EXHIBIT 10.2
EXECUTION COPY
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GUARANTEE AND COLLATERAL AGREEMENT
made by
VIASYSTEMS GROUP, INC.
VIASYSTEMS, INC.
and its Domestic Subsidiaries
in favor of
JPMORGAN CHASE BANK,
as Collateral Agent
Dated as of January 31, 2003
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINED TERMS......................................................................................... 1
1.1 Definitions....................................................................................... 1
1.2 Other Definitional Provisions..................................................................... 4
SECTION 2. GUARANTEE............................................................................................. 4
2.1 Guarantee......................................................................................... 4
2.2 Right of Contribution............................................................................. 5
2.3 Deferral of Subrogation........................................................................... 5
2.4 Amendments, etc................................................................................... 5
2.5 Guarantee Absolute and Unconditional.............................................................. 6
2.6 Reinstatement..................................................................................... 7
2.7 Payments.......................................................................................... 7
SECTION 3. GRANT OF SECURITY INTEREST............................................................................ 7
SECTION 4. REPRESENTATIONS AND WARRANTIES........................................................................ 8
4.1 Representations in Credit Agreement............................................................... 8
4.2 Title; No Other Liens............................................................................. 8
4.3 Perfected First Priority Liens.................................................................... 8
4.4 Jurisdiction of Organization; Chief Executive Office.............................................. 9
4.5 Inventory and Equipment........................................................................... 9
4.6 Farm Products..................................................................................... 9
4.7 Investment Property............................................................................... 9
4.8 Receivables....................................................................................... 9
4.9 Intellectual Property............................................................................. 9
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SECTION 5. COVENANTS............................................................................................. 10
5.1 [Intentionally Omitted]........................................................................... 10
5.2 Delivery of Instruments, Certificated Securities and Chattel Paper................................ 10
5.3 Maintenance of Insurance.......................................................................... 10
5.4 [Intentionally Omitted]........................................................................... 10
5.5 Maintenance of Perfected Security Interest; Further Documentation................................. 10
5.6 Changes in Locations, Name, etc................................................................... 10
5.7 Investment Property............................................................................... 11
5.8 Receivables....................................................................................... 11
5.9 Intellectual Property............................................................................. 12
SECTION 6. REMEDIAL PROVISIONS................................................................................... 13
6.1 Certain Matters Relating to Receivables........................................................... 13
6.2 Communications with Obligors; Grantors Remain Liable.............................................. 13
6.3 Pledged Stock..................................................................................... 13
6.4 Proceeds to be Turned Over to Collateral Agent.................................................... 14
6.5 Application of Proceeds........................................................................... 14
6.6 Code and Other Remedies........................................................................... 15
6.7 Registration Rights............................................................................... 15
6.8 Deficiency........................................................................................ 16
SECTION 7. THE COLLATERAL AGENT.................................................................................. 16
7.1 Collateral Agent's Appointment as Attorney-in-Fact, etc........................................... 16
7.2 Duty of Collateral Agent.......................................................................... 18
7.3 Execution of Financing Statements................................................................. 18
7.4 Authority of Collateral Agent..................................................................... 18
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SECTION 8. MISCELLANEOUS......................................................................................... 18
8.1 Amendments in Writing............................................................................. 18
8.2 Notices........................................................................................... 18
8.3 No Waiver by Course of Conduct; Cumulative Remedies............................................... 19
8.4 Enforcement Expenses; Indemnification............................................................. 19
8.5 Successors and Assigns............................................................................ 19
8.6 Set-Off........................................................................................... 19
8.7 Counterparts...................................................................................... 20
8.8 Severability...................................................................................... 20
8.9 Section Headings.................................................................................. 20
8.10 Integration...................................................................................... 20
8.11 GOVERNING LAW.................................................................................... 20
8.12 Submission To Jurisdiction; Waivers.............................................................. 20
8.13 Acknowledgements................................................................................. 21
8.14 WAIVER OF JURY TRIAL............................................................................. 21
8.15 Additional Grantors.............................................................................. 21
8.16 Releases......................................................................................... 21
8.17 Intercreditor Agreement.......................................................................... 22
SCHEDULES
Schedule 1 Notice Addresses of Guarantors
Schedule 2 Investment Property
Schedule 3 Filings and Other Actions Required to Perfect Security
Interests
Schedule 4 Jurisdiction of Organization and Chief Executive Office
Schedule 5 Location of Inventory and Equipment
Schedule 6 Intellectual Property
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GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of January 31,
2003, made by each of the signatories hereto (together with any other Person
that may become a party hereto as provided herein, the "Grantors"), in favor of
JPMORGAN CHASE BANK, as Collateral Agent (in such capacity, the "Collateral
Agent") for the Secured Parties (as defined in the Credit Agreement referred to
below).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of January
31, 2003 (as amended, modified, supplemented, restated and in effect from time
to time, the "Credit Agreement"), among Viasystems Group, Inc., a Delaware
corporation ("Holdings"), Viasystems, Inc., a Delaware corporation (the
"Borrower"), JPMorgan Chase Bank ("JPMorgan Chase"), each of the other financial
institutions from time to time party thereto (together with JPMorgan Chase, the
"Lenders"), and JPMorgan Chase Bank, as administrative agent (in such capacity,
the "Administrative Agent") for the Lenders, the Lenders have severally agreed
to make extensions of credit to the Borrower upon the terms and subject to the
conditions set forth therein;
WHEREAS, the Borrower, Holdings and the other Grantors are
members of an affiliated group of companies;
WHEREAS, the proceeds of the extensions of credit under the
Credit Agreement will be used in part to enable the Borrower to make valuable
transfers to one or more of the other Grantors in connection with the operation
of their respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in
related businesses, and each Grantor will derive substantial direct and indirect
benefit from the making of the extensions of credit under the Credit Agreement;
and
WHEREAS, it is a condition precedent to the effectiveness of
the Credit Agreement and the obligation of the Lenders to make their respective
extensions of credit to the Borrower under the Credit Agreement, that the
Grantors shall have executed and delivered this Agreement to the Collateral
Agent for the benefit of the Secured Parties;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent and the Lenders to enter into the Credit Agreement and
to induce the Lenders to make their respective extensions of credit to the
Borrower thereunder, each Grantor hereby agrees with the Collateral Agent, for
the benefit of the Secured Parties, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement, and the following terms which are defined in the
Code are used herein as so defined: Accounts, Certificated Security, Chattel
Paper, Documents, Equipment, Farm Products, General Intangibles, Instruments,
Inventory, Letter-of-Credit Rights and Supporting Obligations.
(a) The following terms shall have the following meanings:
"Agreement": this Guarantee and Collateral Agreement, as the
same may be amended, supplemented or otherwise modified from time to
time.
"Borrower Obligations": the unpaid principal of and interest
on (including, without limitation, interest accruing after the maturity
of the Loans made to the Borrower and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the
Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans made to the Borrower
and all other obligations and liabilities of the Borrower to the
Secured Parties, whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, the Credit Agreement, this
Agreement or the other Loan Documents, any Hedge Agreement entered into
with a Lender or in respect of overdrafts and related liabilities owed
to the Administrative Agent, any Lender or any of their respective
Affiliates or any treasury, depositary and cash management services in
connection with any automated clearing house transfers of funds for the
Borrower or in respect of guarantees by the Borrower of any such
obligations or liabilities of any of its Subsidiaries for any such
services, or any other document made, delivered or given in connection
therewith or herewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees and disbursements of counsel
to the Secured Parties that are required to be paid by the Borrower
pursuant to the terms of the Credit Agreement) or otherwise.
"Code": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by
the Collateral Agent as provided in Section 6.1 or 6.4.
"Copyrights": (i) all copyrights, whether published or
unpublished, now existing or hereafter created (including, without
limitation, those listed in Schedule 6), all registrations and
recordings thereof, and all applications in connection therewith,
including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) all
renewals thereof.
"Copyright Licenses": any written agreement naming any Grantor
as licensor or licensee (including, without limitation, those listed in
Schedule 6), granting any right under any Copyright, including, without
limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"Deposit Account": as defined in the Uniform Commercial Code
of any applicable jurisdiction, including, without limitation, any
demand, time, savings, passbook or like account maintained with a
depositary institution.
"Foreign Subsidiary Voting Stock": the voting Capital Stock of
any Foreign Subsidiary.
"Guarantor Obligations": with respect to any Guarantor, all
obligations and liabilities of such Guarantor which may arise under or
in connection with this Agreement (including, without
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limitation, Section 2) or any other Loan Document to which such
Guarantor is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Collateral Agent or to the Secured
Parties that are required to be paid by such Guarantor pursuant to the
terms of this Agreement or any other Loan Document).
"Guarantors": the collective reference to each Grantor other
than the Borrower.
"Intellectual Property": the collective reference to the
Copyrights, the Copyright Licenses, the Patents, the Patent Licenses,
the Trademarks and the Trademark Licenses.
"Intercompany Note": any promissory note evidencing loans made
by any Grantor to Holdings or any of its Subsidiaries.
"Investment Property": the collective reference to (i) all
"investment property" as such term is defined in Section 9-102(a)(49)
of the Code (other than any Foreign Subsidiary Voting Stock excluded
from the definition of "Pledged Stock") and (ii) whether or not
constituting "investment property" as so defined, all Pledged Notes and
all Pledged Stock.
"Issuers": the collective reference to each issuer of any
Investment Property.
"Obligations": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"Patents": (i) all letters patent of the United States or any
other country, all reissues and extensions thereof and all goodwill
associated therewith, including, without limitation, any of the
foregoing referred to in Schedule 6, and (ii) all applications for
letters patent of the United States or any other country and all
divisions, continuations and continuations-in-part thereof, including,
without limitation, any of the foregoing referred to in Schedule 6.
"Patent License": all agreements, whether written or oral,
providing for the grant by or to any Grantor of any right to
manufacture, use or sell any invention covered by a Patent, including,
without limitation, any of the foregoing referred to in Schedule 6.
"Pledged Notes": all promissory notes listed on Schedule 2,
all Intercompany Notes and all other promissory notes issued to or held
by any Grantor (other than promissory notes issued in connection with
extensions of trade credit by any Grantor in the ordinary course of
business).
"Pledged Stock": the shares of Capital Stock listed on
Schedule 2, together with any other shares, stock certificates,
options, interests or rights of any nature whatsoever in respect of the
Capital Stock of any Person that may be issued or granted to, or held
by, any Grantor while this Agreement is in effect; provided that,
except with respect to the Foreign Subsidiary Voting Stock of
Viasystems Luxembourg S.a.r.l., in no event shall more than 65% of the
total outstanding Foreign Subsidiary Voting Stock of any Foreign
Subsidiary be required to be pledged hereunder.
"Proceeds": all "proceeds" as such term is defined in Section
9-102(a)(64) of the Code and, in any event, shall include, without
limitation, all dividends or other income from the Investment Property,
collections thereon or distributions or payments with respect thereto.
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"Receivable": any right to payment for goods sold or leased or
for services rendered, whether or not such right is evidenced by an
Instrument or Chattel Paper and whether or not it has been earned by
performance (including, without limitation, any Account).
"Securities Act": the Securities Act of 1933, as amended.
"Subsidiary Guarantor": each Guarantor other than Holdings.
"Trademarks": (i) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business identifiers,
and all goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any
of the foregoing referred to in Schedule 6, and (ii) all renewals
thereof.
"Trademark License": any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any
Trademark, including, without limitation, any of the foregoing referred
to in Schedule 6.
1.2 Other Definitional Provisions. The words "hereof,"
"herein," "hereto" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section and Schedule references are to this
Agreement unless otherwise specified.
(a) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(b) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall refer
to such Grantor's Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 Guarantee. Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the Collateral Agent,
for the benefit of the Secured Parties and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations.
(a) Anything herein or in any other Loan Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Loan Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating to
the insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(b) Each Guarantor agrees that the Borrower Obligations may at
any time and from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing the guarantee
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contained in this Section 2 or affecting the rights and remedies of the
Collateral Agent or any other Secured Party hereunder.
(c) The guarantee contained in this Section 2 shall remain in
full force and effect until all the Borrower Obligations and the obligations of
each Guarantor under the guarantee contained in this Section 2 shall have been
satisfied by payment in full, no Letters of Credit shall be outstanding and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of the Credit Agreement the Borrower may be free from any Borrower
Obligations.
(d) No payment made by the Borrower, any of the Guarantors,
any other guarantor or any other Person or received or collected by the
Collateral Agent or any other Secured Party from the Borrower, any of the
Guarantors, any other guarantor or any other Person by virtue of any action or
proceeding or any set off or appropriation or application at any time or from
time to time in reduction of or in payment of the Borrower Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of any
Guarantor hereunder which shall, notwithstanding any such payment (other than
any payment made by such Guarantor in respect of the Borrower Obligations or any
payment received or collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to the maximum
liability of such Guarantor hereunder until the Borrower Obligations are paid in
full, no Letters of Credit shall be outstanding and the Commitments are
terminated.
2.2 Right of Contribution. Each Subsidiary Guarantor hereby
agrees that to the extent that a Subsidiary Guarantor shall have paid more than
its proportionate share of any payment made hereunder, such Subsidiary Guarantor
shall be entitled to seek and receive contribution from and against any other
Subsidiary Guarantor hereunder which has not paid its proportionate share of
such payment. Each Subsidiary Guarantor's right of contribution shall be subject
to the terms and conditions of Section 2.3. The provisions of this Section 2.2
shall in no respect limit the obligations and liabilities of any Subsidiary
Guarantor to the Collateral Agent and the other Secured Parties, and each
Subsidiary Guarantor shall remain liable to the Collateral Agent and the other
Secured Parties for the full amount guaranteed by such Subsidiary Guarantor
hereunder.
2.3 Deferral of Subrogation. Notwithstanding any payment made
by any Guarantor hereunder or any set-off or application of funds of any
Guarantor by the Collateral Agent or any other Secured Party, no Guarantor shall
be entitled to be subrogated to any of the rights of the Collateral Agent or any
other Secured Party against the Borrower or any other Guarantor or any
collateral security or guarantee or right of set-off held by the Collateral
Agent or any other Secured Party for the payment of the Borrower Obligations,
nor shall any Guarantor seek or be entitled to seek any contribution or
reimbursement from the Borrower or any other Guarantor in respect of payments
made by such Guarantor hereunder, until all amounts owing to the Collateral
Agent and the other Secured Parties by the Borrower on account of the Borrower
Obligations are paid in full, no Letters of Credit shall be outstanding and the
Commitments are terminated. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the Borrower
Obligations shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the Collateral Agent and the other Secured Parties,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Collateral Agent in the exact form
received by such Guarantor (duly indorsed by such Guarantor to the Collateral
Agent, if required), to be applied against the Borrower Obligations, whether
matured or unmatured, in such order as the Collateral Agent may determine.
2.4 Amendments, etc. Each Guarantor shall remain obligated
hereunder notwithstanding that, without any reservation of rights against any
Guarantor and without notice to or further assent by any Guarantor, any demand
for payment of any of the Borrower Obligations made by the Collateral Agent or
any other Secured Party may be rescinded by the Collateral Agent or such other
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Secured Party and any of the Borrower Obligations continued, and the Borrower
Obligations, or the liability of any other Person upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Collateral Agent or any other Secured Party, and the Credit Agreement and
the other Loan Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Administrative Agent (or the Required Lenders or all
Lenders, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Collateral Agent or any other Secured Party for the payment of the Borrower
Obligations may be sold, exchanged, waived, surrendered or released. Neither the
Collateral Agent nor any other Secured Party shall have any obligation to
protect, secure, perfect or insure any Lien at any time held by it as security
for the Borrower Obligations or for the guarantee contained in this Section 2 or
any property subject thereto.
2.5 Guarantee Absolute and Unconditional. (a) Each Guarantor
waives any and all notice of the creation, renewal, extension or accrual of any
of the Borrower Obligations and notice of or proof of reliance by the Collateral
Agent or any other Secured Party upon the guarantee contained in this Section 2
or acceptance of the guarantee contained in this Section 2; the Borrower
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon the guarantee contained in this Section 2; and all dealings between the
Credit Parties on the one hand, and the Collateral Agent and the other Secured
Parties, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon the guarantee contained in this Section 2.
Each Guarantor waives diligence, presentment, protest, demand for payment and
notice of default (except as specifically set forth in the Loan Documents) or
nonpayment to or upon the Borrower or any of the Guarantors with respect to the
Borrower Obligations. Each Guarantor understands and agrees that the guarantee
contained in this Section 2 shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or
enforceability of the Credit Agreement or any other Loan Document, any of the
Borrower Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
the Collateral Agent or any other Secured Party, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Borrower or any other Person against
the Collateral Agent or any other Secured Party, other than payment in full of
the Obligations, or (c) any other circumstance whatsoever (with or without
notice to or knowledge of the Borrower or such Guarantor) which constitutes, or
might be construed to constitute, an equitable or legal discharge of the
Borrower for the Borrower Obligations, or of such Guarantor under the guarantee
contained in this Section 2, in bankruptcy or in any other instance. When making
any demand hereunder or otherwise pursuing its rights and remedies hereunder
against any Guarantor, the Collateral Agent or any other Secured Party may, but
shall be under no obligation to, make a similar demand on or otherwise pursue
such rights and remedies as it may have against the Borrower, any other
Guarantor or any other Person or against any collateral security or guarantee
for the Borrower Obligations or any right of offset with respect thereto, and
any failure by the Collateral Agent or any other Secured Party to make any such
demand, to pursue such other rights or remedies or to collect any payments from
the Borrower, any other Guarantor or any other Person or to realize upon any
such collateral security or guarantee or to exercise any such right of offset,
or any release of the Borrower, any other Guarantor or any other Person or any
such collateral security, guarantee or right of offset, shall not relieve any
Guarantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Collateral Agent or any other Secured Party against any
Guarantor. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
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2.6 Reinstatement. The guarantee contained in this Section 2
shall continue to be effective, or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any of the Borrower Obligations is
rescinded or must otherwise be restored or returned by the Collateral Agent or
any other Secured Party upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or any Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or any Guarantor or any substantial
part of its property, or otherwise, all as though such payments had not been
made.
2.7 Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars at the office of the Administrative Agent located at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Collateral
Agent, and hereby grants to the Collateral Agent, for the benefit of the Secured
Parties, a security interest in, all of the following property now owned or at
any time hereafter acquired by such Grantor or in which such Grantor now has or
at any time in the future may acquire any right, title or interest
(collectively, the "Collateral"), as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of such Grantor's Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property;
(i) all Inventory;
(j) all Investment Property;
(k) all Letter-of-Credit Rights;
(l) all other property not otherwise described above;
(m) all books and records pertaining to the Collateral; and
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(n) to the extent not otherwise included, all Proceeds,
Supporting Obligations and products of any and all of the foregoing and
all collateral security and guarantees given by any Person with respect
to any of the foregoing.
Notwithstanding the foregoing, "Collateral" shall not include,
with respect to any Grantor, any General Intangible, Investment Property issued
by Persons other than Subsidiaries or Intellectual Property to the extent the
grant by such Grantor of a security interest pursuant to this Agreement in its
rights under such General Intangible, Investment Property issued by Persons
other than Subsidiaries or Intellectual Property, as the case may be, is
prohibited by such General Intangible, Investment Property issued by Persons
other than Subsidiaries or Intellectual Property, as the case may be, and the
consent of applicable Persons has not been obtained, provided that the foregoing
limitation shall not affect, limit, restrict or impair the grant by such Grantor
of a security interest pursuant to this Agreement in any Account or any money or
other amounts due or to become due under any such General Intangible, Investment
Property issued by Persons other than Subsidiaries or Intellectual Property, as
the case may be, to the extent provided in Sections 9-406 and 9-408 of the Code
as in effect on the date hereof.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into the Credit Agreement and to induce the Lenders to make their respective
extensions of credit to the Borrower thereunder, each Grantor hereby represents
and warrants to the Collateral Agent and each Secured Party that:
4.1 Representations in Credit Agreement. In the case of each
Guarantor, the representations and warranties set forth in Section 8 of the
Credit Agreement as they relate to such Guarantor or to the Loan Documents to
which such Guarantor is a party, each of which is hereby incorporated herein by
reference, are true and correct in all material respects, and the Collateral
Agent and each Secured Party shall be entitled to rely on each of them as if
they were fully set forth herein; provided, that each reference in each such
representation and warranty to the Borrower's knowledge shall, for the purposes
of this Section 4.1, be deemed to be a reference to such Guarantor's knowledge.
4.2 Title; No Other Liens. Except for the security interest
granted to the Collateral Agent for the benefit of the Secured Parties pursuant
to this Agreement and the other Liens permitted to exist on the Collateral by
the Credit Agreement, such Grantor owns each item of the Collateral free and
clear of any and all Liens or claims of others. No financing statement or other
public notice with respect to all or any part of the Collateral is on file or of
record in any public office, except such as have been filed in favor of the
Collateral Agent, for the benefit of the Secured Parties, pursuant to this
Agreement or as are permitted by the Credit Agreement.
4.3 Perfected First Priority Liens. The security interests
granted pursuant to this Agreement (a) that are capable of perfection pursuant
to the Uniform Commercial Code of any jurisdiction upon completion of the
filings and other actions specified on Schedule 3 (which, in the case of all
filings and other documents referred to on said Schedule, have been delivered to
the Collateral Agent in completed and duly executed form) will constitute valid
perfected security interests in all of the Collateral in favor of the Collateral
Agent, for the benefit of the Secured Parties, as collateral security for such
Grantor's Obligations, enforceable in accordance with the terms hereof against
all creditors of such Grantor and any Persons purporting to purchase any
Collateral from such Grantor and (b) are prior to all other Liens on the
Collateral in existence on the date hereof except for Liens permitted by the
Credit Agreement.
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4.4 Jurisdiction of Organization; Chief Executive Office. On
the date hereof, such Grantor's jurisdiction of organization, identification
number from the jurisdiction of organization (if any), and the location of such
Grantor's chief executive office or sole place of business or principal
residence, as the case may be, are specified on Schedule 4. Such Grantor has
furnished to the Collateral Agent a certified charter, certificate of
incorporation or other organization document and long-form good standing
certificate as of a date which is recent to the date hereof.
4.5 Inventory and Equipment. On the date hereof, the Inventory
and the Equipment (other than mobile goods) are kept at the locations listed on
Schedule 5.
4.6 Farm Products. None of the Collateral constitutes, or is
the Proceeds of, Farm Products.
4.7 Investment Property. The shares of Pledged Stock
pledged by such Grantor hereunder constitute all the issued and outstanding
shares of all classes of the Capital Stock of each Issuer owned by such Grantor
or, in the case of Foreign Subsidiary Voting Stock (other than the Foreign
Subsidiary Voting Stock of Viasystems Luxembourg S.a.r.l.), if less, 65% of the
outstanding Foreign Subsidiary Voting Stock of each relevant Issuer.
(a) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(b) Each of the Pledged Notes constitutes, to the knowledge of
the Grantor that is the payee thereof, the legal, valid and binding obligation
of the obligor with respect thereto, enforceable in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
(c) Such Grantor is the record and beneficial owner of, and
has good title to, the Investment Property pledged by it hereunder, free of any
and all Liens or options in favor of, or claims of, any other Person, except the
security interest created by this Agreement.
4.8 Receivables. No amount payable to such Grantor under or in
connection with any Receivable is evidenced by any Instrument or Chattel Paper
in excess of $2,000,000 which has not been delivered to the Collateral Agent
within the time frame referred to in Section 5.2.
4.9 Intellectual Property. Schedule 6 lists all
Intellectual Property owned by such Grantor in its own name on the date hereof.
(a) To such Grantor's knowledge, each material Copyright,
Patent and Trademark is on the date hereof valid, subsisting, unexpired,
enforceable and has not been abandoned.
(b) Except as set forth in Schedule 6, none of the Copyrights,
Patents or Trademarks is on the date hereof the subject of any licensing or
franchise agreement.
(c) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity of any
Copyright, Patent or Trademark in any respect that could reasonably be expected
to have a Material Adverse Effect.
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(d) No action or proceeding is pending on the date hereof (i)
seeking to limit, cancel or question the validity of any material Copyright,
Patent or Trademark, or (ii) which, if adversely determined, would have a
material adverse effect on the value of any material Patent or Trademark.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Collateral Agent
and the other Secured Parties that, from and after the date of this Agreement
until the Obligations shall have been paid in full, no Letters of Credit shall
be outstanding and the Commitments shall have terminated:
5.1 [Intentionally Omitted].
5.2 Delivery of Instruments, Certificated Securities and
Chattel Paper. If any amount payable under or in connection with any of the
Collateral shall be or become evidenced by any Instrument, Certificated Security
or Chattel Paper in excess of $2,000,000, such Instrument, Certificated Security
or Chattel Paper shall be immediately delivered to the Collateral Agent, duly
indorsed in a manner reasonably satisfactory to the Collateral Agent, to be held
as Collateral pursuant to this Agreement concurrently with the delivery of the
financial statements referred to in Sections 10.1(a) and 10.1(b) of the Credit
Agreement.
5.3 Maintenance of Insurance. Such Grantor will maintain
insurance policies insuring the Inventory and Equipment pursuant to and in
accordance with the Credit Agreement.
5.4 [Intentionally Omitted].
5.5 Maintenance of Perfected Security Interest; Further
Documentation. Such Grantor shall maintain the security interest created by
this Agreement as a perfected security interest having at least the priority
described in Section 4.3 and shall defend such security interest against the
claims and demands of all Persons whomsoever, subject to the rights of such
Grantor under the Loan Documents to dispose of the Collateral.
(a) Upon reasonable request of the Collateral Agent, such
Grantor will furnish to the Collateral Agent and the other Secured Parties from
time to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Collateral Agent may reasonably request, all in reasonable detail.
(b) At any time and from time to time, upon the written
request of the Collateral Agent, and at the sole expense of such Grantor, such
Grantor will promptly and duly execute and deliver such further instruments and
documents and take such further actions as the Collateral Agent may reasonably
request for the purpose of obtaining or preserving the full benefits of this
Agreement and of the rights and powers herein granted, including, without
limitation, (i) the filing of any financing or continuation statements under the
Uniform Commercial Code (or other similar laws) in effect in any jurisdiction
with respect to the security interests created hereby and (ii) in the case of
Investment Property, Deposit Accounts, Letter-of-Credit Rights and any other
relevant Collateral, taking any actions necessary to enable the Collateral Agent
to obtain "control" (within the meaning of the applicable Uniform Commercial
Code) with respect thereto.
5.6 Changes in Locations, Name, etc. Such Grantor will not,
except upon not less than 15 days' prior written notice to the Collateral Agent
and delivery to the Collateral Agent of (a) all
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additional executed financing statements and other documents reasonably
requested by the Collateral Agent to maintain the validity, perfection and
priority of the security interests provided for herein and (b) if applicable, a
written supplement to Schedule 5 showing any additional location at which
Inventory or Equipment shall be kept:
(i) change its jurisdiction of organization or the
location of its chief executive office or sole place of business or
principal residence from that referred to in Section 4.4; or
(ii) change its name.
5.7 Investment Property. If such Grantor shall become
entitled to receive or shall receive any certificate (including, without
limitation, any certificate representing a dividend or a distribution in
connection with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or rights in
respect of the Capital Stock of any Issuer, whether in addition to, in
substitution of, as a conversion of, or in exchange for, any shares of the
Pledged Stock, or otherwise in respect thereof, such Grantor shall accept the
same as the agent of the Collateral Agent and the other Secured Parties, hold
the same in trust for the Collateral Agent and the other Secured Parties and
deliver the same forthwith to the Collateral Agent in the exact form received,
duly indorsed by such Grantor to the Collateral Agent, if required, together
with an undated stock power covering such certificate duly executed in blank by
such Grantor and with, if the Collateral Agent so requests, signature
guaranteed, to be held by the Collateral Agent, subject to the terms hereof, as
additional collateral security for the Obligations. Any sums paid upon or in
respect of the Investment Property upon the liquidation or dissolution of any
Issuer shall be paid over to the Collateral Agent to be held by it hereunder as
additional collateral security for the Obligations, and in case any distribution
of capital shall be made on or in respect of the Investment Property or any
property shall be distributed upon or with respect to the Investment Property
pursuant to the recapitalization or reclassification of the capital of any
Issuer or pursuant to the reorganization thereof, the property so distributed
shall, unless otherwise subject to a perfected security interest in favor of the
Collateral Agent, be delivered to the Collateral Agent to be held by it
hereunder as additional collateral security for the Obligations. If any sums of
money or property so paid or distributed in respect of the Investment Property
shall be received by such Grantor, such Grantor shall, until such money or
property is paid or delivered to the Collateral Agent, hold such money or
property in trust for the Secured Parties, segregated from other funds of such
Grantor, as additional collateral security for the Obligations.
(a) In the case of each Grantor which is an Issuer, such
Issuer agrees that (i) it will be bound by the terms of this Agreement relating
to the Investment Property issued by it and will comply with such terms insofar
as such terms are applicable to it, (ii) it will notify the Collateral Agent
promptly in writing of the occurrence of any of the events described in Section
5.7(a) with respect to the Investment Property issued by it and (iii) the terms
of Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to
all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with
respect to the Investment Property issued by it.
5.8 Receivables. Other than in the ordinary course of
business, or as otherwise permitted by the Loan Documents, such Grantor will not
(i) grant any extension of the time of payment of any Receivable, (ii)
compromise or settle any Receivable for less than the full amount thereof, (iii)
release, wholly or partially, any Person liable for the payment of any
Receivable, (iv) allow any credit or discount whatsoever on any Receivable or
(v) amend, supplement or modify any Receivable in any manner that could
materially or adversely affect the value thereof.
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(a) If requested by the Collateral Agent, such Grantor will
take all actions necessary to give notice pursuant to the U.S. Assignment of
Claims Act or such other analogous law if a material portion of the total amount
of the Receivables is owing from Governmental Authorities.
5.9 Intellectual Property. Except to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect:
(a) Such Grantor (either itself or through licensees) will (i)
continue to use each material Trademark on each and every trademark class of
goods applicable to its current line as reflected in its current catalogs,
brochures and price lists in order to maintain such Trademark in full force free
from any claim of abandonment for non-use, (ii) maintain as in the past the
quality of products and services offered under such Trademark, (iii) employ such
Trademark with the appropriate notice of registration, (iv) not adopt or use any
xxxx which is confusingly similar or a colorable imitation of such Trademark
unless the Collateral Agent, for the benefit of the Secured Parties, shall
obtain a perfected security interest in such xxxx pursuant to this Agreement,
and (v) not (and not permit any licensee or sublicensee thereof to) do any act
or knowingly omit to do any act whereby such material Trademark may become
invalidated.
(b) Such Grantor will not do any act, or omit to do any act,
whereby any material Patent may become abandoned or dedicated.
(c) Such Grantor (either itself or through licensees) (i) will
employ each material Copyright and (ii) will not (and will not permit any
licensee or sublicensee thereof to) do any act or knowingly omit to do any act
whereby any material portion of the Copyrights may become invalidated. Such
Grantor will not (either itself or through licensees) do any act whereby any
material portion of the Copyrights may become injected into the public domain.
(d) Such Grantor will notify the Collateral Agent immediately
if it knows, or has reason to know, that any application or registration
relating to any material Patent or Trademark may become abandoned or dedicated,
or of any adverse determination or development (including, without limitation,
the institution of, or any such determination or development in, any proceeding
in the United States Patent and Trademark Office or any court or tribunal in any
country) regarding such Grantor's ownership of any material Patent or Trademark
or its right to register the same or to keep and maintain the same.
(e) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, or any similar office or agency in any other country or
any political subdivision thereof, to maintain and pursue each application (and
to obtain the relevant registration) and to maintain each registration of the
material Patents and Trademarks, including, without limitation, filing of
applications for renewal, affidavits of use and affidavits of incontestability.
(f) In the event that any material Patent or Trademark is
infringed, misappropriated or diluted by a third party, such Grantor shall (i)
take such actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such Patent or Trademark and (ii) if such Patent or
Trademark is of material economic value, promptly notify the Collateral Agent
and the other Secured Parties after it learns thereof and xxx for infringement,
misappropriation or dilution, to seek injunctive relief where appropriate and to
recover any and all damages for such infringement, misappropriation or dilution.
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SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. The
Collateral Agent hereby authorizes each Grantor to collect such Grantor's
Receivables, subject to the Collateral Agent's direction and control, and the
Collateral Agent may curtail or terminate said authority at any time after the
occurrence and during the continuance of an Event of Default. If required by the
Collateral Agent at any time after the occurrence and during the continuance of
an Event of Default, any payments of Receivables, when collected by any Grantor,
(i) shall be forthwith (and, in any event, within two Business Days) deposited
by such Grantor in the exact form received, duly indorsed by such Grantor to the
Collateral Agent if required, in a Collateral Account maintained under the sole
dominion and control of the Collateral Agent, subject to withdrawal by the
Collateral Agent for the account of the Secured Parties only as provided in
Section 6.5, and (ii) until so turned over, shall be held by such Grantor in
trust for the Collateral Agent and the other Secured Parties, segregated from
other funds of such Grantor. Each such deposit of Proceeds of Receivables shall
be accompanied by a report identifying in reasonable detail the nature and
source of the payments included in the deposit.
(a) At the Collateral Agent's request, each Grantor shall
deliver to the Collateral Agent all original and other documents evidencing, and
relating to, the agreements and transactions which gave rise to the Receivables,
including, without limitation, all original orders, invoices and shipping
receipts.
6.2 Communications with Obligors; Grantors Remain Liable.
The Collateral Agent in its own name or in the name of others may at any time
after the occurrence and during the continuance of an Event of Default
communicate with obligors under the Receivables to verify with them to the
Collateral Agent's reasonable satisfaction the existence, amount and terms of
any Receivables.
(a) Upon the request of the Collateral Agent at any time after
the occurrence and during the continuance of an Event of Default, each Grantor
shall notify obligors on the Receivables that the Receivables have been assigned
to the Collateral Agent for the benefit of the Secured Parties and that payments
in respect thereof shall be made directly to the Collateral Agent.
(b) Anything herein to the contrary notwithstanding, each
Grantor shall remain liable under each of the Receivables to observe and perform
all the conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms of any agreement giving rise
thereto. Neither the Collateral Agent nor any other Secured Party shall have any
obligation or liability under any Receivable (or any agreement giving rise
thereto) by reason of or arising out of this Agreement or the receipt by the
Collateral Agent or any other Secured Party of any payment relating thereto, nor
shall the Collateral Agent or any other Secured Party be obligated in any manner
to perform any of the obligations of any Grantor under or pursuant to any
Receivable (or any agreement giving rise thereto) to make any payment, to make
any inquiry as to the nature or the sufficiency of any payment received by it or
as to the sufficiency of any performance by any party thereunder, to present or
file any claim, to take any action to enforce any performance or to collect the
payment of any amounts which may have been assigned to it or to which it may be
entitled at any time or times.
6.3 Pledged Stock. Unless an Event of Default shall have
occurred and be continuing and the Collateral Agent shall have exercised its
right under Section 6.3(b), each Grantor shall be permitted to receive all cash
dividends paid in respect of the Pledged Stock and all payments made in respect
of the Pledged Notes, to the extent permitted in the Credit Agreement, and to
exercise all voting and corporate rights with respect to the Investment
Property; provided, however, that no vote shall be cast or corporate right
exercised or other action taken which would be inconsistent with or result in
any violation of any provision of the Credit Agreement, this Agreement or any
other Loan Document.
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(a) If an Event of Default shall occur and be continuing, (i)
the Collateral Agent shall have the right to receive any and all cash dividends,
payments or other Proceeds paid in respect of the Investment Property and,
subject to the provisions of the Intercreditor Agreement, make application
thereof to the Obligations in such order as the Collateral Agent may determine,
and (ii) any or all of the Investment Property may be registered in the name of
the Collateral Agent or its nominee, and the Collateral Agent or its nominee may
thereafter exercise (x) all voting, corporate and other rights pertaining to
such Investment Property at any meeting of shareholders of the relevant Issuer
or Issuers or otherwise and (y) any and all rights of conversion, exchange,
subscription and any other rights, privileges or options pertaining to such
Investment Property as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the
Investment Property upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of any
Issuer, or upon the exercise by any Grantor or the Collateral Agent of any
right, privilege or option pertaining to such Investment Property, and in
connection therewith, the right to deposit and deliver any and all of the
Investment Property with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as the Collateral Agent
may determine), all without liability except to account for property actually
received by it, but the Collateral Agent shall have no duty to any Grantor to
exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing.
(b) Each Grantor hereby authorizes and instructs each Issuer
of any Investment Property pledged by such Grantor hereunder to (i) comply with
any instruction received by it from the Collateral Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Investment Property directly to the Collateral Agent.
6.4 Proceeds to be Turned Over to Collateral Agent. In
addition to the rights of the Collateral Agent and the other Secured Parties
specified in Section 6.1 with respect to payments of Receivables, if an Event of
Default shall occur and be continuing, unless otherwise agreed by the Collateral
Agent, all Proceeds received by any Grantor consisting of cash, checks and other
near-cash items shall be held by such Grantor in trust for the Collateral Agent
and the other Secured Parties, segregated from other funds of such Grantor, and
shall, forthwith upon receipt by such Grantor, be turned over to the Collateral
Agent in the exact form received by such Grantor (duly indorsed by such Grantor
to the Collateral Agent, if required). All Proceeds received by the Collateral
Agent hereunder shall be held by the Collateral Agent in a Collateral Account
maintained under its sole dominion and control. All Proceeds while held by the
Collateral Agent in a Collateral Account (or by such Grantor in trust for the
Collateral Agent and the other Secured Parties) shall continue to be held as
collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in Section 6.5.
6.5 Application of Proceeds. At such intervals as may be
agreed upon by the Borrower and the Collateral Agent, or, if an Event of Default
shall have occurred and be continuing, at any time at the Collateral Agent's
election, the Collateral Agent may apply all or any part of Proceeds held in any
Collateral Account in payment of the Obligations in such order (subject to the
provisions of the Intercreditor Agreement) as the Collateral Agent may elect,
and any part of such funds which the Collateral Agent elects not so to apply and
deems not required as collateral security for the Obligations shall, so long as
no Default or Event of Default has occurred and is continuing, be paid over from
time to time by the Collateral Agent to the Borrower or to whomsoever may be
lawfully entitled to receive the same. Any balance of such Proceeds remaining
after the Obligations shall have been paid in full, no Letters of Credit shall
be outstanding and the Commitments shall have terminated shall be paid over to
the Borrower or to whomsoever may be lawfully entitled to receive the same.
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6.6 Code and Other Remedies. If an Event of Default shall
occur and be continuing, the Collateral Agent, on behalf of the Secured Parties,
may exercise, in addition to all other rights and remedies granted to them in
this Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the Code or any other applicable law. Without limiting the generality of the
foregoing, the Collateral Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Collateral Agent or any other Secured
Party or elsewhere upon such terms and conditions as it may deem advisable and
at such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Collateral Agent or any other Secured
Party shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in any Grantor, which right or equity is hereby waived or released.
Each Grantor further agrees, at the Collateral Agent's request, to assemble the
Collateral and make it available to the Collateral Agent at places which the
Collateral Agent shall reasonably select, whether at such Grantor's premises or
elsewhere. The Collateral Agent shall apply the net proceeds of any action taken
by it pursuant to this Section 6.6, after deducting all reasonable costs and
expenses of every kind incurred in connection therewith or incidental to the
care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Collateral Agent and the other Secured Parties
hereunder, including, without limitation, reasonable attorneys' fees and
disbursements of the Collateral Agent, to the payment in whole or in part of the
Obligations, in such order (subject to the provisions of the Intercreditor
Agreement) as the Collateral Agent may elect, and only after such application
and after the payment by the Collateral Agent of any other amount required by
any provision of law, including, without limitation, Section 9-615(a)(3) of the
Code, need the Collateral Agent account for the surplus, if any, to any Grantor.
To the extent permitted by applicable law, each Grantor waives all claims,
damages and demands it may acquire against the Collateral Agent or any other
Secured Party arising out of the exercise by them of any rights hereunder. If
any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition.
6.7 Registration Rights. If the Collateral Agent shall
determine to exercise its right to sell any or all of the Pledged Stock pursuant
to Section 6.6, and if in the opinion of the Collateral Agent it is necessary or
advisable to have the Pledged Stock, or that portion thereof to be sold,
registered under the provisions of the Securities Act, the relevant Grantor will
cause the Issuer (to the extent controlled by such Grantor) thereof to (i)
execute and deliver, and cause the directors and officers of such Issuer to
execute and deliver, all such instruments and documents, and do or cause to be
done all such other acts as may be, in the reasonable opinion of the Collateral
Agent, necessary or advisable to register the Pledged Stock, or that portion
thereof to be sold, under the provisions of the Securities Act, (ii) use its
commercially reasonable efforts to cause the registration statement relating
thereto to become effective and to remain effective for a period of one year
from the date of the first public offering of the Pledged Stock, or that portion
thereof to be sold, and (iii) make all amendments thereto and/or to the related
prospectus which, in the reasonable opinion of the Collateral Agent, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. Each Grantor agrees to cause such Issuer to
comply with the provisions of the securities or "Blue Sky" laws of any and all
jurisdictions which the Collateral Agent shall designate and to make available
to its security holders, as soon as practicable, an earnings statement (which
need not be audited) which will satisfy the provisions of Section 11(a) of the
Securities Act.
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(a) Each Grantor recognizes that the Collateral Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Collateral
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(b) Each Grantor agrees to use its commercially reasonable
efforts to do or cause to be done all such other acts as may be necessary to
make such sale or sales of all or any portion of the Pledged Stock pursuant to
this Section 6.7 valid and binding and in compliance with any and all other
applicable Requirements of Law. Each Grantor further agrees that a breach of any
of the covenants contained in this Section 6.7 will cause irreparable injury to
the Collateral Agent and the other Secured Parties, that the Collateral Agent
and the other Secured Parties have no adequate remedy at law in respect of such
breach and, as a consequence, that each and every covenant contained in this
Section 6.7 shall be specifically enforceable against such Grantor, and such
Grantor hereby waives and agrees not to assert any defenses against an action
for specific performance of such covenants except for a defense that no Event of
Default has occurred under the Credit Agreement.
6.8 Deficiency. Each Grantor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of the Collateral
are insufficient to pay its Obligations and the fees and disbursements of any
attorneys employed by the Collateral Agent or any other Secured Party to collect
such deficiency.
SECTION 7. THE COLLATERAL AGENT
7.1 Collateral Agent's Appointment as Attorney-in-Fact, etc.
Each Grantor hereby irrevocably constitutes and appoints the Collateral
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of such Grantor and in the name of such Grantor or in its
own name, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments which may be reasonably necessary or desirable to accomplish the
purposes of this Agreement, and, without limiting the generality of the
foregoing, each Grantor hereby gives the Collateral Agent the power and right,
on behalf of such Grantor, without notice to or assent by such Grantor, to do
any or all of the following:
(i) in the name of such Grantor or its own name, or
otherwise, take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under any Receivable or with respect to any other Collateral
and file any claim or take any other action or proceeding in any court
of law or equity or otherwise deemed appropriate by the Collateral
Agent for the purpose of collecting any and all such moneys due under
any Receivable or with respect to any other Collateral whenever
payable;
(ii) in the case of any Copyright, Patent or
Trademark, execute and deliver any and all agreements, instruments,
documents and papers as the Collateral Agent may request to
16
evidence the Collateral Agent's and the other Secured Parties' security
interest in such Copyright, Patent or Trademark and the goodwill and
general intangibles of such Grantor relating thereto or represented
thereby;
(iii) pay or discharge taxes and Liens levied or
placed on or threatened against the Collateral, effect any repairs or
any insurance called for by the terms of this Agreement and pay all or
any part of the premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided
for in Section 6.6 or 6.7, any indorsements, assignments or other
instruments of conveyance or transfer with respect to the Collateral;
and
(v) (1) direct any party liable for any payment under
any of the Collateral to make payment of any and all moneys due or to
become due thereunder directly to the Collateral Agent or as the
Collateral Agent shall direct; (2) ask or demand for, collect and
receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising
out of any Collateral; (3) sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts
against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral; (4) commence and
prosecute any suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral or any
portion thereof and to enforce any other right in respect of any
Collateral; (5) defend any suit, action or proceeding brought against
such Grantor with respect to any Collateral; (6) settle, compromise or
adjust any such suit, action or proceeding and, in connection
therewith, to give such discharges or releases as the Collateral Agent
may deem appropriate; (7) assign any Copyright, Patent or Trademark
(along with the goodwill of the business to which any such Copyright,
Patent or Trademark pertains), throughout the world for such term or
terms, on such conditions, and in such manner, as the Collateral Agent
shall in its sole discretion determine; and (8) generally, sell,
transfer, pledge and make any agreement with respect to or otherwise
deal with any of the Collateral as fully and completely as though the
Collateral Agent were the absolute owner thereof for all purposes, and
do, at the Collateral Agent's option and such Grantor's expense, at any
time, or from time to time, all acts and things which the Collateral
Agent deems necessary to protect, preserve or realize upon the
Collateral and the Collateral Agent's and the other Secured Parties'
security interests therein and to effect the intent of this Agreement,
all as fully and effectively as such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Collateral Agent agrees that it will not exercise any rights under the power of
attorney provided for in this Section 7.1(a) unless an Event of Default shall
have occurred and be continuing.
(a) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Collateral Agent, at its option, but without
any obligation so to do, may perform or comply, or otherwise cause performance
or compliance, with such agreement.
(b) The expenses of the Collateral Agent incurred in
connection with actions undertaken as provided in this Section 7.1, together
with interest thereon at a rate per annum as provided under the Credit
Agreement, from the date of payment by the Collateral Agent to the date
reimbursed by the relevant Grantor, shall be payable by such Grantor to the
Collateral Agent on demand.
(c) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled
17
with an interest and are irrevocable until this Agreement is terminated and the
security interests created hereby are released.
7.2 Duty of Collateral Agent. The Collateral Agent's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Collateral Agent deals with
similar property for its own account. Neither the Collateral Agent, any other
Secured Party nor any of their respective officers, directors, employees or
agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of any Grantor or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. The powers conferred on the Collateral Agent and
the other Secured Parties hereunder are solely to protect the Collateral Agent's
and the other Secured Parties' interests in the Collateral and shall not impose
any duty upon the Collateral Agent or any other Secured Party to exercise any
such powers. The Collateral Agent and the other Secured Parties shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct or
their breach of the Loan Documents.
7.3 Execution of Financing Statements. Pursuant to any
applicable law, each Grantor authorizes the Collateral Agent to file or record
financing statements and other filing or recording documents or instruments with
respect to the Collateral without the signature of such Grantor in such form and
in such offices as the Collateral Agent reasonably determines appropriate to
perfect the security interests of the Collateral Agent under this Agreement.
Each Grantor authorizes the Collateral Agent to use the collateral description
"all personal property" in any such financing statement. Each Grantor hereby
ratifies and authorizes the filing by the Collateral Agent of any financing
statement with respect to the Collateral made prior to the date hereof.
7.4 Authority of Collateral Agent. Each Grantor acknowledges
that the rights and responsibilities of the Collateral Agent under this
Agreement with respect to any action taken by the Collateral Agent or the
exercise or non-exercise by the Collateral Agent of any option, voting right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Agreement shall, as between the Collateral Agent and the
other Secured Parties, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Collateral Agent and the Grantors, the Collateral Agent shall be
conclusively presumed to be acting as agent for the Secured Parties with full
and valid authority so to act or refrain from acting, and no Grantor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing. Subject to the terms of the Credit
Agreement, the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified by a written instrument executed by each
affected Grantor and the Collateral Agent, provided that any provision of this
Agreement imposing obligations on any Grantor may be waived by the Collateral
Agent in a written instrument executed by the Collateral Agent.
8.2 Notices. All notices, requests and demands to or upon the
Collateral Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 10.1 of the Credit Agreement;
18
provided that any such notice, request or demand to or upon any Guarantor shall
be addressed to such Guarantor at its notice address set forth on Schedule 1 and
any such notice, received or demand to or upon the Collateral Agent shall be
addressed to the Collateral Agent at: Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxx Xxxxxx, Telecopy: (000) 000-0000.
8.3 No Waiver by Course of Conduct; Cumulative Remedies.
Neither the Collateral Agent nor any other Secured Party shall by any act
(except by a written instrument pursuant to Section 8.1), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default. No failure to exercise,
nor any delay in exercising, on the part of the Collateral Agent or any other
Secured Party, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Collateral Agent or any
other Secured Party of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which the Collateral Agent or
such other Secured Party would otherwise have on any future occasion. The rights
and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by
law.
8.4 Enforcement Expenses; Indemnification. Each Guarantor
agrees to pay or reimburse each Secured Party and the Collateral Agent for all
its costs and expenses incurred in collecting against such Guarantor under the
guarantee contained in Section 2 or otherwise enforcing or preserving any rights
under this Agreement and the other Loan Documents to which such Guarantor is a
party, including, without limitation, the fees and disbursements of counsel to
the Collateral Agent.
(a) Each Guarantor agrees to pay, and to save the Collateral
Agent and the other Secured Parties harmless from, any and all liabilities with
respect to, or resulting from any delay in paying, any and all stamp, excise,
sales or other taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the transactions
contemplated by this Agreement.
(b) Each Guarantor agrees to pay, and to save the Collateral
Agent and the other Secured Parties harmless from, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to do so pursuant to
Section 15.5 of the Credit Agreement.
(c) The agreements in this Section 8.4 shall survive repayment
of the Obligations and all other amounts payable under the Credit Agreement and
the other Loan Documents.
8.5 Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of each Grantor and shall inure to the benefit
of the Collateral Agent and the other Secured Parties and their successors and
assigns; provided that no Grantor may assign, transfer or delegate any of its
rights or obligations under this Agreement without the prior written consent of
the Collateral Agent.
8.6 Set-Off. Each Guarantor hereby irrevocably authorizes the
Collateral Agent and each other Secured Party at any time and from time to time
while an Event of Default pursuant to Section 12(a) of the Credit Agreement
shall have occurred and be continuing, without notice to such Guarantor, any
other Guarantor or the Borrower, any such notice being expressly waived by each
Guarantor and by the Borrower, to set-off and appropriate and apply any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any
19
time held or owing by the Collateral Agent or such other Secured Party to or for
the credit or the account of such Guarantor, or any part thereof in such amounts
as the Collateral Agent or such other Secured Party may elect, against and on
account of the obligations and liabilities of such Guarantor to the Collateral
Agent or such other Secured Party hereunder and claims of every nature and
description of the Collateral Agent or such other Secured Party against such
Guarantor, in any currency, whether arising hereunder, under the Credit
Agreement, any other Loan Document or otherwise, as the Collateral Agent or such
other Secured Party may elect, whether or not the Collateral Agent or any other
Secured Party has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The Collateral Agent and
each other Secured Party shall notify such Guarantor promptly of any such
set-off and the application made by the Collateral Agent or such other Secured
Party of the proceeds thereof, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of the
Collateral Agent and each other Secured Party under this Section 8.6 are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Collateral Agent or such other Secured Party may
have.
8.7 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
8.8 Severability. Any provision of this Agreement which is
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.
8.9 Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
8.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Grantors, the Collateral Agent and the other
Secured Parties with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Collateral Agent or
any other Secured Party relative to subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers. Each Grantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(a) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or
20
proceeding in any such court or that such action or proceeding was
brought in an inconvenient court and agrees not to plead or claim the
same;
(b) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Grantor at its address referred to in Section 8.2 or
at such other address of which the Collateral Agent shall have been
notified pursuant thereto;
(c) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(d) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
8.13 Acknowledgements. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents to which
it is a party;
(b) neither the Collateral Agent nor any other Secured Party
has any fiduciary relationship with or duty to any Grantor arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Grantors, on the one hand, and the Collateral Agent and
other Secured Parties, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Secured Parties or among the Grantors and the Secured Parties.
8.14 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.15 Additional Grantors. Each Subsidiary of the Borrower that
is required to become a party to this Agreement pursuant to Section 10.12 of the
Credit Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex 1 hereto.
8.16 Releases. At such time as the Obligations shall have
been paid in full, the Commitments have been terminated and no Letters of Credit
shall be outstanding, the Collateral shall be released from the Liens created
hereby, and this Agreement and all obligations (other than those expressly
stated to survive such termination) of the Collateral Agent and each Grantor
hereunder shall terminate, all without delivery of any instrument or performance
of any act by any party, and all rights to the Collateral shall revert to the
Grantors. At the request and sole expense of any Grantor following any such
termination, the Collateral Agent shall deliver to such Grantor any Collateral
held by the Collateral Agent hereunder, and execute and deliver to such Grantor
such documents as such Grantor shall reasonably request to evidence such
termination.
21
(a) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Grantor in a transaction permitted by the Credit
Agreement, then the Collateral Agent, at the request and sole expense of such
Grantor, shall execute and deliver to such Grantor all releases or other
documents reasonably necessary or desirable for the release of the Liens created
hereby on such Collateral. At the request and sole expense of the Borrower, a
Guarantor shall be released from its obligations hereunder in the event that all
the Capital Stock of such Guarantor shall be sold, transferred or otherwise
disposed of in a transaction permitted by the Credit Agreement.
8.17 Intercreditor Agreement. The terms and provisions of this
Agreement (including, without limitation, the priority of the security interest
granted hereunder and the exercise of remedies hereunder) are subject to the
terms and conditions of the Intercreditor Agreement in all respects.
22
IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of the
date first above written.
VIASYSTEMS, INC., as a Grantor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Title: Senior VP
VIASYSTEMS GROUP, INC., as a Guarantor and a
Grantor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Title: Senior VP
VIASYSTEMS INTERNATIONAL, INC., as a
Subsidiary Guarantor and a Grantor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Title: Senior VP
VIASYSTEMS ACQUISITION, LLC, as a Subsidiary
Guarantor and a Grantor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Title: Senior VP
WIREKRAFT INDUSTRIES, INC., as a Subsidiary
Guarantor and a Grantor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Title: Senior VP
WIRE HARNESS INDUSTRIES, INC., as a
Subsidiary Guarantor and a Grantor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Title: Senior VP
23
WIREKRAFT EMPLOYMENT COMPANY, as a
Subsidiary Guarantor and a Grantor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Title: Senior VP
WIREKRAFT HOLDING COMPANY, as a Subsidiary
Guarantor and a Grantor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Title: Senior VP
ECM HOLDING COMPANY, as a Subsidiary
Guarantor and a Grantor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Title: Senior VP
VIASYSTEMS TECHNOLOGIES CORP., L.L.C., as a
Subsidiary Guarantor and a Grantor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Title: Senior VP
VIASYSTEMS SAN XXXX, INC., as a Subsidiary
Guarantor and a Grantor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Title: Senior VP
QUICK TURN ASSEMBLY, INC., as a Subsidiary
Guarantor and a Grantor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Title: Senior VP
VIASYSTEMS PORTLAND, INC., as a Subsidiary
Guarantor and a Grantor
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Title: Senior VP
24
VIASYSTEMS MILWAUKEE, INC., as a Subsidiary
Guarantor and a Grantor
By: /s/ XXXXX X. XXXXXXX
----------------------------------------
Title: Senior VP
25
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Guarantee
and Collateral Agreement, dated as of January 31, 2003 (the "Agreement"), made
by the Grantors parties thereto for the benefit of JPMorgan Chase Bank, as
Collateral Agent. The undersigned agrees for the benefit of the Collateral Agent
and the other Secured Parties as follows:
The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
The undersigned will notify the Collateral Agent promptly in writing of
the occurrence of any of the events described in Section 5.7(a) of the
Agreement.
The terms of Sections 6.3(c) and 6.7 of the Agreement shall apply to
it, mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section 6.3(c) or 6.7 of the Agreement.
[NAME OF ISSUER]
By: _________________________________
Title: ______________________________
Address for Notices:
_____________________________________
_____________________________________
Fax: ________________________________
Annex 1 to
Guarantee and Collateral Agreement
ASSUMPTION AGREEMENT, dated as of ________________, ____, made
by ______________________________, a ______________ (the "Additional Grantor"),
in favor of JPMorgan Chase Bank, as collateral agent (in such capacity, the
"Collateral Agent"), for the Secured Parties (as defined below). All capitalized
terms not defined herein shall have the meaning ascribed to them in the Credit
Agreement referred to below.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, dated as of January
31, 2003 (as amended, modified, supplemented, restated and in effect from time
to time, the "Credit Agreement"), among Viasystems Group, Inc., a Delaware
corporation ("Holdings"), Viasystems, Inc., a Delaware corporation (the
"Borrower"), JPMorgan Chase Bank ("JPMorgan Chase"), each of the other financial
institutions from time to time party thereto (together with JPMorgan Chase, the
"Lenders"), and JPMorgan Chase Bank, as administrative agent (in such capacity,
the "Administrative Agent") for the Lenders, the Lenders have severally agreed
to make extensions of credit to the Borrowers upon the terms and subject to the
conditions set forth therein;
WHEREAS, in connection with the Credit Agreement, Holdings,
the Borrower and certain of their Subsidiaries (other than the Additional
Grantor) have entered into the Guarantee and Collateral Agreement, dated as of
January 31, 2003 (as amended, supplemented or otherwise modified from time to
time, the "Guarantee and Collateral Agreement") in favor of the Collateral Agent
for the benefit of the Secured Parties;
WHEREAS, the Credit Agreement requires the Additional Grantor
to become a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and
deliver this Assumption Agreement in order to become a party to the Guarantee
and Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and
delivering this Assumption Agreement, the Additional Grantor, as provided in
Section 8.15 of the Guarantee and Collateral Agreement, hereby becomes a party
to the Guarantee and Collateral Agreement as a Grantor thereunder with the same
force and effect as if originally named therein as a Grantor and, without
limiting the generality of the foregoing, hereby (a) guarantees the Borrower
Obligations as set forth in Section 2 of the Guarantee and Collateral Agreement,
(b) grants to the Collateral Agent for the benefit of the Secured Parties a
security interest in the Collateral on the terms and conditions of the Guarantee
and Collateral Agreement and (c) expressly assumes all obligations and
liabilities of a Grantor thereunder. The information set forth in Annex 1-A
hereto is hereby added to the information set forth in Schedules ____________(1)
to the Guarantee and Collateral Agreement. The Additional Grantor hereby
represents and warrants that each of the representations and warranties
contained in Section 4 of the Guarantee and
--------------------
1. Refer to each Schedule which needs to be supplemented.
Collateral Agreement is true and correct on and as the date hereof (after giving
effect to this Assumption Agreement) as if made on and as of such date.
2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:___________________________
Name:
Title:
2
