BRIDGE RECEIVABLES CREDIT AGT

Exhibit 10.7

 

SUNGARD BRIDGE RECEIVABLES FACILITY

 

BRIDGE RECEIVABLES CREDIT AGREEMENT

 

Dated as of August 11, 2005

 

among

 

SUNGARD FUNDING II LLC,

as the Borrower,

 

The Persons Parties hereto as

Conduit Lenders, Committed Lenders and Funding Agents,

 

and

 

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

TABLE OF CONTENTS

 

 

ii

 

iii

 

iv

 

v

SUNGARD BRIDGE RECEIVABLES FACILITY

BRIDGE RECEIVABLES CREDIT AGREEMENT

 

This CREDIT AGREEMENT (this “ Agreement ” or the “ Credit Agreement ”) dated as of August 11, 2005 is by and among SUNGARD FUNDING II LLC, a Delaware limited liability company (“ SunGard Funding II ” or the “ Borrower ”), the entities identified on Schedule A to this Agreement as a Committed Lender, together with any of their respective successors and assigns hereunder (each, a “ Committed Lender ”), the several commercial paper Conduit Lenders identified on Schedule A hereto, together with any of their respective successors and assigns hereunder (each a “ Conduit Lender ”, and together with the Committed Lenders, the “ Lenders ”), the agent bank set forth opposite the name of each Lender on Schedule A hereto and its permitted successors and assigns (the “ Funding Agent ” with respect to such Lender), and JPMorgan Chase Bank, N.A., as agent for the Lenders and the Funding Agents, or any successor agent hereunder (together with its successors and assigns hereunder, the “ Administrative Agent ”).

 

PRELIMINARY STATEMENTS

 

The Borrower may desire to obtain loans from time to time.

 

Each Conduit Lender may, in its absolute and sole discretion, make loans to the Borrower from time to time.

 

The Committed Lenders in each Related Group (if a Conduit Lender in its Related Group does not make a loan requested by the Borrower) shall make such loan, subject to the terms and conditions of this Agreement.

 

JPMorgan Chase Bank has been requested and is willing to act as Administrative Agent on behalf of the Lenders and the Funding Agents in accordance with the terms hereof.

 

The proceeds of the Loans shall be used solely (i) to pay the purchase price of the Receivables, Collections and Seller Related Security and the SunGard Financing Related Security, and (ii) for the general working capital needs and corporate purposes of SunGard Parent and its Subsidiaries.

 

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I

 

Definitions and Accounting Terms

 

SECTION 1.01. Defined Terms. Terms defined herein have the meanings set forth in Annex A.

 

SECTION 1.02. Other Interpretive Provisions. With reference to this Agreement and each other Transaction Document, unless otherwise specified herein or in such other Transaction Document:

 

(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b) (i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Transaction Document shall refer to such Transaction Document as a whole and not to any particular provision thereof.

 

(ii) Article, Section, Annex, Schedule and Exhibit references are to the Transaction Document in which such reference appears.

 

(iii) The term “including” is by way of example and not limitation.

 

(iv) The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

 

(c) In the computation of periods of time from a specified date to a later specified date, except as otherwise provided herein, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”

 

(d) Section headings herein and in the other Transaction Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Transaction Document.

 

SECTION 1.03. Accounting Terms. (a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, applied in a manner consistent with that used in preparing the audited financial statements of SunGard Parent and its consolidated Subsidiaries, except as otherwise specifically prescribed herein.

 

SECTION 1.04. Rounding. Any financial ratios required to be maintained by SunGard Parent and its Subsidiaries pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other

 

2

component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

 

SECTION 1.05. References to Agreements, Laws, Etc. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Transaction Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are permitted by any Transaction Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

 

SECTION 1.06. Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

 

SECTION 1.07. Timing of Payment of Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day.

 

ARTICLE II

 

The Facility Limit and Borrowings

 

SECTION 2.01. The Loans. Subject to the terms and conditions set forth herein, each Conduit Lender may in its sole and absolute discretion make loans, and each Committed Lender will (to the extent the Conduit Lender(s) in its Related Group do not make such loans) make loans to the Borrower pursuant to Section 2.02 (each such loan, a “ Loan ”) from time to time, on any Settlement Date until the Amortization Date based upon the Monthly Report delivered with respect to the immediately preceding Determination Date; provided, however, that (i) after giving effect to any Borrowing, the Outstanding Amount of the Loans of any Related Group shall not exceed such Related Group’s Related Group Limit, and (ii) after giving effect to any Borrowing, the Outstanding Amount of all Loans will not exceed the lesser of (x) the Facility Limit less the Outstanding Amount of the Insured Loans, and (y) the Borrowing Base. Within the limits of each Related Group’s Related Group Limit, and each Committed Lender’s Commitment, and subject further to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01, prepay under Section 2.03, and reborrow under this Section 2.01.

 

SECTION 2.02. Borrowings, Conversions and Continuations of Loans. (a) (i) Except as otherwise provided in this Section 2.02(a)(i), the Borrower may request only CP Rate Loans. If a Conduit Lender declines to make a Loan, or if a

 

3

Related Group does not have a Conduit Lender, any requested Loan will be made as a Committed Loan. Each Borrowing shall be made upon the Borrower’s notice to the Administrative Agent, which may be given by telephone, and which shall be irrevocable except as specified below. In the case of an outstanding Committed Loan, continuation or conversion of such Loan shall be made upon the Borrower’s notice to the Administrative Agent, which may be given by telephone, and which shall be irrevocable except as specified below. Each such notice must be received by the Administrative Agent:

 

(A) in the case of CP Rate Loans, by 3:00 p.m. two Business Days before proposed date of Borrowing (or in the case of a Borrowing of CP Rate Loans on the Closing Date, by 12:00 noon on the Business Day preceding the Closing Date);

 

(B) in the case of Base Rate Loans, by 1:00 p.m. on the same Business Day as the proposed date of Borrowing;

 

(C) in the case of LIBO Rate Loans, by 1:00 p.m. three Business Days before the proposed date of Borrowing or continuation or conversion of LIBO Rate Loans or any conversion of Base Rate Loans to LIBO Rate Loans.

 

(ii) Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Following the receipt of a Loan Notice, the Administrative Agent shall deliver the Loan Notice to the Funding Agents with a copy to the Insurer. Following the receipt of a Loan Notice, the Funding Agent of each Related Group will determine whether each related Conduit Lender will make its portion of the requested Loan and promptly notify the Administrative Agent if such Conduit Lender will not make such Loan. If a Conduit Lender declines to make the proposed Loan, then, subject to the terms and conditions contained in this Section 2.01, the Committed Lenders in such Conduit Lender’s Related Group shall make such Loan.

 

(iii) Each Borrowing of, conversion to or continuation of LIBO Rate Loans shall be in a minimum principal amount of $1,000,000 and a multiple of $100,000, or in the remaining amount of the applicable Related Group’s Related Group Limit.

 

(iv) Each Loan Notice (whether telephonic or written) shall specify (A) whether the Borrower is requesting a Borrowing of CP Rate Loans, a continuation of LIBO Rate Loans, or a conversion of Committed Loans to CP Rate Loans, (B) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Settlement Date), and (C) the principal amount of Loans to be borrowed, converted or continued; provided, however, that the Interest Period for any LIBO Rate Loan shall end on the next Settlement Date. If the Borrower requests a Borrowing of CP Rate Loans, and all or a portion of such Borrowing is made as a Committed Loan, such Committed Loan will be made (1) if there is not enough time to determine the applicable

 

4

Adjusted LIBO Rate, as a Base Rate Loan and converted as soon as practicable to a LIBO Rate Loan with an Interest Period ending on the next following Determination Date, and (2) otherwise as a LIBO Rate Loan with an Interest Period ending on the next following Determination Date. The Borrower may from time to time request that any outstanding Committed Loan of any Committed Lender be converted into a CP Rate Loan made by the Conduit Lender in the same Related Group, and such Conduit Lender may in its sole and absolute discretion make such Loan. Notwithstanding anything to the contrary in this Agreement, the proceeds of such CP Rate Loan will be applied to the payment of principal of such Committed Loan.

 

(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Funding Agent of the amount of its Pro Rata Share of the applicable Borrowing, and, if no timely notice of a Borrowing, conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation described in Section 2.02(a). In the case of each Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Borrower in Same Day Funds not later than 12:00 noon, on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Borrowing, Sections 4.01 and 4.02), the Lenders shall make all funds so received available to the Borrower in like funds either by (i) crediting the account of the Borrower on their respective books with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower. If a Related Group contains more than one Conduit Lender and/or Committed Lender, allocations of Loans among such Conduit Lenders and/or Committed Lenders may be made by the applicable Funding Agent in its discretion.

 

(c) Except as otherwise provided herein, a LIBO Rate Loan may be continued or converted to a Base Rate Loan only on the last day of an Interest Period for such LIBO Rate Loan unless the Borrower pays the amount due, if any, under Section 3.05 in connection therewith. Upon the existence of and during the continuance of an Early Amortization Event, the Administrative Agent or the Required Lenders may require that no Loans may be converted to or continued as LIBO Rate Loans.

 

(d) Upon a request of the Borrower, the Administrative Agent will request each Funding Agent to promptly provide the Borrower with an estimate of the prevailing CP Rate of the Conduit Lenders in its Related Group. The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for LIBO Rate Loans upon determination of such interest rate. The determination of the LIBO Rate by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in JPMorgan Chase Bank’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

 

5

(e) The failure of any Committed Lender to make the Loan to be made by it as part of any Borrowing shall not relieve it or any other Committed Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing. If a Committed Lender fails to make its Pro Rata Share of any Loan, all other non-defaulting Committed Lenders will be obligated to make additional Loans (not subject to the minimum and multiple requirements of Section 2.02(a)(iii)) on a pro rata basis based on the Related Group Limits of each such non-defaulting Committed Lender, but not in excess of such non-defaulting Committed Lender’s applicable Related Group Limit.

 

SECTION 2.03. Prepayments. (a)  [Reserved.]

 

(b) Mandatory . If the Outstanding Amount of all Loans on any day exceeds the lesser of (x) the Facility Limit less the Outstanding Amount of the Insured Loans, and (y) the Borrowing Base then in effect, the Borrower shall promptly prepay or cause to be promptly prepaid Loans in an aggregate amount equal to such excess (the “ Overadvance Amount ”) and give notice to the Administrative Agent of such prepayment. The Administrative Agent will promptly notify each Funding Agent of its receipt of each such notice, and of the amount of such Related Group’s Pro Rata Share of such prepayment. The Overadvance Amount will be payable as set forth in Section 2.03(c). Each prepayment of the Loans pursuant to this Section 2.03(b) shall be paid to the applicable Related Group in accordance with their respective Pro Rata Shares.

 

(c) Application of Funds in Collection Account . On each Business Day, the Borrower shall allocate and apply the funds on deposit in the Collection Account (including any amounts deposited pursuant to Section 4.1(p) of the Second Step Agreement) in the following amounts and in the following priority:

 

(i) first , (A) before the Amortization Date, on each Settlement Date (and on each following Business Day until paid in full), to the payment of accrued and unpaid Collection Agent Fee for the most recently ended Monthly Period, and (B) on and after the Amortization Date, on each Business Day, to the payment of accrued and unpaid Collection Agent Fee;

 

(ii) second , (A) before the Amortization Date, on each Settlement Date (and on each following Business Day until paid in full), ratably to the reimbursement of the Administrative Agent’s accrued and unpaid reasonable costs of collection and enforcement of this Agreement and the other Transaction Documents for the most recently ended Accrual Period, and (B) on and after the Amortization Date, on each Business Day, to the reimbursement of the Administrative Agent’s accrued and unpaid reasonable costs of collection and enforcement of this Agreement and the other Transaction Documents;

 

(iii) third , (A) before the Amortization Date, on each Settlement Date (and on each following Business Day until paid in full), ratably to the payment of all accrued and unpaid fees under the Administrative Agent Fee Letter, the Used Fee and interest on Loans that has accrued during the most recently completed Accrual Period (less any adjustments to any of the foregoing that would result in

 

6

a reduction of the applicable amount for a prior Settlement Date), and (B) on and after the Amortization Date, on each Business Day, ratably to the payment of all accrued and unpaid fees under the Fee Letter, the Administrative Agent Fee Letter, the Used Fee and interest on Loans;

 

(iv) fourth , on any Business Day before the Amortization Date, to the payment of Overadvance Amounts;

 

(v) fifth , [reserved];

 

(vi) sixth , on each Business Day on and after the Amortization Date, to the payment of the Outstanding Amount of all Loans;

 

(vii) seventh , on each Business Day, to the ratable payment of all other Obligations; and

 

(viii) eighth , on each Business day, to the Borrower for distribution to SunGard Financing.

 

SECTION 2.04. Reduction of the Facility Limit. (a) The Borrower may, upon written notice to the Administrative Agent, from time to time permanently reduce the unused amount of the Facility Limit; provided, however, that (i) any such notice shall be received by the Administrative Agent three Business Days before the date of reduction, (ii) any partial reduction shall be in a minimum amount of $1,000,000 and a multiple of $100,000, or in the whole unused amount; and (iii) after giving effect to such reduction, the Outstanding Amount of Loans and Insured Loans will not be greater than the Facility Limit.

 

(b) Upon any reduction of unused amount of the Facility Limit, the Related Group Limit of each Related Group shall be reduced by such Related Group’s Pro Rata Share of the amount by which the Facility Limit is reduced.

 

SECTION 2.05. Interest. (a) Subject to the provisions of Section 2.05(b), (i) each CP Rate Loan shall bear interest on the Outstanding Amount thereof on each day at a per annum rate at the CP Rate, (ii) each LIBO Rate Loan shall bear interest on the Outstanding Amount thereof for each Interest Period at a rate per annum equal to the Adjusted LIBO Rate for such Interest Period, and (iii) each Base Rate Loan shall bear interest on the Outstanding Amount on each day at a rate per annum equal to the Base Rate.

 

(b) The Borrower shall pay interest (i) on the principal amount of Loans on and after the Early Amortization Date, and (ii) on all other past due amounts hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

 

(c) Interest accrued during each Accrual Period on each Loan and any other amount shall be due and payable in arrears on the next following Settlement Date

 

7

and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law. Interest accrued on each Loan shall be payable to each Lender in accordance with its Pro Rata Share.

 

SECTION 2.06. Fees. (a)  Used Fee . For each Accrual Period, the Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Pro Rata Share, a used fee (the “ Used Fee ”) equal to the product of (i) the average Outstanding Amount of Loans for such Accrual Period, and (ii) the applicable rate set forth in the Fee Letter.

 

(b) [Reserved].

 

(c) [Reserved].

 

(d) Other Fees . The Borrower shall pay to the Administrative Agent such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

 

SECTION 2.07. Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by JPMorgan Chase Bank’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a year of 360 days and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided, however, that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.09(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

 

SECTION 2.08. Evidence of Indebtedness. (a) The Borrowings made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c), as agent for the Borrower, in each case in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be prima facie evidence absent manifest error of the amount of the Borrowings made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower

 

8

shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such Lender, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

 

(b) Entries made in good faith by the Administrative Agent in the Register pursuant to Sections 2.08(a), and by each Lender in its account or accounts pursuant to Sections 2.08(a), shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement, absent manifest error; provided, however, that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement and the other Transaction Documents.

 

SECTION 2.09. Payments Generally. (a) All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, in Same Day Funds not later than 11:00 a.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer. All payments received by the Administrative Agent after 11:00 a.m., shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.

 

(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

 

(c) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

(d) The obligations of the Committed Lenders hereunder to make Committed Loans are several and not joint. The failure of any Committed Lender to make any Committed Loan on any date required hereunder shall not relieve it or any other Committed Lender of its corresponding obligation to do so on such date, and no Committed Lender shall be responsible for the failure of any other Committed Lender to so make its Committed Loan.

 

9

(e) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

 

(f) If the Administrative Agent receives funds for application to the Obligations of the Borrower under or in respect of the Transaction Documents under circumstances for which the Transaction Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the Outstanding Amount of all Loans outstanding at such time.

 

SECTION 2.10. Sharing of Payments. If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of the Loans made by it, any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans, pro rata with each of them; provided, however , that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 11.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by applicable Law, exercise all its rights of payment (including the right of setoff, but subject to Section 11.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.10 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.10 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.

 

10

ARTICLE III

 

Taxes, Increased Costs Protection and Illegality

 

SECTION 3.01. Taxes. (a) Except as provided in this Section 3.01, any and all payments by the Borrower to or for the account of any Agent or any Lender under any Transaction Document shall be made free and clear of and without deduction for any and all present or future taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and all liabilities (including additions to tax, penalties and interest) with respect thereto, excluding, in the case of each Agent and each Lender, taxes imposed on or measured by its net income or overall gross income (including branch profits), and franchise (and similar) taxes imposed on it in lieu of net income taxes, by the jurisdiction (or any political subdivision thereof) under the Laws of which such Agent or such Lender, as the case may be, is organized or maintains a lending office, and all liabilities (including additions to tax, penalties and interest) with respect thereto (all such non-excluded taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and liabilities being hereinafter referred to as “ Taxes ”). If the Borrower shall be required by any Laws to deduct any Taxes or Other Taxes from or in respect of any sum payable under any Transaction Document to any Agent or any Lender, (i) the sum payable shall be increased as necessary so that, after making all required deductions (including deductions applicable to additional sums payable under this Section 3.01), each of such Agent and such Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable Laws, and (iv) within thirty (30) days after the date of such payment (or, if receipts or evidence are not available within thirty (30) days, as soon as possible thereafter), the Borrower shall furnish to such Agent or Lender (as the case may be) the original or a certified copy of a receipt evidencing payment thereof to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent. If the Borrower fails to pay any Taxes or Other Taxes when due to the appropriate taxing authority or fails to remit to any Agent or any Lender the required receipts or other required documentary evidence, the Borrower shall indemnify such Agent and such Lender for any incremental taxes, interest or penalties that may become payable by such Agent or such Lender arising out of such failure.

 

(b) In addition, the Borrower agrees to pay any and all present or future stamp, court or documentary taxes and any other excise, property, intangible or mortgage recording taxes or charges or similar levies which arise from any payment made under any Transaction Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Transaction Document (hereinafter referred to as “ Other Taxes ”).

 

(c) The Borrower agrees to indemnify each Agent and each Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable under this Section 3.01) paid by such Agent and such Lender and (ii) any liability (including additions to tax, penalties,

 

11

interest and expenses) arising therefrom or with respect thereto, in each case whether or not such Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided , however, that such Agent or Lender, as the case may be, provides the Borrower with a written statement thereof setting forth in reasonable detail the basis and calculation of such amounts. Payment under this Section 3.01(c) shall be made within thirty (30) days after the date such Lender or such Agent makes a demand therefor.

 

(d) The Borrower shall be required pursuant to this Section 3.01 to pay any additional amount to, or to indemnify any Lender or Agent, as the case may be, to the extent that such Lender or such Agent becomes subject to Taxes subsequent to the Closing Date (or, if later, the date such Lender or Agent becomes a party to this Agreement) as a result of a change in the place of organization of such Lender or Agent or a change in the lending office of such Lender, except to the extent that any such change is requested or required in writing by the Borrower (and provided that nothing in this clause (d) shall be construed as relieving the Borrower from any obligation to make such payments or indemnification in the event of a change in lending office or place of organization that precedes a change in Law to the extent such Taxes result from a change in Law).

 

(e) Notwithstanding anything else herein to the contrary, if a Lender or an Agent is subject to withholding tax imposed by any jurisdiction in which the Borrower is formed or organized at a rate in excess of zero percent at the time such Lender or such Agent, as the case may be, first becomes a party to this Agreement, withholding tax imposed by such jurisdiction at such rate shall be considered excluded from Taxes unless and until such Lender or Agent, as the case may be, provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such forms; provided, however , that, if at the date of the Assignment and Assumption pursuant to which a Lender becomes a party to this Agreement, the Lender assignor was entitled to payments under clause (a) of this Section 3.01 in respect of withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) withholding tax, if any, applicable with respect to the Lender assignee on such date.

 

(f) If any Lender or Agent determines, in its reasonable discretion, that it has received a refund in respect of any Taxes or Other Taxes as to which indemnification or additional amounts have been paid to it by the Borrower pursuant to this Section 3.01, it shall promptly remit such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 3.01 with respect to the Taxes or Other Taxes giving rise to such refund plus any interest included in such refund by the relevant taxing authority attributable thereto) to the Borrower, net of all out-of-pocket expenses of such Lender or Agent, as the case may be, and without interest (other than any interest paid by the relevant taxing authority with respect to such refund); provided, however , that the Borrower, upon the request of such Lender or Agent, as the case may be, agrees promptly to return such refund to such party in the event such party is required to repay such refund to the relevant taxing authority. Such Lender or Agent, as

 

12

the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant taxing authority ( provided, however, that such Lender or Agent may delete any information therein that such Lender or Agent deems confidential). Nothing herein contained shall interfere with the right of a Lender or Agent to arrange its tax affairs in whatever manner it thinks fit nor oblige any Lender or Agent to claim any tax refund or to make available its tax returns or disclose any information relating to its tax affairs or any computations in respect thereof or require any Lender or Agent to do anything that would prejudice its ability to benefit from any other refunds, credits, reliefs, remissions or repayments to which it may be entitled.

 

(g) Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 3.01(a) or (c) with respect to such Lender it will, if requested by Borrower, use commercially reasonable efforts (subject to such Lender’s overall internal policies of general application and legal and regulatory restrictions) to designate another lending office for any Loan affected by such event; provided, however, that (i) such efforts are made on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory disadvantage, and (ii) nothing in this Section 3.01(g) shall affect or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Section 3.01(a) or (c).

 

SECTION 3.02. Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender to make, maintain or fund LIBO Rate Loans, or to determine or charge interest rates based upon the LIBO Rate, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue LIBO Rate Loans or to convert Base Rate Loans to LIBO Rate Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall upon demand from such Lender (with a copy to the Administrative Agent) prepay or, if applicable, convert all LIBO Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBO Rate Loans to such day, or promptly, if such Lender may not lawfully continue to maintain such LIBO Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted and all amounts due, if any, in connection with such prepayment or conversion under Section 3.05. Each Lender agrees to designate a different lending office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.

 

SECTION 3.03. Inability to Determine Rates. If the Required Lenders determine that for any reason adequate and reasonable means do not exist for determining the LIBO Rate for any requested Interest Period with respect to a proposed LIBO Rate Loan, or that the LIBO Rate for any requested Interest Period with respect to a proposed LIBO Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, or that Dollar deposits are not being offered to banks in the London

 

13

interbank eurodollar market for the applicable amount and the Interest Period of such LIBO Rate Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain LIBO Rate Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of LIBO Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

 

SECTION 3.04. Increased Cost and Reduced Return; Capital Adequacy; Reserves on LIBO Rate Loans. (a) If any Lender or Support Party determines that, as a result of the introduction of or any change in or in the interpretation of any Law, in each case after the date hereof, or such Lender’s or Support Party’s compliance therewith, there shall be any increase in the cost to such Lender or Support Party of agreeing to make or making, funding or maintaining LIBO Rate Loans, or a reduction in the amount received or receivable by such Lender or Support Party in connection with any of the foregoing (excluding for purposes of this Section 3.04(a) any such increased costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section 3.01 shall govern), (ii) changes in the basis of taxation of overall net income or overall gross income (including branch profits), and franchise (and similar) taxes imposed in lieu of net income taxes, by the United States or any foreign jurisdiction or any political subdivision of either thereof under the Laws of which such Lender or Support Party is organized or maintains a lending office, (iii) reserve requirements contemplated by Section 3.04(c), then, from time to time within fifteen (15) days after demand by such Lender or Support Party setting forth in reasonable detail such increased costs (with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrower shall pay to such Lender or Support Party such additional amounts as will compensate such Lender or Support Party for such increased cost or reduction.

 

(b) If any Lender or Support Party determines that the introduction of any Law regarding capital adequacy or any change therein or in the interpretation thereof, in each case after the date hereof, or compliance by such Lender or Support Party (or its lending office) therewith, has the effect of reducing the rate of return on the capital of such Lender or Support Party or any corporation controlling such Lender or Support Party as a consequence of such Lender’s or Support Party’s obligations hereunder (taking into consideration its policies with respect to capital adequacy and such Lender’s or Support Party’s desired return on capital), then from time to time upon demand of such Lender or Support Party setting forth in reasonable detail the charge and the calculation of such reduced rate of return (with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrower shall pay to such Lender or Support Party such additional amounts as will compensate such Lender or Support Party for such reduction within fifteen (15) days after receipt of such demand.

 

(c) The Borrower shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including eurocurrency funds or deposits, additional interest on the unpaid principal

 

14

amount of each LIBO Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive in the absence of manifest error), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the loan commitments or the funding of the LIBO Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such loan commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error) which in each case shall be due and payable on each date on which interest is payable on such Loan; provided , however , that the Borrower shall have received at least fifteen (15) days’ prior notice (with a copy to the Administrative Agent) of such additional interest or cost from such Lender.

 

(d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.04 shall not constitute a waiver of such Lender’s right to demand such compensation; provided , however, that (i) the Borrower shall not be required to compensate a Lender pursuant to Section 3.04(a), (b) or (c) for any such increased cost or reduction incurred more than one hundred and eighty (180) days prior to the date that such Lender demands, or notifies the Borrower of its intention to demand, compensation therefor; and (ii) if the circumstance giving rise to such increased cost or reduction is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

 

(e) If any Lender requests compensation under this Section 3.04, then such Lender will, if requested by the Borrower, use commercially reasonable efforts to designate another lending office for any Loan affected by such event; provided , however, that (i) such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its lending office(s) to suffer no material economic, legal or regulatory disadvantage, and (ii) nothing in this Section 3.04(e) shall affect or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Section 3.04(a), (b), (c) or (d).

 

SECTION 3.05. Funding Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

 

(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (in each case, whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or

 

(b) any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any

 

15

Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower;

 

including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.

 

For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each LIBO Rate Loan made by it at the LIBO Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such LIBO Rate Loan was in fact so funded.

 

SECTION 3.06. Matters Applicable to All Requests for Compensation. (a) Any Agent or any Lender claiming compensation under this Article III shall deliver a certificate to the Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods.

 

(b) With respect to any Lender’s claim for compensation under Section 3.01, 3.02, 3.03 or 3.04, the Borrower shall be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Borrower of the event that gives rise to such claim; provided , however, that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. If any Lender requests compensation by the Borrower under Section 3.04, the Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or continue from one Interest Period to another LIBO Rate Loans, or to convert Base Rate Loans into LIBO Rate Loans, until the event or condition giving rise to such request ceases to be in effect (in which case the provisions of Section 3.06(c) shall be applicable); provided, however, that such suspension shall not affect the right of such Lender to receive the compensation so requested.

 

(c) If the obligation of any Lender to make or continue from one Interest Period to another any LIBO Rate Loan, or to convert Base Rate Loans into LIBO Rate Loans shall be suspended pursuant to Section 3.06(b) hereof, such Lender’s LIBO Rate Loans shall be automatically converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for such LIBO Rate Loans (or, in the case of an immediate conversion required by Section 3.02, on such earlier date as required by Law) and, unless and until such Lender gives notice as provided below that the circumstances specified in Section 3.01, 3.02, 3.03 or 3.04 hereof that gave rise to such conversion no longer exist:

 

(i) to the extent that such Lender’s LIBO Rate Loans have been so converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s LIBO Rate Loans shall be applied instead to its Base Rate Loans; and

 

16

(ii) all Loans that would otherwise be made or continued from one Interest Period to another by such Lender as LIBO Rate Loans shall be made or continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise be converted into LIBO Rate Loans shall remain as Base Rate Loans.

 

(d) If any Lender gives notice to the Borrower (with a copy to the Agent) that the circumstances specified in Section 3.01, 3.02, 3.03 or 3.04 hereof that gave rise to the conversion of such Lender’s LIBO Rate Loans pursuant to this Section 3.06 no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when LIBO Rate Loans made by other Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding LIBO Rate Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding LIBO Rate Loans and by such Lender are held pro rata (as to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective Pro Rata Share.

 

SECTION 3.07. Payable from Collections. Amounts payable by the Borrower under Sections 3.01, 3.04 and 3.05 are payable only to the extent that funds are available under Section 2.03(c)(vii).

 

ARTICLE IV

 

Conditions Precedent to Borrowings

 

SECTION 4.01. Conditions to the Effectiveness of this Agreement. The effectiveness of this Agreement is subject to satisfaction on or prior to the Closing Date of the conditions precedent set forth on Schedule B hereto, and the following conditions precedent:

 

(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:

 

(i) executed counterparts of the Transaction Documents listed on Schedule B hereto;

 

(ii) a Note executed by the Borrower in favor of each Lender that has requested a Note at one Business Day in advance of the Closing Date;

 

(iii) the Security Agreement set forth on Schedule B, duly executed by the Borrower, together with:

 

(A) copies of all searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to meet the Collateral and Guarantee Requirement, and

 

17

(B) evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;

 

(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower, the Finance Subsidiaries, the Performance Guarantor and the Sellers as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Transaction Documents to which such the Borrower is a party or is to be a party on the Closing Date;

 

(v) one or more opinions from (i) Simpson Thacher & Bartlett LLP, New York counsel to the Borrower and its Affiliates substantially in the form of Exhibit I, (ii) an opinion of the internal counsel to the Borrower, substantially in the form of Exhibit I-2, and (iii) opinions of the local counsels to the Borrower and its Affiliates, substantially in the form of the drafts thereof delivered to the Administrative Agent prior to the Closing Date; in each case reasonably satisfactory to the Funding Agents and their respective counsel;

 

(vi) a Loan Notice relating to the initial Loan.

 

(b) [reserved];

 

(c) The representations and warranties of the Borrower contained in Article V of this Agreement or any other Transaction Document shall be true and correct in all material respects on and as of the Closing Date; provided, however, that, (i) to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; and (ii) any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates;

 

(d) The Funding Agents shall have received confirmation that the Borrower, SunGard Financing and the Sellers have established the Lockboxes, Lockbox Accounts and the Collection Account referred to in Schedule C, and the Funding Agents shall otherwise be reasonably satisfied with the arrangements for the collection of Receivables to be purchased by SunGard Financing and the Borrower;

 

(e) [Reserved];

 

(f) [Reserved]

 

(g) [Reserved]

 

18

(h) [Reserved];

 

(i) No Early Amortization Event or Potential Early Amortization Event has occurred and is continuing; and

 

(j) All conditions precedent to the initial Credit Extension (as defined in the Senior Credit Agreement) under the Senior Credit Agreement have been satisfied without waiver and, in the event of waiver, subject to the Required Lenders’ approval.

 

SECTION 4.02. Conditions to All Loans. The obligation of each Lender to honor any Loan Notice is subject to the following conditions precedent:

 

(a) The representations and warranties of each Borrower Party contained in Article V or any other Transaction Document shall be true and correct in all material respects on and as of the date of such Loan (except in the case of the conversion to or the continuation of LIBO Rate Loans); provided, however, that, (i) to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; and (ii) any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.

 

(b) No Early Amortization Event or Potential Early Amortization Event has occurred and is continuing or would result from such proposed Loan or from the application of the proceeds therefrom.

 

(c) The Administrative Agent shall have received a Loan Notice in accordance with the requirements hereof.

 

(d) All periodic reports required to be delivered pursuant to Section 6.01 shall have been delivered to the Administrative Agent and the Funding Agents, in form and substance satisfactory to the Administrative Agent.

 

Each Loan Notice (other than one requesting only a conversion of Committed Loans from one Type to another) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Loan.

 

ARTICLE V

 

Representations and Warranties

 

The Borrower represents and warrants to the Funding Agents, Lenders and Administrative Agent that:

 

Section 5.01 Existence, Qualification and Power; Compliance with Laws. The Borrower (a) is a Person duly formed, validly existing and in good standing under the Laws of the jurisdiction of its organization, (b) has all requisite power and authority to (i) own or lease its assets and carry on its business and (ii) execute, deliver

 

19

and perform its obligations under the Transaction Documents to which it is a party, (c) is duly qualified and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, (d) is in compliance with all Laws, orders, writs, injunctions and orders and (e) has all requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted; except in each case referred to in clause (c), (d) or (e), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

Section 5.02 Authorization; No Contravention. The execution, delivery and performance by the Borrower of this Agreement and each other Transaction Document to which the Borrower is a party, and the consummation of the Transactions, are within the Borrower’s limited liability company powers, have been duly authorized by all necessary limited liability company action, and do not and will not (a) contravene the terms of any of the Borrower’s Organization Documents, (b) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.01), or require any payment to be made under (i) any Contractual Obligation to which the Borrower is a party or affecting the Borrower or the properties of the Borrower or any of its Subsidiaries or (ii) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its property is subject; or (c) violate any material Law; except with respect to any conflict, breach or contravention or payment (but not creation of Liens) referred to in clause (b)(i), to the extent that such conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect.

 

Section 5.03 Governmental Authorization; Other Consents. No material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, the Borrower of this Agreement or any other Transaction Document, or for the consummation of the Transactions, (b) the grant by the Borrower of the Liens granted by it pursuant to the Security Agreement, (c) the perfection or maintenance of the Liens created under the Security Agreement (including the priority thereof) or (d) the exercise by the Administrative Agent or any Lender of its rights under the Transaction Documents or the remedies in respect of the Collateral pursuant to the Security Agreement, except for (i) filings necessary to perfect the Liens on the Collateral granted by the Borrower in favor of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect and (iii) those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect.

 

Section 5.04 Binding Effect. This Agreement and each other Transaction Document has been duly executed and delivered by the Borrower that is party thereto. This Agreement and each other Transaction Document constitutes, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower that is party thereto

 

20

in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity.

 

Section 5.05 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, probable of assertion, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues that (a) either individually or in the aggregate, could reasonably be expected to have a material and adverse effect any Lender, (b) either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or (c) question the validity of the Transactions.

 

Section 5.06 No Default. The Borrower is not in default under or with respect to, or a party to, any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

Section 5.07 Ownership of Property; Liens. The Borrower has good record and marketable title in fee simple to, or valid leasehold interests in, or easements or other limited property interests in, all personal and real property necessary in the ordinary conduct of its business, free and clear of all Liens except for minor defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes and Liens permitted by Section 7.01 and except where the failure to have such title could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

Section 5.08 Taxes. Except as set forth in Schedule 5.10 to the Senior Credit Agreement and except as could not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, the Borrower has filed all Federal and state and other tax returns and reports required to be filed, and has paid all Federal and state and other taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those (a) which are not overdue by more than thirty (30) days or (b) which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP.

 

Section 5.09 Employees. On the Closing Date, the Borrower does not have any employees.

 

Section 5.10 Subsidiaries; Equity Interests. As of the Closing Date, the Borrower has no Subsidiaries, and all of the outstanding equity interests of the Borrower have been validly issued, are fully paid and nonassessable and are owned by SunGard Financing free and clear of all Liens except those created under the Security Agreement.

 

Section 5.11 Margin Regulations; Investment Company Act; Public Utility Holding Company Act. (a) The Borrower is not engaged nor will it engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending

 

21

credit for the purpose of purchasing or carrying margin stock, and no proceeds of any Borrowings will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.

 

(b) None of the Borrower, any Person Controlling the Borrower or any Subsidiary (i) is a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, or (ii) unless exempt from the Investment Company Act of 1940, is or is required to be registered as an “investment company” under the Investment Company Act of 1940, or is controlled by an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

 

Section 5.12 Solvency. On the Closing Date after giving effect to the Transactions, the Borrower, on a consolidated basis, is Solvent.

 

Section 5.13 Certificates. On the Closing Date, none of the equity interests of the Borrower have been certificated.

 

Section 5.14 Perfection . This Agreement, together with the filing of the financing statements contemplated hereby, is effective to create in favor of the Administrative Agent for the benefit of the Lenders (and the Administrative Agent for the benefit of the Lenders shall acquire from the Borrower) a valid and perfected first priority security interest in each Receivable, now owned or hereafter acquired by the Borrower or in which the Borrower has a security interest and in the Related Security and Collections with respect thereto, and the SunGard Financing Related Security, free and clear of any Lien, except as created by the Transaction Documents. There have been duly filed all financing statements or other similar instruments or documents necessary under the Uniform Commercial Code (or any comparable law) of all appropriate jurisdictions to perfect the Administrative Agent’s (on behalf of the Lenders) security interest in all such Receivables, the Related Security and the Collections with respect thereto, and in the SunGard Financing Related Security.

 

Section 5.15 Early Amortization Event; Potential Early Amortization Event . No Early Amortization Event or Potential Early Amortization Event has occurred and is continuing.

 

Section 5.16 Good Title . (a) Immediately before the Borrower purchased the Receivables from SunGard Financing under the Second Step Agreement, SunGard Financing was the legal and beneficial owner of each such Receivables and the Related Security and the Collections, free and clear of any Lien, except as created by the Transaction Documents. (b) Immediately after the Borrower purchases the Receivables from SunGard Financing under the Second Step Agreement, the Borrower will either (i) be the legal and beneficial owner of each such Receivables, and the Related Security and Collections with respect thereto, free and clear of any Lien, except as created by the Transaction Documents, or (ii) have a valid and perfected security interest in the

 

22

Receivables, Collections and Related Security free and clear of any Lien, claims or encumbrances of any Person, other than the Liens created by the Security Agreement.

 

Section 5.17 Uniform Commercial Code Article 9 Representation. (i)  Creation . The Security Agreement creates a valid and continuing security interest (as defined in the applicable Uniform Commercial Code) in the Receivables, the Collections and the Related Security in favor of the Administrative Agent for the benefit of the Lenders, which security interest is prior to all other Liens, and is enforceable as such as against creditors of and purchasers from the Borrower.

 

(ii) Accounts . The Receivables, Collections and Related Security constitute either “accounts”, “payment intangibles” or “deposit accounts” within the meaning of the Uniform Commercial Code.

 

(iii) Title . The Administrative Agent, for the benefit of the Lenders, has a valid security interest in the Receivables, Collections and Related Security free and clear of any Lien, claims or encumbrances of any Person, other than the Liens created by the Security Agreement.

 

(iv) Perfection . The Borrower has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Receivables, Collections and Related Security granted to SunGard Funding II hereunder to the extent that they constitute “accounts”, “general intangibles” or “deposit accounts”. SunGard Financing has delivered to the Administrative Agent a fully executed agreement pursuant to which the banks maintaining the Lockboxes and Lockbox Accounts have agreed to comply with all instructions originated by the Administrative Agent directing disposition of the funds in the Lockboxes and Lockbox Accounts without further consent by SunGard Financing. The Borrower has delivered to the Administrative Agent a fully executed agreement pursuant to which the banks maintaining the Collection Accounts have agreed to comply with all instructions originated by the Administrative Agent directing disposition of the funds in the Collection Accounts without further consent by the Borrower.

 

(v) Priority . Other than the security interest granted to the Administrative Agent under the Security Agreement, the Borrower has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Receivables, Collections or Related Security. The Borrower has not authorized the filing of and is not aware of any financing statements against the Borrower that include a description of collateral covering the Receivables, the Collections or the Related Security other than any financing statement relating to the security interest granted to the Administrative Agent under the Security Agreement or that has been terminated. The Borrower is not aware of any judgment or tax lien filings against the Borrower.

 

(vi) This Section is not waivable.

 

23

ARTICLE VI

 

Affirmative Covenants of the Borrower

 

So long as any Lender shall have any obligations hereunder, or any Loan or other Obligation hereunder which is accrued and payable shall remain unpaid or unsatisfied, the Borrower shall comply with the following covenants.

 

SECTION 6.01. Financial Statements. The Borrower will deliver, or cause the Collection Agent to deliver, to the Administrative Agent for prompt further distribution to each Lender:

 

(a) with respect to each Monthly Period, not later than the Determination Date next following the end of such Monthly Period, a Monthly Report for such Monthly Period signed by a Responsible Officer of the Borrower;

 

(b) promptly upon its receipt of any notice, request for consent, financial statements, certification, report or other communication under or in connection with any Transaction Document from any Person other than the Administrative Agent or the Conduit Lenders, copies of the same; and

 

(c) at least thirty (30) days prior to the effectiveness of any material change in or material amendment to the SunGard Financial Policy, a copy of the SunGard Financial Policy then in effect and a notice (A) indicating such change or amendment, and (B) if such proposed change or amendment would be reasonably likely to adversely affect the collectibility of the Receivables or decrease the credit quality of any newly created Receivables, requesting the Required Lenders’ consent thereto.

 

SECTION 6.02. Certificates; Other Information. The Borrower will deliver, or cause the Collection Agent to deliver, to the Administrative Agent for prompt further distribution to each Lender:

 

(a) with respect to each Monthly Period, not later than the Determination Date next following the end of such Monthly Period, a duly completed Compliance Certificate for such Monthly Period signed by a Responsible Officer of the Borrower; and

 

(b) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrower, or compliance with the terms of the Transaction Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request.

 

24

SECTION 6.03. Notices. The Borrower, promptly after obtaining knowledge thereof, will notify, or cause the Collection Agent to notify, the Administrative Agent:

 

(a) of the occurrence of any Early Amortization Event;

 

(b) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including arising out of or resulting from (i) breach or non-performance of, or any default or event of default under, a Contractual Obligation of the Borrower, (ii) any dispute, litigation, investigation, proceeding or suspension between the Borrower and any Governmental Authority, (iii) the commencement of, or any material development in, any litigation or proceeding affecting any the Borrower; and

 

(c) of any cessation of the sale of Receivables under the First Step Agreement or Second Step Agreement.

 

Each notice pursuant to this Section shall be accompanied by a written statement of a Responsible Officer of the Borrower (x) that such notice is being delivered pursuant to Section 6.03(a), (b) or (c) (as applicable) and (y) setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.

 

SECTION 6.04. Payment of Obligations. The Borrower will pay, discharge or otherwise satisfy as the same shall become due and payable, all its obligations and liabilities in respect of taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property, except, in each case, to the extent the failure to pay or discharge the same could not reasonably be expected to have a Material Adverse Effect.

 

SECTION 6.05. Information Regarding Collateral . The Borrower will furnish to the Administrative Agent prompt written notice of any change (i) in its corporate name, (ii) in its jurisdiction of organization or (iii) in the Borrower’s organizational identification number. Before any such change becomes effective, the Borrower will cause all filings under the Uniform Commercial Code or otherwise that are required in order for the Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral.

 

SECTION 6.06. Compliance with Laws. The Borrower will comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except if the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.

 

SECTION 6.07. Books and Records. The Borrower will (a) maintain proper books of record and account, on which entries that are full, true and correct in all material respects and are in conformity with GAAP consistently applied shall be made of all material financial transactions and matters involving the assets and business of the Borrower; (b) the Borrower will maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing Receivables in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or

 

25

advisable for the collection of all Receivables (including, without limitation, records adequate to permit the immediate identification of each new Receivable and all Collections of and adjustments to each existing Receivable). The Borrower will give the Administrative Agent notice of any material change in the administrative and operating procedures referred to in the previous sentence; and (c) the Borrower will (A) on or prior to the date hereof, mark its master data processing records and other books and records relating to the Receivables with a legend, acceptable to the Administrative Agent, describing the interests of the Lenders hereunder and (B) upon the request of the Administrative Agent deliver to the Administrative Agent all Contracts relating to the Receivables.

 

SECTION 6.08. Inspection/Audit Rights. The Borrower will permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, to the extent required by and in the manner specified in the Collection Agency Agreement.

 

SECTION 6.09. Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, the Borrower will take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied.

 

SECTION 6.10. Compliance with S u n G a r d Financial Policy . The Borrower shall comply in all respects with the SunGard Financial Policy.

 

SECTION 6.11. Performance and Enforcement of Receivables Purchase Agreements . The Borrower will perform each of its obligations and undertakings under and pursuant to the Second Step Agreement, will purchase Assets and the SunGard Financial Related Security thereunder in strict compliance with the terms thereof and will vigorously enforce the rights and remedies accorded to it under the Second Step Agreements. The Borrower will take all actions to perfect and enforce its rights and interests (and the rights and interests of the Administrative Agent and the Lenders as assignees of the Borrower) under each of the Receivables Purchase Agreements as the Administrative Agent may from time to time reasonably request, including, without limitation, making claims to which it may be entitled under any indemnity, reimbursement or similar provision contained in any Receivables Purchase Agreements.

 

SECTION 6.12. Insurance . The Borrower at its own expense will maintain, with financially sound and reputable insurance companies, (a) insurance in such amounts (with no greater risk retention) and against such risks as are customarily maintained by companies of established repute engaged in the same or similar businesses operating in the same or similar locations and (b) all insurance required to be maintained pursuant to the Transaction Documents. The Borrower will furnish to the Lenders, upon request of the Administrative Agent, information in reasonable detail as to the insurance

 

26

so maintained. The foregoing requirements shall not be construed to negate, reduce or modify, and are in addition to, the Borrower’s obligations hereunder.

 

SECTION 6.13. Payment to SunGard Financing . With respect to any Receivable purchased by the Borrower from SunGard Financing, such sale shall be effected under, and in strict compliance with the terms of the Second Step Agreement, including, without limitation, the terms relating to the amount and timing of payments to be made to SunGard Financing in respect of the Second Step Purchase Price for such Receivable.

 

SECTION 6.14. Further Assurances and Post-Closing Conditions. Promptly upon reasonable request by the Administrative Agent, the Borrower will (a) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of the Security Agreement or other document or instrument relating to any Collateral, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from time to time in order to carry out more effectively the purposes of the Security Agreement.

 

SECTION 6.15. Net Worth . The Borrower will maintain a Net Worth on a consolidated basis with SunGard Financing of at least 3% of its consolidated assets as of the last day of any Monthly Period.

 

SECTION 6.16. Lenders’ Reliance . The Borrower acknowledges that the Lenders are entering into the transactions contemplated by this Agreement in reliance upon the Borrower’s identity as a legal entity separate from SunGard Parent and the Sellers. Therefore, from and after the date of execution and delivery of this Agreement, Borrower shall take all reasonable steps, including, without limitation, all steps that the Administrative Agent, any Lender may from time to time reasonably request, to maintain its identity as a separate legal entity and to make it manifest to third parties that it is an entity with assets and liabilities distinct from those of SunGard Parent and the Sellers. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Borrower will preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization and take all reasonable action to maintain all rights, privileges (including its good standing), permits, licenses and franchises necessary or desirable in the normal conduct of its business.

 

SECTION 6.17. Borrower’s Payment of Fees and Expenses . The Borrower shall pay to the Administrative Agent on the Closing Date all fees and expenses required to be paid hereunder and under the other Transaction Documents, including the Fee Letter and the Administrative Agent Fee Letter.

 

27

ARTICLE VII

 

Negative Covenants of the Borrower

 

So long as any Lender shall have any obligations hereunder, or any Loan or other Obligation hereunder which is accrued and payable shall remain unpaid or unsatisfied, the Borrower shall comply with the following covenants.

 

SECTION 7.01. Sales, Liens. The Borrower will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, or create or suffer to exist any Liens upon (including, without limitation, the filing of any financing statement) or with respect to, any Receivable, Related Security or Collections, or any Lockbox, Lockbox Account or Collection Account, or assign any right to receive income with respect thereto (other than, in each case, the creation of the interests therein in favor of the Administrative Agent and the Lenders provided for herein), and the Borrower will defend the right, title and interest of the Administrative Agent and the Lenders in, to and under any of the foregoing property, against all claims of third parties claiming through or under the Finance Subsidiaries.

 

SECTION 7.02. Investments. The Borrower will not make or hold any Investments, except as contemplated under the Transaction Documents.

 

SECTION 7.03. Indebtedness. The Borrower will not create, incur, assume or suffer to exist any Indebtedness except as contemplated under the Transaction Documents.

 

SECTION 7.04. Fundamental Changes. The Borrower will not do anything that would impair its corporate separateness and will not merge or consolidate with or into any other Person (except for mergers that would not cause an Early Amortization Event), and will not have any Subsidiaries.

 

SECTION 7.05. Restricted Payments. The Borrower will not make any Restricted Payment at any time (i) when the Outstanding Amount of Loans exceeds the Borrowing Base, or (ii) which would cause the Outstanding Amount of Loans to be greater than the Borrowing Base.

 

SECTION 7.06. Change in Nature of Business. The Borrower will not make any change in the character of its business which would impair the collectibility of the Receivables or otherwise adversely affect the interests or remedies of the Lenders.

 

SECTION 7.07. Transactions with Affiliates. Except as contemplated by the Transaction Documents, the Borrower will not enter into any transaction of any kind with any Affiliate.

 

SECTION 7.08. Use of Proceeds. The Borrower will not use the proceeds of any Borrowing, whether directly or indirectly, in a manner inconsistent with the uses set forth in the preliminary statements to this Agreement.

 

28

SECTION 7.09. Accounting Changes. The Borrower will not make any change in fiscal year; provided, however, that the Borrower upon written notice to the Administrative Agent, may change its fiscal year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case, the Administrative Agent will, and are hereby authorized by the Lenders and the Borrower to, make any adjustments to this Agreement that are necessary to reflect such change in fiscal year.

 

SECTION 7.10. Name Change, Offices and Records . The Borrower will not take any action that would cause any financing statement to become “seriously misleading” under Section 9-507 of the Uniform Commercial Code or change its location as specified in Section 9-307 of the Uniform Commercial Code unless it shall have: (i) given the Administrative Agent at least thirty (30) days’ prior written notice thereof and (ii) delivered to the Administrative Agent all financing statements, instruments and other documents requested by the Administrative Agent in connection with such change or relocation.

 

SECTION 7.11. Change in Payment Instructions to Obligors . The Borrower will not add or terminate any bank as a Lockbox Bank or Collection Bank, or make any change in the instructions to Obligors regarding payments to be made to any Lockbox, Lockbox Account or Collection Account, unless the Administrative Agent shall have received, at least ten (10) days before the proposed effective date therefor, (i) written notice of such addition, termination or change and (ii) with respect to the addition of a Lockbox Bank or Collection Bank or a Lockbox, Lockbox Account or Collection Account, an executed Control Agreement with respect to the new Lockbox, Lockbox Account or Collection Account; provided, however, that the Collection Agent may make changes in instructions to Obligors regarding payments if such new instructions require such Obligor to make payments to another existing Lockbox, Lockbox Account or Collection Account.

 

SECTION 7.12. Modifications to Contracts and SunGard Financial Policy . The Borrower will not make (i) any change to the SunGard Financial Policy or the character of its business which would impair the collectibility of the Receivables or otherwise adversely affect the interests or remedies of the Lenders, and (ii) any material change to the SunGard Financial Policy without the prior written consent of the Administrative Agent. The Borrower will not extend, amend or otherwise modify the terms of any Receivable or any Contract related thereto other than in accordance with the SunGard Financial Policy.

 

SECTION 7.13. No Designation of “Amortization Date”. The Borrower will not declare an “Early Amortization Event” (as defined in and under each of the Receivables Purchase Agreements), or send any written notice to any Seller in respect thereof, without the prior written consent of the Required Lenders, except with respect to the occurrence of an Insolvency Event.

 

SECTION 7.14. Amendments to Documents . The Borrower shall not amend its Organization Documents or any Transaction Document to which it is party, or consent to SunGard Financing amending or waiving any provision of any Transaction

 

29

Document to which it is a party, without the prior written consent of the Administrative Agent and the Required Lenders.

 

SECTION 7.15. Employees. The Borrower will not have any employees.

 

ARTICLE VIII

 

Covenants of the Administrative Agent

 

So long as any Lender shall have any obligations hereunder, or any Loan or other Obligation hereunder which is accrued and payable shall remain unpaid or unsatisfied, the Administrative Agent shall comply with the following covenants.

 

SECTION 8.01. Certain Duties of the Administrative Agent . The Administrative Agent shall periodically review Monthly Reports and Compliance Certificates delivered to the Administrative Agent by or on behalf of the Borrower. The Administrative Agent shall notify the Lenders and the Funding Agents of any Early Amortization Event of which it has actual knowledge. Under no circumstance shall the failure of the Administrative Agent to deliver notice under this Section 8.01 result in the loss or waiver by the Administrative Agent of any remedies, including the remedies set forth in Sections 9.02 and 9.03, or any rights to indemnification.

 

ARTICLE IX

 

Early Amortization Events, Events Of Default and Remedies

 

SECTION 9.01. Early Amortization Events. Any of the following shall constitute an Early Amortization Event:

 

(a) Non-Payment . The Borrower fails to pay (i) when and as required to be paid herein, any amount of principal of or interest on any Loan from Collections, (ii) any Overadvance Amount for a period of one Business Day, or (iii) within five (5) Business Days after the same becomes due, any other amount payable hereunder or with respect to any other Transaction Document; or

 

(b) Specific Covenants . The Borrower fails to perform or observe any term, covenant or agreement contained in Section 6.03(a) or 6.16; or

 

(c) Other Defaults . The Borrower fails to perform or observe any other covenant or agreement (not specified in Section 9.01(a) or (b) above) contained in any Transaction Document on its part to be performed or observed and such failure continues for thirty (30) days after notice thereof by the Administrative Agent to the Borrower; or

 

30