Exhibit 10.4
HOLDINGS GUARANTY
Dated as of May 27, 2004
From
UGS HOLDINGS, INC.
as Guarantor
in favor of
THE SECURED PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
TABLE OF CONTENTS
Page
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Section 1. Guaranty....................................................... 1
Section 2. Guaranty Absolute.............................................. 2
Section 3. Waivers and Acknowledgments.................................... 3
Section 4. Subrogation.................................................... 4
Section 5. Payments Free and Clear of Taxes, Etc.......................... 4
Section 6. Amendments, Etc................................................ 4
Section 7. Notices, Etc................................................... 5
Section 8. No Waiver; Remedies............................................ 5
Section 9. Right of Set-off............................................... 5
Section 10. Continuing Guaranty; Assignments under the Credit Agreement... 5
Section 11. Execution in Counterparts..................................... 6
Section 12. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc........ 6
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HOLDINGS GUARANTY
HOLDINGS GUARANTY dated as of May 27, 2004 (the "GUARANTY") made by UGS
HOLDINGS, INC., a Delaware corporation (the "GUARANTOR"), in favor of the
Secured Parties (as defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENT
UGS Corp., a Delaware corporation and a wholly owned subsidiary of the
Guarantor (the "COMPANY"), and certain Foreign Subsidiaries of the Company (the
"OVERSEAS BORROWERS" and, together with the Company, the "BORROWERS") are
parties to a Credit Agreement dated as of May 27, 2004 (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 the Guarantor, certain Lenders
party thereto, JPMorgan Chase Bank, as the L/C Issuer, the Swing Line Lender and
the Administrative Agent, the Overdraft Loan Facility Lender, and the other
Agents named therein. The Guarantor will derive substantial direct and indirect
benefits from the transactions contemplated by the Loan Documents and the
Secured Hedge Agreements (together with all instruments, agreements or other
documents evidencing the Cash Management Obligations, the "FINANCE DOCUMENTS").
It is a condition precedent to the making of Loans and the issuance of Letters
of Credit by the Lenders under the Credit Agreement and the entry by the Hedge
Banks into Secured Hedge Agreements from time to time that the 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 and the Hedge Banks to enter into Secured Hedge Agreements from time
to time, the Guarantor hereby agrees as follows:
Section 1. Guaranty. (a) The Guarantor hereby absolutely, unconditionally
and irrevocably guarantees the punctual payment, whether at scheduled maturity
or by acceleration, demand or otherwise, of all Obligations of each Loan Party
and each other Restricted Subsidiary which is an obligor with respect to the
Cash Management Obligations, Letters of Credit or Secured Hedge Agreements
(each, an "OBLIGOR") 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 (such Obligations being
the "GUARANTEED OBLIGATIONS"), and agrees to pay any and all expenses incurred
by the Administrative Agent or any other Secured Party in enforcing any rights
under this Guaranty or any other Loan Document (including reasonable fees,
expenses and disbursements of any law firm or other external counsel to the
Administrative Agent). 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 any other Obligor to any Secured
Party under or in respect of the Finance 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 Obligor.
(b) 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, the Subsidiary Guaranty, the Company Guaranty or any other
guaranty, the Guarantor will contribute, to the maximum extent permitted by law,
such amounts to each other guarantor so as to maximize the aggregate amount paid
to the Secured Parties under or in respect of the Finance Documents.
Section 2. Guaranty Absolute. The Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Finance
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 Obligor under or in respect of the Finance 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 Company or any other Obligor or whether the Company or any
other Obligor 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 Finance 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 Obligor under or in respect of the Finance Documents, or any other
amendment or waiver of or any consent to departure from any Finance Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to any Obligor 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 Obligor under
the Finance Documents or any other assets of any Obligor or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or
existence of any Obligor or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Obligor any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Obligor now or
hereafter known to such Secured Party (the Guarantor waiving any duty on the
part of the Secured Parties to disclose such information);
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(g) the failure of any other Person to execute or deliver any other
guaranty or agreement or the release or reduction of liability of any other
guarantor or surety with respect to the Guaranteed Obligations; or
(h) any other circumstance 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 Obligor 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 Company or any other Obligor 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 Obligor or
any other Person or any Collateral.
(b) The 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) 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, exoneration,
contribution or indemnification rights of the Guarantor or other rights of the
Guarantor to proceed against any of the other Obligors, 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 Administrative Agent may, in
accordance with the Loan Documents, 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 Administrative 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 Obligor or any of
its Subsidiaries now or hereafter known by such Secured Party.
(f) The Guarantor acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated by the Finance
Documents and that the waivers set forth in Section 2 and this Section 3 are
knowingly made in contemplation of such benefits.
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(g) The waivers of the Guarantor set forth in this Section 3 are made to
the fullest extent permitted by applicable law.
Section 4. Subrogation. The Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Company, any other Obligor or any other insider guarantor
that arise from the existence, payment, performance or enforcement of the
Guarantor's Obligations under or in respect of this Guaranty or any other
Finance 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 Company, any
other Obligor 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
Company, any other Obligor 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 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
reasonably satisfactory to the Administrative Agent, or shall have expired or
been terminated and the Commitments shall have expired or been terminated. If
any amount shall be paid to the 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 and (c) the latest date of cash
collateralization or other back-stop, in each case, on terms reasonably
satisfactory to the Administrative Agent, or expiration or termination of all
Letters of Credit, such amount shall be received and held in trust for the
benefit of the Secured Parties, shall be segregated from other property and
funds of the 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 Finance Documents, or to be
held as Collateral for any Guaranteed Obligations or other amounts payable under
this Guaranty thereafter arising. If (i) all of the Guaranteed Obligations and
all other amounts payable under this Guaranty shall have been paid in full in
cash, (ii) the Maturity Date shall have occurred and (iii) all Letters of Credit
shall have been cash collateralized or otherwise back-stopped, in each case, on
terms reasonably satisfactory to the Administrative Agent, or expired or been
terminated, the Secured Parties will, at the Guarantor's request and expense,
execute and deliver to the Guarantor appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer by
subrogation to the Guarantor of an interest in the Guaranteed Obligations
resulting from such payment made by the Guarantor pursuant to this Guaranty.
Section 5. Payments Free and Clear of Taxes, Etc. Any and all payments by
the Guarantor under this Guaranty or any other Loan Document shall be made free
and clear of and without deduction for any and all present or future Taxes, to
the extent required by the provisions of Article 3 of the Credit Agreement
applicable to a Borrower thereunder.
Section 6. Amendments, Etc. No amendment or waiver of any provision of
this Guaranty and no consent to any departure by the Guarantor therefrom shall
in any event be effective unless the same shall be in writing and signed by the
Administrative Agent and the Guarantor
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(with the consent of the requisite number of Lenders specified in the Credit
Agreement), and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 7. Notices, Etc. All notices and other communications provided for
hereunder shall be in writing (including telegraphic or telecopy communication
or facsimile transmission) and mailed, telegraphed, telecopied, faxed or
delivered to it, if to the Guarantor, addressed to it in care of the Company at
the Company's address specified in Schedule 10.02 of the Credit Agreement, if to
any Agent or any Lender, at its address specified in Schedule 10.02 of the
Credit Agreement, if to any Hedge Bank, at its address specified in the Secured
Hedge Agreement to which it is a party, or, as to any party, at such other
address as shall be designated by such party in a written notice to each other
party. All such notices and other communications shall be deemed to be given or
made at such time as shall be set forth in Section 10.02 of the Credit
Agreement. Delivery by telecopier of an executed counterpart of a signature page
to any amendment or waiver of any provision of this Guaranty shall be effective
as delivery of an original executed counterpart thereof.
Section 8. No Waiver; Remedies. No failure on the part of any Secured
Party to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
Section 9. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 8.02 of the Credit Agreement to
authorize the Administrative Agent to declare the Notes due and payable pursuant
to the provisions of said Section 8.02, the Administrative Agent and, after
obtaining the prior written consent of the Administrative Agent, each other
Agent and each Lender and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Agent, such Lender or such Affiliate to or for the credit or
the account of the Guarantor against any and all of the Obligations of the
Guarantor now or hereafter existing under the Loan Documents, irrespective of
whether such Agent or such Lender shall have made any demand under this Guaranty
or any other Loan Document and although such Obligations may be unmatured. Each
Agent and each Lender agrees promptly to notify the Guarantor after any such
set-off and application; provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Agent
and each Lender and their respective Affiliates under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Agent, such Lender and their respective Affiliates
may have.
Section 10. Continuing Guaranty; Assignments under the Credit Agreement.
This Guaranty is a continuing guaranty and shall (a) remain in full force and
effect until the latest of (i) the payment in full in cash of the Guaranteed
Obligations (other than with respect to Secured Hedge Agreements and Cash
Management Obligations which are not yet due and payable) and all other amounts
payable under this Guaranty, (ii) the Maturity Date and (iii) the latest date of
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cash collateralization or other back-stop, in each case, on terms reasonably
satisfactory to the Administrative Agent, or expiration or termination of all
Letters of Credit, (b) be binding upon the Guarantor, its successors and assigns
and (c) inure to the benefit of and be enforceable by the Secured Parties and
their permitted successors, transferees and assigns. Without limiting the
generality of clause (c) of the immediately preceding sentence, any Secured
Party may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitments, the Loans owing to it and the Note or Notes held
by it) to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to such Secured Party herein or
otherwise, in each case as and to the extent provided in Section 10.07 of the
Credit Agreement. Except as provided in the Credit Agreement, the Guarantor
shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Secured Parties.
Section 11. Execution in Counterparts. This Guaranty and each amendment,
waiver and consent with respect hereto may be executed in any number of
counterparts and by different parties thereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Guaranty by telecopier shall be
effective as delivery of an original executed counterpart of this Guaranty.
Section 12. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a)
This Guaranty shall be governed by, and construed in accordance with, the laws
of the State of New York.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY, THE GUARANTOR
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. THE GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO.
(c) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, CLAIM, DEMAND OR CAUSE OF ACTION (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED THERETO.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
UGS HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
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