Exhibit 4.01-1
to Credit Agreement
Exhibit 10.176 - Subsidiary Guarantee Agreement
SUBSIDIARY GUARANTEE AGREEMENT dated as of January 28, 1998 made by
each direct and indirect subsidiary of DREW INDUSTRIES INCORPORATED, a Delaware
corporation, (other than KINRO, INC., an Ohio corporation, SHOALS SUPPLY, INC.,
a Delaware corporation, and LIPPERT COMPONENTS, INC., a Delaware corporation
(the "Borrowers")) that becomes a party hereto as a guarantor hereunder (each, a
"Guarantor"), with and in favor of THE CHASE MANHATTAN BANK, a New York banking
corporation as agent (in such capacity, the "Administrative Agent") for the
Lenders (as defined in the Credit Agreement referred to below).
Reference is hereby made to the Credit Agreement dated as of January
28, 1998 (as amended, supplemented, or modified from time to time, the "Credit
Agreement") among the Borrowers, the financial institutions party thereto as
lenders (the "Lenders") and The Chase Manhattan Bank as administrative agent (in
such capacity the "Administrative Agent"). Terms used herein as defined terms
and not otherwise defined herein shall have the meanings given thereto in the
Credit Agreement.
The Lenders have agreed to make Loans to the Borrowers upon the
terms and subject to the conditions specified in the Credit Agreement. The
obligations of the Lenders to make Loans are conditioned on, among other things,
the execution and delivery by each Guarantor hereunder of a guarantee agreement
in the form hereof.
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1.01. Definitions; Terms. References to this "Agreement"
shall be to this Subsidiary Guarantee Agreement as amended, supplemented, or
otherwise modified from time to time. The term "Obligations" shall mean,
collectively, (a) the due and punctual payment of (i) the principal of and
interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Loans when and as due, whether
at maturity, by acceleration, upon one or more dates on which repayment or
prepayment is required, or otherwise, (ii) each payment required to be made by
the Borrowers under the Credit Agreement in respect of the Letter of Credit when
and as due, including payments in respect of reimbursement of disbursements,
interest thereon and obligations to provide cash collateral and (iii) all other
monetary obligations, including fees, costs, expenses and indemnities, whether
primary, secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Borrowers to one or more of the Secured
Parties under the Credit Agreement or any of the other Loan
Documents or of the Borrowers (or either of them) under or in respect of any
Interest Rate Hedging Agreement now or hereafter in effect, and (b) the due and
punctual performance of all covenants, agreements, obligations and liabilities
of the Borrowers under or pursuant to the Credit Agreement and the other Loan
Documents and under any Interest Rate Hedging Agreement now or hereafter in
effect. References to a "guarantor" shall include each Guarantor hereunder, the
Company, and any other Person that is a guarantor of any or all of the
Obligations, and references to a "guarantee" shall include this Agreement, the
Company Guarantee Agreement and any other guarantee of any or all of the
Obligations by any other Person.
Section 2.01. Guarantee.
(a) The Guarantors hereby, jointly and severally,
unconditionally, absolutely, and irrevocably guarantee, each as a primary
obligor and not merely as a surety, the due and punctual payment and performance
in full of the Obligations, in each case strictly in accordance with the terms
thereof. In furtherance of the foregoing and not in limitation of any other
right that any Secured Party may have at law or in equity against any Guarantor
by virtue hereof, the Guarantors jointly and severally agree that upon failure
of the Borrowers to pay any Obligations when and as the same shall become due,
whether at maturity, by acceleration, on one or more dates on which prepayment
or repayment is required, or otherwise, the Guarantors will, without any demand
or notice whatsoever, forthwith pay or cause to be paid to the Administrative
Agent or such other Secured Party as is designated thereby, in cash in
immediately available funds, an amount equal to the unpaid amount of such
Obligations. Each Guarantor further agrees that the Obligations guaranteed by it
hereunder may be increased in amount, extended or renewed, or otherwise amended
or modified in any respect, including, without limitation, as to principal,
scheduled repayment, prepayment, interest, fees, indemnification, compensation,
and in any other respect whatsoever, in whole or in part, without notice or
further assent from it, and that it will remain bound upon this guarantee in
respect of such Obligations as so increased, extended, renewed, amended or
modified. Payments by each Guarantor hereunder may be required on any number of
occasions.
(b) Each Guarantor waives presentation to, demand for payment
from and protest to the Borrowers or any other guarantor, and also waives notice
of acceptance of its guarantee and notice of protest for nonpayment. The
obligations of each Guarantor hereunder shall not be affected by (i) the failure
of any Secured Party to assert any claim or demand or to enforce any right or
remedy against any Credit Party or any other Person under the provisions of any
Loan Document or any other agreement or otherwise; (ii) any rescission, waiver,
forbearance, compromise, acceleration, amendment or modification of, or any
release of any party from any of the terms or provisions of, this Agreement, any
other Loan Document, any Obligation or any other guarantee or any security
interest in respect of the Obligations (including, without limitation, in
respect of any other guarantor, or any Debtor as such term is defined in any
Security Document); (iii) any change in respect of any Credit Party, including,
without limitation, as a result of any merger, consolidation, dissolution,
liquidation, recapitalization, or other change of legal form or status, whether
or not permitted under the Loan Documents; (iv) the release, exchange, waiver or
foreclosure of any security held by any
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Secured Party for any Obligations or the invalidity or nonperfection of any
security interest securing the Obligations or the guarantee hereunder, or any
other defect of any kind pertaining to any Obligations or any guarantee or
collateral security in respect thereof; (v) the failure of any Secured Party to
exercise any right or remedy in respect of any collateral security for any
Obligations or against any Credit Party, or against any other guarantor of any
Obligations; or (vi) the release or substitution of one or both of the Borrowers
or any guarantor; (vii) the failure of any Person to become a Guarantor
hereunder, whether or not required under the Credit Agreement; or (viii) any
other circumstance that might otherwise, but for this specific agreement of each
Guarantor to the contrary, result in a discharge of or the exoneration of such
Guarantor hereunder, it being the intent of the parties hereto that the
obligations of the Guarantors hereunder shall be absolute and unconditional
under any and all circumstances.
(c) Each Guarantor agrees that this guarantee constitutes a
guarantee of performance and of payment when due and not just of collection,
that it is a primary obligation of such Guarantor, and that such Guarantor
waives any right to require that any resort be had by any Secured Party to any
security held for this guarantee or for payment of any Obligations, or to any
balance of any deposit, account, or credit on the books of any Secured Party in
favor of any Credit Party, or to any other Person or property. To the fullest
extent permitted by law, each Guarantor hereby expressly waives any and all
rights or defenses arising by reason of (i) any "one action" or
"anti-deficiency" law that would otherwise prevent any Secured Party from
bringing any action, including any claim for a deficiency, or exercising any
right or remedy (including any right of set-off) against such Guarantor before
or after the commencement or completion of any foreclosure action or sale of
collateral, whether judicially, by exercise of power of sale or otherwise, or
(ii) any other law that in any other way would otherwise require any election of
remedies by any Secured Party.
(d) No demand hereunder or enforcement hereof against any
Guarantor shall require any demand or enforcement against any other Credit
Party.
(e) Each Guarantor agrees that it shall not make any payment
on or in respect of any guaranty securing the Senior Notes unless concurrently
therewith it shall make a payment hereunder to the Secured Parties on the
Obligations on a pari passu basis with respect to any such payment on or in
respect of any such guaranty securing the Senior Notes.
Section 2.02. No Impairment of Guarantee. The obligations of the
Guarantors hereunder shall remain absolute and unconditional and shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including without limitation, any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or set-off,
counterclaim, recoupment or termination whatsoever, by reason of the invalidity,
illegality or unenforceability of the Obligations or of this guarantee (or any
portion or provision thereof or hereof) or otherwise. Without limiting the
generality of the foregoing, each Guarantor specifically agrees that it shall
not be discharged or exonerated, nor shall its obligations hereunder be limited
or otherwise affected by the failure of any Secured Party to exercise any right,
remedy, power, or privilege or to assert any claim or demand or to enforce any
remedy under any Loan Document or applicable law, including, without limitation,
any failure by any Secured Party to setoff or release in whole or in part any
balance of any deposit account or credit on its books in favor of any Credit
Party, or by any waiver, consent,
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extension, indulgence, modification, or other action or inaction in respect of
any thereof, or by any default, failure or delay, willful or otherwise, in the
performance of any Obligations, or by any other act or thing or omission or
delay to do any other act or thing, by any Person, that might in any manner or
to any extent vary the risk of such Guarantor or that might but for the specific
provisions hereof to the contrary otherwise operate as a discharge or
exoneration of such Guarantor, unless and until the Obligations are fully,
finally and indefeasibly paid in cash.
Section 2.03. Security; Waiver. Each of the Guarantors authorizes the
Administrative Agent, the Collateral Agent, and each of the other Secured
Parties to (i) take and hold security for the payment of this guarantee and/or
the Obligations and exchange, enforce, waive and release any such security, (ii)
apply such security and direct the order or manner of sale thereof as they in
their sole discretion may determine and (iii) release or substitute any one or
more endorsees, other guarantors or other obligors or any collateral. The
Administrative Agent, the Collateral Agent, and the other Secured Parties may,
at their election, foreclose on any security held by one or more of them by one
or more judicial or non-judicial sales, or exercise any other right or remedy
available to them against the Borrowers or any Guarantor, or any security,
without affecting or impairing in any way the liability of the Guarantors
hereunder except to the extent that the Obligations have been fully, finally and
indefeasibly paid in cash. Each of the Guarantors waives any defense arising out
of any such election even though such election operates to impair or to
extinguish any right of reimbursement or subrogation or other right or remedy of
such Guarantor against the Borrowers or any other Guarantor, as the case may be,
or any security.
Section 2.04. Continuation and Reinstatement, etc. The Guarantors jointly
and severally agree that the guarantee hereunder shall continue to be effective
or shall be reinstated, as the case may be, if at any time payment, or any part
thereof, in respect of any Obligation is rescinded or must otherwise be restored
by any Secured Party upon the bankruptcy or reorganization of any Credit Party,
or otherwise.
Section 2.05. Subrogation. The Guarantors jointly and severally agree that
throughout the period referred to in clause (ii) of Section 4.02(a) hereof no
Guarantor shall (i) exercise, and each hereby waives, any rights against the
Borrowers and any other guarantor arising as a result of payment by such
Guarantor hereunder, by way of subrogation, reimbursement, restitution,
contribution or otherwise, (ii) prove any claim in competition with any Secured
Party in respect of any payment hereunder in any bankruptcy, insolvency or
reorganization case or proceeding of any nature, or (iii) have any benefit of or
any right to participate in any collateral security that may be held by any
Secured Party for the Obligations.
Section 2.06. Subordination. The payment of any amounts due with respect
to any indebtedness of any Credit Party now or hereafter owed to any Guarantor
(including, without limitation, any such indebtedness arising by way of
subrogation, reimbursement, restitution, contribution or otherwise in respect of
performance by such Guarantor hereunder) is hereby subordinated to the prior
full, final, and indefeasible payment in cash of all Obligations. If,
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notwithstanding the foregoing sentence, any Guarantor shall collect, enforce or
receive any amounts in respect of such indebtedness, such amounts shall be
collected, enforced and received by such Guarantor as trustee for the Secured
Parties and be paid over to the Administrative Agent on account of and to be
applied against the Obligations, without affecting in any manner the liability
of such Guarantor under the other provisions of this Agreement.
Section 2.07. Remedies. The Guarantors jointly and severally agree that,
as between the Guarantors and the Secured Parties, the obligations of the
Borrowers under the Credit Agreement may be declared to be forthwith due and
payable as provided in Article VII of the Credit Agreement (and shall be deemed
to have become automatically due and payable in the circumstances provided in
clause (h) or (i) of said Article VII) for purposes of the guarantee hereunder
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Borrowers and that, in the event of such declaration (or such
obligations' being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Borrowers) shall forthwith
become due and payable by the Guarantors for purposes hereof.
Section 2.08. Payment. Each Guarantor hereby agrees that any Secured
Party, at its sole option, in the event of a dispute by such Guarantor in the
payment of any moneys due hereunder, shall have the right to proceed under New
York CPLR Section 3213.
Section 2.09. Continuing Guarantee. The guarantee hereunder is a
continuing guarantee, and shall apply to all Obligations whenever arising.
Section 2.10. Rights of Contribution. The Guarantors hereby agree, as
among themselves, that if any Guarantor shall become an Excess Funding Guarantor
(as defined below) by reason of the payment by such Guarantor of any
Obligations, each other Guarantor shall, on demand of such Excess Funding
Guarantor, pay to such Excess Funding Guarantor an amount equal to such
Guarantor's Pro Rata Share (as defined below and determined, for this purpose,
without reference to the properties, debts and liabilities of such Excess
Funding Guarantor) of the Excess Payment (as defined below) in respect of such
Obligations; provided, however, that the payment obligation of a Guarantor to
any Excess Funding Guarantor under this Section 2.10 shall be subordinate and
subject in right of payment to the Obligations in accordance with Section 2.06
hereof. For purposes of this section 2.10, (i) "Excess Funding Guarantor" shall
mean, in respect of any Obligations, a Guarantor that has paid an amount in
excess of its Pro Rata Share of such Obligations, (ii) "Excess Payment" shall
mean, in respect of any Obligations, the amount paid by an Excess Funding
Guarantor in excess of its Pro Rata Share of such Obligations and (iii) "Pro
Rata Share" shall mean, for any Guarantor, the fraction the numerator of which
is (x) the amount by which the aggregate fair saleable value of all properties
of such Guarantor (excluding any shares of stock of any other Guarantor) exceeds
the amount of all the debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured and unliquidated liabilities, but excluding
the obligations of such Guarantor hereunder and any obligations of any other
Guarantor that have been Guaranteed by
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such Guarantor) and the denominator of which is (y) the amount by which the
aggregate fair saleable value of all properties of all of the Guarantors exceeds
the amount of all the debts and liabilities (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of the
Guarantors hereunder) of all the Guarantors, determined (A) with respect to any
Guarantor that is a party hereto on the date hereof, as of the date hereof, and
(B) with respect to any other Guarantor, as of the date such Guarantor becomes a
Guarantor.
Section 2.11. General Limitation on Guarantee. In any action or proceeding
involving any state corporate law, or any state or Federal bankruptcy,
insolvency, reorganization or other law affecting the rights of creditors
generally, if the obligations of any Guarantor under Section 2.01 hereof would
otherwise, taking into account the provisions of Section 2.10 hereof, be held or
determined to be void, invalid or unenforceable, or subordinated to the claims
of any other creditors, on account of the amount of its liability under said
Section 2.01, then, notwithstanding any other provision hereof to the contrary,
the amount of such liability shall, without any further action by such
Guarantor, any Secured Party, or any other Person, be automatically limited and
reduced to the highest amount that is valid and enforceable and not subordinated
to the claims of other creditors as determined in such action or proceeding.
Section 2.12. Other Guarantors. This Agreement shall remain the
unconditional, absolute, and irrevocable obligation of each Guarantor signatory
hereto regardless of whether any other Person (i) becomes a party hereto
obligated as a Guarantor hereunder or otherwise as a guarantor in respect of the
Obligations (whether or not the Credit Agreement requires that such Person be or
become a Guarantor) or (ii) fails to become or ceases to be a party hereto or
otherwise fails to become or ceases to be a Guarantor of the Obligations
(whether or not the Credit Agreement requires that such Person be or become a
Guarantor).
Section 2.13. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition and assets of the
Borrowers, and of all other circumstances bearing upon the risk of nonpayment of
the Obligations and the nature, scope and extent of the risks that such
Guarantor assumes and incurs hereunder, and agrees that no Secured Party has or
will have any duty to advise any of the Guarantors of information regarding such
circumstances or risks.
Section 3.01. Representation and Warranties Each Guarantor represents and
warrants that all representations and warranties relating to it in the Credit
Agreement are true and correct.
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Section 4.01. Amendment; Waiver. No amendment or waiver of any provision
of this Agreement, nor consent to any departure by any Guarantor therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent with the written consent of the Required Lenders.
Any such waiver, consent or approval shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on any
Guarantor in any case shall entitle any Guarantor to any other or further notice
or demand in the same, similar or other circumstances. No waiver by any Secured
Party of any breach or default of or by any Guarantor under this Agreement shall
be deemed a waiver of any other previous breach or default or any thereafter
occurring.
Section 4.02. Survival; Severability.
(a) All covenants, agreements, representations and warranties
made by the Guarantors herein and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document (i) shall be considered to have been relied upon by the
Lenders and the other Secured Parties and shall survive the making by the
Lenders of the Loans, and the execution and delivery to the Lenders of any Notes
evidencing such Loans, regardless of any investigation made by the Secured
Parties or on their behalf, and (ii) shall continue in full force and effect as
long as any of the Obligations is outstanding and unpaid or the LC Exposure does
not equal zero and as long as the Revolving Credit Commitments have not been
terminated.
(b) Any provision of this Agreement that is illegal, invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such illegality, invalidity or unenforceability
without invalidating the remaining provisions hereof or affecting the legality,
validity or enforceability of such provisions in any other jurisdiction. The
parties hereto agree to negotiate in good faith to replace any illegal, invalid
or unenforceable provision of this Agreement with a legal, valid and enforceable
provision that, to the extent possible, will preserve the economic bargain of
this Agreement, or to otherwise amend this Agreement to achieve such result.
Section 4.03. Successors and Assigns. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of any Credit Party that are contained in this Agreement shall
bind and inure to the benefit of each party hereto and their respective
successors and assigns. No Credit Party may assign or transfer any of its rights
or obligations hereunder except as expressly contemplated by this Agreement or
the other Loan Documents (and any such attempted assignment shall be void).
Section 4.04. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
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Section 4.05. Headings; Interpretation. The Article and Section headings
in this Agreement are for convenience only and shall not affect the construction
hereof. The rules of interpretation of Section 1.03 of the Credit Agreement
shall apply to this Agreement.
Section 4.06. Notices. Notices, consents and other communications provided
for herein shall (except as otherwise expressly permitted herein) be in writing
and given as provided in Section 9.01 of the Credit Agreement. Communications
and notices to any Guarantor shall be given to it at its address set forth in
Schedule A hereto.
Section 4.07. Counterparts; Additional Guarantors. (a) This Agreement may
be executed in separate counterparts (telecopy of any executed counterpart
having the same effect as manual delivery thereof), each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one Agreement.
(b) Upon execution and delivery after the date hereof by the
Administrative Agent and a Subsidiary of the Company of an instrument in the
form of Exhibit 4.07(b) hereto, such Subsidiary shall become a Guarantor
hereunder with the same force and effect as if originally named as a Guarantor
herein. The execution and delivery of such instrument shall not require the
consent of any Guarantor hereunder. The rights and obligations of each Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of,
or the failure to add, any new Guarantor as a party hereto, in each case whether
or not required under the Credit Agreement.
Section 4.08. Right of Setoff. Each Guarantor hereby agrees that if an
Event of Default shall have occurred and be continuing, each Lender and each of
its Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of any Guarantor against any of and all the obligations of
such Guarantor now or hereafter existing under this Agreement or any other Loan
Document held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement or such other Loan Document and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) that such Lender may have.
Section 4.09. Jurisdiction; Consent to Service of Process.
(a) Each Guarantor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in
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respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent, the Collateral Agent, or any
other Secured Party may otherwise have to bring any action or proceeding
relating to this Agreement against any Guarantor or its properties in the courts
of any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in the preceding paragraph. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 4.06. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
Section 4.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Subsidiary
Guarantee Agreement to be duly executed and delivered by their respective
officers or representatives as of the day and year first above written.
KINRO HOLDING, INC.
By: _________________________________
Name:
Title:
SHOALS HOLDING, INC.
By: _________________________________
Name:
Title:
KINRO MANUFACTURING, INC.
By: _________________________________
Name:
Title:
KINRO TEXAS LIMITED PARTNERSHIP
By: KINRO MANUFACTURING, INC.,
its general partner
By: _________________________________
Name:
Title:
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KINRO TENNESSEE LIMITED PARTNERSHIP
By: KINRO MANUFACTURING, INC.,
its general partner
By: ________________________________________
Name:
Title:
SHOALS SUPPLY TEXAS LIMITED PARTNERSHIP
By: SHOALS SUPPLY, INC., its general partner
By: ________________________________________
Name:
Title:
SHOALS SUPPLY TENNESSEE LIMITED PARTNERSHIP
By: SHOALS SUPPLY, INC., its general partner
By: ________________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: ________________________________________
Name:
Title:
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Schedule A
to
Subsidiary Guarantee Agreement
Addresses for Notice
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Party Mailing Address County
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Kinro Holding, Inc. c/o Drew Industries Incorporated Westchester
200 Mamaroneck Avenue
White Plains, NY 10601
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Shoals Holding, Inc. c/o Drew Industries Incorporated Westchester
200 Mamaroneck Avenue
White Plains, NY 10601
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Kinro Manufacturing, Inc. 4381 Green Oaks Boulevard West Tarrant
Arlington, TX 76016
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Kinro Texas Limited 4381 Green Oaks Boulevard West Tarrant
Partnership Arlington, TX 76016
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Kinro Tennessee Limited 311 Greenway Boulevard Rhea
Partnership Dayton, TN 37321
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Shoals Supply Texas Limited 4381 Green Oaks Boulevard West Tarrant
Partnership Arlington, TX 76016
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Shoals Supply Tennessee 190 Durham Road
Limited Partnership Maynardville, TN 37807 Union
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Exhibit 4.07(b)
to
Subsidiary Guarantee Agreement
SUPPLEMENT dated as of _______ to the Subsidiary Guarantee Agreement (as
amended, supplemented, or modified from time to time, the "Subsidiary Guarantee
Agreement") made by each direct and indirect subsidiary of DREW INDUSTRIES
INCORPORATED, a Delaware corporation (the "Company") (other than its
Subsidiaries KINRO, INC., an Ohio corporation, SHOALS SUPPLY, INC., a Delaware
corporation, and LIPPERT COMPONENTS, INC., a Delaware corporation (each, a
"Borrower")), party thereto (each, a "Guarantor") and THE CHASE MANHATTAN BANK
as Agent (the "Administrative Agent") for the Secured Parties (as such term is
defined in the Credit Agreement referred to below).
Reference is hereby made to the Credit Agreement dated as of January ___,
1998 (as amended, supplemented, or modified from time to time, the "Credit
Agreement") among the Borrowers, the financial institutions party thereto as
lenders (the "Lenders") and THE CHASE MANHATTAN BANK as administrative agent (in
such capacity, the "Administrative Agent").
Terms used herein as defined terms and not otherwise defined herein shall
have the meanings given thereto in the Credit Agreement.
The Guarantors have entered into the Subsidiary Guarantee Agreement to
induce the Lenders to make the Loans. Pursuant to (and as more particularly set
forth in) Section 5.09 of the Credit Agreement, the undersigned Subsidiary of
the Company (the "New Guarantor") is required to become a Guarantor pursuant to
an instrument in form, scope and substance satisfactory to the Administrative
Agent. Section 4.07(b) of the Subsidiary Guarantee Agreement provides that the
New Guarantor may become a party to the Subsidiary Guarantee Agreement by
entering into an agreement in the form of this Supplement.
Accordingly, and for other good and lawful consideration the receipt and
sufficiency of which are hereby acknowledged, the Administrative Agent and the
New Guarantor agree as follows:
Section 1. In accordance with Section 4.07(b) of the Subsidiary Guarantee
Agreement, the New Guarantor by its signature below becomes a Guarantor under
the Subsidiary Guarantee Agreement with the same force and effect as if
originally named therein as a Guarantor, and the New Guarantor hereby agrees (a)
to all the terms and provisions of the Subsidiary Guarantee Agreement applicable
to it as a Guarantor thereunder and (b) represents and warrants that the
representations and warranties made by it as a Guarantor thereunder are true and
correct on and as of the date hereof. Each reference to a "Guarantor" in the
Subsidiary
Guarantee Agreement shall be deemed to include the New Guarantor. The Subsidiary
Guarantee Agreement is hereby incorporated herein by reference.
Section 2. The New Guarantor represents and warrants to the Administrative
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity (regardless of whether considered in a proceeding at law or in equity).
Section 3. This Supplement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument. This Supplement shall become
effective when the Administrative Agent shall have received counterparts of this
Supplement that bear the signatures of the New Guarantor and the Administrative
Agent.
Section 4. The New Guarantor agrees to furnish (including herewith) to the
Administrative Agent such information, including any information that the
Administrative Agent or any Lender shall reasonably request in connection with
the New Guarantor.
Section 5. Except as expressly supplemented hereby, the Subsidiary
Guarantee Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in any other Loan Document shall not in any way be affected or
impaired. The parties hereto shall endeavor in good faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
Section 8. All communications and notices hereunder shall be in writing
and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature hereto.
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Section 9. The New Guarantor agrees to reimburse the Administrative Agent
for its expenses incurred in connection with this Supplement, including the
reasonable fees, other charges and disbursements of counsel.
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IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement as of the day and year first above written.
[NAME OF NEW GUARANTOR]
By __________________________
Name:
Title:
Address:
_____________________________
_____________________________
_____________________________
THE CHASE MANHATTAN BANK, as
Administrative Agent,
By: _________________________
Name:
Title:
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