exv10w18






Exhibit 10.18




 





CREDIT AGREEMENT




by and among



REALPAGE, INC.



as Borrower,



THE LENDERS THAT ARE SIGNATORIES HERETO



as the Lenders,



WELLS FARGO FOOTHILL, LLC



as the Arranger and Administrative Agent




and



COMERICA BANK



as the Co-Arranger



Dated as of September 3, 2009



 




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	1. DEFINITIONS AND CONSTRUCTION
	 	 	1	 
	 
	1.1. Definitions
	 	 	1	 
	1.2. Accounting Terms
	 	 	1	 
	1.3. Code
	 	 	1	 
	1.4. Construction
	 	 	1	 
	1.5. Schedules and Exhibits
	 	 	2	 
	 
	2. LOAN AND TERMS OF PAYMENT
	 	 	2	 
	 
	2.1. Revolver Advances
	 	 	2	 
	2.2. Term Loan
	 	 	3	 
	2.3. Borrowing Procedures and Settlements
	 	 	3	 
	2.4. Payments; Reductions of Commitments; Prepayments
	 	 	8	 
	2.5. Overadvances
	 	 	12	 
	     2.6. Interest Rates and Letter of Credit Fee: Rates, Payments, and
Calculations	12
	2.7. Crediting Payments
	 	 	13	 
	2.8. Designated Account
	 	 	13	 
	2.9. Maintenance of Loan Account; Statements of Obligations
	 	 	14	 
	2.10. Fees
	 	 	14	 
	2.11. Letters of Credit
	 	 	14	 
	2.12. LIBOR Option
	 	 	17	 
	2.13. Capital Requirements
	 	 	19	 
	 
	3. CONDITIONS; TERM OF AGREEMENT
	 	 	20	 
	 
	3.1. Conditions Precedent to the Initial Extension of Credit
	 	 	20	 
	3.2. Conditions Precedent to all Extensions of Credit
	 	 	20	 
	3.3. Maturity
	 	 	20	 
	3.4. Effect of Maturity
	 	 	20	 
	3.5. Early Termination by Borrower
	 	 	21	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	4. REPRESENTATIONS AND WARRANTIES
	 	 	21	 
	 
	4.1. Due Organization and Qualification; Subsidiaries
	 	 	21	 
	4.2. Due Authorization; No Conflict
	 	 	22	 
	4.3. Governmental Consents
	 	 	22	 
	4.4. Binding Obligations; Perfected Liens
	 	 	22	 
	4.5. Title to Assets; No Encumbrances
	 	 	22	 
	     4.6. Jurisdiction of Organization; Location of Chief Executive Office;
Organizational Identification Number; Commercial Tort Claims
	23
	4.7. Litigation
	 	 	23	 
	4.8. Compliance with Laws
	 	 	23	 
	4.9. No Material Adverse Change
	 	 	23	 
	4.10. Fraudulent Transfer
	 	 	24	 
	4.11. Employee Benefits
	 	 	24	 
	4.12. Environmental Condition
	 	 	24	 
	4.13. Intellectual Property
	 	 	24	 
	4.14. Leases
	 	 	24	 
	4.15. Deposit Accounts and Securities Accounts
	 	 	24	 
	4.16. Complete Disclosure
	 	 	25	 
	4.17. Material Contracts
	 	 	25	 
	4.18. Patriot Act
	 	 	25	 
	4.19. Indebtedness
	 	 	25	 
	4.20. Payment of Taxes
	 	 	26	 
	4.21. Margin Stock
	 	 	26	 
	4.22. Governmental Regulation
	 	 	26	 
	4.23. OFAC
	 	 	26	 
	4.24. Employee and Labor Matters
	 	 	26	 
	4.25. Location of Equipment
	 	 	27	 
	4.26. Inactive Subsidiaries.
	 	 	27	 
	4.27. Existing Obligations Pertaining to Acquisitions.
	 	 	27	 
	 
	5. AFFIRMATIVE COVENANTS
	 	 	27	 
	 
	5.1. Financial Statements, Reports, Certificates
	 	 	27	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	5.2. Collateral Reporting
	 	 	28	 
	5.3. Existence
	 	 	28	 
	5.4. Maintenance of Properties
	 	 	28	 
	5.5. Taxes
	 	 	28	 
	5.6. Insurance
	 	 	28	 
	5.7. Inspection
	 	 	29	 
	5.8. Compliance with Laws
	 	 	29	 
	5.9. Environmental
	 	 	29	 
	5.10. Disclosure Updates
	 	 	30	 
	5.11. Formation of Subsidiaries
	 	 	30	 
	5.12. Further Assurances
	 	 	30	 
	5.13. Lender Meetings
	 	 	31	 
	5.14. Material Contracts
	 	 	31	 
	5.15. Location of Tangible Collateral
	 	 	31	 
	5.16. Assignable Material Contracts
	 	 	31	 
	5.17. Post Closing Matters
	 	 	32	 
	 
	6. NEGATIVE COVENANTS
	 	 	32	 
	 
	6.1. Indebtedness
	 	 	32	 
	6.2. Liens
	 	 	32	 
	6.3. Restrictions on Fundamental Changes
	 	 	32	 
	6.4. Disposal of Assets
	 	 	33	 
	6.5. Change Name
	 	 	33	 
	6.6. Nature of Business
	 	 	33	 
	6.7. Prepayments and Amendments
	 	 	33	 
	6.8. Change of Control
	 	 	34	 
	6.9. Restricted Junior Payments
	 	 	34	 
	6.10. Accounting Methods
	 	 	35	 
	6.11. Investments
	 	 	35	 
	6.12. Transactions with Affiliates
	 	 	35	 
	6.13. Use of Proceeds
	 	 	36	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	7. FINANCIAL COVENANTS
	 	 	36	 
	 
	8. EVENTS OF DEFAULT
	 	 	38	 
	 
	9. RIGHTS AND REMEDIES
	 	 	39	 
	 
	9.1. Rights and Remedies
	 	 	39	 
	9.2. Remedies Cumulative
	 	 	40	 
	 
	10. WAIVERS; INDEMNIFICATION
	 	 	40	 
	 
	10.1. Demand; Protest; etc
	 	 	40	 
	10.2. The Lender Group’s Liability for Collateral
	 	 	40	 
	10.3. Indemnification
	 	 	40	 
	 
	11. NOTICES
	 	 	41	 
	 
	12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; REFERENCE PROVISION
	 	 	42	 
	 
	13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS
	 	 	44	 
	 
	13.1. Assignments and Participations
	 	 	44	 
	13.2. Successors
	 	 	47	 
	 
	14. AMENDMENTS; WAIVERS
	 	 	47	 
	 
	14.1. Amendments and Waivers
	 	 	47	 
	14.2. Replacement of Certain Lenders
	 	 	48	 
	14.3. No Waivers; Cumulative Remedies
	 	 	49	 
	 
	15. AGENT; THE LENDER GROUP
	 	 	49	 
	 
	15.1. Appointment and Authorization of Agent
	 	 	49	 
	15.2. Delegation of Duties
	 	 	49	 
	15.3. Liability of Agent
	 	 	50	 
	15.4. Reliance by Agent
	 	 	50	 
	15.5. Notice of Default or Event of Default
	 	 	50	 
	15.6. Credit Decision
	 	 	51	 
	15.7. Costs and Expenses; Indemnification
	 	 	51	 
	15.8. Agent in Individual Capacity
	 	 	52	 
	15.9. Successor Agent
	 	 	52	 
	15.10. Lender in Individual Capacity
	 	 	52	 
	15.11. Collateral Matters
	 	 	53	 






-iv-









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	15.12. Restrictions on Actions by Lenders; Sharing of Payments
	 	 	53	 
	15.13. Agency for Perfection
	 	 	54	 
	15.14. Payments by Agent to the Lenders
	 	 	54	 
	15.15. Concerning the Collateral and Related Loan Documents
	 	 	54	 
	     15.16. Audits and Examination Reports; Confidentiality; Disclaimers by
Lenders; Other Reports and Information	54
	15.17. Several Obligations; No Liability
	 	 	55	 
	15.18. Co-Arranger
	 	 	55	 
	 
	16. WITHHOLDING TAXES
	 	 	56	 
	 
	17. GENERAL PROVISIONS
	 	 	58	 
	 
	17.1. Effectiveness
	 	 	58	 
	17.2. Section Headings
	 	 	58	 
	17.3. Interpretation
	 	 	58	 
	17.4. Severability of Provisions
	 	 	58	 
	17.5. Bank Product Providers
	 	 	58	 
	17.6. Debtor-Creditor Relationship
	 	 	59	 
	17.7. Counterparts; Electronic Execution
	 	 	59	 
	17.8. Revival and Reinstatement of Obligations
	 	 	59	 
	17.9. Confidentiality
	 	 	59	 
	17.10. Lender Group Expenses
	 	 	60	 
	17.11. USA PATRIOT Act
	 	 	60	 
	17.12. Integration
	 	 	60	 






-v-









 






EXHIBITS AND SCHEDULES




	 	 	 
	Exhibit A-1

	 	Form of Assignment and Acceptance
	Exhibit B-1

	 	Form of Borrowing Base Certificate
	Exhibit B-2

	 	Form of Bank Product Provider Letter Agreement
	Exhibit C-1

	 	Form of Compliance Certificate
	Exhibit C-2

	 	Form of Credit Amount Certificate
	Exhibit I-1

	 	Form of Intellectual Property Reporting Certificate
	Exhibit L-1

	 	Form of LIBOR Notice
	 
	 	 
	Schedule A-1

	 	Agent’s Account
	Schedule A-2

	 	Authorized Persons
	Schedule C-1

	 	Commitments
	Schedule D-1

	 	Designated Account
	Schedule P-1

	 	Permitted Investments
	Schedule P-2

	 	Permitted Liens
	Schedule 1.1

	 	Definitions
	Schedule 3.1

	 	Conditions Precedent
	Schedule 4.1(b)

	 	Capitalization of Borrower; Stock Subject to Mandatory Redemption
	Schedule 4.1(c)

	 	Capitalization of Borrower’s Subsidiaries
	Schedule 4.6(a)

	 	States of Organization
	Schedule 4.6(b)

	 	Chief Executive Offices
	Schedule 4.6(c)

	 	Organizational Identification Numbers
	Schedule 4.6(d)

	 	Commercial Tort Claims
	Schedule 4.7

	 	Litigation
	Schedule 4.12

	 	Environmental Matters
	Schedule 4.13

	 	Intellectual Property
	Schedule 4.15

	 	Deposit Accounts and Securities Accounts
	Schedule 4.17

	 	Material Contracts
	Schedule 4.19

	 	Permitted Indebtedness
	Schedule 4.25

	 	Locations of Equipment
	Schedule 4.27

	 	Existing Obligations Pertaining to Acquisitions
	Schedule 5.1

	 	Financial Statements, Reports, Certificates
	Schedule 5.2

	 	Collateral Reporting
	Schedule 6.6

	 	Nature of Business
	Schedule 6.12

	 	RealPage Payment Processing, StarFire Media, Inc. and Credit Interfaces, Inc. Transactions






-vi-









 






CREDIT AGREEMENT




          THIS CREDIT AGREEMENT (this “Agreement”), is entered into as of September 3, 2009, by
and among the lenders identified on the signature pages hereof (such lenders, together with their
respective successors and permitted assigns, are referred to hereinafter each individually as a
“Lender” and collectively as the “Lenders”), WELLS FARGO FOOTHILL, LLC, a Delaware
limited liability company, as the arranger and administrative agent for the Lenders (in such
capacity, together with its successors and assigns in such capacity, “Agent”), COMERICA
BANK, Texas Banking Association, as co-arranger for the Lenders (in such capacity, together with
its successors and assigns in such capacity, “Co-Arranger”), and REALPAGE, INC., a Delaware
corporation (“Borrower”).




          The parties agree as follows:




1. DEFINITIONS AND CONSTRUCTION.




     1.1. Definitions.



          Capitalized terms used in this Agreement shall have the meanings specified therefor on
Schedule 1.1.




     1.2. Accounting Terms.



          All accounting terms not specifically defined herein shall be construed in accordance with
GAAP; provided, however, that if Borrower notifies Agent that Borrower requests an
amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after
the Closing Date or in the application thereof on the operation of such provision (or if Agent
notifies Borrower that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such Accounting Change or
in the application thereof, then Agent and Borrower agree that they will negotiate in good faith
amendments to the provisions of this Agreement that are directly affected by such Accounting Change
with the intent of having the respective positions of the Lenders and Borrower after such
Accounting Change conform as nearly as possible to their respective positions as of the date of
this Agreement and, until any such amendments have been agreed upon, the provisions in this
Agreement shall be calculated as if no such Accounting Change had occurred. When used herein, the
term “financial statements” shall include the notes and schedules thereto, when and as applicable.
Whenever the term “Borrower” is used in respect of a financial covenant or a related definition, it
shall be understood to mean Borrower and its Subsidiaries on a consolidated basis, unless the
context clearly requires otherwise.




     1.3. Code.



     Any terms used in this Agreement that are defined in the Code shall be construed and defined
as set forth in the Code unless otherwise defined herein; provided, however, that
to the extent that the Code is used to define any term herein and such term is defined differently
in different Articles of the Code, the definition of such term contained in Article 9 of the Code
shall govern.



     1.4. Construction.



     Unless the context of this Agreement or any other Loan Document clearly requires otherwise,
references to the plural include the singular, references to the singular include the plural, 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 similar terms in this Agreement or any other Loan Document refer to this
Agreement or such other Loan Document, as the case may be, as a whole and not to any particular
provision of this Agreement or such other Loan Document, as the case may be. Section, subsection,
clause, schedule, and exhibit references herein are to this



 









 




Agreement unless otherwise specified.
Any reference in this Agreement or in any other Loan Document 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, all to the extent executed by the respective parties of any
such agreement, instrument or document (subject to any restrictions on such alterations,
amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders,
and supplements set forth herein). The words “asset” and “property” shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts, and contract rights. Any reference herein or in any other
Loan Document to the satisfaction or repayment in full of the Obligations shall mean the repayment
in full in cash (or, in the case of Letters of Credit or Bank Products, providing Letter of Credit
Collateralization) of all Obligations other than unasserted contingent indemnification Obligations
and other than any Bank Product Obligations that, at such time, are allowed by the applicable Bank
Product Provider to remain outstanding and that are not required by the provisions of this
Agreement to be repaid or cash collateralized. Any reference herein to any Person shall be
construed to include such Person’s successors and assigns. Any requirement of a writing contained
herein or in any other Loan Document shall be satisfied by the transmission of a Record.




     1.5. Schedules and Exhibits.



          All of the schedules and exhibits attached to this Agreement shall be deemed incorporated
herein by reference.




2. LOAN AND TERMS OF PAYMENT.




     2.1. Revolver Advances.



          (a) Subject to the terms and conditions of this Agreement, and during the term of this
Agreement, each Lender with a Revolver Commitment agrees (severally, not jointly or jointly and
severally) to make advances (“Advances”) to Borrower in an amount at any one time
outstanding not to exceed such Lender’s Pro Rata Share of an amount equal to the least of (i) the
Maximum Revolver Amount less the Letter of Credit Usage at such time, (ii) the Credit Amount at
such time less the sum of (A) the Letter of Credit Usage at such time, plus (B) the outstanding
principal balance of the Term Loan at such time and (iii) the Borrowing Base at such time less the
Letter of Credit Usage at such time.




          (b) Amounts borrowed pursuant to this Section 2.1 may be repaid and, subject to the
terms and conditions of this Agreement, reborrowed at any time during the term of this Agreement.
The outstanding principal amount of the Advances, together with interest accrued thereon, shall be
due and payable on the Maturity Date or, if earlier, on the date on which they are declared due and
payable pursuant to the terms of this Agreement.




          (c) Anything to the contrary in this Section 2.1 notwithstanding, Agent shall have the
right with 7 days’ prior written notice to Borrower to establish reserves against the Borrowing
Base and the Credit Amount in such amounts, and with respect to such matters, as Agent in its
Permitted Discretion shall deem necessary or appropriate, including Bank Product Reserves and
reserves with respect to (i) Holdbacks that may be payable in connection with any Permitted
Acquisition to the extent Borrower has not established a cash collateral account with Agent
containing cash in the amount of such Holdbacks, (ii) sums that Borrower or its Subsidiaries are
required to pay under any Section of this Agreement or any other Loan Document (such as taxes,
assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable
under such leases) and has failed to pay, and (iii) amounts owing by Borrower or its Subsidiaries
to any Person to the extent secured by a Lien on, or trust over, any of the Collateral (other than
a Permitted Lien), which Lien or trust, in the Permitted Discretion of Agent likely would have a
priority superior to Agent’s Liens (such as Liens or trusts in favor of landlords, warehousemen,
carriers, mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad valorem,
excise, sales, or other taxes where given priority under applicable law) in and to such item of the
Collateral.





-2-









 








     2.2. Term Loan.



          Subject to the terms and conditions of this Agreement, on the Closing Date each Lender with a
Term Loan Commitment agrees (severally, not jointly or jointly and severally) to make term loans
(collectively, the “Term Loan”) to Borrower in an amount equal to such Lender’s Pro Rata
Share of the Term Loan Amount. The principal of the Term Loan shall be repaid in installments
identified as “Installment Amounts” below on the following dates and in the following amounts:




	 	 	 
	Date	 	Installment Amount
	December 31, 2009, March 31, 2010, June 30, 2010
and September 30, 2010

	 	$1,312,500
	 
	 	 
	December 31, 2010, March 31, 2011, June 30, 2011
and September 30, 2011

	 	$1,750,000
	 
	 	 
	December 31, 2011, March 31, 2012, June 30, 2012
and September 30, 2012

	 	$1,837,500
	 
	 	 
	December 31, 2012 and March 31, 2013

	 	$1,925,000
	 
	 	 
	Maturity Date

	 	Unpaid Principal Balance





The outstanding unpaid principal balance and all accrued and unpaid interest on the Term Loan shall
be due and payable on the earlier of (i) the Maturity Date, and (ii) the date of the acceleration
of the Term Loan in accordance with the terms hereof. All principal of, interest on, and other
amounts payable in respect of the Term Loan shall constitute Obligations.




     2.3. Borrowing Procedures and Settlements.



          (a) Procedure for Borrowing. Each Borrowing shall be made by a written request by an
Authorized Person delivered to Agent. Unless Swing Lender is not obligated to make a Swing Loan
pursuant to Section 2.3(b) below, such notice must be received by Agent no later than 10:00
a.m. (California time) on the Business Day that is the requested Funding Date specifying (i) the
amount of such Borrowing, and (ii) the requested Funding Date, which shall be a Business Day;
provided, however, that if Swing Lender is not obligated to make a Swing Loan as to
a requested Borrowing, such notice must be received by Agent no later than 10:00 a.m. (California
time) on the Business Day prior to the date that is the requested Funding Date. At Agent’s
election, in lieu of delivering the above-described written request, any Authorized Person may give
Agent telephonic notice of such request by the required time. In such circumstances, Borrower
agrees that any such telephonic notice will be confirmed in writing within 24 hours of the giving
of such telephonic notice, but the failure to provide such written confirmation shall not affect
the validity of the request.




          (b) Making of Swing Loans. In the case of a request for an Advance and so long as either (i)
the aggregate amount of Swing Loans made since the last Settlement Date, minus the amount of
Collections or payments applied to Swing Loans since the last Settlement Date, plus the amount of
the requested Advance does not exceed $5,000,000, or (ii) Swing Lender, in its sole discretion,
shall agree to make a Swing Loan notwithstanding the foregoing limitation, Swing Lender shall make
an Advance in the amount of such Borrowing (any such Advance made solely by Swing Lender pursuant
to this Section 2.3(b) being referred to as a “Swing Loan” and such Advances being
referred to collectively as “Swing Loans”) available to Borrower on the Funding Date
applicable thereto by transferring immediately available funds to the Designated Account; provided
Swing Lender shall not be obligated to make such Swing Loan if Swing Lender has notified Borrower
in writing that it has elected to discontinue making Swing Loans. Each Swing Loan





-3-









 







shall be deemed to be an Advance hereunder and shall be subject to all the terms and
conditions applicable to other Advances, except that all payments on any Swing Loan shall be
payable to Swing Lender solely for its own account. Subject to the provisions of Section
2.3(d)(ii), Swing Lender shall not make and shall not be obligated to make any Swing Loan if
Swing Lender has actual knowledge that (i) one or more of the applicable conditions precedent set
forth in Section 3 will not be satisfied on the requested Funding Date for the applicable
Borrowing, or (ii) the requested Borrowing would exceed the Availability on such Funding Date.
Swing Lender shall not otherwise be required to determine whether the applicable conditions
precedent set forth in Section 3 have been satisfied on the Funding Date applicable thereto
prior to making any Swing Loan. The Swing Loans shall be secured by Agent’s Liens, constitute
Obligations hereunder, and bear interest at the rate applicable from time to time to Advances that
are Base Rate Loans.




          (c) Making of Loans.




               (i) In the event that Swing Lender is not obligated to make a Swing Loan, or otherwise elects
not to make a Swing Loan, then promptly after receipt of a request for a Borrowing pursuant to
Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (California time)
on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy,
telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall
make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in
immediately available funds, to Agent’s Account, not later than 10:00 a.m. (California time) on the
Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, Agent
shall make the proceeds thereof available to Borrower on the applicable Funding Date by
transferring immediately available funds equal to such proceeds received by Agent to the Designated
Account; provided, however, that, subject to the provisions of Section
2.3(d)(ii), no Lender shall have the obligation to make any Advance if (1) one or more of the
applicable conditions precedent set forth in Section 3 will not be satisfied on the
requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2)
the requested Borrowing would exceed the Availability on such Funding Date.



               (ii) Unless Agent receives notice from a Lender prior to 9:00 a.m. (California time) on the
date of a Borrowing, that such Lender will not make available as and when required hereunder to
Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Borrowing,
Agent may assume that each Lender has made or will make such amount available to Agent in
immediately available funds on the Funding Date and Agent may (but shall not be so required), in
reliance upon such assumption, make available to Borrower on such date a corresponding amount. If
any Lender shall not have made its full amount available to Agent in immediately available funds
and if Agent in such circumstances has made available to Borrower such amount, that Lender shall on
the Business Day following such Funding Date make such amount available to Agent, together with
interest at the Defaulting Lender Rate for each day during such period. A notice submitted by
Agent to any Lender with respect to amounts owing under this Section 2.3(c)(ii) shall be
conclusive, absent manifest error. If such amount is so made available, such payment to Agent
shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement.
If such amount is not made available to Agent on the Business Day following the Funding Date,
Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay
such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since
the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time
to the Advances composing such Borrowing. The failure of any Lender to make any Advance on any
Funding Date shall not relieve any other Lender of any obligation hereunder to make an Advance on
such Funding Date, but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on any Funding Date.



               (iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by
Borrower to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the
Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender
member of the Lender Group ratably in accordance with their Commitments (but only to the extent
that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if
so directed by Borrower and if no Default or Event of Default has occurred and is continuing (and
to the extent such Defaulting Lender’s



-4-









 




Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if
such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold
and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the
amount of all such payments received and retained by Agent for the account of such Defaulting
Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan
Documents, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment
shall be deemed to be zero. This Section shall remain effective with respect to such Lender until
(x) the Obligations under this Agreement shall have been declared or shall have become immediately
due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such
Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of
the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof.
The operation of this Section shall not be construed to increase or otherwise affect the
Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any
other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by
any Loan Party of its duties and obligations hereunder to Agent or to the Lenders other than such
Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material
breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon
written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such
Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with
the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to
be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and
Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed
and delivered such document if it fails to do so) subject only to being repaid its share of the
outstanding Obligations (other than Bank Product Obligations, but including an assumption of its
Pro Rata Share of the Letters of Credit) without any premium or penalty of any kind whatsoever;
provided, however, that any such assumption of the Commitment of such Defaulting
Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights
or remedies against any such Defaulting Lender arising out of or in relation to such failure to
fund.




          (d) Protective Advances and Optional Overadvances.




               (i) Any contrary provision of this Agreement notwithstanding, Agent hereby is authorized by
Borrower and the Lenders, from time to time in Agent’s sole discretion, (A) after the occurrence
and during the continuance of a Default or an Event of Default, or (B) at any time that any of the
other applicable conditions precedent set forth in Section 3 are not satisfied, to make
Advances to, or for the benefit of, Borrower on behalf of the Lenders (in an aggregate amount for
all such Advances taken together not exceeding $2,000,000 outstanding at any one time) that Agent,
in its Permitted Discretion deems necessary or desirable (1) to preserve or protect the Collateral,
or any portion thereof, or (2) to enhance the likelihood of repayment of the Obligations (other
than the Bank Product Obligations) (any of the Advances described in this Section 2.3(d)(i)
shall be referred to as “Protective Advances”).



               (ii) Any contrary provision of this Agreement notwithstanding, the Lenders hereby authorize
Agent or Swing Lender, as applicable, and either Agent or Swing Lender, as applicable, may, but is
not obligated to, knowingly and intentionally, continue to make Advances (including Swing Loans) to
Borrower notwithstanding that an Overadvance exists or thereby would be created, so long as (A)
after giving effect to such Advances, the outstanding Revolver Usage does not exceed the Credit
Amount by more than $2,000,000, and (B) after giving effect to such Advances, the outstanding
Revolver Usage (except for and excluding amounts charged to the Loan Account for interest, fees, or
Lender Group Expenses) does not exceed the Maximum Revolver Amount. In the event Agent obtains
actual knowledge that the Revolver Usage exceeds the amounts permitted by the immediately foregoing
provisions, regardless of the amount of, or reason for, such excess, Agent shall notify the Lenders
as soon as practicable (and prior to making any (or any additional) Overadvances (except for and
excluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) unless
Agent determines that prior notice would result in imminent harm to the Collateral or its value),
and the Lenders with Revolver Commitments thereupon shall, together with Agent, jointly determine
the terms of arrangements that shall be implemented with Borrower intended to reduce, within a
reasonable time, the outstanding principal amount of the Advances to Borrower to an amount



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permitted by the preceding sentence. In such circumstances, if any Lender with a Revolver
Commitment objects to the proposed terms of reduction or repayment of any Overadvance, the terms of
reduction or repayment thereof shall be implemented according to the determination of the Required
Lenders. In any event: (x) if any Overadvance remains outstanding for more than 30 days, unless
otherwise agreed to by the Required Lenders, Agent shall notify Borrower to immediately repay
Advances in an amount sufficient to eliminate all such Overadvances, and (y) after the date all
such Overadvances have been eliminated, there must be at least five consecutive days before
Overadvances are made. The foregoing provisions are meant for the benefit of the Lenders and Agent
and are not meant for the benefit of Borrower, which shall continue to be bound by the provisions
of Section 2.5. Each Lender with a Revolver Commitment shall be obligated to settle with
Agent as provided in Section 2.3(e) for the amount of such Lender’s Pro Rata Share of any
Overadvances by Agent reported to such Lender, any Overadvances made as permitted under this
Section 2.3(d)(ii), and any Overadvances resulting from the charging to the Loan Account of
interest, fees, or Lender Group Expenses.




               (iii) Each Protective Advance and each Overadvance shall be deemed to be an Advance hereunder,
except that no Protective Advance or Overadvance shall be eligible to be a LIBOR Rate Loan and,
prior to Settlement therefor, all payments on the Protective Advances shall be payable to Agent
solely for its own account; provided that, notwithstanding anything herein to the contrary,
a Lender may request that no Settlement be made with respect to such Lender’s Pro Rata Share of any
Protective Advance in excess of such Lender’s Revolver Commitment. The Protective Advances and
Overadvances shall be repayable on demand, secured by Agent’s Liens, constitute Obligations
hereunder, and bear interest at the rate applicable from time to time to Advances that are Base
Rate Loans. The ability of Agent to make Protective Advances is separate and distinct from its
ability to make Overadvances and its ability to make Overadvances is separate and distinct from its
ability to make Protective Advances; for the avoidance of doubt, the limitations on Agent’s ability
to make Protective Advances do not apply to Overadvances and the limitations on Agent’s ability to
make Overadvances do not apply to Protective Advances. The provisions of this Section
2.3(d) are for the exclusive benefit of Agent, Swing Lender, and the Lenders and are not
intended to benefit Borrower in any way.



               (iv) Notwithstanding anything contained in this Agreement or the Loan Documents to the
contrary: (A) no Overadvance or Protective Advance may be made by Agent if such Advance would
cause the aggregate principal amount of Overadvances and Protective Advances outstanding to exceed
an amount equal to ten percent (10%) of the Maximum Revolver Amount; and (B) to the extent any
Protective Advance causes the aggregate Revolver Usage to exceed the Maximum Revolver Amount, each
such Protective Advance shall be for Agent’s sole and separate account and not for the account of
any Lender.



          (e) It is agreed that each Lender’s funded portion of the Advances is intended by the Lenders
to equal, at all times, such Lender’s Pro Rata Share of the outstanding Advances. Such agreement
notwithstanding, Agent, Swing Lender, and the other Lenders agree (which agreement shall not be for
the benefit of Borrower) that in order to facilitate the administration of this Agreement and the
other Loan Documents, settlement among the Lenders as to the Advances, the Swing Loans, and the
Protective Advances shall take place on a periodic basis in accordance with the following
provisions:




               (i) Agent shall request settlement (“Settlement”) with the Lenders on a weekly basis,
or on a more frequent basis if so determined by Agent (1) on behalf of Swing Lender, with respect
to the outstanding Swing Loans, (2) for itself, with respect to the outstanding Protective
Advances, and (3) with respect to Borrower’s or its Subsidiaries’ Collections or payments received,
as to each by notifying the Lenders by telecopy, telephone, or other similar form of transmission,
of such requested Settlement, no later than 2:00 p.m. (California time) on the Business Day
immediately prior to the date of such requested Settlement (the date of such requested Settlement
being the “Settlement Date”). Such notice of a Settlement Date shall include a summary
statement of the amount of outstanding Advances, Swing Loans, and Protective Advances for the
period since the prior Settlement Date. Subject to the terms and conditions contained herein
(including Section 2.3(c)(iii)): (y) if a Lender’s balance of the Advances (including
Swing Loans and Protective Advances) exceeds such Lender’s Pro Rata Share of the Advances
(including Swing Loans and Protective Advances) as of a Settlement Date, then Agent shall, by no
later than 12:00 p.m. (California time) on the Settlement Date,



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transfer in immediately available funds to a Deposit Account of such Lender (as such Lender
may designate), an amount such that each such Lender shall, upon receipt of such amount, have as of
the Settlement Date, its Pro Rata Share of the Advances (including Swing Loans and Protective
Advances), and (z) if a Lender’s balance of the Advances (including Swing Loans and Protective
Advances) is less than such Lender’s Pro Rata Share of the Advances (including Swing Loans and
Protective Advances) as of a Settlement Date, such Lender shall no later than 12:00 p.m.
(California time) on the Settlement Date transfer in immediately available funds to Agent’s
Account, an amount such that each such Lender shall, upon transfer of such amount, have as of the
Settlement Date, its Pro Rata Share of the Advances (including Swing Loans and Protective
Advances). Such amounts made available to Agent under clause (z) of the immediately preceding
sentence shall be applied against the amounts of the applicable Swing Loans or Protective Advances
and, together with the portion of such Swing Loans or Protective Advances representing Swing
Lender’s Pro Rata Share thereof, shall constitute Advances of such Lenders. If any such amount is
not made available to Agent by any Lender on the Settlement Date applicable thereto to the extent
required by the terms hereof, Agent shall be entitled to recover for its account such amount on
demand from such Lender together with interest thereon at the Defaulting Lender Rate.




               (ii) In determining whether a Lender’s balance of the Advances, Swing Loans, and Protective
Advances is less than, equal to, or greater than such Lender’s Pro Rata Share of the Advances,
Swing Loans, and Protective Advances as of a Settlement Date, Agent shall, as part of the relevant
Settlement, apply to such balance the portion of payments actually received in good funds by Agent
with respect to principal, interest, fees payable by Borrower and allocable to the Lenders
hereunder, and proceeds of Collateral.



               (iii) Between Settlement Dates, Agent, to the extent Protective Advances or Swing Loans are
outstanding, may pay over to Agent or Swing Lender, as applicable, any Collections or payments
received by Agent that in accordance with the terms of this Agreement would be applied to the
reduction of the Advances, for application to the Protective Advances or Swing Loans. Between
Settlement Dates, Agent, to the extent no Protective Advances or Swing Loans are outstanding, may
pay over to Swing Lender any Collections or payments received by Agent, that in accordance with the
terms of this Agreement would be applied to the reduction of the Advances, for application to Swing
Lender’s Pro Rata Share of the Advances. If, as of any Settlement Date, Collections or payments of
Borrower or its Subsidiaries received since the then immediately preceding Settlement Date have
been applied to Swing Lender’s Pro Rata Share of the Advances other than to Swing Loans, as
provided for in the previous sentence, Swing Lender shall pay to Agent for the accounts of the
Lenders, and Agent shall pay to the Lenders, to be applied to the outstanding Advances of such
Lenders, an amount such that each Lender shall, upon receipt of such amount, have, as of such
Settlement Date, its Pro Rata Share of the Advances. During the period between Settlement Dates,
Swing Lender with respect to Swing Loans, Agent with respect to Protective Advances, and each
Lender (subject to the effect of agreements between Agent and individual Lenders) with respect to
the Advances other than Swing Loans and Protective Advances, shall be entitled to interest at the
applicable rate or rates payable under this Agreement on the daily amount of funds employed by
Swing Lender, Agent, or the Lenders, as applicable.



          (f) Notation. Agent, as a non-fiduciary agent for Borrower, shall maintain a register showing
the principal amount of the Advances (and portion of the Term Loan, as applicable), owing to each
Lender, including the Swing Loans owing to Swing Lender, and Protective Advances owing to Agent,
and the interests therein of each Lender, from time to time and such register shall, absent
manifest error, conclusively be presumed to be correct and accurate.




          (g) Lenders’ Failure to Perform. All Advances (other than Swing Loans and Protective
Advances) shall be made by the Lenders contemporaneously and in accordance with their Pro Rata
Shares. It is understood that (i) no Lender shall be responsible for any failure by any other
Lender to perform its obligation to make any Advance (or other extension of credit) hereunder, nor
shall any Commitment of any Lender be increased or decreased as a result of any failure by any
other Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform its
obligations hereunder shall excuse any other Lender from its obligations hereunder.




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     2.4. Payments; Reductions of Commitments; Prepayments.



          (a) Payments by Borrower.




               (i) Except as otherwise expressly provided herein, all payments by Borrower shall be made to
Agent’s Account for the account of the Lender Group and shall be made in immediately available
funds, no later than 11:00 a.m. (California time) on the date specified herein. Any payment
received by Agent later than 11:00 a.m. (California time) shall be deemed to have been received on
the following Business Day and any applicable interest or fee shall continue to accrue until such
following Business Day.



               (ii) Unless Agent receives notice from Borrower prior to the date on which any payment is due
to the Lenders that Borrower will not make such payment in full as and when required, Agent may
assume that Borrower has made (or will make) such payment in full to Agent on such date in
immediately available funds and Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent Borrower does not make such payment in full to Agent on the date when
due, each Lender severally shall repay to Agent on demand such amount distributed to such Lender,
together with interest thereon at the Defaulting Lender Rate for each day from the date such amount
is distributed to such Lender until the date repaid.



          (b) Apportionment and Application.




               (i) So long as no Application Event has occurred and is continuing and except as otherwise
provided with respect to Defaulting Lenders, all principal and interest payments shall be
apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations
to which such payments relate held by each Lender) and all payments of fees and expenses (other
than fees or expenses that are for Agent’s separate account) shall be apportioned ratably among the
Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee
or expense relates. All payments to be made hereunder by Borrower shall be remitted to Agent and
(subject to Section 2.4(b)(iv), Section 2.4(d)(ii), Section 2.4(e) and
Section 2.4(f)) all such payments, and all proceeds of Collateral received by Agent, shall be
applied, so long as no Application Event has occurred and is continuing, to reduce the balance of
the Advances outstanding and, thereafter, to Borrower (to be wired to the Designated Account) or
such other Person entitled thereto under applicable law.



               (ii) At any time that an Application Event has occurred and is continuing and except as
otherwise provided with respect to Defaulting Lenders, all payments remitted to Agent and all
proceeds of Collateral received by Agent shall be applied as follows:



                    (A) first, to pay any Lender Group Expenses (including cost or expense reimbursements)
or indemnities then due to Agent under the Loan Documents, until paid in full,



                    (B) second, to pay any fees or premiums then due to Agent under the Loan Documents
until paid in full,



                    (C) third, to pay interest due in respect of all Protective Advances until paid in
full,



                    (D) fourth, to pay the principal of all Protective Advances until paid in full,



                    (E) fifth, ratably to pay any Lender Group Expenses (including cost or expense
reimbursements) or indemnities then due to any of the Lenders under the Loan Documents, until paid
in full,



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                    (F) sixth, ratably to pay any fees or premiums then due to any of the Lenders under
the Loan Documents until paid in full,



                    (G) seventh, ratably to pay interest due in respect of the Advances (other than
Protective Advances), the Swing Loans, and the Term Loan until paid in full,



                    (H) eighth, ratably (i) to pay the principal of all Swing Loans until paid in full,
(ii) to pay the principal of all Advances until paid in full, (iii) to Agent, to be held by Agent,
for the benefit of Issuing Lender (and for the ratable benefit of each of the Lenders that have an
obligation to pay to Agent, for the account of the Issuing Lender, a share of each Letter of Credit
Disbursement), as cash collateral in an amount up to 105% of the Letter of Credit Usage, and (iv)
to pay the outstanding principal balance of the Term Loan (in the inverse order of the maturity of
the installments due thereunder) until the Term Loan is paid in full,



                    (I) ninth, to pay any other Obligations (including being paid to the Bank Product
Providers on account of all amounts then due and payable in respect of Bank Products, with any
balance to be paid to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as
cash collateral), and



                    (J) tenth, to Borrower (to be wired to the Designated Account) or such other Person
entitled thereto under applicable law.



               (iii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire
instructions received from each Lender in writing, such funds as it may be entitled to receive,
subject to a Settlement delay as provided in Section 2.3(e).



               (iv) In each instance, so long as no Application Event has occurred and is continuing,
Section 2.4(b)(i) shall not apply to any payment made by Borrower to Agent and specified by
Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under
any provision of this Agreement or any other Loan Document.



               (v) For purposes of Section 2.4(b)(ii), “paid in full” means payment in cash of all
amounts owing under the Loan Documents, including loan fees, service fees, professional fees,
interest (and specifically including interest accrued after the commencement of any Insolvency
Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any
of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency
Proceeding.



               (vi) In the event of a direct conflict between the priority provisions of this Section
2.4 and any other provision contained in any other Loan Document, it is the intention of the
parties hereto that such provisions be read together and construed, to the fullest extent possible,
to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot
be resolved as aforesaid, the terms and provisions of this Section 2.4 shall control and
govern.



          (c) Reduction of Commitments.




               (i) Revolver Commitments. The Revolver Commitments shall terminate on the Maturity Date.
Borrower may reduce the Revolver Commitments to an amount (which may be zero) not less than the sum
of (A) the Revolver Usage as of such date, plus (B) the principal amount of all Advances not yet
made as to which a request has been given by Borrower under Section 2.3(a), plus (C) the
amount of all Letters of Credit not yet issued as to which a request has been given by Borrower
pursuant to Section 2.11(a). Each such reduction shall be in an amount which is not less
than $1,000,000 (unless the Revolver Commitments are being reduced to zero and the amount of the
Revolver Commitments in effect immediately prior to such reduction are less than $1,000,000), shall
be made by providing not less than 10 Business Days prior written notice to Agent and shall be
irrevocable. Once reduced, the Revolver Commitments may not be



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increased. Each such reduction of the Revolver Commitments shall reduce the Revolver
Commitments of each Lender proportionately in accordance with its Pro Rata Share thereof.




               (ii) Term Loan Commitments. The Term Loan Commitments shall terminate upon the making of the
Term Loan.



          (d) Optional Prepayments.




               (i) Advances. Borrower may prepay the principal of any Advance at any time in whole or in
part.



               (ii) Term Loan. Borrower may, upon at least 10 Business Days prior written notice to Agent,
prepay the principal of the Term Loan, in whole or in part. Each prepayment made pursuant to this
Section 2.4(d)(ii) shall be accompanied by the payment of accrued interest to the date of
such payment on the amount prepaid. Each such prepayment shall be applied against the remaining
installments of principal due on the Term Loan on a pro rata basis (for the avoidance of doubt, any
amount that is due and payable on the Maturity Date shall constitute an installment).



          (e) Mandatory Prepayments.




               (i) Borrowing Base; Credit Amount. If, at any time, (A) the Revolver Usage on such date
exceeds (B) the Borrowing Base (such excess being referred to as the “Borrowing Base
Excess”), then Borrower shall immediately prepay the Obligations in accordance with Section
2.4(f)(i) in an aggregate amount equal to the Borrowing Base Excess. If, at any time, (A) the
sum of the outstanding principal balance of the Term Loan on such date plus the Revolver Usage on
such date exceeds (B) the Credit Amount (such excess being referred to as the “Credit Amount
Excess”), then Borrower shall immediately prepay the Obligations in accordance with Section
2.4(f)(i) in an aggregate amount equal to the Credit Amount Excess.



               (ii) Dispositions. Within 3 Business Days of the date of receipt by any Loan Party of the Net
Cash Proceeds of any voluntary or involuntary sale or disposition by any Loan Party of assets
(including property and casualty losses or condemnations but excluding (A) sales or dispositions
which qualify as Permitted Dispositions except for those Permitted Dispositions under clauses (g),
(h) and (o) of the definition of Permitted Dispositions and (B) sales or dispositions which qualify
as Permitted Dispositions under clause (n) of the definition of Permitted Dispositions up to
$1,250,000 in the aggregate) in excess of the Retained Amount in any fiscal year of Borrower,
Borrower shall prepay the outstanding principal amount of the Obligations in accordance with
Section 2.4(f)(ii)in an amount equal to 100% of such Net Cash Proceeds (including
condemnation awards and payments in lieu thereof) received by such Loan Party in connection with
such sales or dispositions; provided that, so long as (A) no Default or Event of Default
shall have occurred and is continuing or would result therefrom, (B) Borrower shall have given
Agent prior written notice of Borrower’s intention to apply such monies to the costs of replacement
of the properties or assets that are the subject of such sale or disposition or the cost of
purchase or construction of other assets useful in the business of the Loan Party whose assets were
the subject of such disposition, (C) the monies are held in a Deposit Account in which Agent has a
perfected first-priority security interest, and (D) such Loan Party completes such replacement,
purchase, or construction within 180 days after the initial receipt of such monies, then such Loan
Party shall have the option to apply such monies to the costs of replacement of the assets that are
the subject of such sale or disposition or the costs of purchase or construction of other assets
useful in the business of such Loan Party unless and to the extent that such applicable period
shall have expired without such replacement, purchase, or construction being made or completed, in
which case, any amounts remaining in the cash collateral account shall be paid to Agent and applied
in accordance with Section 2.4(f)(ii). Nothing contained in this Section
2.4(e)(ii) shall permit Borrower or any of its Subsidiaries to sell or otherwise dispose of any
assets other than in accordance with Section 6.4.



               (iii) Extraordinary Receipts. Within 3 Business Days of the date of receipt by Borrower or
any of its Subsidiaries of any Extraordinary Receipts in excess of the Retained Amount in any



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fiscal year of Borrower, Borrower shall prepay the outstanding principal amount of the
Obligations in accordance with Section 2.4(f)(ii) in an amount equal to 100% of such
Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary
Receipts.




               (iv) Indebtedness. Within 3 Business Days of the date of incurrence by Borrower or any of its
Subsidiaries of any Indebtedness (other than Permitted Indebtedness), Borrower shall prepay the
outstanding principal amount of the Obligations in accordance with Section 2.4(f)(ii) in an
amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such
incurrence. The provisions of this Section 2.4(e)(iv) shall not be deemed to be implied
consent to any such incurrence otherwise prohibited by the terms and conditions of this Agreement.



               (v) Equity. Within 3 Business Days of the date of the issuance by Borrower or any of its
Subsidiaries of any shares of its or their Stock (other than (A) in the event that Borrower or any
of its Subsidiaries forms or capitalizes any Subsidiary in accordance with the terms hereof, the
issuance by such Subsidiary of Stock to Borrower or such Subsidiary, as applicable, (B) the
issuance of Stock of Borrower to directors, officers, consultants and employees of Borrower and its
Subsidiaries pursuant to stock option plans (or other employee incentive plans or other
compensation arrangements) approved by the Board of Directors, (C) the issuance of Stock of
Borrower to finance the purchase consideration (or a portion thereof) in connection with a
Permitted Acquisition, (D) the issuance of Stock of Borrower the proceeds of which are used to pay
or prepay the Preferred Shareholder Notes and (E) the issuance of Stock of Borrower for an
aggregate sales price of an amount up to 5% of the equity valuation of Borrower on a fully-diluted
basis before giving effect to such issuance; provided that the exception provided in this clause
(E) shall only be available to Borrower once during the term of this Agreement), Borrower shall
prepay the outstanding principal amount of the Obligations in accordance with Section
2.4(f)(ii) in an amount equal to 100% of the Net Cash Proceeds received by such Person in
connection with such issuance. The provisions of this Section 2.4(e)(v) may be waived by
Agent in its discretion and shall not be deemed to be implied consent to any such issuance
otherwise prohibited by the terms and conditions of this Agreement.



               (vi) Excess Cash Flow. Within 150 days after the end of each fiscal year of Borrower,
commencing with Borrower’s fiscal year ended December 31, 2010, Borrower shall prepay the
outstanding principal amount of the Obligations in accordance with Section 2.4(f)(ii) in an
amount equal to 25% of the Excess Cash Flow of Borrower and its Subsidiaries for such fiscal year.



               (vii) Change of Control. Borrower shall immediately prepay the Obligations in full in cash
upon the consummation of a Change of Control.



               (viii) Notice of Redemption. Borrower shall immediately prepay the Obligations in full in
cash upon the earlier of (A) the issuance of a valid notice of redemption from the requisite number
of holders of Preferred Stock required to effect a mandatory redemption of such Preferred Stock
under Section 5 of Borrower’s Amended and Restated Certificate of Incorporation and (B) the date of
redemption of any of such Preferred Stock.



          (f) Application of Payments.




               (i) Each prepayment pursuant to Section 2.4(e)(i) shall, (A) so long as no Application
Event shall have occurred and be continuing, be applied, first, to the outstanding principal amount
of the Advances until paid in full, second, to cash collateralize the Letters of Credit in an
amount equal to 105% of the then extant Letter of Credit Usage, and third, to the outstanding
principal amount of the Term Loan until paid in full, and (B) if an Application Event shall have
occurred and be continuing, be applied in the manner set forth in Section 2.4(b)(ii). Each
such prepayment of the Term Loan shall be applied against the remaining installments of principal
of the Term Loan on a pro rata basis (for the avoidance of doubt, any amount that is due and
payable on the Maturity Date shall constitute an installment).



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               (ii) Each prepayment pursuant to Section 2.4(e)(ii), 2.4(e)(iii),
2.4(e)(iv), 2.4(e)(v), or 2.4(e)(vi) above shall (A) so long as no
Application Event shall have occurred and be continuing, be applied, first, to the outstanding
principal amount of the Term Loan until paid in full, second, to the outstanding principal amount
of the Advances (with a corresponding permanent reduction in the Maximum Revolver Amount), until
paid in full, and third, to cash collateralize the Letters of Credit in an amount equal to 105% of
the then extant Letter of Credit Usage (with a corresponding permanent reduction in the Maximum
Revolver Amount), and (B) if an Application Event shall have occurred and be continuing, be applied
in the manner set forth in Section 2.4(b)(ii). Each such prepayment of the Term Loan shall
be applied against the remaining installments of principal of the Term Loan on a pro rata basis
(for the avoidance of doubt, any amount that is due and payable on the Maturity Date shall
constitute an installment).



     2.5. Overadvances.



          If, at any time or for any reason, the amount of Obligations owed by Borrower to the Lender
Group pursuant to Section 2.1 or Section 2.11 is greater than any of the
limitations set forth in Section 2.1 or Section 2.11, as applicable (an
“Overadvance”), Borrower shall immediately pay to Agent, in cash, the amount of such
excess, which amount shall be used by Agent to reduce the Obligations in accordance with the
priorities set forth in Section 2.4(b). Borrower promises to pay the Obligations
(including principal, interest, fees, costs, and expenses) in Dollars in full on the Maturity Date
or, if earlier, on the date on which the Obligations are declared due and payable pursuant to the
terms of this Agreement.




     2.6. Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations.



          (a) Interest Rates. Except as provided in Section 2.6(c), all Obligations (except for
undrawn Letters of Credit and except for Bank Product Obligations) shall bear interest on the Daily
Balance thereof as follows:




               (i) if the relevant Obligation is a LIBOR Rate Loan, at a per annum rate equal to the LIBOR
Rate plus the LIBOR Rate Margin, and



               (ii) otherwise, at a per annum rate equal to the Base Rate plus the Base Rate Margin.



          (b) Letter of Credit Fee. Borrower shall pay Agent (for the ratable benefit of the Lenders
with a Revolver Commitment, subject to any agreements between Agent and individual Lenders), a
Letter of Credit fee (in addition to the charges, commissions, fees, and costs set forth in
Section 2.11(e)) which shall accrue at a per annum rate equal to the LIBOR Rate Margin
times the Daily Balance of the undrawn amount of all outstanding Letters of Credit.




          (c) Default Rate. Upon the occurrence and during the continuation of an Event of Default and
at the election of the Required Lenders,




               (i) all Obligations (except for undrawn Letters of Credit and except for Bank Product
Obligations) shall bear interest on the Daily Balance thereof at a per annum rate equal to 3
percentage points above the per annum rate otherwise applicable hereunder, and



               (ii) the Letter of Credit fee provided for in Section 2.6(b) shall be increased to 3
percentage points above the per annum rate otherwise applicable hereunder.



          (d) Payment. Except to the extent provided to the contrary in Section 2.10 or
Section 2.12(a), interest, Letter of Credit fees, all other fees payable hereunder or under
any of the other Loan Documents, and all costs, expenses, and Lender Group Expenses payable
hereunder or under any of the other Loan Documents shall be due and payable, in arrears, on the
first day of each month at any time that Obligations or Commitments are outstanding. Borrower
hereby authorizes Agent, from time to time without




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prior notice to Borrower, to charge all interest, Letter of Credit fees, and all other fees
payable hereunder or under any of the other Loan Documents (in each case, as and when due and
payable), all costs, expenses, and Lender Group Expenses payable hereunder or under any of the
other Loan Documents (in each case, as and when incurred), all charges, commissions, fees, and
costs provided for in Section 2.11(e) (as and when accrued or incurred), all fees and costs
provided for in Section 2.10 (as and when accrued or incurred), and all other payments as
and when due and payable under any Loan Document (including any amounts due and payable to a Bank
Product Provider (to the extent such Bank Product Provider is Wells Fargo or any of its Affiliates)
in respect of Bank Products) to the Loan Account, which amounts thereafter shall constitute
Advances hereunder and shall accrue interest at the rate then applicable to Advances that are Base
Rate Loans. Any interest not paid when due shall be compounded and shall accrue interest at the
rate then applicable to Advances that are Base Rate Loans.




          (e) Computation. All interest and fees chargeable under the Loan Documents shall be computed
on the basis of a 360 day year, in each case, for the actual number of days elapsed in the period
during which the interest or fees accrue. In the event the Base Rate is changed from time to time
hereafter, the rates of interest hereunder based upon the Base Rate automatically and immediately
shall be increased or decreased by an amount equal to such change in the Base Rate.




          (f) Intent to Limit Charges to Maximum Lawful Rate. In no event shall the interest rate or
rates payable under this Agreement, plus any other amounts paid in connection herewith, exceed the
highest rate permissible under any law that a court of competent jurisdiction shall, in a final
determination, deem applicable. Borrower and the Lender Group, in executing and delivering this
Agreement, intend legally to agree upon the rate or rates of interest and manner of payment stated
within it; provided, however, that, anything contained herein to the contrary
notwithstanding, if said rate or rates of interest or manner of payment exceeds the maximum
allowable under applicable law, then, ipso facto, as of the date of this Agreement, Borrower is and
shall be liable only for the payment of such maximum as allowed by law, and payment received from
Borrower in excess of such legal maximum, whenever received, shall be applied to reduce the
principal balance of the Obligations to the extent of such excess.




     2.7. Crediting Payments.



          The receipt of any payment item by Agent shall not be considered a payment on account unless
such payment item is a wire transfer of immediately available federal funds made to Agent’s Account
or unless and until such payment item is honored when presented for payment. Should any payment
item not be honored when presented for payment, then Borrower shall be deemed not to have made such
payment and interest shall be calculated accordingly. Anything to the contrary contained herein
notwithstanding, any payment item shall be deemed received by Agent only if it is received into
Agent’s Account on a Business Day on or before 11:00 a.m. (California time). If any payment item
is received into Agent’s Account on a non-Business Day or after 11:00 a.m. (California time) on a
Business Day, it shall be deemed to have been received by Agent as of the opening of business on
the immediately following Business Day.




     2.8. Designated Account.



          Agent is authorized to make the Advances and the Term Loan, and Issuing Lender is authorized
to issue the Letters of Credit, under this Agreement based upon telephonic or other instructions
received from anyone purporting to be an Authorized Person or, without instructions, if pursuant to
Section 2.6(d). Borrower agrees to establish and maintain the Designated Account with the
Designated Account Bank for the purpose of receiving the proceeds of the Advances requested by
Borrower and made by Agent or the Lenders hereunder. Unless otherwise agreed by Agent and
Borrower, any Advance or Swing Loan requested by Borrower and made by Agent or the Lenders
hereunder shall be made to the Designated Account.





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     2.9. Maintenance of Loan Account; Statements of Obligations.



          Agent shall maintain an account on its books in the name of Borrower (the “Loan
Account”) on which Borrower will be charged with the Term Loan, all Advances (including
Protective Advances and Swing Loans) made by Agent, Swing Lender, or the Lenders to Borrower or for
Borrower’s account, the Letters of Credit issued or made by Issuing Lender for Borrower’s account,
and with all other payment Obligations hereunder or under the other Loan Documents (except for Bank
Product Obligations), including, accrued interest, fees and expenses, and Lender Group Expenses.
In accordance with Section 2.7, the Loan Account will be credited with all payments
received by Agent from Borrower or for Borrower’s account. Agent shall render statements on a
monthly basis regarding the Loan Account to Borrower, including principal, interest, fees, and
including an itemization of all charges and expenses constituting Lender Group Expenses owing, and
such statements, absent manifest error, shall be conclusively presumed to be correct and accurate
and constitute an account stated between Borrower and the Lender Group unless, within 30 days after
receipt thereof by Borrower, Borrower shall deliver to Agent written objection thereto describing
the error or errors contained in any such statements.




     2.10. Fees.



          Borrower shall pay to Agent,




          (a) for the account of Agent, as and when due and payable under the terms of the Fee Letter,
the fees set forth in the Fee Letter.




          (b) for the ratable account of those Lenders with Revolver Commitments, on the first day of
each month from and after the Closing Date up to the first day of the month prior to the Payoff
Date and on the Payoff Date, an unused line fee in an amount equal to 0.50% per annum times the
result of (i) the Maximum Revolver Amount, less (ii) the average Daily Balance of the Revolver
Usage during the immediately preceding month (or portion thereof).




     2.11. Letters of Credit.



          (a) Subject to the terms and conditions of this Agreement, upon the request of Borrower made
in accordance herewith, the Issuing Lender agrees to issue, or to cause an Underlying Issuer, as
Issuing Lender’s agent, to issue, a requested Letter of Credit. If Issuing Lender, at its option,
elects to cause an Underlying Issuer to issue a requested Letter of Credit, then Issuing Lender
agrees that it will obligate itself to reimburse such Underlying Issuer (which may include, among,
other means, by becoming an applicant with respect to such Letter of Credit or entering into
undertakings which provide for reimbursements of such Underlying Issuer with respect to such Letter
of Credit; each such obligation or undertaking, irrespective of whether in writing, a
“Reimbursement Undertaking”) with respect to Letters of Credit issued by such Underlying
Issuer. By submitting a request to Issuing Lender for the issuance of a Letter of Credit, Borrower
shall be deemed to have requested that Issuing Lender issue or that an Underlying Issuer issue the
requested Letter of Credit and to have requested Issuing Lender to issue a Reimbursement
Undertaking with respect to such requested Letter of Credit if it is to be issued by an Underlying
Issuer (it being expressly acknowledged and agreed by Borrower that Borrower is and shall be deemed
to be an applicant (within the meaning of Section 5-102(a)(2) of the Code) with respect to each
Underlying Letter of Credit). Each request for the issuance of a Letter of Credit, or the
amendment, renewal, or extension of any outstanding Letter of Credit, shall be made in writing by
an Authorized Person and delivered to the Issuing Lender via hand delivery, telefacsimile, or other
electronic method of transmission reasonably in advance of the requested date of issuance,
amendment, renewal, or extension. Each such request shall be in form and substance reasonably
satisfactory to the Issuing Lender and shall specify (i) the amount of such Letter of Credit, (ii)
the date of issuance, amendment, renewal, or extension of such Letter of Credit, (iii) the
expiration date of such Letter of Credit, (iv) the name and address of the beneficiary of the
Letter of Credit, and (v) such other information (including, in the case of an amendment, renewal,
or extension, identification of the Letter of Credit to be so amended, renewed, or extended) as
shall be necessary to prepare, amend, renew, or extend such Letter of






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Credit. Anything contained herein to the contrary notwithstanding, the Issuing Lender may,
but shall not be obligated to, issue or cause the issuance of a Letter of Credit or to issue a
Reimbursement Undertaking in respect of an Underlying Letter of Credit, in either case, that
supports the obligations of Borrower or its Subsidiaries in respect of (1) a lease of real
property, or (2) an employment contract. Borrower agrees that this Agreement (along with the terms
of the applicable application) will govern each Letter of Credit and its issuance. The Issuing
Lender shall have no obligation to issue a Letter of Credit or a Reimbursement Undertaking in
respect of an Underlying Letter of Credit, in either case, if any of the following would result
after giving effect to the requested issuance:




               (i) the Letter of Credit Usage would exceed the Borrowing Base less the outstanding amount of
Advances at such time, or



               (ii) the Letter of Credit Usage would exceed the Credit Amount at such time less the sum of
the outstanding principal balance of the Term Loan and the outstanding amount of Advances at such
time, or



               (iii) the Letter of Credit Usage would exceed $5,000,000, or



               (iv) the Letter of Credit Usage would exceed the Maximum Revolver Amount less the sum of (A)
the Bank Product Reserves, and (B) the outstanding amount of Advances.



          Borrower and the Lender Group acknowledge and agree that certain Letters of Credit may be
issued to support letters of credit that already are outstanding as of the Closing Date. Each
Letter of Credit shall be in form and substance reasonably acceptable to the Issuing Lender,
including the requirement that the amounts payable thereunder must be payable in Dollars. If
Issuing Lender makes a payment under a Letter of Credit or an Underlying Issuer makes a payment
under an Underlying Letter of Credit, Borrower shall pay to Agent an amount equal to the applicable
Letter of Credit Disbursement not later than 11:00 a.m., California time, on the date that Borrower
receives written or telephonic notice of such Letter of Credit Disbursement if such notice is
received prior to 10:00 a.m., California time, or not later than 11:00 a.m., California time, on
the following Business Day, if such notice is received after 10:00 a.m., California time, and, in
the absence of such payment, the amount of the Letter of Credit Disbursement immediately and
automatically shall be deemed to be an Advance hereunder and, initially, shall bear interest at the
rate then applicable to Advances that are Base Rate Loans. If a Letter of Credit Disbursement is
deemed to be an Advance hereunder, Borrower’s obligation to pay the amount of such Letter of Credit
Disbursement to Agent on behalf of Issuing Lender or Underlying Issuer shall be discharged and
replaced by the resulting Advance. Promptly following receipt by Agent of any payment from
Borrower pursuant to this paragraph, Agent shall distribute such payment to the Issuing Lender or,
to the extent that Lenders have made payments pursuant to Section 2.11(b) to reimburse the
Issuing Lender, then to such Lenders and the Issuing Lender as their interests may appear.




          (b) Promptly following receipt of a notice of a Letter of Credit Disbursement pursuant to
Section 2.11(a), each Lender with a Revolver Commitment agrees to fund its Pro Rata Share
of any Advance deemed made pursuant to Section 2.11(a) on the same terms and conditions as
if Borrower had requested the amount thereof as an Advance and Agent shall promptly pay to Issuing
Lender the amounts so received by it from the Lenders. By the issuance of a Letter of Credit or a
Reimbursement Undertaking (or an amendment to a Letter of Credit or a Reimbursement Undertaking
increasing the amount thereof) and without any further action on the part of the Issuing Lender or
the Lenders with Revolver Commitments, the Issuing Lender shall be deemed to have granted to each
Lender with a Revolver Commitment, and each Lender with a Revolver Commitment shall be deemed to
have purchased, a participation in each Letter of Credit issued by Issuing Lender and each
Reimbursement Undertaking, in an amount equal to its Pro Rata Share of such Letter of Credit or
Reimbursement Undertaking, and each such Lender agrees to pay to Agent, for the account of the
Issuing Lender, such Lender’s Pro Rata Share of any Letter of Credit Disbursement made by Issuing
Lender or an Underlying Issuer under the applicable Letter of Credit. In consideration and in
furtherance of the foregoing, each Lender with a Revolver Commitment hereby absolutely and
unconditionally agrees to pay to Agent, for the account of the Issuing Lender, such Lender’s Pro
Rata Share of each Letter of Credit






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Disbursement made by Issuing Lender or an Underlying Issuer and not reimbursed by Borrower on
the date due as provided in Section 2.11(a), or of any reimbursement payment required to be
refunded to Borrower for any reason. Each Lender with a Revolver Commitment acknowledges and
agrees that its obligation to deliver to Agent, for the account of the Issuing Lender, an amount
equal to its respective Pro Rata Share of each Letter of Credit Disbursement pursuant to this
Section 2.11(b) shall be absolute and unconditional and such remittance shall be made
notwithstanding the occurrence or continuation of an Event of Default or Default or the failure to
satisfy any condition set forth in Section 3. If any such Lender fails to make available
to Agent the amount of such Lender’s Pro Rata Share of a Letter of Credit Disbursement as provided
in this Section, such Lender shall be deemed to be a Defaulting Lender and Agent (for the account
of the Issuing Lender) shall be entitled to recover such amount on demand from such Lender together
with interest thereon at the Defaulting Lender Rate until paid in full.




          (c) Borrower hereby agrees to indemnify, save, defend, and hold the Lender Group and each
Underlying Issuer harmless from any loss, cost, expense, or liability, and reasonable attorneys
fees incurred by Issuing Lender, any other member of the Lender Group, or any Underlying Issuer
arising out of or in connection with any Reimbursement Undertaking or any Letter of Credit;
provided, however, that Borrower shall not be obligated hereunder to indemnify for
any loss, cost, expense, or liability that a court of competent jurisdiction finally determines to
have resulted from the gross negligence or willful misconduct of the Issuing Lender, any other
member of the Lender Group, or any Underlying Issuer. Borrower agrees to be bound by the
Underlying Issuer’s regulations and interpretations of any Letter of Credit or by Issuing Lender’s
interpretations of any Reimbursement Undertaking even though this interpretation may be different
from Borrower’s own, and Borrower understands and agrees that none of the Issuing Lender, the
Lender Group, or any Underlying Issuer shall be liable for any error, negligence, or mistake,
whether of omission or commission, in following Borrower’s instructions or those contained in the
Letter of Credit or any modifications, amendments, or supplements thereto. Borrower understands
that the Reimbursement Undertakings may require Issuing Lender to indemnify the Underlying Issuer
for certain costs or liabilities arising out of claims by Borrower against such Underlying Issuer.
Borrower hereby agrees to indemnify, save, defend, and hold Issuing Lender and the other members of
the Lender Group harmless with respect to any loss, cost, expense (including reasonable attorneys
fees), or liability incurred by them as a result of the Issuing Lender’s indemnification of an
Underlying Issuer; provided, however, that Borrower shall not be obligated
hereunder to indemnify for any such loss, cost, expense, or liability to the extent that it is
caused by the gross negligence or willful misconduct of the Issuing Lender or any other member of
the Lender Group. Borrower hereby acknowledges and agrees that none of the Issuing Lender, any
other member of the Lender Group, or any Underlying Issuer shall be responsible for delays, errors,
or omissions resulting from the malfunction of equipment in connection with any Letter of Credit.




          (d) Borrower hereby authorizes and directs any Underlying Issuer to deliver to the Issuing
Lender all instruments, documents, and other writings and property received by such Underlying
Issuer pursuant to such Underlying Letter of Credit and to accept and rely upon the Issuing
Lender’s instructions with respect to all matters arising in connection with such Underlying Letter
of Credit and the related application.




          (e) Any and all issuance charges, usage charges, commissions, fees, and costs incurred by the
Issuing Lender relating to Underlying Letters of Credit shall be Lender Group Expenses for purposes
of this Agreement and shall be reimbursable immediately by Borrower to Agent for the account of the
Issuing Lender; it being acknowledged and agreed by Borrower that, as of the Closing Date, the
usage charge imposed by the Underlying Issuer is .825% per annum times the undrawn amount of each
Underlying Letter of Credit, that such usage charge may be changed from time to time, and that the
Underlying Issuer also imposes a schedule of charges for amendments, extensions, drawings, and
renewals.




          (f) If by reason of (i) any change after the Closing Date in any applicable law, treaty, rule,
or regulation or any change in the interpretation or application thereof by any Governmental
Authority, or (ii) compliance by the Issuing Lender, any other member of the Lender Group, or
Underlying Issuer with any direction, request, or requirement (irrespective of whether having the
force of law) of any Governmental






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Authority or monetary authority including, Regulation D of the Federal Reserve Board as from
time to time in effect (and any successor thereto):




               (i) any reserve, deposit, or similar requirement is or shall be imposed or modified in respect
of any Letter of Credit issued or caused to be issued hereunder or hereby, or



               (ii) there shall be imposed on the Issuing Lender, any other member of the Lender Group, or
Underlying Issuer any other condition regarding any Letter of Credit or Reimbursement Undertaking,


and the result of the foregoing is to increase, directly or indirectly, the cost to the Issuing
Lender, any other member of the Lender Group, or an Underlying Issuer of issuing, making,
guaranteeing, or maintaining any Reimbursement Undertaking or Letter of Credit or to reduce the
amount receivable in respect thereof, then, and in any such case, Agent may, at any time within a
reasonable period after the additional cost is incurred or the amount received is reduced, notify
Borrower, and Borrower shall pay within 30 days after demand therefor, such amounts as Agent may
specify to be necessary to compensate the Issuing Lender, any other member of the Lender Group, or
an Underlying Issuer for such additional cost or reduced receipt, together with interest on such
amount from the date of such demand until payment in full thereof at the rate then applicable to
Base Rate Loans hereunder; provided, however, that Borrower shall not be required
to provide any compensation pursuant to this Section 2.11(f) for any such amounts incurred
more than 180 days prior to the date on which the demand for payment is first made to Borrower;
provided further, however, that if an event or circumstance giving rise to
such amounts is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof. The determination by Agent of any amount due pursuant to
this Section 2.11(f), as set forth in a certificate setting forth the calculation thereof
in reasonable detail, shall, in the absence of manifest or demonstrable error, be final and
conclusive and binding on all of the parties hereto.




     2.12. LIBOR Option.



          (a) Interest and Interest Payment Dates. In lieu of having interest charged at the rate based
upon the Base Rate, Borrower shall have the option (the “LIBOR Option”) to have interest on
all or a portion of the Advances or the Term Loan be charged (whether at the time when made (unless
otherwise provided herein), upon conversion from a Base Rate Loan to a LIBOR Rate Loan, or upon
continuation of a LIBOR Rate Loan as a LIBOR Rate Loan) at a rate of interest based upon the LIBOR
Rate. Interest on LIBOR Rate Loans shall be payable on the earliest of (i) the last day of the
Interest Period applicable thereto; (ii) the date on which all or any portion of the Obligations
are accelerated pursuant to the terms hereof, or (iii) the date on which this Agreement is
terminated pursuant to the terms hereof. On the last day of each applicable Interest Period,
unless Borrower properly has exercised the LIBOR Option with respect thereto, the interest rate
applicable to such LIBOR Rate Loan automatically shall convert to the rate of interest then
applicable to Base Rate Loans of the same type hereunder. At any time that an Event of Default has
occurred and is continuing, Borrower no longer shall have the option to request that Advances or
the Term Loan bear interest at a rate based upon the LIBOR Rate.




          (b) LIBOR Election.




               (i) Borrower may, at any time and from time to time, so long as no Event of Default has
occurred and is continuing, elect to exercise the LIBOR Option by notifying Agent prior to 11:00
a.m. (California time) at least 3 Business Days prior to the commencement of the proposed Interest
Period (the “LIBOR Deadline”). Notice of Borrower’s election of the LIBOR Option for a
permitted portion of the Advances or the Term Loan and an Interest Period pursuant to this Section
shall be made by delivery to Agent of a LIBOR Notice received by Agent before the LIBOR Deadline,
or by telephonic notice received by Agent before the LIBOR Deadline (to be confirmed by delivery to
Agent of a LIBOR Notice received by Agent prior to 5:00 p.m. (California time) on the same day).
Promptly upon its receipt of each such LIBOR Notice, Agent shall provide a copy thereof to each of
the affected Lenders.



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               (ii) Each LIBOR Notice shall be irrevocable and binding on Borrower. In connection with each
LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against
any loss, cost, or expense actually incurred by Agent or any Lender as a result of (A) the payment
of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (B) the conversion of any LIBOR Rate Loan
other than on the last day of the Interest Period applicable thereto, or (C) the failure to borrow,
convert, continue or prepay any LIBOR Rate Loan on the date specified in any LIBOR Notice delivered
pursuant hereto (such losses, costs, or expenses, “Funding Losses”); provided that Borrower
shall not be required to indemnify or pay any Funding Losses incurred or otherwise applicable as a
result of a mandatory prepayment made pursuant to Section 2.4(e)(ii) as a result of a
property or casualty loss or condemnation or Section 2.4(e)(iii). A certificate of Agent
or a Lender delivered to Borrower setting forth in reasonable detail any amount or amounts that
Agent or such Lender is entitled to receive pursuant to this Section 2.12 shall be
conclusive absent manifest error. Borrower shall pay such amount to Agent or the Lender, as
applicable, within 30 days of the date of its receipt of such certificate.



               (iii) Borrower shall have not more than 5 LIBOR Rate Loans in effect at any given time.
Borrower only may exercise the LIBOR Option for proposed LIBOR Rate Loans of at least
$1,000,000.



          (c) Conversion. Borrower may convert LIBOR Rate Loans to Base Rate Loans at any time;
provided, however, that in the event that LIBOR Rate Loans are converted or prepaid
on any date that is not the last day of the Interest Period applicable thereto, including as a
result of any automatic prepayment through the required application by Agent of proceeds of
Borrower’s and its Subsidiaries’ Collections in accordance with Section 2.4(b) or for any
other reason, including early termination of the term of this Agreement or acceleration of all or
any portion of the Obligations pursuant to the terms hereof, Borrower shall indemnify, defend, and
hold Agent and the Lenders and their Participants harmless against any and all Funding Losses in
accordance with Section 2.12 (b)(ii).




          (d) Special Provisions Applicable to LIBOR Rate.




               (i) The LIBOR Rate may be adjusted by Agent with respect to any Lender on a prospective basis
to take into account any additional or increased costs to such Lender of maintaining or obtaining
any eurodollar deposits or increased costs, in each case, due to changes in applicable law
occurring subsequent to the commencement of the then applicable Interest Period, including changes
in tax laws (except changes in the rate of any type of tax excluded from the definition of Taxes by
clause (i) thereof) and changes in the reserve requirements imposed by the Board of Governors of
the Federal Reserve System (or any successor and changes of general applicability in corporate
income tax laws), excluding the Reserve Percentage, which additional or increased costs would
increase the cost of funding or maintaining loans bearing interest at the LIBOR Rate and which
Lender has adjusted generally with respect to similarly situated borrowers. In any such event, the
affected Lender shall give Borrower and Agent notice of such a determination and adjustment and
Agent promptly shall transmit the notice to each other Lender and, upon its receipt of the notice
from the affected Lender, Borrower may, by notice to such affected Lender (y) require such Lender
to furnish to Borrower a statement setting forth the basis for adjusting such LIBOR Rate and the
method for determining the amount of such adjustment, or (z) repay the LIBOR Rate Loans with
respect to which such adjustment is made (together with any amounts due under Section
2.12(b)(ii)).



               (ii) In the event that any change in market conditions or any law, regulation, treaty, or
directive, or any change therein or in the interpretation or application thereof, shall at any time
after the date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical for
such Lender to fund or maintain LIBOR Rate Loans or to continue such funding or maintaining, or to
determine or charge interest rates at the LIBOR Rate, such Lender shall give notice of such changed
circumstances to Agent and Borrower and Agent promptly shall transmit the notice to each other
Lender and (y) in the case of any LIBOR Rate Loans of such Lender that are outstanding, the date
specified in such Lender’s notice shall be deemed to be the last day of the Interest Period of such
LIBOR Rate Loans, and interest upon the LIBOR Rate Loans of



-18-









 




such Lender thereafter shall accrue interest at the rate then applicable to Base Rate Loans,
and (z) Borrower shall not be entitled to elect the LIBOR Option until such Lender determines that
it would no longer be unlawful or impractical to do so.




          (e) No Requirement of Matched Funding. Anything to the contrary contained herein
notwithstanding, neither Agent, nor any Lender, nor any of their Participants, is required actually
to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest
accrues at the LIBOR Rate.




     2.13. Capital Requirements.



          (a) If, after the date hereof, any Lender determines that (i) the adoption of or change in any
law, rule, regulation or guideline regarding capital requirements for banks or bank holding
companies, or any change in the interpretation or application thereof by any Governmental Authority
charged with the administration thereof, or (ii) compliance by such Lender or its parent bank
holding company with any guideline, request or directive of any such entity regarding capital
adequacy (whether or not having the force of law), has the effect of reducing the return on such
Lender’s or such holding company’s capital as a consequence of such Lender’s Commitments hereunder
to a level below that which such Lender or such holding company could have achieved but for such
adoption, change, or compliance (taking into consideration such Lender’s or such holding company’s
then existing policies with respect to capital adequacy and assuming the full utilization of such
entity’s capital) by any amount deemed by such Lender to be material, then such Lender may notify
Borrower and Agent thereof. Following receipt of such notice, Borrower agrees to pay such Lender
on demand the amount of such reduction of return of capital as and when such reduction is
determined, payable within 30 days after presentation by such Lender of a statement in the amount
and setting forth in reasonable detail such Lender’s calculation thereof and the assumptions upon
which such calculation was based (which statement shall be deemed true and correct absent manifest
error). In determining such amount, such Lender may use any reasonable averaging and attribution
methods. Failure or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such compensation;
provided that Borrower shall not be required to compensate a Lender pursuant to this
Section for any reductions in return incurred more than 180 days prior to the date that such Lender
notifies Borrower of such law, rule, regulation or guideline giving rise to such reductions and of
such Lender’s intention to claim compensation therefor; provided further that if
such claim arises by reason of the adoption of or change in any law, rule, regulation or guideline
that is retroactive, then the 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.




          (b) If any Lender requests additional or increased costs referred to in Section
2.12(d)(i) or amounts under Section 2.13(a) (any such Lender, an “Affected
Lender”), then such Affected Lender shall use reasonable efforts to promptly designate a
different one of its lending offices or to assign its rights and obligations hereunder to another
of its offices or branches, if (i) in the reasonable judgment of such Affected Lender, such
designation or assignment would eliminate or reduce amounts payable pursuant to Section
2.12(d)(i) or Section 2.13(a), as applicable, and (ii) in the reasonable judgment of
such Affected Lender, such designation or assignment would not subject it to any material
unreimbursed cost or expense and would not otherwise be materially disadvantageous to it. Borrower
agrees to pay all reasonable out-of-pocket costs and expenses incurred by such Affected Lender in
connection with any such designation or assignment. If, after such reasonable efforts, such
Affected Lender does not so designate a different one of its lending offices or assign its rights
to another of its offices or branches so as to eliminate Borrower’s obligation to pay any future
amounts to such Affected Lender pursuant to Section 2.12(d)(i) or Section 2.13(a),
as applicable, then Borrower (without prejudice to any amounts then due to such Affected Lender
under Section 2.12(d)(i) or Section 2.13(a), as applicable) may, unless prior to
the effective date of any such assignment the Affected Lender withdraws its request for such
additional amounts under Section 2.12(d)(i) or Section 2.13(a), as applicable, seek
a substitute Lender reasonably acceptable to Agent to purchase the Obligations owed to such
Affected Lender and such Affected Lender’s Commitments hereunder (a “Replacement Lender”),
and if such Replacement Lender agrees to such purchase, such Affected Lender shall assign to the
Replacement Lender its Obligations and Commitments, pursuant to an Assignment and Acceptance
Agreement, and upon such






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purchase by the Replacement Lender, such Replacement Lender shall be deemed to be a “Lender”
for purposes of this Agreement and such Affected Lender shall cease to be a “Lender” for purposes
of this Agreement.




3.  CONDITIONS; TERM OF AGREEMENT.




     3.1. Conditions Precedent to the Initial Extension of Credit.



          The obligation of each Lender to make its initial extension of credit provided for hereunder,
is subject to the fulfillment, to the satisfaction of Agent and each Lender of each of the
conditions precedent set forth on Schedule 3.1 (the making of such initial extension of
credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions
precedent ).




     3.2. Conditions Precedent to all Extensions of Credit.



          The obligation of the Lender Group (or any member thereof) to make any Advances hereunder (or
to extend any other credit hereunder) at any time shall be subject to the following conditions
precedent:




          (a) the representations and warranties of Borrower or its Subsidiaries contained in this
Agreement or in the other Loan Documents 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 in the text thereof) on and as of the date of such
extension of credit, as though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date); and




          (b) no Default or Event of Default shall have occurred and be continuing on the date of such
extension of credit, nor shall either result from the making thereof.




     3.3. Maturity.



          This Agreement shall continue in full force and effect for a term ending on June 30, 2013 (the
“Maturity Date”). The foregoing notwithstanding, the Lender Group, upon the election of
the Required Lenders, shall have the right to terminate its obligations under this Agreement
immediately and without notice upon the occurrence and during the continuation of an Event of
Default.




     3.4. Effect of Maturity.



          On the Maturity Date, all commitments to provide additional credit hereunder shall
automatically be terminated and all Obligations (including contingent reimbursement obligations of
Borrower with respect to outstanding Letters of Credit and including all Bank Product Obligations)
immediately shall become due and payable without notice or demand (including the requirement that
Borrower provide (a) Letter of Credit Collateralization, and (b) Bank Product Collateralization).
No termination of the obligations of the Lender Group shall relieve or discharge any Loan Party of
its duties, Obligations, or covenants hereunder or under any other Loan Document and Agent’s Liens
in the Collateral shall remain in effect until all Obligations have been paid in full. When all of
the Obligations have been paid in full and the Lender Group’s obligations to provide additional
credit under the Loan Documents have been terminated irrevocably, Agent will, at Borrower’s sole
expense, execute and deliver any termination statements, lien releases, discharges of security
interests, and other similar discharge or release documents (and, if applicable, in recordable
form) as are reasonably necessary to release, as of record, Agent’s Liens and all notices of
security interests and liens previously filed by Agent with respect to the Obligations.







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     3.5. Early Termination by Borrower.



          Borrower has the option, at any time upon 10 Business Days prior written notice to Agent, to
terminate this Agreement and terminate the Commitments hereunder by indefeasibly paying to Agent
the Obligations (including (a) providing Letter of Credit Collateralization with respect to the
then existing Letter of Credit Usage, and (b) providing Bank Product Collateralization with respect
to the then existing Bank Products), in full.




4. REPRESENTATIONS AND WARRANTIES.




          In order to induce the Lender Group to enter into this Agreement, Borrower makes the following
representations and warranties to the Lender Group which 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 in the text thereof), as of the
Closing Date, and 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 in the text thereof), as of the date of the making of each Advance (or
other extension of credit) made thereafter, as though made on and as of the date of such Advance
(or other extension of credit) (except to the extent that such representations and warranties
relate solely to an earlier date) and such representations and warranties shall survive the
execution and delivery of this Agreement:




     4.1. Due Organization and Qualification; Subsidiaries.



          (a) Each Loan Party (i) is duly organized and existing and in good standing under the laws of
the jurisdiction of its organization, (ii) qualified to do business in any state where the failure
to be so qualified reasonably could be expected to result in a Material Adverse Change, and (iii)
has all requisite power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into the Loan Documents to which it is a
party and to carry out the transactions contemplated thereby.




          (b) Set forth on Schedule 4.1(b) is a complete and accurate description of the
authorized capital Stock of Borrower as of the Closing Date, by class, and, as of the Closing Date,
a description of the number of shares of each such class that are issued and outstanding. Other
than as described on Schedule 4.1(b), as of the Closing Date, there are no subscriptions,
options, warrants, or calls relating to any shares of Borrower’s capital Stock, including any right
of conversion or exchange under any outstanding security or other instrument. Except as set forth
on Schedule 4.1(b), Borrower is not subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of its capital Stock or any security
convertible into or exchangeable for any of its capital Stock.




          (c) Set forth on Schedule 4.1(c) (as such Schedule may be updated from time to time to
reflect changes permitted to be made under Section 5.11), is a complete and accurate list
of the Loan Parties’ direct and indirect Subsidiaries, showing: (i) the number of shares of each
class of common and preferred Stock authorized for each of such Subsidiaries, and (ii) the number
and the percentage of the outstanding shares of each such class owned directly or indirectly by
Borrower. All of the outstanding capital Stock of each such Subsidiary has been validly issued and
is fully paid and non-assessable.




          (d) Except as set forth on Schedule 4.1(c), there are no subscriptions, options,
warrants, or calls relating to any shares of Borrower’s Subsidiaries’ capital Stock, including any
right of conversion or exchange under any outstanding security or other instrument. Neither
Borrower nor any of its Subsidiaries is subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of Borrower’s Subsidiaries’ capital Stock or
any security convertible into or exchangeable for any such capital Stock.







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     4.2. Due Authorization; No Conflict.



          (a) As to each Loan Party, the execution, delivery, and performance by such Loan Party of the
Loan Documents to which it is a party have been duly authorized by all necessary action on the part
of such Loan Party.




          (b) As to each Loan Party, the execution, delivery, and performance by such Loan Party of the
Loan Documents to which it is a party do not and will not (i) violate any material provision of
federal, state, or local law or regulation applicable to any Loan Party or its Subsidiaries, the
Governing Documents of any Loan Party or its Subsidiaries, or any order, judgment, or decree of any
court or other Governmental Authority binding on any Loan Party or its Subsidiaries, (ii) conflict
with, result in a breach of, or constitute (with due notice or lapse of time or both) a default
under any Material Contract of any Loan Party or its Subsidiaries except to the extent that any
such conflict, breach or default could not individually or in the aggregate reasonably be expected
to have a Material Adverse Change, (iii) result in or require the creation or imposition of any
Lien of any nature whatsoever upon any assets of any Loan Party, other than Permitted Liens, or
(iv) require any approval of any Loan Party’s interestholders or any approval or consent of any
Person under any Material Contract of any Loan Party, other than consents or approvals that have
been obtained and that are still in force and effect and except, in the case of Material Contracts,
for consents or approvals, the failure to obtain could not individually or in the aggregate
reasonably be expected to cause a Material Adverse Change.




     4.3. Governmental Consents.



          The execution, delivery, and performance by each Loan Party of the Loan Documents to which
such Loan Party is a party and the consummation of the transactions contemplated by the Loan
Documents do not and will not require any registration with, consent, or approval of, or notice to,
or other action with or by, any Governmental Authority, other than registrations, consents,
approvals, notices, or other actions that have been obtained and that are still in force and effect
and except for filings and recordings with respect to the Collateral to be made, or otherwise
delivered to Agent for filing or recordation, as of the Closing Date.




     4.4. Binding Obligations; Perfected Liens.



          (a) Each Loan Document has been duly executed and delivered by each Loan Party that is a party
thereto and is the legally valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its 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.




          (b) Agent’s Liens are validly created, perfected (other than (i) in respect of motor vehicles
and (ii) any Deposit Accounts and Securities Accounts not subject to a Control Agreement as
permitted by Section 6.11, and subject only to the filing of financing statements, the
recordation of the Copyright Security Agreement, and the recordation of the Mortgages, if any, in
each case, in the appropriate filing offices in proper form), and first priority Liens, subject
only to Permitted Liens.




     4.5. Title to Assets; No Encumbrances.



          Each of the Loan Parties and its Subsidiaries has (i) good, sufficient and legal title to (in
the case of fee interests in Real Property), (ii) valid leasehold interests in (in the case of
leasehold interests in real or personal property), and (iii) good title to (in the case of all
other personal property), all of their respective assets reflected in their most recent financial
statements delivered pursuant to Section 5.1, in each case except for assets disposed of
since the date of such financial statements to the extent permitted hereby. All of such assets are
free and clear of Liens except for Permitted Liens.







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     4.6. Jurisdiction of Organization; Location of Chief Executive Office; Organizational
Identification Number; Commercial Tort Claims.



          (a) The name of (within the meaning of Section 9-503 of the Code) and jurisdiction of
organization of each Loan Party and each of its Subsidiaries is set forth on Schedule
4.6(a) (as such Schedule may be updated from time to time to reflect changes permitted to be
made under Section 6.5).




          (b) The chief executive office of each Loan Party and each of its Subsidiaries is located at
the address indicated on Schedule 4.6(b) (as such Schedule may be updated from time to time
to reflect changes permitted to be made under Section 5.15).




          (c) Each Loan Party’s and each of its Subsidiaries’ tax identification numbers and
organizational identification numbers, if any, are identified on Schedule 4.6(c) (as such
Schedule may be updated from time to time to reflect changes permitted to be made under Section
6.5).




          (d) As of the Closing Date, no Loan Party and no Subsidiary of a Loan Party holds any
commercial tort claims that exceed $250,000 in the aggregate, except as set forth on Schedule
4.6(d).




     4.7. Litigation.



          (a) There are no actions, suits, or proceedings pending or, to the best knowledge of Borrower,
threatened in writing against a Loan Party or any of its Subsidiaries that either individually or
in the aggregate could reasonably be expected to result in a Material Adverse Change.




          (b) Schedule 4.7(b) sets forth a complete and accurate description, with respect to
each of the actions, suits, or proceedings that, as of the Closing Date, is pending or, to the best
knowledge of Borrower, threatened in writing against a Loan Party or any of its Subsidiaries, of
(i) the parties to such actions, suits, or proceedings, (ii) the nature of the dispute that is the
subject of such actions, suits, or proceedings, (iii) Borrower’s good faith estimate of the maximum
amount of the liability of Loan Parties and their Subsidiaries in connection with such actions,
suits, or proceedings, (iv) the status, as of the Closing Date, with respect to such actions,
suits, or proceedings, and (v) whether any liability of the Loan Parties’ and their Subsidiaries in
connection with such actions, suits, or proceedings is covered by insurance.




     4.8. Compliance with Laws.



          No Loan Party nor any of its Subsidiaries (a) is in violation of any applicable laws, rules,
regulations, executive orders, or codes (including Environmental Laws) that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Change, or (b) is subject
to or in default with respect to any final judgments, writs, injunctions, decrees, rules or
regulations of any court or any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse Change.




     4.9. No Material Adverse Change.



          All historical financial statements relating to the Loan Parties and their Subsidiaries that
have been delivered by a Loan Party to Agent have been prepared in accordance with GAAP (except, in
the case of unaudited financial statements, (i) for the lack of footnotes, (ii) with respect to
non-cash stock-based compensation and (iii) for being subject to year-end audit adjustments) and
present fairly in all material respects, the Loan Parties’ and their Subsidiaries’ consolidated
financial condition as of the date thereof and results of operations for the period then ended.
Since December 31, 2008, no event, circumstance, or change has occurred that has or could
reasonably be expected to result in a Material Adverse Change.







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     4.10. Fraudulent Transfer.



          (a) Each Loan Party is Solvent.




          (b) No transfer of property is being made by any Loan Party and no obligation is being
incurred by any Loan Party in connection with the transactions contemplated by this Agreement or
the other Loan Documents with the intent to hinder, delay, or defraud either present or future
creditors of such Loan Party.




     4.11. Employee Benefits.



          No Loan Party, none of their Subsidiaries, nor any of their ERISA Affiliates maintains or
contributes to any Benefit Plan.




     4.12. Environmental Condition.



          Except as set forth on Schedule 4.12, (a) to Borrower’s knowledge, no Loan Party’s or
its Subsidiaries’ properties or assets has ever been used by a Loan Party, its Subsidiaries, or by
previous owners or operators in the disposal of, or to produce, store, handle, treat, release, or
transport, any Hazardous Materials, where such disposal, production, storage, handling, treatment,
release or transport was in violation, in any material respect, of any applicable Environmental
Law, (b) to Borrower’s knowledge, no Loan Party’s or its Subsidiaries’ properties or assets has
ever been designated or identified in any manner pursuant to any environmental protection statute
as a Hazardous Materials disposal site, (c) no Loan Party nor any of its Subsidiaries has received
notice that a Lien arising under any Environmental Law has attached to any revenues or to any Real
Property owned or operated by a Loan Party or its Subsidiaries, and (d) no Loan Party nor any of
its Subsidiaries nor any of their respective facilities or operations is subject to any outstanding
written order, consent decree, or settlement agreement with any Person relating to any
Environmental Law or Environmental Liability that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Change.




     4.13. Intellectual Property.



          Each Loan Party and its Subsidiaries own, or hold licenses in, all trademarks, trade names,
copyrights, patents, and licenses that are necessary to the conduct of its business as currently
conducted, and attached hereto as Schedule 4.13 (as updated pursuant to the provisions of
the Security Agreement from time to time) is a true, correct, and complete listing of all material
trademarks, trade names, registered copyrights, patents, and licenses as to which Borrower or one
of its Subsidiaries is the owner or is an exclusive licensee.




     4.14. Leases.



          Each Loan Party and its Subsidiaries enjoy peaceful and undisturbed possession under all
leases material to their business and to which they are parties or under which they are operating,
and, subject to Permitted Protests, all of such material leases are valid and subsisting and no
material default by the applicable Loan Party or its Subsidiaries exists under any of them.




     4.15. Deposit Accounts and Securities Accounts.



          Set forth on Schedule 4.15 (as updated pursuant to the provisions of the Security
Agreement from time to time) is a listing of all of the Loan Parties’ and their Subsidiaries’
Deposit Accounts and Securities Accounts, including, with respect to each bank or securities
intermediary (a) the name and address of such Person, and (b) the account numbers of the Deposit
Accounts or Securities Accounts maintained with such Person.







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     4.16. Complete Disclosure.



          All factual information (taken as a whole) furnished by or on behalf of a Loan Party or its
Subsidiaries in writing to Agent or any Lender (including all information contained in the
Schedules hereto or in the other Loan Documents) for purposes of or in connection with this
Agreement, the other Loan Documents, or any transaction contemplated herein or therein is, and all
other such factual information (taken as a whole) hereafter furnished by or on behalf of a Loan
Party or its Subsidiaries in writing to Agent or any Lender will be, true and accurate, in all
material respects, on the date as of which such information is dated or certified and not
incomplete by omitting to state any fact necessary to make such information (taken as a whole) not
misleading in any material respect at such time in light of the circumstances under which such
information was provided. On the Closing Date, the Projections that were delivered to Agent on
July 10, 2009 (and were accepted by Agent) represent, and as of the date on which any other
Projections are delivered to Agent, such additional Projections represent Borrower’s good faith
estimate of the Loan Parties’ and their Subsidiaries future performance for the periods covered
thereby based upon assumptions believed by Borrower to be reasonable at the time of the delivery
thereof to Agent (it being understood that such Projections are subject to uncertainties and
contingencies, many of which are beyond the control of the Loan Parties and their Subsidiaries and
no assurances can be given that such Projections will be realized).




     4.17. Material Contracts.



          Set forth on Schedule 4.17 (as updated from time to time) is a reasonably detailed
description of the Material Contracts of each Loan Party and its Subsidiaries; provided,
however, that Borrower may amend Schedule 4.17 to add additional Material Contracts
so long as such amendment occurs by written notice to Agent no later than the time that Borrower
next provides its quarterly financial statements pursuant to Section 5.1. Except for
matters which, either individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Change, each Material Contract (other than those that have expired at the end
of their normal terms) (a) is in full force and effect and is binding upon and enforceable against
the applicable Loan Party or its Subsidiary 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 and, to the best of Borrower’s knowledge, each other Person
that is a party thereto in accordance with its terms, (b) has not been otherwise amended or
modified (other than amendments or modifications permitted by Section 6.7(b)), and (c) is
not in default due to the action or inaction of the applicable Loan Party or its Subsidiary.




     4.18. Patriot Act.



          To the extent applicable, each Loan Party is in compliance, in all material respects, with the
(a) Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of
the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other
enabling legislation or executive order relating thereto, and (b) Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of
2001) (the “Patriot Act”). No part of the proceeds of the loans made hereunder will be
used, directly or indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or anyone else acting in an
official capacity, in order to obtain, retain or direct business or obtain any improper advantage,
in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.




     4.19. Indebtedness.



          Set forth on Schedule 4.19 is a true and complete list of all Indebtedness of each
Loan Party and each of its Subsidiaries outstanding immediately prior to the Closing Date that is
to remain outstanding after the Closing Date and such Schedule accurately sets forth the aggregate
principal amount of such Indebtedness as of the Closing Date.







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     4.20. Payment of Taxes.



          Except as otherwise permitted under Section 5.5, all tax returns and reports of each
Loan Party and its Subsidiaries required to be filed by any of them have been timely filed (taking
into account valid extensions), and all taxes shown on such tax returns to be due and payable and
all assessments, fees and other governmental charges upon a Loan Party and its Subsidiaries and
upon their respective assets, income, businesses and franchises that are due and payable have been
paid when due and payable. Each Loan Party and each of its Subsidiaries have made adequate
provision in accordance with GAAP for all taxes not yet due and payable. Borrower knows of no
proposed tax assessment against a Loan Party or any of its Subsidiaries that is not being actively
contested by such Loan Party or such Subsidiary diligently, in good faith, and by appropriate
proceedings; provided such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefor. No Loan Party nor any
of its Subsidiaries has ever been a party to any understanding or arrangement constituting a “tax
shelter” within the meaning of Section 6662(d)(2)(C)(iii) of the IRC or within the meaning of
Section 6111(c) or Section 6111(d) of the IRC as in effect immediately prior to the enactment of
the American Jobs Creation Act of 2004, or has ever “participated” in a “reportable transaction”
within the meaning of Treasury Regulation Section 1.6011-4, except as would not be reasonably
expected to, individually or in the aggregate, result in a Material Adverse Change.




     4.21. Margin Stock.



          No Loan Party nor any of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or carrying any
Margin Stock. No part of the proceeds of the loans made to Borrower will be used to purchase or
carry any such Margin Stock or to extend credit to others for the purpose of purchasing or carrying
any such margin stock or for any purpose that violates, or is inconsistent with, the provisions of
Regulation T, U or X of said Board of Governors.




     4.22. Governmental Regulation.



          No Loan Party nor any of its Subsidiaries is subject to regulation under the Federal Power Act
or the Investment Company Act of 1940 or under any other federal or state statute or regulation
which may limit its ability to incur Indebtedness or which may otherwise render all or any portion
of the Obligations unenforceable. No Loan Party nor any of its Subsidiaries is a “registered
investment company” or a company “controlled” by a “registered investment company” or a “principal
underwriter” of a “registered investment company” as such terms are defined in the Investment
Company Act of 1940.




     4.23. OFAC.



          No Loan Party nor any of its Subsidiaries is in violation of any of the country or list based
economic and trade sanctions administered and enforced by OFAC. No Loan Party nor any of its
Subsidiaries (a) is a Sanctioned Person or a Sanctioned Entity, (b) has more than 10% of its assets
located in Sanctioned Entities, or (c) derives more than 10% of its revenues from investments in,
or transactions with Sanctioned Persons or Sanctioned Entities. The proceeds of any Advance or of
the Term Loan will not be used to fund any operations in, finance any investments or activities in,
or make any payments to, a Sanctioned Person or a Sanctioned Entity.




     4.24. Employee and Labor Matters.



          There is (i) no unfair labor practice complaint pending or, to the knowledge of Borrower,
threatened against Borrower or its Subsidiaries before any Governmental Authority and no grievance
or arbitration proceeding pending or threatened against Borrower or its Subsidiaries which arises
out of or under any collective bargaining agreement, (ii) no strike, labor dispute, slowdown,
stoppage or similar action or grievance pending or threatened against Borrower or its Subsidiaries,
or (iii) to the knowledge of Borrower, no union representation question existing with respect to
the employees of Borrower or its Subsidiaries and no






-26-









 







union organizing activity taking place with respect to any of the employees of Borrower or its
Subsidiaries. None of Borrower or its Subsidiaries has incurred any liability or obligation under
the Worker Adjustment and Retraining Notification Act or similar state law, which remains unpaid or
unsatisfied, except as could not reasonably be expected to result in a Material Adverse Effect.
The hours worked and payments made to employees of Borrower have not been in violation of the Fair
Labor Standards Act or any other applicable legal requirements, except to the extent such
violations could not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect. All material payments due from Borrower or its Subsidiaries on account of
wages and employee health and welfare insurance and other benefits have been paid or accrued as a
liability on the books of Borrower, except where the failure to do so could not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.




     4.25. Location of Equipment.



          The Equipment (other than (i) vehicles or Equipment out for repair and (ii) other Equipment in
the hands of employees or consultants in the ordinary course of business having a value of less
than $250,000 in the aggregate, including, without limitation, laptop computers) of the Loan
Parties and their Subsidiaries are not stored with a bailee, warehouseman, or similar party and are
located only at, or in-transit between, the locations identified on Schedule 4.25 (as such
Schedule may be updated pursuant to Section 5.15). Without limiting the forgoing,
Schedule 4.25 (as such Schedule may be updated pursuant to Section 5.15) lists the
identity and location of each co-location facility and other data center used in connection with a
Loan Party’s business and the Persons having control over such co-location facility or other data
centers.




     4.26. Inactive Subsidiaries.



          Neither StarFire Media, Inc. nor Credit Interfaces, Inc. has any material liabilities (other
than the liabilities arising under the Loan Documents), owns any material assets or engages in any
operations or business.




     4.27. Existing Obligations Pertaining to Acquisitions.



          Set forth on Schedule 4.27 is a true and complete list of all obligations, contingent
or otherwise, owing by any Loan Party pursuant to any Acquisition consummated prior to the Closing
Date, including without limitation any Earn-outs, holdbacks and principal payments in respect of
Indebtedness, and such Schedule accurately sets forth the aggregate amount of such obligation owing
as of the Closing Date.




5. AFFIRMATIVE COVENANTS.



          Borrower covenants and agrees that, until termination of all of the Commitments and
indefeasible payment in full of the Obligations, the Loan Parties shall and shall cause each of
their Subsidiaries to comply with each of the following:




     5.1. Financial Statements, Reports, Certificates.



          Deliver to Agent, with copies to each Lender, each of the financial statements, reports, and
other items set forth on Schedule 5.1 at the times specified therein. In addition,
Borrower agrees that no Subsidiary of a Loan Party will have a fiscal year different from that of
Borrower, except that RealPage India Private Limited has a fiscal year end of March 31. In
addition, Borrower agrees to maintain a system of accounting that enables Borrower to produce
financial statements in accordance with GAAP. Each Loan Party shall also (a) keep a reporting
system that shows all additions, sales, claims, returns, and allowances with respect to its and its
Subsidiaries’ sales, and (b) maintain its billing systems/practices as approved by Agent prior to
the Closing Date and shall only make material modifications thereto with notice to, and with the
consent of, Agent; provided Agent’s consent shall not be required with respect to modifications
made to consolidate billing systems/practices following consummation of a Permitted Acquisition or
an Acquisition consummated prior to the Closing Date or to improve or unify billing systems.







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     5.2. Collateral Reporting.



          Provide Agent (and if so requested by Agent, with copies for each Lender) with each of the
reports set forth on Schedule 5.2 at the times specified therein.




     5.3. Existence.



          Except as otherwise permitted under Section 6.3, at all times maintain and preserve in
full force and effect its existence (including being in good standing in its jurisdiction of
organization) and all rights and franchises, licenses and permits material to its business;
provided that no Loan Party or any of its Subsidiaries shall be required to preserve any
such right or franchise, licenses or permits if such Person’s board of directors (or similar
governing body) shall determine that the preservation thereof is no longer desirable in the conduct
of the business of such Person and that the loss thereof could not reasonably be expected to result
in a Material Adverse Change.




     5.4. Maintenance of Properties.



          Maintain and preserve all of its assets that are necessary or useful in the proper conduct of
its business in good working order and condition, ordinary wear, tear, and casualty excepted and
Permitted Dispositions excepted, and comply with the provisions of all leases to which it is a
party as lessee, so as to prevent the loss or forfeiture thereof, unless such provisions are the
subject of a Permitted Protest, except, in each case, where the failure to do so could not
reasonably be expected to result in a Material Adverse Change.




     5.5. Taxes.



          Cause all assessments and taxes imposed, levied, or assessed against any Loan Party or its
Subsidiaries, or any of their respective assets or in respect of any of its income, businesses, or
franchises to be paid in full, before delinquency or before the expiration of any extension period,
except to the extent that (i) the validity of such assessment or tax shall be the subject of a
Permitted Protest and so long as, in the case of an assessment or tax that has or may become a Lien
against any of the Collateral, such contest proceedings conclusively operate to stay the sale of
any portion of the Collateral to satisfy such assessment or tax or (ii) the aggregate amount of all
such unpaid tax or assessment payments does not exceed, at any one time, $25,000. Borrower will
and will cause each of its Subsidiaries to make timely payment or deposit of all tax payments and
withholding taxes required of it and them by applicable laws, including those laws concerning
F.I.C.A., F.U.T.A., state disability, and local, state, and federal income taxes, except to the
extent that the aggregate amount of all such unpaid tax payments and withholding taxes does not
exceed, at any one time, $25,000, and will, upon request, furnish Agent with proof reasonably
satisfactory to Agent indicating that Borrower and its Subsidiaries have made such payments or
deposits.




     5.6. Insurance.



          At Borrower’s expense, maintain insurance respecting each of the Loan Parties’ and their
Subsidiaries’ assets wherever located, covering loss or damage by fire, theft, explosion, and all
other hazards and risks as ordinarily are insured against by other Persons engaged in the same or
similar businesses. Borrower also shall maintain (with respect to each of the Loan Parties and
their Subsidiaries) business interruption, general liability, product liability insurance,
director’s and officer’s liability insurance, fiduciary liability insurance, and employment
practices liability insurance, as well as insurance against larceny, embezzlement, and criminal
misappropriation. All such policies of insurance shall be with responsible and reputable insurance
companies acceptable to Agent and in such amounts as is carried generally in accordance with sound
business practice by companies in similar businesses similarly situated and located and in any
event in amount, adequacy and scope reasonably satisfactory to Agent. All property insurance
policies covering the Collateral are to be made payable to Agent for the benefit of Agent and the
Lenders, as their interests may appear, in case of loss, pursuant to a standard loss payable
endorsement with a standard non contributory “lender” or “secured party” clause and are to contain
such other provisions as Agent may






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reasonably require to fully protect the Lenders’ interest in the Collateral and to any
payments to be made under such policies. All certificates of property and general liability
insurance are to be delivered to Agent, with the loss payable (but only in respect of Collateral)
and additional insured endorsements in favor of Agent and shall provide for not less than 30 days
(10 days in the case of non-payment) prior written notice to Agent of the exercise of any right of
cancellation. If Borrower fails to maintain such insurance, Agent may arrange for such insurance,
but at Borrower’s expense and without any responsibility on Agent’s part for obtaining the
insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection
of claims. Borrower shall give Agent prompt notice of any loss exceeding $250,000 covered by its
casualty or business interruption insurance. Upon the occurrence and during the continuance of an
Event of Default, Agent shall have the sole right to file claims under any property and general
liability insurance policies in respect of the Collateral, to receive, receipt and give acquittance
for any payments that may be payable thereunder, and to execute any and all endorsements, receipts,
releases, assignments, reassignments or other documents that may be necessary to effect the
collection, compromise or settlement of any claims under any such insurance policies. If no Event
of Default exists, Borrower shall have the sole right to file claims under any insurance policies,
to receive, receipt and give acquittance for any payments that may be payable thereunder, and to
execute any and all endorsements, receipts, releases, assignments, reassignments or other documents
that may be necessary to effect the collection, compromise or settlement of any claims under any
such insurance policies. As of the Closing Date, Agent acknowledges that the insurance maintained
by Loan Parties as of the Closing Date satisfies this Section 5.6.




     5.7. Inspection.



          Permit Agent, each Lender and each of their duly authorized representatives or agents to visit
any of its properties and inspect any of its assets or books and records, to conduct appraisals and
valuations, to examine and make copies of its books and records, and to discuss its affairs,
finances, and accounts with, and to be advised as to the same by, its officers and employees at
such reasonable intervals as Agent and each Lender may designate during Borrower’s regular business
hours and, so long as no Default or Event of Default exists, with reasonable prior notice to
Borrower; provided that any such visit or inspection shall be subject to reasonable data
security restrictions imposed by Borrower that are customary in Borrower’s industry.




     5.8. Compliance with Laws.



          Comply with the requirements of all applicable laws, rules, regulations, and orders of any
Governmental Authority, other than laws, rules, regulations, and orders the non-compliance with
which, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Change.




     5.9. Environmental.



          (a) Keep any property either owned or operated by Borrower or its Subsidiaries free of any
Environmental Liens or post bonds or other financial assurances sufficient to satisfy the
obligations or liability evidenced by such Environmental Liens,




          (b) comply, in all material respects, with Environmental Laws and provide to Agent
documentation of such compliance which Agent reasonably requests,




          (c) promptly notify Agent of any release of which Borrower has knowledge of a Hazardous
Material in any reportable quantity from or onto property owned or operated by Borrower or its
Subsidiaries and take any Remedial Actions required to abate said release or otherwise to come into
compliance, in all material respects, with applicable Environmental Law, and




          (d) promptly, but in any event within 5 Business Days of its receipt thereof, provide Agent
with written notice of any of the following: (i) notice that an Environmental Lien has been filed
against any of the real or personal property of Borrower or its Subsidiaries, (ii) commencement of
any Environmental Action or notice that an Environmental Action will be filed against Borrower or
its Subsidiaries, and






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(iii) notice of a violation, citation, or other administrative order which could reasonably be
expected to result in a Material Adverse Change.




     5.10. Disclosure Updates.



          Promptly and in no event later than 5 Business Days after obtaining knowledge thereof, notify
Agent if any written information, exhibit, or report furnished to the Lender Group contained, at
the time it was furnished, any untrue statement of a material fact or omitted to state any material
fact necessary to make the statements contained therein not misleading in light of the
circumstances in which made. The foregoing to the contrary notwithstanding, any notification
pursuant to the foregoing provision will not cure or remedy the effect of the prior untrue
statement of a material fact or omission of any material fact nor shall any such notification have
the effect of amending or modifying this Agreement or any of the Schedules hereto.




     5.11. Formation of Subsidiaries.



          At the time that any Loan Party forms any direct or indirect Subsidiary or acquires any direct
or indirect Subsidiary after the Closing Date, such Loan Party shall (a) within 10 days of such
formation or acquisition (or such later date as permitted by Agent in its sole discretion) cause
any such new Subsidiary to provide to Agent a guaranty of the Obligations, together with such other
security documents (including mortgages with respect to any Real Property owned in fee of such new
Subsidiary with a fair market value of at least $500,000), as well as appropriate financing
statements (and with respect to all property subject to a mortgage, fixture filings), all in form
and substance reasonably satisfactory to Agent (including being sufficient to grant Agent a first
priority Lien (subject to Permitted Liens) in and to the assets of such newly formed or acquired
Subsidiary to secure the guaranty of the Obligations); provided that such guaranty, and
such other security documents shall not be required to be provided to Agent with respect to any
Subsidiary of Borrower that is a CFC if providing such documents would result in adverse tax
consequences, is illegal under applicable law or the costs to the Loan Parties of providing such
Guaranty, executing any security documents or perfecting the security interests created thereby are
unreasonably excessive (as determined by Agent in consultation with Borrower) in relation to the
benefits of Agent and the Lenders of the security or guarantee afforded thereby, (b) within 30 days
of such formation or acquisition (or such later date as permitted by Agent in its sole discretion)
provide to Agent a pledge agreement and appropriate certificates and powers or financing
statements, hypothecating all of the direct or beneficial ownership interest in such new Subsidiary
reasonably satisfactory to Agent to secure the Obligations; provided that only 65% of the
total outstanding voting Stock of any first tier Subsidiary of Borrower that is a CFC and none of
the total outstanding voting Stock of any other Subsidiary of such CFC shall be required to be
pledged if hypothecating a greater amount would result in adverse tax consequences, is illegal
under applicable law or the costs to the Loan Parties of providing such pledge or perfecting the
security interests created thereby are unreasonably excessive (as determined by Agent in
consultation with Borrower) in relation to the benefits of Agent and the Lenders of the security or
guarantee afforded thereby (which pledge, if reasonably requested by Agent, shall be governed by
the laws of the jurisdiction of such Subsidiary), and (c) within 10 days of such formation or
acquisition (or such later date as permitted by Agent in its sole discretion) provide to Agent all
other documentation, including one or more opinions of counsel reasonably satisfactory to Agent,
which in its opinion is appropriate with respect to the execution and delivery of the applicable
documentation referred to above (including policies of title insurance or other documentation with
respect to all Real Property owned in fee and subject to a mortgage). Any document, agreement, or
instrument executed or issued pursuant to this Section 5.11 shall be a Loan Document.
Notwithstanding anything to the contrary contained in the Loan Documents, in no event shall
RealPage Payment Processing be required to become a Guarantor or to provide any security for the
Obligations, nor shall Borrower be required to pledge any Stock of RealPage Payment Processing.




     5.12. Further Assurances.



          At any time upon the reasonable request of Agent, execute or deliver to Agent any and all
financing statements, fixture filings, security agreements, pledges, assignments, endorsements of
certificates of title, mortgages, deeds of trust, opinions of counsel, and all other documents
(collectively, the “Additional






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Documents”) that Agent may reasonably request in form and substance reasonably
satisfactory to Agent, to create, perfect, and continue perfected or to better perfect Agent’s
Liens in all of the assets of Borrower and its Subsidiaries (whether now owned or hereafter arising
or acquired, tangible or intangible, real or personal), to create and perfect Liens in favor of
Agent in any Real Property acquired by Borrower or its Subsidiaries after the Closing Date with a
fair market value in excess of $500,000, and in order to fully consummate all of the transactions
contemplated hereby and under the other Loan Documents; provided that the foregoing shall
not apply to any Subsidiary of Borrower that is a CFC if providing such documents would result in
adverse tax consequences, is illegal under applicable law or the costs to the Loan Parties of
providing such documents are unreasonably excessive (as determined by Agent in consultation with
Borrower) in relation to the benefits of Agent and the Lenders of the benefits afforded thereby.
To the maximum extent permitted by applicable law, Borrower authorizes Agent to execute any such
Additional Documents in the applicable Loan Party’s or its Subsidiary’s name, as applicable, solely
to perfect Agent’s security interest and authorizes Agent to file such executed Additional
Documents in any appropriate filing office. In furtherance and not in limitation of the foregoing,
each Loan Party shall take such actions as Agent may reasonably request from time to time to ensure
that the Obligations are guarantied by the Guarantors and are secured by substantially all of the
assets of Borrower and its Subsidiaries and all of the outstanding capital Stock of Borrower’s
Subsidiaries (subject to limitations contained in the Loan Documents with respect to CFCs).




     5.13. Lender Meetings.



          Within 90 days after the close of each fiscal year of Borrower, at the request of Agent or of
the Required Lenders and upon reasonable prior notice, hold a meeting (at a mutually agreeable
location and time or, at the option of Agent, by conference call) with all Lenders who choose to
attend such meeting at which meeting shall be reviewed the financial results of the previous fiscal
year and the financial condition of Borrower and its Subsidiaries and the projections presented for
the current fiscal year of Borrower.




     5.14. Material Contracts.



          Contemporaneously with the delivery of each Compliance Certificate pursuant hereto, provide
Agent with copies of (a) each Material Contract entered into since the delivery of the previous
Compliance Certificate, and (b) each material amendment or modification of any Material Contract
entered into since the delivery of the previous Compliance Certificate.




     5.15. Location of Tangible Collateral.



          Keep each Loan Parties’ and its Domestic Subsidiaries’ tangible Collateral (other than (i)
vehicles and Equipment out for repair and (ii) other Equipment in the hands of employees or
consultants in the ordinary course of business having a value of less than $250,000 in the
aggregate, including, without limitation, laptop computers)) only at the locations identified on
Schedule 4.25 and their chief executive offices only at the locations identified on
Schedule 4.6(b); provided, however, that Borrower may amend Schedule
4.25 or Schedule 4.6(b) so long as such amendment occurs by written notice to Agent not
less than 10 days prior to the date on which such tangible Collateral is moved to such new location
or such chief executive office is relocated and so long as such new location is within the
continental United States, and so long as, at the time of such written notification, Borrower or
such Domestic Subsidiary provides Agent a Collateral Access Agreement with respect thereto.




     5.16. Assignable Material Contracts.



          Use commercially reasonable efforts to ensure that any Material Contract entered into after
the Closing Date by Borrower or one of its Subsidiaries that generates or, by its terms, will
generate revenue, permits the assignment of such agreement (and all rights of Borrower or such
Subsidiary, as applicable, thereunder) to Borrower’s or such Subsidiary’s lenders or an agent for
any lenders (and any transferees of such lenders or such agent, as applicable).







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     5.17. Post Closing Matters.



          (a) Within 15 Business Days after the Closing Date (or such later date as permitted by Agent
in its sole discretion), deliver to Agent evidence in form and substance satisfactory to Agent of
federal registration of all copyrights constituting the Required Library along with a fully
executed Copyright Security Agreement with respect to such copyrights in the form attached as
Exhibit A to the Security Agreement.




          (b) Within 30 days after the Closing Date (or such later date as permitted by Agent in its
sole discretion), Borrower shall have satisfied the obligations outstanding under the tax liens on
file against Borrower in the State of Ohio in the aggregate amount of $12,713.96 and obtained the
termination of such tax liens.




          (c) Within 10 Business Days after the Closing Date (or such later date as permitted by Agent
in its sole discretion), Borrower shall have delivered to Agent certificates of status with respect
to (i) OpsTechnology, Inc. issued by the appropriate officer of the States of Colorado, Florida and
North Carolina and (ii) MultiFamily Internet Ventures, LLC issued by the appropriate officer of the
States of Maryland and Utah, each dated within 30 days of the Closing Date.




          (d) Within 30 days after the Closing Date (or such later date as permitted by Agent in its
sole discretion), Borrower shall have updated the federal records to the extent necessary to
reflect proper ownership by Borrower of the registered copyright that are currently registered in
the name of Rent Roll, Inc. along with a fully executed Copyright Security Agreement with respect
to such copyrights in the form attached as Exhibit A to the Security Agreement.




6. NEGATIVE COVENANTS.




          Borrower covenants and agrees that, until termination of all of the Commitments and
indefeasible payment in full of the Obligations, the Loan Parties will not and will not permit any
of their Subsidiaries to do any of the following:




     6.1. Indebtedness.



          Create, incur, assume, suffer to exist, guarantee, or otherwise become or remain, directly or
indirectly, liable with respect to any Indebtedness, except for Permitted Indebtedness.




     6.2. Liens.



          Create, incur, assume, or suffer to exist, directly or indirectly, any Lien on or with respect
to any of its assets, of any kind, whether now owned or hereafter acquired, or any income or
profits therefrom, except for Permitted Liens.




     6.3. Restrictions on Fundamental Changes.



          (a) Other than in order to consummate a Permitted Acquisition, enter into any merger,
consolidation, reorganization, or recapitalization, or reclassify its Stock, except for (i) any
merger between Loan Parties, provided that Borrower must be the surviving entity of any
such merger to which it is a party, (ii) any merger between Loan Parties and Subsidiaries of
Borrower that are not Loan Parties so long as such Loan Party is the surviving entity of any such
merger, (iii) any merger between Subsidiaries of Borrower that are not Loan Parties and (iv)
entering into any such transaction provided that a condition to the consummation of such
transaction is obtaining all consents required under this Agreement or paying in full in cash all
of the Obligations,




          (b) Liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution), except
for (i) the liquidation or dissolution of non-operating Subsidiaries of Borrower with nominal
assets and






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nominal liabilities, (ii) the liquidation or dissolution of a Loan Party (other than Borrower)
or any of its wholly-owned Subsidiaries so long as all of the assets (including any interest in any
Stock) of such liquidating or dissolving Loan Party or Subsidiary are transferred to a Loan Party
that is not liquidating or dissolving, or (iii) the liquidation or dissolution of a Subsidiary of
Borrower that is not a Loan Party (other than any such Subsidiary the Stock of which (or any
portion thereof) is subject to a Lien in favor of Agent) so long as all of the assets of such
liquidating or dissolving Subsidiary are transferred to a Subsidiary of Borrower that is not
liquidating or dissolving, or




          (c) Suspend or go out of a substantial portion of its or their business, except as permitted
pursuant to clauses (a) or (b) above or in connection with the transactions permitted pursuant to
Section 6.4.




          (d) Create or establish any Subsidiary unless such Subsidiary (A) is owned by Borrower or a
Subsidiary of Borrower, (B) is organized under the laws of (i) a state of the United States or the
District of Columbia or (ii) Canada or any province thereof and (C) provides to Agent a guaranty of
the Obligations, together with such other security documents and financing statements, all in form
and substance reasonably satisfactory to Agent, to grant Agent a first priority Lien (subject to
Permitted Liens) in and to the assets of such Subsidiary to secure the guaranty of the Obligations.




     6.4. Disposal of Assets.



          Other than Permitted Dispositions, Permitted Investments, or transactions expressly permitted
by Sections 6.3 and 6.11, convey, sell, lease, license, assign, transfer, or
otherwise dispose of (or enter into an agreement to convey, sell, lease, license, assign, transfer,
or otherwise dispose of) any of Borrower’s or its Subsidiaries assets; provided that Borrower may
enter into any such agreement so long as a condition to the consummation of such transaction is
obtaining all consents required under this Agreement or paying in full in cash all of the
Obligations.




     6.5. Change Name.



          Change Borrower’s or any of its Subsidiaries’ name, organizational identification number,
state of organization or organizational identity; provided, however, that Borrower
or any of its Subsidiaries may change their names upon at least 10 days prior written notice to
Agent of such change.




     6.6. Nature of Business.



          Make any change in the nature of its or their business as described in Schedule 6.6 or
acquire any properties or assets that are not reasonably related to the conduct of such business
activities; provided that Borrower and its Subsidiaries may engage in any business that is
reasonably related or ancillary to its or their business.




     6.7. Prepayments and Amendments.



          (a) Except in connection with Refinancing Indebtedness permitted by Section 6.1,




               (i) optionally prepay, redeem, defease, purchase, or otherwise acquire any Indebtedness of
Borrower or its Subsidiaries, other than (A) the Obligations in accordance with this Agreement, (B)
Permitted Intercompany Advances, (C) the Preferred Shareholder Notes as provided in subclause (iii)
below, (D) the Senior Subordinated Debt as provided in subclause (iv) below, (E) the RealHound
Payment as provided in subclause (v) below and (F) the OpsTechnology Payment as provided in
subclause (vi) below,



               (ii) make any payment on account of Indebtedness that has been contractually subordinated in
right of payment if such payment is not permitted at such time under the subordination terms and
conditions,



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               (iii) make any payment on account of the Preferred Shareholder Notes other than payments or
prepayments made solely with the proceeds of the issuance of Stock of Borrower; provided
that, so long as no Event of Default shall have occurred and be continuing or would result
therefrom and Borrower has Excess Availability plus Qualified Cash after giving effect to such
payment of the Preferred Shareholder Note Excess Availability Amount, Borrower may make payments in
respect of quarterly interest and principal payments on the Preferred Shareholder Notes in an
aggregate amount during any fiscal quarter of Borrower not to exceed $1,000,000,



               (iv) make any payment on account of the Senior Subordinated Debt except in accordance with the
terms of the Senior Subordinated Debt Subordination Agreement,



               (v) make any payment on account of the RealHound Payment except regularly scheduled payments
in accordance with the terms of the RealHound Asset Purchase Agreement, or



               (vi) make any payment on account of the OpsTechnology Payment except in accordance with the
terms of the OpsTechnology Agreement, or



          (b) Directly or indirectly, amend, modify, or change any of the terms or provisions of




               (i) the RealHound Asset Purchase Agreement or the OpsTechnology Agreement,



               (ii) any Material Contract except to the extent that such amendment, modification, alteration,
increase, or change could not, individually or in the aggregate, reasonably be expected to be
materially adverse to the interests of the Lenders,



               (iii) the Governing Documents of any Loan Party or any of its Subsidiaries if the effect
thereof, either individually or in the aggregate, could reasonably be expected to be materially
adverse to the interests of the Lenders,



               (iv) the Preferred Shareholder Notes other than in accordance with the terms of the Preferred
Shareholder Note Subordination Agreement, or



               (v) the Senior Subordinated Debt Documents other than in accordance with the terms of the
Senior Subordinated Debt Subordination Agreement.



     6.8. Change of Control.



          Cause, permit, or suffer, directly or indirectly, any Change of Control unless the Obligations
are paid in full in cash pursuant to Section 2.4(e)(vii).




     6.9. Restricted Junior Payments.



          Make any Restricted Junior Payment; provided, however, that so long as it is
permitted by law, and so long as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, (i) Borrower’s Subsidiaries may make distributions to any
Loan Party, (ii) Borrower may make distributions to former employees, officers, consultants or
directors (or any spouses, ex-spouses, or estates of any of the foregoing) on account of
redemptions of Stock of Borrower held by such Persons,
provided, however, that the
aggregate amount of such redemptions made by Borrower during the term of this Agreement does not
exceed $750,000 in the aggregate, (iii) Borrower may redeem the Preferred Stock to the extent
required by Section 5 of its Amended and Restated Certificate of Incorporation so long as Borrower
has delivered to Agent prior written notice of such redemption and the Obligations are paid in full
in cash pursuant to Section 2.4(e)(viii), (iv) Borrower may pay dividends in the form of
Preferred Shareholder Notes to the extent such Preferred Shareholder Notes are permitted to be
issued hereunder and (v) Borrower may make






-34-









 







distributions to its shareholders in accordance with Borrower’s Governing Documents in lieu of
issuing any fractional shares in the event of the conversion of the preferred stock of Borrower
held by such Persons into common stock of Borrower, provided, however, that the
aggregate amount of such distributions made by Borrower during any fiscal year of Borrower does not
exceed $25,000 in the aggregate.




     6.10. Accounting Methods.



          Modify or change its fiscal year or its method of accounting (other than as may be required to
conform to GAAP).




     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
$25,000 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 [***], [***],
[***] and [***] 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.




     6.12. Transactions with Affiliates.



          Directly or indirectly enter into or permit to exist any transaction with any Affiliate of
Borrower or any of its Subsidiaries except for:




          (a) transactions (other than the payment of management, consulting, monitoring, or advisory
fees) between Borrower or its Subsidiaries, on the one hand, and any Affiliate of Borrower or its
Subsidiaries, on the other hand, so long as such transactions (i) are fully disclosed to Agent
prior to the consummation thereof, if they involve one or more payments by Borrower or its
Subsidiaries in excess of $250,000 for any single transaction or series of related transactions,
and (ii) are no less favorable, taken as a whole, to Borrower or its Subsidiaries, as applicable,
than would be obtained in an arm’s length transaction with a non-Affiliate,




          (b) so long as it has been approved by Borrower’s Board of Directors in accordance with
applicable law, any indemnity provided for the benefit of directors of Borrower,




          (c) so long as it has been approved by Borrower’s Board of Directors, the payment of
reasonable fees, compensation, or employee benefit arrangements to employees, officers, and outside
directors of Borrower in the ordinary course of business and consistent with industry practice, and




          (d) transactions permitted by Section 6.3 or Section 6.9, any Permitted
Intercompany Advance or any payments between Borrower and its Subsidiaries made pursuant to
commercially reasonable transfer pricing or cost plus arrangements for tax purposes.







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Notwithstanding anything contained in the Loan Documents to the contrary, no Loan Party or any of
its Subsidiaries shall (A) make an Investment in, sell, lease, license, assign, contribute or
otherwise transfer any assets to, make any distributions or payments to, or otherwise engage in, or
enter into, any transaction with, RealPage Payment Processing, StarFire Media, Inc. or Credit
Interfaces, Inc., except for those transactions set forth on Schedule 6.12 or (B) incur any
Indebtedness owing to RealPage Payment Processing or RealPage India Private Limited unless such
Person agrees to subordinate such Indebtedness to the Obligations in a manner satisfactory to
Agent.




     6.13. Use of Proceeds.



          Use the proceeds of the Advances and the Term Loan for any purpose other than (a) on the
Closing Date, (i) to repay, in full, the outstanding principal, accrued interest, and accrued fees
and expenses owing under or in connection with the Existing Credit Agreement, and (ii) to pay
transactional fees, costs, and expenses incurred in connection with this Agreement, the other Loan
Documents, and the transactions contemplated hereby and thereby, and (b) thereafter, consistent
with the terms and conditions hereof, for its lawful and permitted purposes.





	7.	 	FINANCIAL COVENANTS.





          Borrower covenants and agrees that, until termination of all of the Commitments and payment in
full of the Obligations, Borrower will comply with each of the following financial covenants:




          (a) Fixed Charge Coverage Ratio. Have a Fixed Charge Coverage Ratio, measured on a month-end
basis, of at least the required amount set forth in the following table for the applicable period
set forth opposite thereto:




	 	 	 
	Applicable Ratio	 	Applicable Period
	1.225:1.00

	 	For the 3 month period ending September 30, 2009
	 
	 	 
	1.225:1.00

	 	For the 4 month period ending October 31, 2009
	 
	 	 
	1.225:1.00

	 	For the 5 month period ending November 30, 2009
	 
	 	 
	1.225:1.00

	 	For the 6 month period ending December 31, 2009
	 
	 	 
	1.225:1.00

	 	For the 7 month period ending January 31, 2010
	 
	 	 
	1.225:1.00

	 	For the 8 month period ending February 28, 2010
	 
	 	 
	1.225:1.00

	 	For the 9 month period ending March 31, 2010
	 
	 	 
	1.225:1.00

	 	For the 10 month period ending April 30, 2010
	 
	 	 
	1.225:1.00

	 	For the 11 month period ending May 31, 2010
	 
	 	 
	1.225:1.00

	 	For the 12 month period ending June 30, 2010 and for each
12-month period ending on the last day of a month
thereafter through and including August 31, 2010
	 
	 	 
	1.25:1.00

	 	For the 12 month period ending September 30, 2010 and for
each 12-month period ending on the last day of a month
thereafter






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; provided that for any month-end measurement period set forth above that is not the last
month of a fiscal quarter, Borrower shall not be required to comply with the foregoing covenant if
the Senior Leverage Ratio measured as of the last day of the then most recently ended fiscal
quarter is less than 1.75:1.00.




          (b) Senior Leverage Ratio. Have a Senior Leverage Ratio, measured on a month-end basis, of
not greater than the applicable ratio set forth in the following table for the applicable date set
forth opposite thereto:




	 	 	 
	Applicable Amount	 	Applicable Date
	2.25:1.00

	 	The last day of each month ending during the period from
and including September 30, 2009 and through and
including December 31, 2009
	 
	 	 
	2.00:1.00

	 	The last day of each month ending during the period from
and including March 31, 2010 and through and including
June 30, 2010
	 
	 	 
	1.85:1.00

	 	The last day of each month ending during the period from
and including September 30, 2010 and through and
including December 31, 2010
	 
	 	 
	1.60:1.00

	 	The last day of each month ending during the period from
and including March 31, 2011 and through and including
June 30, 2011
	 
	 	 
	1.35:1.00

	 	September 30, 2011 and the last day of each month ending
thereafter





; provided that for any month-end measurement period set forth above that is not the last
month of a fiscal quarter, Borrower shall not be required to comply with the foregoing covenant if
the Senior Leverage Ratio measured as of the last day of the then most recently ended fiscal
quarter is less than 1.75:1.00.




          (c) Capital Expenditures. Make Capital Expenditures (excluding the amount, if any, of Capital
Expenditures made with Net Cash Proceeds reinvested pursuant to the proviso in Section
2.4(e)(ii)) in any fiscal year in an amount less than or equal to, but not greater than, the
amount set forth in the following table for the applicable period:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fiscal Year 2009	 	Fiscal Year 2010	 	 	Fiscal Year 2011	 	 	Fiscal Year 2012	 
	$10,000,000
	 	$	12,000,000	 	 	$	13,200,000	 	 	$	14,400,000	 





;provided, however, that if the amount of the Capital Expenditures permitted to be
made in any fiscal year as set forth in the above table is greater than the actual amount of the
Capital Expenditures (excluding the amount, if any, of Capital Expenditures made with Net Cash
Proceeds reinvested pursuant to the proviso in Section 2.4(e)(ii)) actually made in such
fiscal year (such amount, the “Excess Amount”), then the lesser of (i) such Excess Amount
and (ii) 25% of the amount set forth in the above table for the succeeding fiscal year (such lesser
amount referred to as the “Carry-Over Amount”) may be carried forward to the next
succeeding fiscal year (the “Succeeding Fiscal Year”); provided further that the
Carry-Over Amount applicable to a particular Succeeding Fiscal Year may not be used in that fiscal
year until the amount permitted above to be expended in such fiscal year has first been used in
full and the Carry-Over Amount applicable to a particular Succeeding Fiscal Year may not be carried
forward to another fiscal year.







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8. EVENTS OF DEFAULT.




          Any one or more of the following events shall constitute an event of default (each, an
“Event of Default”) under this Agreement:




     8.1. If Borrower fails to pay when due and payable, or when declared due and payable pursuant
to the terms of the Loan Documents, (a) all or any portion of the Obligations consisting of
interest, fees, or charges due the Lender Group, reimbursement of Lender Group Expenses, or other
amounts (other than any portion thereof constituting principal) constituting Obligations (including
any portion thereof that accrues after the commencement of an Insolvency Proceeding, regardless of
whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), and
such failure continues for a period of 3 Business Days, or (b) all or any portion of the principal
of the Obligations;



     8.2. If any Loan Party or any of its Subsidiaries:



          (a) fails to perform or observe any covenant or other agreement contained in any of (i)
Sections 5.1, 5.2, 5.3 (solely if Borrower is not in good standing in its
jurisdiction of organization), 5.6, 5.7 (solely if Borrower refuses to allow Agent
or its representatives or agents to visit Borrower’s properties, inspect its assets or books or
records, examine and make copies of its books and records, or discuss Borrower’s affairs, finances,
and accounts with officers and employees of Borrower), 5.10, 5.11 or 5.17
of this Agreement, (ii) Sections 6.1 through 6.13 of this Agreement, (iii)
Section 7 of this Agreement, or (iv) Section 6 of the Security Agreement;




          (b) fails to perform or observe any covenant or other agreement contained in any of
Sections 5.3 (other than if Borrower is not in good standing in its jurisdiction of
organization), 5.4, 5.5, 5.8, 5.12, 5.13, 5.14 and
5.15 of this Agreement and such failure continues for a period of 10 days after the earlier
of (i) the date on which such failure shall first become known to any officer of Borrower or (ii)
the date on which written notice thereof is given to Borrower by Agent; or




          (c) fails to perform or observe any covenant or other agreement contained in this Agreement,
or in any of the other Loan Documents, in each case, other than any such covenant or agreement that
is the subject of another provision of this Section 8 (in which event such other provision
of this Section 8 shall govern), and such failure continues for a period of 30 days after
the earlier of (i) the date on which such failure shall first become known to any officer of
Borrower or (ii) the date on which written notice thereof is given to Borrower by Agent;




     8.3. If one or more judgments, orders, or awards for the payment of money involving an
aggregate amount of $250,000, or more (except to the extent fully covered by insurance pursuant to
which the insurer has accepted liability therefor in writing) is entered or filed against a Loan
Party or any of its Subsidiaries, or with respect to any of their respective assets, and either (a)
there is a period of 30 consecutive days at any time after the entry of any such judgment, order,
or award during which (1) the same is not discharged, or (2) a stay of enforcement thereof is not
in effect, or (b) enforcement proceedings are commenced upon such judgment, order, or award;



     8.4. If an Insolvency Proceeding is commenced by a Loan Party or any of its Subsidiaries;



     8.5. If an Insolvency Proceeding is commenced against a Loan Party or any of its Subsidiaries
and any of the following events occur: (a) such Loan Party or such Subsidiary consents to the
institution of such Insolvency Proceeding against it, (b) the petition commencing the Insolvency
Proceeding is not timely controverted, (c) the petition commencing the Insolvency Proceeding is not
dismissed within 60 calendar days of the date of the filing thereof, (d) an interim trustee is
appointed to take possession of all or any substantial portion of the properties or assets of, or
to operate all or any substantial portion of the business of, such Loan Party or its Subsidiary, or
(e) an order for relief shall have been issued or entered therein;



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     8.6. If a Loan Party or any of its Subsidiaries is enjoined, restrained, or in any way
prevented by court order from continuing to conduct all or any material part of its business
affairs;



     8.7. If there is a default under the Preferred Shareholder Notes (after giving effect to any
applicable grace or cure period); if there is a default under the Senior Subordinated Debt
Documents (after giving effect to any applicable grace or cure period); or if there is a default in
one or more agreements to which a Loan Party or any of its Subsidiaries is a party with one or more
third Persons relative to a Loan Party’s or any of its Subsidiaries’ Indebtedness involving an
aggregate amount of $250,000 or more, and such default (i) occurs at the final maturity of the
obligations thereunder, or (ii) results in a right by such third Person, irrespective of whether
exercised, to accelerate the maturity of such Loan Party’s or its Subsidiary’s obligations
thereunder;



     8.8. If any warranty, representation, statement, or Record made herein or in any other Loan
Document or delivered in writing to Agent or any Lender in connection with this Agreement or any
other Loan Document proves to be untrue in any material respect (except that such materiality
qualifier shall not be applicable to any representations and warranties that already are qualified
or modified by materiality in the text thereof) as of the date of issuance or making or deemed
making thereof;



     8.9. If the obligation of any Guarantor under the Guaranty is limited or terminated by
operation of law or by such Guarantor;



     8.10. If the Security Agreement or any other Loan Document that purports to create a Lien,
shall, for any reason, fail or cease to create a valid and perfected and, except to the extent
permitted by the terms hereof or thereof, first priority Lien on the Collateral covered thereby,
except (a) as a result of a disposition of the applicable Collateral in a transaction permitted
under this Agreement or (b) as the result of an action or failure to act on the part of Agent; or



     8.11. The validity or enforceability of any Loan Document shall at any time for any reason
(other than solely as the result of an action or failure to act on the part of Agent) be declared
to be null and void, or a proceeding shall be commenced by a Loan Party or its Subsidiaries, or by
any Governmental Authority having jurisdiction over a Loan Party or its Subsidiaries, seeking to
establish the invalidity or unenforceability thereof, or a Loan Party or its Subsidiaries shall
deny that such Loan Party or its Subsidiaries has any liability or obligation purported to be
created under any Loan Document.



9. RIGHTS AND REMEDIES.




     9.1. Rights and Remedies.



          Upon the occurrence and during the continuation of an Event of Default, Agent may, and, at the
instruction of the Required Lenders, shall, in each case by written notice to Borrower and in
addition to any other rights or remedies provided for hereunder or under any other Loan Document or
by applicable law, do any one or more of the following on behalf of the Lender Group:




          (a) declare the Obligations, whether evidenced by this Agreement or by any of the other Loan
Documents immediately due and payable, whereupon the same shall become and be immediately due and
payable, without presentment, demand, protest, or further notice or other requirements of any kind,
all of which are hereby expressly waived by Borrower; and




          (b) declare the Revolver Commitments terminated, whereupon the Revolver Commitments shall
immediately be terminated together with any obligation of any Lender hereunder to make Advances and
the obligation of the Issuing Lender to issue Letters of Credit.



The foregoing to the contrary notwithstanding, upon the occurrence of any Event of Default
described in Section 8.4 or Section 8.5, in addition to the remedies set forth
above, without any notice to Borrower or any





-39-











 




other Person or any act by the Lender Group, the Commitments shall automatically terminate and the
Obligations then outstanding, together with all accrued and unpaid interest thereon and all fees
and all other amounts due under this Agreement and the other Loan Documents, shall automatically
and immediately become due and payable, without presentment, demand, protest, or notice of any
kind, all of which are expressly waived by Borrower.




     9.2. Remedies Cumulative.



          The rights and remedies of the Lender Group under this Agreement, the other Loan Documents,
and all other agreements shall be cumulative. The Lender Group shall have all other rights and
remedies not inconsistent herewith as provided under the Code, by law, or in equity. No exercise
by the Lender Group of one right or remedy shall be deemed an election, and no waiver by the Lender
Group of any Event of Default shall be deemed a continuing waiver. No delay by the Lender Group
shall constitute a waiver, election, or acquiescence by it.



10. WAIVERS; INDEMNIFICATION.




     10.1. Demand; Protest; etc.



          Each Loan Party a party hereto waives demand, protest, notice of protest, notice of default or
dishonor, notice of payment and nonpayment, nonpayment at maturity, release, compromise,
settlement, extension, or renewal of documents, instruments, chattel paper, and guarantees at any
time held by the Lender Group on which such Loan Party may in any way be liable.




     10.2. The Lender Group’s Liability for Collateral.



          Borrower hereby agrees that: (a) so long as Agent complies with its obligations, if any,
under the Code, the Lender Group shall not in any way or manner be liable or responsible for:
(i) the safekeeping of the Collateral, (ii) any loss or damage thereto occurring or arising in any
manner or fashion from any cause, (iii) any diminution in the value thereof, or (iv) any act or
default of any carrier, warehouseman, bailee, forwarding agency, or other Person, and (b) all risk
of loss, damage, or destruction of the Collateral shall be borne by Borrower.




     10.3. Indemnification.



          Borrower shall pay, indemnify, defend, and hold the Agent-Related Persons, the Lender-Related
Persons, and each Participant (each, an “Indemnified Person”) harmless (to the fullest
extent permitted by law) from and against any and all claims, demands, suits, actions,
investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable
fees and disbursements of attorneys, experts, or consultants and all other costs and expenses
actually incurred in connection therewith or in connection with the enforcement of this
indemnification (as and when they are incurred and irrespective of whether suit is brought), at any
time asserted against, imposed upon, or incurred by any of them (a) in connection with or as a
result of or related to the execution and delivery (provided that Borrower shall not be liable for
costs and expenses (including attorneys fees) of any Lender (other than WFF) incurred in advising,
structuring, drafting, reviewing, administering or syndicating the Loan Documents), enforcement,
performance, or administration (including any restructuring or workout with respect hereto) of this
Agreement, any of the other Loan Documents, or the transactions contemplated hereby or thereby or
the monitoring of Borrower’s and its Subsidiaries’ compliance with the terms of the Loan Documents
(other than disputes solely between the Lenders), (b) with respect to any investigation,
litigation, or proceeding related to this Agreement, any other Loan Document, or the use of the
proceeds of the credit provided hereunder (irrespective of whether any Indemnified Person is a
party thereto), or any act, omission, event, or circumstance in any manner related thereto, and
(c) in connection with or arising out of any presence or release of Hazardous Materials at, on,
under, to or from any assets or properties owned, leased or operated by Borrower or any of its
Subsidiaries or any Environmental Actions, Environmental Liabilities or Remedial Actions related in
any way to any such






-40-









 







assets or properties of Borrower or any of its Subsidiaries (each and all of the foregoing,
the “Indemnified Liabilities”). The foregoing to the contrary notwithstanding, Borrower
shall have no obligation to any Indemnified Person under this Section 10.3 with respect to
any Indemnified Liability that a court of competent jurisdiction finally determines to have
resulted from the gross negligence or willful misconduct of such Indemnified Person or its
officers, directors, employees, attorneys, or agents. This provision shall survive the termination
of this Agreement and the repayment of the Obligations. If any Indemnified Person makes any
payment to any other Indemnified Person with respect to an Indemnified Liability as to which
Borrower was required to indemnify the Indemnified Person receiving such payment, the Indemnified
Person making such payment is entitled to be indemnified and reimbursed by Borrower with respect
thereto. WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL APPLY TO EACH INDEMNIFIED PERSON WITH
RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF ANY
NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON.



11. NOTICES.




          Unless otherwise provided in this Agreement, all notices or demands relating to this Agreement
or any other Loan Document shall be in writing and (except for financial statements and other
informational documents which may be sent by first-class mail, postage prepaid) shall be personally
delivered or sent by registered or certified mail (postage prepaid, return receipt requested),
overnight courier, electronic mail (at such email addresses as a party may designate in accordance
herewith), or telefacsimile. In the case of notices or demands to Borrower or Agent, as the case
may be, they shall be sent to the respective address set forth below:




	 	 	 
	If to Borrower:
	 	REALPAGE, INC.

	 	 	4000 International Parkway

	 	 	Carrollton, Texas 75007

	 	 	Attn: General Counsel

	 	 	Fax No. (972) 820-3932

	 	 	 

	with copies to:
	 	WILSON SONSINI GOODRICH & ROSATI, 

PROFESSIONAL CORPORATION

	 	 	900 South Capital of Texas Hwy.

	 	 	Las Cimas IV, Fifth Floor

	 	 	Austin, Texas 78746-5546

	 	 	Attn: Paul Tobias

	 	 	Fax No. (512) 338-5499

	 	 	 

	If to Agent:
	 	WELLS FARGO FOOTHILL, LLC

	 	 	2450 Colorado Ave., Suite 3000W

	 	 	Santa Monica, California 90404

	 	 	Attn: Technology Finance Division Manager

	 	 	Fax No. (350) 453-7413

	 	 	 

	with copies to:
	 	GOLDBERG KOHN BELL BLACK ROSENBLOOM 

& MORITZ, LTD.

	 	 	55 East Monroe Street, Suite 3300

	 	 	Chicago, Illinois 60603

	 	 	Attn: Gary Zussman, Esq.

	 	 	Fax No. (312) 332-2196







          Any party hereto may change the address at which they are to receive notices hereunder, by
notice in writing in the foregoing manner given to the other party. All notices or demands sent in
accordance with this Section 11, shall be deemed received on the earlier of the date of
actual receipt or 3 Business Days






-41-









 







after the deposit thereof in the mail; provided, that (a) notices sent by overnight
courier service shall be deemed to have been given when received, (b) notices by facsimile shall be
deemed to have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next Business Day
for the recipient) and (c) notices by electronic mail shall be deemed received upon the sender’s
receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested”
function, as available, return email or other written acknowledgment).



12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; REFERENCE PROVISION.




          (a) THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO
THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND
THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO
SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.




          (b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS 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.
BORROWER 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
12(b).




          (c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BORROWER 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 ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. BORROWER 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 AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.




          (d) 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.




     12.1. 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 Agreement
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






-42-









 







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 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.




     12.2. 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.



     12.3. 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
§



-43-









 




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.




     12.4. 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.



     12.5. 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 AGREEMENT OR THE OTHER LENDER DOCUMENTS.


13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.




     13.1. Assignments and Participations.



          (a) With the prior written consent of Borrower, which consent of Borrower shall not be
unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default
has occurred and is continuing and (2) in connection with an assignment to a Person that is a
Lender or an Affiliate (other than individuals) of a Lender and with the prior written consent of
Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall
not be required in connection with an assignment to a Person that is a Lender or an Affiliate
(other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees
(each, an “Assignee”; provided, however, that no Loan Party or Affiliate of
a Loan Party shall be permitted to become an Assignee) all or any portion of the Obligations, the
Commitments and the other rights and obligations of such Lender hereunder and under the other Loan
Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount
shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an
Affiliate of any Lender or (y) a group of new Lenders, each of which is an Affiliate of each other
or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all
such new Lenders is at least $5,000,000); provided, however, that Borrower and
Agent may continue to deal solely and directly with such Lender in connection with the interest so
assigned to an Assignee until (i) written notice of such assignment, together with payment
instructions, addresses, and related information with respect to the Assignee, have been given to
Borrower and Agent by such Lender and the Assignee, (ii) such Lender and its Assignee have
delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning
Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived
by Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a
processing fee in the amount of $3,500.




          (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower)
that it has received an executed Assignment and Acceptance and, if applicable, payment of the
required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and
(ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the
other Loan Documents have been assigned by it pursuant to






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such Assignment and Acceptance, relinquish its rights (except with respect to Section
10.3) and be released from any future obligations under this Agreement (and in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and
obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a
party hereto and thereto); provided, however, that nothing contained herein shall
release any assigning Lender from obligations that survive the termination of this Agreement,
including such assigning Lender’s obligations under Section 15 and Section 17.9(a).




          (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder
and the Assignee thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any
other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial condition of any Loan Party
or the performance or observance by any Loan Party of any of its obligations under this Agreement
or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has
received a copy of this Agreement, together with such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into such Assignment and
Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning
Lender or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to
exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent,
by the terms hereof and thereof, together with such powers as are reasonably incidental thereto,
and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.




          (d) Immediately upon Agent’s receipt of the required processing fee, if applicable, and
delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement
shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the
addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro
tanto.




          (e) Any Lender may at any time sell to one or more commercial banks, financial institutions,
or other Persons (a “Participant”) participating interests in all or any portion of its
Obligations, its Commitment, and the other rights and interests of that Lender (the
“Originating Lender”) hereunder and under the other Loan Documents; provided,
however, that (i) the Originating Lender shall remain a “Lender” for all purposes of this
Agreement and the other Loan Documents and the Participant receiving the participating interest in
the Obligations, the Commitments, and the other rights and interests of the Originating Lender
hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the
Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating
Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower,
Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in
connection with the Originating Lender’s rights and obligations under this Agreement and the other
Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the
Participant has the right to approve any amendment to, or any consent or waiver with respect to,
this Agreement or any other Loan Document, except to the extent such amendment to, or consent or
waiver with respect to this Agreement or of any other Loan Document would (A) extend the final
maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce
the interest rate applicable to the Obligations hereunder in which such Participant is
participating, (C) release all or substantially all of the Collateral or guaranties (except to the
extent expressly provided herein or in any of the Loan Documents) supporting the Obligations
hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the
amount of, the interest or fees payable to such Participant through such Lender, or (E) change the
amount or due dates of scheduled principal repayments or prepayments or premiums, and (v) all
amounts payable by Borrower hereunder and under the other Loan






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Documents shall be determined as if such Lender had not sold such participation, except that,
if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or
shall have become due and payable upon the occurrence of an Event of Default, each Participant
shall be deemed to have the right of set off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be
derivative through the Originating Lender with whom such Participant participates and no
Participant shall have any rights under this Agreement or the other Loan Documents or any direct
rights as to the other Lenders, Agent, Borrower, the Collections of Borrower or its Subsidiaries,
the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to
participate directly in the making of decisions by the Lenders among themselves.




          (f) In connection with any such assignment or participation or proposed assignment or
participation or any grant of a security interest in, or pledge of, its rights under and interest
in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all
documents and information which it now or hereafter may have relating to Borrower and its
Subsidiaries and their respective businesses.




          (g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a
security interest in, or pledge, all or any portion of its rights under and interest in this
Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal
Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce
such pledge or security interest in any manner permitted under applicable law.




          (h) Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be
maintained, a register (the “Register”) on which it enters the name and address of each
Lender as the registered owner of the Term Loan or the Advances, as applicable, (and the principal
amount thereof and stated interest thereon) held by such Lender (each, a “Registered
Loan”). Other than in connection with an assignment by a Lender of all or any portion of its
portion of the Term Loan or Advances to an Affiliate of such Lender or a Related Fund of such
Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned
or sold in whole or in part only by registration of such assignment or sale on the Register (and
each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of
such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by
registration of such assignment or sale on the Register, together with the surrender of the
registered note, if any, evidencing the same duly endorsed by (or accompanied by a written
instrument of assignment or sale duly executed by) the holder of such registered note, whereupon,
at the request of the designated assignee(s) or transferee(s), one or more new registered notes in
the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s).
Prior to the registration of assignment or sale of any Registered Loan (and the registered note,
if any evidencing the same), Borrower shall treat the Person in whose name such Registered Loan
(and the registered note, if any, evidencing the same) is registered as the owner thereof for the
purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the
contrary. In the case of any assignment by a Lender of all or any portion of its Term Loan or
Advances to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is
not recorded in the Register, the assigning Lender, on behalf of Borrower, shall maintain a
register comparable to the Register.




          (i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a
non-fiduciary agent on behalf of Borrower, shall maintain a register on which it enters the name of
all participants in the Registered Loans held by it (the “Participant Register”). A
Registered Loan (and the Registered Note, if any, evidencing the same) may be participated in whole
or in part only by registration of such participation on the Participant Register (and each
registered note shall expressly so provide). Any participation of such Registered Loan (and the
registered note, if any, evidencing the same) may be effected only by the registration of such
participation on the Participant Register.




          (j) Agent shall make a copy of the Register (and each Lender shall make a copy of its
Participant Register in the extent it has one) available for review by Borrower from time to time
as Borrower may reasonably request.







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     13.2. Successors.



          This Agreement shall bind and inure to the benefit of the respective successors and assigns of
each of the parties; provided, however, that no Loan Party a party hereto may
assign this Agreement or any rights or duties hereunder without the Lenders’ prior written consent
and any prohibited assignment shall be absolutely void ab initio. No consent to assignment by the
Lenders shall release Borrower from its Obligations. A Lender may assign this Agreement and the
other Loan Documents and its rights and duties hereunder and thereunder pursuant to Section
13.1 and, except as expressly required pursuant to Section 13.1, no consent or approval
by any Loan Party is required in connection with any such assignment.



14. AMENDMENTS; WAIVERS.




     14.1. Amendments and Waivers.



          (a) No amendment, waiver or other modification of any provision of this Agreement or any other
Loan Document (other than Bank Product Agreements or the Fee Letter), and no consent with respect
to any departure by Borrower therefrom, shall be effective unless the same shall be in writing and
signed by the Required Lenders (or by Agent at the written request of the Required Lenders) and
Borrower and then any such waiver or consent shall be effective, but only in the specific instance
and for the specific purpose for which given; provided, however, that no such
waiver, amendment, or consent shall, unless in writing and signed by all of the Lenders directly
affected thereby and Borrower, do any of the following:




               (i) increase the amount of or extend the expiration date of any Commitment of any Lender,



               (ii) postpone or delay any date fixed by this Agreement or any other Loan Document for any
payment of principal, interest, fees, or other amounts due hereunder or under any other Loan
Document,



               (iii) reduce the principal of, or the rate of interest on, any loan or other extension of
credit hereunder, or reduce any fees or other amounts payable hereunder or under any other Loan
Document (except (y) in connection with the waiver of applicability of Section 2.6(c)
(which waiver shall be effective with the written consent of the Required Lenders), and (z) that
any amendment or modification of defined terms used in the financial covenants in this Agreement
shall not constitute a reduction in the rate of interest or a reduction of fees for purposes of
this clause (iii)),



               (iv) amend or modify this Section or any provision of this Agreement providing for consent or
other action by all Lenders,



               (v) other than as permitted by Section 15.11, release Agent’s Lien in and to any of
the Collateral,



               (vi) change the definition of “Required Lenders” or “Pro Rata Share”,



               (vii) contractually subordinate any of the Agent’s Liens,



               (viii) other than in connection with a merger, liquidation, dissolution or sale of such Person
expressly permitted by the terms hereof or the other Loan Documents, release Borrower or any
Guarantor from any obligation for the payment of money or consent to the assignment or transfer by
Borrower or any Guarantor of any of its rights or duties under this Agreement or the other Loan
Documents,



               (ix) amend any of the provisions of Section 2.4(b)(i) or (ii),



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               (x) amend Section 13.1(a) to permit a Loan Party or an Affiliate of a Loan Party to be
permitted to become an Assignee, or



               (xi) change the definition of Borrowing Base, Credit Amount or any of the defined terms that
are used in such definition to the extent that any such change results in more credit being made
available to Borrower based upon the Borrowing Base or the Credit Amount, but not otherwise, or the
definitions of Maximum Revolver Amount or Term Loan Amount.



          (b) No amendment, waiver, modification, or consent shall amend, modify, or waive (i) the
definition of, or any of the terms or provisions of, the Fee Letter, without the written consent of
Agent and Borrower (and shall not require the written consent of any of the Lenders), and (ii) any
provision of Section 15 pertaining to Agent, or any other rights or duties of Agent under this
Agreement or the other Loan Documents, without the written consent of Agent, Borrower, and the
Required Lenders,




          (c) No amendment, waiver, modification, or consent shall amend, modify, or waive any provision
of this Agreement or the other Loan Documents pertaining to Issuing Lender, or any other rights or
duties of Issuing Lender under this Agreement or the other Loan Documents, without the written
consent of Issuing Lender, Agent, Borrower, and the Required Lenders,




          (d) No amendment, waiver, modification, or consent shall amend, modify, or waive any provision
of this Agreement or the other Loan Documents pertaining to Swing Lender, or any other rights or
duties of Swing Lender under this Agreement or the other Loan Documents, without the written
consent of Swing Lender, Agent, Borrower, and the Required Lenders,




          (e) Anything in this Section 14.1 to the contrary notwithstanding, any amendment,
modification, waiver, consent, termination, or release of, or with respect to, any provision of
this Agreement or any other Loan Document that relates only to the relationship of the Lender Group
among themselves, and that does not affect the rights or obligations of Borrower, shall not require
consent by or the agreement of Borrower.




     14.2. Replacement of Certain Lenders.



          (a) If (i) any action to be taken by the Lender Group or Agent hereunder requires the
unanimous consent, authorization, or agreement of all Lenders and if such action has received the
consent, authorization, or agreement of the Required Lenders but not all of the Lenders or (ii) any
Lender makes a claim for compensation under Section 16, then Borrower or Agent, upon at least 5
Business Days prior irrevocable notice, may permanently replace any Lender that failed to give its
consent, authorization, or agreement (a “Holdout Lender”) or made a claim for compensation
(a “Tax Lender”) with one or more Replacement Lenders, and the Holdout Lender or Tax
Lender, as applicable, shall have no right to refuse to be replaced hereunder. Such notice to
replace the Holdout Lender or Tax Lender, as applicable, shall specify an effective date for such
replacement, which date shall not be later than 15 Business Days after the date such notice is
given.




          (b) Prior to the effective date of such replacement, the Holdout Lender and each Replacement
Lender shall execute and deliver an Assignment and Acceptance, subject only to the Holdout Lender
being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata
Share of the Letters of Credit) without any premium or penalty of any kind whatsoever. If the
Holdout Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior
to the effective date of such replacement, the Holdout Lender shall be deemed to have executed and
delivered such Assignment and Acceptance. The replacement of any Holdout Lender shall be made in
accordance with the terms of Section 13.1. Until such time as the Replacement Lenders
shall have acquired all of the Obligations, the Commitments, and the other rights and obligations
of the Holdout Lender hereunder and under the other Loan Documents, the Holdout Lender shall remain
obligated to make the Holdout Lender’s Pro Rata Share of






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Advances and to purchase a participation in each Letter of Credit, in an amount equal to its
Pro Rata Share of such Letters of Credit.




     14.3. No Waivers; Cumulative Remedies.



          No failure by Agent or any Lender to exercise any right, remedy, or option under this
Agreement or any other Loan Document, or delay by Agent or any Lender in exercising the same, will
operate as a waiver thereof. No waiver by Agent or any Lender will be effective unless it is in
writing, and then only to the extent specifically stated. No waiver by Agent or any Lender on any
occasion shall affect or diminish Agent’s and each Lender’s rights thereafter to require strict
performance by Borrower of any provision of this Agreement. Agent’s and each Lender’s rights under
this Agreement and the other Loan Documents will be cumulative and not exclusive of any other right
or remedy that Agent or any Lender may have.



15. AGENT; THE LENDER GROUP.




     15.1. Appointment and Authorization of Agent.



          Each Lender hereby designates and appoints WFF as its representative under this Agreement and
the other Loan Documents and each Lender hereby irrevocably authorizes Agent to execute and deliver
each of the other Loan Documents on its behalf and to take such other action on its behalf under
the provisions of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to Agent by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto. Agent agrees to act
as such on the express conditions contained in this Section 15. Any provision to the
contrary contained elsewhere in this Agreement or in any other Loan Document notwithstanding, Agent
shall not have any duties or responsibilities, except those expressly set forth herein, nor shall
Agent have or be deemed to have any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against Agent; it being expressly
understood and agreed that the use of the word “Agent” is for convenience only, that WFF is merely
the representative of the Lenders, and only has the contractual duties set forth herein. Except as
expressly otherwise provided in this Agreement, Agent shall have and may use its sole discretion
with respect to exercising or refraining from exercising any discretionary rights or taking or
refraining from taking any actions that Agent expressly is entitled to take or assert under or
pursuant to this Agreement and the other Loan Documents. Without limiting the generality of the
foregoing, or of any other provision of the Loan Documents that provides rights or powers to Agent,
Lenders agree that Agent shall have the right to exercise the following powers as long as this
Agreement remains in effect: (a) maintain, in accordance with its customary business practices,
ledgers and records reflecting the status of the Obligations, the Collateral, the Collections of
Borrower and its Subsidiaries, and related matters, (b) execute or file any and all financing or
similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of
claim, notices and other written agreements with respect to the Loan Documents, (c) make Advances,
for itself or on behalf of Lenders, as provided in the Loan Documents, (d) exclusively receive,
apply, and distribute the Collections of Borrower and its Subsidiaries as provided in the Loan
Documents, (e) open and maintain such bank accounts and cash management arrangements as Agent deems
necessary and appropriate in accordance with the Loan Documents for the foregoing purposes with
respect to the Collateral and the Collections of Borrower and its Subsidiaries, (f) perform,
exercise, and enforce any and all other rights and remedies of the Lender Group with respect to
Borrower or its Subsidiaries, the Obligations, the Collateral, the Collections of Borrower and its
Subsidiaries, or otherwise related to any of same as provided in the Loan Documents, and (g) incur
and pay such Lender Group Expenses as Agent may deem necessary or appropriate for the performance
and fulfillment of its functions and powers pursuant to the Loan Documents.




     15.2. Delegation of Duties.



          Agent may execute any of its duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys in fact and shall be entitled to advice of counsel
concerning all matters






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pertaining to such duties. Agent shall not be responsible for the negligence or misconduct of
any agent or attorney in fact that it selects as long as such selection was made without gross
negligence or willful misconduct.




     15.3. Liability of Agent.



          None of the Agent-Related Persons shall (a) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except to the extent caused by its own gross negligence or
willful misconduct), or (b) be responsible in any manner to any of the Lenders for any recital,
statement, representation or warranty made by Borrower or any of its Subsidiaries or Affiliates, or
any officer or director thereof, contained in this Agreement or in any other Loan Document, or in
any certificate, report, statement or other document referred to or provided for in, or received by
Agent under or in connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of Borrower or its Subsidiaries or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be
under any obligation to any Lender to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document,
or to inspect the books and records or properties of Borrower or its Subsidiaries.




     15.4. Reliance by Agent.



          Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telegram, telefacsimile or other
electronic method of transmission, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed, sent, or made by the
proper Person or Persons, and upon advice and statements of legal counsel (including counsel to
Borrower or counsel to any Lender), independent accountants and other experts selected by Agent.
Agent shall be fully justified in failing or refusing to take any action under this Agreement or
any other Loan Document unless Agent shall first receive such advice or concurrence of the Lenders
as it deems appropriate and until such instructions are received, Agent shall act, or refrain from
acting, as it deems advisable. If Agent so requests, it shall first be indemnified to its
reasonable satisfaction by the Lenders against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such action. Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the requisite Lenders and such request and any
action taken or failure to act pursuant thereto shall be binding upon all of the Lenders.




     15.5. Notice of Default or Event of Default.



          Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default, except with respect to defaults in the payment of principal, interest, fees, and
expenses required to be paid to Agent for the account of the Lenders and, except with respect to
Events of Default of which Agent has actual knowledge, unless Agent shall have received written
notice from a Lender or Borrower referring to this Agreement, describing such Default or Event of
Default, and stating that such notice is a “notice of default.” Agent promptly will notify the
Lenders of its receipt of any such notice or of any Event of Default of which Agent has actual
knowledge. If any Lender obtains actual knowledge of any Event of Default, such Lender promptly
shall notify the other Lenders and Agent of such Event of Default. Each Lender shall be solely
responsible for giving any notices to its Participants, if any. Subject to Section 15.4,
Agent shall take such action with respect to such Default or Event of Default as may be requested
by the Required Lenders in accordance with Section 9; provided, however,
that unless and until Agent has received any such request, Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable.







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     15.6. Credit Decision.



          Each Lender acknowledges that none of the Agent-Related Persons has made any representation or
warranty to it, and that no act by Agent hereinafter taken, including any review of the affairs of
Borrower and its Subsidiaries or Affiliates, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Lender. Each Lender represents to Agent that it has,
independently and without reliance upon any Agent-Related Person and based on such due diligence,
documents and information as it has deemed appropriate, made its own appraisal of and investigation
into the business, prospects, operations, property, financial and other condition and
creditworthiness of Borrower or any other Person party to a Loan Document, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to Borrower. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and creditworthiness of
Borrower or any other Person party to a Loan Document. Except for notices, reports, and other
documents expressly herein required to be furnished to the Lenders by Agent, Agent shall not have
any duty or responsibility to provide any Lender with any credit or other information concerning
the business, prospects, operations, property, financial and other condition or creditworthiness of
Borrower or any other Person party to a Loan Document that may come into the possession of any of
the Agent-Related Persons. Each Lender acknowledges that Agent does not have any duty or
responsibility, either initially or on a continuing basis (except to the extent, if any, that is
expressly specified herein) to provide such Lender with any credit or other information with
respect to Borrower, its Affiliates or any of their respective business, legal, financial or other
affairs, and irrespective of whether such information came into Agent’s or its Affiliates’ or
representatives’ possession before or after the date on which such Lender became a party to this
Agreement.




     15.7. Costs and Expenses; Indemnification.



          Agent may incur and pay Lender Group Expenses to the extent Agent reasonably deems necessary
or appropriate for the performance and fulfillment of its functions, powers, and obligations
pursuant to the Loan Documents, including court costs, attorneys fees and expenses, fees and
expenses of financial accountants, advisors, consultants, and appraisers, costs of collection by
outside collection agencies, auctioneer fees and expenses, and costs of security guards or
insurance premiums paid to maintain the Collateral, whether or not Borrower is obligated to
reimburse Agent or Lenders for such expenses pursuant to this Agreement or otherwise. Agent is
authorized and directed to deduct and retain sufficient amounts from the Collections of Borrower
and its Subsidiaries received by Agent to reimburse Agent for such out-of-pocket costs and expenses
prior to the distribution of any amounts to Lenders. In the event Agent is not reimbursed for such
costs and expenses by Borrower or its Subsidiaries, each Lender hereby agrees that it is and shall
be obligated to pay to Agent such Lender’s Pro Rata Share thereof. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand the Agent-Related
Persons (to the extent not reimbursed by or on behalf of Borrower and without limiting the
obligation of Borrower to do so), according to their Pro Rata Shares, from and against any and all
Indemnified Liabilities; provided, however, that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified Liabilities to the extent
resulting from such Person’s gross negligence or willful misconduct nor shall any Lender be liable
for the obligations of any Defaulting Lender in failing to make an Advance or other extension of
credit hereunder. Without limitation of the foregoing, each Lender shall reimburse Agent upon
demand for such Lender’s Pro Rata Share of any costs or out of pocket expenses (including
attorneys, accountants, advisors, and consultants fees and expenses) incurred by Agent in
connection with the preparation, execution, delivery, administration, modification, amendment, or
enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan Document, or any
document contemplated by or referred to herein, to the extent that Agent is not reimbursed for such
expenses by or on behalf of Borrower. The undertaking in this Section shall survive the payment of
all Obligations hereunder and the resignation or replacement of Agent.







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     15.8. Agent in Individual Capacity.



          WFF and its Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in, and generally engage in any kind of banking, trust,
financial advisory, underwriting, or other business with Borrower and its Subsidiaries and
Affiliates and any other Person party to any Loan Document as though WFF were not Agent hereunder,
and, in each case, without notice to or consent of the other members of the Lender Group. The
other members of the Lender Group acknowledge that, pursuant to such activities, WFF or its
Affiliates may receive information regarding Borrower or its Affiliates or any other Person party
to any Loan Document that is subject to confidentiality obligations in favor of Borrower or such
other Person and that prohibit the disclosure of such information to the Lenders, and the Lenders
acknowledge that, in such circumstances (and in the absence of a waiver of such confidentiality
obligations, which waiver Agent will use its reasonable best efforts to obtain), Agent shall not be
under any obligation to provide such information to them. The terms “Lender” and “Lenders” include
WFF in its individual capacity.




     15.9. Successor Agent.



          Agent may resign as Agent upon 30 days prior written notice to the Lenders (unless such notice
is waived by the Required Lenders) and Borrower (unless an Event of Default exists or such notice
is waived by Borrower). If Agent resigns under this Agreement, the Required Lenders shall be
entitled, with (so long as no Event of Default has occurred and is continuing) the consent of
Borrower (such consent not to be unreasonably withheld, delayed, or conditioned), appoint a
successor Agent for the Lenders. If, at the time that Agent’s resignation is effective, it is
acting as the Issuing Lender or the Swing Lender, such resignation shall also operate to effectuate
its resignation as the Issuing Lender or the Swing Lender, as applicable, and it shall
automatically be relieved of any further obligation to issue Letters of Credit or make Swing Loans.
If no successor Agent is appointed prior to the effective date of the resignation of Agent, Agent
may appoint, after consulting with the Lenders and Borrower, a successor Agent. If Agent has
materially breached or failed to perform any material provision of this Agreement or of applicable
law, the Required Lenders may agree in writing to remove and replace Agent with a successor Agent
from among the Lenders with (so long as no Event of Default has occurred and is continuing) the
consent of Borrower (such consent not to be unreasonably withheld, delayed, or conditioned). In
any such event, upon the acceptance of its appointment as successor Agent hereunder, such successor
Agent shall succeed to all the rights, powers, and duties of the retiring Agent and the term
“Agent” shall mean such successor Agent and the retiring Agent’s appointment, powers, and duties as
Agent shall be terminated. After any retiring Agent’s resignation hereunder as Agent, the
provisions of this Section 15 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement. If no successor Agent has accepted
appointment as Agent by the date which is 30 days following a retiring Agent’s notice of
resignation, the retiring Agent’s resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of Agent hereunder until such time, if any, as the Lenders
appoint a successor Agent as provided for above.




     15.10. Lender in Individual Capacity.



          Any Lender and its respective Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting, or other business with Borrower and its
Subsidiaries and Affiliates and any other Person party to any Loan Document as though such Lender
were not a Lender hereunder without notice to or consent of the other members of the Lender Group.
The other members of the Lender Group acknowledge that, pursuant to such activities, such Lender
and its respective Affiliates may receive information regarding Borrower or its Affiliates or any
other Person party to any Loan Document that is subject to confidentiality obligations in favor of
Borrower or such other Person and that prohibit the disclosure of such information to the Lenders,
and the Lenders acknowledge that, in such circumstances (and in the absence of a waiver of such
confidentiality obligations, which waiver such Lender will use its reasonable best efforts to
obtain), such Lender shall not be under any obligation to provide such information to them.







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     15.11. Collateral Matters.



          (a) The Lenders hereby irrevocably authorize Agent, at its option and in its sole discretion,
to release any Lien on any Collateral (i) upon the termination of the Commitments and payment and
satisfaction in full by Borrower of all Obligations, (ii) constituting property being sold or
disposed of if a release is required or desirable in connection therewith and if Borrower certifies
to Agent that the sale or disposition is permitted under Section 6.4 or the other Loan
Documents (and Agent may rely conclusively on any such certificate, without further inquiry),
(iii) constituting property in which Borrower or its Subsidiaries owned no interest at the time
Agent’s Lien was granted nor at any time thereafter, or (iv) constituting property leased to
Borrower or its Subsidiaries under a lease that has expired or is terminated in a transaction
permitted under this Agreement. The Lenders hereby irrevocably authorize Agent, based upon the
instruction of the Required Lenders, to credit bid and purchase (either directly or through one or
more acquisition vehicles) all or any portion of the Collateral at any sale thereof conducted by
Agent under the provisions of the Code, including pursuant to Sections 9-610 or 9-620 of the Code,
at any sale thereof conducted under the provisions of the Bankruptcy Code, including Section 363 of
the Bankruptcy Code, or at any other sale or foreclosure conducted by Agent (whether by judicial
action or otherwise) in accordance with applicable law. Except as provided above, Agent will not
execute and deliver a release of any Lien on any Collateral without the prior written authorization
of (y) if the release is of all or substantially all of the Collateral, all of the Lenders, or
(z) otherwise, the Required Lenders. Upon request by Agent or Borrower at any time, the Lenders
will confirm in writing Agent’s authority to release any such Liens on particular types or items of
Collateral pursuant to this Section 15.11; provided, however, that
(1) Agent shall not be required to execute any document necessary to evidence such release on terms
that, in Agent’s opinion, would expose Agent to liability or create any obligation or entail any
consequence other than the release of such Lien without recourse, representation, or warranty, and
(2) such release shall not in any manner discharge, affect, or impair the Obligations or any Liens
(other than those expressly being released) upon (or obligations of any Loan Party in respect of)
all interests retained by any Loan Party, including, the proceeds of any sale, all of which shall
continue to constitute part of the Collateral. The Lenders further hereby irrevocably authorize
Agent, at its option and in its sole discretion, to subordinate any Lien granted to or held by
Agent under any Loan Document to the holder of any Permitted Lien on such property if such
Permitted Lien secures Permitted Purchase Money Indebtedness.




          (b) Agent shall have no obligation whatsoever to any of the Lenders to assure that the
Collateral exists or is owned by Borrower or its Subsidiaries or is cared for, protected, or
insured or has been encumbered, or that Agent’s Liens have been properly or sufficiently or
lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or
to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity,
or to continue exercising, any of the rights, authorities and powers granted or available to Agent
pursuant to any of the Loan Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission, or event related thereto, subject to the terms and conditions
contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given
Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shall
have no other duty or liability whatsoever to any Lender as to any of the foregoing, except as
otherwise provided herein.




     15.12. Restrictions on Actions by Lenders; Sharing of Payments.



          (a) Each of the Lenders agrees that it shall not, without the express written consent of
Agent, and that it shall, to the extent it is lawfully entitled to do so, upon the written request
of Agent, set off against the Obligations, any amounts owing by such Lender to Borrower or its
Subsidiaries or any deposit accounts of Borrower or its Subsidiaries now or hereafter maintained
with such Lender. Each of the Lenders further agrees that it shall not, unless specifically
requested to do so in writing by Agent, take or cause to be taken any action, including, the
commencement of any legal or equitable proceedings to enforce any Loan Document against Borrower or
any Guarantor or to foreclose any Lien on, or otherwise enforce any security interest in, any of
the Collateral.





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          (b) If, at any time or times any Lender shall receive (i) by payment, foreclosure,
setoff, or otherwise, any proceeds of Collateral or any payments with respect to the Obligations,
except for any such proceeds or payments received by such Lender from Agent pursuant to the terms
of this Agreement, or (ii) payments from Agent in excess of such Lender’s Pro Rata Share of all
such distributions by Agent, such Lender promptly shall (A) turn the same over to Agent, in kind,
and with such endorsements as may be required to negotiate the same to Agent, or in immediately
available funds, as applicable, for the account of all of the Lenders and for application to the
Obligations in accordance with the applicable provisions of this Agreement, or (B) purchase,
without recourse or warranty, an undivided interest and participation in the Obligations owed to
the other Lenders so that such excess payment received shall be applied ratably as among the
Lenders in accordance with their Pro Rata Shares; provided, however, that to the
extent that such excess payment received by the purchasing party is thereafter recovered from it,
those purchases of participations shall be rescinded in whole or in part, as applicable, and the
applicable portion of the purchase price paid therefor shall be returned to such purchasing party,
but without interest except to the extent that such purchasing party is required to pay interest in
connection with the recovery of the excess payment.




     15.13. Agency for Perfection.



          Agent hereby appoints each other Lender as its agent (and each Lender hereby accepts such
appointment) for the purpose of perfecting Agent’s Liens in assets which, in accordance with
Article 8 or Article 9, as applicable, of the Code can be perfected by possession or control.
Should any Lender obtain possession or control of any such Collateral, such Lender shall notify
Agent thereof, and, promptly upon Agent’s request therefor shall deliver possession or control of
such Collateral to Agent or in accordance with Agent’s instructions.




     15.14. Payments by Agent to the Lenders.



          All payments to be made by Agent to the Lenders shall be made by bank wire transfer of
immediately available funds pursuant to such wire transfer instructions as each party may designate
for itself by written notice to Agent. Concurrently with each such payment, Agent shall identify
whether such payment (or any portion thereof) represents principal, premium, fees, or interest of
the Obligations.




     15.15. Concerning the Collateral and Related Loan Documents.



          Each member of the Lender Group authorizes and directs Agent to enter into this Agreement and
the other Loan Documents. Each member of the Lender Group agrees that any action taken by Agent in
accordance with the terms of this Agreement or the other Loan Documents relating to the Collateral
and the exercise by Agent of its powers set forth therein or herein, together with such other
powers that are reasonably incidental thereto, shall be binding upon all of the Lenders.




     15.16. Audits and Examination Reports; Confidentiality; Disclaimers by Lenders; Other
Reports and Information.



          By becoming a party to this Agreement, each Lender:




          (a) is deemed to have requested that Agent furnish such Lender, promptly after it becomes
available, a copy of each field audit or examination report respecting Borrower or its Subsidiaries
(each a “Report” and collectively, “Reports”) prepared by or at the request of
Agent, and Agent shall so furnish each Lender with such Reports,




          (b) expressly agrees and acknowledges that Agent does not (i) make any representation or
warranty as to the accuracy of any Report, and (ii) shall not be liable for any information
contained in any Report,






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          (c) expressly agrees and acknowledges that the Reports are not comprehensive audits or
examinations, that Agent or other party performing any audit or examination will inspect only
specific information regarding Borrower and its Subsidiaries and will rely significantly upon
Borrower’s and its Subsidiaries’ books and records, as well as on representations of Loan Parties’
personnel,




          (d) agrees to keep all Reports and other material, non-public information regarding Borrower
and its Subsidiaries and their operations, assets, and existing and contemplated business plans in
a confidential manner in accordance with Section 17.9, and




          (e) without limiting the generality of any other indemnification provision contained in this
Agreement, agrees: (i) to hold Agent and any other Lender preparing a Report harmless from any
action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender
may reach or draw from any Report in connection with any loans or other credit accommodations that
the indemnifying Lender has made or may make to Borrower, or the indemnifying Lender’s
participation in, or the indemnifying Lender’s purchase of, a loan or loans of Borrower, and (ii)
to pay and protect, and indemnify, defend and hold Agent, and any such other Lender preparing a
Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and
other amounts (including, attorneys fees and costs) incurred by Agent and any such other Lender
preparing a Report as the direct or indirect result of any third parties who might obtain all or
part of any Report through the indemnifying Lender.



In addition to the foregoing: (x) any Lender may from time to time request of Agent in writing
that Agent provide to such Lender a copy of any report or document provided by Borrower or its
Subsidiaries to Agent that has not been contemporaneously provided by Borrower or such Subsidiary
to such Lender, and, upon receipt of such request, Agent promptly shall provide a copy of same to
such Lender, (y) to the extent that Agent is entitled, under any provision of the Loan Documents,
to request additional reports or information from Borrower or its Subsidiaries, any Lender may,
from time to time, reasonably request Agent to exercise such right as specified in such Lender’s
notice to Agent, whereupon Agent promptly shall request of Borrower the additional reports or
information reasonably specified by such Lender, and, upon receipt thereof from Borrower or such
Subsidiary, Agent promptly shall provide a copy of same to such Lender, and (z) any time that Agent
renders to Borrower a statement regarding the Loan Account, Agent shall send a copy of such
statement to each Lender.




     15.17. Several Obligations; No Liability.



          Notwithstanding that certain of the Loan Documents now or hereafter may have been or will be
executed only by or in favor of Agent in its capacity as such, and not by or in favor of the
Lenders, any and all obligations on the part of Agent (if any) to make any credit available
hereunder shall constitute the several (and not joint) obligations of the respective Lenders on a
ratable basis, according to their respective Commitments, to make an amount of such credit not to
exceed, in principal amount, at any one time outstanding, the amount of their respective
Commitments. Nothing contained herein shall confer upon any Lender any interest in, or subject any
Lender to any liability for, or in respect of, the business, assets, profits, losses, or
liabilities of any other Lender. Each Lender shall be solely responsible for notifying its
Participants of any matters relating to the Loan Documents to the extent any such notice may be
required, and no Lender shall have any obligation, duty, or liability to any Participant of any
other Lender. Except as provided in Section 15.7, no member of the Lender Group shall have
any liability for the acts of any other member of the Lender Group. No Lender shall be responsible
to Borrower or any other Person for any failure by any other Lender to fulfill its obligations to
make credit available hereunder, nor to advance for it or on its behalf in connection with its
Commitment, nor to take any other action on its behalf hereunder or in connection with the
financing contemplated herein.




     15.18. Co-Arranger.



          Each Lender hereby designates and appoints Comerica Bank as Co-Arranger under this Agreement.
Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any






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other Loan Document, Co-Arranger shall have no duties or responsibilities and shall not have
or be deemed to have any fiduciary relationship with any Lender, and no implied responsibilities,
duties or obligations shall be construed to exist in this Agreement or any other Loan Document.



16. WITHHOLDING TAXES.




          (a) All payments made by Borrower hereunder or under any note or other Loan Document will be
made without setoff, counterclaim, or other defense. In addition, all such payments will be made
free and clear of, and without deduction or withholding for, any present or future Taxes, and in
the event any deduction or withholding of Taxes is required, Borrower shall comply with the next
sentence of this Section 16(a). If any Taxes are so levied or imposed, Borrower agrees to
pay the full amount of such Taxes and such additional amounts as may be necessary so that every
payment of all amounts due under any Loan Document, including any amount paid pursuant to this
Section 16(a) after withholding or deduction for or on account of any Taxes, will not be
less than the amount provided for herein; provided, however, that Borrower shall not be required to
increase any such amounts if the increase in such amount payable results from Agent’s or such
Lender’s own willful misconduct or gross negligence (as finally determined by a court of competent
jurisdiction). Borrower will furnish to Agent as promptly as possible after the date the payment
of any Tax is due pursuant to applicable law, certified copies of tax receipts evidencing such
payment by Borrower.




          (b) Borrower agrees to pay any present or future stamp, value added or documentary taxes or
any other excise or property taxes, charges, or similar levies that arise from any payment made
hereunder or from the execution, delivery, performance, recordation, or filing of, or otherwise
with respect to any Loan Document.




          (c) If a Lender or Participant is entitled to claim an exemption or reduction from United
States withholding tax, such Lender or Participant agrees with and in favor of Agent, to deliver to
Agent (or, in the case of a Participant, to the Lender granting the participation only) one of the
following before receiving its first payment under this Agreement:




               (i) if such Lender or Participant is entitled to claim an exemption from United States
withholding tax pursuant to the portfolio interest exception, (A) a statement of the Lender or
Participant, signed under penalty of perjury, that it is not a (I) a “bank” as described in Section
881(c)(3)(A) of the IRC, (II) a 10% shareholder of Borrower (within the meaning of Section
871(h)(3)(B) of the IRC), or (III) a controlled foreign corporation related to Borrower within the
meaning of Section 864(d)(4) of the IRC, and (B) a properly completed and executed IRS Form W-8BEN
or Form W-8IMY (with proper attachments);



               (ii) if such Lender or Participant is entitled to claim an exemption from, or a reduction of,
withholding tax under a United States tax treaty, a properly completed and executed copy of IRS
Form W-8BEN;



               (iii) if such Lender or Participant is entitled to claim that interest paid under any Loan
Document is exempt from United States withholding tax because it is effectively connected with a
United States trade or business of such Lender, a properly completed and executed copy of IRS Form
W-8ECI;



               (iv) if such Lender or Participant is entitled to claim that interest paid under any Loan
Document is exempt from United States withholding tax because such Lender or Participant serves as
an intermediary, a properly completed and executed copy of IRS Form W-8IMY (with proper
attachments); or



               (v) a properly completed and executed copy of any other form or forms, including IRS Form W-9,
as may be required under the IRC or other laws of the United States as a condition to exemption
from, or reduction of, United States withholding or backup withholding tax.


Each Lender or Participant shall provide new forms (or successor forms) upon the expiration or
obsolescence of any previously delivered forms and to promptly notify Agent (or, in the case of a
Participant, to the Lender






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granting the participation only) of any change in circumstances which would modify or render
invalid any claimed exemption or reduction.




          (d) If a Lender or Participant claims an exemption from withholding tax in a jurisdiction
other than the United States, such Lender or such Participant agrees with and in favor of Agent, to
deliver to Agent (or, in the case of a Participant, to the Lender granting the participation only)
any such form or forms, as may be required under the laws of such jurisdiction as a condition to
exemption from, or reduction of, foreign withholding or backup withholding tax before receiving its
first payment under this Agreement, but only if such Lender or such Participant is legally able to
deliver such forms, provided, however, that nothing in this Section 16(d) shall
require a Lender or Participant to disclose any information that it deems to be confidential
(including without limitation, its tax returns). Each Lender and each Participant shall provide
new forms (or successor forms) upon the expiration or obsolescence of any previously delivered
forms and to promptly notify Agent (or, in the case of a Participant, to the Lender granting the
participation only) of any change in circumstances which would modify or render invalid any claimed
exemption or reduction.




          (e) If a Lender or Participant claims exemption from, or reduction of, withholding tax and
such Lender or Participant sells, assigns, grants a participation in, or otherwise transfers all or
part of the Obligations of Borrower to such Lender or Participant, such Lender or Participant
agrees to notify Agent (or, in the case of a sale of a participation interest, to the Lender
granting the participation only) of the percentage amount in which it is no longer the beneficial
owner of Obligations of Borrower to such Lender or Participant. To the extent of such percentage
amount, Agent will treat such Lender’s or such Participant’s documentation provided pursuant to
Section 16(c) or 16(d) as no longer valid. With respect to such percentage amount,
such Participant or Assignee may provide new documentation, pursuant to Section 16(c) or
16(d), if applicable. Borrower agrees that each Participant shall be entitled to the
benefits of this Section 16 with respect to its participation in any portion of the
Commitments and the Obligations so long as such Participant complies with the obligations set forth
in this Section 16 with respect thereto; provided that Borrower shall not be
required to pay any amount under this Section 16 with respect to any participation that is
greater than the amount Borrower would have had to pay under this Section 16 to the Lender
who had transferred such participation.




          (f) If a Lender or a Participant is entitled to a reduction in the applicable withholding tax,
Agent (or, in the case of a Participant, to the Lender granting the participation) may withhold
from any interest payment to such Lender or such Participant an amount equivalent to the applicable
withholding tax after taking into account such reduction. If the forms or other documentation
required by Section 16(c) or 16(d) are not delivered to Agent (or, in the case of a
Participant, to the Lender granting the participation), then Agent (or, in the case of a
Participant, to the Lender granting the participation) may withhold from any interest payment to
such Lender or such Participant not providing such forms or other documentation an amount
equivalent to the applicable withholding tax.




          (g) If the IRS or any other Governmental Authority of the United States or other jurisdiction
asserts a claim that Agent (or, in the case of a Participant, to the Lender granting the
participation) did not properly withhold tax from amounts paid to or for the account of any Lender
or any Participant due to a failure on the part of the Lender or any Participant (because the
appropriate form was not delivered, was not properly executed, or because such Lender failed to
notify Agent (or such Participant failed to notify the Lender granting the participation) of a
change in circumstances which rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason) such Lender shall indemnify and hold Agent harmless (or, in
the case of a Participant, such Participant shall indemnify and hold the Lender granting the
participation harmless) for all amounts paid, directly or indirectly, by Agent (or, in the case of
a Participant, to the Lender granting the participation), as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the amounts payable to Agent
(or, in the case of a Participant, to the Lender granting the participation only) under this
Section 16, together with all costs and expenses (including attorneys fees and expenses).
The obligation of the Lenders and the Participants under this subsection shall survive the payment
of all Obligations and the resignation or replacement of Agent.







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          (h) If Agent or a Lender determines, in its sole discretion, that it has received a refund of
any Taxes as to which it has been indemnified by Borrower or with respect to which Borrower has
paid additional amounts pursuant to this Section 16, so long as no Default or Event of Default has
occurred and is continuing, it shall pay over such refund to Borrower (but only to the extent of
payments made, or additional amounts paid, by Borrower under this Section 16 with respect to Taxes
giving rise to such a refund), net of all out-of-pocket expenses of Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental Authority with respect
to such a refund); provided, that Borrower, upon the request of Agent or such Lender, agrees to
repay the amount paid over to Borrower (plus any penalties, interest or other charges, imposed by
the relevant Governmental Authority, other than such penalties, interest or other charges imposed
as a result of the willful misconduct or gross negligence of Agent hereunder) to Agent or such
Lender in the event Agent or such Lender is required to repay such refund to such Governmental
Authority. Notwithstanding anything in this Agreement to the contrary, this Section 16 shall not
be construed to require Agent or any Lender to make available its tax returns (or any other
information which it deems confidential) to Borrower or any other Person.



17. GENERAL PROVISIONS.




     17.1. Effectiveness.



          This Agreement shall be binding and deemed effective when executed by Borrower, Agent, and
each Lender whose signature is provided for on the signature pages hereof.




     17.2. Section Headings.



          Headings and numbers have been set forth herein for convenience only. Unless the contrary is
compelled by the context, everything contained in each Section applies equally to this entire
Agreement.




     17.3. Interpretation.



          Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against the
Lender Group or Borrower, whether under any rule of construction or otherwise. On the contrary,
this Agreement 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
all parties hereto.




     17.4. Severability of Provisions.



          Each provision of this Agreement shall be severable from every other provision of this
Agreement for the purpose of determining the legal enforceability of any specific provision.




     17.5. Bank Product Providers.



          Each Bank Product Provider shall be deemed a third party beneficiary hereof and of the
provisions of the other Loan Documents for purposes of any reference in a Loan Document to the
parties for whom Agent is acting. Agent hereby agrees to act as a non-fiduciary agent for such
Bank Product Providers and, by virtue of providing a Bank Product, each Bank Product Provider shall
be automatically deemed to have appointed Agent as its non-fiduciary agent; it being understood and
agreed that the rights and benefits of each Bank Product Provider under the Loan Documents consist
exclusively of such Bank Product Provider’s being a beneficiary of the Liens and security interests
(and, if applicable, guarantees) granted to Agent and the right to share in payments and
collections out of the Collateral as more fully set forth herein. In connection with any such
distribution of payments and collections, Agent shall be entitled to assume no amounts are due and
payable to any Bank Product Provider unless such Bank Product Provider has notified Agent in
writing of the amount that is due and payable to it prior to such distribution.







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     17.6. Debtor-Creditor Relationship.



          The relationship between the Lenders and Agent, on the one hand, and the Loan Parties, on the
other hand, is solely that of creditor and debtor. No member of the Lender Group has (or shall be
deemed to have) any fiduciary relationship or duty to any Loan Party arising out of or in
connection with the Loan Documents or the transactions contemplated thereby, and there is no agency
or joint venture relationship between the members of the Lender Group, on the one hand, and the
Loan Parties, on the other hand, by virtue of any Loan Document or any transaction contemplated
therein.




     17.7. Counterparts; Electronic Execution.



          This Agreement 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 Agreement.
Delivery of an executed counterpart of this Agreement by telefacsimile or other electronic method
of transmission shall be equally as effective as delivery of an original executed counterpart of
this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile or
other electronic method of transmission also shall deliver an original executed counterpart of this
Agreement but the failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Agreement. The foregoing shall apply to each
other Loan Document mutatis mutandis.




     17.8. Revival and Reinstatement of Obligations.



          If the incurrence or payment of the Obligations by Borrower or Guarantor or the transfer to
the Lender Group of any property should for any reason subsequently be asserted, or 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 (each, 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 Borrower or Guarantor automatically shall be revived, reinstated, and
restored and shall exist as though such Voidable Transfer had never been made.




     17.9. Confidentiality.



          (a) Agent and Lenders each individually (and not jointly or jointly and severally) agree that
material, non-public information regarding Borrower and its Subsidiaries, their operations, assets,
and existing and contemplated business plans (“Confidential Information”) shall be treated
by Agent and the Lenders in a confidential manner, and shall not be disclosed by Agent and the
Lenders to Persons who are not parties to this Agreement, except: (i) to attorneys for and other
advisors, accountants, auditors, and consultants to any member of the Lender Group (“Lender
Group Representatives”), (ii) to Subsidiaries and Affiliates of any member of the Lender Group
(including the Bank Product Providers), provided that any such Subsidiary or Affiliate shall have
agreed to receive such information hereunder subject to the terms of this Section 17.9,
(iii) as may be required by regulatory authorities so long as such authorities are informed of the
confidential nature of such information, (iv) as may be required by statute, decision, or judicial
or administrative order, rule, or regulation; provided that (x) prior to any disclosure under this
clause (iv), the disclosing party agrees to provide Borrower with prior notice thereof, to the
extent that it is practicable to do so and to the extent that the disclosing party is permitted to
provide such prior notice to Borrower pursuant to the terms of the applicable statute, decision, or
judicial or administrative order, rule, or regulation and (y) any disclosure under this clause (iv)
shall be limited to the portion of the Confidential Information as may be required by such statute,
decision, or judicial or administrative order, rule, or regulation, (v) as may be agreed to in
advance by Borrower or as requested or required by any Governmental Authority pursuant to any
subpoena or other legal process, provided, that, (x) prior to any disclosure under this
clause (v) the disclosing party agrees to provide Borrower






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with prior notice thereof, to the extent that it is practicable to do so and to the extent
that the disclosing party is permitted to provide such prior notice to Borrower pursuant to the
terms of the subpoena or other legal process and (y) any disclosure under this clause (v) shall be
limited to the portion of the Confidential Information as may be required by such governmental
authority pursuant to such subpoena or other legal process, (vi) as to any such information that is
or becomes generally available to the public (other than as a result of prohibited disclosure by
Agent or the Lenders or the Lender Group Representatives), (vii) in connection with any assignment,
participation or pledge of any Lender’s interest under this Agreement, provided that any such
assignee, participant, or pledgee shall have agreed in writing to receive such information
hereunder subject to the terms of this Section, (viii) in connection with any litigation or other
adversary proceeding involving parties hereto which such litigation or adversary proceeding
involves claims related to the rights or duties of such parties under this Agreement or the other
Loan Documents; provided, that, prior to any disclosure to any Person (other than any Loan Party,
Agent, any Lender, any of their respective Affiliates, or their respective counsel) under this
clause (viii) with respect to litigation involving any Person (other than Borrower, Agent, any
Lender, any of their respective Affiliates, or their respective counsel), the disclosing party
agrees to provide Borrower with prior notice thereof, and (ix) in connection with, and to the
extent reasonably necessary for, the exercise of any secured creditor remedy under this Agreement
or under any other Loan Document.




          (b) Anything in this Agreement to the contrary notwithstanding, Agent may provide information
concerning the terms and conditions of this Agreement and the other Loan Documents to loan
syndication and pricing reporting services.




     17.10. Lender Group Expenses.



          Borrower agrees to pay any and all Lender Group Expenses promptly after demand therefore by
Agent and agrees that its obligations contained in this Section 17.10 shall survive payment
or satisfaction in full of all other Obligations.




     17.11. USA PATRIOT Act.



          Each Lender that is subject to the requirements of the Patriot Act hereby notifies Borrower
that pursuant to the requirements of the Act, it is required to obtain, verify and record
information that identifies Borrower, which information includes the name and address of Borrower
and other information that will allow such Lender to identify Borrower in accordance with the
Patriot Act.




     17.12. Integration.



          This Agreement, together with the other Loan Documents, reflects the entire understanding of
the parties with respect to the transactions contemplated hereby and shall not be contradicted or
qualified by any other agreement, oral or written, before the date hereof.




[Signature pages to follow.]







-60-









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
as of the date first above written.



	 	 	 	 	 
	 	REALPAGE, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Timothy J. Barker
 	 
	 	 	Title: Executive Vice President and Chief Financial Officer 	 
	 	 	 	 
	 
	 	WELLS FARGO FOOTHILL, LLC,

a Delaware limited liability company, as Agent and as a Lender

 	 
	 	By:  	/s/ Terri Wesolik
 	 
	 	 	Title: Vice President 	 
	 	 	 	 
	 
	 	COMERICA BANK,

a Texas Banking Association, as a Lender

 	 
	 	By:  	/s/ David Whiting
 	 
	 	 	Title: Senior Vice President 	 
	 	 	 	 




Signature Page to Credit Agreement


 









 








Schedule A-1




Agent’s Account



WELLS FARGO FOOTHILL, LLC



An account at a bank designated by Agent from time to time as the account into which Borrower shall
make all payments to Agent for the benefit of the Lender Group and into which the Lender Group
shall make all payments to Agent under this Agreement and the other Loan Documents; unless and
until Agent notifies Borrower and the Lender Group to the contrary, Agent’s Account shall be that
certain deposit account bearing account number [***] and maintained by Agent with Wells Fargo Bank,
N.A., San Francisco, CA, ABA #121-000-248, Credit to Wells Fargo Foothill, LLC — Technology
Finance, Re: RealPage, Inc.






Schedule A-1 — Page 1









 








Schedule A-2




Authorized Persons



Schedule A-2 — Page 1









 





Schedule C-1




Commitments



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Lender	 	Revolver Commitment	 	 	Term Loan	 	 	Total Commitment	 
	Wells Fargo Foothill, LLC
	 	$	6,250,000	 	 	$	23,750,000	 	 	$	30,000,000	 
	Comerica Bank
	 	$	3,750,000	 	 	$	11,250,000	 	 	$	15,000,000	 
	All Lenders
	 	$	10,000,000	 	 	$	35,000,000	 	 	$	45,000,000	 











Schedule C-1 — Page 1









 








Schedule D-1




Designated Account



     Account number [***] of Borrower maintained with Borrower’s Designated Account Bank, or such
other deposit account of Borrower (located within the United States) that has been designed as
such, in writing, by Borrower to Agent.



     “Designated Account Bank” means Comerica Bank, whose office is located at 1201 East
Beltline Road, Suite 150, Richardson, TX 75081, and whose ABA number is 111 000 753.








Schedule D-1 — Page 1









 








Schedule 1.1



As used in the Agreement, the following terms shall have the following definitions:




          “Account” means an account (as that term is defined in the Code).




          “Account Debtor” means any Person who is obligated on an Account, chattel paper, or a
general intangible.




          “Accounting Changes” means (a) changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants (or successor thereto or
any agency with similar functions), (ii) changes in accounting principles concurred in by
Borrower’s certified public accountants; and (iii) purchase accounting adjustments under A.P.B. 16
or 17 and EITF 88-16, and the application of the accounting principles set forth in FASB 109,
including the establishment of reserves pursuant thereto and any subsequent reversal (in whole or
in part) of such reserves.




          “ACH Transactions” means any cash management or related services (including the
Automated Clearing House processing of electronic fund transfers through the direct Federal Reserve
Fedline system) provided by a Bank Product Provider for the account of Borrower or its
Subsidiaries.




          “Acquired Indebtedness” means Indebtedness of a Person whose assets or Stock is
acquired by Borrower or any of its Subsidiaries in a Permitted Acquisition; provided,
however, that such Indebtedness (a) is either Purchase Money Indebtedness or a Capital
Lease with respect to Equipment or mortgage financing with respect to Real Property, (b) was in
existence prior to the date of such Permitted Acquisition, and (c) was not incurred in connection
with, or in contemplation of, such Permitted Acquisition.




          “Acquisition” means (a) the purchase or other acquisition by a Person or its
Subsidiaries of all or substantially all of the assets of (or any division or business line of) any
other Person, or (b) the purchase or other acquisition (whether by means of a merger,
consolidation, or otherwise) by a Person or its Subsidiaries of all or substantially all of the
Stock of any other Person.




          “Additional Documents” has the meaning specified therefor in Section 5.12 of
the Agreement.




          “Advances” has the meaning specified therefor in Section 2.1(a) of the
Agreement.




          “Affected Lender” has the meaning specified therefor in Section 2.13(b) of the
Agreement.




          “Affiliate” means, as applied to any Person, any other Person who controls, is
controlled by, or is under common control with, such Person. For purposes of this definition,
“control” means the possession, directly or indirectly through one or more intermediaries, of the
power to direct the management and policies of a Person, whether through the ownership of Stock, by
contract, or otherwise; provided, however, that, for purposes of Section
6.12 of the Agreement: (a) any Person which owns directly or indirectly 10% or more of the
Stock having ordinary voting power for the election of directors or other members of the governing
body of a Person or 10% or more of the partnership or other ownership interests of a Person (other
than as a limited partner of such Person) shall be deemed an Affiliate of such Person, (b) each
director (or comparable manager) of a Person shall be deemed to be an Affiliate of such Person, and
(c) each partnership in which a Person is a general partner shall be deemed an Affiliate of such
Person.




          “Agent” has the meaning specified therefor in the preamble to the Agreement.




          “Agent-Related Persons” means Agent, together with its Affiliates, officers,
directors, employees, attorneys, and agents.







Schedule 1.1 — Page 1









 








          “Agent’s Account” means the Deposit Account of Agent identified on Schedule
A-1.




          “Agent’s Liens” means the Liens granted by Borrower or its Subsidiaries to Agent under
the Loan Documents.




          “Agreement” means the Credit Agreement to which this Schedule 1.1 is attached.




          “Application Event” means the occurrence of (a) a failure by Borrower to repay all of
the Obligations on the Maturity Date, or (b) an Event of Default and the election by Agent or the
Required Lenders to require that payments and proceeds of Collateral be applied pursuant to
Section 2.4(b)(ii) of the Agreement.




          “Assignee” has the meaning specified therefor in Section 13.1(a) of the
Agreement.




          “Assignment and Acceptance” means an Assignment and Acceptance Agreement substantially
in the form of Exhibit A-1.




          “Authorized Person” means any one of the individuals identified on Schedule
A-2, as such schedule is updated from time to time by written notice from Borrower to Agent.




          “Availability” means, as of any date of determination, the amount that Borrower is
entitled to borrow as Advances under Section 2.1 of the Agreement (after giving effect to
all then outstanding Obligations (other than Bank Product Obligations)).




          “Bank Product” means any financial accommodation extended to Borrower or its
Subsidiaries by a Bank Product Provider (other than pursuant to the Agreement and other than those
financial accommodations extended to RealPage Payment Processing by a Bank Product Provider)
including: (a) credit cards, (b) credit card processing services, (c) debit cards, (d) purchase
cards, (e) ACH Transactions, (f) cash management, including controlled disbursement, accounts or
services, or (g) transactions under Hedge Agreements.




          “Bank Product Agreements” means those agreements entered into from time to time by
Borrower or its Subsidiaries with a Bank Product Provider in connection with the obtaining of any
of the Bank Products.




          “Bank Product Collateralization” means providing cash collateral (pursuant to
documentation reasonably satisfactory to Agent) to be held by Agent for the benefit of the Bank
Product Providers in an amount determined by Agent as sufficient to satisfy the reasonably
estimated credit exposure with respect to the then existing Bank Products.




          “Bank Product Obligations” means (a) all obligations, liabilities, reimbursement
obligations, fees, or expenses owing by Borrower or its Subsidiaries to any Bank Product Provider
pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of
money, whether direct or indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, and (b) all amounts that Borrower or its Subsidiaries are obligated to reimburse
to Agent or any member of the Lender Group as a result of Agent or such member of the Lender Group
purchasing participations from, or executing guarantees or indemnities or reimbursement obligations
to, a Bank Product Provider with respect to the Bank Products provided by such Bank Product
Provider to Borrower or its Subsidiaries; provided, however, in order for any item
described in clauses (a) or (b) above to constitute “Bank Product Obligations”, (i) if the
applicable Bank Product Provider is Wells Fargo or its Affiliates, then, if requested by Agent,
Agent shall have received a Bank Product Provider Letter Agreement with respect to the applicable
Bank Product within 10 days after the date of such request, or (ii) if the applicable Bank Product
Provider is any other Person, Agent shall have received a Bank Product Provider Letter Agreement
with respect to the applicable Bank Product within 10 days after the provision of such Bank Product
to Borrower or its Subsidiaries, or, if such Bank Product Agreement was






Schedule 1.1 — Page 2









 







entered into prior to the Closing Date or prior to the date on which such Bank Product
Provider or its Affiliate, as applicable, became a Lender under the Credit Agreement, within 10
days after the Closing Date or 10 days after the date on which such Bank Product Provider or its
Affiliate, as applicable, first became a Lender under the Credit Agreement, as applicable.




          “Bank Product Provider” means any Lender or any of its Affiliates; provided,
however, that no such Person (other than Wells Fargo or its Affiliates) shall constitute a
Bank Product Provider with respect to a Bank Product unless and until Agent shall have received a
Bank Product Provider Letter Agreement with such Person and with respect to the applicable Bank
Product within 10 days after the provision of such Bank Product to Borrower or its Subsidiaries,
or, if such Bank Product Agreement was entered into prior to the Closing Date or prior to the date
on which such Bank Product Provider or its Affiliate, as applicable, became a Lender under the
Credit Agreement, within 10 days after the Closing Date or 10 days after the date on which such
Bank Product Provider or its Affiliate, as applicable, first became a Lender under the Credit
Agreement, as applicable.




          “Bank Product Provider Letter Agreement” means a letter agreement in substantially the
form attached hereto as Exhibit B-2, in form and substance satisfactory to Agent, duly
executed by the applicable Bank Product Provider, Borrower, and Agent.




          “Bank Product Reserve” means, as of any date of determination, the lesser of (x)
$5,000,000 and (y) the amount of reserves that Agent has established in its Permitted Discretion
(based upon the Bank Product Providers’ reasonable determination of the credit exposure of Borrower
and its Subsidiaries in respect of Bank Products then provided or outstanding).




          “Bankruptcy Code” means title 11 of the United States Code, as in effect from time to
time.




          “Base LIBOR Rate” means the greater of (a) 2.50 percent per annum, and (b) the rate
per annum, determined by Agent in accordance with its customary procedures, and utilizing such
electronic or other quotation sources as it considers appropriate, to be the rate at which Dollar
deposits (for delivery on the first day of the requested Interest Period) are offered to major
banks in the London interbank market 2 Business Days prior to the commencement of the requested
Interest Period, for a term and in an amount comparable to the Interest Period and the amount of
the LIBOR Rate Loan requested (whether as an initial LIBOR Rate Loan or as a continuation of a
LIBOR Rate Loan or as a conversion of a Base Rate Loan to a LIBOR Rate Loan) by Borrower in
accordance with the Agreement, which determination shall be conclusive in the absence of manifest
error.




          “Base Rate” means the greatest of (a) 3.50 percent per annum, (b) the Federal Funds
Rate plus 1/2%, (c) the Base LIBOR Rate (which rate shall be calculated based upon an Interest Period
of 3 months and shall be determined on a daily basis), plus 1%, and (d) the rate of interest
announced, from time to time, within Wells Fargo at its principal office in San Francisco as its
“prime rate”, with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not
necessarily the lowest of such rates) and serves as the basis upon which effective rates of
interest are calculated for those loans making reference thereto and is evidenced by the recording
thereof after its announcement in such internal publications as Wells Fargo may designate.




          “Base Rate Loan” means each portion of the Advances or the Term Loan that bears
interest at a rate determined by reference to the Base Rate.




          “Base Rate Margin” means, as of any date of determination (with respect to any portion
of the outstanding Advances or the Term Loan on such date that is a Base Rate Loan), the applicable
margin set forth in the following table that corresponds to the most recent Senior Leverage Ratio
calculation delivered to Agent for the end of a fiscal quarter pursuant to Section 5.1 of
the Agreement (the “Senior Leverage Ratio Calculation”); provided, however,
that for the period from the Closing Date through the date Agent receives the Senior Leverage Ratio
Calculation in respect of the testing period ending September 30, 2010, the Base Rate Margin shall
be at the margin in the row styled 

“Level II”:








Schedule 1.1 — Page 3









 








	 	 	 	 	 
	Level	 	Senior Leverage Ratio Calculation	 	Base Rate Margin
	I

	 	If the Senior Leverage Ratio is less than 1.0:1.0
	 	4.50 percentage points
	II

	 	If the Senior Leverage Ratio is greater than or
equal to 1.0:1.0
	 	5.00 percentage points






          Except as set forth in the foregoing proviso, the Base Rate Margin shall be based upon the
most recent Senior Leverage Ratio Calculation calculated as of the end of a fiscal quarter. Except
as set forth in the foregoing proviso, the Base Rate Margin shall be re-determined quarterly on the
first day of the month following the date of delivery to Agent of the certified calculation of the
Senior Leverage Ratio pursuant to Section 5.1 of the Agreement; provided,
however, that if Borrower fails to provide such certification when such certification is
due, the Base Rate Margin shall be set at the margin in the row styled “Level II” as of the first
day of the month following the date on which the certification was required to be delivered until
the date on which such certification is delivered, on which date (but not retroactively), without
constituting a waiver of any Default or Event of Default occasioned by the failure to timely
deliver such certification, the Base Rate Margin shall be set at the margin based upon the
calculations disclosed by such certification. In the event that the information regarding the
Senior Leverage Ratio contained in any certificate delivered pursuant to Section 5.1 of the
Agreement is shown to be inaccurate, and such inaccuracy, if corrected, would have led to the
application of a higher Base Rate Margin for any period (a “Base Rate Period”) than the
Base Rate Margin actually applied for such Base Rate Period, then (i) Borrower shall immediately
deliver to Agent a correct certificate for such Base Rate Period, (ii) the Base Rate Margin shall
be determined as if the correct Base Rate Margin (as set forth in the table above) were applicable
for such Base Rate Period, and (iii) Borrower shall immediately deliver to Agent full payment in
respect of the accrued additional interest as a result of such increased Base Rate Margin for such
Base Rate Period, which payment shall be promptly applied by Agent to the affected Obligations.




          “Benefit Plan” means a “defined benefit plan” (as defined in Section 3(35) of ERISA)
for which Borrower or any of its Subsidiaries or ERISA Affiliates has been an “employer” (as
defined in Section 3(5) of ERISA) within the past six years.




          “Board of Directors” means the board of directors (or comparable managers) of Borrower
or any committee thereof duly authorized to act on behalf of the board of directors (or comparable
managers).




          “Borrower” has the meaning specified therefor in the preamble to the Agreement.




          “Borrowing” means a borrowing hereunder consisting of Advances made on the same day by
the Lenders (or Agent on behalf thereof), or by Swing Lender in the case of a Swing Loan, or by
Agent in the case of a Protective Advance.




          “Borrowing Base” means, as of any date of determination, the result of:




               (a) 45% of the amount of Accounts of Loan Parties, minus




     (b) the sum of (i) the Bank Product Reserve, and (ii) the aggregate amount of
reserves, if any, established by Agent under Section 2.1(c) of the
Agreement.



          “Borrowing Base Certificate” means a certificate in the form of Exhibit B-1.




          “Borrowing Base Excess Amount” has the meaning set forth in Section 2.4(e)(i).




          “Business Day” means any day that is not a Saturday, Sunday, or other day on which
banks are authorized or required to close in the state of California, except that, if a
determination of a Business Day






Schedule 1.1 — Page 4









 







shall relate to a LIBOR Rate Loan, the term “Business Day” also shall exclude any day on which
banks are closed for dealings in Dollar deposits in the London interbank market.




          “Capital Expenditures” means, with respect to any Person for any period, the aggregate
of all expenditures by such Person and its Subsidiaries during such period that are capital
expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or
financed minus any Capitalized Software Development Costs to the extent deducted under the
definition of EBITDA for such period.




          “Capital Lease” means a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP.




          “Capitalized Lease Obligation” means that portion of the obligations under a Capital
Lease that is required to be capitalized in accordance with GAAP.




          “Capitalized Software Development Costs” means all direct and allocated costs
capitalized subsequent to establishing technological feasibility of internally developed computer
software product to be sold, leased, or otherwise marketed in accordance with GAAP as defined in
FAS 86, including but not limited to, materials, payroll and payroll-related employee costs,
purchased software to be sold, leased or otherwise marketed that has an alternative future use, and
third party contract services. For the avoidance of doubt, Capitalized Software Development Costs
shall not include capitalized software resulting from purchase price allocations in connection with
a Permitted Acquisition and shall not include purchased software not to be sold, leased or
otherwise marketed.




          “Cash Equivalents” means (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the
full faith and credit of the United States, in each case maturing within 1 year from the date of
acquisition thereof, (b) marketable direct obligations issued or fully guaranteed by any state of
the United States or any political subdivision of any such state or any public instrumentality
thereof maturing within 1 year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Rating
Group (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”), (c) commercial paper
maturing no more than 270 days from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody’s, (d) certificates of deposit,
time deposits, overnight bank deposits or bankers’ acceptances maturing within 1 year from the date
of acquisition thereof issued by any bank organized under the laws of the United States or any
state thereof or the District of Columbia or any United States branch of a foreign bank having at
the date of acquisition thereof combined capital and surplus of not less than $250,000,000, (e)
Deposit Accounts maintained with (i) any bank that satisfies the criteria described in clause (d)
above, or (ii) any other bank organized under the laws of the United States or any state thereof so
long as the full amount maintained with any such other bank is insured by the Federal Deposit
Insurance Corporation, (f) repurchase obligations of any commercial bank satisfying the
requirements of clause (d) of this definition or recognized securities dealer having combined
capital and surplus of not less than $250,000,000, having a term of not more than seven days, with
respect to securities satisfying the criteria in clauses (a) or (d) above, (g) debt securities with
maturities of six months or less from the date of acquisition backed by standby letters of credit
issued by any commercial bank satisfying the criteria described in clause (d) above, and (h)
Investments in money market funds substantially all of whose assets are invested in the types of
assets described in clauses (a) through (g) above.




          “CFC” means a Subsidiary (other than a Subsidiary organized under the laws of Canada
or any province thereof) that is a controlled foreign corporation (as that term is defined in the
IRC).




          “Change of Control” means that (a) Steve Winn fails to own and control, directly or
indirectly, 30%, or more, of the Stock of Borrower having the right to vote for the election of
members of the Board of Directors, (b) any “person” or “group” (within the meaning of Sections
13(d) and 14(d) of the Exchange Act), other than Steve Winn or Apax Partners, becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 20%,
or more, of the Stock of Borrower having the






Schedule 1.1 — Page 5









 







right to vote for the election of members of the Board of Directors, (c) a majority of the
members of the Board of Directors do not constitute Continuing Directors, or (d) Borrower fails to
own and control, directly or indirectly, 100% of the Stock of each other Loan Party, except as
otherwise permitted under Section 6.3(a) of the Agreement.




          “Closing Date” means the date of the making of the Term Loan hereunder.




          “Code” means the California Uniform Commercial Code, as in effect from time to time.




          “Collateral” means all assets and interests in assets and proceeds thereof now owned
or hereafter acquired by Borrower or its Subsidiaries in or upon which a Lien is granted by such
Person in favor of Agent or the Lenders under any of the Loan Documents.




          “Collateral Access Agreement” means a landlord waiver, bailee letter, or
acknowledgement agreement of any lessor, warehouseman, processor, consignee, or other Person in
possession of, having a Lien upon, or having rights or interests in Borrower’s or its Subsidiaries’
books and records or Equipment, in each case, in form and substance reasonably satisfactory to
Agent.




          “Collections” means all cash, checks, notes, instruments, and other items of payment
(including insurance proceeds, cash proceeds of asset sales, rental proceeds, and tax refunds).




          “Comerica” means Comerica Bank, a Texas Banking Association.




          “Commitment” means, with respect to each Lender, its Revolver Commitment, its Term
Loan Commitment, or its Total Commitment, as the context requires, and, with respect to all
Lenders, their Revolver Commitments, their Term Loan Commitments, or their Total Commitments, as
the context requires, in each case as such Dollar amounts are set forth beside such Lender’s name
under the applicable heading on Schedule C-1 or in the Assignment and Acceptance pursuant
to which such Lender became a Lender hereunder, as such amounts may be reduced or increased from
time to time pursuant to assignments made in accordance with the provisions of Section 13.1
of the Agreement.




          “Compliance Certificate” means a certificate substantially in the form of Exhibit
C-1 delivered by the chief financial officer of Borrower to Agent.




          “Confidential Information” has the meaning specified therefor in Section
17.9(a) of the Agreement.




          “Continuing Director” means (a) any member of the Board of Directors who was a
director (or comparable manager) of Borrower on the Closing Date, and (b) any individual who
becomes a member of the Board of Directors after the Closing Date if such individual was approved,
appointed or nominated for election to the Board of Directors by either Steve Winn or a majority of
the Continuing Directors, but excluding any such individual originally proposed for election in
opposition to the Board of Directors in office at the Closing Date in an actual or threatened
election contest relating to the election of the directors (or comparable managers) of Borrower and
whose initial assumption of office resulted from such contest or the settlement thereof.




          “Control Agreement” means a control agreement, in form and substance reasonably
satisfactory to Agent, executed and delivered by Borrower or one of its Subsidiaries, Agent, and
the applicable securities intermediary (with respect to a Securities Account) or bank (with respect
to a Deposit Account).




          “Controlled Account Agreement” has the meaning specified therefor in the Security
Agreement.





Schedule 1.1 — Page 6











 





          “Copyright Security Agreement” has the meaning specified therefor in the
Security Agreement.




          “Credit Amount” means the lesser of (a) $45,000,000 and (b) the result of (i) 52.5%
times (ii) Borrower’s TTM Recurring Revenue for the most recently completed trailing twelve
consecutive month period calculated as of the last month for which financial statements have most
recently been delivered pursuant to Section 5.1 of the Agreement.




          “Credit Amount Certificate” means a certificate in the form of Exhibit C-2.




          “Credit Amount Excess” has the meaning specified therefor in Section 2.4(e)(i)
of the Agreement.




          “Current Assets” means, as at any date of determination, the total assets of Borrower
and its Subsidiaries (other than cash and Cash Equivalents) which may properly be classified as
current assets on a consolidated balance sheet of Borrower and its Subsidiaries in accordance with
GAAP.




          “Current Liabilities” means, as at any date of determination, the total liabilities of
and its Subsidiaries which may properly be classified as current liabilities (other than the
current portion of the Term Loan, the Swing Loans and the Advances) on a consolidated balance sheet
of Borrower and its Subsidiaries in accordance with GAAP.




          “Daily Balance” means, as of any date of determination and with respect to any
Obligation, the amount of such Obligation owed at the end of such day.




          “Default” means an event, condition, or default that, with the giving of notice, the
passage of time, or both, would be an Event of Default.




          “Defaulting Lender” means any Lender that fails to make any Advance (or other
extension of credit) that it is required to make hereunder on the date that it is required to do so
hereunder.




          “Defaulting Lender Rate” means (a) for the first 3 days from and after the date the
relevant payment is due, the Base Rate, and (b) thereafter, the interest rate then applicable to
Advances that are Base Rate Loans (inclusive of the Base Rate Margin applicable thereto).




          “Deposit Account” means any deposit account (as that term is defined in the Code).




          “Designated Account” means the Deposit Account of Borrower identified on Schedule
D-1.




          “Designated Account Bank” has the meaning specified therefor in Schedule D-1.




          “Dollars” or “$” means United States dollars.




          “Domestic Subsidiary” means a Subsidiary organized under the laws of a State of the
United States or the District of Columbia.




          “Earn-outs” means unsecured liabilities of a Loan Party arising under an agreement to
make any deferred payment as a part of the purchase price for a Permitted Acquisition, including
performance bonuses or consulting payments in any related services, employment or similar
agreement, in an amount that is subject to or contingent upon the revenues, income, cash flow or
profits (or the like) of the underlying target, in each case, to the extent that such deferred
payment would be included as part of such purchase price.




          “EBITDA” means:




Schedule 1.1 — Page 7







 









 








          (a) Borrower’s and its Subsidiaries’ consolidated net earnings (or loss),




          minus




          (b) without duplication, the sum of the following amounts of Borrower and its Subsidiaries for
such period, to the extent included in determining consolidated net earnings (or loss) of Borrower
and its Subsidiaries for such period:





	 	(i)	 	extraordinary or non-recurring gains,
	 
	 	(ii)	 	interest income,
	 
	 	(iii)	 	gains on sales of assets, and
	 
	 	(iv)	 	any non-cash purchase accounting adjustments
made in connection with any Permitted Acquisition to the extent such
adjustments increase Borrower’s and its Subsidiaries’ consolidated net
earnings,





          minus




          (c) Capitalized Software Development Costs of Borrower and its Subsidiaries for such period to
the extent capitalized,




          plus




          (d) without duplication, the sum of the following amounts of Borrower and its Subsidiaries for
such period, to the extent deducted in determining consolidated net earnings (or loss) of Borrower
and its Subsidiaries for such period:




               (i) non-cash compensation expense, or other non-cash expenses or charges, arising from the
sale or issuance of stock, the granting of stock options, and the granting of stock appreciation
rights and similar arrangements or other non-cash expenses or charges, minus the amount of any such
expenses or charges when paid in cash to the extent not deducted in the computation of net earnings
(or loss),



               (ii) non-cash losses on sales of fixed assets or write-downs of fixed or intangible assets,



               (iii) non-cash net after tax extraordinary losses or non-cash non-recurring losses,



               (iv) Interest Expense,



               (v) provision for taxes based on income, profits, or capital, including federal, foreign,
state, franchise, excise, and similar taxes paid or accrued,



               (vi) to the extent not capitalized, expenses, fees, costs, and charges incurred in connection
with consummating the transactions contemplated by the Agreement on the Closing Date in an
aggregate amount not to exceed $1,100,000, and in each case, to the extent such expenses, fees,
costs, and charges are actually paid by Borrower or any of its Subsidiaries,



               (vii) to the extent not capitalized, expenses, fees, costs, and charges incurred in connection
with consummating any Permitted Acquisition in an aggregate amount not to exceed $300,000 per such
Permitted Acquisition, and in each case, to the extent such expenses, fees, costs, and charges are
actually paid by Borrower or any of its Subsidiaries,



Schedule 1.1 — Page 8






 









 








               (viii) any non-cash purchase accounting adjustments made in connection with any Permitted
Acquisition to the extent such adjustments reduce Borrower’s and its Subsidiaries’ consolidated net
earnings; and



               (ix) depreciation and amortization for such period, as determined in accordance with GAAP,
including deferred financing fees.



          For the purposes of calculating EBITDA for purposes of calculating the Senior Leverage Ratio
for any rolling 12 month period (each, a “Reference Period”), if at any time during such
Reference Period (and after the Closing Date), Borrower or any of its Subsidiaries shall have made
a Permitted Acquisition, EBITDA for such Reference Period shall be calculated after giving pro
forma effect to such Permitted Acquisition and any adjustments arising out of events which are
directly attributable to such Permitted Acquisition, are factually supportable, and are expected to
have a continuing impact, in each case, in such manner reasonably acceptable to Agent as if any
such Permitted Acquisition or adjustment occurred on the first day of such Reference Period;
provided, notwithstanding the foregoing, EBITDA shall not be adjusted (x) for the pro forma effect
of any Permitted Acquisition for purposes of calculating the Fixed Charge Coverage Ratio or Excess
Cash Flow or (y) to include any amounts that are attributable to the target of a Permitted
Acquisition and that accrue prior to the date such Permitted Acquisition is consummated.




          “Environmental Action” means any written complaint, summons, citation, notice,
directive, order, claim, litigation, investigation, judicial or administrative proceeding,
judgment, letter, or other written communication from any Governmental Authority, or any third
party involving violations of Environmental Laws or releases of Hazardous Materials (a) from any
assets, properties, or businesses of any Loan Party, any Subsidiary of a Loan Party, or any of
their predecessors in interest, (b) from adjoining properties or businesses, or (c) from or onto
any facilities which received Hazardous Materials generated by any Loan Party, any Subsidiary of a
Loan Party, or any of their predecessors in interest.




          “Environmental Law” means any applicable federal, state, provincial, foreign or local
statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and
enforceable written policy, or rule of common law now or hereafter in effect and in each case as
amended, or any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, in each case, to the extent binding on Borrower
or its Subsidiaries, relating to the environment, the effect of the environment on employee health,
or Hazardous Materials, in each case as amended from time to time.




          “Environmental Liabilities” means all liabilities, monetary obligations, losses,
damages, punitive damages, consequential damages, treble damages, costs and expenses (including all
reasonable fees, disbursements and expenses of counsel, experts, or consultants, and costs of
investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a
result of any claim or demand, or Remedial Action required, by any Governmental Authority or any
third party, and which relate to any Environmental Action.




          “Environmental Lien” means any Lien in favor of any Governmental Authority for
Environmental Liabilities.




          “Equipment” means equipment (as that term is defined in the Code).




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto.




          “ERISA Affiliate” means (a) any Person subject to ERISA whose employees are treated as
employed by the same employer as the employees of Borrower or its Subsidiaries under IRC Section
414(b), (b) any trade or business subject to ERISA whose employees are treated as employed by the
same employer as the employees of Borrower or its Subsidiaries under IRC Section 414(c), (c) solely
for purposes of Section 302




Schedule 1.1 — Page 9





 









 







of ERISA and Section 412 of the IRC, any organization subject to ERISA that is a member of an
affiliated service group of which Borrower or any of its Subsidiaries is a member under IRC Section
414(m), or (d) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any Person
subject to ERISA that is a party to an arrangement with Borrower or any of its Subsidiaries and
whose employees are aggregated with the employees of Borrower or its Subsidiaries under IRC Section
414(o).




          “Event of Default” has the meaning specified therefor in Section 8 of the
Agreement.




          “Excess Availability” means, as of any date of determination, the amount equal to
Availability minus the aggregate amount, if any, of all trade payables of Borrower and its
Subsidiaries in excess of 90 days past due (but excluding therefrom any such trade payables being
disputed in good faith) and all book overdrafts of Borrower and its Subsidiaries in excess of
historical practices with respect thereto, in each case as determined by Agent in its Permitted
Discretion.




          “Excess Cash Flow” means, with respect to any fiscal year of Borrower,




          (a) EBITDA,




          plus




          (b) without duplication, the sum of




               (i) extraordinary or non-recurring cash gains, and



               (ii) interest income received in cash,



          minus




          (c) without duplication, the sum of




               (i) Interest Expense paid in cash,



               (ii) scheduled principal payments and voluntary prepayments on the Term Loans, the Preferred
Shareholder Notes and other Permitted Indebtedness,



               (iii) the cash portion of all Capital Expenditures made by Borrower or its Subsidiaries (to
the extent that such Capital Expenditures are permitted to be made under the Agreement and such
payments are not made with the proceeds of Indebtedness (other than Advances) or the issuance of
Stock),



               (iv) payments of, or in respect of, taxes based on income, profits, or capital, including
federal, foreign, state, franchise, excise, and similar taxes (to the extent paid in cash) by
Borrower and its Subsidiaries,



               (v) cash payments made in respect of Permitted Acquisitions (in each case, to the extent such
payments are not made with the proceeds of Indebtedness (other than Advances) or the issuance of
Stock),



               (vi) cash payments made in respect of the RealHound Payment (to the extent not otherwise
deducted in determining consolidated net earnings (or loss) of Borrower and its Subsidiaries),



               (vii) cash payments made in respect of Earn-outs permitted to be incurred pursuant to clause
(r) of the definition of Permitted Indebtedness (to the extent not otherwise deducted in
determining consolidated net earnings (or loss) of Borrower and its Subsidiaries),



Schedule 1.1 — Page 10






 









 








               (viii) to the extent not capitalized, expenses, fees, costs, and charges incurred in
connection with consummating the transactions contemplated by the Agreement on the Closing Date in
an aggregate amount not to exceed $1,100,000, and in each case, to the extent such expenses, fees,
costs, and charges are actually paid by Borrower or any of its Subsidiaries in cash, and



               (ix) to the extent not capitalized, expenses, fees, costs, and charges incurred in connection
with consummating any Permitted Acquisition in an aggregate amount not to exceed $300,000 per such
Permitted Acquisition, and in each case, to the extent such expenses, fees, costs, and charges are
actually paid by Borrower or any of its Subsidiaries in cash,



          “Exchange Act” means the Securities Exchange Act of 1934, as in effect from time to
time.




          “Existing Credit Agreement” means the Loan and Security Agreement dated as of May 28,
2004 between Borrower and Comerica Bank.




          “Extraordinary Receipts” means any cash received by Borrower or any of its
Subsidiaries not in the ordinary course of business (and not consisting of proceeds described in
Section 2.4(e)(ii) of the Agreement) consisting of (a) proceeds of judgments, proceeds of
settlements or other consideration of any kind in connection with any cause of action (other than,
so long as no Event of Default has occurred and is continuing, to the extent such proceeds or other
consideration are received by Borrower or any of its Subsidiaries as reimbursement for any out of
pocket expenses incurred by Borrower or such Subsidiary in connection with such cause of action),
(b) indemnity payments (other than to the extent such indemnity payments are (i) immediately
payable to a Person that is not an Affiliate of Borrower or any of its Subsidiaries, or (ii)
received by Borrower or any of its Subsidiaries as reimbursement for any payment previously made to
such Person), and (c) any purchase price adjustment (other than a working capital adjustment)
received in connection with any purchase agreement, in each case after deducting therefrom only (x)
reasonable fees, commissions, and expenses related thereto and required to be paid by Borrower or
such Subsidiary in connection with such receipt and (y) taxes paid or payable to any taxing
authorities by Borrower or such Subsidiary in connection with such receipt, in each case to the
extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such
cash, actually paid or payable to a Person that is not an Affiliate of Borrower or any of its
Subsidiaries, and are properly attributable to such receipt.




          “Fee Letter” means that certain fee letter between Borrower and Agent, in form and
substance reasonably satisfactory to Agent.




          “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal to, for each day during such period, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the quotations for
such day on such transactions received by Agent from three Federal funds brokers of recognized
standing selected by it.




          “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 and (e) any payment made in respect of the RealHound Payment during such period. For
the avoidance of doubt, none of (x) the payment to Intacct, Inc. made on August 11, 2009 in the
amount of $2,500,000, (y) the payment to Intacct, Inc. to be made in an amount not to exceed
$100,000 (so long as such payment is made




Schedule 1.1 — Page 11






 









 







on or before December 31, 2009) and (z) the payment made in respect of the OpsTechnology
Payment (so long as such payment is made on or before December 31, 2009) shall constitute a Fixed
Charge.




          “Fixed Charge Coverage Ratio” means, with respect to Borrower for any period, the
ratio of (i) EBITDA for such period minus Capital Expenditures made during such period to the
extent paid in cash (and not financed with proceeds of Indebtedness (other than Indebtedness under
the Agreement) or the issuance of Stock), to (ii) Fixed Charges for such period.




          “Foreign Lender” means any Lender or Participant that is not a United States person
within the meaning of IRC section 7701(a)(30).




          “Funding Date” means the date on which a Borrowing occurs.




          “Funding Losses” has the meaning specified therefor in Section 2.12(b)(ii) of
the Agreement.




          “GAAP” means generally accepted accounting principles as in effect from time to time
in the United States, consistently applied.




          “Governing Documents” means, with respect to any Person, the certificate or articles
of incorporation, by-laws, or other organizational documents of such Person.




          “Governmental Authority” means any federal, state, local, or other governmental or
administrative body, instrumentality, board, department, or agency or any court, tribunal,
administrative hearing body, arbitration panel, commission, or other similar dispute-resolving
panel or body.




          “Guarantors” means (a) each Subsidiary of Borrower that has guarantied any of the
Obligations, and (b) each other Person that becomes a guarantor after the Closing Date pursuant to
Section 5.11 of the Agreement, and “Guarantor” means any one of them; provided that
RealPage Payment Processing Services, Inc. shall not be required to become a Guarantor.




          “Guaranty” means that certain general continuing guaranty executed and delivered by
each Guarantor in favor of Agent, for the benefit of the Lender Group and the Bank Product
Providers, in form and substance reasonably satisfactory to Agent.




          “Hazardous Materials” means (a) substances that are defined or listed in, or otherwise
classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous
materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define,
list, or classify substances by reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum, or
petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids,
produced waters, and other wastes associated with the exploration, development, or production of
crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any
radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil
or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per
million.




          “Hedge Agreement” means any and all agreements or documents now existing or hereafter
entered into by Borrower or any of its Subsidiaries that provide for an interest rate, credit,
commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap,
cross currency rate swap, currency option, or any combination of, or option with respect to, these
or similar transactions, for the purpose of hedging Borrower’s or any of its Subsidiaries’ exposure
to fluctuations in interest or exchange rates, loan, credit exchange, security, or currency
valuations or commodity prices.




          “Holdback” means a portion of the purchase price for a Permitted Acquisition not paid
at the closing therefor but held by a Loan Party for satisfaction of indemnification obligations
and purchase price adjustments.




Schedule 1.1 — Page 12






 









 








          “Holdout Lender” has the meaning specified therefor in Section 14.2(a) of the
Agreement.




          “Indebtedness” means (a) all obligations for borrowed money, (b) all obligations
evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other
obligations in respect of letters of credit, bankers acceptances, or other financial products, (c)
all obligations as a lessee under Capital Leases, (d) all obligations or liabilities of others
secured by a Lien on any asset of a Person, irrespective of whether such obligation or liability is
assumed, (e) all obligations to pay the deferred purchase price of assets (other than trade
payables incurred in the ordinary course of business and repayable in accordance with customary
trade practices), including, without limitation, all Earn-outs and Holdbacks in connection with
Acquisitions, (f) all obligations owing under Hedge Agreements (which amount shall be calculated
based on the amount that would be payable by such Person if the Hedge Agreement were terminated on
the date of determination), (g) any Prohibited Stock, and (h) any obligation guaranteeing or
intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted, or
sold with recourse) any obligation of any other Person that constitutes Indebtedness under any of
clauses (a) through (g) above. For purposes of this definition, (i) the amount of any Indebtedness
represented by a guaranty or other similar instrument shall be the lesser of the principal amount
of the obligations guaranteed and still outstanding and the maximum amount for which the
guaranteeing Person may be liable pursuant to the terms of the instrument embodying such
Indebtedness, and (ii) the amount of any Indebtedness described in clause (d) above shall be the
lower of the amount of the obligation and the fair market value of the assets securing such
obligation.




          “Indemnified Liabilities” has the meaning specified therefor in Section 10.3
of the Agreement.




          “Indemnified Person” has the meaning specified therefor in Section 10.3 of the
Agreement.




          “Insolvency Proceeding” means any proceeding commenced by or against any Person under
any provision of the Bankruptcy Code or under any other state or federal bankruptcy or insolvency
law, assignments for the benefit of creditors, formal or informal moratoria, compositions,
extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other
similar relief.




          “Intercompany Subordination Agreement” means a subordination agreement executed and
delivered by Borrower, each of its Subsidiaries, and Agent, the form and substance of which is
reasonably satisfactory to Agent; provided that neither RealPage Payment Processing nor RealPage
India Private Limited shall be required to execute and deliver an Intercompany Subordination
Agreement.




          “Interest Expense” means, for any period, the aggregate of the interest expense of
Borrower for such period, determined on a consolidated basis in accordance with GAAP.




          “Interest Period” means, with respect to each LIBOR Rate Loan, a period commencing on
the date of the making of such LIBOR Rate Loan (or the continuation of a LIBOR Rate Loan or the
conversion of a Base Rate Loan to a LIBOR Rate Loan) and ending 1, 2, or 3 months thereafter;
provided, however, that (a) interest shall accrue at the applicable rate based upon
the LIBOR Rate from and including the first day of each Interest Period to, but excluding, the day
on which any Interest Period expires, (b) any Interest Period that would end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such Business Day falls
in another calendar month, in which case such Interest Period shall end on the next preceding
Business Day, (c) with respect to an Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period), the Interest Period shall end on the last Business Day
of the calendar month that is 1, 2, or 3 months after the date on which the Interest Period began,
as applicable, and (d) Borrower may not elect an Interest Period which will end after the Maturity
Date.




          “Investment” means, with respect to any Person, any investment by such Person in any
other Person (including Affiliates) in the form of loans, guarantees, advances, capital
contributions (excluding (a) commission, travel, and similar advances to officers and employees of
such Person made in the ordinary




Schedule 1.1 — Page 13







 









 







course of business, and (b) bona fide Accounts arising in the ordinary course of business
consistent with past practice), or acquisitions of Indebtedness, Stock, or all or substantially all
of the assets of such other Person (or of any division or business line of such other Person),
including any Acquisition, and any other items that are or would be classified as investments on a
balance sheet prepared in accordance with GAAP.




          “IRC” means the Internal Revenue Code of 1986, as in effect from time to time.




          “IP Reporting Certificate” means a certificate in the form of Exhibit I-1.




          “Issuing Lender” means WFF or any other Lender that, at the request of Borrower and
with the consent of Agent, agrees, in such Lender’s sole discretion, to become an Issuing Lender
for the purpose of issuing Letters of Credit or Reimbursement Undertakings pursuant to Section
2.11 of the Agreement.




          “Lender” and “Lenders” have the respective meanings set forth in the preamble
to the Agreement, and shall include any other Person made a party to the Agreement in accordance
with the provisions of Section 13.1 of the Agreement.




          “Lender Group” means each of the Lenders (including the Issuing Lender) and Agent, or
any one or more of them.




          “Lender Group Expenses” means all (a) costs or expenses (including, without
duplication, taxes, and insurance premiums) required to be paid by Borrower or its Subsidiaries
under any of the Loan Documents that are paid, advanced, or incurred by the Lender Group, (b)
out-of-pocket fees or charges paid or incurred by the Lender Group in connection with the Lender
Group’s transactions with Borrower or its Subsidiaries under any of the Loan Documents, including,
fees or charges for photocopying, notarization, couriers and messengers, telecommunication, public
record searches (including tax lien, litigation, and UCC searches and including searches with the
patent and trademark office, the copyright office, or the department of motor vehicles), filing,
recording, publication, appraisal (including periodic collateral appraisals or business valuations
to the extent of the fees and charges (and up to the amount of any limitation) contained in the
Agreement or the Fee Letter), real estate surveys, real estate title policies and endorsements, and
environmental audits, (c) out-of-pocket costs and expenses incurred by the Lender Group in the
disbursement of funds to Borrower or other members of the Lender Group (by wire transfer or
otherwise), (d) out-of-pocket charges paid or incurred by the Lender Group resulting from the
dishonor of checks payable by or to any Loan Party, (e) reasonable out-of-pocket costs and expenses
paid or incurred by the Lender Group to correct any default or enforce any provision of the Loan
Documents, or during the continuance of an Event of Default, in gaining possession of, maintaining,
handling, preserving, storing, shipping, selling, preparing for sale, or advertising to sell the
Collateral, or any portion thereof, irrespective of whether a sale is consummated, (f) reasonable
out-of-pocket audit fees and expenses (including travel, meals, and lodging) of the Lender Group
related to any inspections or audits to the extent of the fees and charges (and up to the amount of
any limitation) contained in the Agreement or the Fee Letter, (g) reasonable out-of-pocket costs
and expenses of third party claims or any other suit paid or incurred by the Lender Group in
enforcing or defending the Loan Documents or in connection with the transactions contemplated by
the Loan Documents or the Lender Group’s relationship with Borrower or any of its Subsidiaries, (h)
the Lender Group’s reasonable costs and expenses (including reasonable attorneys fees) incurred in
advising, structuring, drafting, reviewing, administering (including travel, meals, and lodging),
syndicating (including rating the Term Loan), or amending the Loan Documents, and (i) the Lender
Group’s reasonable costs and expenses (including reasonable attorneys, accountants, consultants,
and other advisors fees and expenses) incurred in terminating, enforcing (including attorneys,
accountants, consultants, and other advisors fees and expenses incurred in connection with a
“workout,” a “restructuring,” or an Insolvency Proceeding concerning Borrower or any of its
Subsidiaries or in exercising rights or remedies under the Loan Documents), or defending the Loan
Documents, irrespective of whether suit is brought, or in taking any Remedial Action concerning the
Collateral.




          “Lender Group Representatives” has the meaning specified therefor in Section
17.9 of the Agreement.




Schedule 1.1 — Page 14






 









 








          “Lender-Related Person” means, with respect to any Lender, such Lender, together with
such Lender’s Affiliates, officers, directors, employees, attorneys, and agents.




          “Letter of Credit” means a letter of credit issued by Issuing Lender or a letter of
credit issued by Underlying Issuer, as the context requires.




          “Letter of Credit Collateralization” means either (a) providing cash collateral
(pursuant to documentation reasonably satisfactory to Agent, including provisions that specify that
the Letter of Credit fee and all usage charges set forth in the Agreement will continue to accrue
while the Letters of Credit are outstanding) to be held by Agent for the benefit of those Lenders
with a Revolver Commitment in an amount equal to 105% of the then existing Letter of Credit Usage,
(b) causing the Letters of Credit to be returned to the Issuing Lender, or (c) providing Agent with
a standby letter of credit, in form and substance reasonably satisfactory to Agent, from a
commercial bank acceptable to Agent (in its sole discretion) in an amount equal to 105% of the then
existing Letter of Credit Usage (it being understood that the Letter of Credit fee and all usage
charges set forth in the Agreement will continue to accrue while the Letters of Credit are
outstanding and that any such fees that accrue must be an amount that can be drawn under any such
standby letter of credit).




          “Letter of Credit Disbursement” means a payment made by Issuing Lender or Underlying
Issuer pursuant to a Letter of Credit.




          “Letter of Credit Usage” means, as of any date of determination, the aggregate undrawn
amount of all outstanding Letters of Credit.




          “LIBOR Deadline” has the meaning specified therefor in Section 2.12(b)(i) of
the Agreement.




          “LIBOR Notice” means a written notice in the form of Exhibit L-1.




          “LIBOR Option” has the meaning specified therefor in Section 2.12(a) of the
Agreement.




          “LIBOR Rate” means, for each Interest Period for each LIBOR Rate Loan, the rate per
annum determined by Agent by dividing (a) the Base LIBOR Rate for such Interest Period, by (b) 100%
minus the Reserve Percentage. The LIBOR Rate shall be adjusted on and as of the effective day of
any change in the Reserve Percentage.




          “LIBOR Rate Loan” means each portion of an Advance or the Term Loan that bears
interest at a rate determined by reference to the LIBOR Rate.




          “LIBOR Rate Margin” means, as of any date of determination (with respect to any
portion of the outstanding Advances or the Term Loan on such date that is a LIBOR Rate Loan), the
applicable margin set forth in the following table that corresponds to the most recent Senior
Leverage Ratio calculation delivered to Agent pursuant to Section 5.1 of the Agreement for
the end of a fiscal quarter (the “Senior Leverage Ratio Calculation”); provided,
however, that for the period from the Closing Date through the date Agent receives the
Senior Leverage Ratio Calculation in respect of the testing period ending September 30,
2010, the LIBOR Rate Margin shall be at the margin in the row styled “Level II”:




	 	 	 	 	 
	Level	 	Senior Leverage Ratio Calculation	 	LIBOR Rate Margin
	I

	 	If the Senior Leverage Ratio is less 1.0:1.0
	 	4.50 percentage points
	II

	 	If the Senior Leverage Ratio is greater than or equal to 1.0:1.0
	 	5.00 percentage points






Schedule 1.1 — Page 15






 









 








          Except as set forth in the foregoing proviso, the LIBOR Rate Margin shall be based upon the
most recent Senior Leverage Ratio Calculation calculated as of the end of a fiscal quarter. Except
as set forth in the foregoing proviso, the LIBOR Rate Margin shall be re-determined quarterly on
the first day of the month following the date of delivery to Agent of the certified calculation of
the Senior Leverage Ratio pursuant to Section 5.1 of the Agreement; provided,
however, that if Borrower fails to provide such certification when such certification is
due, the LIBOR Rate Margin shall be set at the margin in the row styled “Level II” as of the first
day of the month following the date on which the certification was required to be delivered until
the date on which such certification is delivered, on which date (but not retroactively), without
constituting a waiver of any Default or Event of Default occasioned by the failure to timely
deliver such certification, the LIBOR Rate Margin shall be set at the margin based upon the
calculations disclosed by such certification. In the event that the information regarding the
Senior Leverage Ratio contained in any certificate delivered pursuant to Section 5.1 of the
Agreement is shown to be inaccurate, and such inaccuracy, if corrected, would have led to the
application of a higher LIBOR Rate Margin for any period (a “LIBOR Rate Period”) than the
LIBOR Rate Margin actually applied for such LIBOR Rate Period, then (i) Borrower shall immediately
deliver to Agent a correct certificate for such LIBOR Rate Period, (ii) the LIBOR Rate Margin shall
be determined as if the correct LIBOR Rate Margin (as set forth in the table above) were applicable
for such LIBOR Rate Period, and (iii) Borrower shall immediately deliver to Agent full payment in
respect of the accrued additional interest and Letter of Credit fees as a result of such increased
LIBOR Rate Margin for such LIBOR Rate Period, which payment shall be promptly applied by Agent to
the affected Obligations.




          “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge,
deposit arrangement, encumbrance, easement, lien (statutory or other), security interest, or other
security arrangement and any other preference, priority, or preferential arrangement of any kind or
nature whatsoever, including any conditional sale contract or other title retention agreement, the
interest of a lessor under a Capital Lease and any synthetic or other financing lease having
substantially the same economic effect as any of the foregoing.




          “Loan Account” has the meaning specified therefor in Section 2.9 of the
Agreement.




          “Loan Documents” means the Agreement, the Bank Product Agreements, the Controlled
Account Agreements, the Control Agreements, the Copyright Security Agreement, any Borrowing Base
Certificate, any Credit Amount Certificate, the Fee Letter, the Guaranty, the Intercompany
Subordination Agreement, the Letters of Credit, the Mortgages, the Patent Security Agreement, the
Security Agreement, the Trademark Security Agreement, any note or notes executed by Borrower in
connection with the Agreement and payable to any member of the Lender Group, any letter of credit
application entered into by Borrower in connection with the Agreement, and any other agreement
entered into, now or in the future, by Borrower or any of its Subsidiaries and any member of the
Lender Group in connection with the Agreement.




          “Loan Party” means Borrower or any Guarantor.




          “Margin Stock” as defined in Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.




          “Material Adverse Change” means (a) a material adverse change in the business,
operations, results of operations, assets, liabilities or condition (financial or otherwise) of
Borrower and its Subsidiaries, taken as a whole, (b) a material impairment of Borrower’s and its
Subsidiaries ability to perform their obligations under the Loan Documents to which they are
parties or of the Lender Group’s ability to enforce the Obligations or realize upon the Collateral,
(c) a material impairment of the enforceability or priority of Agent’s Liens with respect to the
Collateral as a result of an action or failure to act on the part of Borrower or its Subsidiaries
or (d) a material impairment of the value of the Collateral.




          “Material Contract” means, with respect to any Person, (i) each contract or agreement
to which such Person or any of its Subsidiaries is a party involving aggregate consideration
payable to or by such Person or such Subsidiary of $1,000,000 or more during any 12-month period
(other than purchase orders in the ordinary course of the business of such Person or such
Subsidiary and other than contracts that by their




Schedule 1.1 — Page 16






 









 







terms may be terminated by such Person or Subsidiary in the ordinary course of its business
upon less than 60 days notice without penalty or premium), and (ii) all other contracts or
agreements, the loss of which could reasonably be expected to result in a Material Adverse Change.




          “Maturity Date” has the meaning specified therefor in Section 3.3 of the
Agreement.




          “Maximum Revolver Amount” means $10,000,000, decreased by the amount of reductions in
the Revolver Commitments made in accordance with Section 2.4(c) of the Agreement.




          “Moody’s” has the meaning specified therefor in the definition of Cash Equivalents.




          “Mortgage Policy” has the meaning specified therefor in Schedule 3.1(v).




          “Mortgages” means, individually and collectively, one or more mortgages, deeds of
trust, or deeds to secure debt, executed and delivered by Borrower or its Subsidiaries in favor of
Agent, in form and substance reasonably satisfactory to Agent, that encumber the Real Property
Collateral.




          “Net Cash Proceeds” means:




          (a) with respect to any sale or disposition by Borrower or any of its Subsidiaries of assets,
the amount of cash proceeds received (directly or indirectly) from time to time (whether as initial
consideration or through the payment of deferred consideration) by or on behalf of Borrower or its
Subsidiaries, in connection therewith after deducting therefrom only (i) the amount of any
Indebtedness secured by any Permitted Lien on any asset (other than (A) Indebtedness owing to Agent
or any Lender under the Agreement or the other Loan Documents and (B) Indebtedness assumed by the
purchaser of such asset) which is required to be, and is, repaid in connection with such sale or
disposition, (ii) reasonable fees, commissions, and expenses related thereto and required to be
paid by Borrower or such Subsidiary in connection with such sale or disposition and (iii) taxes
paid or payable to any taxing authorities by Borrower or such Subsidiary in connection with such
sale or disposition, in each case to the extent, but only to the extent, that the amounts so
deducted are, at the time of receipt of such cash, actually paid or payable to a Person that is not
an Affiliate of Borrower or any of its Subsidiaries, and are properly attributable to such
transaction; and




          (b) with respect to the issuance or incurrence of any Indebtedness by Borrower or any of its
Subsidiaries, or the issuance by Borrower or any of its Subsidiaries of any shares of its Stock,
the aggregate amount of cash received (directly or indirectly) from time to time (whether as
initial consideration or through the payment or disposition of deferred consideration) by or on
behalf of Borrower or such Subsidiary in connection with such issuance or incurrence, after
deducting therefrom only (i) reasonable fees, commissions, and expenses related thereto and
required to be paid by Borrower or such Subsidiary in connection with such issuance or incurrence,
(ii) taxes paid or payable to any taxing authorities by Borrower or such Subsidiary in connection
with such issuance or incurrence, in each case to the extent, but only to the extent, that the
amounts so deducted are, at the time of receipt of such cash, actually paid or payable to a Person
that is not an Affiliate of Borrower or any of its Subsidiaries, and are properly attributable to
such transaction.




          “Net Working Capital” means, as of any date of determination, Current Assets as of
such date minus Current Liabilities as of such date.




          “Obligations” means (a) all loans (including the Term Loan), Advances, debts,
principal, interest (including any interest that accrues after the commencement of an Insolvency
Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such
Insolvency Proceeding), contingent reimbursement or indemnification obligations with respect to
Reimbursement Undertaking or with respect to Letters of Credit, premiums, liabilities (including
all amounts charged to the Loan Account pursuant to the Agreement), obligations (including
indemnification obligations), fees (including the fees provided for in the Fee Letter), Lender
Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency
Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such




Schedule 1.1 — Page 17





 









 







Insolvency Proceeding), guaranties, covenants, and duties of any kind and description owing by
Borrower to the Lender Group pursuant to or evidenced by the Loan Documents and irrespective of
whether for the payment of money, whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, and including all interest not paid when due and all
other expenses or other amounts that Borrower is required to pay or reimburse by the Loan Documents
or by law or otherwise in connection with the Loan Documents, (b) all obligations of Borrower to
reimburse an Underlying Issuer in respect of Underlying Letters of Credit, and (c) all Bank Product
Obligations. Any reference in the Agreement or in the Loan Documents to the Obligations shall
include all or any portion thereof and any extensions, modifications, renewals, or alterations
thereof, both prior and subsequent to any Insolvency Proceeding.




          “OFAC” means The Office of Foreign Assets Control of the U.S. Department of the
Treasury.




          “OpsTechnology Agreement” means that certain Agreement and Plan of Merger dated as of
October 14, 2008 by and among OpsTechnology, Inc., Borrower, OT Acquisition Corp. and Rajiv Naidu
as in effect on the Closing Date.




          “OpsTechnology Payment” means the payments required to be made by Borrower pursuant to
the OpsTechnology Agreement in an aggregate amount not to exceed $2,900,000 and payable during the
fiscal year of Borrower ending December 31, 2009.




          “Originating Lender” has the meaning specified therefor in Section 13.1(e) of
the Agreement.




          “Overadvance” has the meaning specified therefor in Section 2.5 of the
Agreement.




          “Participant” has the meaning specified therefor in Section 13.1(e) of the
Agreement.




          “Participant Register” has the meaning set forth in Section 13.1(i) of the
Agreement.




          “Patent Security Agreement” has the meaning specified therefor in the Security
Agreement.




          “Patriot Act” has the meaning specified therefor in Section 4.18 of the
Agreement.




          “Payoff Date” means the first date on which all of the Obligations are paid in full
and the Commitments of the Lenders are terminated.




          “Permitted Acquisition” means any Acquisition so long as:




          (a) no Default or Event of Default shall have occurred and be continuing or would result from
the consummation of the proposed Acquisition and the proposed Acquisition is consensual,




          (b) no Indebtedness will be incurred, assumed, or would exist with respect to Borrower or its
Subsidiaries as a result of such Acquisition, other than Indebtedness permitted under clauses (g),
(r), (s) and (t) of the definition of Permitted Indebtedness, and no Liens will be incurred,
assumed, or would exist with respect to the assets of Borrower or its Subsidiaries as a result or
such Acquisition other than Permitted Liens,




          (c) Borrower has provided Agent with written confirmation, supported by reasonably detailed
calculations, that on a pro forma basis (including pro forma adjustments arising out of events
which are directly attributable to such proposed Acquisition, are factually supportable, and are
expected to have a continuing impact, in each case, determined as if the combination had been
accomplished at the beginning of the relevant period; such eliminations and inclusions to be
mutually and reasonably agreed upon by Borrower and Agent) created by adding the historical
combined financial statements of Borrower (including the combined financial statements of any other
Person or assets that were the subject of a prior Permitted Acquisition during the relevant period)
to the historical consolidated financial statements of the Person to be acquired (or the historical
financial statements related to the assets to be acquired) pursuant to the proposed




Schedule 1.1 — Page 18






 









 







Acquisition, Borrower and its Subsidiaries are projected to be in compliance with the
financial covenants in Section 7 for the 4 fiscal quarter period ended one year after the
proposed date of consummation of such proposed Acquisition,




          (d) Borrower has provided Agent with due diligence information relative to the proposed
Acquisition, including forecasted balance sheets, profit and loss statements, and cash flow
statements of the Person to be acquired, all prepared on a basis consistent with such Person’s
historical financial statements, together with appropriate supporting details and a statement of
underlying assumptions for the 1 year period following the date of the proposed Acquisition, on a
quarter by quarter basis), in form and substance (including as to scope and underlying assumptions)
reasonably satisfactory to Agent,




          (e) Borrower shall have Excess Availability plus Qualified Cash in an amount equal to or
greater than $5,000,000 immediately after giving effect to the consummation of the proposed
Acquisition,




          (f) the assets being acquired or the Person whose Stock is being acquired (i) did not have
EBITDA less than negative One Million Dollars (-$1,000,000) during the 12 consecutive month period
most recently concluded prior to the date of the proposed Acquisition and (ii) is not projected to
have negative EBITDA during the 12 consecutive month period immediately following the date of the
proposed Acquisition,




          (g) Borrower has provided Agent with written notice of the proposed Acquisition at least 15
Business Days prior to the anticipated closing date of the proposed Acquisition and, not later than
5 Business Days prior to the anticipated closing date of the proposed Acquisition, copies of the
acquisition agreement and other material documents relative to the proposed Acquisition, which
agreement and documents must be reasonably acceptable to Agent,




          (h) the assets being acquired (other than a de minimis amount of assets in relation to
Borrower’s and its Subsidiaries’ total assets), or the Person whose Stock is being acquired, are
useful in or engaged in, as applicable, the business of Borrower and its Subsidiaries or a business
reasonably related thereto,




          (i) the assets being acquired (other than a de minimis amount of assets in relation to the
assets being acquired) are located within the United States or Canada or the Person whose Stock is
being acquired is organized in a jurisdiction located within the United States or Canada,




          (j) the subject assets or Stock, as applicable, are being acquired directly by a Loan Party,
and, in connection therewith, the applicable Loan Party shall have complied with Section
5.11 or 5.12, as applicable, of the Agreement, and




          (k) the purchase consideration payable in respect of all Permitted Acquisitions (including the
proposed Acquisition and including Earn-outs and other deferred payment obligations (including
Holdbacks)) shall not exceed $30,000,000 in the aggregate plus additional Stock consideration with
a value up to $7,500,000; provided, however, that the purchase consideration
payable in respect of any single Acquisition or series of related Acquisitions shall not exceed
$13,250,000 in the aggregate plus additional Stock consideration with a value up to $7,500,000.




          “Permitted Discretion” means a determination made in the exercise of reasonable (from
the perspective of a secured lender) business judgment.




          “Permitted Dispositions” means:




          (a) sales, abandonment, or other dispositions of Equipment that is substantially worn,
damaged, or obsolete in the ordinary course of business,




          (b) sales of Inventory in the ordinary course of business,




Schedule 1.1 — Page 19







 









 








          (c) the use or transfer of money or Cash Equivalents in a manner that is not prohibited by the
terms of the Agreement or the other Loan Documents,




          (d) the licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and other
intellectual property rights in the ordinary course of business,




          (e) the granting of Permitted Liens,




          (f) the sale or discount, in each case without recourse, of Accounts arising in the ordinary
course of business, but only in connection with the compromise or collection thereof,




          (g) any involuntary loss, damage or destruction of property,




          (h) any involuntary condemnation, seizure or taking, by exercise of the power of eminent
domain or otherwise, or confiscation or requisition of use of property,




          (i) the leasing or subleasing of assets of Borrower or its Subsidiaries in the ordinary course
of business consistent with past practices,




          (j) the transfer of assets between Loan Parties,




          (k) the lapse of registered patents, trademarks and other intellectual property of Borrower
and its Subsidiaries to the extent not economically desirable in the conduct of their business,




          (l) the making of a Restricted Junior Payment that is expressly permitted to be made pursuant
to the Agreement,




          (m) the making of a Permitted Investment,




          (n) dispositions of the assets of StarFire Media, Inc. so long as no Event of Default exists,
and




          (o) dispositions of Equipment (and related software used in such Equipment) not otherwise
permitted in clauses (a) through (n) above so long as no Event of Default exists
and such disposition is made at fair market value and the aggregate fair market value of all assets
disposed of in all such dispositions during any fiscal year (including the proposed disposition)
would not exceed $500,000.




          “Permitted Indebtedness” means:




          (a) Indebtedness evidenced by the Agreement and the other Loan Documents, together with
Indebtedness owed to Underlying Issuers with respect to Underlying Letters of Credit,




          (b) Indebtedness set forth on Schedule 4.19 and any Refinancing Indebtedness in
respect of such Indebtedness,




          (c) Permitted Purchase Money Indebtedness and any Refinancing Indebtedness in respect of such
Indebtedness,




          (d) endorsement of instruments or other payment items for deposit,




          (e) Indebtedness consisting of (i) unsecured guarantees incurred in the ordinary course of
business with respect to surety and appeal bonds, performance bonds, bid bonds, appeal bonds,
completion guarantee and similar obligations; (ii) unsecured guarantees arising with respect to
customary indemnification obligations to purchasers in connection with Permitted Dispositions; and
(iii) unsecured guarantees with




Schedule 1.1 — Page 20






 









 







respect to Indebtedness of Borrower or one of its Subsidiaries, to the extent that the Person
that is obligated under such guaranty could have incurred such underlying Indebtedness,




          (f) Indebtedness evidenced by the Preferred Shareholder Notes and subject to the Preferred
Shareholder Note Subordination Agreement,




          (g) Acquired Indebtedness in an amount not to exceed $100,000 outstanding at any one time,




          (h) Indebtedness incurred in the ordinary course of business under performance, surety,
statutory, and appeal bonds,




          (i) Indebtedness owed to any Person providing property, casualty, liability, or other
insurance to Borrower or any of its Subsidiaries, so long as the amount of such Indebtedness is not
in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of,
such insurance for the year in which such Indebtedness is incurred and such Indebtedness is
outstanding only during such year,




          (j) the incurrence by Borrower or its Subsidiaries of Indebtedness under Hedge Agreements that
are incurred for the bona fide purpose of hedging the interest rate or foreign currency risk
associated with Borrower’s and its Subsidiaries’ operations and not for speculative purposes,




          (k) unsecured Indebtedness incurred in respect of netting services, overdraft protection, and
other like services, in each case, incurred in the ordinary course of business,




          (l) contingent liabilities in respect of any indemnification obligation, adjustment of
purchase price, non-compete, or similar obligation of Borrower or the applicable Loan Party
incurred in connection with the consummation of one or more Permitted Acquisitions,




          (m) contingent liabilities in respect of any indemnification obligation given by a Loan Party
to a licensee or customer in the ordinary course of business,




          (n) Indebtedness in an aggregate principal amount not to exceed $10,000,000 pursuant to the
Senior Subordinated Debt Documents and subject to the Senior Subordinated Debt Subordination
Agreement,




          (o) Indebtedness composing Permitted Investments,




          (p) the RealHound Payment,




          (q) the OpsTechnology Payment,




          (r) Earn-outs payable in cash owing to sellers of assets or Stock to a Loan Party arising in
connection with the consummation of one or more Permitted Acquisitions so long as (i) the aggregate
maximum liabilities (contingent or otherwise) for all such Earn-Outs does not exceed $5,000,000 at
any one time outstanding, (ii) the maximum liability (contingent or otherwise) for any individual
Earn-Out does not exceed 20% of the purchase consideration payable in respect of such Permitted
Acquisition and (iii) such Earn-Outs are subordinated to the Obligations on terms and conditions
reasonably acceptable to Agent and Required Lenders (including that no payments shall be made to
any such seller if an Event of Default has occurred and is continuing or Excess Availability plus
Qualified Cash is less than $5,000,000),




          (s) Earn-outs owing to sellers of assets or Stock to a Loan Party arising in connection with
the consummation of one or more Permitted Acquisitions so long as any such Earn-out is payable
solely in Stock that is not Prohibited Stock,




Schedule 1.1 — Page 21






 









 








          (t) Holdbacks owing to sellers of assets or Stock to a Loan Party arising in connection with
the consummation of one or more Permitted Acquisitions so long as (x) the aggregate maximum
liabilities (contingent or otherwise) for all such Holdbacks does not exceed $5,000,000 at any one
time outstanding and (y) Borrower has established a cash collateral account with Agent containing
cash in the amount of such Holdbacks or has entered into an escrow arrangement reasonably
acceptable to Agent with respect to such cash (or if Borrower has sufficient Availability, Agent
has established a reserve against Availability in the amount of such Holdbacks), and




          (u) other unsecured Indebtedness in an aggregate principal amount not to exceed $250,000 at
any time outstanding.




          “Permitted Intercompany Advances” means loans or equity contributions made by (a) a
Loan Party to another Loan Party, (b) a non-Loan Party to another non-Loan Party, (c) a non-Loan
Party to a Loan Party, so long as the parties thereto are party to the Intercompany Subordination
Agreement, and (d) a Loan Party to a non-Loan Party so long as (i) the aggregate amount of such
loans and equity contributions made by all Loan Parties to all non-Loan Parties does not exceed
$1,250,000 outstanding at any one time, (ii) no Event of Default has occurred and is continuing or
would result therefrom, and (iii) Borrower has Excess Availability plus Qualified Cash of
$5,000,000 or greater immediately after giving effect to each such loan.




          “Permitted Investments” means:




          (a) Investments in cash and Cash Equivalents,




          (b) Investments in negotiable instruments deposited or to be deposited for collection in the
ordinary course of business,




          (c) advances made in connection with purchases of goods or services in the ordinary course of
business,




          (d) Investments received in settlement of amounts due to any Loan Party or any of its
Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its
Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor or upon the
foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries,




          (e) Investments owned by any Loan Party or any of its Subsidiaries on the Closing Date and set
forth on Schedule P-1,




          (f) guarantees permitted under the definition of Permitted Indebtedness,




          (g) Permitted Intercompany Advances,




          (h) Stock or other securities acquired in connection with the satisfaction or enforcement of
Indebtedness or claims due or owing to a Loan Party or its Subsidiaries (in bankruptcy of customers
or suppliers or otherwise outside the ordinary course of business) or as security for any such
Indebtedness or claims,




          (i) deposits of cash made in the ordinary course of business to secure performance of
operating leases,




          (j) non-cash loans to employees, officers, and directors of Borrower or any of its
Subsidiaries for the purpose of purchasing Stock in Borrower so long as the proceeds of such loans
are used in their entirety to purchase such stock in Borrower,




          (k) Permitted Acquisitions,




Schedule 1.1 — Page 22








 









 








          (l) Investments consisting of Deposit Accounts holding cash and Cash Equivalents of Borrower
and its Subsidiaries that are subject to Control Agreements to the extent required by the Loan
Documents,




          (m) Joint ventures or strategic alliances in the ordinary course of business consisting of the
licensing of technology, the development of technology or the providing of technical support,
provided that any cash Investments by any Loan Party do not exceed $250,000 in the aggregate in any
fiscal year, and




          (n) 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.




          “Permitted Liens” means:




          (a) Liens held by Agent to secure the Obligations,




          (b) Liens for unpaid taxes, assessments, or other governmental charges or levies that either
(i) are not yet delinquent, or (ii) do not have priority over Agent’s Liens and the underlying
taxes, assessments, or charges or levies are the subject of Permitted Protests,




          (c) judgment Liens arising solely as a result of the existence of judgments, orders, or awards
that do not constitute an Event of Default under Section 8.3 of the Agreement,




          (d) Liens set forth on Schedule P-2; provided, however, that to
qualify as a Permitted Lien, any such Lien described on Schedule P-2 shall only secure the
Indebtedness that it secures on the Closing Date and any Refinancing Indebtedness in respect
thereof,




          (e) the interests of lessors under operating leases and non-exclusive licensors under license
agreements,




          (f) purchase money Liens on Equipment or the interests of lessors under Capital Leases to the
extent that such Liens or interests secure Permitted Purchase Money Indebtedness and so long as (i)
such Lien attaches only to the asset purchased or acquired (and any accessions, replacement parts
or additions thereto) and the proceeds thereof, and (ii) such Lien only secures the Indebtedness
that was incurred to acquire the asset purchased or acquired or any Refinancing Indebtedness in
respect thereof,




          (g) Liens arising by operation of law in favor of warehousemen, landlords, carriers,
mechanics, materialmen, laborers, or suppliers, incurred in the ordinary course of business and not
in connection with the borrowing of money, and which Liens either (i) are for sums not yet
delinquent, or (ii) are the subject of Permitted Protests,




          (h) Liens on amounts deposited to secure Borrower’s and its Subsidiaries obligations in
connection with worker’s compensation or other unemployment insurance,




          (i) Liens on amounts deposited to secure Borrower’s and its Subsidiaries obligations in
connection with the making or entering into of bids, tenders, or leases in the ordinary course of
business and not in connection with the borrowing of money,




          (j) Liens on amounts deposited to secure Borrower’s and its Subsidiaries reimbursement
obligations with respect to surety or appeal bonds obtained in the ordinary course of business,




          (k) with respect to any Real Property, easements, rights of way, and zoning restrictions that
do not materially interfere with or impair the use or operation thereof,




Schedule 1.1 — Page 23






 









 








          (l) non-exclusive licenses of patents, trademarks, copyrights, and other intellectual property
rights in the ordinary course of business,




          (m) Liens that are replacements of Permitted Liens to the extent that the original
Indebtedness is the subject of permitted Refinancing Indebtedness and so long as the replacement
Liens only encumber those assets that secured the original Indebtedness,




          (n) rights of setoff or bankers’ liens upon deposits of cash or securities in favor of banks
or other depository or financial institutions, solely to the extent incurred in connection with the
maintenance of such deposit accounts or securities in the ordinary course of business,




          (o) Liens granted in the ordinary course of business on the unearned portion of insurance
premiums securing the financing of insurance premiums to the extent the financing is permitted
under the definition of Permitted Indebtedness,




          (p) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods,




          (q) Liens solely on any cash earnest money deposits made by Borrower or any of its
Subsidiaries in connection with any letter of intent or purchase agreement with respect to a
Permitted Acquisition, and




          (r) Liens securing the Senior Subordinated Debt to the extent such Indebtedness is permitted
to be incurred under the Agreement and such Liens are subject to the Senior Subordinated Debt
Subordination Agreement.




          “Permitted Protest” means the right of Borrower or any of its Subsidiaries to protest
any Lien (other than any Lien that secures the Obligations), taxes (other than payroll taxes or
taxes that are the subject of a United States federal tax lien), or rental payment,
provided that (a) a reserve with respect to such obligation is established on Borrower’s or
its Subsidiaries’ books and records in such amount as is required under GAAP and (b) any such
protest is instituted promptly and prosecuted diligently by Borrower or its Subsidiary, as
applicable, in good faith.




          “Permitted Purchase Money Indebtedness” means, as of any date of determination,
Purchase Money Indebtedness incurred after the Closing Date in an aggregate principal amount
outstanding at any one time not in excess of $3,000,000.




          “Person” means natural persons, corporations, limited liability companies, limited
partnerships, general partnerships, limited liability partnerships, joint ventures, trusts, land
trusts, business trusts, or other organizations, irrespective of whether they are legal entities,
and governments and agencies and political subdivisions thereof.




          “Preferred Shareholder Note Excess Availability Amount” means (x) $10,000,000 during
Borrower’s fiscal year ending December 31, 2009 and (y) $5,000,000 during any fiscal year of
Borrower ending on or after Borrower’s fiscal year ending December 31, 2010; provided that
the dollar amounts set forth in clauses (x) and (y) above shall be increased dollar-for-dollar by
the principal amount of any Preferred Shareholder Notes issued by Borrower after the Closing Date.




          “Preferred Shareholder Note Subordination Agreement” means that certain Subordination
Agreement pertaining to the Preferred Shareholder Notes dated as of the Closing Date by and among
each creditor party thereto, Agent and Borrower.




          “Preferred Shareholder Notes” means (a) the unsecured promissory notes dated December
31, 2008 issued by Borrower to the holders of its Preferred Stock and (b) any unsecured promissory
notes issued




Schedule 1.1 — Page 24







 









 







by Borrower to the holders of its Preferred Stock after the Closing Date so long as (i)
Borrower issues such promissory notes during Borrower’s fiscal year ending December 31, 2009 or
December 31, 2010 and in no more than two issuances in the aggregate during such fiscal years, (ii)
the aggregate principal amount of such promissory notes issued during such fiscal years does not to
exceed $2,500,000, (iii) such promissory notes are subject to terms consistent with the promissory
notes described in clause (a) above and (iv) such promissory notes are subject to the Preferred
Shareholder Note Subordination Agreement, in each case, as such promissory notes described in
clauses (a) and (b) above are amended, modified, supplemented, restated, refinanced, extended or
renewed in accordance with the terms thereof and the terms of the Preferred Shareholder Note
Subordination Agreement.




          “Preferred Stock” means the Series A, Series A-1, Series B and Series C preferred
stock of Borrower issued pursuant to Borrower’s Amended and Restated Certificate of Incorporation.




          “Prohibited Stock” means any Stock that by its terms is mandatorily redeemable or
subject to any other mandatory payment obligation (including any obligation to pay dividends, other
than dividends of shares of Stock of the same class and series payable in kind or dividends of
shares of common stock) on or before a date that is less than 1 year after the Maturity Date, or,
on or before the date that is less than 1 year after the Maturity Date, is redeemable at the option
of the holder thereof for cash or assets or securities (other than distributions in kind of shares
of Stock of the same class and series or of shares of common stock).




          “Projections” means Borrower’s forecasted (a) balance sheets, (b) profit and loss
statements, and (c) cash flow statements, all prepared on a basis consistent with Borrower’s
historical financial statements, together with appropriate supporting details and a statement of
underlying assumptions.




          “Pro Rata Share” means, as of any date of determination:




          (a) with respect to a Lender’s obligation to make Advances and right to receive payments of
principal, interest, fees, costs, and expenses with respect thereto, (i) prior to the Revolver
Commitments being terminated or reduced to zero, the percentage obtained by dividing (y) such
Lender’s Revolver Commitment, by (z) the aggregate Revolver Commitments of all Lenders, and (ii)
from and after the time that the Revolver Commitments have been terminated or reduced to zero, the
percentage obtained by dividing (y) the outstanding principal amount of such Lender’s Advances by
(z) the outstanding principal amount of all Advances,




          (b) with respect to a Lender’s obligation to participate in Letters of Credit and
Reimbursement Undertakings, to reimburse the Issuing Lender, and right to receive payments of fees
with respect thereto, (i) prior to the Revolver Commitments being terminated or reduced to zero,
the percentage obtained by dividing (y) such Lender’s Revolver Commitment, by (z) the aggregate
Revolver Commitments of all Lenders, and (ii) from and after the time that the Revolver Commitments
have been terminated or reduced to zero, the percentage obtained by dividing (y) the outstanding
principal amount of such Lender’s Advances by (z) the outstanding principal amount of all Advances;
provided, however, that if all of the Advances have been repaid in full and Letters
of Credit remain outstanding, Pro Rata Share under this clause shall be determined based upon
subclause (i) of this clause as if the Revolver Commitments had not been terminated or reduced to
zero and based upon the Revolver Commitments as they existed immediately prior to their termination
or reduction to zero.




          (c) with respect to a Lender’s obligation to make the Term Loan and right to receive payments
of interest, fees, and principal with respect thereto, (i) prior to the making of the Term Loan,
the percentage obtained by dividing (y) such Lender’s Term Loan Commitment, by (z) the aggregate
amount of all Lenders’ Term Loan Commitments, and (ii) from and after the making of the Term Loan,
the percentage obtained by dividing (y) the principal amount of such Lender’s portion of the Term
Loan by (z) the principal amount of the Term Loan, and




Schedule 1.1 — Page 25






 









 








          (d) with respect to all other matters as to a particular Lender (including the indemnification
obligations arising under Section 15.7 of the Agreement), (i) prior to the Revolver
Commitments being terminated or reduced to zero, the percentage obtained by dividing (y) such
Lender’s Revolver Commitment plus the outstanding principal amount of such Lender’s portion of the
Term Loan, by (z) the aggregate amount of Revolver Commitments of all Lenders plus the outstanding
principal amount of the Term Loan, and (ii) from and after the time that the Revolver Commitments
have been terminated or reduced to zero, the percentage obtained by dividing (y) the outstanding
principal amount of such Lender’s Advances plus the outstanding principal amount of such Lender’s
portion of the Term Loan, by (z) the outstanding principal amount of all Advances plus the
outstanding principal amount of the Term Loan; provided, however, that if all of
the Advances have been repaid in full and Letters of Credit remain outstanding, Pro Rata Share
under this clause shall be determined based upon subclause (i) of this clause as if the Revolver
Commitments had not been terminated or reduced to zero and based upon the Revolver Commitments as
they existed immediately prior to their termination or reduction to zero.




          “Protective Advances” has the meaning specified therefor in Section 2.3(d)(i)
of the Agreement.




          “Purchase Money Indebtedness” means Indebtedness (other than the Obligations, but
including Capitalized Lease Obligations), incurred at the time of, or within 20 days after, the
acquisition of any fixed assets for the purpose of financing all or any part of the acquisition
cost thereof.




          “Qualified Cash” means, as of any date of determination, the amount of unrestricted
cash and Cash Equivalents of Borrower and its Subsidiaries that is in Deposit Accounts or in
Securities Accounts, or any combination thereof, and which such Deposit Account or Securities
Account is the subject of a Control Agreement and is maintained by a branch office of the bank or
securities intermediary located within the United States.




          “RealHound Asset Purchase Agreement” means that certain Asset Purchase Agreement dated
as of July 29, 2002 between Borrower and Andrew J. Blount as in effect on the Closing Date.




          “RealHound Payment” means the payments required to be made by Borrower to Andrew J.
Blount pursuant to the RealHound Asset Purchase Agreement in an aggregate amount not to exceed
$600,000 per fiscal year of Borrower.




          “RealPage Payment Processing” means RealPage Payment Processing Services, Inc.




          “Real Property” means any estates or interests in real property now owned or hereafter
acquired by Borrower or its Subsidiaries and the improvements thereto.




          “Real Property Collateral” means any Real Property hereafter acquired by Borrower or
its Subsidiaries in or upon which a Lien is granted to such Person in favor of Agent or the Lenders
under any of the Loan Documents.




          “Record” means information that is inscribed on a tangible medium or that is stored in
an electronic or other medium and is retrievable in perceivable form.




          “Recurring Revenue” means, with respect to any period, all maintenance revenues,
on-demand revenues and subscription revenues (but excluding set up and professional service
revenues related to implementation and other follow-on services) of Borrower determined on a
consolidated basis attributable to services performed and/or software owned by Borrower or any of
its Subsidiaries and earned and recognized during such period, calculated in accordance with GAAP
on a basis consistent with the financial statements delivered to Agent prior to the Closing Date,
excluding any such revenues paid more than twelve (12) months in advance of the service to be
performed. For the purposes of calculating Recurring Revenues for purposes of calculating TTM
Recurring Revenue for the 12 month period most recently ended as of any date of calculation




Schedule 1.1 — Page 26






 









 







(each, a “Reference Period”), if at any time during such Reference Period (and after
the Closing Date), Borrower or its Subsidiaries shall have made a Permitted Acquisition, Recurring
Revenues for such Reference Period shall be calculated after giving pro forma effect to such
Permitted Acquisition and any adjustments arising out of events which are directly attributable to
such Permitted Acquisition, are factually supportable, and are expected to have a continuing
impact, in each case, in such manner reasonably acceptable to Agent as if any such Permitted
Acquisition or adjustment occurred on the first day of such Reference Period.




          “Refinancing Indebtedness” means refinancings, renewals, or extensions of Indebtedness
so long as:




          (a) such refinancings, renewals, or extensions do not result in an increase in the principal
amount of the Indebtedness so refinanced, renewed, or extended,




          (b) such refinancings, renewals, or extensions do not result in a shortening of the average
weighted maturity (measured as of the refinancing, renewal, or extension) of the Indebtedness so
refinanced, renewed, or extended, nor are they on terms or conditions that, taken as a whole, are
or could reasonably be expected to be materially adverse to the interests of the Lenders,




          (c) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of
payment to the Obligations, then the terms and conditions of the refinancing, renewal, or extension
must include subordination terms and conditions that are at least as favorable to the Lender Group
as those that were applicable to the refinanced, renewed, or extended Indebtedness, and




          (d) the Indebtedness that is refinanced, renewed, or extended is not recourse to any Person
that is liable on account of the Obligations other than those Persons which were obligated with
respect to the Indebtedness that was refinanced, renewed, or extended.




          “Register” has the meaning set forth in Section 13.1(h) of the Agreement.




          “Registered Loan” has the meaning set forth in Section 13.1(h) of the
Agreement.




          “Reimbursement Undertaking” has the meaning specified therefor in Section
2.11(a) of the Agreement.




          “Related Fund” means, with respect to any Lender that is an investment fund, any other
investment fund that invests in commercial loans and that is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.




          “Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain,
treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor or
outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials
so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor
or outdoor environment, (c) restore or reclaim natural resources or the environment, (d) perform
any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or
(e) conduct any other actions with respect to Hazardous Materials required by Environmental Laws.




          “Replacement Lender” has the meaning specified therefor in Section 2.13(b) of
the Agreement.




          “Report” has the meaning specified therefor in Section 15.16 of the Agreement.




          “Required Availability” means that the sum of (a) Excess Availability, plus (b)
Qualified Cash exceeds $10,000,000.




Schedule 1.1 — Page 27





 









 








          “Required Lenders” means, at any time, Lenders whose aggregate Pro Rata Shares
(calculated under clause (d) of the definition of Pro Rata Shares) exceed 50%; provided,
however, that at any time there are 2 or more Lenders, “Required Lenders” must include at
least 2 Lenders.




          “Required Library” means the copyrights of the Borrower and its Subsidiaries that are
owned by Borrower or its Subsidiaries embedded in the Conventional and Affordable products under
the Leasing & Rents product group within the OneSite® product family and the copyrights owned by
Borrower or its Subsidiaries embedded in the Facilities product group within the OneSite® product
family.




          “Reserve Percentage” means, on any day, for any Lender, the maximum percentage
prescribed by the Board of Governors of the Federal Reserve System (or any successor Governmental
Authority) for determining the reserve requirements (including any basic, supplemental, marginal,
or emergency reserves) that are in effect on such date with respect to eurocurrency funding
(currently referred to as “eurocurrency liabilities”) of that Lender, but so long as such Lender is
not required or directed under applicable regulations to maintain such reserves, the Reserve
Percentage shall be zero.




          “Restricted Junior Payment” means to (a) declare or pay any dividend or make any other
payment or distribution on account of Stock issued by Borrower (including any payment in connection
with any merger or consolidation involving Borrower) or to the direct or indirect holders of Stock
issued by Borrower in their capacity as such (other than dividends or distributions payable in
Stock (other than Prohibited Stock) issued by Borrower, or (b) purchase, redeem, or otherwise
acquire or retire for value (including in connection with any merger or consolidation involving
Borrower) any Stock issued by Borrower.




          “Retained Amount” means an amount equal to $250,000; provided that if an Event of
Default exists, Retained Amount means an amount equal to zero.




          “Revolver Commitment” means, with respect to each Lender, its Revolver Commitment,
and, with respect to all Lenders, their Revolver Commitments, in each case as such Dollar amounts
are set forth beside such Lender’s name under the applicable heading on Schedule C-1 or in
the Assignment and Acceptance pursuant to which such Lender became a Lender hereunder, as such
amounts may be reduced or increased from time to time pursuant to assignments made in accordance
with the provisions of Section 13.1 of the Agreement.




          “Revolver Usage” means, as of any date of determination, the sum of (a) the amount of
outstanding Advances, plus (b) the amount of the Letter of Credit Usage.




          “Sanctioned Entity” means (a) a country or a government of a country, (b) an agency of
the government of a country, (c) an organization directly or indirectly controlled by a country or
its government, (d) a Person resident in or determined to be resident in a country, in each case,
that is subject to a country sanctions program administered and enforced by OFAC.




          “Sanctioned Person” means a person named on the list of Specially Designated Nationals
maintained by OFAC.




          “S&P” has the meaning specified therefor in the definition of Cash Equivalents.




          “SEC” means the United States Securities and Exchange Commission and any successor
thereto.




          “Securities Account” means a securities account (as that term is defined in the Code).




          “Securities Act” means the Securities Act of 1933, as amended from time to time, and
any successor statute.




Schedule 1.1 — Page 28







 









 








          “Security Agreement” means a security agreement, in form and substance reasonably
satisfactory to Agent, executed and delivered by Borrower and Guarantors to Agent.




          “Senior Leverage Ratio” means, as of any date of determination, the ratio of (a) the
sum of (i) the outstanding principal balance of the Term Loan plus (ii) the Revolver Usage, in each
case, as of such date, to (b) Borrower’s EBITDA for the 12-month period ended as of such date.




          “Senior Subordinated Debt” means the Indebtedness of Borrower in a maximum principal
amount of $10,000,000 incurred pursuant to the terms of the Senior Subordinated Debt Documents.




          “Senior Subordinated Debt Documents” means the Senior Subordinated Note Purchase
Agreement and the other note documents executed by and between Borrower and Senior Subordinated
Noteholder, in each case, as amended, modified, supplemented, restated, refinanced, extended or
renewed in accordance with the terms thereof and the terms of the Senior Subordination Agreement.




          “Senior Subordinated Debt Subordination Agreement” means that certain Subordination
Agreement pertaining to the Senior Subordinated Debt dated as of the Closing Date by and among the
Senior Subordinated Noteholder, Agent and Borrower.




          “Senior Subordinated Note Purchase Agreement” means the Note Purchase Agreement dated
as of August 1, 2008 by and between Borrower and Senior Subordinated Noteholder, as amended,
modified, supplemented, restated, refinanced, extended or renewed in accordance with the terms
thereof and the terms of the Senior Subordination Agreement.




          “Senior Subordinated Noteholder” means HV Capital Investors, L.L.C., a Michigan
limited liability company, or any successor or permitted assign of HV Capital Investors, L.L.C.




          “Settlement” has the meaning specified therefor in Section 2.3(e)(i) of the
Agreement.




          “Settlement Date” has the meaning specified therefor in Section 2.3(e)(i) of
the Agreement.




          “Solvent” means, with respect to any Person on a particular date, that, (i) at fair
valuations, the sum of such Person’s assets is greater than all of such Person’s debts, (ii) such
Person is able to pay its debts (including trade debts) as they mature and (iii) such Person is not
left with unreasonably small capital.




          “Stock” means all shares, options, warrants, interests, participations, or other
equivalents (regardless of how designated) of or in a Person, whether voting or nonvoting,
including common stock, preferred stock, or any other “equity security” (as such term is defined in
Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act).




          “Subsidiary” of a Person means a corporation, partnership, limited liability company,
or other entity in which that Person directly or indirectly owns or controls the shares of Stock
having ordinary voting power to elect a majority of the board of directors (or appoint other
comparable managers) of such corporation, partnership, limited liability company, or other entity.




          “Swing Lender” means WFF or any other Lender that, at the request of Borrower and with
the consent of Agent agrees, in such Lender’s sole discretion, to become the Swing Lender under
Section 2.3(b) of the Agreement.




          “Swing Loan” has the meaning specified therefor in Section 2.3(b) of the
Agreement.




          “Taxes” means any taxes, levies, imposts, duties, fees, assessments or other charges
of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments and all interest, penalties or
similar liabilities with




Schedule 1.1 — Page 29






 









 







respect thereto; provided, however, that Taxes shall exclude (i) any tax
imposed or measured by on the net income or net profits of any Lender or any Participant (including
any franchise taxes in lieu thereof and any branch profits taxes), in each case imposed by the
jurisdiction (or by any political subdivision or taxing authority thereof) in which such Lender or
such Participant is organized in which such Lender’s or such Participant’s principal office or
applicable lending office is located or with which it has a present or former connection between
such Lender or such Participant and the jurisdiction or taxing authority imposing the tax (other
than any such connection arising solely from such Lender or such Participant having executed,
delivered or performed its obligations or received payment under, or enforced its rights or
remedies under any Loan Document); (ii) taxes resulting from a Lender’s or a Participant’s failure
to comply with the requirements of Section 16(c) or (d) of the Agreement, and (iii)
any United States federal withholding taxes that would be imposed on amounts payable to a Foreign
Lender based upon the applicable withholding rate in effect at the time such Foreign Lender becomes
a party to the Agreement (or designates a new lending office), except that Taxes shall
include (A) any amount that such Foreign Lender (or its assignor, if any) was previously entitled
to receive pursuant to Section 16(a) of the Agreement, if any, with respect to such
withholding tax at the time such Foreign Lender designates a new lending office or becomes a party
to the Agreement by assignment, and (B) additional United States federal withholding taxes that may
be imposed after the time such Foreign Lender becomes a party to the Agreement (or designates a new
lending office), as a result of a change in law, rule, regulation, order or other decision with
respect to any of the foregoing by any Governmental Authority.




          “Tax Lender” has the meaning specified therefor in Section 14.2(a) of the
Agreement.




          “Term Loan” has the meaning specified therefor in Section 2.2 of the
Agreement.




          “Term Loan Amount” means $35,000,000.




          “Term Loan Commitment” means, with respect to each Lender, its Term Loan Commitment,
and, with respect to all Lenders, their Term Loan Commitments, in each case as such Dollar amounts
are set forth beside such Lender’s name under the applicable heading on Schedule C-1 or in
the Assignment and Acceptance pursuant to which such Lender became a Lender hereunder, as such
amounts may be reduced or increased from time to time pursuant to assignments made in accordance
with the provisions of Section 13.1 of the Agreement.




          “Total Commitment” means, with respect to each Lender, its Total Commitment, and, with
respect to all Lenders, their Total Commitments, in each case as such Dollar amounts are set forth
beside such Lender’s name under the applicable heading on Schedule C-1 attached hereto or
on the signature page of the Assignment and Acceptance pursuant to which such Lender became a
Lender hereunder, as such amounts may be reduced or increased from time to time pursuant to
assignments made in accordance with the provisions of Section 13.1 of the Agreement.




          “Trademark Security Agreement” has the meaning specified therefor in the Security
Agreement.




          “TTM Recurring Revenues” means, as of any date of determination, Recurring Revenues of
Borrower determined on a consolidated basis in accordance with GAAP, for the 12 month period most
recently ended.




          “Underlying Issuer” means Wells Fargo or one of its Affiliates.




          “Underlying Letter of Credit” means a Letter of Credit that has been issued by an
Underlying Issuer.




          “United States” means the United States of America.




          “Voidable Transfer” has the meaning specified therefor in Section 17.8 of the
Agreement.




Schedule 1.1 — Page 30






 









 








          “Wells Fargo” means Wells Fargo Bank, National Association, a national banking
association.




          “WFF” means Wells Fargo Foothill, LLC, a Delaware limited liability company.




Schedule 1.1 — Page 31





 











 





Schedule 3.1




     The obligation of each Lender to make its initial extension of credit provided for in the
Agreement is subject to the fulfillment, to the satisfaction of each Lender (the making of such
initial extension of credit by any Lender being conclusively deemed to be its satisfaction or
waiver of the following), of each of the following conditions precedent:



          (a) the Closing Date shall occur on or before August 14, 2009;



          (b) Agent shall have received a letter duly executed by Borrower and each Guarantor
authorizing Agent to file appropriate financing statements in such office or offices as may be
necessary or, in the opinion of Agent, desirable to perfect the security interests to be created by
the Loan Documents;



          (c) Agent shall have received evidence that appropriate financing statements have been duly
filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to
perfect the Agent’s Liens in and to the Collateral, and Agent shall have received searches
reflecting the filing of all such financing statements;



          (d) Agent shall have received each of the following documents, in form and substance
satisfactory to Agent, duly executed, and each such document shall be in full force and effect:



               (i) a Borrowing Base Certificate,



               (ii) a Credit Amount Certificate,



               (iii) the Control Agreements,



               (iv) the Security Agreement,



               (v) a disbursement letter executed and delivered by Borrower to Agent regarding the extensions
of credit to be made on the Closing Date, the form and substance of which is satisfactory to Agent,



               (vi) the Fee Letter,



               (vii) the Guaranty,



               (viii) the Intercompany Subordination Agreement,



               (ix) a letter, in form and substance satisfactory to Agent, from Comerica Bank (“Existing
Lender”) to Agent respecting the amount necessary to repay in full all of the obligations of
Borrower and its Subsidiaries owing to Existing Lender and obtain a release of all of the Liens
existing in favor of Existing Lender in and to the assets of Borrower and its Subsidiaries,
together with termination statements and other documentation evidencing the termination by Existing
Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries,



               (x) the Preferred Shareholder Note Subordination Agreement, and



               (xi) the Senior Subordinated Debt Subordination Agreement;



     (e) Agent shall have received a certificate from the Secretary of Borrower (i) attesting to
the resolutions of Borrower’s Board of Directors authorizing its execution, delivery, and
performance of this



Schedule 3.1 — Page 1









 







			
	 	 	Agreement and the other Loan Documents to which Borrower is a party, (ii) authorizing specific
officers of Borrower to execute the same, and (iii) attesting to the incumbency and signatures of
such specific officers of Borrower;





          (f) Agent shall have received copies of Borrower’s Governing Documents, as amended, modified,
or supplemented to the Closing Date, certified by the Secretary of Borrower;



          (g) Agent shall have received a certificate of status with respect to Borrower, dated within
10 days of the Closing Date, such certificate to be issued by the appropriate officer of the
jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good
standing in such jurisdiction;



          (h) Agent shall have received certificates of status with respect to Borrower, each dated
within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of
the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to
be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall
indicate that Borrower is in good standing in such jurisdictions;



          (i) Agent shall have received a certificate from the Secretary of each Guarantor (i) attesting
to the resolutions of such Guarantor’s Board of Directors authorizing its execution, delivery, and
performance of the Loan Documents to which such Guarantor is a party, (ii) authorizing specific
officers of such Guarantor to execute the same and (iii) attesting to the incumbency and signatures
of such specific officers of Guarantor;



          (j) Agent shall have received copies of each Guarantor’s Governing Documents, as amended,
modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;



          (k) Agent shall have received a certificate of status with respect to each Guarantor, dated
within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the
jurisdiction of organization of such Guarantor, which certificate shall indicate that such
Guarantor is in good standing in such jurisdiction;



          (l) Subject to Section 5.17 of the Agreement, Agent shall have received certificates
of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such
certificates to be issued by the appropriate officer of the jurisdictions (other than the
jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or
licensed would constitute a Material Adverse Change, which certificates shall indicate that such
Guarantor is in good standing in such jurisdictions;



          (m) Agent shall have received a certificate of insurance, together with the endorsements
thereto, as are required by Section 5.8, the form and substance of which shall be
satisfactory to Agent;



          (n) Agent shall have received Collateral Access Agreements with respect to the following
locations: (i) 4120 International Parkway, Suite 1000, Carrollton, Texas, (ii) 4000 International
Parkway, Suite 1000, Carrollton, Texas and (iii) 400 S. Akard, Dallas, Texas;



          (o) Agent shall have received an opinion of Borrower’s counsel in form and substance
satisfactory to Agent;



          (p) Borrower shall have the Required Availability after giving effect to the initial
extensions of credit hereunder and the payment of all fees and expenses required to be paid by
Borrower on the Closing Date under this Agreement or the other Loan Documents;



          (q) Agent shall have completed its business, legal, and collateral due diligence, including
(i) a collateral audit and review of Borrower’s and its Subsidiaries books and records (including
Borrower’s



Schedule 3.1 — Page 2









 







			
	audited financial statements for Borrower’s fiscal year ended December 31, 2008) and
verification of Borrower’s representations and warranties to Lender Group, the results of which
shall be satisfactory to Agent, and (ii) a review of Material Contracts;





     (r) Agent shall have received completed reference checks with respect to Borrower’s senior
management and USA Patriot Act checks required by law, the results of which are satisfactory to
Agent in its sole discretion;



     (s) Agent shall have received a recurring revenue valuation performed by a firm selected by
Agent, the results of which shall be satisfactory to Agent;



     (t) Agent shall have received a set of Projections of Borrower for the 3 year period following
the Closing Date (on a year by year basis, and for the 1 year period following the Closing Date, on
a month by month basis), in form and substance (including as to scope and underlying assumptions)
satisfactory to Agent;



     (u) Borrower shall have paid all Lender Group Expenses incurred in connection with the
transactions evidenced by this Agreement;



     (v) Borrower and each of its Subsidiaries shall have received all licenses, approvals or
evidence of other actions required by any Governmental Authority in connection with the execution
and delivery by Borrower or its Subsidiaries of the Loan Documents or with the consummation of the
transactions contemplated thereby;



     (w) Agent shall have received evidence that (i) all or substantially all of the intellectual
property of Borrower and its Subsidiaries (including any copyrights related to software sold or
licensed by Borrower and its Subsidiaries) (A) is owned or duly licensed by Borrower or another
Loan Party (including evidence of the transfer of any such intellectual property formerly owned by
any Foreign Subsidiary of Borrower), (B) is free and clear of liens, claims and encumbrances of any
other Person and (C) to the extent such intellectual property (other than any commercially
available “off-the-shelf” software) is used by Borrower or any of its Subsidiaries (other than the
owner of such intellectual property) to generate revenues of any non-owner, then such intellectual
property is subject to a license agreement in form and substance reasonably satisfactory to Agent
in its reasonable discretion and (ii) all Borrowers and trademarks of Borrower and its Subsidiaries
are duly registered with the U.S. Patent and Trademark Office in the name(s) of Borrower or another
Loan Party (or Borrower or such other Loan Party otherwise has a valid and enforceable common law
trademark);



     (x) Agent shall have received evidence satisfactory to it that Borrower’s Senior Leverage
Ratio calculated on a pro forma basis for the twelve month period ending June 30, 2009 does not
exceed 2.25:1.00; and



     (y) all other documents and legal matters in connection with the transactions contemplated by
this Agreement shall have been delivered, executed, or recorded and shall be in form and substance
satisfactory to Agent.



Schedule 3.1 — Page 3









 





Schedule 5.1




     Deliver to Agent, with copies to each Lender, each of the financial statements, reports, or
other items set forth below at the following times in form satisfactory to Agent:



	 	 	 
	as soon as
available, but in
any event within 30
days (or 45 days
with respect to the
last month of a
fiscal quarter)
after the end of
each month during
each of Borrower’s
fiscal years

	 	(a) an unaudited consolidated balance sheet, income
statement, statement of cash flow, and statement of
shareholder’s equity covering Borrower’s and its
Subsidiaries’ operations during such period and
compared to the prior period and plan, together
with, for each month that is the last month of a
fiscal quarter, a corresponding detailed discussion
and analysis of results from management, and
(b) Compliance Certificate along with, for each
month for which the financial covenants set forth
in Sections 7(a) and

	 
	 	(b) are required to be tested
in accordance with the terms of such Sections, the
underlying calculations in detail reasonably
acceptable to Agent, including the calculations to
arrive at EBITDA to the extent applicable.
	 
	 	 
	as soon as
available, but in
any event within 120
days after the end
of each of
Borrower’s fiscal
years

	 	(c) consolidated financial statements of Borrower
and its Subsidiaries for each such fiscal year,
audited by independent certified public accountants
reasonably acceptable to Agent and certified,
without any qualifications (including any (A)
“going concern” or like qualification or exception,
(B) qualification or exception as to the scope of
such audit, or (C) qualification which relates to
the treatment or classification of any item and
which, as a condition to the removal of such
qualification, would require an adjustment to such
item, the effect of which would be to cause any
noncompliance with the provisions of Section 4.16),
by such accountants to have been prepared in
accordance with GAAP (such audited financial
statements to include a balance sheet, income
statement, statement of cash flow, and statement of
shareholder’s equity and, if prepared, such
accountants’ letter to management),

(d) consolidating financial statements of Borrower
and its Subsidiaries for each such fiscal year, and

(e) Compliance Certificate along with the
underlying calculations in detail reasonably
acceptable to Agent, including the calculations to
arrive at EBITDA to the extent applicable.
	 
	 	 
	as soon as
available, but in
any event within 10
Business Days after
the delivery of the
consolidated audited
financial statements
of Borrower and its
Subsidiaries for
each of Borrower’s
fiscal years,
commencing with the
fiscal year ending
December 31, 2010
(but in any event
within 135 days
after the end of
each such fiscal
year)

	 	(f) a detailed calculation of Excess Cash Flow.






Schedule 5.1 - Page 1









 






	 	 	 
	as soon as
available, but in
any event within 30
days before the
start of each of
Borrower’s fiscal
years,

	 	(g) copies of Borrower’s Projections, in form and
substance (including as to scope and underlying
assumptions) satisfactory to Agent, in its
Permitted Discretion, for the forthcoming 3 years,
quarter by quarter , and for the forthcoming fiscal
year, month by month, certified by the chief
financial officer of Borrower as being such
officer’s good faith estimate of the financial
performance of Borrower during the period covered
thereby.
	 
	 	 
	if and when filed by
Borrower,

	 	(h) Form 10-Q quarterly reports, Form 10-K annual
reports, and Form 8-K current reports, and


(i) any other filings made by Borrower with the SEC.
	 
	 	 
	promptly, but in any
event within 5 days
after Borrower has
knowledge of any
event or condition
that constitutes a
Default or an Event
of Default,

	 	(j) notice of such event or condition and a
statement of the curative action that the Borrower
proposes to take with respect thereto.
	 
	 	 
	promptly after the
commencement
thereof, but in any
event within 5 days
after the service of
process with respect
thereto on Borrower
or any of its
Subsidiaries,

	 	(k) notice of all actions, suits, or proceedings
brought by or against Borrower or any of its
Subsidiaries before any Governmental Authority
which reasonably could be expected to result in a
Material Adverse Change.
	 
	 	 
	upon the request of
Agent,

	 	(l) any other information reasonably requested
relating to the financial condition of Borrower or
its Subsidiaries.






Schedule 5.1 — Page 2









 






Schedule 5.2




     Provide Agent (and if so requested by Agent, with copies for each Lender) with each of the
documents set forth below at the following times in form satisfactory to Agent:



	 	 	 
	Monthly
(not later than the 20th day
of each month)

	 	(a) a Credit Amount Certificate,
	 
	

	 	(b) a Borrowing Base Certificate,
	 
	

	 	(c) a summary aging report of Borrower’s Accounts and accounts
payable,
	 
	 

	 	(d) a report summarizing the following (i) Recurring Revenue by
recurring revenue type and product for the prior month, and (ii)
Recurring Revenue by recurring revenue type and product for the
trailing twelve months,
	 
	 

	 	(e) bank statement(s) or screen shot(s) showing the cash balances of
the Borrower and its Subsidiaries as of the end of the prior week and
an indication of the cash that is Qualified Cash, and
	 
	 

	 	(f) a detailed report regarding Borrower’s and its Subsidiaries’ cash
and Cash Equivalents, including an indication of which accounts
constitute Qualified Cash.
	 
	 	 
	Quarterly (no later than
the last day of the month 45
days following the
end of each fiscal
quarter)

	 	(g) IP Reporting Certificate, including a detailed list of the
Required Disclosure Set,
	 
	

	 	(h) copies of (i) each Material Contract entered into since the
delivery of the previous Compliance Certificate, and (ii) each
material amendment or modification of any Material Contract entered
into since the delivery of the previous Compliance Certificate,
	 
	 

	 	(i) a list of any Material Contracts terminated since the delivery of
the previous Compliance Certificate,
	 
	 

	 	(j) a certificate regarding the payment of Earn-outs during the prior
fiscal quarter, and
	 
	 

	 	(k) attrition data by recurring revenue type for the prior fiscal
quarter and trailing twelve month period consistent with what was
previously provided.
	 
	 	 
	At least once per
fiscal year,

	 	(l) a list of Borrower’s shareholders and the percentage ownership of
Borrower’s Stock owned by each such shareholder.
	 
	 	 
	Promptly after receipt thereof

	 	(m) any notice of redemption received by Borrower from the requisite
number of shareholders required to effect a mandatory redemption
under Borrower’s Governing Documents.
	 
	 	 
	Upon request by
Agent

	 	(n) Such other reports, including but not limited to a summary aging
of the Borrower’s Accounts, and a summary aging, by vendor, of
Borrower’s accounts payable, and any book overdrafts, and as to
accrued but unpaid taxes, the Collateral or the financial condition
of Borrower and its Subsidiaries, as Agent may reasonably request.