EXHIBIT 10.4
EXECUTION COPY
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FIRST-TIER SUBSIDIARY PLEDGE AGREEMENT
dated and effective as of
February 28, 2003,
among
TRW AUTOMOTIVE ACQUISITION CORP.,
Each Subsidiary of TRW AUTOMOTIVE
HOLDINGS CORP. identified herein,
and
JPMORGAN CHASE BANK,
as Collateral Agent
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Table of Contents
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Page
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ARTICLE I
Definitions
Section 1.01. Defined Terms..................................................2
Section 1.02. Other Defined Terms............................................2
ARTICLE II
Pledge of Securities
Section 2.01. Pledge.........................................................4
Section 2.02. Delivery of the Pledged Collateral.............................5
Section 2.03. Representations, Warranties and Covenants......................6
Section 2.04. Certification of Limited Liability Company and
Limited Partnership Interests...............................7
Section 2.05. Registration in Nominee Name; Denominations....................8
Section 2.06. Voting Rights; Dividends and Interest, etc.....................8
ARTICLE III
Remedies
Section 3.01. Remedies upon Default.........................................11
Section 3.02. Application of Proceeds.......................................13
Section 3.03. Securities Act, etc...........................................14
Section 3.04. Registration, etc.............................................15
ARTICLE IV
Miscellaneous
Section 4.01. Notices.......................................................16
Section 4.02. Security Interest Absolute....................................16
Section 4.03. Survival of Agreement.........................................17
Section 4.04. Binding Effect; Several Agreement.............................17
Section 4.05. Successors and Assigns........................................18
Section 4.06. Collateral Agent's Fees and Expenses;
Indemnification............................................18
Section 4.07. Collateral Agent Appointed
Attorney-in-Fact...........................................19
Section 4.08. GOVERNING LAW.................................................20
Section 4.09. Waivers; Amendment............................................20
Section 4.10. WAIVER OF JURY TRIAL..........................................21
Section 4.11. Severability..................................................22
Section 4.12. Counterparts..................................................22
Section 4.13. Headings......................................................22
Section 4.14. Jurisdiction; Consent to Service of
Process....................................................22
Section 4.15. Termination or Release........................................23
Section 4.16. Additional Subsidiaries.......................................24
Schedules
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Schedule I Pledgors
Schedule II Equity Interests
Schedule III Limited Liability Company Interests
Exhibits
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Exhibit I Form of Supplement to the First-Tier
Subsidiary Pledge Agreement
FIRST-TIER SUBSIDIARY PLEDGE AGREEMENT dated
and effective as of February 28, 2003 (this
Agreement"), among TRW AUTOMOTIVE ACQUISITION CORP.,
a Delaware corporation (the "U.S. Borrower"), each
subsidiary identified on Schedule I hereto (each a
"Pledgor," and together with the U.S. Borrower, the
"Pledgors") and JPMORGAN CHASE BANK, a New York
banking corporation ("JPMCB"), as Collateral Agent
(in such capacity, the "Collateral Agent") for the
Secured Parties (as defined below).
Reference is made to the Credit Agreement dated as of February
27, 2003 (as amended, supplemented, waived or otherwise modified from time to
time, the "Credit Agreement"), among TRW Automotive Holdings Corp., TRW
Automotive Intermediate Holdings Corp., the U.S. Borrower, the Foreign
Subsidiary Borrowers party thereto, the Lenders party thereto (the "Lenders"),
JPMCB, as Administrative Agent and Collateral Agent, Credit Suisse First Boston,
acting through its Cayman Islands Branch, Xxxxxx Commercial Paper Inc., and
Deutsche Bank Securities Inc., as Co-Syndication Agents, and Bank of America,
N.A., as Documentation Agent and the U.S. Guarantee and Collateral Agreement
dated and effective as of February 28, 2003 (the "U.S. Collateral Agreement")
among TRW Automotive Holdings Corp., TRW Automotive Intermediate Holdings Corp.,
TRW Automotive Acquisition Corp., each other Subsidiary of TRW Automotive
Holdings Corp. identified therein and the Collateral Agent.
The Revolving Credit Lenders have agreed to extend credit to
the Foreign Subsidiary Borrowers subject to the terms and conditions set forth
in the Credit Agreement. The obligations of the Revolving Credit Lenders to
extend such credit are conditioned upon, among other things, the execution and
delivery of this Agreement, pursuant to which 35% of the Equity Interests of
certain Foreign Subsidiaries are being pledged to secure the Foreign Obligations
(as defined below), and the U.S. Collateral Agreement, pursuant to which an
amount not in excess of 65% of the Equity Interests of certain Foreign
Subsidiaries are being pledged to secure the Obligations (as defined in the U.S.
Collateral Agreement). The
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Pledgors are affiliates of the Foreign Subsidiary Borrowers, and each Foreign
Subsidiary Borrower is an affiliate of the other Foreign Subsidiary Borrowers.
The Pledgors will derive substantial benefits from the extension of credit to
the Foreign Subsidiary Borrowers, and each Foreign Subsidiary Borrower will
derive substantial benefits from the extensions of credit to each other Foreign
Subsidiary Borrower, in each case pursuant to the Credit Agreement. The Pledgors
are willing to execute and deliver this Agreement in order to induce the
Revolving Credit Lenders to extend such credit. Accordingly, the parties hereto
agree as follows:
ARTICLE I
Definitions
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Section 1.01. Defined Terms. (a) Capitalized terms used in
this Agreement and not otherwise defined herein have the respective meanings
assigned thereto in the Credit Agreement. All terms defined in the New York UCC
(as defined herein) and not defined in this Agreement have the meanings
specified therein.
(b) The rules of construction specified in Section 1.02 of the
Credit Agreement also apply to this Agreement.
Section 1.02. Other Defined Terms. As used in this Agreement,
the following terms have the meanings specified below:
"Credit Agreement" has the meaning assigned to such term in
the preliminary statement of this Agreement.
"Federal Securities Laws" has the meaning assigned to such
term in Section 3.03.
"Foreign Loan Document Obligations" means (a) the due and
punctual payment by each Foreign Subsidiary Borrower of (i) the principal of and
interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Loans made to such Foreign
Subsidiary Borrower, when and as due, whether at maturity, by
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acceleration, upon one or more dates set for prepayment or otherwise, (ii) each
payment required to be made by such Foreign Subsidiary Borrower in respect of
any Ancillary Credit Extension, when and as due, including the principal of and
interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on any loans thereunder, overdrafts,
reimbursement of guarantees and obligations to provide cash collateral and (iii)
all other monetary obligations of such Foreign Subsidiary Borrower to any of the
Secured Parties under the Credit Agreement and each of the other Loan Documents,
including obligations to pay fees, expenses and reimbursement obligations and
indemnification obligations, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding), the due and
punctual performance of all other obligations of each Foreign Subsidiary
Borrower under or pursuant to the Credit Agreement and each of the other Loan
Documents and the due and punctual payment and performance of all the
obligations of each Foreign Subsidiary Loan Party under or pursuant to this
Agreement and each of the other Loan Documents.
"Foreign Obligations" means (a) the Foreign Loan Document
Obligations, (b) the due and punctual payment and performance of all obligations
of each Foreign Subsidiary Loan Party under each Swap Agreement that (i) is in
effect on the Closing Date with any counterparty that is a Lender or an
Affiliate of a Lender as of the Closing Date or (ii) is entered into after the
Closing Date with a counterparty that is a Lender or an Affiliate of a Lender at
the time such Swap Agreement is entered into and (c) the due and punctual
payment and performance of all obligations and other liabilities of each Foreign
Subsidiary Loan Party to a Lender or any of its Affiliates in respect of
overdrafts and related liabilities owed to a Lender or any of its Affiliates and
arising from treasury, depositary or cash management services or in connection
with any automated clearinghouse transfers of funds.
"New York UCC" means the Uniform Commercial Code as from time
to time in effect in the State of New York.
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"Permitted Encumbrances" means the Liens permitted pursuant to
Sections 6.02(e), (f), (g), (h), (k), (p) and (q) of the Credit Agreement.
"Pledged Collateral" has the meaning assigned to such term in
Section 2.01.
"Pledged Securities" means any promissory notes, stock
certificates or other certificated securities now or hereafter included in the
Pledged Collateral, including all certificates, instruments or other documents
representing or evidencing any Pledged Collateral.
"Pledged Stock" has the meaning assigned to such term in
Section 2.01.
"Pledgors" means the U.S. Borrower and each Subsidiary of TRW
Automotive Holdings Corp. identified on Schedule I to this Agreement.
"Secured Parties" means (a) the Revolving Credit Lenders (and
any Affiliate of a Revolving Credit Lender to which any obligation referred to
in clause (c) of the definition of the term "Foreign Obligations" is owed), (b)
the Administrative Agent, (c) each Ancillary Lender, (d) each counterparty to
any Swap Agreement entered into with a Foreign Subsidiary Loan Party the
obligations under which constitute Foreign Obligations, (e) the beneficiaries of
each indemnification obligation undertaken by any Foreign Guarantor under any
Loan Document and (f) the successors and assigns of each of the foregoing.
ARTICLE II
Pledge of Securities
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Section 2.01. Pledge. As security for the payment or
performance, as the case may be, in full of the Foreign Obligations, each
Pledgor hereby assigns and pledges to the Collateral Agent, its successors and
assigns, for the ratable benefit of the Secured Parties, and hereby grants to
the Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, a security interest in all of such Pledgor's right, title and
interest in, to and under (a) the shares of capital stock and other Equity
Interests owned by it and
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listed on Schedule II, any other Equity Interests obtained in the future by such
Pledgor in respect of its Equity Interests in the issuers identified on Schedule
II hereto to the extent that such Equity Interests are not pledged under the
U.S. Collateral Agreement and the certificates representing all such Equity
Interests (the "Pledged Stock"); provided that the Pledged Stock shall not
include to the extent applicable law requires that a Subsidiary of such Pledgor
issue directors' qualifying shares, such shares or nominee or other similar
shares, (b) subject to Section 2.06, all payments of principal or interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of, in exchange for or upon the
conversion of, and all other proceeds received in respect of, the securities
referred to in clause (a) above, (c) subject to Section 2.06, all rights and
privileges of such Pledgor with respect to the securities and other property
referred to in clauses (a) and (b) above and (d) all proceeds of any of the
foregoing (the items referred to in clauses (a) through (d) above being
collectively referred to as the "Pledged Collateral").
TO HAVE AND TO HOLD the Pledged Collateral, together with all
right, title, interest, powers, privileges and preferences pertaining or
incidental thereto, unto the Collateral Agent, its successors and assigns, for
the ratable benefit of the Secured Parties, forever; subject, however, to the
terms, covenants and conditions hereinafter set forth.
Section 2.02. Delivery of the Pledged Collateral. (a) Each
Pledgor agrees promptly to deliver or cause to be delivered to the Collateral
Agent, for the ratable benefit of the Secured Parties, any and all Pledged
Securities.
(b) Upon delivery to the Collateral Agent, (i) any Pledged
Securities shall be accompanied by stock powers duly executed in blank or other
instruments of transfer reasonably satisfactory to the Collateral Agent and by
such other instruments and documents as the Collateral Agent may reasonably
request and (ii) all other property composing part of the Pledged Collateral
delivered pursuant to the terms of this Agreement shall be accompanied by proper
instruments of assignment duly executed by the applicable
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Pledgor and such other instruments or documents as the Collateral Agent may
reasonably request. Each delivery of Pledged Securities shall be accompanied by
a schedule describing the securities, which schedule shall be attached hereto as
Schedule II and made a part hereof; provided that failure to attach any such
schedule hereto shall not affect the validity of such pledge of such Pledged
Securities. Each schedule so delivered shall supersede any prior schedules so
delivered.
Section 2.03. Representations, Warranties and Covenants. The
Pledgors, jointly and severally, represent, warrant and covenant to and with the
Collateral Agent, for the ratable benefit of the Secured Parties, that:
(a) Schedule II correctly sets forth the percentage of the
issued and outstanding shares of each class of the Equity Interests of the
issuer thereof represented by such Pledged Stock and includes all Equity
Interests required to be pledged hereunder in order to satisfy the Collateral
and Guarantee Requirement;
(b) the Pledged Stock has been duly and validly authorized and
issued by the issuers thereof and is fully paid and nonassessable;
(c) except for the security interests granted hereunder, each
Pledgor (i) is and, subject to any transfers made in compliance with the Credit
Agreement, will continue to be the direct owner, beneficially and of record, of
the Pledged Securities indicated on Schedule II as owned by such Pledgor, (ii)
holds the same free and clear of all Liens, other than Liens created by this
Agreement and Liens permitted by Section 6.02 of the Credit Agreement or arising
by operation of law, (iii) will make no assignment, pledge, hypothecation or
transfer of, or create or permit to exist any security interest in or other Lien
on, the Pledged Collateral, other than pursuant to a transaction permitted by
the Credit Agreement and other than Liens created by this Agreement and
Permitted Encumbrances, and (iv) will defend its title or interest hereto or
therein against any and all Liens (other than Liens created by this Agreement
and Permitted Encumbrances), however arising, of all persons;
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(d) except for restrictions and limitations imposed by the
Loan Documents or securities laws generally, or otherwise permitted to exist
pursuant to the terms of the Credit Agreement, the Pledged Collateral is and
will continue to be freely transferable and assignable, and none of the Pledged
Collateral is or will be subject to any option, right of first refusal,
shareholders agreement, charter or by-law provisions or contractual restriction
of any nature that might prohibit, impair, delay or otherwise affect the pledge
of such Pledged Collateral hereunder, the sale or disposition thereof pursuant
hereto or the exercise by the Collateral Agent of rights and remedies hereunder;
(e) each Pledgor has the power and authority to pledge the
Pledged Collateral pledged by it hereunder in the manner hereby done or
contemplated;
(f) no consent or approval of any Governmental Authority, any
securities exchange or any other person was or is necessary to the validity of
the pledge effected hereby (other than such as have been obtained and are in
full force and effect);
(g) by virtue of the execution and delivery by the Pledgors of
this Agreement, when any Pledged Securities are delivered to the Collateral
Agent, for the ratable benefit of the Secured Parties, in accordance with this
Agreement, the Collateral Agent will obtain, for the ratable benefit of the
Secured Parties, a legal, valid and perfected first priority lien upon and
security interest in such Pledged Securities as security for the payment and
performance of the Foreign Obligations; and
(h) the pledge effected hereby is effective to vest in the
Collateral Agent, for the ratable benefit of the Secured Parties, the rights of
the Collateral Agent in the Pledged Collateral as set forth herein.
Section 2.04. Certification of Limited Liability Company and
Limited Partnership Interests. Each interest in any limited liability company or
limited partnership controlled by any Pledgor and pledged hereunder shall be
represented by a certificate, shall be a "security" within the meaning of
Article 8 of the New York UCC and shall be governed by Article 8 of the New York
UCC; provided, however, that in the case of (a) the limited liability
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company interests set forth on Schedule III, the U.S. Borrower shall cause such
interests to be represented by a certificate, to be a "security" within the
meaning of Article 8 of the New York UCC and to be governed by Article 8 of the
New York UCC, in each case not later than 20 Business Days after the Closing
Date and (b) any limited liability company or limited partnership that, in
either case, is a Wholly Owned Subsidiary formed or acquired after the Closing
Date, the U.S. Borrower shall cause such interests to be represented by a
certificate, to be a "security" within the meaning of Article 8 of the New York
UCC and to be governed by Article 8 of the New York UCC, in each case not later
than 20 Business Days after the date of formation or acquisition thereof, as
applicable.
Section 2.05. Registration in Nominee Name; Denominations. The
Collateral Agent, on behalf of the Secured Parties, shall have the right (in its
sole and absolute discretion) to hold the Pledged Securities in the name of the
applicable Pledgor endorsed or assigned in blank or in favor of the Collateral
Agent or, if an Event of Default shall have occurred and be continuing, in its
own name as pledgee or the name of its nominee (as pledgee or as sub-agent).
Each Pledgor will promptly give to the Collateral Agent copies of any notices or
other communications received by it with respect to Pledged Securities
registered in the name of such Pledgor. The Collateral Agent shall at all times
have the right to exchange the certificates representing Pledged Securities for
certificates of smaller or larger denominations for any purpose consistent with
this Agreement. Each Pledgor shall use its commercially reasonable efforts to
cause any Loan Party that is not a party to this Agreement to comply with a
request by the Collateral Agent, pursuant to this Section 2.05, to exchange
certificates representing Pledged Securities of such Loan Party for certificates
of smaller or larger denominations.
Section 2.06. Voting Rights; Dividends and Interest, etc. (a)
Unless and until an Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all
voting and/or other consensual rights and powers inuring to an owner
of Pledged Securities or any part thereof for any purpose consistent
with the
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terms of this Agreement, the Credit Agreement and the other Loan
Documents; provided that such rights and powers shall not be
exercised in any manner that could materially and adversely affect
the rights inuring to a holder of any Pledged Securities, the rights
and remedies of any of the Collateral Agent or the other Secured
Parties under this Agreement, the Credit Agreement or any other Loan
Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall promptly execute and deliver
to each Pledgor, or cause to be executed and delivered to such
Pledgor, all such proxies, powers of attorney and other instruments
as such Pledgor may reasonably request for the purpose of enabling
such Pledgor to exercise the voting and/or consensual rights and
powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor shall be entitled to receive and retain any
and all dividends, interest, principal and other distributions paid
on or distributed in respect of the Pledged Securities to the extent
and only to the extent that such dividends, interest, principal and
other distributions are permitted by, and otherwise paid or
distributed in accordance with, the terms and conditions of the
Credit Agreement, the other Loan Documents and applicable laws;
provided that any noncash dividends, interest, principal or other
distributions that would constitute Pledged Securities, whether
resulting from a subdivision, combination or reclassification of the
outstanding Equity Interests of the issuer of any Pledged Securities
or received in exchange for Pledged Securities or any part thereof,
or in redemption thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which such
issuer may be a party or otherwise, shall be and become part of the
Pledged Collateral, and, if received by any Pledgor, shall not be
commingled by such Pledgor with any of its other funds or property
but shall be held separate and apart therefrom, shall be held in
trust for the benefit of the Collateral Agent, for the ratable
benefit of the Secured Parties, and shall be forthwith delivered to
the Collateral Agent, for the ratable benefit of the Secured Parties,
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in the same form as so received (endorsed in a manner reasonably
satisfactory to the Collateral Agent).
(b) Upon the occurrence and during the continuance of an Event
of Default, and after notice by the Collateral Agent to the relevant Pledgors of
the Collateral Agent's intention to exercise its rights hereunder, all rights of
any Pledgor to dividends, interest, principal or other distributions that such
Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section
2.06 shall cease, and all such rights shall thereupon become vested, for the
ratable benefit of the Secured Parties, in the Collateral Agent which shall have
the sole and exclusive right and authority to receive and retain such dividends,
interest, principal or other distributions. All dividends, interest, principal
or other distributions received by any Pledgor contrary to the provisions of
this Section 2.06 shall not be commingled by such Pledgor with any of its other
funds or property but shall be held separate and apart therefrom, shall be held
in trust for the benefit of the Collateral Agent, for the ratable benefit of the
Secured Parties, and shall be forthwith delivered to the Collateral Agent, for
the ratable benefit of the Secured Parties, in the same form as so received
(endorsed in a manner reasonably satisfactory to the Collateral Agent). Any and
all money and other property paid over to or received by the Collateral Agent
pursuant to the provisions of this paragraph (b) shall be retained by the
Collateral Agent in an account to be established by the Collateral Agent upon
receipt of such money or other property and shall be applied in accordance with
the provisions of Section 3.02. After all Events of Default have been cured or
waived and the U.S. Borrower has delivered to the Collateral Agent a certificate
to that effect, the Collateral Agent shall promptly repay to each Pledgor
(without interest) all dividends, interest, principal or other distributions
that such Pledgor would otherwise be permitted to retain pursuant to the terms
of paragraph (a)(iii) of this Section 2.06 and that remain in such account.
(c) Upon the occurrence and during the continuance of an Event
of Default, and after notice by the Collateral Agent to the relevant Pledgors of
the Collateral Agent's intention to exercise its rights hereunder, all rights of
any Pledgor to exercise the voting and/or
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consensual rights and powers it is entitled to exercise pursuant to paragraph
(a)(i) of this Section 2.06, and the obligations of the Collateral Agent under
paragraph (a)(ii) of this Section 3.06, shall cease, and all such rights shall
thereupon become vested in the Collateral Agent, for the ratable benefit of the
Secured Parties, which shall have the sole and exclusive right and authority to
exercise such voting and consensual rights and powers; provided that, unless
otherwise directed by the Required Lenders, the Collateral Agent shall have the
right from time to time following and during the continuance of an Event of
Default to permit the Pledgors to exercise such rights. After all Events of
Default have been cured or waived and the U.S. Borrower has delivered to the
Collateral Agent a certificate to that effect, each Pledgor shall have the right
to exercise the voting and/or consensual rights and powers that such Pledgor
would otherwise be entitled to exercise pursuant to the terms of paragraph
(a)(i) above.
ARTICLE III
Remedies
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Section 3.01. Remedies Upon Default. Upon the occurrence and
during the continuance of an Event of Default, each Pledgor agrees to deliver
each item of Pledged Collateral to the Collateral Agent on demand, and it is
agreed that the Collateral Agent shall have the right, subject to the mandatory
requirements of applicable law, to sell or otherwise dispose of all or any part
of the Pledged Collateral at a public or private sale or at any broker's board
or on any securities exchange, for cash, upon credit or for future delivery as
the Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized in connection with any sale of a security (if it deems it advisable
to do so) pursuant to the foregoing to restrict the prospective bidders or
purchasers to persons who represent and agree that they are purchasing such
security for their own account, for investment, and not with a view to the
distribution or sale thereof. Upon consummation of any such sale of Pledged
Collateral pursuant to this Section 3.01, the Collateral Agent shall have the
right to assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale shall hold the property
sold absolutely, free from any claim or right on
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the part of any Pledgor, and each Pledgor hereby waives and releases (to the
extent permitted by law) all rights of redemption, stay, valuation and appraisal
that such Pledgor now has or may at any time in the future have under any rule
of law or statute now existing or hereafter enacted.
The Collateral Agent shall give the applicable Pledgors 10
Business Days' written notice (which each Pledgor agrees is reasonable notice
within the meaning of Section 9-611 of the New York UCC or its equivalent in
other jurisdictions) of the Collateral Agent's intention to make any sale of
Pledged Collateral. Such notice, in the case of a public sale, shall state the
time and place for such sale and, in the case of a sale at a broker's board or
on a securities exchange, shall state the board or exchange at which such sale
is to be made and the day on which the Pledged Collateral, or portion thereof,
will first be offered for sale at such board or exchange. Any such public sale
shall be held at such time or times within ordinary business hours and at such
place or places as the Collateral Agent may fix and state in the notice (if any)
of such sale. At any such sale, the Pledged Collateral, or the portion thereof,
to be sold may be sold in one lot as an entirety or in separate parcels, as the
Collateral Agent may (in its sole and absolute discretion) determine. The
Collateral Agent shall not be obligated to make any sale of any Pledged
Collateral if it shall determine not to do so, regardless of the fact that
notice of sale of such Pledged Collateral shall have been given. The Collateral
Agent may, without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the time and
place fixed for sale, and such sale may, without further notice, be made at the
time and place to which the same was so adjourned. In the case of any sale of
all or any part of the Pledged Collateral made on credit or for future delivery,
the Pledged Collateral so sold may be retained by the Collateral Agent until the
sale price is paid by the purchaser or purchasers thereof, but the Collateral
Agent shall not incur any liability in the event that any such purchaser or
purchasers shall fail to take up and pay for the Pledged Collateral so sold and,
in the case of any such failure, such Pledged Collateral may be sold again upon
notice given in accordance with provisions above. At any public (or, to the
extent permitted by law, private) sale made pursuant to this Section 3.01, any
Secured Party may
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bid for or purchase for cash, free (to the extent permitted by law) from any
right of redemption, stay, valuation or appraisal on the part of any Pledgor
(all such rights being also hereby waived and released to the extent permitted
by law), the Pledged Collateral or any part thereof offered for sale and such
Secured Party may, upon compliance with the terms of sale, hold, retain and
dispose of such property without further accountability to any Pledgor therefor.
For purposes hereof, a written agreement to purchase the Pledged Collateral or
any portion thereof shall be treated as a sale thereof; the Collateral Agent
shall be free to carry out such sale pursuant to such agreement and no Pledgor
shall be entitled to the return of the Pledged Collateral or any portion thereof
subject thereto, notwithstanding the fact that after the Collateral Agent shall
have entered into such an agreement all Events of Default shall have been
remedied and the Foreign Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, the Collateral Agent may
proceed by a suit or suits at law or in equity to foreclose this Agreement and
to sell the Pledged Collateral or any portion thereof pursuant to a judgment or
decree of a court or courts having competent jurisdiction or pursuant to a
proceeding by a court-appointed receiver. Any sale pursuant to the provisions of
this Section 3.01 shall be deemed to conform to the commercially reasonable
standards as provided in Section 9-610(b) of the New York UCC or its equivalent
in other jurisdictions.
Section 3.02. Application of Proceeds. The Collateral Agent
shall apply the proceeds, moneys or balances of any collection or sale of
Pledged Collateral, as well as any Pledged Collateral consisting of cash, as
follows:
FIRST, to the payment of all costs and expenses incurred by
the Applicable Agent and the Collateral Agent in connection with such
collection or sale or otherwise in connection with this Agreement, any
other Loan Document or any of the Foreign Obligations, including all
court costs and the fees and expenses of its agents and legal counsel,
the repayment of all advances made by the Applicable Agent and the
Collateral Agent hereunder or under any other Loan Document on behalf
of any Pledgor and any other costs or expenses incurred in connection
with the exercise
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of any right or remedy hereunder or under any other Loan Document;
SECOND, to the payment in full of the Foreign Obligations (the
amounts so applied to be distributed among the Secured Parties pro rata
in accordance with the respective amounts of the Foreign Obligations
owed to them on the date of any such distribution); and
THIRD, to the Pledgors, their successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the
time of application of any such proceeds, moneys or balances in accordance with
this Agreement. Upon any sale of Pledged Collateral by the Collateral Agent
(including pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of the purchase money by the Collateral Agent or of the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Pledged Collateral so sold and such purchaser or purchasers
shall not be obligated to see to the application of any part of the purchase
money paid over to the Collateral Agent or such officer or be answerable in any
way for the misapplication thereof.
Section 3.03. Securities Act, etc. In view of the position of
the Pledgors in relation to the Pledged Collateral, or because of other current
or future circumstances, a question may arise under the Securities Act of 1933,
as now or hereafter in effect, or any similar federal statute hereafter enacted
analogous in purpose or effect (such Act and any such similar statute as from
time to time in effect being called the "Federal Securities Laws") with respect
to any disposition of the Pledged Collateral permitted hereunder. Each Pledgor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Collateral, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Collateral could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Collateral Agent
15
in any attempt to dispose of all or part of the Pledged Collateral under
applicable Blue Sky or other state securities laws or similar laws analogous in
purpose or effect. Each Pledgor acknowledges and agrees that in light of such
restrictions and limitations, the Collateral Agent, in its sole and absolute
discretion, (a) may proceed to make such a sale whether or not a registration
statement for the purpose of registering such Pledged Collateral or part thereof
shall have been filed under the Federal Securities Laws or, to the extent
applicable, Blue Sky or other state securities laws and (b) may approach and
negotiate with a single potential purchaser to effect such sale. Each Pledgor
acknowledges and agrees that any such sale might result in prices and other
terms less favorable to the seller than if such sale were a public sale without
such restrictions. In the event of any such sale, the Collateral Agent shall
incur no responsibility or liability for selling all or any part of the Pledged
Collateral at a price that the Collateral Agent, in its sole and absolute
discretion, may in good xxxxx xxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
3.03 will apply notwithstanding the existence of a public or private market upon
which the quotations or sales prices may exceed substantially the price at which
the Collateral Agent sells.
Section 3.04. Registration, etc. Each Pledgor agrees that,
upon the occurrence and during the continuance of an Event of Default, if for
any reason the Collateral Agent desires to sell any of the Pledged Collateral at
a public sale, it will, at any time and from time to time, upon the written
request of the Collateral Agent, use its commercially reasonable efforts to take
or to cause the issuer of such Pledged Collateral to take such action and
prepare, distribute and/or file such documents, as are required or advisable in
the reasonable opinion of counsel for the Collateral Agent to permit the public
sale of such Pledged Collateral. Each Pledgor further agrees to indemnify,
defend and hold harmless the Collateral Agent, the Administrative Agent, each
other Secured Party, any underwriter and their respective officers, directors,
affiliates and controlling persons from and against all loss, liability,
expenses, costs of counsel (including
16
reasonable fees and expenses to the Collateral Agent of legal counsel), and
claims (including the costs of investigation) that they may incur insofar as
such loss, liability, expense or claim arises out of or is based upon any
alleged untrue statement of a material fact contained in any prospectus (or any
amendment or supplement thereto) or in any notification or offering circular, or
arises out of or is based upon any alleged omission to state a material fact
required to be stated therein or necessary to make the statements in any thereof
not misleading, except insofar as the same may have been caused by any untrue
statement or omission based upon information furnished in writing to such
Pledgor or the issuer of such Pledged Collateral by the Collateral Agent or any
other Secured Party expressly for use therein. Each Pledgor further agrees, upon
such written request referred to above, to use its commercially reasonable
efforts to qualify, file or register, or cause the issuer of such Pledged
Collateral to qualify, file or register, any of the Pledged Collateral under the
Blue Sky or other securities laws of such states as may be reasonably requested
by the Collateral Agent and keep effective, or cause to be kept effective, all
such qualifications, filings or registrations. Each Pledgor will bear all costs
and expenses of carrying out its obligations under this Section 3.04. Each
Pledgor acknowledges that there is no adequate remedy at law for failure by it
to comply with the provisions of this Section 3.04 and that such failure would
not be adequately compensable in damages and, therefore, agrees that its
agreements contained in this Section 3.04 only may be specifically enforced.
ARTICLE IV
Miscellaneous
-------------
Section 4.01. Notices. All communications and notices
hereunder shall (except as otherwise expressly permitted herein) be in writing
and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to any Pledgor shall be given to it in care
of the U.S. Borrower, with such notice to be given as provided in Section 9.01
of the Credit Agreement.
Section 4.02. Security Interest Absolute. All rights of the
Collateral Agent hereunder, the security
17
interest in the Pledged Collateral granted hereunder and all obligations of each
Pledgor hereunder shall be absolute and unconditional irrespective of (a) any
lack of validity or enforceability of the Credit Agreement, any other Loan
Document, any agreement with respect to any of the Foreign Obligations or any
other agreement or instrument relating to any of the foregoing, (b) any change
in the time, manner or place of payment of, or in any other term of, all or any
of the Foreign Obligations, or any other amendment or waiver of or any consent
to any departure from the Credit Agreement, any other Loan Document or any other
agreement or instrument, (c) any exchange, release or non-perfection of any Lien
on other collateral, or any release or amendment or waiver of or consent under
or departure from any guarantee, securing or guaranteeing all or any of the
Foreign Obligations or (d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any Pledgor in respect of
the Foreign Obligations or this Agreement.
Section 4.03. Survival of Agreement. All covenants,
agreements, representations and warranties made by the Pledgors in the Loan
Documents and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the Revolving Credit Lenders and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans and the issuance of any Letters of Credit, regardless of any investigation
made by any Lender or on its behalf and notwithstanding that the Administrative
Agent, the Collateral Agent, any Issuing Bank or any Lender may have had notice
or knowledge of any Default or Event of Default or incorrect representation or
warranty at the time any credit is extended under the Credit Agreement, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under any
Loan Document is outstanding and unpaid or any Letter of Credit is outstanding
and so long as the Commitments have not expired or terminated.
Section 4.04. Binding Effect; Several Agreement. This
Agreement shall become effective as to any party to this Agreement when a
counterpart hereof executed on behalf of such party shall have been delivered to
the
17
Administrative Agent and a counterpart hereof shall have been executed on behalf
of the Collateral Agent, and thereafter shall be binding upon such party and the
Collateral Agent and their respective permitted successors and assigns, and
shall inure to the benefit of such party, the Collateral Agent and the other
Secured Parties and their respective permitted successors and assigns, except
that no party shall have the right to assign or transfer its rights or
obligations hereunder or any interest herein or in the Pledged Collateral (and
any such assignment or transfer shall be void) except as expressly contemplated
by this Agreement or the Credit Agreement. This Agreement shall be construed as
a separate agreement with respect to each party and may be amended, modified,
supplemented, waived or released with respect to any party without the approval
of any other party and without affecting the obligations of any other party
hereunder.
Section 4.05. Successors and Assigns. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of any Pledgor or the
Collateral Agent that are contained in this Agreement shall bind and inure to
the benefit of their respective permitted successors and assigns.
Section 4.06. Collateral Agent's Fees and Expenses;
Indemnification. (a) The parties hereto agree that the Collateral Agent shall be
entitled to reimbursement of its expenses incurred hereunder as provided in
Section 9.05 of the Credit Agreement.
(b) Without limitation of its indemnification obligations
under the other Loan Documents, each Pledgor jointly and severally agrees to
indemnify the Collateral Agent and the other Indemnitees (as defined in Section
9.05 of the Credit Agreement) against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees, charges and disbursements, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of (i)
the execution, delivery or performance of this Agreement or any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto and
19
thereto of their respective obligations thereunder or the consummation of the
Transactions and other transactions contemplated hereby, (ii) the use of
proceeds of the Loans or the use of any Letter of Credit or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing, or to
the Pledged Collateral, whether or not any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) Any such amounts payable as provided hereunder shall be
additional Foreign Obligations. The provisions of this Section 4.06 shall remain
operative and in full force and effect regardless of the termination of this
Agreement or any other Loan Document, the consummation of the transactions
contemplated hereby, the repayment of any of the Foreign Obligations, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on behalf of the Collateral
Agent or any other Secured Party. All amounts due under this Section 4.06 shall
be payable on written demand therefor.
Section 4.07. Collateral Agent Appointed Attorney-in-Fact.
Each Pledgor hereby appoints the Collateral Agent the attorney-in-fact of such
Pledgor for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instrument that the Collateral Agent may
deem necessary or advisable to accomplish the purposes hereof, which appointment
is irrevocable and coupled with an interest. Without limiting the generality of
the foregoing, the Collateral Agent shall have the right, upon the occurrence
and during the continuance of an Event of Default, with full power of
substitution either in the Collateral Agent's name or in the name of such
Pledgor, (a) to receive, endorse, assign or deliver any and all notes,
acceptances, checks, drafts, money orders or other evidences of payment relating
to the Pledged Collateral or any part thereof, (b) to demand, collect, receive
payment of, give receipt for and give discharges and releases of all or any of
the Pledged Collateral, (c) to ask for, demand, xxx for,
20
collect, receive and give acquittance for any and all moneys due or to become
due under and by virtue of any Pledged Collateral, (d) to sign the name of any
Pledgor on any invoice or xxxx of lading relating to any of the Pledged
Collateral, (e) to commence and prosecute any and all suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to
collect or otherwise realize on all or any of the Pledged Collateral or to
enforce any rights in respect of any Pledged Collateral, (f) to settle,
compromise, compound, adjust or defend any actions, suits or proceedings
relating to all or any of the Pledged Collateral, and (g) to sell, assign,
transfer, pledge, make any agreement with respect to or otherwise deal with all
or any of the Pledged Collateral, and to do all other acts and things necessary
to carry out the purposes of this Agreement, as fully and completely as though
the Collateral Agent were the absolute owner of the Pledged Collateral for all
purposes; provided that nothing herein contained shall be construed as requiring
or obligating the Collateral Agent to make any commitment or to make any inquiry
as to the nature or sufficiency of any payment received by the Collateral Agent,
or to present or file any claim or notice, or to take any action with respect to
the Pledged Collateral or any part thereof or the moneys due or to become due in
respect thereof or any property covered thereby. The Collateral Agent and the
other Secured Parties shall be accountable only for amounts actually received as
a result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to any
Pledgor for any act or failure to act hereunder, except for their own gross
negligence or wilful misconduct.
Section 4.08. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 4.09. Waivers; Amendment. (a) No failure or delay by
the Applicable Agent, the Collateral Agent, any Issuing Bank or any Lender in
exercising any right, power or remedy hereunder or under any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy, or any abandonment or discontinuance of steps
to
21
enforce such a right, power or remedy, preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The rights, powers
and remedies of the Administrative Agent, the Collateral Agent, any Issuing Bank
and the Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights, powers or remedies that they would otherwise
have. No waiver of any provision of this Agreement or consent to any departure
by any Loan Party therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section 4.09, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making of
a Loan or the issuance of a Letter of Credit shall not be construed as a waiver
of any Default or Event of Default, regardless of whether the Administrative
Agent, the Collateral Agent, any Lender or any Issuing Bank may have had notice
or knowledge of such Default or Event of Default at the time. No notice or
demand on any Loan Party in any case shall entitle any Loan Party to any other
or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Collateral Agent and the Loan Party or Loan Parties
with respect to which such waiver, amendment or modification is to apply,
subject to any consent required in accordance with Section 9.08 of the Credit
Agreement.
Section 4.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 4.10.
22
Section 4.11. Severability. In the event any one or more of
the provisions contained in this Agreement or in any other Loan Document should
be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
Section 4.12. Counterparts. This Agreement may 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 contract, and shall become
effective as provided in Section 4.04.
Section 4.13. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
Section 4.14. Jurisdiction; Consent to Service of Process. (a)
Each party to this Agreement hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Collateral Agent, any Issuing Bank or
any Lender may otherwise have to bring any action or proceeding relating
23
to this Agreement or any other Loan Document against any Pledgor, or its
properties, in the courts of any jurisdiction.
(b) Each party to this Agreement hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any New York State or federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 4.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
Section 4.15. Termination or Release. (a) This Agreement, the
pledge hereunder and all other security interests granted hereby and the pledge
hereunder shall terminate when all the Foreign Obligations have been
indefeasibly paid in full in cash and the Revolving Credit Lenders have no
further commitment to lend under the Credit Agreement and the Revolving L/C
Exposure has been reduced to zero.
(b) A Pledgor shall automatically be released from its
obligations hereunder and the security interests in the Pledged Collateral of
such Pledgor shall be automatically released upon the consummation of any
transaction permitted by the Credit Agreement as a result of which such Pledgor
ceases to be a subsidiary of Holdings; provided that the Required Lenders shall
have consented to such transaction (to the extent such consent is required by
the Credit Agreement) and the terms of such consent did not provide otherwise.
(c) Upon any sale or other transfer by any Pledgor of any
Pledged Collateral that is permitted under the Credit Agreement to any person
that is not a Pledgor, or upon the effectiveness of any written consent to the
24
release of the security interest granted hereby in any Pledged Collateral
pursuant to Section 9.08 of the Credit Agreement, the security interest in such
Pledged Collateral shall be automatically released.
(d) In connection with any termination or release pursuant to
paragraph (a), (b) or (c) of this Section 4.15, the Collateral Agent shall
execute and deliver to any Pledgor, at such Pledgor's expense, all documents
that such Pledgor shall reasonably request to evidence such termination or
release. Any execution and delivery of documents pursuant to this Section 4.15
shall be without recourse to or warranty by the Collateral Agent.
Section 4.16. Additional Subsidiaries. Upon execution and
delivery by the Collateral Agent and any subsidiary that is required to become a
party hereto by Section 5.10 of the Credit Agreement of an instrument in the
form of Exhibit I hereto, such subsidiary shall become a Pledgor hereunder with
the same force and effect as if originally named as a Pledgor herein. The
execution and delivery of any such instrument shall not require the consent of
any other party to this Agreement. The rights and obligations of each party to
this Agreement shall remain in full force and effect notwithstanding the
addition of any new party to this Agreement.
25
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
TRW AUTOMOTIVE ACQUISITION CORP.,
By /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
EACH OF THE PLEDGORS LISTED
ON SCHEDULE I HERETO,
By /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
JPMORGAN CHASE BANK, as COLLATERAL AGENT
By /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Schedule I
to the First-Tier
Subsidiary Pledge Agreement
Pledgors
Schedule II
to the First-Tier
Subsidiary Pledge Agreement
EQUITY INTERESTS
Number of Number and Percentage of
Issuer Registered Class of Equity Equity
Certificate Owner Interest Interests
----------- ----- -------- ---------
Schedule III
to the First-Tier
Subsidiary Pledge Agreement
LIMITED LIABILITY
COMPANY INTERESTS
Company Name Interest
------------ --------
Exhibit I
to the First-Tier
Subsidiary Pledge Agreement
SUPPLEMENT NO. __ dated and effective as of
[ ] (this "Supplement"), to the First-Tier
Subsidiary Pledge Agreement dated and effective as of
February 28, 2003 (the "First-Tier Subsidiary Pledge
Agreement"), between [ ], a [Delaware]
[corporation], the U.S. Borrower and JPMORGAN CHASE
BANK, a New York banking corporation ("JPMCB"), as
Collateral Agent (in such capacity, the "Collateral
Agent") for the Secured Parties (as defined herein).
A. Reference is made to the Credit Agreement dated and
effective as of February 27, 2003 (as amended, supplemented, waived or otherwise
modified from time to time, the "Credit Agreement"), among TRW Automotive
Holdings Corp., TRW Automotive Intermediate Holdings Corp., the U.S. Borrower,
the Foreign Subsidiary Borrowers party thereto, the Lenders party thereto (the
"Lenders"), JPMCB, as Administrative Agent and Collateral Agent, Credit Suisse
First Boston, acting through its Cayman Islands Branch, Xxxxxx Commercial Paper
Inc., and Deutsche Bank Securities Inc., as Co-Syndication Agents, and Bank of
America, N.A., as Documentation Agent.
B. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement
and the First-Tier Subsidiary Pledge Agreement referred to therein.
C. The Pledgors have entered into the First-Tier Subsidiary
Pledge Agreement in order to induce the Revolving Credit Lenders to make Loans.
Section 4.16 of the First-Tier Subsidiary Pledge Agreement provides that
additional Subsidiaries may become Pledgors under the First-Tier Subsidiary
Pledge Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Subsidiary (the "New Subsidiary") is executing this
Supplement in accordance with the requirements of the Credit Agreement to become
a Pledgor under the First-Tier Subsidiary Pledge Agreement in order
2
to induce the Revolving Credit Lenders to make additional Loans and as
consideration for Loans previously made.
Accordingly, the Collateral Agent and the New Subsidiary agree
as follows:
SECTION 1. In accordance with Section 4.16 of the First-Tier
Subsidiary Pledge Agreement, the New Subsidiary by its signature below becomes a
Pledgor under the First-Tier Subsidiary Pledge Agreement with the same force and
effect as if originally named therein as a Pledgor and the New Subsidiary hereby
(a) agrees to all the terms and provisions of the First-Tier Subsidiary Pledge
Agreement applicable to it as a Pledgor thereunder and (b) represents and
warrants that the representations and warranties made by it as a Pledgor
thereunder are true and correct, in all material respects, on and as of the date
hereof. In furtherance of the foregoing, the New Subsidiary, as security for the
payment and performance in full of the Foreign Obligations (as defined in the
First-Tier Subsidiary Pledge Agreement), does hereby create and grant to the,
its successors and assigns, for the ratable benefit of the Secured Parties,
their successors and assigns, a security interest in and Lien on all the New
Subsidiary's right, title and interest in and to the Pledged Collateral (as
defined in the First-Tier Subsidiary Pledge Agreement) of the New Subsidiary.
Each reference to a "Pledgor" or "Pledgors" in the First-Tier Subsidiary Pledge
Agreement shall be deemed to include the New Subsidiary. The First-Tier
Subsidiary Pledge Agreement is hereby incorporated herein by reference.
SECTION 2. The New Subsidiary represents and warrants to the
Collateral Agent and the other Secured Parties that this Supplement 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 (i) the effects of bankruptcy, insolvency, moratorium,
reorganization, fraudulent conveyance or other similar laws affecting creditors'
rights generally, (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and
(iii)implied covenants of good faith and fair dealing.
SECTION 3. This Agreement may 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 contract. This Supplement shall become
3
effective when (a) the Collateral Agent shall have received a counterpart of
this Supplement that bears the signature of the New Subsidiary and (b) the
Collateral Agent has executed a counterpart hereof.
SECTION 4. The New Subsidiary hereby represents and warrants
that (a) set forth on Schedule I attached hereto is a true and correct schedule
of all the Pledged Securities of the New Subsidiary and (c) set forth under its
signature hereto, is the true and correct legal name of the New Subsidiary, its
jurisdiction of formation and the location of its chief executive office.
SECTION 5. Except as expressly supplemented hereby, the
First-Tier Subsidiary Pledge Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In the event any one or more of the provisions
contained in this Supplement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and in the First-Tier Subsidiary Pledge Agreement
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be
in writing and given as provided in Section 4.01 of the First-Tier Subsidiary
Pledge Agreement.
SECTION 9. The New Subsidiary agrees to reimburse the
Collateral Agent for its reasonable out-of-pocket expenses in connection with
this Supplement, including the reasonable fees, disbursements and other charges
of counsel for the Collateral Agent.
4
IN WITNESS WHEREOF, the New Subsidiary and the have duly
executed this Supplement to the First-Tier Subsidiary Pledge Agreement as of the
day and year first above written.
[Name Of New Subsidiary],
By
----------------------------------------
Name:
Title:
Legal Name:
Jurisdiction of Formation:
Location of Chief Executive Office:
JPMORGAN CHASE BANK, as
COLLATERAL AGENT,
By
----------------------------------------
Name:
Title:
Schedule I to
Supplement No. __
to the First-Tier
Subsidiary Pledge Agreement
Pledged Securities of the New Subsidiary
----------------------------------------
EQUITY INTERESTS
Number of Number and Percentage of
Issuer Registered Class of Equity Equity
Certificate Owner Interest Interests
----------- ----- -------- ---------
