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
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Page
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ARTICLE I
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D EFINITIONS AND A CCOUNTING T ERMS
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2
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SECTION 1.01.
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Defined Terms
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2
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SECTION 1.02.
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Other Interpretive Provisions
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2
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SECTION 1.03.
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Accounting Terms
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2
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SECTION 1.04.
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Rounding
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2
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SECTION 1.05.
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References to Agreements, Laws,
Etc.
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3
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SECTION 1.06.
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Times of Day
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3
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SECTION 1.07.
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Timing of Payment of Performance
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3
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ARTICLE II
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T HE
F ACILITY L IMIT AND B ORROWINGS
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3
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SECTION 2.01.
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The Loans
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3
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SECTION 2.02.
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Borrowings, Conversions and Continuations of
Loans
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3
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SECTION 2.03.
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Prepayments
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6
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SECTION 2.04.
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Reduction of the Facility Limit
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7
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SECTION 2.05.
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Interest
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7
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SECTION 2.06.
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Fees
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8
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SECTION 2.07.
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Computation of Interest and Fees
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8
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SECTION 2.08.
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Evidence of Indebtedness
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8
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SECTION 2.09.
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Payments Generally
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9
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SECTION 2.10.
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Sharing of Payments
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10
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ARTICLE III
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T AXES ,
I NCREASED C OSTS P ROTECTION AND I LLEGALITY
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11
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SECTION 3.01.
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Taxes
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11
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SECTION 3.02.
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Illegality
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13
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SECTION 3.03.
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Inability to Determine Rates
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13
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SECTION 3.04.
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Increased Cost and Reduced Return; Capital
Adequacy; Reserves on LIBO Rate Loans
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14
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SECTION 3.05.
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Funding Losses
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15
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SECTION 3.06.
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Matters Applicable to All Requests for
Compensation
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16
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SECTION 3.07.
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Payable from Collections
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17
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ARTICLE IV
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C ONDITIONS P RECEDENT TO B
ORROWINGS
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17
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SECTION 4.01.
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Conditions to the Effectiveness of this
Agreement
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17
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SECTION 4.02.
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Conditions to All Loans
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19
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ARTICLE V
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R EPRESENTATIONS AND W ARRANTIES
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19
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Section 5.01
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Existence, Qualification and Power; Compliance
with Laws
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19
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Section 5.02
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Authorization; No Contravention
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20
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Section 5.03
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Governmental Authorization; Other
Consents
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20
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Section 5.04
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Binding Effect
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20
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Section 5.05
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Litigation
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21
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Section 5.06
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No Default
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21
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Section 5.07
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Ownership of Property; Liens
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21
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Section 5.08
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Taxes
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21
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Section 5.09
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Employees
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21
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Section 5.10
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Subsidiaries; Equity Interests
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21
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Section 5.11
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Margin Regulations; Investment Company Act;
Public Utility Holding Company Act
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21
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Section 5.12
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Solvency
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22
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Section 5.13
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Certificates
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22
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Section 5.14
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Perfection
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22
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Section 5.15
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Early Amortization Event; Potential Early
Amortization Event
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22
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Section 5.16
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Good Title
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22
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Section 5.17
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Uniform Commercial Code Article 9
Representation
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23
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ARTICLE VI
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A FFIRMATIVE C OVENANTS OF THE B ORROWER
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24
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SECTION 6.01.
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Financial Statements
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24
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SECTION 6.02.
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Certificates; Other Information
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24
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SECTION 6.03.
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Notices
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25
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SECTION 6.04.
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Payment of Obligations
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25
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SECTION 6.05.
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Information Regarding Collateral
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25
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SECTION 6.06.
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Compliance with Laws
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25
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SECTION 6.07.
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Books and Records
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25
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SECTION 6.08.
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Inspection/Audit Rights
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26
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SECTION 6.09.
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Covenant to Guarantee Obligations and Give
Security
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26
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SECTION 6.10.
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Compliance with SunGard Financial
Policy
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26
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SECTION 6.11.
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Performance and Enforcement of Receivables
Purchase Agreements
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26
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SECTION 6.12.
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Insurance
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26
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SECTION 6.13.
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Payment to SunGard Financing
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27
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SECTION 6.14.
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Further Assurances and Post-Closing
Conditions
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27
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SECTION 6.15.
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Net Worth
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27
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SECTION 6.16.
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Lenders’ Reliance
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27
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SECTION 6.17.
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Borrower’s Payment of Fees and
Expenses
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27
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ARTICLE VII
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N EGATIVE C OVENANTS OF THE B ORROWER
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28
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SECTION 7.01.
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Sales, Liens
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28
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SECTION 7.02.
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Investments
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28
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SECTION 7.03.
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Indebtedness
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28
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SECTION 7.04.
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Fundamental Changes
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28
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ii
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SECTION 7.05.
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Restricted Payments
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28
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SECTION 7.06.
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Change in Nature of Business
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28
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SECTION 7.07.
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Transactions with Affiliates
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28
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SECTION 7.08.
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Use of Proceeds
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28
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SECTION 7.09.
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Accounting Changes
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29
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SECTION 7.10.
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Name Change, Offices and Records
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29
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SECTION 7.11.
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Change in Payment Instructions to
Obligors
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29
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SECTION 7.12.
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Modifications to Contracts and SunGard
Financial Policy
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29
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SECTION 7.13.
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No Designation of “Amortization
Date”
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29
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SECTION 7.14.
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Amendments to Documents
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29
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SECTION 7.15.
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Employees
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30
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ARTICLE VIII
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C OVENANTS OF THE A DMINISTRATIVE A GENT
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30
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SECTION 8.01.
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Certain Duties of the Administrative
Agent
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30
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ARTICLE IX
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E ARLY A MORTIZATION E VENTS ,
E VENTS O F
D EFAULT AND R EMEDIES
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30
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SECTION 9.01.
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Early Amortization Events
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30
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SECTION 9.02.
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Remedies Upon an Early Amortization
Event
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33
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ARTICLE X
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A DMINISTRATIVE A GENT AND O THER A GENTS
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34
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SECTION 10.01.
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Appointment and Authorization of
Agents
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34
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SECTION 10.02.
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Delegation of Duties
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34
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SECTION 10.03.
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Liability of Agents
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35
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SECTION 10.04.
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Reliance by Agents
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35
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SECTION 10.05.
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Notice of Early Amortization
Event
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36
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SECTION 10.06.
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Credit Decision; Disclosure of Information by
Agents
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36
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SECTION 10.07.
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Indemnification of Agents
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36
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SECTION 10.08.
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Agents in their Individual
Capacities
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37
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SECTION 10.09.
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Successor Agents
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37
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SECTION 10.10.
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Administrative Agent May File Proofs of
Claim
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38
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SECTION 10.11.
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Collateral and Guarantee Matters
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39
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ARTICLE XI
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M ISCELLANEOUS
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39
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SECTION 11.01.
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Amendments, Etc.
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39
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SECTION 11.02.
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Notices and Other Communications; Facsimile
Copies
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40
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SECTION 11.03.
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No Waiver; Cumulative Remedies
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41
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SECTION 11.04.
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Attorney Costs, Expenses and
Taxes
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41
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SECTION 11.05.
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Indemnification by the Borrower
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42
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SECTION 11.06.
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Payments Set Aside
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43
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SECTION 11.07.
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Successors and Assigns
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43
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SECTION 11.08.
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Tax Disclosure
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46
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SECTION 11.09.
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Setoff
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46
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SECTION 11.10.
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Interest Rate Limitation
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47
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iii
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SECTION 11.11.
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Counterparts
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47
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SECTION 11.12.
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Integration
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47
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SECTION 11.13.
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Survival of Representations and
Warranties
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47
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SECTION 11.14.
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Severability
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48
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SECTION 11.15.
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Tax Forms
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48
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SECTION 11.16.
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GOVERNING LAW
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48
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SECTION 11.17.
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WAIVER OF RIGHT TO TRIAL BY JURY
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49
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SECTION 11.18.
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Non-Petition
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49
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SECTION 11.19.
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USA PATRIOT Act
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49
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SECTION 11.20.
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Assignment
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50
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iv
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ANNEXES
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A
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Defined Terms
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SCHEDULES
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A
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Information Relating to Each Related
Group
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B
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Conditions Precedent
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C
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Lockboxes, Lockbox Accounts, Lockbox Banks,
Collection Accounts, Collection Banks
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D
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Addresses and Related Information for
Notices
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EXHIBITS
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A
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Form of Loan Notice
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B
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Form of Note
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C
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Form of Compliance Certificate
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D
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Form of Assignment and Assumption
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E
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Form of Security Agreement
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F
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Form of Control Agreement
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G
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Form of Performance Undertaking
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H
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[Reserved]
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I
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Form of Counsel Opinion
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J
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Form of Monthly Report
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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
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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.
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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.
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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
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