Contract
Exhibit
10.3
SECOND
AMENDED AND RESTATED COMPANY GUARANTEE AGREEMENT dated as of November 25, 2008
made by DREW INDUSTRIES INCORPORATED, a Delaware corporation (the "Guarantor"),
with and in favor of JPMORGAN CHASE BANK, N.A. (f/k/a JPMorgan Chase Bank),
a
national association, 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 Second Amended And Restated Credit Agreement dated as
of
November 25, 2008 (as amended, supplemented, or modified from time to time,
the
"Credit Agreement") among Kinro, Inc., an Ohio corporation, and Xxxxxxx
Components, Inc., a Delaware corporation, as Borrowers (the "Borrowers"), the
financial institutions party thereto as lenders (the "Lenders") and JPMorgan
Chase Bank, N.A., 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. Reference is
further made to the Company Guarantee Agreement dated as of February 11, 2005
(as thereafter amended from time to time between the Guarantor and the
Administrative Agent, which instrument, the "Amended and Restated Company
Guarantee"), which instrument the parties agree is being amended and restated
hereby.
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 Second Amended and Restated
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 a 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 any 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 (and
hereby reaffirms and continues its guarantee under the Amended and Restated
Company Guarantee), 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 Pledgor or Debtor as such terms may be 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 more of the
Borrowers or any guarantor; (vii) the failure of any Person to become a
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.
2
(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.
(e) The
Guarantor agrees that it shall not make a payment on any guaranty securing
the
Prudential Notes or other Prudential Debt unless concurrently therewith it
shall
make payment hereunder to the Secured Parties on the Obligations on a
pari passu
basis
with respect to any such payment on or in respect of any such guaranty securing
the Prudential Notes or other Prudential Debt.
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.
3
Section
2.03. Security;
Waiver.
The
Guarantor authorizes the Administrative Agent, the Collateral Agent, and each
of
the other Secured Parties to (i) take and hold security for the payment of
this
guarantee and/or the Obligations and exchange, enforce, waive and release any
such security, (ii) apply such security and direct the order or manner of sale
thereof as they in their sole discretion may determine and (iii) release or
substitute any one or more endorsees, other guarantors or other obligors or
any
collateral. The Administrative Agent, the Collateral Agent, and the other
Secured Parties may, at their election, foreclose on any security held by one
or
more of them by one or more judicial or non-judicial sales, or exercise any
other right or remedy available to them against the Borrowers or any guarantor,
or any security, without affecting or impairing in any way the liability of
the
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.
4
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 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.
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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 survive the making by the Lenders of the Loans, and
the execution and delivery to the Lenders of any Notes evidencing such Loans,
regardless of any investigation made by the Secured Parties or on their behalf,
and (ii) shall continue in full force and effect as long as any of the
Obligations is outstanding and unpaid or the LC Exposure does not equal zero
and
as long as the Revolving Credit Commitments have not been terminated.
(b) Any
provision of this Agreement that is illegal, invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without invalidating the
remaining provisions hereof or affecting the legality, validity or
enforceability of such provisions in any other jurisdiction. The parties hereto
agree to negotiate in good faith to replace any illegal, invalid or
unenforceable provision of this Agreement with a legal, valid and enforceable
provision that, to the extent possible, will preserve the economic bargain
of
this Agreement, or to otherwise amend this Agreement to achieve such
result.
Section
4.03. Successors
and Assigns.
Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such party;
and all covenants, promises and agreements by or on behalf of any Credit Party
that are contained in this Agreement shall bind and inure to the benefit of
each
party hereto and their respective successors and assigns. No Credit Party may
assign or transfer any of its rights or obligations hereunder except as
expressly contemplated by this Agreement or the other Loan Documents (and any
such attempted assignment shall be void).
Section
4.04. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE
STATE OF NEW YORK WITHOUT REFERENCE TO CHOICE OF, OR CONFLICT OF, LAW
PRINCIPLES.
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: Xxxxxxx Xxxx.
Section
4.07. Counterparts.
This
Agreement may be executed in separate counterparts (facsimile 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.
6
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, 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.
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Section
4.10. WAIVER
OF JURY TRIAL, WAIVER OF SPECIAL DAMAGES.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
THE
GUARNTOR WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT EITHER
OF THEM MAY HAVE TO CLAIM OR RECOVER FROM THE ADMINISTRATIVE AGENT, THE
COLLATERAL AGENT, ANY LENDER OR ISSUING BANK IN ANY LEGAL ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY ANY SPECIAL, EXEMPLARY, PUNITIVE
OR
CONSEQUENTIAL DAMAGES.
8
IN
WITNESS WHEREOF, the parties hereto have caused this Second Amended and Restated
Company Guarantee Agreement to be duly executed and delivered by their
respective officers as of the day and year first above written.
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DREW
INDUSTRIES INCORPORATED
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By:
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Name:
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Title:
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JPMORGAN
CHASE BANK, N.A.
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as
Administrative Agent
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By:
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Name:
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Title:
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