Exhibit 4.01-3
to the
Credit Agreement
Exhibit 10.177 - Subordination Agreement
SUBORDINATION AGREEMENT dated as of January 28, 1998 made by DREW
INDUSTRIES INCORPORATED, a Delaware corporation (the "Company") and each direct
and indirect Subsidiary of the Company (each, together with the Company, a
"Credit Party"), with and in favor of THE CHASE MANHATTAN BANK, 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 Kinro, Inc., an Ohio corporation, Shoals Supply, Inc., a
Delaware corporation, and Lippert Components, Inc., a Delaware corporation, as
Borrowers (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. Each
Borrower is a direct Subsidiary of the Company. The Credit Parties may make
loans and advances to other Credit Parties upon the terms and conditions thereto
contained in the Credit Agreement, including, without limitation, the
subordination of such obligations to the obligations of the Credit Parties under
the Loan Documents. The obligations of the Lenders to make Loans are conditioned
on, among other things, the execution and delivery by each Credit Party of a
Subordination 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 Subordination Agreement as amended, supplemented, or otherwise modified
from time to time. The term "Senior Obligations" shall mean, collectively, 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), (x) of the Borrowers to one or
more of the Secured Parties under the Credit Agreement, (y) of the Guarantors
under the Guarantee Agreements, (z) of the Borrowers and of the other Credit
Parties under any other Loan Documents to which the Borrowers or such other
Credit Parties are or are to be parties, and (aa) of the Borrowers (or either of
them) to any Lender as an Interest Rate Protection Merchant under or in respect
of any Interest Rate Hedging Agreement now or hereafter in effect. The term
"Subordinated Debt" shall mean any and all Indebtedness, obligations and
liabilities that is or was at any time owed by any Credit Party to any other
Credit Party (including all interest accrued or to accrue thereon up to the date
of such full payment thereof) of every kind and nature whatsoever, whether
represented by negotiable instruments or other writings, whether direct or
indirect, absolute or contingent, due or not due, secured or unsecured,
original, renewed, modified or extended, now in existence or hereafter incurred,
originally contracted with the Credit Party or with another Person, and whether
contracted alone or jointly and/or severally with another or others.
Section 2.01. Subordination. Each Credit Party hereby agrees that all
claims and demands, and all interest accrued or that may hereafter accrue
thereon, in respect of any Subordinated Debt are subject and subordinate to the
prior indefeasible payment and satisfaction in full in cash of all Senior
Obligations. In furtherance of and not in limitation of the foregoing:
(i) no payment or prepayment of any principal or
interest on account of, and no repurchase, redemption or other retirement
(whether at the option of the holder or otherwise) of Subordinated Debt
shall be made, if at the time of such payment, prepayment, repurchase,
redemption or retirement or immediately after giving effect thereto there
shall exist a Default or Event of Default;
(ii) in the event of any insolvency or bankruptcy
proceedings, and any receivership, liquidation, reorganization or other
similar proceedings in connection therewith, relating to any Credit Party
or to its creditors, as such, or to its property, and in the event of any
proceedings for voluntary liquidation, dissolution or other winding up of
any Credit Party, whether or not involving insolvency or bankruptcy, then
the holders of Senior Obligations shall be entitled to receive final,
indefeasible payment in full in cash of all Senior Obligations (including
interest thereon accruing after the commencement of any such proceedings,
whether or not allowed or allowable as a claim in such proceedings) (and
the LC Exposure shall have been reduced to zero and the Revolving Credit
Commitments shall have terminated), before the holders of the Subordinated
Debt (including any other Credit Party) shall be entitled to receive any
payment or other distribution on account of the Subordinated Debt, and to
that end the holders of Senior Obligations shall be entitled to receive
distributions of any kind or character, whether in cash or property or
securities, which may be payable or deliverable in any such proceedings in
respect of the Subordinated Debt;
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(iii) in the event that any Subordinated Debt is
declared due and payable before its expressed maturity because of the
occurrence of an event of default (under circumstances when the provisions
of the foregoing paragraphs (i) or (ii) are not applicable), the holders
of the Senior Obligations outstanding at the time such Subordinated Debt
so becomes due and payable because of such occurrence of such an event of
default shall be entitled to receive final, indefeasible payment in full
in cash of all Senior Obligations (and the LC Exposure shall have been
reduced to zero and the Commitments shall have terminated) before the
holders of the Subordinated Debt (including any Credit Party) are entitled
to receive any payment or other distribution on account of the
Subordinated Debt;
(iv) in the event that, notwithstanding the occurrence
of any of the events described in paragraphs (i), (ii) and (iii), any such
payment or distribution of assets of any Credit Party of any kind or
character, whether in cash, property or securities, shall be received by
the holders of Subordinated Debt (including any Credit Party) before all
Senior Obligations are finally and indefeasibly paid in full in cash (and
the LC Exposure shall have been reduced to zero and the Commitments shall
have terminated) such payment or distribution shall be held in trust for
the benefit of, and shall be promptly paid over or delivered to the
holders of such Senior Obligations or their representative or
representatives, including the Administrative Agent, or as their
respective interests may appear, for application to the payment of all
Senior Obligations remaining unpaid to the extent necessary to pay such
Senior Obligations in full in cash, in accordance with the terms thereof,
after giving effect to any concurrent payment or distribution to the
holders of such Senior Obligations;
(v) no holder of Senior Obligations shall be prejudiced
in its right to enforce subordination of the Subordinated Debt by any act
or failure to act on the part of any Credit Party; and
(vi) no payment on any Subordinated Debt shall be made
to or for the benefit of any holders of the Senior Notes unless
concurrently therewith payment shall be made in respect thereof on the
Senior Obligations to the Administrative Agent for the benefit of the
Lenders on a pari passu basis; nor shall assignment or other transfer of
any instrument evidencing any Subordinated Debt be made to or for the
benefit of the holders of the Senior Notes unless the Administrative Agent
(or the Collateral Agent, as appropriate) shall concurrently therewith
receive an assignment or transfer of equal priority on a parri passu
basis.
Section 2.02. No Payment or Security. Each Credit Party agrees not to make
payment (except if permitted under Section 2.01 hereof) of, or give any security
for, any Subordinated Debt.
Section 2.03. Waiver; No Limitations. (a) Each Credit Party waives any and
all notice of the acceptance of the subordination hereunder and of the creation
or accrual of any of the Senior Obligations or of any renewals, extensions,
increases, or other modifications thereof from time to time, or of the reliance
of any Lender or any other Secured Party upon this Agreement.
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(b) Nothing contained herein shall constitute or be deemed to be a
waiver or to limit any rights in any insolvency proceeding or under applicable
law of any Lender or any other Secured Party as a creditor of any Credit Party,
including in respect of any claim that any payment in respect of Subordinated
Debt, whether or not permitted under Section 2.01 hereof, is a preferential
transfer or otherwise should be set aside or recovered for the benefit of
creditors of any Credit Party.
Section 2.04. No Impairment of Subordination. Each holder of Subordinated
Debt hereby consents that the liability of each Credit Party or of any other
party for or upon the Senior Obligations may from time to time, in whole or in
part, be renewed, increased, extended, or modified, in any and all respects, or
accelerated, compromised, settled or released, and that any collateral security
and Liens for the Senior Obligations, or any guarantee or other accommodation in
respect thereof may, from time to time, in whole or in part, be exchanged, sold,
released or surrendered by the Administrative Agent, the Collateral Agent, the
Issuing Bank, or any Lender, as it may deem advisable, or that any security
interest may be unperfected, and that the financial condition, legal status,
corporate structure or identity, entity classification, affiliation, or any
other characteristic affecting any Credit Party, or affecting any Senior
Obligation, may change in any respect whatsoever, and any other fact or
circumstance may occur that would, but for this specific provision to the
contrary, relieve such holder of Subordinated Debt from the provisions of this
Agreement, all without impairing the subordination contained in this Agreement
and without any notice to or assent from such holder of Subordinated Debt.
Section 2.05. Proof of Claim; Past Default. (a) Each holder of
Subordinated Debt hereby irrevocably authorizes the Administrative Agent, and
irrevocably constitutes and appoints it as its attorney in fact with full power
(coupled with an interest, and with power of substitution) for the benefit of
the Lenders, in the name, place and stead of such holder of Subordinated Debt
and whether or not a default exists with respect to the Subordinated Debt, to
file proofs of claim for the full amount of the Subordinated Debt held by it
against any obligor in respect thereof or such obligor's property in any
statutory or non-statutory proceeding affecting such obligor or the Subordinated
Debt or any other proceeding and to vote the full amount of the Subordinated
Debt (i) for or against any proposal or resolution; (ii) for a trustee or
trustees or for a committee of creditors; or (iii) for the acceptance or
rejection of any proposed arrangement, plan of reorganization, composition,
settlement or extension and in connection with any such proceeding.
(b) After the occurrence and during the continuation of a
Default or Event of Default, should any payment or distribution or collateral
security or proceeds of any collateral security be received or collected by the
holder of any Subordinated Debt for or on account of any Subordinated Debt,
prior to the time that all Senior Obligations have been fully, finally, and
indefeasibly paid in cash (and the LC Exposure reduced to zero and the Revolving
Credit Commitments terminated), such holder of Subordinated Debt shall forthwith
deliver the same to the Administrative Agent, in precisely the form received
(with the endorsement of such holder of Subordinated Debt where necessary), for
application on account of the Senior Obligations (or, in the case of collateral
security, delivery to the Collateral Agent for such application thereby) and
such holder of Subordinated Debt agrees that, until so delivered, the same shall
be deemed received by such holder of Subordinated Debt as trustee
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for the Secured Parties in trust for the Secured Parties; and in the event of
the failure of such holder of Subordinated Debt to endorse any instrument for
the payment of money so received payable to its order, the Administrative Agent
or any officer or employee thereof is hereby irrevocably constituted and
appointed attorney in fact for such holder of Subordinated Debt, with full power
(coupled with an interest and with full power of substitution) to make any such
endorsement. In the event that such holder of Subordinated Debt fails to make
such delivery, such holder of Subordinated Debt agrees to immediately pay to the
Administrative Agent for the ratable benefit of the Lenders an amount equivalent
to any such payment or the value of such security received.
Section 2.06. No Transfer. Each Credit Party represents and warrants to
the Secured Parties that such Credit Party has not (except for the benefit of
the Secured Parties) granted any security interest in or made any other transfer
or assignment of any Subordinated Debt (except to (x) the Collateral Agent, in
each case for the ratable benefit of the Secured Parties and (y) concurrently
herewith, and on a pari passu basis to the holders of the Senior Notes pursuant
to the subordination agreement contemplated by the Senior Note Placement
Agreement) and agrees that such Credit Party will not grant a security interest
therein or make any other transfer or assignment thereof (except to or as
designated by the Administrative Agent).
Section 2.07. Instruments. Each Credit Party represents and warrants to
the Secured Parties that as of the date hereof the Subordinated Debt is not
represented by any instruments or other writings. Each Credit Party agrees that
at no time hereafter will any part of the Subordinated Debt be represented by
any instruments or other writings, except such instruments or other writings, if
any, (i) that in each case bear a legend clearly referring to this Agreement and
setting forth that the obligations represented by such instruments or writings
are subject to the subordination hereunder, and (ii) true copies of which shall
have been delivered to the Administrative Agent promptly after execution
thereof. Subordinated Debt not evidenced by an instrument or document shall
nevertheless be deemed subordinated by virtue of this Agreement.
Section 2.08. Statements of Account; Books and Records. Each holder of
Subordinated Debt further hereby agrees that it will render to the
Administrative Agent or any Lender upon demand, from time to time, a statement
of the account of each Credit Party with it. Each holder of Subordinated Debt
agrees that its respective books and records, and financial statements, will
appropriately show that the Subordinated Debt is subject to this Agreement.
Section 2.09. Other Subordination Provisions. The subordination hereunder
shall be in addition to, and shall not limit or be limited by, any subordination
provisions contained in any Guarantee Agreement or other Loan Document.
Section 3.01. Representation and Warranties. Each Credit Party represents
and warrants to the Secured Parties 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 Credit Party 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
Credit Party in any case shall entitle any Credit Party to any other or further
notice or demand in the same, similar or other circumstances. No waiver of any
breach or default of or by any Credit Party 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 Credit Parties 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 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 Administrative Agent, the Collateral
Agent, the Issuing Bank, or any Lender or on their behalf, and (ii) shall
continue in full force and effect as long as any of the Obligations is
outstanding and unpaid, the LC Exposure does not equal zero, and 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.
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.
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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 Credit Party shall be given to it at its address set forth in
Schedule A hereto.
Section 4.07. Counterparts; Additional Parties. (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 party hereto with
the same force and effect as if originally named herein. The execution and
delivery of such instrument shall not require the consent of any Credit Party.
The rights and obligations of each Credit Party and each other holder of
Subordinated Debt hereunder shall remain in full force and effect
notwithstanding the addition of, or the failure to add, any Person as a party
hereto, in each case whether or not required under the Credit Agreement.
Section 4.08. Jurisdiction; Consent to Service of Process.
(a) Each Credit Party 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 any other Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in 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, the Issuing Bank, or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against any Credit Party or its properties in the courts
of any jurisdiction.
(b) Each Credit Party 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.
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Section 4.09. 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 ANY OTHER LOAN DOCUMENT 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Subordination Agreement to be duly executed and delivered by their respective
officers or representatives as of the day and year first above written.
DREW INDUSTRIES INCORPORATED
By: ____________________________________
Name:
Title:
KINRO, INC.
By: ____________________________________
Name:
Title:
SHOALS SUPPLY, INC.
By: ____________________________________
Name:
Title:
LIPPERT COMPONENTS, INC.
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By:_____________________________________
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:
KINRO TENNESSEE LIMITED PARTNERSHIP
By: KINRO MANUFACTURING, INC.,
its general partner
By: ____________________________________
Name:
Title:
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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
Subordination Agreement
Addresses for Notice
- --------------------------------------------------------------------------------
Party Mailing Address County
- --------------------------------------------------------------------------------
Drew Industries Incorporated 200 Mamaroneck Avenue Westchester
White Plains, NY 10601
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Kinro, Inc. 4381 Green Oaks Boulevard West Tarrant
Arlington, TX 76016
- --------------------------------------------------------------------------------
Shoals Supply, Inc. 4381 Green Oaks Boulevard West Tarrant
Arlington, TX 76016
- --------------------------------------------------------------------------------
Lippert Components, Inc. 608 Wright Avenue Gratiot
Alma, Michigan 48801
- --------------------------------------------------------------------------------
Kinro Holding, Inc. c/o Drew Industries Incorporated Westchester
200 Mamaroneck Avenue
White Plains, NY 10601
- --------------------------------------------------------------------------------
Shoals Holding, Inc. c/o Drew Industries Incorporated Westchester
200 Mamaroneck Avenue
White Plains, NY 10601
- --------------------------------------------------------------------------------
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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The Chase Manhattan Bank Loan and Agency Bank Services New York
Group
The Chase Manhattan Bank
One Chase Manhattan Tower
New YUork, NY 10081
- --------------------------------------------------------------------------------
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Exhibit 4.07(b)
to
Subordination Agreement
SUPPLEMENT dated as of ______ to the Subordination Agreement (as amended,
supplemented, or modified from time to time, the "Subordination Agreement") made
by DREW INDUSTRIES INCORPORATED, a Delaware corporation (the "Company") and each
direct and indirect subsidiary thereof party thereto (collectively, together
with the Company, the "Credit Parties") 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 KINRO INC., an Ohio corporation, SHOALS SUPPLY, INC., a
Delaware corporation, LIPPERT COMPONENTS, INC., a Delaware corporation, 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 Credit Parties have entered into the Subordination 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 Credit Party") is required to become a party to the
Subordination Agreement pursuant to an instrument in form, scope and substance
satisfactory to the Administrative Agent. Section 4.07(b) of the Subordination
Agreement provides that the New Credit Party may become a party to the
Subordination 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 Credit Party agree as follows:
Section 1. In accordance with Section 4.07(b) of the Subordination
Agreement, the New Credit Party by its signature below becomes a party to the
Subordination Agreement with the same force and effect as if originally a
signatory thereto, and the New Credit Party hereby agrees (a) to all the terms
and provisions of the Subordination Agreement
applicable to it as a Credit Party thereunder and (b) represents and warrants
that the representations and warranties made by it as a Credit Party thereunder
are true and correct on and as of the date hereof. Each reference to a "Credit
Party" in the Subordination Agreement shall be deemed to include the New Credit
Party. The Subordination Agreement is hereby incorporated herein by reference.
Section 2. The New Credit Party 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 Credit Party and the
Administrative Agent.
Section 4. The New Credit Party 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 Credit Party.
Section 5. Except as expressly supplemented hereby, the Subordination
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.
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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 Credit Party shall be given to
it at the address set forth under its signature hereto.
Section 9. The New Credit Party 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.
IN WITNESS WHEREOF, the New Credit Party and the Administrative Agent have
duly executed this Supplement as of the day and year first above written.
[NAME OF NEW CREDIT PARTY]
By ____________________________________
Name:
Title:
Address:
_________________________________
_________________________________
_________________________________
THE CHASE MANHATTAN BANK, as
Administrative Agent,
By ____________________________________
Name:
Title:
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