SECOND SUPPLEMENTAL INDENTURE
Exhibit 10.3
SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of
September 1, 2009, among SS&C Technologies, Inc., a Delaware corporation (the “Company”),
SS&C Technologies Connecticut, LLC, a Connecticut limited liability company and wholly owned
subsidiary of the Company (“SS&C Connecticut”), and Xxxxx 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 (the “First
Supplemental Indenture”), dated as of April 27, 2006;
WHEREAS, the Indenture provides that under certain circumstances a Domestic
Subsidiary created 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 formed SS&C Connecticut on August 28, 2009;
WHEREAS, the Company desires to amend and supplement the Indenture to add SS&C Connecticut 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, SS&C Connecticut 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) SS&C Connecticut, 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, SS&C Connecticut agrees that it will be jointly and severally obligated with the
other Guarantors to pay the same immediately. SS&C Connecticut agrees that this is a guarantee of
payment and not a guarantee of collection.
(c) SS&C Connecticut 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) SS&C Connecticut 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) SS&C Connecticut 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.
(g) SS&C Connecticut 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. SS&C Connecticut 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,
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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) SS&C Connecticut 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 SS&C Connecticut 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 SS&C Connecticut 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 SS&C Connecticut 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 SS&C
Connecticut 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, the First Supplemental Indenture and this
Supplemental Indenture.
4. Limitation on Guarantor Liability.
SS&C Connecticut, 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
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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 SS&C Connecticut
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 First 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 First
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, SS&C Connecticut 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 SS&C Connecticut on each Note authenticated and delivered by the
Trustee after the date hereof and that this Supplemental Indenture shall be executed on behalf of
SS&C Connecticut by its President or one of its Vice Presidents.
(b) SS&C Connecticut 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 SS&C Connecticut.
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 First 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.
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7. Benefits Acknowledged.
SS&C Connecticut 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.
9. Guarantors May Consolidate, Etc. on Certain Terms.
(a) Except as set forth in Section 10.07 of the Indenture, Section 8 of the First Supplemental
Indenture or Section 8 of this Supplemental Indenture, no Guarantor may sell or
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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
First 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 First 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 First
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 First 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 First Supplemental Indenture and this Supplemental
Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of
the Indenture, the First 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 First 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 First 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.
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 SS&C Connecticut 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. |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President, Chief Financial Officer | |||
| Guarantor: | ||||
| SS&C TECHNOLOGIES CONNECTICUT, LLC | ||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx
|
|||
| Title: President | ||||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, | ||||
| As Trustee | ||||
By:
|
/s/ Xxxxxx Xxxx
|
|||
| Title: Vice President | ||||
[Signature Page to Second Supplemental Indenture]
