Amendment No.1 dated as of May 18, 2004 to Performance Guaranty

EX-10.2 5 k86718exv10w2.txt AMENDMENT NO.1 DATED AS OF MAY 18, 2004 TO PERFORMANCE GUARANTY EXHIBIT 10.2 AMENDMENT NO. 1 Dated as of May 18, 2004 to PERFORMANCE GUARANTY Dated as of February 28, 2003 THIS AMENDMENT NO. 1 (this "Amendment") dated as of May 18, 2004, is entered into by and among (i) TRW AUTOMOTIVE INC. (formerly known as TRW Automotive Acquisition Corp.) and the other "Performance Guarantors" identified on the signature pages hereto (collectively, the "Performance Guarantors"), (ii) TRW AUTOMOTIVE RECEIVABLES LLC (the "Transferor"), (iii) TRW AUTOMOTIVE GLOBAL RECEIVABLES LLC (the "Borrower"), (iv) the "Conduit Lenders" identified on the signature pages hereto, (v) the "Committed Lenders" identified on the signature pages hereto, (vi) the "Funding Agents" identified on the signature pages hereto and (vii) JPMORGAN CHASE BANK, as administrative agent (the "Administrative Agent"). PRELIMINARY STATEMENTS A. Reference is made to the Performance Guaranty dated as of February 28, 2003 (the "Performance Guaranty") executed by the Performance Guarantors in favor of the Transferor, the Borrower and the Administrative Agent (on behalf of itself and the other Secured Parties). Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Performance Guaranty or, if not defined therein, in the Receivables Loan Agreement referred to therein. B. The parties hereto have agreed to amend the Performance Guaranty on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the premises set forth above, and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: SECTION 1. Amendments. Effective as of the Effective Date (as defined below), the Performance Guaranty is amended as follows: 1.1 Clause (ii) of Section 7(a) of the Performance Guaranty is amended to replace the semi-colon at the end of such clause with a period. In addition, clauses (i) and (ii) of Section 7(a) of the Performance Guaranty are amended to add the following text at the end of each such clause immediately before the period: "; provided that, so long as (i) either Holdings or Intermediate Holdings is subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and (ii) Holdings or Intermediate Holdings, as applicable, is not engaged in any business or business activity other than that which is expressly permitted under Section 6.08 of the Senior Credit Agreement as in effect on the date hereof, this clause may be satisfied by the provision of consolidated financial statements of Holdings or Intermediate Holdings, as applicable, in a manner consistent with the other requirements of this clause, and all references to TRW Acquisition in this clause shall instead be deemed to be references to Holdings or Intermediate Holdings, as applicable". 1.2. Clause (iii) of Section 7(a) of the Performance Guaranty is amended to delete the text "concurrently with any delivery" in each place where such text appears therein and to substitute therefor the text "no later than five Business Days after any delivery" in each such place. SECTION 2. Conditions Precedent. This Amendment shall become effective as of the date (the "Effective Date") on which the Administrative Agent shall have received a copy of this Amendment duly executed by the Performance Guarantors, the Transferor, the Borrower, the Administrative Agent and the Required Committed Lenders. SECTION 3. Reference to and Effect on the Performance Guaranty. 3.1 Upon the effectiveness of this Amendment, each reference in the Performance Guaranty to "this Guaranty," "hereunder," "hereof," "herein," "hereby" or words of like import shall mean and be a reference to the Performance Guaranty as amended hereby, and each reference to the Performance Guaranty in any other Transaction Document shall mean and be a reference to the Performance Guaranty as amended hereby. 3.2 Except as specifically amended hereby, the Performance Guaranty, the other Transaction Documents and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed. 3.3 The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Beneficiary under the Performance Guaranty, the other Transaction Documents or any other document, instrument, or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein. 3.4 Each Performance Guarantor represents and warrants that this Amendment has been duly authorized, executed and delivered by it pursuant to its limited liability company or corporate powers, as applicable, and constitutes its legal, valid and binding obligation. SECTION 4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. SECTION 5. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken 2 together shall constitute but one and the same instrument. Delivery of an executed counterpart of this Amendment by facsimile shall be effective as delivery of a manually executed counterpart of this Amendment. SECTION 6. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose. 3 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the date first written above. TRW AUTOMOTIVE INC., as a Performance Guarantor By: /s/ Peter R. Rapin -------------------------------------- Name: Peter R. Rapin Title: Treasurer TRW AUTOMOTIVE U.S. LLC, as a Performance Guarantor By: /s/ Peter R. Rapin -------------------------------------- Name: Peter R. Rapin Title: Treasurer KELSEY-HAYES COMPANY, as a Performance Guarantor By: /s/ Mark R. Gilmour -------------------------------------- Name: Mark R. Gilmour Title: Assistant Vice President - Taxes TRW VEHICLE SAFETY SYSTEMS INC., as a Performance Guarantor By: /s/ Mark R. Gilmour -------------------------------------- Name: Mark R. Gilmour Title: Assistant Vice President - Taxes Signature Page Amendment No. 1 to Performance Guaranty LAKE CENTER INDUSTRIES TRANSPORTATION, INC., as a Performance Guarantor By: /s/ Mark R. Gilmour -------------------------------------- Name: Mark R. Gilmour Title: Assistant Vice President - Taxes TRW AUTOMOTIVE GLOBAL RECEIVABLES LLC, as Borrower By: /s/ Peter R. Rapin -------------------------------------- Name: Peter R. Rapin Title: Treasurer TRW AUTOMOTIVE RECEIVABLES LLC, as Transferor By: /s/ Peter R. Rapin -------------------------------------- Name: Peter R. Rapin Title: Treasurer Signature Page Amendment No. 1 to Performance Guaranty DELAWARE FUNDING COMPANY, LLC, as a Conduit Lender By: JPMorgan Chase Bank as attorney-in-fact for Delaware Funding Company, LLC By: /s/ Bradley S. Schwartz -------------------------------------- Name: Bradley S. Schwartz Title: Managing Director JPMORGAN CHASE BANK, as a Funding Agent By: /s/ Lara Graff -------------------------------------- Name: Lara Graff Title: Vice President JPMORGAN CHASE BANK, as a Committed Lender By: /s/ Bradley S. Schwartz -------------------------------------- Name: Bradley S. Schwartz Title: Managing Director JPMORGAN CHASE BANK, as Administrative Agent By: /s/ Lara Graff -------------------------------------- Name: Lara Graff Title: Vice President Signature Page Amendment No. 1 to Performance Guaranty ALPINE SECURITIZATION CORP., as a Conduit Lender By: Credit Suisse First Boston, New York Branch, as Attorney-in-Fact By: /s/ Joseph Soave ------------------------------------- Name: Joseph Soave Title: Director By: /s/ Anthony Giordano ------------------------------------- Name: Anthony Giordano Title: Director CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH, as a Funding Agent By: /s/ Alberto Zonca ------------------------------------- Name: Alberto Zonca Title: Vice President By: /s/ Mark Lengel ------------------------------------- Name: Mark Lengel Title: Director CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH, as a Committed Lender By: /s/ Alberto Zonca ------------------------------------- Name: Alberto Zonca Title: Vice President By: /s/ Mark Lengel ------------------------------------- Name: Mark Lengel Title: Director Signature Page Amendment No. 1 to Performance Guaranty GENERAL ELECTRIC CAPITAL CORPORATION, as a Conduit Lender, as a Funding Agent and as a Committed Lender By: ------------------------------------- Name: Title: Signature Page Amendment No. 1 to Performance Guaranty RM MULTI-ASSET LIMITED, as a Conduit Lender By: /s/ ------------------------------------- Name: Title: DEUTSCHE BANK AG, LONDON, as a Funding Agent By: /s/ O. Ottmann ------------------------------------- Name: Ottmann Title: Vice President By: /s/ J. Pratt ------------------------------------- Name: Pratt Title: Director RM MULTI-ASSET LIMITED, as a Committed Lender By: /s/ ------------------------------------- Name: Title: Signature Page Amendment No. 1 to Performance Guaranty LIBERTY STREET FUNDING CORP., as a Conduit Lender By: /s/ Frank B. Bilotta ------------------------------------- Name: Frank B. Bilotta Title: Vice President THE BANK OF NOVA SCOTIA, as a Funding Agent By: /s/ Michael Eden ------------------------------------- Name: Michael Eden Title: Director THE BANK OF NOVA SCOTIA, as a Committed Lender By: /s/ Michael Eden ------------------------------------- Name: Michael Eden Title: Director Signature Page Amendment No. 1 to Performance Guaranty THREE PILLARS FUNDING CORPORATION, as a Conduit Lender By: /s/ Evelyn Echevarria ------------------------------------- Name: Evelyn Echevarria Title: Vice President SUNTRUST CAPITAL MARKETS, INC., as a Funding Agent By: /s/ James R. Bennison ------------------------------------- Name: James R. Bennison Title: Managing Director SUNTRUST BANK, as a Committed Lender By: /s/ William C. Humphries ------------------------------------- Name: William C. Humphries Title: Managing Director Signature Page Amendment No. 1 to Performance Guaranty BEETHOVEN FUNDING CORPORATION, as a Conduit Lender By: ------------------------------------- Name: Title: DRESDNER BANK AG, NEW YORK BRANCH, as a Funding Agent By: ------------------------------------- Name: Title: By: ------------------------------------- Name: Title: DRESDNER BANK AG, NEW YORK BRANCH, as a Committed Lender By: ------------------------------------- Name: Title: By: ------------------------------------- Name: Title: Signature Page Amendment No. 1 to Performance Guaranty EIFFEL FUNDING LLC, as a Conduit Lender By: /s/ Andrew L. Stidd ------------------------------------- Name: Andrew L. Stidd Title: President CDC FINANCIAL PRODUCTS INC., as a Funding Agent By: /s/ Henry J. Sandlass ------------------------------------- Name: Henry J. Sandlass Title: Managing Director By: /s/ Kathy Lynch ------------------------------------- Name: Kathy Lynch Title: Director CDC FINANCIAL PRODUCTS INC., as a Committed Lender By: /s/ Henry J. Sandlass ------------------------------------- Name: Henry J. Sandlass Title: Managing Director By: /s/ Kathy Lynch ------------------------------------- Name: Kathy Lynch Title: Director Signature Page Amendment No. 1 to Performance Guaranty