Exhibit 10.1
SECOND AMENDMENT
TO CREDIT
AGREEMENT
This SECOND AMENDMENT TO CREDIT
AGREEMENT , dated as of September 29, 2008 (this
“Amendment” ), is made and entered into by and
among SUNGARD DATA SYSTEMS INC. , a Delaware Corporation
(“ SunGard ” or the “ Company
”), SUNGARD HOLDCO LLC , a Delaware limited liability
company ( “Holdings” ), the Lenders signatories
hereto, (each an “Initial Incremental Term
Lender” and collectively the “Initial
Incremental Term Lenders” ), and JPMORGAN CHASE BANK,
N.A. , as administrative agent for the Lenders under the Credit
Agreement (as defined below) (in such capacity, the
“Administrative Agent” ).
Reference is made to the Credit
Agreement, dated as of August 11, 2005 (as it may be amended,
restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”) , by and among SOLAR
CAPITAL CORP , a Delaware corporation (which was merged with
and into SunGard), the Overseas Borrowers from time to time party
thereto, Holdings, SunGard, the Lenders signatories thereto, (each
a “Lender” and collectively the
“Lenders” ), and JPMORGAN CHASE BANK,
N.A. , as Administrative Agent, Swing Line Lender, and an L/C
Issuer.
Capitalized terms defined in the
Credit Agreement and not otherwise defined in this Amendment have
the meanings assigned to such terms in the Credit Agreement as
amended pursuant to Section I hereof and Annex I hereof.
RECITALS:
WHEREAS , subject to the terms and conditions of the
Credit Agreement, and pursuant to Section 2.15 of the Credit
Agreement, the Company may request an additional tranche of term
loans (the “Incremental Term Loans” ) by
entering into an “Incremental Amendment” (as defined in
the Credit Agreement) executed by Holdings, the Company, each
lender agreeing to provide such Commitment and the Administrative
Agent, and such other documents as are necessary to effect such
Incremental Term Loans; and
WHEREAS , this Amendment is an “Incremental
Amendment” as defined in the Credit Agreement;
NOW, THEREFORE
, in consideration of the premises
and agreements, provisions and covenants herein contained, the
parties hereto agree as follows:
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I.
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AMENDMENTS
TO CREDIT AGREEMENT
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Effective upon the Second Amendment
Effective Date, the parties hereto agree that the Credit Agreement
is hereby amended pursuant to the provisions contained in Annex I
hereof.
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II.
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INCREMENTAL
COMMITMENTS AND JOINDER
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A.
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Each Initial
Incremental Term Lender party hereto hereby commits to provide an
Incremental Term Loan in the full amount of its respective
Incremental Term Commitment as set forth on Schedule A annexed
hereto, on the terms set forth herein and in the Credit Agreement
as amended hereby, and subject to the conditions set forth below.
Such Commitment is an “Incremental Term Commitment” as
defined in the Credit Agreement as amended hereby, for all purposes
of the Credit Agreement and the other Loan Documents, and shall be
subject to the terms thereof.
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B.
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Each Initial
Incremental Term Lender (i) confirms that it has received a
copy of the Credit Agreement and the other Loan Documents, together
with copies of the financial statements referred to therein and
such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this
Amendment and make its Incremental Term Commitment and Incremental
Term Loan; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Incremental Arrangers,
or any other Lender or Agent and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under
the Credit Agreement or the other Loan Documents, including this
Amendment; (iii) appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement and
the other Loan Documents as are delegated to the Administrative
Agent and Collateral Agent, as the case may be, by the terms
thereof, together with such powers as are reasonably incidental
thereto; and (iv) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender and
as an Initial Incremental Term Lender.
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C.
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Each Initial
Incremental Term Lender that is a party to the Credit Agreement
prior to the Second Amendment Effective Date acknowledges and
agrees that upon the Second Amendment Effective Date such Initial
Incremental Term Lender shall be an “Incremental Term
Lender” and an “Initial Incremental Term Lender”
under, and for all purposes of, the Credit Agreement and the other
Loan Documents, and shall be subject to and bound by the terms
thereof, and shall perform all the obligations of and shall have
all rights of an Incremental Term Lender and an Initial Incremental
Term lender thereunder. Each Initial Incremental Term Lender that
is not a party to the Credit Agreement prior to the Second
Amendment Effective Date acknowledges and agrees that upon the
Second Amendment Effective Date such Incremental Term Lender shall
become a “Lender” and “Incremental Term
Lender” and “Initial Incremental Term Lender”
under, and for all purposes of, the Credit Agreement and the other
Loan Documents, and shall be subject to and bound by the terms
thereof, and shall perform all the obligations of and shall have
all rights of a Lender and Incremental Term Lender and Initial
Incremental Term Lender thereunder.
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III.
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CERTIFICATIONS AND COVENANTS:
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A.
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Company’s Certifications
. By its execution of this
Amendment, the Company hereby certifies that:
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i. the representations and
warranties of the Company and each other Loan Party contained in
Article 5 of the Credit Agreement or any other Loan Document are
true and correct in all material respects on and as of the date
hereof and as of the Second Amendment Effective Date;
provided , that 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 date;
ii. no Default or Event of Default
shall exist, or would result from the execution hereof, the
borrowing of the Incremental Term Loans (the “Proposed
Borrowing” ) or the application of the proceeds
therefrom; and
iii. the Company and each Loan Party
has performed in all material respects all agreements and satisfied
all conditions which the Credit Agreement provides shall be
performed or satisfied by it on or before the date hereof or the
Second Amendment Effective Date.
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B.
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Company’s Covenants
. By its execution of this
Amendment, the Company hereby covenants that:
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i. it shall deliver or cause to be
delivered the legal opinion of Simpson Thacher & Bartlett
LLP, New York counsel to the Loan Parties, addressed to the Initial
Incremental Term Lenders and the Administrative Agent and covering
such matters as are reasonably requested by the Administrative
Agent in connection with this Amendment; and
ii. set forth on the Officers’
Certificate attached hereto as Exhibit A are the calculations (in
reasonable detail) demonstrating compliance with the covenants set
forth in Section 7.11 of the Credit Agreement determined on a
Pro Forma Basis as of the Second Amendment Effective Date and the
last day of the most recent Test Period, in each case, as if the
Proposed Borrowing had been outstanding on the last day of such
Test Period for testing compliance therewith.
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C.
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Certifications of Company and
Holdings . By its
execution of this Amendment, each of the Company and Holdings
certifies that this Amendment has been duly authorized, executed
and delivered by it and this Amendment and the Credit Agreement as
amended hereby constitute its valid and binding obligation,
enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors’ rights generally and subject
to general principles of equity, regardless of whether considered
in a proceeding in equity or at law.
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The Company agrees to pay to each
Initial Incremental Term Lender, simultaneously with the funding of
the Incremental Term Loans on the Second Amendment Effective Date,
a fee equal to 1.00% of the principal amount of the Incremental
Term Loan funded by such Initial Incremental Term Lender on the
Second Amendment Effective Date.
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V.
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CONDITIONS
TO EFFECTIVENESS
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This Amendment, and each Initial
Incremental Term Lender’s obligation to fund its Incremental
Term Commitment, shall become effective only upon the satisfaction
of all of the following conditions precedent:
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A.
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Execution . Administrative Agent shall have received a
counterpart signature page of this Amendment duly executed by
itself, Holdings, the Company, and each Initial Incremental Term
Lender.
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B.
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Fees .
The Company shall have paid (or shall have made arrangements
reasonably satisfactory to the Administrative Agent for
simultaneous payment of) all fees and other amounts due and payable
on or prior to the Second Amendment Effective Date, including, to
the extent invoiced at least three Business Days prior to the
proposed Second Amendment Effective Date, all out-of-pocket
expenses required to be reimbursed or paid by the Company hereunder
or any other Loan Document, and including payment of fees and
reimbursement or other payment of all out-of-pocket expenses
required to be reimbursed or paid by the Company to or on behalf of
the Incremental Arrangers, Initial Incremental Term Lenders, or
Administrative Agent pursuant to agreements with the Incremental
Arrangers and Initial Incremental Term Lenders or pursuant to the
Credit Agreement.
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C.
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Representations and Warranties
. The representations and warranties
of the Company and each other Loan Party contained in Article 5 of
the Credit Agreement or in any other Loan Document shall be true
and correct in all material respects on and as of the date of the
funding of the Incremental Term Loans; provided that, 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; provided, further that, 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.
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D.
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No
Default . No Default or
Event of Default shall exist, or would result from the execution
hereof, the borrowing of the Incremental Term Loans, or from the
application of the proceeds therefrom.
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E.
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Committed
Loan Notice . The
Administrative Agent shall have received a Committed Loan Notice in
accordance with the requirements hereof.
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F.
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Certificate and Legal
Opinion . The
Administrative A
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