Exhibit 10.186
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"). NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED, SOLD,
PLEDGED, OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF THE 1933 ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY
OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION
PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH
IN SECTION 15.2 OF THE NOTE PURCHSE AGREEMENTS (AS HEREINAFTER DEFINED). THE
UNDERSIGNED SHALL HAVE NO OBLIGATION TO REGISTER THIS NOTE UNDER THE 1933 ACT.
Teachers Insurance and Annuity Association Of America
KINRO, INC.
▇▇▇▇▇▇▇ COMPONENTS, INC.
▇▇▇▇▇▇▇ TIRE & AXLE, INC.
6.95% SENIOR NOTE DUE january 28, 2005
No. R-1 July 28, 2001
$18,000,000 PPN: 49713@AA1
FOR VALUE RECEIVED, each of the undersigned, Kinro, Inc., an Ohio
corporation ("Kinro"), ▇▇▇▇▇▇▇ Tire & Axle, Inc., a Delaware corporation
formerly known as Shoals Supply, Inc. ("▇▇▇▇▇▇▇ Tire"), and ▇▇▇▇▇▇▇ Components,
Inc., a Delaware corporation ("▇▇▇▇▇▇▇" and, collectively with Kinro and ▇▇▇▇▇▇▇
Tire, the "Co-Issuers"), hereby jointly and severally promises to pay to
Teachers Insurance and Annuity Association of America, or registered assigns
(the "Payee"), the principal sum of EIGHTEEN MILLION DOLLARS ($18,000,000) on
January 28, 2005, with interest on the unpaid balance thereof at the rate per
annum equal to (i) 6.95% (the "Coupon Rate") plus (ii) the Applicable Margin
Rate (as defined below) from July 28, 2001, payable semi-annually, on the 28th
day of July and January in each year, commencing with January 28, 2002 (each
such date, an "Interest Payment Date"), until the principal hereof shall have
become due and payable; provided, however, that, with respect to
only the periods January 1st through January 28th and July 1st through July
28th, respectively, of each year, only interest accrued at the Coupon Rate shall
be payable on the related Interest Payment Date and the interest accrued during
each such period at the Applicable Margin Rate shall be payable on or prior to
March 5th and August 25th, respectively, in each year, commencing with March 5,
2002 (each such date, a "True-Up Date"); provided further, that the Co-Issuers
shall provide the Payee with no less than ten days' prior written notice of (i)
the amount of interest calculated at the Applicable Margin Rate to be paid on
the relevant True-Up Date, and (ii) the Debt Coverage Ratio with respect to
which such Applicable Margin Rate shall have been determined. Interest on this
Note shall be computed on the basis of a 360-day year of twelve 30-day months.
Capitalized terms used but not otherwise defined herein shall have the meaning
assigned thereto in the Note Purchase Agreements referred to below.
The "Applicable Margin Rate" means, for any day on or after November
14, 2001, the applicable rate per annum determined with reference to the Debt
Coverage Ratio as of the then most recently ended fiscal quarter as set forth
below under the caption "Margin":
---------------------------------------------------------
Debt Coverage Ratio Margin
---------------------------------------------------------
---------------------------------------------------------
> 3.00:1.00 0.60%
---------------------------------------------------------
< 3.00:1.00, but
> 2.50:1.00 0.20%
---------------------------------------------------------
<2.50:1.00 0.00%
---------------------------------------------------------
Each of the Co-Issuers hereby jointly and severally promises to pay
to the Payee, to the extent permitted by law, interest on any overdue payment
(including any overdue prepayment) of principal, interest or any Make-Whole
Amount (as defined in the Note Purchase Agreements referred to below), payable
as aforesaid (or, at the option of the registered holder hereof, on demand), at
a rate per annum (the "Default Rate") from time to time equal to the greater of
(i) 2% per annum plus the rate announced from time to time in the Wall Street
Journal as the prime rate or (ii) 2% per annum plus the Coupon Rate plus the
Applicable Margin Rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the office of Drew Industries Incorporated, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other location as designated under
Section 11.1 of the Note Purchase Agreements referred to below, in each case
subject to the right of the registered holder hereof under said Note Purchase
Agreements to receive direct payment in immediately available funds.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to separate Note Purchase Agreements, dated as of
January 28, 1998 (as from time to
2
time amended, the "Note Purchase Agreements"), between the Co-Issuers and the
respective Purchasers named therein and is entitled to the benefits thereof.
Each holder of this Note will be deemed, by its acceptance hereof, (i) to have
agreed to the confidentiality provisions set forth in Section 22 of the Note
Purchase Agreements and (ii) to have made the representation set forth in
Section 7 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount (or such lesser amount as shall
equal the aggregate amount outstanding thereunder) will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Co-Issuers may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Co-Issuers will not be affected by any notice to
the contrary.
The Co-Issuers will make required prepayments of principal on the
dates and in the amounts specified in the Note Purchase Agreements including,
without limitation, Section 9.1. This Note is also subject to optional
prepayment, in whole or from time to time in part, at the times and on the terms
specified in the Note Purchase Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
[Remainder of page intentionally left blank.]
3
This Note shall be construed and enforced in accordance with and the
rights of the parties shall be governed by, the law of the State of New York
excluding choice of law principles of such State that would require the
application of the laws of a jurisdiction other than such State.
KINRO, INC.
By: __________________________
Name:
Title:
▇▇▇▇▇▇▇ COMPONENTS, INC.
By: __________________________
Name:
Title:
▇▇▇▇▇▇▇ TIRE & AXLE, INC.
By: __________________________
Name:
Title:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"). NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED, SOLD,
PLEDGED, OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF THE 1933 ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY
OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION
PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH
IN SECTION 15.2 OF THE NOTE PURCHSE AGREEMENTS (AS HEREINAFTER DEFINED). THE
UNDERSIGNED SHALL HAVE NO OBLIGATION TO REGISTER THIS NOTE UNDER THE 1933 ACT.
USG ANNUITY & LIFE COMPANY
KINRO, INC.
▇▇▇▇▇▇▇ COMPONENTS, INC.
▇▇▇▇▇▇▇ TIRE & AXLE, INC.
6.95% SENIOR NOTE DUE JANUARY 28, 2005
No. R-1 July 28, 2001
$4,800,000 PPN: 49713@AA1
FOR VALUE RECEIVED, each of the undersigned, Kinro, Inc., an Ohio
corporation ("Kinro"), ▇▇▇▇▇▇▇ Tire & Axle, Inc., a Delaware corporation
formerly known as Shoals Supply, Inc. ("▇▇▇▇▇▇▇ Tire"), and ▇▇▇▇▇▇▇ Components,
Inc., a Delaware corporation ("▇▇▇▇▇▇▇" and, collectively with Kinro and ▇▇▇▇▇▇▇
Tire, the "Co-Issuers"), hereby jointly and severally promises to pay to USG
Annuity & Life Company, or registered assigns (the "Payee"), the principal sum
of FOUR MILLION EIGHT HUNDRED THOUSAND DOLLARS ($4,800,000) on January 28, 2005,
with interest on the unpaid balance thereof at the rate per annum equal to (i)
6.95% (the "Coupon Rate") plus (ii) the Applicable Margin Rate (as defined
below) from July 28, 2001, payable semi-annually, on the 28th day of July and
January in each year, commencing with January 28, 2002 (each such date, an
"Interest Payment Date"), until the principal hereof shall have become due and
payable; provided, however, that, with respect to only the periods January 1st
through January 28th and July 1st through July 28th, respectively, of
each year, only interest accrued at the Coupon Rate shall be payable on the
related Interest Payment Date and the interest accrued during each such period
at the Applicable Margin Rate shall be payable on or prior to March 5th and
August 25th, respectively, in each year, commencing with March 5, 2002 (each
such date, a "True-Up Date"); provided further, that the Co-Issuers shall
provide the Payee with no less than ten days' prior written notice of (i) the
amount of interest calculated at the Applicable Margin Rate to be paid on the
relevant True-Up Date, and (ii) the Debt Coverage Ratio with respect to which
such Applicable Margin Rate shall have been determined. Interest on this Note
shall be computed on the basis of a 360-day year of twelve 30-day months.
Capitalized terms used but not otherwise defined herein shall have the meaning
assigned thereto in the Note Purchase Agreements referred to below.
The "Applicable Margin Rate" means, for any day on or after November
14, 2001, the applicable rate per annum determined with reference to the Debt
Coverage Ratio as of the then most recently ended fiscal quarter as set forth
below under the caption "Margin":
---------------------------------------------------------
Debt Coverage Ratio Margin
---------------------------------------------------------
---------------------------------------------------------
> 3.00:1.00 0.60%
---------------------------------------------------------
<=3.00:1.00, but 0.20%
>=2.50:1.00
---------------------------------------------------------
<2.50:1.00 0.00%
---------------------------------------------------------
Each of the Co-Issuers hereby jointly and severally promises to pay
to the Payee, to the extent permitted by law, interest on any overdue payment
(including any overdue prepayment) of principal, interest or any Make-Whole
Amount (as defined in the Note Purchase Agreements referred to below), payable
as aforesaid (or, at the option of the registered holder hereof, on demand), at
a rate per annum (the "Default Rate") from time to time equal to the greater of
(i) 2% per annum plus the rate announced from time to time in the Wall Street
Journal as the prime rate or (ii) 2% per annum plus the Coupon Rate plus the
Applicable Margin Rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the office of Drew Industries Incorporated, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other location as designated under
Section 11.1 of the Note Purchase Agreements referred to below, in each case
subject to the right of the registered holder hereof under said Note Purchase
Agreements to receive direct payment in immediately available funds.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to separate Note Purchase Agreements, dated as of
January 28, 1998 (as from time to time amended, the "Note Purchase Agreements"),
between the Co-Issuers and the respective
2
Purchasers named therein and is entitled to the benefits thereof. Each holder of
this Note will be deemed, by its acceptance hereof, (i) to have agreed to the
confidentiality provisions set forth in Section 22 of the Note Purchase
Agreements and (ii) to have made the representation set forth in Section 7 of
the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount (or such lesser amount as shall
equal the aggregate amount outstanding thereunder) will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Co-Issuers may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Co-Issuers will not be affected by any notice to
the contrary.
The Co-Issuers will make required prepayments of principal on the
dates and in the amounts specified in the Note Purchase Agreements including,
without limitation, Section 9.1. This Note is also subject to optional
prepayment, in whole or from time to time in part, at the times and on the terms
specified in the Note Purchase Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
[Remainder of page intentionally left blank.]
3
This Note shall be construed and enforced in accordance with and the
rights of the parties shall be governed by, the law of the State of New York
excluding choice of law principles of such State that would require the
application of the laws of a jurisdiction other than such State.
KINRO, INC.
By: ____________________________________
Name:
Title:
▇▇▇▇▇▇▇ COMPONENTS, INC.
By: ____________________________________
Name:
Title:
▇▇▇▇▇▇▇ TIRE & AXLE, INC.
By: ____________________________________
Name:
Title:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"). NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED, SOLD,
PLEDGED, OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF THE 1933 ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY
OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION
PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH
IN SECTION 15.2 OF THE NOTE PURCHSE AGREEMENTS (AS HEREINAFTER DEFINED). THE
UNDERSIGNED SHALL HAVE NO OBLIGATION TO REGISTER THIS NOTE UNDER THE 1933 ACT.
EQUITABLE LIFE INSURANCE COMPANY
KINRO, INC.
▇▇▇▇▇▇▇ COMPONENTS, INC.
▇▇▇▇▇▇▇ TIRE & AXLE, INC.
6.95% SENIOR NOTE DUE JANUARY 28, 2005
No. R-1 July 28, 2001
$1,600,000 PPN: 49713@AA1
FOR VALUE RECEIVED, each of the undersigned, Kinro, Inc., an Ohio
corporation ("Kinro"), ▇▇▇▇▇▇▇ Tire & Axle, Inc., a Delaware corporation
formerly known as Shoals Supply, Inc. ("▇▇▇▇▇▇▇ Tire"), and ▇▇▇▇▇▇▇ Components,
Inc., a Delaware corporation ("▇▇▇▇▇▇▇" and, collectively with Kinro and ▇▇▇▇▇▇▇
Tire, the "Co-Issuers"), hereby jointly and severally promises to pay to
Equitable Life Insurance Company, or registered assigns (the "Payee"), the
principal sum of ONE MILLION SIX HUNDRED THOUSAND DOLLARS ($1,600,000) on
January 28, 2005, with interest on the unpaid balance thereof at the rate per
annum equal to (i) 6.95% (the "Coupon Rate") plus (ii) the Applicable Margin
Rate (as defined below) from July 28, 2001, payable semi-annually, on the 28th
day of July and January in each year, commencing with January 28, 2002 (each
such date, an "Interest Payment Date"), until the principal hereof shall have
become due and payable; provided, however, that, with respect to only the
periods January 1st through January 28th and July 1st through July 28th,
respectively, of
each year, only interest accrued at the Coupon Rate shall be payable on the
related Interest Payment Date and the interest accrued during each such period
at the Applicable Margin Rate shall be payable on or prior to March 5th and
August 25th, respectively, in each year, commencing with March 5, 2002 (each
such date, a "True-Up Date"); provided further, that the Co-Issuers shall
provide the Payee with no less than ten days' prior written notice of (i) the
amount of interest calculated at the Applicable Margin Rate to be paid on the
relevant True-Up Date, and (ii) the Debt Coverage Ratio with respect to which
such Applicable Margin Rate shall have been determined. Interest on this Note
shall be computed on the basis of a 360-day year of twelve 30-day months.
Capitalized terms used but not otherwise defined herein shall have the meaning
assigned thereto in the Note Purchase Agreements referred to below.
The "Applicable Margin Rate" means, for any day on or after November
14, 2001, the applicable rate per annum determined with reference to the Debt
Coverage Ratio as of the then most recently ended fiscal quarter as set forth
below under the caption "Margin":
---------------------------------------------------------
Debt Coverage Ratio Margin
---------------------------------------------------------
---------------------------------------------------------
> 3.00:1.00 0.60%
---------------------------------------------------------
<=3.00:1.00, but 0.20%
>=2.50:1.00
---------------------------------------------------------
<2.50:1.00 0.00%
---------------------------------------------------------
Each of the Co-Issuers hereby jointly and severally promises to pay
to the Payee, to the extent permitted by law, interest on any overdue payment
(including any overdue prepayment) of principal, interest or any Make-Whole
Amount (as defined in the Note Purchase Agreements referred to below), payable
as aforesaid (or, at the option of the registered holder hereof, on demand), at
a rate per annum (the "Default Rate") from time to time equal to the greater of
(i) 2% per annum plus the rate announced from time to time in the Wall Street
Journal as the prime rate or (ii) 2% per annum plus the Coupon Rate plus the
Applicable Margin Rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the office of Drew Industries Incorporated, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other location as designated under
Section 11.1 of the Note Purchase Agreements referred to below, in each case
subject to the right of the registered holder hereof under said Note Purchase
Agreements to receive direct payment in immediately available funds.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to separate Note Purchase Agreements, dated as of
January 28, 1998 (as from time to time amended, the "Note Purchase Agreements"),
between the Co-Issuers and the respective
2
Purchasers named therein and is entitled to the benefits thereof. Each holder of
this Note will be deemed, by its acceptance hereof, (i) to have agreed to the
confidentiality provisions set forth in Section 22 of the Note Purchase
Agreements and (ii) to have made the representation set forth in Section 7 of
the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount (or such lesser amount as shall
equal the aggregate amount outstanding thereunder) will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Co-Issuers may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Co-Issuers will not be affected by any notice to
the contrary.
The Co-Issuers will make required prepayments of principal on the
dates and in the amounts specified in the Note Purchase Agreements including,
without limitation, Section 9.1. This Note is also subject to optional
prepayment, in whole or from time to time in part, at the times and on the terms
specified in the Note Purchase Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
[Remainder of page intentionally left blank.]
3
This Note shall be construed and enforced in accordance with and the
rights of the parties shall be governed by, the law of the State of New York
excluding choice of law principles of such State that would require the
application of the laws of a jurisdiction other than such State.
KINRO, INC.
By: ____________________________________
Name:
Title:
▇▇▇▇▇▇▇ COMPONENTS, INC.
By: ____________________________________
Name:
Title:
▇▇▇▇▇▇▇ TIRE & AXLE, INC.
By: ____________________________________
Name:
Title:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"). NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED, SOLD,
PLEDGED, OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF THE 1933 ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY
OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION
PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH
IN SECTION 15.2 OF THE NOTE PURCHSE AGREEMENTS (AS HEREINAFTER DEFINED). THE
UNDERSIGNED SHALL HAVE NO OBLIGATION TO REGISTER THIS NOTE UNDER THE 1933 ACT.
MIDWESTERN UNITED LIFE INSURANCE COMPANY
KINRO, INC.
▇▇▇▇▇▇▇ COMPONENTS, INC.
▇▇▇▇▇▇▇ TIRE & AXLE, INC.
6.95% SENIOR NOTE DUE JANUARY 28, 2005
No. R-1 July 28, 2001
$4,480,000 PPN: 49713@AA1
FOR VALUE RECEIVED, each of the undersigned, Kinro, Inc., an Ohio
corporation ("Kinro"), ▇▇▇▇▇▇▇ Tire & Axle, Inc., a Delaware corporation
formerly known as Shoals Supply, Inc. ("▇▇▇▇▇▇▇ Tire"), and ▇▇▇▇▇▇▇ Components,
Inc., a Delaware corporation ("▇▇▇▇▇▇▇" and, collectively with Kinro and ▇▇▇▇▇▇▇
Tire, the "Co-Issuers"), hereby jointly and severally promises to pay to
Midwestern United Life Insurance Company, or registered assigns (the "Payee"),
the principal sum of FOUR MILLION FOUR HUNDRED EIGHTY THOUSAND DOLLARS
($4,480,000) on January 28, 2005, with interest on the unpaid balance thereof at
the rate per annum equal to (i) 6.95% (the "Coupon Rate") plus (ii) the
Applicable Margin Rate (as defined below) from July 28, 2001, payable
semi-annually, on the 28th day of July and January in each year, commencing with
January 28, 2002 (each such date, an "Interest Payment Date"), until the
principal hereof shall have become due and payable; provided, however, that,
with respect to only the periods January 1st through January 28th and July 1st
5
through July 28th, respectively, of each year, only interest accrued at the
Coupon Rate shall be payable on the related Interest Payment Date and the
interest accrued during each such period at the Applicable Margin Rate shall be
payable on or prior to March 5th and August 25th, respectively, in each year,
commencing with March 5, 2002 (each such date, a "True-Up Date"); provided
further, that the Co-Issuers shall provide the Payee with no less than ten days'
prior written notice of (i) the amount of interest calculated at the Applicable
Margin Rate to be paid on the relevant True-Up Date, and (ii) the Debt Coverage
Ratio with respect to which such Applicable Margin Rate shall have been
determined. Interest on this Note shall be computed on the basis of a 360-day
year of twelve 30-day months. Capitalized terms used but not otherwise defined
herein shall have the meaning assigned thereto in the Note Purchase Agreements
referred to below.
The "Applicable Margin Rate" means, for any day on or after November
14, 2001, the applicable rate per annum determined with reference to the Debt
Coverage Ratio as of the then most recently ended fiscal quarter as set forth
below under the caption "Margin":
---------------------------------------------------------
Debt Coverage Ratio Margin
---------------------------------------------------------
---------------------------------------------------------
> 3.00:1.00 0.60%
---------------------------------------------------------
<=3.00:1.00, but 0.20%
>=2.50:1.00
---------------------------------------------------------
<2.50:1.00 0.00%
---------------------------------------------------------
Each of the Co-Issuers hereby jointly and severally promises to pay
to the Payee, to the extent permitted by law, interest on any overdue payment
(including any overdue prepayment) of principal, interest or any Make-Whole
Amount (as defined in the Note Purchase Agreements referred to below), payable
as aforesaid (or, at the option of the registered holder hereof, on demand), at
a rate per annum (the "Default Rate") from time to time equal to the greater of
(i) 2% per annum plus the rate announced from time to time in the Wall Street
Journal as the prime rate or (ii) 2% per annum plus the Coupon Rate plus the
Applicable Margin Rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the office of Drew Industries Incorporated, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other location as designated under
Section 11.1 of the Note Purchase Agreements referred to below, in each case
subject to the right of the registered holder hereof under said Note Purchase
Agreements to receive direct payment in immediately available funds.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to separate Note Purchase Agreements, dated as of
January 28, 1998 (as from time to
2
time amended, the "Note Purchase Agreements"), between the Co-Issuers and the
respective Purchasers named therein and is entitled to the benefits thereof.
Each holder of this Note will be deemed, by its acceptance hereof, (i) to have
agreed to the confidentiality provisions set forth in Section 22 of the Note
Purchase Agreements and (ii) to have made the representation set forth in
Section 7 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount (or such lesser amount as shall
equal the aggregate amount outstanding thereunder) will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Co-Issuers may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Co-Issuers will not be affected by any notice to
the contrary.
The Co-Issuers will make required prepayments of principal on the
dates and in the amounts specified in the Note Purchase Agreements including,
without limitation, Section 9.1. This Note is also subject to optional
prepayment, in whole or from time to time in part, at the times and on the terms
specified in the Note Purchase Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
[Remainder of page intentionally left blank.]
3
This Note shall be construed and enforced in accordance with and the
rights of the parties shall be governed by, the law of the State of New York
excluding choice of law principles of such State that would require the
application of the laws of a jurisdiction other than such State.
KINRO, INC.
By: ____________________________________
Name:
Title:
▇▇▇▇▇▇▇ COMPONENTS, INC.
By: ____________________________________
Name:
Title:
▇▇▇▇▇▇▇ TIRE & AXLE, INC.
By: ____________________________________
Name:
Title:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"). NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED, SOLD,
PLEDGED, OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF THE 1933 ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY
OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION
PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH
IN SECTION 15.2 OF THE NOTE PURCHSE AGREEMENTS (AS HEREINAFTER DEFINED). THE
UNDERSIGNED SHALL HAVE NO OBLIGATION TO REGISTER THIS NOTE UNDER THE 1933 ACT.
SECURITY LIFE OF DENVER INSURANCE COMPANY
KINRO, INC.
▇▇▇▇▇▇▇ COMPONENTS, INC.
▇▇▇▇▇▇▇ TIRE & AXLE, INC.
6.95% SENIOR NOTE DUE JANUARY 28, 2005
No. R-1 July 28, 2001
$3,120,000 PPN: 49713@AA1
FOR VALUE RECEIVED, each of the undersigned, Kinro, Inc., an Ohio
corporation ("Kinro"), ▇▇▇▇▇▇▇ Tire & Axle, Inc., a Delaware corporation
formerly known as Shoals Supply, Inc. ("▇▇▇▇▇▇▇ Tire"), and ▇▇▇▇▇▇▇ Components,
Inc., a Delaware corporation ("▇▇▇▇▇▇▇" and, collectively with Kinro and ▇▇▇▇▇▇▇
Tire, the "Co-Issuers"), hereby jointly and severally promises to pay to
Security Life of Denver Insurance Company, or registered assigns (the "Payee"),
the principal sum of THREE MILLION ONE HUNDRED TWENTY THOUSAND DOLLARS
($3,120,000) on January 28, 2005, with interest on the unpaid balance thereof at
the rate per annum equal to (i) 6.95% (the "Coupon Rate") plus (ii) the
Applicable Margin Rate (as defined below) from July 28, 2001, payable
semi-annually, on the 28th day of July and January in each year, commencing with
January 28, 2002 (each such date, an "Interest Payment Date"), until the
principal hereof shall have become due and payable; provided, however, that,
with respect to only the periods January 1st through January 28th and July 1st
through July 28th, respectively, of each year, only interest accrued at the
Coupon Rate shall be payable on the related Interest Payment Date and the
interest accrued during each such period at the Applicable Margin Rate shall be
payable on or prior to March 5th and August 25th, respectively, in each year,
commencing with March 5, 2002 (each such date, a "True-Up Date"); provided
further, that the Co-Issuers shall provide the Payee with no less than ten days'
prior written notice of (i) the amount of interest calculated at the Applicable
Margin Rate to be paid on the relevant True-Up Date, and (ii) the Debt Coverage
Ratio with respect to which such Applicable Margin Rate shall have been
determined. Interest on this Note shall be computed on the basis of a 360-day
year of twelve 30-day months. Capitalized terms used but not otherwise defined
herein shall have the meaning assigned thereto in the Note Purchase Agreements
referred to below.
The "Applicable Margin Rate" means, for any day on or after November
14, 2001, the applicable rate per annum determined with reference to the Debt
Coverage Ratio as of the then most recently ended fiscal quarter as set forth
below under the caption "Margin":
---------------------------------------------------------
Debt Coverage Ratio Margin
---------------------------------------------------------
---------------------------------------------------------
> 3.00:1.00 0.60%
---------------------------------------------------------
<=3.00:1.00, but 0.20%
>=2.50:1.00
---------------------------------------------------------
<2.50:1.00 0.00%
---------------------------------------------------------
Each of the Co-Issuers hereby jointly and severally promises to pay
to the Payee, to the extent permitted by law, interest on any overdue payment
(including any overdue prepayment) of principal, interest or any Make-Whole
Amount (as defined in the Note Purchase Agreements referred to below), payable
as aforesaid (or, at the option of the registered holder hereof, on demand), at
a rate per annum (the "Default Rate") from time to time equal to the greater of
(i) 2% per annum plus the rate announced from time to time in the Wall Street
Journal as the prime rate or (ii) 2% per annum plus the Coupon Rate plus the
Applicable Margin Rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the office of Drew Industries Incorporated, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other location as designated under
Section 11.1 of the Note Purchase Agreements referred to below, in each case
subject to the right of the registered holder hereof under said Note Purchase
Agreements to receive direct payment in immediately available funds.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to separate Note Purchase Agreements, dated as of
January 28, 1998 (as from time to
2
time amended, the "Note Purchase Agreements"), between the Co-Issuers and the
respective Purchasers named therein and is entitled to the benefits thereof.
Each holder of this Note will be deemed, by its acceptance hereof, (i) to have
agreed to the confidentiality provisions set forth in Section 22 of the Note
Purchase Agreements and (ii) to have made the representation set forth in
Section 7 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount (or such lesser amount as shall
equal the aggregate amount outstanding thereunder) will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Co-Issuers may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Co-Issuers will not be affected by any notice to
the contrary.
The Co-Issuers will make required prepayments of principal on the
dates and in the amounts specified in the Note Purchase Agreements including,
without limitation, Section 9.1. This Note is also subject to optional
prepayment, in whole or from time to time in part, at the times and on the terms
specified in the Note Purchase Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
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3
This Note shall be construed and enforced in accordance with and the
rights of the parties shall be governed by, the law of the State of New York
excluding choice of law principles of such State that would require the
application of the laws of a jurisdiction other than such State.
KINRO, INC.
By: ____________________________________
Name:
Title:
▇▇▇▇▇▇▇ COMPONENTS, INC.
By: ____________________________________
Name:
Title:
▇▇▇▇▇▇▇ TIRE & AXLE, INC.
By: ____________________________________
Name:
Title:
Execution Version
AMENDMENT NO 1. TO PLEDGE AGREEMENT
This AMENDMENT NO. 1 TO PLEDGE AGREEMENT (this "Amendment") to Pledge
Agreement ("Pledge Agreement") is entered into as of November 14, 2001 (the
"Effective Date") by KINRO MANUFACTURING, INC., a Delaware corporation, as
pledgor ("Pledgor") and JPMORGAN CHASE BANK (formerly known as The Chase
Manhattan Bank) as trustee ("Pledgee"), for the benefit of the Noteholders (as
defined below).
PRELIMINARY STATEMENT
WHEREAS, pursuant to a Note Purchase Agreement, dated as of January 28,
1998 (as amended, modified and supplemented from time to time, the "Note
Purchase Agreement"), among Kinro, Inc., ▇▇▇▇▇▇▇ Components, Inc. and ▇▇▇▇▇▇▇
Tire & Axle, Inc. (formerly known as Shoals Supply, Inc.) (each a "Co-Issuer"
and, collectively, the "Co-Issuers"), 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"), the Noteholders purchased the 6.95% senior notes due
January 28, 2005 issued by the Co-Issuers (the "Senior Notes"), upon the terms
and subject to the conditions set forth therein. Terms used herein as defined
terms and not otherwise defined herein shall have the meanings given thereto in
the Note Purchase Agreement or the Pledge Agreement (as defined below).
WHEREAS, pursuant to Section 11.12 of the Note Purchase Agreement and upon
request of the Noteholders, Pledgor is required to pledge and grant to Pledgee a
security interest in Pledgor's shares in the equity of each of its subsidiaries.
WHEREAS, in accordance with Section 11.12 of the Note Purchase Agreement,
Pledgor executed that certain Pledge Agreement dated as of January 28, 1998 in
favor of Pledgee for the benefit of the Noteholders (the "Pledge Agreement").
WHEREAS, Pledgor has acquired a limited partnership interest in BBD Realty
Texas Limited Partnership, a Texas limited partnership ("BBD") and the
Noteholders require that Pledgor pledge and grant to Pledgee a security interest
in Pledgor's limited partnership interest in BBD (the "Additional Collateral").
WHEREAS, Pledgor and Pledgee desire to amend the Pledge Agreement to add
the Additional Collateral to Schedule II of the Pledge Agreement.
NOW, THEREFORE, in consideration for the mutual covenants set forth herein
and intending to be legally bound hereby, the parties hereto agree as follows:
1. Grant of Security Interest. As further security for the payment and
performance in full of the Obligations, Pledgor hereby transfers, grants,
bargains, sells, conveys, hypothecates, pledges, sets over and delivers unto
Pledgee, and grants to Pledgee for the ratable benefit of the
Noteholders, a first priority security interest in (i) all of the limited
partnership interests in BBD owned by Pledgor and (ii) subject to Section 6 of
the Pledge Agreement, all payments of dividends and distributions, including,
without limitation, all cash, instruments, securities, security entitlements,
investment property and other property, from time to time received, receivable
or otherwise paid or distributed, in respect of, or in exchange for or upon the
conversion of the securities and other property referred to in clause (i) above,
(iii) subject to Section 6 hereof, all rights and privileges of Pledgor with
respect to the securities (including any security entitlements) and other
property referred to in clauses (i) and (ii) above, (iv) any and all custodial
accounts, securities accounts or other safekeeping accounts in which any of the
foregoing property (and any property described in the following clause (v)) may
be deposited or held in, and any security entitlements or other rights relating
thereto, and (v) all proceeds of any of the foregoing.
2. Amendment of Schedules II and III to the Pledge Agreement. Schedule II
and Schedule III to the Pledge Agreement are each hereby amended and restated in
their entirety as set forth in Exhibit A hereto.
3. Miscellaneous.
(a) Pledgor represents and warrants to Pledgee and Noteholders that (i)
this Amendment 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), (ii) its ownership of the Additional
Collateral is not represented or otherwise evidenced by any certificate not
delivered to Pledgee, and (iii) the representations and warranties of Pledgor
contained in the Pledge Agreement, as amended hereby, (other than the
representation contained in Section 4(f) thereof) are true and correct in all
material respects and the Noteholders shall be entitled to rely on such
representations and warranties as if they were made to the Noteholders in this
Amendment as of the date hereof.
(b) All the terms of this Amendment shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the
parties hereto, whether so expressed or not.
(c) Pledgor has delivered herewith (i) in respect of the Additional
Collateral share certificates therefor and such instruments of transfer
satisfactory to Pledgee and such other information relating to, or agreements
by, any issuer or other equity holder of the Additional Collateral that the
Pledge shall have reasonably requested in connection with the Additional
Collateral, and (ii) all instruments, documents, or agreements as may be
requrested by applicable law or as Pledgee shall have requested in connection
with the establishment or perfection of the pledge or the Liens arising under
the Pledge Agreement, including, without limitation, all Uniform Commercial Code
financing statements duly executed and in proper form for filing as Pledgee
shall have requested in respect of the Liens arising under the Pledge Agreement
and in respect of the termination of any other Liens previously encumbering any
Collateral of Pledgor.
(d) The headings in this Amendment are for purposes of reference only, and
shall not limit or otherwise affect any of the terms hereof.
2
(e) Except as expressly amended hereby, the Pledge Agreement remains in
full force and effect.
(f) This Amendment 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 Amendment shall become effective when the
Pledgee shall have received counterparts of this Amendment that, when taken
together, bear the signatures of Pledgor and Pledgee.
(g) All communications and notices hereunder shall be in writing and given
as provided in Section 20 of the Note Purchase Agreement.
(h) Pledgor agrees to reimburse Pledgee for its expenses incurred in
connection with this Amendment, including the reasonable fees, other charges and
disbursements of counsel.
(i) THIS AMENDMENT AND ALL RIGHTS AND OBLIGATIONS OF THE PARITIES HERETO
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REFERENCE TO CONFLICTS OF LAW RULES.
(j) Each of the parties hereto agrees to execute and deliver upon the
request of any other, such documents and instruments (appropriate for filing, if
requested) as may be necessary or appropriate to fully implement or to fully
evidence the understanding and agreements contained in this Amendment. Prior to
executing any document or instrument pursuant to this paragraph (j), Pledgee
shall be entitled to receive and shall be fully protected in relying upon a
written certification from the party requesting such action certifying that the
execution and delivery of such document or instrument is authorized or permitted
hereunder and under the Trust Agreement and the Note Purchase Agreement, and
that all conditions precedent in all such documents have been satisfied.
[Remainder of page intentionally left blank.]
3
IN WITNESS WHEREOF, Pledgor and Pledgee have duly executed this Amendment
as of the day and year first above written.
KINRO MANUFACTURING, INC.
By _____________________________________
Name:
Title:
Address of principal place
of business and chief
executive office:
c/o Drew Industries Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
JPMORGAN CHASE BANK, as
Pledgee,
By _____________________________________
Name:
Title:
4
Exhibit A to
Amendment to Pledge Agreement
SCHEDULE II
TO
PLEDGE AGREEMENT
DATED AS OF JANUARY 28, 1998
PARTNERSHIP INTERESTS
(a) All of the present and future right, title and interest as a
partner in any partnership (including the partnership listed in Annex 1 hereto)
and any successor(s) thereto or assignee(s) thereof (each, a "Partnership"), of
the Pledgor and the rights, interest and benefits in respect thereof of the
Pledgor arising under the agreements, documents and/or certificates (including,
without limitation, any publicly filed documents) constituting or governing each
such Partnership (the "Partnership Documents"), and all other benefits
pertaining thereto and any and all general intangibles and accounts now owned or
hereafter arising or acquired relating to the Pledgor's interest in any
Partnership and/or any of the foregoing rights, interest or benefits; including,
without limitation, (i) all distributions by, and any other payments from each
Partnership, and all present and future rights to receive any distributions or
other payments from each Partnership, whether the same constitute distributions
of capital, surplus or profits, or derive from any other source including,
without limitation, any such distribution or payment derived from, representing,
based upon, measured by, or otherwise in respect of, (x) the operating revenues
of any Partnership, or (y) any sale, assignment, transfer or other disposition
(or transaction having comparable effect) of any assets of any Partnership, any
mortgaging, encumbering or other financing or refinancing of any assets of any
Partnership, any insurance proceeds or condemnation awards in respect of any
assets of any Partnership, any merger, consolidation or recapitalization of any
Partnership, any redemption or liquidation of the interest of the Pledgor in any
Partnership, or any contribution of any property to any Partnership by any
partner therein; and (ii) without limiting clause (i), any other payments or
distributions, and any rights to receive the same, from any Partnership, from
any partner or partners therein, or from any other party, in respect of (A) any
sale, assignment, transfer, encumbrance or other disposition (or transaction
having comparable effect) of any partner's interest in any Partnership or any
rights in respect thereof, and (B) any payments of principal, interest or of any
other character in respect of any debt owed by any Partnership or any partner
therein to the Pledgor (all of which property and rights referred to in one or
more of clauses (i) or (ii) are referred to collectively as the "Pledged
Interests"); and
(b) the proceeds, products, rents, issues and profits of the Pledged
Interests.
Annex 1 to Schedule II
to
Pledge Agreement
Partnerships
BBD Realty Texas Limited Partnership
Kinro Texas Limited Partnership
Kinro Tennessee Limited Partnership
SCHEDULE III
TO
PLEDGE AGREEMENT
DATED AS OF JANUARY 28, 1998
LOCATIONS FOR FILING UCC-1S
Limited Partnership Debtor Locations
------------------- ------ ---------
A. BBD Realty Texas Limited Partnership Kinro Holding, Inc. 1. NY S/S
B. Kinro Texas Limited Partnership Kinro Holding, Inc. 1. NY S/S
2. NY - Westchester County
C. Kinro Tennessee Limited Partnership Kinro Holding, Inc. 1. NY S/S
2. NY - Westchester County