EXECUTION COPY
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Exhibit 10.168 - Guarantee Agreement
GUARANTEE AGREEMENT
Between
DREW INDUSTRIES INCORPORATED
And
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
MIDWESTERN UNITED LIFE INSURANCE COMPANY, SECURITY LIFE
OF DENVER INSURANCE COMPANY, EQUITABLE LIFE INSURANCE
COMPANY OF IOWA AND USG ANNUITY & LIFE COMPANY
Dated as of January 28, 1998
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of January 28, 1998, (this "Guarantee")
is by and between Drew Industries Incorporated, a corporation organized under
the laws of the State of Delaware (the "Parent Guarantor"), and Teachers
Insurance and Annuity Association of America and ING Investment Management, Inc.
as agent for Midwestern United Life Insurance Company and Security Life of
Denver Insurance Company and ING Investment Management LLC, as agent for
Equitable Life Insurance Company of Iowa and USG Annuity & Life Company (the
"Initial Noteholders").
WITNESSETH:
WHEREAS, pursuant to the terms of a Note Purchase Agreement of even date
herewith (as amended, modified and supplemented from time to time, the "Note
Purchase Agreement") among Kinro, Inc., an Ohio corporation, Lippert Components,
Inc., a Delaware corporation and Shoals Supply, Inc., a Delaware corporation,
each a direct, wholly owned subsidiary of the Parent Guarantor (the
"Co-Issuers") and the Initial Noteholders, the Co-Issuers have on this date
issued and sold to the Initial Noteholders their 6.95% senior notes due January
28, 2005 in the aggregate principal amount of U.S. $40,000,000, copies of which
are attached hereto as Schedule 1 (the "Notes"); and
WHEREAS, capitalized terms used herein without definition shall have the
meanings ascribed thereto in the Note Purchase Agreement.
NOW, THEREFORE, in order to induce, and in consideration of, the purchase
by the Initial Noteholders of the Notes, it is hereby agreed as follows:
SECTION 1. GUARANTEE OF CO-ISSUER OBLIGATIONS.
ss. 1.1 Obligations Guaranteed. The Parent Guarantor hereby irrevocably,
absolutely and unconditionally guarantees, to the Initial Noteholders and to
each subsequent registered holder from time to time of the Notes (the Initial
Noteholders and each subsequent registered holder of the Notes being hereinafter
referred to as a "Noteholder"), (a) the full, due and punctual payment in cash
in U.S. Dollars of the principal of, Make-Whole Amount, if any, and interest
(including, without limitation, any interest which accrues after the
commencement of any case, proceeding or other action relating to the bankruptcy,
insolvency or reorganization of any Co-Issuer, whether or not a claim for such
interest is allowable in any such case or proceeding) on the Notes, and any
other amount due and payable under the Notes, as and when such payment shall
become due and payable, whether by lapse of time, upon redemption or prepayment,
by extension or by acceleration or declaration, or otherwise (including, to the
extent legally enforceable, interest due on overdue payments of principal,
Make-Whole Amount, if any, or interest at the rate set forth in the Notes) in
coin or currency of the United States of America which at the time of payment or
demand therefor shall be legal tender for the payment of public and private
debts, (b) the full and prompt payment, performance and observance by each
Co-Issuer of each and all of the covenants and agreements required to be
performed or observed by such Co-Issuer under the terms of the Notes and/or the
Note Purchase Agreement, and (c) the full and prompt payment in cash in U.S.
Dollars, upon demand by any Noteholder of all costs
and expenses, legal or otherwise (including attorneys fees) which any Co-Issuer
is obligated to pay pursuant to the Notes and/or the Note Purchase Agreement and
such expenses, if any, as shall have been expended or incurred in the
enforcement of any right or privilege under the Notes or Note Purchase
Agreement, and in each and every case irrespective of the validity, regularity,
or enforcement of the Notes or the Note Purchase Agreement or any of the terms
thereof. The guarantee of the Notes herein provided is a guarantee of the
immediate and timely payment in cash in U.S. Dollars of the principal of, and
Make-Whole Amount, if any, and interest on, the Notes and all other amounts
guaranteed hereunder as and when the same are due and payable and shall not be
deemed to be a guarantee only of the collectibility of such payments and that in
consequence thereof the Noteholders may sue the Parent Guarantor directly upon
any such principal, Make-Whole Amount, interest and all other amounts guaranteed
hereunder becoming so due and payable or upon any failure of any Co-Issuer to
perform any obligation under the Notes or the Note Purchase Agreement or failure
of the Parent Guarantor to perform any other term or provision hereof.
The Parent Guarantor agrees that it shall not make a payment on any
guaranty securing the Note (as defined in the Revolving Credit Agreement) unless
concurrently therewith it shall make payment hereunder to the Noteholders on the
obligations guaranteed hereunder on a pari passu basis with respect to any such
payment on or in respect of any such payment on or in respect of any guaranty
securing the Note (as defined in the Revolving Credit Agreement).
ss. 1.2 General Provisions Relating to the Guarantee. The Parent Guarantor
hereby agrees that the Noteholders, with or without any further notice to or
assent from the Parent Guarantor, to the fullest extent permitted by law, may,
without in any manner affecting the liability of the Parent Guarantor under this
Guarantee, and upon such terms and conditions as the Noteholders may deem
advisable,
(1) extend in whole or in part (by renewal or otherwise),
modify, change, compromise, release or extend the duration of the
time for the performance or payment of any indebtedness, liability
or obligation of the Co-Issuers or of any other Person secondarily
or otherwise liable for any indebtedness, liability or obligations
of the Co-Issuers on the Notes, or waive any default with respect
thereto, or waive, modify, amend or change any provision of the Note
Purchase Agreement or any other agreement to which any Co-Issuer is
a party; or
(2) sell, release, surrender, modify, impair, exchange or
substitute any and all property, of any nature and from whomsoever
received, held by, or for the benefit of, any such Noteholder as
direct or indirect security for the payment or performance of any
indebtedness, liability or obligation of any Co-Issuer or of any
other Person secondarily or otherwise liable for any indebtedness,
liability or obligation of any Co-Issuer on the Notes; or
(3) settle, adjust or compromise any claim of any Co-Issuer
against any other Person secondarily or otherwise liable for any
indebtedness, liability or obligation of any Co-Issuer on the Notes;
and
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the Parent Guarantor hereby waives, to the fullest extent permitted by law, any
and all defenses, counterclaims or offsets which it might or could have by
reason thereof.
The Parent Guarantor hereby waives, to the fullest extent permitted by
law: (1) notice of acceptance of this Guarantee by the Noteholders or of the
creation, renewal or accrual of any liability of the Co-Issuers, present or
future, or of the reliance of the Noteholders upon this Guarantee (it being
understood that every indebtedness, liability and obligation described in 1.1
hereof shall conclusively be presumed to have been created, contracted or
incurred in reliance upon the execution of this Guarantee); (2) demand of
payment by the Noteholders from the Co-Issuers or any other Person indebted in
any manner on or for any of the indebtedness, liability or obligations hereby
guaranteed; and (3) presentment for the payment by the Noteholders or any other
Person of the Notes or any other instrument, protest thereof and notice of its
dishonor to any party thereto and to the Parent Guarantor. To the fullest extent
permitted by law, the obligations of the Parent Guarantor under this Guarantee
and the rights of the Noteholders to enforce such obligations by any
proceedings, whether by action at law, suit in equity or otherwise, shall not be
subject to any reduction, limitation, impairment or termination, whether by
reason of any claim of any character whatsoever or otherwise and shall not be
subject to any set-off, counterclaim (other than any compulsory counterclaim),
recoupment or termination whatsoever.
ss. 1.3 Obligation Absolute and Unconditional. The obligations of the
Parent Guarantor under this Guarantee shall be irrevocable, absolute and
unconditional and shall remain in full force and effect until the entire
principal, Make-Whole Amount, if any, and interest on the Notes and all other
sums due pursuant to 1.1 hereof shall have been indefeasibly paid in cash in
U.S. Dollars and, to the fullest extent permitted by law, such obligations shall
not be affected, modified or impaired upon the happening from time to time of
any event, including, without limitation, any of the following, whether or not
with notice to or the consent of the Parent Guarantor:
(a) the power or authority or the lack of power or authority of the
Co-Issuers to issue the Notes or to execute and deliver the Note Purchase
Agreement or any instrument or agreement executed pursuant thereto or in
connection therewith, and irrespective of the validity or legality of the
Notes or the Note Purchase Agreement or of any defense whatsoever that any
Co-Issuer may or might have to the payment of the Notes (principal,
Make-Whole Amount, if any, and interest) or to the performance or
observance of any of the provisions or conditions of the Note Purchase
Agreement, or the existence or continuance of any Co-Issuer as a legal
entity;
(b) any failure to present the Notes for payment or to demand
payment thereof, or to give the Parent Guarantor or the Co-Issuers notice
of dishonor for non-payment of the Notes, when and as the same may become
due and payable, or notice of any failure on the part of any Co-Issuer to
do any act or thing or to perform or to keep any covenant or agreement by
it to be done, kept or performed under the terms of the Notes or the Note
Purchase Agreement;
(c) the acceptance of any security or any guarantee, any extension
of the obligation of the Notes, either indefinitely or for any period of
time, or any other
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modification in the obligation of the Notes or of the Note Purchase
Agreement or the Co-Issuers thereon, or in connection therewith, or any
sale, release, substitution or exchange of any security;
(d) any act or failure to act with regard to the Notes or the Note
Purchase Agreement or anything which might vary the risk of the Parent
Guarantor;
(e) any action taken under this Guarantee in the exercise of any
right or power hereby conferred or any failure or omission on the part of
the Noteholders to first enforce any right or security given under the
Notes or the Note Purchase Agreement or any failure or omission on the
part of the Noteholders to first enforce any right against the Co-Issuers;
(f) the waiver, compromise, settlement, release or termination of
any or all of the obligations, covenants or agreements of the Co-Issuers
contained in the Notes or the Note Purchase Agreement or of the Parent
Guarantor contained in this Guarantee;
(g) the failure to give notice to the Co-Issuers or the Parent
Guarantor of the occurrence of any Default or Event of Default under the
terms and provisions of the Notes, the Note Purchase Agreement or this
Guarantee;
(h) the extension of the time for payment of any principal of,
Make-Whole Amount or interest on the Notes owing or payable on the Notes
or of the time of or for performance of any obligations, covenants or
agreements under or arising out of the Note Purchase Agreement or the
extension or the renewal of any thereof;
(i) the modification or amendment (whether material or otherwise) of
any obligation, covenant or agreement set forth in the Note Purchase
Agreement or the Notes;
(j) any failure, omission, delay or lack on the part of the
Noteholders to enforce, assert or exercise any right, power or remedy
conferred on the Noteholders in the Note Purchase Agreement or the Notes
or any other act or acts on the part of the holders from time to time of
the Notes;
(k) the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all the assets, marshalling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization or arrangement under
bankruptcy or similar laws, composition with creditors or readjustment of,
or other similar procedures affecting the Parent Guarantor or any
Co-Issuer or any of the assets of any of them, or any allegation or
contest of the validity of the Note Purchase Agreement or the
disaffirmance of the Note Purchase Agreement in any such proceeding (it
being understood that the obligations of the Parent Guarantor under this
Guarantee shall continue to be effective or be reinstated, as the case may
be, if at any time any payment made with respect to the Notes is rescinded
or must otherwise be restored or returned by the Noteholders upon the
insolvency, bankruptcy or reorganization of any Co-Issuer or the Parent
Guarantor, all as though such payment had not been made);
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(l) any event or action or circumstance that would, in the absence
of this clause, result in the release or discharge by operation of law of
the Parent Guarantor from the performance or observance of any obligation,
covenant or agreement contained in this Guarantee;
(m) the invalidity or unenforceability of the Notes or the Note
Purchase Agreement;
(n) the invalidity or unenforceability of the obligations of the
Parent Guarantor under this Guarantee, the absence of any action to
enforce such obligations of the Parent Guarantor, any waiver or consent by
the Parent Guarantor with respect to any of the provisions hereof or any
other circumstances which might otherwise constitute a discharge or
defense by the Parent Guarantor, including, without limitation, any
failure or delay in the enforcement of the obligations of the Parent
Guarantor with respect to this Guarantee or of notice thereof, or any suit
or other action brought by any shareholder or creditor of, or by, the
Parent Guarantor or any other Person, for any reason, including, without
limitation, any suit or action in any way attacking or involving any
issue, matter or thing in respect of this Guarantee, the Notes or any
other agreement;
(o) the default or failure of the Parent Guarantor fully to perform
any of its covenants or obligations set forth in this Guarantee;
(p) the impossibility or illegality of performance on the part of
the Parent Guarantor, the Co-Issuers or any other Person of any
obligations it may have under this Guarantee, the Notes, the Note Purchase
Agreement or any other agreement or instrument;
(q) in respect of the Co-Issuers or any other Person, any change of
circumstances, whether or not foreseen or foreseeable, whether or not
imputable to the Co-Issuers or any other Person, or other impossibility of
performance through fire, explosion, accident, labor disturbance, floods,
droughts, embargoes, wars (whether or not declared), civil commotions,
acts of God or the public enemy, delays or failure of suppliers or
carriers, inability to obtain materials, action of any U.S. Federal or
state or other regulatory body or agency, change of law or any other
causes affecting performance, or other force majeure, whether or not
beyond the control of the Co-Issuers or any other Person and whether or
not of the kind hereinbefore specified;
(r) any attachment, claim, demand, charge, lien, order, process,
encumbrance or any other happening or event or reason, similar or
dissimilar to the foregoing, or any withholding or diminution at the
source, by reason of any taxes, assessments, expenses, indebtedness,
obligations or liabilities of any character, foreseen or unforeseen, and
whether or not valid, incurred by or against any Person, or any claims,
demands, charges or liens of any nature, foreseen or unforeseen, incurred
by any Person, or against any sums payable under this Guarantee, so that
such sums would be rendered inadequate or would be unavailable to make the
payments herein provided;
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(s) the failure of the Parent Guarantor to receive any benefit or
consideration from or as a result of its execution, delivery and
performance of this Guarantee; or
(t) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Parent Guarantor in respect
of the obligations of the Parent Guarantor under this Guarantee, other
than the indefeasible payment in cash in U.S. Dollars or performance of
such obligations;
provided, however, that the specific enumeration of the above-mentioned acts,
failures or omissions shall not be deemed to exclude any other acts, failures or
omissions, though not specifically mentioned above, it being the purpose and
intent of this paragraph that the obligations of the Parent Guarantor hereunder
shall be irrevocable, absolute and unconditional to the extent herein specified
and shall not be discharged, impaired or varied except by the indefeasible
payment in cash in U.S. Dollars to the holders thereof of the principal of,
Make-Whole Amount, if any, interest on the Notes and all other amounts
guaranteed hereunder, and then only to the extent of such payments. Without
limiting any of the other terms or provisions hereof, it is understood and
agreed that in order to hold the Parent Guarantor liable hereunder, there shall
be no obligation on the part of the Noteholders to resort, in any manner or
form, for payment, to any Co-Issuer, to any other Person or to the properties or
estates of any of the foregoing. All rights of the Noteholders pursuant thereto
or to the Note Purchase Agreement or this Guarantee may be transferred or
assigned at any time or from time to time to the transferee of the Notes who
becomes the registered holder thereof and shall be considered to be transferred
or assigned to such registered holder upon the transfer of the Notes whether
with or without the consent of or notice to the Parent Guarantor or the
Co-Issuers. Without limiting the foregoing, it is understood that repeated and
successive demands may be made and recoveries may be had hereunder as and when,
from time to time, any Co-Issuer shall default under the terms of the Notes or
the Note Purchase Agreement and that notwithstanding recovery hereunder for or
in respect of any given default or defaults by any Co-Issuer under the Notes or
the Note Purchase Agreement, this Guarantee shall remain in full force and
effect and shall apply to each and every subsequent default.
ss. 1.4 Payments Under Guarantee. In the event of the failure of the
Noteholders punctually to receive any payment required to be made to it pursuant
to the terms of the Notes, whether by reason of the failure of the Co-Issuers
punctually to make any payment of interest on the Notes, or any other event or
condition resulting in the failure of the Noteholders to receive funds in U.S.
Dollars in the full amount of such payment in a timely manner, the Parent
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and payable, whether by demand, by declaration of
acceleration, or otherwise, as if such payment were made by the Co-Issuers in
the manner required by the Notes or the Note Purchase Agreement. If the
Noteholders shall have the right to declare the Notes due and payable, and
acceleration of the payment of the Notes is stayed, enjoined or otherwise
prevented, the Parent Guarantor, upon demand therefor by the Noteholders, shall
pay the Make-Whole Amount, if any, and any other amount due and payable under
the Notes to the Noteholders as if acceleration had occurred in accordance with
the terms thereof. In the event of the failure of the Co-Issuers to make payment
to a Noteholder of any other amount due and payable to such Noteholder pursuant
to the terms of the Notes and/or the Note Purchase Agreement, the Parent
Guarantor shall, promptly upon receipt of written demand therefor from such
Noteholders,
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accompanied by a statement of the nature and amount of such required payment,
promptly pay such amount, in U.S. Dollars, directly to such Noteholder.
ss. 1.5 No Subrogation. Notwithstanding the satisfaction by the Parent
Guarantor of any liability hereunder and notwithstanding any other term,
provision or condition in the Note Purchase Agreement, the Transaction Documents
or the Other Agreements until 370 days following the last payment or transfer by
or on behalf of the Parent Guarantor with respect to the obligations guaranteed
hereby and all other sums due under the Note Purchase Agreement, other
Transaction Documents and the Other Agreements (the "Period"), the Parent
Guarantor shall not have any right of subrogation, contribution, reimbursement
or indemnity whatsoever or any right of recourse to or with respect to the
assets or property of the Co-Issuers or to any collateral for the Notes with
respect to obligations owing to the Parent Guarantor arising out of the Parent
Guarantor's performance of its obligations under this Guarantee. In connection
with the foregoing, during the Period the Parent Guarantor expressly waives any
and all rights of subrogation of the Noteholders against the Co-Issuers with
respect to obligations owing to the Parent Guarantor arising out of the Parent
Guarantor's performance of its obligations under this Guarantee, and the Parent
Guarantor hereby waives any rights to enforce any remedy which the Noteholders
may have against the Co-Issuers and any right to participate in any collateral
for the Notes with respect to obligations owed to the Parent Guarantor arising
out of the Parent Guarantor's performance under this Guarantee. In addition to
and without in any way limiting the foregoing, during the Period the Parent
Guarantor hereby subordinates any and all indebtedness of the Co-Issuers now or
hereafter owed to the Parent Guarantor arising out of the Parent Guarantor's
performance of its obligations under this Guarantee to all indebtedness of the
Co-Issuers to the Noteholders, and agrees with the Noteholders that the Parent
Guarantor shall not demand or accept any payment of principal or interest from
the Co-Issuers with respect to such indebtedness, shall not claim any off-set or
other reduction of the Parent Guarantor's obligations hereunder because of any
such indebtedness and shall not take any action to obtain any of the collateral
from the Notes in satisfaction of any such indebtedness. Further, the Parent
Guarantor shall not have any right of recourse against the Noteholders by reason
of any action the Noteholders may take or omit to take under the provisions of
this Guarantee or under the provisions of any of the Transaction Documents, the
Agreement, the Other Agreements or the Notes.
ss. 1.6 Preference. The Parent Guarantor agrees that to the extent the
Co-Issuers makes any payment in cash on the Notes, which payment or any part
thereof is subsequently invalidated, voided, declared to be fraudulent or
preferential, set aside, or is required to be repaid to a trustee, receiver or
any other Person under any bankruptcy code, common law or equitable cause, then
and to the extent of such payment, the obligation or the part thereof intended
to be satisfied shall be revived and continued in full force and effect with
respect to the Parent Guarantor's obligations hereunder, as if said payment had
not been made. The liability of the Parent Guarantor hereunder shall not be
reduced or discharged, in whole or in part, by any payment to any holder of the
Notes from any source that is thereafter paid, returned or refunded in whole or
in part by reason of the assertion of a claim of any kind relating thereto,
including, but not limited to, any claim for breach of contract, breach of
warranty, preference, illegality, invalidity or fraud asserted by any account
debtor or by any other Person.
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ss. 1.7 Marshalling. No Noteholder shall be under any obligation (a) to
marshal any assets in favor of the Parent Guarantor or in payment of any or all
of the liabilities of the Co-Issuers under or in respect of the Notes or the
obligation of the Parent Guarantor hereunder or (b) to pursue any other remedy
that the Parent Guarantor may or may not be able to pursue itself and that may
lighten the Parent Guarantor's burden, any right to which the Parent Guarantor
hereby expressly waives to the fullest extent permitted by law.
ss. 1.8 Benefit to Noteholders. This Guarantee is entered into by the
Initial Noteholders and the Parent Guarantor for the benefit of the Noteholders
and is intended to confer certain rights on the Noteholders, to the extent
herein expressly provided, with the same effect as if each Noteholder were a
party hereto.
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS.
ss. 2.1 Representations, Warranties and Covenants.
(a) The Parent Guarantor has examined the Note Purchase Agreement,
including the exhibits and schedules thereto and all of the representations and
warranties set forth in the Note Purchase Agreement, to the extent the same
relate to the Parent Guarantor, are true and correct.
(b) The Parent Guarantor agrees to be bound by, and to comply with all of
the terms, covenants and provisions of the Note Purchase Agreement, to the
extent the same impose obligations in respect of or grants rights against it as
a Parent Guarantor or otherwise.
SECTION 3. AMENDMENTS, WAIVERS AND CONSENTS.
ss. 3.1 Consent Required. Any term, covenant, agreement or condition of
this Guarantee may, with the consent of the Parent Guarantor, be amended or
compliance therewith may be waived (either generally or in a particular instance
and either retroactively or prospectively), if the Parent Guarantor shall have
obtained the consent in writing of the Noteholders.
ss. 3.2 Effect of Amendment or Waiver. Any such amendment or waiver shall
be binding upon each future Noteholder and upon the Parent Guarantor, whether or
not the Notes shall have been marked to indicate such amendment or waiver. No
such amendment or waiver shall extend to or affect any obligation not expressly
amended or waived or impair any right consequent thereon.
SECTION 4. INTERPRETATION OF AGREEMENT; DEFINITIONS.
ss. 4.1 Definitions. Unless the context otherwise requires, the terms
hereinafter set forth when used herein shall have the following meanings and the
following definitions shall be equally applicable to both the singular and
plural forms of any of the terms herein defined:
"Business Day" shall mean any day other than a Saturday, Sunday or other
day on which commercial banks are generally not open for business in New York.
"Co-Issuers" shall have the meaning assigned thereto in the preamble at
the beginning of this Guarantee.
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"Default" shall have the meaning assigned thereto in the Notes.
"Event of Default" shall have the meaning assigned thereto in the Notes.
"GAAP" shall mean generally accepted accounting principles in the United
States at the time.
"guarantees" by any Person shall mean all obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing, or in effect guaranteeing,
whether directly or indirectly, any Indebtedness of any Person in any manner.
For the purposes of all computations made under this Guarantee, a guarantee in
respect of any Indebtedness shall be deemed to be Indebtedness equal to the
principal amount of such Indebtedness which has been guaranteed.
"Indebtedness" of any Person shall mean and include all obligations of
such Person which in accordance with GAAP shall be classified upon a balance
sheet of such Person as liabilities of such Person.
"Initial Noteholders" shall have the meaning assigned thereto in the
preamble at the beginning of this Guarantee.
"Make-Whole Amount" shall have the meaning assigned thereto in the Note
Purchase Agreement.
"Notes" shall have the meaning assigned thereto in the first recital at
the beginning of this Guarantee.
"Noteholders" shall have the meaning assigned thereto in 1.1 hereof.
"Note Purchase Agreement" shall have the meaning assigned thereto in the
first recital at the beginning of this Guarantee.
"Parent Guarantor" shall mean Drew Industries Incorporated, a Delaware
corporation.
"Person" shall mean an individual, partnership, corporation, joint
venture, association, joint stock company, business, trust or unincorporated
organization, and a government or agency or political subdivision thereof.
"U.S. $" or "U.S. Dollars" shall mean lawful money of the United States of
America in same day immediately available freely transferable funds.
ss. 4.2 Accounting Principles. Where the character or amount of any asset
or liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the
purposes of this Guarantee, the same shall be done in accordance with GAAP, to
the extent applicable, except where such principles are inconsistent with the
requirements of this Guarantee.
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ss. 4.3 Directly or Indirectly. Where any provision in this Guarantee
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether the action in question
is taken directly or indirectly by such Person.
SECTION 5. MISCELLANEOUS.
ss. 5.1 Successors and Assigns. All covenants and agreements in this
Guarantee shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not.
ss. 5.2 Notices. All notices and communications provided for hereunder
shall be in writing and sent by (a) facsimile if the sender on the same day
sends a confirming copy of such notice by either a recognized overnight delivery
service or personal delivery, or (b) personal delivery, or (c) a recognized
overnight delivery service, and (i) if to the Initial Note Purchasers, at the
address therefor set forth on Schedule 20 attached to the Note Purchase
Agreement, (ii) if to any subsequent Noteholders, at the address designated by
such Noteholder to the Co-Issuers and (iii) if to the Parent Guarantor, at 200
Mamaroneck Avenue, White Plains, New York 10601, Attention: President (fax
number (914) 428-4581), or to such other address as such parties shall have
notified the others in writing. Any demand, notice or other communication given
by personal delivery shall be conclusively deemed to have been given on the day
of actual delivery thereof and, if given by overnight courier, on the first
Business Day following the deposit thereof with overnight courier and, if given
by facsimile, on the day of transmittal thereof if given during the normal
business hours of the recipient and on the Business Day during which such normal
business hours next occur if not given during such hours on any day.
ss. 5.3 Descriptive Headings. The descriptive headings of the several
Sections of this Guarantee are inserted for convenience only and do not
constitute a part of this Guarantee.
ss. 5.4 Governing Law. THIS GUARANTEE SHALL BE GOVERNED BY THE LAW OF THE
STATE OF NEW YORK AND BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE INTERNAL LAWS OF SUCH STATE.
This Guarantee may not be changed orally, but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change, modification
or discharge is sought.
ss. 5.5 Consent to Jurisdiction and Venue. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY (I) AGREES THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS GUARANTEE MAY BE BROUGHT IN EITHER THE
SUPREME COURT OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, (II) CONSENTS TO THE JURISDICTION OF EACH
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING (SOLELY FOR SUCH PURPOSES),
AND (III) WAIVES ANY OBJECTION WHICH IT MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM AND COVENANTS THAT IT WILL NOT SEEK TO CHALLENGE THE
JURISDICTION OF ANY SUCH COURT OR SEEK TO OUST THE JURISDICTION OF ANY SUCH
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COURT, WHETHER ON THE BASIS OF INCONVENIENT FORUM OR OTHERWISE. THE PARENT
GUARANTOR (SOLELY FOR SUCH PURPOSES) IRREVOCABLY CONSENTS TO THE SERVICE OF ANY
AND ALL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAIL, SO LONG AS
COPIES OF SUCH PROCESS SHALL BE SENT TO THE PARENT GUARANTOR AT ITS ADDRESS FOR
NOTICES PROVIDED IN ss.5.1 HEREOF. ALL MAILINGS UNDER THIS ss.5.4 SHALL BE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED. NOTHING IN THIS ss.5.4
SHALL AFFECT THE RIGHT OF THE NOTEHOLDERS TO SERVE LEGAL PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW TO BRING ANY SUIT, ACTION OR PROCEEDING AGAINST THE
PARENT GUARANTOR OR ANY OF ITS PROPERTIES IN THE COURTS OF ANY OTHER
JURISDICTION.
ss. 5.6 Counterparts. This Guarantee may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original.
11
WITNESS, the execution of this Guarantee as of the date first above written.
DREW INDUSTRIES INCORPORATED
By:
------------------------------
Name:
Title:
The foregoing Guarantee is
hereby accepted as of the date
first above written.
TEACHERS INSURANCE AND ANNUITY
OF AMERICA
By:
------------------------------
Name:
Title:
ING INVESTMENT MANAGEMENT, INC.,
as agent for Midwestern United Life Insurance
Company and Security Life of Denver
Insurance Company
By:
------------------------------
Name: Fred C. Smith
Title: Senior Vice President and
Managing Director
ING INVESTMENT MANAGEMENT, LLC,
as agent for Equitable Life Insurance
Company of Iowa and USG Annuity & Life
Company
By:
------------------------------
Name: Fred C. Smith
Title: Senior Vice President and
Managing Director
12
TABLE OF CONTENTS
Page
SECTION 1. GUARANTEE OF CO-ISSUER OBLIGATIONS.................................1
ss. 1.1 Obligations Guaranteed.............................................1
ss. 1.2 General Provisions Relating to the Guarantee.......................2
ss. 1.3 Obligation Absolute and Unconditional..............................3
ss. 1.4 Payments Under Guarantee...........................................6
ss. 1.5 No Subrogation.....................................................6
ss. 1.6 Preference.........................................................7
ss. 1.7 Marshalling........................................................7
ss. 1.8 Benefit to Noteholders.............................................7
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS..........................8
ss. 2.1 Representations, Warranties and Covenants..........................8
SECTION 3. AMENDMENTS, WAIVERS AND CONSENTS...................................8
ss. 3.1 Consent Required...................................................8
ss. 3.2 Effect of Amendment or Waiver......................................8
SECTION 4. INTERPRETATION OF AGREEMENT; DEFINITIONS...........................8
ss. 4.1 Definitions........................................................8
ss. 4.2 Accounting Principles..............................................9
ss. 4.3 Directly or Indirectly.............................................9
SECTION 5. MISCELLANEOUS.....................................................10
ss. 5.1 Successors and Assigns............................................10
ss. 5.2 Notices...........................................................10
ss. 5.3 Descriptive Headings..............................................10
ss. 5.4 Governing Law.....................................................10
ss. 5.5 Consent to Jurisdiction and Venue.................................10
ss. 5.6 Counterparts......................................................11
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