Exhibit 10.1
FLEET NATIONAL BANK,
A BANK OF AMERICA COMPANY
777 MAIN STREET
HARTFORD, CONNECTICUT 06115
March 4, 2005
SS&C Technologies, Inc.
80 Lamberton Road
Windsor, Connecticut 06095
$75,000,000 Senior Credit
Facility
Ladies and Gentlemen:
You
(hereinafter sometimes referred to as the “ Company
”) have advised Fleet National Bank, a Bank of America
Company. (“ Fleet ”) of your intention to
acquire, by way of a non-hostile takeover bid, the stock of
Financial Models Company Inc., a Canada-based public company (the
“ Target ”), by yourself or through an
acquisition subsidiary for not more than $166 million in cash
(the “ Acquisition ”). You have also advised
Fleet that you intend to finance the Acquisition and the costs and
expenses related to the Transaction (as hereinafter defined) from
the following sources (and that no financing other than the
financing described herein will be required in connection with the
Transaction): (a) a $75 million senior revolving credit
facility (the “ Senior Credit Facility ”), and
(b) cash of the Company on hand. The Acquisition, the entering
into of the definitive documentation for, and the satisfaction of
the conditions precedent to the initial funding under, the Senior
Credit Facility and all related transactions are hereinafter
collectively referred to as the “ Transaction
”.
In
connection with the foregoing, Fleet is pleased to advise you of
its firm commitment (the “ Commitment ”) to
provide the Senior Credit Facility upon and subject to the terms
and conditions set forth in this letter and in the summary of terms
attached as Annex I hereto (the “ Summary of Terms
” and, together with this letter agreement, the “
Commitment Letter ”). All capitalized terms used and
not otherwise defined herein shall have the same meanings as
specified therefor in the Summary of Terms.
The
Commitment is subject to the satisfaction of each of the following
conditions precedent in a manner acceptable to Fleet: (a) no
change, occurrence or development shall have occurred or become
known to Fleet since the date of this Commitment Letter that would
reasonably be expected to have a material adverse effect on the
business, assets, liabilities (actual or contingent), operations or
financial condition of the Company and its subsidiaries, taken as a
whole (a “ Material Adverse Effect ”);
(b) our satisfaction that none of the Company, any of its
subsidiaries or the Target is subject to any legal, governmental or
regulatory restrictions or any material contractual or other
restrictions that would be violated by the consummation of any
aspect of the Transaction and would reasonably be expected to have
a Material Adverse Effect; and (c) the other conditions set
forth or referred to in the Summary of Terms.
By
executing this Commitment Letter, you agree to reimburse Fleet from
time to time on demand for all reasonable out-of pocket fees and
expenses (including, but not limited to, due diligence expenses and
the reasonable fees, disbursements and other charges of Robinson
& Cole, LLP, as counsel to Fleet,
and, with your consent (not to be
unreasonably withheld), other special counsel to Fleet) incurred in
connection with the Senior Credit Facility, the preparation of the
definitive documentation therefor and the other transactions
contemplated hereby.
You
agree to indemnify and hold harmless Fleet, each of its affiliates
and their respective officers, directors, employees, agents,
advisors and other representatives (each an “ Indemnified
Party ”) from and against (and will reimburse each
Indemnified Party as the same are incurred for) any and all claims,
damages, losses, liabilities and expenses (including, without
limitation, the reasonable fees, disbursements and other charges of
counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection
with or by reason of any actual or threatened claim, investigation,
arbitration, action, litigation or proceeding (or the preparation
of a defense in connection therewith) in connection with or related
to (a) any aspect of the Transaction or any similar
transaction and any of the other transactions contemplated thereby
or (b) the Senior Credit Facility and any other financings, or
any use made or proposed to be made with the proceeds thereof,
except to the extent such claim, damage, loss, liability or expense
is found in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party’s
or a Related Indemnified Party’s (as hereinafter defined)
gross negligence, breach of contract or willful misconduct. In the
case of an investigation, litigation or proceeding to which the
indemnity in this paragraph applies, such indemnity shall be
effective whether or not such claim, investigation, arbitration,
action, litigation or proceeding is brought by you, your equity
holders or creditors or an Indemnified Party, whether or not an
Indemnified Party is otherwise a party thereto and whether or not
any aspect of the Transaction is consummated. You also agree that
no Indemnified Party shall have any liability (whether direct or
indirect, in contract or tort or otherwise) to you or your
subsidiaries or affiliates or to your or their respective equity
holders or creditors arising out of, related to or in connection
with (i) any aspect of the Transaction or (ii) the use by
others of information or other materials obtained through the
internet, electronic, telecommunications or other similar
information systems in connection with any aspect of the
Transaction, except for direct, as opposed to consequential,
damages determined in a final nonappealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified
Party’s or a Related Indemnified Party’s gross
negligence, breach of contract or willful misconduct. For purposes
of this Commitment Letter, the term “ Related Indemnified
Party ” means, with respect to any of the Indemnified
Party’s, each of the affiliates, officers, directors,
employees, agents, advisors and other representatives of such
Indemnified Party.
This Commitment
Letter and the contents hereof are confidential and, except for the
disclosure hereof or thereof on a confidential basis to your
accountants, attorneys and other professional advisors retained in
connection with the Transaction or as otherwise required by law or
an applicable regulatory body or stock exchange, may not be
disclosed in whole or in part to any person or entity without our
prior written consent; provided , however , it is
understood and agreed that you may disclose this Commitment Letter
(including the Summary of Terms) (a) on a confidential basis
to the board of directors and advisors of the Target and the
Company in connection with their consideration of the Transaction
and (b) after your acceptance of this Commitment Letter, in
filings with the Securities and Exchange Commission and other
applicable regulatory authorities and stock exchanges and to
recipients of the bid circular related to the
Acquisition.
The
provisions of the immediately preceding three paragraphs shall
remain in full force and effect regardless of whether any
definitive documentation for the Senior Credit Facility shall be
executed and delivered and notwithstanding the termination of this
Commitment Letter or any commitment or agreement of Fleet
hereunder; provided , however , that you shall be
deemed released from your liabilities and obligations hereunder
upon the execution of all definitive documentation for the Senior
Credit Facility and the initial extension of credit thereunder
other than (a) your confidentiality obligations set
-2-
forth above and (b) your
agreement not to assign any of your rights or interest in this
Commitment Letter and your waiver of all rights to trial by jury
set forth below.
Fleet agrees to
keep confidential any information supplied by or on behalf of you,
the Target or any of your or its respective affiliates in
connection with the transactions contemplated by this Commitment
Letter and agree that such information shall be used solely in
connection with the Senior Credit Facility; provided,
however, that nothing herein shall prevent Fleet from
disclosing such information (a) upon the order of any court or
administrative agency, or pursuant to any subpoena or similar legal
process, (b) upon the request or demand of any regulatory
authority, (c) which is or becomes publicly available other than as
a result of a disclosure by Fleet that is prohibited by the terms
of this paragraph, (d) already in its possession prior to its
disclosure by you or received from a third party after such
disclosure by you, in each case under circumstances not requiring
confidentiality, (e) that is independently developed by Fleet
without violating any obligations under this paragraph, (f) to
the extent required by applicable law or required in connection
with any judicial, legislative or regulatory process (it being
understood that Fleet shall provide prompt written notice of such
requirement to you), (g) to its affiliates and to
Fleet’s and its affiliates’ respective directors,
officers, employees, agents (including legal counsel), auditors and
professional advisors (it being understood that the persons to whom
such disclosure is made will be informed of the confidential nature
of such information and will be instructed to keep such information
confidential and that Fleet shall be responsible for the compliance
by such persons), (h) to the extent you have consented to such
disclosure, or (i) in protecting and enforcing its rights
under this Commitment Letter or with respect to the Senior Credit
Facility.
This Commitment
Letter may be executed in counterparts which, taken together, shall
constitute an original. Delivery of an executed counterpart of this
Commitment Letter by telecopier shall be effective as delivery of a
manually executed counterpart thereof.
This Commitment
Letter shall be governed by, and construed in accordance with, the
laws of the State of Connecticut. Each of you and Fleet hereby
irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Commitment Letter
(including, without limitation, the Summary of Terms), the
Transaction and the other transactions contemplated hereby and
thereby or the actions of Fleet in the negotiation, performance or
enforcement hereof.
This Commitment
Letter, together with the Summary of Terms, embodies the entire
agreement and understanding among Fleet, you and your affiliates
with respect to the Senior Credit Facility and supersedes all prior
agreements and understandings relating to the specific matters
hereof. However, please note that the terms and conditions of the
commitments and agreement of Fleet hereunder are not limited to
those set forth herein or in the Summary of Terms. Those matters
that are not covered or made clear herein or in the Summary of
Terms are subject to mutual agreement of the parties. No party has
been authorized by Fleet to make any oral or written statements
that are inconsistent with this Commitment Letter. This Commitment
Letter is not assignable by you or Fleet without the prior written
consent of the other party and is intended to be solely for the
benefit of the parties hereto and the Indemnified
Parties.
Your acceptance of
this Commitment Letter is subject to your payment no later than
5:00 p.m. (Hartford, Connecticut time) on March 7, 2005 of
Fleet’s $125,000 commitment fee for the Senior Credit
Facility, which commitment fee shall be non-refundable and
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