Exhibit 10.1
EXECUTION VERSION
Date: 1 December 2021
INTERIM FACILITY AGREEMENT
BOLT BIDCO LIMITED and SS&C TECHNOLOGIES HOLDINGS, INC. |
arranged by |
ROYAL BANK OF CANADA |
with |
ROYAL BANK OF CANADA |
and |
ROYAL BANK OF CANADA
|
DOCPROPERTY DPWPathText \* MERGEFORMAT #95204147v13
TABLE OF CONTENTS
Page
1. | INTERPRETATION | 1 |
2. | THE INTERIM FACILITY - AVAILABILITY | 1 |
3. | THE MAKING OF THE INTERIM LOANS | 2 |
4. | OBLIGORS' AGENT | 3 |
5. | NATURE OF AN INTERIM FINANCE PARTY'S RIGHTS AND OBLIGATIONS | 4 |
6. | UTILISATION | 5 |
7. | REPAYMENT AND PREPAYMENT | 6 |
8. | INTEREST | 7 |
9. | TAXES | 10 |
10. | INCREASED COSTS | 15 |
11. | PAYMENTS | 18 |
12. | FEES AND EXPENSES | 21 |
13. | INDEMNITIES | 23 |
14. | SECURITY AND GUARANTEE | 26 |
15. | AGENTS AND ARRANGER | 28 |
16. | PRO RATA PAYMENTS | 36 |
17. | SET-OFF | 37 |
18. | NOTICES | 37 |
19. | CONFIDENTIALITY | 39 |
20. | KNOW YOUR CUSTOMER REQUIREMENTS | 40 |
21. | REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT | 41 |
22. | CHANGES TO PARTIES | 43 |
23. | IMPAIRMENT AND REPLACEMENT OF INTERIM FINANCE PARTIES | 49 |
24. | CONDUCT OF BUSINESS BY THE INTERIM FINANCE PARTIES | 49 |
25. | AMENDMENTS AND WAIVERS | 49 |
26. | MISCELLANEOUS | 51 |
27. | GOVERNING LAW | 52 |
28. | JURISDICTION | 52 |
Schedule 1 Definitions and Interpretation | 55 | |
Schedule 2 Form of Drawdown Request | 74 | |
Schedule 3 Conditions Precedent | 75 | |
Schedule 4 Guarantee and Indemnity | 78 | |
Schedule 5 Major Representations, Undertakings and Events of Default | 82 | |
Schedule 6 Impairment and Replacement of Interim Finance Parties | 87 | |
Schedule 7 Form of Transfer Certificate | 101 | |
Schedule 8 Form of Assignment Agreement | 103 | |
Schedule 9 The Original Interim Lender | 106 |
THIS AGREEMENT is made on 1 DECEMBER 2021 between:
(1) BOLT BIDCO LIMITED, a limited liability company incorporated under the laws of England and Wales with registration number 13765170 (the Borrower);
(2) SS&C TECHNOLOGIES HOLDINGS, INC., a Delaware corporation (the Guarantor);
(3) ROYAL BANK OF CANADA as Arranger (the Arranger);
(4) THE FINANCIAL INSTITUTION listed in Schedule 9 (The Original Interim Lender) as lenders (the Original Interim Lender);
(5) ROYAL BANK OF CANADA as agent of the other Interim Finance Parties (the Interim Facility Agent); and
(6) ROYAL BANK OF CANADA as security agent for the Interim Finance Parties (the Interim Security Agent).
Terms defined in Schedule 1 (Definitions and Interpretation) to this Agreement have the same meanings when used in this Agreement. Each Schedule to this Agreement forms part of the terms of this Agreement.
Subject to the terms of this Agreement, the Interim Lenders make available to the Borrower an interim term loan facility in an aggregate amount equal to the Total Interim Commitments (the Interim Facility) available to be utilised in US Dollars.
The undrawn Interim Commitments of each Interim Lender under the Interim Facility will be automatically cancelled at 11:59 p.m. in New York on the last day of the Certain Funds Period.
The Borrower (or the Obligors’ Agent on its behalf) may, by two (2) Business Days’ prior written notice to the Interim Facility Agent, at any time cancel any undrawn amount of the Interim Facility. Any cancellation shall reduce the Interim Commitments of the Interim Lenders rateably under the Interim Facility.
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Notwithstanding any other provision of any Interim Finance Document, during the Certain Funds Period none of the Interim Finance Parties shall:
(a) refuse to participate in or make available any Interim Loan, provided that the condition in paragraph (a)(i) of Clause 3.1 (Conditions Precedent) above has been satisfied or waived in accordance with Clause 3.1 (Conditions Precedent);
(b) be entitled to take any action or exercise any right to rescind, terminate or cancel this Agreement (or any provision hereof or obligation hereunder) or any Interim Loan or Interim Commitment;
(c) exercise any right of set-off or counterclaim in respect of any Interim Loan or Interim Commitment;
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(d) accelerate any Interim Loan or otherwise demand or require repayment or prepayment of any sum from (or take any other action against) any Obligor;
(e) enforce (or instruct the Interim Security Agent to enforce) any Security Interest granted by or over any member of the Group; or
(f) take any other action, exercise any right or make or enforce any claim which would directly or indirectly prevent any Interim Loan from being made,
unless at any time any of the conditions in paragraphs (a)(ii) and (a)(iii) (inclusive) of Clause 3.1 (Conditions Precedent) above are not satisfied (which, in respect of paragraph (a)(iii) of Clause 3.1 (Conditions Precedent) above, shall allow the relevant Interim Lender to take such action in respect of itself only and shall not permit any other Interim Finance Parties to take such action), provided that, immediately upon the expiry of the Certain Funds Period, all such rights, remedies and entitlements shall be available to the Interim Finance Parties, notwithstanding that they may not have been used or been available for use during the Certain Funds Period.
The proceeds of each Interim Loan, are to be applied, directly or indirectly, to finance or refinance (i) Acquisition Costs and (ii) general corporate purposes and/or replace cash on the balance sheet.
Notwithstanding any other term of this Agreement or any other Interim Finance Document, none of:
in any case, shall constitute, or result in, a breach of any representation, warranty, undertaking or other term of the Interim Finance Documents or a Default or a Major Event of Default, actual or potential, and each such event shall be expressly permitted under the terms of the Interim Finance Documents, including the use of the proceeds of any Interim Loan for any purpose set out in the Funds Flow Statement.
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and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including any Drawdown Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication and each Interim Finance Party may rely on any action taken by the Obligors’ Agent on behalf of that Obligor.
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A Drawdown Request for an Interim Loan will not be regarded as having been duly completed unless:
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The rate of interest on each Interim Loan for its Interest Period is the percentage rate per annum equal to the aggregate of:
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If the Funding Cost is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation by 12.00 noon (London time) on the Rate Fixing Day the
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applicable Funding Cost shall be determined on the basis of the quotations of the remaining Reference Banks, subject to Clause 8.7 (Market Disruption Notice).
If, in relation to any actual or proposed Interim Loan (a Disrupted Loan):
the Interim Facility Agent will promptly give notice of that event to the Obligors’ Agent and the Interim Lenders (a Market Disruption Notice).
If a Market Disruption Notice is given in respect of a proposed Disrupted Loan, the interest rate applicable on each Interim Lender’s participation in that Disrupted Loan will be the rate certified by that Interim Lender to the Interim Facility Agent no later than five (5) Business Days after the Rate Fixing Day to be its cost of funds (from any source which it may reasonably select) plus the Margin.
If the Interim Closing Date occurs after 31 December 2021, the Borrower and the Lenders shall use reasonable endeavours and negotiate in good faith to agree on customary SOFR provisions which shall include a credit spread adjustment which shall not exceed 0.10% for any interest or payment period. For the avoidance of doubt, the credit spread adjustments shall apply to the adjusted SOFR rate utilised in the Interim Finance Documents, to the extent applicable.
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No Obligor is required to make any increased payment to an Interim Lender under Clause 9.1 (Gross-up) by reason of a Tax Deduction if:
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if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Interim Finance Party or if that Tax is a franchise Tax, branch profits Tax or similar Tax; or
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(c) An Interim Finance Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Obligors’ Agent and the Interim Facility Agent of the event which has given, or will give, rise to the claim.
If an Obligor pays an additional amount under Clause 9.1 (Gross-up) or Clause 9.3 (Tax indemnity) and an Interim Finance Party determines (acting reasonably and in good faith) that it (or one of its Affiliates) has obtained and utilised a Tax Credit attributable to that additional amount, then, subject to the penultimate sentence of this Clause 9.4, that Interim Finance Party shall pay to that Obligor or Group Company (as the case may be) an amount equal to such Tax Credit (but only to the extent of the additional amounts paid under Clause 9.1 (Gross-up) or Clause 9.3 (Tax indemnity) with respect to the Taxes giving rise to such Tax Credit and subject to that penultimate sentence), net of all out-of-pocket expenses (including Taxes) of such Interim Finance Party and its Affiliates (as applicable) and without interest (other than any interest paid by the relevant governmental authority with respect to such Tax Credit; provided that, the Obligor, upon the request of such Interim Finance Party, shall repay to such Interim Finance Party the amount paid over pursuant to this Clause 9.4 (plus any penalties, interest or other charges imposed by the relevant governmental authority) in the event that such Interim Finance Party (or any of its Affiliates) is required to repay such Tax Credit to such governmental authority or it otherwise transpires that the interim Finance Party is unable to obtain and utilize the Tax Credit. Notwithstanding anything to the contrary in this Clause 9.4, in no event will the Interim Finance Party be required to pay any amount to the Obligor pursuant to this Clause 9.4 the payment of which would place the Interim Finance Party and its Affiliates in a less favorable net after-Tax position than the Interim Finance Party and its Affiliates would have been in if the Tax subject to indemnification and giving rise to such Tax Credit had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Clause 9.4 shall not be construed to require any Interim Finance Party to make available its Tax returns (or the Tax returns of any Affiliate) (or any other information relating to its or any of its Affiliate’s Taxes that it deems confidential) to the Obligor or any other Person.
The Obligors’ Agent shall pay (or shall procure that another Group Company pays) within five (5) Business Days of demand and indemnify each Interim Finance Party against all losses, costs and liabilities which that Interim Finance Party (directly or indirectly) suffers or incurs in relation to any stamp duty, stamp duty reserve tax, transfer tax, registration or other similar Tax payable in respect of any Interim Finance Document except for:
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suffered or incurred by a Claiming Party (or any Affiliate of it) as a result of it having entered into or performing its obligations under any Interim Finance Document or making or maintaining its participation in any Interim Loan; and
then that Interim Finance Party will, in consultation with the Obligors’ Agent, take all reasonable steps to mitigate the effect of those circumstances (including by transferring its rights and obligations under the Interim Finance Documents to an Affiliate or changing its Facility Office or transferring its Interim Commitments and participation in each Interim Loan for cash at par plus all accrued but unpaid interest thereon to another bank, financial institution or other person nominated for such purpose by the Obligors’ Agent).
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If, after the date of this Agreement, it becomes unlawful in any applicable jurisdiction for an Interim Finance Party to participate in the Interim Facility, maintain its Interim Commitment or participation in any Interim Loan or perform any of its obligations under any Interim Finance Documents, then:
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All payments made or to be made by an Obligor under the Interim Finance Documents must be paid in full without (and free and clear of any deduction for) set-off or counterclaim.
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The Obligors’ Agent shall (or shall procure that another Group Company will) pay to the Interim Facility Agent, within ten (10) Business Days of demand, for the account of the Interim Finance Parties the amount of all reasonable costs and expenses (including legal fees subject to any agreed limits) properly incurred by them or any of their Affiliates in connection with:
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provided that if the Interim Facility is not drawn no such costs and expenses will be payable (other than legal costs subject to any agreed limits).
The Obligors’ Agent shall (or shall procure that another Group Company will) pay to each Interim Finance Party, within five (5) Business Days of demand, the amount of all costs and expenses (including legal fees reasonably incurred) properly incurred by it in connection with the enforcement of, or the preservation of any rights under, any Interim Finance Document and any proceedings instituted by or against the Interim Security Agent as a consequence of taking or holding the Interim Security or enforcing these rights.
The Obligors’ Agent shall (or shall procure that another Group Company will) pay to the Interim Facility Agent, within ten (10) Business Days of demand, all reasonable costs and expenses (including reasonable legal fees) properly incurred by the Interim Facility Agent or Interim Security Agent in connection with responding to, evaluating, negotiating or complying with any amendment, waiver or consent requested or required by the Obligors’ Agent, subject always to any limits as agreed between the Obligors’ Agent and the Arranger from time to time.
The Borrower shall (or shall procure that another Group Company will) pay the Interim Finance Parties’ fees in accordance with the Interim Facility Fee Letter.
Notwithstanding anything to the contrary in any Interim Finance Document (including Clauses 12.1 (Costs and expenses) to 12.5 (Other fees) above):
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The Obligors’ Agent will (or shall procure that another Group Company will) indemnify each Interim Finance Party within ten (10) Business Days of demand (which demand must be accompanied by reasonable details and calculations of the amount demanded) against any loss or liability (not including loss of future Margin and/or profit) which that Interim Finance Party incurs as a result of:
including any loss on account of funds borrowed, contracted for or utilised to fund any Interim Loan or amount payable under any Interim Finance Document.
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that Obligor shall, as an independent obligation, within ten (10) Business Days of demand indemnify the relevant Interim Finance Party for any loss or liability incurred by it as a result of the conversion, provided that, if the amount produced or payable as a result of the conversion is greater than the relevant amount due, that Interim Finance Party will promptly refund such excess amount to the relevant Obligor.
The Obligors’ Agent shall (or shall procure that another Group Company will) within ten (10) Business Days of demand (which demand must be accompanied by reasonable details and calculations of the amount demanded), indemnify the Interim Facility Agent against any cost, loss or liability incurred by the Interim Facility Agent (acting reasonably) as a result of:
except where the cost, loss or liability incurred by the Interim Facility Agent is a result of fraud, wilful misconduct, gross negligence or default of the Interim Facility Agent.
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except where, as the case may be, the cost, loss or liability incurred by the Interim Security Agent, Receiver and/or Delegate is a result of fraud, wilful misconduct, gross negligence or default of the Interim Security Agent, Receiver and/or Delegate.
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The Interim Security Agent is not liable or responsible to any other Interim Finance Party for:
The Interim Security Agent is not obliged to hold in its own possession any Interim Security Document, title deed or other document in connection with any asset over which a Security Interest is intended to be created by an Interim Security Document. Without prejudice to the above, the Interim Security Agent may allow any bank providing safe custody services or any professional adviser to the Interim Security Agent to retain any of those documents in its possession.
Except as otherwise provided in any Interim Security Document, all moneys received by the Interim Security Agent under the Interim Finance Documents may be:
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If there is any conflict between the provisions of this Agreement and any Interim Security Document with regard to instructions to or other matters affecting the Interim Security Agent, this Agreement will prevail.
the Interim Security Agent is irrevocably authorised to execute on behalf of each Interim Finance Party, each Obligor (and at the cost of the Obligors’ Agent) the releases and disposals referred to in paragraph (b) below.
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All amounts from time to time received or recovered by the Interim Security Agent in connection with the realisation or enforcement of any Interim Security shall be applied by the Interim Security Agent in the order of priority set out in Clause 11.7 (Application of proceeds).
If applicable to any trust created in this Agreement, the perpetuity period for that trust is 125 years.
The provisions of Schedule 4 (Guarantee and Indemnity) are incorporated into this Clause 14 by reference.
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Each Agent may:
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Neither the Arranger nor the Agents are:
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Nothing in this Agreement shall oblige any Agent or any Arranger to carry out know your customer or other checks in relation to any person on behalf of any Interim Lender and each Interim Lender confirms to the Agents and the Arranger that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agents or the Arranger.
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(whether arising under this Clause 15.10 or otherwise) which relate to an Erroneous Payment will be affected by any act, omission, matter or thing which, but for this paragraph (b), would reduce, release or prejudice any such obligation or remedy (whether or not known by the Interim Facility Agent or any other Interim Finance Party).
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Subject to Clause 16.3 (Exceptions to sharing), if any amount owing by any Obligor under any Interim Finance Document to an Interim Lender (the Recovering Interim Lender) is discharged by payment, set-off or any other manner other than through the Interim Facility Agent in accordance with Clause 11 (Payments) (the amount so discharged being a Recovery), then:
If any Recovery has to be wholly or partly refunded by the Recovering Interim Lender after it has paid any amount to the Interim Facility Agent under paragraph (c) of Clause 16.1 (Recoveries), each Interim Lender to which any part of the Excess Recovery (or amount in respect
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of it) was distributed will, on request from the Recovering Interim Lender, pay to the Recovering Interim Lender that Interim Lender’s pro rata share of the amount (including any related interest) which has to be refunded by the Recovering Interim Lender.
Notwithstanding Clause 16.1 (Recoveries), no Recovering Interim Lender will be obliged to pay any amount to the Interim Facility Agent or any other Interim Lender in respect of any Recovery:
The provisions of this Clause 16 shall not constitute a charge by any Interim Lender over all or any part of any amount received or recovered by it under any of the circumstances mentioned in this Clause 16.
If a Major Event of Default has occurred and is continuing, an Interim Finance Party may set off any matured obligation (to the extent beneficially owned by the Interim Finance Party) due and payable by an Obligor to it under an Interim Finance Document against any matured obligation due and payable by it to that Obligor, regardless of currency, place of payment or booking branch of either obligation. The relevant Interim Finance Party may convert either obligation at a market rate of exchange in its ordinary course of business in order to effect such set-off.
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No personal liability shall attach to any director, manager, officer, employee or other individual signing a certificate or other document on behalf of a Group Company which proves to be incorrect in any way, unless that individual acted fraudulently in giving that certificate or other document, in which case, any liability will be determined in accordance with applicable law.
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If:
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obliges the Interim Facility Agent or any Interim Lender (or, in the case of paragraph (a)(i) of Clause 19 (Confidentiality) above, any prospective new Interim Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Obligors must promptly on the request of any Interim Finance Party supply to that Interim Finance Party any documentation or other evidence which is reasonably requested by that Interim Finance Party (whether for itself, on behalf of any Interim Finance Party or any prospective new Interim Lender) to enable an Interim Finance Party or prospective new Interim Lender to complete all applicable know your customer requirements. For the avoidance of doubt, any notification given by the Interim Facility Agent pursuant to paragraph (b) of Clause 3.1 (Conditions Precedent) shall remain valid and in full force and effect notwithstanding the occurrence of any of the circumstances in paragraphs (a) to (c) (inclusive).
Major Undertakings:
Anti-Money Laundering and Sanctions Undertaking:
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Acquisition Undertakings:
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The Obligors may not assign, novate or transfer all or any part of their rights and obligations under any Interim Finance Documents.
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provided that, in all cases (and regardless of whether a Major Event of Default has occurred and is continuing) no assignment, transfer or sub-participation shall be made to any of the following persons unless the prior written consent of the Obligors’ Agent (in its sole discretion) is obtained:
(1) an Industry Competitor; or
(2) any person that is (or would, upon becoming an Interim Lender, be) a Defaulting Lender,
and further provided that, in all cases (other than where a Major Event of Default under paragraphs 1, 5 and 6 of Part III (Major Events of Default) of Schedule 5 (Major Representations, Undertakings and Events of Default) has occurred and is continuing) no assignment, transfer or sub-participation shall be made to a Loan to Own/Distressed Investor unless the prior written consent of the Obligors’ Agent (in its sole discretion) is obtained.
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the New Interim Lender shall, on or before the date upon which an assignment or transfer to it takes effect pursuant to this Clause 22, pay to the Interim Facility Agent (for its own account) a fee of $2,000.
and any representations or warranties implied by law are excluded.
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The Interim Facility Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or an Assignment Agreement, send a copy of that Transfer Certificate or Assignment Agreement to the Obligors’ Agent.
If:
then the New Interim Lender or Interim Lender acting through its new office, branch or Facility Office is not entitled to receive a payment under Clause 9.1 (Gross-up), 9.3 (Tax indemnity) or 10.1 (Increased Costs) to the extent such payment would be greater than the payment that would have been made to the Existing Interim Lender or Interim Lender acting through its previous office, branch or Facility Office had the assignment, transfer sub-participation or other change not occurred unless such assignment, transfer, sub-participation or other change is (i) pursuant to Clause 10.2 (Mitigation) or (ii) at the request of the Obligors’ Agent under Part III (Replacement of an Interim Lender / Increase) of Schedule 6 (Impairment and Replacement of Interim Finance Parties).
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The provisions of Schedule 6 (Impairment and Replacement of Interim Finance Parties) are incorporated into this Clause 23 by reference.
No provision of this Agreement will:
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shall not be made without the prior consent of all the Interim Lenders.
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in each case, other than as expressly contemplated or provided for in this Agreement, shall only require the consent of each Interim Lender that is participating in that extension, reduction, increase or change.
If an Interim Lender does not either accept or reject a request from a Group Company (or the Interim Facility Agent on behalf of that Group Company) for any consent or agreement in relation to a release, waiver or amendment of any provisions of the Interim Finance Documents or other vote of Interim Lenders under the terms of the Interim Finance Documents within ten (10) Business Days (or any other period of time specified by that Group Company but, if shorter than ten (10) Business Days, as agreed by the Interim Facility Agent) of the date of such request being made (the last day of such period being the Exclusion Date), then that Interim Lender shall be automatically excluded from participating in that vote and its participations, Interim Commitments and vote (as the case may be) shall not be included (or, as applicable, required) with the Total Interim Commitments or otherwise when ascertaining whether the approval of Majority Interim Lenders, all Interim Lenders, or any other class of Interim Lenders (as applicable) has been obtained with respect to that request for a consent or agreement and its status as an Interim Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Interim Lenders has been obtained to approve the request.
If any provision of the Interim Finance Documents is or becomes illegal, invalid or unenforceable in any jurisdiction that shall not affect the legality, validity or enforceability in that jurisdiction of any other term of the Interim Finance Documents or the legality, validity or enforceability in other jurisdictions of that or any other term of the Interim Finance Documents.
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This Agreement may be executed in any number of counterparts and all of those counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of a signed counterpart of this Agreement by email attachment or telecopy shall be an effective mode of delivery.
No failure to exercise, nor any delay in exercising, on the part of any Interim Finance Party, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.
The Interim Finance Documents contain the complete agreement between the Parties on the matters to which they relate and may not be amended except in accordance with their terms.
No Interim Finance Party is liable to any Obligor for any representation or warranty that is not set out in the Interim Finance Documents, except for one made fraudulently by such Interim Finance Party.
This Agreement (and any non-contractual obligations arising out of or in relation to this Agreement), and any dispute or proceeding (whether contractual or non-contractual) arising out of or relating to this Agreement, shall be governed by English law.
Each Party agrees that the courts of England have exclusive jurisdiction to hear, decide and settle any dispute or proceedings arising out of or relating to this Agreement (including as to existence,
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validity or termination) and for the purpose of enforcement or any judgment against its assets, each Obligor irrevocably submits to the jurisdiction of the English courts.
The Obligors each:
Each Interim Finance Party acknowledges and agrees that:
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“Article 55 BRRD” means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
“Bail-In Action” means the exercise of any Write-down and Conversion Powers.
“Bail-In Legislation” means:
“EEA Member Country” means any member state of the European Union, Iceland, Liechtenstein and Norway.
“EU Bail-In Legislation Schedule” means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
“Resolution Authority” means any body which has authority to exercise any Write-down and Conversion Powers.
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“UK Bail-In Legislation” means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“Write-down and Conversion Powers” means:
This Agreement has been entered into on the date stated at the beginning of this Agreement.
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Definitions and Interpretation
Definitions
ABR means the Alternate Base Rate, which is the highest of (i) the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the United States, (ii) the Federal Funds Effective Rate plus 1/2 of 1.00% and (iii) the one-month Adjusted LIBOR rate plus 1.00% per annum.
ABR Loan means an Interim Loan to which ABR is applicable.
Adjusted LIBOR means the London interbank offered rate for dollars, adjusted for statutory reserve requirements.
Adjusted LIBOR Loan means an Interim Loan to which Adjusted LIBOR is applicable.
Acceleration Notice has the meaning given to such term in paragraph (a)(ii) of Clause 7.1 (Repayment).
Acceptance Condition means, in relation to an Offer, a condition such that the Offer may not be declared unconditional as to acceptances until the Borrower has received acceptances in respect of a certain percentage or number of shares in Target.
Acquiring Entity has the meaning given to such term in the definition of Acquisition.
Acquisition means the direct or indirect acquisition of up to 100% of the issued share capital of the Target (the Target Shares) by the Borrower or an Affliliate of the Borrower (such acquiring entity, the Acquiring Entity) pursuant to a Scheme and/or Offer and, if applicable, a Squeeze- Out or any other acquisition of shares in the Target by the Acquiring Entity.
Acquisition Costs means:
Acquisition Documents means the Scheme Circular and/or the Offer Documents and any other document designated as an Acquisition Document by the Borrower and the Interim Facility Agent.
Affiliate means:
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Agent means the Interim Facility Agent or the Interim Security Agent, as the context requires and Agents means both of them taken together.
Announcement means any press release made by or on behalf of the Acquiring Entity announcing a firm intention to implement a Scheme or, as the case may be, make an Offer, in each case in accordance with Rule 2.7 of the City Code.
Anti-Corruption Laws means all laws and regulations of any jurisdiction applicable to an Obligor from time to time concerning or relating to anti-bribery or anti-corruption, including the US Foreign Corrupt Practices Act 1977, the UK Bribery Act 2010 or other similar legislation in other jurisdictions.
Anti-Money Laundering Laws means all laws or regulations of any jurisdiction applicable to an Obligor that relates to money laundering, counter-terrorist financing or record keeping and reporting requirements relating to money laundering or counter-terrorist financing including any laws, rules, regulations or guidelines issued, administered or enforced by any governmental or regulatory agency.
Assignment Agreement means an agreement substantially in the form set out in Schedule 8 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee.
Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration, in each case required by any applicable law or regulation.
Bank Levy means any amount payable by any Interim Lender or any of its Affiliates on the basis of or in relation to its balance sheet or capital base or any part of it or its liabilities or minimum regulatory capital or any combination thereof, including the UK bank levy as set out in the Finance Act 2011 (as amended), the French taxe bancaire de risque systémique as set out in Article 235 ter ZE of the French Code Général des impôts, the French taxe pour le financement du fonds de soutien aux collectivités territoriales as set out by Article 235 ter ZE bis of the French Code Général des impôts, the German bank levy as set out in the German Restructuring Fund Act 2010 (Restrukturierungsfondsgesetz) (as amended), the Dutch bankenbelasting as set out in the bank levy act (Wet bankenbelasting), the Swedish bank levy as set out in the Swedish Act on State Support to Credit Institutions (Sw. lag (2008:814) (lag om statligt stöd till kreditinstitut), the Spanish bank levy (Impuesto sobre los Depósitos en las Entidades de Crédito) as set out in the Law 16/2012 of 27 December 2012 and/or any other levy or tax in any jurisdiction levied on a similar basis or for a similar purpose or any financial activities taxes (or other taxes) of a kind contemplated in the European Commission consultation paper on financial sector taxation dated 22 February 2011 which has been enacted and/or which has been formally announced as proposed as at the date of this Agreement.
Base Currency means US Dollars.
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Base Currency Amount means, in relation to any Interim Loan for any amount in the Base Currency, the amount specified in the Drawdown Request for that Interim Loan, as adjusted to reflect any repayment or prepayment under this Agreement.
Bidco means Bolt Bidco Limited, a limited liability company incorporated under the laws of England and Wales with registration number 13765170.
Break Costs has the meaning given to that term in paragraph (h) of Clause 8.2 (Payment of interest).
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in London and New York the principal financial centre of the country of that currency.
Certain Funds Period means the period from (and including) the date of this Agreement to (and including) 11:59 p.m. in New York on the earliest of:
or, in each case, such later time and date as agreed by the Arranger (acting reasonably and in good faith).
Charged Property means all the assets of the Group which, from time to time, are expressed to be the subject of the Interim Security.
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City Code means the UK City Code on Takeovers and Mergers, as administered by the Panel.
Commitment Letter means a letter dated on or about the date of this Agreement between SS&C Technologies, Inc., the Royal Bank of Canada (RBC) and and RBC Capital Markets, LLC (RBCCM) setting out the terms and conditions pursuant to which the RBC and RBCCM agree to arrange and underwrite certain facilities in connection with the Acquisition and the Transactions and appending the schedules thereto.
Confidentiality Undertaking means a confidentiality undertaking agreeing to keep the Interim Finance Documents or other documents or information confidential, on which the Obligors' Agent is able to rely and which is either (i) in the form most recently published by the Loan Market Association or (ii) otherwise in form and substance satisfactory to the Obligors' Agent.
Co-operation Agreement means any co-operation agreement (or any agreement of a similar nature, if any) entered into between the Acquiring Entity and the Target in respect of the Acquisition.
Court Order means the order of the High Court of Justice of England and Wales sanctioning the Scheme.
CRD IV means EU CRD IV and UK CRD IV.
Defaulting Lender has the meaning given to that term in Part V (Definitions) of Schedule 6 (Impairment and Replacement of Interim Finance Parties).
Delegate means any delegate, agent, attorney or co-trustee appointed by the Interim Security Agent.
Drawdown Date means the date of or proposed date for the making of an Interim Loan.
Drawdown Request means a signed notice requesting an Interim Loan in the form set out in Schedule 2 (Form of Drawdown Request).
EU CRD IV means:
Existing Stryker Credit Agreement means the credit agreement dated as of 8 July 2015 (as the same may be amended, amended and restated, supplemented or otherwise modified) between, amongst others the Guarantor as parent and Credit Suisse AG, Cayman Islands Branch as administrative agent.
Existing Interim Lender has the meaning given to that term in paragraph (a) of Clause 22.2 (Transfers by Interim Lenders).
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Facility Office means the office or offices through which an Interim Lender will perform its obligations under the Interim Facility as notified to the Interim Facility Agent in writing on or before the date it becomes an Interim Lender (or, following that date, by not less than five (5) Business Days' notice).
FATCA means:
FATCA Application Date means:
FATCA Deduction means a deduction or withholding from a payment under an Interim Finance Document required by FATCA.
FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.
Interim Facility Fee Letter has the meaning given in the Commitment Letter.
Final Repayment Date has the meaning given to such term in paragraph (a) of Clause 7.1 (Repayment).
Funding Cost means, for Interim Loans under the Interim Facility denominated in US Dollars, at the option of the Borrower, ABR or Adjusted LIBOR, provided that if ABR or Adjusted LIBOR (as applicable) is less than zero (0) at any time when ABR or Adjusted LIBOR (as applicable) is fixed, ABR or Adjusted LIBORshall be deemed to be zero (0).
Funds Flow Statement means any funds flow statement which is prepared in accordance with the Acquisition.
Group means the Guarantor and each of its Subsidiaries from time to time.
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Group Company means a member of the Group.
Holding Company means in relation to any person, any other body corporate or other entity of which it is a Subsidiary.
Industry Competitor means:
Interest Period has the meaning given to such term in paragraph (a) of Clause 8.2 (Payment of interest).
Interim Closing Date means the first date upon which the Interim Facility is drawn.
Interim Commitment means:
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to the extent not cancelled, reduced or transferred by it under this Agreement.
Interim Facility has the meaning given in paragraph 2.1(a)(i) of Clause 2.1 (The Interim Facility).
Interim Finance Documents means each of this Agreement, the Interim Facility Fee Letter, the Interim Security Documents, each Drawdown Request and any other document designated as such in writing by the Interim Facility Agent and the Obligors' Agent.
Interim Finance Parties means the Interim Lenders, the Arranger, the Interim Facility Agent and the Interim Security Agent.
Interim Lender means:
which, in each case, has not ceased to be an Interim Lender in accordance with the terms of this Agreement.
Interim Liabilities means all liabilities owed by the Obligors to the Interim Finance Parties under the Interim Finance Documents.
Interim Loan means the principal amount of each borrowing under the Interim Facility or the principal amount outstanding of that borrowing at any time.
Interim Security means the Security Interests created or expressed to be created in favour of the Interim Security Agent pursuant to the Interim Security Documents.
Interim Security Document means the document required to be delivered to the Interim Facility Agent under sub-paragraph (c) of paragraph 2 (Interim Finance Documents) of Schedule 3 (Conditions Precedent).
Interpolated Screen Rate means, in relation to LIBOR for any Interim Loan or an overdue amount, the rate which results from interpolating on a linear basis between:
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each as of 11.00 a.m. (London time) on the Rate Fixing Day for the offering of deposits in the currency of that Interim Loan or an applicable amount.
LIBOR means, in relation to any Interim Loan or any overdue amount denominated in any currency:
the arithmetic mean (rounded upward to four decimal places) of the rates, as supplied to the Interim Facility Agent at its request, quoted by the Reference Banks to leading banks in the London interbank market, as of 11.00 a.m. (London time) on the Rate Fixing Day for the offering of deposits in the currency of that Interim Loan or overdue amount and a period comparable to that Interest Period for that Interim Loan or overdue amount.
Loan to Own/Distressed Investor means any person (including an Affiliate or a Related Fund of an Interim Lender or any transferee which satisfies the requirements set out under paragraph (b)(ii) of Clause 22.2 (Transfers by Interim Lenders)) whose principal business or material activity is investing in distressed debt or the purchase of loans or other debt securities with the intention of (or view to) owning the equity or gaining control of a business (directly or indirectly), provided that:
shall not, in each case, be a Loan to Own/Distressed Investor.
Long-term Financing Agreements means, collectively, the facilities agreements, indentures, trust deeds or other agreements and/or instruments to be entered into for the purpose of refinancing the Interim Facility including as the case may be the New Incremental Term Loans.
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Major Event of Default means an event or circumstance set out in Part III (Major Events of Default) of Schedule 5 (Major Representations, Undertakings and Events of Default).
Major Representation means a representation set out in Part I (Major Representations) of Schedule 5 (Major Representations, Undertakings and Events of Default).
Major Undertaking means an undertaking set out in Part II (Major Undertakings) of Schedule 5 (Major Representations, Undertakings and Events of Default).
Majority Interim Lenders means, at any time, Interim Lenders:
Margin means (i) if in aggregate with the ABR, 1.00 per cent. per annum or (ii) if in aggregate with Adjusted LIBOR, 2.00 per cent. per annum.
Material Adverse Effect means any event or circumstance which in each case after taking into account all mitigating factors or circumstances including, any warranty, indemnity, insurance or other resources available to the Group or right or recourse against any third party with respect to the relevant event or circumstance and any obligation of any person in force to provide any additional equity investment:
Minimum Acceptance Threshold means, in relation to an Offer, an Acceptance Condition of not less than 75 per cent. of the issued ordinary share capital of the Target plus one share on a fully diluted basis
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(assuming exercise in full of all options, warrants and other rights to require allotment or issue of any shares in Target, whether or not such rights are then exercisable).
New Interim Lender has the meaning given to that term in paragraph (a) of Clause 22.2 (Transfers by Interim Lenders).
Obligors means the Borrower and the Guarantor.
Obligors' Agent means the Guarantor or such other person appointed to act on behalf of each Obligor in relation to the Interim Finance Documents pursuant to Clause 4 (Obligors' Agent).
OFAC means the Office of Foreign Assets Control of the United States Department of the Treasury (or any successor thereto).
Offer means the takeover offer (as defined in section 974 of the Companies Act 2006) by the Borrower (or any other Acquiring Entity) in accordance with the City Code to acquire all of the shares in Target that are the subject of that takeover offer (within the meaning of section 975 of the Companies Act 2006) pursuant to the Offer Documents.
Offer Documents means the offer documents dispatched to shareholders of the Target setting out the terms and conditions of an Offer.
Panel means The Panel on Takeovers and Mergers.
Participating Member State means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
Party means a party to this Agreement.
Perfection Requirements means the making or the procuring of any appropriate registration, filing, recordings, enrolments, registrations, notations in stock registries, notarisations, notifications, endorsements and/or stampings of the Interim Security Documents and/or the Security Interests created thereunder.
Permitted Holding Company Activity means:
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Permitted Transaction means:
Rate Fixing Day means, in relation to any period for which an interest rate is to be determined, two (2) Business Days before the first day of that period, unless market practice differs in the relevant interbank market, in which case, the Rate Fixing Day will be determined by the Interim Facility Agent in accordance with market practice in that interbank market (and, if quotations would normally be given by leading banks in that interbank market on more than one day, the Rate Fixing Day will be the last of those days).
Receiver means a receiver, receiver and manager or administrative receiver of the whole or any part of the Charged Property.
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Reference Banks means, in relation to LIBOR, the principal London offices of such banks or financial institutions as may be appointed by the Interim Facility Agent after consultation with the Obligors' Agent, provided that no Interim Finance Party shall be appointed as a Reference Bank without its consent.
Related Fund in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.
Reservations means the principle that equitable remedies may be granted or refused at the discretion of the court, the limitation on enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors and secured creditors, the time barring of claims under any applicable limitation statutes, the possibility that a court may strike out a provision of a contract for recession or oppression, undue influence or similar reason, the possibility that an undertaking to assume liability for or to indemnify a person against non-payment of stamp duty may be void, defences of acquiescence, set-off or counterclaim and similar principles, the principles that in certain circumstances a Security Interest granted by way of fixed charge may be recharacterised as a floating charge or that a Security Interest purported to be constituted as an assignment may be recharacterised as a charge, the principle that additional or default interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void, the principle that a court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant, the principle that the creation or purported creation of a Security Interest over any asset not beneficially owned by the relevant charging company at the date of the relevant security document or over any contract or agreement which is subject to a prohibition on transfer, assignment or charging may be void, ineffective or invalid and may give rise to a breach of the contract or agreement over which a Security Interest has purportedly been created, the principle that a court may not give effect to any parallel debt provisions, covenant to pay the Interim Security Agent or other similar provisions, similar principles, rights and defences under the laws of any jurisdiction in which the relevant obligation may have to be performed and any other matters which are set out in the reservations or qualifications (however described) as to matters of law which are referred to in any legal opinion referred to in paragraph 3 (Legal Opinions) of Schedule 3 (Conditions Precedent) or under any other provision of or otherwise in connection with any Interim Finance Document.
Restricted Finance Party means an Interim Finance Party that notifies the Interim Facility Agent that a Sanctions Provision would result in a violation of, a conflict with or liability under:
Restricted Member of the Group means a member of the Group in respect of which the Obligors' Agent notifies the Interim Facility Agent that a Sanctions Provision would result in a violation of, a conflict with or liability under:
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Restricted Person means a person that is:
Sanctioned Country means, at any time, a country or territory which is the subject or target of comprehensive Sanctions (currently, Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine).
Sanctions means any economic, trade or financial sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced from time to time by any Sanctions Authority.
Sanctions Authority means (a) the United States government, (b) the United Nations Security Council, (c) the European Union and any EU member state, (d) the United Kingdom, and (e) the respective governmental institutions of any of the foregoing which administer Sanctions, including, OFAC, the United States Department of State, the United States Department of Treasury and Her Majesty’s Treasury.
Sanctions List means the "Specially Designated Nationals and Blocked Persons" list issued by OFAC, the Consolidated List of Financial Sanctions Targets issued by Her Majesty's Treasury, or any similar list issued or maintained and made public by any of the Sanctions Authorities as amended, supplemented or substituted from time to time.
Sanctions Provision means paragraphs (b) to (e) of Clause 21.2 (Undertakings).
Scheme means the scheme of arrangement effected pursuant to part 26 of the Companies Act 2006 to be proposed by the Target to its shareholders to implement the Acquisition pursuant to which the relevant Acquiring Entity will, subject to the occurrence of the Scheme Effective Date, become the holder of the shares in Target that are the subject of that scheme of arrangement.
Scheme Circular means the circular (including any supplemental circular) dispatched by the Target to shareholders of the Target setting out the resolutions and proposals for and the terms and conditions of the Scheme.
Scheme Documents means each of (i) the applicable Announcement, (ii) the Scheme Circular, (iii) the Court Order and (iv) any other documents distributed by or on behalf of the Acquiring Entity to holders of the Target Shares in connection with the Scheme.
Scheme Effective Date means the date on which the Court Order sanctioning the Scheme is duly delivered on behalf of the Target to the Registrar of Companies in accordance with section 899 of the Companies Act 2006.
Screen Rate means, in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate), or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page is replaced or service ceases to be available, the Interim Facility Agent may specify
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another page or service displaying the appropriate rate in accordance with Clause 8.5 (Replacement of Screen Rate).
Security Interest means any mortgage, charge (fixed or floating), pledge, lien, hypothecation, right of set-off, security trust, assignment, reservation of title or other security interest and any other agreement (including a sale and repurchase arrangement) having the commercial effect of conferring security.
Squeeze-Out means an acquisition of the outstanding shares in the Target that the Acquiring Entity has not acquired pursuant to the procedures contained in sections 979 to 982 of the Companies Act 2006.
Subsidiary means, in relation to any person:
and, for this purpose, control means the direct or indirect ownership of a majority of the voting share capital or similar ownership rights of that entity, or the right or ability to determine the composition of a majority of the board of directors (or equivalent body) of such entity or otherwise to direct the management of such entity whether by virtue of ownership of share capital, contract or otherwise.
Target means Blue Prism Group plc.
Target Group means the Target and its Subsidiaries.
Tax means any present or future tax, levy, assessment, impost, deduction, duty or withholding or any charge of a similar nature (including any related interest, penalty or fine).
Tax Credit means a credit against, relief from, or rebate, repayment, remission or refund of, any Tax.
Tax Deduction means a deduction or withholding for or on account of Tax from any payment under an Interim Finance Document, other than a FATCA Deduction.
Total Interim Commitments means at any time the aggregate of the Interim Commitments, being $1,680,000,000 at the date of this Agreement.
Transactions has the meaning given to that term in the Commitment Letter.
Transaction Documents means the Interim Finance Documents, the Acquisition Documents and (in each case) all documents and agreements relating to them.
Transfer Certificate means a certificate substantially in the form set out in Schedule 7 (Form of Transfer Certificate) or in any other form agreed between the Interim Facility Agent and the Obligors' Agent.
Transfer Date means, in relation to an assignment or a transfer, the later of:
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UK CRD IV means:
US Code means the US Internal Revenue Code of 1986 (and any successor legislation thereto), as amended from time to time.
VAT means:
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Other References
and guaranteed and guarantor shall be construed accordingly;
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and references to months shall be construed accordingly;
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to the extent that that Sanctions Provision would not result in any violation by or expose of such entity or any directors, officer or employee thereof to any liability under any anti-boycott or blocking law, regulation or statute that is in force from time to time in the European Union (and/or any of its member states) that are applicable to such entity, including EU Regulation (EC) 2271/96.
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shall be excluded for the purpose of calculating the Total Interim Commitments under the Interim Facility when ascertaining whether any relevant percentage of Total Interim Commitments has been obtained to approve such amendment, waiver, determination or direction request and its status as an Interim Finance Party shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Interim Finance Parties has been obtained to approve such amendment, waiver, determination or direction.
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Form of Drawdown Request
To: [●] as Interim Facility Agent From: [●]
Date: [●]
[Company] – Interim Facility Agreement dated [●] (as amended from time to time) (the Interim Facility Agreement)
1. We refer to the Interim Facility Agreement. This is a Drawdown Request. Terms defined in the Interim Facility Agreement shall have the same meanings when used in this Drawdown Request.
2. We wish to borrow an Interim Loan on the following terms: Interim Facility: [●] Drawdown Date: [●] Amount: [●] Currency: [●] Interest Period: [●]
3. Our [payment/delivery] instructions are: [●].
4. We confirm that each condition specified in paragraphs (a)(i) to (a)(iii) (inclusive) of Clause 3.1 (Conditions Precedent) is satisfied at the date of this Drawdown Request or will be satisfied on or before the proposed Drawdown Date.
5. The proceeds of this Interim Loan should be credited to [●].
6. This Drawdown Request is irrevocable.
For and on behalf of
[●]
(as Borrower)
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Conditions Precedent
A copy of the counterparts of each of the following documents duly executed by the Borrower:
Party | Interim Security Document | Governing law |
Bidco | Debenture | English law |
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A copy of (i) the Scheme Circular or (ii) as the case may be, the Offer Documents dispatched to shareholders of the Target by or on behalf of the Borrower (if any), provided that such documents shall not be required to be in form and substance satisfactory to the Interim Facility Agent.
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Guarantee and Indemnity
Subject to the limitations set out in paragraph 11 (Guarantee Limitation) below, the Guarantor irrevocably and unconditionally, jointly and severally:
(the Guarantee).
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by an Obligor under the Interim Finance Documents, regardless of any intermediate payment or discharge in whole or in part.
If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by an Interim Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of the Guarantor under this Schedule 4 will continue or be reinstated as if the discharge, release or arrangement had not occurred.
The obligations of the Guarantor under this Schedule 4 will not be affected by an act, omission, matter or thing which, but for this Schedule 4, would reduce, release or prejudice any of its
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obligations under this Schedule 4 (whether or not known to it or any Interim Finance Party) including:
Without prejudice to the generality of paragraph 4 (Waiver of defences) above and paragraph 11 (Guarantee Limitation) below, the Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental and of whatsoever nature and whether or not more onerous) variation, increase, extension or addition of or to any of the Interim Finance Documents and/or any facility or amount made available under any of the Interim Finance Documents for the purposes of or in connection with any of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.
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Until all amounts which may be or become payable by the Obligors under or in connection with the Interim Finance Documents have been irrevocably paid in full, each Interim Finance Party (or any trustee or agent on its behalf) may:
Until all amounts which may be or become payable by the Obligors under or in connection with the Interim Finance Documents have been irrevocably paid in full and unless the Interim Facility Agent otherwise directs, the Guarantor will not exercise any rights which it may have by reason of performance by it of its obligations under the Interim Finance Documents:
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If the Guarantor (a Retiring Guarantor) ceases to be a Guarantor in accordance with the terms of the Interim Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:
This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Interim Finance Party.
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Major Representations, Undertakings and Events of Default
Major Representations
It is a corporation, limited liability company or a corporate partnership limited by shares duly incorporated and validly existing under the laws of its place of incorporation.
The entry into and delivery of, and the exercise of its rights and the performance of its obligations under, each Interim Finance Document to which it is a party does not, subject to the Reservations:
in each case, in a manner which would have or be reasonably likely to have a Material Adverse Effect.
Subject to the Reservations and the Perfection Requirements, the obligations expressed to be assumed by it under each Interim Finance Document to which it is a party constitute its legal, valid, binding and enforceable obligations.
All Authorisations required: (i) to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Interim Finance Documents to which it is a party and (ii) to make the Interim Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation have been obtained or effected and are in full force and effect.
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Major Undertakings
No Obligor shall incur or allow to remain outstanding any financial indebtedness unless it is a Permitted Transaction.
No Obligor shall enter into a single transaction or a series of transactions to (voluntarily or otherwise) sell, lease, transfer or otherwise dispose of any asset unless it is a Permitted Transaction.
No Obligor shall create or permit to subsist any security over any of its assets unless such security is a Permitted Transaction.
Bidco shall not trade, carry on any business, own any material assets or incur any material liabilities unless it is a Permitted Transaction (excluding paragraph (c) thereof) or a Permitted Holding Company Activity.
Save for the Acquisition or unless a Permitted Transaction:
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Major Events of Default
Following the Interim Closing Date, the Obligors do not pay on the due date any principal, interest or fees due under the Interim Facility Fee Letter, in each case payable by them under the Interim Finance Documents in the manner required under the Interim Finance Documents unless payment is made within five (5) Business Days of the due date.
The Obligors do not comply with any Major Undertaking and, if capable of remedy, the same is not remedied within twenty one (21) Business Days of the earlier of the Obligors' Agent:
A Major Representation is incorrect or misleading in any material respect when made and, if capable of remedy, the same is not remedied within twenty one (21) Business Days of the earlier of the Obligors' Agent:
Any of the following occurs:
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and, if capable of remedy, the same is not remedied within twenty one (21) Business Days of the earlier of the Obligors' Agent (i) becoming aware of such failure and (ii) receiving written notice from the Interim Facility Agent notifying it of that failure.
Any Obligor is unable to pay its debts as they fall due (other than solely as a result of liabilities exceeding assets) or suspends making payments on all or a material part of its debts.
There occurs in relation to any Obligor or any of its assets (other than to the extent they relate to the Target, its share capital or any member of the Target Group) in any country or territory in which it is incorporated or carries on business or to the jurisdiction of whose courts it or any of its assets are subject, any event or circumstance which corresponds to any of those mentioned in paragraphs 5 (Insolvency) or 6 (Insolvency proceedings) above.
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Impairment and Replacement of Interim Finance Parties
Impaired Agent
give all requisite instructions to the bank with whom the trust account is held to transfer the relevant amount (together with any accrued interest) to that recipient.
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If an Agent is an Impaired Agent, the Parties may, instead of communicating with each other through the Agent, communicate with each other directly and (while the Interim Facility Agent is an Impaired Agent) all the provisions of the Interim Finance Documents which require communications to be made or notices to be given to or by the Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate after a replacement Agent has been appointed.
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and (in each case) the Obligors' Agent or an Interim Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Interim Facility Agent were a FATCA Exempt Party, and the Obligors' Agent or that Interim Lender, by notice to the Interim Facility Agent, requires it to resign.
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Defaulting Lender
unless it has received notice to the contrary from the Interim Lender concerned (together with any supporting evidence reasonably requested by the Interim Facility Agent) or the Interim Facility Agent is otherwise aware that the Interim Lender has ceased to be a Defaulting Lender.
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Replacement of an Interim Lender/Increase
then the Obligors' Agent may, on no less than five (5) Business Days' prior written notice (a Replacement Notice) to the Interim Facility Agent and such Interim Finance Party (a Replaced Lender):
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request that the Interim Commitments relating to the Interim Facility be increased (and the Interim Commitments relating to the Interim Facility shall be so increased) up to the amount of the undrawn Interim Commitments or Interim Commitments relating to the Interim Facility so cancelled as described in the following paragraphs.
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Form of Increase Confirmation
To: [●] as Interim Facility Agent, [●] as Interim Security Agent and [●] as Borrower
From: [●] (the Increase Lender)
Dated: [●]
[Company] – Interim Facility Agreement dated [●] (as amended from time to time) (the Interim Facility Agreement)
1. We refer to the Interim Facility Agreement. This agreement (the Agreement) shall take effect as an Increase Confirmation for the purpose of the Interim Facility Agreement. Terms defined in the Interim Facility Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
2. We refer to paragraph 2 (Increase) of Part III (Replacement of an Interim Lender / Increase) of Schedule 6 (Impaired Agent, Replacement of an Interim Facility Agent, Defaulting Lender, Replacement of an Interim Lender / Increase,) of the Interim Facility Agreement.
3. The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Interim Commitment specified in the Schedule (the Relevant Commitment) as if it was an Original Interim Lender under the Interim Facility Agreement.
4. The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment is to take effect (the Increase Date) is [●].
5. On the Increase Date, the Increase Lender becomes party to the relevant Interim Finance Documents as an Interim Lender.
6. The Facility Office, address, email address and attention details for notices to the Increase Lender for the purposes of Clause 18.1 (Mode of service) of the Interim Facility Agreement are set out in the Schedule.
7. The Increase Lender expressly acknowledges the limitations on the Interim Lenders' obligations referred to in paragraph (f) of paragraph 2 (Increase) of Part III (Replacement of an Interim Lender / Increase) of Schedule 6 (Impairment and Replacement of Interim Finance Parties) of the Interim Facility Agreement.
9. This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
10. This Agreement and any non-contractual obligations arising out of or in connection with it are governed by [English] law.
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11. This Agreement has been entered into on the date stated at the beginning of this Agreement.
Note: The execution of this Increase Confirmation may not be sufficient for the Increase Lender to obtain the benefit of the Interim Security in all jurisdictions. It is the responsibility of the Increase Lender to ascertain whether any other documents or other formalities are required to obtain the benefit of the Interim Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities.
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The Schedule to the Increase Confirmation
Relevant Commitment/rights and obligations to be assumed by the Increase Lender
[INSERT RELEVANT DETAILS]
[Facility office address, email address and attention details for notices and account details for payments]
_____________________________________
[Increase Lender]
By:
This Agreement is accepted as an Increase Confirmation for the purposes of the Interim Facility Agreement by the Interim Facility Agent.
__________________________________
[Interim Facility Agent]
By:
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Definitions
Capitalised terms in this Schedule 6 shall have the meanings ascribed to such terms in Schedule 1 (Definitions and Interpretation) and this Part V, as applicable.
Acceptable Bank means a bank or financial institution which has a long-term credit rating of at least BBB by Standard & Poor's Rating Services or Fitch Ratings Ltd or at least Baa3 by Moody's Investor Services Limited or a comparable rating from an internationally recognised credit rating agency; or any Interim Finance Party or any Affiliate of an Interim Finance Party.
Defaulting Lender means any Interim Lender:
Impaired Agent means an Agent at any time when:
Increase Confirmation means a confirmation substantially in the form set out in Part IV (Form of Increase Confirmation) of this Schedule 6.
Insolvency Event in relation to an entity means that the entity:
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Non-Consenting Lender has the meaning given to that term in paragraph (d) of paragraph 1 (Replacement of an Interim Lender) of Part III (Replacement of an Interim Lender / Increase) of this Schedule 6.
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Form of Transfer Certificate
To: [●] as Interim Facility Agent
From: [●] (the Existing Interim Lender) and [●] (the New Interim Lender)
Dated: [●]
[Company] – Interim Facility Agreement dated [●] (as amended from time to time) (the Interim Facility Agreement)
1. We refer to the Interim Facility Agreement. This is a Transfer Certificate. Terms defined in the Interim Facility Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
2. We refer to Clause 22.4 (Procedure for transfer) of the Interim Facility Agreement:
(a) The Existing Interim Lender and the New Interim Lender agree to the Existing Interim Lender transferring to the New Interim Lender by novation all or part of the Existing Interim Lender's Interim Commitments, rights and obligations referred to in the Schedule in accordance with Clause 22.4 (Procedure for transfer) of the Interim Facility Agreement.
(b) The proposed Transfer Date is [●].
(c) The Facility Office and address, email address and attention details for notices of the New Interim Lender for the purposes of Clause 18.1 (Mode of service) of the Interim Facility Agreement are set out in the Schedule.
3. The New Interim Lender expressly acknowledges the limitations on the Existing Interim Lender's obligations set out in paragraph (c) of Clause 22.3 (Limitation of responsibility of Existing Interim Lenders) of the Interim Facility Agreement.
5. This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by [English] law.
6. This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
Note: The execution of this Transfer Certificate may not transfer a proportionate share of the Existing Interim Lender's interest in the Interim Security in all jurisdictions. It is the responsibility of the New Interim Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Interim Lender's Interim Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities.
104
The Schedule to the Transfer Certificate
Commitment/rights and obligations to be transferred
[INSERT RELEVANT DETAILS]
[Facility office address, email address and attention details for notices and account details for payments]
__________________________________
[Existing Interim Lender]
By:
__________________________________
[New Interim Lender]
By:
This Transfer Certificate is accepted by the Interim Facility Agent and the Transfer Date is confirmed as [●].
________________________________
[Interim Facility Agent]
By:
105
Form of Assignment Agreement
To: [●] as Interim Facility Agent
From: [●] (the Existing Interim Lender) and [●] (the New Interim Lender)
Dated: [●]
[Company] – Interim Facility Agreement dated [●] (as amended from time to time) (the Interim Facility Agreement)
1. We refer to the Interim Facility Agreement. This is an Assignment Agreement. Terms defined in the Interim Facility Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.
2. We refer to Clause 22.5 (Procedure for assignment) of the Interim Facility Agreement.
3. The Existing Interim Lender assigns absolutely to the New Interim Lender all the rights of the Existing Interim Lender under the Interim Facility Agreement, the other Interim Finance Documents and in respect of the Interim Security which correspond to that portion of the Existing Interim Lender's Interim Commitments and participations in Interim Loans under the Interim Facility Agreement as specified in the Schedule;
4. The Existing Interim Lender is released from all the obligations of the Existing Interim Lender which correspond to that portion of the Existing Interim Lender's Interim Commitments and participations in Interim Loans under the Interim Facility Agreement specified in the Schedule.
5. The New Interim Lender becomes a Party as an Interim Lender and is bound by obligations equivalent to those from which the Existing Interim Lender is released under paragraph 4 above.
6. The proposed Transfer Date is [●].
. On the Transfer Date the New Interim Lender becomes Party to the Interim Finance Documents as an Interim Lender.
8. The New Interim Lender expressly acknowledges the limitations on the Existing Interim Lender's obligations set out in paragraph (c) of Clause 22.3 (Limitation of responsibility of Existing Interim Lenders) of the Interim Facility Agreement.
9. This Assignment Agreement acts as notice to the Interim Facility Agent (on behalf of each Interim Finance Party) and, upon delivery in accordance with Clause (iv) of the Interim Facility Agreement, to the Obligors' Agent (on behalf of each Obligor) of the assignment referred to in this Assignment Agreement.
11. The Facility Office and address, email address and attention details for notices of the New Interim Lender for the purposes of Clause 18.1 (Mode of service) of the Interim Facility Agreement are set out in the Schedule.
106
12. This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement.
13. This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by [English] law.
14. This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.
Note: The execution of this Assignment Agreement may not transfer a proportionate share of the Existing Interim Lender's interest in the Interim Security in all jurisdictions. It is the responsibility of the New Interim Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing Interim Lender's Interim Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities.
107
The Schedule to the Assignment Agreement
Commitment/rights and obligations to be transferred by assignment, release and accession
[INSERT RELEVANT DETAILS]
[Facility office address, email address and attention details for notices and account details for payments]
________________________
[Existing Interim Lender]
By:
_______________________
[New Interim Lender]
By:
This Assignment Agreement is accepted by the Interim Facility Agent and the Transfer Date is confirmed as [●].
[Signature of this Assignment Agreement by the Interim Facility Agent constitutes confirmation by the Interim Facility Agent of receipt of notice of the assignment referred to herein, which notice the Interim Facility Agent receives on behalf of each Interim Finance Party.]
_________________________
[Interim Facility Agent]
108
By:
109
The Original Interim Lender
Name of Original Interim Lender | Interim Commitment (USD$) |
Royal Bank of Canada | 1,680,000,000 |
Total | 1,680,000,000 |
Signature Pages
The Borrower
/s/Authorized Signatory___________
BOLT BIDCO LIMITED
Notice Details:
Address: SS&C Technologies, Inc. 80 Lamberton Rd, Windsor, CT 06095
Email: notices@sscinc.com
Attention: Notices, SS&C Legal
[Signature page – Interim Facility Agreement]
The Guarantor
/s/Authorized Signatory____________________
SS&C TECHNOLOGIES HOLDINGS, INC.
Notice Details:
Address: SS&C Technologies, Inc. 80 Lamberton Rd, Windsor, CT 06095
Email: notices@sscinc.com
Attention: Notices, SS&C Legal
[Signature page – Interim Facility Agreement]
The Original Interim Lender
/s/Authorized Signatory___________
ROYAL BANK OF CANADA
Notice Details:
Address: 200 Vesey Street, 12th Floor New York, NY 10281
Facsimile: 212.428.6524
Attention: Corporate Banking, Technology, New York
[Signature page – Interim Facility Agreement]
Arranger
/s/ Charles D. Smith_____________
ROYAL BANK OF CANADA
Notice Details:
Address: 20 King Street West, 4th Floor, Toronto, ON M5H 1C4
Facsimile: 416.842.4023
Attention: Manager, Agency Services Group
[Signature page – Interim Facility Agreement]
The Interim Facility Agent
/s/ Ann Hurley__________________
ROYAL BANK OF CANADA
Notice Details:
Address: 20 King Street West, 4th Floor, Toronto, ON M5H 1C4
Facsimile: 416.842.4023
Attention: Manager, Agency Services Group
[Signature page – Interim Facility Agreement]
The Interim Security Agent
/s/ Ann Hurley__________________
ROYAL BANK OF CANADA
Notice Details:
Address: 20 King Street West, 4th Floor, Toronto, ON M5H 1C4
Facsimile: 416.842.4023
Attention: Manager, Agency Services Group
[Signature page – Interim Facility Agreement]