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Exhibit 4.4
SUBSIDIARY GUARANTEE AMONG MG (BERMUDA) LTD., THE SENTRY GROUP, INC., META
GROUP, INC. AND THE BANK OF NEW YORK DATED SEPTEMBER 18, 2000
SUBSIDIARY GUARANTY (as the same may be amended, supplemented or
otherwise modified from time to time, this "GUARANTY"), dated as of September
18, 2000, by and among MG (BERMUDA) LTD., a corporation formed under the laws of
Bermuda, THE SENTRY GROUP, INC., a Massachusetts corporation (each, a "CURRENT
GUARANTOR"), such other Persons which from time to time may become party hereto
(each, a "NEW GUARANTOR", and collectively with the Current Guarantors, the
"GUARANTORS"), META GROUP, INC., a Delaware corporation (the "BORROWER"), and
THE BANK OF NEW YORK (the "BANK").
RECITALS
A. Reference is made to the Credit Agreement, dated as of the date
hereof, by and between the Borrower and the Bank (as the same may be amended,
supplemented or otherwise modified from time to time, the "CREDIT Agreement").
B. Pursuant to the Credit Agreement, the Bank will not make the Loans
or issue Letters of Credit unless and until the Guarantors shall have executed
and delivered this Guaranty.
C. Each Guarantor expects to derive substantial benefit from the Credit
Agreement and the transactions contemplated thereby and, in furtherance thereof,
has agreed to execute and deliver this Guaranty.
Therefore, in consideration of the Recitals, the terms and conditions
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantors, the Borrower and
the Bank hereby agree as follows:
Section 1. DEFINED TERMS
(a) Capitalized terms used herein which are not otherwise
defined herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
(b) When used in this Guaranty, the following capitalized terms
shall have the respective meanings ascribed thereto as follows:
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"BORROWER OBLIGATIONS": all of the obligations and
liabilities of the Borrower under the Loan Documents, in each case
whether direct, indirect or contingent, incurred as primary obligor or
otherwise, secured or unsecured, now existing or hereafter arising,
created, assumed, incurred or acquired, and whether before or after the
occurrence of any Insolvency Event, and (i) any obligation or liability
in respect of any breach of any representation or warranty and in
respect of any rights of redemption or rescission, and (ii) all
principal and interest (including all post-petition interest), funding
losses make-whole premiums, and all reasonable costs and expenses of
the Bank in enforcing, preserving and protecting any thereof, whether
or not suit is instituted and whether or not allowed as a claim in any
proceeding arising in connection with an Insolvency Event (as the same
may be amended, increased, modified, renewed, refinanced, refunded or
extended from time to time).
"COLLATERAL": as defined in the Security Agreement.
"CONSIDERATION": as of any date of determination and
with respect to each Guarantor, an amount equal to the lesser of (i)
the total "value" (within the meaning of Section 548 of the Bankruptcy
Code as in effect on the date hereof) given, directly or indirectly, to
such Guarantor during the period commencing on the date such Guarantor
became a party to this Guaranty and ending on such date of
determination, in exchange for its execution and delivery of this
Guaranty, and (ii) the amount of "fair consideration" (within the
meaning of Article 10 of the New York Debtor Creditor Law as in effect
on the date hereof) given, directly or indirectly, to such Guarantor
during the period commencing on the date such Guarantor became a party
to this Guaranty and ending on such date of determination in exchange
for its execution and delivery of this Guaranty.
"GUARANTOR OBLIGATIONS": all of the obligations and
liabilities of the Guarantors hereunder, whether fixed, contingent,
now existing or hereafter arising, created, assumed, incurred or
acquired.
"INSOLVENCY EVENT": any Event of Default under
Sections 9.1(h) or 9.1(i) of the Credit Agreement.
"NET WORTH": as of any date and with respect to
each Guarantor, the lesser of the following:
(a)(i) all of such Guarantor's "property, at a
fair valuation" (within the meaning of Section 101(32) of the
Bankruptcy Code as in effect on the date hereof) on such date,
MINUS (ii) the sum of such Guarantor's "debts" (within the
meaning of Section 101(12) of the Bankruptcy Code as in effect
on the date hereof) on such date other than such Guarantor's
liability hereunder, and
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(b)(i) the "fair salable value of the assets"
(within the meaning of Article 10 of the New York Debtor
Creditor Law as in effect on the date hereof) of such
Guarantor on such date, MINUS (ii) "the amount that will be
required to pay such Guarantor's probable liability on its
existing debts as they become absolute and matured" (as such
phrase would be construed under Article 10 of the New York
Debtor Creditor Law as in effect on the date hereof) on such
date other than such Guarantor's liability hereunder.
"OBLIGATIONS": collectively, the Borrower
Obligations and the Guarantor Obligations.
"PAYMENT": the indefeasible payment in full in cash.
"SUBORDINATED DEBT": all indebtedness for borrowed
money and any other obligations, contingent or otherwise, of the
Borrower to any Guarantor, all amounts, fees and expenses payable by
the Borrower to any Guarantor in respect thereof, in each case whether
now existing or hereafter arising, created, assumed, incurred or
acquired.
"SUPPLEMENT": a Supplement to this Guaranty,
duly completed, in the form of Annex A hereto.
Section 2. GUARANTY
(a) Subject to Section 2(b) hereof, each Guarantor
hereby absolutely, irrevocably and unconditionally guarantees the full and
prompt payment when due (whether at stated maturity, by acceleration, by
mandatory prepayment, by notice of intention to prepay or otherwise) of the
Borrower Obligations. This Guaranty constitutes a guaranty of payment and the
Bank shall have no obligation to enforce any Loan Document or exercise any right
or remedy with respect to any Collateral by any action, making or perfecting any
claim against any Person or any collateral security for any of the Borrower
Obligations prior to being entitled to the benefits of this Guaranty. The
Guarantor Obligations shall be absolute, irrevocable, unconditional, direct and
primary and shall not be subject to any counterclaim, right of set-off or
defense whatsoever. The Bank may, at its option, proceed against the Guarantors,
or any one or more of them, in the first instance, to enforce the Guarantor
Obligations without first proceeding against the Borrower or any other Person,
and without first resorting to any other rights or remedies, as the Bank may
deem advisable. In furtherance hereof, if the Bank is prevented by law from
collecting or otherwise hindered from collecting or otherwise enforcing any
Borrower Obligation in accordance with its terms, the Bank shall be entitled to
receive hereunder from the Guarantors after demand therefor, the sums which
would have been otherwise due had such collection or enforcement not been
prevented or hindered.
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(b) Notwithstanding anything to the contrary contained
in this Guaranty, the maximum liability of each Guarantor hereunder shall not,
as of any date of determination, exceed the lesser of the highest amount that is
valid and enforceable against such Guarantor under principles of New York State
contract law, and the sum of all Consideration received by such Guarantor as of
such date of determination, PLUS 95% of the Net Worth of such Guarantor on such
date of determination.
(c) Each Guarantor agrees that the Guarantor Obligations
may at any time and from time to time exceed the maximum liability of such
Guarantor hereunder without impairing this Guaranty or affecting the rights and
remedies of the Bank hereunder.
Section 3. ABSOLUTE OBLIGATION
The Bank has made no representation or warranty to any Guarantor with
respect to the Borrower, its Subsidiaries, any Loan Document, or any agreement,
instrument or document executed or delivered in connection therewith or any
other matter whatsoever, and each Guarantor shall be liable hereunder, and such
liability shall not be affected or impaired, irrespective of (i) the validity or
enforceability of any Loan Document, or any agreement, instrument or document
executed or delivered in connection therewith, or the collectability of any of
the Borrower Obligations, (ii) the preference or priority ranking with respect
to any of the Borrower Obligations, (iii) the existence, validity,
enforceability or perfection of any security interest or collateral security
under any Loan Document, or the release, exchange, substitution or loss or
impairment of any such security interest or collateral security, (iv) any
failure, delay, neglect or omission by the Bank to realize upon, enforce or
protect any direct or indirect collateral security, indebtedness, liability or
obligation, any Loan Document, or any agreement, instrument or document executed
or delivered in connection therewith, or any of the Borrower Obligations, (v)
the existence or exercise of any right of set-off by the Bank, (vi) the
existence, validity or enforceability of any other guaranty with respect to any
of the Borrower Obligations, the liability of any other Person in respect of any
of the Borrower Obligations, or the release of any such Person or any other
guarantor of any of the Borrower Obligations, (vii) any act or omission of the
Bank in connection with the administration of any Loan Document, or any of the
Borrower Obligations, (viii) the bankruptcy, insolvency, reorganization or
receivership of, or any other proceeding for the relief of debtors commenced by
or against, any Person, (ix) the disaffirmance or rejection, or the purported
disaffirmance or purported rejection, of any of the Borrower Obligations, any
Loan Document, or any agreement, instrument or document executed or delivered in
connection therewith, in any bankruptcy, insolvency, reorganization or
receivership, or any other proceeding for the relief of debtor, relating to any
Person, (x) any law, regulation or decree now or hereafter in effect which might
in any manner affect any of the terms or provisions of any Loan Document, or any
agreement, instrument or document executed or delivered in connection therewith
or any of the Borrower Obligations, or which might cause or permit to be invoked
any alteration in the time,
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amount, manner or payment or performance of any of the Borrower Obligations,
(xi) the merger or consolidation of the Borrower into or with any Person, (xii)
the sale by the Borrower of all or any part of its assets, (xiii) the fact that
at any time and from time to time none of the Borrower Obligations may be
outstanding or owing to the Bank, (xiv) any amendment or modification of, or
supplement to, any Loan Document or (xv) any other reason or circumstance which
might otherwise constitute a defense available to or a discharge of the Borrower
in respect of the Borrower Obligations or of such Guarantor in respect of any of
the Guarantor Obligations (other than by the performance in full thereof).
Section 4. GRANT OF SECURITY INTEREST
To secure the prompt and complete payment, observance and performance
of the Guarantor Obligations, each New Guarantor which owns any Capital Stock of
any other Subsidiary of the Borrower shall, simultaneously with its execution
and delivery of the Supplement to this Guaranty, enter into a Supplement to the
Security Agreement in the form attached to the Security Agreement.
Section 5. REPRESENTATIONS AND WARRANTIES
Each Guarantor hereby represents and warrants to the Bank as follows:
(a) EXISTENCE AND POWER. Such Guarantor is duly organized and validly
existing in good standing under the laws of the jurisdiction of its
incorporation and in each other jurisdiction in which the failure to be
qualified and in good standing could reasonably be expected to have a Material
Adverse Effect.
(b) AUTHORITY AND EXECUTION. Such Guarantor has full legal power and
authority to own its Property, conduct its business, and enter into, execute,
deliver and perform the terms of this Guaranty which has been duly authorized by
all proper and necessary corporate or other applicable action and are in full
compliance with its Organizational Documents. Such Guarantor has duly executed
and delivered this Guaranty.
(c) BINDING OBLIGATION. This Guaranty constitutes the valid and binding
obligation of such Guarantor, enforceable in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws related to or affecting the
enforcement of creditors' rights generally.
(d) LITIGATION. There are no actions, suits or proceedings at law or in
equity or by or before any Governmental Authority (whether purportedly on behalf
of the Borrower) pending or threatened (in writing) against such Guarantor or
which may affect the property or rights of such Guarantor, which (i) could
reasonably be expected to have a Material Adverse Effect, (ii) call into
question the validity or enforceability of, or
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otherwise seek to invalidate, any Loan Document or any Acquisition Document,
(iii) might, individually or in the aggregate, materially and adversely affect
any of the transactions contemplated by any Loan Document or any Acquisition
Document, or (iv) are not disclosed in any Loan Document.
(e) REQUIRED CONSENTS. No consent, authorization or approval of, filing
with, notice to, or exemption by, stockholders or holders of any other equity
interest, any Governmental Authority or any other Person is required to
authorize, or is required in connection with the execution, delivery and
performance of this Guaranty or is required as a condition to the validity or
enforceability of this Guaranty.
(f) ABSENCE OF DEFAULTS; NO CONFLICTING AGREEMENTS. Such Guarantor is
not in default under any mortgage, indenture, contract or agreement to which it
is a party or by which it or any of its property is bound, the effect of which
default could reasonably be expected to have a Material Adverse Effect. The
execution, delivery or carrying out of the terms of this Guaranty will not
constitute a default under, or result in the creation or imposition of, or
obligation to create, any Lien upon any property of such Guarantor or result in
a breach of or require the mandatory repayment of or other acceleration of
payment under or pursuant to the terms of any such mortgage, indenture, contract
or agreement. Such Guarantor is not in default with respect to any judgment,
order, writ, injunction, decree or decision of any Governmental Authority which
default could reasonably be expected to have a Material Adverse Effect.
(g) COMPLIANCE WITH APPLICABLE LAWS. Such Guarantor is complying in all
material respects with all statutes, regulations, rules and orders of all
Governmental Authorities which are applicable to such Guarantor, a violation of
which could reasonably be expected to have a Material Adverse Effect.
(h) TAXES. Such Guarantor has filed all tax returns required to be
filed and has paid, or has made adequate provision for the payment of, all taxes
shown to be due and payable on said returns or in any assessments made against
it which would be material to such Guarantor, and no tax Liens have been filed
with respect thereto. The charges, accruals and reserves on the books of such
Guarantor with respect to all taxes are, to the best knowledge of such
Guarantor, adequate for the payment of such taxes, and such Guarantor knows of
no unpaid assessment which is due and payable against such Guarantor or any
claims being asserted which could reasonably be expected to have a Material
Adverse Effect.
(i) GOVERNMENTAL REGULATIONS. Such Guarantor nor any Person controlled
by, controlling, or under common control with, such Guarantor, is not subject to
regulation under the Investment Company Act of 1940, as amended, or is subject
to any statute or regulation which prohibits or restricts the incurrence of
Indebtedness.
(j) ENVIRONMENTAL MATTERS. To the best of such Guarantor's knowledge:
(i) no Hazardous Substances have been generated or manufactured on,
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transported to or from, treated at, stored at or discharged from any Real
Property of such Guarantor in material violation of any Environmental Laws; (ii)
no Hazardous Substances have been discharged into subsurface waters under any
such Real Property in material violation of any Environmental Laws; (iii) no
Hazardous Substances have been discharged from any such Real Property on or into
property or waters (including subsurface waters) adjacent to any such Real
Property in material violation of any Environmental Laws; and (iv) there are not
now, nor ever have been since the date of occupancy or ownership by such
Guarantor (whichever occurred first), on any such Real Property any underground
or above ground storage tanks regulated under any Environmental Laws. Such
Guarantor (i) has not received written notice or otherwise learned of any claim,
demand, suit, action, proceeding, event, condition, report, directive, Lien,
violation, non-compliance or investigation indicating or concerning any
potential or actual liability of such Guarantor (including, without limitation,
potential liability for enforcement, investigatory costs, cleanup costs,
government response costs, removal costs, remedial costs, natural resources
damages, property damages, personal injuries or penalties) arising in connection
with: (x) any non-compliance with or violation of the requirements of any
applicable Environmental Laws, or (y) the presence of any Hazardous Substance on
any such Real Property or the release or threatened release of any Hazardous
Substance into the environment, (ii) to the best of such Guarantor's knowledge,
has no threatened or actual liability in connection with the presence of any
Hazardous Substance on any such Real Property or the release or threatened
release of any Hazardous Substance into the environment, (iii) has not received
written notice of any federal or state investigation evaluating whether any
remedial action is needed to respond to the presence of any Hazardous Substance
on any such Real Property or a release or threatened release of any Hazardous
Substance into the environment for which such Guarantor is or may be liable, or
(iv) has not received notice that such Guarantor is or may be liable to any
Person under any Environmental Law.
(k) NO MISREPRESENTATION. No representation or warranty contained in
this Guaranty and no certificate or report from time to time furnished by such
Guarantor in connection with the transactions contemplated hereby and thereby,
when taken as a whole, contains or will contain a misstatement of material fact,
or, to the best knowledge of such Guarantor, omits or will omit to state a
material fact required to be stated in order to make the statements therein
contained not misleading in the light of the circumstances under which made,
PROVIDED THAT any projections or pro-forma financial information contained
therein are based upon good faith estimates and assumptions believed by such
Guarantor to be reasonable at the time made, it being recognized by the Bank
that such projections as to future events are not to be viewed as facts, and
that actual results during the period or periods covered thereby may differ from
the projected results.
(l) SOLVENCY. Such Guarantor (if a Current Guarantor, both immediately
before and after giving effect to this Guaranty and to all Indebtedness incurred
by the Borrower in connection therewith, or, if an New Guarantor, immediately
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before and after giving effect to the Supplement delivered by such New Guarantor
pursuant to which it becomes a party to this Guaranty) is Solvent.
Section 6. COVENANTS
Each Guarantor covenants with the Bank as follows:
(a) LEGAL EXISTENCE. Except as may otherwise be permitted by Section
8.3 of the Credit Agreement, such Guarantor shall maintain its existence in good
standing in the jurisdiction of its formation and in each other jurisdiction in
which the failure so to do could reasonably be expected to have a Material
Adverse Effect.
(b) TAXES. Such Guarantor shall pay and discharge when due, all Taxes
upon or with respect to such Guarantor and all Taxes upon the income, profits
and property of such Guarantor, which if unpaid, could reasonably be expected to
have a Material Adverse Effect or become a Lien on property of such Guarantor
(other than a Lien described in clause (ii) of Section 8.2 of the Credit
Agreement), unless and to the extent only that such Taxes shall be contested in
good faith and by appropriate proceedings diligently conducted by such Guarantor
and provided that any such contested Tax, shall not constitute, or create, a
Lien on any property of such Guarantor senior to the Liens, if any, granted to
the Bank by the Collateral Documents on such property, and, provided further,
that such Guarantor shall give the Bank prompt notice of such contest and that
such reserve or other appropriate provision as shall be required in accordance
with GAAP shall have been made therefor.
(c) INSURANCE. Such Guarantor shall maintain with financially sound and
reputable insurance companies insurance in at least such amounts and against at
least such risks (but including in any event public liability, product liability
and business interruption coverage) as are usually insured against in the same
general area by companies engaged in the same or a similar business; and furnish
to the Bank, upon written request, full information as to the insurance carried.
(d) PERFORMANCE OF OBLIGATIONS. Such Guarantor shall pay and discharge
when due all lawful Indebtedness, obligations and claims for labor, materials
and supplies or otherwise which, if unpaid, might have a Material Adverse
Effect, or become a Lien upon property of such Guarantor other than a Permitted
Lien, unless and to the extent only that the validity of such Indebtedness,
obligation or claim shall be contested in good faith and by appropriate
proceedings diligently conducted and that any such contested Indebtedness,
obligations or claims shall not constitute, or create, a Lien on any property of
such Guarantor senior to the Lien, if any, granted to the Bank under the
Collateral Documents on such property, and provided that such Guarantor shall
give the Bank prompt notice of any such contest and that such reserve or other
appropriate provision as shall be required in accordance with GAAP shall have
been made therefor.
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(e) CONDITION OF PROPERTY. Such Guarantor shall at all times, maintain,
protect and keep in good repair, working order and condition (ordinary wear and
tear excepted), all property necessary and material to the operation of such
Guarantor's business.
(f) OBSERVANCE OF LEGAL REQUIREMENTS. Such Guarantor shall observe and
comply in all respects, with all laws, ordinances, orders, judgments, rules,
regulations, certifications, franchises, permits, licenses, directions and
requirements of all Governmental Authorities, which now or at any time hereafter
may be applicable to it, a violation of which could reasonably be expected to
have a Material Adverse Effect, except such thereof as shall be contested in
good faith and by appropriate proceedings diligently conducted by it, provided
that such Guarantor shall give the Bank prompt notice of such contest and that
such reserve or other appropriate provision as shall be required in accordance
with GAAP shall have been made therefor.
(g) INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Upon
reasonable prior notice, such Guarantor shall permit representatives of the Bank
to visit the offices of such Guarantor during normal business hours, to examine
the books and records thereof and the reports of independent accountants
relating thereto, and to make copies or extracts therefrom, to discuss the
affairs of such Guarantor with the respective officers thereof, and to examine
and inspect the property of such Guarantor and to meet and discuss the affairs
of such Guarantor with the Accountants.
(h) AUTHORIZATIONS. Such Guarantor shall maintain in full force and
effect, all material licenses, franchises, permits, licenses, authorizations and
other rights as are necessary for the conduct of its business.
Section 7. NEGATIVE COVENANTS
Each Guarantor covenants with the Bank that it will not:
(a) INDEBTEDNESS. Create, incur, assume or suffer to exist any
liability for Indebtedness, except as permitted under Section 8.1 of the Credit
Agreement;
(b) LIENS. Create, incur, assume or suffer to exist any Lien upon any
of its property (including, without limitation, Intellectual Property, Licenses
and Real Property), whether now owned or hereafter acquired, except as permitted
under Section 8.2 of the Credit Agreement;
(c) MERGER; CONSOLIDATIONS. Consolidate with, be acquired by, merge
into or with any Person or enter into any binding agreement to do any of the
foregoing which is not contingent on obtaining the consent of the Bank, except
as permitted under Section 8.3 of the Credit Agreement;
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(d) DISPOSITIONS. Except as permitted under Section 8.4 of the Credit
Agreement, make any Disposition;
(e) INVESTMENTS, LOANS, ETC. Except as permitted under Section 8.5 of
the Credit Agreement, make any Investment;
(f) RESTRICTED PAYMENTS. Except as permitted under Section 8.6 of the
Credit Agreement, make any Restricted Payments;
(g) BUSINESS AND NAME CHANGES. Materially change the nature of the
business of such Guarantor from that conducted by immediately before such
Guarantor shall have become a party to this Guaranty;
(h) SUBSIDIARIES. Except as permitted under Section 8.8 of the Credit
Agreement, create or acquire any Subsidiary;
(i) SALE AND LEASEBACK TRANSACTIONS. Enter into any Sale and Leaseback
Transaction;
(j) AMENDMENTS, ETC. OF CERTAIN AGREEMENTS. Enter into or agree to any
amendment, modification or waiver of any term or condition of its Organizational
Documents in any way which would adversely affect the interests of the Bank
under any of the Loan Documents;
(k) TRANSACTIONS WITH AFFILIATES. Become a party to any transaction
with an Affiliate unless the board of managers or board of directors of such
Guarantor shall have determined that the terms and conditions relating thereto
are as favorable to such Guarantor as those which would be obtainable at the
time in a comparable arms-length transaction with a Person other than an
Affiliate; or
(l) LIMITATION ON NEGATIVE PLEDGES. Enter into any agreement, other
than (i) this Guaranty and (ii) purchase money mortgages or capital leases
permitted by this Agreement (in which cases, any prohibition or limitation shall
only be effective against the assets financed thereby), which prohibits or
limits the ability of such Guarantor to create, incur, assume or suffer to exist
any Lien upon any of its property or revenues, whether now owned or hereafter
acquired.
Section 8. REMEDIES
(a) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, the Bank may exercise any and all
rights and remedies under this Guaranty, the Credit Agreement, the other Loan
Documents, or otherwise allowed by law.
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(b) To the extent permitted by law, each Guarantor hereby expressly
waives and covenants not to assert any appraisement, valuation, stay, extension,
redemption or similar laws, now or at any time hereafter in force, which might
delay, prevent or otherwise impede the performance or enforcement of this
Guaranty.
Section 9. NOTICES
All notices and other communications provided for or otherwise required
hereunder or in connection herewith shall be given in the manner set forth in
Section 10.2 of the Credit Agreement, and with respect to the Borrower and the
Bank to their respective addresses set forth in the Credit Agreement, and with
respect to each Guarantor, to the address of such Guarantor set forth below its
name on the signature page hereto or the Supplement hereto, as the case may be.
Section 10. ADDITIONAL GUARANTORS
Section 8.8 of the Credit Agreement requires, upon the terms and
conditions set forth therein, that each Subsidiary of the Borrower that was not
in existence on the Effective Date enter into the Guaranty as an New Guarantor,
except for any Foreign Subsidiary that would incur adverse tax consequences by
becoming a Guarantor hereunder. Upon execution and delivery by the Bank and any
such Subsidiary of a Supplement in the form of Annex A hereto, such Subsidiary
shall become a Guarantor hereunder with the same force and effect as if
originally named as a Guarantor herein. The execution and delivery of such
Supplement shall not require the consent of any other Guarantor hereunder. The
rights and obligations of each Guarantor hereunder shall remain in full force
and effect notwithstanding the addition of any New Guarantor as a party to this
Guaranty.
Section 11. EXPENSES
Each Guarantor agrees that it shall, upon demand, pay to the Bank any
and all reasonable out-of-pocket sums, costs and expenses, which the Bank may
pay or incur defending, protecting or enforcing this Guaranty (whether suit is
instituted or not), reasonable attorneys' fees and disbursements. All sums,
costs and expenses which are due and payable pursuant to this Section shall bear
interest, payable on demand, at the highest rate then payable on the Guarantors
Obligations.
Section 12. REPAYMENT IN BANKRUPTCY, ETC.
If, at any time or times subsequent to the payment of all or any part
of the Guarantors Obligations or the Guarantor Obligations, the Bank shall be
required to repay any amounts previously paid by or on behalf of the Borrower or
any Guarantor in reduction thereof by virtue of an order of any court having
jurisdiction in the premises, as a result of an adjudication that such amounts
constituted preferential payments or fraudulent conveyances, the Guarantors
unconditionally agree to pay to the Bank within 10 days after demand a sum in
cash equal to the amount of such repayment, together with
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interest on such amount from the date of such repayment by the Bank to the date
of payment to the Bank at the applicable after-maturity rate set forth in the
Credit Agreement.
Section 13. SUBORDINATION.
(a) No payment of any nature whatsoever due in respect of the
Subordinated Debt payable to any Guarantor shall be made unless and until the
Payment of all of the Obligations and the termination of the Credit Agreement.
(b) Upon any bankruptcy, insolvency, liquidation or reorganization of
the Borrower, or upon the filing of a petition in bankruptcy or commencement of
any proceeding in bankruptcy against the Borrower or upon any distribution of
the assets of the Borrower or upon any dissolution, winding up, liquidation or
reorganization of the Borrower, whether in bankruptcy, insolvency,
reorganization, arrangement or receivership proceedings, or upon any assignment
for the benefit of creditors, or any other marshalling of the assets and
liabilities of the Borrower, or in the event any of the Subordinated Debt shall
for any reason become or be declared due and payable or otherwise:
(i) the Bank shall first be entitled to receive Payment of all of
the Obligations (whenever arising) before any Guarantor shall be
entitled to receive any payment on account of the Subordinated Debt;
(ii) any payment by, or distribution of the assets of, the Borrower
of any kind or character, whether in cash, property or securities, to
which any Guarantor would be entitled except for the provisions of this
Guaranty, in connection with the Subordinated Debt, shall be paid or
delivered by the Person making such payment or distribution (whether a
trustee in bankruptcy, a receiver, custodian or liquidating trustee or
otherwise) directly to the Bank to the extent necessary to make Payment
of all of the Obligations remaining unpaid, after giving effect to any
concurrent payment or distribution (or provision therefor) in cash to
the Bank;
(iii) No Guarantor shall ask, demand by legal proceedings or
otherwise, or take or receive from the Borrower, by set-off,
counterclaim or in any other manner, any payment or distribution on
account of the Subordinated Debt other than as expressly permitted
hereunder; and
(iv) Each Guarantor agrees to declare the Subordinated Debt to be due
and payable and, at least 30 days before the time required by
applicable law or rule, to file proof of claim therefor, in default of
which the Bank is hereby irrevocably authorized so to declare and file
in order to effectuate the provisions hereof.
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Notwithstanding the foregoing, in the event that any payment by, or
distribution of the assets of, the Borrower of any kind or character prohibited
hereby, whether in cash, property or securities, shall for the reason be
received by any Guarantor in respect of the Subordinated Debt, such payment or
distribution shall be held in trust for the benefit of the Bank, and shall be
immediately paid over to the Bank, to the extent necessary to make Payment of
all of the Obligations remaining unpaid, after giving effect to any concurrent
payment or distribution (or provision therefor) in cash to the Bank.
(c) Without the prior written consent of the Bank, the Borrower will
not give, and no Guarantor will receive or accept, any collateral of any nature
whatsoever for the Subordinated Debt on any Property or assets, whether now
existing or hereafter acquired, of the Borrower.
(d) Nothing contained in this Guaranty is intended to or shall impair,
as between and among the Borrower, its creditors (other than the holders of the
Obligations) and any Guarantor, the obligation of the Borrower to make Payment
to such Guarantor of any amount due in respect of the Subordinated Debt as and
when the same shall become due and payable in accordance with the terms thereof,
or affect the relative rights of the Guarantors and the creditors of the
Guarantors (other than the holders of the Obligations), in each case subject to
the rights of the holders of the Obligations under this Guaranty.
(e) Unless and until Payment of all of the Obligations has occurred and
the termination of the Credit Agreement, each Guarantor agrees not to declare
any part of the Subordinated Debt to be due and payable or exercise any of the
rights or remedies which it may have, or bring (in its capacity as holder of the
Subordinated Debt), or join with any other creditor in instituting, any
proceedings against the Borrower under any bankruptcy, insolvency,
reorganization, arrangement, receivership or other similar law, unless the
Obligations shall have been declared immediately due and payable or, in the case
of the institution of any such proceedings, the Bank shall have joined in the
institution thereof or expressly consented thereto in writing. In the event that
the Bank shall have so declared the Obligations immediately due and payable,
each Guarantor agrees to declare the Subordinated Debt then due to be due and
payable, provided, however, if the Bank shall rescind any such declaration, each
Guarantor shall automatically be deemed to have rescinded its declaration.
(f) No Guarantor shall sell, assign, transfer or otherwise dispose of
all or any part of the Subordinated Debt without having first obtained the prior
written consent of the Bank.
(g) The Borrower agrees that it will not make any payment of any of the
Subordinated Debt, or take any other action, in contravention of the provisions
of this Guaranty.
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Section 14. MISCELLANEOUS
(a) Except as otherwise expressly provided in this Guaranty, each
Guarantor hereby waives presentment, demand for payment, notice of default,
nonperformance and dishonor, protest and notice of protest of or in respect of
this Guaranty, the other Loan Documents and the Borrower Obligations, notice of
acceptance of this Guaranty and reliance hereupon by the Bank and the incurrence
of any of the Borrower Obligations, notice of any sale of collateral security or
any default of any sort.
(b) No Guarantor is relying upon the Bank to provide to such Guarantor
any information concerning the Borrower or any other Subsidiary, and each
Guarantor has made arrangements satisfactory to such Guarantor to obtain from
the Borrower on a continuing basis such information concerning the Borrower and
its Subsidiaries as such Guarantor may desire.
(c) Each Guarantor authorizes the Bank, without notice or demand and
without affecting or impairing the obligations of any Guarantor, from time to
time to (i) renew, compromise, extend, increase, accelerate or otherwise change
the time for payment of, or otherwise change the terms of the Obligations, or
any part thereof, to increase or decrease the rate of interest thereon or the
principal amount thereof; (ii) take or hold security for the payment of the
Obligations and exchange, enforce, foreclose upon, waive and release any such
security; (iii) apply such security and direct the order or manner of sale
thereof as the Bank, in its sole discretion, may determine; (iv) release and
substitute one or more endorsers, warrantors, borrowers or other obligors; and
(v) exercise or refrain from exercising any rights against the Guarantors or any
other Person.
(d) Each Guarantor agrees that the provisions of this Guaranty shall be
applicable to the Obligations whenever the same may arise and notwithstanding
the fact that no Obligations may be outstanding from time to time and may have
paid down to zero at any time or from time to time, it being understood that the
Credit Agreement permits the Borrower to borrow, repay and reborrow from time to
time subject to the terms and conditions thereof.
(e) All rights and interests of the Bank hereunder, and all agreements
and obligations of the Borrower and the Guarantors under this Guaranty, shall
remain in full force and effect irrespective of (i) any lack of validity or
enforceability of any of the Loan Documents; (ii) any change in the time, manner
or place of payment of, or any other term of, all or any of the Obligations, or
any other amendment or waiver of or any consent to departure from any of the
Obligations; (iii) any exchange, release or non-perfection of the Collateral, or
any release or amendment or waiver of or consent to or departure from any
guaranty, for all or any of the Obligations; or (iv) any other circumstance
which might otherwise constitute a defense available to, or a discharge of, the
Guarantors in respect of the Obligations or this Guaranty. 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 Obligations is rescinded or must otherwise be returned
by the Bank upon the
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insolvency, bankruptcy or reorganization of the Borrower or otherwise, all as
though such payment had not been made.
(f) Each Guarantor agrees that any statement of account with respect to
the Borrower Obligations from the Bank to the Borrower which binds the Borrower
shall also be binding upon such Guarantor, and that copies of said statements of
account maintained in the regular course of the Bank's business may be used in
evidence against such Guarantor in order to establish its Guarantor Obligations.
(g) Each Guarantor acknowledges that it has received a copy of the Loan
Documents and has approved of the same. In addition, such Guarantor acknowledges
having read each Loan Document and having had the advice of counsel in
connection with all matters concerning its execution and delivery of this
Guaranty.
(h) No Guarantor may assign any right, or delegate any duty, it may
have under this Guaranty.
(i) Subject to the limitations set forth in Section 2(b), the Guarantor
Obligations shall be joint and several.
(j) This Guaranty is the "GUARANTY" under, and as such term is defined
in, the Credit Agreement, and is subject to, and should be construed in
accordance with, the provisions thereof. Each of the Bank, the Guarantors and
the Borrower acknowledges that certain provisions of the Credit Agreement,
Sections 1.2 (Principles of Construction), 3.9 (Taxes), 10.1 (Amendments and
Waivers), 10.3 (No Waiver; Cumulative Remedies), 10.4 (Survival of
Representations and Warranties and Certain Obligations), 10.7 (Counterparts),
10.9 (Construction), 10.10 (Governing Law), 10.11 (Headings Descriptive), 10.12
(Severability), 10.13 (Integration), 10.14 (Consent to Jurisdiction), 10.15
(Service of Process), 10.16 (No Limitation on Service or Suit) and 10.17 (WAIVER
OF TRIAL BY JURY) thereof, are made applicable to this Guaranty and all such
provisions are incorporated by reference herein as if fully set forth herein.
[THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK.]
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IN EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Subsidiary Guaranty
to be duly executed on its behalf.
MG (BERMUDA) LTD.
By: /s/ Bernard F. Denoyer
-----------------------------------
Name: Bernard F. Denoyer
---------------------------------
Title: Vice President
---------------------------------
Address:
______________________________________
______________________________________
______________________________________
Attention:____________________________
Phone:________________________________
Facsimile: ___________________________
THE SENTRY GROUP, INC.
By: /s/ Bernard F. Denoyer
-----------------------------------
Name: Bernard F. Denoyer
---------------------------------
Title: Vice President
---------------------------------
Address:
______________________________________
______________________________________
______________________________________
Attention:____________________________
Phone:________________________________
Facsimile: ___________________________
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META GROUP, INC.
By: /s/ Bernard F. Denoyer
---------------------------------
Name: Bernard F. Denoyer
-------------------------------
Title: Chief Financial Officer
------------------------------
THE BANK OF NEW YORK
By: /s/ Mark J. Sicinski
---------------------------------
Name: Mark J. Sicinski
-------------------------------
Title: Vice President
------------------------------
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