Exhibit 10.4
EXECUTION COPY
FOREIGN 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
Foreign Guaranty
T
A B L
E O F C O N T
E N T S
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Page
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Section 1. Guaranty; Limitation of
Liability
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1
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Section 2. Guaranty
Absolute
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2
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Section 3. Waivers and
Acknowledgments
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4
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Section 4. Subrogation
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5
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Section 5. Payments Free and Clear of
Taxes, Etc.
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5
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Section 6. Representations and
Warranties
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6
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Section 7. Covenants
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6
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Section 8. Amendments, Guaranty
Supplements, Etc.
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6
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Section 9. Notices, Etc.
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7
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Section 10. No Waiver;
Remedies
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7
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Section 11. Right of
Set-off
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7
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Section 12. Indemnification
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8
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Section 13. Continuing Guaranty;
Assignments under the Credit Agreement
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8
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Section 14. Judgments.
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9
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Section 15. Execution in
Counterparts
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9
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Section 16. Governing Law;
Jurisdiction; Waiver of Jury Trial, Etc.
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9
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Exhibit A - Guaranty
Supplement
Foreign Guaranty
FOREIGN GUARANTY
FOREIGN GUARANTY dated as of
April 27, 2006 made by the Persons listed on the signature
pages hereof under the caption “Foreign 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
”).
Each Guarantor may receive, directly
or indirectly, a portion of the proceeds of the Loans under the
Credit Agreement and will derive substantial direct and indirect
benefits from the transactions contemplated by the Credit Agreement
and from each Bilateral Provider’s Bilateral Obligations. It
is a condition precedent to the making of the Loans by the Lenders
and the issuance of Letters of Credit by the Initial L/C Issuer
under the Credit Agreement and the entry by the Hedge Banks into
Secured Hedge Agreements from time to time that each Guarantor
shall have executed and delivered this Guaranty.
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 Foreign 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
Foreign Guaranty
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 Attorney Costs of any law firm or other
external counsel to the Administrative Agent); 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 in 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 confirm
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 (other than the BV Borrower in its
capacity as a Borrower under the Credit Agreement) 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 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.
(e) Notwithstanding anything to the
contrary in any Loan Document, no Guarantor shall have any
liability or obligation under this Guaranty to the extent that such
liability or obligation would constitute unlawful financial
assistance under the applicable Laws of the jurisdiction of any
Guarantor.
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
Foreign Guaranty
2
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 (in its
capacity as Borrower under the Credit Agreement) 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 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;
provided that where such a waiver is unenforceable or where
such a change would discharge the Guarantor of its liability under
this Guaranty if made without its consent, the Guarantor hereby
gives its consent to such change;
(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 to
the extent permitted; provided that, where a Loan Party
contracts with the Secured Parties to be discharged from the
Guaranteed Obligations, the Guarantor hereby assents to such
contract and remains bound under this Guaranty.
Foreign Guaranty
3
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 (in its
capacity as a Borrower under the Credit Agreement) 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.
(b) Each Guarantor hereby
unconditionally and irrevocably waives any right to revoke this
Guaranty and, where it may not waive this right, the Guarantor
agrees that this Guaranty will not be revoked, 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.
(g) To the fullest extent permitted
by law, each Guarantor organized under the laws of Mexico
unconditionally and irrevocably waives, any right to which it may
be entitled, to the extent applicable, under Articles 2813,
2814,2815,2816, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2824,
2826, 2827, 2830, 2835, 2836, 2837, 2838, 2839, 2840, 2842, 2844,
2846, 2847, 2848 and 2849 of the Federal Civil Code (
Código Civil Federal ) and the corresponding provisions
of the Civil Codes of the States of Mexico and the Federal
District.
Foreign Guaranty
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(h) Each Guarantor organized under
the laws of Brazil hereby unconditionally and irrevocably waives
the rights and benefits under Articles 364, 365, 827, 829, 834,
835, 837, 838 and 839 of the Brazilian Civil Code.
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 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. P