Exhibit
10.13
SUNGARD BRIDGE RECEIVABLES FACILITY
COLLECTION AGENT AGREEMENT
dated as of August 11, 2005
by and between
SUNGARD DATA SYSTEMS INC.,
as Collection Agent,
and
SUNGARD FUNDING II LLC
SUNGARD BRIDGE RECEIVABLES FACILITY
COLLECTION AGENT AGREEMENT
This Collection Agent Agreement,
dated as of August 11, 2005 is by and between SunGard Funding
II LLC, a Delaware limited liability company (“ SunGard
Funding II ”), and SunGard Data Systems Inc., a Delaware
corporation (including its permitted assigns, “ SunGard
Parent ” ) as initial Collection Agent (in such capacity,
the “ Collection Agent ”). Unless defined
elsewhere herein, capitalized terms used in this Agreement but not
defined herein shall have the meanings assigned to such in Annex
A to the Bridge Receivables Credit Agreement, dated as of
August 11, 2005, relating to the SunGard Bridge Receivables
Facility, by and among SunGard Funding II LLC, a Delaware limited
liability company, JPMorgan Chase Bank, N.A., as Administrative
Agent, the Lenders and Funding Agents parties thereto, as amended
or modified from time to time (the “ Credit Agreement
”).
PRELIMINARY STATEMENTS
1. Certain Subsidiaries of SunGard
Data Systems Inc. (such Subsidiaries, the “ Sellers
”) will from time to time convey Receivables to SunGard
Financing LLC (“ SunGard Financing ”), as
purchaser under the First Step Agreement.
2. SunGard Financing, as transferor,
will from time to time convey such Receivables to SunGard Funding
II, as transferee, under the Second Step Agreement.
3. SunGard Funding II desires to
appoint SunGard Parent as the initial Collection Agent with respect
to the Receivables, and SunGard Parent is willing to accept such
appointment.
ARTICLE I
ADMINISTRATION AND COLLECTION
Section 1.1 Designation of
Collection Agent; Removal and Replacement .
(a) Appointment as Collection
Agent . The servicing, administration and collection of the
Receivables shall be conducted by such Person (the “
Collection Agent ”) so designated from time to time in
accordance with this Agreement, subject to clause (d) of this
Section. SunGard Parent is hereby appointed as, and will perform
the duties and obligations of, the Collection Agent pursuant to the
terms of this Agreement.
(b) Delegation . SunGard
Parent shall not delegate any of its duties or responsibilities as
Collection Agent to any Person other than (i) the applicable
Seller, (ii) a Person selected by SunGard Funding II, and
(iii) with respect to Charged-Off Receivables, outside
collection agencies in accordance with its customary practices and
the SunGard Financial Policy.
(c) Primarily Responsible .
Notwithstanding the foregoing subsection (b), but subject to the
following subsection (d), (i) SunGard Parent shall be and
remain primarily liable to SunGard Funding II for the full and
prompt performance of all duties and responsibilities of the
Collection Agent hereunder and (ii) SunGard Funding II shall
be entitled to deal exclusively with SunGard Parent in matters
relating to the discharge by the Collection Agent of its duties and
responsibilities hereunder, but shall also be entitled to deal
directly with any Person to whom duties are delegated under clause
(b). SunGard Funding II shall not be required to give notice,
demand or other communication to any Person other than SunGard
Parent in order for communication to the Collection Agent and its
sub-servicer or other delegate with respect thereto to be
accomplished. SunGard Parent, at all times that it is the
Collection Agent, shall be responsible for providing any
sub-servicer or other delegate of the Collection Agent with any
notice given to the Collection Agent under this
Agreement.
(d) Removal and Replacement;
Termination . Upon the occurrence of a Collection Agent
Default, SunGard Funding II shall have the right to remove and
replace SunGard Parent as Collection Agent. SunGard Parent will
cooperate fully in transferring the books, records and functions of
the Collection Agent to any successor Collection Agent. This
Agreement will terminate on the date when all Obligations under the
Transaction Documents are paid in full.
Section 1.2 Duties of
Collection Agent .
(a) The Collection Agent shall take
or cause to be taken all such actions as may be necessary or
advisable to collect, administer and service each Receivable from
time to time, all in accordance with all the terms and provisions
of this Agreement, applicable Law, rules and regulations,
applicable customary and usual industry standards reflecting
prudent management of similar assets, and in accordance with the
SunGard Financial Policy, but without regard to any relationship
the Collection Agent may have with any Obligor or any other Person
who is a party to the Loan Documents. In the enforcement or
collection of any such amount, the Collection Agent shall be
entitled to sue thereon (1) in its own name or (2) if,
but only if, SunGard Funding II consents in writing (which consent
shall not be unreasonably withheld), as agent for SunGard Funding
II subject, in either case, to the consent of the Controlling
Party. In no event shall the Collection Agent be entitled to take
any action which would make SunGard Funding II a party to any
litigation without the express prior written consent of SunGard
Funding II and the Controlling Party.
(b) The Collection Agent will
instruct all Obligors to pay all Collections directly to a Lockbox,
Lockbox Account or Collection Account and will cause each Lockbox
Bank to remit amounts in each Lockbox into the Collection Account
daily. SunGard Parent will cause all Collections in each Lockbox
Account to be remitted daily to the applicable Lockbox Account, and
will cause all Collections in each Lockbox Account to be reimitted
daily to the Collection Account. The Collection Agent shall
maintain in effect at all times a Control Agreement with each bank
party to a Lockbox, Lockbox Account or Collection Account. In the
case of any remittances received in any Lockbox, Lockbox Account or
Collection Account that shall have been identified, to the
satisfaction of the Collection Agent, to not constitute Collections
or other proceeds of the Receivables, the Related Security or
related Collections, the Collection Agent shall promptly remit such
items to the Person identified to it as being the owner
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of such remittances. From and after any Early
Amortization Date, SunGard Funding II may request that the
Collection Agent, and the Collection Agent thereupon promptly
shall, instruct all Obligors with respect to the Receivables, to
remit all payments thereon to a new depositary account specified by
SunGard Funding II and, at all times thereafter, the Collection
Agent shall not deposit or otherwise credit any funds to the
Collection Account, but rather to such new depositary account. If
any payments relating to Receivables are remitted directly SunGard
Parent, SunGard Parent will remit (or will cause all such payments
to be remitted) directly to a Collection Bank and deposited into a
Collection Account within two (2) Business Days following
receipt thereof, and, at all times prior to such remittance, such
SunGard Parent will hold such payments in trust for the exclusive
benefit of SunGard Funding II.
(c) The Collection Agent may, in
accordance with the SunGard Financial Policy, extend the maturity
of any Receivable or adjust the Outstanding Balance of any
Receivable as the Collection Agent determines to be appropriate to
maximize Collections thereof; provided , however ,
that such extension or adjustment shall not alter the status of
such Receivable as a Delinquent Receivable, Defaulted Receivables
or Charged-Off Receivable or limit the rights of SunGard Funding II
under this Agreement or any other Loan Document.
(d) The Collection Agent shall hold
in trust for SunGard Funding II all Records that (i) evidence
or relate to the Receivables, the related Contracts and Related
Security or (ii) are otherwise necessary or desirable to
collect the Receivables and shall, as soon as practicable upon
demand of SunGard Funding II, make available to SunGard Funding II
all such Records, at a place selected by SunGard Funding
II.
(e) The Collection Agent will ensure
that the Lockboxes, the Lockbox Accounts and the Collection Account
will be free and clear of, and defend the Lockboxes, Lockbox
Account and the Collection Account against, any writ, order, stay,
judgment, warrant of attachment or attachment or Lien (other than a
Lien under the Transaction Documents).
Section 1.3 Application of
Payments . Any payment by an Obligor in respect of any
receivable or other obligation owed by it to a Seller shall, except
as otherwise specified by such Obligor or otherwise required by
contract or Law and unless otherwise instructed by SunGard Funding
II, be applied as a Collection of any Receivable of such Obligor
(starting with the oldest such Receivable) to the extent of any
amounts then due and payable thereunder before being applied to any
other receivable or other obligation of such Obligor.
Section 1.4 Responsibilities
of Collection Agent . Anything herein to the contrary
notwithstanding, the exercise by SunGard Funding II of its rights
hereunder shall not release the Collection Agent from any of its
duties or obligations with respect to any Receivables or under the
related Contracts. SunGard Funding II shall have no obligation or
liability with respect to any Receivables or related Contracts, nor
shall any of them be obligated to perform the obligations of the
Collection Agent. For the benefit of each other party to the
Transaction Documents, the Collection Agent will be bound by the
obligations of the “Collection Agent” as used in each
other Transaction Document relating to the SunGard Bridge
Receivables Facility.
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Section 1.5 Reports
.
(a) The Collection Agent shall
prepare on behalf of and forward to the SunGard Funding II a
completed Monthly Report substantially in the form of Exhibit J to
the Credit Agreement with respect to each Monthly Period, not later
than the Determination Date following the end of such Monthly
Period, and deliver copies of it to SunGard Funding II, and to the
Administrative Agent for distribution to the Lenders and Funding
Agents. Such Monthly Report shall include a copy of the magnetic
tape, in the form of an electronic database or spreadsheet file,
using database or spreadsheet software that is readily available to
the Administrative Agent, setting forth, as to each Receivable,
Seller Related Security, Asset and/or SunGard Financing Related
Security, the information required on Exhibit J to the Credit
Agreement.
(b) Promptly upon receipt thereof,
the Collection Agent shall deliver to the Administrative Agent and
the Lenders copies of all schedules, financial statements or other
similar reports delivered to or by a Seller, the Collection Agent,
SunGard Funding II, the Borrower or the Administrative Agent
pursuant to the terms of any of the Transaction Documents,
including all reports provided to either the Administrative Agent
or any Lender pursuant to the Credit Agreement, (B) promptly
upon request, such other data as the Administrative Agent may
reasonably request relating to the Transaction or to a
Seller’s, the Collection Agent’s, the SunGard Funding
II’s or the Borrower’s ability to perform its
obligations under the Transaction Documents and (C) all
information required to be furnished to the Administrative Agent or
the Lenders, as the case may be.
Section 1.6 Servicing
Fees . In consideration of SunGard Parent’s agreement to
act as Collection Agent hereunder, SunGard Funding II agrees that,
so long as SunGard Parent shall continue to perform as Collection
Agent hereunder, SunGard Funding II shall pay over to SunGard
Parent a fee (the “ Servicing Fee ”) on each
date specified in (and from funds available pursuant to)
Section 2.03(c)(i) of the Credit Agreement, in arrears since
the prior date of payment, equal to 0.50% per annum of the
average aggregate Net Receivables Balance during such period, as
compensation for its servicing activities.
Section 1.7 Protection of
Secured Parties’ Rights and Collectibility of Receivables
. The Collection Agent will take no action, nor omit to take any
action, which could reasonably be expected to (a) materially
adversely impair the rights, remedies or interests of SunGard
Funding II, the Administrative Agent or the Lenders under the
Transaction Documents in respect of the Receivables and the other
Collateral or (b) materially impair the collectibility of the
Receivables.
Section 1.8 Performance and
Compliance with Contracts and Receivables . The Collection
Agent will, at its own expense, timely and fully perform and comply
with the material provisions, covenants and other promises required
to be observed by it under the Contracts and the
Receivables.
Section 1.9 Payment of
Taxes . The Collection Agent will pay or cause to be paid all
Taxes that are shown to be due and payable on any tax returns which
are required to be filed or on any assessments that may be made
against the Collection Agent or any of its properties and all other
taxes, fees or other charges that may be imposed on the initial
Collection Agent or any of its properties by any Governmental
Authority (other than those the amount or
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validity of which are contested in good faith by
appropriate proceedings and with respect to which reserves required
to conform with GAAP have been provided on the consolidated books
of the Collection Agent).
Section 1.10 Notices .
The Collection Agent shall give notice to the Indenture Trustee,
promptly (and in no event later than five (5) Business Days)
after becoming aware of the occurrence of any Collection Agent
Default, Early Amortization Event, Event of Default or a breach of
a representation or warranty related to the eligibility of any
Receivable in any material.
Section 1.11 Insurance .
The Collection Agent shall maintain with financially sound and
reputable insurance companies, insurance with respect to its
properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or
similar business, of such types and in such amounts (after giving
effect to any self-insurance reasonable and customary for similarly
situated Persons engaged in the same or similar businesses as the
Performance Guarantor and its Subsidiaries) as are customarily
carried under similar circumstances by such other
Persons.
ARTICLE II
INDEMNIFICATION
Section 2.1 Indemnities by
the Collection Agent . (a) Without limiting any other
rights that SunGard Funding II may have hereunder or under
applicable Law, the Collection Agent hereby agrees to indemnify
(and pay upon demand), protect and hold harmless SunGard Funding II
and its respective assigns, and their officers, directors, agents
and employees (each an “ Indemnified Party ”)
from and against any and all actions, suits, judgments, demands,
damages, losses, claims, taxes, liabilities (including penalties),
costs, expenses and for all other amounts payable, including
reasonable attorneys’ fees and disbursements (all of the
foregoing being collectively referred to as “ Indemnified
Amounts ”) awarded against, incurred by arising out of or
related to any of them arising out of the Collection Agent’s
activities as Collection Agent hereunder excluding, however, in all
of the foregoing instances:
(i) Indemnified Amounts to the
extent a final judgment of a court of competent jurisdiction holds
that such Indemnified Amounts resulted from gross negligence or
willful misconduct on the part of the Indemnified Party seeking
indemnification; or
(ii) Indemnified Amounts to the
extent the same includes losses in respect of Receivables that are
uncollectible on account of the insolvency, bankruptcy or lack of
creditworthiness of the related Obligor.
(b) Without limiting the generality
of the foregoing indemnification, the Collection Agent shall
indemnify the Indemnified Parties for Indemnified Amounts
(including, without limitation, losses in respect of uncollectible
Receivables, regardless of whether reimbursement therefor would
constitute recourse to the Collection Agent) relating to or
resulting from:
(i) the failure by the Collection
Agent to comply with any applicable Law, rule or regulation with
respect to any Receivable or Contract related thereto;
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