EXHIBIT 10.4
ASSUMPTION AGREEMENT, dated as of April 27, 2006, made by Cogent
Management 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.
COGENT MANAGEMENT INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman of the Board
2
Annex 1-A to
Assumption Agreement
Supplement to Schedule 1
None.
Supplement to Schedule 2
PLEDGED STOCK:
Issuer Class of Stock Stock Certificate No. No. of Shares
--------------------- ------------------------ ------------------------ -----------------------
Cogent Management Inc. voting common shares 6 100
without par value
Cogent Management Inc. non-voting common shares 7 25
without par value
Supplement to Schedule 3
UNIFORM COMMERCIAL CODE FILINGS
GRANTOR OFFICE
--------------------- --------------------------------
Cogent Management Inc. New York Secretary of State
INTELLECTUAL PROPERTY FILINGS
None.
ACTIONS WITH RESPECT TO PLEDGED STOCK
All certificates representing any Pledged Stock to be delivered to the
Administrative Agent.
OTHER ACTIONS
None.
Supplement to Schedule 4
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Jurisdiction of
Grantor Organization Location of Chief Executive Office
---------------------- ----------------------- -----------------------------------------
Cogent Management Inc. One Radisson Plaza, 00xx Xxxxx
Xxx Xxxx Xxx Xxxxxxxx, XX 00000
Supplement to Schedule 5
LOCATIONS OF INVENTORY AND EQUIPMENT
Grantor Locations
---------------------- ---------------------
Cogent Management Inc. New York
Supplement to Schedule 6
Cogent Management Inc. (the "Company") owns the following:
Common law service xxxx: Cogent Management Inc.
Domain name registrations Xxxxxxxxx.xxx
Xxxxxxxxxxxxxxx.xxx
Customer Deliverables(1) Portfolio Accounting System
Portfolio Brokerage Accounting System
----------
(1) Customer Deliverables are the portfolio accounting systems provided to
certain customers of the Company.
ii
Licenses Relating to Company Intellectual Property(2):
Cogent Management Inc. has granted source code rights to Metropolitan Capital
Partners II, L.P. and Xxxxxxx Capital Management, L.P., per an engagement letter
dated October 14, 1998.
The Company has granted site usage rights to all users of the Portfolio
Accounting System per the following engagement letters (date of the letter in
parentheses):
(1) Metropolitan Capital Partners II, L.P. and Xxxxxxx Capital Management
(10/14/1998)
(2) Gotham Capital (5/1/2000)
(3) Sidus Investment Management, LLC (11/16/2004)
(4) Xxxxxx Capital, LLC (6/1/2005)
(5) Xxxxxxxx Partners, Inc. (12/8/1999)
(6) Ithaca Partners, LP (12/26/2000)
(7) Enwhy Corporation (12/11/2000)
The Company has granted site usage rights to the only user of the Portfolio
Brokerage Accounting System per the following engagement letter:
(1) Kaupthing Securities, Inc. (11/16/2004)
Company Intellectual Property Not Owned by the Company:
The Company has full but not exclusive rights to certain software custom
designed and used in its reporting web site; such software was developed by
Artware Graphic Design.
----------
(2) Company Intellectual Property means the Intellectual Property owned by or
licensed to the Company and covering, incorporated in, underlying or used
in connection with the Customer Deliverables or the Internal Systems (the
internal systems of the Company that are used in its business or
operations, including computer hardware systems, software applications and
embedded systems).
iii
The Company has full rights to the source code, and is allowed to use the
software in any manner as deemed necessary in the conduct of its business.
iv
