CONSENT AND FIFTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.54
CONSENT AND FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS CONSENT AND FIFTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered
into as of June 22, 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 desires to enter into an Unconditional Guaranty in favor of Bank of America,
N.A. dated on or around the date hereof in connection with the cash management services provided by
Bank of America, N.A. to RealPage Payment Processing (the “BofA Guaranty”); and
WHEREAS, Borrower has requested that Agent and the Lenders consent to Borrower’s execution and
delivery of the BofA Guaranty and amend the Credit Agreement in certain respects in connection
therewith.
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. Subject to the terms and conditions set forth herein, Agent and Lenders
hereby consent to Borrower’s execution and delivery of the BofA Guaranty; provided the BofA
Guaranty is substantially in the form attached hereto as Exhibit A. This is a limited
consent and shall not, except as expressly set forth herein, be deemed to constitute a consent to
or waiver of any Default, Event of Default or breach of the Credit Agreement or any other Loan
Document or any other requirements of any provision of the Credit Agreement or any other Loan
Document.
3. Amendments to Credit Agreement. Subject to the terms and conditions set forth
herein, the Credit Agreement is hereby amended as follows:
(a) The definition of “Payment Processing Guaranty” set forth in Schedule 1.1 to the Credit
Agreement is amended and restated in its entirety as follows:
“Payment Processing Guaranty” means (a) that certain Continuing
Guaranty dated as of January 18, 2007 executed by Borrower in favor of Xxxxx Fargo
Bank, National Association, (b) that certain Parental Guaranty dated on or around
December 23, 2009 executed by Borrower in favor of JPMorgan Chase Bank, N.A., (c)
that certain Unconditional Guaranty dated on or around June 22, 2010 executed by
Borrower in favor of Bank of America, N.A. and (d) any other guaranty executed by
Borrower or any other Loan Party in favor of a financial institution with respect
to any Payment Processing Cash Management Agreement between RealPage Payment
Processing and such financial institution (provided that this clause (d) shall not
be deemed to constitute consent by Agent or any Lender to Borrower’s or such other
Loan Party’s execution of any such guaranty).
(b) Schedules 4.1(b), 4.13, 4.15, 4.17 and 6.12 to the Credit Agreement are replaced with
Schedules 4.1(b), 4.13, 4.15, 4.17 and 6.12 attached as Exhibit B hereto.
4. Continuing Effect. Except as expressly set forth in Section 2 and
Section 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 four (4) original copies of this Amendment executed and
delivered by Agent, the Lenders and the Loan Parties;
(b) Agent shall have received such documents, agreements and instruments as may be reasonably
required by Agent in connection with this Amendment, each in form and substance reasonably
satisfactory to Agent; and
(c) 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 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 to the extent 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.
8. 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.
9. 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 |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| 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 Fifth
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 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: | Vice President 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 and Treasurer | |||
| STARFIRE MEDIA, INC., a Delaware corporation |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President 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 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 and Treasurer | |||
| PROPERTYWARE, INC., a California corporation |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| 43642 YUKON INC., a Yukon company |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
