Exhibit 3.50
SUNGARD RECOVERY SERVICES
L.P.
AGREEMENT OF LIMITED
PARTNERSHIP
This partnership agreement of
SunGard Recovery Services, L.P., a Pennsylvania limited
partnership, is entered into the 1st day of January, 2001, by and
among SunGard Computer Services Inc. as the general partner, and
the parties whose names are set forth as limited partners on
Exhibit “A” attached hereto.
BACKGROUND
:
WHEREAS, the parties wish to form a
limited partnership under the Pennsylvania Revised Uniform Limited
Partnership Act, 15 Pa.C.S. § 8501 et seq ., pursuant
to the terms and conditions of this Agreement;
NOW, THEREFORE, intending to be
legally bound hereby, the parties hereto agree as
follows:
SECTION 1
DEFINED TERMS; OPERATION OF
PARTNERSHIP
1.1 Defined Terms
. When used in this
Agreement, the following capitalized terms shall have the meanings
set forth below:
“Act”
means the Pennsylvania Revised
Uniform Limited Partnership Act.
“Adjusted Capital
Account” means a
Partner’s Capital Account, adjusted as follows: any deficit
balance in a Partner’s Capital Account shall be reduced by
any amount that the Partner is obligated to restore to the
Partnership.
“Affiliate” means, with respect to any Person, (i) any
Person directly or indirectly controlling, controlled by, or under
common control with such Person, (ii) any Person owning or
controlling ten percent (10%) or more of the outstanding
voting interests of such Person, (iii) any officer, director,
general partner, or manager of such Person, or (iv) any Person
who is an officer, director, general partner, manager, trustee, or
holder of ten percent (10%) or more of the voting interests of
any Person described in clauses (i) through (iii) of this
sentence. For purposes of this definition, “controls,”
“is controlled by,” or “is under common control
with” shall mean the possession, direct or indirect, of the
power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise.
“Agreement” means this partnership agreement, as the same
may be amended from time to time.
“Bankruptcy” means, with respect to any Person, (i) the
filing of any petition or answer by such Person seeking to
adjudicate it a bankrupt or insolvent, or seeking for itself any
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of such Person or such
Person’s debts under any law relating to bankruptcy,
insolvency, or reorganization or relief of debtors, or seeking,
consenting to, or acquiescing in the entry of an order for relief
or the appointment of a receiver, trustee, custodian, or other
similar official for such Person for any substantial part of its
property, or (ii) without the consent or acquiescence of such
Person, the entering of an order for relief or approving a petition
for relief or reorganization or any other petition seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or other similar relief under any
bankruptcy, liquidation, dissolution, or other similar statute,
law, or regulation, or the filing of any such petition against such
Person which petition shall not be dismissed within ninety
(90) days, or, without the consent or acquiescence of such
Person, the entering of an order appointing a trustee, custodian,
receiver, or liquidator of such Person or of all or any substantial
part of the property of such Person which order shall not be
dismissed within sixty (60) days.
“Book
Value” means the
adjusted basis of the Partnership’s property for federal
income tax purposes, with the adjustments provided in accordance
with Section 2.4.4 of this Agreement.
“Capital
Account” means the
account established and maintained for each Partner in accordance
with Section 2.4 of this Agreement.
“Capital
Contribution” means
the amount of money and the Book Value of any property contributed
to the Partnership by a Partner (net of any liabilities to which
such property is subject or that are assumed by the Partnership in
connection with such contribution). If any Interest is transferred
in accordance with the terms of this Agreement, the transferee
shall succeed to the Capital Contribution of the transferor to the
extent it relates to the transferred Interest.
“Capital
Event” means any
disposition of all or any part of Partnership property not in the
ordinary course of business, including, without limitation, a sale,
exchange, condemnation, casualty, or grant of a long-term
leasehold, or the borrowing of money by the Partnership, secured by
Partnership property or any part thereof, for the purpose of making
distributions to the Partners or paying the entire balance due,
including accrued interest, on any outstanding loan secured by the
Partnership property or any part thereof.
“ Capital Interest
” means the ownership interest (expressed as a percentage of
the Partners’ Capital Accounts) in the capital of the
Partnership.
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“Certificate”
means the certificate of limited
partnership for the Partnership, and any amendments
thereto.
“Code”
means the Internal Revenue Code of
1986, as amended.
“Depreciation”
means the amount determined for each
year or other period as an amount equal to the depreciation,
amortization, or other cost recovery deduction allowable with
respect to any Partnership property for such year or other period,
except that, if the Book Value of any property differs from its
adjusted tax basis for federal income tax purposes at the beginning
of such year or other period, Depreciation shall be an amount that
bears the same ratio to such beginning Book Value as the federal
income tax depreciation, amortization, or other cost recovery
deduction for such year or other period bears to such beginning
adjusted tax basis; provided, however, that if the adjusted tax
basis of a property at the beginning of a year is zero,
Depreciation shall be determined for such property with reference
to Book Value using any reasonable method selected by the General
Partner.
“General
Partner” means the
Person designated as general partner in Exhibit “A”
attached to this Agreement, and any Person subsequently admitted as
a general partner in accordance with the terms of this
Agreement.
“Incapacity” means (a) with respect to a natural Person,
the Bankruptcy, death or determination of incompetency or insanity
of such Person and (b) with respect to any other Person, the
Bankruptcy, liquidation or dissolution of such Person.
“Indemnified
Party” means the
General Partner, any member, manager, officer, director,
shareholder, employee, or agent of the General Partner, and any
officer of the Partnership.
“Interest”
means an ownership interest in the
Partnership, including all of the rights and obligations in
connection therewith under this Agreement and the Act.
“Limited
Partners” means the
Persons designated as limited partners in Exhibit “A”
attached to this Agreement, and any Person subsequently admitted as
a limited partner in accordance with the terms of this
Agreement.
“Liquidator” means a Person chosen by the holders of a
majority of the Capital Interests of the Limited Partners to
supervise the liquidation of the Partnership if there is no General
Partner at the time of such liquidation.
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“Net Capital
Proceeds” means
gross cash or property received by the Company from all Capital
Events, including reductions in Reserves that reduced Net Capital
Proceeds for prior periods, reduced by the portion used (i) to
pay Company expenses incurred in connection with such Capital
Event, (ii) to make capital expenditures, including for the
acquisition of any additional or replacement property, and
(iii) to fund Reserves.
“Net Ordinary
Proceeds” means
gross cash or property received by the Company from all sources
other than Capital Contributions or Capital Events, including
reductions in Reserves that reduced Net Ordinary Proceeds for prior
periods, reduced by the portion used (i) to pay Company
expenses, and (ii) to fund Reserves.
“Partners”
means the General Partner and the
Limited Partners, and any Person subsequently admitted as a partner
in accordance with the terms of this Agreement.
“Partnership”
means the limited partnership formed
and operated pursuant to the terms of this Agreement.
“Person”
means any individual or any
partnership, corporation, trust, limited liability company or other
legal entity.
“Profits”
and “Losses”
mean, for each year or other period, an amount equal to the
Partnership’s taxable income or loss for such year or period,
determined in accordance with the Code, with the following
adjustments:
(a) Any income of the Partnership that is exempt
from federal income tax and not otherwise taken into account in
computing Profits and Losses pursuant to this Section 4.1
shall be added to such taxable income or loss.
(b) If the Book Value of any Partnership property is
adjusted pursuant to Section 2.4.4(b) of this Agreement, the
amount of such adjustment shall be taken into account as gain or
loss from the disposition of such property for purposes of
computing Profits or Losses.
(c) Gain or loss resulting from any disposition of
Partnership property with respect to which gain or loss is
recognized for federal income tax purposes shall be computed by
reference to the Book Value of the asset disposed of,
notwithstanding that the adjusted tax basis of such asset differs
from its Book Value.
(d) In lieu of the depreciation, amortization, and
other cost recovery deductions taken into account in computing such
taxable income or loss, there shall be taken
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into account Depreciation for such
year or other period as determined in accordance with this
Agreement.
(e) Items of income, gain, loss or deduction
allocated pursuant to Section 4.2 shall be excluded from
Profits and Losses.
“ Profits Interest
” means the percentage, designated in Exhibit
“A,” by which the Partnership’s Profits and
Losses are to be allocated to Partners.
“Regulations”
means the income tax regulations
promulgated under the Code, as such regulations may be amended from
time to time.
“Reserves”
means amounts set aside to pay
future costs or expenses that are anticipated to exceed cash
available to pay such costs or expenses when due, as determined in
the sole discretion of the General Partner.
“Unreturned Capital
Contributions” means a Partner’s Capital Contributions
reduced (but not below zero) by all distributions to such Partner
pursuant to Section 3.2(a). If there is a revaluation of
Partnership property in accordance with Section 2.4.4(b)(i) of
this Agreement, the amount of any adjustment to a Partner’s
Capital Account in connection with such revaluation shall be
treated as an increase (if such adjustment is positive) or decrease
(if such adjustment is negative) in such Partner’s Unreturned
Capital Contributions. If any Interest is transferred in accordance
with the terms of this Agreement, the transferee shall succeed to
the Unreturned Capital Contribution of the transferor to the extent
it relates to the transferred Interest.
1.2 Formation; Name
. The Partnership was
formed by the filing of the Certificate. The Partners hereby agree
to operate the Partnership as a limited partnership under the Act.
The Partnership shall be operated under the name “SunGard
Recovery Services L.P.” The General Partner shall file such
other certificates and documents as are necessary to qualify the
Partnership to conduct business in any jurisdiction in which the
Partnership conducts business. A copy of the Certificate shall be
provided to any Partner on request.
1.3 Registered Agent and
Office; Principal Office . The registered agent and office of the
Partnership required under the Act shall be as designated in the
Certificate, and may be changed by the General Partner in
accordance with the Act. The principal business office of the
Partnership shall be located at 1285 Drummers Lane, Wayne,
Pennsylvania 19087, or such other address as shall be designated by
the General Partner with written notice to the Limited
Partners.
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1.4 Purpose .
The purpose of the Partnership is
to engage in any lawful business for which limited partnerships may
be organized under the Act. The Partnership is authorized to do any
and all acts and things necessary, appropriate, advisable,
incidental to, or convenient for the furtherance and accomplishment
of its purposes, and for the protection and benefit of the
Partnership.
1.5 Term .
The term of the Partnership
commenced on the date of filing of the Certificate, and the
Partnership shall continue until terminated in accordance with the
provisions of this Agreement.
1.6 Title to Property
. All real and personal
property owned by the Partnership shall be owned by the Partnership
as an entity and no Partner shall have any ownership interest in
such property in the Partner’s individual name or right, and
each Partner’s Interest shall be personal property for all
purposes. The Partnership shall hold all of its real and personal
property in the name of the Partnership and not in the name of any
Partner.
1.7 Waiver of Partition
. No Partner shall either
directly or indirectly take any action to require partition or
appraisement of the Partnership or of any of its assets or
properties or cause the sale of any Partnership property, and
notwithstanding any provisions of applicable law to the contrary,
each Partner hereby irrevocably waives any and all right to
maintain any action for partition or to compel any sale with
respect to such Partner’s Interest, or with respect to any
assets or properties of the Partnership, except as expressly
provided in this Agreement.
SECTION 2
CAPITAL CONTRIBUTIONS;
INTERESTS; CAPITAL ACCOUNTS
2.1 Capital Contributions
. The Capital
Contributions of the Partners are set forth on Exhibit
“A” attached hereto.
2.2 Additional Capital
Contributions and Loans . No Partner shall be obligated to make any
additional Capital Contributions or loans to the
Partnership.
2.4 Capital Accounts
. A Capital Account shall
be maintained and adjusted for each Partner in accordance with the
following provisions:
2.4.1 Additions to Capital
Accounts . To each
Partner’s Capital Account there shall be added the
Partner’s Capital Contributions and the Partner’s
distributive share of Profits and any items of income or gain which
are allocated separately from Profits under
Section 4.3.
2.4.2 Subtractions from
Capital Accounts . From each Partner’s Capital Account there
shall be subtracted the amount of money and the Book Value of
any
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Partnership property distributed to
the Partner (net of any liabilities to which the property is
subject or that are assumed by the Partner in connection with the
distribution), and the Partner’s distributive share of Losses
and any items of expenses or losses which are allocated separately
from Losses under Section 4.3.
2.4.3 Transfers
. If any Interest is
transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Capital Account of the transferor
to the extent it relates to the transferred Interest.
2.4.4 Book Values
. For purposes of
determining a Partner’s Capital Contributions and Capital
Account, property held by the Partnership shall be taken into
account in accordance with the following provisions:
(a) The Book Value of any property contributed by a
Partner to the Partnership initially shall be the gross fair market
value of the property.
(b) The Book Value of all Partnership property may
be adjusted at the discretion of the General Partner to equal the
respective gross fair market values of the property as of the
following times: (i) the acquisition of an additional Interest
by any new or existing Partner in exchange for services or more
than a de minimis Capital Contribution; (ii) the
distribution by the Partnership to a Partner of more than a
de minimis amount of Partnership property as
consideration for an Interest; or (iii) the dissolution of the
Partnership. If any property is distributed to a Partner, the Book
Value of such property shall be adjusted to equal the gross fair
market value of such property immediately before such
distribution.
(c) The Book Value of Partnership property shall be
adjusted by the Depreciation taken into account with respect to
such property.
2.4.5 Compliance with
Regulations . The
foregoing provisions of this Agreement relating to the maintenance
of Capital Accounts are intended to comply with the Code and the
Regulations issued thereunder, and shall be interpreted and applied
in a manner consistent with such Regulations. If the General
Partner determines that it is appropriate to modify the manner in
which the Capital Accounts are computed in order to comply with
such Regulations, the General Partner may make such modification,
provided that such modification shall not have a material effect on
the amounts distributable to any Partner.
2.5 Guaranteed Payment
. [[TO BE
DISCUSSED]]
2.6 No Deficit Make-Up
. No Partner shall be
obligated to the Partnership, or any other Partner solely because
of a deficit balance in such Partner’s Capital
Account.
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SECTION 3
DISTRIBUTIONS
3.1 Distributions of Net
Ordinary Proceeds . Net Ordinary Proceeds shall be distributed among
the Partners in accordance with their Capital Interests.
3.2 Distributions of Net
Capital Proceeds . Net Capital Proceeds will be distributed among
the Partners as follows:
(a) First, among the Partners in proportion to their
relative Unreturned Capital Contributions, until all Unreturned
Capital Contributions have been reduced to zero;
(b) Then, among the Partners in accordance with
their Capital Interests.
3.3 Amounts Withheld
. The Company is
authorized to withhold from distributions or with respect to
allocations and pay over to any federal, state, local, or foreign
government any amounts required to be withheld pursuant to any
provisions of federal, state, local, or foreign law. All amounts so
paid shall be treated as amounts distributed to the Members
pursuant to this Section 3.1 or 3.2 of this Agreement,
depending on the source of the item that is responsible for such
withholding obligation. To the extent any amount withheld with
respect to a Member pursuant to this Section 3.3 for any year
exceeds the amount distributable to such Member for such year, such
Member shall repay such excess to the Company within ten
(10) days after such Member receives written notice from the
Company of the amount of such excess.
SECTION 4
PROFITS AND
LOSSES
4.1.1 Profits from
Operations . After
taking into account any special allocations pursuant to
Section 4.2 and subject to any limitations contained therein,
Profits from any source other than a Capital Event for any year or
portion thereof shall be allocated among the Partners in accordance
with their Profits Interests.
4.1.2 Losses from
Operations . After
taking into account any special allocations pursuant to
Section 4.2 and subject to any limitations contained therein,
Losses from any source other than a Capital Event for any year or
portion thereof shall be allocated among the Partners in accordance
with their Profits Interests.
4.1.3 Profits from Capital
Events . After taking
into account any special allocations pursuant to Section 4.2
and subject to any limitations contained therein, and after
adjusting Capital Accounts for all allocations of Profits and
Losses pursuant to Section 4.1.1
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and Section 4.1.2 and
distributions pursuant to Section 3.1 for the year, but prior
to adjusting Capital Accounts for distributions pursuant to
Section 3.2 for the year, Profits from a Capital Event shall
be allocated among the Partners as follows:
(a) First, among the Partners with negative Capital
Account balances in proportion to each such Partner’s
relative negative Capital Account balance, until all negative
Capital Account balances are eliminated;
(b) Then, among the Partners with Unreturned Capital
Contributions in excess of their Capital Account balances in
proportion to each such Partner’s share of such excess, until
each Partner’s Capital Account balance is equal to such
Partner’s Unreturned Capital Contribution;
(c) Then, among all of the Partners in accordance
with their Profits Interests.
4.1.4 Losses from Capital
Events . After taking
into account any special allocations pursuant to Section 4.2
and subject to any limitations contained therein, and after
adjusting Capital Accounts for all allocations of Profits and
Losses pursuant to Section 4.1.1 and Section 4.1.2 and
distributions pursuant to Section 3.1 for the year, but prior
to adjusting Capital Accounts for distributions pursuant to
Section 3.2 for the year, Losses from a Capital Event shall be
allocated among the Partners as follows:
(a) First, among the Partners with Capital Account
balances in excess of their Unreturned Capital Contributions in
proportion to each such Par
