EXHIBIT 4.12
EXECUTION COPY
FOURTH AMENDMENT AND WAIVER
FOURTH AMENDMENT AND WAIVER, dated as of May 29, 2002 (this "Amendment"),
with respect to the Credit Agreement, dated as of March 29, 2000, as amended by
the First Amendment dated as of April 23, 2001, the Second Amendment dated as of
June 28, 2001 and the Third Amendment dated as of March 29, 2002 (the "Credit
Agreement"), among VIASYSTEMS GROUP, INC., VIASYSTEMS, INC. (the "US Borrower"),
VIASYSTEMS CANADA HOLDINGS, INC. (f/k/a VIASYSTEMS CANADA, INC.), PRINT SERVICE
HOLDING N.V., the several banks and other financial institutions from time to
time parties thereto (the "Lenders"), X.X. XXXXXX BANK CANADA, as Canadian
administrative agent, X.X. XXXXXX EUROPE LIMITED, as the multicurrency
administrative agent, and JPMORGAN CHASE BANK, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make,
and have made, certain loans and other extensions of credit to the Borrowers;
and
WHEREAS, the Borrowers have requested, and upon the effectiveness of this
Amendment, the parties hereto have agreed, to waive certain Defaults and Events
of Default under the Credit Agreement upon the terms and conditions set forth
below;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement. Unless
otherwise indicated, all Section and subsection references are to the Credit
Agreement.
SECTION 2. Amendment. Subsection 13.4 of the Credit Agreement is hereby
amended by adding thereto the following paragraph (h):
(h) an unsecured guarantee by Holdings of the Senior Subordinated
Indebtedness, provided, however, that such guarantee (i) shall contain
subordination provisions substantially similar to the subordination
provisions of the Senior Subordinated Indebtedness and have such other
terms and conditions as shall be reasonably satisfactory to the
Administrative Agent and (ii) shall not be issued more than one Business
Day prior to the date on which a disclosure statement is sent to the
holders of the Senior Subordinated Indebtedness in connection with a
proposed restructuring thereof.
SECTION 3. Waiver. The parties hereto hereby agree that, until the earliest
of (a) August 29, 2002, (b) the date on which the US Borrower delivers to the
Administrative Agent a notice of any payment of interest in respect of the
Senior Subordinated Indebtedness, (c) the date on which any payment of such
interest is made, (d) the date on which the US Borrower delivers to the
Administrative Agent a notice of any payment in respect of its obligations to
the Department of Trade and Industry ("DTI") of the United Kingdom and (e) the
date on which any such payment is made to DTI (such earliest date, the "Waiver
Expiration Date"), no Default or Event of Default shall be deemed to have
occurred under the Credit Agreement as a result of any default (each a
"Specified Default") (i) in the observance of the covenants contained in
subsection 12.1(a) (with respect to the requirement that the financial
statements furnished thereunder be reported on by independent certified public
accountants without a "going concern" or like qualification or exception), 12.3
(due to the failure to pay principal or interest in respect of obligations to
the DTI or interest on the Senior Subordinated Indebtedness) or 13.1 or (ii)
pursuant to subsection 14(e) due to the failure to pay principal or interest in
respect of obligations to the DTI or interest on the Senior Subordinated
Indebtedness (unless any remedial action is taken as a result of such failure to
pay interest on the Senior Subordinated Indebtedness). It is understood that an
Event of Default as a result of any such Specified Default shall be deemed to
have occurred and be continuing on and after the Waiver Expiration Date unless
and until such Event of Default shall have been waived by the Required Lenders
in accordance with subsection 17.1. The parties hereto further agree that, until
the Waiver Expiration Date, no representation or warranty set forth in
subsections 10.2, 10.7 and 10.20 shall be required to be made pursuant to
subsection 11.2(a).
SECTION 4. Notice of Payment In Respect of Senior Subordinated Indebtedness
and DTI Obligations. The US Borrower hereby agrees to give the Administrative
Agent at least three Business Days' prior written notice of (i) any payment of
interest in respect of the Senior Subordinated Indebtedness and (ii) any payment
in respect of its obligations to DTI. The failure to give any such notice shall
constitute an Event of Default under the Credit Agreement.
SECTION 5. Representations and Warranties. After giving effect to this
Amendment, Holdings and the US Borrower (and each Foreign Subsidiary Borrower,
only as to itself and its Subsidiaries) hereby confirm, reaffirm and restate
that the representations and warranties set forth in Section 10 of the Credit
Agreement (other than subsections 10.2, 10.7 and 10.20) are true and correct in
all material respects as if made on and as of the date hereof except for any
representation or warranty made as of the earlier date, which representation or
warranty shall have been true and correct in all material respects as of such
earlier date.
SECTION 6. Conditions to Effectiveness. This Amendment shall become
effective upon receipt by the Administrative Agent of:
(a) Amendment to Credit Agreement. Counterparts of this Amendment, duly
executed and delivered by Holdings, the US Borrower and the Foreign
Subsidiary Borrowers.
(b) Lender Consent Letters. Lender Consent Letters (or facsimile
transmissions thereof) in the form of Exhibit A, duly executed and
delivered by the Required Lenders consenting to the execution of this
Amendment by the Administrative Agent.
(c) Fee. An amendment fee, for the account of the Lenders that have
delivered an executed Lender Consent Letter to the Administrative Agent or
its counsel no later than 5:00 p.m., New York City time, on May 24, 2002,
in an amount equal to 0.125% of the aggregate amount of the Commitments in
effect and Term Loans outstanding of such Lenders. The fees payable
hereunder to any Lender will be credited against any restructuring fee
payable to such Lender upon the completion of the restructuring of Holdings
and its Subsidiaries.
(d) Additional Information. All financial and other information that has
been requested by FTI/Xxxxxxxx & Xxxxx prior to the date hereof.
(e) Expenses. Payment of all accrued amounts owing to the Administrative
Agent pursuant to subsection 17.5 of the Credit Agreement.
SECTION 7. Continuing Effect of Credit Agreement. Except as expressly
amended herein, the Credit Agreement shall continue to be, and shall remain, in
full force and effect in accordance with its terms.
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SECTION 8. Governing Law; Counterparts. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. This
Amendment may be executed by the parties hereto in any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. The execution and delivery of a Lender
Consent Letter by any Lender shall be binding upon each of its successors and
assigns (including Transferees of its commitments and Loans in whole or in part
prior to effectiveness hereof) and binding in respect of all of its commitments
and Loans, including any acquired subsequent to its execution and delivery
hereof and prior to the effectiveness hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
VIASYSTEMS GROUP, INC.,
as Guarantor
By:
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Name:
Title:
VIASYSTEMS, INC.,
as US Borrower
By:
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Name:
Title:
VIASYSTEMS CANADA HOLDINGS, INC.,
as Canadian Borrower
By:
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Name:
Title:
PRINT SERVICE HOLDING N.V.,
as a Foreign Subsidiary Borrower
By:
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Name:
Title:
JPMORGAN CHASE BANK,
as Administrative Agent and Collateral
Agent
By:
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Name:
Title:
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