Exhibit 10.189
Execution Version
SUPPLEMENT TO SUBORDINATION AGREEMENT
This SUPPLEMENT dated as of November 14, 2001 (this "Supplement") to the
Subordination Agreement dated as of January 28, 1998 (as amended, supplemented,
or modified from time to time, the "Subordination Agreement") made by DREW
INDUSTRIES INCORPORATED, a Delaware corporation (the "Company") and each direct
and indirect subsidiary thereof party thereto (collectively, together with the
Company, the "Credit Parties") and TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF
AMERICA, MIDWESTERN UNITED LIFE INSURANCE COMPANY, SECURITY LIFE OF DENVER
INSURANCE COMPANY, EQUITABLE LIFE INSURANCE COMPANY OF IOWA and USG ANNUITY &
LIFE COMPANY (collectively, together with each future holder of Senior Notes,
the "Noteholders").
Reference is hereby made to the Note Purchase Agreement dated as of
January 28, 1998 (as amended, supplemented or modified from time to time, the
"Note Purchase Agreement") among Kinro, Inc., an Ohio corporation, ▇▇▇▇▇▇▇ Tire
& Axle, Inc. (formally known as Shoals Supply, Inc.), a Delaware corporation,
▇▇▇▇▇▇▇ Components, Inc., a Delaware corporation, and the Noteholders.
Terms used herein as defined terms and not otherwise defined herein shall
have the meanings given thereto in the Note Purchase Agreement.
The Credit Parties entered into the Subordination Agreement to induce the
Noteholders to acquire the Notes. Pursuant to (and as more particularly set
forth in) Section 11.12 of the Note Purchase Agreement, the undersigned
Subsidiaries of the Company (each, a "New Credit Party") are required to become
parties to the Subordination Agreement pursuant to an instrument in form, scope
and substance satisfactory to the Noteholders. Section 4.07(b) of the
Subordination Agreement provides that the New Credit Parties may become parties
to the Subordination Agreement by entering into an agreement in the form of this
Supplement.
Accordingly, and for other good and lawful consideration the receipt and
sufficiency of which are hereby acknowledged, the Noteholders and each of the
New Credit Parties agree as follows:
Section 1. In accordance with Section 4.07(b) of the Subordination
Agreement, each New Credit Party by its signature below becomes a party to the
Subordination Agreement with the same force and effect as if originally a
signatory thereto, and each New Credit Party hereby agrees (a) to all the terms
and provisions of the Subordination Agreement applicable to it as a Credit Party
thereunder and (b) represents and warrants that the representations and
warranties made by it as a Credit Party thereunder are true and correct on and
as of the date hereof. Each reference to a "Credit Party" in the Subordination
Agreement shall be deemed to include each New Credit Party. The Subordination
Agreement is hereby incorporated herein by reference.
Section 2. Each New Credit Party represents and warrants to the
Noteholders and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it
and constitutes its legal, valid and binding obligation, enforceable against it
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity (regardless of whether considered in
a proceeding at law or in equity).
Section 3. This Supplement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument. This Supplement shall become
effective when the Noteholders shall have received counterparts of this
Supplement that bear the signatures of each New Credit Party and the
Noteholders.
Section 4. Each New Credit Party agrees to furnish (including herewith) to
the Noteholders such information as the Noteholders shall reasonably request in
connection with such New Credit Party.
Section 5. Except as expressly supplemented hereby, the Subordination
Agreement shall remain in full force and effect.
Section 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Note Purchase Agreement, the Notes and the Transaction
Documents shall not in any way be affected or impaired. The parties hereto shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
Section 8. All communications and notices hereunder shall be in writing
and given as provided in Section 20 of the Note Purchase Agreement. All
communications and notices hereunder to each New Credit Party shall be given to
it at the respective address set forth under its signature hereto.
Section 9. Each New Credit Party agrees to reimburse the Noteholders for
their expenses incurred in connection with this Supplement, including the
reasonable fees, other charges and disbursements of counsel.
2
IN WITNESS WHEREOF, each New Credit Party and the Noteholders have duly
executed this Supplement as of the day and year first above written.
BBD REALTY TEXAS LIMITED PARTNERSHIP
By: Kinro Manufacturing, Inc, its General
Partner
By: _______________________________________
Name:
Title:
Address: __________________________________
__________________________________
__________________________________
Telephone: ________________________________
Facsimile: ________________________________
COIL CLIP, INC.
By: _______________________________________
Name:
Title:
Address: __________________________________
__________________________________
__________________________________
Telephone: ________________________________
Facsimile: ________________________________
LD REALTY, INC.
By: _______________________________________
Name:
Title:
Address: __________________________________
__________________________________
__________________________________
Telephone: ________________________________
Facsimile: ________________________________
▇▇▇▇▇▇▇ COMPONENTS OF CANADA, INC.
By: _______________________________________
Name:
Title:
Address: __________________________________
__________________________________
__________________________________
Telephone: ________________________________
Facsimile: ________________________________
TEACHERS INSURANCE AND ANNUITY ASSOCIATION
By: _______________________________________
Name:
Title:
ING INVESTMENT MANAGEMENT LLC, as agent
for Midwestern United Life Insurance
Company, Security Life of Denver
Insurance Company, Equitable Life
Insurance Company of Iowa and USG
Annuity & Life Company
By: _______________________________________
Name:
Title: