Exhibit 10.11
SUNGARD BRIDGE RECEIVABLES
FACILITY
PERFORMANCE
UNDERTAKING
This Performance Undertaking (this
“ Undertaking ”), dated as of August 11,
2005, is executed by SUNGARD DATA SYSTEMS INC., a Delaware
corporation (the “ Performance Guarantor ”) in
favor of SUNGARD FINANCING LLC, a Delaware limited liability
company, together with its successors and assigns, including
JPMorgan Chase Bank, N.A., as Administrative Agent on behalf of the
Lenders (collectively, the “ Recipient
”).
RECITALS
1. Each Subsidiary of the
Performance Guarantor that is a Seller on the date hereof and that
becomes a Seller from time to time (collectively, the “
Sellers ”) and Recipient have entered into or will
enter into the SunGard Bridge Receivables Facility First Step
Receivables Purchase Agreement, dated as of August 11, 2005
(as amended, restated or otherwise modified from time to time, the
“ First Step Agreement ”), pursuant to which
each Seller thereunder, subject to the terms and conditions
contained therein, is selling its right, title and interest in its
Receivables, Seller Related Security and Collections thereof to
Recipient.
2. Each Seller is a Subsidiary of
Performance Guarantor and Performance Guarantor is expected to
receive substantial direct and indirect benefits from the sale of
Receivables, Seller Related Security and Collections thereof by the
Sellers to the Recipient pursuant to the First Step Agreement
(which benefits are hereby acknowledged by the Performance
Guarantor).
3. As an inducement for Recipient to
purchase the Sellers’ Receivables, Seller Related Security
and Collections pursuant to the First Step Agreement, Performance
Guarantor has agreed to and wishes to guaranty to the Recipient the
due and punctual performance by each Seller of its obligations
under or in respect of the First Step Agreement and the Collection
Agent Related Obligations (as hereinafter defined).
AGREEMENT
NOW, THEREFORE, Performance
Guarantor hereby agrees as follows:
Section 1. Definitions .
Capitalized terms used herein and not defined herein shall have the
respective meanings assigned thereto in the First Step Agreement,
the Second Step Agreement, or Schedule A to the Credit
Agreement . Capitalized terms used in Section 6 or in
Section 9 hereof and not defined herein, in the First Step
Agreement, in the Second Step Agreement, or in Schedule A to the
Credit Agreement shall have the respective meanings assigned
thereto in the Senior Credit Agreement. In addition:
“ Obligations ”
means, collectively, (i) all covenants, agreements, terms,
conditions and indemnities to be performed and observed by each
Seller under and pursuant to the First Step Agreement and each
other document executed and delivered by
any Seller pursuant to the First Step Agreement,
including , without limitation , the due and
punctual payment of all sums which are or may become due and owing
by any Seller under the First Step Agreement, whether for fees,
expenses (including counsel fees), indemnified amounts or
otherwise, whether upon any termination or for any other reason and
(ii) all obligations of any Person (1) that acts as or
discharges the duties of the collection agent, or its permitted
successors and assigns (the “ Collection Agent
”) under the Collection Agent Agreement, dated as of
August 11, 2005, by and between Performance Guarantor, as
initial Collection Agent, and Recipient (as amended, restated or
otherwise modified, the “ Collection Agent Agreement
” and, together with the First Step Agreement, the “
Agreements ”) and (2) which arise pursuant to the
Collection Agent Agreement as a result of a Collection
Agent’s termination as Collection Agent (all such obligations
collectively, the “ Collection Agent Related
Obligations ”).
Section 2. Guaranty of
Performance of Obligations . Performance Guarantor hereby
guarantees to Recipient, the full and punctual payment and
performance by each Seller and Collection Agent of the Obligations.
This Undertaking is an absolute, unconditional and continuing
guaranty of the full and punctual performance of all of the
Obligations of each Seller and Collection Agent under the
Agreements and each other document executed and delivered by each
Seller and Collection Agent pursuant to the Agreements and is in no
way conditioned upon any requirement that Recipient first attempt
to collect any amounts owing by such Seller or Collection Agent to
Recipient, the Administrative Agent, Funding Agents, Conduit
Lenders, or Committed Lenders from any other Person or resort to
any collateral security, any balance of any deposit account,
intercompany payable or intercompany promissory note of any Seller
or any Collection Agent, or any other Person or other means of
obtaining payment. Should any Seller or Collection Agent default in
the payment or performance of any of the Obligations, Recipient (or
its assigns) may cause the immediate performance by Performance
Guarantor of the Obligations and cause any payment Obligations to
become forthwith due and payable to Recipient (or its assigns),
without demand or notice of any nature (other than as expressly
provided herein), all of which are hereby expressly waived by
Performance Guarantor. Notwithstanding the foregoing, this
Undertaking is not a guarantee of the collection of any of the
Receivables and Performance Guarantor shall not be responsible for
any Obligations to the extent that the failure to perform such
Obligations by any Seller or Collection Agent results from
Receivables being uncollectible on account of the insolvency,
bankruptcy or lack of creditworthiness of the related Obligor;
provided , that nothing herein shall relieve any Seller or
Collection Agent from performing in full its Obligations under the
Agreements or Performance Guarantor of its undertaking hereunder
with respect to the full performance of such duties.
Section 3. Performance
Guarantor’s Further Agreements to Pay . Performance
Guarantor further agrees, as the principal obligor and not as a
guarantor only, to pay to Recipient (and its assigns), forthwith
upon demand in funds immediately available to Recipient, all
reasonable costs and expenses (including court costs and legal
expenses) incurred or expended by Recipient in connection with the
Obligations, this Undertaking and the enforcement thereof, together
with interest on amounts recoverable under this Undertaking from
the time when such amounts become due until payment, at a rate of
interest (computed for the actual number of days elapsed based on a
360 day year)
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equal to the Base Rate plus 2% per annum,
such rate of interest changing from time to time when and as the
Base Rate changes.
Section 4. Waivers by
Performance Guarantor . Performance Guarantor waives notice of
acceptance of this Undertaking, notice of any action taken or
omitted by Recipient (or its assigns) in reliance on this
Undertaking, and any requirement that Recipient (or its assigns) be
diligent or prompt in making demands under this Undertaking, giving
notice of any Early Amortization Event (under and as defined in
either of the First Step Agreement or the Collection Agent
Agreement), Event of Default, other default or omission by any
Seller or Collection Agent or asserting any other rights of
Recipient under this Undertaking. Performance Guarantor warrants
that it has adequate means to obtain from any Seller or Collection
Agent, on a continuing basis, information concerning the financial
condition of any Seller or Collection Agent, and that it is not
relying on Recipient to provide such information, now or in the
future. Performance Guarantor also irrevocably waives all defenses
(i) that at any time may be available in respect of the
Obligations by virtue of any statute of limitations, valuation,
stay, moratorium law or other similar law now or hereafter in
effect or (ii) that arise under the law of suretyship,
including impairment of collateral. Recipient (and its assigns)
shall be at liberty, without giving notice to or obtaining the
assent of Performance Guarantor and without relieving Performance
Guarantor of any liability under this Undertaking, to deal with
each Seller and Collection Agent and with each other party who now
is or after the date hereof becomes liable in any manner for any of
the Obligations, in such manner as Recipient (and its assigns) in
its sole discretion deems fit, and to this end Performance
Guarantor agrees that the validity and enforceability of this
Undertaking, including without limitation, the provisions of
Section 7 hereof, shall not be impaired or affected by
any of the following: (a) any extension, modification or
renewal of, or indulgence with respect to, or substitutions for,
the Obligations or any part thereof or any agreement relating
thereto at any time; (b) any failure or omission to enforce
any right, power or remedy with respect to the Obligations or any
part thereof or any agreement relating thereto, or any collateral
securing the Obligations or any part thereof; (c) any waiver
of any right, power or remedy or of any Early Amortization Event
(under and as defined in either of the First Step Agreement or the
Collection Agent Agreement), Event of Default, or default with
respect to the Obligations or any part thereof or any agreement
relating thereto; (d) any release, surrender, compromise,
settlement, waiver, subordination or modification, with or without
consideration, of any other obligation of any person or entity with
respect to the Obligations or any part thereof; (e) the
enforceability or validity of the Obligations or any part thereof
or the genuineness, enforceability or validity of any agreement
relating thereto or with respect to the Obligations or any part
thereof; (f) the application of payments received from any
source to the payment of any payment Obligations of any Seller or
Collection Agent or any part thereof or amounts which are not
covered by this Undertaking even though Recipient (or its assigns)
might lawfully have elected to apply such payments to any part or
all of the payment Obligations of any Seller or Collection Agent or
to amounts which are not covered by this Undertaking; (g) the
existence of any claim, setoff or other rights which Performance
Guarantor may have at any time against any Seller or Collection
Agent in connection herewith or any unrelated transaction;
(h) any assignment or transfer of the Obligations or any part
thereof; or (i) any failure on the part of any Seller or
Collection Agent to perform or comply with any term of the
Agreements or any other document executed in connection therewith
or delivered thereunder, all whether or not
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Performance Guarantor shall have had notice or
knowledge of any act or omission referred to in the foregoing
clauses (a) through (i) of this Section 4
.
Section 5. Unenforceability
of Obligations Against Seller or Collection Agents .
Notwithstanding (a) any change of ownership of any Seller or
Collection Agent or the insolvency, bankruptcy or any other change
in the legal status of any Seller or Collection Agent; (b) the
change in or the imposition of any law, decree, regulation or other
governmental act which does or might impair, delay or in any way
affect the validity, enforceability or the payment when due of the
Obligations; (c) the failure of any Seller or Collection Agent
or Performance Guarantor to maintain in full force, validity or
effect or to obtain or renew when required all governmental and
other approvals, licenses or consents required in connection with
the Obligations or this Undertaking, or to take any other action
required in connection with the performance of all obligations
pursuant to the Obligations or this Undertaking; or (d) if any
of the moneys included in the Obligations have become irrecoverable
from any Seller or Collection Agent for any other reason other than
final payment in full of the payment Obligations in accordance with
their terms, this Undertaking shall nevertheless be binding on
Performance Guarantor. This Undertaking shall be in addition to any
other guaranty or other security for the Obligations, and it shall
not be rendered unenforceable by the invalidity of any such other
guaranty or security. In the event that acceleration of the time
for payment of any of the Obligations is stayed upon the
insolvency, bankruptcy or reorganization of any Seller or
Collection Agent or for any other reason with respect to any Seller
or Collection Agent, all such amounts then due and owing with
respect to the Obligations under the terms of the Agreements, or
any other agreement evidencing, securing or otherwise executed in
connection with the Obligations, shall be immediately due and
payable by Performance Guarantor.
Section 6. Representations
and Warranties . Performance Guarantor represents and warrants
to the Recipient that:
(a) Existence, Qualification and
Power; Compliance with Laws. Performance Guarantor (a) is
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 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.
(b) Authorization; No
Contravention . The execution, delivery and performance by
Performance Guarantor of this Undertaking are within Performance
Guarantor’s corporate power, have been duly authorized by all
necessary corporate action, and do not and will not
(a) contravene the terms of any of Performance
Guarantor’s Organization Documents, (b) conflict with or
result in any breach or contravention of, or the creation of any
Lien, or require any payment to be made
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under (i) any Contractual
Obligation to which Performance Guarantor is a party or affecting
Performance Guarantor or the properties of Performance Guarantor or
any of its Subsidiaries or (ii) any material order,
injunction, writ or decree of any Governmental Authority or any
arbitral award to which Performance Guarantor 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.
(c) 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, Performance Guarantor of
this Undertaking or (b) the exercise by Recipient of its
rights hereunder except for (i) 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 (ii) 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.
(d) Binding Effect . This
Undertaking has been duly executed and delivered by Performance
Guarantor. This Undertaking constitutes a legal, valid and binding
obligation of Performance Guarantor, enforceable against
Performance Guarantor in accordance with its terms, except as such
enforceability may be limited by Debtor Relief Laws and by general
principles of equity.
(e) Litigation . There are no
actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Performance Guarantor, threatened in writing or
contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Performance Guarantor or
against any of its properties or revenues that either individually
or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(f) Financial Statements; No
Material Adverse Effect. (i) The Audited Financial
Statements and the Unaudited Financial Statements fairly present in
all material respects the financial condition of the Performance
Guarantor and its Subsidiaries as of the dates thereof and their
results of operations for the period covered thereby in accordance
with GAAP consistently applied throughout the periods covered
thereby, except as otherwise expressly noted therein. During the
period from December 31, 2004 to and including the date
hereof, there has been (i) no sale, transfer or other
disposition by the Performance Guarantor or any of its Subsidiaries
of any material part of the business or property of the Performance
Guarantor or any of its Subsidiaries, taken as a whole and
(ii) no purchase or other acquisition by the Performance
Guarantor or any of its Subsidiaries of any business or property
(including any Equity Interests of any other Person) material in
relation to the consolidated financial condition of the Performance
Guarantor and its Subsidiaries, in each case, which is not
reflected in the foregoing financial
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statements or in the notes thereto
or has not otherwise been disclosed in writing to the Recipient
prior to the date hereof.
(ii) As of the date hereof, neither
the Performance Guarantor nor any of its Subsidiaries has any
Indebtedness or other obligations or liabilities, direct or
contingent (other than (i) the liabilities reflected on
Schedule 5.05 of the Senior Credit Agreement,
(ii) obligations arising under the Senior Credit Agreement or
this Undertaking and (iii) liabilities incurred in the
ordinary course of business) that, either individually or in the
aggregate, have had or could reasonably be expected to have a
Material Adverse Effect.
(g) No Default. Neither the
Performance Guarantor nor any of its Subsidiaries is 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.
(h) 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
Performance Guarantor and its Subsidiaries have filed all Federal
and state and other tax returns and reports required to be filed,
and have 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.
(i) Disclosure. No report,
financial statement, certificate or other written information
furnished by or on behalf of the Performance Guarantor to the
Recipient in connection with the transactions contemplated hereby
and the negotiation of this Undertaking or deliver
