Contract
Exhibit
10.4
SECOND
AMENDED AND RESTATED SUBORDINATION AGREEMENT dated as of November 25, 2008
made
by DREW INDUSTRIES INCORPORATED, a Delaware corporation (the "Company") and
each
direct and indirect Subsidiary of the Company (each, together with the Company,
a "Credit Party"), with and in favor of JPMORGAN CHASE BANK, N.A. (f/k/a
JPMorgan Chase Bank) as agent (in such capacity, the "Administrative Agent")
for
the Lenders (as defined in the Credit Agreement referred to below).
Reference
is hereby made to the Second Amended and Restated Credit Agreement dated as
of
November 25, 2008 (as amended, supplemented, or modified from time to time,
the
"Credit Agreement") among Kinro, Inc., an Ohio corporation, and Xxxxxxx
Components, Inc., a Delaware corporation, as Borrowers (the "Borrowers"), the
financial institutions party thereto as lenders (the "Lenders") and JPMorgan
Chase Bank, N.A., as administrative agent (in such capacity the "Administrative
Agent"). Terms used herein as defined terms and not otherwise defined herein
shall have the meanings given thereto in the Credit Agreement. Reference is
further made to the Amended and Restated Subordination Agreement dated as of
February 11, 2005 between the Credit Parties and the Administrative Agent (as
thereafter amended and supplemented from time to time, the "Restated
Subordination Agreement"), 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. Each Borrower is a direct
Subsidiary of the Company. The Credit Parties may make loans and advances to
other Credit Parties upon the terms and conditions thereto contained in the
Credit Agreement, including, without limitation, the subordination of such
obligations to the obligations of the Credit Parties under the Loan Documents.
The obligations of the Lenders to make Loans are conditioned on, among other
things, the execution and delivery by each Credit Party of a Subordination
Agreement in the form hereof.
NOW,
THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto hereby agree as follows:
Section
1.01. Definitions;
Terms.
References to this "Agreement" shall be to this Second Amended and Restated
Subordination Agreement as amended, supplemented, or otherwise modified from
time to time. The term "Senior Obligations" shall mean, collectively, 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),
(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 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. The term "Subordinated Debt" shall mean any and
all
Indebtedness, obligations and liabilities that is or was at any time owed by
any
Credit Party to any other Credit Party (including all interest accrued or to
accrue thereon up to the date of such full payment thereof) of every kind and
nature whatsoever, whether represented by negotiable instruments or other
writings, whether direct or indirect, absolute or contingent, due or not due,
secured or unsecured, original, renewed, modified or extended, now in existence
or hereafter incurred, originally contracted with the Credit Party or with
another Person, and whether contracted alone or jointly and/or severally with
another or others.
Section
2.01. Subordination.
Each
Credit Party hereby agrees (and reaffirms and continues it agreement under
the
Restated Subordination Agreement) that all claims and demands, and all interest
accrued or that may hereafter accrue thereon, in respect of any Subordinated
Debt are subject and subordinate to the prior indefeasible payment and
satisfaction in full in cash of all Senior Obligations. In furtherance of and
not in limitation of the foregoing:
(i)
no
payment or prepayment of any principal or interest on account of, and no
repurchase, redemption or other retirement (whether at the option of the holder
or otherwise) of Subordinated Debt shall be made, if at the time of such
payment, prepayment, repurchase, redemption or retirement or immediately after
giving effect thereto there shall exist a Default or Event of
Default;
(ii)
in the
event of any insolvency or bankruptcy proceedings, and any receivership,
liquidation, reorganization or other similar proceedings in connection
therewith, relating to any Credit Party or to its creditors, as such, or to
its
property, and in the event of any proceedings for voluntary liquidation,
dissolution or other winding up of any Credit Party, whether or not involving
insolvency or bankruptcy, then the holders of Senior Obligations shall be
entitled to receive final, indefeasible payment in full in cash of all Senior
Obligations (including interest thereon accruing after the commencement of
any
such proceedings, whether or not allowed or allowable as a claim in such
proceedings) (and the LC Exposure shall have been reduced to zero and the
Revolving Credit Commitments shall have terminated), before the holders of
the
Subordinated Debt (including any other Credit Party) shall be entitled to
receive any payment or other distribution on account of the Subordinated Debt,
and to that end the holders of Senior Obligations shall be entitled to receive
distributions of any kind or character, whether in cash or property or
securities, which may be payable or deliverable in any such proceedings in
respect of the Subordinated Debt;
2
(iii)
in the
event that any Subordinated Debt is declared due and payable before its
expressed maturity because of the occurrence of an event of default (under
circumstances when the provisions of the foregoing paragraphs (i) or (ii) are
not applicable), the holders of the Senior Obligations outstanding at the time
such Subordinated Debt so becomes due and payable because of such occurrence
of
such an event of default shall be entitled to receive final, indefeasible
payment in full in cash of all Senior Obligations (and the LC Exposure shall
have been reduced to zero and the Revolving Credit Commitments shall have
terminated) before the holders of the Subordinated Debt (including any Credit
Party) are entitled to receive any payment or other distribution on account
of
the Subordinated Debt;
(iv)
in the
event that, notwithstanding the occurrence of any of the events described in
paragraphs (i), (ii) and (iii), any such payment or distribution of assets
of
any Credit Party of any kind or character, whether in cash, property or
securities, shall be received by the holders of Subordinated Debt (including
any
Credit Party) before all Senior Obligations are finally and indefeasibly paid
in
full in cash (and the LC Exposure shall have been reduced to zero and the
Revolving Credit Commitments shall have terminated) such payment or distribution
shall be held in trust for the benefit of, and shall be promptly paid over
or
delivered to the holders of such Senior Obligations or their representative
or
representatives, including the Administrative Agent, or as their respective
interests may appear, for application to the payment of all Senior Obligations
remaining unpaid to the extent necessary to pay such Senior Obligations in
full
in cash, in accordance with the terms thereof, after giving effect to any
concurrent payment or distribution to the holders of such Senior
Obligations;
(v)
no
holder of Senior Obligations shall be prejudiced in its right to enforce
subordination of the Subordinated Debt by any act or failure to act on the
part
of any Credit Party; and
(vi) no
payment on any Subordinated Debt shall be made to or for the benefit of any
holders of the Prudential Notes or any other Prudential Debt unless concurrently
therewith payment shall be made in respect thereof on the Senior Obligations
to
the Administrative Agent for the benefit of the Lenders on a pari passu
basis;
nor shall assignment or other transfer of any instrument evidencing any
Subordinated Debt be made to or for the benefit of the holders of the Prudential
Notes or
any
other Prudential Debt unless
the Administrative Agent (or the Collateral Agent, as appropriate) shall
concurrently therewith receive an assignment or transfer of equal priority
on a
pari passu
basis.
Section
2.02. No
Payment or Security.
Each
Credit Party agrees not to make payment (except if permitted under Section
2.01
hereof) of, or give any security for, or grant any Lien on its property or
assets in respect of, any Subordinated Debt.
Section
2.03. Waiver;
No Limitations.
(a)
Each Credit Party waives any and all notice of the acceptance of the
subordination hereunder and of the creation or accrual of any of the Senior
Obligations or of any renewals, extensions, increases, or other modifications
thereof from time to time, or of the reliance of any Lender or any other Secured
Party upon this Agreement.
3
(b)
Nothing contained herein shall constitute or be deemed to be a waiver or to
limit any rights in any insolvency proceeding or under applicable law of any
Lender or any other Secured Party as a creditor of any Credit Party, including
in respect of any claim that any payment in respect of Subordinated Debt,
whether or not permitted under Section 2.01 hereof, is a preferential transfer
or otherwise should be set aside or recovered for the benefit of creditors
of
any Credit Party.
Section
2.04. No
Impairment of Subordination.
Each
holder of Subordinated Debt hereby consents that the liability of each Credit
Party or of any other party for or upon the Senior Obligations may, from time
to
time, in whole or in part, be renewed, increased, extended, or modified, in
any
and all respects, or accelerated, compromised, settled or released, and that
any
collateral security and Liens for the Senior Obligations, or any guarantee
or
other accommodation in respect thereof may, from time to time, in whole or
in
part, be exchanged, sold, released or surrendered by the Administrative Agent,
the Collateral Agent, the Issuing Bank, or any Lender, as it may deem advisable,
or that any security interest may be unperfected, and that the financial
condition, legal status, corporate structure or identity, entity classification,
affiliation, or any other characteristic affecting any Credit Party, or
affecting any Senior Obligation, may change in any respect whatsoever, and
any
other fact or circumstance may occur that would, but for this specific provision
to the contrary, relieve such holder of Subordinated Debt from the provisions
of
this Agreement, all without impairing the subordination contained in this
Agreement and without any notice to or assent from such holder of Subordinated
Debt.
Section
2.05. Proof
of Claim; Past Default.
(a)
Each holder of Subordinated Debt hereby irrevocably authorizes the
Administrative Agent, and irrevocably constitutes and appoints it as its
attorney in fact with full power (coupled with an interest, and with power
of
substitution) for the benefit of the Lenders, in the name, place and stead
of
such holder of Subordinated Debt and whether or not a default exists with
respect to the Subordinated Debt, to file proofs of claim for the full amount
of
the Subordinated Debt held by it against any obligor in respect thereof or
such
obligor's property in any statutory or non-statutory proceeding affecting such
obligor or the Subordinated Debt or any other proceeding and to vote the full
amount of the Subordinated Debt (i) for or against any proposal or resolution;
(ii) for a trustee or trustees or for a committee of creditors; or (iii) for
the
acceptance or rejection of any proposed arrangement, plan of reorganization,
composition, settlement or extension and in connection with any such
proceeding.
(b) After
the
occurrence and during the continuation of a Default or Event of Default or
any
event described in Sections 2.01(ii) or (iii), should any payment or
distribution or collateral security or proceeds of any collateral security
be
received or collected by the holder of any Subordinated Debt for or on account
of any Subordinated Debt, prior to the time that all Senior Obligations have
been fully, finally, and indefeasibly paid in cash (and the LC Exposure reduced
to zero and the Revolving Credit Commitments terminated), such holder of
Subordinated Debt shall forthwith deliver the same to the Administrative Agent,
in precisely the form received (with the endorsement of such holder of
Subordinated Debt where necessary), for application on account of the Senior
Obligations (or, in the case of collateral security, delivery to the Collateral
Agent for such application thereby) and such holder of Subordinated Debt agrees
that, until so delivered, the same shall be deemed received by such holder
of
Subordinated Debt as trustee for the Secured Parties in trust for the Secured
Parties; and in the event of the failure of such holder of Subordinated Debt
to
endorse any instrument for the payment of money so received payable to its
order, the Administrative Agent or any officer or employee thereof is hereby
irrevocably constituted and appointed attorney in fact for such holder of
Subordinated Debt, with full power (coupled with an interest and with full
power
of substitution) to make any such endorsement. In the event that such holder
of
Subordinated Debt fails to make such delivery, such holder of Subordinated
Debt
agrees to immediately pay to the Administrative Agent for the ratable benefit
of
the Lenders an amount equivalent to any such payment or the value of such
security received.
4
(c) No
holder
of Subordinated Debt will take or omit to take any action or assert any claim
with respect to the Subordinated Debt or otherwise which is inconsistent with
the provisions of this Agreement. Without limiting the foregoing, no holder
or
Subordinated Debt will assert, collect or enforce the Subordinated Debt or
any
part thereof or take any action to foreclose or realize upon the Subordinated
Debt or any part thereof or enforce any of the documents, instruments or
agreements evidencing the same except (a) in each such case as necessary, so
long as no Default or Event of Default has occurred and is then continuing
under
the Credit Agreement or would occur after giving effect thereto, to collect
any
sums expressly permitted to be paid pursuant to Section 2.01(i), to the extent
(but only to such extent) that the commencement of a legal action may be
required to toll the running of any applicable statute of limitation. Until
the
Senior Obligations have been finally paid in full in cash, no holder of
Subordinated Debt shall have any right of subrogation, reimbursement,
restitution, contribution or indemnify whatsoever from any assets of any Credit
Party or any guarantor of or provider of collateral security for the Senior
Obligations. Each holder of subordinated Debt further waives any and all rights
with respect to marshalling.
Section
2.06. No
Transfer.
Each
Credit Party represents and warrants to the Secured Parties that such Credit
Party has not (except for the benefit of the Secured Parties) granted any
security interest in or made any other transfer or assignment of any
Subordinated Debt (except to (x) the Collateral Agent, in each case for the
ratable benefit of the Secured Parties and (y) concurrently herewith, and on
a
pari passu
basis to
the holders of the Prudential Notes or any other Prudential Debt or to the
Trustee for the benefit of the holders of any Prudential Debt pursuant to the
subordination agreement contemplated by the Prudential Shelf Agreement) and
agrees that such Credit Party will not grant a security interest in, or Lien
upon, any of its properties or assets in respect of any Subordinated Debt
(whether now outstanding or hereafter arising) or make any other sale, transfer
or assignment of any Subordinated Debt (except to or as designated by the
Administrative Agent). The holders of the Subordinated Debt will not, at any
time this Agreement is in effect, modify any of the terms of any of the
Subordinated Debt or any documents, instruments or agreements evidencing the
same.
Section
2.07. Instruments.
Each
Credit Party represents and warrants to the Secured Parties that as of the
date
hereof the Subordinated Debt is not represented by any instruments or other
writings. Each Credit Party agrees that at no time hereafter will any part
of
the Subordinated Debt be represented by any instruments or other writings,
except such instruments or other writings, if any, (i) that in each case bear
a
legend clearly referring to this Agreement and setting forth that the
obligations represented by such instruments or writings are subject to the
subordination hereunder, and (ii) true copies of which shall have been delivered
to the Administrative Agent promptly after execution thereof. Subordinated
Debt
not evidenced by an instrument or document shall nevertheless be deemed
subordinated by virtue of this Agreement.
5
Section
2.08. Statements
of Account; Books and Records.
Each
holder of Subordinated Debt further hereby agrees that it will render to the
Administrative Agent or any Lender upon demand, from time to time, a statement
of the account of each Credit Party with it. Each holder of Subordinated Debt
agrees that its respective books and records, and financial statements, will
appropriately show that the Subordinated Debt is subject to this
Agreement.
Section
2.09. Other
Subordination Provisions.
The
subordination hereunder shall be in addition to, and shall not limit or be
limited by, any subordination provisions contained in any Guarantee Agreement
or
other Loan Document.
Section
3.01. Representation
and Warranties.
Each
Credit Party represents and warrants to the Secured Parties 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 Credit Party 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 Credit Party in any case shall entitle
any
Credit Party to any other or further notice or demand in the same, similar
or
other circumstances. No waiver of any breach or default of or by any Credit
Party 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 Credit Parties
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 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 Administrative Agent, the Collateral Agent, the Issuing Bank, or any
Lender or on their behalf, and (ii) shall continue in full force and effect
as
long as any of the Obligations is outstanding and unpaid, the LC Exposure does
not equal zero, and 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.
6
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, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAWS OF SUCH STATE
THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICITON OTHER THAN
SUCH
STATE.
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 Credit
Party shall be given to it at its address set forth in Schedule
A
hereto.
Section
4.07. Counterparts;
Additional Parties.
(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)
The
Company shall cause each Person that becomes a direct or indirect subsidiary
of
the Company (if such a Person is not already a party to this Agreement) to
execute and deliver a supplement hereto in the form of Exhibit
4.07(b)
hereto
concurrent with such person's becoming a direct or indirect Subsidiary of the
Company. Upon execution and delivery after the date hereof by the Administrative
Agent and a Subsidiary of the Company of a supplement in the form of
Exhibit
4.07(b)
hereto,
such Subsidiary shall become a party hereto with the same force and effect
as if
originally named herein. The execution and delivery of such supplement shall
not
require the consent of any Credit Party. The rights and obligations of each
Credit Party and each other holder of Subordinated Debt hereunder shall remain
in full force and effect notwithstanding the addition of, or the failure to
add,
any Person as a party hereto, in each case whether or not required under the
Credit Agreement.
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Section
4.08. Jurisdiction;
Consent to Service of Process.
(a)
Each
Credit Party 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 any
other Loan Document, or for recognition or enforcement of any judgment, and
each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent,
the Collateral Agent, the Issuing Bank, or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against any Credit Party or its properties in the courts of any
jurisdiction.
(b)
Each
Credit Party 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
4.09. 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 ANY OTHER LOAN
DOCUMENT 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
CREDIT PARTY 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.
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Section
4.10. Termination
of Subordination.
This
Agreement shall continue in full force and effect, and the obligations and
agreements of the Credit Parties hereunder shall continue to be fully operative,
until all of the Senior Obligations shall have been paid and satisfied in full
in cash and such full payment and satisfaction shall be final and not avoidable,
the LC Exposure shall have been reduced to zero and the Revolving Commitments
shall have terminated. To the extent that the Lenders or any guarantor of or
provider of collateral for the Senior Obligations makes any payment on the
Senior Obligations that is subsequently invalidated, declared to be fraudulent
or preferential or set aside or is required to be repaid to a trustee, receiver
or any other party under any bankruptcy, insolvency or reorganization act,
state
or federal law, common law or equitable cause (such payment being hereinafter
referred to as a "Voided Payment"), then to the extent of such Voided Payment,
that portion of the Senior Obligations that had been previously satisfied by
such Voided Payment shall be revived and continue in full force and effect
as if
such Voided Payment had never been made. In the event that a Voided Payment
is
recovered from any Lender, an Event of Default shall be deemed to have existed
and to be continuing under the Credit Agreement from the date of such Lender's
initial receipt of such Voided Payment until the full amount of such Voided
Payment is restored to such Lender. During any continuance of any such Event
of
Default, this Agreement shall be in full force and effect with respect to the
Subordinated Debt. To the extent that any holder of Subordinated Debt has
received any payments with respect to the Subordinated Debt subsequent to the
date of such Lender's initial receipt of such Voided Payment and such payments
have not bee invalidated, declared to be fraudulent or preferential or set
aside
or required to be repaid to a trustee, receiver, or any other party under any
bankruptcy act, state or federal law, common law or equitable cause, such holder
of Subordinated Debt shall be obligated and hereby agrees that any such payment
so made or received shall be deemed to have been received in trust for the
benefit of the Lender, and such holder of Subordinated Debt hereby agrees to
pay
to such Lender upon demand, the full amount so received by such holder of
Subordinated Debt during such period of time to the extent necessary fully
to
restore to such Lender the amount of such Voided Payment. Upon the payment
and
satisfaction in full in cash of all of the Senior Obligations, the LC Exposure
shall have been reduced to zero and the termination of the Revolving
Commitments, which payment shall be final and no avoidable, this Agreement
will
automatically terminate without any additional action by any party
thereto.
9
IN
WITNESS WHEREOF, the parties hereto have caused this Second Amended and Restated
Subordination 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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DREW
INDUSTRIES INCORPORATED
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By:
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Name:
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Title:
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KINRO,
INC.
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By:
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Name:
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Title:
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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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XXXXXXX
COMPONENTS, INC.
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By:
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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:
|
||
|
XXXXXXX
HOLDING, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
KINRO
MANUFACTURING, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXXXX
COMPONENTS MANUFACTURING, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
COIL
CLIP, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXXX
MANUFACTURING COMPANY
|
||
|
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:
|
|||
|
XXXXXXX
TIRE & AXLE 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:
|
|||
12
|
LD
REALTY, INC.
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
XXXXXXX
COMPONENTS TEXAS, LIMITED PARTNERSHIP
|
|||
|
By:
|
XXXXXXX
COMPONENTS MANUFACTURING INC., its general partner
|
||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
TRAILAIR,
INC.
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
LTM
MANUFACTURING, L.L.C.
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
JPMORGAN
CHASE BANK, N.A.
|
|||
|
as
Administrative Agent
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
13
