Exhibit 10.2
EXECUTION COPY
GUARANTY
Dated as of May 15,
2006
From
SENSATA TECHNOLOGIES B.V.
as Guarantor
in favor of
THE SECURED PARTIES REFERRED TO
IN
THE CREDIT AGREEMENT REFERRED TO
HEREIN
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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3
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Section 4. Subrogation
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4
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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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5
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Section 7. Covenants
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5
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Section 8. Amendments, Guaranty
Supplements, Etc.
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5
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Section 9. Notices, Etc.
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6
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Section 10. No Waiver;
Remedies
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6
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Section 11. Right of
Set-off
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6
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Section 12. Indemnification
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6
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Section 13. Continuing Guaranty;
Assignments under the Credit Agreement
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7
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Section 14. Judgments.
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7
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Section 15. Execution in
Counterparts
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8
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Section 16. Governing Law;
Jurisdiction; Waiver of Jury Trial, Etc.
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GUARANTY
GUARANTY dated as of May 15,
2006 made by SENSATA TECHNOLOGIES B.V., a private limited liability
company ( besloten vennootschap met beperkte
aansprakelijkheid ) incorporated under the laws of the
Netherlands (the “ Guarantor ”), in favor of the
Secured Parties (as defined in the Credit Agreement referred to
below).
PRELIMINARY
STATEMENT.
The Guarantor, SENSATA TECHNOLOGIES
FINANCE COMPANY, LLC, a Delaware limited liability company (the
“ US Borrower ”; together with the Guarantor,
the “ Borrowers ”), and 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 Administrative Agent. The
Borrowers 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
”).
The 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.
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, the
Guarantor hereby agrees as follows:
Section 1. Guaranty; Limitation
of Liability . (a) The 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 US Borrower, all Cash Management Obligations of
the US Borrower 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 solely in respect of the US
Borrower (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
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 the Guarantor include
any of its obligations as a Borrower under the Credit Agreement.
Without limiting the generality of the foregoing, the
Guarantor’s liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by
the US Borrower 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
the US Borrower. 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) The Guarantor, 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 the
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 the
Guarantor hereunder. To effectuate the foregoing intention, the
Administrative Agent, the other Secured Parties and the Guarantor
hereby irrevocably agree that the Obligations of the Guarantor
(other than 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 the 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) The 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, the Guarantor will contribute,
to the maximum extent permitted by Law, such amounts so as to
maximize the aggregate amount paid to the Secured Parties under or
in respect of the Loan Documents.
(d) Notwithstanding anything to the
contrary in any Loan Document, the Guarantor shall not 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 the
Guarantor.
Section 2. Guaranty Absolute
. The 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 the 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 the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the US Borrower (in its
capacity as Borrower under the Credit Agreement) or any other Loan
Party or whether the US Borrower or any other Loan Party is joined
in any such action or actions. The liability of the Guarantor under
this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and the 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 the US Borrower; 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;
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(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 (the 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 or any other guaranty or
agreement or the release or reduction of liability of the 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.
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 US 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) The 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) The 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) The 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,
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exoneration, contribution or indemnification
rights of the Guarantor or other rights of the 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 the Guarantor hereunder.
(d) The Guarantor acknowledges that
the Collateral Agent may, without notice to or demand upon the
Guarantor and without affecting the liability of the Guarantor
under this Guaranty, foreclose under any mortgage by nonjudicial
sale, and the Guarantor hereby waives any defense to the recovery
by the Collateral Agent and the other Secured Parties against the
Guarantor of any deficiency after such nonjudicial sale and any
defense or benefits that may be afforded by applicable
Law.
(e) The Guarantor hereby
unconditionally and irrevocably waives any duty on the part of any
Secured Party to disclose to the Guarantor any matter, fact or
thing relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan
Party