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EXHIBIT 10.9
SUBSIDIARY GUARANTY
THIS GUARANTY (this "Guaranty"), dated as of January 31, 2001,
is made by ARBITRON HOLDINGS INC. (the "Guarantor"), in favor (a) of the
financial institutions (each a "Lender" and, collectively, the "Lenders") from
time to time party to that certain Credit Agreement dated as of January 31, 2001
(as renewed, extended, modified, amended or restated from time to time, the
"Credit Agreement"), among CERIDIAN CORPORATION, a Delaware corporation (the
"Borrower"), the Lenders and BANK OF AMERICA, N.A., as administrative agent for
such Lenders (in such capacity, the "Administrative Agent"), (b) the "Swap
Provider" (as defined herein); and (c) the Note Holders (as defined herein)
(collectively, the "Guaranteed Parties" and each, individually, a "Guaranteed
Party").
RECITALS
WHEREAS, it is a requirement under of the Credit Agreement and
the Note Purchase Agreement that Guarantor shall be bound by the terms and
conditions of this Guaranty pending the Spin-Off Consummation Date; and
WHEREAS, the Guarantor will derive substantial direct and
indirect benefits from the credit extensions to the Borrower pursuant to the
Credit Agreement and the Note Purchase Agreement together with the amendments,
restatements, extensions and continuations contemplated therein, and from the
Spin-Off Transaction, which benefits are hereby acknowledged by the Guarantor;
WHEREAS, the Guarantor will derive substantial direct and
indirect benefits from the Borrower being party to the Specified Swap Contracts,
which benefits are hereby acknowledged;
NOW, THEREFORE, in consideration of the Administrative Agent and
Lenders entering into the Credit Agreement, the Guarantor hereby agrees as
follows:
SECTION 1 Definitions; Interpretation.
(a) Terms Defined in Credit Agreement. All capitalized terms
used in this Guaranty and not otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement.
(b) Certain Defined Terms. As used in this Guaranty, the
following terms shall have the following meanings:
"Collateral Agent" means Bank of America, N.A. in its capacity
as "Collateral Agent" under, and as defined in, the Intercreditor Agreement (or
such replacement Collateral Agent as may be appointed from time to time pursuant
thereto) on behalf and for the benefit of, (a) Bank of America, N.A., in its
capacity as Administrative Agent for the benefit of itself and the other Lenders
from time to time party to the Credit Agreement, and the L/C Issuer; (b) the
Note Holders for the benefit of itself and the other Note Holders from time to
time party to the Note Purchase Agreement; and (c) the Swap Provider.
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"Credit Documents" means, collectively, the Loan Documents, the
Swap Documents, and the Note Purchase Documents.
"Guaranteed Obligations" has the meaning set forth in Section
2(a).
"Guaranteed Parties" and "Guaranteed Party" have the meanings
assigned to them in the first paragraph hereof.
"Guarantor Documents" means this Guaranty, and all other
certificates, documents, agreements and instruments delivered to the Guaranteed
Parties under or in connection with this Guaranty.
"Indemnified Liabilities" has the meaning set forth in Section
15(b).
"Indemnified Person" has the meaning set forth in Section 15(b).
"Intercreditor Agreement" means that Intercreditor Agreement
dated as of January 31, 2001 among the Collateral Agent, the Administrative
Agent, the Swap Provider, and the Note Holders Agent.
"Note Holder Collateral Documents" means, collectively, (a) the
Security Agreements and the Pledge Agreements (as such terms are defined in the
Credit Agreement, but to the extent entered into by the parties thereto for the
benefit of, and as modified, extended or otherwise changed in respect of, the
Note Holders, (b) all Account Control Agreements executed by any Loan Party
under any Note Document, (c) all documents executed by any Loan Party to
accomplish cash collateralization pursuant to any Note Document, and (d) all
licenses, UCC financing statements, notices and other documents executed from
time to time or in connection with any of the foregoing.
"Note Holder Documents" means, collectively, the Note Purchase
Agreement, the Note Holder Collateral Documents and the Note Holder Guaranties.
"Note Holder Guaranties" means the Guaranties under and as
defined in the Credit Agreement, but to the extent entered into by the
Guarantors thereunder for the benefit of, and as modified, extended or otherwise
changed in respect of, the Note Holders.
"Note Holder" means a "Note Holder" under, and as defined in,
the Note Purchase Agreement.
"Note Purchase Agreement" means that Note Purchase Agreement
dated as of January 31, 2001 among the Borrower, the Note Holders and the other
Note Holders party thereto.
"Solvent" means, as to any Person at any time, that (a) the fair
value of the property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section
101(32) of the Bankruptcy Code and, in the alternative, for purposes of the New
York Uniform Fraudulent Conveyance Act; (b) the present fair saleable
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value of the property of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured; (c) such Person is able to realize upon its
property and pay its debts and other liabilities (including disputed, contingent
and unliquidated liabilities) as they mature in the normal course of business;
(d) such Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature; and (e) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute unreasonably small capital.
"Specified Swap Agreement" means any ISDA(R) Master Agreement
(including any schedule and confirmation relating thereto) entered into between
the Borrower and the Swap Provider as swap counterparties.
"Specified Swap Contract" means any interest rate swap entered
into between the Borrower and the Swap Provider as swap counterparties
constituting a "Specified Swap Contract" as defined in the Credit Agreement.
"Subordinated Debt" has the meaning set forth in Section 7(a).
"Subordinated Debt Payments" has the meaning set forth in
Section 7(b).
"Swap Collateral Documents" means, collectively, (i) the
Security Agreements and the Pledge Agreements (as such terms are defined in the
Credit Agreement, but to the extent entered into by the parties thereto for the
benefit of, and as modified, extended or otherwise changed in respect of, the
Swap Provider), (ii) all Account Control Agreements executed by any Loan Party
under any Swap Document, (iii) all documents executed by any Loan Party to
accomplish cash collateralization pursuant to any Swap Document, and (iv) all
licenses, UCC financing statements, notices and other documents executed from
time to time or in connection with any of the foregoing.
"Swap Documents" means, collectively, (a) any Specified Swap
Agreement, (b) the Swap Collateral Documents, and (c) the Swap Guaranties.
"Swap Guaranties" means the Guaranties under and as defined in
the Credit Agreement, but to the extent entered into by the Guarantors
thereunder for the benefit of, and as modified, extended or otherwise changed in
respect of, the Swap Provider.
"Swap Provider" has the meaning specified in the Intercreditor
Agreement.
(c) Interpretation. The rules of interpretation set forth in
Section 1.02 of the Credit Agreement shall be applicable to this Guaranty and
are incorporated herein by this reference.
SECTION 2 Guaranty.
(a) Guaranty. The Guarantor hereby unconditionally and
irrevocably guarantees to the Guaranteed Parties, and their respective
successors, endorsees, transferees and assigns, the full and prompt payment when
due (whether at stated maturity, by required
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prepayment, declaration, acceleration, demand or otherwise) and performance of
the indebtedness, liabilities and other obligations of the Borrower to each such
Guaranteed Party, whether created under, arising out of or in connection with
any of the Credit Documents, including all Obligations (as independently defined
in each of the Credit Agreement and the Note Purchase Agreement); and any
obligations under any Specified Swap Agreement to the extent arising out of any
one or more Specified Swap Contracts. The terms "indebtedness," "liabilities"
and "obligations" are used herein in their most comprehensive sense and include
any and all advances, debts, obligations and liabilities, now existing or
hereafter arising, whether voluntary or involuntary and whether due or not due,
absolute or contingent, liquidated or unliquidated, determined or undetermined,
and whether recovery upon such indebtedness, liabilities and obligations may be
or hereafter becomes unenforceable or shall be an allowed or disallowed claim
under the Bankruptcy Code or other applicable law. The foregoing indebtedness,
liabilities and other obligations of the Borrower, and all other indebtedness,
liabilities and obligations to be paid or performed by the Guarantor in
connection with this Guaranty (including any and all amounts due under Section
15), shall hereinafter be collectively referred to as the "Guaranteed
Obligations."
(b) Limitation of Guaranty. To the extent that any court of
competent jurisdiction shall impose by final judgment under applicable law
(including the New York Fraudulent Conveyance Act and Sections 544 and 548 of
the Bankruptcy Code) any limitations on the amount of the Guarantor's liability
with respect to any of the Guaranteed Obligations which any of the Guaranteed
Parties can enforce under this Guaranty, such Guaranteed Parties by their
acceptance hereof accept such limitation on the amount of the Guarantor's
liability hereunder to the extent needed to make this Guaranty and the Guarantor
Documents fully enforceable and nonavoidable.
SECTION 3 Liability of Guarantor. The liability of the Guarantor
under this Guaranty shall be irrevocable, absolute, independent and
unconditional, and shall not be affected by any circumstance which might
constitute a discharge of a surety or guarantor other than the indefeasible
payment and performance in full of all Guaranteed Obligations. In furtherance of
the foregoing and without limiting the generality thereof, the Guarantor agrees
as follows:
(i) the Guarantor's liability hereunder shall be the
immediate, direct, and primary obligation of the Guarantor and shall not be
contingent upon the Guaranteed Parties' exercise or enforcement of any remedy it
may have against the Borrower or any other Person, or against any collateral now
or hereafter securing any of the Guaranteed Obligations;
(ii) this Guaranty is a guaranty of payment when due and not
merely of collectibility;
(iii) the Guarantor's payment of a portion, but not all, of
the Guaranteed Obligations shall in no way limit, affect, modify or abridge the
Guarantor's liability for any portion of the Guaranteed Obligations remaining
unsatisfied; and
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(iv) the Guarantor's liability with respect to the Guaranteed
Obligations shall remain in full force and effect without regard to, and shall
not be impaired or affected by, nor shall the Guarantor be exonerated or
discharged by, any of the following events:
(A) any proceeding under any Debtor Relief Laws with
respect to the Borrower, any other guarantor or any other Person;
(B) any limitation, discharge, or cessation of the
liability of the Borrower, any other guarantor or any other Person for any
Guaranteed Obligations due to any statute, regulation or rule of law, or any
invalidity or unenforceability in whole or in part of any of the Guaranteed
Obligations or the Loan Documents;
(C) any merger, acquisition, consolidation or change
in structure of the Borrower, the Guarantor or any other guarantor or Person, or
any sale, lease, transfer or other disposition of any or all of the assets or
shares of the Borrower, the Guarantor, any other guarantor or other Person;
(D) any assignment or other transfer, in whole or in
part, of any of the Guaranteed Parties' interests in and rights under this
Guaranty or the other Credit Documents, including the Guaranteed Parties' right
to receive payment of the Guaranteed Obligations;
(E) any claim, defense, counterclaim or setoff,
other than that of prior performance, that the Borrower, the Guarantor, any
other guarantor or other Person may have or assert, including any defense of
incapacity or lack of corporate or other authority to execute any of the Credit
Documents;
(F) the Guaranteed Parties' amendment, modification,
renewal, extension, cancellation or surrender of any Credit Document;
(G) the Guaranteed Parties' vote, claim,
distribution, election, acceptance, action or inaction in any proceeding under
any Debtor Relief Laws related to the Guaranteed Obligations;
(H) any impairment or invalidity of any collateral
securing any of the Guaranteed Obligations or any failure to perfect any of the
Liens of the Guaranteed Parties thereon or therein; and
(I) any other guaranty, whether by the Guarantor or
any other Person, of all or any part of the Guaranteed Obligations or any other
indebtedness, obligations or liabilities of the Borrower to the Guaranteed
Parties.
SECTION 4 Consents of Guarantor. The Guarantor hereby
unconditionally consents and agrees that, without notice to or further assent
from the Guarantor:
(i) the principal amount of the Guaranteed Obligations in
respect of any of the Guaranteed Parties may be increased or decreased as to
such Guaranteed Party and additional indebtedness or obligations of the Borrower
under the Credit Documents may be incurred, by one or more amendments,
modifications, renewals or extensions of any such Credit Document;
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(ii) the time, manner, place or terms of any payment under
any Credit Documents may be extended or changed, including by an increase or
decrease in the interest rate on any Guaranteed Obligation or any fee or other
amount payable under such Credit Documents, by an amendment, modification or
renewal of any Credit Documents or otherwise;
(iii) the time for the Borrower's (or any other Person's)
performance of or compliance with any term, covenant or agreement on its part to
be performed or observed under any Credit Documents may be extended, or such
performance or compliance waived, or failure in or departure from such
performance or compliance consented to, all in such manner and upon such terms
as any of the Guaranteed Parties may deem proper;
(iv) any of the Guaranteed Parties may discharge or release,
in whole or in part, any other guarantor or any other Person liable for the
payment and performance of all or any part of the Guaranteed Obligations owing
to such Guaranteed Parties, and may permit or consent to any such action or any
result of such action, and shall not be obligated to demand or enforce payment
upon any collateral, nor shall the Guaranteed Parties be liable to the Guarantor
for any failure to collect or enforce payment or performance of the Guaranteed
Obligations from any Person or to realize on any collateral therefor;
(v) the Guaranteed Parties may take and hold other security
(legal or equitable) of any kind, at any time, as collateral for the Guaranteed
Obligations, and may, from time to time, in whole or in part, exchange, sell,
surrender, release, subordinate, modify, waive, rescind, compromise or extend
such security and may permit or consent to any such action or the result of any
such action, and may apply such security and direct the order or manner of sale
thereof;
(vi) the Guaranteed Parties may request and accept other
guaranties of the Guaranteed Obligations and any other indebtedness, obligations
or liabilities of the Borrower to the Guaranteed Parties and may, from time to
time, in whole or in part, surrender, release, subordinate, modify, waive,
rescind, compromise or extend any such guaranty and may permit or consent to any
such action or the result of any such action; and
(vii) the Guaranteed Parties may exercise, or waive or
otherwise refrain from exercising, any other right, remedy, power or privilege
(including the right to accelerate the maturity of any Loan and any power of
sale) granted by any Credit Document or other security document or agreement, or
otherwise available to the Guaranteed Parties, with respect to the Guaranteed
Obligations or any collateral, even if the exercise of such right, remedy, power
or privilege affects or eliminates any right of subrogation or any other right
of the Guarantor against the Borrower;
all as the Guaranteed Parties (or the Collateral Agent on their
behalf) may deem advisable, and all without impairing, abridging, releasing or
affecting this Guaranty.
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SECTION 5 Guarantor's Waivers.
(a) Certain Waivers. The Guarantor waives and agrees not to
assert:
(i) any right to require any of the Guaranteed
Parties to marshal assets in favor of the Borrower, the Guarantor, any other
guarantor or any other Person, to proceed against the Borrower, any other
guarantor or any other Person, to proceed against or exhaust any of the
Collateral, to give notice of the terms, time and place of any public or private
sale of personal property security constituting the Collateral or other
collateral for the Guaranteed Obligations or comply with any other provisions of
Section 9-504 of the New York UCC (or any equivalent provision of any other
applicable law) or to pursue any other right, remedy, power or privilege of the
Guaranteed Parties whatsoever;
(ii) the defense of the statute of limitations in any
action hereunder or for the collection or performance of the Guaranteed
Obligations;
(iii) any defense arising by reason of any lack of
corporate or other authority or any other defense of the Borrower, the Guarantor
or any other Person;
(iv) any defense based upon the Guaranteed Parties'
or any Lender's errors or omissions in the administration of the Guaranteed
Obligations;
(v) any rights to set-offs and counterclaims;
(vi) any defense based upon an election of remedies
(including, if available, an election to proceed by nonjudicial foreclosure)
which destroys or impairs the subrogation rights of the Guarantor or the right
of the Guarantor to proceed against the Borrower or any other obligor of the
Guaranteed Obligations for reimbursement; and
(vii) without limiting the generality of the
foregoing, to the fullest extent permitted by law, any defenses or benefits that
may be derived from or afforded by applicable law limiting the liability of or
exonerating guarantors or sureties, or which may conflict with the terms of this
Guaranty, including any and all benefits that otherwise might be available to
the Guarantor under New York Laws. This means, among other things: (A) the
Guaranteed Parties may collect from the Guarantor without first foreclosing on
any real or personal property collateral pledged by the Borrower; and (B) if the
Guaranteed Parties forecloses on any real property collateral pledged by the
Borrower: (1) the amount of the debt may be reduced only by the price for which
that collateral is sold at the foreclosure sale, even if the collateral is worth
more than the sale price, and (2) the Guaranteed Parties may collect from the
Guarantor even if the Administrative Agent, by foreclosing on the real property
collateral, has destroyed any right the Guarantor may have to collect from the
Borrower. This is an unconditional and irrevocable waiver of any rights and
defenses the Guarantor may have because the Borrower's debt is secured by real
property.
(b) Additional Waivers. The Guarantor waives any and all
notice of the acceptance of this Guaranty, and any and all notice of the
creation, renewal, modification, extension or accrual of the Guaranteed
Obligations, or the reliance by the Guaranteed Parties upon this Guaranty, or
the exercise of any right, power or privilege hereunder. The Guaranteed
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Obligations shall conclusively be deemed to have been created, contracted,
incurred and permitted to exist in reliance upon this Guaranty. The Guarantor
waives promptness, diligence, presentment, protest, demand for payment, notice
of default, dishonor or nonpayment and all other notices to or upon the
Borrower, the Guarantor or any other Person with respect to the Guaranteed
Obligations.
(c) Independent Obligations. The obligations of the
Guarantor hereunder are independent of and separate from the obligations of the
Borrower and any other guarantor. Upon the occurrence and during the continuance
of any Event of Default, a separate action or actions may be brought against the
Guarantor, whether or not the Borrower or any such other guarantor is joined
therein or a separate action or actions are brought against the Borrower or any
such other guarantor.
(d) Financial Condition of Borrower. The Guarantor shall not
have any right to require the Guaranteed Parties to obtain or disclose any
information with respect to: (i) the financial condition or character of the
Borrower or the ability of the Borrower to pay and perform the Guaranteed
Obligations; (ii) the Guaranteed Obligations; (iii) the existence or
nonexistence of any other guarantees of all or any part of the Guaranteed
Obligations; (iv) any action or inaction on the part of the Guaranteed Parties
or any other Person; or (v) any other matter, fact or occurrence whatsoever.
SECTION 6 Subrogation. Until the Guaranteed Obligations shall be
satisfied in full and the Commitments shall be terminated, the Guarantor shall
not have, and shall not directly or indirectly exercise, (i) any rights that it
may acquire by way of subrogation under this Guaranty, by any payment hereunder
or otherwise, (ii) any rights of contribution, indemnification, reimbursement or
similar suretyship claims arising out of this Guaranty or (iii) any other right
which it might otherwise have or acquire (in any way whatsoever) which could
entitle it at any time to share or participate in any right, remedy or security
of the Guaranteed Parties as against the Borrower or other guarantors, whether
in connection with this Guaranty, any of the other Credit Documents or
otherwise. If any amount shall be paid to the Guarantor on account of the
foregoing rights at any time when all the Guaranteed Obligations shall not have
been paid in full, such amount shall be held in trust for the benefit of the
Guaranteed Parties and shall forthwith be paid to the Guaranteed Parties (or the
Collateral Agent on their behalf) to be credited and applied to the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms of the
Credit Documents (and subject to the Intercreditor Agreement).
SECTION 7 Subordination.
(a) Subordination to Payment of Guaranteed Obligations. All
payments on account of all indebtedness, liabilities and other obligations of
the Borrower to the Guarantor, whether created under, arising out of or in
connection with any documents or instruments evidencing any credit extensions to
the Borrower or otherwise, including all principal on any such credit
extensions, all interest accrued thereon, all fees and all other amounts payable
by the Borrower to the Guarantor in connection therewith, whether now existing
or hereafter arising, and whether due or to become due, absolute or contingent,
liquidated or unliquidated, determined or undetermined (the "Subordinated Debt")
shall be subject, subordinate and junior in right of
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payment and exercise of remedies, to the extent and in the manner set forth
herein, to the prior payment in full in cash or cash equivalents of the
Guaranteed Obligations.
(b) No Payments. As long as any of the Guaranteed
Obligations shall remain outstanding and unpaid, the Guarantor shall not accept
or receive any payment or distribution by or on behalf of the Borrower, directly
or indirectly, of assets of the Borrower of any kind or character, whether in
cash, property or securities, including on account of the purchase, redemption
or other acquisition of Subordinated Debt, as a result of any collection, sale
or other disposition of collateral, or by setoff, exchange or in any other
manner, for or on account of the Subordinated Debt ("Subordinated Debt
Payments"), except that if no Event of Default exists and no notice described
below has been received by the Guarantor, the Guarantor shall be entitled to
accept and receive any and all payments. During the existence of an Event of
Default (or if any Event of Default would exist immediately after the making of
a Subordinated Debt Payment), and upon receipt by the Borrower of notice from
the Guaranteed Parties (or the Collateral Agent on their behalf) of such
Default, and until such Event of Default is cured or waived, pursuant to the
terms of the applicable Credit Documents, the Borrower shall not make, accept or
receive any Subordinated Debt Payment. In the event that, notwithstanding the
provisions of this Section 7, any Subordinated Debt Payments shall be received
in contravention of this Section 7 by the Guarantor before all Guaranteed
Obligations are paid in full in cash or cash equivalents, such Subordinated Debt
Payments shall be held in trust for the benefit of the Guaranteed Parties and
shall be paid over or delivered to the Guaranteed Parties (or the Collateral
Agent on their behalf) for application to the payment in full in cash or cash
equivalents of all Guaranteed Obligations remaining unpaid to the extent
necessary to give effect to this Section 7, after giving effect to any
concurrent payments or distributions to the Guaranteed Parties in respect of the
Guaranteed Obligations.
(c) Subordination of Remedies. As long as any Guaranteed
Obligations shall remain outstanding and unpaid, the Guarantor shall not,
without the prior written consent of the Guaranteed Parties (or the Collateral
Agent on their behalf):
(i) accelerate or bring suit or institute any other
actions or proceedings to enforce its rights or interests under or in respect of
the Subordinated Debt;
(ii) exercise any rights under or with respect to (A)
any guaranties of the Subordinated Debt, or (B) any collateral held by it,
including causing or compelling the pledge or delivery of any collateral, any
attachment of, levy upon, execution against, foreclosure upon or the taking of
other action against or institution of other proceedings with respect to any
collateral held by it, notifying any account debtors of the Borrower or
asserting any claim or interest in any insurance with respect to any collateral,
or attempt to do any of the foregoing;
(iii) exercise any rights to set-offs and
counterclaims in respect of any indebtedness, liabilities or obligations of the
Guarantor to the Borrower against any of the Subordinated Debt; or
(iv) commence, or cause to be commenced, or join with
any creditor other than the Guaranteed Parties in commencing, any proceeding
under any Debtor Relief Laws as against Borrower.
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(d) Subordination Upon Any Distribution of Assets of the
Borrower. In the event of any payment or distribution of assets of the Borrower
of any kind or character, whether in cash, property or securities, upon any
proceeding under any Debtor Relief Laws with respect to or involving the
Borrower, (i) all amounts owing on account of the Guaranteed Obligations,
including all interest accrued thereon at the contract rate both before and
after the initiation of any such proceeding, whether or not an allowed claim in
any such proceeding, shall first be paid in full in cash, or payment provided
for in cash or in cash equivalents, before any Subordinated Debt Payment is
made; and (ii) to the extent permitted by applicable law, any Subordinated Debt
Payment to which the Guarantor would be entitled except for the provisions
hereof, shall be paid or delivered by the trustee in bankruptcy, receiver,
assignee for the benefit of creditors or other liquidating agent making such
payment or distribution directly to the Guaranteed Parties (or the Collateral
Agent acting on their behalf) for application to the payment of the Guaranteed
Obligations in accordance with clause (i), after giving effect to any concurrent
payment or distribution or provision therefor to the Guaranteed Parties in
respect of such Guaranteed Obligations.
(e) Authorization to Guaranteed Parties. If, while any
Subordinated Debt is outstanding, any proceeding under any Debtor Relief Laws is
commenced by or against the Borrower or its property:
(i) the Guaranteed Parties are hereby irrevocably
authorized and empowered (in the name of the Guaranteed Parties, in the name of
the Guarantor or otherwise), but shall have no obligation, to demand, xxx for,
collect and receive every payment or distribution in respect of the Subordinated
Debt and give acquittance therefor and to file claims and proofs of claim and
take such other action (including voting the Subordinated Debt) as they may deem
necessary or advisable for the exercise or enforcement of any of the rights or
interests of the Guaranteed Parties; and
(ii) the Guarantor shall promptly take such action as
any of the Guaranteed Parties may reasonably request (A) to collect the
Subordinated Debt for the account of the Guaranteed Parties and to file
appropriate claims or proofs of claim in respect of the Subordinated Debt, (B)
to execute and deliver to the Guaranteed Parties (or the Collateral Agent acting
on their behalf), such powers of attorney, assignments and other instruments as
they may request to enable them to enforce any and all claims with respect to
the Subordinated Debt, and (C) to collect and receive any and all Subordinated
Debt Payments.
SECTION 8 Continuing Guaranty; Reinstatement.
(a) Continuing Guaranty. This Guaranty is a continuing
guaranty and agreement of subordination and shall continue in effect and be
binding upon the Guarantor until the payment and performance in full of all
Guaranteed Obligations.
(b) Reinstatement. This Guaranty shall continue to be
effective or shall be reinstated and revived, as the case may be, if, for any
reason, any payment of the Guaranteed Obligations by or on behalf of the
Borrower (or receipt of any proceeds of collateral) shall be rescinded,
invalidated, declared to be fraudulent or preferential, set aside, voided or
otherwise required to be repaid to the Borrower, its estate, trustee, receiver
or any other Person (including
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under any Debtor Relief Laws or other state or federal law), or must otherwise
be restored by the Guaranteed Parties, whether as a result of proceedings under
any Debtor Relief Laws or otherwise. To the extent any payment is so rescinded,
set aside, voided or otherwise repaid or restored, the Guaranteed Obligations
shall be revived in full force and effect without reduction or discharge for
such payment. All losses, damages, costs and expenses that the Guaranteed
Parties may suffer or incur as a result of any voided or otherwise set aside
payments shall be specifically covered by the indemnity in favor of the
Guaranteed Parties contained in Section 15.
SECTION 9 Payments. The Guarantor hereby agrees, in furtherance
of the foregoing provisions of this Guaranty and not in limitation of any other
right which the Guaranteed Parties or any other Person may have against the
Guarantor by virtue hereof, upon the failure of the Borrower to pay any of the
Guaranteed Obligations when and as the same shall become due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code), the Guarantor shall forthwith
pay, or cause to be paid, in cash, to the Guaranteed Parties (or the Collateral
Agent on their behalf) an amount equal to the amount of the Guaranteed
Obligations then due as aforesaid (including interest which, but for the filing
of a petition in any proceeding under any Debtor Relief Laws with respect to the
Borrower, would have accrued on such Guaranteed Obligations, whether or not a
claim is allowed against the Borrower for such interest in any such proceeding
under any Debtor Relief Laws). The Guarantor shall make each payment hereunder,
unconditionally in full without set-off, counterclaim or other defense, or
deduction for any Taxes, on the day when due in Dollars and in same day or
immediately available funds, to the Collateral Agent at such office or account
of any Guaranteed Party as any of the Guaranteed Parties (or the Collateral
Agent on their behalf) may direct. All such payments shall be promptly applied
from time to time by the Guaranteed Parties as provided in the Intercreditor
Documents.
SECTION 10 Representations and Warranties. The Guarantor
represents and warrants to the Guaranteed Parties that:
(a) Organization and Powers. The Guarantor is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation, is qualified to do business and
is in good standing in each jurisdiction in which the failure so to qualify or
be in good standing would have a Material Adverse Effect and has all requisite
power and authority: (i) to own its assets and carry on its business, and (ii)
to execute, deliver and perform its obligations under the Guarantor Documents
and Spin-Off Documents.
(b) Authorization; No Conflict. The execution, delivery and
performance by the Guarantor of this Guaranty and all other Guarantor Documents
and Spin-Off Documents, and the Spin-Off Transaction, have been duly authorized
by all necessary corporate action of the Guarantor, and do not and will not: (i)
contravene the terms of the Guarantor's organization documents or (ii) conflict
with or result in any breach or contravention of, or the creation of any Lien
under, any document evidencing any material Contractual Obligation to which the
Guarantor is a party or any order, injunction, writ or decree of any
Governmental Authority to which the Guarantor or its property is subject, or
(iii) violate any Laws.
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(c) Binding Obligation. This Guaranty and the other
Guarantor Documents constitute the legal, valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
(d) Governmental Consents. No authorization, consent,
approval, license, exemption of, or filing or registration with, any
Governmental Authority, or approval or consent of any other Person, except as
have been obtained on or before the Closing Date, is required for (i) the due
execution, delivery or performance by, or enforcement against, the Guarantor of
the Guarantor Documents, (ii) the execution, delivery or performance by or
enforcement against the Guarantor of the Spin-Off Documents or (iii) the
consummation of the Spin-Off Transaction.
(e) The Guarantor has not previously assigned any interest
in the Subordinated Debt or any collateral relating thereto, no Person other
than the Guarantor owns an interest in the Subordinated Debt or any such
collateral (whether as joint holders of the Subordinated Debt, participants or
otherwise), and the entire Subordinated Debt is owing only to the Guarantor.
(f) Solvency. Immediately prior to and after and giving
effect to (i) the incurrence of the Guarantor's obligations under this Guaranty,
and (ii) the Spin-Off Transaction, the Guarantor will be Solvent.
(g) Consideration. The Guarantor has received at least
"reasonably equivalent value" (as such phrase is used in Section 548 of the
Bankruptcy Code) and "fair consideration" (as such phrase is used in Section 272
of the New York Debtor & Creditor Laws and in comparable provisions of other
applicable law) and more than sufficient consideration to support its
obligations hereunder in respect of the Guaranteed Obligations to which it is a
party.
(h) Independent Investigation. The Guarantor hereby
acknowledges that it has undertaken its own independent investigation of the
financial condition of the Borrower and all other matters pertaining to this
Guaranty and further acknowledges that it is not relying in any manner upon any
representation or statement of the Guaranteed Parties with respect thereto. The
Guarantor represents and warrants that it has received and reviewed copies of
the Credit Documents and that it is in a position to obtain, and it hereby
assumes full responsibility for obtaining, any additional information concerning
the financial condition of the Borrower and any other matters pertinent hereto
that the Guarantor may desire. The Guarantor is not relying upon or expecting
the Guaranteed Parties to furnish to the Guarantor any information now or
hereafter in the Guaranteed Parties' possession concerning the financial
condition of the Borrower or any other matter.
SECTION 11 Reporting Covenant. So long as any Guaranteed
Obligations shall remain unsatisfied or any Lender shall have any Commitment,
the Guarantor agrees that it shall furnish to the Guaranteed Parties such
information respecting the operations, properties, business or condition
(financial or otherwise) of the Guarantor or its Subsidiaries as any of the
Guaranteed Parties may from time to time reasonably request.
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SECTION 12 Additional Covenants. So long as any Guaranteed
Obligations shall remain unsatisfied or any Lender shall have any Commitment,
the Guarantor agrees that:
(a) Preservation of Existence, Etc. The Guarantor shall, and
shall cause each of its Subsidiaries to, maintain and preserve (i) its legal
existence and (ii) its rights to transact business and all other rights,
franchises and privileges necessary or desirable in the normal course of its
business and operations and the ownership of its properties, except in the case
of this clause (ii) where the non-preservation could not reasonably be expected
to have a Material Adverse Effect.
(b) Further Assurances and Additional Acts. The Guarantor
shall execute, acknowledge, deliver, file, notarize and register at its own
expense all such further agreements, instruments, certificates, documents and
assurances and perform such acts as any of the Guaranteed Parties shall deem
reasonably necessary or appropriate to effectuate the purposes of this Guaranty
and the other Guarantor Documents, and promptly provide the Guaranteed Parties
with evidence of the foregoing satisfactory in form and substance to the
Guaranteed Parties.
SECTION 13 Notices. All notices, requests or other
communications hereunder shall be given in the manner and to the addresses
specified in the Credit Agreement; except that (a) any notices to the Swap
Provider shall be delivered to Fleet National Bank (or such replacement Swap
Provider as the Swap Provider may direct in writing), according to the
information listed in Schedule 10.02 of the Credit Agreement for such party as a
Lender and (b) any notice to the Note Holders be delivered to the address
specified for such Persons in the Note Purchase Agreement (or to such
replacement Note Holders as may be appointed from time to time consistent with
the Intercreditor Agreement). Notices to the Guarantor shall be sent or
delivered to the address set forth in the Credit Agreement for the Borrower. All
such notices, requested and communications shall, when transmitted by overnight
delivery, or faxed, be effective when delivered for overnight (next-day)
delivery, or transmitted in legible form by facsimile machine, respectively, or
if mailed, upon receipt by the addressee, or if delivered, upon delivery.
SECTION 14 No Waiver; Cumulative Remedies. No failure on the
part of any Guaranteed Parties to exercise, and no delay in exercising on the
part of any Guaranteed Parties, any right, remedy, power or privilege hereunder
or under any other Guarantor Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, remedy, power or
privilege preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
SECTION 15 Costs and Expenses; Indemnification.
(a) Costs and Expenses. The Guarantor shall:
(i) whether or not the transactions contemplated
hereby are consummated, pay or reimburse each of the Guaranteed Parties for all
costs and expenses incurred by them in connection with the development,
preparation, delivery, administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether
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or not consummated), this Guaranty, any other Guarantor Document and any other
documents prepared in connection herewith or therewith and the consummation of
the transactions contemplated hereby and thereby; and
(ii) pay or reimburse the Guaranteed Parties for all
costs and expenses (including Attorney Costs) incurred by them in connection
with the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Guaranty or any other Guarantor Document during the
existence of an Event of Default or after acceleration of the Loans (including
in connection with any "workout" or restructuring regarding the Loans, and
including in any proceeding under any Debtor Relief Laws or appellate
proceeding).
(b) Indemnification. The Borrower shall indemnify, defend
and hold each of the Guaranteed Parties, and each Lender and Note Holder and
each of its respective officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "Indemnified Person") harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suites, costs, charges, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time be
imposed on, incurred by or asserted against any such Person in favor of any
third-party in any way relating to or arising out of this Guaranty or any
document contemplated by or referred to herein, or the transactions contemplated
hereby, or any action taken or omitted by any such Person under or in connection
with any of the foregoing, including with respect to any investigation,
litigation or proceeding (including any proceeding under any Debtor Relief Laws
or appellate proceeding) related to or arising out of this Guaranty or relating
to the Collateral, whether or not any Indemnified Person is a party thereto (the
"Indemnified Liabilities"); provided that the Guarantor shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified Liabilities
resulting from the gross negligence or willful misconduct of such Indemnified
Person.
(c) Defense. At the election of any Indemnified Person, the
Guarantor shall defend such Indemnified Person using legal counsel satisfactory
to such Indemnified Person in such Person's sole discretion, at the sole cost
and expense of the Guarantor.
(d) Interest. Any amounts payable to the Guaranteed Parties
under this Section 15 if not paid upon demand shall bear interest from the date
of such demand until paid in full, at the Default Rate.
(e) Survival. The agreements in this Section shall survive
payment of all other Guaranteed Obligations.
SECTION 16 Right of Set-Off. In addition to any rights and
remedies of the Guaranteed Parties and the Lenders provided by law, if an Event
of Default exists or any reimbursement or payment obligation under any of the
Credit Documents has been accelerated, each Guaranteed Parties and Lenders is
hereby authorized at any time and from time to time, upon notice to the other
Guaranteed Parties as prescribed in the Intercreditor Agreement, but without
notice to the Guarantor (any such notice being expressly waived by the
Guarantor), 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 Person to or for the credit or the account of the Guarantor
against any and all of the obligations of the Guarantor then due and
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owing, irrespective of whether or not such Person shall have made any demand
upon the Borrower or the Guarantor under any of the Credit Documents. Each
Lender and the Guaranteed Parties shall promptly notify the Guarantor (through
the Collateral Agent) after any such set-off and application made by it;
provided, however, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of the Lenders and
Guaranteed Parties under this Section 16 are in addition to other rights and
remedies (including other rights of set-off) which the such parties may have.
SECTION 17 Marshalling; Payments Set Aside. None of the Lenders,
the Note Holders, or the Guaranteed Parties shall be under any obligation to
marshal any assets in favor of the Guarantor or any other Person or against or
in payment of any or all of the Guaranteed Obligations. To the extent that the
Guarantor makes a payment to the Guaranteed Parties, or the Guaranteed Parties
exercise their right of set-off, and such payment or the proceeds of such
set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Guaranteed Parties in their discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Laws or otherwise, then (a) to the extent of
such recovery the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such set-off had not occurred, and (b) each Lender severally
agrees to pay to the Collateral Agent upon demand its pro rata share of any
amount so recovered from or repaid by the Collateral Agent.
SECTION 18 Benefits of Guaranty. This Guaranty is entered into
for the sole protection and benefit of the Lenders, the Note Holders, the
Guaranteed Parties, and their respective successors and assigns, and no other
Person (other than the Collateral Agent and any Indemnified Person specified
herein) shall be a direct or indirect beneficiary of, or shall have any direct
or indirect cause of action or claim in connection with, this Guaranty. The
Guaranteed Parties, by their acceptance of this Guaranty, shall not have any
obligations under this Guaranty to any Person other than the Guarantor, and such
obligations shall be limited to those expressly stated herein.
SECTION 19 Binding Effect; Assignment.
(a) Successors and Assigns. The provisions of this Guaranty
shall be binding upon and insure to the benefit of the parties hereto and their
respective successors and assigns.
(b) Assignment. The Guarantor shall not have the right to
assign or transfer its rights and obligations hereunder or under any other
Guarantor Documents without the prior written consent of the Required Lenders.
Each of the Guaranteed Parties, the Note Holders, and the Lenders may, without
notice to or consent by the Guarantor, sell, assign, transfer or grant
participations in all or any portion of such Person's rights and obligations
hereunder and under the other Guarantor Documents in connection with any sale,
assignment, transfer or grant of a participation by such Person in accordance
with Section 10.07 of the Credit Agreement in its rights and obligations
thereunder and under any of the Credit Documents. The Guarantor agrees that in
connection with any such sale, assignment, transfer or grant by any Lender, such
Lender may deliver to the prospective participant or assignee financial
statements and other relevant information relating to the Guarantor and its
Subsidiaries.
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SECTION 20 Governing Law and Jurisdiction.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE GUARANTEED
PARTIES SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER COLLATERAL DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX
XXXXX XX XXX XXXX SITTING IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK, OR OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH OF THE GUARANTOR AND THE GUARANTEED PARTIES
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. THE GUARANTOR AND THE GUARANTEED PARTIES
IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH THEY MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN ANY FEDERAL COURT OR STATE
COURT SITTING IN NEW YORK IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT
RELATED THERETO. THE GUARANTOR AND THE GUARANTEED PARTIES WAIVE PERSONAL SERVICE
OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY THE LAW OF SUCH STATE.
SECTION 21 Waiver of Right to Jury Trial. EACH PARTY TO THIS
GUARANTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS GUARANTY OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO THIS GUARANTY, ANY CREDIT DOCUMENT, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS GUARANTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
SECTION 22 Entire Agreement; Amendments. This Guaranty, together
with the other Guarantor Documents, embodies the entire agreement of the
Guarantor with respect to the matters set forth herein for the benefit of each
Guaranteed Party, and supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof. Subject to Section 23, this Guaranty shall be amended
only by written agreement between the Guarantor and the Guaranteed Party to whom
such
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amendment relates. Any such amendment shall not effect any guaranty of the
Guarantor granted hereunder to any other Guaranteed Party.
SECTION 23 Independence. This Guaranty sets forth independent
and separate guaranties of the Guarantor in favor of each Guaranteed Party in
respect of the Guaranteed Obligations owing to each such Guaranteed Party. The
illegality or unenforceability of any provision of this Guaranty or any
instrument or agreement required hereunder with respect to any Guaranteed Party
shall not in any way affect or impair the legality or enforceability of that or
any other provision of this Guaranty or any instrument or agreement required
hereunder in respect of any other Guaranteed Party. The parties acknowledge that
this Guaranty has, solely for reasons of convenience, been prepared and executed
as a single document, but that the legal effect shall be in all respects as
thought the Guarantor had executed separate guaranties, in favor of each
Guaranteed Party. Any provision of this Agreement and the other Credit Documents
to which the Grantor is a party that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions thereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 24 Multiple Guarantors; Joint and Several Liability.
When this Guaranty is executed by more than one Guarantor, the word "Guarantor"
shall mean all and any one or more of them, and the obligations of all Persons
signing this Guaranty shall be joint and several.
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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty, as of the
date first above written.
ARBITRON HOLDINGS INC., as Guarantor
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
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Title: Vice President & Treasurer
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