EXHIBIT 4.11
THIRD AMENDMENT
THIRD AMENDMENT, dated as of March 29, 2002 (this
"Amendment"), to the Credit Agreement, dated as of March 29, 2000, as amended by
the First Amendment dated as of April 23, 2001 and the Second Amendment dated as
of June 28, 2001 (as the same may be further amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among VIASYSTEMS GROUP,
INC., a Delaware corporation ("Holdings"), VIASYSTEMS, INC., a Delaware
corporation (the "US Borrower"), VIASYSTEMS CANADA HOLDINGS, INC. (f/k/a
VIASYSTEMS CANADA, INC.), a Quebec corporation (the "Canadian Borrower"), PRINT
SERVICE HOLDING N.V., a company organized under the laws of the Netherlands
("Print Service" and together with the Canadian Borrower and any Future Foreign
Subsidiary Borrower, the "Foreign Subsidiary Borrowers"), the several banks and
other financial institutions from time to time parties thereto (the "Lenders"),
X.X. XXXXXX BANK CANADA (f/k/a THE CHASE MANHATTAN BANK OF CANADA), as Canadian
administrative agent (in such capacity, the "Canadian Administrative Agent"),
X.X. XXXXXX EUROPE LIMITED (f/k/a CHASE MANHATTAN INTERNATIONAL LIMITED), as the
multicurrency administrative agent (in such capacity, the "Multicurrency
Administrative Agent"), and JPMORGAN CHASE BANK (f/k/a THE CHASE MANHATTAN
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, that certain
provisions of the Credit Agreement be amended 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. Amendments to Subsection 1.1 (Definitions).
Subsection 1.1 of the Credit Agreement is hereby amended as follows:
(a) by deleting the definition of "Applicable Margin" in its entirety
and substituting in lieu thereof the following:
"Applicable Margin": for each Type of Loan and for purposes of
subsections 2.4, 2.6, 3.4, 3.6, 4.4 and 5.4, the rate per annum set
forth under the relevant column heading below:
Base Rate Loans
Type Applicable Margin
---- -----------------
Tranche B Term Loans 3.00%
Tranche A Chips Term Loans 2.50%
Tranche B Chips Term Loans 3.00%
Revolving Credit Loans 2.50%
(including Swing Line Loans)
Eurocurrency Loans and B/As
Type Applicable Margin
---- -----------------
Tranche B Term Loans 4.00%
Tranche A Chips Term Loans 3.50%
Tranche B Chips Term Loans 4.00%
Revolving Credit Loans 3.50%
(including Swing Line Loans)
Commitment Fee
Applicable Margin
-----------------
0.50%
(b) by adding thereto the following definitions in their
appropriate alphabetical order:
"Chinese Opco": each of Viasystems Asia Pacific Company Ltd.,
Viasystems EMS Shenzhen Company Ltd., Shanghai Viasystems EMS Co. Ltd.,
Viasystems CY EMS Shenzhen Company Ltd., Kalex Printed Circuit Board
Limited, Guangzhou Termbray Electronics Technology Co., Ltd., Guanzhou
Termbray Circuit Board Co. Ltd., Kalex Multi-Layer Circuit Board (Xxxxx
Xxxx) Ltd. and Qingdao Viasystems Telecommunications Technologies Co.
Ltd.
"Consolidated Net Sales": for any period, with respect to any
Person, the amount which, in conformity with GAAP, would be set forth
opposite the caption "Net Sales" (or like caption) on a consolidated
statement of operations of such Person and its Subsidiaries for such
period.
"Third Amendment": the Third Amendment, dated as of March 29,
2002, to this Agreement.
"Third Amendment Effective Date": the date on which the Third
Amendment becomes effective in accordance with its terms, which date is
March 29, 2002.
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SECTION 3. Amendment to Subsection 11.2 (Conditions to Each
Loan). Subsection 11.2 of the
Credit Agreement is hereby amended by adding
thereto the following paragraph (d):
(d) Consolidated Net Sales. With respect to the making of any
Loan or the issuance of any Letter of Credit if, after giving effect
thereto, the sum of the Revolving Credit Loans, Letter of Credit
Outstandings and outstanding Swing Line Loans would exceed
$100,000,000, the Administrative Agent shall have received a report in
reasonable detail and certified by a Responsible Officer, demonstrating
that the Consolidated Net Sales of the US Borrower and its Subsidiaries
for the period of eight consecutive calendar weeks ending on the Friday
immediately preceding the date of such Loan or issuance, as the case
may be, exceeds the amount set forth on Schedule 11.2 for such
eight-week period.
SECTION 4. Amendment to Subsection 12.2 (Certificates; Other
Information). Subsection 12.2(c) of the
Credit Agreement is hereby amended by
inserting, immediately after the phrase "succeeding fiscal year", the
paranthetical "(set forth on a quarter-by-quarter basis for such fiscal year)".
SECTION 5. Amendment to Subsection 12.11 (Pledge During Event
of Default). Subsection 12.11 of the Credit Agreement is hereby amended by
deleting clause (i) in the second proviso thereof in its entirety and
substituting in lieu thereof the following:
"(i) except with respect to the Capital Stock of Viasystems Luxembourg
S.a.r.l., only 65% of the voting Capital Stock of any direct Foreign
Subsidiary of the US Borrower or its Domestic Subsidiaries need be so
pledged and"
SECTION 6. Amendment to Subsection 13.2 (Limitation on
Indebtedness). Subsection 13.2 of the Credit Agreement is hereby amended by
adding the following sentence at the end thereof:
"Notwithstanding the foregoing, during the period from March
29, 2002 to and including May 29, 2002, no Subsidiary of
Holdings that is organized under the laws of or contains
assets located in the People's Republic of China shall create,
incur, assume or suffer to exist any Indebtedness other than
(i) Indebtedness of any such Subsidiary that exists as of the
Third Amendment Effective Date listed on Schedule 13.2B and
extensions, renewals or replacements thereof provided that no
such extension, renewal or replacement shall increase the
principal amount thereof, (ii) Indebtedness of such
Subsidiaries permitted pursuant to Section 13.2(b) and (iii)
additional Indebtedness of such Subsidiaries in an aggregate
principal amount which, together with the aggregate principal
amount of Indebtedness outstanding pursuant to the foregoing
clause (i), does not exceed the Equivalent Amount of
$27,600,000 at any one time."
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SECTION 7. Amendment to Subsection 13.4 (Limitation on
Guarantee Obligations). Subsection 13.4 of the Credit Agreement is hereby
amended by deleting paragraph (h) thereof in its entirety and substituting in
lieu thereof the following:
"(h) [Intentionally omitted];"
SECTION 8. Amendment to Subsection 13.7 (Limitation on
Dividends). Subsection 13.7 of the Credit Agreement is hereby amended by
deleting the period at the end of paragraph (f) thereof and adding thereto the
following:
"provided, that no such Restricted Payments shall be made prior to the
receipt of the financial statements of the US Borrower pursuant to
subsection 12.1(b) for the fiscal quarter ended December 31, 2002."
SECTION 9. Amendment to Subsection 13.8 (Limitation on Capital
Expenditures). Subsection 13.8 of the Credit Agreement is hereby amended by
deleting the amount "$120,000,000" where it appears therein corresponding to
fiscal year 2002 and substituting in lieu thereof the amount "$85,000,000".
SECTION 10. Amendment to Subsection 13.11 (Limitation on
Transactions with Affiliates). Subsection 13.11 of the Credit Agreement is
hereby amended by adding the following sentence at the end thereof:
"Notwithstanding anything to the contrary in this Agreement
(including the foregoing clauses (a) and (b)), neither
Holdings nor any of its Subsidiaries shall make any payment
with respect to any management fee (i) to any Affiliate of
Holdings or any of its Subsidiaries or (ii) to HMTF or any of
its Affiliates."
SECTION 11. Amendments to Subsection 13.17 (Passive Status of
International Holdings). Subsection 13.17 of the Credit Agreement is hereby
amended by deleting such subsection in its entirety and substituting in lieu
thereof the following:
"13.17 Passive Status. (a) Permit International Holdings to (i)
conduct, transact or otherwise engage in, or commit to conduct,
transact or otherwise engage in, any business or operations other than
those incidental to its ownership of the Capital Stock of certain
Subsidiaries of the US Borrower, (ii) incur, create, assume or suffer
to exist any Indebtedness or other liabilities or financial
obligations, except obligations pursuant to the Loan Documents to which
it is a party and Indebtedness to the US Borrower in which the
Collateral Agent has been granted a Lien for the ratable benefit of the
Secured Parties, or (iii) own, lease, manage or otherwise operate any
properties or assets other than the ownership of shares of Capital
Stock of certain Subsidiaries of the US Borrower.
(b) Permit any Subsidiary of Holdings that is organized under the laws
of or owns assets located in the People's Republic of China (other than
any Chinese Opco), or any Subsidiary of International Holdings that
directly or indirectly owns the Capital Stock of any such Subsidiary or
any Chinese Opco, to (i) conduct, transact or otherwise engage in, or
commit to conduct, transact or otherwise engage in, any business or
operations other than those incidental to its ownership of the Capital
Stock of any other Person, (ii) incur, create, assume or suffer to
exist any Indebtedness or other liabilities or financial obligations,
except obligations pursuant to the Loan Documents to which it is a
party, or
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(iii) own, lease, manage or otherwise operate any properties or assets
other than the ownership of shares of Capital Stock of any other
Person."
SECTION 12. Amendment to Schedules. The Schedules to the
Credit Agreement are hereby amended by adding thereto Schedules 11.2 and 13.2B
in the form of Schedules 11.2 and 13.2B, respectively, to this Amendment.
SECTION 13. Forbearance. The Administrative Agent and the
Lenders hereby agree to forbear from the exercise of any rights and remedies any
of them may have under the Credit Agreement or any other Loan Document as a
result of any Event of Default under Section 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) or 13.1 of the Credit Agreement until the earlier to
occur of (a) May 29, 2002 and (b) the occurrence of an Event of Default under
the Credit Agreement (other than pursuant to Section 12.1(a) (as described
above) or 13.1 of the Credit Agreement). The forbearance of the Administrative
Agent and the Lenders under this Section 13 shall not constitute an amendment,
waiver or modification of the Credit Agreement or any other Loan Document.
SECTION 14. Retention of Financial Advisor. The Borrowers
agrees to pay or reimburse the Administrative Agent for all reasonable costs and
expenses of FTI/Xxxxxxxx & Xxxxx incurred by it pursuant to the terms of that
certain letter agreement dated December 12, 2001, by and between Simpson,
Thacher & Xxxxxxxx, counsel to the Administrative Agent, and FTI/Xxxxxxxx &
Xxxxx.
SECTION 15. 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 Sections 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 16. 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) Amendment to Guarantee and Collateral Agreement. (i)
Counterparts of an amendment to the Guarantee and Collateral
Agreement to the extent necessary to cause 100% of the
outstanding Capital Stock of Viasystems Luxembourg S.a.r.l. to
be pledged thereunder, on terms and conditions satisfactory to
the Administrative Agent, duly executed and delivered by each
Credit Party party to the Guarantee and Collateral Agreement
and (ii) such documents and other instruments as the
Administrative Agent may reasonably request in connection with
the foregoing.
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(c) Guarantee of Canadian Borrower Obligations. A guarantee of
the Foreign Subsidiary Obligations of the Canadian Borrower,
on terms and conditions satisfactory to the Administrative
Agent, duly executed and delivered by Viasystems Canada, G.P.
(d) 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.
(e) Fees. An amendment fee, for the account of the Lenders
that have delivered a Lender Consent Letter to the
Administrative Agent or its counsel no later than 5:00 p.m.,
New York City time, on March 27, 2002, in an amount equal to
0.25% of the aggregate amount of the Commitments in effect and
Term Loans outstanding of such Lenders.
(f) Expenses. Payment of all accrued amounts owing to the
Administrative Agent pursuant to subsection 17.5 of the Credit
Agreement.
SECTION 17. 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.
SECTION 18. 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 this
Amendment 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: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
VIASYSTEMS, INC.,
as US Borrower
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
VIASYSTEMS CANADA HOLDINGS, INC.,
as Canadian Borrower
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
PRINT SERVICE HOLDING N.V.,
as a Foreign Subsidiary Borrower
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
JPMORGAN CHASE BANK,
as Administrative Agent and Collateral Agent
By: /s/ Xxxxxx XxXxxxxx
Name: Xxxxxx XxXxxxxx
Title: Vice President
