Exhibit 10.16
SUNGARD INSURED RECEIVABLES FACILITY
COLLECTION AGENT AGREEMENT
dated as of August 11, 2005
by and between
SUNGARD DATA SYSTEMS INC.,
as Collection Agent,
and
SUNGARD FUNDING LLC
SUNGARD INSURED RECEIVABLES FACILITY
COLLECTION AGENT AGREEMENT
This Collection Agent Agreement,
dated as of August 11, 2005 is by and between SunGard Funding
LLC, a Delaware limited liability company (“ SunGard
Funding ”), 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 Insured Receivables Credit Agreement, dated as of
August 11, 2005, relating to the SunGard Insured Receivables
Facility, by and among SunGard Funding LLC, a Delaware limited
liability company, JPMorgan Chase Bank, N.A., as Administrative
Agent, the Lenders and Funding Agents parties thereto, and the
Insurer, 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,
as transferee, under the Second Step Agreement.
3. SunGard Funding 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, 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 for the full and prompt
performance of all duties and responsibilities of the Collection
Agent hereunder and (ii) SunGard Funding 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 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 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 and Insurer
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 consents in writing (which consent
shall not be unreasonably withheld), as agent for SunGard Funding
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 a party to any litigation
without the express prior written consent of SunGard Funding 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 of such
remittances. From and after any Early Amortization Date, SunGard
Funding may request that the Collection Agent, and the Collection
Agent thereupon promptly shall, instruct all
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Obligors with respect to the Receivables, to
remit all payments thereon to a new depositary account specified by
SunGard Funding 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.
(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
under this Agreement or any other Loan Document.
(d) The Collection Agent shall hold
in trust for SunGard Funding 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, make available to SunGard Funding all
such Records, at a place selected by SunGard Funding.
(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,
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 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 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 Insured
Receivables Facility.
Section 1.5 Reports
.
(a) The Collection Agent shall
prepare on behalf of and forward to the SunGard Funding a completed
Monthly Report substantially in the form of Exhibit J to
the
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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,
and to the Administrative Agent for distribution to the Lenders,
Funding Agents and the Insurer. 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 Insurer, 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, 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 Insurer may reasonably request relating to
the Transaction or to a Seller’s, the Collection
Agent’s, the SunGard Funding’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 agrees that, so long as
SunGard Parent shall continue to perform as Collection Agent
hereunder, SunGard Funding 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, the
Administrative Agent, the Lenders or the Insurer 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 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).
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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
Collection Agent 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 may have hereunder or under applicable Law,
the Collection Agent hereby agrees to indemnify (and pay upon
demand), protect and hold harmless SunGard Funding 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;
(ii) any failure of the Collection
Agent to perform its duties, covenants or other obligations in
accordance with the provisions of this Agreement or any
other
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Transaction Document or the breach
of any of its representations and/or warranties hereunder or under
any other Transaction Document (including, without limitation, the
failure of any information or report delivered to a party to the
Transaction Documents to be true, complete and correct when made or
deemed to have been made);
(iii) the commingling of Collections
of Receivables at any time with other funds or the failure to
deposit amounts into the appropriate account pursuant to the
Transaction Documents;
(iv) the omission or action, or
allegation thereof, by the Borrower in connection with any
registration or non-registration of the Notes under applicable
securities laws;
(v) [reserved];
(vi) the occurrence of a Collection
Agent Default, or event that with the giving of notice, the lapse
of time and/or both would constitute a Collection Agent Default;
or
(vii) the violation of any foreign,
federal, state or local law, rule or regulation, or any judgment,
order or decree applicable to it, which violation reasonably could
result in a
