exv10w2



 





EXHIBIT 10.2




NOTE: PORTIONS OF THIS EXHIBIT ARE THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST BY THE REGISTRANT TO THE SECURITIES AND

EXCHANGE COMMISSION. SUCHPORTIONS HAVE BEEN REDACTED AND ARE

MARKED WITH A “[*]” IN PLACE OF THE REDACTED LANGUAGE.




July 23, 2007



SunGard Financial Systems LLC and Penson Financial Services, Inc. hereby agree that the document
attached hereto labeled “Schedule E Phase3 Service Level Addendum to the Remote Processing
Agreement SunGard/Penson Financial Services, Inc.” is the Service Level Addendum originally
contemplated in the Amendment, dated July 25, 2006, to that certain Remote Processing Agreement
(the “Remote Processing Agreement”) between SunGard Financial Systems LLC (formerly SunGard
Financial Systems Inc.) and Penson Financial Services, Inc. dated July 10, 1995 and shall be deemed
to form a part of the Remote Processing Agreement as of the date hereof.




Acknowledged and Agreed




	 	 	 	 	 	 	 
	SUNGARD FINANCIAL SYSTEMS LLC	 	PENSON FINANCIAL SERVICES, INC.
	 
	 	 	 	 	 	 
	BY:

	 	/s/ Gerard Murphy
	 	BY:
	 	/s/ William McLemore
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	PRINT NAME:

	 	Gerard Murphy
	 	PRINT NAME:
	 	/s/ William McLemore
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	PRINT TITLE:

	 	President
	 	PRINT TITLE:
	 	Senior Vice President
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	DATE SIGNED:

	 	July 27, 2007
	 	DATE SIGNED:
	 	July 23, 2007
	 

	 	 
	 	 	 	 







 









 








SCHEDULE E

Phase3 Service Level Addendum to the Remote Processing Agreement

SunGard/Penson Financial Services, Inc.





	I.	 	Introduction






	 	A.	 	Statement of Intent. The purpose of this Service Level Addendum (“Addendum” or
“SLA”) is to establish service level performance objectives (each, a “Service Level”)
as set forth below and in the Phase 3 Service Level Scorecard (as defined below). This
document identifies the parties’ responsibilities to ensure that the Phase3 System
remains a viable and effective tool focusing on the delivery of services to Customer in
accordance with the Remote Processing Agreement (“RPA” or “Agreement”) to which this
Addendum is attached. Capitalized terms not defined herein have the meaning ascribed
to those terms in the RPA.
	 
	 	B.	 	Changes to the Addendum. Requested changes to this SLA must be submitted to
the Relationship Manager. This SLA can be re-negotiated, in good faith, at any time due
to changes in business requirements, operating environment, needs of Customer and/or
the ability of SunGard to consistently and satisfactorily meet the objectives,
described in and contemplated by the RPA. Either participant can initiate
re-negotiation. Any changes to this SLA must be in writing and signed by both parties.
	 
	 	C.	 	Roles and Responsibilities. Attainment of service level performance objectives
requires the cooperation of all parties to the RPA working together to ensure success.
If the service level objectives are not being achieved, the Relationship Manager,
working with the relevant participants, will assume responsibility for taking
appropriate actions to resolve the issues.






	II.	 	Service Delivery Management






	 	A.	 	Service Level Performance.






	 	(i)	 	SunGard’s Service Level performance shall be measured in
accordance with the Service Level Scorecard, effective July 1, 2007, set forth
in Appendix A of this Schedule E (“Phase 3 Service Level Scorecard”). This
Phase 3 Service Level Scorecard is attached hereto and incorporated into this
Schedule. The Phase 3 Service Level Scorecard will list the Top 5 incidents,
Phase3 System online availability, batch run time & processing dependencies,
report mailer, replication, monthly statement files, critical transmissions,
trade reporting, all critical reports and downloads (as defined in such Phase 3
Service Level Scorecard) and the required time of receipt by Customer for each
such report and download, and other metrics such as may be added from time to
time in accordance with the change procedure outlined in section I.B. (Changes
to the Addendum). The percentages shall be reported and calculated each
calendar month.




 









 






	 	(ii)	 	Service Level Credits. Customer will be eligible for Service
Level Credits described in the Phase 3 Service Level Scorecard if: the monthly
Phase 3 Service Level Scorecard calculation results in a number which equates
to a Service Level Credit. In such event, SunGard will grant to Customer the
applicable Service Level Credit for each calendar quarter against the following
30 days of Phase3 minimum monthly fees due under the Agreement (unless Customer
agrees to waive the credit) and up to the maximum amount described below.
	 
	 	(iii)	 	Service Level Performance Calculation.  The Phase 3 Service
Level Scorecard calculation will be the sum of the SLA credit percentage(s) in
the Phase 3 Service Level Scorecard for each applicable unmet category of
Service Levels, multiplied by phase3 minimum monthly fees for the month in
which the service level issues occurred.
	 
	 	(iv)	 	The maximum aggregate amount of Service Level Credits to be
granted hereunder with respect to failures to achieve Service Levels occurring
in any calendar month will be no greater than 5% of Phase3 minimum monthly fees
(as defined within the Agreement) for the month in which the service level
issues occurred.
	 
	 	(v)	 	Except where otherwise specified herein, all Service Levels
pertain to System Services rendered on business days (which mean all days on
which the NYSE is open plus any Saturday and Sunday which are in an options
expiry weekend), and the measurement of SunGard’s compliance with the Service
Levels shall not take into consideration (i) events occurring on days other
than business days, (ii) the effect of any scheduled downtime so long as
SunGard has provided Customer with reasonable prior notice of such downtime, or
(iii) to the extent the Service Level is impacted by any Limiting Events. If
any event giving rise to a Service Level Credit (the “Initial Failure”),
directly or indirectly causes other event(s) giving rise to a Service Level
Credit(s) (the “Consequential Failures”), Customer shall be credited only the
highest applicable Service Level Credit that Customer is eligible to receive
for any such Initial Failure or Consequential Failures, and no other Service
Level Credits shall be credited to the Customer relating to the Initial Failure
or any Consequential Failure. Except as otherwise specified in this Service
Level Addendum, references to months and years mean calendar months and
calendar years.






	 	B.	 	Service Level Exclusions.






	 	(i)	 	Notwithstanding any other provision of the RPA or this Addendum
(a) SunGard will have no liability for performance problems, failure to achieve
Service Levels, Service Level Credits (as defined in this Service Level
Addendum) or similar issues, to the extent such liability was caused




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	 	 	 	by a Limiting Event, and (b) SunGard’s liability for breaches of the Service
Level Addendum, and Customer’s exclusive remedy for such breaches, shall be
limited to the Service Level Credits and termination rights stated herein.
The service levels and service level credits do not apply to any system
service(s) that have not been expressly included in this Addendum.
	 
	 	(ii)	 	“Limiting Event” means any of the following events: (1) any
Force Majeure Event ; (2) Customer’s violation of any material provision of the
RPA (other than payment obligations); (3) any use by Customer of a function
that is part of the System or System Services other than in accordance with
applicable Documentation in effect at the time of the relevant failure and made
available to Customer on SunGard’s website or by other reasonable means; (4)
Customer’s combination of the System or System Services with non-SunGard
software (other than software tested and approved or recommended by SunGard in
writing); (5) unavailability of any of the Customer networks (LANs, WANs, VPNs
or other networks) used to interface with the System; (6) any defect, error or
problem with communication lines utilized by or for Customer’s processing
unless due to SunGard or the actions of its employees, sub-contractors or
affiliates; (7) any defect, error or problems with either (a) any Third Party
Provider (which are not affiliates of SunGard) involved in providing price,
security information or other data feeds, or who are Customer vendors and are
not SunGard’s subcontractors or affiliates or (b) any feeds, lines or other
connections from or to third parties used in connection with the System
Services for Customer except to the extent caused by SunGard, its affiliates or
any of their respective sub-contractors; or (8) for the matters for which Phase
3 Batch Cycle authorization is specifically mentioned in the Scorecard,
Customer’s failure to provide authorization for a Phase 3 Batch Cycle prior to
11:30 pm ET.






	III.	 	Operational service levels. With respect to the calculation of the Batch Cycle run time, on
line availability, and other items dependant on the Batch Cycle the calculation will only be
made with respect to the time at which Customer has notified SunGard that the System is
available to SunGard to commence the Batch Cycle, and only if all clearing entities are
available to be accessed by the System when attempted unless such clearing entity is
unavailable to be accessed by the System due to the fault of SunGard.






	 	A.	 	High Priority Incidents Service Levels:






	 	(i)	 	Measurement will be against the mutually agreed close date
referenced in the Phase 3 Service Level Scorecard. Each subsequent monthly
release cycle missed will result in subsequent credit.
	 
	 	(ii)	 	Dependencies:




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	 	 	 	Items may be removed from list with mutual agreement between parties.






	 	B.	 	Online Availability Service Levels:






	 	(i)	 	System Performance and Availability will be reported by SunGard
on a monthly basis as follows:






	 	 	 	ON-LINE AVAILABILITY Measurement Period will be as described in the
Phase 3 Service Level Scorecard. Availability for the processing of
trades, account set up and maintenance, OSI transactions, cash and
securities movements, fail processing, and on-demand reporting.






	 	(ii)	 	Should loss of access to the Phase3 System occur for ***
consecutive hours excluding non-business days due to the sole fault of SunGard
and/or its affiliates or sub-contractors, Customer has the right to terminate
the Agreement as it pertains to the Phase 3 system; provided that Customer
furnishes SunGard written notice within *** days of such failure of its
exercise of its termination right, stating a fixed termination date within ***
months from the date of the notice. Customer shall not be required to pay any
termination fee set forth in Section 8.2(b) or elsewhere in the RPA relating to
such termination nor shall the termination right be subject to any cure rights,
provided that Customer shall pay all amounts otherwise due and owing prior to
the effective date of termination. SunGard shall reasonably cooperate with
Customer and any replacement service provider during such transition process.






	 	C.	 	Critical Reports & Downloads
	 
	 	 	 	Critical reports, critical downloads, statements and ACH delivery times and
associated credits, as defined in the Phase 3 Service Level Scorecard, are
applicable only if they result from Errors and/or delays in the System caused by
SunGard, and will be tracked as described in the Scorecard.
	 
	 	D.	 	Trade Reporting
	 
	 	 	 	Trade reporting associated credits, as defined in the Phase 3 Service Level
Scorecard, are applicable only if they result from Errors and/or delays in the
System caused by SunGard, and will be tracked as described in the Scorecard.
	 
	 	E.	 	Replication







 




			
	***	 	Certain information on this page has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.




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	 	 	 	Replication latency thresholds, as defined in the Phase 3 Service Level Scorecard,
are applicable only if they result from Errors and/or delays in the System caused by
SunGard, and will be tracked as described in the Scorecard.






	 	(i)	 	In the event replication of subscribed data from SunGard to
Customer is inoperative for *** consecutive hours, excluding non-business days,
due to the sole fault of SunGard, Customer may terminate the Agreement;
provided that Customer furnishes SunGard written notice within *** days of such
failure of its exercise of its termination right, stating a fixed termination
date within *** months from the date of the notice.
	 
	 	(ii)	 	In the event replication of subscribed data from SunGard to
Customer is inoperative (an ‘outage’) for more than *** hours cumulatively
within a calendar month with each outage consisting of more than *** hours and
each outage is due to the sole fault of SunGard, Customer may terminate the
Agreement; provided that Customer furnishes SunGard written notice within ***
days of such failure of its exercise of its termination right, stating a fixed
termination date within *** months from the date of the notice.
	 
	 	(iii)	 	In the event replication of Subscribed data from SunGard to
Customer is delayed by more than *** hours on average during either of the
periods ending on the fifteenth and the last day of each month to the sole
fault of SunGard, Customer may terminate the Agreement; provided that Customer
furnishes SunGard written notice within *** days of such failure of its
exercise of its termination right, stating a fixed termination date within ***
months from the date of the notice.






	 	 	 	Customer shall not be required to pay any termination fee set forth in Section
8.2(b) or elsewhere in the RPA relating to the exercise of any of the above
termination rights nor shall the termination right be subject to any cure rights,
provided that Customer shall pay all amounts otherwise due and owing prior to the
effective date of termination. SunGard shall reasonably cooperate with Customer and
any replacement service provider during such transition process.






	IV.	 	Service Reviews.






	 	A.	 	Service Reviews.
	 
	 	 	 	Service Review meetings will be held on a quarterly basis between Customer and
SunGard. Where possible, or appropriate, all services provided by SunGard or
SunGard’s affiliates will be reviewed at the same meeting.





 




	***	 	Certain information on this page has been omitted and filed separately with the  Securities and
Exchange Commission pursuant to a request for confidential treatment.







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