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Exhibit 10.49
GUARANTEE
CAMINUS/DC ACQUISITION CORP.
THIS GUARANTEE, dated as of September 1, 1999, made by
Caminus/DC Acquisition Corp., a Delaware corporation (the "Guarantor"), in favor
of Fleet Bank, N.A., a national banking association organized under the laws of
the United States, having its principal office at 1185 Avenue of the Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as Lender (the "Lender"), party to the Credit
Agreement referred to below.
Caminus LLC, a Delaware limited liability company (the
"Company") and the Lender are parties to a Credit Agreement dated as of June 23,
1999 (such Credit Agreement, as the same may be amended or supplemented from
time to time is referred to herein as the "Credit Agreement") providing, subject
to the terms and conditions thereof, for extensions of credit to be made by the
Lender to the Company in an aggregate principal amount not exceeding $5,000,000
(the "Loans"). The Loans made or to be made by the Lender to the Company shall
be evidenced by certain promissory notes (as exchanged, replaced, amended,
supplemented or modified from time to time, the "Notes") in substantially the
form of Exhibits A-1 and A-2 attached to the Credit Agreement.
To induce the Lender to enter into the Credit Agreement and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company agreed to
cause its existing and future subsidiaries to execute and deliver this
Guarantee. The Guarantor is a wholly-owned subsidiary of the Company, created
for purposes of consummating the acquisition of DC Systems, Inc., a Texas
Corporation ("DC Systems"), pursuant to the Purchase Agreement, dated July 31,
1999, among DC Systems, the Company, the Guarantor and the Shareholders party
thereto.
SECTION 1. Definitions. Reference is hereby made to the Credit
Agreement for a statement of the terms thereof. All terms used in this Guarantee
which are defined in the Credit Agreement and not otherwise defined in this
Guarantee shall have the same meaning in this Guarantee as set forth in the
Credit Agreement.
SECTION 2. Guarantee. The Guarantor hereby irrevocably, absolutely and
unconditionally, guarantees to the Lender and its successors and assigns the
prompt and complete payment by the Company, as and when due and payable (whether
at stated maturity or by required prepayment, acceleration, demand or
otherwise), of all indebtedness, obligations and liabilities of the Company to
the Lender now existing or hereafter incurred, whether or not under or arising
out of or in connection with the Notes, the Credit Agreement, the other Loan
Documents, whether for principal, interest, fees, expenses or otherwise (all
such indebtedness, obligations and liabilities being herein called the
"Obligations"); and agrees to pay any and all expenses (including reasonable
actual attorneys' fees and expenses) which may be paid or incurred by the Lender
in collecting any or all of the Obligations and/or enforcing any rights under
this Guarantee.
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SECTION 3. Guarantor's Obligations Unconditional.
(a) The Guarantor hereby guarantees that the Obligations will be paid
strictly in accordance with the terms of the Loan Documents to which the Company
is a party and any other agreements and instruments relating to the Obligations,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Lender with
respect thereto. The obligations and liabilities of the Guarantor under this
Guarantee shall be absolute and unconditional irrespective of (x) any lack of
value, validity, genuineness, regularity or enforceability of any of the
Obligations, any of the Loan Documents, or any agreement or instrument relating
thereto, (y) any substitution, exchange, release, amendment, or waiver of or
consent to any departure from the terms, of any of the Obligations, Loan
Documents or any guarantee of or security for all or any of the Obligations, and
(z) to the fullest extent permitted by applicable law, irrespective of any other
circumstance which might otherwise constitute a legal or equitable defense
available to, or a discharge of, the Guarantor in respect of the Obligations or
the Guarantor in respect of this Guarantee. Without limiting the generality of
the foregoing, it is agreed that the occurrence of any one or more of the
following shall not alter, impair or release the liability of the Guarantor
hereunder which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the Guarantor,
the time for any performance of or compliance with any of the
Obligations shall be extended, or such performance or compliance shall
be waived;
(ii) any of the acts mentioned in any of the provisions of the Credit
Agreement or the Notes or any other Loan Document shall be done,
omitted or waived;
(iii) the maturity of any of the Obligations shall be accelerated;
(iv) any of the Obligations shall be modified, supplemented or amended
in any respect, or any right or obligation under the Credit Agreement,
the Notes, any other Loan Document, any guarantee of any of the
Obligations or any security therefor shall be waived, released or
exchanged in whole or in part or otherwise dealt with; or
(v) any lien or security interest granted to, or in favor of, the
Lender as security for any of the Obligations shall be amended or
waived or shall fail to be perfected.
(b) This Guarantee is a continuing guarantee and shall remain in full
force and effect until (i) the payment in full of the Obligations, (ii) the
Lender shall have no commitment to make any Loan to the Company under the Credit
Agreement, and (iii) the payment of all expenses to be paid by the Guarantor
pursuant hereto.
(c) The obligations and liabilities of the Guarantor under this
Guarantee are not conditioned or contingent upon the enforcement by the Lender
or any other Person at any time (i) of any right or remedy against the Company,
any other party to any Loan Documents, other agreements or instruments or any
person or entity which may be liable for payment of all or any part of the
Obligations; or (ii) against any collateral security for or guarantee of payment
of the obligations or right of set-off with respect thereto.
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(d) The Guarantor hereby consents that, without the necessity of any
reservation of rights against the Guarantor and without notice to or further
assent by the Guarantor, any demand for payment of the Obligations made by the
Lender may be rescinded by the Lender and any of the Obligations may be
continued after such rescission.
(e) If claim is ever made upon the Lender for repayment or recovery of
any amount or amounts received by the Lender in payment or on account of any of
the Obligations, and the Lender repays all or part of said amount by reason of
(i) any judgment, decree or order of any Governmental Authority having
jurisdiction over the Company or the Guarantor or any of their respective
properties, including without limitation any such judgment, decree or order
pursuant to the Federal Bankruptcy Code or similar insolvency laws, or (ii) any
settlement or compromise of any such claim, then and in such event the Guarantor
agrees that any such judgment, decree, order, settlement or compromise shall be
binding upon the Guarantor and, notwithstanding any termination hereof or the
cancellation of any Obligations, this Guarantee shall be reinstated and the
Guarantor shall be and remain liable to the Lender hereunder for the amounts so
repaid or recovered to the same extent as if such amount had never originally
been received by the Lender. The Guarantor agrees that it will indemnify the
Lender on demand for all costs and expenses (including reasonable actual
attorneys fees and expenses) incurred by the Lender in connection with such
claim, including any such costs and expenses incurred in defending against any
claim alleging that payments in account of the Obligations constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law affecting creditor's rights generally.
(f) This Guarantee shall be enforceable as to all of the Obligations
and expenses of collection thereof and hereof, despite the Company's discharge
in bankruptcy or adjustment of debts, liabilities and obligations in insolvency
proceedings or pursuant to any other compromise with creditors. If an event
permitting the acceleration of the maturity of the principal amount of the
Obligations shall at any time have occurred and be continuing, and if such
acceleration (or any consequences thereof) provided for in the Loan Documents
shall at such time be prevented by reason of the pendency against the Company of
a case or proceeding under the Federal Bankruptcy Code or other insolvency law,
the Guarantor agrees that, for purposes of this Guarantee and the Guarantor's
obligations hereunder, the maturity of such principal amount shall be deemed to
have been accelerated, with all attendant consequences as provided in the Loan
Documents, as if such acceleration and consequences had been accomplished in
accordance with the terms of the Loan Documents, and Guarantor shall forthwith
pay any amounts guaranteed hereunder upon such acceleration, without further
notice or demand.
SECTION 4. Waivers. The Guarantor hereby waives: (i) presentment,
notice of dishonor and demand for payment of any promissory note (ii) promptness
and diligence by the Lender or any other person or entity in the enforcement of
rights under the Credit Agreement, the other Loan Documents or the Obligations;
(iii) notice of or proof of reliance by the Lender upon this Guarantee or
acceptance of this Guarantee; (iv) notice of the renewal of any Obligations by
the Company or the renewal, extension or accrual of the Obligations; (v) except
as required thereunder, notice of the actions taken by the Lender or the Company
or any other party under any Loan Document, or any other agreement or instrument
relating thereto; (vi) all other rules of suretyship law, notices, presentment
of any instrument, demands and protests, and all other formalities of every kind
in connection with the enforcement of the Obligations or of the
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obligations of the Guarantor hereunder, which, but for the provisions of this
Section 4, might constitute grounds for relieving the Guarantor of its
obligations hereunder; and (vii) any requirement that the Lender protect,
secure, perfect or insure any Lien or any property subject thereto or exhaust
any right or take any action against the Guarantor, any other person or entity
or any collateral.
SECTION 5. Subrogation. The Guarantor does hereby irrevocably waive any
and all rights which it may acquire against the Company by way of subrogation,
indemnity, reimbursement, right of contribution or otherwise in connection with
this Guarantee, whether acquired by any payment made hereunder, by any set-off
or application of funds of the Guarantor or the Lender, by operation of law
(including, without limitation, any such right arising under any bankruptcy or
insolvency statutes), in equity or otherwise, until (i) the payment in full of
the Obligations and the termination of all commitments of the Lender to make
Loans to the Company under the Credit Agreement, and (ii) the payment of all
expenses to be paid by the Guarantor pursuant hereto. If any amount shall be
paid to the Guarantor on account of such subrogation or other rights at any time
when all of the Obligations and all such other expenses shall not have been paid
in full and such commitments shall not have been terminated, such amount shall
be held in trust for the benefit of the Lender shall be segregated from the
other funds of the Guarantor and shall forthwith be paid over to the Lender to
be credited and applied in whole or in part against the Obligations, whether
matured or unmatured, and against all such other expenses.
SECTION 6. Representations and Warranties. The Guarantor hereby
represents and warrants to the Lender as follows:
(a) The Guarantor is a corporation duly organized, validly
existing, and in good standing under the laws of Delaware; has the power and
authority to own its assets and to transact the business in which it is now, or
in which it proposes to be, engaged; and is duly qualified to do business and is
in good standing in each jurisdiction in which such qualification is required.
(b) The execution, delivery and performance by the Guarantor
of this Guarantee has been duly authorized by all necessary actions on the part
of the members of the Guarantor and does not and will not (i) require any
consent or approval of any other Person that has not been obtained; (ii)
contravene the Guarantor's organizational documents; (iii) violate any
provisions of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect applicable to the Guarantor;
(iv) result in a breach of, constitute a default under or otherwise contravene
any indenture or loan or credit agreement or any other agreement, lease or
instrument to which the Guarantor is a party or by which the Guarantor or its
properties may be bound or affected; (v) result in, or require, the creation or
imposition of any Lien upon or with respect to any of the Guarantor's properties
now owned or hereafter acquired; or (vi) cause the Guarantor to be in default
under any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or any such indenture, agreement, lease or instrument.
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(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or other regulatory body is
required for the due execution, delivery and performance by the Guarantor of
this Guarantee.
(d) This Guarantee is a legal, valid and binding obligation of
the Guarantor, enforceable against such Guarantor in accordance with its terms
except to the extent that such enforcement may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance and other similar laws affecting
creditors' rights generally and the application of general principles of equity.
(e) There is no action, suit or proceeding pending or, to the
knowledge of the Guarantor, threatened against or otherwise affecting the
Guarantor before any court or other Governmental Authority or any arbitrator
which may, in any one case or in the aggregate, adversely affect the ability of
the Guarantor to perform its obligations under this Guarantee.
SECTION 7. Full Recourse. The obligations of the Guarantor set forth
herein constitute the full recourse obligations of the Guarantor enforceable
against the Guarantor to the full extent of all the assets and properties of the
Guarantor, notwithstanding any provision in any other agreement limiting the
liability of the Guarantor or any other person, or any agreement by any holder
of any of the Obligations to look for payment with respect thereto solely to
certain property securing such Obligations.
SECTION 8. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, the Lender may, and is hereby authorized
to, at any time and from time to time, without notice to the Guarantor (any such
notice being expressly waived by the Guarantor), 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 the Lender to or for the credit
or the account of the Guarantor against any and all obligations of the Guarantor
now or hereafter existing under this Guarantee, irrespective of whether or not
the Lender shall have made any demand under this Guarantee and although such
obligations may be contingent or unmatured. The 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 the Lender under this Section 8 are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) which the Lender may have.
SECTION 9. Limitation on Guarantee Obligations. In any action or
proceeding involving any corporate law, or any bankruptcy, insolvency,
reorganization or other similar laws affecting the rights of creditors
generally, if the obligations of the Guarantor under Section 2 hereof would
otherwise be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors on account of the amount of
its liability under said Section 2, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by the Guarantor, the Lender or any other Person, be automatically
limited and reduced to the highest amount which is valid and enforceable, and
not subordinated to the claims of other creditors, as determined in such action
or proceeding.
SECTION 10. Notices. All notices and demands to or upon the respective
parties hereto to be effective shall be in writing and, unless otherwise
expressly provided herein, shall be
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deemed to have been duly given or made when delivered by hand, or five (5) days
after deposited in the mail, air postage prepaid, or in the case of notice by
telecopier (fax), when sent, or in the case of overnight courier service, one
Business Day after delivery to a nationally recognized overnight courier
service, addressed as follows or to such other address as may be hereafter
notified by the respective parties to this Guarantee:
If to the Guarantor:
Caminus/DC Acquisition Corp.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 000-Xxxx
Xxxxxx, Xxxxx 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention:
If to the Lender:
Fleet Bank, N.A.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxx
SECTION 11. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. THE
GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION AND VENUE
OF ANY STATE OR FEDERAL COURT SITTING IN NEW YORK COUNTY OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTEE, AND THE GUARANTOR
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR FEDERAL COURT. THE
GUARANTOR WAIVES ANY OBJECTION TO ANY ACTION OR PROCEEDING IN ANY STATE OR
FEDERAL COURT SITTING IN NEW YORK COUNTY ON THE BASIS OF FORUM NON CONVENIENS.
THE GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY PROCESS IN CONNECTION WITH
ANY SUCH ACTION OR PROCEEDING AND AGREES THAT THE SERVICE THEREOF MAY BE MADE BY
CERTIFIED OR REGISTERED MAIL DIRECTED TO THE GUARANTOR AT THE ADDRESS SET FORTH
IN SECTION 10 HEREOF. THE GUARANTOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
THE GUARANTOR FURTHER AGREES THAT ANY ACTION OR PROCEEDING BROUGHT AGAINST THE
LENDER SHALL BE BROUGHT ONLY IN ANY STATE OR FEDERAL COURT SITTING IN NEW YORK
COUNTY. THE GUARANTOR FURTHER AGREES THAT, AT THE DISCRETION
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OF THE LENDER, THE LENDER MAY SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW AND MAY BRING ANY ACTION OR PROCEEDING AGAINST THE GUARANTOR OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION. EACH OF THE GUARANTOR AND THE
LENDER HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER ARISING IN
CONTRACT, TORT OR OTHERWISE.
SECTION 12. Successors and Assigns. The covenants, representations,
warranties and agreements herein set forth shall be binding upon the Guarantor,
its legal representatives, successors and assigns, and shall inure to the
benefit of the Lender and its successors and assigns. The successor of the
Lender hereunder shall forthwith become vested with and shall forthwith become
vested with and shall be entitled to exercise all the powers and rights given by
this Guarantee to the Lender, as if said successor were originally named as
party herein.
SECTION 13. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO ANY CHOICE OF LAW RULES WHICH WOULD REQUIRE THE APPLICATION OF THE LAWS OF
ANY OTHER JURISDICTION.
SECTION 14. Amendments. None of the terms or provisions of this
Guarantee may be waived, altered, modified, or amended except by an agreement in
writing signed by the Lender and the Guarantor.
SECTION 15. No Waiver; Remedies. No failure on the part of the Lender
to exercise, and no delay in exercising, and no course of dealing with respect
to, any right, power, or remedy under this Guarantee shall operate as a waiver
thereof; nor shall any single or partial exercise of any right hereunder and
under any of the other Loan Documents preclude any other or further exercise
thereof or the exercise of any other right, power, or privilege. The remedies
provided herein and in the other Loan Documents are cumulative and not exclusive
of any remedies provided by law.
SECTION 16. Severability. If any provision hereof shall be held to be
invalid, illegal or unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (i) the other provisions hereof shall remain in full
force and effect in such jurisdiction, and (ii) the invalidity or
unenforceability of any provision hereof in any jurisdiction shall not affect
the validity or enforceability of such provision in any other jurisdiction.
SECTION 17. Miscellaneous.
(a) The Guarantor will make each payment hereunder in lawful
money of the United States of America and in immediately available funds to the
Lender at its address specified in Section 10 of this Guarantee.
(b) This Guarantee is one of the Subsidiary Guarantees as
defined and referred to in the Credit Agreement.
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(c) This Guarantee may be executed in any number of
counterparts, all of which, when taken together shall constitute one and the
same instrument, and any party hereto may execute this Guarantee by signing any
such counterpart.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to
be executed by its duly authorized officer, as of the day and year first above
written.
CAMINUS/DC ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx Xxxxxx
Its:
Accepted as of this ____
day of September, 1999:
FLEET BANK, N.A.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Its: Vice President
