CONSENT AND TENTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
CONSENT AND TENTH AMENDMENT TO CREDIT AGREEMENT
THIS CONSENT AND TENTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered
into as of August 24, 2011, 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 (i) has formed a wholly-owned
Subsidiary RP Newco IV Inc., a Delaware corporation (“RP Newco”), and (ii) desires to cause
RP Newco to merge with and into Multifamily Technology Solutions, Inc., a Delaware corporation
(“MTS”) pursuant to that certain Agreement and Plan of Merger dated as of August 22, 2011,
a copy of which is attached hereto as Exhibit A (the “MTS Acquisition Agreement”)
by and among MTS, Shareholder Representative Services, LLC, as representative of the stockholders
of MTS, Borrower and RP Newco (such acquisition, the “MTS 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 MTS 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 7 below and subject to the satisfaction of the conditions to effectiveness set
forth in Section 6 below, Agent and the Lenders hereby consent to the consummation of the
MTS Acquisition in accordance with the terms of the MTS Acquisition Agreement and agree that,
notwithstanding anything to the contrary contained in the Credit Agreement or any other Loan
Document, the MTS 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. Amendment to Credit Agreement. In reliance upon the representations and warranties
of Borrower set forth in Section 7 below, and subject to the satisfaction of the conditions
to effectiveness set forth in Section 6 below, the Credit Agreement is hereby amended as
follows:
(a) Section 5.15 of the Credit Agreement is hereby amended by adding the following sentence to
the end of such Section 5.15:
Notwithstanding the foregoing, with respect to any new location acquired in
connection with a Permitted Acquisition, Borrower or such Domestic Subsidiary shall
use commercially reasonable efforts to deliver a Collateral Access Agreement with
respect thereto within 30 days of the closing of such Permitted Acquisition (or such
later date as consented to in writing by Agent in its sole discretion).
(b) Section 6.11 of the Credit Agreement is hereby amended and restated in its entirety as
follows:
Section 6.11 Investments.
Except for Permitted Investments, directly or indirectly, make or acquire any Investment or
incur any liabilities (including contingent obligations) for or in connection with any Investment;
provided, however, that (other than (a) an aggregate amount of not more than
$250,000 at any one time, in the case of Borrower and its Subsidiaries (other than RealPage Payment
Processing and those Subsidiaries that are CFCs), (b) amounts deposited into Deposit Accounts
specially and exclusively used for payroll, payroll taxes and other employee wage and benefit
payments to or for Borrower’s or its Subsidiaries’ employees, (c) account numbers 023805669,
112527133, 1125742336 and 112822984 maintained by MultiFamily Internet Ventures, LLC with City
National Bank, N.A. so long as such accounts solely hold insurance premiums deposited into such
accounts for further distribution to the underwriters of the related insurance policies, (d)
amounts maintained by RealPage Payment Processing and (e) an aggregate amount of not more than
$250,000 (calculated at current exchange rates) at any one time, in the case of Subsidiaries of
Borrower that are CFCs) Borrower and its Subsidiaries shall not have Permitted Investments
consisting of cash, Cash Equivalents, or amounts credited to Deposit Accounts or Securities
Accounts unless Borrower or its Subsidiary, as applicable, and the applicable bank or securities
intermediary have entered into Control Agreements with Agent governing such Permitted Investments
in order to perfect (and further establish) Agent’s Liens in such Permitted Investments. Subject to
the foregoing proviso, Borrower shall not and shall not permit its Subsidiaries to establish or
maintain any Deposit Account or Securities Account unless Agent shall have received a Control
Agreement in respect of such Deposit Account or Securities Account; provided, however, that for any
Deposit Account or Securities Account acquired directly as a result of a Permitted Acquisition,
Agent shall have received such Control Agreement within 90 days from the date of the closing of
such Permitted Acquisition (or such later date as consented to in writing by Agent in its sole
discretion).
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(c) Schedule 1.1 to the Credit Agreement is hereby amended by adding each of the following
defined terms in their proper alphabetical order as follows:
“MTS” means Multifamily Technology Solutions, Inc., a Delaware
corporation.
“MTS Connecticut” means MTS Connecticut, Inc., a Delaware corporation.
“MTS Minnesota” means MTS Minnesota, Inc., a Delaware corporation.
(d) The definition of “Change of Control” set forth in Schedule 1.1 to the Credit Agreement is
hereby amended by (i) deleting the word “or” immediately preceding clause (d), (ii) amending and
restating clause (d) as follows below and inserting a new clause (e) immediately after clause (d)
as follows:
(d) Borrower fails to own, directly or indirectly, 100% of the Stock of each
other Loan Party (other than MTS Connecticut and MTS Minnesota), except as otherwise
permitted under Section 6.3(a) of the Agreement, or (e) Borrower fails to
(i) own, directly or indirectly, at least 40% of the Stock of MTS Minnesota, (ii)
own, directly or indirectly, 40% of the Stock of MTS Connecticut, or (iv) except as
otherwise permitted under Section 6.3(a) of the Agreement, control, directly
or indirectly, 100% of the Stock of each other Loan Party.
(e) Clause (a) of the definition of “Lender Group Expenses” set forth in Schedule 1.1 to the
Credit Agreement is hereby amended by deleting the reference to “Borrower or its Subsidiaries” and
inserting “Borrower, its Subsidiaries or the shareholders of MTS Connecticut or MTS Minnesota” in
lieu thereof.
(f) The definition of “Permitted Investments” set forth on Schedule 1.1 to the Credit
Agreement is hereby amended by (i) deleting the word “and” at the end of clause (m), (ii) amending
and restating clause (n) as follows, and (iii) inserting a new clause (o) immediately after clause
(n) as follows:
(n) the guaranty by Borrower of the obligations of RP Newco II LLC under that certain Office
Lease Agreement dated as of September 2, 2005 with respect to the leased location of RP Newco II
LLC at 0000 Xxxxxxx Xxxx Xxxx., Xxxxx 000, Xxxxx, XX 00000, and
(o) so long as no Event of Default has occurred and is continuing or would result therefrom,
any other Investments in an aggregate amount not to exceed $500,000 during the term of the
Agreement.
(g) Clause (r) of the definition of “Permitted Liens” set forth on Schedule 1.1 to the Credit
Agreement is hereby amended and restated as follows:
(r) a lien by MTS in favor of Xxxxx Xxxxxx in his capacity as landlord pursuant
to that certain Lease dated May 1, 2008 by and between MTS and Xxxxx Xxxxxx with
respect to the leased location at 000 Xxxxx Xxxxxx, #000, Xxxxxx, Xxxx, xx assets
located at such leased location, incurred in the ordinary course of
business and not in connection with the borrowing of money, which lien is for
sums due or to become due under the lease and not yet delinquent.
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(h) 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.
4. 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.
5. 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.
6. 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 B;
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.
7. 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
(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) on and as of the date of this Amendment (except to the extent any representation or
warranty expressly relates solely to an earlier date in which case such representations and
warranties shall be true and correct in all material respects (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) on and as of
such earlier date);
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(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.
8. Covenant(s).
(a) Within sixty (60) days after the date hereof (or such later date as Agent may agree to in
writing in its sole discretion), Borrower shall use commercially reasonable efforts to deliver, or
cause MTS to deliver, to Agent Collateral Access Agreements with respect to each of the following
leased locations: (i) 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx, (xx) 000 Xxxx 0xx
Xxxxxx, Xxxxx 0000, Xxxx Xxxxxx, (xxx) 0000 Xxxxx X Xxxxxx, Xxxx #000, the Xxxxxxxx Building, Fort
Xxxxx, Arkansas, (iv) 000 Xxxxx Xxxxxx, #000, Xxxxxx, Xxxx, (v) 000 Xxxx Xxxxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxx, and (vi) Waterway Executive Center, 8490 Mukiteo Xxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxx. Any failure by Borrower to comply with the provisions of this Section
8(a) shall constitute an immediate Event of Default.
(b) Within ninety (90) days after the date hereof (or such later date as Agent may agree to in
writing in its sole discretion), Borrower shall cause to be delivered to Agent a Control Agreement
with respect to each Deposit Account of MTS. Any failure by Borrower to comply with the provisions
of this Section 8(b) shall constitute an immediate Event of Default.
(c) Within thirty (30) Business Days after the date hereof (or such later date as Agent may
agree in writing in its sole discretion), Borrower shall deliver to Agent evidence of the
termination of each of the credit card processing arrangements of MTS and its Subsidiaries in place
as of the date hereof, including without limitation, (i) that certain Merchant Processing Agreement
dated November 5, 2009 among MTS, Global Payments Direct, Inc., Merchant Services, Inc., and HSBC
Bank USA, National Association, (ii) that certain Agreement for American Express Card Acceptance
between MTS and American Express Travel Related Services Company, Inc., and (iii) that certain
Xxxxxxxxx.Xxx Payment Gateway Merchant Service Agreement between MTS and Xxxxxxxxx.Xxx LLC. Any
failure by Borrower to comply with the provisions of this Section 8(c) shall constitute an
immediate Event of Default.
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.
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(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.
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 agreement to be executed by their
respective officers thereunto duly authorized and delivered as of the date first above written.
| REALPAGE, INC., a Delaware corporation |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| XXXXX FARGO CAPITAL FINANCE, LLC, a Delaware limited liability company, as Agent and as a Lender |
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| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Director | |||
| COMERICA BANK, a Texas Banking Association, as a Lender |
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| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Vice President | |||
CONSENT AND REAFFIRMATION
Each Guarantor hereby (i) acknowledges receipt of a copy of the foregoing Consent and Tenth
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 Section 10 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: | Vice President, Chief Financial Officer and Treasurer | |||
| MULTIFAMILY INTERNET VENTURES, LLC, a California limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| STARFIRE MEDIA, INC., a Delaware corporation |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| REALPAGE INDIA HOLDINGS, INC., a Delaware corporation |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| A.L. WIZARD, INC., a Delaware corporation |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| PROPERTYWARE, INC., a California corporation |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| 43642 YUKON INC., a Yukon company |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| eREAL ESTATE INTEGRATION, INC. a California corporation |
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| By: | /s/ Xxxxxxx X.Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| RP NEWCO LLC, a Delaware limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| RP NEWCO II LLC, a Delaware limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| MULTIFAMILY CLOUD CONSORTIUM LLC, a Delaware limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| REALPAGE PHILIPPINES HOLDINGS LLC, a Delaware limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| REALPAGE FORMS LLC, a Delaware limited liability company |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| XXXXXX-XXXXXX.XXX, INC., a Delaware corporation |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
