JOINT AND SEVERAL
CONTINUING GUARANTY AGREEMENT
This JOINT AND SEVERAL CONTINUING GUARANTY AGREEMENT
dated as of April 13, 2005, jointly and severally by OMR SYSTEMS CORPORATION, a
New Jersey corporation (collectively with each Joinder Party (defined herein),
if any, the "GUARANTOR"), in favor of FLEET NATIONAL BANK, a Bank of America
In consideration of and as a material inducement for the Lender having
extended or in the future extending loans, advances or otherwise giving credit
to, or on behalf of, SS&C Technologies, Inc. a Delaware corporation (the
"BORROWER"), under a $75,000,000 revolving line of credit (the "LOAN"), such
Loan being made pursuant to the terms and conditions of, and evidenced by, among
other things, a Credit Agreement dated as of the date hereof between the
Borrower and the Lender (as the same may be amended, supplemented or modified
from time to time, the "CREDIT AGREEMENT") and a related $75,000,000 revolving
credit promissory note executed by the Borrower in favor of the Lender dated of
even date herewith (as the same may be amended, supplemented, modified or
replaced from time to time, the "NOTE"), the Guarantor does hereby jointly and
severally represent, warrant, covenant and agree as follows:
The term "Obligations" and all other capitalized terms used herein without
definition shall have the respective meanings provided therefor in the Credit
2. GUARANTY OF PAYMENT AND PERFORMANCE.
The Guarantor hereby jointly and severally guarantees to the Lender the
full and punctual payment when due (whether at stated maturity, by required
pre-payment, by acceleration or otherwise), of (a) the principal of and premium,
if any, and interest on the Loan made to the Borrower under the Credit
Agreement, (b) obligations of the Borrower under the Note held by the Lender,
and (c) all other monetary Obligations of the Borrower to the Lender, including,
without limitation, all fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise, in each case whether now in
existence or hereafter incurred or arising, including all such interest, fees,
costs or charges which would become due but for the operation of the automatic
stay pursuant to Section 362(a) of the Federal Bankruptcy Code and the operation
of Sections 502(b) and 506(b) of the Federal Bankruptcy Code (collectively, the
"GUARANTEED OBLIGATIONS"). This Guaranty is an absolute, unconditional and
continuing guaranty of the full and punctual payment when due (whether at stated
maturity, by required pre-payment, by acceleration or otherwise) of all the
Guaranteed Obligations and not of their collectibility only and is in no way
conditioned upon any requirement that the Lender first attempt to collect any of
the Guaranteed Obligations from the Borrower or any other Person
primarily or secondarily liable with respect to any of the Guaranteed
Obligations or resort to any collateral security or other means of obtaining
payment. Should the Borrower default in the payment or performance of any of the
Guaranteed Obligations, the obligations of the Guarantor hereunder with respect
to such Guaranteed Obligations in default shall become immediately due and
payable to the Lender without demand or notice of any nature, all of which are
expressly waived by the Guarantor. Payments by the Guarantor hereunder may be
required by the Lender on any number of occasions. All payments by the Guarantor
hereunder shall be made to the Lender, in the manner and at the place of payment
specified therefor in the Credit Agreement, for the account of the Lender.
3. GUARANTOR'S AGREEMENT TO PAY ENFORCEMENT COSTS, ETC.
The Guarantor further jointly and severally agrees, as the principal
obligor and not as guarantor only, to pay to the Lender, on demand, all costs
and expenses (including court costs and legal expenses) incurred or expended by
the Lender in connection with the Guaranteed Obligations, this Guaranty and the
enforcement thereof, together with interest on amounts recoverable under this
Section 3 from the time when such amounts become due until payment thereof,
whether before or after judgment, at the rate of interest set forth in Section
2.07 of the Credit Agreement, provided that if such interest exceeds the maximum
amount permitted to be paid under applicable law, then such interest shall be
reduced to such maximum permitted amount.
4. WAIVERS BY GUARANTOR; LENDER' FREEDOM TO ACT.
The Guarantor jointly and severally agrees that the Guaranteed Obligations
will be paid and performed strictly in accordance with their respective terms,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any such terms or rights of the Lenders thereto. The
Guarantor waives promptness, diligence, presentment, demand, protest, notice of
acceptance, notice of any Guaranteed Obligations incurred and all other notices
of any kind, all defenses which may be available by virtue of any valuation,
stay, moratorium law or other similar law now or hereafter in effect, any right
to require the marshalling of assets of the Borrower or any other Person
primarily or secondarily liable with respect to any of the Guaranteed
Obligations, and to the fullest extent permitted by applicable law, all
suretyship defenses generally. Without limiting the generality of the foregoing,
the Guarantor agrees to the provisions of the Credit Agreement and any other
Loan Document evidencing, securing or otherwise executed in connection with any
Guaranteed Obligation and agrees that the joint and several obligations of the
Guarantor hereunder shall not be released or discharged, in whole or in part, or
otherwise altered or impaired by (i) the failure of the Lender to assert any
claim or demand or to enforce any right or remedy against the Borrower or any
other Person primarily or secondarily liable with respect to any of the
Guaranteed Obligations; (ii) any extensions, compromise, refinancing,
consolidation or renewals of any Guaranteed Obligation; (iii) any change in the
time, place or manner of payment of any of the Guaranteed Obligations or any
rescissions, waivers, compromise, refinancing, consolidation, amendments or
modifications of any of the terms or provisions of the Credit Agreement or any
other Loan Document evidencing, securing or otherwise executed in connection
with any of the Guaranteed
Obligations; (iv) the addition, substitution or release of any Person primarily
or secondarily liable for any Guaranteed Obligation, (v) the adequacy of any
rights which the Lender may have against any collateral security or other means
of obtaining repayment of any of the Guaranteed Obligations; (vi) the impairment
of any collateral securing any of the Guaranteed Obligations, including without
limitation the failure to perfect or preserve any rights which the Lender might
have in such collateral security or the substitution, exchange, surrender,
release, loss or destruction of any such collateral security; or (vii) any other
act or omission which might in any manner or to any extent vary the risk of the
Guarantor or otherwise operate as a release or discharge of the Guarantor, all
of which may be done without notice to the Guarantor. To the fullest extent
permitted by law, the Guarantor hereby expressly waives any and all rights or
defenses arising by reason of (A) any "one action" or "anti-deficiency" law
which would otherwise prevent the Lender from bringing any action, including any
claim for a deficiency, or exercising any other right or remedy (including any
right of set-off), against the Guarantor before or after the Lender's
commencement or completion of any foreclosure action, whether judicially, by
exercise of power of sale or otherwise, or (B) any other law which in any other
way would otherwise require any election of remedies by the Lender.
5. UNENFORCEABILITY OF GUARANTEED OBLIGATIONS AGAINST BORROWER.
If for any reason the Borrower fails to have a legal existence or is under
no legal obligation to discharge any of the Guaranteed Obligations, or if any of
the Guaranteed Obligations have become irrecoverable from the Borrower by reason
of the Borrower's insolvency, bankruptcy or reorganization or by other operation
of law or for any other reason, this Guaranty shall nevertheless be binding on
the Guarantor to the same extent as if the Guarantor at all times had been the
principal obligor on all such Guaranteed Obligations. In the event that
acceleration of the time for payment of any of the Guaranteed Obligations is
stayed upon the insolvency, bankruptcy or reorganization of the Borrower, or for
any other reason, all such amounts otherwise subject to acceleration under the
terms of the Credit Agreement or any other Loan Document evidencing, securing or
otherwise executed in connection with any Guaranteed Obligation shall be
immediately due and payable by the Guarantor.
6. SUBROGATION; SUBORDINATION.
6.1 WAIVER OF RIGHTS AGAINST BORROWER.
Until the final payment and performance in full of all of the
Guaranteed Obligations and any and all other Obligations of the Borrower
to the Lender under the Loan Documents, (i) the Guarantor shall not
exercise any rights against the Borrower arising as a result of payment by
the Guarantor hereunder, by way of subrogation, reimbursement,
restitution, contribution or otherwise, and will not prove any claim in
competition with the Lender in respect of any payment hereunder in any
bankruptcy, insolvency or reorganization case or proceedings of any
nature; (ii) the Guarantor will not claim any setoff, recoupment or
counterclaim against the Borrower in respect of any liability of the
Guarantor to the Borrower; and (iii) the Guarantor waives any benefit of
and any right to participate in any collateral security which may be held
by the Lender.
The payment of any amounts due with respect to any indebtedness of
the Borrower now or hereafter owed to the Guarantor is hereby subordinated
to the prior
payment in full of all of the Guaranteed Obligations and any and all other
obligations of the Borrower to the Lender or any affiliate of the Lender.
The Lender agrees that prior to the occurrence of any default in the
payment or performance of any of the Guaranteed Obligations, such
indebtedness may be advanced and repaid in accordance with the terms of
such indebtedness, but without acceleration and without any premium
thereon. The Guarantor agrees that, after the occurrence of any default in
the payment or performance of any of the Guaranteed Obligations, the
Guarantor will not collect, demand, sue for or otherwise attempt to
collect any such indebtedness of the Borrower to the Guarantor until all
of the Guaranteed Obligations shall have been paid in full. If,
notwithstanding the foregoing sentence, the Guarantor shall collect,
enforce or receive any amounts in respect of such indebtedness, such
amounts shall be collected, enforced and received by the Guarantor in
trust for the Lender and be paid over to the Lender on account of the
Guaranteed Obligations without affecting in any manner the liability of
the Guarantor under the other provisions of this Guaranty.
6.3 PROVISIONS SUPPLEMENTAL.
The provisions of this Section 6 shall be supplemental to and not in
derogation of any rights and remedies of the Lender or any affiliate of
the Lender under any separate subordination agreement which the Lender may
at any time and from time to time enter into with the Guarantor.
If an Event of Default shall have occurred and be continuing, the Lender
and its Affiliates are hereby authorized at any time and from time to time, to
the fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by the Lender or any such Affiliate to or for the credit or the
account of Guarantor against any and all of the obligations of the Guarantor now
or hereafter existing under this Guaranty or any other Loan Document to the
Lender, irrespective of whether or not the Lender shall have made any demand
under this Guaranty or any other Loan Document and although such obligations of
the Guarantor may be contingent or unmatured or are owed to a branch or office
of the Lender different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of the Lender and its Affiliates
under this Section are in addition to other rights and remedies (including other
rights of setoff) that the Lender or its Affiliates may have. The Lender agrees
to notify the Guarantor promptly after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
8. FURTHER ASSURANCES.
At the request of the Lender, the Guarantor will cooperate with the Lender
and deliver and execute such further instruments and documents as the Lender may
consider necessary or desirable to give full effect to this Guaranty and to
perfect and preserve the rights and powers of the Lender hereunder. In
furtherance, and not in limitation of the foregoing, Guarantor agrees that it
shall comply with any and all reporting and delivery requirements set forth in
Documents. Guarantor acknowledges and confirms that it has established adequate
means of obtaining from the Borrower on a continuing basis all information
desired by such Guarantor concerning the financial condition of the Borrower,
and that Guarantor will look to the Borrower and not to the Lender in order for
Guarantor to keep adequately informed of changes in the Borrower's financial
9. REINSTATEMENT; TERMINATION.
(a) This Guaranty shall remain in full force and effect notwithstanding
any attempt by the Guarantor to revoke this Guaranty. This Guaranty shall
continue to be effective or be reinstated, notwithstanding any such attempted
revocation, if, and to the extent that, at any time any payment made or value
received with respect to any Guaranteed Obligation is rescinded or must
otherwise be returned by Lender upon the insolvency, bankruptcy or
reorganization of the Borrower, or otherwise, all as though such payment had not
been made or value received.
(b) This Guaranty shall remain in full force and effect until payment in
full of all Guaranteed Obligations, the termination of all Commitments under the
Credit Agreement and the performance in full of all obligations of the Guarantor
under this Guaranty, subject to reinstatement as provided in Section 9(a).
Subject to Section 9(a), the Guarantor's payment obligations hereunder shall be
deemed satisfied upon the actual and timely receipt by the Lender of all amounts
10. SUCCESSORS AND ASSIGNS.
The provisions of this Guaranty shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns, except that Guarantor may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Lender.
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in Section 9.06 of
the Credit Agreement and, to the extent expressly contemplated by the Credit
Agreement, the Related Parties of the Lender) any legal or equitable right,
remedy or claim under or by reason of this Guaranty.
11. AMENDMENTS AND WAIVERS.
No amendment or waiver of any provision of this Guaranty shall be
effective unless in writing signed by the Lender and Guarantor, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
All notices and other communications called for hereunder shall be made in
writing and, unless otherwise specifically provided herein, shall be made, given
and deemed effective in the manner set forth in Section 9.02 of the Credit
13. GOVERNING LAW; CONSENT TO JURISDICTION.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. GUARANTOR IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT OF THE
SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT
THAT THE LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST THE GUARANTOR OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO
IN PARAGRAPH (B) OF THIS SECTION. GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM
TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. GUARANTOR IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN Section 9.02 OF THE CREDIT
AGREEMENT. NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
14. WAIVER OF JURY TRIAL.
GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). GUARANTOR (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
15. USA PATRIOT ACT NOTICE.
The Lender hereby notifies Guarantor that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Guarantor, which information includes the name and address of
each Guarantor and other information that will allow the Lender to identify the
Guarantor in accordance with the Act.
16. LIMITATION ON GUARANTEED OBLIGATIONS.
Notwithstanding any provision herein to the contrary, Guarantor's
liability hereunder shall be limited to an amount not to exceed as of any date
of determination the greater of:
(a) the net amount of all L/C Obligations and Committed Loans advanced
under the Credit Agreement and directly or indirectly re-loaned or otherwise
transferred to, or incurred for the benefit of, such Guarantor, plus interest
thereon at the rate specified in the Credit Agreement; or
(b) the amount which could be claimed by the Lender from such Guarantor
under this Guaranty without rendering such claim voidable or avoidable under
Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state
Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar
statute or common law after taking into account, among other things, such
Guarantor's right of contribution and indemnification from each other Guarantor
under Section 17.
17. CONTRIBUTION WITH RESPECT TO GUARANTEED OBLIGATIONS.
(a) To the extent that any payment made by a Guarantor or from its
property under this Guaranty or any Loan Document of all or any of the
Guaranteed Obligations (a "GUARANTOR PAYMENT"), taking into account all other
Guarantor Payments then previously or concurrently made by the other Guarantors
or from their properties, exceeds the amount which such Guarantor would
otherwise have paid if each Guarantor had paid the aggregate Guaranteed
Obligations satisfied by such Guarantor Payment in the same proportion that such
Guarantor's "Allocable Amount" (as defined below) (in effect immediately prior
to such Guarantor Payment) bore to the aggregate Allocable Amounts of all of
Guarantors in effect immediately prior to the making of such Guarantor Payment,
then, following indefeasible payment in full in cash of the Obligations and
termination of the Commitments, such Guarantor shall be entitled to receive
contribution and indemnification payments from, and be reimbursed by, each of
the other Guarantors for the
amount of such excess, ratably based upon their respective Allocable Amounts in
effect immediately prior to such Guarantor Payment. If and whenever any right of
reimbursement or contribution becomes enforceable by any Guarantor against any
other Guarantor under this Section 16, such Guarantor shall be entitled, subject
to and upon payment in full of the Obligations, to be subrogated (equally and
ratably with all other Guarantors entitled to reimbursement or contribution from
any other Guarantor as set forth in this Section 17) to any security interest
that may then be held by the Lender upon any Collateral granted to it under the
Security Documents. If subrogation is demanded by any Guarantor, then (after
payment in full of all the Obligations and termination of all Commitments) at
such Guarantor's sole cost and expense, Lender shall deliver to the Guarantors
making such demand, or to a representative of such Guarantors or the Guarantors
generally, an instrument reasonably satisfactory to the Lender transferring
whatever security interest the Lender then may hold in whatever Collateral may
then exist that was not previously released or disposed of by the Lender.
(b) As of any date of determination, the "ALLOCABLE AMOUNT" of any
Guarantor shall be equal to the maximum amount of the claim which could then be
recovered from such Guarantor under this Guaranty without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(c) This Section 17 is intended only to define the relative rights of
Guarantors and nothing set forth in this Section 17 is intended to or shall
impair the obligations of Guarantors, jointly and severally, to pay any amounts
as and when the same shall become due and payable in accordance with the terms
of this Guaranty.
(d) The rights of the parties under this Section 17 shall be exercisable
upon the full and indefeasible payment of the Guaranteed Obligations and the
termination of the Credit Agreement and the other Loan Documents.
(e) The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of any Guarantor to which such
contribution and indemnification is owing.
This Guaranty constitutes the entire agreement of the Guarantor with
respect to the matters set forth herein. The rights and remedies herein provided
are cumulative and not exclusive of any remedies provided by law or any other
agreement, and this Guaranty shall be in addition to any other guaranty of or
collateral security for any of the Guaranteed Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for the
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms defined.
19. COMMERCIAL TRANSACTIONS.
GUARANTOR REPRESENTS, WARRANTS AND ACKNOWLEDGES THAT THE TRANSACTIONS OF
WHICH THIS GUARANTY IS PART ARE COMMERCIAL TRANSACTIONS.
20. JOINDER PARTIES.
Guarantor hereby acknowledges and agrees that, from time to time after the
date of this Guaranty, certain Domestic Subsidiaries of Borrower may become a
party to this Guaranty (each, a "JOINDER PARTY") and be bound by all the terms,
provisions and conditions contained herein, pursuant to, and in furtherance of,
the Borrower's covenants and obligations set forth in Section 6.12 of the Credit
Agreement. Each such Joinder Party shall constitute a "Guarantor" for all
purposes hereunder with the same force and effect as if originally named as a
21. OTHER GUARANTORS.
Each Guarantor acknowledges that other Guarantors and Joinder Parties have
or may also from time to time become primarily or secondarily liable with
respect to any of the Guaranteed Obligations, in which event the liability of
the Guarantors hereunder shall be joint and several. Each Guarantor further
acknowledges that the failure of any of the other Guarantors, if any, to execute
and deliver their respective guarantees hereunder shall not discharge the
liability of such Guarantor under this Guaranty.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
OMR SYSTEMS CORPORATION
By: /s/ Patrick J. Pedonti
Name: Patrick J. Pedonti