Exhibit 10.9
SUNGARD INSURED RECEIVABLES FACILITY
SECOND STEP RECEIVABLES PURCHASE
AGREEMENT
DATED AS OF AUGUST 11, 2005
by and among
SUNGARD FINANCING LLC,
as Transferor,
and
SUNGARD FUNDING LLC,
as the Transferee,
SUNGARD INSURED RECEIVABLES
FACILITY
SECOND STEP RECEIVABLES PURCHASE
AGREEMENT
THIS SECOND STEP RECEIVABLES
PURCHASE AGREEMENT ,
dated as of August 11, 2005, relating to the SunGard Insured
Receivables Facility, is by and among SunGard Financing LLC, a
Delaware limited liability company (“ SunGard
Financing ” or the “ Transferor ” ),
and SunGard Funding LLC, a Delaware limited liability company
(together with its assigns, “ SunGard Funding ”
or the “ Transferee ”). Unless defined elsewhere
herein, capitalized terms used in this Agreement shall have the
meanings assigned to such terms in Annex A to the Insured
Receivables Credit Agreement, dated as of August 11, 2005,
relating to the SunGard Insured Receivables Facility, by and among
SunGard Funding LLC, a Delaware limited liability company, JPMorgan
Chase Bank, N.A., as Administrative Agent, the Lenders and Funding
Agents parties thereto, and the Insurer, as amended or otherwise
modified from time to time (the “ Credit Agreement
”).
PRELIMINARY
STATEMENTS
SunGard Financing now owns, and from
time to time hereafter will own, pursuant to the First Step
Agreement, all of the right, title and interest in and to the
Receivables of the Sellers thereunder (the “
Receivables ”), together with the Seller Related
Security and Collections with respect thereto (collectively with
the Receivables, the “ Assets ”).
SunGard Financing wishes to sell and
assign SunGard Funding, and SunGard Funding wishes to purchase from
SunGard Financing, all of SunGard Financing’s right, title
and interest in and to the Assets and the SunGard Financing Related
Security existing on the date hereof and arising from time to time
until the Amortization Date. SunGard Financing and SunGard Funding
intend the transaction contemplated hereby to be true sales of the
Assets and the SunGard Financing Related Security, providing
SunGard Funding with the full benefits of ownership, and SunGard
Financing and SunGard Funding do not intend this transaction to be
loans from SunGard Financing to SunGard Funding. However, if the
transaction contemplated hereby are characterized as loans, SunGard
Financing hereby grants to SunGard Funding a security interest in
the Assets and the SunGard Financing Related Collateral.
Following each purchase of all of
SunGard Financing’s right, title and interest in and to all
the Assets and the SunGard Financing Related Security, SunGard
Funding may pledge the Assets and the SunGard Financing Related
Security to obtain credit under the Credit Agreement.
ARTICLE I
AMOUNTS AND TERMS
Section 1.1 Purchase of
Receivables .
(a) Effective on the date hereof, in
consideration for the Second Step Purchase Price and upon the terms
and subject to the conditions set forth herein, SunGard Financing
hereby sells, assigns, transfers, sets over and otherwise conveys
to SunGard Funding, without
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recourse (except to the extent expressly
provided herein), and SunGard Funding does hereby purchase from
SunGard Financing, all of its right, title and interest in and to
all of the Assets and the SunGard Financing Related Security
existing as of the close of business on the Business Day
immediately prior to the date hereof and all of the Assets and
SunGard Financing Related Security thereafter arising through and
including the Amortization Date. In accordance with the preceding
sentence, on the date hereof SunGard Funding shall acquire all of
SunGard Financing’s right, title and interest in and to all
of the Assets and the SunGard Financing Related Security existing
as of the close of business on the Business Day immediately prior
to the date hereof and thereafter arising through and including the
Amortization Date; provided , that, SunGard Funding shall
pay the Second Step Purchase Price therefor in accordance with
Section 1.2 .
(b) It is the intention of the
parties hereto that the Purchase of Receivables included in the
Assets made hereunder shall constitute a “sale of
accounts” (as such term is used in Article 9 of the Uniform
Commercial Code), which sale is absolute and irrevocable and
provides SunGard Funding with the full benefits of ownership of the
Receivables. The sale of Receivables hereunder is made without
recourse to SunGard Financing; provided , however ,
that (i) SunGard Financing shall be liable to SunGard Funding
for all representations, warranties and covenants made by the
Sellers under the First Step Agreement and by SunGard Financing
hereunder, and (ii) such sale does not constitute and is not
intended to result in an assumption by SunGard Funding or any
assignee thereof of any obligation of any Seller, SunGard Financing
or any other Person arising in connection with the Receivables, the
related Contracts, the Seller Related Security and/or the SunGard
Financing Related Security or any other obligations of Sellers or
SunGard Financing. In view of the intention of the parties hereto
that the Purchase of Receivables made hereunder shall constitute a
sale of such Receivables rather than loans secured thereby, SunGard
Financing will, on or prior to the date hereof and in accordance
with Section 4.1(h) , (x) indicate clearly and
unambiguously in its computer files that all Receivables have been
or will be conveyed to SunGard Funding pursuant to this Agreement
and (y) note in its accounting records that the Receivables
have been sold to SunGard Funding. Upon the request of SunGard
Funding, the Transferor will execute and file such financing or
continuation statements, or amendments thereto or assignments
thereof, and such other instruments or notices, as may be necessary
or appropriate to perfect and maintain the perfection of SunGard
Funding’s ownership interest in the Assets and SunGard
Financing Related Security, or as SunGard Funding may reasonably
request.
Section 1.2 Payment for the
Purchase .
(a) The Second Step Purchase Price
for each Second Step Purchase from SunGard Financing shall be the
Purchase Price (net of Purchase Price Credits) payable for the
related Purchase by SunGard Financing under the First Step
Agreement, payable on the dates the related Purchase Price is
payable by SunGard Financing.
(b) Upon the fulfillment of the
conditions set forth in Article III, the Second Step Purchase Price
for Receivables shall be paid by SunGard Funding or provided for
(without duplication) by SunGard Funding in the manner provided in
Section 1.2(c) on the date of the initial Purchase from
SunGard Financing and on each Purchase Date thereafter until the
Amortization Date.
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(c) The Second Step Purchase Price
for Receivables shall be paid by SunGard Funding on each Purchase
Date (including the initial Purchase Date) as follows:
(i) by netting the amount of any
Purchase Price Credits then due to SunGard Financing against such
Second Step Purchase Price;
(ii) to the extent available for
such purpose (as determined by SunGard Funding), in cash;
and
(iii) by means of an addition to the
principal amount of the Second Step Intercompany Note in an
aggregate amount up to the remaining portion of the Second Step
Purchase Price (after subtraction of the amounts paid in accordance
with clauses (i), (ii) and (iii) of this subsection (c)).
SunGard Financing may evidence such additional principal amounts by
recording the date and amount thereof on the grid attached to the
Second Step Intercompany Note; provided , however ,
that the failure to make any such recordation or any error in such
grid shall not adversely affect SunGard Financing’s
rights.
(d) All amounts payable by SunGard
Funding in respect of the Second Step Purchase Price of Receivables
shall be paid by SunGard Funding to an account of SunGard
Financing. Any such payment by SunGard Funding to or at the
direction of SunGard Financing shall constitute a full and complete
discharge of SunGard Funding’s liability for the amounts so
paid.
Section 1.3 Reconveyance of
Receivables . Simultaneously with any reconveyance of a
Receivable under Section 1.3(b) of the First Step
Agreement, such Receivable shall immediately and automatically be
sold, assigned, transferred and reconveyed (without recourse) by
SunGard Funding to SunGard Financing without any further action by
SunGard Funding or any other Person.
Section 1.4 Payments and
Computations, Etc .
(a) All amounts to be paid or
deposited by SunGard Funding hereunder shall be paid or deposited
in accordance with the terms hereof on the day when due in
immediately available funds to the account of SunGard Financing
designated from time to time by SunGard Financing or as otherwise
directed by SunGard Financing; provided that to the extent
Collections during any Monthly Period that are available to fund
the Second Step Purchase Price of Receivables sold during such
period are less than the full amount of such Second Step Purchase
Price, the unpaid portion thereof shall be paid or provided for on
the related Settlement Date in accordance with
Section 1.4(c) . In the event that any payment owed by
any Person hereunder becomes due on a day that is not a Business
Day, then such payment shall be made on the next succeeding
Business Day. If any Person fails to pay any amount hereunder when
due, such Person agrees to pay, on demand, the Default Fee in
respect thereof until paid in full; provided ,
however , that such Default Fee shall not at any time exceed
the maximum rate permitted by applicable law. All computations of
interest payable hereunder shall be made on the basis of a year of
360 days for the actual number of days (including the first but
excluding the last day) elapsed.
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(b) All amounts due to SunGard
Financing from SunGard Funding once received shall be applied in
the following order of payment during each Monthly
Period:
(i) first , to pay any
amounts payable pursuant to 1.2(c)(ii) ; and
(ii) second , to make
payments of interest on, and then principal of the Second Step
Intercompany Note in accordance with Section 1.8 and
the Second Step Intercompany Note.
(c) On each Settlement
Date:
(i) SunGard Financing shall
determine the aggregate Second Step Purchase Price (the “
Aggregate Second Step Purchase Price ”) for all Assets
conveyed by SunGard Financing to SunGard Funding during the
preceding Monthly Period or, in the case of the Amortization Date,
during the period from the end of the preceding Monthly Period to
the Amortization Date (each such period, a “ Adjusted
Monthly Period ”); provided , that the final
Adjusted Monthly Period shall commence on the day following the
most recently ended Adjusted Monthly Period and shall end on the
Amortization Date;
(ii) if on any Settlement Date, the
Aggregate Second Step Purchase Price for the related Adjusted
Monthly Period minus the aggregate amount of Second Step Purchase
Price Credits for such Adjusted Monthly Period (such difference,
the “ Modified Aggregate Second Step Purchase Price
”) exceeds the amount of cash payments received by SunGard
Financing as provided herein for such Adjusted Monthly Period (such
amount, the “ Cash Payments ”), SunGard
Financing shall, subject to the terms of this Agreement and to the
extent it has not already done so, record such excess as an
increase in the principal amount outstanding under the Second Step
Intercompany Note (subject to the limitation set forth in
Section 1.8(c) ), and if any excess remains after
giving effect to the permissible increase in the principal amount
of the Second Step Intercompany Note, SunGard Financing may declare
the Amortization Date to have occurred by delivering notice to that
effect to SunGard Funding and the Administrative Agent;
and
(iii) if on any Settlement Date, the
Cash Payments for the related Adjusted Monthly Period exceed the
Modified Aggregate Second Step Purchase Price for such Adjusted
Monthly Period, SunGard Financing shall, subject to the terms of
this Agreement, record the application of that excess, (x)
first , to the payment of any unpaid and accrued interest on
the Second Step Intercompany Note, (y) second , as a
reduction in the principal amount of the Second Step Intercompany
Note, and, (z) third , to the payment of any remaining
excess to SunGard Funding.
Section 1.5 Transfer of
Records .
(a) In connection with the Purchase
of Receivables hereunder, SunGard Financing hereby sells,
transfers, assigns and otherwise conveys to SunGard Funding all
of
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SunGard Financing’s right and title to and
interest in the Records relating to all Receivables sold hereunder,
without the need for any further documentation in connection with
the Purchase. In connection with such transfer, SunGard Financing
hereby grants to SunGard Funding an irrevocable, non-exclusive
license to use, without royalty or payment of any kind, all
software used by SunGard Financing to account for the Receivables,
to the extent necessary to administer the Receivables, whether such
software is owned by SunGard Financing or is owned by others and
used by SunGard Financing under license agreements with respect
thereto, provided that should the consent of any licensor of
SunGard Financing to such grant of the license described herein be
required, SunGard Financing hereby agrees that upon the request of
SunGard Funding, SunGard Financing will use its reasonable efforts
to obtain the consent of such third-party licensor. The license
granted hereby shall be irrevocable, and shall terminate on the
date this Agreement terminates in accordance with its
terms.
(b) SunGard Financing (i) shall
take such action requested by SunGard Funding, from time to time
hereafter, that may be necessary or appropriate to ensure that
SunGard Funding have an enforceable ownership interest in the
Records (and is able to grant a perfected first priority security
interest) relating to the Receivables purchased from SunGard
Financing hereunder, and (ii) shall use its reasonable efforts
to ensure that SunGard Funding, the Administrative Agent and the
Collection Agent each has an enforceable right (whether by license
or sublicense or otherwise) to use all of the computer software
used to account for the Receivables and/or to recreate such
Records.
Section 1.6 Characterization
. This agreement constitutes a “security agreement” as
defined in the Uniform Commercial Code that the parties intend
provides for the “security interest” of a buyer of
accounts under the Uniform Commercial Code. If, notwithstanding the
intention of the parties expressed in Section 1.1(b), any sale
by SunGard Financing to SunGard Funding of Receivables hereunder
shall be characterized as a loan by SunGard Financing to SunGard
Funding and not a true sale of accounts or such sale shall for any
reason be ineffective or unenforceable, then this Agreement shall
be deemed to constitute a security agreement in respect of such
loan under the Uniform Commercial Code and other applicable law.
For this purpose and without being in derogation of the
parties’ intention that the transactions hereunder shall
constitute a true sale of the Assets and the SunGard Financing
Security, SunGard Financing hereby grants to SunGard Funding a
security interest in all of SunGard Financing’s right, title
and interest in, to and under all Assets existing and hereafter
arising and all Records with respect thereto, and all proceeds of
the foregoing, and the SunGard Financing Related Security to secure
such loan, which security interest shall be prior to all other
Liens. After the occurrence of an Early Amortization Event, SunGard
Funding and its assigns shall have, in addition to the rights and
remedies specified in this Agreement, all other rights and remedies
provided to a secured party after default in a transaction which is
a sale of accounts under the Uniform Commercial Code and other
applicable law, which rights and remedies shall be
cumulative.
Section 1.7 No Repurchase .
Except to the extent expressly set forth herein, SunGard Financing
shall not have any right or obligation under this Agreement, by
implication or otherwise, to repurchase from SunGard Funding any
Receivables or to rescind or otherwise retroactively affect any
Purchase of any Receivable after it is sold to SunGard Funding
hereunder.
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Section 1.8 Second Step
Intercompany Note .
(a) On the date of the initial
Purchase, SunGard Funding shall issue to SunGard Financing, for its
account, a note substantially in the form of Exhibit I (as
amended, supplemented or otherwise modified from time to time, the
“ Second Step Intercompany Note ”). The
aggregate principal amount of the Second Step Intercompany Note at
any time shall be equal to the difference between (i) the
aggregate principal amount on the issuance thereof and each
addition to the principal amount of the Second Step Intercompany
Note with respect to SunGard Financing pursuant to the terms of
Section 1.2(c)(iii) and Section 1.4 as of
such time, minus (ii) the aggregate amount of all
payments made in respect of the principal of the Second Step
Intercompany Note as of such time. All payments made in respect of
the Second Step Intercompany Note shall be allocated, first
, to pay accrued and unpaid interest thereon, and second ,
to pay the outstanding principal amount thereof. Interest on the
outstanding principal amount of the Second Step Intercompany Note
shall accrue at a rate per annum equal to the Base Rate in effect
from time to time from and including the date of issuance to but
excluding the day on which it is paid in full and shall, subject to
the terms and conditions hereof and thereof, be paid (x) on
each Settlement Date with respect to the principal amount of the
Second Step Intercompany Note outstanding from time to time during
the Adjusted Monthly Period immediately preceding such Settlement
Date (but only to the extent SunGard Funding has funds available to
make such payment) and (y) on the maturity date thereof;
provided , however , that, to the maximum extent
permitted by law, accrued interest on the Second Step Intercompany
Note which is not so paid shall be added to the principal amount of
the Second Step Intercompany Note. Principal of the Second Step
Intercompany Note not paid or prepaid pursuant to the terms thereof
shall be payable on the maturity date thereof. Notwithstanding
anything to the contrary contained in this Agreement, any payments
to be made by SunGard Funding in respect of the Second Step
Intercompany Note shall be made solely from funds available to
SunGard Funding that are not otherwise required to be applied or
set-aside for the payment of any obligations of SunGard Funding
under the Second Step Agreement, shall be non-recourse and shall
not constitute a claim against SunGard Funding to the extent that
insufficient funds exist to make such payment.
(b) Anything herein to the contrary
notwithstanding, SunGard Funding may not make any payment of any
Second Step Purchase Price on any Purchase Date by increasing the
aggregate principal amount of the Second Step Intercompany Note
outstanding unless the aggregate principal amount of the Second
Step Intercompany Note outstanding on such Purchase Date (after
giving effect to all repayments thereof on or before such Purchase
Date) would not exceed 25% of the aggregate Outstanding Balance of
the Receivables on such Purchase Date.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and
Warranties of SunGard Financing . SunGard Financing hereby
represents and warrants to SunGard Funding, as of the date hereof,
and as of the date of each incremental Purchase, and with respect
to the other representations and warranties set forth in this
Section 2.1, as of the date such Receivables are purchased
hereunder, that:
(a) Corporate Existence and
Power . SunGard Financing (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its organization, (b) has all requisite power and authority to
own its assets, to carry on its business as now conducted and as
proposed to be conducted and to execute, deliver and perform its
obligations under each Transaction Document to which it is a party
and (c) except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, is to do business in, and is in good
standing in, every jurisdiction where such qualification is
required.
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(b) Power and Authority; Due
Authorization Execution and Delivery . The execution, delivery
and performance by SunGard Financing of the Transaction Documents
to which it is a party have been duly authorized by all necessary
corporate action or other action and, if required, stockholder
action. This Agreement has been duly executed and delivered by
SunGard Financing and constitutes, and each other Transaction
Document to which SunGard Financing is to be a party, when executed
and delivered by SunGard Financing, will constitute, a valid and
legally binding obligation of SunGard Financing, as applicable,
enforceable 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.
(c) Governmental Approvals, No
Conflict . The execution and delivery by SunGard Financing of
this Agreement and each other Transaction Document to which it is a
party, and the performance of its obligations hereunder and
thereunder (i) do not require any consent or approval of,
registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made
and are in full force and effect and except filings necessary to
perfect security interests created under the Transaction Documents,
(ii) do not contravene or violate, as the case may be, its
certificate of incorporation or by-laws, or its certificate of
formation or limited liability company agreement; (iii) do not
require compliance with any bulk sales act or similar law,
(iv) will not violate any Requirement of Law applicable to
SunGard Financing except to the extent such violations,
individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect, (v) will not violate
or result in a default under any material indenture or other
material agreement or instrument binding upon SunGard Financing or
any of their respective assets, or give rise to a right thereunder
to require any payment to be made by SunGard Financing or give rise
to a right of, or result in, termination, cancellation or
acceleration of any material obligation thereunder, and
(vi) will not result in the creation or imposition of any Lien
on any asset of SunGard Financing except Liens created under the
Transaction Documents.
(d) Actions, Suits . There
are no actions, suits or proceedings pending, or to SunGard
Financing’s knowledge, probable of assertion, against or
affecting SunGard Financing, or any of its properties, in or before
any court, arbitrator or other body, that question the validity of
the Transactions or could reasonably be expected to have a Material
Adverse Effect. SunGard Financing is not in default with respect to
any order of any court, arbitrator or governmental body.
(e) Accuracy of Information .
All information heretofore furnished by SunGard Financing or any of
its Affiliates to SunGard Funding for purposes of or in
connection
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with this Agreement, any of the other
Transaction Documents or any transaction contemplated hereby or
thereby is, and all such information hereafter furnished by SunGard
Financing or any of its Affiliates to SunGard Funding will be, true
and accurate in every material respect on the date such information
is stated or certified.
(f) Good Title . At the time
each Receivable of SunGard Financing is transferred to SunGard
Funding, SunGard Financing was the legal and beneficial owner of
each such Receivables, Related Security and Collections with
respect thereto, free and clear of any Lien, except as created by
the Transaction Documents.
(g) Perfection . This
Agreement, together with the filing of the financing statements
contemplated hereby, is effective to, and shall, upon each
Purchase, transfer to the SunGard Funding (and the SunGard Funding
shall acquire from SunGard Financing) a valid and perfected first
priority ownership interest in each Receivable that is the subject
of such Purchase, together with the Related Security and
Collections with respect thereto, free and clear of any Lien,
except as created by the Transactions 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
SunGard Funding’s ownership interest in the Receivables, the
Related Security and the Collections.
(h) Uniform Commercial Code
Search; Filing Information; Location of Records . The name (as
it appears in the public records of the relevant jurisdiction of
organization), the Federal tax identification number, the
organizational identification number, the type of organization, the
jurisdiction of organization, the mailing address and the address
of the location of the Records of SunGard Financing are correctly
set forth Schedule B .
(i) Lockboxes, Lockbox Accounts
and Collection Accounts . The names and addresses of all
Lockbox Banks and Collection Banks as of the date of this
Agreement, together with the account numbers of the Lockbox
Accounts and Collection Accounts at each Lockbox Bank and
Collection Bank and the post office box number of each Lockbox, are
listed on Schedule C .
(j) Names . Within the last
five years, SunGard Financing has not used any corporate names,
trade names or assumed names other than that on the signature page
of this Agreement.
(k) Ownership of SunGard
Funding . SunGard Financing owns, directly or indirectly, 100%
of membership interests in SunGard Funding, free and clear of any
Lien.
(l) Investment and Holding
Company Status . SunGard Financing is not (a) an
“investment company” as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a
“holding company” as defined in, or subject to
regulation under, the Public Utility Holding Company Act of
1935.
(m) Equivalent Value; Good Faith
Transfers . The amount of consideration being received by
SunGard Financing upon the sale of the Receivables, the Seller
Related Security and the SunGard Financing Related Security to
SunGard Funding constitutes reasonably equivalent value and fair
consideration for the Receivables, the Seller Related Security and
the
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SunGard Financing Related Security. The
transfers of Receivables by SunGard Financing to SunGard Funding
pursuant to this Agreement, and all other transactions between
SunGard Financing and SunGard Funding, have been and will be made
in good faith and without intent to hinder, delay or defraud
creditors of SunGard Financing.
(n) Early Amortization Event and
Potential Early Amortization Event . No Early Amortization
Event or Potential Early Amortization Event has occurred and is
continuing.
(o) Taxes. SunGard Financing
has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) any Taxes
that are being contested in good faith by appropriate proceedings
and for which SunGard Financing has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could
not reasonably be expected to result in a Material Adverse
Effect.
(p) Solvency. Immediately
after the consummation of the Transactions to occur on the date
hereof, SunGard Financing is Solvent.
(q) Employees . SunGard
Financing has no employees.
(r) Uniform Commercial Code
Article 9 Representation . (i) Creation . This
Agreement creates a valid and continuing security interest (as
defined in the applicable Uniform Commercial Code) in the
Receivables, the Collections and the Seller Related Security in
favor of SunGard Funding, which security interest is prior to all
other Liens, and is enforceable as such as against creditors of and
purchasers from the Transferor.
(ii) Accounts . The
Receivables, Collections and Related Security constitute either
“accounts”, “general intangibles” or
“deposit accounts” within the meaning of the Uniform
Commercial Code.
(iii) Title . The Transferor
owns and has good and marketable title to the Receivables,
Collections and Seller Related Security free and clear of any Lien,
claim or encumbrance of any Person.
(iv) Perfection . The
Transferor has caused or will have caused, within ten days, 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
hereunder to the extent that they constitute “accounts”
or “general intangibles”. The Transferor has delivered
to the Administrative Agent a fully executed agreement pursuant to
which the banks maintaining the Lockboxes, the Lockbox Accounts and
the Collection Accounts have agreed to comply with all instructions
originated by the Administrative Agent directing disposition of the
funds in the Lockboxes, Lockbox Accounts and Collection Accounts
without further consent by the Transferor. The Lockboxes, the
Lockbox Accounts and the Collection Account are not in the name of
any Person other than SunGard Financing. SunGard financing has not
consented to any such bank maintaining the Lockboxes, the Lockbox
Accounts or the Collection Account to comply with instructions of
any Person other than the Administrative Agent.
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(v) Priority . Other than the
security interest granted to SunGard Funding hereunder, the
Transferor has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Receivables,
Collections or Seller Related Security. The Transferor has not
authorized the filing of and is not aware of any financing
statements against the Transferor that include a description of
collateral covering the Receivables, the Collections or the Seller
Related Security other than any financing statement relating to the
security interest granted to SunGard Funding hereunder or that has
been terminated. The Transferor is not aware of any judgment or tax
lien filings against the Transferor.
(vi) This clause (r) is not
waivable.
Section 2.2 Representations and
Warranties of SunGard Funding . SunGard Funding represents and
warrants as follows:
(a) SunGard Funding is a limited
liability company duly formed, validly existing and in good
standing under the laws of the jurisdiction of its formation and is
duly in good standing as a foreign limited liability company in
each jurisdiction where the failure to be so qualified,
individually or in the aggregate, could not reasonably be expected
to have a material adverse effect on the ability of SunGard Funding
to perform its obligations hereunder.
(b) The execution, delivery and
performance by SunGard Funding of this Agreement, and each other
Transaction Document to which SunGard Funding is to be a party,
when executed and delivered by SunGard Funding (i) have been
duly authorized by all necessary limited liability company action
and (ii) will not (A) violate (1) SunGard
Funding’s certificate of formation or limited liability
company agreement, (2) any Requirement of Law applicable to
SunGard Funding or (3) any provision of any indenture,
certificate of designation for preferred stock, agreement or other
instrument to which SunGard Funding is a party or by which it or
any of its property is or may be bound or (B) be in conflict
with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, give rise to a right of or
result in any cancellation of a material right or acceleration of
any material payment obligations under any such indenture,
certificate of designation for preferred stock, agreement or other
instrument, where any such conflict, violation, breach or default
referred to in clause (ii) or this Section 2.2(b)
, could reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the ability of SunGard
Funding to perform its obligations hereunder and (iii) will
not result in the creation or imposition of any Lien except Liens
created under the Transaction Documents.
(c) No authorization or approval or
other action by, and no notice to or filing with, any Governmental
Authority is required for the due execution, delivery and
performance by SunGard Funding of this Agreement, except
(i) such as have been obtained or made and are in full force
and effect and (ii) for such authorizations, approvals or
actions the failure of which to obtain or take could not reasonably
be expected to have a material adverse effect on the ability of
SunGard Funding to perform its obligations hereunder.
(d) This Agreement, and each other
Transaction Document to which SunGard Funding is to be a party,
when executed and delivered by SunGard Funding, has been
duly
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executed and delivered by SunGard Funding and is
the legal, valid and binding obligation of SunGard Funding,
enforceable in accordance with its terms, subject to (i) the
effects of bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting creditors’ rights generally,
(ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law)
and (iii) implied covenants of good faith and fair
dealing.
ARTICLE III
CONDITIONS OF PURCHASE
Section 3.1 Conditions Precedent
to Initial Purchase . The initial Purchase under this Agreement
is subject to the conditions precedent that (a) SunGard
Funding shall have received on or before the date of such purchase
those documents listed on Schedule D and (b) all of the
conditions to the initial purchase under the First Step Agreement
and to the effectiveness of the Credit Agreement shall have been
satisfied or waived in accordance with the terms
thereof.
Section 3.2 Conditions Precedent
to all Purchases by SunGard Funding . SunGard Funding’s
obligation to purchase Receivables on each Purchase Date from
SunGard Financing shall be subject to the further conditions
precedent that (a) the Amortization Date shall not have
occurred and (b) the representations and warranties set forth
in Article II with respect to SunGard Financing that are required
to be made on such Purchase Date are true and correct on and as of
such date.
Notwithstanding the foregoing,
unless otherwise specified by SunGard Funding (with a copy to the
Administrative Agent) in a written notice to SunGard Financing,
each Purchase from SunGard Financing shall occur automatically on
each day prior to the Amortization Date, with the result that the
title to all Receivab
