Exhibit 4.01-4
to the
Credit Agreement
SECURITY AGREEMENT dated as of May 15, 1997 among Kinro, Inc., an
Ohio corporation and Shoals Supply, Inc., a Delaware corporation (each, a
"Borrower"), the other parties listed on the signature pages hereof (each a
"Guarantor" and collectively, together with the Borrowers, the "Debtors"), and
The Chase Manhattan Bank as agent (in such capacity, the "Collateral Agent") for
the Secured Parties (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 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, all upon the
terms and subject to the conditions specified in the Credit Agreement. Each
Guarantor is a direct or indirect Subsidiary of a Borrower and has agreed to
guarantee, among other things, all the obligations of the Borrowers under the
Credit Agreement. The obligations of the Lenders to make Loans are conditioned
on, among other things, the execution and delivery by the Debtors of a security
agreement in the form hereof.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I.
Section 1.01. Definitions. In addition to the terms defined above, the
following words and terms shall have the respective meanings, and it is hereby
agreed with respect thereto, as follows:
"Account Debtor" shall mean any Person who is or may become
obligated under, with respect to or on account of an Account Receivable.
"Accounts Receivable" shall mean in respect of any Debtor, (i) all
present and future "accounts", "chattel paper" and "documents", as such terms
are defined in the Uniform Commercial Code, of such Debtor, (ii) without
limiting the foregoing, all right, title and interest, and all the rights,
remedies, security and Liens, in, to and in respect of any Accounts Receivable
of such Debtor, including, without limitation, all right, title and interest of
such Person in any returned goods, all guaranties or other contracts of
suretyship with respect to Accounts Receivable, deposits, or other security for
the obligation of any Account Debtor, any credit or other insurance, any rights
to stoppage in transit, replevin, reclamation, or resale, and (iii) without
limiting the foregoing, all right, title and interest of such Debtor in, to and
in respect of invoices or other documents or instruments with respect to, or
otherwise representing or evidencing, any Account Receivable.
"Agreement" shall mean this Security Agreement, as it shall be
amended, supplemented or otherwise modified from time to time.
"Collateral" shall mean and collectively refer to all of the present
and future right, title and interest of each Debtor in (i) all of its Accounts
Receivable, General Intangibles, Inventory, Equipment and Records, and all other
personal property of such Debtor and (ii) all Proceeds, rent, issues, profits,
and products of, and all distributions and collections in respect of, the
foregoing property described in clause (i); in each case whether now owned or
hereafter acquired and wherever located; provided, however, that the term
"Collateral" shall not include (x) any of the foregoing to the extent located in
the State of Alabama or (y) any of the rights and other property described in
Schedule 1.01 hereto.
"Equipment" shall mean, in respect of any Debtor, all present and
future machinery, equipment (including, without limitation, all manufacturing,
warehouse, and office equipment), fixtures, trade fixtures, engineering drawings
and diagrams, tools and tooling (including any rights in respect of tools or
tooling in the possession of others), computer and other data processing
equipment, furniture, office, production or data processing supplies on hand or
in transit, other miscellaneous supplies and other tangible property of any kind
now owned or hereafter acquired by such Debtor or in which such Debtor now has
or may hereafter acquire any right, title or interest and wheresoever located,
in all its forms, including, without limitation, all "equipment" of such Debtor
within the meaning of the Uniform Commercial Code and all such property located
in any plant, warehouse, office or other space leased, owned or occupied by such
Debtor and all of such Debtor's interest in all leasehold improvements and any
and all additions, accessions and appurtenances thereto, substitutions therefor
and replacements thereof, together with all attachments, components, parts and
accessories installed thereon or affixed thereto.
"General Intangibles" shall mean, in respect of any Debtor, all
general intangibles of such Person of every nature, whether now existing or
hereafter acquired, arising or created, and shall include, in any event, all
"general intangibles" within the meaning of the Uniform Commercial Code, and,
without limiting the foregoing, all Intellectual Property, all goodwill and
deposit accounts and all contracts, causes of action and choses in action,
suits, judgments, statutory and other claims and demands, whether or not now
known to exist, including in respect of intercompany loans, and including all
Federal, state and other income tax refunds of such Person and all rights and
claims of subrogation, recoupment, contribution or indemnity (whether in equity,
at law, by contract or otherwise) of such Person against any other Person,
including, without limitation, any letter of credit, guarantee, claim, security
interest, or other security held to secure payment by an Account Debtor of any
Account Receivable.
"Intellectual Property" shall mean, in respect of any Debtor, all
intellectual and similar property of such Debtor of every kind and nature now
owned or hereafter acquired by such Debtor, including inventions, designs,
patents, patent applications, copyrights, copyright registrations, applications
to register copyrights, licenses, trademarks (including service marks),
trademark or service xxxx applications, trade names, trade secrets, confidential
or proprietary technical and business information, know-how, show-how or other
data or information, software and databases and all embodiments or fixations
thereof and related
-2-
documentation, registrations and franchises, and all additions, improvements and
accessions to, and books and records describing or used in connection with, any
of the foregoing.
"Inventory" shall mean, in respect of any Debtor, all present and
future inventory of such Debtor of every type or description, including, without
limitation, all goods now owned or hereafter acquired, held for sale or lease,
or furnished or to be furnished under contracts of service or consumed in such
Person's business (including all such goods that have been returned or
repossessed), whether raw, in process or finished, all materials or equipment
useable in processing the same, scrap inventory, spare parts, all supplies, all
packaging materials, all documents of title covering any inventory and all
additions and accessions thereto, and shall include, in any event, all
"inventory" within the meaning of the Uniform Commercial Code, wherever located.
"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), (x) of the Borrowers to one or
more of the Secured Parties under the Credit Agreement, (y) of the Guarantors
under the Guarantee Agreements, (z) of the Borrowers and of the other Credit
Parties under any other Loan Documents (including this Agreement) to which the
Borrowers or such other Credit Parties are or are to be parties, and (aa) of the
Borrowers (or either of them) to any Lender as an Interest Rate Protection
Merchant under or in respect of any Interest Rate Hedging Agreement now or
hereafter in effect, 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 of the Borrowers and of the other Credit Parties under
the other Loan Documents (including the Guarantee Agreements and this Agreement)
and under any Interest Rate Hedging Agreement now or hereafter in effect.
"Perfection Certification" shall have the meaning given thereto in
Section 2.02(c).
"Proceeds" shall have the meaning assigned to it under the Uniform
Commercial Code and, in any event, shall include but not be limited to any
consideration received from the sale, exchange, lease or other disposition of
any asset or property which constitutes Collateral, any distribution in respect
thereof or payment or collection thereon, and any payment received from any
insurer or other Person as a result of the destruction, loss, theft or other
involuntary conversion of whatever nature of any asset or property that
constitutes Collateral, and shall include, without limitation, all cash and
negotiable instruments received or
-3-
held by any Secured Party pursuant to any lockbox or similar arrangement
relating to the payment of Accounts Receivable.
"Records" shall mean, in respect of any Debtor, all instruments,
files, ledgers and books of account and other records of such Debtor, including,
without limitation, all customer lists, computer programs, computer disks and
tapes, printouts and other materials upon which is stored any information
relating to such Debtor's business, now owned or hereafter acquired, wherever
located.
Section 1.02. Terms Generally. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". All references
herein to Articles, Sections, Exhibits, and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. References to provisions of
statutes, rules, regulations, and other documents shall be deemed to include
successor provisions thereto. Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in accordance with
GAAP, as in effect from time to time.
ARTICLE II.
Section 2.01. Security Interest. As security for the due and punctual
payment and performance of its Obligations, each Debtor hereby mortgages,
pledges, assigns, transfers, sets over, hypothecates, conveys, grants and
delivers to the Collateral Agent, its successors and its assigns, for the
ratable benefit of the Secured Parties, a first priority security interest in
all of such Debtor's right, title, and interest in, to, and under the
Collateral.
Section 2.02. Representations, Warranties and Covenants. Each Debtor
hereby represents and warrants to, and covenants with, each Secured Party, as
follows:
(a) Except for the foregoing security interest granted to the
Collateral Agent, such Debtor is and will at all times continue to be the direct
owner of, and have good and marketable title to the Collateral in respect of
which it has purported to grant a security interest hereunder, free and clear of
all Liens, and has not made and will not make any assignment, pledge,
hypothecation or transfer of, or create or suffer to exist any Lien, on any such
Collateral other than in favor of the Collateral Agent for the ratable benefit
of the Secured Parties.
(b) Such Debtor (i) has, and at all times will have, good right and
full legal power and authority to grant, confirm and continue the security
interest granted hereunder and to execute, deliver, and perform its obligations
hereunder, all without the consent or approval of any party, other than any such
consent or approval as has been obtained and (ii) will defend its title and
interest to the Collateral and the security interest (and priority thereof) of
the Collateral Agent against any and all attachments, Liens, or other
impediments of any nature, however arising, of all persons whomsoever.
-4-
(c) The Perfection Certificate in the form of Exhibit 2.02 hereto
(the "Perfection Certificate") has been duly prepared, completed and executed
and the information set forth therein is correct and complete. Fully executed
Uniform Commercial Code financing statements or other appropriate filings,
recordings or registrations (other than, in respect of copyrights, such as would
be made in the United States Copyright Office) containing a description of the
Collateral have been delivered to the Collateral Agent for filing in each
governmental, municipal or other office specified in Schedule 6 to the
Perfection Certificate, which are all the filings, recordings and registrations
that are necessary to publish notice of and protect the validity of and to
establish a valid and perfected security interest in favor of the Collateral
Agent (for the ratable benefit of the Secured Parties) in respect of all
Collateral (other than copyrights, to the extent that recordings and
registration in the United States Copyright Office may be necessary) in which
the security interest granted hereunder may be perfected by filing, recording or
registration in the United States (or any political subdivision thereof) and its
territories and possessions, and no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the filing
of continuation statements (and except that recordation in addition to
registration of any unregistered copyrights in the United States Copyright
Office may be necessary with respect to Collateral consisting of copyrights).
(d) Such Debtor will not (i) change its chief executive office or
Taxpayer Identification Number or remove its records, except if otherwise
permitted hereunder and if to a location within the continental United States of
America and upon at least thirty (30) days' prior written notice to the
Collateral Agent thereof or (ii) change its name (or do business under other
names), identity or structure (including, without limitation, by merger or
consolidation, whether or not permitted under the Credit Agreement) unless the
Collateral Agent shall have received at least thirty (30) days' prior notice
thereof and (in any such case under clause (i) or (ii)) prior to effecting or
permitting any such change such Debtor shall have taken such action,
satisfactory to the Collateral Agent, to maintain the security interest of the
Collateral Agent for the ratable benefit of the Secured Parties in all the
Collateral granted hereunder at all times valid, fully perfected and in full
force and effect.
(e) Such Debtor shall not permit or suffer any of the Equipment or
Inventory to be located at any place other than the locations specified in the
Perfection Certificate (except in connection with sales of such Inventory
permitted in the ordinary course of business) unless the Collateral Agent shall
have received thirty (30) days' prior written notice thereof and such Debtor
shall have taken such action, satisfactory to the Collateral Agent, to maintain
the security interest in such Equipment or Inventory at all times following such
change of location valid, fully perfected and in full force and effect.
(f) Such Debtor shall at all times keep such accurate and complete
accounting records with respect to the Collateral as is consistent with its
current practices and in accordance with such prudent and standard practices
used in industries that are the same as or similar to those in which such Debtor
is engaged and, at such time or times as the Collateral Agent may reasonably
request, promptly prepare and deliver to the Collateral Agent a duly certified
schedule or schedules in form and detail reasonably satisfactory to the
Collateral Agent showing the identity, amount and location of any and all
Collateral.
-5-
(g) The security interest of the Collateral Agent hereunder for the
ratable benefit of the Secured Parties constitutes a valid security interest in
all the Collateral, and such security interest secures the payment and
performance of the Obligations, prior to any other Lien in any of the
Collateral.
(h) Appropriately completed Uniform Commercial Code financing
statements having been filed as contemplated by paragraph (c), above, the
security interest of the Collateral Agent hereunder for the ratable benefit of
the Secured Parties shall be a fully perfected security interest in all of the
Collateral in which a security interest may be perfected by filing or recording
(except for recordation or registration in respect of copyrights) (i) such
Debtor has not and will not consent to the filing or recording by any Person of,
or in respect of, any Lien in any Collateral (except by or on behalf of the
Collateral Agent in respect of the security interest hereunder).
Section 2.03. No Assumption of Liability. The security interest hereunder
is granted as security only and shall not subject the Collateral Agent or any
other Secured Party to, or in any way alter or modify, any obligation or
liability of any Debtor with respect to or arising out of any of the Collateral.
Each Debtor shall remain liable to, at its own cost and expense, duly and
punctually observe and perform all the conditions and obligations to be observed
and performed by it under each contract, agreement or instrument relating to the
Collateral, all in accordance with the terms and conditions thereof, and each
Debtor agrees to indemnify and hold harmless the Collateral Agent and the other
Secured Parties from and against any and all liability for such performance.
Section 2.04. Periodic Certification. Each year, at the time that
delivery of annual financial statements with respect to the preceding fiscal
year is required pursuant to the Credit Agreement, each Debtor shall deliver to
the Collateral Agent a certificate executed by the chief financial officer of
such Debtor setting forth the information required pursuant to Section 2 of the
Perfection Certificate.
Section 2.05. Matters Relating to Collateral.
(a) Each Debtor agrees, at its expense, to execute, acknowledge,
deliver and cause to be duly filed all such further instruments and documents
and take all such actions as the Collateral Agent may from time to time
reasonably request to better assure, preserve, protect and perfect the security
interest and the rights and remedies created hereby, including the payment of
any fees and taxes required in connection with the execution and delivery of
this Agreement, the granting of the security interest hereunder and the filing
of any financing statements or other documents in connection herewith. If any
amount payable under or in connection with any of the Collateral shall be or
become evidenced by any promissory note or other instrument (other than a check
issued in payment in the ordinary course of business and timely deposited), such
note or instrument shall be immediately pledged and delivered to the Collateral
Agent, duly endorsed in a manner satisfactory to the Collateral Agent (and shall
be received, and held uncommingled in trust for the benefit of the Collateral
Agent for the ratable benefit of the Secured Parties pending such endorsement
and delivery).
-6-
(b) The Collateral Agent and such persons as the Collateral Agent
may reasonably designate shall have the right, at any reasonable time or times
upon reasonable notice and at the Debtor's own cost and expense, to inspect the
Collateral, all Records related thereto (and to make extracts and copies from
such Records) and the premises upon which any of the Collateral is located, to
discuss any Debtor's affairs with the officers of such Debtor and its
independent accountants and to verify under reasonable procedures the validity,
amount, quality, quantity, value, condition and status of or any other matter
relating to, the Collateral, including, in the case of Accounts Receivable or
Collateral in the possession of any third party, by contacting Account Debtors
or the third party in possession of such Collateral for the purpose of making
such a verification. The Collateral Agent shall have the absolute right to share
any information it gains from such inspection or verification with any other
Secured Party.
(c) At its option, the Collateral Agent may discharge past due
taxes, assessments, charges, fees or Liens, at any time levied or placed on the
Collateral (or any part thereof), and may pay for the maintenance and
preservation of the Collateral to the extent any Debtor fails to do so as
required by this Agreement or the other Loan Documents, and such Debtor agrees
to reimburse the Collateral Agent on demand for any payment made or any
reasonable and documented expense incurred by the Collateral Agent pursuant to
the foregoing authorization; provided, however, that nothing in this paragraph
shall be interpreted as excusing any Debtor from the performance of, or imposing
any obligation on the Collateral Agent or any other Secured Party to cure or
perform, any covenants or other promises of any Debtor with respect to taxes,
assessments, charges, fees or Liens or maintenance as set forth herein or in the
other Loan Documents.
(d) If at any time any Debtor shall take and perfect a security
interest in any property of an Account Debtor or any other Person to secure
payment and performance of an Account Receivable, such Debtor shall promptly
assign such security interest to the Collateral Agent. Such assignment need not
be filed of public record unless necessary to continue the perfected status of
the security interest against creditors of and transferees from the Account
Debtor or other person granting the security interest.
Section 2.06. Use of Collateral. The Debtors may use but not dispose of
the Collateral in any lawful manner not inconsistent with the provisions of this
Agreement, the Credit Agreement or any other Loan Document, except that the
Debtors may dispose of Collateral (including sale of Inventory in the ordinary
course of business) to the extent expressly permitted by provisions of the Loan
Documents. Without limiting the generality of the foregoing, each Debtor agrees
that it shall not permit any Inventory to be in the possession or control of any
warehouseman, bailee, agent or processor at any time unless such warehouseman,
bailee, agent or processor shall have been notified of the security interest
hereunder and shall have agreed in a writing in form and substance reasonably
satisfactory to the Collateral Agent to hold the Inventory subject to the
security interest hereunder and the instructions of the Collateral Agent and to
waive and release any Lien held by it with respect to such Inventory, whether
arising by operation of law or otherwise.
Section 2.07. Modifications, etc.
-7-
(a) None of the Debtors will, without the Collateral Agent's prior
written consent, grant any extension of the time of payment of any of the
Accounts Receivable, compromise, compound or settle the same for less than the
full amount thereof, release, wholly or partly, any person liable for the
payment thereof or allow any credit or discount whatsoever thereon, other than
extensions, credits, discounts, compromises or settlements granted or made in
the ordinary course of business and consistent with prior practice. After a
default or an Event of Default shall have occurred and during the continuation
thereof, the Collateral Agent may notify the Debtors not to grant or make any
such extension, credit, discount, compromise, or settlement under any
circumstances without its prior written consent.
(b) Without limiting any other provisions of this Agreement, upon
the occurrence and during the continuation of an Event of Default, the
Collateral Agent may, in its sole discretion, in its name or in the name of any
Debtor, or otherwise, demand, xxx for, collect or receive any money or property
at any time payable or receivable on account of or in exchange for, or make any
compromise or settlement deemed desirable with respect to, any of the
Collateral, but shall be under no obligation to do so, and the Collateral Agent
may extend the time of payment, arrange for payment in installments, or
otherwise modify the terms of, or release, any of the Collateral, without
thereby incurring responsibility to, or discharging or otherwise affecting any
liability of, any Debtor. The Collateral Agent will not be required to take any
steps to preserve any rights against prior parties to the Collateral. The
Collateral Agent may (but shall not be obligated to), after notice to any
Debtor, make such payments and take all such other action as the Collateral
Agent deems necessary to protect its security interest in the Collateral
hereunder and/or the value thereof, and the Collateral Agent is hereby
authorized (without limiting the general nature of any authority elsewhere
herein conferred) to pay, purchase, contest, or compromise any Lien on any of
the Collateral.
ARTICLE III.
Section 3.01. Remedies, Possession, Sale of Collateral, etc.
(a) Upon the occurrence and during the continuation of an Event of
Default, each Debtor agrees to deliver each item of Collateral to the Collateral
Agent on demand, and it is agreed that the Collateral Agent shall have the right
(subject to applicable law) to take any of or all the following actions at the
same or different times: (i) in respect of any Collateral consisting of
Intellectual Property, on demand, to cause the security interest hereunder
therein to become an assignment, transfer and conveyance of any of or all such
Collateral by such Debtor to the Collateral Agent, and in connection therewith
to affix a date to and file with the United States Patent and Trademark Office
any instrument of assignment held by the Collateral Agent for such purpose; or
to license or, to the extent permitted by applicable law, sublicense, whether
general, special or otherwise, and whether on an exclusive or non-exclusive
basis, any such Collateral throughout the world on such terms and conditions and
in such manner as the Collateral Agent shall determine (other than in violation
of any then-existing licensing arrangements to the extent that waivers cannot be
obtained), and (ii) with or without legal process and with or without previous
notice or demand for performance, to take possession of the Collateral and
without liability for trespass to enter any premises where the collateral may be
located for the purpose of taking possession of or removing the Collateral, to
-8-
demand and receive Collateral from any Person in possession thereof, to take
such measures as it may deem necessary or proper for the care or protection
thereof, and, generally, to exercise any and all rights afforded to a secured
party under the Uniform Commercial Code or other applicable law. Without
limiting the generality of the foregoing, the Collateral Agent may sell or cause
to be sold, whenever it shall decide, in one or more sales or parcels, at such
prices as it may deem best, and for cash, on credit or for future delivery,
without assumption of any credit risk, all or any portion of the Collateral, at
any broker's board or at public or private sale, without demand of performance
or notice of intention to sell or of time or place of sale (except ten (10)
days' written notice to the Debtors of the time and place of such sale, which
the Debtors hereby agree to be commercially reasonable, and such other notices
as may be required by applicable statute and cannot be waived), the Collateral
Agent shall have the right to assign, transfer and deliver to the purchaser or
purchasers thereof the Collateral so sold, and any Person may be the purchaser
of all or any portion of the Collateral so sold and thereafter hold the same
absolutely, free from any claim or right of whatever kind, including any equity
of redemption of any Debtor, any such demand, notice, claim, right or equity
being hereby expressly waived and released. At any sale or sales made pursuant
to this Agreement, any Secured Party may bid for or purchase, free from any
claim or right of whatever kind, including any equity of redemption of any
Debtor, any such demand, notice, claim, right or equity being hereby expressly
waived and released, all or any portion of the Collateral offered for sale, and
may make any payment on account thereof by using any claim for money then due
and payable to such Secured Party from any Debtor as a credit against the
purchase price, and may hold, retain, and dispose of such property without
further accountability to such Debtor in respect thereof. At any such sale, the
Collateral, or portion thereof, to be sold may be sold in one lot as an entirety
or in separate parcels, as the Collateral Agent may (in its sole and absolute
discretion) determine. The Collateral Agent shall not be obligated to make any
sale of any Collateral if it shall determine not to do so, regardless of the
fact that notice of sale of such Collateral shall have been given. The
Collateral Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for sale, and such sale may, without further notice,
be made at the time and place to which the same was so adjourned. In case any
sale of all or any part of the Collateral is made on credit or for future
delivery, the Collateral so sold may be retained by the Collateral Agent until
the sale price is paid in full by the purchaser or purchasers thereof, but the
Collateral Agent shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral so sold and, in case
of any such failure, such Collateral may be sold again as if not previously so
sold. For purposes hereof, (i) a written agreement to purchase the Collateral or
any portion thereof shall be treated as a sale thereof, (ii) the Collateral
Agent shall be free to carry out such sale pursuant to such agreement and (iii)
no Debtor shall be entitled to the return of the Collateral or any portion
thereof subject thereto, notwithstanding the fact that after the Collateral
Agent shall have entered into such an agreement all Events of Default shall have
been remedied and the Obligations paid in full. The Secured Parties shall in any
such sale have no obligations or responsibility whatsoever to make any
representations or warranties with respect to the Collateral or any part
thereof, and shall not be chargeable with any of the obligations or liabilities
of any Debtor. As an alternative to exercising the power of sale herein
conferred upon it, the Collateral Agent may proceed by a suit or suits at law or
in equity to foreclose upon the Collateral and to sell the Collateral or any
portion thereof pursuant to a judgment or decree of a court or courts having
competent jurisdiction or pursuant to a proceeding by a
-9-
court-appointed receiver. Any sale pursuant to the provisions of this Section
shall be deemed to conform to the commercially reasonable standards as provided
in Section 9-504(3) of the Uniform Commercial Code as in effect in the State of
New York or its equivalent in other jurisdictions.
(b) Each Debtor hereby agrees that it will indemnify and hold the
Collateral Agent and the other Secured Parties, and their respective officers,
directors, employees, agents, and representatives harmless (except for their own
wilful misconduct or gross negligence) from and against any and all claims with
respect to the Collateral asserted both before and after the taking of actual
possession or control of the Collateral by the Collateral Agent pursuant to this
Agreement, or arising out of any act or omission of any party other than the
Collateral Agent prior to such taking of actual possession or control by the
Collateral Agent, or arising out of any act or omission of such Debtor, or any
agents thereof, before or after the commencement of such actual possession or
control by the Collateral Agent. In any action hereunder the Collateral Agent
shall be entitled to the appointment, without notice, of a receiver to take
possession of all or any portion of the Collateral and to exercise such powers
as the court shall confer upon such receiver. Notwithstanding the foregoing,
upon the occurrence of an Event of Default, and during the continuation of such
Event of Default, the Collateral Agent shall be entitled to apply, without prior
notice to any Debtor, any cash or cash items constituting Collateral in the
possession of the Collateral Agent to payment of the Obligations.
Section 3.02. Grant of License to Use Intellectual Property. For the
purpose of enabling the Collateral Agent to exercise its rights and remedies
hereunder, each Debtor hereby grants to the Collateral Agent an irrevocable,
non-exclusive license (exercisable without payment of royalty or other
compensation to such Debtor) to use, license or sub-license any of the
Collateral consisting of Intellectual Property now owned or hereafter acquired
by such Debtor to the extent of the interest of such Debtor therein at such
time, and wherever the same may be located, and including in such license
reasonable access to all media in which any of the licensed items may be
recorded or stored and to all computer software and programs used for the
compilation or printout thereof. The use of such licenses by the Collateral
Agent shall be exercised, at the option of the Collateral Agent upon the
occurrence and during the continuation of an Event of Default, provided that any
license, sub-license or other transaction entered into by the Collateral Agent
in accordance herewith shall be binding upon each Debtor notwithstanding any
subsequent cure of an Event of Default. In operating under the license granted
by each Debtor pursuant to this Section, the Collateral Agent agrees that the
goods sold and services rendered under the trademarks included in the
Intellectual Property shall be of a nature and quality substantially consistent
with those theretofore offered under the trademarks by such Debtor and such
Debtor shall have the right to inspect during the term of such license, at any
reasonable time or times upon reasonable notice to the Collateral Agent, and at
such Debtor's own cost and expense, representative samples of goods sold and
services rendered under the trademarks.
-10-
Section 3.03. Application of Proceeds.
(a) Each Debtor hereby agrees that it shall upon the occurrence and
during the continuation of an Event of Default, (i) immediately turn over to the
Collateral Agent any instruments (with appropriate endorsements) or other items
constituting Collateral not then in the possession of the Collateral Agent, the
possession of which is required for the perfection of the Collateral Agent's
security interest for the ratable benefit of the Secured Parties, all of which
shall be held in trust for the benefit of the Collateral Agent for the ratable
benefit of the Secured Parties and not commingled prior to its coming into the
Collateral Agent's possession, and (ii) take all steps necessary to cause all
sums, monies, royalties, fees, commissions, charges, payments, advances, income,
profits, and other amounts constituting Proceeds of any Collateral to be
deposited directly in an account of the Debtors (or any of them) with the
Collateral Agent and to cause such sums to be applied to the satisfaction of the
Obligations.
(b) All proceeds from any collection or sale of the Collateral
pursuant hereto, all Collateral consisting of cash, and all deposits in accounts
of any Debtor with any Secured Party shall be applied (i) first, to the payment
of the fees and expenses of the Collateral Agent incurred pursuant to this
Agreement or any other Loan Document, including costs and expenses of collection
or sale, reimbursement of any advances, and any other costs or expenses in
connection with the exercise of any rights or remedies hereunder or thereunder
(including, without limitation, reasonable fees and disbursements of counsel),
(ii) second, to the payment in full of the Obligations owed to the Lenders and
the Issuing Bank in respect of the Loans, LC Disbursements and any Interest Rate
Hedging Agreements, pro rata as among the Lenders (including, but not limited
to, any of them as an Interest Rate Protection Merchant) in accordance with the
amounts of such Obligations owed to them, and (iii) third, to the payment of the
Obligations (other than those referred to above) pro rata as among the Secured
Parties in accordance with the amounts of such Obligations owed to them. Any
amounts remaining after such applications shall be remitted to the Debtors or as
a court of competent jurisdiction may otherwise direct. The Collateral Agent
shall have absolute discretion as to the time of application of any such
proceeds, cash, or balances in accordance with this Agreement.
Section 3.04. Power of Attorney.
(a) Each Debtor does hereby irrevocably make, constitute and appoint
the Collateral Agent or any officer or designee thereof its true and lawful
attorney-in-fact with full power in the name of the Collateral Agent, and of
such Debtor, with power of substitution, to, upon the occurrence and during the
continuation of an Event of Default, receive, open and dispose of all mail
addressed to such Debtor, to endorse any note, check, draft, money order, or
other evidence of payment relating to the Collateral that may come into the
possession of the Collateral Agent, with full power and right to cause the mail
of such Debtor to be transferred to the Collateral Agent's own offices or
otherwise; to communicate with any Account Debtor in respect of any Accounts
Receivable; to commence or prosecute any suits, actions or proceedings to
collect or otherwise realize upon any Collateral or enforce any rights in
respect thereof; to settle, compromise, adjust or defend any claims in respect
of any Collateral; to notify any Account Debtors or otherwise require them to
make payment directly to the Collateral Agent; to use, sell, assign, transfer,
pledge, make any agreement with respect to or
-11-
otherwise deal with all or any of the Collateral, and to do any and all other
acts necessary or proper to carry out the intent of this Agreement and each
other Loan Document and the grant, confirmation and continuation of the security
interests hereunder and thereunder. Such power of attorney is coupled with an
interest and is irrevocable, and shall survive the bankruptcy, insolvency or
dissolution of any or all of the Debtors. Nothing herein contained shall be
construed as requiring or obligating the Collateral Agent or any other Secured
Party to make any commitment or to make any inquiry as to the nature or
sufficiency of any payment received by the Collateral Agent or any other Secured
Party, or to present or file any claim or notice, or to take any action with
respect to the Collateral or any part thereof or the moneys due or to become due
in respect thereof or any property covered thereby. The Collateral Agent and the
Secured Parties shall be accountable only for amounts actually received as a
result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to any
Debtor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct. The provisions of this Section shall in no
event relieve any Debtor of any of its obligations hereunder or under the other
Loan Documents with respect to the Collateral or any part thereof or impose any
obligation on the Collateral Agent to proceed in any particular manner with
respect to the Collateral or any part thereof, or in any way limit the exercise
by any Secured Party of any other or further right that it may have on the date
of this Agreement or hereafter, whether hereunder, under any other Loan
Document, by law or otherwise. Any sale of Collateral pursuant to the provisions
of this Section shall be deemed to conform to the commercially reasonable
standards as provided in Section 9-504(3) of the Uniform Commercial Code as in
effect in the State of New York or its equivalent in other jurisdictions.
(b) Without limiting the preceding paragraph, each Debtor does
hereby further irrevocably make, constitute and appoint the Collateral Agent or
any officer or designee thereof its true and lawful attorney-in-fact with full
power in the name of the Collateral Agent, and of such Debtor, with power of
substitution, (i) to enforce all of such Debtor's rights under and pursuant to
all agreements with respect to the Collateral, all for the sole benefit of the
Collateral Agent and the Secured Parties, (ii) to enter into and perform such
agreements as may be reasonably necessary in order to carry out the terms,
covenants and conditions of this Agreement that are required to be observed or
performed by such Debtor, (iii) to execute such other and further mortgages,
pledges and assignments of the Collateral and filings or recordations in respect
thereof as the Collateral Agent may require for the purpose of protecting,
maintaining or enforcing the security interest of the Collateral Agent hereunder
for the ratable benefit of the Secured Parties, (iv) to act as authorized in
Section 3.05 hereof, and (v) to do any and all other things reasonably necessary
or proper to carry out the intention of this Agreement and the grant,
confirmation, continuation and perfection of the security interests hereunder.
Such power of attorney is coupled with an interest and is irrevocable, and shall
survive the insolvency, bankruptcy, or dissolution of any or all of the Debtors.
Section 3.05. Financing Statements, Direct Payments, Confirmation of
Receivables and Audit Rights. Each Debtor hereby authorizes the Collateral Agent
to file Uniform Commercial Code financing statements (and any other filings)
required in connection with the perfection or preservation of the security
interest hereunder in respect of all or any part of the Collateral, and
amendments thereto and continuations thereof with regard to such Collateral,
without its signature, or, in the alternative, to execute such items on behalf
of such Debtor
-12-
pursuant to the powers of attorney granted in the preceding Section. Each Debtor
further authorizes the Collateral Agent to confirm with any Account Debtor the
amounts payable to such Debtor with regard to the Collateral and to participate
with such Debtor in the audits of its respective Account Debtors. Each Debtor
hereby further authorizes the Collateral Agent upon the occurrence and during
the continuation of an Event of Default to notify any Account Debtor that all
sums payable to such Debtor relating to the Collateral shall be paid directly to
the Collateral Agent.
Section 3.06. Termination. The security interest granted hereunder shall
terminate when all the Obligations have been fully, finally and indefeasibly
paid and performed, the Revolving Credit Exposure of each Lender shall be zero,
and when the Revolving Credit Commitment of each Lender shall have terminated.
Thereupon, the Collateral Agent will execute and deliver, at each Debtor's
expense, Uniform Commercial Code termination statements reasonably requested by
such Debtor evidencing the release of the security interest hereunder, all
without recourse to or warranty by the Collateral Agent.
Section 3.07. Remedies Not Exclusive. The remedies conferred upon or
reserved to the Collateral Agent and the Secured Parties in this Article and
elsewhere in this Agreement are intended to be in addition to, and not in
limitation of any other remedy available to the Collateral Agent and the other
Secured Parties.
ARTICLE IV.
MISCELLANEOUS
Section 4.01. No Discharge. All rights of the Collateral Agent hereunder,
the security interest granted hereunder, and the obligations of each Debtor
under this Agreement shall be absolute and unconditional and shall remain in
full force and effect without regard to, and shall not be released, discharged
or in any way diminished by (i) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document (including this Agreement and each
Guarantee Agreement), any agreement with respect to any of the Obligations or
any other agreement or instrument relating to any of the foregoing, (ii) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations or any other amendment or waiver of or any consent to
any departure from the Credit Agreement, any other Loan Document or any other
agreement or instrument relating to the foregoing, (iii) any exchange, release
or nonperfection of any other collateral, or any release or amendment or waiver
of or consent to or departure from any guaranty, for all or any of the
Obligations, (iv) any exercise or nonexercise by the Collateral Agent or any
other Secured Party of any right, remedy, power or privilege under or in respect
of this Agreement, any other Loan Document or applicable law, including, without
limitation, any failure by the Collateral Agent or any other 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 any waiver, consent,
extension, indulgence or other action or inaction in respect of any thereof, or
(v) any other act or thing or omission or delay to do any other act or thing
which may or might in any manner or to any extent vary the risk of any Credit
Party or would otherwise, but for this specific provision to the contrary,
operate as a discharge of or exonerate any Credit Party as a matter of law.
-13-
Section 4.02. Amendment; Waiver. No amendment or waiver of any provision
of this Agreement, nor consent to any departure by any Debtor therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Collateral 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 Debtor in any
case shall entitle any Debtor 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 Debtor under this Agreement shall be deemed a
waiver of any other previous breach or default or any thereafter occurring.
Section 4.03. Survival; Severability.
(a) All covenants, agreements, representations and warranties made
by the Debtors herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the Collateral Agent
and the 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 shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any other fee or amount
payable under this Agreement or any other Loan Document 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 4.04. 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 Debtor, or the Collateral Agent that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns. No Debtor may assign or transfer any of its rights or
obligations hereunder or any interest herein or in the Collateral except as
expressly contemplated by this Agreement or the other Loan Documents (and any
such attempted assignment shall be void).
Section 4.05. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
Section 4.06. Headings. The Article and Section headings in this Agreement
are for convenience only and shall not affect the construction hereof.
-14-
Section 4.07. 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 Debtor shall be given to it at its address set forth in
Schedule 4.07 hereto.
Section 4.08. Reimbursement of the Collateral Agent.
(a) The Debtors jointly and severally agree to pay upon demand to
the Collateral Agent the amount of any and all reasonable and documented
expenses, including the reasonable and documented fees and expenses of its
counsel and of any experts or agents, that the Collateral Agent may incur in
connection with (i) the administration of this Agreement (including the
customary fees and expenses of the Collateral Agent for any audits conducted by
it with respect to the Accounts Receivable or Inventory), (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Collateral, (iii) the exercise or enforcement of any of the rights of the
Collateral Agent hereunder, or (iv) the failure by any Debtor to perform or
observe any of the provisions hereof. If the Debtors shall fail to do any act or
thing that they have covenanted to do hereunder or any representation or
warranty of the Debtors hereunder shall be breached, the Collateral Agent may
(but shall not be obligated to) do the same or cause it to be done or remedy any
such breach and there shall be added to the Obligations the cost or expense
incurred by the Collateral Agent in so doing.
(b) Without limitation of their indemnification obligations under
the other Loan Documents, the Debtors jointly and severally agree to indemnify
the Collateral Agent and the Secured Parties and their respective officers,
directors, employees, agents, attorneys, and representatives ("Indemnitees")
against, and hold each of them harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees and
expenses, incurred by or asserted against any of them arising out of, in any way
connected with, or as a result of, the execution, delivery or performance of
this Agreement or any claim, litigation, investigation or proceeding relating
hereto or to the Collateral, whether or not any Indemnitee is a party thereto,
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
have resulted from the gross negligence or willful misconduct of such
Indemnitee.
(c) Any amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section shall remain operative and in full force and effect regardless
of the termination of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document or any investigation made by or on behalf of the Collateral Agent or
any Secured Party. All amounts due under this Section shall be payable on
written demand therefor and shall bear interest at the default rate (as provided
in the Credit Agreement).
Section 4.09. Counterparts; Additional Debtors. (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.
-15-
(b) Upon execution and delivery after the date hereof by the
Collateral Agent and a Subsidiary of the Company of an instrument in the form of
Exhibit 4.09(b) hereto, such Subsidiary shall become a Debtor hereunder with the
same force and effect as if originally named as a Debtor herein. The execution
and delivery of such instrument shall not require the consent of any Debtor
hereunder. The rights and obligations of each Debtor hereunder shall remain in
full force and effect notwithstanding the addition of, or the failure to add,
any new Debtor as a party hereto, in each case whether or not required under the
Credit Agreement.
Section 4.10. Entire Agreement; Jurisdiction; Consent to Service of
Process.
(a) Except as expressly herein provided, this Agreement and the
other Loan Documents constitute the entire agreement among the parties relating
to the subject matter hereof. Any previous agreement among the parties with
respect to the transactions contemplated hereunder is superseded by this
Agreement and the other Loan Documents. Except as expressly provided herein or
in the other Loan Documents, nothing in this Agreement or in any other Loan
Document, expressed or implied, is intended to confer upon any party, other than
the parties hereto, any rights, remedies, obligations or liabilities under or by
reason of this Agreement or such other Loan Documents.
(b) Each Debtor 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 Collateral Agent or any other Secured Party may
otherwise have to bring any action or proceeding relating to this Agreement
against any Debtor or its properties in the courts of any jurisdiction.
(c) Each Debtor 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.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 4.07. 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 4.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
-16-
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.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
-17-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers or representatives
as of the day and year first above written.
THE CHASE MANHATTAN BANK, KINRO, INC.
as Collateral Agent
By: By:
--------------------------- ---------------------------
Name: Name:
Title: Title:
SHOALS SUPPLY, INC.
By:
---------------------------
Name:
Title:
KINRO HOLDING, INC.
By:
---------------------------
Name:
Title:
SHOALS HOLDING, INC.
By:
---------------------------
Name:
Title:
KINRO MANUFACTURING, INC.
By:
---------------------------
Name:
Title:
-00-
XXXXX XXXXX 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:
SHOALS SUPPLY TEXAS LIMITED PARTNERSHIP
By: Shoals Supply, Inc. its general partner
By:
---------------------------
Name:
Title:
SHOALS SUPPLY TENNESSEE LIMITED PARTNERSHIP
By: Shoals Supply, Inc. its general partner
By:
---------------------------
Name:
Title:
-19-
Schedule 1.01
to
Security Agreement
Rights and other property excluded from Collateral (referred to in clause (y) of
the proviso to the definition of "Collateral")
All present and future right, title and interest of any Debtor as a
partner in the limited partnerships listed below and any successor(s) thereto or
assignee(s) thereof, and the rights and interest of any Debtor in respect
thereof arising under the respective agreements, documents and/or certificates
(including, without limitation, any publicly filed documents) constituting or
governing any such limited partnership, and all other benefits pertaining
thereto and any and all general intangibles and accounts now owned or hereafter
arising or acquired relating to the interest of any Debtor in any such limited
partnership and/or any of the foregoing rights, title, interests, or benefits,
including any custodial accounts containing or to the extent relating to any of
the foregoing rights and other property, together with the Proceeds of the
foregoing.
Limited Partnerships
Kinro Texas Limited Partnership, a Texas limited partnership
Kinro Tennessee Limited Partnership, a Tennessee limited partnership
Shoals Supply Texas Limited Partnership, a Texas limited partnership
Shoals Supply Tennessee Limited Partnership, a Tennessee limited partnership
Schedule 4.07
to
Security Agreement
Addresses for Notice
--------------------------------------------------------------------------------
Party Mailing Address County
--------------------------------------------------------------------------------
Texas Commerce Bank 1111 Xxxxxx Tarrant
National Association Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
Kinro, Inc. 0000 Xxxxx Xxxx Xxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Shoals Supply, Inc. 0000 Xxxxx Xxxx Xxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Kinro Holding, Inc. c/o Drew Industries Incorporate Westchester
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Shoals Holding, Inc. c/o Drew Industries Incorporate Westchester
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Kinro Texas Limited 0000 Xxxxx Xxxx Xxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxxxx Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Kinro Manufacturing, Inc. 0000 Xxxxx Xxxx Xxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Kinro Tennessee Limited 000 Xxxxxxxx Xxxxxxxxx Xxxx
Partnership Xxxxxx, XX 00000
--------------------------------------------------------------------------------
Shoals Supply Texas Limited 0000 Xxxxx Xxxx Xxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxxxx Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Shoals Supply Tennessee 190 Durham Road Union
Limited Partnership Xxxxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
