "Consent Solicitation"); WHEREAS, the Holders of at least a majority in principal amount of the Notes have consented to the Proposed Amendment to a provision of the Indenture in accordance with Section 9.02 of the Indenture and to the other provisions of this Supplemental Indenture; and WHEREAS, the execution and delivery of this Supplemental Indenture have been duly authorized and all conditions and requirements necessary to make this Supplemental Indenture a valid and binding agreement have been duly performed and complied with; NOW, THEREFORE, for and in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, it is mutually covenanted and agreed, for the equal proportionate benefit of all Holders of the Notes, as follows: ARTICLE I. AMENDMENT TO ARTICLE I Section 1.1 Paragraph (2) of the definition of "Permitted Indebtedness" in Section 1.01 of the Indenture is hereby amended to read in its entirety as set forth below: 2 (2) Indebtedness of the Company or any of its Restricted Subsidiaries incurred pursuant to one or more Credit Facilities in an aggregate principal amount at any time outstanding pursuant to this clause (2) not to exceed the greater of $130.0 million or the Borrowing Base; provided that the amount of Indebtedness permitted to be incurred pursuant to Credit Facilities in accordance with this clause (2) shall be in addition to any Indebtedness permitted to be incurred pursuant to Credit Facilities in reliance on, and in accordance with, clauses (7), (13) and (15) below; and provided further that any Indebtedness outstanding under the Senior Credit Facility on the Issue Date shall initially be deemed to be incurred under this clause (2) and shall initially be the only Indebtedness deemed to have been incurred under this clause (2); Section 1.2 The following definition of "Borrowing Base" in is hereby added to Section 1.01 of the Indenture: "Borrowing Base" means, as of any date, the sum of 75% of accounts receivable, net, and 60% of the sum of inventories and rental equipment, net (each as shown on the Company's most recently available consolidated balance sheet as of such date); provided that any accounts receivable, inventories or rental equipment that have been sold, conveyed or otherwise transferred to a Securitization Entity in connection with a Qualified Securitization Transaction shall not be included when calculating the Borrowing Base. ARTICLE II. PAYMENT TO HOLDERS Section 2.1 The term "Qualifying IPO" means any one or more public offerings pursuant to a registration statement on Form S-1 under the Securities Act of 1933 of shares of the Company's common stock pursuant to which the Company raises aggregate gross proceeds of at least $50.0 million. Section 2.2 Pursuant to the Consent Solicitation, the Company hereby agrees to make a cash payment to each Holder of record as of 5:00 p.m. (New York City time) on November 9, 2006 that delivered, and did not revoke, a duly executed consent to the Proposed Amendment prior to 5:00 p.m. (New York City time), on December 1, 2007, in the amount of $5.00 per $1,000 in outstanding principal amount of Notes held by such Holder on November 9, 2006. Section 2.3 Pursuant to the Consent Solicitation, the Company hereby agrees to make a cash payment to each Holder of record as of 5:00 p.m. (New York City time) on May 1, 2007, if and only if the Company has not consummated a Qualifying IPO prior to that date, in the amount of $2.50 per $1,000 in outstanding principal amount of Notes held by such Holder on May 1, 2007. Section 2.4 Pursuant to the Consent Solicitation, the Company hereby agrees to make a cash payment to each Holder of record as of 5:00 p.m. (New York City time) on June 1, 2007, if and only if the Company has not consummated a Qualifying IPO prior to that date, in the amount of $2.50 per $1,000 in outstanding principal amount of Notes held by such Holder on June 1, 2007. 3 Section 2.5 Payments, if any, pursuant to Sections 2.2, 2.3 and 2.4 shall be made reasonably promptly after the dates referred to in such Sections. ARTICLE III. MISCELLANEOUS Section 3.1 The Trustee accepts the trusts created by the Indenture, as amended and supplemented by this Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Indenture, as amended and supplemented by this Supplemental Indenture. Section 3.2 All capitalized terms used and not defined herein shall have the respective meanings assigned to them in the Indenture. Section 3.3 Upon execution and delivery of this Supplemental Indenture, the terms and conditions of this Supplemental Indenture shall be part of the terms and conditions of the Indenture for any and all purposes, and all the terms and conditions of both shall be read together as though they constitute one and the same instrument, except that in case of conflict, the provisions of this Supplemental Indenture will control. Section 3.4 Each of the Company and the Trustee hereby confirms and reaffirms the Indenture in every particular except as amended and supplemented by this Supplemental Indenture. Section 3.5 Notwithstanding an earlier execution date, the provisions of this Supplemental Indenture shall not become operative until such time as the Company notifies the Information Agent for the Consent Solicitation, Global Bondholder Services Corporation, that each of the conditions set forth in the Consent Solicitation Statement, including the absence of any law or regulation that would, and the absence of any injunction or action or other proceeding (pending or threatened) that could, in the Company's sole judgment, make unlawful or invalid or enjoin the implementation of the Proposed Amendment or that would, in the Company's sole judgment, question the legality or validity thereof. The Company shall promptly notify the Trustee in writing that this Supplemental Indenture has become operative. Section 3.6 All covenants and agreements in this Supplemental Indenture by the Company or the Trustee shall bind their respective successors and assigns, whether so expressed or not. Section 3.7 In case any provisions in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 4 Section 3.8 Nothing in this Supplemental Indenture, express or implied, shall give to any Person, other than the parties hereto and their successors under the Indenture and the Holders of the Notes, any benefit or any legal or equitable right, remedy or claim under the Indenture. Section 3.9 The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together shall represent the same agreement. One signed copy is enough to prove this Supplemental Indenture. Section 3.10 This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York, as applied to contracts made and performed within the State of New York, without regard to principles of conflicts of law. Each of the parties hereto agrees to submit to the jurisdiction of the courts of the State of New York in any action or proceeding arising out of or relating to this Supplemental Indenture. Section 3.11 All provisions of this Supplemental Indenture shall be deemed to be incorporated in, and made a part of, the Indenture; and the Indenture, as amended and supplemented by this Supplemental Indenture, shall be read, taken and construed as one and the same instrument. Section 3.12 The recitals contained herein shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee shall not be liable or responsible for the validity or sufficiency of this Supplemental Indenture or the due authorization of this Supplemental Indenture by the Company. In entering into this Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct of, affecting the liability of or affording protection to the Trustee, whether or not elsewhere herein so provided. 5 IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first written above. DAYTON SUPERIOR CORPORATION By: /s/ Edward J. Puisis -------------------- Name: Edward J. Puisis Title: Executive Vice President and Chief Financial Officer THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee By: /s/ Roxane Ellwanger -------------------- Name: Roxane Ellwanger Title: Assistant Vice President 6 EX-99.1 4 a5288293ex99-1.txt EXHIBIT 99.1 Exhibit 99.1 FOR IMMEDIATE RELEASE For further information contact: Edward J. Puisis Dayton Superior Corporation Executive Vice President & CFO 7777 Washington Village Dr., Suite 130 Phone: 937 428-7172 Dayton, OH 45459 Fax: 937 428-9115 Dayton Superior Announces Changes in its Solicitation of Consent from Holders of its 13% Senior Subordinated Notes due 2009 DAYTON, Ohio, November 30, 2006 - Dayton Superior Corporation ("Dayton") announced today that it is extending the expiration time of its previously announced solicitation of a consent from holders of record as of November 9, 2006, of its outstanding 13% Senior Subordinated Notes due 2009 (the "Notes") from 5:00 p.m., New York City time, on November 29, 2006 to 5:00 p.m., New York City time, on December 1, 2006, unless further extended or terminated by Dayton. Dayton also announced that it is amending the terms of the consent solicitation pursuant to a supplement dated November 30, 2006 (the "Supplement") to the Consent Solicitation Statement, dated November 10, 2006 (the "Original Solicitation Statement"). The Supplement seeks an amendment to the Indenture governing the Notes to revise the calculation of the amount of indebtedness Dayton may incur under Credit Facilities pursuant to clause (2) of the definition of Permitted Indebtedness contained in the Indenture. The proposed amendment to the definition of Permitted Indebtedness has not changed since the Original Solicitation Statement. The Supplement also includes the following additional terms: o An increase in the consent payment offered by Dayton from $3.75 to $5.00 in cash for each $1,000 in principal amount of Notes for which consents are properly delivered and not revoked prior to the expiration of the consent solicitation; o An additional payment of $2.50 for each $1,000 in principal amount of the then outstanding Notes to holders of record on May 1, 2007 (unless Dayton has consummated a "Qualifying IPO," as defined below, on or prior to that date); o An additional payment of $2.50 for each $1,000 in principal amount of the then outstanding Notes to holders of record on June 1, 2007 (unless Dayton has consummated a "Qualifying IPO" on or prior to that date); and o A "Qualifying IPO" will be defined as any one or more public offerings pursuant to a registration statement on Form S-1 under the Securities Act of 1933 of shares of Dayton's common stock pursuant to which Dayton raises aggregate gross proceeds of at least $50.0 million. All other aspects of the consent solicitation (as described in the Original Solicitation Statement) remain unchanged and in effect. Requests for additional copies of the Supplement, the Consent Solicitation Statement, the Letter of Consent or other related documents should be directed to Global Bondholder Services Corporation, the information agent, at (866) 857-2200 (toll-free) or (212) 430-3774. Questions regarding the consent solicitation should be directed to Francesco Cipollone of Morgan Stanley & Co., Incorporated, and the solicitation agent, at (800) 624-1808 (toll-free) or (212) 761-1941 (collect). This announcement is not a solicitation of a consent with respect to any securities. The consent solicitation is being made solely by the Consent Solicitation Statement dated November 10, 2006, as amended by the Supplement. Dayton Superior is the leading North American provider of specialized products consumed in non-residential, concrete construction, and we are the largest concrete forming and shoring rental company serving the domestic, non-residential construction market. Our products can be found on construction sites nationwide and are used in non-residential construction projects, including: infrastructure projects, such as highways, bridges, airports, power plants and water management projects; institutional projects, such as schools, stadiums, hospitals and government buildings; and commercial projects, such as retail stores, offices and recreational, distribution and manufacturing facilities. This press release contains certain forward-statements (as such term is defined in the Private Securities Litigation Reform Act of 1995). These statements that are not statements of historical fact and may include a number of risks and uncertainties with respect to our financial condition, results of operations and business. Forward-looking statements include statements that may relate to our plans, objectives, goals, strategies, future events, future revenues or performance, capital expenditures, financing needs and other information that is not historical information and can be identified by the use of terminology such as "subject to", "believes", "anticipates," "plans," "expects," "intends," "estimates," "projects," "may," "should," "can," the negatives thereof, variations thereon and similar expressions, or by discussions of strategy. All forward-looking statements are based upon our current expectations and various assumptions. We believe there is a reasonable basis for our expectations and beliefs, but they are inherently uncertain, we may not realize our expectations and our beliefs may not prove correct. Actual results could differ materially from those described or implied by such forward-looking statements. Factors that may materially affect such forward-looking statements include: depressed or fluctuating market conditions for our products and services; operating restrictions imposed by our existing debt; increased raw material costs and operating expenses; our ability to comply with environmental regulations and to absorb environmental investigation, remediation and compliance costs; the loss of certain key customers; the loss of key personnel; exposure to the local business risks of our Mexican operations and foreign sourcing partners; conflicts of interest with our major shareholder; our ability to increase manufacturing efficiency, leverage our purchasing power and broaden our distribution network; our ability to successfully identify, complete and integrate acquisitions; our ability to develop new products; the competitive nature of our industry in general, as well as our specific market areas; changes in prevailing interest rates and the availability of and terms of financing to fund the anticipated growth of our business; and labor disturbances. Consequently, such forward-looking statements should be regarded solely as our current plans, estimates and beliefs. You are cautioned not to place undue reliance on forward-looking statements. We cannot guarantee future results, events, levels of activity, performance or achievements. # # # EX-99.2 5 a5288293ex99-2.txt EXHIBIT 99.2 Exhibit 99.2 FOR IMMEDIATE RELEASE For further information contact: Edward J. Puisis Dayton Superior Corporation Executive Vice President & CFO 7777 Washington Village Dr., Suite 130 Phone: 937 428-7172 Dayton, OH 45459 Fax: 937 428-9115 Dayton Superior Successfully Completes Solicitation of Consent from Holders of its 13% Senior Subordinated Notes due 2009 and Amends its Revolving Credit Facility DAYTON, Ohio, December 4, 2006 - Dayton Superior Corporation ("Dayton") announced today that it has received the requisite consents to amend the indenture governing its 13% Senior Subordinated Notes due 2009. The purpose of the amendment is to amend the indenture to revise the calculation of the amount of indebtedness Dayton may incur under Credit Facilities pursuant to clause (2) of the definition of Permitted Indebtedness contained in the indenture. Additional details regarding the amendment are contained in Dayton's Consent Solicitation Statement dated November 10, 2006, as amended on November 30, 2006. The consent solicitation closed at 5:00 p.m. New York City time on December 1, 2006. The supplemental indenture giving effect to the amendment has been executed, and consents may no longer be revoked. Dayton also announced today that on December 1, 2006 it entered into an amendment to its revolving credit facility. The effectiveness of the amendment was conditioned on the closing of the consent solicitation and other customary conditions. The amendment extends the maturity of the facility from May 31, 2008 to July 31, 2008, increases the existing commitments under the revolving credit facility by $35.0 million to $130.0 million and amends the definition of "change of control" in the events of default provisions of that facility. Dayton Superior is the leading North American provider of specialized products consumed in non-residential, concrete construction, and we are the largest concrete forming and shoring rental company serving the domestic, non-residential construction market. Our products can be found on construction sites nationwide and are used in non-residential construction projects, including: infrastructure projects, such as highways, bridges, airports, power plants and water management projects; institutional projects, such as schools, stadiums, hospitals and government buildings; and commercial projects, such as retail stores, offices and recreational, distribution and manufacturing facilities. This press release contains certain forward-statements (as such term is defined in the Private Securities Litigation Reform Act of 1995). These statements that are not statements of historical fact and may include a number of risks and uncertainties with respect to our financial condition, results of operations and business. Forward-looking statements include statements that may relate to our plans, objectives, goals, strategies, future events, future revenues or performance, capital expenditures, financing needs and other information that is not historical information and can be identified by the use of terminology such as "subject to", "believes", "anticipates," "plans," "expects," "intends," "estimates," "projects," "may," "should," "can," the negatives thereof, variations thereon and similar expressions, or by discussions of strategy. All forward-looking statements are based upon our current expectations and various assumptions. We believe there is a reasonable basis for our expectations and beliefs, but they are inherently uncertain, we may not realize our expectations and our beliefs may not prove correct. Actual results could differ materially from those described or implied by such forward-looking statements. Factors that may materially affect such forward-looking statements include: depressed or fluctuating market conditions for our products and services; operating restrictions imposed by our existing debt; increased raw material costs and operating expenses; our ability to comply with environmental regulations and to absorb environmental investigation, remediation and compliance costs; the loss of certain key customers; the loss of key personnel; exposure to the local business risks of our Mexican operations and foreign sourcing partners; conflicts of interest with our major shareholder; our ability to increase manufacturing efficiency, leverage our purchasing power and broaden our distribution network; our ability to successfully identify, complete and integrate acquisitions; our ability to develop new products; the competitive nature of our industry in general, as well as our specific market areas; changes in prevailing interest rates and the availability of and terms of financing to fund the anticipated growth of our business; and labor disturbances. Consequently, such forward-looking statements should be regarded solely as our current plans, estimates and beliefs. You are cautioned not to place undue reliance on forward-looking statements. We cannot guarantee future results, events, levels of activity, performance or achievements. # # # -----END PRIVACY-ENHANCED MESSAGE-----