CONSENT AND EIGHTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.4
CONSENT AND EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS CONSENT AND EIGHTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered
into as of November 3, 2010, by and among XXXXX FARGO CAPITAL FINANCE, LLC (formerly known as Xxxxx
Fargo Foothill, LLC), a Delaware limited liability company, as the arranger and administrative
agent (“Agent”) for the Lenders (as defined in the Credit Agreement referred to below), the
Lenders party hereto and REALPAGE, INC., a Delaware corporation (the “Borrower”).
WHEREAS, Borrower, Agent, and Lenders are parties to that certain Credit Agreement dated as of
September 3, 2009 (as amended, restated, modified or supplemented from time to time, the
“Credit Agreement”);
WHEREAS, Borrower has informed Agent and Lenders that Borrower desires to (i) establish, on or
about the date hereof, a wholly-owned Subsidiary RP Newco LLC, a Delaware limited liability company
(“RP Newco”) and (ii) cause RP Newco to purchase certain of the assets of each of IAS
Holdings, LLC, Level One, LLC and L1 Technology (collectively, “Level 1 Sellers”) pursuant
to that certain Asset Purchase Agreement dated as of the date hereof a copy of which is attached
hereto as Exhibit A (the “Level 1 Acquisition Agreement”) by and among Xxxxx 0
Xxxxxxx, X0 Xxxx, XXX, X0 Holdings, Inc., Xxxx X. Xxxxxxx, Xxxxxx X. Xxxx, XX, and Xxxxxxxx
Xxxxxxxx, Borrower and RP Newco (such acquisition, the “Level 1 Acquisition”), which
purchase absent requisite Lender consent would otherwise be prohibited by Section 6.3(a) of the
Credit Agreement; and
WHEREAS, Borrower has requested that Agent and the Lenders consent to the Level 1 Acquisition
and amend the Credit Agreement in certain respects as set forth herein and Agent and the Lenders
have agreed to the foregoing, on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and mutual agreements herein contained, the
parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to such terms in the Credit Agreement.
2. Consent. In reliance upon the representations and warranties of Borrower set forth
in Section 8 below and subject to the satisfaction of the conditions to effectiveness set
forth in Section 7 below, Agent and the Lenders hereby consent to the consummation of the
Level 1 Acquisition in accordance with the terms of the Level 1 Acquisition Agreement and agree
that, notwithstanding anything to the contrary contained in the Credit Agreement or any other Loan
Document, the L1 Acquisition shall be considered a “Permitted Acquisition” for all purposes
thereunder. Except as expressly set forth in this Amendment, the foregoing consent shall not
constitute (i) a modification or alteration of the terms, conditions or covenants of the Credit
Agreement or any other Loan Document or (ii) a waiver, release or limitation upon the exercise by
Agent and/or Lenders of any of their respective rights, legal or equitable thereunder.
3. Amendments to Credit Agreement. In reliance upon the representations and
warranties of Borrower set forth in Section 8 below, and subject to the satisfaction of the
conditions to effectiveness set forth in Section 7 below, the Credit Agreement is
hereby amended as follows:
(a) The table set forth in Section 7(b) of the Credit Agreement is hereby amended and restated
in its entirety as follows:
| Applicable Amount | Applicable Date | |
| 2.35:1.00 | The last day of each month during the period from and
including November 1, 2010 through and including
December 31, 2010 |
|
| 2.00:1.00 | The last day of each month during the period from and
including January 31, 2011 through and including March
31, 2011 |
|
| 1.75:1.00 | The last day of each month during the period from and
including April 30, 2011 through and including June 30,
2011 |
|
| 1.50:1.00 | July 31, 2011 and the last day of each month ending
thereafter |
(b) Schedules P-1, 4.1(c), 4.6(a), 4.6(b), 4.6(c), 4.13, 4.15, 4.17 and 4.25 are replaced with
Schedules P-1, 4.1(c), 4.6(a), 4.6(b), 4.6(c),
4.13, 4.15, 4.17 and 4.25 attached hereto. The parties hereto
hereby agree that the schedules attached hereto shall satisfy Borrower’s obligation to update such
Schedules in connection with the Compliance Certificate required to be delivered by Borrower to
Agent and Lenders for the fiscal quarter ended September 30, 2010.
(c) Schedule 1.1 to the Credit Agreement is hereby amended by adding each of the following
defined terms in their appropriate alphabetical order:
“Eighth Amendment” means the Consent and Eighth Amendment dated as of
October
_____, 2010 by and among Borrower, Agent and the Lenders party thereto.
“Level 1 Acquisition” has the meaning specified therefor in the
recitals of the Eighth Amendment.
“Level 1 Holdback” means collectively, (i) a portion of the purchase
price of the Level 1 Acquisition equal to $8,000,000 not paid at the closing
therefor but held by RP Newco LLC and/or Borrower for satisfaction of
indemnification obligations and purchase price adjustments and (ii) a portion of the
purchase price of the Level 1 Acquisition equal to $150,000 not paid at closing
therefor but held by RP Newco LLC and/or Borrower for satisfaction of fees relating
to the purchase by Borrower and/or RP Newco LLC of certain software licenses, in
each case relating to the Level 1 Acquisition.
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“Level 1 Sellers” has the meaning specified therefor in the recitals of
the Eighth Amendment.
(d) The definition of “Permitted Indebtedness” set forth on Schedule 1.1 of the Credit
Agreement is hereby amended by (x) deleting the word “and” immediately at the end of clause (5),
and (y) inserting a new clause (v) at the end of clause (u) as follows:
and (v) the Level 1 Holdback owing to the Level 1 Sellers arising in connection with
the Level 1 Acquisition.
4. Amendment to Security Agreement. In reliance upon the representations and
warranties of Borrower set forth in Section 8 below, and subject to the satisfaction of the
conditions to effectiveness set forth in Section 7 below, the parties hereto (and each
Guarantor by its execution and delivery of the attached Consent and Reaffirmation) hereby agree
that the Security Agreement is hereby amended to replace, Schedules 2, 3, 4, 5, 6 and 8 with
Schedules 2, 3, 4, 5, 6 and 8 attached as
Exhibit B hereto. The parties hereto hereby agree that the schedules attached hereto shall
satisfy Borrower’s obligation to update such Schedules in connection with the Compliance
Certificate required to be delivered by Borrower to Agent and Lenders for the fiscal quarter ended
September 30, 2010.
5. Continuing Effect. Except as expressly set forth in Sections 2 and
3 of this Amendment, nothing in this Amendment shall constitute a modification or
alteration of the terms, conditions or covenants of the Credit Agreement or any other Loan
Document, or a waiver of any other terms or provisions thereof, and the Credit Agreement and the
other Loan Documents shall remain unchanged and shall continue in full force and effect, in each
case as amended hereby.
6. Reaffirmation and Confirmation. Borrower hereby ratifies, affirms, acknowledges
and agrees that the Credit Agreement and the other Loan Documents to which it is a party represent
the valid, enforceable and collectible obligations of Borrower, and further acknowledges that there
are no existing claims, defenses, personal or otherwise, or rights of setoff whatsoever with
respect to the Credit Agreement or any other Loan Document. Borrower hereby agrees that this
Amendment in no way acts as a release or relinquishment of the Liens and rights securing payments
of the Obligations. The Liens and rights securing payment of the Obligations are hereby ratified
and confirmed by Borrower in all respects.
7. Conditions to Effectiveness. This Amendment shall become effective upon the
satisfaction of the following conditions precedent:
(a) Agent shall have received a copy of this Amendment executed and delivered by Agent, the
Lenders and the Loan Parties (with four (4) original copies of this Amendment to follow within two
(2) Business Days after the date hereof), together with each of the additional documents,
instruments and agreements listed on the closing checklist attached hereto as Exhibit A;
and
(b) No Default or Event of Default shall have occurred and be continuing on the date hereof or
as of the date of the effectiveness of this Amendment.
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8. Representations and Warranties. In order to induce Agent and Lenders to enter into
this Amendment, each Loan Party hereby represents and warrants to Agent and Lenders that:
(a) After giving effect to this Amendment, all representations and warranties contained in the
Loan Documents to which such Loan Party is a party are true and correct in all material respects on
and as of the date of this Amendment (except to the extent any representation or warranty expressly
related to an earlier date and except that such materiality qualifier shall not be applicable to
any representations and warranties that already are qualified or modified by materiality or dollar
thresholds in the text thereof);
(b) No Default or Event of Default has occurred and is continuing; and
(c) This Amendment and the Loan Documents, as amended hereby, constitute legal, valid and
binding obligations of such Loan Party and are enforceable against such Loan Party in accordance
with their respective terms, except as enforcement may be limited by equitable principles or by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors’ rights generally.
9. Miscellaneous.
(a) Expenses. Borrower agrees to pay on demand all reasonable costs and expenses of
Agent and the Lenders (including reasonable attorneys fees) incurred in connection with the
preparation, negotiation, execution, delivery and administration of this Amendment and all other
instruments or documents provided for herein or delivered or to be delivered hereunder or in
connection herewith. All obligations provided herein shall survive any termination of this
Amendment and the Credit Agreement as amended hereby.
(b) Choice of Law and Venue; Jury Trial Waiver; Reference Provision. Without limiting
the applicability of any other provision of the Credit Agreement or any other Loan Document, the
terms and provisions set forth in Section 12 of the Credit Agreement are expressly incorporated
herein by reference.
(c) Counterparts. This Amendment may be executed in any number of counterparts, and
by the parties hereto on the same or separate counterparts, and each such counterpart, when
executed and delivered, shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Amendment.
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10. Release.
(a) In consideration of the agreements of Agent and Lenders contained herein and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each
Loan Party, on behalf of itself and its successors, assigns, and other legal representatives,
hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent
and Lenders, and their successors and assigns, and their present and former shareholders,
affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees,
agents and other representatives (Agent, each Lender and all such other Persons being hereinafter
referred to collectively as the “Releasees” and individually as a “Releasee”), of
and from all demands, actions, causes of action, suits, controversies, damages and any and all
other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever
(individually, a “Claim” and collectively, “Claims”) of every name and nature,
known or unknown, suspected or unsuspected, both at law and in equity, which such Loan Party or any
of its successors, assigns, or other legal representatives may now or hereafter own, hold, have or
claim to have against the Releasees or any of them for, upon, or by reason of any circumstance,
action, cause or thing whatsoever which arises at any time on or prior to the day and date of this
Amendment for or on account of, or in relation to, or in any way in connection with any of the
Credit Agreement, or any of the other Loan Documents or transactions thereunder or related thereto.
(b) Each Loan Party understands, acknowledges and agrees that the release set forth above may
be pleaded as a full and complete defense and may be used as a basis for an injunction against any
action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the
provisions of such release.
(c) Each Loan Party agrees that no fact, event, circumstance, evidence or transaction which
could now be asserted or which may hereafter be discovered shall affect in any manner the final,
absolute and unconditional nature of the release set forth above.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized and delivered as of the date first above written.
| REALPAGE, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX FARGO CAPITAL FINANCE, LLC, a Delaware limited liability company, as Agent and as a Lender |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Director | |||
| COMERICA BANK, a Texas Banking Association, as a Lender |
||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Vice President | |||
Signature Page to Consent and Eighth Amendment to Credit Agreement
CONSENT AND REAFFIRMATION
Each Guarantor hereby (i) acknowledges receipt of a copy of the foregoing Consent and Eighth
Amendment to Credit Agreement (the “Amendment”; capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Amendment), (ii) consents to
Borrower’s execution and delivery of the Amendment; (iii) agrees to be bound by the Amendment
(including Sections 4 and 9 thereof); (iv) affirms that nothing contained in the
Amendment shall modify in any respect whatsoever any Loan Document to which it is a party except as
expressly set forth therein; and (v) ratifies, affirms, acknowledges and agrees that each of the
Loan Documents to which such Guarantor is a party represents the valid, enforceable and collectible
obligations of such Guarantor, and further acknowledges that there are no existing claims,
defenses, personal or otherwise, or rights of setoff whatsoever with respect to the Credit
Agreement or any other such Loan Document. Each Guarantor hereby agrees that the Amendment in no
way acts as a release or relinquishment of the Liens and rights securing payments of the
Obligations. The Liens and rights securing payment of the Obligations are hereby ratified and
confirmed by such Guarantor in all respects. Although each Guarantor has been informed of the
matters set forth herein and has acknowledged and agreed to same, each Guarantor understands that
neither Agent nor any Lender has any obligation to inform any Guarantor of such matters in the
future or to seek any Guarantor’s acknowledgment or agreement to future amendments, waivers or
consents, and nothing herein shall create such a duty.
[Signature Page Follows]
| OPSTECHNOLOGY, INC., a Delaware corporation |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | VP, CFO and Treasurer | |||
| MULTIFAMILY INTERNET VENTURES, LLC, a California limited liability company |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | VP, CFO and Treasurer | |||
| STARFIRE MEDIA, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | VP and Treasurer | |||
| REALPAGE INDIA HOLDINGS, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | VP, CFO and Treasurer | |||
| A.L. WIZARD, INC., a Delaware corporation |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | VP, CFO and Treasurer | |||
Consent and Reaffirmation to Consent and Eighth Amendment to Credit Agreement
| PROPERTYWARE, INC., a California corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | VP, CFO and Treasurer | |||
| 43642 YUKON INC., a Yukon company |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | VP, CFO and Treasurer | |||
| eREAL ESTATE INTEGRATION, INC. a California corporation |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | VP and Treasurer | |||
| RP NEWCO LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
Consent and Reaffirmation to Consent and Eighth Amendment to Credit Agreement
EXHIBIT A
(See attached)
Consent and Reaffirmation to Consent and Eighth Amendment to Credit Agreement
EXHIBIT B
(See attached)
