AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT
Exhibit 10.3
AMENDMENT NO. 1 TO
LOAN AND SECURITY AGREEMENT
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT, dated as of March 24, 2010 (this “Amendment
No. 1”), is by and among Wachovia Capital Finance Corporation (New England), a Massachusetts
corporation, in its capacity as agent pursuant to the Loan Agreement defined below (in such
capacity, “Agent”), the parties to the Loan Agreement as lenders (individually, each a “Lender” and
collectively, “Lenders”), Viasystems Technologies Corp., L.L.C., a Delaware limited liability
company (“Technologies”), Merix Corporation, an Oregon corporation (“Merix” and, together with
Technologies, each individually a “Borrower” and collectively, “Borrowers”), Viasystems, Inc., a
Delaware corporation (“Parent”), Viasystems International, Inc., a Delaware corporation
(“International”) and Merix Asia, Inc., an Oregon corporation (“Asia” and together with Parent and
International, each individually a “Guarantor” and collectively, “Guarantors”).
W I T N E S S E T H :
WHEREAS, Agent, Lenders, Borrowers and Guarantors have entered into financing arrangements
pursuant to which Lenders (or Agent on behalf of Lenders) may make loans and advances and provide
other financial accommodations to Borrowers as set forth in the Loan and Security Agreement, dated
February 16, 2010, by and among Agent, Lenders, Borrowers and Guarantors (as the same now exists or
may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the
“Loan Agreement”) and other agreements, documents and instruments referred to therein or at any
time executed or delivered in connection therewith or related thereto, including, without
limitation, this Amendment No. 1 (all of the foregoing, including the Loan Agreement, as the same
now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, being collectively referred to herein as the “Financing Agreements”);
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders agree to make certain
amendments to the Loan Agreement, and Agent and Lenders are willing to make such amendments,
subject to the terms and conditions set forth herein; and
WHEREAS, by this Amendment Xx. 0, Xxxxx, Xxxxxxx, Borrowers and Guarantors intend to evidence
such amendments;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements and covenants
contained herein, the parties hereto agree as follows:
1. Definitions.
(a) Additional Definition. As used herein or in the Financing Agreements, the term
“Amendment No. 1” shall mean Amendment No. 1 to Loan and Security Agreement, dated as of March 24,
2010 by and among Borrowers, Guarantors, Agent and Lenders, as the same now exists or may hereafter
be amended, modified, supplemented, extended, renewed, restated or replaced, and the Loan Agreement
and the other Financing Agreements shall be deemed and are hereby amended to include, in addition
and not in limitation, such definition.
(b) Interpretation. For purposes of this Amendment No. 1, all terms used herein which
are not otherwise defined herein, including but not limited to, those terms used in the recitals
hereto, shall have the respective meanings assigned thereto in the Loan Agreement as amended by
this Amendment No. 1.
2. Financial Statements. Section 9.6(a)(i) of the Loan Agreement is hereby amended by
adding the following phrase immediately before the comma appearing at the end of such Section: “;
provided, that, the foregoing financial statements and related materials for each
of the fiscal months ended February 28, 2010, March 31, 2010 and April 30, 2010 shall not be
required to be delivered until May 31, 2010.”
3. Representations, Warranties and Covenants. Each Borrower and Guarantor, jointly
and severally, represents and warrants to Agent and Lenders as follows, which representations and
warranties are continuing and shall survive the execution and delivery hereof, the truth and
accuracy which are a continuing condition of the making or providing of any Loans to Borrowers:
(a) this Amendment No. 1 and each other agreement (if any) to be executed and delivered by
each Borrower and Guarantor in connection herewith (together with this Amendment No. 1, the
“Amendment Documents”) has been duly authorized, executed and delivered by all necessary action of
each Borrower and Guarantor, and is in full force and effect, and the agreements and obligations of
each Borrower and Guarantor contained herein constitute legal, valid and binding obligations of
Borrowers and Guarantors enforceable against Borrowers and Guarantors in accordance with their
terms, except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting generally the enforcement of creditors’ rights and except to
the extent that availability of the remedy of specific performance or injunctive relief is subject
to the discretion of the court before which any proceeding therefor may be brought;
(b) no action of, or filing with, or consent of any Governmental Authority, and no approval or
consent of any other Person, is or will be required to authorize, or is or will be otherwise
required in connection with, the execution, delivery and performance by any Borrower or Guarantor
of this Amendment No. 1;
(c) on the date hereof, no Default or Event of Default exists or has occurred and is
continuing;
(d) the execution, delivery and performance of this Amendment No. 1 and the other Amendment
Documents (i) is within each Borrower’s and Guarantor’s limited liability company or corporate
powers and (ii) are not in contravention of law or the terms of any Borrower’s or Guarantor’s
certificate or articles of incorporation or formation, operating agreement, by laws, or other
organizational documentation, or any indenture, agreement or undertaking to which any Borrower or
Guarantor is a party or by which any Borrower or Guarantor or its property is bound; and
(e) all of the representations and warranties set forth in the Loan Agreement and the other
Financing Agreements, each as amended hereby, are true and correct in all material
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respects on and as of the date hereof, as if made on the date hereof, except to the extent any
such representation or warranty is made as of a specified date, in which case such representation
or warranty shall have been true and correct as of such date.
4. Conditions Precedent. The amendments contained herein shall only be effective upon
the satisfaction of each of the following conditions precedent in a manner satisfactory to Agent:
(a) Agent shall have received counterparts of this Amendment No. 1, duly authorized, executed
and delivered by Borrowers, Guarantors and Required Lenders; and
(b) no Default or Event of Default shall exist or have occurred and be continuing.
5. General.
(a) Effect of this Amendment. Except as expressly provided herein, no other changes
or modifications to the Financing Agreements are intended or implied, and in all other respects the
Financing Agreements are hereby specifically ratified, restated and confirmed by all parties hereto
as of the date hereof. To the extent any conflict exists between the terms of this Amendment No. 1
and the other Financing Agreements, the terms of this Amendment No. 1 shall control.
(b) Governing Law. The validity, interpretation and enforcement of this Amendment No.
1 and any dispute arising out of the relationship between the parties hereto, whether in contract,
tort, equity or otherwise, shall be governed by the internal laws of the State of New York but
excluding any principles of conflicts of law or other rule of law that would cause the application
of the law of any jurisdiction other than the laws of the State of New York.
(c) Jury Trial Waiver. BORROWERS, GUARANTORS, AGENT AND LENDERS EACH HEREBY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS
AMENDMENT NO. 1 OR ANY OF THE OTHER FINANCING AGREEMENTS OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AMENDMENT NO. 1 OR ANY OF THE
OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. BORROWERS,
GUARANTORS, AGENT AND LENDERS EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY BORROWER, ANY
GUARANTOR, ANY AGENT OR ANY LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AMENDMENT NO.
1 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
(d) Binding Effect. This Amendment No. 1 shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and assigns.
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(e) Waiver, Modification, Etc. No provision or term hereof may be modified, altered,
waived, discharged or terminated orally, but only by an instrument in writing executed by the party
against whom such modification, alteration, waiver, discharge or termination is sought to be
enforced.
(f) Further Assurances. Borrowers and Guarantors shall execute and deliver such
additional documents and take such additional action as may be reasonably requested by Agent to
effectuate the provisions and purposes of this Amendment No. 1.
(g) Entire Agreement. This Amendment No. 1 represents the entire agreement and
understanding concerning the subject matter hereof among the parties hereto, and supersedes all
other prior agreements, understandings, negotiations and discussions, representations, warranties,
commitments, proposals, offers and contracts concerning the subject matter hereof, whether oral or
written.
(h) Counterparts, etc. This Amendment No. 1 may be executed in any number of
counterparts, each of which shall be an original, but all of which taken together shall constitute
one and the same agreement. Delivery of an executed counterpart of this Amendment No. 1 by
telefacsimile or other electronic method of transmission shall have the same force and effect as
delivery of an original executed counterpart of this Amendment No. 1. Any party delivering an
executed counterpart of this Amendment No. 1 by telefacsimile or other electronic method of
transmission shall also deliver an original executed counterpart of this Amendment No. 1, but the
failure to do so shall not affect the validity, enforceability, and binding effect of this
Amendment No. 1.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed
and delivered by their authorized Officers as of the date first above written.
| BORROWERS: | ||||
| MERIX CORPORATION | ||||
| By: | /s/ Xxxxxx X. Xxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
| VIASYSTEMS TECHNOLOGIES CORP., L.L.C. | ||||
| By: | /s/ Xxxxxx X. Xxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
| GUARANTORS: | ||||
| VIASYSTEMS, INC. | ||||
| By: | /s/ Xxxxxx X. Xxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
| VIASYSTEMS INTERNATIONAL, INC. | ||||
| By: | /s/ Xxxxxx X. Xxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
| MERIX ASIA, INC. | ||||
| By: | /s/ Xxxxxx X. Xxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
[Signature Page to Amendment No. 1 to
Loan and Security Agreement]
Loan and Security Agreement]
| AGENT: | ||||
| WACHOVIA CAPITAL FINANCE CORPORATION (NEW ENGLAND), as Agent |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
| LENDERS: | ||||
| WACHOVIA CAPITAL FINANCE CORPORATION (NEW ENGLAND) |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Amendment No. 1 to
Loan and Security Agreement]
Loan and Security Agreement]
