Exhibit 10.187
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 HOLDING, INC., a New York 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 may be
required by law or the Pledgee shall have reasonably requested in connection
with the Additional Collateral, and (ii) all instruments, documents, or
agreements as may be required 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.
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(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.]
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IN WITNESS WHEREOF, Pledgor and Pledgee have duly executed this Amendment
as of the day and year first above written.
KINRO HOLDING, 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:
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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
Partnership
B. Kinro Texas Limited Partnership Kinro Holding, Inc. 1. NY S/S
2. NY - Westchester County
C. Kinro Tennessee Limited Kinro Holding, Inc. 1. NY S/S
Partnership 2. NY - Westchester County
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 ▇▇▇▇▇▇▇ COMPONENTS, 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 August 13, 1998 in
favor of Pledgee for the benefit of the Noteholders (the "Pledge Agreement").
WHEREAS, Pledgor has created three new wholly-owned subsidiaries, Coil
Clip, Inc., an Alabama corporation ("CCI"), LD Realty, Inc., a Kentucky
corporation ("LDI") and ▇▇▇▇▇▇▇ Components of Canada, Inc., an Ontario, Canada
corporation ("LCI") and the Noteholders require that Pledgor pledge and grant to
Pledgee a security interest in all of its shares in CCI and LDI, and shares
representing sixty-percent (60%) of the equity of LCI (such shares in CCI, LDI
and LCI are collectively referred to herein as the "Additional Collateral").
WHEREAS, Pledgor and Pledgee desire to amend the Pledge Agreement to add
the Additional Collateral to Schedule I 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 shares of capital stock of CCI and LDI, and sixty-percent (60%) of
the capital stock of LCI, as listed on Exhibit A hereto 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 Section 2(a)(i) of the Pledge Agreement. Section 2(a)(i)
of the Pledge Agreement is hereby amended by deleting in its entirety the text
contained therein and substituting the following new text in lieu thereof:
(i) the shares of capital stock listed on Schedule I and any shares of
stock of each of the Companies obtained in the future by Pledgor, other
than shares in LCI not described on Schedule I, and the certificates
representing all such shares (the "Pledged Stock"),
3. Amendment of Schedule I to the Pledge Agreement. Schedule I to the
Pledge Agreement is hereby amended and restated in its entirety as set forth in
Exhibit A hereto.
4. 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
required 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.
(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.
IN WITNESS WHEREOF, Pledgor and Pledgee have duly executed this Amendment
as of the day and year first above written.
▇▇▇▇▇▇▇ COMPONENTS, 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:
Exhibit A to
Amendment to Pledge Agreement
Schedule I to Pledge Agreement
STOCK PLEDGED BY ▇▇▇▇▇▇▇ COMPONENTS, INC.
Number
Number of Shares
Issuer of Shares Percentage Pledged Percentage
------ Owned ---------- ------- ----------
-----
1. Coil Clip, Inc., an Alabama corporation 10 100% 10 100%
2. LD Realty, Inc., a Kentucky corporation 10 100% 10 100%
3. ▇▇▇▇▇▇▇ Components of Canada, Inc. an 10 100% 6 60%
Ontario, Canada corporation
4. ▇▇▇▇▇▇▇ Holding, Inc. 10 100% 10 100%
5. ▇▇▇▇▇▇▇ Components Manufacturing, Inc. 10 100% 10 100%