Exhibit 4.01-2
to the
Credit Agreement
COMPANY GUARANTEE AGREEMENT dated as of May 15, 1997 made by DREW
INDUSTRIES INCORPORATED, a Delaware corporation (the "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 May 15,
1997 (as amended, supplemented, or modified from time to time, the "Credit
Agreement") among Kinro, Inc., an Ohio corporation, and Shoals Supply, 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. The
Guarantor is the owner of all the issued and outstanding capital stock of each
of the Borrowers. The obligations of the Lenders to make Loans are conditioned
on, among other things, the execution and delivery by the 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 Company 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. References to a "guarantor" shall include the Guarantor
hereunder, each "Guarantor" as such term is defined in the Subsidiary Guarantee
Agreement, 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
Subsidiary Guarantee Agreement and any other guarantee of any or all of the
Obligations by any other Person.
Section 2.01. Guarantee.
(a) The Guarantor hereby, unconditionally, absolutely, and
irrevocably guarantees, 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 the Guarantor by virtue hereof, the Guarantor agrees 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 Guarantor 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. The 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 the Guarantor hereunder may be required on any
number of occasions.
(b) The 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 the 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 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
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guarantor pursuant to any other Loan Document, whether or not required under the
Credit Agreement; or (viii) any other circumstance that might otherwise, but for
this specific agreement of the Guarantor to the contrary, result in a discharge
of or the exoneration of the Guarantor hereunder, it being the intent of the
parties hereto that the obligations of the Guarantor hereunder shall be absolute
and unconditional under any and all circumstances.
(c) The 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 the Guarantor, and that the 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, the 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 the 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 the
Guarantor shall require any demand or enforcement against any other Credit
Party.
Section 2.02. No Impairment of Guarantee. The obligations of the Guarantor
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, the 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, 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 the Guarantor
or that might but for the specific provisions hereof to the contrary otherwise
operate as a discharge or exoneration of the Guarantor, unless and until the
Obligations are fully, finally and indefeasibly paid in cash.
Section 2.03. Security; Waiver. The Guarantor authorizes the
Administrative Agent, the Collateral Agent, the Special 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
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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, the Special 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
Guarantor hereunder except to the extent that the Obligations have been fully,
finally and indefeasibly paid in cash. The Guarantor 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
the Guarantor against the Borrowers or any other guarantor, as the case may be,
or any security.
Section 2.04. Continuation and Reinstatement, etc. The Guarantor agrees
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 Guarantor agrees that throughout the period
referred to in clause (ii) of Section 4.02(a) hereof the Guarantor shall not (i)
exercise, and hereby waives, any rights against the Borrowers and any other
guarantor arising as a result of payment by the 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 the Guarantor
(including, without limitation, any such indebtedness arising by way of
subrogation, reimbursement, restitution, contribution or otherwise in respect of
performance by the Guarantor hereunder) is hereby subordinated to the prior
full, final, and indefeasible payment in cash of all Obligations. If,
notwithstanding the foregoing sentence, the Guarantor shall collect, enforce or
receive any amounts in respect of such indebtedness, such amounts shall be
collected, enforced and received by the 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 the Guarantor under the other provisions of this Agreement.
Section 2.07. Remedies. The Guarantor agrees that, as between the
Guarantor 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
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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 Guarantor for purposes hereof.
Section 2.08. Payment. The Guarantor hereby agrees that any Secured Party,
at its sole option, in the event of a dispute by the 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. Other Guarantors. This Agreement shall remain the
unconditional, absolute, and irrevocable obligation of the Guarantor regardless
of whether any other Person (i) becomes 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 guarantor of the
Obligations (whether or not the Credit Agreement requires that such Person be or
become a guarantor).
Section 2.11. Information. The 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 the Guarantor
assumes and incurs hereunder, and agrees that no Secured Party has or will have
any duty to advise the Guarantor of information regarding such circumstances or
risks.
Section 3.01. Representation and Warranties The Guarantor represents and
warrants that all representations and warranties relating to it in the Credit
Agreement are true and correct.
Section 4.01. Amendment; Waiver. No amendment or waiver of any provision
of this Agreement, nor consent to any departure by the 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 the
Guarantor in any case shall entitle the 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 the 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 Guarantor 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
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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
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.
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 the Guarantor shall be given to it at 000 Xxxxxxxxxx Xxxxxx,
Xxxxx Xxxxxx, Xxx Xxxx 00000 Attention: Xxxxx X. Xxxxxx.
Section 4.07. Counterparts. 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.
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Section 4.08. Right of Setoff. The 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 the Guarantor against any of and all the obligations of
the 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) The 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 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 Special Collateral Agent or any other Secured Party
may otherwise have to bring any action or proceeding relating to this Agreement
against the Guarantor or its properties in the courts of any jurisdiction.
(b) The 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
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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 Company
Guarantee Agreement to be duly executed and delivered by their respective
officers as of the day and year first above written.
DREW INDUSTRIES INCORPORATED
By:
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Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
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Name:
Title:
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