EXHIBIT 10.9
AMENDED AND RESTATED PERFORMANCE GUARANTY
This Amended and Restated Performance Guaranty (this "Guaranty"), dated as
of December 31, 2004, is executed by TRW Automotive Inc. (f/k/a TRW Automotive
Acquisition Corp.), a Delaware corporation ("TRW Acquisition") and by each of
the Persons identified on Schedule IV (such Persons, together with TRW
Acquisition, collectively, the "Performance Guarantors" and each a "Performance
Guarantor") in favor of TRW Automotive Receivables LLC, a Delaware limited
liability company (the "Transferor"), TRW Automotive Global Receivables LLC, a
Delaware limited liability company (the "Borrower"), and JPMorgan Chase Bank,
N.A., as administrative agent on behalf of the Secured Parties under the
Receivables Loan Agreement referred to below (in such capacity, the
"Administrative Agent"; the Transferor, the Borrower, the Administrative Agent
(on behalf of itself and the other Secured Parties) and their respective
successors and assigns being referred to herein, collectively, as the
"Recipients").
RECITALS
1. The Transferor has entered into the Originator Purchase Agreement
with the Originators, pursuant to which the Originators, subject to the terms
and conditions contained therein, have sold and will continue to sell all of
their respective right, title and interest in their respective Receivables to
the Transferor.
2. In order to finance its purchases of Receivables from the
Originators pursuant to the Originator Purchase Agreement, the Transferor has
entered into the Transfer Agreement pursuant to which the Transferor, subject to
the terms and conditions contained therein, has sold and will continue to sell
all of its right, title and interest in the Receivables acquired by the
Transferor pursuant to the Originator Purchase Agreement.
3. In order to fund its purchases under the Transfer Agreement, the
Borrower has entered into the Amended and Restated Receivables Loan Agreement of
even date herewith (as amended, restated, supplemented or otherwise modified
from time to time, the "Receivables Loan Agreement") among the Borrower, the
parties thereto as "Conduit Lenders," "Committed Lenders" and "Funding Agents"
and the Administrative Agent, pursuant to which the Conduit Lenders may, in
their sole discretion, make Loans requested by the Borrower from time to time,
and if a Conduit Lender in any Lender Group elects not to make any such Loan,
the Committed Lenders in such Lender Group will make such Loan, in each case
subject to the terms and conditions contained therein.
4. Each of the Originators, the Transferor and the Borrower is a
Subsidiary of TRW Acquisition and TRW Acquisition is expected to receive
substantial direct and indirect benefits from the sales of Receivables by the
Originators to the Transferor pursuant to the Originator Purchase Agreement and
(b) the servicing of the Receivables by the Collection Agent Parties pursuant to
the Servicing Agreement (which benefits are hereby acknowledged).
5. As an inducement for (a) the Transferor to continue to purchase
Receivables from the Originators pursuant to the Originator Purchase Agreement,
(b) the Borrower to continue to purchase Receivables pursuant to the Transfer
Agreement, and (c) the Administrative Agent, the Funding Agents, the Lenders and
the other Secured Parties to continue to participate in the transactions
contemplated by the Receivables Loan Agreement, the Performance Guarantors have
agreed to jointly and severally guaranty the due and punctual performance by
each Originator and Collection Agent Party of their respective Obligations (as
hereinafter defined) under the Transaction Documents.
6. The Performance Guarantors, the Transferor, the Borrower and the
Administrative Agent are parties to a Performance Guaranty dated as of February
28, 2003 (as amended prior to the date hereof, the "Existing Performance
Guaranty").
7. On the terms and conditions set forth herein, the parties hereto have
agreed to amend and restate the Existing Performance Guaranty in its entirety.
AGREEMENT
NOW, THEREFORE, each Performance Guarantor hereby agrees as follows:
Section 1. Definitions. Capitalized terms used herein and not
defined herein shall have the respective meanings assigned thereto in the
Receivables Loan Agreement. In addition:
"Obligations" means, collectively, all covenants, agreements, terms,
conditions and indemnities to be performed and observed by each Originator
(whether in its capacity as a "Seller" under the Originator Purchase Agreement,
a Collection Agent Party or otherwise) under and pursuant to the Originator
Purchase Agreement, the Servicing Agreement and each other Transaction Document
to which such Originator is a party, including, without limitation, the due and
punctual payment when due of all sums which are or may become due and owing by
such Originator under such Transaction Documents, whether for fees, expenses
(including counsel fees), indemnified amounts or otherwise, whether upon any
termination or for any other reason and including, without limitation, interest,
fees and other obligations that accrue after the commencement of any bankruptcy,
insolvency or similar proceeding (in each case whether or not allowed as a claim
in such proceeding). For the avoidance of doubt, references in this Guaranty to
an "Originator" shall be deemed to refer to such party in its capacity as an
Originator, a Seller, a Collection Agent Party and in any other capacity it may
have under the Transaction Documents.
Section 2. Guaranty of Performance of Obligations. Each Performance
Guarantor hereby guarantees to each Recipient and each other Secured Party
(collectively, the "Beneficiaries"), the full and punctual payment and
performance when due by each Originator of its respective Obligations. This
Guaranty is an absolute, unconditional and continuing guaranty of the full and
punctual payment and performance of all of the respective Obligations of each
Originator under the Transaction Documents and each other document executed and
delivered by such Originator pursuant to the Transaction Documents and is in no
way conditioned upon any
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requirement that any Beneficiary first attempt to collect from such Originator,
any other Performance Guarantor or any other Person, any amounts owing by such
Originator to such Beneficiary or resort to any collateral security, any balance
of any deposit account or credit on the books of such Beneficiary in favor of
such Originator or any other Person or other means of obtaining payment. Should
any Originator default in the payment or performance of any of its respective
Obligations, each Beneficiary (or its assigns) may require the immediate
performance thereof by any Performance Guarantor and require any payment of any
Obligations that are then due and payable to such Beneficiary (or its assigns)
to be paid by any Performance Guarantor, without other demand or notice of any
nature (other than as expressly provided herein), all of which are hereby
expressly waived by each Performance Guarantor.
Section 3. Performance Guarantors' Further Agreements to Pay. Each
Performance Guarantor further agrees, as the principal obligor and not as a
guarantor only, to pay to each Beneficiary (and its assigns), forthwith upon
demand in funds immediately available to such Beneficiary, all reasonable costs
and expenses (including court costs and legal expenses) incurred or expended by
such Beneficiary in connection with the enforcement of this Guaranty, together
with interest on amounts recoverable under this Guaranty from the time when such
amounts become due until payment, at a rate of interest (computed for the actual
number of days elapsed based on a year of 365 or 366 days, as the case may be)
equal to the Base Rate plus 2% per annum, such rate of interest changing when
and as the Base Rate changes; provided, that in no event shall such rate exceed
the maximum rate permitted by applicable law.
Section 4. Waivers by each Performance Guarantor. Each Performance
Guarantor waives, to the maximum extent permitted by applicable law, (a) notice
of acceptance of this Guaranty, (b) presentment, demand, protest, notice of any
action taken or omitted by any Beneficiary (or its assigns) in reliance on this
Guaranty, and (c) any requirement that any Beneficiary (or its assigns) be
diligent or prompt in making demands under this Guaranty, giving notice of any
Termination Event, other default or omission by any Originator or asserting any
other rights of such Beneficiary under this Guaranty. Each Performance Guarantor
also waives, to the maximum extent permitted by applicable law, any right
(whether now existing or hereafter arising) to require a Beneficiary, as a
condition to the enforcement of this Guaranty, (x) to accelerate the
Obligations, (y) to give notice to such Performance Guarantor of the terms, time
and place of any sale of any security for the Obligations and (z) to proceed
against any Originator or any other guarantor or to proceed against or exhaust
any security for the Obligations. Each Performance Guarantor warrants that it
has adequate means to obtain from each Originator, on a continuing basis,
information concerning the financial condition of such Originator, and that it
is not relying on any Beneficiary to provide such information, now or in the
future. Each Performance Guarantor also irrevocably waives, to the maximum
extent permitted by applicable law, all defenses (i) that at any time may be
available in respect of the Obligations by virtue of any statute of limitations,
valuation, stay, moratorium law or other similar law now or hereafter in effect
or (ii) that arise under the law of suretyship, including impairment of
collateral. Each Beneficiary (and its assigns) shall be at liberty, without
giving notice to or obtaining the assent of any Performance Guarantor and
without relieving any Performance Guarantor of any liability under this
Guaranty, to deal with each Originator and with each other party who now is or
after the date hereof becomes liable in any manner for any of the Obligations,
in such manner as such Beneficiary in its sole discretion deems fit, and to this
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end each Performance Guarantor agrees that, to the maximum extent permitted by
applicable law, the validity and enforceability of this Guaranty, including
without limitation, the provisions of Section 8 hereof, shall not be impaired or
affected by any of the following: (a) any extension, modification or renewal of,
or indulgence with respect to, or substitutions for, the Obligations or any part
thereof or any agreement relating thereto at any time; (b) any failure or
omission to enforce any right, power or remedy with respect to the Obligations
or any part thereof or any agreement relating thereto, or any collateral
securing the Obligations or any part thereof; (c) any waiver of any right, power
or remedy in connection with any Termination Event or default with respect to
the Obligations or any part thereof or any agreement relating thereto; (d) any
release, surrender, compromise, settlement, waiver, subordination or
modification, with or without consideration, of any other obligation of any
person or entity with respect to the Obligations or any part thereof; (e) the
enforceability or validity of the Obligations or any part thereof, or any
security therefor, or the genuineness, enforceability or validity of any
agreement relating thereto or with respect to the Obligations or any part
thereof; (f) the application of payments received from any source to the payment
of any payment Obligations of any Originator or any part thereof or amounts
which are not covered by this Guaranty even though any Beneficiary (or its
assigns) might lawfully have elected to apply such payments to any part or all
of the payment Obligations of any Originator or to amounts which are not covered
by this Guaranty; (g) the existence of any claim, setoff or other rights which
any Performance Guarantor may have at any time against any Originator in
connection herewith or any unrelated transaction; (h) any assignment or transfer
of the Obligations or any part thereof; (i) any failure on the part of any
Originator to perform or comply with any term of the Transaction Documents or
any other document executed in connection therewith or delivered thereunder; (j)
any disability or other defense of any Person with respect to the Obligations,
whether consensual or arising by operation of law; or (k) any other circumstance
whatsoever (with or without notice to or knowledge of any Performance Guarantor)
which constitutes, or might be construed to constitute, an equitable or legal
discharge of such Performance Guarantor under this Guaranty, all whether or not
such Performance Guarantor shall have had notice or knowledge of any act or
omission referred to in the foregoing clauses (a) through (j) of this Section 4.
Section 5. Unenforceability of Obligations Against An Originator.
Notwithstanding (a) any change of ownership of any Originator or the insolvency,
bankruptcy or any other change in the legal status of any Originator; (b) the
change in or the imposition of any law, decree, regulation or other governmental
act which does or might impair, delay or in any way affect the validity,
enforceability or the payment when due of the Obligations; (c) the failure of
any Originator or any Performance Guarantor to maintain in full force, validity
or effect or to obtain or renew when required all governmental and other
approvals, licenses or consents required in connection with the Obligations or
this Guaranty, or to take any other action required in connection with the
performance of all obligations pursuant to the Obligations or this Guaranty; or
(d) if any of the moneys included in the Obligations have become unrecoverable
from any Originator for any other reason other than indefeasible payment in full
of the payment Obligations in accordance with their terms, this Guaranty shall
nevertheless be binding on each Performance Guarantor. This Guaranty shall be in
addition to any other guaranty or other security for the Obligations, and it
shall not be rendered unenforceable by the invalidity of any such other guaranty
or security. In the event that acceleration of the time for payment of any of
the Obligations is stayed upon the insolvency, bankruptcy or reorganization of
any Originator or
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for any other reason with respect to any Originator, all such amounts then due
and owing with respect to the Obligations under the terms of the Agreements, or
any other agreement evidencing, securing or otherwise executed in connection
with the Obligations, shall be immediately due and payable by the Performance
Guarantors.
Section 6. Representations and Warranties. Each Performance
Guarantor (with respect to paragraphs (a), (b), (c), (d), (m) and (o) below) and
TRW Acquisition (with respect to each other paragraph in this Section 6) hereby
represents and warrants to each Beneficiary as of the date hereof and as of the
date of each purchase under the Originator Purchase Agreement, each purchase
under the Transfer Agreement and each Loan and Release under the Receivables
Loan Agreement (except that the representations set forth in paragraphs (g), (h)
and (k) below shall be required to be made only as of the date of each Loan and
each Reporting Date) that:
(a) Such Performance Guarantor is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization, and, is
duly qualified to do business, and is in good standing as a foreign corporation
or company, in every jurisdiction where the nature of its business requires it
to be so qualified, unless the failure to so qualify would not reasonably be
expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by such Performance
Guarantor of this Guaranty (i) have been duly authorized by all necessary
corporate or company action and (ii) will not (A) violate (1) such Performance
Guarantor's organizational documents, (2) any Law applicable to such Performance
Guarantor or (3) any provision of any indenture, certificate of designation for
preferred stock, agreement or other instrument to which such Performance
Guarantor is a party or by which it or any of its property is or may be bound or
(B) be in conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or both) a default under, give rise to a right of or
result in any cancellation of a material right or acceleration of any material
payment obligations under any such indenture, certificate of designation for
preferred stock, agreement or other instrument, where any such conflict,
violation, breach or default referred to in clause (ii) of this Section 6(b),
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect and (iii) do not result in or require the creation of
any Adverse Claim upon or with respect to any of its properties. This Guaranty
has been duly executed and delivered by such Performance Guarantor.
(c) No authorization or approval or other action by, and no notice
to or filing with, any Official Body is required for the due execution, delivery
and performance by such Performance Guarantor of this Guaranty or any other
document to be delivered by it hereunder, except for such as have been obtained
or made and are in full force and effect.
(d) This Guaranty constitutes the legal, valid and binding
obligation of such Performance Guarantor enforceable against such Performance
Guarantor in accordance with its terms, subject to (i) the effects of
bankruptcy, insolvency, moratorium, reorganization 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.
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(e) TRW Acquisition has heretofore furnished to each Beneficiary
(i) combined balance sheets and combined statements of income, cash flows and
owners' equity of TRW Automotive Inc. and its subsidiaries as of and for the
fiscal years ended December 31, 2001, December 31, 2002 and December 31, 2003,
audited by and accompanied by the opinion of Ernst & Young LLP, independent
public accountants, and (ii) a consolidated balance sheet and consolidated
statements of income of Holdings and subsidiaries as of and for the nine-month
period ended September 24, 2004, reviewed by Ernst & Young LLP pursuant to
Statement of Auditing Standards No. 100. Such financial statements present
fairly, in all material respects, the financial position and results of
operations of TRW Automotive Inc. and its subsidiaries and Holdings and its
subsidiaries, as applicable, as of such dates and for such periods. None of
Holdings, Intermediate Holdings, TRW Acquisition or any of their respective
Subsidiaries has or shall have as of the Amendment Effective Date any Guarantee,
contingent liability or liability for Taxes, or any long-term lease or unusual
forward or long-term commitment, including any interest rate or foreign currency
hedging transaction, that individually is material and is not reflected in the
foregoing statements or the notes thereto, other than pursuant to the
Transaction Documents and the Loan Documents (as defined in the Senior Credit
Agreement) or otherwise in connection with the Transactions (as defined in the
Senior Credit Agreement) or in respect of obligations under purchase and sale
agreements entered into in the ordinary course of business. Such financial
statements were prepared in accordance with GAAP (subject to normal year-end
audit adjustments and the absence of footnotes in the case of clause (ii)
above).
(f) [Reserved].
(g) Since December 31, 2003, there has been no Material Adverse
Effect.
(h) Except as set forth on Schedule I, as of each Borrowing Date
and Reporting Date, there are no actions, suits or proceedings at law or in
equity or by or before any Official Body or in arbitration, or, to the actual
knowledge of a Responsible Officer of TRW Acquisition, threatened in writing
against or affecting TRW Acquisition or any of its Subsidiaries or any of their
respective business, property or rights as to which in either case an adverse
determination is reasonably probable and which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
(i) All information, exhibits, documents, books, records and
reports furnished in writing at any time by or on behalf of TRW Acquisition in
connection with the Transaction Documents is accurate in all material respects
as of its date or (except as otherwise disclosed to the Recipients at such time)
as of the date so furnished. The Offering Memorandum is accurate in all material
respects as of its date and does not contain any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances under which they were made,
not misleading. All financial statements and other financial data which have
been or shall hereafter be furnished by TRW Acquisition to any Beneficiary
pursuant to Section 7 fairly present, and will fairly present, in all material
respects, the financial condition of TRW Acquisition and its consolidated
subsidiaries as of the dates set forth therein and the results of operations of
TRW Acquisition and its consolidated subsidiaries for the periods ended on such
dates.
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(j) TRW Acquisition is not an "investment company" as defined in,
or subject to regulation under, the Investment Company Act of 1940, as amended.
(k) TRW Acquisition and its ERISA Affiliates are in compliance
with the applicable provisions of ERISA and the provisions of the IRC relating
to Plans and the regulations and published interpretations thereunder and any
similar applicable non-U.S. law, except for such noncompliance that could not
reasonably be expected to have a Material Adverse Effect. No Reportable Event
has occurred during the past five years as to which TRW Acquisition or any ERISA
Affiliate was required to file a report with the PBGC, other than reports that
have been filed and reports the failure of which to file could not reasonably be
expected to have a Material Adverse Effect. As of the Amendment Effective Date,
the present value of all benefit liabilities under each Plan of TRW Acquisition
and the ERISA Affiliates (based on those assumptions used to fund such Plan),
did not as of the last annual valuation date applicable thereto for which a
valuation is available, exceed the value of the assets of such Plan, and the
present value of all benefit liabilities of all underfunded Plans (on a
termination basis and based on those assumptions used to fund each such Plan by
an amount that could reasonably be expected to have a Material Adverse Effect),
as of the last annual valuation dates applicable thereto for which valuations
are available, exceed the value of the assets of all such underfunded Plans by
an amount that could reasonably be expected to have a Material Adverse Effect.
None of TRW Acquisition and the ERISA Affiliates has incurred or could
reasonably be expected to incur any Withdrawal Liability that could reasonably
be expected to have a Material Adverse Effect. None of TRW Acquisition and the
ERISA Affiliates has received any written notification that any Multiemployer
Plan is in reorganization or has been terminated within the meaning of Title IV
of ERISA, or has knowledge that any Multiemployer Plan is reasonably expected to
be in reorganization or to be terminated, where such reorganization or
termination has had or could reasonably be expected to have, through increases
in the contributions required to be made to such Plan or otherwise, a Material
Adverse Effect.
(l) Except as set forth on Schedule III, TRW Acquisition has filed
or caused to be filed all material tax returns and has paid or caused to be paid
or made adequate provision for all material taxes due and payable by it and all
material assessments received by it except to the extent that non-payment: (i)
is being contested in good faith; or (ii) could not reasonably be expected to
result in a Material Adverse Effect.
(m) The direct and indirect benefits to such Performance Guarantor
from the transactions contemplated by the Transaction Documents provide fair
consideration and reasonably equivalent value to such Performance Guarantor for
the obligations it undertakes pursuant to this Guaranty.
(n) Each Originator is a wholly-owned direct or indirect
Subsidiary of TRW Acquisition.
(o) Such Performance Guarantor's obligations hereunder rank at
least pari passu with all other unsecured unsubordinated Indebtedness of such
Performance Guarantor.
Section 7. Covenants. Until the Final Payout Date, TRW Acquisition
will:
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(a) Reporting. Maintain, for itself and each of its Subsidiaries, a
system of accounting established and administered in accordance with GAAP, and
furnish or cause to be furnished to each Recipient and each Funding Agent:
(i) Annual Reporting. Within 90 days (or such shorter period as the
Securities and Exchange Commission shall specify for the filing of Annual
Reports on Form 10-K) after the end of each fiscal year, a consolidated
balance sheet and related statements of operations, cash flows and owners'
equity showing the financial position of TRW Acquisition and its
consolidated Subsidiaries as of the close of such fiscal year and the
consolidated results of their operations during such year, all audited by
independent public accountants of recognized national standing reasonably
acceptable to the Administrative Agent and accompanied by an opinion of
such accountants (which shall not be qualified in any material respect) to
the effect that such consolidated financial statements fairly present, in
all material respects, the financial position and results of operations of
TRW Acquisition and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP (it being understood that the delivery by TRW
Acquisition of Annual Reports on Form 10-K of TRW Acquisition and its
consolidated Subsidiaries shall satisfy the requirements of this Section
7(a)(i) to the extent such Annual Reports include the information
specified herein); provided that, so long as (i) either Holdings or
Intermediate Holdings is subject to the reporting requirements of Section
13 or 15(d) of the Securities Exchange Act of 1934, as amended, and (ii)
Holdings or Intermediate Holdings, as applicable, is not engaged in any
business or business activity other than that which is expressly permitted
under Section 6.08 of the Senior Credit Agreement as in effect on the date
hereof, this clause may be satisfied by the provision of consolidated
financial statements of Holdings or Intermediate Holdings, as applicable,
in a manner consistent with the other requirements of this clause, and all
references to TRW Acquisition in this clause shall instead be deemed to be
references to Holdings or Intermediate Holdings, as applicable; and
provided further that the items required to be delivered pursuant to this
clause (i) shall be deemed to have been delivered on the date when reports
containing such items are posted on the Xxxxx system maintained on the
internet by the United States Securities and Exchange Commission;
(ii) Quarterly Reports. Within 45 days (or such shorter period as
the SEC shall specify for the filing of Quarterly Reports on Form 10-Q)
after the end of each of the first three fiscal quarters of each fiscal
year, a consolidated balance sheet and related statements of operations
and cash flows showing the financial position of TRW Acquisition and its
consolidated Subsidiaries as of the close of such fiscal quarter and the
consolidated results of their operations during such fiscal quarter and
the then-elapsed portion of the fiscal year, all certified by a Financial
Officer of TRW Acquisition, as fairly presenting, in all material
respects, the financial position and results of operations of TRW
Acquisition and its Subsidiaries on a consolidated basis in accordance
with GAAP (subject to year-end audit adjustments and the absence of
footnotes) (it being understood that the delivery by TRW Acquisition of
Quarterly Reports on Form 10-Q of TRW Acquisition and its consolidated
subsidiaries shall satisfy the requirements of this Section 7(a)(ii) to
the extent such Quarterly Reports include the information specified
herein); provided that, so long as (i) either Holdings or Intermediate
Holdings is subject
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to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, and (ii) Holdings or Intermediate
Holdings, as applicable, is not engaged in any business or business
activity other than that which is expressly permitted under Section 6.08
of the Senior Credit Agreement as in effect on the date hereof, this
clause may be satisfied by the provision of consolidated financial
statements of Holdings or Intermediate Holdings, as applicable, in a
manner consistent with the other requirements of this clause, and all
references to TRW Acquisition in this clause shall instead be deemed to be
references to Holdings or Intermediate Holdings, as applicable; and
provided further that the items required to be delivered pursuant to this
clause (ii) shall be deemed to have been delivered on the date when
reports containing such items are posted on the Xxxxx system maintained on
the internet by the United States Securities and Exchange Commission.
(iii) Compliance Certificates. (x) No later than five Business Days
after any delivery of financial statements under (i) or (ii) above, a
certificate of a Financial Officer of TRW Acquisition (A) certifying that
no Termination Event or Incipient Termination Event has occurred or, if
such a Termination Event or Incipient Termination Event has occurred,
specifying the nature and extent thereof and any corrective action taken
or proposed to be taken with respect thereto and (B) setting forth
computations in reasonable detail satisfactory to the Administrative Agent
demonstrating compliance with the covenants contained in Sections 6.11 and
6.12 of the Senior Credit Agreement and (y) no later than five Business
Days after any delivery of financial statements under (i) above, a
certificate of the accounting firm opining on or certifying such
statements stating whether they obtained knowledge during the course of
their examination of such statements of any Incipient Termination Event or
Termination Event (which certificate may be limited to accounting matters
and disclaims responsibility for legal interpretations).
(iv) ERISA. Promptly after a Responsible Officer of TRW Acquisition
obtains actual knowledge thereof, notice of the occurrence of any ERISA
Event, that together with all other ERISA Events that have occurred, could
reasonably be expected to result in liability of TRW Acquisition and all
ERISA Affiliates in an aggregate amount in excess of $60,000,000.
(v) Debt Ratings. Promptly after a Responsible Officer of TRW
Acquisition obtains actual knowledge thereof, notice of any downgrade in
the Debt Rating (or the withdrawal by either S&P or Xxxxx'x of a Debt
Rating) of TRW Acquisition, setting forth the Indebtedness affected and
the nature of such change (or withdrawal).
(vi) Periodic Reporting. Promptly after the same becomes publicly
available, copies of all periodic and other publicly available reports,
proxy statements, and, to the extent requested by the Administrative
Agent, other materials filed by Holdings, Intermediate Holdings, TRW
Acquisition or any of the respective Subsidiaries with the United States
Securities and Exchange Commission, or distributed to its stockholders
generally, as applicable; provided, that the items required to be
delivered pursuant to this clause (vi) shall be deemed to have been
delivered on the date when reports containing
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such items are posted on the Xxxxx system maintained on the internet by
the United States Securities and Exchange Commission.
(vii) Litigation; Material Adverse Effect. Promptly after a
Responsible Officer of TRW Acquisition obtains actual knowledge thereof,
notice of (A) the filing or commencement of, or any written threat or
notice of intention of any Person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Official Body
or in arbitration against Holdings, Intermediate Holdings or any other
Transaction Party or any of their Subsidiaries as to which an adverse
determination is reasonably probable and which could reasonably be
expected to have a Material Adverse Effect and (B) any other event or
condition that is not a matter of general public knowledge and that has
had, or could reasonably be expected to have, a Material Adverse Effect.
(viii) Other Information. Such other information respecting the
condition or operations, financial or otherwise, of TRW Acquisition
(including, without limitation, information regarding any pending or
threatened litigation) as any Beneficiary may from time to time reasonably
request.
(b) Compliance with Laws, Etc. Comply in all respects with all
applicable Laws and preserve and maintain its corporate existence, rights,
franchises, qualifications and privileges except to the extent that the failure
so to comply with such Laws or the failure so to preserve and maintain such
rights, franchises, qualifications, and privileges would not reasonably be
expected to have a Material Adverse Effect.
Section 8. Subrogation; Subordination. Notwithstanding anything to
the contrary contained herein, each Performance Guarantor: (a) hereby waives
until the Final Payout Date all rights of subrogation (whether contractual,
under Section 509 of the United States Bankruptcy Code, at law or in equity or
otherwise) to the claims of any Beneficiary against any Originator and all
contractual, statutory or legal or equitable rights of contribution,
reimbursement, indemnification and similar rights and "claims" (as that term is
defined in the United States Bankruptcy Code) which such Performance Guarantor
might now have or hereafter acquire against any Originator that arise from the
existence or performance of such Performance Guarantor's obligations hereunder,
(b) will not claim any setoff, recoupment or counterclaim in respect of any
liability of any Originator to such Performance Guarantor and (c) waives any
benefit of and any right to participate in any collateral security which may be
held by any Beneficiary. The payment of any amounts due with respect to any
indebtedness of any Originator now or hereafter owed to such Performance
Guarantor is hereby subordinated to the prior payment in full of all of the
Obligations. Each Performance Guarantor agrees that, after the occurrence of any
default in the payment or performance of any of the Obligations, such
Performance Guarantor will not demand, xxx for or otherwise attempt to collect
any such indebtedness of any Originator to such Performance Guarantor until all
of the Obligations shall have been paid and performed in full. If,
notwithstanding the foregoing sentence, any Performance Guarantor shall collect,
enforce or receive any amounts in respect of such indebtedness while any
Obligations are still unperformed or outstanding, such amounts shall be
collected, enforced and received by such Performance Guarantor as trustee for
the Beneficiaries
10
and be paid over to the Administrative Agent on account of the Obligations
without affecting in any manner the liability of such Performance Guarantor
under the other provisions of this Guaranty. The provisions of this Section 8
shall be supplemental to and not in derogation of any rights and remedies of any
Beneficiary under any separate subordination agreement which any Beneficiary may
at any time and from time to time enter into with any Performance Guarantor.
Section 9. Termination of Performance Guaranty. The Performance
Guarantors' obligations hereunder shall continue in full force and effect until
all Obligations are indefeasibly paid and satisfied in full and each of the
Originator Purchase Agreement, the Transfer Agreement and the Receivables Loan
Agreement is terminated, provided, that this Guaranty shall continue to be
effective or shall be reinstated, as the case may be, if at any time payment or
other satisfaction of any of the Obligations is rescinded or must otherwise be
restored or returned upon the bankruptcy, insolvency, or reorganization of any
Originator or otherwise, as though such payment had not been made or other
satisfaction occurred, whether or not either Recipient (or its assigns) is in
possession of this Guaranty. No invalidity, irregularity or unenforceability by
reason of any bankruptcy, insolvency or other similar Law (whether foreign or
domestic), or any Law or order of any Official Body purporting to reduce, amend
or otherwise affect the Obligations shall impair, affect, be a defense to or
claim against the obligations of any Performance Guarantor under this Guaranty.
Section 10. Effect of Bankruptcy. This Guaranty shall survive the
bankruptcy or insolvency of any Originator and the commencement of any case or
proceeding by or against any Originator under the federal bankruptcy code or any
other applicable bankruptcy, insolvency or similar Law (whether foreign or
domestic). No automatic stay under the federal bankruptcy code with respect to
any Originator or any other applicable bankruptcy, insolvency or similar Law
(whether foreign or domestic) to which any Originator is subject shall postpone
the obligations of any Performance Guarantor under this Guaranty.
Section 11. Setoff. Regardless of the other means of obtaining
payment of any of the Obligations, at any time after the occurrence and during
the continuance of a Termination Event, each Lender is hereby authorized at any
time and from time to time, without notice to a Performance Guarantor (any such
notice being expressly waived by such Performance Guarantor) and to the fullest
extent permitted by law, to set off and apply any deposits and other sums
against the obligations of such Performance Guarantor under this Guaranty,
whether or not such Beneficiary shall have made any demand under this Guaranty
and although such Obligations may be contingent or unmatured.
Section 12. Taxes. All payments to be made by any Performance
Guarantor hereunder shall be made free and clear of any deduction or
withholding. If any Performance Guarantor is required by law to make any
deduction or withholding on account of tax or otherwise from any such payment,
the sum due from it in respect of such payment shall be increased to the extent
necessary to ensure that, after the making of such deduction or withholding,
each Beneficiary receives a net sum equal to the sum which they would have
received had no deduction or withholding been made. Notwithstanding the
provisions of this Section 12, (i) any Performance Guarantor's obligation to pay
any taxes shall exclude the obligation to pay Excluded Taxes and (ii) each
Performance Guarantor shall have the same rights
11
and obligations of the Borrower under (x) Section 2.15(e) of the Receivables
Loan Agreement, provided that such Performance Guarantor has informed any
applicable Beneficiary that such Performance Guarantor will be making payments
to the Beneficiary pursuant to this Guaranty and that the Beneficiary must
provide the documentation specified therein, (y) Section 2.15(f) of the
Receivables Loan Agreement and (z) if such Performance Guarantor has informed
any applicable Beneficiary that such Performance Guarantor will be making
payments to the Beneficiary pursuant to this Guaranty, Section 2.19 of the
Receivables Loan Agreement, with respect to any additional amounts paid by it
pursuant to this Section 12.
Section 13. Successors and Assigns.
(a) This Guaranty shall be binding upon each Performance
Guarantor, its successors and permitted assigns, and shall inure to the benefit
of and be enforceable by each Beneficiary and its successors and assigns. No
Performance Guarantor may assign or transfer any of its obligations hereunder
without the prior written consent of the Transferor, the Borrower, the
Administrative Agent and the Required Committed Lenders. The Transferor may
assign or otherwise transfer its rights hereunder to the Borrower pursuant to
the Transfer Agreement and the Borrower may assign or otherwise transfer its
rights hereunder to Administrative Agent and the Lenders pursuant to the
Receivables Loan Agreement.
(b) Each Performance Guarantor acknowledges that the Borrower,
pursuant to the Receivables Loan Agreement, shall assign to the Administrative
Agent, for the benefit of the Secured Parties thereunder, all of its rights,
remedies, powers and privileges hereunder and that each such Secured Party may
further assign such rights, remedies, powers and privileges to the extent
permitted in the Receivables Loan Agreement. Each Performance Guarantor agrees
that the Administrative Agent, as the assignee of the Borrower, shall have the
right to enforce this Performance Guaranty and to exercise directly all of the
Borrower's rights and remedies under this Performance Guaranty (including,
without limitation, the right to give or withhold any consents or approvals of
the Borrower to be given or withheld hereunder, and, in any case, without regard
to whether specific reference is made to the Borrower's assigns in the
provisions of this Guaranty which set forth such rights and remedies) and each
Performance Guarantor agrees to cooperate fully with the Administrative Agent in
the exercise of such rights and remedies. Each Performance Guarantor further
agrees to give to the Administrative Agent copies of all notices it is required
to give to the Borrower hereunder.
Section 14. Amendments and Waivers. No amendment or waiver of any
provision of this Guaranty nor consent to any departure by any Performance
Guarantor therefrom shall be effective unless the same shall be in writing and
signed by the Transferor, the Borrower, the Administrative Agent, the Required
Committed Lenders and the Performance Guarantors. No failure on the part of any
Beneficiary to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right.
Section 15. Notices. Except as provided below, all communications
and notices provided for hereunder shall be in writing (including telecopy or
electronic facsimile transmission or similar writing) and shall be given to the
other party at its address or telecopy
12
number specified below or at such other address or telecopy number as such party
may hereafter specify for the purposes of notice to such party. Each such notice
or other communication shall be effective (a) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section 15 and
confirmation is received, (b) if given by mail three Business Days following
such posting, postage prepaid, U.S. certified or registered, (c) if given by
overnight courier, one Business Day after deposit thereof with a national
overnight courier service, or (d) if given by any other means, when received at
the address specified in this Section 15.
If to TRW Acquisition, to its address set forth on Schedule II.
If to any Performance Guarantor (other than TRW Acquisition) to its
notice address set forth in the Originator Purchase Agreement.
If to a Recipient, to its address set forth on Schedule II.
Section 16. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 17. Consent to Jurisdiction. Each party hereto hereby
irrevocably submits to the non-exclusive jurisdiction of any New York State or
Federal court sitting in New York City in any action or proceeding arising out
of or relating to this Agreement, and each party hereto hereby irrevocably
agrees that all claims in respect of such action or proceeding may be heard and
determined in such New York State court or, to the extent permitted by law, in
such Federal court. The parties hereto hereby irrevocably waive, to the fullest
extent they may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. The parties hereto agree 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. Each of the Sellers and the Buyer consents to the service of
any and all process in any such action or proceeding by the mailing of copies of
such process to it at its address specified in Section 15. Nothing in this
Section 17 shall affect the right of any Seller or the Buyer (or their
respective assigns) to serve legal process in any other manner permitted by law.
Section 18. Bankruptcy Petition. Each Performance Guarantor hereby
covenants and agrees that, prior to the date that is one year and one day after
the Final Payout Date, it will not institute against, or join any other Person
in instituting against, the Transferor, the Borrower any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the Laws of any jurisdiction (whether foreign or
domestic). Each Performance Guarantor further agrees that it will not institute
against any Conduit Lender any proceeding of the type referred to in the
definition of "Event of Bankruptcy" in the Receivables Loan Agreement so long as
any Commercial Paper or other senior indebtedness issued by such Conduit Lender
shall be outstanding or there shall not have elapsed one year plus one day since
the last day on which any such Commercial Paper or other senior indebtedness
shall have been outstanding.
13
Section 19. WAIVER OF JURY TRIAL. EACH PERFORMANCE GUARANTOR HEREBY
WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO ,
OR CONNECTED WITH THIS GUARANTY OR ANY OTHER TRANSACTION DOCUMENT.
Section 20. Miscellaneous. This Guaranty constitutes the entire
agreement of the Performance Guarantors with respect to the matters set forth
herein. The rights and remedies herein provided are cumulative and not exclusive
of any remedies provided by law or any other agreement, and this Guaranty shall
be in addition to any other guaranty of or collateral security for any of the
Obligations. The provisions of this Guaranty are severable, and in any action or
proceeding involving any state corporate law, or any state or federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Performance Guarantor hereunder
would otherwise be held or determined to be avoidable, invalid or unenforceable
on account of the amount of such Performance Guarantor's liability under this
Guaranty, then, notwithstanding any other provision of this Guaranty to the
contrary, the amount of such liability shall, without any further action by such
Performance Guarantor or any Beneficiary, be automatically limited and reduced
to the highest amount that is valid and enforceable as determined in such action
or proceeding. Any provisions of this Guaranty which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Unless otherwise specified, references herein to "Section"
shall mean a reference to sections of this Guaranty.
Section 21. Amendment and Restatement. Subject to the satisfaction
of the conditions precedent set forth in Section 3.01 of the Receivables Loan
Agreement, this Guaranty amends and restates the Existing Performance Guaranty
in its entirety. This Guaranty is not intended to constitute a novation of any
obligations under the Existing Performance Guaranty. Upon the effectiveness of
this Guaranty, each reference to the Existing Performance Guaranty in any other
document, instrument or agreement executed and/or delivered in connection
therewith shall mean and be a reference to this Guaranty.
* * * *
14
IN WITNESS WHEREOF, each Performance Guarantor has caused this
Guaranty to be executed and delivered as of the date first above written.
TRW AUTOMOTIVE INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and Chief Financial
Officer
TRW AUTOMOTIVE U.S. LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Chief Financial Officer
XXXXXX-XXXXX COMPANY
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
TRW VEHICLE SAFETY SYSTEMS INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Chief Financial Officer
LAKE CENTER INDUSTRIES
TRANSPORTATION, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Secretary
2
ACKNOWLEDGED AND ACCEPTED:
TRW AUTOMOTIVE RECEIVABLES LLC
as Transferor
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
3
TRW AUTOMOTIVE GLOBAL RECEIVABLES LLC
as Borrower
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
By: /s/
_____________________________________
Name:
Title:
4
