EXHIBIT 10.7
JANUARY 31, 0000
XXXXXXXXX XX XXXXX FOR TRADE AND INDUSTRY
FOR THE UNITED KINGDOM
AND
VIASYSTEMS, INC.
AND
VIASYSTEMS GROUP, INC.
---------------------------------------
AGREEMENT
---------------------------------------
THIS AGREEMENT (this "AGREEMENT") is made on January 31, 2003 between the
following parties:
(1) SECRETARY OF STATE FOR TRADE AND INDUSTRY FOR THE UNITED KINGDOM., of 0
Xxxxxxxx Xxxxxx, Xxxxxx XX0X XXX, Xxxxxxx (the "DTI"); and
(2) VIASYSTEMS, INC., a Delaware corporation of 000 Xxxxx Xxxxxx Xxxx, Xx.
Xxxxx, Xxxxxxxx, 00000, Xxxxxx Xxxxxx of America (the "COMPANY"); and
(3) VIASYSTEMS GROUP, INC., a Delaware corporation of 000 Xxxxx Xxxxxx
Xxxx, Xx. Xxxxx, Xxxxxxxx, 00000, Xxxxxx Xxxxxx of America (the
"GUARANTOR").
RECITALS
(1) On October 3, 2000, the Company issued a letter of guarantee to the
DTI, as amended by the letter from the Company to the DTI dated 16
August 2001, and as further amended by the Settlement Agreement dated
31 January 2002 (the "SETTLEMENT AGREEMENT") between the Company, EPCB
(as defined below), and the DTI (collectively with the Settlement
Agreement, the "DTI GUARANTY") in respect of certain liabilities of VTL
(as defined below) pursuant to the Loan Agreement between VTL and the
DTI dated 11 December 1997.
(2) The obligations to the DTI evidenced by the Loan Agreement are secured
to the extent of the DTI's security interest in the land and a building
in Xxxxxxx Xxxxxxxx Xxxx (Xxxxxxx), Xxxxx Xxxxxxxx, Xxxxxx Xxxxxxx (the
"PROPERTY").
(3) Under the DTI Guaranty, the Company and EPCB agreed to pay an aggregate
of twelve million pounds ((pound)12,000,000) over a period commencing
31 January 2002 through 31 December 2003.
(4) As of the Company's bankruptcy filing, the principal amount of nine
million pounds ((pound)9,000,000) remains outstanding under the DTI
Guaranty.
(5) VTL is currently in administrative receivership under the laws of the
United Kingdom.
(6) The Company and the Guarantor have each filed a voluntary petition of
bankruptcy under Chapter 11 of the Bankruptcy Code in the United States
Bankruptcy Court for the Southern District of New York.
(7) The DTI is an unsecured creditor of the Company, and, as such, is
classified under the Company's Plan (as defined below) as a Class 4
Claim of the Company, entitled under the Plan to receive junior
preferred and common stock of the Guarantor.
(8) The DTI is not willing to accept the treatment referred to in Recital
7, but is willing to accept the treatment referenced in this Agreement
and would support the Plan if amended to provide for same.
(9) The Company and the Guarantor are willing to modify the Plan to provide
for the treatment afforded the DTI under this Agreement.
IT IS AGREED as follows:
1 INTERPRETATION.
1.1 DEFINITIONS. In this Agreement, the following terms have the meanings
given to them in this Clause 1.1 (Definitions).
"BANK OF ENGLAND BASE RATE" means the rate per annum announced at 12:00 noon
(London, England time) immediately following the decision of the Monetary Policy
Committee of the Bank of England. The announcement of the rate per annum is made
on the wire services' Bank of England pages and on the website's Home Page at
.
"BANKRUPTCY COURT" means the United States Bankruptcy Court for the Southern
District of New York.
"BUSINESS DAY" means any day (other than a Saturday or Sunday) on which banks in
New York, New York and London, England are open for business.
"CLASS 4 CLAIM" has the meaning set forth in the Plan.
"EPCB" means European PCB Group (Cayman Islands) Limited.
"EVENT OF DEFAULT" has the meaning ascribed to such term in Section 6 of this
Agreement.
"LOAN AGREEMENT" means the loan agreement between VTL and the DTI dated 11
December 1997.
"NEW SENIOR CREDIT AGREEMENT" means the credit agreements to be entered into,
pursuant to the Plan, by Guarantor, the Company, certain foreign subsidiaries of
the Company, the banks and other financial institutions parties thereto, as the
same may be amended, supplemented, varied or restated from time to time.
"OBLIGATIONS" means the obligations evidenced by the New Senior Credit
Agreement, including, without limitation, all principal, interest, costs, and
expenses of every kind.
"PLAN" means the proposed plan of reorganization of the Guarantor and the
Company filed with the Bankruptcy Court, as amended from time to time.
"VTL" means Viasystems Tyneside Limited, formerly an indirect subsidiary of the
Company.
"VTL INSOLVENCY" means the receivership and/or liquidation of VTL under the laws
of the United Kingdom and Wales.
1.2 INTERPRETATION. "(POUND)" and "STERLING" denote the lawful currency of
the United Kingdom of Great Britain and Northern Island.
2 SETTLEMENT.
2.1 SETTLEMENT AGREEMENT. The DTI agrees to accept this Agreement as
settlement for, and in exchange for, its Claim against the Company. In that
regard, the DTI expressly acknowledges that it will not receive any equity
interest of the Guarantor that may be received by the holders of Class 4 Claims.
2
2.2 AMOUNT. The principal amount of this Agreement is nine million pounds
((pound)9,000,000), and the DTI acknowledges and agrees that, as of the date of
this Agreement it has no other claims or causes of action against the Company or
the Guarantor or any of their respective officers, directors, agents, financial
advisors, attorneys, affiliates (other than, if applicable, EPCB and VTL), and
representatives.
3 INTEREST.
3.1 INTEREST RATE. Subject to Section 7.1, from the effective date of the
Plan through September 30, 2008, the annual interest rate on the unpaid
principal balance under this Agreement is three percent (3%) per annum. After
September 30, 2008, the annual interest rate will be Bank of England Base Rate
plus two percent (2%) per annum.
3.2 DEFAULT INTEREST. Upon the occurrence and during the continuance of an
Event of Default, interest will begin to accrue on any outstanding sums at the
rate of two percent (2%) above the non-default rate then prevailing under this
Agreement, provided that upon the acceleration of the obligations evidenced by
this Agreement pursuant to Section 7.1 and before September 30, 2008, interest
will accrue on any outstanding sums at the rate of two percent (2%) above the
Bank of England Base Rate as in effect from time to time, in each case
compounded on January 1, March 31, July 1, and October 1 in each year until
payment is made in full.
3.3 INTEREST PAYMENTS. Interest payments shall be paid in cash
semi-annually on each June 30 and December 31.
4 AMORTIZATION.
4.1 SCHEDULED AMORTIZATION. Principal will be amortized by payments
according to the following schedule:
Date Amount
---- ------
December 31, 2008 L2,000,000
June 30, 2009 L1,000,000
December 31, 2009 L3,000,000
June 30, 2010 L1,000,000
December 31, 2010 L2,000,000
4.2 ACCELERATED AMORTIZATION. In the event that the Obligations under the
New Senior Credit Agreement are paid in full prior to October 1, 2008, then the
DTI shall receive five hundred thousand pounds ((pound)500,000) on each June 30
and December 31 from the date such Obligations are paid in full through and
including June 30, 2008.
4.3 VTL INSOLVENCY. All proceeds received by the DTI from the VTL
Insolvency shall be applied to reduce the principal amount outstanding
hereunder. Within five (5) Business Days from the receipt of any net cash
proceeds by the Company and the Guarantor resulting from the VTL Insolvency,
including any assignment of any such proceeds by EPCB as contemplated by Section
8.1, the Company shall turn over such proceeds to the DTI.
3
5 PAYMENTS.
The Company shall make all payments hereunder in Sterling and free and clear of
and without deductions for or on account of tax unless the Company is required
to make such payment subject to the deduction or withholding of tax, in which
case the sum payable by the Company in respect of which such deduction or
withholding is required to be made shall be increased to the extent necessary to
ensure that, after the making of the required deduction or withholding, the DTI
receives and retains (free from any liability in respect of any such deduction
or withholding) a net sum equal to the sum which it would have received and so
retained had no such deduction or withholding been made or required to be made.
Payments shall reach the DTI's bank account (the details of which are set out in
Annexure 1 to this Agreement) before 2:00 p.m. London time on the date such
payments are due.
6 EVENTS OF DEFAULT.
6.1 An Event of Default shall occur hereunder if:
(a) The Company shall default in the payment of the principal or
interest due under this Agreement, within three (3) Business Days after the same
shall become due and payable; or
(b) The Company or the Guarantor enters into a compromise with
creditors or becomes subject to any voluntary or involuntary proceedings under
the United States Bankruptcy Code (11 U.S.C. Sections 101, et. seq.), except for
the pending Chapter 11 cases described in Recital number 6 or as otherwise
provided in Section 10.1 herein.
7 REMEDIES UPON DEFAULT.
7.1 Upon the occurrence and during the continuance of an Event of Default
specified in Section 6.1(a), the DTI may declare that all sums that have not yet
become due and payable shall immediately become due and payable. Upon the
occurrence and during the continuance of an Event of Default specified in
Section 6.1(b), all sums that have not yet become due and payable shall
immediately become due and payable.
8 COVENANTS BY THE COMPANY.
8.1 EPCB. The Company covenants that it has requested (collectively, the
"Requests") that EPCB (i) assign to the DTI any recoveries due to EPCB in the
VTL Insolvency, subject to any constraints under applicable law, (ii)
acknowledge its full and complete obligations under the Settlement Agreement,
and agree that such obligations have not been modified in any way by virtue of
this Agreement or otherwise except pursuant to the additional undertakings of
EPCB pursuant to this Section 8.1 and the acknowledgment hereto and (iii)
undertake such efforts as are commercially reasonable to collect any recoveries
due to EPCB in connection with VTL and to remit such proceeds directly to the
DTI for application to the principal amount outstanding hereunder.
8.2 PROCEDURAL TIMELINE AND DEADLINES. Each of the Company and the
Guarantor covenants that in any legal proceeding arising out of or in connection
with this Agreement, it shall not seek to extend any procedural timeline or
deadline by reason of their registered offices being located outside England and
any procedural timetable or deadline shall apply as if the registered office and
place of business of the Company were based solely in England.
4
8.3 SERVICE OF PROCESS. Each of the Company and the Guarantor covenants
that it has by letters of appointment (which are at Annexure 2) irrevocably
appointed WG&M Secretaries Limited of Xxx Xxxxx Xxxxx, Xxxxxx XX0X 0XX, Xxxxxxx
as their respective process agents to receive on their behalf service of process
in England. Such service shall be deemed completed on delivery to such process
agent (whether or not it is received by the Company). If for any reason such
process agent ceases to be able to act as process agent or no longer has an
address in England, each of the Company and the Guarantor covenants that it
shall appoint a substitute process agent (or agents) acceptable to the DTI and
to deliver to the DTI a copy of new process agent's acceptance of that
appointment within fourteen (14) days.
8.4 CONSENT TO JUDGMENT. Upon an Event of Default, the Company and the
Guarantor covenant that they shall cooperate fully with the DTI to enable the
DTI to issue and serve proceedings against the Company and/or the Guarantor and
to enter judgment for any outstanding sums together with interest and legal
costs and to enforce that judgment against the assets of the Company or the
Guarantor, wherever such assets may be located.
8.5 RELEASES. On the effective date of the Plan, effective as of the date
of confirmation of the Plan, the Company and the Guarantor will release the DTI
and its officers, directors, agents, financial advisors, attorneys, affiliates,
and representatives from any and all causes of action which they may have
against the DTI as of the confirmation date of the Plan, save and except any
claims or causes of action arising out of or related to the performance of this
Agreement.
9 COVENANTS BY THE DTI.
9.1 DISPOSITION OF TYNESIDE PROPERTY. The DTI shall take reasonable care to
ensure that the sale price of the Property is the maximum price reasonably
obtainable at the time such Property is sold. The DTI shall provide to the
Company oral updates ("Updates") regarding the status of the sale of the
Property as follows:
(a) Updates will be made by the DTI up to four times a year upon the
request of the Company to the Director of the Industrial Development Unit (the
"IDU") at the DTI.
(b) Updates will be made provided that interest and principal due under
this Agreement have been paid in a timely fashion.
(c) The Updates shall include general information (including in
relation to any offers received) relating to the marketing of the Property that
is then known to the Director of the IDU at the DTI. The DTI shall have no
obligation to ascertain information relating to the marketing of the Property.
(d) By its execution of this Agreement, the Company acknowledges that
the Updates represent confidential information and it and any of its employees
receiving the information contained in the Updates, are prohibited from
communicating the same to any person outside the Company. If this provision is
breached, whatever other consequences flow from that, the DTI shall no longer be
required to provide Updates.
9.2 EPCB. The DTI covenants that so long as the Company, the Guarantor, and
EPCB are not in default hereunder and pursuant to Section 6.1 of this Agreement,
it shall not separately pursue any rights or remedies against EPCB.
5
10 BANKRUPTCY PROCEEDINGS.
10.1 BANKRUPTCY PROCEEDINGS. If the Company or the Guarantor becomes subject
to any involuntary proceedings under the United States Bankruptcy Code and,
within two (2) business days of receiving notice of any such proceedings having
been filed, the Company or the Guarantor, as the case may be, can demonstrate to
the DTI's reasonable satisfaction, that the proceedings are without merit or
will be dismissed within 30 days of filing then:
(a) The DTI shall provide written confirmation to the Company and the
Guarantor that the provisions in Section 6.1(a), Section 6.1(b) and Section 8.4
do not apply; and
(b) The DTI shall take all reasonable steps within its capability to
discontinue or reverse any steps taken by the DTI in reliance on such
proceedings have been filed. In respect of any involuntary bankruptcy
proceedings against the Company and/or the Guarantor which the Company and the
Guarantor claim are without merit or will be dismissed within thirty (30) days
of filing, the DTI shall be entitled to obtain advice from an independent United
States lawyer (acting exclusively on behalf of the DTI) at the reasonable
expense of the Company or the Guarantor, as the case may be.
11 RECOVERIES FROM THIRD PARTIES.
Payments received from third parties on account of the DTI claim or received
from EPCB, the Guarantor, or the Company in connection with the liquidation
proceedings of Viasystems Tyneside Limited shall be applied first to principal
instalments, if any, due on account of Accelerated Amortization payments
pursuant to Section 4.2 hereof, and second to Regular Amortization payments
pursuant to Section 4.1 hereof, in each case in the inverse order of maturity.
12 EXERCISE OF RIGHTS.
No failure to exercise or delay in exercising on the part of the DTI, any right,
remedy or power hereunder shall operate as a waiver nor shall any single or
partial exercise preclude further or other exercise of any right, remedy or
power, whether the same or any another right, remedy or power.
13 SUBROGATION.
The Company and Guarantor do not by execution of this Agreement waive any rights
of subrogation they may have arising by operation of law.
14 NOTICES.
All notices and other communications hereunder shall take effect on receipt and
be by letter or facsimile transmission. Such notices shall be sent to the
relevant party at such address or facsimile number as it may notify to the other
party from time to time in writing.
15 CERTIFICATE.
A certificate from the DTI as to the amount at any time due from the Company to
the DTI under this Agreement shall, in the absence of manifest error, be
conclusive.
6
16 COUNTERPARTS.
This Agreement may be executed in any number of counterparts and by different
parties on separate counterparts, each of which, when executed and delivered
shall constitute an original, but all the counterparts shall constitute but one
and the same instrument.
17 ASSIGNMENT.
Neither party to this Agreement may assign or transfer its rights or obligations
under this Agreement without the prior written consent of the other.
18 CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000.
It is agreed that no term of this Agreement shall be enforceable by a person who
is not a party hereto pursuant to the Contracts (Rights of Third Parties) Xxx
0000 or otherwise.
19 GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with, the laws
of England and any dispute shall be subject to the exclusive jurisdiction of the
English courts.
20 JOINT AND SEVERAL OBLIGATIONS.
All amounts due hereunder to the DTI, including the Amount specified in Section
2.2 hereof, are the joint and several obligation of the Company and the
Guarantor and will be paid in accordance with the terms of this Agreement.
21 TIME OR INDULGENCE.
If the DTI gives time or indulgence to the Company or the Guarantor in the
performance of any part of this Agreement, the DTI's other rights under this
Agreement shall not be affected.
22 NO WAIVER OF RIGHTS AGAINST THIRD PARTIES.
Except as expressly set forth herein, nothing herein or the DTI's entry into
this Agreement shall be deemed to limit or affect the DTI's rights against any
third parties or in respect of the legal charge between VTL and the DTI dated
March 6, 2001 relating to the Property.
23 THE DTI'S LEGAL FEES.
The Company agrees to pay the DTI's reasonable legal fees not to exceed $75,000
on the effective date of the Plan, without requirement of application by or on
behalf of the DTI to the Bankruptcy Court, unless specifically required by the
Bankruptcy Court.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF the parties have executed this Agreement the day and year
first above written.
SIGNATORIES
THE DTI
/s/ A.J.T. Xxxxxx
-------------------------------------
Signed by
for and on behalf of
THE SECRETARY OF STATE FOR TRADE
AND INDUSTRY FOR THE UNITED KINGDOM
THE COMPANY
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Signed by
for and on behalf of
VIASYSTEMS, INC.
THE GUARANTOR
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Signed by
for and on behalf of
VIASYSTEMS GROUP, INC.
By its signature below, EPCB hereby acknowledges that it has reviewed Section
8.1 hereof and agrees to be bound by such Section 8.1. In particular EPCB agrees
to accept and be bound and shall comply with the Requests made under Section
8.1, which Requests may not be modified without the express written consent of
the DTI. EPCB hereby assigns the proceeds of any recoveries due to it in the VTL
Insolvency to the DTI, and agrees to execute such documents as may be requested
to effectuate the foregoing. The DTI is the third party beneficiary of EPCB's
agreement to be bound by the Requests contained in Section 8.1. EPCB further
acknowledges that it has no material assets other than its claim against VTL.
EPCB
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Signed by
for and on behalf of
EUROPEAN PCB GROUP
(CAYMAN ISLANDS) LIMITED
ANNEXURE 1
If payment is made by CHAPS from USA in (pound) Sterling:
National Westminster Bank plc
0 Xxxxxxxxxxx Xxxx, Xxxxx, Xxxxxxxxx, XX0 0XX
Sort Code:16-53-60
Account Number: 00000000 / 00000000
Account Name: DTI Cash Account
If payment is made by SWIFT from USA in (pound) Sterling:
Office of Paymaster General
Quote in the Detail Section: "For Forward Transmission To" BOE.XXXXXX0X00X
Sort Code:16-53-60
Account Number: 00000000
If payment is made from the UK:
National Westminster Bank plc
0 Xxxxxxxxxxx Xxxx, Xxxxx, Xxxxxxxxx, XX0 0XX
Account Name: DTI Cash Account
Sort Code: 10-14-99
Account Number: 00000000
ANNEXURE 2
LETTERS OF APPOINTMENT
Viasystems, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx
Xxxxxxxx 00000
XXX
Phone : 00 0 000 000 0000
Fax : 00 0 000 000 0000
[ ] 2003
WG&M Secretaries Limited
Xxx Xxxxx Xxxxx
Xxxxxx XX0X 0XX
For the attention of Xxxxxx Xxxxxx
FAX NO. x00 000 0000 0000
Dear Sirs,
We appoint you to act as agent for the purpose of accepting service of process
on our behalf in England in any legal action or proceeding in connection with
the settlement agreement dated [ ] between (1) the Secretary of State for Trade
and Industry for the United Kingdom ("DTI"), (2) Viasystems, Inc. and (3)
Viasystems Group, Inc. in respect of the DTI's claim against Viasystems, Inc.
(the "AGREEMENT") and subject to the following terms and conditions:
1 Your sole responsibilities under this letter are to:
1.1 receive and accept on our behalf service of process by which any suit,
action or proceeding is begun in the courts of England arising out of
or in connection with the Agreements;
1.2 send us notice (the "NOTICE") by fax to the number stated at the
beginning of this letter marked for the attention of Xxxxx Xxxxxxx (or
other numbers or persons notified in writing to you by us from time to
time) containing the following:
1.2.1 the date on which you accepted service of process on our
behalf;
1.2.2 the name of the party issuing the proceedings;
1.2.3 the date by which acknowledgement of service must be filed
with the court in order to avoid judgment being entered
against us in default of appearance before the court; and
1.2.4 a request by you for the name of the firm of solicitors in
England to whom the originals of the document(s) served on you
should be sent,
but the Notice need not contain any details of the nature or substance
of the claim made against us; and
1.3 send a copy of the Notice and all related documents served on us to us
by mail or courier to the address stated at the beginning of this
letter marked for the attention of the person referred to in paragraph
1.2 above (or other addresses or persons notified in writing to you by
us from time to time) with a copy of the process served.
2 Your despatch of the Notice is a good discharge of your obligations
contained in paragraphs 1.2 and 1.3, whether or not we receive the
Notice and whether or not you are aware that we may not have received a
Notice previously sent to us by you. If, in your opinion, your despatch
or our receipt of the Notice might be prevented, hindered or delayed by
a cause beyond your control (including, without limitation,
interruptions in postal or other communications services) your
obligations under those paragraphs are suspended until, in your
opinion, despatch will not be prevented, hindered or delayed in that
way. While your obligations are suspended you shall, if the relevant
telephone services are operating normally, use reasonable efforts to
give us the information referred to in paragraph 1.2 by telephone call
to the number stated in this letter (or another number notified in
writing to you by us from time to time).
3 We shall promptly acknowledge receipt both of the Notice sent to us by
fax and that sent in accordance with paragraph 1.3 first by fax to the
number set out at the beginning of this letter (or another number
notified in writing by you to us from time to time) (telephoning you in
advance on x00 000 0000 0000 or such other number notified in writing
by you to us from time to time) and then by mail, which
acknowledgements shall include the information requested under
paragraph 1.2.4 and both of which shall be marked for the attention of
Xxxxxx Xxxxxx (or another person notified in writing by you to us from
time to time).
4 You may terminate your appointment with immediate effect at any time by
sending us written notice recording that termination by mail or fax to
the address or fax number stated in this letter (or another address or
fax number notified in writing to you by us from time to time).
In the event of termination of this appointment, WG&M Secretaries
Limited will have no obligation to forward mail, correspondence,
notices, documents or any other items whatsoever received on our behalf
and will accept no responsibility for or in connection with any legal
proceedings, penalties, fines, liabilities, claims, costs or for any
loss, damage, financial or commercial loss, expenses or incidental loss
to us or to any other person resulting from the termination or from any
failure to forward mail, correspondence, notices, documents or any
other items whatsoever received on our behalf.
5 Subject to paragraph 4 of this letter, your appointment ceases when the
Agreement ceases to be in force. If, however, at that time we have not
(or any of the other parties to the Agreement or its agent alleges that
we have not) complied with any of the terms of the Agreement, we agree
that your appointment continues in force for such period as you may
agree. If the Agreement is extended, your appointment will, if you then
agree, also be extended.
6 We shall notify you and all the other parties to the Agreement
promptly:
6.1.1 of any change in our name, status, address, telephone or fax
numbers;
2
6.1.2 of any change (by variation, waiver or otherwise) in the date
on which the Agreement is expected to cease to be in force;
6.1.3 if a resolution is passed for our winding up or a court of
competent jurisdiction makes an order for our winding up or
dissolution; and
6.1.4 if an administration order is made in relation to us or a
receiver is appointed over, or an encumbrancer takes
possession of or sells, one of our assets.
(In this paragraph "WINDING UP", "DISSOLUTION" and "ADMINISTRATION
ORDER" are to be construed so as to include any equivalent or analogous
proceedings or orders under the law of the jurisdiction in which we are
incorporated or any jurisdiction in which we carry on business or have
an asset).
7 Neither we nor any other person shall have any claim against you, your
officers or agents in respect of any loss, liability or cost arising
directly or indirectly out of any failure in the performance of your
obligations set out in this letter, whether negligent or otherwise,
unless the loss, liability or cost arises from your wilful default or
negligence or that of your officers or agents.
8 If a term of your appointment set out in this letter is inconsistent
with a provision of the Agreement, this letter prevails.
Notwithstanding paragraph 12, you are not deemed to have notice of any
provision of the Agreement except those expressly stated in this
letter.
9 You have informed us that, although WG&M Secretaries Limited is a
separate legal entity, you have a relationship with Weil, Gotshal &
Xxxxxx LLP in that you operate from its premises and the partners of
Weil, Gotshal & Xxxxxx LLP are ultimately responsible for the
management of WG&M Secretaries Limited. We agree that neither your
appointment nor anything arising from or in connection with your
appointment precludes Weil, Gotshal & Xxxxxx LLP from acting for any
person in connection with any matter involving us in any way. We
further agree that neither we nor any other person shall under any
circumstances have any claim against Weil, Gotshal & Xxxxxx LLP or any
of its partners or employees in respect of any loss, liability or cost
arising directly or indirectly out of any failure in the performance of
your obligations set out in this letter.
10 This letter is governed by, and shall be construed in accordance with,
English law.
11 Please acknowledge your acceptance of the terms of this letter by
signing the acknowledgement on the enclosed copy of this letter and
returning it to us. You shall notify us of any change in your name or
address. We shall then notify all parties to the Agreement of the new
name or address to which any service of process should be delivered.
12 A copy of the relevant pages from the Agreement (the page listing the
parties to the Agreement and the page on which you are designated) are
attached to this letter.
Yours faithfully
3
_______________________________________
Signed by [ ]
a duly authorised representative of Viasystems, Inc.
We acknowledge receipt of your letter of which this is a true copy. We accept
the appointment described in the letter on the terms the letter sets out.
_______________________________________
a duly authorised representative of WG&M Secretaries Limited
4
Viasystems Group, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx
Xxxxxxxx 00000
XXX
Phone : 00 0 000 000 0000
Fax : 00 0 000 000 0000
[ ] 2003
WG&M Secretaries Limited
Xxx Xxxxx Xxxxx
Xxxxxx XX0X 0XX
For the attention of Xxxxxx Xxxxxx
FAX NO. x00 000 0000 0000
Dear Sirs,
We appoint you to act as agent for the purpose of accepting service of process
on our behalf in England in any legal action or proceeding in connection with
the settlement agreement dated [ ] between (1) the Secretary of State for Trade
and Industry for the United Kingdom ("DTI"), (2) Viasystems Group, Inc. and (3)
Viasystems, Inc in respect of the DTI's claim against Viasystems Group, Inc.
(the "AGREEMENT") and subject to the following terms and conditions:
13 Your sole responsibilities under this letter are to:
13.1 receive and accept on our behalf service of process by which any suit,
action or proceeding is begun in the courts of England arising out of
or in connection with the Agreements;
13.2 send us notice (the "NOTICE") by fax to the number stated at the
beginning of this letter marked for the attention of Xxxxx Xxxxxxx (or
other numbers or persons notified in writing to you by us from time to
time) containing the following:
13.2.1 the date on which you accepted service of process on our
behalf;
13.2.2 the name of the party issuing the proceedings;
13.2.3 the date by which acknowledgement of service must be filed
with the court in order to avoid judgment being entered
against us in default of appearance before the court; and
13.2.4 a request by you for the name of the firm of solicitors in
England to whom the originals of the document(s) served on you
should be sent,
but the Notice need not contain any details of the nature or substance
of the claim made against us; and
13.3 send a copy of the Notice and all related documents served on us to us
by mail or courier to the address stated at the beginning of this
letter marked for the attention of the person referred to in paragraph
1.2 above (or other addresses or persons notified in writing to you by
us from time to time) with a copy of the process served.
14 Your despatch of the Notice is a good discharge of your obligations
contained in paragraphs 1.2 and 1.3, whether or not we receive the
Notice and whether or not you are aware that we may not have received a
Notice previously sent to us by you. If, in your opinion, your despatch
or our receipt of the Notice might be prevented, hindered or delayed by
a cause beyond your control (including, without limitation,
interruptions in postal or other communications services) your
obligations under those paragraphs are suspended until, in your
opinion, despatch will not be prevented, hindered or delayed in that
way. While your obligations are suspended you shall, if the relevant
telephone services are operating normally, use reasonable efforts to
give us the information referred to in paragraph 1.2 by telephone call
to the number stated in this letter (or another number notified in
writing to you by us from time to time).
15 We shall promptly acknowledge receipt both of the Notice sent to us by
fax and that sent in accordance with paragraph 1.3 first by fax to the
number set out at the beginning of this letter (or another number
notified in writing by you to us from time to time) (telephoning you in
advance on x00 000 0000 0000 or such other number notified in writing
by you to us from time to time) and then by mail, which
acknowledgements shall include the information requested under
paragraph 1.2.4 and both of which shall be marked for the attention of
Xxxxxx Xxxxxx (or another person notified in writing by you to us from
time to time).
16 You may terminate your appointment with immediate effect at any time by
sending us written notice recording that termination by mail or fax to
the address or fax number stated in this letter (or another address or
fax number notified in writing to you by us from time to time).
In the event of termination of this appointment, WG&M Secretaries
Limited will have no obligation to forward mail, correspondence,
notices, documents or any other items whatsoever received on our behalf
and will accept no responsibility for or in connection with any legal
proceedings, penalties, fines, liabilities, claims, costs or for any
loss, damage, financial or commercial loss, expenses or incidental loss
to us or to any other person resulting from the termination or from any
failure to forward mail, correspondence, notices, documents or any
other items whatsoever received on our behalf.
17 Subject to paragraph 4 of this letter, your appointment ceases when the
Agreement ceases to be in force. If, however, at that time we have not
(or any of the other parties to the Agreement or its agent alleges that
we have not) complied with any of the terms of the Agreement, we agree
that your appointment continues in force for such period as you may
agree. If the Agreement is extended, your appointment will, if you then
agree, also be extended.
18 We shall notify you and all the other parties to the Agreement
promptly:
18.1.1 of any change in our name, status, address, telephone or fax
numbers;
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18.1.2 of any change (by variation, waiver or otherwise) in the date
on which the Agreement is expected to cease to be in force;
18.1.3 if a resolution is passed for our winding up or a court of
competent jurisdiction makes an order for our winding up or
dissolution; and
18.1.4 if an administration order is made in relation to us or a
receiver is appointed over, or an encumbrancer takes
possession of or sells, one of our assets.
(In this paragraph "WINDING UP", "DISSOLUTION" and "ADMINISTRATION
ORDER" are to be construed so as to include any equivalent or analogous
proceedings or orders under the law of the jurisdiction in which we are
incorporated or any jurisdiction in which we carry on business or have
an asset).
19 Neither we nor any other person shall have any claim against you, your
officers or agents in respect of any loss, liability or cost arising
directly or indirectly out of any failure in the performance of your
obligations set out in this letter, whether negligent or otherwise,
unless the loss, liability or cost arises from your wilful default or
negligence or that of your officers or agents.
20 If a term of your appointment set out in this letter is inconsistent
with a provision of the Agreement, this letter prevails.
Notwithstanding paragraph 12, you are not deemed to have notice of any
provision of the Agreement except those expressly stated in this
letter.
21 You have informed us that, although WG&M Secretaries Limited is a
separate legal entity, you have a relationship with Weil, Gotshal &
Xxxxxx LLP in that you operate from its premises and the partners of
Weil, Gotshal & Xxxxxx LLP are ultimately responsible for the
management of WG&M Secretaries Limited. We agree that neither your
appointment nor anything arising from or in connection with your
appointment precludes Weil, Gotshal & Xxxxxx LLP from acting for any
person in connection with any matter involving us in any way. We
further agree that neither we nor any other person shall under any
circumstances have any claim against Weil, Gotshal & Xxxxxx LLP or any
of its partners or employees in respect of any loss, liability or cost
arising directly or indirectly out of any failure in the performance of
your obligations set out in this letter.
22 This letter is governed by, and shall be construed in accordance with,
English law.
23 Please acknowledge your acceptance of the terms of this letter by
signing the acknowledgement on the enclosed copy of this letter and
returning it to us. You shall notify us of any change in your name or
address. We shall then notify all parties to the Agreement of the new
name or address to which any service of process should be delivered.
24 A copy of the relevant pages from the Agreement (the page listing the
parties to the Agreement and the page on which you are designated) are
attached to this letter.
Yours faithfully
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______________________________________
Signed by [ ] a duly authorised representative of Viasystems Group, Inc.
We acknowledge receipt of your letter of which this is a true copy. We accept
the appointment described in the letter on the terms the letter sets out.
______________________________________
a duly authorised representative of WG&M Secretaries Limited
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