GUARANTY
Exhibit 10.24
THIS GUARANTY, dated as of October 25, 2007 (the “Guaranty”), is made by Xxxxx Lemmerz
Aluminio, S. de X.X. de C.V. together with its successors and permitted assigns, (the
“Guarantor”), in favor of U.S. Bank, National Association, acting in its capacity as
trustee under the Indenture (as defined below) and the holders of the Notes (as defined below)
(together with their respective successors and permitted assigns, collectively, the
“Beneficiary”).
Pursuant to the Indenture, dated as of May 30, 2007 (as amended, modified or supplemented from
time to time, the “Indenture”) executed by and between Xxxxx Lemmerz Finance, LLC
–Luxembourg, S.C.V. (the “Issuer”) and U.S. Bank, National Association, in its capacity of
trustee (the “Trustee”), the Issuer has issued its 8.25% Senior Notes due 2015 in the
aggregate principal amount of €130,000,000 (the “Notes”).
The Guarantor has agreed to execute and deliver the Guaranty in order to guarantee the payment
and performance of the obligations of the Issuer under the Notes and the Indenture.
1. Representations.
The Guarantor hereby represents to the Beneficiary that:
(a) The Guarantor is a limited liability company of variable capital duly incorporated and
validly existing under the laws of Mexico;
(b) The Guarantor’s legal representative has been granted with the necessary powers in order
to subscribe and grants this Guaranty, and to this day such powers have not been in anyway amended,
restricted nor revoked; and
(c) The Guarantor is a part of the economic group of the Issuer, as member of this group the
Guarantor shall receive substantial direct and indirect economic and non-economic benefits form the
issuance of the Notes by the Issuer pursuant to the Indenture and it is in the corporate interest
of the Guarantor party hereto to make this guaranty,
2. Guaranty:
The Guarantor hereby irrevocably, absolutely and unconditionally guarantees to the
Beneficiary, in terms of Articles 2794, 2795, 2798, 2800 and other and other applicable of the
Mexican Federal Civil Code, and the corresponding Articles of the federal entities of the United
Mexican States, the prompt and punctual payment, performance or delivery when due of any and all
present and future obligations regarding the obligations of the Issuer under the Notes and the
Indenture, including but not limited to the payment of principal or interest, reimbursement of
amounts drawn under fees, reasonable expenses, losses and reasonable lawyers fees that the
Beneficiary may need, as consequence of an event of default as described in section 6.01 of the
Indenture (the “Guaranteed Obligations”).
In the event that any portion of the Guaranteed Obligations is paid by the Issuer, the
obligations of the Guarantor hereunder shall continue and remain in full force and effect.
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The Guarantor and, by their acceptance of the benefits of this Guaranty, the Beneficiary
hereby confirm that it is their intention that this Guaranty and the obligations of the Guarantor
hereunder not constitute a fraudulent transfer or conveyance for purposes of any bankruptcy,
insolvency, concurso mercantile, reorganization, liquidation or similar foreign, federal or state
law to the extent applicable to this Guaranty and the obligations of the Guarantor hereunder. To
effectuate the foregoing intention, the Guarantor and, by their acceptance of the benefits of this
Guaranty, the Beneficiary hereby irrevocably agrees that the obligations of the Guarantor under
this Guaranty at any time shall be limited to the maximum amount as will result in such obligations
not constituting a fraudulent transfer or conveyance.
3. Obligations Unconditional.
(a) Obligations Unconditional. Except as otherwise provided in the Indenture with
respect to the release of guaranties and to the extent permitted by Mexican Law, the obligations of
the Guarantor hereunder are irrevocable, absolute, independent and unconditional and shall not be
affected by any circumstance which constitutes a legal or equitable discharge of a guaranty or
surety other than payment in full of the Guaranteed Obligations. In furtherance of the foregoing
and without limiting the generality thereof, the Guarantor agrees that: (a) this Guaranty is a
personal guaranty of payment when due and not of collectibility; (b) the obligations of the
Guarantor hereunder are independent of the obligations of the Issuer under the Indenture and the
Notes and the obligations of any other guarantor and a separate action or actions may be brought
and prosecuted against each guarantor whether or not any action is brought against the Issuer or
any of such other guarantors and whether or not the Issuer is joined in any such action or actions;
and (c) a payment of a portion, but not all, of the Guaranteed Obligations by the Guarantor or the
Issuer or any third party shall in no way limit, affect, modify or abridge the liability of the
Guarantor for any portion of the Guaranteed Obligations that has not been paid. This Guaranty is a
continuing guaranty and shall be binding upon the Guarantor and its successors and assigns except
as otherwise provided in the Indenture.
(b) Payments. All payments to be made hereunder by the Guarantor shall be made in
Euros to an account as shall have been notified in advance by the Beneficiary to the Guarantor and
shall be calculated and paid outside of the United Mexican States, without any deduction, payment
of any taxes, duties or any quota that shall be paid as result of the payment. All the taxes shall
be paid according to the legal applicable disposals. In the event the payment is reduced as
consequence of the withholding or deduction, such additional amounts shall be included in the
Guaranty, in order to ensure that the Beneficiary receives a net amount equal to the full amount
which it would have received had such payment not been made subject to such deduction or whit
holding.
In the event the payment is paid to the Beneficiary in a different currency form Euros, the
Guarantor shall pay the differences of the rate of exchange. The rate of exchange shall mean in
this Guaranty the rate applicable to 11:00 am (New York City Time, U.S.A.), at the respective day,
indicated to buy the Euros in New York City with the foreign currency.
4. Waiver.
Upon the occurrence of an Event of Default (as described in section 6.01 of the
Indenture) the Beneficiary at its entire discretion, may initiate a direct action without previous
notice against the Guarantor to request the payment of the any amount of the Guaranteed
Obligations. Guarantor hereby
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waives the rights and benefits of orden, excusión and división
deriving to it from Articles 2816 section I and other applicable of the Mexican Federal Civil Code,
and the corresponding Articles of the federal entities of the United Mexican States, which Articles
are not reproduced herein inasmuch as each Guarantor hereby represents to be familiar with the
contents thereof. Also, the Guarantor hereby waives as permitted by the laws the benefits pursuant
in Articles 2814 and 2815 of the Mexican Federal Civil Code, and the corresponding Articles of the
federal entities of the United Mexican States and other related articles.
5. Continuing Guaranty.
This Guaranty is a continuing guaranty and shall remain in full force and effect until the
earlier of (i) complete and indefeasible payment and satisfaction in full of the Guaranteed
Obligations or (ii) the release of this Guaranty by the Beneficiary as provided in the Indenture.
6. Independent Liability.
The Guarantor’s liability hereunder is independent of any other guarantees or other
obligations at any time in effect in relation to the Guaranteed Obligations or any part thereof,
and such liability hereunder may be enforced regardless of the existence, validity, enforcement or
non-enforcement of any such other guarantees or obligations.
7. Notices.
Any notice or communications in respect of this Guaranty shall be in writing and shall be
delivered personally, or sent by mail, fax transmission (to be affirmed in writing) or overnight
air courier guaranteeing next-day delivery to the following address:
Beneficiary:
U.S. Bank National Association
Corporate Trust Services
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Corporate Trust Services
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Vice President
Guarantor:
Xxxxx Lemmerz Aluminio, S. de X.X. de C.V.
c/o Hayes Lemmerz International Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
c/o Hayes Lemmerz International Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
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8. Headings.
The section headings contained herein are for convenience of reference only, are not part of
this Guaranty and shall not affect the construction of, or be taken into consideration in
interpreting, this Guaranty.
9. Severability.
Any provision of this Guaranty, which may be determined by competent authority to be
prohibited or unenforceable in the jurisdiction of such competent authority, as to such
jurisdiction, shall be ineffective only 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. Each such invalid or unenforceable provision will be ineffective only to the extent
of such invalidity or unenforceability.
10. Assignment.
The Beneficiary shall be entitle to assign or transfer all or any part of its rights hereunder
to any successor to the Trustee that is acting as Trustee under the Indenture without the consent
of the Guarantor.
11. Amendments.
No amendments nor modification of this Guaranty, shall be in any event be effective without
the written concurrence of the Trustee and the Guarantor. In the event the Beneficiary considers
because of the circumstances is necessary to grant a new guaranty the Guarantor accepts to modify
the terms and conditions of this Guaranty and grant a new one.
12. Governing Law.
This Guaranty and the rights of the parties hereunder shall be governed by and interpreted in
accordance with the laws of the United Mexican States.
The parties hereby irrevocably submit to the jurisdiction of the competent courts sitting in
Mexico City, Federal District.
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty by its duly authorized officer as of
the day first above written.
XXXXX LEMMERZ ALUMINIO, S. DE X.X. DE C.V. |
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/s/ Xxxx X. Xxxxxxxx | ||||
Name: | Xxxx X. Xxxxxxxx | |||
Title: President |
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