Attached files
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8-K - FORM 8-K - MERITOR, INC. | k48945e8vk.htm |
EX-99 - EX-99 - MERITOR, INC. | k48945exv99.htm |
EX-1.1 - EX-1.1 - MERITOR, INC. | k48945exv1w1.htm |
EX-1.2 - EX-1.2 - MERITOR, INC. | k48945exv1w2.htm |
Exhibit 4
FOURTH SUPPLEMENTAL INDENTURE
FOURTH SUPPLEMENTAL INDENTURE, dated as of March 3, 2010 (this Supplemental Indenture), to
the Indenture, dated as of April 1, 1998, as supplemented by a First Supplemental Indenture, dated
as of July 7, 2000, a Second Supplemental Indenture, dated as of July 6, 2004, and a Third
Supplemental Indenture, dated as of June 23, 2006, between ArvinMeritor, Inc., an Indiana
corporation (ArvinMeritor or the Company) (successor to Meritor Automotive, Inc.), having its
principal office at 2135 West Maple Road, Troy, Michigan 48084-7186, and The Bank of New York
Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (as
successor to BNY Midwest Trust Company as successor to The Chase Manhattan Bank), a national
association, as Trustee (the Trustee), having its corporate trust office at 2 N. LaSalle Street,
Suite 1020, Chicago, Illinois 60602 (as so supplemented, the Indenture).
WHEREAS, pursuant to Section 3.01 of the Indenture, ArvinMeritor may establish, at its option,
the form, terms and provisions of a series of Securities to be issued under the Indenture in one or
more supplemental indentures to the Indenture; and
WHEREAS, ArvinMeritor intends to issue $250,000,000 aggregate principal amount of a new series
of Securities under the Indenture designated as 10.625% Notes due 2018 (such 10.625% Notes due 2018
are herein referred to as the Notes) and desires to establish the form, terms and provisions of
such series herein, including certain redemption and repurchase rights and certain covenants of the
Company; and
WHEREAS, pursuant to that certain Credit Agreement dated as of June 23, 2006 (as amended,
extended, replaced or refinanced from time to time, or any subsequent credit facility of
ArvinMeritor, the Senior Credit Agreement), among ArvinMeritor, the financial institutions from
time to time parties thereto (the Senior Lenders) and the administrative agent and other parties
from time to time party thereto, ArvinMeritor has agreed for the benefit of such Senior Lenders to
provide guarantees (the Senior Credit Agreement Guarantees) by certain of its subsidiaries (the
Subsidiary Guarantors) of its obligations thereunder; and
WHEREAS, ArvinMeritor desires that the Subsidiary Guarantors (other than Arvin Industries
Foreign Sales Corporation and Arvinyl West, Inc.) provide guarantees, on the same terms as the
Senior Credit Agreement Guarantees provided to such Senior Lenders, for the benefit of the Trustee
and the Holders of the Notes (and not for the benefit of Holders of any other series of Securities
except as otherwise provided in the Indenture); and
WHEREAS, in connection with the issuance of the Notes, the Subsidiary Guarantors (other than
Arvin Industries Foreign Sales Corporation and Arvinyl West, Inc.) are executing and delivering the
Subsidiary Guaranty dated as of March 3, 2010 (as amended from time to time by the addition of
additional Subsidiary Guarantors, the Subsidiary Guaranty) for the benefit of the Trustee and the
Holders of the Notes (and not for the benefit of Holders of any other series of Securities), in the
form attached hereto as Exhibit A;
NOW, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE 1
DEFINITIONS
DEFINITIONS
SECTION 1.01. Defined Terms; References. Unless otherwise specifically defined herein, each
term used herein that is defined in the Indenture has the meaning assigned to such term in the
Indenture. Each reference to hereof, hereunder, herein and hereby and each other similar
reference and each reference to this Indenture and each other similar reference contained in the
Indenture shall, after this Supplemental Indenture becomes effective, refer to the Indenture as
amended hereby.
ARTICLE 2
THE NOTES
THE NOTES
SECTION 2.01. The Notes. The Indenture is hereby supplemented to incorporate the form, terms
and provisions of the series of Notes designated as the 10.625% Notes due 2018 of ArvinMeritor to
be issued under the Indenture, which form, terms and provisions are set forth in the form of the
Notes attached hereto as Exhibit B and in this Supplemental Indenture.
ARTICLE 3
SUBSIDIARY GUARANTEES
SUBSIDIARY GUARANTEES
SECTION 3.01. Subsidiary Guarantees.
(a) The Indenture is hereby supplemented to incorporate the terms of the Subsidiary Guaranty
for the benefit of the Trustee and the Holders of the Notes (and not for the benefit of Holders of
any other series of Securities).
(b) ArvinMeritor will cause each Subsidiary Guarantor (other than Arvin Industries Foreign
Sales Corporation and Arvinyl West, Inc.) to execute and deliver the Subsidiary Guaranty.
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SECTION 3.02. Amendment of Guaranty.
(a) The Subsidiary Guaranty may be amended or supplemented (and shall be supplemented when
required by subsection (b)) to include additional subsidiaries of ArvinMeritor or to add new
Securities covered thereby, in each case during the term of the Subsidiary Guaranty and in
accordance with the terms and conditions of the Subsidiary Guaranty, and the terms of any such
amendment or supplement shall be deemed to be incorporated herein.
(b) If after the date hereof any subsidiary of ArvinMeritor that is not already a Subsidiary
Guarantor guarantees any obligations of ArvinMeritor under the Senior Credit Agreement,
ArvinMeritor shall simultaneously cause such subsidiary to execute and deliver a counterpart of the
Subsidiary Guaranty and such subsidiary shall thereupon be considered a Subsidiary Guarantor for
all purposes under the Subsidiary Guaranty and this Supplemental Indenture.
ARTICLE 4
REDEMPTION AND REPURCHASE
REDEMPTION AND REPURCHASE
SECTION 4.01. Optional Redemption. The Indenture is hereby supplemented to incorporate the
following rights of redemption solely with respect to the Notes (and not with respect to any other
series of Securities):
The Notes are redeemable, at the Companys option, from time to time, through any one or more
of the methods set forth below. Notes called for redemption will become due on the date fixed for
redemption. Unless the Company defaults in payment of the Redemption Price, on and after the
Redemption Date, interest will cease to accrue on the Notes or any portion of the Notes called for
redemption. On or before any Redemption Date, the Company will deposit with a Paying Agent (or the
Trustee) money sufficient to pay the Redemption Price (including, in the case of clause (a) below,
the Applicable Premium, and in the case of clauses (b) and (c) below, any premiums described
therein) of and accrued and unpaid interest, if any, on the Notes to be redeemed.
If the Company is redeeming less than all the Notes at any time, the Trustee will select the
Notes to be redeemed using a method consistent with DTC procedures. The Company will redeem Notes
in increments of $1,000. The Company will cause notices of any redemption to be mailed by
first-class mail at least 30 but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at its registered address.
If any Note is to be redeemed in part only, the notice of redemption that relates to that Note
will state the portion of the principal amount thereof to be redeemed. The Company will issue a
Note in principal amount equal to the unredeemed portion of the original Note in the name of the
Holder thereof upon cancellation of the original Note.
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(a) Make-whole redemption. Prior to March 15, 2014, the Company may redeem, at its option,
from time to time, the Notes, in whole or in part, at a Redemption Price calculated by the Company
equal to the sum of (i) 100% of the principal amount of the Notes to be redeemed, plus (ii) the
Applicable Premium as of the Redemption Date on the Notes to be redeemed, plus (iii) accrued and
unpaid interest, if any, to, but not including, the Redemption Date (subject to the right of
Holders of record of the Notes on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date) on the Notes to be redeemed.
Solely for purposes of this Section 4.01(a), the following definitions will apply:
Applicable Premium means, with respect to a Note at any Redemption Date, the greater of (i)
1.0% of the principal amount of such Note and (ii) the excess of (A) the present value at such
Redemption Date of (1) the Redemption Price of such Note at March 15, 2014 as set forth below in
Section 4.01(c), Redemption after March 15, 2014, plus (2) all remaining required interest
payments due on such Note through March 15, 2014 (excluding accrued and unpaid interest, if any, to
the Redemption Date), computed using a discount rate equal to the Treasury Rate plus 50 basis
points, over (B) 100% of the principal amount of such Note.
Treasury Rate means, with respect to any Redemption Date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price
for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for the Redemption Date. The Treasury Rate shall be calculated by the
Independent Investment Banker on the third Business Day preceding the Redemption Date.
Comparable Treasury Issue means the United States Treasury security selected by the
Independent Investment Banker and having an actual or interpolated maturity comparable to the
remaining term through March 15, 2014 of the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term through March 15, 2014 of
those Notes.
Comparable Treasury Price means, with respect to any Redemption Date, (i) the average of the
Reference Treasury Dealer Quotations for the Redemption Date, after excluding the highest and
lowest Reference Treasury Dealer Quotations, or (ii) if the Independent Investment Banker obtains
fewer than four Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer
Quotations.
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Independent Investment Banker means Banc of America Securities LLC and any successor thereto
or, if that firm is unwilling or unable to select the Comparable Treasury Issue, an independent
investment banking institution of national standing appointed by the Company.
Reference Treasury Dealer means (i) Banc of America Securities LLC or any successor thereto,
J.P. Morgan Securities Inc. or any successor thereto, Citigroup Global Markets Inc. or any
successor thereto, RBS Securities Inc. or any successor thereto and two additional Primary Treasury
Dealers selected by the Company or their respective successors; provided, however, that if any of
the foregoing shall cease to be a primary U.S. Government securities dealer in the United States (a
Primary Treasury Dealer), the Company shall substitute another Primary Treasury Dealer and (ii)
any other Primary Treasury Dealers selected by the Company after consultation with the Independent
Investment Banker.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Independent Investment Banker, of the
bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Independent Investment Banker at 5:00 p.m., New York
City time, on the third Business Day preceding that Redemption Date.
(b) Equity clawback. Prior to March 15, 2013, the Company may redeem, at its option, from
time to time, up to 35% of the aggregate principal amount of the Notes issued on March 3, 2010 with
the net cash proceeds of one or more public sales of the Companys common stock (excluding the
common stock offered concurrently with the Notes and issued by the Company on or after March 3,
2010 in an underwritten public offering) at a Redemption Price calculated by the Company equal to
110.625% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if
any, to, but not including, the Redemption Date (subject to the right of Holders of record of the
Notes on the relevant Regular Record Date to receive interest due on an Interest Payment Date that
is on or prior to the Redemption Date) on the Notes to be redeemed; provided that at least 65% of
the aggregate principal amount of Notes originally issued on March 3, 2010 remains Outstanding
after each such redemption and notice of any such redemption is mailed within 90 days of any such
sale of common stock.
(c) Redemption after March 15, 2014. On or after March 15, 2014, the Company may redeem, at
its option, from time to time, the Notes, in whole or in part, at the Redemption Prices calculated
by the Company (expressed as percentages of the principal amount of the Notes to be redeemed) set
forth below, plus accrued and unpaid interest, if any, to, but not including, the Redemption Date
(subject to the right of Holders of record of the Notes on the relevant
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Regular Record Date to
receive interest due on an Interest Payment Date that is on or prior to the Redemption Date) on the Notes to be redeemed, if redeemed during the 12-month
period beginning on March 15of the years indicated below:
Year | Redemption Price | |||
2014 |
105.313 | % | ||
2015 |
102.656 | % | ||
2016 and thereafter |
100.000 | % |
SECTION 4.02. Repurchase of Notes Upon a Change of Control. The Indenture is hereby
supplemented to incorporate the following rights of repurchase upon a Change of Control solely with
respect to the Notes (and not with respect to any other series of Securities):
The Company must commence, within 30 days of the occurrence of a Change of Control, and
thereafter consummate, an Offer to Purchase all of the Notes then Outstanding, at a purchase price
calculated by the Company equal to 101% of their principal amount, plus accrued and unpaid
interest, if any, on the Notes to be purchased to, but not including, the Change of Control Payment
Date (subject to the right of Holders of record of the Notes on the relevant Regular Record Date to
receive interest due on an Interest Payment Date that is on or prior to the Change of Control
Payment Date).
However, the Company shall not be required to make an Offer to Purchase upon a Change of
Control if (i) a third party makes an Offer to Purchase in the manner, at the times and otherwise
in compliance with the requirements for an Offer to Purchase to be made by the Company upon a
Change of Control, and purchases all Notes properly tendered and not withdrawn under the Offer to
Purchase upon a Change of Control, or (ii) a notice of redemption has been given as described above
under Section 4.01, Optional Redemption, to redeem all Outstanding Notes that would otherwise be
subject to the Offer to Purchase, unless and until there is a default in payment of the applicable
Redemption Price. An Offer to Purchase upon the occurrence of a Change of Control may be made by
either the Company or a third party in advance of a Change of Control if a definitive agreement to
effect the Change of Control has been fully executed at the time such Offer to Purchase is made and
the Offer to Purchase is consummated upon or after the consummation of the Change of Control, and
such Offer to Purchase will be conditional on the Change of Control. In addition, the Company will
not purchase any Notes if there has occurred and is continuing on the Change of Control Payment
Date an Event of Default under the Notes, other than a default in the payment of the purchase price
payable in connection with an Offer to Purchase upon a Change of Control.
Solely for purposes of this Section 4.02, Change of Control means the occurrence of any of
the following:
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(1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way
of merger or consolidation), in one or a series of related transactions, of all or substantially
all of the properties or assets of the Company and its Subsidiaries, taken as a whole, to any
person (as that term is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the Exchange Act)) other than the Company or any of its Subsidiaries;
(2) a person or group (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange
Act) other than one of the Companys Subsidiaries becomes the ultimate beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of the
Companys Voting Stock on a fully diluted basis;
(3) the adoption of a plan relating to the liquidation or dissolution of the Company;
(4) individuals who on March 3, 2010 constitute the board of directors of the Company
(together with any new directors whose election by the board of directors of the Company or whose
nomination by the board of directors of the Company for election by the stockholders of the Company
was approved by a vote of at least a majority of the members of the board of directors of the
Company then in office who either were members of the board of directors of the Company on March 3,
2010 or whose election or nomination for election was previously so approved) cease for any reason
to constitute a majority of the members of the board of directors of the Company then in office; or
(5) the Company consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into the Company, in any such event pursuant to a transaction
in which the Companys outstanding Voting Stock is converted into or exchanged for cash, securities
or other property, other than any such transaction where (a) the Companys Voting Stock outstanding
immediately prior to such transaction constitutes or is converted into or exchanged for a majority
of the outstanding shares of Voting Stock of the surviving Person or any direct or indirect parent
company of the surviving Person (immediately after giving effect to such issuance) and (b)
immediately after such transaction, no person or group (as such terms are used in Section 13(d)
and 14(d) of the Exchange Act) becomes, directly or indirectly, the beneficial owner (as defined
in Rule 13d-3 under the Exchange Act) of 50% or more of the voting power of the Voting Stock of the
surviving Person.
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control
if (1) the Company becomes a direct or indirect wholly-owned subsidiary of a holding company and
(2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately
following that transaction are substantially the same as the holders of the Companys Voting Stock
immediately prior to that transaction or (B) immediately following that
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transaction no Person (other than a holding company satisfying the requirements of this
sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of
such holding company.
Solely for purposes of this Section 4.02, Offer to Purchase means an offer to purchase the
Notes then Outstanding by the Company from the Holders thereof commenced by mailing a notice to the
Trustee and each Holder thereof stating:
(1) that all Notes validly tendered pursuant to the Offer to Purchase will be accepted for
payment;
(2) the purchase price and the date of purchase (which shall be a Business Day no earlier than
30 days nor later than 60 days from the date such notice is mailed) (the Change of Control Payment
Date);
(3) that any Note not tendered will continue to accrue interest pursuant to its terms;
(4) that, unless the Company defaults in the payment of the purchase price, any Note accepted
for payment pursuant to the Offer to Purchase shall cease to accrue interest on and after the
Change of Control Payment Date;
(5) that Holders of Notes electing to have a Note purchased pursuant to the Offer to Purchase
will be required to surrender the Note, together with a completed form pursuant to which the Holder
elects to require the Company to purchase the Note, to the Paying Agent at the address specified in
the notice prior to the close of business on the Business Day immediately preceding the Change of
Control Payment Date;
(6) that Holders of Notes will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the third Business Day immediately preceding the
Change of Control Payment Date, a facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Notes delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased; and
(7) that Holders whose Notes are being purchased only in part will be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered; provided that each Note
purchased and each new Note issued shall be in a principal amount of $1,000 or integral multiples
of $1,000 in excess thereof.
On the Change of Control Payment Date, the Company shall (1) accept for payment Notes or
portions thereof validly tendered pursuant to an Offer to Purchase; (2) deposit with the Paying
Agent money sufficient to pay the purchase
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price of all Notes or portions thereof so accepted (which deposit shall be made at least one
Business Day prior to the Change of Control Payment Date); and (3) deliver, or cause to be
delivered, to the Trustee all Notes or portions thereof so accepted together with an Officers
Certificate specifying the Notes or portions thereof accepted for payment by the Company. The
Company will instruct the Paying Agent to promptly mail to the Holders of Notes so accepted payment
in an amount equal to the purchase price therefor, and the Company will instruct the Trustee to
promptly authenticate and mail to such Holders a new Note (which the Company shall execute) equal
in principal amount to any unpurchased portion of the Note surrendered; provided that each Note
purchased and each new Note issued shall be in a principal amount of $1,000 or integral multiples
of $1,000 in excess thereof. The Company will publicly announce the results of an Offer to Purchase
as soon as practicable after the Change of Control Payment Date. The Trustee shall act as the
Paying Agent for an Offer to Purchase. The Company will comply with Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in the event that the Company is required to repurchase Notes pursuant
to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations
conflict with this Section 4.02, the Company will comply with those securities laws and regulations
and will not be deemed to have breached the Companys obligations under this Section 4.02 by virtue
of any such conflict.
Solely for purposes of this Section 4.02, Voting Stock means, with respect to any specified
Person as of any date, the capital stock of the Person then outstanding that is at the time
entitled to vote generally in the election of the board of directors or similar governing body of
such Person.
ARTICLE 5
ADDITIONAL COVENANTS
ADDITIONAL COVENANTS
SECTION 5.01. Limitation on Liens. The Indenture is hereby supplemented by amending Section
10.05 of the Indenture solely with respect to the Notes (and not with respect to any other series
of Securities) by inserting the following text immediately following the word exceed in the last
sentence of such section:
the greater of (x) $250 million and (y)
SECTION 5.02. Limitation on Restricted Payments. The Indenture is hereby supplemented to
incorporate the following additional covenant solely with respect to the Notes (and not with
respect to any other series of Securities):
The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly,
make any Restricted Payment if at the time of such Restricted Payment:
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(a) a default (used in this Section 5.02 as defined in Section 6.02 of the Indenture) with
respect to the Notes shall have occurred and be continuing or shall occur as a consequence thereof;
(b) after giving effect to such Restricted Payment (including, without limitation, the
incurrence of any Indebtedness to finance such Restricted Payment), the Consolidated Interest
Coverage Ratio would be less than 2:00 to 1:00; or
(c) the amount of such Restricted Payment, when added to the aggregate amount of all other
Restricted Payments made after March 3, 2010 (other than Restricted Payments made pursuant to
clauses (b), (c), (d) or (e) of the next paragraph), exceeds the sum (the Restricted Payments
Basket) of (without duplication):
(i) 50% of Consolidated Net Income of the Company and all of its Subsidiaries determined in
accordance with GAAP for the period (taken as one accounting period) commencing on the first day of
the first full fiscal quarter commencing after March 3, 2010 to and including the last day of the
fiscal quarter ended immediately prior to the date of such calculation for which consolidated
financial statements are available (or, if such Consolidated Net Income shall be a loss, minus 100%
of such aggregate loss), plus
(ii) 100% of the aggregate net cash proceeds received by the Company from the issuance and
sale of Qualified Equity Interests of the Company on or after March 3, 2010 except as set forth
herein (including the common stock offered concurrently with the Notes and issued by the Company on
or after March 3, 2010 in an underwritten public offering), other than any such proceeds, property
or assets received from the Companys Subsidiaries, plus
(iii) the aggregate amount by which Indebtedness (other than any subordinated Indebtedness)
incurred by the Company or any Subsidiary subsequent to March 3, 2010 is reduced on the Companys
balance sheet upon the conversion or exchange (other than by the Companys Subsidiaries) into
Qualified Equity Interests of the Company (less the amount of any cash, or the fair value of
assets, distributed by the Company or any Subsidiary upon such conversion or exchange to the
holders (in their capacities as such) of Equity Interests of the Company).
The foregoing provisions will not prohibit:
(a) the payment by the Company of any dividend within 60 days after the date of declaration
thereof, if on the date of declaration the payment would have complied with the provisions of the
Indenture;
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(b) the repurchase or redemption of any Equity Interests of the Company in exchange for, or
out of the proceeds of the substantially concurrent issuance and sale (or an issuance or sale that
occurs within 60 days of such repurchase or redemption) of, Qualified Equity Interests;
(c) payments by the Company to repurchase or redeem Equity Interests of the Company held by
officers, directors or employees or former officers, directors or employees (or their transferees,
estates or beneficiaries under their estates) of the Company or its Subsidiaries; provided that the
aggregate cash consideration paid for all such repurchases or redemptions shall not exceed (A) $10
million per fiscal year since March 3, 2010, plus (B) the amount of any net cash proceeds received
by the Company from the issuance and sale after March 3, 2010 of Qualified Equity Interests of the
Company to officers, directors or employees of the Company or its Subsidiaries that have not been
applied to the payment of Restricted Payments pursuant to this clause (c), plus (C) the net cash
proceeds of any key-man life insurance policies that have not been applied to the payment of
Restricted Payments pursuant to this clause (c);
(d) repurchases of Equity Interests in connection with vesting of equity-based awards issued
to employees in order to satisfy tax withholding obligations;
(e) repurchases of Equity Interests held by officers, directors or employees or former
officers, directors or employees (or their transferees, estates or beneficiaries under their
estates) of the Company or its Subsidiaries deemed to occur upon the exercise of stock options or
warrants if the Equity Interests represent all or a portion of the exercise price thereof; provided
that the aggregate cash consideration paid for all such repurchases shall not exceed $10 million in
any fiscal year;
(f) Restricted Payments to the extent not otherwise permitted by the immediately preceding
paragraph or any other clause of this paragraph in an amount not to exceed $60 million in any
fiscal year; provided that if any portion of that $60 million is not used to make Restricted
Payments pursuant to this clause during any fiscal year, such amount may be carried over to the
next succeeding fiscal year, provided that any amount carried over into the next succeeding fiscal
year may not be carried forward again into any subsequent fiscal years and if Restricted Payments
in the amount of $60 million or more are made in any fiscal year pursuant to this clause (f), no
amount may be carried over from such fiscal year to the next succeeding fiscal year; and
(g) other Restricted Payments if, at the time of the making of such payments, and after giving
effect thereto (including, without limitation, the incurrence of any Indebtedness to finance such
payment), the Total Leverage Ratio would not exceed 4.00 to 1.00;
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provided that (i) in the case of any Restricted Payment pursuant to clause (c), (f) or (g) above,
no default with respect to the Notes shall have occurred and be continuing or shall occur as a
consequence thereof and (ii) the issuance and sale of Qualified Equity Interests shall not increase
the Restricted Payments Basket to the extent the proceeds of such issuance and sale are used to
make a Restricted Payment pursuant to clauses (b) or (c)(B) above.
The following definitions shall apply solely for purposes of this Section 5.02.
Attributable Indebtedness, when used with respect to any Sale and Lease-Back Transaction,
means, as at the time of determination, the present value (discounted at a rate borne by the Notes,
compounded on a semi-annual basis) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in any such Sale and Lease-Back Transaction.
Capitalized Lease Obligations of any Person means the obligations of such Person to pay rent
or other amounts under a lease required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of such obligation shall be the capitalized amount thereof
determined in accordance with GAAP.
Consolidated Cash Flow Available for Fixed Charges means, with respect to any Person for any
period:
(1) the sum of, without duplication, the amounts for such period, taken as a single accounting
period, of:
(a) Consolidated Net Income;
(b) Consolidated Non-Cash Charges;
(c) Consolidated Interest Expense;
(d) Consolidated Income Tax Expense (other than income tax expense (either positive or
negative) attributable to extraordinary gains or losses); and
(2) less non-cash items increasing Consolidated Net Income for such period, other than (a) the
accrual of revenue consistent with past practice, and (b) reversals of prior accruals or reserves
for cash items previously excluded in the calculation of Consolidated Non-Cash Charges.
In calculating Consolidated Cash Flow Available for Fixed Charges for any period, if any
asset sale or asset acquisition (whether pursuant to a stock or an asset transaction) shall have
occurred since the first day of any four fiscal quarter period for which the Consolidated Cash
Flow Available for Fixed Charges is
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being calculated, such calculation shall give pro forma effect to such asset sale or asset
acquisition.
For the purposes of calculating Consolidated Cash Flow Available for Fixed Charges asset
acquisition means any acquisition of property or series of related acquisitions of property that
constitutes all or substantially all of the assets of a business, unit or division of a Person or
constitutes all or substantially all of the common stock (or equivalent) of a Person; and asset
sale means any disposition of property or series of related dispositions of property that involves
all or substantially all of the assets of a business, unit or division of a Person or constitutes
all or substantially all of the common stock (or equivalent) of a subsidiary.
Consolidated Fixed Charges for any period means the sum, without duplication, of (a)
Consolidated Interest Expense of the Company and its Subsidiaries for such period, plus (b) the
product of (a) all dividend payments on any series of Disqualified Equity Interests of the Company
or any Subsidiary or any Preferred Stock of any Subsidiary (other than any such Disqualified Equity
Interests or any Preferred Stock held by the Company or a Subsidiary or to the extent paid in
Qualified Equity Interests) for such period, multiplied by (b) a fraction, the numerator of which
is one and the denominator of which is one minus the then current combined federal, state and local
statutory tax rate of the Company and its Subsidiaries, expressed as a decimal.
Consolidated Interest Coverage Ratio means the ratio of Consolidated Cash Flow Available for
Fixed Charges of the Company and its Subsidiaries during the most recent four consecutive full
fiscal quarters for which financial statements are available (the four-quarter period) ending on
or prior to the date of the transaction giving rise to the need to calculate the Consolidated
Interest Coverage Ratio (the transaction date) to Consolidated Fixed Charges of the Company and
its Subsidiaries for the four-quarter period. Notwithstanding anything to the contrary set forth in
the definitions of Consolidated Cash Flow Available for Fixed Charges and Consolidated Interest
Expense (and all component definitions referenced in such definitions), for purposes of determining
the Consolidated Interest Coverage Ratio, such definitions (and all component definitions
referenced in such definitions) shall be calculated with respect to the Company and all of its
Subsidiaries, notwithstanding the use of the term Restricted Subsidiaries in such definitions,
and otherwise in accordance with such definitions.
For purposes of this definition, Consolidated Cash Flow Available for Fixed Charges and
Consolidated Fixed Charges shall be calculated after giving effect on a pro forma basis for the
period of such calculation to the incurrence of any Indebtedness or the issuance of any Preferred
Stock of the Company or any Subsidiary (and the application of the proceeds thereof) and any
repayment of other Indebtedness or redemption of other Preferred Stock (and the application of
13
the proceeds therefrom) (other than the incurrence or repayment of Indebtedness in the
ordinary course of business for working capital purposes pursuant to any revolving credit
arrangement) occurring during the four-quarter period or at any time subsequent to the last day of
the four-quarter period and on or prior to the transaction date, as if such incurrence, repayment,
issuance or redemption, as the case may be (and the application of the proceeds thereof), occurred
on the first day of the four-quarter period.
In calculating Consolidated Fixed Charges for purposes of determining the denominator (but not
the numerator) of this Consolidated Interest Coverage Ratio:
(a) interest on outstanding Indebtedness determined on a fluctuating basis as of the
transaction date and which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on
the transaction date;
(b) if interest on any Indebtedness actually incurred on the transaction date may optionally
be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rates, then the interest rate in effect on the transaction date
will be deemed to have been in effect during the four-quarter period; and
(c) notwithstanding clause (a) or (b) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements relating to hedging
obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the
operation of these agreements.
Consolidated Income Tax Expenses means, with respect to any Person for any period the
provision for federal, state, local and foreign income taxes of such Person and its Restricted
Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP.
Consolidated Interest Expense means, with respect to any Person for any period, without
duplication, the sum of:
(1) the interest expense of such Person and its Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP; and
(2) the interest component of capital lease obligations paid, accrued and/or scheduled to be
paid or accrued by such Person and its Restricted Subsidiaries during such period determined on a
consolidated basis in accordance with GAAP.
Consolidated Net Income means, with respect to any Person, for any period, the consolidated
net income (or loss) of such Person and its Restricted
14
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to the extent
included in calculating such net income, by excluding, without duplication:
(1) all extraordinary gains or losses (net of fees and expenses relating to the transaction
giving rise thereto);
(2) the portion of net income of such Person and its Restricted Subsidiaries allocable to
minority interests in unconsolidated Persons to the extent that cash dividends or distributions
have not actually been received by such Person or one of its Restricted Subsidiaries;
(3) gains or losses in respect of any sales of capital stock or asset sales outside the
ordinary course of business by such Person or one of its Restricted Subsidiaries (net of fees and
expenses relating to the transaction giving rise thereto), on an after-tax basis;
(4) any gain or loss realized as a result of the cumulative effect of a change in accounting
principles;
(5) any fees and expenses paid in connection with the issuance of the debt securities or other
Indebtedness;
(6) nonrecurring or unusual gains or losses;
(7) the net after-tax effects of adjustments in the inventory, property and equipment,
goodwill and intangible assets line items in such Persons consolidated financial statements
pursuant to GAAP resulting from the application of purchase accounting or the amortization or
write-off of any amounts thereof;
(8) any fees and expenses incurred during such period, or any amortization thereof for such
period, in connection with any acquisition, investment, asset sale, issuance or repayment of
Indebtedness, issuance of stock, stock options or other equity-based awards, refinancing
transaction or amendment or modification of any debt instrument (including without limitation any
such transaction undertaken but not completed);
(9) any gain or loss recorded in connection with the designation of a discontinued operation
(exclusive of its operating income or loss);
(10) any non-cash compensation or other non-cash expenses or charges arising from the grant of
or issuance or repricing of stock, stock options or other equity-based awards or any amendment,
modification, substitution or change of any such stock, stock options or other equity-based awards;
and
15
(11) any non-cash impairment, restructuring or special charge or asset write-off or write-
down, and the amortization or write-off of intangibles.
Consolidated Non-Cash Charges means, with respect to any Person for any period, the
aggregate depreciation, amortization (including amortization of goodwill and other intangibles) and
other non-cash expenses (including stock option expenses and any goodwill impairment charges) of
such Person and its Restricted Subsidiaries reducing Consolidated Net Income of such Person and its
Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP
(excluding any such charges which require an accrual of or a reserve for cash charges for any
future period).
Disqualified Equity Interests of any Person means any class of Equity Interests of such
Person that, by its terms, or by the terms of any related agreement or of any security into which
it is convertible, puttable or exchangeable, is, or upon the happening of any event or the passage
of time would be, required to be redeemed by such Person, whether or not at the option of the
holder thereof, or matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, in whole or in part, on or prior to the date which is 91 days after the final maturity
date of the Notes; provided, however, that any class of Equity Interests of such Person that, by
its terms, authorizes such Person to satisfy in full its obligations with respect to the payment of
dividends or upon maturity, redemption (pursuant to a sinking fund or otherwise) or repurchase
thereof or otherwise by the delivery of Equity Interests that are not Disqualified Equity
Interests, and that is not convertible, puttable or exchangeable for Disqualified Equity Interests
or Indebtedness, will not be deemed to be Disqualified Equity Interests so long as such Person
satisfies its obligations with respect thereto solely by the delivery of Equity Interests that are
not Disqualified Equity Interests; provided, further, however, that any Equity Interests that would
not constitute Disqualified Equity Interests but for provisions thereof giving holders thereof (or
the holders of any security into or for which such Equity Interests are convertible, exchangeable
or exercisable) the right to require the Company to redeem such Equity Interests upon the
occurrence of a change in control occurring prior to the 91st day after the final maturity date of
the Notes shall not constitute Disqualified Equity Interests if the change of control applicable to
such Equity Interests are no more favorable to such holders than the provisions described above
under Section 4.02, Repurchase of Notes Upon a Change of Control and such Equity Interests
specifically provide that the Company will not redeem any such Equity Interests pursuant to such
provisions prior to the Companys purchase of the Notes as required pursuant to the provisions
described above under Section 4.02, Repurchase of Notes Upon a Change of Control.
Equity Interests of any Person means (i) any and all shares or other equity interests
(including common stock, Preferred Stock, limited liability company interests and partnership
interests) in such Person and (ii) all rights to purchase, warrants or options (whether or not
currently exercisable),
16
participations or other equivalents of or interests in (however designated) such shares or
other equity interests in such Person, but excluding any debt securities that are convertible into
such shares or other interests in such Person. For the avoidance of doubt, any payments or
distributions in respect of or upon conversion of such convertible debt securities do not
constitute Restricted Payments.
GAAP means generally accepted accounting principles in the United States of America as in
effect from time to time.
Indebtedness of any Person at any date means, without duplication:
(a) all liabilities, contingent or otherwise, of such Person for borrowed money (whether or
not the recourse of the lender is to the whole of the assets of such Person or only to a portion
thereof);
(b) all obligations of such Person evidenced by bonds, debentures, notes or other similar
instruments;
(c) all reimbursement obligations of such Person in respect of letters of credit, letters of
guaranty, bankers acceptances and similar credit transactions;
(d) all obligations of such Person to pay the deferred and unpaid purchase price of property
or services, except trade payables and accrued expenses incurred by such Person in the ordinary
course of business in connection with obtaining goods, materials or services;
(e) the maximum fixed redemption or repurchase price of all Disqualified Equity Interests of
such Person;
(f) all Capitalized Lease Obligations of such Person;
(g) all Indebtedness of others secured by a mortgage, pledge, lien, encumbrance, or other
security interest (each, a security interest) which secures payment or performance of an
obligation, on any asset of such Person, whether or not such Indebtedness is assumed by such
Person;
(h) all Indebtedness of others guaranteed by such Person to the extent of such guarantee;
provided that Indebtedness of the Company or its Subsidiaries that is guaranteed by the Company or
its Subsidiaries shall only be counted once in the calculation of the amount of Indebtedness of the
Company and its Subsidiaries on a consolidated basis;
(i) all Attributable Indebtedness with respect to any Sale and Lease Back Transaction;
17
(j) to the extent not otherwise included in this definition, all obligations of such Person
under swap, cap, collar, forward purchase or similar agreements or arrangements dealing with
interest rates, currency exchange rates or commodity prices, either generally or under specific
contingencies (collectively, hedging obligations); and
(k) all obligations of such Person under conditional sale or other title retention agreements
relating to assets purchased by such Person.
The amount of Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above, the maximum liability of such Person for
any such contingent obligations at such date and, in the case of clause (g), the lesser of (i) the
fair market value of any asset subject to a security interest securing the Indebtedness of others
on the date that the security interest attaches and (ii) the amount of the Indebtedness secured.
For purposes of clause (e), the maximum fixed redemption or repurchase price of any Disqualified
Equity Interests that do not have a fixed redemption or repurchase price shall be calculated in
accordance with the terms of such Disqualified Equity Interests as if such Disqualified Equity
Interests were redeemed or repurchased on any date on which an amount of Indebtedness outstanding
shall be required to be determined pursuant to the Indenture.
Preferred Stock means, with respect to any Person, any and all preferred or preference stock
or other preferred Equity Interests (however designated) of such Person whether outstanding on or
issued after March 3, 2010.
Qualified Equity Interests of any Person means Equity Interests of such Person other than
Disqualified Equity Interests; provided that such Equity Interests shall not be deemed Qualified
Equity Interests to the extent sold to a subsidiary of such Person or financed, directly or
indirectly, using funds (i) borrowed from such Person or any subsidiary of such Person until and to
the extent such borrowing is repaid or (ii) contributed, extended, guaranteed or advanced by such
Person or any subsidiary of such Person (including, without limitation, in respect of any employee
stock ownership or benefit plan). Unless otherwise specified, Qualified Equity Interests refer to
Qualified Equity Interests of ArvinMeritor, Inc.
Restricted Payment means any of the following:
(a) the declaration or payment of any dividend or any other distribution on Equity Interests
of the Company or any payment made to the direct or indirect holders (in their capacities as such)
of Equity Interests of the Company, including, without limitation, any payment to the direct or
indirect holders (in their capacities as such) of Equity Interests of the Company in connection
with any merger or consolidation involving the Company, but excluding dividends or distributions
payable solely in Qualified Equity Interests
18
of the Company or through accretion or accumulation of such dividends on such Equity
Interests; or
(b) the repurchase or redemption of any Equity Interests of the Company, including, without
limitation, any payment to the direct or indirect holders (in their capacities as such) of Equity
Interests of the Company in connection with any merger or consolidation involving the Company.
Total Debt means, at any date of determination, the aggregate amount of all outstanding
Indebtedness of the Company and its Subsidiaries determined on a consolidated basis in accordance
with GAAP.
Total Leverage Ratio means, as of the date of determination, the ratio of (a) the Total Debt
of the Company and its Subsidiaries to (b) Consolidated Cash Flow Available for Fixed Charges of
the Company and its Subsidiaries for the most recently ended four fiscal quarter period ending
immediately prior to such date for which financial statements are available. Notwithstanding
anything to the contrary set forth in the definition of Consolidated Cash Flow Available for Fixed
Charges (and all component definitions referenced in such definitions), for purposes of determining
the Total Leverage Ratio, such definition (and all component definitions referenced in such
definition) shall be calculated with respect to all of the Company and its Subsidiaries,
notwithstanding the use of the term Restricted Subsidiaries in such definitions, and otherwise in
accordance with such definitions.
In the event that the Company or any Subsidiary incurs, redeems, retires or extinguishes any
Total Debt (other than the incurrence or repayment of Indebtedness in the ordinary course of
business for working capital purposes pursuant to any revolving credit arrangement) subsequent to
the commencement of the period for which the Total Leverage Ratio is being calculated but prior to
or simultaneously with the event for which the calculation of the Total Leverage Ratio is made,
then the Total Leverage Ratio shall be calculated giving pro forma effect to such incurrence,
redemption, retirement or extinguishment of Total Debt as if the same had occurred at the beginning
of the applicable four-quarter period.
ARTICLE 6
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
Section 6.01. Concerning the Trustee. The Trustee makes no representations as to the
validity or sufficiency of this Supplemental Indenture. The recitals and statements herein are
deemed to be those of ArvinMeritor and not of the Trustee.
Section 6.02. Governing Law. This Supplemental Indenture shall be governed by and construed
in accordance with the internal laws of the State of New York, without regard to its conflicts of
law principles.
19
Section 6.03. Separability. In case any provision in this Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 6.04. Counterparts. This Supplemental Indenture may be executed in any number of
counterparts, each of which will be deemed to be an original, but all such counterparts together
will constitute one and the same instrument.
20
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be
duly executed as of the day and year first above written.
ARVINMERITOR, INC. |
||||
By: | /s/ Kevin Nowlan | |||
Name: | Kevin Nowlan | |||
Title: | Treasurer | |||
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee |
||||
By: | /s/ Ted Mosterd | |||
Name: | Ted Mosterd | |||
Title: | Associate | |||
21
Exhibit A
SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY (as the same may be amended, restated, supplemented or otherwise
modified from time to time, this Guaranty) is made as of March 3, 2010, by each of the
undersigned (the Initial Guarantors, and together with any additional subsidiaries which become
parties to this Guaranty by executing a Supplement hereto in the form attached hereto as Annex I,
the Subsidiary Guarantors), in favor of The Bank of New York Mellon Trust Company, N.A., as
Trustee (the Trustee) under the Indenture (as defined below), for the benefit of the Holders (as
defined in the Indenture) of Securities (as defined below). Each capitalized term used herein and
not defined herein shall have the meaning ascribed thereto in the Indenture.
WITNESSETH:
WHEREAS, on the date hereof, the Company is issuing $250,000,000 aggregate principal amount of
its 10.625% Notes due March 15, 2018 (the Securities) under the Indenture dated as of April 1,
1998 between the Company (successor to Meritor Automotive, Inc.) and The Bank of New York Mellon
Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (successor to BNY
Midwest Trust Company as successor to The Chase Manhattan Bank), as Trustee, as supplemented by a
First Supplemental Indenture dated as of July 7, 2000, a Second Supplemental Indenture dated as of
July 6, 2004, a Third Supplemental Indenture dated as of June 23, 2006 and a Fourth Supplemental
Indenture (the Fourth Supplemental Indenture) dated as of March 3, 2010 (as so supplemented, the
Indenture); and
WHEREAS, the Company desires that the Initial Guarantors provide guarantees, on the same terms
as the Senior Credit Agreement Guarantees (as defined in the Fourth Supplemental Indenture)
provided to the Senior Lenders (as defined in the Fourth Supplemental Indenture), for the benefit
of the Trustee and the Holders of the Securities (and not for the benefit of Holders of any other
series of securities under the Indenture);
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Representations And Warranties. Each of the Subsidiary Guarantors
represents and warrants to each Holder of Securities:
(a) It is a corporation, partnership, limited liability company or other organization duly
incorporated or organized, validly existing and in good standing (in jurisdictions where
applicable) under the laws of its jurisdiction of incorporation or organization and has all
requisite authority to conduct its business in each jurisdiction in which its business is conducted
and where the failure to be in good standing or authorized to conduct business would have a
material adverse effect on (i) the business, financial condition, operations, performance or
properties of the Company and its subsidiaries taken as a whole, (ii) the ability of the Company to
pay its obligations under the Indenture and the Securities, or (iii) the validity or enforceability
of the
Indenture or the Securities or the rights or remedies of the Trustee or the Holders of
Securities thereunder (hereinafter, a Material Adverse Effect).
(b) It has the corporate or other power and authority and legal right to execute and deliver
this Guaranty and to perform its obligations hereunder. The execution and delivery by it of this
Guaranty and the performance of its obligations hereunder have been duly authorized by proper
corporate, partnership or limited liability company proceedings, and this Guaranty constitutes a
legal, valid and binding obligation of such Subsidiary Guarantor enforceable against such
Subsidiary Guarantor in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors rights generally.
(c) Neither the execution and delivery by it of this Guaranty, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof will violate any law,
rule, regulation, order, writ, judgment, injunction, decree or award binding on such Subsidiary
Guarantor or such Subsidiary Guarantors articles of incorporation or by-laws or comparable
constitutive documents or the provisions of any indenture, instrument or agreement to which such
Subsidiary Guarantor is a party or is subject, or by which it, or its property, is bound, or
conflict with or constitute a default thereunder, or result in the creation or imposition of any
lien (other than any lien permitted by the Indenture) in, of or on the property of such Subsidiary
Guarantor pursuant to the terms of any such indenture, instrument or agreement, except for any such
violation, conflict or default as would not reasonably be expected to have a Material Adverse
Effect. No order, consent, approval, license, authorization, or validation of, or filing, recording
or registration with, or exemption by, any governmental authority, or any other third party, is
required to authorize, or is required in connection with the execution, delivery and performance
of, or the legality, validity, binding effect or enforceability of, this Guaranty, except for those
which have been obtained.
2
Section 2. The Guaranty. Each of the Subsidiary Guarantors hereby unconditionally
guarantees, jointly and severally with the other Subsidiary Guarantors, (i) the full and punctual
payment when due (whether at stated maturity, upon acceleration or otherwise) of the principal of
(and premium, if any) and interest, if any, on the Securities in accordance with the terms of the
Securities and the Indenture, as applicable, and (ii) the punctual and faithful performance,
keeping, observance, and fulfillment by the Company of all of the agreements, conditions,
covenants, and obligations of the Company contained in the Indenture (all of the foregoing being
referred to collectively as the Guaranteed Obligations). Upon failure by the Company to pay
punctually any such amount or perform such obligation, each of the Subsidiary Guarantors agrees
that it shall forthwith on demand pay such amount or perform such obligation at the place and in
the manner specified in the Indenture or the Securities, as the case may be. Each of the Subsidiary
Guarantors hereby agrees that this Guaranty is an absolute, irrevocable and unconditional guaranty
of payment and is not a guaranty of collection.
Section 3. Guaranty Unconditional. The obligations of each Subsidiary Guarantor
hereunder shall be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, indulgence, compromise, waiver or release of or with
respect to the Guaranteed Obligations or any part thereof or any agreement relating thereto, or
with respect to any obligation of any other guarantor of any of the Guaranteed Obligations, whether
(in any such case) by operation of law or otherwise, or any failure or omission to enforce any
right, power or remedy with respect to the Guaranteed Obligations or any part thereof or any
agreement relating thereto, or with respect to any obligation of any other guarantor of any of the
Guaranteed Obligations;
(b) any modification or amendment of or supplement to the Indenture or the Securities,
including, without limitation, any such amendment which may increase the amount of, or the interest
rates applicable to, any of the Guaranteed Obligations guaranteed hereby;
(c) any change in the corporate, partnership, limited liability company or other existence,
structure or ownership of the Company, such Subsidiary Guarantor or any other guarantor of any of
the Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Company, such Subsidiary Guarantor or any other guarantor of the
Guaranteed Obligations, or any of their respective assets or any resulting release or discharge of
any obligation of the Company, such Subsidiary Guarantor or any other guarantor of any of the
Guaranteed Obligations;
(d) the existence of any claim, setoff or other rights which the Subsidiary Guarantors may
have at any time against the Company, any other guarantor of any of the Guaranteed Obligations, the
Trustee, any Holder of Securities or any other Person, whether in connection herewith or in
connection with any unrelated transactions; provided, that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;
(e) the enforceability or validity of the Guaranteed Obligations or any part thereof or the
genuineness, enforceability or validity of any agreement relating thereto or with respect to the
collateral, if any, securing the Guaranteed Obligations or any part thereof, or any other
3
invalidity or unenforceability relating to or against the Company, such Subsidiary Guarantor
or any other guarantor of any of the Guaranteed Obligations, for any reason related to the
Indenture, the Securities or any provision of applicable law or regulation purporting to prohibit
the payment of any of the Guaranteed Obligations by the Company, such Subsidiary Guarantor or any
other guarantor of the Guaranteed Obligations;
(f) the failure of the Trustee to take any steps to perfect and maintain any security interest
in, or to preserve any rights to, any security or collateral for the Guaranteed Obligations, if
any;
(g) the election by, or on behalf of, any one or more of the Holders of Securities, in any
proceeding instituted under Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the
Bankruptcy Code), of the application of Section 1111(b)(2) of the Bankruptcy Code;
(h) any borrowing or grant of a security interest by the Company, such Subsidiary Guarantor or
any other guarantor of the Guaranteed Obligations as debtor-in-possession, under Section 364 of the
Bankruptcy Code;
(i) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the
claims of the Holders of Securities or the Trustee for repayment of all or any part of the
Guaranteed Obligations;
(j) the failure of any other Subsidiary Guarantor to sign or become party to this Guaranty or
any amendment, change, or reaffirmation hereof;
(k) any other act or omission to act or delay of any kind by the Company, such Subsidiary
Guarantor, any other guarantor of the Guaranteed Obligations, the Trustee, any Holder of Securities
or any other Person or any other circumstance whatsoever which might, but for the provisions of
this Section 3, constitute a legal or equitable discharge of any Subsidiary Guarantors obligations
hereunder; or
(l) any release, surrender, compromise, settlement, waiver, subordination or modification,
with or without consideration, of any collateral securing the Guaranteed Obligations or any part
thereof, any other guaranties with respect to the Guaranteed Obligations or any part thereof, or
any other obligation of any person or entity with respect to the Guaranteed Obligations or any part
thereof, or any nonperfection or invalidity of any direct or indirect security for the Guaranteed
Obligations.
Section 4. Discharge; Reinstatement In Certain Circumstances. Each Subsidiary
Guarantors obligations hereunder shall remain in full force and effect until the earlier to occur
of (i) the date when all of the Guaranteed Obligations shall have been indefeasibly paid in full in
cash or satisfied in full, as the case may be, or (ii) the date on which such Subsidiary Guarantor
is released from liability under the Senior Credit Agreement Guarantee (herein, the Termination
Conditions). Until one of the Termination Conditions is satisfied, all of the rights and remedies
under this Guaranty shall survive. If at any time while this Guaranty is in effect any payment of
the principal of (and premium, if any) and interest, if any, on any Securities or any other amount
payable or deliverable by the Company or any other party under the Indenture or any Securities
4
are rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, each Subsidiary Guarantors obligations hereunder with
respect to such payment shall be reinstated as though such payment had been due but not made at
such time.
Section 5. General Waivers; Additional Waivers.
(a) General Waivers. Each Subsidiary Guarantor irrevocably waives acceptance hereof,
presentment, demand or action on delinquency, protest, the benefit of any statutes of limitations
and, to the fullest extent permitted by law, any notice not provided for herein, as well as any
requirement that at any time any action be taken by any Person against the Company, such Subsidiary
Guarantor, any other guarantor of the Guaranteed Obligations or any other Person.
(b) Additional Waivers. Notwithstanding anything herein to the contrary, each of the
Subsidiary Guarantors hereby absolutely, unconditionally, knowingly, and expressly waives:
(i) any right it may have to revoke this Guaranty as to future indebtedness or notice
of acceptance hereof;
(ii) (A) notice of acceptance hereof; (B) notice of the amount of the Guaranteed
Obligations, subject, however, to each Subsidiary Guarantors right to make inquiry of the
Trustee to ascertain the amount of the Guaranteed Obligations at any reasonable time; (C)
notice of any adverse change in the financial condition of the Company or of any other fact
that might increase such Subsidiary Guarantors risk hereunder; (D) notice of presentment
for payment, demand, protest, and notice thereof as to any Securities; (E) notice of any
Event of Default; and (F) all other notices (except if such notice is specifically required
to be given to such Subsidiary Guarantor hereunder) and demands to which each Subsidiary
Guarantor might otherwise be entitled;
(iii) its right, if any, to require the Trustee and the Holders of Securities to
institute suit against, or to exhaust any rights and remedies which the Trustee and the
Holders of Securities now have or may hereafter have against, any other guarantor of the
Guaranteed Obligations or any third party, or against any collateral provided by such other
guarantors or any third party; and each Subsidiary Guarantor further waives any defense
arising by reason of any disability or other defense (other than the defense that the
Guaranteed Obligations shall have been fully and finally performed and indefeasibly paid) of
any other guarantor of the Guaranteed Obligations or by reason of the cessation from any
cause whatsoever of the liability of any other guarantor of the Guaranteed Obligations in
respect thereof;
(iv) (A) any rights to assert against the Trustee and the Holders of Securities any
defense (legal or equitable), set-off, counterclaim, or claim which such Subsidiary
Guarantor may now or at any time hereafter have against any other guarantor of the
Guaranteed Obligations or any third party liable to the Trustee and the Holders of
Securities; (B) any defense, set-off, counterclaim or claim, of any kind or nature, arising
directly or indirectly from the present or future lack of perfection, sufficiency, validity
or enforceability of the Guaranteed Obligations or any security therefor; (C) any defense
5
such Subsidiary Guarantor has to performance hereunder, and any right such Subsidiary
Guarantor has to be exonerated, arising by reason of: (1) the impairment or suspension of
the Trustees and the Holders of Securities rights or remedies against any other guarantor
of the Guaranteed Obligations; (2) the alteration by the Trustee and the Holders of
Securities of the Guaranteed Obligations; (3) any discharge of the obligations of any other
guarantor of the Guaranteed Obligations to the Trustee and the Holders of Securities by
operation of law as a result of the Trustees and the Holders of Securities intervention or
omission; or (4) the acceptance by the Trustee and the Holders of Securities of anything in
partial satisfaction of the Guaranteed Obligations; and (D) the benefit of any statute of
limitations affecting such Subsidiary Guarantors liability hereunder or the enforcement
thereof, and any act which shall defer or delay the operation of any statute of limitations
applicable to the Guaranteed Obligations shall similarly operate to defer or delay the
operation of such statute of limitations applicable to such Subsidiary Guarantors liability
hereunder; and
(v) any defense arising by reason of or deriving from (a) any claim or defense based
upon an election of remedies by the Trustee and the Holders of Securities; or (b) any
election by the Trustee and the Holders of Securities under Section 1111(b) of the
Bankruptcy Code to limit the amount of, or any collateral securing, its claim against the
Subsidiary Guarantors.
Section 6. Subrogation; Subordination Of Intercompany Indebtedness.
(a) Subrogation. Until one of the Termination Conditions is satisfied, each
Subsidiary Guarantor, (i) shall have no right of subrogation with respect to the Guaranteed
Obligations and (ii) waives any right to enforce any remedy which the Holders of Securities or the
Trustee now have or may hereafter have against the Company, any endorser or any other guarantor of
all or any part of the Guaranteed Obligations or any other Person, and each Subsidiary Guarantor
waives any benefit of, and any right to participate in, any security or collateral that may from
time to time be given to the Holders of Securities and the Trustee to secure the payment or
performance of all or any part of the Guaranteed Obligations or any other liability of the Company
to the Holders of Securities. Should any Subsidiary Guarantor have the right, notwithstanding the
foregoing, to exercise its subrogation rights prior to complete satisfaction of the Termination
Conditions, each Subsidiary Guarantor hereby expressly and irrevocably (A) subordinates any and all
rights at law or in equity to subrogation, reimbursement, exoneration, contribution,
indemnification or set-off that such Subsidiary Guarantor may have prior to satisfaction of one of
the Termination Conditions, and (B) waives any and all defenses available to a surety, Subsidiary
Guarantor or accommodation co-obligor until one of the Termination Conditions is satisfied. Each
Subsidiary Guarantor acknowledges and agrees that this subordination is intended to benefit the
Trustee and the Holders of Securities and shall not limit or otherwise affect such Subsidiary
Guarantors liability hereunder or the enforceability of this Guaranty, and that the Trustee, the
Holders of Securities and their respective successors and assigns are intended third party
beneficiaries of the waivers and agreements set forth in this Section 6(a).
6
(b) Subordination of Intercompany Indebtedness. Each Subsidiary Guarantor agrees that
until one of the Termination Conditions is satisfied, all claims of such Subsidiary Guarantor
against the Company, any other Subsidiary Guarantor or any other guarantor of all or any part of
the Guaranteed Obligations (each as used in this Section 6(b), an Obligor), or against any of its
properties, including, without limitation, claims arising from liens or security interests upon
property with respect to any such claim owing to such Subsidiary Guarantor (Intercompany
Indebtedness) held by such Subsidiary Guarantor, shall be subordinate and subject in right of
payment to the prior payment, in full and in cash, of all Guaranteed Obligations; provided, that,
and not in contravention of the foregoing, so long as no Event of Default has occurred and is
continuing such Subsidiary Guarantor may make loans to and receive payments in the ordinary course
with respect to such Intercompany Indebtedness from the related Obligor. Should any payment,
distribution, security or instrument or proceeds thereof be received by such Subsidiary Guarantor
upon or with respect to the Intercompany Indebtedness in contravention of this Section 6(b), prior
to satisfaction of one of the Termination Conditions, such Subsidiary Guarantor shall receive and
hold the same in trust, as trustee, for the benefit of the Holders of Securities and shall
forthwith deliver the same to the Trustee, for the benefit of the Holders of Securities, in
precisely the form received (except for the endorsement or assignment of such Subsidiary Guarantor
where necessary), for application to any of the Guaranteed Obligations, due or not due, and, until
so delivered, the same shall be held in trust by such Subsidiary Guarantor as the property of the
Holders of Securities. If any Subsidiary Guarantor fails to make any such endorsement or assignment
to the Trustee, the Trustee or any of its officers or employees are irrevocably authorized to make
the same. Each Subsidiary Guarantor agrees that until one of the Termination Conditions is
satisfied, no Subsidiary Guarantor will assign or transfer to any Person any Intercompany
Indebtedness.
Section 7. Contribution With Respect To Guaranteed Obligations.
(a) To the extent that any Subsidiary Guarantor shall make a payment under this Guaranty (a
Subsidiary Guarantor Payment) which, taking into account all other Subsidiary Guarantor Payments
then previously or concurrently made by any other Subsidiary Guarantor, exceeds the amount which
otherwise would have been paid by or attributable to such Subsidiary Guarantor if each Subsidiary
Guarantor had paid the aggregate Guaranteed Obligations satisfied by such Subsidiary Guarantor
Payment in the same proportion as such Subsidiary Guarantors Allocable Amount (as defined below)
(as determined immediately prior to such Subsidiary Guarantor Payment) bore to the aggregate
Allocable Amounts of each of the Subsidiary Guarantors as determined immediately prior to the
making of such Subsidiary Guarantor Payment, then, following the satisfaction of one of the
Termination Conditions, such Subsidiary Guarantor shall be entitled to receive contribution and
indemnification payments from, and be reimbursed by, each other Subsidiary Guarantor for the amount
of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior
to such Subsidiary Guarantor Payment.
(b) As of any date of determination, the Allocable Amount of any Subsidiary Guarantor shall
be equal to the maximum amount of the claim which could then be recovered from such Subsidiary
Guarantor under this Guaranty without rendering such claim voidable or
7
avoidable under Section 548 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.
(c) This Section 7 is intended only to define the relative rights of the Subsidiary
Guarantors, and nothing set forth in this Section 7 is intended to or shall impair the obligations
of the Subsidiary Guarantors, jointly and severally, to pay any amounts as and when the same shall
become due and payable in accordance with the terms of this Guaranty.
(d) The parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of the Subsidiary Guarantor or Subsidiary Guarantors to which
such contribution and indemnification is owing.
(e) The rights of the indemnifying Subsidiary Guarantors against other Subsidiary Guarantors
under this Section 7 shall be exercisable upon the satisfaction of one of the Termination
Conditions.
Section 8. Stay Of Acceleration. If acceleration of the time for payment of any
amount payable by the Company under the Indenture or the Securities is stayed upon the insolvency,
bankruptcy or reorganization of the Company at any time while this Guaranty is in effect, all such
amounts otherwise subject to acceleration under the terms of the Indenture or the Securities shall
nonetheless be payable by each of the Subsidiary Guarantors hereunder forthwith on demand by the
Trustee.
Section 9. Notices. All notices, requests and other communications to any party
hereunder shall be given in the manner prescribed in the Indenture, with respect to the Trustee at
its notice address specified in Section 1.05 of the Indenture, and with respect to any Subsidiary
Guarantor at the address set forth below or such other address or telecopy number as such party may
hereafter specify for such purpose by notice to the Trustee in accordance with the provisions of
such Section of the Indenture.
Notice Address for Subsidiary Guarantors:
c/o ArvinMeritor, Inc.
2135 West Maple Road
Troy, Michigan 48084-7186
Attention: Treasurer
Telephone No.: 248-435-1444
Facsimile No.: 248-435-1189
2135 West Maple Road
Troy, Michigan 48084-7186
Attention: Treasurer
Telephone No.: 248-435-1444
Facsimile No.: 248-435-1189
8
Section 10. No Waivers. No failure or delay by the Trustee or any Holder of
Securities in exercising any right, power or privilege hereunder shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies provided in this
Guaranty, the Indenture and the Securities shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 11. Successors And Assigns. This Guaranty is for the benefit of the Trustee
and the Holders of Securities and their respective successors and permitted assigns. In the event
of an assignment of any amounts payable under the Indenture or the Securities in accordance with
the respective terms thereof, the rights hereunder, to the extent applicable to the indebtedness so
assigned, may be transferred with such indebtedness. This Guaranty shall be binding upon each of
the Subsidiary Guarantors and their respective successors and assigns; provided, that no Subsidiary
Guarantor shall have any right to assign its rights or obligations hereunder without the consent of
all of the Holders of Securities, and any such assignment in violation of this Section 11 shall be
null and void.
Section 12. Changes In Writing. Other than in connection with the addition of an
additional Subsidiary Guarantor, which shall become a party hereto by executing a Supplement hereto
in the form attached as Annex I, or in connection with the addition under this Guaranty, at the
Companys election, of new securities issued by the Company under the Indenture, any of its other
existing indentures or such other indentures as the Company may enter into from time to time, which
addition shall not require the consent of the Holders of Securities, this Guaranty and any
provision hereof may be changed, waived, discharged or terminated only in a writing signed by each
of the Subsidiary Guarantors and the Trustee with the consent of the Holders of Securities of not
less than a majority of the aggregate principal amount of the Securities then Outstanding (or each
Holder of Securities affected thereby if required pursuant to the terms of Section 9.02 of the
Indenture).
Section 13. GOVERNING LAW. ANY DISPUTE BETWEEN ANY SUBSIDIARY GUARANTOR AND THE
TRUSTEE OR ANY HOLDER OF SECURITIES ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG SUCH SUBSIDIARY GUARANTOR, THE TRUSTEE AND THE HOLDERS OF
SECURITIES IN CONNECTION WITH THIS GUARANTY, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR
OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE GOVERNING LAWS SPECIFIED IN SECTION 1.12 OF THE
INDENTURE.
Section 14. No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Guaranty. In the event an ambiguity or question of intent or
interpretation arises, this Guaranty shall be construed as if drafted jointly by the parties hereto
and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provisions of this Guaranty.
9
Section 15. Expenses Of Enforcement, Etc. The Subsidiary Guarantors agree to
reimburse the Trustee and the Holders of Securities for any reasonable costs and out-of-pocket
expenses (including reasonable attorneys and paralegals fees and time charges of outside counsel
and paralegals for the Trustee and the Holders of Securities), paid or incurred by the Trustee or
any Holder of Securities in connection with the collection and enforcement of this Guaranty.
Section 16. Setoff. At any time after the occurrence and during the continuance of an
Event of Default, each Holder of Securities and the Trustee may, without notice to any Subsidiary
Guarantor and regardless of the acceptance of any security or collateral for the payment hereof,
appropriate and apply toward the payment of all or any part of the Guaranteed Obligations then due
and payable (by acceleration or otherwise) (i) any indebtedness due or to become due from such
Holder of Securities or the Trustee to any Subsidiary Guarantor, and (ii) any moneys, credits or
other property belonging to any Subsidiary Guarantor, at any time held by or coming into the
possession of such Holder of Securities or the Trustee.
Section 17. Financial Information. Each Subsidiary Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the Company, the other
Subsidiary Guarantors and any and all endorsers and/or other guarantors of all or any part of the
Guaranteed Obligations, and of all other circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations, or any part thereof, that diligent inquiry would reveal, and each
Subsidiary Guarantor hereby agrees that none of the Holders of Securities or the Trustee shall have
any duty to advise such Subsidiary Guarantor of information known to any of them regarding such
condition or any such circumstances. In the event any Holder of Securities or the Trustee, in its
sole discretion, undertakes at any time or from time to time to provide any such information to a
Subsidiary Guarantor, such Holder of Securities or the Trustee shall be under no obligation (i) to
undertake any investigation not a part of its regular business routine, (ii) to disclose any
information which such Holder of Securities or the Trustee, pursuant to accepted or reasonable
commercial finance or banking practices, wishes to maintain confidential, (iii) to make any other
or future disclosures of such information or any other information to such Subsidiary Guarantor or
(iv) to provide any such information to any other Subsidiary Guarantor.
Section 18. Severability. Wherever possible, each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Guaranty shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating the remainder of
such provision or the remaining provisions of this Guaranty.
Section 19. Merger. This Guaranty represents the final agreement of each of the
Subsidiary Guarantors with respect to the matters contained herein and may not be contradicted by
evidence of prior or contemporaneous agreements, or subsequent oral agreements, between the
Subsidiary Guarantor and any Holder of Securities or the Trustee.
Section 20. Headings. Section headings in this Guaranty are for convenience of
reference only and shall not govern the interpretation of any provision of this Guaranty.
10
Section 21. Counterparts. This Guaranty may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and any of the parties
hereto may execute this Guaranty by signing any such counterpart.
Section 22. Swedish Guarantors.
(a) Swedish Companies Act. In respect of any Subsidiary Guarantors organized under
the laws of Sweden (the Swedish Guarantors), the obligations of such Subsidiary Guarantors under
this Guaranty shall be limited if (and only if) required by an application of the provisions of the
Swedish Companies Act (Sw: aktiebolagslagen) (2005:551) in force from time to time regulating the
purpose of a companys business, prohibited loans and guarantees and distribution of assets
(including profits/dividends) (assuming that all steps open to such Subsidiary Guarantors and all
its shareholders to authorise its obligations under this Guaranty have been taken) and it is
understood that the liability of such Subsidiary Guarantors under this Guaranty only applies to the
extent permitted by the above mentioned provisions of the Swedish Companies Act.
(b) Limitations. In respect of any Swedish Guarantor, this Guaranty shall not apply to
Guaranteed Obligations of ArvinMeritor Holdings Mexico, LLC.
Section 23. Luxembourg Guarantors.
(a) Notwithstanding any other provisions of this Guaranty, any other guaranty entered into in
connection with the Senior Credit Agreement or as a result of the Senior Credit Agreement, the
Indenture or the Securities, in relation to each Guarantor organized under the laws of Luxembourg
(the Luxembourg Guarantor) the maximum amount payable by that Luxembourg Guarantor under this
Guaranty, any other guaranty entered into in connection with the Senior Credit Agreement or as a
result of the Senior Credit Agreement, the Indenture or the Securities shall at no time exceed the
Maximum Amount (as defined below) of that Luxembourg Guarantor.
(b) The Maximum Amount of any Luxembourg Guarantor means the aggregate of:
(i) the outstanding intercompany loans (including without limitation by way of
promissory notes) made directly or indirectly to that Luxembourg Guarantor which have been
funded with moneys received by the Borrowers through the issuance of the Securities; and
(ii) an amount equal to 85% of the greater of (A) that Luxembourg Guarantors Fair
Value (as defined below) on the date on which a demand is first made on that Luxembourg
Guarantor under this Guaranty after the deduction of any amount payable or paid in
accordance with paragraph (i) above and (B) that Luxembourg Guarantors Fair Value (as
defined below) at the date of this Agreement after the deduction of the amount payable or
paid in accordance with paragraph (i) above.
11
A Luxembourg Guarantors Fair Value means the market value of the assets of that
Luxembourg Guarantor as reasonably determined by the Trustee as at a specific date less all
existing liabilities (including tax liabilities) incurred from time to time by that
Luxembourg Guarantor and as reflected from time to time in the books of that Luxembourg
Guarantor.
(c) The obligations and liabilities of any Luxembourg Guarantor under this Guaranty shall not
include any obligation which, if incurred, would constitute either (a) a misuse of corporate assets
as defined under Article 171-1 of the Luxembourg Company Act of August 10, 1915, as amended from
time to time, (the Luxembourg Company Act) or (b) financial assistance.
(d) No Luxembourg Guarantor shall at any time have any liability under this Guaranty to the
extent that, if it were so liable, it would contravene any mandatory provision of Luxembourg law.
12
IN WITNESS WHEREOF, the Initial Guarantors have caused this Guaranty to be duly executed by
its authorized officer as of the day and year first above written.
ARVIN INNOVATION HOLDINGS, INC. ARVIN INNOVATION MANAGEMENT, INC. ARVIN INNOVATION MEXICO HOLDINGS II, LLC ARVIN INNOVATION MEXICO HOLDINGS III, LLC ARVIN INTERNATIONAL HOLDINGS, LLC ARVIN REPLACEMENT PRODUCTS FINANCE, LLC ARVIN TECHNOLOGIES, INC. ARVINMERITOR ASSEMBLY, LLC ARVINMERITOR BRAKE HOLDINGS, INC. ARVINMERITOR FILTERS HOLDING CO., LLC ARVINMERITOR FILTERS OPERATING CO., LLC ARVINMERITOR FORMER RIDE CONTROL OPERATING CO., INC. ARVINMERITOR HOLDINGS, LLC ARVINMERITOR HOLDINGS MEXICO, LLC ARVINMERITOR, INC., a Nevada corporation ARVINMERITOR INVESTMENTS, LLC ARVINMERITOR MASCOT, LLC ARVINMERITOR OE, LLC ARVINMERITOR TECHNOLOGY, LLC AVM, INC. EUCLID INDUSTRIES, LLC GABRIEL EUROPE, INC. MAREMONT CORPORATION MAREMONT EXHAUST PRODUCTS, INC. MERITOR HEAVY VEHICLE BRAKING SYSTEMS (U.S.A.), INC. MERITOR HEAVY VEHICLE SYSTEMS, LLC MERITOR HEAVY VEHICLE SYSTEMS (MEXICO), INC. MERITOR HEAVY VEHICLE SYSTEMS (SINGAPORE) PTE., LTD. MERITOR HEAVY VEHICLE SYSTEMS (VENEZUELA), INC. MERITOR LIGHT VEHICLE SYSTEMS (SPAIN), INC. MERITOR MANAGEMENT, INC. MERITOR TRANSMISSION CORPORATION |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Subsidiary Guaranty
ARVIN EUROPEAN HOLDINGS (UK) LIMITED |
||||
By: | ||||
Name: | ||||
Title: | ||||
ARVIN HOLDINGS NETHERLANDS B.V. |
||||
By: | ||||
Name: | ||||
Title: | ||||
ARVINMERITOR B.V. |
||||
By: | ||||
Name: | ||||
Title: | ||||
ARVINMERITOR LIMITED |
||||
By: | ||||
Name: | ||||
Title: | ||||
ARVINMERITOR SWEDEN AB |
||||
By: | ||||
Name: | ||||
Title: | ||||
MERITOR HOLDINGS NETHERLANDS B.V. |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Subsidiary Guaranty
MERITOR LUXEMBOURG S.A.R.L. |
||||
By: | ||||
Name: | ||||
Title: | ||||
MERITOR TECHNOLOGY, INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Subsidiary Guaranty
IN WITNESS whereof the Initial Guarantor has executed this Guaranty as a deed the day and year
first above written.
EXECUTED AS A DEED by |
) | ||||
ARVIN CAYMAN ISLANDS, LTD. |
) | Duly Authorised Signatory | |||
) | |||||
) | Name: |
||||
) | |||||
) | Title: |
||||
) |
in the presence of:
Name:
Address:
Occupation:
(Note: These details are to be completed in
the witnesss own hand writing.)
the witnesss own hand writing.)
Signature Page to Subsidiary Guaranty
IN WITNESS whereof the Initial Guarantor has executed this Guaranty as a deed the day and year
first above written.
EXECUTED AS A DEED by |
) | ||||
MERITOR CAYMAN ISLANDS, LTD. |
) | Duly Authorised Signatory | |||
) | |||||
) | Name: |
||||
) | |||||
) | Title: |
||||
) |
in the presence of:
Name:
Address:
Occupation:
(Note: These details are to be completed in
the witnesss own hand writing.)
the witnesss own hand writing.)
Signature Page to Subsidiary Guaranty
ANNEX I TO SUBSIDIARY GUARANTY
Reference is hereby made to the Subsidiary Guaranty (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the Guaranty), dated as of March 3, 2010,
made by certain subsidiaries of ArvinMeritor, Inc., an Indiana corporation (each an Initial
Guarantor, and together with any additional subsidiaries that become parties to this Guaranty by
executing a Supplement thereto in the form attached thereto as Annex I, the Subsidiary
Guarantors), in favor of The Bank of New York Mellon Trust Company, N.A., as Trustee, under the
Indenture (as defined in the Guaranty) for the benefit of the Holders of Securities. Each
capitalized term used herein and not defined herein shall have the meaning given to it in the
Guaranty.
By its execution below, the undersigned, [NAME OF NEW SUBSIDIARY GUARANTOR], a [corporation]
[partnership] [limited liability company], agrees to become, and does hereby become, a Subsidiary
Guarantor under the Guaranty and agrees to be bound by such Guaranty as if originally a party
thereto.
IN WITNESS WHEREOF, [NAME OF NEW SUBSIDIARY GUARANTOR], a [corporation] [partnership] [limited
liability company] has executed and delivered this Annex I counterpart to the Guaranty as of this
day of , .
[NAME OF NEW SUBSIDIARY GUARANTOR] |
||||
By: | ||||
Name: | ||||
Title: | ||||
Exhibit B
FORM OF GLOBAL SECURITY
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY.
THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF
THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
CUSIP 043353 AJ0
ISIN US043353AJ02
ISIN US043353AJ02
ARVINMERITOR, INC.
10.625% NOTES DUE 2018
10.625% NOTES DUE 2018
No. 1
|
$ | 250,000,000 |
ArvinMeritor, Inc., a corporation duly organized and existing under the laws of the State of
Indiana (herein called the Company, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede & Co. or registered
assigns, the principal sum of Two Hundred Fifty Million Dollars ($250,000,000), on March 15, 2018
and to pay interest thereon from March 3, 2010 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually, in arrears, on March 15 and
September 15 in each year, commencing September 15, 2010 at the rate of 10.625% per annum, until
the principal hereof is paid or made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security is registered at the close of business on the
Regular Record Date for such interest which shall be the March 1 or September 1 (whether or not a
Business Day), as the case may be, immediately preceding the applicable Interest Payment Date. Any
such interest not so punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose name this Security
is registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice thereof having been given to Holders of Securities of
this series not less than ten (10) days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will
be made at the office or agency of the Company maintained for that purpose in the borough of
Manhattan in the City of New York, and at such other locations as the Company may from time to time
designate, in such coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature of one of its authorized officers, this Security shall
not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
20
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
Dated: March 3, 2010
ARVINMERITOR, INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
[Corporate Seal] Attest: |
||||
By: | ||||
Name: | ||||
Title: | ||||
21
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the 10.625% Notes due 2018 described in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee |
||||
By: | ||||
Name: | ||||
Title: | ||||
Dated: March 3, 2010
22
Reverse of Security
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture, dated as of
April 1, 1998, as supplemented by a First Supplemental Indenture, dated as of July 7, 2000, a
Second Supplemental Indenture, dated as of July 6, 2004, a Third Supplemental Indenture, dated as
of June 23, 2006, and a Fourth Supplemental Indenture (the Fourth Supplemental Indenture) dated
as of March 3, 2010 (as so supplemented, herein called the Indenture), between the Company (as
successor to Meritor Automotive, Inc.) and The Bank of New York Mellon Trust Company, N.A.,
formerly known as The Bank of New York Trust Company, N.A. (as successor to BNY Midwest Trust
Company as successor to The Chase Manhattan Bank), as Trustee (herein called the Trustee, which
term includes any successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the
Securities of this series and of the terms upon which the Securities of this series are, and are to
be, authenticated and delivered. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Security and the terms of the Indenture, including the
indentures supplemental thereto, the terms of the Indenture, including the indentures supplemental
thereto, shall control. This Security is one of the series designated on the face hereof (10.625%
Notes due March 15, 2018), initially limited in aggregate principal amount to $250,000,000.
Except as otherwise provided in the Indenture, this Security will initially be issued in
global form, and definitive certificated Securities will not be issued. One or more fully
registered global certificates representing this Security will be issued for the Security, in the
aggregate principal amount thereof, and will be deposited with or on behalf of the Depository, and
registered in the name of Cede & Co., as the Depositorys nominee.
This Security is not entitled to the benefit of a sinking fund or any analogous provision.
This Security is redeemable in whole or in part from time to time at the option of the Company on
the terms provided in the Fourth Supplemental Indenture.
If an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority of the principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in
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exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and any interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registerable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and any interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Indenture contains terms, provisions and conditions relating to the consolidation of the
Company with or merger of the Company into, and the conveyance or transfer of its properties and
assets substantially as an entirety to, another Person, to the assumption by such other Person, in
certain circumstances, of all of the obligations of the Company under the Indenture and on the
Securities and to the release and discharge of the Company, in certain circumstances, from such
obligations.
The Securities of this series are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000 in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company may from time to time, without notice to or consent of the Holders of the
Securities, create and issue further notes ranking equally and ratably with the Securities of this
series in all respects (or in all respects except for the payment of interest accruing prior to the
issue date of such further notes or except for the first payment of interest following the issue
date of such further notes), so that such further notes shall be consolidated and form a single
series with the Securities of this series and shall have the same terms as to status, redemption or
otherwise as the Securities of this series, provided that such further notes are fungible with the
Securities of this series for U.S. federal income tax purposes.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
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overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary. All terms used in this Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
The Company at its option, subject to the terms and conditions contained in the Indenture, (a)
will be discharged from any and all obligations in respect of the Securities (except for certain
obligations to register the transfer and exchange of such Securities, to replace mutilated,
destroyed, lost or stolen Securities, to compensate, reimburse and indemnify the Trustee, to
maintain an office or agency with respect to the Securities and to hold moneys for payment in
trust) or (b) may omit to comply with certain restrictive covenants contained in the Indenture, in
each case upon irrevocable deposit with the Trustee in trust of money or U.S. government securities
(as described in the Indenture) or a combination thereof, which through the payment of interest and
principal in respect thereof in accordance with their terms will provide money in an amount
sufficient to discharge the principal of and interest on such Securities on the Stated Maturity of
such principal or interest.
The Indenture and this Security shall be governed by and construed in accordance with the laws
of the State of New York, without regard to its conflicts of law rules.
As provided in the Indenture, no recourse under or upon any obligation, covenant or agreement
of the Indenture or any indenture supplemental thereto, or of any Security or the coupons, if any,
appertaining thereto, or for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, shareowner, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that the Indenture and the obligations under the
Securities issued thereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators, shareowners, officers
or directors, as such, of the Company or of any successor corporation, or any of them, because of
the creation of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in the Indenture or any indenture supplemental thereto or in any
of the Securities or the coupons, if any, appertaining thereto or implied therefrom; and that any
and all such personal liability, either at common law or in equity or by constitution or statute,
of, and any and all such rights and claims against, every such incorporator, shareowner, officer or
director, as such, because of the creation of the indebtedness hereby, or under or by reason of the
obligations, covenants or agreements contained in the Indenture or any indenture supplemental
thereto, are hereby expressly waived and released as a condition of, and as a consideration for,
the execution of the Indenture and the issuance of the Securities.
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[FORM OF ASSIGNMENT]
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or tax I.D. No.)
and irrevocably appoint as agent for the transfer of this Security on the books of
the Company. The agent may substitute another to act for him.
Date: | Your Signature: |
Signature Guarantee:
(Signature must be guaranteed)
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.
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