GENERAL CONTINUING GUARANTY
Exhibit 10.20
This GENERAL CONTINUING GUARANTY (this “Guaranty”), dated as of September 3, 2009 is
executed and delivered by OPSTECHNOLOGY, INC., a Delaware corporation (“OpsTechnology”),
MULTIFAMILY INTERNET VENTURES, LLC, a California limited liability company (“Multifamily
Internet Ventures”), STARFIRE MEDIA, INC., a Delaware corporation (“StarFire”), and
REALPAGE INDIA HOLDINGS, INC., a Delaware corporation (“India Holdings”; Borrower,
OpsTechnology, Multifamily Internet Ventures, StarFire and India Holdings are each a
“Guarantor”), in favor of XXXXX FARGO FOOTHILL, LLC, a Delaware limited liability company,
as agent for the Lender Group and the Bank Product Providers (in such capacity, together with its
successors and assigns, if any, in such capacity, “Agent”), in light of the following:
WHEREAS, RealPage, Inc., a Delaware corporation (“Borrower”), the below defined
Lenders, and Agent are, contemporaneously herewith, entering into that certain Credit Agreement of
even date herewith (as amended, restated, modified, renewed or extended from time to time, the
“Credit Agreement”);
WHEREAS, each Guarantor is a Subsidiary of Borrower and, as such, each Guarantor will benefit
by virtue of the financial accommodations extended to Borrower by the Lender Group; and
WHEREAS, in order to induce the Lender Group to enter into the Credit Agreement and the other
Loan Documents and to extend the loans and other financial accommodations to Borrower pursuant to
the Credit Agreement, and in consideration thereof, and in consideration of any loans or other
financial accommodations heretofore or hereafter extended by the below defined Lender Group to
Borrower pursuant to the Loan Documents, each Guarantor has agreed to guaranty the Guarantied
Obligations.
NOW, THEREFORE, in consideration of the foregoing, each Guarantor hereby agrees as follows:
1. Definitions and Construction.
(a) Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement. The following terms, as
used in this Guaranty, shall have the following meanings:
“Agent” has the meaning set forth in the preamble to this Guaranty.
“Borrower” has the meaning set forth in the recitals to this Guaranty.
“Credit Agreement” has the meaning set forth in the recitals to this Guaranty.
“Guarantied Obligations” means all of the Obligations.
“Guarantor” has the meaning set forth in the preamble to this Guaranty.
“Guaranty” has the meaning set forth in the preamble to this Guaranty.
“Voidable Transfer” has the meaning set forth in Section 9 of this Guaranty.
(b) Construction. Unless the context of this Guaranty clearly requires
otherwise, references to the plural include the singular, references to the singular include the
plural, the part includes the whole, the terms “includes” and “including” are not limiting, and
the term “or” has, except where otherwise indicated, the inclusive meaning represented by the
phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and other similar terms in
this Guaranty refer to this Guaranty as a whole and not to any
particular provision of this Guaranty. Section, subsection, clause, schedule, and exhibit
references herein are to this Guaranty unless otherwise specified. Any reference in this Guaranty
to any agreement, instrument, or document shall include all alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, joinders, and supplements,
thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements set forth herein). Neither this Guaranty nor any uncertainty or ambiguity herein shall
be construed or resolved against the Lender Group or any Guarantor, whether under any rule of
construction or otherwise. On the contrary, this Guaranty has been reviewed by all parties and
shall be construed and interpreted according to the ordinary meaning of the words used so as to
accomplish fairly the purposes and intentions of Guarantors and Agent. Any reference herein to the
satisfaction or payment in full of the Guarantied Obligations shall mean the payment in full in
cash (or cash collateralization in accordance with the terms of the Credit Agreement) of all
Guarantied Obligations other than contingent indemnification Guarantied Obligations and other than
any Bank Product Obligations that, at such time, are allowed by the applicable Bank Product
Provider to remain outstanding and are not required to be repaid or cash collateralized pursuant to
the provisions of the Credit Agreement and the full and final termination of any commitment to
extend any financial accommodations under the Credit Agreement and any other Loan Document. Any
reference herein to any Person shall be construed to include such Person’s successors and assigns.
Any requirement of a writing contained herein shall be satisfied by the transmission of a Record
and any Record transmitted shall constitute a representation and warranty as to the accuracy and
completeness of the information contained therein. The captions and headings are for convenience
of reference only and shall not affect the construction of this Guaranty.
2. Guarantied Obligations. Each Guarantor hereby irrevocably and
unconditionally guaranties, jointly and severally, to Agent, for the benefit of the Lender Group
and the Bank Product Providers, as and for its own debt, until the final and indefeasible payment
in full thereof, in cash, has been made, (a) the due and punctual payment of the Guarantied
Obligations, when and as the same shall become due and payable, whether at maturity, pursuant to a
mandatory prepayment requirement, by acceleration, or otherwise; it being the intent of each
Guarantor that the guaranty set forth herein shall be a guaranty of payment and not a guaranty of
collection; and (b) the punctual and faithful performance, keeping, observance, and fulfillment by
Borrower of all of the agreements, conditions, covenants, and obligations of Borrower contained in
the Credit Agreement and under each of the other Loan Documents.
3. Continuing Guaranty. This Guaranty includes Guarantied Obligations
arising under successive transactions continuing, compromising, extending, increasing, modifying,
releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or
other terms and conditions thereof, or creating new or additional Guarantied Obligations after
prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent
permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future
Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver,
each Guarantor acknowledges and agrees that (a) no such revocation shall be effective until written
notice thereof has been received by Agent, (b) no such revocation shall apply to any Guarantied
Obligations in existence on the date of receipt by Agent of such written notice (including any
subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment
terms, or other terms and conditions thereof), (c) no such revocation shall apply to any Guarantied
Obligations made or created after such date to the extent made or created pursuant to a legally
binding commitment of the Lender Group in existence on the date of such revocation, (d) no payment
by such Guarantor, Borrower, or from any other source, prior to the date of Agent’s receipt of
written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder,
and (e) any payment by Borrower or from any source other than such Guarantor subsequent to the date
of such revocation shall first be applied to that portion of the Guarantied Obligations as to which
the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent
so applied shall not reduce the maximum obligation of such Guarantor hereunder.
4. Performance Under this Guaranty. In the event that Borrower fails to
make any payment of any Guarantied Obligations, on or prior to the due date thereof, or if Borrower
shall fail to perform, keep,
2
observe, or fulfill any other obligation referred to in clause (b) of Section
2 of this Guaranty in the manner provided in the Credit Agreement or any other Loan Document,
each Guarantor immediately upon demand shall cause, as applicable, such payment in respect of the
Guarantied Obligations to be made or such obligation to be performed, kept, observed, or fulfilled.
5. Primary Obligations. This Guaranty is a primary and original
obligation of each Guarantor, is not merely the creation of a surety relationship, and is an
absolute, unconditional, and continuing guaranty of payment and performance which shall remain in
full force and effect without respect to future changes in conditions. Each Guarantor hereby
agrees that it is directly, jointly and severally with any other guarantor of the Guarantied
Obligations, liable to Agent, for the benefit of the Lender Group and the Bank Product Providers,
that the obligations of each Guarantor hereunder are independent of the obligations of Borrower or
any other guarantor, and that a separate action may be brought against each Guarantor, whether such
action is brought against Borrower or any other guarantor or whether Borrower or any other
guarantor is joined in such action. Each Guarantor hereby agrees that its liability hereunder
shall be immediate and shall not be contingent upon the exercise or enforcement by any member of
the Lender Group or any Bank Product Provider of whatever remedies they may have against Borrower
or any other guarantor, or the enforcement of any lien or realization upon any security by any
member of the Lender Group or any Bank Product Provider. Each Guarantor hereby agrees that any
release which may be given by Agent to Borrower or any other guarantor, or with respect to any
property or asset subject to a Lien, shall not release such Guarantor. Each Guarantor consents and
agrees that no member of the Lender Group nor any Bank Product Provider shall be under any
obligation to marshal any property or assets of Borrower or any other guarantor in favor of such
Guarantor, or against or in payment of any or all of the Guarantied Obligations.
6. Waivers.
(a) To the fullest extent permitted by applicable law, each Guarantor hereby
waives: (i) notice of acceptance hereof; (ii) notice of any loans or other financial accommodations
made or extended under the Credit Agreement, or the creation or existence of any Guarantied
Obligations; (iii) notice of the amount of the Guarantied Obligations, subject, however, to such
Guarantor’s right to make inquiry of Agent to ascertain the amount of the Guarantied Obligations at
any reasonable time; (iv) notice of any adverse change in the financial condition of Borrower or of
any other fact that might increase such Guarantor’s risk hereunder; (v) notice of presentment for
payment, demand, protest, and notice thereof as to any instrument among the Loan Documents; (vi)
notice of any Default or Event of Default under any of the Loan Documents; and (vii) all other
notices (except if such notice is specifically required to be given to such Guarantor under this
Guaranty or any other Loan Documents to which such Guarantor is a party) and demands to which such
Guarantor might otherwise be entitled.
(b) To the fullest extent permitted by applicable law, each Guarantor hereby
waives the right by statute or otherwise to require any member of the Lender Group or any Bank
Product Provider, to institute suit against Borrower or any other guarantor or to exhaust any
rights and remedies which any member of the Lender Group or any Bank Product Provider, has or may
have against Borrower or any other guarantor. In this regard, each Guarantor agrees that it is
bound to the payment of each and all Guarantied Obligations, whether now existing or hereafter
arising, as fully as if the Guarantied Obligations were directly owing to Agent, the Lender Group,
or the Bank Product Providers, as applicable, by such Guarantor. Each Guarantor further waives any
defense arising by reason of any disability or other defense (other than the defense that the
Guarantied Obligations shall have been fully and finally performed and indefeasibly paid in full in
cash, to the extent of any such payment) of Borrower or by reason of the cessation from any cause
whatsoever of the liability of Borrower in respect thereof.
(c) To the fullest extent permitted by applicable law, each Guarantor hereby
waives: (i) any right to assert against any member of the Lender Group or any Bank Product
Provider, any defense (legal or equitable), set-off, counterclaim, or claim which such Guarantor
may now or at any time hereafter have against Borrower or any other party liable to any member of
the Lender Group or any Bank Product
3
Provider; (ii) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or
indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability
of the Guarantied Obligations or any security therefor; (iii) any right or defense arising by
reason of any claim or defense based upon an election of remedies by any member of the Lender Group
or any Bank Product Provider including any defense based upon an impairment or elimination of such
Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor
against Borrower or other guarantors or sureties; (iv) the benefit of any statute of limitations
affecting such Guarantor’s liability hereunder or the enforcement thereof, and any act which shall
defer or delay the operation of any statute of limitations applicable to the Guarantied Obligations
shall similarly operate to defer or delay the operation of such statute of limitations applicable
to such Guarantor’s liability hereunder.
(d) Until the Guarantied Obligations have been paid in full in cash, (i) each
Guarantor hereby postpones and agrees not to exercise any right of subrogation such Guarantor has
or may have as against Borrower with respect to the Guarantied Obligations; (ii) each Guarantor
hereby postpones and agrees not to exercise any right to proceed against Borrower or any other
Person now or hereafter liable on account of the Obligations for contribution, indemnity,
reimbursement, or any other similar rights (irrespective of whether direct or indirect, liquidated
or contingent); and (iii) each Guarantor hereby postpones and agrees not to exercise any right it
may have to proceed or to seek recourse against or with respect to any property or asset of
Borrower or any other Person now or hereafter liable on account of the Obligations.
Notwithstanding anything to the contrary contained in this Guaranty, each Guarantor shall not
exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights
against, and shall not proceed or seek recourse against or with respect to any property or asset
of, any other guarantor (including after payment in full of the Guaranteed Obligations) if all or
any portion of the Obligations have been satisfied in connection with an exercise of remedies in
respect of all of the pledged Stock of such other guarantor whether pursuant to the Security
Agreement or otherwise.
(e) If any of the Guarantied Obligations or the obligations of any Guarantor under
this Guaranty at any time are secured by a mortgage or deed of trust upon real property, any member
of the Lender Group or any Bank Product Provider may elect, in its sole discretion, upon a default
with respect to the Guarantied Obligations or the obligations of any Guarantor under this Guaranty,
to foreclose such mortgage or deed of trust judicially or nonjudicially in any manner permitted by
law, before or after enforcing this Guaranty, without diminishing or affecting the liability of any
Guarantor hereunder. Each Guarantor understands that (a) by virtue of the operation of
antideficiency law applicable to nonjudicial foreclosures, an election by any member of the Lender
Group or any Bank Product Provider to nonjudicially foreclose on such a mortgage or deed of trust
probably would have the effect of impairing or destroying rights of subrogation, reimbursement,
contribution, or indemnity of such Guarantor against Borrower or other guarantors or sureties, and
(b) absent the waiver given by such Guarantor herein, such an election would estop any member of
the Lender Group and the Bank Product Providers from enforcing this Guaranty against such
Guarantor. Understanding the foregoing, and understanding that each Guarantor is hereby
relinquishing a defense to the enforceability of this Guaranty, each Guarantor hereby waives any
right to assert against any member of the Lender Group or any Bank Product Provider any defense to
the enforcement of this Guaranty, whether denominated “estoppel” or otherwise, based on or arising
from an election by any member of the Lender Group or any Bank Product Provider to nonjudicially
foreclose on any such mortgage or deed of trust or as a result of any other exercise of remedies,
whether under a mortgage or deed of trust or under any personal property security agreement. Each
Guarantor understands that the effect of the foregoing waiver may be that such Guarantor may have
liability hereunder for amounts with respect to which such Guarantor may be left without rights of
subrogation, reimbursement, contribution, or indemnity against Borrower or other guarantors or
sureties. Each Guarantor also agrees that the “fair market value” provisions of Section 580a of
the California Code of Civil Procedure (and any similar law of New York or any other applicable
jurisdiction) shall have no applicability with respect to the determination of such Guarantor’s
liability under this Guaranty.
4
(f) Without limiting the generality of any other waiver or other provision set
forth in this Guaranty, each Guarantor waives all rights and defenses that such Guarantor may have
as a result of all or part of the Guarantied Obligations being secured by real property. This
means, among other things:
(i) Any member of the Lender Group or any Bank Product Provider may collect from
such Guarantor without first foreclosing on any real or personal property collateral that may be
pledged by such Guarantor, Borrower, or any other guarantor.
(ii) If any member of the Lender Group or any Bank Product Provider forecloses on
any real property collateral that may be pledged by such Guarantor, Borrower or any other
guarantor:
| (1) | The amount of the Guarantied Obligations or any obligations of any guarantor in respect thereof may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price. |
| (2) | Agent may collect from such Guarantor even if any member of the Lender Group or any Bank Product Provider, by foreclosing on the real property collateral, has destroyed any right such Guarantor may have to collect from Borrower or any other guarantor. |
This is an unconditional and irrevocable waiver of any rights and defenses any Guarantor may
have if all or part of the Guarantied Obligations are secured by real property. These rights and
defenses are based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure
and any similar law of New York or any other jurisdiction.
(g) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET
FORTH IN THIS GUARANTY, EACH GUARANTOR HEREBY WAIVES, TO THE MAXIMUM EXTENT SUCH WAIVER IS
PERMITTED BY LAW, ANY AND ALL BENEFITS OR DEFENSES ARISING DIRECTLY OR INDIRECTLY UNDER ANY ONE OR
MORE OF CALIFORNIA CIVIL CODE §§ 2787, 2799, 2808, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2847,
2848, AND 2855, CALIFORNIA CODE OF CIVIL PROCEDURE §§ 580A, 580B, 580C, 580D, AND 726, AND CHAPTER
2 OF TITLE 14 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR LAWS OF ANY OTHER APPLICABLE
JURISDICTION.
(h) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET
FORTH IN THIS GUARANTY, EACH GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN ELECTION OF
REMEDIES BY ANY MEMBER OF THE LENDER GROUP OR ANY BANK PRODUCT PROVIDER, EVEN THOUGH SUCH ELECTION
OF REMEDIES, SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT TO SECURITY FOR THE GUARANTIED
OBLIGATIONS, HAS DESTROYED SUCH GUARANTOR’S RIGHTS OF SUBROGATION AND REIMBURSEMENT AGAINST
BORROWER BY THE OPERATION OF APPLICABLE LAW INCLUDING §580D OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE OR ANY SIMILAR LAWS OF ANY OTHER APPLICABLE JURISDICTION.
(i) Without limiting the generality of any other waiver or other provision set
forth in this Guaranty, each Guarantor hereby also agrees to the following waivers:
(i) Agent’s right to enforce this Guaranty is absolute and is not contingent upon
the genuineness, validity or enforceability of the Guarantied Obligations or any of the Loan
Documents. Each Guarantor waives all benefits and defenses it may have under California Civil Code
Section 2810 or any similar laws in any other applicable jurisdiction and agrees that Agent’s
rights under this Guaranty shall be
5
enforceable even if Borrower had no liability at the time of execution of the Loan Documents
or the Guarantied Obligations are unenforceable in whole or in part, or Borrower ceases to be
liable with respect to all or any portion of the Guarantied Obligations.
(ii) Each Guarantor waives all benefits and defenses it may have under California
Civil Code Section 2809 or any similar laws in any other applicable jurisdiction with respect to
its obligations under this Guaranty and agrees that Agent’s rights under the Loan Documents will
remain enforceable even if the amount guaranteed hereunder is larger in amount and more burdensome
than that for which Borrower is responsible. The enforceability of this Guaranty against each
Guarantor shall continue until all sums due under the Loan Documents have been paid in full and the
commitments of the Lender Group to extend financial accommodations to Borrower have been terminated
and shall not be limited or affected in any way by any impairment or any diminution or loss of
value of any security or collateral for Borrower’s obligations under the Loan Documents, from
whatever cause, the failure of any security interest in any such security or collateral or any
disability or other defense of Borrower, any other guarantor of Borrower’s obligations under any
other Loan Document, any pledgor of collateral for any person’s obligations to Agent or any other
person in connection with the Loan Documents.
(iii) Each Guarantor waives all benefits and defenses it may have under California
Civil Code §§ 2845, 2849 and 2850 or any similar laws of any other applicable jurisdiction with
respect to its obligations under this Guaranty, including the right to require Agent to (A) proceed
against Borrower, any guarantor of Borrower’s obligations under any Loan Document, any other
pledgor of collateral for any person’s obligations to Agent or any other person in connection with
the Guarantied Obligations, (B) proceed against or exhaust any other security or collateral Agent
may hold, or (C) pursue any other right or remedy for such Guarantor’s benefit, and agrees that
Agent may exercise its right under this Guaranty without taking any action against Borrower, any
other guarantor of Borrower’s obligations under the Loan Documents, any pledgor of collateral for
any person’s obligations to Agent or any other person in connection with the Guarantied
Obligations, and without proceeding against or exhausting any security or collateral Agent holds.
(iv) The paragraphs in this Section 6 which refer to certain sections of
the California Civil Code are included in this Guaranty solely out of an abundance of caution and
shall not be construed to mean that any of the above-referenced provisions of California law are in
any way necessarily applicable to this Guaranty.
7. Releases. Each Guarantor consents and agrees that, without notice to
or by such Guarantor and without affecting or impairing the obligations of such Guarantor
hereunder, any member of the Lender Group or any Bank Product Provider may, by action or inaction,
compromise or settle, shorten or extend the Maturity Date or any other period of duration or the
time for the payment of the Obligations, or discharge the performance of the Obligations, or may
refuse to enforce the Obligations, or otherwise elect not to enforce the Obligations, or may, by
action or inaction, release all or any one or more parties to, any one or more of the terms and
provisions of the Credit Agreement or any of the other Loan Documents in accordance with the terms
thereof or may grant other indulgences to Borrower or any other guarantor in respect thereof, or
may amend or modify in any manner and at any time (or from time to time) any one or more of the
Obligations, the Credit Agreement or any other Loan Document (including any increase or decrease in
the principal amount of any Obligations or the interest, fees or other amounts that may accrue from
time to time in respect thereof), or may, by action or inaction, release or substitute the Borrower
or any guarantor, if any, of the Guarantied Obligations, or may enforce, exchange, release, or
waive, by action or inaction, any security for the Guarantied Obligations or any other guaranty of
the Guarantied Obligations, or any portion thereof.
8. No Election. The Lender Group and the Bank Product Providers shall
have the right to seek recourse against each Guarantor to the fullest extent provided for herein
and no election by any member of the Lender Group or any Bank Product Provider to proceed in one
form of action or proceeding, or against any party, or on any obligation, shall constitute a waiver
of the Lender Group’s or any Bank Product Provider’s right to proceed in any other form of action
or proceeding or against other parties unless Agent, on behalf of
6
the Lender Group or the Bank Product Providers, has expressly waived such right in writing.
Specifically, but without limiting the generality of the foregoing, no action or proceeding by the
Lender Group or the Bank Product Providers under any document or instrument evidencing the
Guarantied Obligations shall serve to diminish the liability of any Guarantor under this Guaranty
except to the extent that the Lender Group and the Bank Product Providers finally and
unconditionally shall have realized indefeasible payment in full of the Guarantied Obligations by
such action or proceeding.
9. Revival and Reinstatement. If the incurrence or payment of the
Guarantied Obligations by any Guarantor or the obligations of any Guarantor under this Guaranty or
the transfer by any Guarantor to Agent of any property of such Guarantor should for any reason
subsequently be declared to be void or voidable under any state or federal law relating to
creditors’ rights, including provisions of the Bankruptcy Code relating to fraudulent conveyances,
preferences, or other voidable or recoverable payments of money or transfers of property
(collectively, a “Voidable Transfer”), and if the Lender Group is required to repay or
restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the reasonable
advice of its counsel, then, as to any such Voidable Transfer, or the amount thereof that the
Lender Group is required or elects to repay or restore, and as to all reasonable costs, expenses,
and attorneys fees of the Lender Group related thereto, the liability of each Guarantor
automatically shall be revived, reinstated, and restored and shall exist as though such Voidable
Transfer had never been made.
10. Financial Condition of Borrower. Each Guarantor represents and
warrants to the Lender Group and the Bank Product Providers that it is currently informed of the
financial condition of Borrower and of all other circumstances which a diligent inquiry would
reveal and which bear upon the risk of nonpayment of the Guarantied Obligations. Each Guarantor
further represents and warrants to the Lender Group and the Bank Product Providers that it has read
and understands the terms and conditions of the Credit Agreement and each other Loan Document.
Each Guarantor hereby covenants that it will continue to keep itself informed of Borrower’s
financial condition, the financial condition of other guarantors, if any, and of all other
circumstances which bear upon the risk of nonpayment or nonperformance of the Guarantied
Obligations.
11. Payments; Application. All payments to be made hereunder by any
Guarantor shall be made in Dollars, in immediately available funds, and without deduction (whether
for taxes or otherwise) or offset and shall be applied to the Guarantied Obligations in accordance
with the terms of the Credit Agreement.
12. Attorneys Fees and Costs. Each Guarantor agrees to pay, on demand,
all attorneys fees and all other costs and expenses which may be incurred by Agent or the Lender
Group in connection with the enforcement of this Guaranty or in any way arising out of, or
consequential to, the protection, assertion, or enforcement of the Guarantied Obligations (or any
security therefor), irrespective of whether suit is brought.
13. Notices. All notices and other communications hereunder to Agent
shall be in writing and shall be mailed, sent, or delivered in accordance with Section 11
of the Credit Agreement. All notices and other communications hereunder to any Guarantor shall be
in writing and shall be mailed, sent, or delivered in care of Borrower in accordance with
Section 11 of the Credit Agreement.
14. Cumulative Remedies. No remedy under this Guaranty, under the Credit
Agreement, or any other Loan Document is intended to be exclusive of any other remedy, but each and
every remedy shall be cumulative and in addition to any and every other remedy given under this
Guaranty, under the Credit Agreement, or any other Loan Document, and those provided by law. No
delay or omission by the Lender Group or Agent on behalf thereof to exercise any right under this
Guaranty shall impair any such right nor be construed to be a waiver thereof. No failure on the
part of the Lender Group or Agent on behalf thereof to exercise, and no delay in exercising, any
right under this Guaranty shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under this Guaranty preclude any other or further exercise thereof or the
exercise of any other right.
7
15. Severability of Provisions. Each provision of this Guaranty shall be
severable from every other provision of this Guaranty for the purpose of determining the legal
enforceability of any specific provision.
16. Entire Agreement; Amendments. This Guaranty constitutes the entire
agreement between parties pertaining to the subject matter contained herein. This Guaranty may not
be altered, amended, or modified, nor may any provision hereof be waived or noncompliance therewith
consented to, except by means of a writing executed by Guarantors and Agent, on behalf of the
Lender Group. Any such alteration, amendment, modification, waiver, or consent shall be effective
only to the extent specified therein and for the specific purpose for which given. No course of
dealing and no delay or waiver of any right or default under this Guaranty shall be deemed a waiver
of any other, similar or dissimilar, right or default or otherwise prejudice the rights and
remedies hereunder.
17. Successors and Assigns. This Guaranty shall be binding upon each
Guarantor and its successors and assigns and shall inure to the benefit of the successors and
assigns of the Lender Group and the Bank Product Providers; provided, however, no
Guarantor shall assign this Guaranty or delegate any of its duties hereunder without Agent’s prior
written consent and any assignment not consented to by Agent shall be absolutely null and void. In
the event of any assignment, participation, or other transfer of rights by the Lender Group or the
Bank Product Providers that is permitted under the Credit Agreement, the rights and benefits herein
conferred upon the Lender Group and the Bank Product Providers shall automatically extend to and be
vested in such assignee or other transferee.
18. No Third Party Beneficiary. This Guaranty is solely for the benefit
of each member of the Lender Group, each Bank Product Provider, and each of their successors and
assigns and may not be relied on by any other Person.
19. CHOICE OF LAW AND VENUE.
THE VALIDITY OF THIS GUARANTY, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND
THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO
SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS GUARANTY
SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH GUARANTOR AND EACH MEMBER OF THE LENDER GROUP
WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE
OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE
WITH THIS SECTION 19.
20. JURY TRIAL WAIVER.
EACH GUARANTOR AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT
8
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH GUARANTOR
AND EACH MEMBER OF THE LENDER GROUP REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE
EVENT OF LITIGATION, A COPY OF THIS SECTION MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
21. REFERENCE PROVISION.
In the event the Jury Trial Waiver set forth above is not enforceable, the parties
elect to proceed under this Judicial Reference Provision.
21.1 Mechanics.
(a) With the exception of the items specified in clause (b), below, any controversy, dispute
or claim (each, a “Claim”) between the parties arising out of or relating to this Guaranty
or any other document, instrument or agreement between the undersigned parties (collectively in
this Section, the “Lender Documents”), will be resolved by a reference proceeding in
California in accordance with the provisions of Sections 638 et seq. of the California Code of
Civil Procedure (“CCP”), or their successor sections, which shall constitute the exclusive
remedy for the resolution of any Claim, including whether the Claim is subject to the reference
proceeding. Except as otherwise provided in the Lender Documents, venue for the reference
proceeding will be in the state or federal court in the county or district where the real property
involved in the action, if any, is located or in the state or federal court in the county or
district where venue is otherwise appropriate under applicable law (the “Court”).
(b) The matters that shall not be subject to a reference are the following: (i) foreclosure of
any security interests in real or personal property, (ii) exercise of self-help remedies
(including, without limitation, set-off), (iii) appointment of a receiver and (iv) temporary,
provisional or ancillary remedies (including, without limitation, writs of attachment, writs of
possession, temporary restraining orders or preliminary injunctions). This reference provision does
not limit the right of any party to exercise or oppose any of the rights and remedies described in
clauses (i) and (ii) or to seek or oppose from a court of competent jurisdiction any of the items
described in clauses (iii) and (iv). The exercise of, or opposition to, any of those items does not
waive the right of any party to a reference pursuant to this reference provision as provided
herein.
(c) The referee shall be a retired judge or justice selected by mutual written agreement of
the parties. If the parties do not agree within ten (10) days of a written request to do so by any
party, then, upon request of any party, the referee shall be selected by the Presiding Judge of the
Court (or his or her representative). A request for appointment of a referee may be heard on an ex
parte or expedited basis, and the parties agree that irreparable harm would result if ex parte
relief is not granted. Pursuant to CCP § 170.6, each party shall have one peremptory challenge to
the referee selected by the Presiding Judge of the Court (or his or her representative).
(d) The parties agree that time is of the essence in conducting the reference proceedings.
Accordingly, the referee shall be requested, subject to change in the time periods specified herein
for good cause shown, to (i) set the matter for a status and trial-setting conference within
fifteen (15) days after the date of selection of the referee, (ii) if practicable, try all issues
of law or fact within one hundred twenty (120) days after the date of the conference and (iii)
report a statement of decision within twenty (20) days after the matter has been submitted for
decision.
(e) The referee will have power to expand or limit the amount and duration of discovery. The
referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s
failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based
upon good cause
9
shown, no party shall be entitled to “priority” in conducting discovery, depositions may be taken
by either party upon seven (7) days written notice, and all other discovery shall be responded to
within fifteen (15) days after service. All disputes relating to discovery which cannot be resolved
by the parties shall be submitted to the referee whose decision shall be final and binding.
21.2 Procedures. Except as expressly set forth herein, the referee shall determine
the manner in which the reference proceeding is conducted including the time and place of hearings,
the order of presentation of evidence, and all other questions that arise with respect to the
course of the reference proceeding. All proceedings and hearings conducted before the referee,
except for trial, shall be conducted without a court reporter, except that when any party so
requests, a court reporter will be used at any hearing conducted before the referee, and the
referee will be provided a courtesy copy of the transcript. The party making such a request shall
have the obligation to arrange for and pay the court reporter. Subject to the referee’s power to
award costs to the prevailing party, the parties will equally share the cost of the referee and the
court reporter at trial.
21.3 Application of Law. The referee shall be required to determine all issues in
accordance with existing case law and the statutory laws of the State of California. The rules of
evidence applicable to proceedings at law in the State of California will be applicable to the
reference proceeding. The referee shall be empowered to enter equitable as well as legal relief,
enter equitable orders that will be binding on the parties and rule on any motion which would be
authorized in a court proceeding, including without limitation motions for summary judgment or
summary adjudication. The referee shall issue a decision at the close of the reference proceeding
which disposes of all claims of the parties that are the subject of the reference. Pursuant to CCP
§ 644, such decision shall be entered by the Court as a judgment or an order in the same manner as
if the action had been tried by the Court and any such decision will be final, binding and
conclusive. The parties reserve the right to appeal from the final judgment or order or from any
appealable decision or order entered by the referee. The parties reserve the right to findings of
fact, conclusions of laws, a written statement of decision, and the right to move for a new trial
or a different judgment, which new trial, if granted, is also to be a reference proceeding under
this provision.
21.4 Repeal. If the enabling legislation which provides for appointment of a referee
is repealed (and no successor statute is enacted), any dispute between the parties that would
otherwise be determined by reference procedure will be resolved and determined by arbitration. The
arbitration will be conducted by a retired judge or justice, in accordance with the California
Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The limitations with
respect to discovery set forth above shall apply to any such arbitration proceeding.
21.5 THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS RESOLVED
UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER OWN CHOICE, EACH PARTY
KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE
PROVISION WILL APPLY TO ANY CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR
IN ANY WAY RELATED TO, THIS GUARANTY OR THE OTHER LENDER DOCUMENTS.
22. Counterparts; Telefacsimile Execution. This Guaranty may be executed
in any number of counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, shall be deemed to be an original, and all of which, when taken
together, shall constitute but one and the same Guaranty. Delivery of an executed counterpart of
this Guaranty by telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this Guaranty. Any party delivering an executed counterpart of this Guaranty by
telefacsimile also shall deliver an original executed counterpart of this Guaranty but the failure
to deliver an original executed counterpart shall not affect the validity, enforceability, and
binding effect of this Guaranty.
10
23. Agreement to be Bound. Each Guarantor hereby agrees to be bound by
each and all of the terms and provisions of the Credit Agreement applicable to such Guarantor.
Without limiting the generality of the foregoing, by its execution and delivery of this Guaranty,
each Guarantor hereby: (a) makes to the Lender Group each of the representations and warranties
set forth in the Credit Agreement applicable to such Guarantor fully as though such Guarantor were
a party thereto, and such representations and warranties are incorporated herein by this reference,
mutatis mutandis; and (b) agrees and covenants (i) to do each of the things set forth in the Credit
Agreement that Borrower agrees and covenants to cause such Guarantor to do, and (ii) to not do each
of the things set forth in the Credit Agreement that Borrower agrees and covenants to cause such
Guarantor not to do, in each case, fully as though such Guarantor was a party thereto, and such
agreements and covenants are incorporated herein by this reference, mutatis mutandis.
[Signature page to follow]
11
IN WITNESS WHEREOF, the undersigned has executed and delivered this Guaranty as of the date
first written above.
| OPSTECHNOLOGY, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| MULTIFAMILY INTERNET VENTURES, LLC, a California limited liability company |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| STARFIRE MEDIA, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Treasurer | |||
| REALPAGE INDIA HOLDINGS, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Treasurer | |||
Signature Page to Guaranty
