EXHIBIT 10.2
AMENDMENT NO. 1
Dated as of May 18, 2004
to
PERFORMANCE GUARANTY
Dated as of February 28, 2003
THIS AMENDMENT NO. 1 (this "Amendment") dated as of May 18,
2004, is entered into by and among (i) TRW AUTOMOTIVE INC. (formerly known as
TRW Automotive Acquisition Corp.) and the other "Performance Guarantors"
identified on the signature pages hereto (collectively, the "Performance
Guarantors"), (ii) TRW AUTOMOTIVE RECEIVABLES LLC (the "Transferor"), (iii) TRW
AUTOMOTIVE GLOBAL RECEIVABLES LLC (the "Borrower"), (iv) the "Conduit Lenders"
identified on the signature pages hereto, (v) the "Committed Lenders" identified
on the signature pages hereto, (vi) the "Funding Agents" identified on the
signature pages hereto and (vii) JPMORGAN CHASE BANK, as administrative agent
(the "Administrative Agent").
PRELIMINARY STATEMENTS
A. Reference is made to the Performance Guaranty dated as of
February 28, 2003 (the "Performance Guaranty") executed by the Performance
Guarantors in favor of the Transferor, the Borrower and the Administrative Agent
(on behalf of itself and the other Secured Parties). Capitalized terms used and
not otherwise defined herein shall have the meanings ascribed to them in the
Performance Guaranty or, if not defined therein, in the Receivables Loan
Agreement referred to therein.
B. The parties hereto have agreed to amend the Performance
Guaranty on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth
above, and other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments. Effective as of the Effective Date (as
defined below), the Performance Guaranty is amended as follows:
1.1 Clause (ii) of Section 7(a) of the Performance Guaranty is
amended to replace the semi-colon at the end of such clause with a period. In
addition, clauses (i) and (ii) of Section 7(a) of the Performance Guaranty are
amended to add the following text at the end of each such clause immediately
before the period:
"; provided that, so long as (i) either Holdings or
Intermediate Holdings is subject to the reporting requirements
of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, and (ii) Holdings or
Intermediate Holdings, as applicable, is not engaged in any
business or business activity other than that which is
expressly permitted under Section 6.08 of the Senior Credit
Agreement as in effect on the date hereof, this clause may be
satisfied by the provision of consolidated financial
statements of Holdings or Intermediate Holdings, as
applicable, in a manner consistent with the other requirements
of this clause, and all references to TRW Acquisition in this
clause shall instead be deemed to be references to Holdings or
Intermediate Holdings, as applicable".
1.2. Clause (iii) of Section 7(a) of the Performance Guaranty
is amended to delete the text "concurrently with any delivery" in each place
where such text appears therein and to substitute therefor the text "no later
than five Business Days after any delivery" in each such place.
SECTION 2. Conditions Precedent. This Amendment shall become
effective as of the date (the "Effective Date") on which the Administrative
Agent shall have received a copy of this Amendment duly executed by the
Performance Guarantors, the Transferor, the Borrower, the Administrative Agent
and the Required Committed Lenders.
SECTION 3. Reference to and Effect on the Performance
Guaranty.
3.1 Upon the effectiveness of this Amendment, each reference
in the Performance Guaranty to "this Guaranty," "hereunder," "hereof," "herein,"
"hereby" or words of like import shall mean and be a reference to the
Performance Guaranty as amended hereby, and each reference to the Performance
Guaranty in any other Transaction Document shall mean and be a reference to the
Performance Guaranty as amended hereby.
3.2 Except as specifically amended hereby, the Performance
Guaranty, the other Transaction Documents and all other documents, instruments
and agreements executed and/or delivered in connection therewith shall remain in
full force and effect and are hereby ratified and confirmed.
3.3 The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of any
Beneficiary under the Performance Guaranty, the other Transaction Documents or
any other document, instrument, or agreement executed in connection therewith,
nor constitute a waiver of any provision contained therein.
3.4 Each Performance Guarantor represents and warrants that
this Amendment has been duly authorized, executed and delivered by it pursuant
to its limited liability company or corporate powers, as applicable, and
constitutes its legal, valid and binding obligation.
SECTION 4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 5. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken
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together shall constitute but one and the same instrument. Delivery of an
executed counterpart of this Amendment by facsimile shall be effective as
delivery of a manually executed counterpart of this Amendment.
SECTION 6. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first written above.
TRW AUTOMOTIVE INC., as a Performance
Guarantor
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
TRW AUTOMOTIVE U.S. LLC, as a Performance
Guarantor
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
XXXXXX-XXXXX COMPANY, as a Performance
Guarantor
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President - Taxes
TRW VEHICLE SAFETY SYSTEMS INC., as a
Performance Guarantor
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President - Taxes
Signature Page
Amendment No. 1 to Performance Guaranty
LAKE CENTER INDUSTRIES TRANSPORTATION,
INC., as a Performance Guarantor
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President - Taxes
TRW AUTOMOTIVE GLOBAL RECEIVABLES LLC, as
Borrower
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
TRW AUTOMOTIVE RECEIVABLES LLC, as
Transferor
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
Signature Page
Amendment No. 1 to Performance Guaranty
DELAWARE FUNDING COMPANY, LLC, as a
Conduit Lender
By: JPMorgan Chase Bank as
attorney-in-fact for Delaware Funding
Company, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
JPMORGAN CHASE BANK, as a Funding Agent
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
JPMORGAN CHASE BANK, as a Committed Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
JPMORGAN CHASE BANK, as Administrative
Agent
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
Signature Page
Amendment No. 1 to Performance Guaranty
ALPINE SECURITIZATION CORP., as a Conduit
Lender
By: Credit Suisse First Boston, New York
Branch, as Attorney-in-Fact
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as a Funding Agent
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Director
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as a Committed Lender
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Director
Signature Page
Amendment No. 1 to Performance Guaranty
GENERAL ELECTRIC CAPITAL CORPORATION, as a
Conduit Lender, as a Funding Agent and as
a Committed Lender
By:
-------------------------------------
Name:
Title:
Signature Page
Amendment No. 1 to Performance Guaranty
RM MULTI-ASSET LIMITED, as a Conduit
Lender
By: /s/
-------------------------------------
Name:
Title:
DEUTSCHE BANK AG, LONDON, as a Funding
Agent
By: /s/ X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx
Title: Vice President
By: /s/ X. Xxxxx
-------------------------------------
Name: Xxxxx
Title: Director
RM MULTI-ASSET LIMITED, as a Committed
Lender
By: /s/
-------------------------------------
Name:
Title:
Signature Page
Amendment Xx. 0 xx Xxxxxxxxxxx Xxxxxxxx
XXXXXXX XXXXXX FUNDING CORP., as a Conduit
Lender
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Funding
Agent
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Director
THE BANK OF NOVA SCOTIA, as a Committed
Lender
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Director
Signature Page
Amendment No. 1 to Performance Guaranty
THREE PILLARS FUNDING CORPORATION, as a
Conduit Lender
By: /s/ Xxxxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
SUNTRUST CAPITAL MARKETS, INC., as a
Funding Agent
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
SUNTRUST BANK, as a Committed Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
Signature Page
Amendment No. 1 to Performance Guaranty
BEETHOVEN FUNDING CORPORATION, as a
Conduit Lender
By:
-------------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK BRANCH, as a
Funding Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK BRANCH, as a
Committed Lender
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Signature Page
Amendment No. 1 to Performance Guaranty
EIFFEL FUNDING LLC, as a Conduit Lender
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
CDC FINANCIAL PRODUCTS INC., as a Funding
Agent
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Director
CDC FINANCIAL PRODUCTS INC., as a
Committed Lender
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Director
Signature Page
Amendment No. 1 to Performance Guaranty
