EXHIBIT 4.1
AMENDED AND RESTATED
SECURITY AGREEMENT
AMENDED AND RESTATED SECURITY AGREEMENT (as the same may be amended,
supplemented or otherwise modified from time to time, this "AGREEMENT"),
dated as of April 9, 2001, by and among META GROUP, INC., a Delaware
corporation (the "BORROWER"), such other Persons which from time to time may
become party hereto (collectively with the Borrower, the "GRANTORS"), and THE
BANK OF NEW YORK (the "BANK").
RECITALS
A. Reference is made to the Credit Agreement, dated as of September
18, 2000, by and between the Borrower and the Bank, as amended by Amendment
No. 1 and Waiver No. 1, dated as of December 11, 2000, and Amendment No. 2
and Waiver No. 2 ("AMENDMENT NO. 2"), dated as of March 30, 2001 (as amended,
and as the same may be further amended, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT").
B. As a condition precedent to the Bank's acceptance and execution
of the Credit Agreement and the making of the Loans, the issuance of the
Letters of Credit and all other extensions of credit under the Credit
Agreement, the Borrower executed and delivered to the Bank a Security
Agreement, dated as of September 18, 2000 (the "ORIGINAL SECURITY AGREEMENT").
C. Pursuant to Amendment No. 2, the Borrower agreed to enter into,
within ten days after the date of Amendment No. 2, an amended and restated
security agreement, for the purpose of providing the Bank with a first
priority security interest in all Accounts of the Borrower.
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 Grantors 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 Agreement, the following capitalized
terms shall have the respective meanings ascribed thereto as follows:
"ADDITIONAL GRANTOR": each Grantor which becomes a
party hereto pursuant to Section 10 hereof.
"COLLATERAL": as defined in Section 2.
"EQUITY INTEREST": (i) with respect to a corporation,
the capital stock thereof, (ii) with respect to a partnership, a
partnership interest therein, all rights of a partner in such
partnership, whether arising under the partnership agreement of such
partnership or otherwise; (iii) with respect to a limited liability
company, a membership interest therein, all rights of a member of such
limited liability company, whether arising under the limited liability
company agreement of such limited liability company or otherwise; (iv)
with respect to any other firm, association, trust, business enterprise
or other entity which is similar to any other Person listed in clauses
(i), (ii) and (iii), and this clause (iv), of this definition, any
equity interest therein, any interest therein which entitles the holder
thereof to share in the revenue, income, earnings or losses thereof or
to vote or otherwise participate in any election of one or more members
of the board of directors or other governing body or Person thereof,
and (v) all warrants and options in respect of any of the foregoing and
all other securities which are convertible or exchangeable therefor.
"EVENT OF DEFAULT": as defined in Section 6.
"FINANCING STATEMENTS": any UCC financing statements
executed by the Grantors in connection with this Agreement or the
Original Security Agreement.
"OBLIGATIONS": all of the obligations and liabilities
of each Grantor under the Loan Documents, in each case whether fixed,
contingent, now existing or hereafter arising, created, assumed,
incurred or acquired, as such obligations and liabilities may be
amended, increased, modified, renewed, refinanced by the Bank, refunded
or extended from time to time.
"OFFICE LOCATION": as defined in Section 3(a).
"SUPPLEMENT": a Supplement to this Agreement, duly
completed, in the form of Annex A hereto.
"UCC": with respect to any jurisdiction, Articles 1,
8 and 9 of the Uniform Commercial Code as in effect in such
jurisdiction on the date of this Agreement, as the same may be amended
from time to time.
(c) When used in this Agreement, the following capitalized
terms shall have the respective meanings ascribed thereto in the UCC, as such
definitions may be amended from time to time: "ACCOUNT", "CERTIFICATED
SECURITY", "INSTRUMENT", "ISSUER", "PROCEEDS", "SECURED PARTY", and
"SECURITY".
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Section 2. GRANT OF SECURITY INTEREST
To secure the prompt and complete payment, observance and
performance of the Obligations, each Grantor hereby grants to the Bank a
security interest in and to all of such Grantor's right, title and interest
in and to all of the following property now owned or hereafter acquired
(collectively, the "COLLATERAL"):
(i) all Accounts of the Borrower, and all Instruments
evidencing Intercompany Indebtedness owed to the Borrower;
(ii) the safekeeping account in the name of the
Borrower maintained at the Bank and designated as account number 241033
and any demand deposit accounts established in connection with such
account (together with any successor accounts, the "COLLATERAL
ACCOUNT") and all property from time to time held in or credited to the
Collateral Account, whether now held or hereafter acquired and
transferred into or credited to the Collateral Account, including,
without limitation, all monies, bills, bonds, notes, obligations,
securities, commercial paper, instruments or other investment property
and financial assets of any nature held in or credited to the
Collateral Account, in each case, together with all payments and
distributions now or hereafter made thereon (whether constituting
principal, interest or dividends and whether payable in cash or in
property); all sums now or hereafter deposited in, and all sums due or
to become due on (whether as interest, dividends or otherwise), the
Collateral Account; all rights (contractual or otherwise) now or
hereafter arising under, connected with or in any way related to the
foregoing items of Collateral in this sub-paragraph (ii), including all
securities entitlements with respect thereto; all claims (including the
right to xxx or otherwise recover such claims) against third parties
now or hereafter arising under, connected with or in any way related to
the foregoing items of Collateral in this sub-paragraph (ii); and all
additions thereto and all substitutions, exchanges and replacements
therefor;
(iii) all Equity Interests in each Person which now
is or may hereafter become a Subsidiary of such Grantor, whether or not
evidenced by a Security; PROVIDED, HOWEVER, that with respect to any
Foreign Subsidiary which does not become a Subsidiary Guarantor
pursuant to the terms of Section 8.8 of the Credit Agreement, the
Equity Interests in such Foreign Subsidiary pledged hereunder shall be
equal to 60% of the outstanding Capital Stock of such Foreign
Subsidiary; and
(iv) all Proceeds of all of the foregoing.
Section 3. REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Bank as
follows:
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(a) CHIEF EXECUTIVE OFFICE. As of the date hereof,
the Borrower's chief executive office, is, and has been continuously
for the immediately preceding five-month period, located at the address
set forth in Section 10.2 of the Credit Agreement (the "OFFICE
LOCATION").
(b) BORROWER'S NAME. The Borrower has not changed its
legal name during the six-year period immediately preceding the date
hereof.
(c) SECURITY INTEREST. This Agreement, together with
the delivery to the Bank of the Certificated Securities constituting
Collateral and the continuous possession thereof by the Bank creates a
continuing enforceable security interest in the Collateral in favor of
the Bank. Upon (i) the presentation for filing of the Financing
Statements at the respective offices listed thereon together with the
appropriate filing fee therefor, and (ii) the delivery to the Bank of
any Instruments constituting the Collateral, such security interest
shall be perfected. The Bank shall be considered a "PROTECTED
PURCHASER" within the meaning of Article 8 of the UCC, with respect to
the Collateral consisting of Securities.
(d) ACCOUNTS. As of the date hereof, (i) all records
concerning any Accounts constituting the Collateral, other than such
Accounts that are not material to the conduct of the Borrower's
business, are located at the Office Location, and (ii) no such Account
that is covered by the representation in clause (i) of this paragraph
is evidenced by a promissory note or other instrument.
(e) INSTRUMENTS. The Borrower does not currently own
any Instruments evidencing Intercompany Indebtedness, other than such
as are not material to the conduct of the Borrower's business.
Section 4. COVENANTS OF THE GRANTORS
Each Grantor hereby covenants with the Bank as follows:
(a) CHIEF EXECUTIVE OFFICE. Such Grantor shall
maintain its place of business, or if such Grantor has more than one
place of business, its chief executive office, at its Office Location
or at such other location in respect of which (A) such Grantor shall
have provided the Bank with prior written notice thereof, and (B) if
the Bank deems necessary, UCC financing statements (or amendments
thereto), in form and substance reasonably satisfactory to the Bank,
shall have been filed within two months of such change.
(b) FURTHER ASSURANCES. Such Grantor shall, at its
own expense, promptly execute and deliver all certificates, documents,
instruments, financing and continuation statements and amendments
thereto, notices and other agreements, and take all further action,
that the Bank may reasonably request
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from time to time, in order to perfect and protect the security
interest granted hereby or to enable the Bank to exercise and
enforce its rights and remedies hereunder with respect to the
Collateral. Such Grantor hereby irrevocably appoints the Bank as
such Grantor's true and lawful attorney-in-fact, in the name,
place and stead of such Grantor, to perform on behalf of such Grantor
any and all obligations of such Grantor under this Agreement, and such
Grantor agrees that the power of attorney herein granted constitutes a
power coupled with an interest, provided, however, that the Bank shall
have no obligation to perform any such obligation and such performance
shall be at the sole cost and expense of such Grantor. If such Grantor
fail to comply with any of its obligations hereunder, the Bank may do
so in such Grantor's name or in the Bank's name, but at such Grantor's
expense, and such Grantor hereby agrees to reimburse the Bank in full
for all reasonable expenses, including reasonable attorney's fees,
incurred by the Bank in connection therewith.
(c) INFORMATION. Such Grantor at its own expense
shall furnish to the Bank such information, reports, statements and
schedules with respect to the Collateral as the Bank may reasonably
request from time to time.
(d) DEFENSE OF COLLATERAL. Such Grantor at its own
expense shall defend the Collateral against all material claims of any
kind or nature of all Persons at any time claiming the same or any
interest therein adverse to the interests of the Bank, and such Grantor
shall not cause, permit or suffer to exist any Lien upon the Collateral
except as permitted pursuant to the Credit Agreement.
(e) DELIVERY OF PLEDGED COLLATERAL. Each Certificated
Security representing an Equity Interest in a Person which is or shall
become a Subsidiary of such Grantor shall be promptly delivered to the
Bank (subject to the limitation contained in Section 2(iii)), to be
held by the Bank pursuant hereto, in suitable form for transfer by
delivery or accompanied by duly executed documents of transfer or
assignment in blank, all in form and substance satisfactory to the
Bank. Such Grantor agrees that until so delivered, each such
Certificated Security shall be held by such Grantor in trust for the
benefit of the Bank and be segregated from the other Property of such
Grantor.
(f) ACCOUNTS. Except as otherwise provided in this
Section 4(f), the Borrower shall continue to collect in accordance with
its customary practices, at its own expense, all amounts due or to
become due to the Borrower in respect of its Accounts and, prior to the
occurrence of an Event of Default, the Borrower shall have the right to
adjust, settle or compromise the amount or payment of any such Account,
all in accordance with its customary practices. In connection with such
collections, the Borrower may take and, at the direction of the Bank at
any time that an Event of Default shall have occurred and be continuing
shall take,
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such action as the Borrower or the Bank may reasonably deem
necessary or advisable to enforce collection of such Accounts.
(g) INSTRUMENTS. All of the Instruments now or
hereafter owned by or in the possession of the Borrower which
constitute the Collateral (other than checks received in the ordinary
course of collection) shall be promptly delivered to the Bank, to be
held by the Bank pursuant hereto, in suitable form for transfer by
delivery or accompanied by duly executed documents of transfer or
assignment in blank, all in form and substance reasonably satisfactory
to the Bank. The Borrower agrees that, with respect to all items of the
Collateral which it is or shall hereafter be obligated to deliver to
the Bank, until so delivered such items shall be held by the Borrower
in trust for the benefit of the Bank and be segregated from the other
Property of the Borrower.
Section 5. OTHER AGREEMENTS OF THE GRANTORS
(a) NO DUTY TO PRESERVE. Except as otherwise required by
law, each Grantor agrees that, with respect to the Collateral, the Bank has
no obligation to preserve rights against prior or third parties.
(b) BANK'S DUTY WITH RESPECT TO COLLATERAL. The Bank's only
duty with respect to the Collateral delivered to it shall be to use
reasonable care in the custody and preservation of the Collateral, and each
Grantor agrees that if the Bank accords the Collateral substantially the same
kind of care as it accords its own Property, such care shall conclusively be
deemed reasonable. In the event that all or any part of the Certificated
Securities or Instruments constituting the Collateral are lost, destroyed or
wrongfully taken while such Certificated Securities or Instruments are in the
possession of the Bank, each Grantor agrees that it will use its best efforts
to cause the delivery of new Certificated Securities or Instruments in place
of the lost, destroyed or wrongfully taken Certificated Securities or
Instruments upon request therefor by the Bank, without the necessity of any
indemnity bond or other security, other than the Bank's agreement of
indemnity upon usual and customary terms therefor. Anything herein to the
contrary notwithstanding, the Bank shall not be under any duty to send
notices, perform services, exercise any rights of collection, enforcement,
conversion or exchange, vote, pay for insurance, taxes or other charges or
take any action of any kind in connection with the management of the
Collateral.
Section 6. EVENTS OF DEFAULT
Each of the following shall constitute an "EVENT OF DEFAULT":
(a) If any Grantor shall fail to observe or perform
any term, covenant or agreement contained in this Agreement; or
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(b) The occurrence and continuance of any other Event
of Default under, and as such term is defined in, the Credit Agreement.
Section 7. REMEDIES
(a) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, the Bank may:
(i) exercise any and all rights and remedies granted
to a Secured Party by the UCC or otherwise allowed at law, and
otherwise provided by this Agreement, and
(ii) dispose of the Collateral as it may choose, so
long as every aspect of the disposition including the method, manner,
time, place and terms are commercially reasonable, and each Grantor
agrees that, without limitation, the following are each commercially
reasonable: the Bank shall not in any event be required to give more
than 14 days' prior notice to any Grantor of any such disposition, any
place within the City of New York or the County of Fairfield,
Connecticut may be designated by the Bank for disposition, and the Bank
may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was
so adjourned.
(b) Each Grantor acknowledges and agrees that the Bank may
elect, with respect to the offer or sale of any or all of the Equity
Interests constituting the Collateral, to conduct such offer and sale in such
a manner as to avoid the need for registration or qualification of such
Equity Interests or the offer and sale thereof under any Federal or state
securities laws and that the Bank is authorized to comply with any limitation
or restriction in connection with such sale as counsel may advise the Bank is
reasonably necessary in order to avoid any violation of applicable law,
compliance with such procedures as may restrict the number of prospective
bidders and purchasers, require that such prospective bidders and purchasers
have certain qualifications, and restrict such prospective bidders and
purchasers to Persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution
or resale of such Equity Interests, or in order to obtain any required
approval of the sale or of the purchaser by any Governmental Authority. Each
Grantor further acknowledges and agrees that any such transaction may be at
prices and on terms less favorable than those which may be obtained through a
public sale and not subject to such restrictions and agrees that,
notwithstanding the foregoing, the Bank is under no obligation to conduct any
such public sale and may elect to impose any or all of the foregoing
restrictions, or any other restrictions which may be reasonably necessary in
order to avoid any such registration or qualification, at its sole
discretion, and that any such offer and sale so conducted shall be deemed to
have been made in a commercially reasonable manner.
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(c) To the extent permitted by law, each Grantor 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 Agreement.
Section 8. VOTING
Notwithstanding anything to the contrary contained in this
Agreement, each Grantor shall have the right to vote all Securities
constituting the Collateral and receive and retain all dividends and
distributions thereon until such time, if any, as an Event of Default shall
have occurred and be continuing and the Bank shall have notified the Grantors
that the Bank shall have elected to terminate the rights of the Grantors
under this Section, at which time the Bank shall then be vested with the
right to vote all Securities constituting the Collateral and receive and
retain all dividends and distributions thereon, until such time as such Event
of Default is cured or waived.
Section 9. NOTICES
All notices and other communications provided for or otherwise
required hereunder or in connection herewith shall be given in the manner and,
with respect to the Borrower and the Bank, to the addresses set forth in Section
10.2 of the Credit Agreement. The address for notices to each other Grantor
executing this Agreement shall be its respective Office Location.
Section 10. ADDITIONAL GRANTORS
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 which owns any Capital Stock
of any other Subsidiary of the Borrower, shall enter into this Agreement as
an additional Grantor. Upon execution and delivery by the Bank and any such
Subsidiary of a Supplement, together with certificates evidencing the Equity
Interests being pledged (subject to the limitation contained in Section
2(iii)) and such UCC Financing Statements and other documents as the Bank
shall require in order to perfect the Bank's security interest granted
thereby, such Subsidiary shall become a Grantor hereunder with the same force
and effect as if originally named as a Grantor herein. The execution and
delivery of such Supplement shall not require the consent of any other
Grantor hereunder. The rights and obligations of each Grantor hereunder shall
remain in full force and effect notwithstanding the addition of any new
Grantor as a party to this Agreement.
Section 11. TERMINATION
On any date upon which (i) the Bank shall no longer have
any obligation to make any Revolving Credit Loans or issue any Letters of
Credit, and (ii) the Obligations shall have been indefeasibly paid in full in
cash, the Liens granted hereby
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shall cease and the Bank shall, at the Grantors' expense, execute and deliver
all UCC Termination Statements which the Grantors shall have reasonably
requested, and return to the Grantors all Collateral which shall remain in
the possession of the Bank at such time.
Section 12. RELATIONSHIP TO CREDIT AGREEMENT
This Agreement is the "SECURITY AGREEMENT" 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 and
the Grantors 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
Agreement and all such provisions are incorporated by reference herein as if
fully set forth herein.
Section 13. AMENDED AND RESTATED AGREEMENT
This Agreement is an amendment and restatement of the
Original Security Agreement. All Obligations as defined in the Original
Security Agreement shall be Obligations under and as defined in this
Agreement and shall be secured by the Collateral as defined in this Agreement.
[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
Amended and Restated Security Agreement to be duly executed on its behalf.
META GROUP, INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
-------------------------------------
Title: Chief Financial Officer
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Accepted by:
THE BANK OF NEW YORK
By: /s/ XXXX X. XXXXXXXX
-----------------------------------------
Xxxx X. Xxxxxxxx,
Vice President
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ANNEX A
FORM OF SUPPLEMENT TO SECURITY AGREEMENT
SUPPLEMENT, dated as of __________, made by ___________, a
______ corporation (the "NEW GRANTOR") to the Amended and Restated Security
Agreement (the "SECURITY AGREEMENT"), dated as of April __, 2001, by and
between META GROUP, INC., a Delaware corporation (the "BORROWER" and,
collectively with each Subsidiary which has previously become a party to the
Security Agreement pursuant to Section 10 thereof, the "GRANTORS"), and THE
BANK OF NEW YORK (the "BANK").
1. Reference is made to the Credit Agreement, dated as of
September 18, 2000, by and between the Borrower and the Bank, as amended by
Amendment No. 1 and Waiver No. 1, dated as of December 11, 2000, and
Amendment No. 2 and Waiver No. 2, dated as of March 30, 2001 (as amended, and
as the same may be further amended, modified or supplemented from time to
time, the "CREDIT AGREEMENT").
2. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Security Agreement
or the Credit Agreement, as the case may be.
3. The Grantors have entered into the Security Agreement in
order to induce the Bank to enter into the Credit Agreement and make the Loans
and issue Letters of Credit. 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 which owns any Capital Stock of
any other Subsidiary of the Borrower, enter into the Security Agreement as an
additional Grantor. Section 10 of the Security Agreement provides that such
Subsidiary shall become a Grantor under the Security Agreement by the execution
and delivery of an instrument in the form of this Supplement. The New Grantor is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Grantor under the Security Agreement in order to induce
the Bank to make additional Loans and issue additional Letters of Credit, and as
consideration for Loans previously made.
Accordingly, the Bank and the New Grantor agree as follows:
(a) In accordance with Section 10 of the Security
Agreement, by signing this Supplement, the New Grantor (a) shall be, and
shall be deemed to be, a "Grantor" under, and as such term is defined in, the
Security Agreement with the same force and effect as if originally named
therein as a Grantor, (b) shall have made, and shall be deemed to have made,
the representations and warranties contained in Section 3 of the Security
Agreement on and as of the date hereof, and (c) shall have made, and shall be
deemed to have made, all of the covenants and agreements of a Grantor set
forth in the Security Agreement.
(b) REPRESENTATIONS AND WARRANTIES
The New Grantor represents and warrants to the Bank
as follows:
(i) This Supplement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and
binding obligations, enforceable against it in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
or other similar laws affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or an action at law).
(ii) The New Grantor's place of business or, if the
New Grantor has more than one place of business, its chief executive
office, is, and has been continuously for the immediately preceding
five-month period, located at:_________________________________________
(the "OFFICE LOCATION").
(iii) The New Grantor has not changed its legal name
during the six-year period immediately preceding the date of this
Supplement, except as the Bank shall have been advised of prior to such
Grantor becoming a party to this Agreement.
(c) Except as expressly supplemented hereby, the Security
Agreement shall remain in full force and effect.
(d) This Supplement shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflicts
of laws rules.
(e) Every provision of this Supplement is intended to be
severable, and if any term or provision hereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of
the remaining provisions hereof or thereof shall not be affected or impaired
thereby, and any invalidity, illegality or unenforceability in any
jurisdiction shall not affect the validity, legality or enforceability of any
such term or provision in any other jurisdiction.
(f) The New Grantor agrees to reimburse the Bank for its
reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel to
the Bank.
(g) This Supplement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument. This Supplement
shall become effective when the Bank shall have received counterparts of this
Supplement duly executed by the New Grantor.
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The New Grantor and the Bank have duly executed this
Supplement to the Amended and Restated Security Agreement as of the day and
year first above written.
[NAME OF NEW GRANTOR]
By:
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Name:
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Title:
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THE BANK OF NEW YORK
By:
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Name:
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Title:
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