Exhibit 10.3
EXECUTION VERSION
DOMESTIC GUARANTY
Dated as of April 27,
2006
From
THE GUARANTORS NAMED
HEREIN
And
THE ADDITIONAL GUARANTORS REFERRED
TO HEREIN
as Guarantors
in favor of
THE SECURED PARTIES REFERRED TO
IN
THE CREDIT AGREEMENT REFERRED TO
HEREIN
Domestic Guaranty
T
A B L
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Page
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Section 1.
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Guaranty;
Limitation of Liability
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1
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Section 2.
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Guaranty
Absolute
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2
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Section 3.
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Waivers and
Acknowledgments
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3
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Section 4.
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Subrogation
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4
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Section 5.
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Payments Free
and Clear of Taxes, Etc.
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5
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Section 6.
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Representations
and Warranties
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5
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Section 7.
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Covenants
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5
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Section 8.
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Amendments,
Guaranty Supplements, Etc.
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6
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Section 9.
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Notices,
Etc.
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6
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Section 10.
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No Waiver;
Remedies
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7
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Section 11.
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Right of
Set-off
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7
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Section 12.
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Indemnification
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7
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Section 13.
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Continuing
Guaranty; Assignments under the Credit Agreement
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8
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Section 14.
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Execution in
Counterparts
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8
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Section 15.
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Governing Law;
Jurisdiction; Waiver of Jury Trial, Etc.
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8
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Exhibit A - Guaranty
Supplement
Domestic Guaranty
DOMESTIC GUARANTY
DOMESTIC GUARANTY dated as of
April 27, 2006 made by the Persons listed on the signature
pages hereof under the caption “Subsidiary Guarantors”
and the Additional Guarantors (as defined in
Section 8(b) ) (such Persons so listed and the
Additional Guarantors being, collectively, the “
Guarantors ” and, individually, each a “
Guarantor ”) in favor of the Secured Parties (as
defined in the Credit Agreement referred to below).
PRELIMINARY
STATEMENT.
SENSATA TECHNOLOGIES B.V., a private
limited liability company ( besloten vennootschap met beperkte
aansprakelijkheid ) incorporated under the laws of the
Netherlands (the “ BV Borrower ”), SENSATA
TECHNOLOGIES FINANCE COMPANY, LLC, a Delaware limited liability
company (the “ US Borrower ”; together with the
BV Borrower, the “ Borrowers ”), SENSATA
TECHNOLOGIES INTERMEDIATE HOLDING B.V., a private limited liability
company ( besloten vennootschap met beperkte
aansprakelijkheid ) incorporated under the laws of the
Netherlands , are party to a Credit Agreement dated as of
April 27, 2006 (as amended, amended and restated, supplemented
or otherwise modified from time to time, the “ Credit
Agreement ”; the capitalized terms defined therein and
not otherwise defined herein being used herein as therein defined)
with certain Lenders party thereto, the Initial L/C Issuer, the
Initial Swing Line Lender and MORGAN STANLEY SENIOR FUNDING, INC.,
as Collateral Agent and Administrative Agent. The Borrowers and the
Guarantors have entered into or may from time to time enter into
lines of credit (committed or uncommitted) and other similar
arrangements (the “ Bilateral Obligations ”)
with Lenders or their Affiliates and certain other financial
institutions as initially set forth on Schedule XII of the Domestic
Security Agreement and as such schedule may be amended from time to
time upon written notice by the Borrowers to the applicable Lenders
or Affiliates and certain other financial institutions (each, in
such capacity, a “ Bilateral Provider
”).
NOW, THEREFORE, in consideration of
the premises and in order to induce the Lenders to make Loans and
to issue Letters of Credit under the Credit Agreement, the
Bilateral Providers to provide Bilateral Obligations and the Hedge
Banks to enter into Secured Hedge Agreements from time to time,
each Guarantor, jointly and severally with each other Guarantor,
hereby agrees as follows:
Section 1. Guaranty;
Limitation of Liability . (a) Each Guarantor hereby
absolutely, unconditionally and irrevocably guarantees the punctual
payment when due, whether at scheduled maturity or on any date of a
required prepayment or by acceleration, demand or otherwise, of all
Obligations of the BV Borrower, each Loan Party guaranteeing the
Obligations of the BV Borrower and each other Restricted Subsidiary
that is an obligor with respect to the Cash Management Obligations
now or hereafter existing (including, without limitation, any
extensions, modifications, substitutions, amendments or renewals of
any or all of the foregoing Obligations), whether direct or
indirect, absolute or contingent, and whether for principal,
interest, premiums, fees, indemnities, contract causes of action,
costs, expenses or otherwise and the Bilateral Obligations of each
Bilateral Provider (such Obligations being the “
Guaranteed Obligations ”), and agrees to pay any and
all reasonable expenses (including, without limitation, reasonable
fees and reasonable out-of-pocket expenses of counsel) incurred by
the Administrative Agent or any other Secured Party in enforcing
any rights under this Guaranty or any other Loan Document in
accordance with Section 10.04 of the Credit Agreement
(including reasonable fees, expenses and disbursements of any law
firm or other external counsel to the Administrative
Agent);
Domestic Guaranty
provided , however , that in no event shall the
Guaranteed Obligations of any Guarantor include any of its
obligations as a Borrower under the Credit Agreement. Without
limiting the generality of the foregoing, each Guarantor’s
liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by any other Guarantor to
any Secured Party under or in respect of the Loan Documents but for
the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding
involving such other Guarantor. Notwithstanding anything herein or
the Credit Agreement to the contrary, (i) the aggregate
principal amount of all Bilateral Obligations guaranteed hereby
shall not exceed $40,000,000 and (ii) to the extent that
Bilateral Obligations are cash collateralized or otherwise
guaranteed (other than pursuant hereunder), such Bilateral
Obligations shall not be guaranteed hereby.
(b) Each Guarantor (other than the
BV Borrower), and by its acceptance of this Guaranty, the
Administrative Agent and each other Secured Party, hereby confirms
that it is the intention of all such Persons that this Guaranty and
the Obligations of each Guarantor hereunder not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law
(as hereinafter defined), the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar foreign, federal
or state Law to the extent applicable to this Guaranty and the
Obligations of each Guarantor hereunder. To effectuate the
foregoing intention, the Administrative Agent, the other Secured
Parties and the Guarantors hereby irrevocably agree that the
Obligations of each Guarantor under this Guaranty at any time shall
be limited to the maximum amount as will result in the Obligations
of such Guarantor under this Guaranty not constituting a fraudulent
transfer or conveyance. For purposes hereof, “ Bankruptcy
Law ” means any proceeding of the type referred to in
Section 8.01(f) of the Credit Agreement or Title 11,
U.S. Code, or any similar foreign, federal or state Law for the
relief of debtors.
(c) Each Guarantor hereby
unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to any Secured Party under
this Guaranty, the Foreign Guaranty or any other guaranty, such
Guarantor will contribute, to the maximum extent permitted by Law,
such amounts to each other Guarantor and each other guarantor so as
to maximize the aggregate amount paid to the Secured Parties under
or in respect of the Loan Documents.
(d) To the extent that any Guarantor
shall be required hereunder to pay a portion of the Guaranteed
Obligations exceeding the greater of (a) the amount of the
economic benefit actually received by such Guarantor from the Loans
and (b) the amount such Guarantor would otherwise have paid if
such Guarantor had paid the aggregate amount of the Guaranteed
Obligations (excluding the amount thereof repaid by the Borrowers)
in the same proportion as such Guarantor’s net worth at the
date enforcement is sought hereunder bears to the aggregate net
worth of all the Guarantors (taken together with the aggregate net
worth of all other “ Guarantors ” (as such term
is defined in the Credit Agreement) obligated with respect to the
Guaranteed Obligations (the “ Other Guarantors
”)) at the date of enforcement is sought hereunder, then each
Other Guarantor shall reimburse such other Guarantors for the
amount of such excess, pro rata, based on the respective net worths
of such Other Guarantors at the date enforcement hereunder is
sought.
Section 2. Guaranty
Absolute . Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of
the Loan Documents, regardless of any Law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Secured Party with respect thereto. The
Obligations of each Guarantor under or in respect of this Guaranty
are independent of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and
prosecuted against each Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against the BV
Borrower or any other Loan Party or whether the BV Borrower or any
other Loan Party is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be
Domestic Guaranty
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irrevocable, absolute and unconditional
irrespective of, and each Guarantor hereby irrevocably waives any
defenses it may now have or hereafter acquire in any way relating
to, any or all of the following:
(a) any lack of validity or
enforceability of any Loan Document or any agreement or instrument
relating thereto;
(b) any change in the time, manner
or place of payment of, or in any other term of, all or any of the
Guaranteed Obligations or any other Obligations of any other Loan
Party under or in respect of the Loan Documents, or any other
amendment or waiver of or any consent to departure from any Loan
Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional
credit to any Loan Party or any of its Subsidiaries or
otherwise;
(c) any taking, exchange, release or
non-perfection of any Collateral or any other collateral, or any
taking, release or amendment or waiver of, or consent to departure
from, any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of
Collateral or any other collateral, or proceeds thereof, to all or
any of the Guaranteed Obligations, or any manner of sale or other
disposition of any Collateral or any other collateral for all or
any of the Guaranteed Obligations or any other Obligations of any
Loan Party under the Loan Documents or any other assets of any Loan
Party or any of its Subsidiaries;
(e) any change, restructuring or
termination of the corporate structure or existence of any Loan
Party or any of its Subsidiaries;
(f) any failure of any Secured Party
to disclose to any Loan Party any information relating to the
business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party now or
hereafter known to such Secured Party (each Guarantor waiving any
duty on the part of the Secured Parties to disclose such
information);
(g) the failure of any other Person
to execute or deliver this Guaranty, any Guaranty Supplement (as
hereinafter defined) or any other guaranty or agreement or the
release or reduction of liability of any Guarantor or other
guarantor or surety with respect to the Guaranteed Obligations;
or
(h) any other circumstance
(including, without limitation, any statute of limitations) or any
existence of or reliance on any representation by any Secured Party
that might otherwise constitute a defense available to, or a
discharge of, any Loan Party or any other guarantor or
surety.
This Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time any
payment of any of the Guaranteed Obligations is rescinded or must
otherwise be returned by any Secured Party or any other Person upon
the insolvency, bankruptcy or reorganization of the BV Borrower or
any other Loan Party or otherwise, all as though such payment had
not been made.
Section 3. Waivers and
Acknowledgments . (a) Each Guarantor hereby
unconditionally and irrevocably waives promptness, diligence,
notice of acceptance, presentment, demand for performance, notice
of nonperformance, default, acceleration, protest or dishonor and
any other notice with respect to any of the Guaranteed Obligations
and this Guaranty and any requirement that any Secured Party
protect, secure, perfect or insure any Lien or any property subject
thereto or exhaust any right or take any action against any Loan
Party or any other Person or any Collateral.
Domestic Guaranty
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(b) Each Guarantor hereby
unconditionally and irrevocably waives any right to revoke this
Guaranty and acknowledges that this Guaranty is continuing in
nature and applies to all Guaranteed Obligations, whether existing
now or in the future.
(c) Each Guarantor hereby
unconditionally and irrevocably waives (i) any defense arising
by reason of any claim or defense based upon an election of
remedies by any Secured Party that in any manner impairs, reduces,
releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights
of such Guarantor or other rights of such Guarantor to proceed
against any of the other Loan Parties, any other guarantor or any
other Person or any Collateral and (ii) any defense based on
any right of set-off or counterclaim against or in respect of the
Obligations of such Guarantor hereunder.
(d) Each Guarantor acknowledges that
the Collateral Agent may, without notice to or demand upon such
Guarantor and without affecting the liability of such Guarantor
under this Guaranty, foreclose under any mortgage by nonjudicial
sale, and each Guarantor hereby waives any defense to the recovery
by the Collateral Agent and the other Secured Parties against such
Guarantor of any deficiency after such nonjudicial sale and any
defense or benefits that may be afforded by applicable
Law.
(e) Each Guarantor hereby
unconditionally and irrevocably waives any duty on the part of any
Secured Party to disclose to such Guarantor any matter, fact or
thing relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan
Party or any of its Subsidiaries now or hereafter known by such
Secured Party.
(f) Each Guarantor acknowledges that
it will receive substantial direct and indirect benefits from the
financing arrangements contemplated by the Loan Documents and that
the waivers set forth in Section 2 and this
Section 3 are knowingly made in contemplation of such
benefits.
Section 4.
Subrogation . Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have
or hereafter acquire against the BV Borrower, any other Loan Party
or any other insider guarantor that arise from the existence,
payment, performance or enforcement of such Guarantor’s
Obligations under or in respect of this Guaranty or any other Loan
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any
right to participate in any claim or remedy of any Secured Party
against the BV Borrower, any other Loan Party or any other insider
guarantor or any Collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common Law,
including, without limitation, the right to take or receive from
the BV Borrower, any other Loan Party or any other insider
guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of
such claim, remedy or right, unless and until all of the Guaranteed
Obligations (other than (x) obligations with respect to
Secured Hedge Agreements, (y) Cash Management Obligations not
yet due and payable and (z) contingent indemnification
obligations not yet accrued and payable under the Loan Documents)
and all other amounts payable under this Guaranty shall have been
paid in full in cash, all Letters of Credit shall have been cash
collateralized or otherwise back-stopped, in each case, on terms
required by the Credit Agreement or shall have expired or been
terminated and the Commitments shall have expired or been
terminated. If any amount shall be paid to any Guarantor in
violation of the immediately preceding sentence at any time prior
to the latest of (a) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this
Guaranty, (b) the Maturity Date of the Term Loan Facility and
(c) the latest date of cash collateralization or other
back-stop, in each case, on the terms required by the Credit
Agreement or the expiration or termination of all Letters
of
Domestic Guaranty
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Credit, such amounts shall be received and held
in trust for the benefit of the Secured Parties, shall be
segregated from other property and funds of such Guarantor and
shall forthwith be paid or delivered to the Administrative Agent in
the same form as so received (with any necessary endorsement or
assignment) to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the
Loan Documents, or to be held as Collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter
arising. If (i) any Guarantor shall make payment to any
Secured Party of all or any part of the Guaranteed Obligations,
(ii) all of the Guaranteed Obligations and all other amounts,
if any, payable under this Guaranty shall have been paid in full in
cash, (iii) the Maturity Date of the Term Loan Facility shall
have occurred and (iv) all Letters of Credit shall have been
cash collateralized or otherwise back-stopped, in each case, on the
terms required under the Credit Agreement, or shall have expired or
been terminated, the Secured Parties will, at such
Guarantor’s request and expense, execute and deliver to such
Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by
subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment made by such Guarantor
pursuant to this Guaranty.
Section 5. Payments
Free and Clear of Taxes, Etc . Any payment made by a Guarantor
pursuant to this Guaranty which results in the impos