EXHIBIT 4.2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of April 27, 2006, among SS&C Technologies, Inc., a Delaware corporation (the
"Company"), Cogent Management Inc., a New York corporation and wholly owned
subsidiary of the Company ("Cogent"), and Xxxxx Fargo Bank, National
Association, as trustee under the indenture referred to below (the "Trustee").
WITNESSETH
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");
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 all of the issued and outstanding shares
of capital stock of Cogent pursuant to that certain Stock Purchase Agreement,
dated as of February 28, 2006, by and among the Company, Cogent and its
stockholders;
WHEREAS, the Company desires to amend and supplement the Indenture to
add Cogent 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, Cogent 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) Cogent, 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, Cogent agrees that it will be jointly and
severally obligated with the other Guarantors to pay the same immediately.
Cogent agrees that this is a guarantee of payment and not a guarantee of
collection.
(c) Cogent 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) Cogent 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) Cogent 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) Cogent 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. Cogent 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
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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) Cogent 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, 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 Cogent 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 Cogent 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 Cogent 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 Cogent 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,
and this Supplemental Indenture.
4. Limitation on Guarantor Liability.
Cogent, 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.
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To effectuate the foregoing intention, the Trustee, the Holders and Cogent
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 or under 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 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, Cogent 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 Cogent on each
Note authenticated and delivered by the Trustee after the date hereof and that
this Supplemental Indenture shall be executed on behalf of Cogent by its
President or one of its Vice Presidents.
(b) Cogent 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 Cogent.
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 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.
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Xxxxxx 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 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
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the 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, 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 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 or this Supplemental Indenture. All the Note
Guarantees so issued will in all respects have the same legal rank and benefit
under the Indenture and this Supplemental Indenture as the Note Guarantees
theretofore and thereafter issued in accordance with the terms of the 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, 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 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.
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.
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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 Cogent 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/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chairman of the Board and
Chief Executive Officer
GUARANTOR:
COGENT MANAGEMENT INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
As Trustee
By: /s/ Xxxxxx X. X'Xxxxxxx
--------------------------------
Name: Xxxxxx X. X'Xxxxxxx
Title: Vice President
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