0000950123-11-035672.txt : 20110414 0000950123-11-035672.hdr.sgml : 20110414 20110414165355 ACCESSION NUMBER: 0000950123-11-035672 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20110414 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20110414 DATE AS OF CHANGE: 20110414 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SS&C TECHNOLOGIES INC CENTRAL INDEX KEY: 0001011661 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 061169696 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-28430 FILM NUMBER: 11760145 BUSINESS ADDRESS: STREET 1: 80 LAMBERTON RD STREET 2: . CITY: WINDSOR STATE: CT ZIP: 06095 BUSINESS PHONE: 860-298-4500 MAIL ADDRESS: STREET 1: 80 LAMBERTON RD STREET 2: . CITY: WINDSOR STATE: CT ZIP: 06095 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SS&C Technologies Holdings Inc CENTRAL INDEX KEY: 0001402436 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 710987913 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-34675 FILM NUMBER: 11760144 BUSINESS ADDRESS: STREET 1: 80 LAMBERTON RD CITY: WINDSOR STATE: CT ZIP: 06095 BUSINESS PHONE: 860-298-4500 MAIL ADDRESS: STREET 1: 80 LAMBERTON RD CITY: WINDSOR STATE: CT ZIP: 06095 8-K 1 c15577e8vk.htm FORM 8-K Form 8-K
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): April 14, 2011
SS&C Technologies Holdings, Inc.
(Exact Name of Registrant as Specified in Charter)
         
Delaware   001-34675   71-0987913
         
(State or Other Jurisdiction of
Incorporation) 		  (Commission
File Number) 		  (IRS Employer
Identification No.)
SS&C Technologies, Inc.
(Exact Name of Registrant as Specified in Charter)
         
Delaware   000-28430   06-1169696
         
(State or Other Jurisdiction of
Incorporation) 		  (Commission
File Number) 		  (IRS Employer
Identification No.)
     
80 Lamberton Road,
Windsor, CT 		   
06095
     
(Address of Principal Executive Offices)   (Zip Code)
Registrant’s telephone number, including area code (860) 298-4500
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 

 

Item 1.01. Entry into Material Definitive Agreement.
On December 6, 2010, SS&C Technologies, Inc. (the “Company”), a Delaware corporation and wholly-owned subsidiary of SS&C Technologies Holdings, Inc. (“Holdings”), acquired all of the outstanding shares of capital stock of PC Consulting, Inc., a Utah corporation (“TimeShareWare”), and TimeShareWare became a wholly-owned subsidiary of the Company. On March 10, 2011, the Company acquired all of the outstanding shares of capital stock of BenefitsXML, Inc., a Delaware corporation (“BenefitsXML”), and BenefitsXML became a wholly-owned subsidiary of the Company.
Matters Relating to the Credit Agreement
As required by the Credit Agreement, dated as of November 23, 2005, as amended, among Sunshine Acquisition II, Inc. (“Sunshine”), the Company, SS&C Technologies Canada Corp., the Lenders named therein, JPMorgan Chase Bank, N.A., as Administrative Agent (the “Administrative Agent”), JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian Administrative Agent, Wachovia Bank, National Association, as Syndication Agent, and Bank of America, N.A., as Documentation Agent (as amended, the “Credit Agreement”), TimeShareWare and BenefitsXML each entered into an Assumption Agreement (collectively, the “Assumption Agreements”), dated as of April 14, 2011, in favor of the Administrative Agent. Pursuant to the Assumption Agreements, each of TimeShareWare and BenefitsXML became a party, as an Additional Grantor thereunder, to the Guarantee and Collateral Agreement, dated as of November 23, 2005, by and among Sunshine, Holdings, the Company and certain of its subsidiaries in favor of the Administrative Agent, and granted certain security interests in connection therewith.
Matters Relating to the Indenture
As required by the Indenture, dated as of November 23, 2005, among Sunshine, the Company, the Guarantors named therein, and Wells Fargo Bank, National Association, as Trustee (the “Trustee”), relating to the Company’s 113/4% Senior Subordinated Notes due 2013 (the “Indenture”), as supplemented by the First Supplemental Indenture dated as of April 27, 2006, the Second Supplemental Indenture dated as of September 1, 2009, the Third Supplemental Indenture dated as of December 22, 2009 and the Fourth Supplemental Indenture dated as of April 12, 2010, on April 14, 2011, (i) the Company, TimeShareWare and the Trustee entered into a Fifth Supplemental Indenture (the “Fifth Supplemental Indenture”) and a related Note Guarantee (the “TimeShareWare Note Guarantee”), pursuant to which TimeShareWare became a Guarantor under the Indenture and unconditionally guaranteed all of the Company’s obligations under the Indenture and the notes issued thereunder and (ii) the Company, BenefitsXML, Inc. and the Trustee entered into a Sixth Supplemental Indenture (the “Sixth Supplemental Indenture”) and a related Note Guarantee (the “BenefitsXML Note Guarantee”), pursuant to which BenefitsXML became a Guarantor under the Indenture and unconditionally guaranteed all of the Company’s obligations under the Indenture and the notes issued thereunder
Copies of the Assumption Agreements, Fifth Supplemental Indenture, Sixth Supplemental Indenture, TimeShareWare Note Guarantee and BenefitsXML Note Guarantee are attached as Exhibits to this Current Report on Form 8-K, and are incorporated herein by reference as though fully set forth herein. The foregoing summaries of the Assumption Agreements, Fifth Supplemental Indenture, Sixth Supplemental Indenture, TimeShareWare Note Guarantee and BenefitsXML Note Guarantee and the transactions contemplated thereby are qualified in their entirety by the complete text of the respective agreements filed herewith.

 

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Item 9.01. Financial Statements and Exhibits
(d) Exhibits
See Exhibit Index attached hereto.

 

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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
         
  SS&C TECHNOLOGIES HOLDINGS, INC.
 		  
Date: April 14, 2011  By:   /s/ Patrick J. Pedonti    
    Patrick J. Pedonti   
    Senior Vice President and
Chief Financial Officer 		  

 

 

         
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
         
  SS&C TECHNOLOGIES, INC.
 		  
Date: April 14, 2011  By:   /s/ Patrick J. Pedonti    
    Patrick J. Pedonti   
    Senior Vice President and
Chief Financial Officer 		  

 

 

         
EXHIBIT INDEX
         
Exhibit No.   Description
       
 
  10.1    
Assumption Agreement, dated as of April 14, 2011, by PC Consulting, Inc. in favor of JPMorgan Chase Bank
       
 
  10.2    
Assumption Agreement, dated as of April 14, 2011, by BenefitsXML, Inc. in favor of JPMorgan Chase Bank
       
 
  10.3    
Fifth Supplemental Indenture, dated as of April 14, 2011, among SS&C Technologies, Inc., PC Consulting, Inc. and Wells Fargo Bank, National Association
       
 
  10.4    
Sixth Supplemental Indenture, dated as of April 14, 2011, among SS&C Technologies, Inc., BenefitsXML, Inc. and Wells Fargo Bank, National Association
       
 
  10.5    
Note Guarantee by PC Consulting, Inc.
       
 
  10.6    
Note Guarantee by BenefitsXML, Inc.

 

EX-10.1 2 c15577exv10w1.htm EXHIBIT 10.1 Exhibit 10.1
Exhibit 10.1
ASSUMPTION AGREEMENT, dated as of April 14, 2011, made by PC Consulting, Inc. (d.b.a. TimeShareWare). (the “Additional Grantor”), in favor of JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”) for the banks and other financial institutions or entities (the “Lenders”) parties to the Credit Agreement referred to below. All capitalized terms not defined herein shall have the meaning ascribed to them in such Credit Agreement.
W I T N E S S E T H:
WHEREAS, Sunshine Acquisition II, Inc., (the “Initial US Borrower”), SS&C Technologies, Inc., (the “Surviving US Borrower”), SS&C Technologies Canada Corp., as CDN Borrower, the Lenders, JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian administrative agent (the “Canadian Administrative Agent”) and the Administrative Agent have entered into a Credit Agreement, dated as of November 23, 2005 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, in connection with the Credit Agreement, the Initial US Borrower, the Surviving US Borrower and certain of its Affiliates (other than the Additional Grantor) have entered into the Guarantee and Collateral Agreement, dated as of November 23, 2005 (as amended, supplemented or otherwise modified from time to time, the “Guarantee and Collateral Agreement”) in favor of the Administrative Agent for the benefit of the Administrative Agent, the Canadian Administrative Agent and the Lenders;
WHEREAS, the Credit Agreement requires the Additional Grantor to become a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver this Assumption Agreement in order to become a party to the Guarantee and Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and delivering this Assumption Agreement, the Additional Grantor, as provided in Section 8.14 of the Guarantee and Collateral Agreement, hereby becomes a party to the Guarantee and Collateral Agreement as a Grantor thereunder with the same force and effect as if originally named therein as a Grantor and, without limiting the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a Grantor thereunder. The information set forth in Annex 1-A hereto is hereby added to the information set forth in the Schedules to the Guarantee and Collateral Agreement. The Additional Grantor hereby represents and warrants, to the extent applicable, that each of the representations and warranties contained in Section 4 of the Guarantee and Collateral Agreement is true and correct on and as of the date hereof (after giving effect to this Assumption Agreement) as if made on and as of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

 

IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above written.
         
  PC CONSULTING, INC.
 		  
  By:   /s/ Patrick J. Pedonti    
    Name:   Patrick J. Pedonti   
    Title:   Senior Vice President and Treasurer   
[Signature Page to Assumption Agreement]

 

EX-10.2 3 c15577exv10w2.htm EXHIBIT 10.2 Exhibit 10.2
Exhibit 10.2
ASSUMPTION AGREEMENT, dated as of April 14, 2011, made by BenefitsXML, Inc. (the “Additional Grantor”), in favor of JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”) for the banks and other financial institutions or entities (the “Lenders”) parties to the Credit Agreement referred to below. All capitalized terms not defined herein shall have the meaning ascribed to them in such Credit Agreement.
W I T N E S S E T H :
WHEREAS, Sunshine Acquisition II, Inc., (the “Initial US Borrower”), SS&C Technologies, Inc., (the “Surviving US Borrower”), SS&C Technologies Canada Corp., as CDN Borrower, the Lenders, JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian administrative agent (the “Canadian Administrative Agent”) and the Administrative Agent have entered into a Credit Agreement, dated as of November 23, 2005 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, in connection with the Credit Agreement, the Initial US Borrower, the Surviving US Borrower and certain of its Affiliates (other than the Additional Grantor) have entered into the Guarantee and Collateral Agreement, dated as of November 23, 2005 (as amended, supplemented or otherwise modified from time to time, the “Guarantee and Collateral Agreement”) in favor of the Administrative Agent for the benefit of the Administrative Agent, the Canadian Administrative Agent and the Lenders;
WHEREAS, the Credit Agreement requires the Additional Grantor to become a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver this Assumption Agreement in order to become a party to the Guarantee and Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and delivering this Assumption Agreement, the Additional Grantor, as provided in Section 8.14 of the Guarantee and Collateral Agreement, hereby becomes a party to the Guarantee and Collateral Agreement as a Grantor thereunder with the same force and effect as if originally named therein as a Grantor and, without limiting the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a Grantor thereunder. The information set forth in Annex 1-A hereto is hereby added to the information set forth in the Schedules to the Guarantee and Collateral Agreement. The Additional Grantor hereby represents and warrants, to the extent applicable, that each of the representations and warranties contained in Section 4 of the Guarantee and Collateral Agreement is true and correct on and as of the date hereof (after giving effect to this Assumption Agreement) as if made on and as of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

 

 

IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above written.
         
  BENEFITSXML, INC.
 		  
  By:   /s/ Patrick J. Pedonti    
    Name:   Patrick J. Pedonti   
    Title:   Senior Vice President and Treasurer   
[Signature Page to Assumption Agreement]

 

 

EX-10.3 4 c15577exv10w3.htm EXHIBIT 10.3 Exhibit 10.3
Exhibit 10.3
FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of April 14, 2011, among SS&C Technologies, Inc., a Delaware corporation (the “Company”), PC Consulting, Inc. (d.b.a. TimeShareWare), a Utah corporation and wholly-owned subsidiary of the Company (“TSW”), and Wells Fargo Bank, National Association, as trustee under the indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company and certain of its subsidiaries have heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of November 23, 2005, providing for the issuance of $205,000,000 aggregate principal amount of 11 3/4 % Senior Subordinated Notes due 2013 (the “Notes”), as supplemented by the First Supplemental Indenture, dated as of April 27, 2006 (the “First Supplemental Indenture”), the Second Supplemental Indenture, dated as of September 1, 2009 (the “Second Supplemental Indenture”), the Third Supplemental Indenture, dated as of December 22, 2009 (the “Third Supplemental Indenture”), and the Fourth Supplemental Indenture, dated as of April 12, 2010 (the “Fourth Supplemental Indenture” and together with the First Supplemental Indenture, Second Supplemental Indenture and Third Supplemental Indenture, the “Existing Supplemental Indentures”);
WHEREAS, the Indenture provides that under certain circumstances a Domestic Subsidiary acquired by the Company after the date of the Indenture will execute and deliver to the Trustee a supplemental indenture pursuant to which such Domestic Subsidiary will become a Guarantor and will unconditionally guarantee all of the Company’s obligations under the Notes and the Indenture on the terms and conditions set forth herein (“Note Guarantee”);
WHEREAS, the Company acquired TSW on December 6, 2010;
WHEREAS, the Company desires to amend and supplement the Indenture to add TSW as a Guarantor thereunder; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, TSW and the Trustee covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition will have the meanings assigned to them in the Indenture.

 

 

 

2. Note Guarantee.
(a) TSW, jointly and severally with all other Guarantors of the Notes, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, regardless of the validity and enforceability of the Indenture, the Notes or the obligations of the Company under the Indenture or the Notes, that:
  (i)   the principal of, interest, premium and Liquidated Damages, if any, on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee thereunder or under the Indenture shall be promptly paid in full or performed, all in accordance with the terms thereof; and
  (ii)   in the case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
(b) Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, TSW agrees that it will be jointly and severally obligated with the other Guarantors to pay the same immediately. TSW agrees that this is a guarantee of payment and not a guarantee of collection.
(c) TSW hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
(d) TSW hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture.
(e) TSW also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section 2.
(f) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

 

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(g) TSW agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. TSW further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby and under the Indenture may be accelerated as provided in Article 6 of the Indenture for the purposes of the Note Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby or under the Indenture, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of the Note Guarantees.
(h) TSW shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantees.
(i) This Note Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Note Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(j) In case any provision of this Note Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired hereby.
(k) Each payment to be made by TSW in respect of this Note Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
3. Subordination of Note Guarantee.
The obligations of TSW under this Note Guarantee pursuant to this Supplemental Indenture shall be junior and subordinated to the prior payment in full in cash or cash equivalents, or such payment duly provided for to the satisfaction of the holders of such Guarantor Senior Debt, of the Guarantor Senior Debt of TSW on the same basis as the Notes are junior and subordinated to Senior Debt of the Company. For the purposes of the foregoing sentence, the Trustee and the Holders shall have the right to receive and/or retain payments by TSW only at such times as they may receive and/or retain payments in respect of the Notes pursuant to the Indenture, including Article 12 thereof, each of the Existing Supplemental Indentures and this Supplemental Indenture.

 

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4. Limitation on Guarantor Liability.
TSW and, by its acceptance of Notes, each Holder, hereby confirm that it is the intention of all such parties that this Note Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to this Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and TSW hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under Article 10 of the Indenture, the applicable Existing Supplemental Indenture or this Supplemental Indenture, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee shall be entitled upon payment in full of all guaranteed obligations under the Indenture, the applicable Existing Supplemental Indenture or this Supplemental Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
5. Execution and Delivery.
(a) To evidence its Note Guarantee set forth in Section 2, TSW hereby agrees that a notation of such Note Guarantee substantially in the form of Exhibit D to the Indenture shall be endorsed by an officer of TSW on each Note authenticated and delivered by the Trustee after the date hereof and that this Supplemental Indenture shall be executed on behalf of TSW by its President or one of its Vice Presidents.
(b) TSW hereby agrees that its Note Guarantee set forth in Section 2 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.
(c) If an Officer whose signature is on this Supplemental Indenture no longer holds that office at the time the Trustee authenticates any Note, this Note Guarantee will be valid nevertheless.
(d) The delivery of any Note by the Trustee, after the authentication thereof under the Indenture, shall constitute due delivery of the Note Guarantee set forth in this Supplemental Indenture on behalf of TSW.

 

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6. Subrogation.
Each Guarantor shall be subrogated to all rights of Holders of Notes against the Company in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 2 hereof, Section 2 of the applicable Existing Supplemental Indenture or Section 10.01 of the Indenture; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under the Indenture or the Notes shall have been paid in full.
7. Benefits Acknowledged.
TSW acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
8. Release of Note Guarantee.
(a) A Note Guarantee by a Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Guarantor, the Company or the Trustee is required for the release of such Guarantor’s Note Guarantee:
  (i)   in connection with any sale or other disposition of all or substantially all of the assets of that Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if the sale or other disposition does not violate Section 4.10 of the Indenture;
 
  (ii)   in connection with any sale or other disposition of all of the Capital Stock of that Guarantor to a Person that is not (either before or after giving effect to such transaction) Sunshine or a Restricted Subsidiary of Sunshine, if the sale or other disposition does not violate Section 5.01 of the Indenture;
 
  (iii)   if the Company designates such Guarantor as an Unrestricted Subsidiary in accordance with Section 4.18 of the Indenture;
 
  (iv)   if the Company exercises its legal defeasance option or covenant defeasance pursuant to Section 8.01 of the Indenture; or
 
  (v)   if such Guarantor is released and discharged from all of its Indebtedness under the Credit Agreement and all of its guarantees of any Indebtedness outstanding under the Credit Agreement and all obligations under any of the Company’s other Indebtedness or any Indebtedness of the Guarantors;
such Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in the Indenture relating to such transaction have been complied with in all material respects.
(b) At the request and at the expense of the Company, the Trustee shall execute and deliver any instrument evidencing such release.

 

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9. Guarantors May Consolidate, Etc. on Certain Terms.
(a) Except as set forth in Section 10.07 of the Indenture, Section 8 of the applicable Existing Supplemental Indenture or Section 8 of this Supplemental Indenture, no Guarantor may sell or otherwise dispose of all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person, other than the Company or another Guarantor, unless: (i) immediately after giving effect to such transaction, no Default or Event of Default exists and (ii) either (A) subject to Section 10.07 of the Indenture, Section 8 of the applicable Existing Supplemental Indenture and Section 8 of this Supplemental Indenture, the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger unconditionally assumes all the obligations of that Guarantor under the Indenture, the applicable Existing Supplemental Indenture, this Supplemental Indenture, its Note Guarantee and the Registration Rights Agreement on the terms set forth herein or therein, pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee; or (B) the Net Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of the Indenture, including without limitation Section 4.10 thereof.
(b) In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of the Indenture, the applicable Existing Supplemental Indenture and this Supplemental Indenture to be performed by the Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same effect as if it had been named as a Guarantor under the Indenture, the applicable Existing Supplemental Indenture or this Supplemental Indenture. All the Note Guarantees so issued will in all respects have the same legal rank and benefit under the Indenture, the applicable Existing Supplemental Indenture and this Supplemental Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of the Indenture, the applicable Existing Supplemental Indenture and this Supplemental Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture, and notwithstanding clauses (a)(ii)(A) or (B) above, nothing contained in the Indenture, the applicable Existing Supplemental Indenture, this Supplemental Indenture or in any of the Notes will prevent any combination or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.
10. No Recourse Against Others. No past, present or future director, officer, employee, incorporator, stockholder or agent of any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantor under the Notes, any Note Guarantees, the Indenture, the applicable Existing Supplemental Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the Securities and Exchange Commission that such a waiver is against public policy.

 

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11. New York Law to Govern. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
12. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy will be an original, but all of them together represent the same agreement.
13. Effect of Headings. The Section headings herein are for convenience only and will not affect the construction hereof.
14. The Trustee. The Trustee will not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by TSW and the Company.
[Remainder of Page Intentionally Left Blank.]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
         
  SS&C TECHNOLOGIES, INC.
 		  
  By:   /s/ Patrick J. Pedonti    
    Name:   Patrick J. Pedonti    
    Title:   Senior Vice President and Chief Financial Officer   
 
  PC CONSULTING, INC.
 		  
  By:   /s/ Patrick J. Pedonti    
    Name:   Patrick J. Pedonti   
    Title:   Senior Vice President and Treasurer   
 
 
WELLS FARGO BANK, NATIONAL ASSOCIATION,
As Trustee
 		  
  By:   /s/ Martin Reed    
    Name:   Martin Reed    
    Title:   Vice President   
[Signature Page to Fifth Supplemental Indenture]

 

 

EX-10.4 5 c15577exv10w4.htm EXHIBIT 10.4 Exhibit 10.4
Exhibit 10.4
SIXTH SUPPLEMENTAL INDENTURE
SIXTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of April 14, 2011, among SS&C Technologies, Inc., a Delaware corporation (the “Company”), BenefitsXML, Inc., a Delaware corporation and wholly-owned subsidiary of the Company (“BenefitsXML”), and Wells Fargo Bank, National Association, as trustee under the indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company and certain of its subsidiaries have heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of November 23, 2005, providing for the issuance of $205,000,000 aggregate principal amount of 11 3/4 % Senior Subordinated Notes due 2013 (the “Notes”), as supplemented by the First Supplemental Indenture, dated as of April 27, 2006 (the “First Supplemental Indenture”), the Second Supplemental Indenture, dated as of September 1, 2009 (the “Second Supplemental Indenture”), the Third Supplemental Indenture, dated as of December 22, 2009 (the “Third Supplemental Indenture”), the Fourth Supplemental Indenture, dated as of April 12, 2010 (the “Fourth Supplemental Indenture”, the Fifth Supplemental Indenture, dated as of April 14, 2011 (the “Fifth Supplemental Indenture” and together with the First Supplemental Indenture, Second Supplemental Indenture, Third Supplemental Indenture, and Fourth Supplemental Indenture, the “Existing Supplemental Indentures”);
WHEREAS, the Indenture provides that under certain circumstances a Domestic Subsidiary acquired by the Company after the date of the Indenture will execute and deliver to the Trustee a supplemental indenture pursuant to which such Domestic Subsidiary will become a Guarantor and will unconditionally guarantee all of the Company’s obligations under the Notes and the Indenture on the terms and conditions set forth herein (“Note Guarantee”);
WHEREAS, the Company acquired BenefitsXML on March 10, 2011;
WHEREAS, the Company desires to amend and supplement the Indenture to add BenefitsXML as a Guarantor thereunder; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, BenefitsXML and the Trustee covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition will have the meanings assigned to them in the Indenture.

 

 

 

2. Note Guarantee.
(a) BenefitsXML, jointly and severally with all other Guarantors of the Notes, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, regardless of the validity and enforceability of the Indenture, the Notes or the obligations of the Company under the Indenture or the Notes, that:
  (i)   the principal of, interest, premium and Liquidated Damages, if any, on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee thereunder or under the Indenture shall be promptly paid in full or performed, all in accordance with the terms thereof; and
  (ii)   in the case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
(b) Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, BenefitsXML agrees that it will be jointly and severally obligated with the other Guarantors to pay the same immediately. BenefitsXML agrees that this is a guarantee of payment and not a guarantee of collection.
(c) BenefitsXML hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
(d) BenefitsXML hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture.
(e) BenefitsXML also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section 2.
(f) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

 

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(g) BenefitsXML agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. BenefitsXML further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby and under the Indenture may be accelerated as provided in Article 6 of the Indenture for the purposes of the Note Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby or under the Indenture, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of the Note Guarantees.
(h) BenefitsXML shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantees.
(i) This Note Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Note Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(j) In case any provision of this Note Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired hereby.
(k) Each payment to be made by BenefitsXML in respect of this Note Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
3. Subordination of Note Guarantee.
The obligations of BenefitsXML under this Note Guarantee pursuant to this Supplemental Indenture shall be junior and subordinated to the prior payment in full in cash or cash equivalents, or such payment duly provided for to the satisfaction of the holders of such Guarantor Senior Debt, of the Guarantor Senior Debt of BenefitsXML on the same basis as the Notes are junior and subordinated to Senior Debt of the Company. For the purposes of the foregoing sentence, the Trustee and the Holders shall have the right to receive and/or retain payments by BenefitsXML only at such times as they may receive and/or retain payments in respect of the Notes pursuant to the Indenture, including Article 12 thereof, each of the Existing Supplemental Indentures and this Supplemental Indenture.

 

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4. Limitation on Guarantor Liability.
BenefitsXML, and by its acceptance of Notes, each Holder, hereby confirm that it is the intention of all such parties that this Note Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to this Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and BenefitsXML hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under Article 10 of the Indenture, the applicable Existing Supplemental Indenture or this Supplemental Indenture, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee shall be entitled upon payment in full of all guaranteed obligations under the Indenture, the applicable Existing Supplemental Indenture or this Supplemental Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
5. Execution and Delivery.
(a) To evidence its Note Guarantee set forth in Section 2, BenefitsXML hereby agrees that a notation of such Note Guarantee substantially in the form of Exhibit D to the Indenture shall be endorsed by an officer of BenefitsXML on each Note authenticated and delivered by the Trustee after the date hereof and that this Supplemental Indenture shall be executed on behalf of BenefitsXML by its President or one of its Vice Presidents.
(b) BenefitsXML hereby agrees that its Note Guarantee set forth in Section 2 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.
(c) If an Officer whose signature is on this Supplemental Indenture no longer holds that office at the time the Trustee authenticates any Note, this Note Guarantee will be valid nevertheless.
(d) The delivery of any Note by the Trustee, after the authentication thereof under the Indenture, shall constitute due delivery of the Note Guarantee set forth in this Supplemental Indenture on behalf of BenefitsXML.

 

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6. Subrogation.
Each Guarantor shall be subrogated to all rights of Holders of Notes against the Company in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 2 hereof, Section 2 of the applicable Existing Supplemental Indenture or Section 10.01 of the Indenture; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under the Indenture or the Notes shall have been paid in full.
7. Benefits Acknowledged.
BenefitsXML acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
8. Release of Note Guarantee.
(a) A Note Guarantee by a Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Guarantor, the Company or the Trustee is required for the release of such Guarantor’s Note Guarantee:
  (i)   in connection with any sale or other disposition of all or substantially all of the assets of that Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if the sale or other disposition does not violate Section 4.10 of the Indenture;
  (ii)   in connection with any sale or other disposition of all of the Capital Stock of that Guarantor to a Person that is not (either before or after giving effect to such transaction) Sunshine or a Restricted Subsidiary of Sunshine, if the sale or other disposition does not violate Section 5.01 of the Indenture;
  (iii)   if the Company designates such Guarantor as an Unrestricted Subsidiary in accordance with Section 4.18 of the Indenture;
  (iv)   if the Company exercises its legal defeasance option or covenant defeasance pursuant to Section 8.01 of the Indenture; or
  (v)   if such Guarantor is released and discharged from all of its Indebtedness under the Credit Agreement and all of its guarantees of any Indebtedness outstanding under the Credit Agreement and all obligations under any of the Company’s other Indebtedness or any Indebtedness of the Guarantors;
such Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in the Indenture relating to such transaction have been complied with in all material respects.

 

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(b) At the request and at the expense of the Company, the Trustee shall execute and deliver any instrument evidencing such release.
9. Guarantors May Consolidate, Etc. on Certain Terms.
(a) Except as set forth in Section 10.07 of the Indenture, Section 8 of the applicable Existing Supplemental Indenture or Section 8 of this Supplemental Indenture, no Guarantor may sell or otherwise dispose of all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person, other than the Company or another Guarantor, unless: (i) immediately after giving effect to such transaction, no Default or Event of Default exists and (ii) either (A) subject to Section 10.07 of the Indenture, Section 8 of the applicable Existing Supplemental Indenture and Section 8 of this Supplemental Indenture, the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger unconditionally assumes all the obligations of that Guarantor under the Indenture, the applicable Existing Supplemental Indenture, this Supplemental Indenture, its Note Guarantee and the Registration Rights Agreement on the terms set forth herein or therein, pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee; or (B) the Net Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of the Indenture, including without limitation Section 4.10 thereof.
(b) In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of the Indenture, the applicable Existing Supplemental Indenture and this Supplemental Indenture to be performed by the Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same effect as if it had been named as a Guarantor under the Indenture, the applicable Existing Supplemental Indenture or this Supplemental Indenture. All the Note Guarantees so issued will in all respects have the same legal rank and benefit under the Indenture, the applicable Existing Supplemental Indenture and this Supplemental Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of the Indenture, the applicable Existing Supplemental Indenture and this Supplemental Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture, and notwithstanding clauses (a)(ii)(A) or (B) above, nothing contained in the Indenture, the applicable Existing Supplemental Indenture, this Supplemental Indenture or in any of the Notes will prevent any combination or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.

 

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10. No Recourse Against Others. No past, present or future director, officer, employee, incorporator, stockholder or agent of any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantor under the Notes, any Note Guarantees, the Indenture, the applicable Existing Supplemental Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the Securities and Exchange Commission that such a waiver is against public policy.
11. New York Law to Govern. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
12. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy will be an original, but all of them together represent the same agreement.
13. Effect of Headings. The Section headings herein are for convenience only and will not affect the construction hereof.
14. The Trustee. The Trustee will not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by BenefitsXML and the Company.
[Remainder of Page Intentionally Left Blank.]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
         
  SS&C TECHNOLOGIES, INC.
 		  
  By:   /s/ Patrick J. Pedonti    
    Name:   Patrick J. Pedonti   
    Title:   Senior Vice President and Chief Financial Officer   
 
  BENEFITSXML, INC.
 		  
  By:   /s/ Patrick J. Pedonti    
    Name:   Patrick J. Pedonti   
    Title:   Senior Vice President and Treasurer   
 
  WELLS FARGO BANK, NATIONAL ASSOCIATION, As Trustee
 		  
  By:   /s/ Martin Reed    
    Name:   Martin Reed   
    Title:   Vice President   
[Signature Page to Sixth Supplemental Indenture]

 

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EX-10.5 6 c15577exv10w5.htm EXHIBIT 10.5 Exhibit 10.5
Exhibit 10.5
NOTE GUARANTEE
For value received, the undersigned hereby, jointly and severally with all other Guarantors of the Notes, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (a) the principal of, interest, premium and Liquidated Damages, if any, on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the undersigned shall be jointly and severally obligated with all other Guarantors to pay the same immediately. The undersigned agrees that that this is a guarantee of payment and not a guarantee of collection.
This Note Guarantee will become effective in accordance with the Indenture and its terms shall be evidenced therein. The validity and enforceability of this Note Guarantee shall not be affected by the fact that it is not affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of November 23, 2005, among Sunshine Acquisition II, Inc., a Delaware corporation, SS&C Technologies, Inc., a Delaware corporation, the Guarantors party thereto and Wells Fargo Bank, National Association, as trustee, as supplemented by the First Supplemental Indenture dated as of April 27, 2006, the Second Supplemental Indenture dated as of September 1, 2009, the Third Supplemental Indenture dated as of December 22, 2009, the Fourth Supplemental Indenture dated as of April 12, 2010 and the Fifth Supplemental Indenture dated as of April 14, 2011 (as further amended or supplemented, the “Indenture”).
THIS NOTE GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. The undersigned hereby agrees to submit to the jurisdiction of the courts of the State of New York in any action or proceeding arising out of or relating to this Note Guarantee.

 

 

 

This Note Guarantee is subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment in full in cash or Cash Equivalents of all Guarantor Senior Debt, whether outstanding on the date of the Indenture or thereafter created, incurred, assumed or guarantee.
This Note Guarantee is subject to release upon the terms set forth in the Indenture.
         
  PC CONSULTING, INC.
 		  
  By:   /s/ Patrick J. Pedonti    
    Name:   Patrick J. Pedonti   
    Title:   Senior Vice President and Treasurer   
[Note Guarantee]

 

 

EX-10.6 7 c15577exv10w6.htm EXHIBIT 10.6 Exhibit 10.6
Exhibit 10.6
NOTE GUARANTEE
For value received, the undersigned hereby, jointly and severally with all other Guarantors of the Notes, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (a) the principal of, interest, premium and Liquidated Damages, if any, on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the undersigned shall be jointly and severally obligated with all other Guarantors to pay the same immediately. The undersigned agrees that that this is a guarantee of payment and not a guarantee of collection.
This Note Guarantee will become effective in accordance with the Indenture and its terms shall be evidenced therein. The validity and enforceability of this Note Guarantee shall not be affected by the fact that it is not affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of November 23, 2005, among Sunshine Acquisition II, Inc., a Delaware corporation, SS&C Technologies, Inc., a Delaware corporation, the Guarantors party thereto and Wells Fargo Bank, National Association, as trustee, as supplemented by the First Supplemental Indenture dated as of April 27, 2006, the Second Supplemental Indenture dated as of September 1, 2009, the Third Supplemental Indenture dated as of December 22, 2009, the Fourth Supplemental Indenture dated as of April 12, 2010, the Fifth Supplemental Indenture dated as of April 14, 2011 and the Sixth Supplemental Indenture dated as of April 14, 2011 (as further amended or supplemented, the “Indenture”).
THIS NOTE GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. The undersigned hereby agrees to submit to the jurisdiction of the courts of the State of New York in any action or proceeding arising out of or relating to this Note Guarantee.

 

 

 

This Note Guarantee is subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment in full in cash or Cash Equivalents of all Guarantor Senior Debt, whether outstanding on the date of the Indenture or thereafter created, incurred, assumed or guarantee.
This Note Guarantee is subject to release upon the terms set forth in the Indenture.
         
  BENEFITSXML, INC.
 		  
  By:   /s/ Patrick J. Pedonti    
    Name:   Patrick J. Pedonti   
    Title:   Senior Vice President and Treasurer   
[Note Guarantee]