FIRST AMENDMENT TO SECURITY AGREEMENT
Exhibit 10.65
FIRST AMENDMENT TO SECURITY AGREEMENT
THIS FIRST AMENDMENT TO SECURITY AGREEMENT (this “Amendment”) is entered into as of
December 22, 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), and the
Grantors listed on the signature pages hereof (the “Grantors”, and each individually, a
“Grantor”).
WHEREAS, Agent, Lenders and RealPage, Inc., a Delaware corporation (“Borrower”) are
parties to that certain Amended and Restated Credit Agreement dated as of the date hereof (as
amended, restated, modified or supplemented from time to time, the “Credit Agreement”);
WHEREAS, the Grantors and Agent are parties to that certain Security Agreement dated as of
September 3, 2009 (as amended, restated, modified or supplemented from time to time, the
“Security Agreement”); and
WHEREAS, in connection with the execution and delivery of the Credit Agreement, Grantors have
requested that Agent amend the Security Agreement in certain respects as set forth herein and Agent
has 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 Security Agreement.
2. Amendments to Security Agreement. In reliance upon the representations and
warranties of Grantors set forth in Section 6 below, and subject to the satisfaction of the
conditions to effectiveness set forth in Section 5 below, the Security Agreement is hereby
amended as follows:
(a) Sections 6(a), 6(b), 6(d), 6(e), 6(f) and 6(k) of the Security Agreement are
each hereby amended by deleting each reference to “$250,000” and replacing each with “$500,000”.
(b) Section 6(c)(i) is hereby amended and restated in its entirety as follows:
(i) Except to the extent not required by the Credit Agreement, each Grantor shall
obtain an authenticated Control Agreement, from each bank maintaining a Deposit Account for
such Grantor; provided however, that Control Agreements shall not be required for
Deposit Accounts for all Grantors with amounts which in the aggregate for all such Deposit
Accounts does not exceed $1,000,000 at any time.
(c) The Schedules to the Security Agreement are hereby amended and restated in
their entirety with the Schedules attached hereto.
3. Continuing Effect. Except as expressly set forth in Section 2 of this
Amendment, nothing in this Amendment shall constitute a modification or alteration of the terms,
conditions or covenants of the Security Agreement or any other Loan Document, or a waiver of any
other terms or provisions thereof, and the Security Agreement and the other Loan Documents shall
remain unchanged and shall continue in full force and effect, in each case as amended hereby.
4. Reaffirmation and Confirmation. Each Grantor hereby ratifies, affirms,
acknowledges and agrees that the Security Agreement and the other Loan Documents to which it is a
party represent the valid, enforceable and collectible obligations of such Grantor, and further
acknowledges that there are no existing claims, defenses, personal or otherwise, or rights of
setoff whatsoever with respect to the Security Agreement or any other Loan Document. Each Grantor
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 each Grantor in all respects.
5. 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); 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.
6. Representations and Warranties. In order to induce Agent to enter into this
Amendment, each Grantor hereby represents and warrants to Agent that:
(a) After giving effect to this Amendment, all representations and warranties
contained in the Loan Documents to which such Grantor 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);
(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 Grantor and are enforceable against such Grantor 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.
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7. Miscellaneous.
(a) Expenses. Borrower agrees to pay on demand all reasonable costs and
expenses of Agent (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 Security Agreement as amended hereby.
(b) Governing Law; Trial Waiver; Reference Provision. Without limiting
the applicability of any other provision of the Security Agreement or any other Loan Document, the
terms and provisions set forth in Section 23 of the Security 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.
8. Release.
(a) In consideration of the agreements of Agent contained herein and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each
Grantor, 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 Grantor 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 Security Agreement,
or any of the other Loan Documents or transactions thereunder or related thereto.
(b) Each Grantor 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.
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(c) Each Grantor 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: | Chief Financial Officer and Treasurer | |||||
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: | Chief Financial officer and Treasurer of RealPage, Inc., the Sole Member of Multifamily Internet Ventures, LLC | |||||
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 |
Signature Page to First Amendment to Security Agreement
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 |
Signature Page to First Amendment to Security Agreement
RP NEWCO LLC, a Delaware limited liability company |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||||
Name: | Xxxxxxx X. Xxxxxx | |||||
Title: | Chief Financial Officer and Treasurer of | |||||
RealPage, Inc., the Sole Member of | ||||||
RP Newco LLC | ||||||
RP NEWCO II LLC, a Delaware limited liability company |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||||
Name: | Xxxxxxx X. Xxxxxx | |||||
Title: | Chief Financial Officer and Treasurer of | |||||
RealPage, Inc., the Sole Member of | ||||||
RP Newco II LLC | ||||||
MULTIFAMILY CLOUD CONSORTIUM LLC, a Delaware limited liability company |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||||
Name: | Xxxxxxx X. Xxxxxx | |||||
Title: | Chief Financial Officer and Treasurer of | |||||
RealPage, Inc., the Sole Member of Multifamily | ||||||
Cloud Consortium LLC | ||||||
REALPAGE PHILIPPINES HOLDINGS LLC, a Delaware limited liability company |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||||
Name: | Xxxxxxx X. Xxxxxx | |||||
Title: | Chief Financial Officer and Treasurer of | |||||
RealPage, Inc., the Sole Member of RealPage | ||||||
Philippines Holdings LLC |
Signature Page to First Amendment to Security Agreement
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 |
MULTIFAMILY TECHNOLOGY SOLUTIONS, 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 | ||||||
MTS NEW JERSEY, 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 | ||||||
MTS CONNECTICUT, 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 |
Signature Page to First Amendment to Security Agreement
MTS MINNESOTA, INC., a Delaware corporation | ||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||
Name: | Xxxxxxx X. Xxxxxx | |||||
Title: | Vice President, Chief Financial Officer and | |||||
Treasurer | ||||||
LEASESTAR LLC, a Delaware limited liability company |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||||
Name: | Xxxxxxx X. Xxxxxx | |||||
Title: | Chief Financial Officer and Treasurer of | |||||
RealPage, Inc., the Sole Member of | ||||||
LeaseStar LLC |
Signature Page to First Amendment to Security Agreement
XXXXX FARGO CAPITAL FINANCE, LLC, a Delaware limited liability company, as Agent |
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By: | /s/ Xxxx X. Xxxxxxxx | |||||
Name: | Xxxx X. Xxxxxxxx | |||||
Title: | Director |
Signature Page to First Amendment to Security Agreement