Exhibit 10.159 - STOCK PURCHASE AND PLEDGE AGREEMENT
THIS STOCK PURCHASE AND PLEDGE AGREEMENT ("Agreement") is made and entered
into this 7th day of March 1997, by and among Edward W. Rose, III ("Seller") and
Drew Industries Incorporated, a Delaware corporation (the "Company").
WHEREAS, Seller is a Director and Chairman of the Board of Directors of
the Company; and
WHEREAS, Seller owns and desires to sell to the Company Eight Hundred
Thousand (800,000) pre-split shares (the "Shares") of the Common Stock, par
value $.01, of the Company and the Company desires to purchase the Shares from
Seller.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and covenants contained herein, the receipt and sufficiency of which
are hereby acknowledged, Seller and the Company hereby agree as follows:
1. PURCHASE AND SALE OF THE SHARES
1.1 Transfer. On and subject to the terms and conditions set forth herein,
and in reliance on the respective representations, warranties and covenants of
the parties contained herein, Seller hereby sells, assigns, transfers, conveys
and delivers the Shares to the Company, and the Company hereby purchases and
acquires the Shares from Seller, for the consideration set forth in paragraph
1.2 hereof.
1.2 Delivery of the Shares and Purchase Price.
(a) The purchase price for the Shares is Twenty Six ($26.00) Dollars
per pre-split share or an aggregate of Twenty Million Eight Hundred Thousand
($20,800,000) Dollars, payable as set forth herein.
(b) Simultaneously with the execution and delivery of this
Agreement, Seller has delivered to Larry L. Schoenbrun, Esq., Gardere & Wynne
L.L.P., 1601 Elm Street, Suite 3000, Dallas, Texas 75201, as agent for Seller
solely for purposes of holding and delivering the Shares in accordance with this
Agreement (the "Agent"), a certificate or certificates representing the Shares
owned by Seller accompanied by an irrevocable stock power relating to the Shares
duly executed by Seller in blank with Seller's signature thereon guaranteed.
(c) Simultaneously with the execution and delivery of this
Agreement, the Company has delivered to Seller a non-negotiable promissory note
of the Company to the order of Seller in the principal amount of Twenty Million
Eight Hundred Thousand ($20,800,000) Dollars in the form annexed hereto as
Exhibit "A" (the "Note").
(d) Payment of the Note shall be secured by a lien on, and security
interest in, the Shares as provided in Section 2 hereof.
(e) Seller will promptly notify the Agent upon receipt of payment of
the Note, and thereupon the Agent will promptly deliver to the Company's
transfer agent, Chase Mellon Shareholder Services L.L.C., Company Items, 85
Challenger Road, Richfield Park, N.J. 07660, Attention: Agnes Martin, telephone:
(201) 296-4266, copy to Nathan Hill via telecopy to (212) 947-7628 or 947-7629,
all the Pledged Collateral (as defined in Section 2 hereof) with instructions to
reissue to the Company a certificate or certificates representing the Shares
purchased hereunder, and to reissue to Seller a certificate representing the
remaining shares of the Company's Common Stock registered in the name of Seller.
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2. SECURITY INTEREST
2.1 Secured Obligations. The Company hereby pledges to Seller, and grants
to Seller a first priority security interest in, and lien on the following
property (the "Pledged Collateral") to secure the prompt payment and performance
in full when due, whether at stated maturity, by acceleration or otherwise, of
the Note and all obligations of the Company existing under the Note and this
Agreement (the "Secured Obligations"):
(a) the Shares and the certificates representing the Shares and any
interest of the Company pertaining to the Shares and all dividends, cash,
options, warrants, rights, instruments and other property or proceeds from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Shares;
(b) all additional shares of stock issuable upon or with respect to
the Shares (which shares shall be deemed to be part of the Shares), and the
certificates representing or evidencing such additional shares and any interest
of the Company in such additional shares, and all dividends, cash, options,
warrants, rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of such shares; and
(c) all proceeds of the property described in clauses (a) and/or
(b).
(d) concurrently with the execution hereof, the Company shall
execute and deliver to Seller UCC-1 financing statements in form satisfactory to
Seller to reflect such pledge.
2.2 Voting Rights; Dividends; etc.
(a) As long as no Event of Default (as defined in Section 3 hereof)
shall have occurred and be continuing, Seller shall not be entitled to exercise
any voting and other consensual rights pertaining to the Shares or any part
thereof for any purpose.
(b) (i) any and all stock dividends or instruments and other
property received, receivable or otherwise distributed in exchange for any of
the Shares and (ii) any liquidating dividend in respect of the Shares or any
other distribution or other property received or receivable in respect of a
distribution in liquidation, or upon a merger or consolidation, or in respect of
a disposition of assets other than in the ordinary course of business, or in
connection with any insolvency proceeding, shall be, and shall be forthwith
delivered to the Agent to hold as Pledged Collateral and shall, if received by
the Company, be received in trust for the benefit of Seller, be segregated from
the other property or funds of the Company, and be forthwith delivered to the
Agent as Pledged Collateral in the same form as so received (in the case of
instruments, securities or similar property, together with any necessary
endorsement, stock power or other instrument of transfer).
2.3 Event of Default. Upon exercise by Seller of his remedies provided in
this Agreement following the occurrence and continuation of an Event of Default,
all rights to exercise the voting and other consensual rights the Company would
otherwise be entitled to exercise shall thereupon become vested in Seller and
Seller shall thereupon have the sole right to exercise such voting and other
consensual rights during the continuance of such Event of Default.
2.4 Transfer and Other Liens; Additional Shares. The Company agrees that
it will not (i) sell or otherwise dispose of, or grant any option or warrant
with respect to, any of the Pledged Collateral or (ii) create or permit to exist
any lien upon or with respect to any of the Pledged Collateral, except for the
lien and security interest created by this Agreement.
2.5 Remedies. If an Event of Default shall have occurred and be
continuing, then:
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(a) Seller may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to Seller, all the rights and remedies of a secured party on default under the
Uniform Commercial Code in effect in the State of Texas at that time, and Seller
may also without notice except as specified below, in his sole discretion, sell
the Pledged Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange, broker's board or at any of Seller's offices or
elsewhere, for cash, on credit or for future delivery, and at such price or
prices and upon such other terms as Seller may deem commercially reasonable,
irrespective of the impact of any such sales on the market price of the Pledged
Collateral. Seller may be the purchaser of any or all of the Pledged Collateral
at any such sale and shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Pledged Collateral sold at such sale, to use and apply any of the Secured
Obligations as a credit on account of the purchase price of any Pledged
Collateral payable at such sale. Each purchaser at any such sale shall hold the
property sold absolutely free from any claim or right on the part for the
Company, and the Company hereby waives (to the fullest extent permitted by law)
all rights of redemption, stay and/or appraisal that it now has or may at any
time in the future have under any rule of law or statute now existing or
hereafter enacted. The Company agrees that, to the extent notice of sale shall
be required by law, ten (10) days notice to the Company of the time and place of
any public sale or the time after which any private sale is to be made shall
constitute reasonable notice. Seller shall not be obligated to make any sale of
Pledged Collateral regardless of notice of sale having been given. Seller may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefore, and such sale may, without further notice, be made at
the time and place to which it was so adjourned. The Company hereby waives any
claims against Seller arising by reason of the fact that the price at which any
Pledged Collateral may have been sold at such a private sale was less than the
price that might have been obtained at a public sale, even if Seller accepts the
first offer received and does not offer such Pledged Collateral to more than one
offeree.
(b) The Company recognizes that, by reason of certain prohibitions
contained in applicable federal and state securities laws, Seller may be
compelled, with respect to any sale of all or any part of the Pledged
Collateral, to limit purchasers to those who will agree, among other things, to
acquire such Pledged Collateral for their own account, for investment and not
with a view to the distribution or resale thereof. The Company acknowledges that
any such private sales may be at prices and on terms less favorable to the
Company than those obtainable through a public sale without such restrictions
(including, without limitation, a public offering made pursuant to registration
under the Securities Act of 1933, as amended (the "Securities Act"), and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner and that Seller
shall have no obligation to engage in public sales and no obligation to delay
the sale of any Pledged Collateral for the period of time necessary to permit
the Company to register it for a form of public sale requiring registration
under the Securities Act or under applicable state securities laws, even if the
Company would agree to do so.
(c) If Seller determines to exercise its right to sell any or all of
the Pledged Collateral, then upon written request, the Company shall from time
to time furnish to Seller all such information as Seller may request (A) in
order to determine the number of shares and other instruments included in the
Pledged Collateral that may be sold by Seller as exempt transactions or exempt
securities under the Securities Act and the rules of the Securities and Exchange
Commission thereunder, or under applicable state laws, as the same are from time
to time in effect and (B) in order to otherwise facilitate any such sale.
2.6 Application of Proceeds. Any cash held by Seller as Pledged Collateral
and all cash proceeds received by Seller in respect of any sale of, collection
from, or other realization upon all or any part of the Pledged Collateral
pursuant to the exercise by Seller of his remedies as a secured creditor as
provided in this Agreement shall be applied promptly from time to time by Seller
(in such order as Seller shall in his sole discretion determine) to the payment
of the reasonable fees and expenses of Seller incurred pursuant to this
Agreement and to the payment of the Secured Obligations. Any amounts remaining
after such applications shall be remitted to the Company or as a court of
competent jurisdiction may otherwise direct. If the proceeds of the sale,
collection or other realization of
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or upon the Pledged Collateral are insufficient to cover the cost and expenses
of such sale, collection or realization after the payment in full of the Secured
Obligations, the Company shall remain liable for any deficiency.
2.7 Expenses. Upon exercise by Seller of his remedies provided in this
Agreement following the occurrence and continuation of an Event of Default, the
Company will upon demand pay to Seller the amount of any and all reasonable
expenses, including the reasonable fees and expenses of its counsel and of any
experts and agents, that Seller may incur in connection with (i) the custody of
preservation of, or the sale of, collection from or other realization upon, any
of the Pledged Collateral, (ii) the preservation, exercise or enforcement of any
of the rights of Seller hereunder or (iii) the failure of the Company to perform
or observe any of the provisions hereof.
2.8 Security Interest Absolute. All rights of and Seller's lien and
security interest hereunder, and all obligations of the Company hereunder, shall
be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of this Agreement or the
Note; or
(b) any change in the amount, time, manner or place of payment of,
or in any other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Agreement or the
Note.
2.9 Further Obligations. The Company agrees that at any time and from time
to time, at its expense, the Company will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or that Seller may reasonably request, in order to perfect and protect
any security interest granted or purported to be granted hereby or to enable
Seller to exercise and enforce its rights and remedies hereunder with respect to
the Shares.
2.10 Attorney-in-fact. The Company hereby appoints Seller as the Company's
attorney-in-fact, with full authority in the place and stead of the Company and
in the name of the Company or otherwise, from time to time in the discretion of
Seller, to take any action and to execute any instrument which Seller may deem
reasonably necessary or advisable to accomplish the purposes of this Agreement,
including, without limitation, to receive, endorse and collect all instruments
made payable to the Company representing any dividend, interest payment or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same. If the Company fails to perform any agreement
contained herein, Seller may perform, or cause performance of, such agreement,
and the expenses of Seller incurred in connection therewith shall be payable by
the Company.
2.11 Seller's Duty of Care. Other than the exercise of reasonable care in
the physical custody of the Pledged Collateral while held by the Secured Party
(or the Agent) hereunder, neither, Seller nor the Agent shall have any
responsibility for, or obligation or duty with respect to, all or any part of
the Pledged Collateral or any matter or proceeding arising out of or relating
thereto, including, without limitation, any obligation or duty to collect any
sums due with respect thereto or to protect or preserve any rights against prior
parties or any other rights pertaining thereto, it being understood and agreed
that the Company shall be responsible for preservation of all rights in the
Pledged Collateral. Without limiting the generality of the foregoing, Seller
shall be conclusively deemed to have exercised reasonable care in the custody of
the Pledged Collateral, if it takes such action, for purposes of preserving
rights in the Pledged Collateral, as the Company may reasonably request in
writing; provided, however, that no refusal failure, omission or delay by Seller
in complying with any such request shall be deemed to be a failure to exercise
reasonable care.
2.12 Distributions. The Company covenants and agrees that the Pledged
Collateral will be treated the same as outstanding shares of capital stock of
the Company with respect to any dividends, cash, options, warrants, rights,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the outstanding capital stock of the Company (i.e., it will treat the Shares
as if they were still outstanding).
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3. EVENTS OF DEFAULT. The term "Events of Default" shall mean any of the
following events:
(a) any representations or warranty made by the Company in or in
connection with this Agreement shall prove to have been false or misleading in
any material respect when made; or
(b) default shall be made in the payment of principal or interest as
provided in the Note, or other amount payable hereunder, when and as the same
shall become due and payable, whether at the scheduled due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or otherwise; or
(c) (i) any pledge or security interest in favor of Seller granted
hereunder, no longer provides the lien or priority contemplated herein or (ii)
the Company (or any successor thereto or representative thereof) shall claim or
assert that any other right or remedy of Seller hereunder shall not be
enforceable in accordance with its terms, or (iii) default shall be made in the
due observance or performance of any covenant, condition or agreement hereunder
or under the Note; provided, however, a default in the due observation or
performance of a non-monetary covenant, condition or agreement hereunder or
under the Note shall not be considered to be an Event of Default until and
unless Seller shall have given fifteen (15) days' notice of such default to the
Company and such default shall remain uncurred at the end of such 15 day period;
(d) the Company shall (i) apply for or consent to the appointment
of, or the taking of possession by, a receiver, custodian, trustee or liquidator
of itself or of all or a substantial part of its property, (ii) admit in writing
its inability, or be generally unable, to pay its debts as such debts become
due, (iii) make a general assignment for the benefit of its creditors, (iv)
commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter
in effect), (v) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts, (vi) fail to have vacated or discontinued in a period of
sixty (60) days, or acquiesce in writing to, any petition filed against it in an
involuntary case under such Bankruptcy Code or (vii) take any action for the
purpose of effecting any of the foregoing; or
(e) a proceeding or case shall be commenced in any court of
competent jurisdiction, seeking (or in any case previously commenced there shall
be sought) (i) the liquidation, reorganization, dissolution, winding-up, or
composition or readjustment of debts, of the Company, (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of the Company or of all or
any substantial part of its assets, (iii) similar relief in respect of the
Company or all or any substantial part of its assets under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment
of debts, including, without limitation, under the Federal Bankruptcy Code,
without the consent of the Company and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect, for a period of
sixty (60) days, or an order for relief against the Company shall be entered in
an involuntary case under such Federal Bankruptcy Code.
4. REPRESENTATIONS AND WARRANTIES.
4.1 Representations and Warranties of Seller. Seller represents and
warrants to, and agrees with, the Company as follows:
(a) Seller has all necessary power and authority to execute, deliver
and perform this Agreement. Neither the execution, delivery or performance of
this Agreement will violate (with or without the giving of notice or the lapse
of time or both) any contract to which Seller is bound or any order, writ,
injunction, judgment or decree to which Seller is a party.
(b) Seller owns the Shares beneficially and of record free and clear
of all mortgages, claims, liens, rights of first refusal or similar rights,
security interests, options, pledges or encumbrances of any kind whatsoever.
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(c) Seller has had access to all of the information with respect to
the Shares that he deems necessary to make a complete evaluation thereof, and
has had the opportunity to question the management of the Company and persons
acting on their behalf concerning the Shares.
(d) Seller acknowledges that the consideration to be paid by the
Company for the Shares hereunder represents a "discount" from the current market
price of the Shares and that the market price for the Shares could increase
substantially.
(e) Seller acknowledges that the Company has relied on the foregoing
representations and warranties and, but for such representations and warranties,
no purchase of the Shares would be made by the Company from Seller.
4.2 Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, Seller as follows:
(a) The Company has all necessary power and authority to execute,
deliver and perform this Agreement, the Note, and to consummate the transactions
contemplated hereby and thereby. Neither the execution, delivery or performance
of this Agreement will violate (with or without the giving of notice or the
lapse of time or both) the Articles of Incorporation or By-laws of the Company
or any contract to which the Company is bound or any order, writ, injunction,
judgment or decree to which the Company is a party, nor does the execution,
delivery or performance of this Agreement require the consent or approval of any
third party or governmental authority;
(b) The Company is acquiring the Shares not with a view to, or in
connection with, any offering, resale, disposition or any distribution thereof
within the meaning of the Securities Act, or any rule or regulation thereunder
(collectively the "Rules"), which offering, resale, disposition or distribution
would be in violation of the Act or any of the Rules;
(c) This Agreement and the Note have been duly authorized, executed
and delivered by the Company, and are the binding and enforceable obligations of
the Company enforceable against it in accordance with their terms;
(d) The Board of Directors of the Company has authorized the
reissuance of the shares of capital stock comprising the Pledged Collateral upon
Seller's exercise of its rights in respect to the Pledged Collateral in
accordance with Section 2.5 hereof. If such Pledged Collateral is sold pursuant
thereto, the shares of capital stock of the Company that constitute all or a
portion of the Pledged Collateral shall be duly and validly authorized, issued
and outstanding, and will be fully paid and non-assessable; and
(e) The pledge by the Company of the Pledged Collateral pursuant to
this Agreement creates a valid and perfected first lien security interest in the
Pledged Collateral, securing the payment and performance of the Secured
Obligations.
(f) The Company acknowledges that Seller has relied on the foregoing
representations and warranties and, but for such representations and warranties,
no sale of the Shares would be made by Seller to the Company.
4.3 Survival of Representations. All representations and warranties made
herein by Seller and by the Company shall survive the purchase and delivery of
the Shares.
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5. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be given (and shall be deemed to have been duly given upon receipt) by
delivery in person, telegram, telex, facsimile or other standard form of
telecommunication, or by registered or certified post-paid mail, return receipt
requested, and addressed as follows, or to such other address as any party may
notify the other in accordance with the provisions hereof:
Seller:
Edward W. Rose, III
Cardinal Investment Company, Inc.
500 Crescent Court, Suite 250
Dallas, Texas 75201
- copy to -
Gardere & Wynne, L.L.P.
1601 Elm Street, Suite 3000
Dallas, Texas 75201
Attention: Larry L. Schoenbrun, Esq.
The Company:
Drew Industries Incorporated
200 Mamaroneck Avenue
White Plains, New York 10601
Attention: Leigh J. Abrams, President and Chief Executive Officer
- copy to -
Harvey F. Milman, Esq.
Berlack, Israels & Liberman LLP
120 W. 45th Street
New York, New York 10036
or to such other address as any party shall have specified by notice given in
compliance with this Section 5, and shall be effective upon receipt.
6. ENTIRE AGREEMENT.
This Agreement and the Note constitute the entire agreement between the
parties with respect to the subject matter hereof and can be amended,
supplemented or changed only by a written instrument making specific reference
to this Agreement and duly executed by the party to be bound thereby. This
Agreement supersedes all prior agreements and understandings among the parties
with respect to the transactions contemplated hereby.
7. BINDING EFFECT; BENEFIT.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors and
assigns. Nothing contained in this Agreement, express or implied, is intended to
confer on any person other than the parties hereto or their respective heirs,
legal representatives, successors and assigns, any rights, remedies or
obligations or liabilities under or by reason of this Agreement.
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8. ASSIGNABILITY.
Neither this Agreement nor any of the rights or obligations hereunder may
be assigned without the prior written consent of the parties hereto and any
attempt to do so shall be of no force or effect.
9. APPLICABLE LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Texas without regard to the conflict of law principles
thereof. The Company hereby irrevocably submits, in any suit, action or
proceeding arising out of or relating to this Agreement or the Note or any of
the transactions contemplated hereby or thereby, to the jurisdiction of the
United States District Court for the Northern District of Texas and the
jurisdiction of any court of the State of Texas located in Dallas and waives any
and all objections to jurisdiction that it may have under the laws of the State
of Texas or the United States.
10. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same instrument. Executed signature pages to any counterpart instrument
may be detached and affixed to a single counterpart, which single counterpart
with multiple executed signature pages affixed thereto shall constitute the
original counterpart instrument. All of those counterpart pages shall be read as
though one, and they shall have the same force and effect as if all the signers
had executed a single signature page.
11. TAXES
The Company shall pay stock transfer taxes, if any, resulting from the
transaction contemplated herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first written above.
SELLER:
______________________________
Edward W. Rose, III
THE COMPANY:
DREW INDUSTRIES INCORPORATED
By:___________________________
Leigh J. Abrams,
President and Chief Executive Officer
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NON-NEGOTIABLE PROMISSORY NOTE
$20,800,000 March 7, 1997
FOR VALUE RECEIVED, the undersigned, Drew Industries Incorporated, a
Delaware corporation with principal offices at 200 Mamaroneck Avenue, White
Plains, New York 10601 (the "Payor") promises to pay to Edward W. Rose, III (the
"Payee") at the address of the Payee or at such other place as the Payee may
designate in writing, the principal sum of Twenty Million Eight Hundred Thousand
($20,800,000) Dollars, together with interest provided herein.
Payor promises to pay interest from February 14, 1997 on the outstanding
principal balance hereof and on any past due interest at the lesser of (i) the
rate of seven (7%) percent per annum (computed on the basis of the actual number
of days elapsed over a year of 360 days), or (ii) the maximum rate permitted by
law from time to time.
Principal and interest hereunder shall be due and payable on April 14,
1997; provided, however, that the Payor shall have the right, upon written
notice to the Payee, to extend said date to May 14, 1997 if the Payor is engaged
in good faith best efforts to consummate financing with Chase Manhattan Bank,
the proceeds of which will be applied to pay all principal and interest due
hereunder. All payments of principal and interest shall be made in U.S. Dollars
and in immediately available funds.
This Note may be prepaid in whole or in part by the Payor at any time
without premium or penalty of any kind. Prepayments shall be applied first to
accrued but unpaid interest and then to principal.
The Payee shall have the right upon the occurrence of an Event of Default
(as hereafter defined), to accelerate this Note and to declare the entire unpaid
balance hereof and the obligation evidenced hereby, together with interest to
the date of acceleration, immediately due and payable.
No delay or failure on the part of the Payee to exercise any power or
right shall operate as a waiver thereof and such rights and powers shall be
deemed continuous, nor shall failure to exercise any such power or right subject
the Holder to any liability.
The Payor waives grace, presentment for payment, demand, notice of
non-payment of this Note, protest and notice of protest, notice of intention to
accelerate, notice of acceleration, any other notice and diligence in collecting
and bringing suit, and consents that the Payee may extend the time for payment
of any part or the whole of the debt at any time without affecting the rights of
the Payee against the Payor.
All agreements between the Payor and the holder hereof, whether now
existing or hereafter arising and whether written or oral, are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of
acceleration of the maturity hereof, or otherwise, shall the amount paid, or
agreed to be paid, to the holder hereof for the use, forbearance or detention of
the funds advanced pursuant to this Note, or otherwise, or for the payment or
performance of any covenant or obligation contained herein or in any other
document or instrument evidencing, securing or pertaining to this Note exceed
the maximum amount permissible under applicable law. If from any circumstances
whatsoever fulfillment of any provisions hereof or any other document or
instrument exceeds the maximum amount of interest prescribed by law, then ipso
facto, the obligation to be fulfilled shall be reduced to the limit of such
validity, and if from any such circumstances the holder hereof shall ever
receive anything of value deemed interest by applicable law, which would exceed
interest at the highest lawful rate, such amount which would be excessive
interest shall be applied to the reduction of the unpaid principal balance of
this Note or on account of any other principal indebtedness of the Payor to the
holder hereof, and not to the payment of interest, or if such excessive interest
exceeds the unpaid principal balance of this Note and such other indebtedness,
such excess shall be refunded to the Payor. All sums paid, or agreed to be paid,
by the Payor for the use, forbearance or detention of
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the indebtedness of the Payor to the holder of this Note shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of such indebtedness until payment in full so that the
actual rate of interest on account of such indebtedness is uniform throughout
the term hereof. The terms and provisions of this paragraph shall control and
supersede every other provision of all agreements between the Payor and the
holder hereof.
This Note is subject in all respects to the terms and provisions of the
Stock Purchase and Pledge Agreement, dated the date hereof, between the Payor
and the Payee (the "Agreement"), which Agreement contains, among other things,
provisions for the acceleration of the maturity hereof upon the happening of
certain Events of Default (as defined therein), and the granting of a security
interest to secure the Payor's obligations hereunder. This Note may not be
negotiated, transferred or assigned without the prior written consent of the
Payor.
If the holder of this Note retains an attorney in connection with any
default or to collect, enforce or defend this Note or the Agreement in any
lawsuit or in reorganization, bankruptcy or other proceedings, or if Payor sues
any holder in connection with this Note or the Agreement and does not prevail,
the Payor agrees to pay to the Payee, in addition to any principal and interest
due and unpaid, all reasonable costs and expenses of such proceedings, including
reasonable attorney's fees.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF TEXAS WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT BY LAWS. PAYOR
HEREBY IRREVOCABLY SUBMITS IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE OR THE AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF TEXAS AND THE JURISDICTION OF ANY COURT OF THE STATE OF
TEXAS LOCATED IN DALLAS AND WAIVES ANY AND ALL OBJECTIONS TO JURISDICTION THAT
IT MAY HAVE UNDER THE LAWS OF THE STATE OF TEXAS OR THE UNITED STATES.
IN WITNESS WHEREOF, and intending to be legally bound, the Payor has
caused this Note to be signed by its President and Chief Executive Officer
pursuant to order of the Board of Directors.
DREW INDUSTRIES INCORPORATED
By:_______________________________
Leigh J. Abrams
President and Chief Executive Officer
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