EXECUTION COPY
F-M UK HOLDING LIMITED
as Guarantor
in favour of
THE CHASE MANHATTAN BANK
as Administrative Agent
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GUARANTEE
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THIS GUARANTEE is made on 29 December 2000
BY:
(1) F-M UK HOLDING LIMITED (the "Guarantor");
In favour of:
(2) THE CHASE MANHATTAN BANK, as administrative agent (in such capacity, the
"Administrative Agent") for the several banks and other financial
institutions from time to time party to the Fourth Amended and Restated
Credit Agreement dated 29 December 2000 between Federal-Mogul Corporation
(the "Company") and each Foreign Subsidiary Borrower (together the
"Borrowers"), such banks and financial institutions (the "Lenders") and the
Administrative Agent (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement").
1. DEFINITIONS
1.1 Capitalised terms used herein but not otherwise defined shall, unless the
context otherwise requires, have the meanings ascribed to such terms in the
Credit Agreement.
1.2 The following terms shall have the following meanings:
"Cash Management Obligations" shall have the meaning ascribed thereto in
the Security Agreement.
"Secured Hedge Agreements" shall have the meaning ascribed thereto in the
Security Agreement.
2. GUARANTEE
In consideration of the Lenders and any Lender Affiliate providing the
Supplemental Revolving Credit Facility and the Tranche C Term Loan Facility
to the Borrowers pursuant to the Credit Agreement, the Guarantor
unconditionally and irrevocably:
(i) guarantees to the Administrative Agent for the rateable benefit of the
Lenders and any Lender Affiliate the due and punctual observance and
performance by each of the Borrowers of (1) their obligations in
respect of or pursuant to the Supplemental Revolving Credit Facility
and the Tranche C Term Loan Facility under the Credit Agreement, the
Notes and the other Loan Documents and (2) their obligations in
respect of or pursuant to any Secured Hedge Agreement (each of the
documents in (1) and (2) being a "Document" and together the
"Documents") and (3) the Cash Management Obligations to the
Administrative Agent, any Trustee, any Lender or Lender Affiliate
(each an "Obligee" and together "the Obligees") and promises to pay to
the Administrative Agent from time to time on demand all sums from
time to time due and payable (but unpaid) by the Borrowers under or
pursuant to the Documents or in respect of the Cash Management
Obligations or on account of any breach thereof; and
(ii) agrees as a primary obligation to indemnify the Administrative Agent
from time to time on demand from and against any loss incurred by any
of the Obligees as
a result of any of the obligations of any of the Borrowers in
respect of or pursuant to the Documents detailed in paragraph (i)
above or in respect of or pursuant to the Cash Management
Obligations being or becoming void, voidable, unenforceable or
ineffective for any reason whatsoever, whether or not known to
any of the Obligees or to the Administrative Agent, the amount of
such loss being the amount which the Obligees would otherwise
have been entitled to recover from the Borrowers.
3. PRESERVATION OF RIGHTS
3.1 The obligations of the Guarantor herein contained shall be in addition to
and independent of every other security which the Administrative Agent (or
any of the Obligees) may at any time hold in respect of any of the
Borrowers' obligations under the Documents or in respect of the Cash
Management Obligations.
3.2 Neither the obligations of the Guarantor herein contained nor the rights,
powers and remedies conferred in respect of the Guarantor upon the
Administrative Agent or any of the Obligees by the Documents or in respect
of the Cash Management Obligations or by law shall be discharged, impaired
or otherwise affected by:
(i) the winding-up, dissolution, administration or reorganisation of
any of the Borrowers or any change in their status, function,
control or ownership;
(ii) any of the obligations of any of the Borrowers under the
Documents or in respect of the Cash Management Obligations or
under any other security relating to the Documents being or
becoming illegal, invalid, unenforceable or ineffective in any
respect;
(iii) time or other indulgence being granted or agreed to be granted to
any of the Borrowers in respect of their obligations under the
Documents or in respect of the Cash Management Obligations or
under any other security;
(iv) any amendment to, or any variation, waiver or release of any
obligation of any of the Borrowers under the Documents or in
respect of the Cash Management Obligations or under any other
security;
(v) any failure to take, or fully to take, any security contemplated
by the Documents or in respect of the Cash Management Obligations
or otherwise agreed to be taken in respect of any of the
Borrowers' obligations under the Documents or in respect of the
Cash Management Obligations;
(vi) any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security
taken in respect of any of the Borrowers' obligations under the
Documents or in respect of the Cash Management Obligations; or
(vii) any other act, event or omission which, but for this Clause 3.2,
might operate to discharge, impair or otherwise affect any of the
obligations of the Guarantor herein contained or any of the
rights, powers or remedies conferred upon the
Administrative Agent or any of the Obligees by the Documents
or in respect of the Cash Management Obligations or by law.
3.3 Any settlement or discharge given by the Administrative Agent and/or any of
the Obligees to the Guarantor in respect of the Guarantor's obligations
hereunder or any other agreement reached between the Administrative Agent
and/or any of the Obligees and the Guarantor in relation thereto shall be,
and be deemed always to have been, void if any act on the faith of which
the Administrative Agent and/or any of the Obligees gave the Guarantor that
settlement or discharge or entered into that agreement is subsequently
avoided by or in pursuance of any provision of law.
3.4 The Administrative Agent and/or any of the Obligees shall not be obliged
before exercising any of the rights, powers or remedies conferred upon it
in respect of the Guarantor hereby or by law:
(i) to make any demand of any of the Borrowers;
(ii) to take any action or obtain judgment in any court against any
Borrower;
(iii) to make or file any claim or proof in a winding-up or dissolution
of any Borrower; or
(iv) to enforce or seek to enforce any security taken in respect of
any of the obligations of any of the Borrowers under the
Documents or in respect of the Cash Management Obligations.
3.5 The Guarantor agrees that, so long as any amounts are or may be owed by any
Borrower under the Documents or in respect of the Cash Management
Obligations or any Borrower is under any actual or contingent obligations
under the Documents or in respect of the Cash Management Obligations, the
Guarantor shall not exercise any rights which the Guarantor may at any time
have by reason of performance by it of its obligations hereunder:
(i) to be indemnified by any of the Borrowers;
(ii) to claim any contribution from any other guarantor of any of the
Borrowers' obligations under the Documents or in respect of the
Cash Management Obligations; and/or
(iii) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Administrative
Agent and/or the Obligees under the Documents or in respect of
the Cash Management Obligations or of any other security taken
pursuant to, or in connection with, the Documents or in respect
of the Cash Management Obligations by the Administrative Agent
and/or the Obligees.
4. REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants to each of the Obligees that the
representations and warranties set forth in Article VIII of the Credit
Agreement as they relate to the Guarantor or to the Documents to which the
Guarantor is a party or in respect of the
Cash Management Obligations, each of which is hereby incorporated herein by
reference, are true and correct, and the Administrative Agent and each
Obligee 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 Company's knowledge shall, for the purposes of this Clause
4, be deemed to be a reference to the Guarantor's knowledge.
5. PAYMENTS
The provisions of the Credit Agreement relating to the payments to be made
thereunder (including, without limitation, those regulating what is to
happen if the Borrowers are required by law to make a deduction or
withholding from any such payment) shall apply mutatis mutandis to payments
to be made hereunder.
6. CURRENCY OF ACCOUNT
Moneys received or recovered by the Administrative Agent from the Guarantor
in a currency other than that in which the said sums are due and payable
under or pursuant to the Documents or in respect of the Cash Management
Obligations or under Clause 2 hereof shall be converted into the latter
currency at the spot rate for purchasing Dollars with such moneys as set
forth in The Wall Street Journal on the business day prior to the date on
which such calculation is made.
7. CONTINUING SECURITY
The obligations of the Guarantor herein contained shall constitute and be
continuing obligations notwithstanding any settlement of account or other
matter or thing whatsoever, and in particular but without limitation, shall
not be considered satisfied by any intermediate payment or satisfaction of
all or any of the obligations of any of the Borrowers under the Documents
or in respect of the Cash Management Obligations and shall continue in full
force and effect until final payment in full of all amounts owing by the
Borrowers thereunder and total satisfaction of all the Borrowers' actual
and contingent obligations thereunder.
8. SET-OFF
Upon the occurrence and during the continuation of any Event of Default,
the Guarantor hereby irrevocably authorises each Obligee at any time and
from time to time without notice to the Guarantor, any such notice being
expressly waived by the Guarantor, 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 time held or owing by such Obligee
to or for the credit or the account of the Guarantor, or any part thereof
in such amounts as such Obligee may elect, against and on account of the
obligations and liabilities of the Guarantor to such Obligee hereunder
which are then due and payable and claims of every nature and description
of such Obligee against the Guarantor, in any currency, whether arising
hereunder, under any of the Documents or in respect of the Cash Management
Obligations or otherwise in connection therewith, as such Obligee may
elect, whether or not the Administrative Agent or any Obligee has made any
demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The Administrative
Agent and each Obligee shall notify the Guarantor promptly of any such set-
off and the application made by the Administrative Agent or such Obligee
provided that the failure to give such notice shall not affect the validity
of such set-off and application. The rights of the Administrative Agent and
each Obligee under this Clause are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the
Administrative Agent or such Obligee may have.
9. CONFIRMATION
The Guarantor hereby confirms and acknowledges that the guarantee given by
it in favour of The Chase Manhattan Bank, in its capacity as Administrative
Agent and dated 3 November 1999 (the "Existing Guarantee") remains in full
force and effect notwithstanding the amendment and restatement of the
Credit Agreement (as such term is defined in the Existing Guarantee) save
that all parties hereto acknowledge that the Existing Guarantee shall be
amended by deleting the definition of "Hedge Agreement" and replacing it
with the definition of "Secured Hedge Agreements" set out in Clause 1.2
herein.
10. NOTICES
Any demand to be made by the Administrative Agent hereunder may be made at
the principal place of business of the Guarantor for the time being.
11. COUNTERPARTS
This Guarantee may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument.
12. GOVERNING LAW
This Guarantee shall be governed by and construed in accordance with
English law.
IN WITNESS WHEREOF this Guarantee has been duly executed the day and year first
above written.
The Guarantor
Executed as a deed )
by F-M UK HOLDING LIMITED )
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Signature of Director
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Name of Director
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Signature of Director/Secretary
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Name of Director/Secretary
The Administrative Agent
THE CHASE MANHATTAN BANK
By:
Address: 270 Park Avenue
47th Floor
New York NY 10017