Exhibit 10.3
SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of September 30, 2010, by and among WELLS FARGO CAPITAL FINANCE, LLC (formerly known as Wells 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”); and
WHEREAS, Borrower has requested that Agent and the Lenders amend the Credit Agreement in certain respects.
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. Amendments to Credit Agreement. Subject to the terms and conditions set forth herein, the defined term “Fixed Charges” set forth in Schedule 1.1 of the Credit Agreement is amended and restated in its entirety as follows:
Fixed Charges” means, with respect to any fiscal period and with respect to Borrower determined on a consolidated basis in accordance with GAAP, the sum, without duplication, of (a) Interest Expense accrued during such period; provided that, with respect to the Preferred Shareholder Notes, Borrower shall include only Interest Expense paid during such period, (b) principal payments in respect of Indebtedness that are required to be paid during such period; provided that, with respect to the Preferred Shareholder Notes, Borrower shall include only principal payments paid during such period, (c) all federal, state, and local income taxes accrued during such period, (d) all Restricted Junior Payments paid (whether in cash or other property, other than Restricted Junior Payments paid in common Stock or Preferred Shareholder Notes) during such period (other than the cash dividend paid by Borrowers on December 31, 2009 to the holders of the Preferred Stock in the amount of $2,515,832.00) and (e) any payment made in respect of the RealHound Payment during such period. Notwithstanding anything to the contrary contained in the foregoing, Fixed Charges shall not include (w) the payment to Intacct, Inc. made on August 11, 2009 in the amount of $2,500,000, (x) the payment to Intacct, Inc. to be made in an amount not to exceed $100,000 (so long as such payment is made on or before December 31, 2009), (y) the payment made in respect of the OpsTechnology Payment (so long as such payment is made on or before December 31, 2009) and (z) the payment of the Cash Dividend (as defined in that certain Consent dated August 13, 2010 among Borrower, Agent and the Lenders party thereto (the “August 2010 Consent”), the repayment of the Preferred Shareholder Notes in full and the repayment of the Senior Subordinated Debt in full, in each case with respect to this clause (z), in accordance with the terms of the August 2010 Consent.
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 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.

 

 


 

4. 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.
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 and Lenders to enter into this Amendment, each Loan Party hereby represents and warrants to Agent and Lenders that:
(a) After giving effect to this Amendment, all representations and warranties contained in the Loan Documents to which such Loan Party is a party are true and correct in all material respects on and as of the date of this Amendment (except to the extent any representation or warranty expressly related to an earlier date and except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or dollar thresholds in the text thereof);
(b) No Default or Event of Default has occurred and is continuing; and
(c) This Amendment and the Loan Documents, as amended hereby, constitute legal, valid and binding obligations of such Loan Party and are enforceable against such Loan Party in accordance with their respective terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally.
7. Miscellaneous.
(a) Expenses. Borrower agrees to pay on demand all reasonable costs and expenses of Agent and the Lenders (including reasonable attorneys fees) incurred in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and all other instruments or documents provided for herein or delivered or to be delivered hereunder or in connection herewith. All obligations provided herein shall survive any termination of this Amendment and the Credit Agreement as amended hereby.
(b) Choice of Law and Venue; Jury Trial Waiver; Reference Provision. Without limiting the applicability of any other provision of the Credit Agreement or any other Loan Document, the terms and provisions set forth in Section 12 of the Credit Agreement are expressly incorporated herein by reference.
(c) Counterparts. This Amendment may be executed in any number of counterparts, and by the parties hereto on the same or separate counterparts, and each such counterpart, when executed and delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment.

 

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8. Release.
(a) In consideration of the agreements of Agent and Lenders contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Loan Party, on behalf of itself and its successors, assigns, and other legal representatives, hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent and Lenders, and their successors and assigns, and their present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (Agent, each Lender and all such other Persons being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits, controversies, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever (individually, a “Claim” and collectively, “Claims”) of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which such Loan Party or any of its successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date of this Amendment for or on account of, or in relation to, or in any way in connection with any of the Credit Agreement, or any of the other Loan Documents or transactions thereunder or related thereto.
(b) Each Loan Party understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.
(c) Each Loan Party agrees that no fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth above.
[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized and delivered as of the date first above written.
         
  REALPAGE, INC.,
a Delaware corporation
 
 
  By:   /s/ Timothy J. Barker    
    Name:   Timothy J. Barker   
    Title:   Chief Financial Officer and Treasurer   
 
  WELLS FARGO CAPITAL FINANCE, LLC,
a Delaware limited liability company, as Agent and as a Lender
 
 
  By:   /s/ Troy V. Erickson    
    Name:   Troy V. Erickson   
    Title:   Director   
 
  COMERICA BANK,
a Texas Banking Association, as a Lender
 
 
  By:   /s/ Charles Fell    
    Name:   Charles Fell   
    Title:   Vice President   
 
Signature Page to Seventh Amendment to Credit Agreement

 


 

CONSENT AND REAFFIRMATION
Each Guarantor hereby (i) acknowledges receipt of a copy of the foregoing Seventh 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 8 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.
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  OPSTECHNOLOGY, INC.,
a Delaware corporation
 
 
  By:   /s/ Timothy J. Barker    
    Name:   Timothy J. Barker   
    Title:   VP, CFO and Treasurer   
 
  MULTIFAMILY INTERNET VENTURES, LLC,
a California limited liability company
 
 
  By:   /s/ Timothy J. Barker    
    Name:   Timothy J. Barker   
    Title:   VP, CFO and Treasurer   
 
  STARFIRE MEDIA, INC.,
a Delaware corporation
 
 
  By:   /s/ Timothy J. Barker    
    Name:   Timothy J. Barker   
    Title:   VP and Treasurer   
 
  REALPAGE INDIA HOLDINGS, INC.,
a Delaware corporation
 
 
  By:   /s/ Timothy J. Barker    
    Name:   Timothy J. Barker   
    Title:   VP, CFO and Treasurer   
 
  A.L. WIZARD, INC.,
a Delaware corporation
 
 
  By:   /s/ Timothy J. Barker    
    Name:   Timothy J. Barker   
    Title:   VP, CFO and Treasurer   
 
  PROPERTYWARE, INC.,
a California corporation
 
 
  By:   /s/ Timothy J. Barker    
    Name:   Timothy J. Barker   
    Title:   VP, CFO and Treasurer   
 

 


 

         
  43642 YUKON INC.,
a Yukon company
 
 
  By:   /s/ Timothy J. Barker    
    Name:   Timothy J. Barker   
    Title:   VP, CFO and Treasurer   
 
  eREAL ESTATE INTEGRATION, INC.
a California corporation
 
 
  By:   /s/ Timothy J. Barker    
    Name:   Timothy J. Barker   
    Title:   VP and Treasurer