FORM OF GUARANTEE AGREEMENT dated as of among AMERICAN AXLE & MANUFACTURING, INC., AMERICAN AXLE & MANUFACTURING HOLDINGS, INC., THE SUBSIDIARY GUARANTORS IDENTIFIED HEREIN and JPMORGAN CHASE BANK, as Administrative Agent
EXHIBIT
99.5
EXHIBIT A
dated as of
among
AMERICAN AXLE & MANUFACTURING, INC.,
AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.,
THE SUBSIDIARY GUARANTORS
IDENTIFIED HEREIN
and
JPMORGAN CHASE BANK,
as Administrative Agent
TABLE OF CONTENTS
ARTICLE I |
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Definitions |
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SECTION 1.01. Credit Agreement |
1 | |||
SECTION 1.02. Other Defined Terms |
1 | |||
ARTICLE II |
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The Guarantees |
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SECTION 2.01. Guarantee |
2 | |||
SECTION 2.02. Guarantee of Payment |
2 | |||
SECTION 2.03. No Limitations |
3 | |||
SECTION 2.04. Reinstatement |
3 | |||
SECTION 2.05. Agreement To Pay; Subrogation |
4 | |||
SECTION 2.06. Information |
4 | |||
ARTICLE III |
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Indemnity, Subrogation and Subordination |
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SECTION 3.01. Indemnity and Subrogation |
4 | |||
SECTION 3.02. Contribution and Subrogation |
4 | |||
SECTION 3.03. Subordination |
5 | |||
ARTICLE IV |
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Miscellaneous |
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SECTION 4.01. Notices |
5 | |||
SECTION 4.02. Waivers; Amendment |
5 | |||
SECTION 4.03. Administrative Agent’s Fees and Expenses; Indemnification |
6 | |||
SECTION 4.04. Successors and Assigns |
6 | |||
SECTION 4.05. Survival of Agreement |
6 | |||
SECTION 4.06. Counterparts; Effectiveness; Several Agreement |
7 | |||
SECTION 4.07. Severability |
7 | |||
SECTION 4.08. Right of Set-Off |
7 | |||
SECTION 4.09. Governing Law; Jurisdiction; Consent to Service of Process |
8 | |||
SECTION 4.10. WAIVER OF JURY TRIAL |
8 | |||
SECTION 4.11. Judgment Currency |
9 | |||
SECTION 4.12. Headings |
9 | |||
SECTION 4.13. Termination |
9 |
SECTION 4.14. Additional Guarantors |
10 | |||
Schedules |
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Schedule I Initial Subsidiary Guarantors |
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Exhibits |
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Exhibit A Form of Supplement |
GUARANTEE
AGREEMENT dated as of among AMERICAN
AXLE & MANUFACTURING, INC., AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.,
the SUBSIDIARY GUARANTORS identified herein and JPMORGAN CHASE BANK, as
Administrative Agent.
AXLE & MANUFACTURING, INC., AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.,
the SUBSIDIARY GUARANTORS identified herein and JPMORGAN CHASE BANK, as
Administrative Agent.
Reference
is made to the
Agreement dated as of (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among
American Axle & Manufacturing, Inc. (the “Borrower”), American Axle & Manufacturing
Holdings, Inc. (the “Parent”), the Lenders party thereto and JPMorgan Chase Bank, as
Administrative Agent. The Lenders have agreed to extend credit to the Borrower subject to the
terms and conditions set forth in the Credit Agreement. The obligations of the Lenders to extend
such credit are conditioned upon, among other things, the execution and delivery of this Agreement.
The Parent and the Subsidiary Guarantors are affiliates of the Borrower, will derive substantial
benefits from the extension of credit to the Borrower pursuant to the Credit Agreement and are
willing to execute and deliver this Agreement in order to induce the Lenders to extend such credit.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Credit Agreement. (a) Capitalized terms used in this Agreement and not
otherwise defined herein have the meanings specified in the Credit Agreement.
(b) The rules of construction specified in Section 1.03 of the Credit Agreement also apply to
this Agreement.
SECTION 1.02. Other Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
“Borrower” has the meaning assigned to such term in the preliminary statement of this
Agreement.
“Credit Agreement” has the meaning assigned to such term in the preliminary statement
of this Agreement.
“Guaranteed Parties” means (a) the Lenders, (b) the Issuing Banks, (c) the
Administrative Agent, (d) the beneficiaries of each indemnification obligation undertaken by the
Borrower under the Credit Agreement and (e) the successors and permitted assigns of each of the
foregoing.
“Guarantors” means the Parent and the Subsidiary Guarantors.
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“Obligations” means (a) the due and punctual payment by the Borrower of (i) the
principal of and interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrower
under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments
in respect of reimbursement of disbursements, interest thereon and obligations to provide cash
collateral and (iii) all other monetary obligations of the Borrower to any of the Guaranteed
Parties under the Credit Agreement, including obligations to pay fees, expense reimbursement
obligations and indemnification obligations, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding) and (b) the due and punctual payment of all other obligations of each Loan Party
under or pursuant to each of the Loan Documents.
“Parent” has the meaning assigned to such term in the preliminary statement of this
Agreement.
“Subsidiary Guarantors” means the Subsidiaries identified on Schedule I and each other
Subsidiary that becomes a party to this Agreement as a Subsidiary Guarantor after the Effective
Date pursuant to Section 4.14 of this Agreement or Section 5.09 of the Credit Agreement;
provided, that if a Subsidiary is released from its obligations as a Subsidiary Guarantor
hereunder as provided in Section 4.13(b) or (c), such Subsidiary shall cease to be a Subsidiary
Guarantor hereunder effective upon such release.
ARTICLE II
The Guarantees
SECTION 2.01. Guarantee. Each Guarantor unconditionally guarantees, jointly with the
other Guarantors and severally, as a primary obligor and not merely as a surety, the due and
punctual payment of the Obligations. Each of the Guarantors further agrees that the Obligations
may be extended or renewed, in whole or in part, without notice to or further assent from it, and
that it will remain bound upon its guarantee notwithstanding any extension or renewal of any
Obligation. Each of the Guarantors waives presentment to, demand of payment from and protest to
the Borrower or any other Loan Party of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment.
SECTION 2.02. Guarantee of Payment. Each of the Guarantors further agrees that its
guarantee hereunder constitutes a guarantee of payment when due and not of collection, and waives
any right to require that any resort be had by the Guaranteed Parties to any balance of any deposit
account or credit on the books of any Guaranteed Party in favor of the Borrower or any other
Person.
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SECTION 2.03. No Limitations. (a) Except for termination of a Guarantor’s
obligations hereunder as expressly provided in Section 4.13, the obligations of each Guarantor
hereunder shall not be subject to any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without
limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be
discharged or impaired or otherwise affected by (i) the failure of any Guaranteed Party to assert
any claim or demand or to enforce any right or remedy under the provisions of any Loan Document or
otherwise; (ii) any rescission, waiver, amendment or modification of, or any release from any of
the terms or provisions of, any Loan Document or any other agreement, including with respect to any
other Guarantor under this Agreement; (iii) the release of any security held by any Guaranteed
Party for any of the Obligations; (iv) any default, failure or delay, wilful or otherwise, in the
performance of the Obligations; or (v) any other act or omission that may or might in any manner or
to any extent vary the risk of any Guarantor or otherwise operate as a discharge of any Guarantor
as a matter of law or equity (other than the payment in full in cash of all the Obligations). If
any security is granted to secure the payment of the Obligations, each Guarantor expressly
authorizes the Guaranteed Parties to exchange, waive or release any or all such security (with or
without consideration), to enforce or apply such security and direct the order and manner of any
sale thereof in their sole discretion or to release or substitute any one or more other guarantors
or obligors upon or in respect of the Obligations, all without affecting the obligations of any
Guarantor hereunder.
(b) To the fullest extent permitted by applicable law, each Guarantor waives any defense based
on or arising out of any defense of the Borrower or any other Loan Party or the unenforceability of
the Obligations or any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower or any other Loan Party, other than the payment in full in cash of all
the Obligations. The Guaranteed Parties may, at their election, foreclose on any security held by
one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such
security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other
accommodation with the Parent, the Borrower or any other Loan Party or exercise any other right or
remedy available to them against the Parent, the Borrower or any other Loan Party, without
affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the
Obligations have been fully paid in full in cash. To the fullest extent permitted by applicable
law, each Guarantor waives any defense arising out of any such election even though such election
operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or
subrogation or other right or remedy of such Guarantor against the Parent, the Borrower or any
other Loan Party, as the case may be, or any security.
SECTION 2.04. Reinstatement. Each of the Guarantors agrees that its guarantee
hereunder shall continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is rescinded or must
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otherwise be restored by any
Guaranteed Party upon the bankruptcy or reorganization of the Borrower, any other Loan Party or
otherwise.
SECTION 2.05. Agreement To Pay; Subrogation. In furtherance of the foregoing and not
in limitation of any other right that the Administrative Agent or any other Guaranteed Party has at
law or in equity against any Guarantor by virtue hereof, upon the failure of the Borrower or any
other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity,
by acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises to and
will forthwith pay, or cause to be paid, to the Administrative Agent for distribution to the
applicable Guaranteed Parties in cash the amount of such unpaid Obligation. Upon payment by any
Guarantor of any sums to the Administrative Agent as provided above, all rights of such Guarantor
against the Borrower or any other Loan Party arising as a result thereof by way of right of
subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject
to Article III.
SECTION 2.06. Information. Each Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower’s and each other Loan Party’s financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of the Obligations and
the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and
agrees that none of the Guaranteed Parties will have any duty to advise such Guarantor of
information known to it or any of them regarding such circumstances or risks.
ARTICLE III
Indemnity, Subrogation and Subordination
SECTION 3.01. Indemnity and Subrogation. In addition to all such rights of indemnity
and subrogation as the Guarantors may have under applicable law (but subject to Section 3.03) in
respect of any payment hereunder, the Borrower agrees that in the event a payment of an Obligation
shall be made by any Guarantor under this Agreement, the Borrower shall indemnify such Guarantor
for the full amount of such payment and such Guarantor shall be subrogated to the rights of the
Person to whom such payment shall have been made to the extent of such payment.
SECTION 3.02. Contribution and Subrogation. Each Guarantor (a “Contributing
Party”) agrees (subject to Section 3.03) that, in the event a payment shall be made by any
other Guarantor hereunder in respect of any Obligation and such other Guarantor (the “Claiming
Party”) shall not have been fully indemnified by the Borrower as provided in Section 3.01, the
Contributing Party shall indemnify the Claiming Party in an amount equal to the amount of such
payment, multiplied by a fraction of which the numerator shall be the net worth of the Contributing
Party on the date hereof and the denominator shall be the aggregate net worth of all the Guarantors
on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to
Section 4.14, the date of the supplement hereto executed and delivered by such Guarantor). Any
Contributing Party making any payment to a Claiming Party pursuant to this Section 3.02 shall be
5
subrogated to the rights of such Claiming Party under Section 3.01 to the extent of such payment.
For purposes of this Agreement, “net worth” of any Guarantor as of any date shall mean (a) the
amount of the total assets of such Guarantor as of such date minus (b) the amount of the total
liabilities of such Guarantor as of such date, in each case that would be reflected on a balance
sheet prepared on a consolidated basis as of such date in accordance with GAAP.
SECTION 3.03. Subordination. Notwithstanding any provision of this Agreement to the
contrary, each Guarantor hereby agrees not to exercise any rights under Sections 3.01 and 3.02 or
any other rights of indemnity, contribution or subrogation under applicable law or otherwise in
respect of payments hereunder unless and until all of the Obligations shall have been paid in full
in cash. No failure on the part of the Borrower or any Guarantor to make the payments required by
Sections 3.01 and 3.02 (or any other payments required under applicable law or otherwise) shall in
any respect limit the obligations and liabilities of any Guarantor with respect to its obligations
hereunder, and each Guarantor shall remain liable for the full amount of the obligations of such
Guarantor hereunder.
ARTICLE IV
Miscellaneous
SECTION 4.01. Notices. All communications and notices hereunder shall (except as
otherwise expressly permitted herein) be in writing and given as provided in Section 9.01 of the
Credit Agreement. All communications and notices hereunder to any Subsidiary Guarantor shall be
given to it in care of the Parent as provided in Section 9.01 of the Credit Agreement.
SECTION 4.02. Waivers; Amendment. (a) No failure or delay by the Administrative
Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder
and under the Credit Agreement are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Loan Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section 4.02, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. Without limiting the generality
of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as
a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing
Bank may have had notice or knowledge of such Default at the time. No notice or demand on any Loan
Party in any case shall entitle any Loan Party to any other or further notice or demand in similar
or other circumstances.
6
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the
Loan Party or Loan Parties with respect to which such waiver, amendment or modification is to
apply, subject to any consent required in accordance with Section 9.02 of the Credit Agreement.
SECTION 4.03. Administrative Agent’s Fees and Expenses; Indemnification. (a) The
parties hereto agree that the Administrative Agent shall be entitled to reimbursement of its
expenses incurred hereunder as provided in Section 9.03 of the Credit Agreement.
(b) Without limitation of the Borrower’s indemnification obligations under the Credit
Agreement, each Guarantor jointly and severally agrees to indemnify the Administrative Agent and
the other Indemnitees (as defined in Section 9.03 of the Credit Agreement) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses,
including the reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result
of, the execution, delivery or performance of this Agreement or any claim, litigation,
investigation or proceeding relating to any of the foregoing agreement or instrument contemplated
hereby, whether or not any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee or any of its directors, trustees, officers or employees.
(c) The provisions of this Section 4.03 shall remain operative and in full force and effect
regardless of the termination of this Agreement or the Credit Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or
unenforceability of any term or provision of this Agreement or the Credit Agreement, or any
investigation made by or on behalf of any Guaranteed Party. All amounts due under this
Section 4.03 shall be payable promptly after written demand therefor.
SECTION 4.04. Successors and Assigns. Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the permitted successors and
assigns of such party; and all covenants, promises and agreements by or on behalf of any Guarantor
that are contained in this Agreement shall bind and inure to the benefit of its respective
successors and assigns.
SECTION 4.05. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement or any other Loan Document
shall be considered to have been relied upon by the Lenders and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any Lender or any Issuing Bank or on its behalf and
7
notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had notice
or knowledge of any Default or incorrect representation or warranty at the time any credit is
extended under the Credit Agreement, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount payable under any
Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated.
SECTION 4.06. Counterparts; Effectiveness; Several Agreement. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original but all of which when taken together shall constitute single contract.
Delivery of an executed signature page to this Agreement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Agreement. This Agreement shall
become effective as to any Loan Party when a counterpart hereof executed on behalf of such Loan
Party shall have been delivered to the Administrative Agent and a counterpart hereof shall have
been executed on behalf of the Administrative Agent, and thereafter shall be binding upon such Loan
Party and the Administrative Agent and their respective permitted successors and assigns, and shall
inure to the benefit of such Loan Party, the Administrative Agent and the other Guaranteed Parties
and their respective successors and assigns, except that no Loan Party shall have the right to
assign or transfer its rights or obligations hereunder or any interest herein (and any such
assignment or transfer shall be void) except as expressly contemplated by this Agreement or the
Credit Agreement. This Agreement shall be construed as a separate agreement with respect to each
Loan Party and may be amended, modified, supplemented, waived or released with respect to any Loan
Party without the approval of any other Loan Party and without affecting the obligations of any
other Loan Party hereunder.
SECTION 4.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or uneforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The
parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 4.08. Right of Set-Off. Upon the occurrence and during the continuance of an
Event of Default, and provided that the Loans shall have become or shall have been declared due and
payable pursuant to the provisions of Article VII of the Credit Agreement, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional or final) at any
time held and other obligations at any time owing by such Lender to or for the credit or the
account of any Subsidiary Guarantor against any of and all the obligations of such Subsidiary
Guarantor now or hereafter existing under this Agreement owed to such Lender, irrespective of
whether or
8
not such Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. Each Lender agrees to promptly notify the Parent and the Borrower
after any such set-off and application; provided, that the failure of any Lender to so
notify the Parent and the Borrower shall not affect the validity of any such set-off and
application. The rights of each Lender under this Section 4.08 are in addition to other rights and
remedies (including other rights of set-off) which such Lender may have.
SECTION 4.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) Each of the Loan Parties hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any other Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in
this Agreement or any other Loan Document shall affect any right that the Administrative Agent, any
Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against any Guarantor or its properties in the courts of any
jurisdiction.
(c) Each of the Loan Parties hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in paragraph (b) of this Section 4.09. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 4.01. Nothing in this Agreement or the Credit Agreement will
affect the right of any party to this Agreement to serve process in any other manner permitted by
law.
SECTION 4.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO
9
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 4.10.
SECTION 4.11. Judgment Currency. (a) The obligations hereunder of each Guarantor to
make payments in Dollars or in an Alternative Currency, as the case may be (the “Obligation
Currency”), shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than the Obligation Currency, except to
the extent that such tender or recovery results in the effective receipt by the Administrative
Agent or a Lender of the full amount of the Obligation Currency expressed to be payable to the
Administrative Agent or such Lender under this Agreement or the Credit Agreement. If, for the
purpose of obtaining or enforcing judgment against a Guarantor in any jurisdiction, it becomes
necessary to convert into or from any currency other than the Obligation Currency (such other
currency being thereinafter referred to as the “Judgment Currency”) an amount due in the
Obligation Currency, the conversion shall be made, at the Currency Equivalent of such amount, as of
the date immediately preceding the day on which the judgment is given (such Business Day being
hereinafter referred to as the “Judgment Currency Conversion Date”).
(b) If there is a change in the rate of exchange prevailing between the Judgment Currency
Conversion Date and the date of actual payment of the amount due, each Guarantor covenants and
agrees to pay, or cause to be paid, such additional amounts, if any (but in any event not a lesser
amount), as may be necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of Judgment Currency stipulated
in the judgment or judicial award at the rate of exchange prevailing on the Judgment Currency
Conversion Date.
(c) For purposes of determining the Currency Equivalent under this Section 4.11, such amounts
shall include any premium and costs payable in connection with the purchase of the Obligation
Currency.
SECTION 4.12. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and are not to affect
the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 4.13. Termination. (a) Subject to Section 2.04, this Agreement and the
Guarantees made herein shall terminate when all the outstanding Obligations have been paid in full
in cash, the Lenders have no further commitment to lend under the Credit Agreement, the LC Exposure
has been reduced to zero and the
10
Issuing Banks have no further obligations to issue Letters of
Credit under the Credit Agreement.
(b) A Subsidiary Guarantor shall automatically be released from its obligations hereunder upon
the consummation of any transaction permitted by the Credit Agreement as a result of which such
Subsidiary Guarantor ceases to be a Subsidiary of the Parent; provided that the Required
Lenders shall have consented to such transaction (to the extent required by the Credit Agreement)
and the terms of such consent did not provide otherwise.
(c) If and when a Subsidiary Guarantor ceases to be a Material Subsidiary, such Subsidiary
Guarantor shall be released from its obligations hereunder; provided, that such release
shall not be effective unless and until the Administrative Agent shall have received a certificate,
executed on behalf of each of the Parent and the Borrower by one of its Financial Officers and
reasonably satisfactory in form to the Administrative Agent, identifying each Subsidiary Guarantor
to be released and certifying that (i) such Subsidiary Guarantor to be released is no longer a
Material Subsidiary and (ii) no Default has occurred and is continuing both before and after giving
effect to such release. It is understood that the Parent and the Borrower may, at their option,
elect not to identify a Subsidiary Guarantor in such certificate that otherwise is entitled to be
released pursuant to this paragraph, in which case such Subsidiary shall remain a Subsidiary
Guarantor hereunder, subject to the right to effect the release of such Subsidiary Guarantor at a
later date upon delivery of another certificate with respect to such Subsidiary Guarantor in
accordance with this paragraph.
SECTION 4.14. Additional Guarantors. Pursuant to Section 5.09 of the Credit
Agreement, additional Subsidiaries may be required to become Subsidiary Guarantors after the date
hereof. Subsidiaries that are not Foreign Subsidiaries also may elect to become Subsidiary
Guarantors hereunder. Upon execution and delivery by the Administrative Agent and a Subsidiary of
an instrument in the form of Exhibit A hereto (or any other form approved by the Administrative
Agent), any such Subsidiary shall become a Subsidiary Guarantor hereunder with the same force and
effect as if originally named as a Subsidiary Guarantor herein. The execution and delivery of any
such instrument shall not require the consent of any other Loan Party hereunder. The rights and
obligations of each Loan Party hereunder shall remain in full force and effect notwithstanding the
addition of any Subsidiary as a party to this Agreement.
[Remainder of page intentionally left blank]
11
IN WITNESS WHEREOF, the parties hereto have
duly executed this Guarantee Agreement as of the day and year first above written.
| AMERICAN AXLE & MANUFACTURING, INC., |
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| By | ||||
| Name: | ||||
| Title: | ||||
| AMERICAN AXLE & MANUFACTURING HOLDINGS, INC. |
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| By | ||||
| Name: | ||||
| Title: | ||||
| JPMORGAN CHASE BANK, as Administrative Agent |
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| By | ||||
| Name: | ||||
| Title: | ||||
