Contract
Exhibit
10.2
SECOND
AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT dated as of November 25,
2008 made by each direct and indirect subsidiary of DREW INDUSTRIES
INCORPORATED, a Delaware corporation, (other than KINRO, INC., an Ohio
corporation, and XXXXXXX COMPONENTS, INC., a Delaware corporation (the
"Borrowers")) that becomes a party hereto as a guarantor hereunder (each, a
"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 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 Amended
and Restated Subsidiary Guarantee Agreement dated as of February 11, 2005,
(as
thereafter amended and supplemented from time to time, the "Restated Subsidiary
Guarantee") between the Guarantors and the Administrative Agent, 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 obligations of the Lenders
to make Loans are conditioned on, among other things, the execution and delivery
by each Guarantor hereunder of a guarantee agreement in the form
hereof.
NOW,
THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto hereby agree as follows:
Section
1.01. Definitions;
Terms.
References to this "Agreement" shall be to this Amended and Restated Subsidiary
Guarantee Agreement as amended, supplemented, or otherwise modified from time
to
time. The term "Obligations" shall mean, collectively, (a) the due and punctual
payment of (i) the principal of and interest (including interest accruing during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding)
on
the Loans when and as due, whether at maturity, by acceleration, upon one or
more dates on which repayment or prepayment is required, or otherwise, (ii)
each
payment required to be made by the Borrowers under the Credit Agreement in
respect of 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 either of them) under or in respect of any
Interest Rate Hedging Agreement now or hereafter in effect, and (b) the due
and
punctual performance of all covenants, agreements, obligations and liabilities
of the Borrowers under or pursuant to the Credit Agreement and the other Loan
Documents and under any Interest Rate Hedging Agreement now or hereafter in
effect. References to a "guarantor" shall include each Guarantor hereunder,
the
Company, and any other Person that is a guarantor of any or all of the
Obligations, and references to a "guarantee" shall include this Agreement,
the
Company Guarantee Agreement and any other guarantee of any or all of the
Obligations by any other Person.
Section
2.01. Guarantee.
(a) The
Guarantors hereby, jointly and severally, unconditionally, absolutely, and
irrevocably guarantee (and hereby reaffirm and continue their guarantees under
the Restated Subsidiary Guarantee), each as a primary obligor and not merely
as
a surety, the due and punctual payment and performance in full of the
Obligations, in each case strictly in accordance with the terms thereof. In
furtherance of the foregoing and not in limitation of any other right that
any
Secured Party may have at law or in equity against any Guarantor by virtue
hereof, the Guarantors jointly and severally agree that upon failure of the
Borrowers to pay any Obligations when and as the same shall become due, whether
at maturity, by acceleration, on one or more dates on which prepayment or
repayment is required, or otherwise, the Guarantors will, without any demand
or
notice whatsoever, forthwith pay or cause to be paid to the Administrative
Agent
or such other Secured Party as is designated thereby, in cash in immediately
available funds, an amount equal to the unpaid amount of such Obligations.
Each
Guarantor further agrees that the Obligations guaranteed by it hereunder may
be
increased in amount, extended or renewed, or otherwise amended or modified
in
any respect, including, without limitation, as to principal, scheduled
repayment, prepayment, interest, fees, indemnification, compensation, and in
any
other respect whatsoever, in whole or in part, without notice or further assent
from it, and that it will remain bound upon this guarantee in respect of such
Obligations as so increased, extended, renewed, amended or modified. Payments
by
each Guarantor hereunder may be required on any number of
occasions.
(b) Each
Guarantor waives presentation to, demand for payment from and protest to the
Borrowers or any other guarantor, and also waives notice of acceptance of its
guarantee and notice of protest for nonpayment. The obligations of each
Guarantor hereunder shall not be affected by (i) the failure of any Secured
Party to assert any claim or demand or to enforce any right or remedy against
any Credit Party or any other Person under the provisions of any Loan Document
or any other agreement or otherwise; (ii) any rescission, waiver,
forbearance, compromise, acceleration, amendment or modification of, or any
release of any party from any of the terms or provisions of, this Agreement,
any
other Loan Document, any Obligation or any other guarantee or any security
interest in respect of the Obligations (including, without limitation, in
respect of any other guarantor, or any Pledgor or Debtor as either such term
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 hereunder, whether or not required under the Credit Agreement; or
(viii) any other circumstance that might otherwise, but for this specific
agreement of each Guarantor to the contrary, result in a discharge of or the
exoneration of such Guarantor hereunder, it being the intent of the parties
hereto that the obligations of the Guarantors hereunder shall be absolute and
unconditional under any and all circumstances.
(c) Each
Guarantor agrees that this guarantee constitutes a guarantee of performance
and
of payment when due and not just of collection, that it is a primary obligation
of such Guarantor, and that such Guarantor waives any right to require that
any
resort be had by any Secured Party to any security held for this guarantee
or
for payment of any Obligations, or to any balance of any deposit, account,
or
credit on the books of any Secured Party in favor of any Credit Party, or to
any
other Person or property. To the fullest extent permitted by law, each Guarantor
hereby expressly waives any and all rights or defenses arising by reason of
(i) any "one action" or "anti-deficiency" law that would otherwise prevent
any Secured Party from bringing any action, including any claim for a
deficiency, or exercising any right or remedy (including any right of set-off)
against such Guarantor before or after the commencement or completion of any
foreclosure action or sale of collateral, whether judicially, by exercise of
power of sale or otherwise, or (ii) any other law that in any other way
would otherwise require any election of remedies by any Secured
Party.
(d) No
demand
hereunder or enforcement hereof against any Guarantor shall require any demand
or enforcement against any other Credit Party.
(e) Each
Guarantor agrees that it shall not make any payment on or in respect of any
guaranty securing the Prudential Notes or other Prudential Debt unless
concurrently therewith it shall make a payment hereunder to the Secured Parties
on the Obligations on a pari passu
basis
with respect to any such payment on or in respect of any such guaranty securing
the Prudential Notes or other Prudential Debt.
Section
2.02. No
Impairment of Guarantee.
The
obligations of the Guarantors hereunder shall remain absolute and unconditional
and shall not be subject to any reduction, limitation, impairment or termination
for any reason, including without limitation, any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any defense
or
set-off, counterclaim, recoupment or termination whatsoever, by reason of the
invalidity, illegality or unenforceability of the Obligations or of this
guarantee (or any portion or provision thereof or hereof) or otherwise. Without
limiting the generality of the foregoing, each Guarantor specifically agrees
that it shall not be discharged or exonerated, nor shall its obligations
hereunder be limited or otherwise affected by the failure of any Secured Party
to exercise any right, remedy, power, or privilege or to assert any claim or
demand or to enforce any remedy under any Loan Document or applicable law,
including, without limitation, any failure by any Secured Party to setoff or
release in whole or in part any balance of any deposit account or credit on
its
books in favor of any Credit Party, or by any waiver, consent, extension,
indulgence, modification, or other action or inaction in respect of any thereof,
or by any default, failure or delay, willful or otherwise, in the performance
of
any Obligations, or by any other act or thing or omission or delay to do any
other act or thing, by any Person, that might in any manner or to any extent
vary the risk of such Guarantor or that might but for the specific provisions
hereof to the contrary otherwise operate as a discharge or exoneration of such
Guarantor, unless and until the Obligations are fully, finally and indefeasibly
paid in cash.
Section
2.03. Security;
Waiver.
Each of
the Guarantors authorizes the Administrative Agent, the Collateral Agent, and
each of the other Secured Parties to (i) take and hold security for the payment
of this guarantee and/or the Obligations and exchange, enforce, waive and
release any such security, (ii) apply such security and direct the order or
manner of sale thereof as they in their sole discretion may determine and (iii)
release or substitute any one or more endorsees, other guarantors or other
obligors or any collateral. The Administrative Agent, the Collateral Agent,
and
the other Secured Parties may, at their election, foreclose on any security
held
by one or more of them by one or more judicial or non-judicial sales, or
exercise any other right or remedy available to them against the Borrowers
or
any Guarantor, or any security, without affecting or impairing in any way the
liability of the Guarantors hereunder except to the extent that the Obligations
have been fully, finally and indefeasibly paid in cash. Each of the Guarantors
waives any defense arising out of any such election even though such election
operates to impair or to extinguish any right of reimbursement or subrogation
or
other right or remedy of such Guarantor against the Borrowers or any other
Guarantor, as the case may be, or any security.
Section
2.04. Continuation
and Reinstatement, etc.
The
Guarantors jointly and severally agree that the guarantee hereunder shall
continue to be effective or shall be reinstated, as the case may be, if at
any
time payment, or any part thereof, in respect of any Obligation is rescinded
or
must otherwise be restored by any Secured Party upon the bankruptcy or
reorganization of any Credit Party, or otherwise.
Section
2.05. Subrogation.
The
Guarantors jointly and severally agree that throughout the period referred
to in
clause (ii) of Section 4.02(a) hereof no Guarantor shall (i) exercise, and
each hereby waives, any rights against the Borrowers and any other guarantor
arising as a result of payment by such Guarantor hereunder, by way of
subrogation, reimbursement, restitution, contribution or otherwise,
(ii) prove any claim in competition with any Secured Party in respect of
any payment hereunder in any bankruptcy, insolvency or reorganization case
or
proceeding of any nature, or (iii) have any benefit of or any right to
participate in any collateral security that may be held by any Secured Party
for
the Obligations.
Section
2.06. Subordination.
The
payment of any amounts due with respect to any indebtedness of any Credit Party
now or hereafter owed to any Guarantor (including, without limitation, any
such
indebtedness arising by way of subrogation, reimbursement, restitution,
contribution or otherwise in respect of performance by such Guarantor hereunder)
is hereby subordinated to the prior full, final, and indefeasible payment in
cash of all Obligations. If, notwithstanding the foregoing sentence, any
Guarantor shall collect, enforce or receive any amounts in respect of such
indebtedness, such amounts shall be collected, enforced and received by such
Guarantor as trustee for the Secured Parties and be paid over to the
Administrative Agent on account of and to be applied against the Obligations,
without affecting in any manner the liability of such Guarantor under the other
provisions of this Agreement.
Section
2.07. Remedies.
The
Guarantors jointly and severally agree that, as between the Guarantors and
the
Secured Parties, the obligations of the Borrowers under the Credit Agreement
may
be declared to be forthwith due and payable as provided in Article VII of the
Credit Agreement (and shall be deemed to have become automatically due and
payable in the circumstances provided in clause (h) or (i) of said Article
VII)
for purposes of the guarantee hereunder notwithstanding any stay, injunction
or
other prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrowers and that, in the event
of such declaration (or such obligations' being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by the Borrowers) shall forthwith become due and payable by the Guarantors
for
purposes hereof.
Section
2.08. Payment.
Each
Guarantor hereby agrees that any Secured Party, at its sole option, in the
event
of a dispute by such Guarantor in the payment of any moneys due hereunder,
shall
have the right to proceed under New York CPLR Section 3213.
Section
2.09. Continuing
Guarantee.
The
guarantee hereunder is a continuing guarantee, and shall apply to all
Obligations whenever arising.
Section
2.10. Rights
of Contribution.
The
Guarantors hereby agree, as among themselves, that if any Guarantor shall become
an Excess Funding Guarantor (as defined below) by reason of the payment by
such
Guarantor of any Obligations, each other Guarantor shall, on demand of such
Excess Funding Guarantor, pay to such Excess Funding Guarantor an amount equal
to such Guarantor's Pro Rata Share (as defined below and determined, for this
purpose, without reference to the properties, debts and liabilities of such
Excess Funding Guarantor) of the Excess Payment (as defined below) in respect
of
such Obligations; provided, however, that the payment obligation of a Guarantor
to any Excess Funding Guarantor under this Section 2.10 shall be subordinate
and
subject in right of payment to the Obligations in accordance with Section 2.06
hereof. For purposes of this Section 2.10, (i) "Excess Funding Guarantor" shall
mean, in respect of any Obligations, a Guarantor that has paid an amount in
excess of its Pro Rata Share of such Obligations, (ii) "Excess Payment" shall
mean, in respect of any Obligations, the amount paid by an Excess Funding
Guarantor in excess of its Pro Rata Share of such Obligations and (iii) "Pro
Rata Share" shall mean, for any Guarantor, the fraction the numerator of which
is (x) the amount by which the aggregate fair saleable value of all properties
of such Guarantor (excluding any shares of stock of any other Guarantor) exceeds
the amount of all the debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured and unliquidated liabilities, but excluding
the obligations of such Guarantor hereunder and any obligations of any other
Guarantor that have been guaranteed by such Guarantor) and the denominator
of
which is (y) the amount by which the aggregate fair saleable value of all
properties of all of the Guarantors exceeds the amount of all the debts and
liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Guarantors hereunder) of
all
the Guarantors, determined (A) with respect to any Guarantor that is a party
hereto on the date hereof, as of the date hereof, and (B) with respect to any
other Guarantor, as of the date such Guarantor becomes a Guarantor.
Section
2.11. General
Limitation on Guarantee.
In any
action or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Guarantor under Section 2.01
hereof would otherwise, taking into account the provisions of Section 2.10
hereof, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount
of
its liability under said Section 2.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Guarantor, any Secured Party, or any other Person, be
automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding.
Section
2.12. Other
Guarantors.
This
Agreement shall remain the unconditional, absolute, and irrevocable obligation
of each Guarantor signatory hereto regardless of whether any other Person (i)
becomes a party hereto obligated as a Guarantor hereunder or otherwise as a
guarantor in respect of the Obligations (whether or not the Credit Agreement
requires that such Person be or become a Guarantor) or (ii) fails to become
or
ceases to be a party hereto or otherwise fails to become or ceases to be a
Guarantor of the Obligations (whether or not the Credit Agreement requires
that
such Person be or become a Guarantor).
Section
2.13. Information.
Each
Guarantor assumes all responsibility for being and keeping itself informed
of
the financial condition and assets of the Borrowers, and of all other
circumstances bearing upon the risk of nonpayment of the Obligations and the
nature, scope and extent of the risks that such Guarantor assumes and incurs
hereunder, and agrees that no Secured Party has or will have any duty to advise
any of the Guarantors of information regarding such circumstances or
risks.
Section
3.01. Representation
and Warranties
Each
Guarantor represents and warrants that all representations and warranties
relating to it in the Credit Agreement are true and correct.
Section
4.01. Amendment;
Waiver.
No
amendment or waiver of any provision of this Agreement, nor consent to any
departure by any Guarantor therefrom, shall in any event be effective unless
the
same shall be in writing and signed by the Administrative Agent with the written
consent of the Required Lenders. Any such waiver, consent or approval shall
be
effective only in the specific instance and for the purpose for which given.
No
notice to or demand on any Guarantor in any case shall entitle any Guarantor
to
any other or further notice or demand in the same, similar or other
circumstances. No waiver by any Secured Party of any breach or default of or
by
any Guarantor under this Agreement shall be deemed a waiver of any other
previous breach or default or any thereafter occurring.
Section
4.02. Survival;
Severability.
(a)
All
covenants, agreements, representations and warranties made by the Guarantors
herein and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document (i)
shall be considered to have been relied upon by the Lenders and the other
Secured Parties and shall survive the making by the Lenders of the Loans, and
the execution and delivery to the Lenders of any Notes evidencing such Loans,
regardless of any investigation made by the Secured Parties or on their behalf,
and (ii) shall continue in full force and effect as long as any of the
Obligations is outstanding and unpaid or the LC Exposure does not equal zero
and
as long as the Revolving Credit Commitments have not been terminated.
(b)
Any
provision of this Agreement that is illegal, invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without invalidating the
remaining provisions hereof or affecting the legality, validity or
enforceability of such provisions in any other jurisdiction. The parties hereto
agree to negotiate in good faith to replace any illegal, invalid or
unenforceable provision of this Agreement with a legal, valid and enforceable
provision that, to the extent possible, will preserve the economic bargain
of
this Agreement, or to otherwise amend this Agreement to achieve such
result.
Section
4.03. Successors
and Assigns.
Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such party;
and all covenants, promises and agreements by or on behalf of any Credit Party
that are contained in this Agreement shall bind and inure to the benefit of
each
party hereto and their respective successors and assigns. No Credit Party may
assign or transfer any of its rights or obligations hereunder except as
expressly contemplated by this Agreement or the other Loan Documents (and any
such attempted assignment shall be void).
Section
4.04. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE
STATE OF NEW YORK 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 any
Guarantor shall be given to it at its address set forth in Schedule
A
hereto.
Section
4.07. Counterparts;
Additional Guarantors.
(a)
This Agreement may be executed in separate counterparts (telecopy of any
executed counterpart having the same effect as manual delivery thereof), each
of
which shall constitute an original, but all of which, when taken together,
shall
constitute but one Agreement.
(b)
Upon
execution and delivery after the date hereof by the Administrative Agent and
a
Subsidiary of the Company of an instrument in the form of Exhibit
4.07(b)
hereto,
such Subsidiary shall become a Guarantor hereunder with the same force and
effect as if originally named as a Guarantor herein. The execution and delivery
of such instrument shall not require the consent of any Guarantor hereunder.
The
rights and obligations of each Guarantor hereunder shall remain in full force
and effect notwithstanding the addition of, or the failure to add, any new
Guarantor as a party hereto, in each case whether or not required under the
Credit Agreement.
Section
4.08. Right
of Setoff.
Each
Guarantor hereby agrees that if an Event of Default shall have occurred and
be
continuing, each Lender and each of its Affiliates is hereby authorized at
any
time and from time to time, to the fullest extent permitted by law, to set
off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of any Guarantor against
any of and all the obligations of such Guarantor now or hereafter existing
under
this Agreement or any other Loan Document held by such Lender, irrespective
of
whether or not such Lender shall have made any demand under this Agreement
or
such other Loan Document and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender may
have.
Section
4.09. Jurisdiction;
Consent to Service of Process.
(a)
Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State
of
New York sitting in New York County and of the United States District Court
of
the Southern District of New York, and any appellate court from any thereof,
in
any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any
such action or proceeding may be heard and determined in such New York State
or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall
be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or
in any other manner provided by law. Nothing in this Agreement shall affect
any
right that the Administrative Agent, the Collateral Agent, or any other Secured
Party may otherwise have to bring any action or proceeding relating to this
Agreement against any Guarantor or its properties in the courts of any
jurisdiction.
(b)
Each
Guarantor hereby irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement in any court referred to in the preceding
paragraph. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(c)
Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 4.06. Nothing in this Agreement will affect
the
right of any party to this Agreement to serve process in any other manner
permitted by law.
Section
4.10. WAIVER
OF JURY TRIAL; 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.
EACH
GUARANTOR 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.
[BALANCE
OF PAGE INTENTIONALLY LEFT BLANK.]
IN
WITNESS WHEREOF, the parties hereto have caused this Second Amended and Restated
Subsidiary Guarantee Agreement to be duly executed and delivered by their
respective officers or representatives as of the day and year first above
written.
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XXXXXXX
TIRE & AXLE, INC.
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By:
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Name:
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Title:
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KINRO
HOLDING, INC.
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By:
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Name:
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Title:
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XXXXXXX
TIRE & AXLE HOLDING, INC.
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By:
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Name:
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Title:
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XXXXXXX
HOLDING, INC.
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By:
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Name:
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Title:
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KINRO
MANUFACTURING, INC.
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By:
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Name:
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Title:
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XXXXXXX
COMPONENTS MANUFACTURING, INC.
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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:
|
|||
|
XXXXXXX
TIRE & AXLE TEXAS LIMITED PARTNERSHIP
|
|||
|
By:
|
XXXXXXX
COMPONENTS MANUFACTURING, INC., its general partner
|
||
|
By:
|
|
||
|
Name:
|
|||
| Title: | |||
|
XXXXXXX
COMPONENTS TEXAS, LIMITED PARTNERSHIP
|
|||
|
By:
|
XXXXXXX
COMPONENTS MANUFACTURING INC., its general partner
|
||
|
By:
|
|
||
|
Name:
|
|||
|
Title:
|
|||
|
BBD
REALTY TEXAS LIMITED PARTNERSHIP
|
|||
|
By:
|
KINRO
MANUFACTURING, INC., its general partner
|
||
|
By:
|
|
||
|
Name:
|
|||
|
Title:
|
|||
|
LD
REALTY, INC.
|
|||
|
By:
|
|
||
|
Name:
|
|||
|
Title:
|
|||
|
LTM
MANUFACTURING, L.L.C.
|
|||
|
By:
|
|
||
|
Name:
|
|||
|
Title:
|
|||
|
TRAILAIR,
INC.
|
|||
|
By:
|
|
||
|
Name:
|
|||
|
Title:
|
|||
|
COIL CLIP, INC.
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
XXXXXX MANUFACTURING COMPANY
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
JPMORGAN CHASE BANK, N.A.
|
|
|
as Administrative Agent
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
