Delaware | 7372 | 75-2788861 | ||
(State or other jurisdiction
of
incorporation or organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification Number) |
Paul R. Tobias
Wilson Sonsini Goodrich & Rosati, Professional Corporation 900 S. Capital of Texas Hwy. Las Cimas IV, Fifth Floor Austin, Texas 78746 Tel: (512) 338-5400 |
William H. Hinman Jr.
Simpson Thacher & Bartlett LLP 2550 Hanover Street Palo Alto, California 94304 Tel: (650) 251-5000 |
Proposed Maximum
|
Amount of
|
|||||
Title of Each Class of
|
Aggregate Offering
|
Registration
|
||||
Securities to be Registered | Price (1)(2) | Fee | ||||
Common Stock, $0.001 par value per share
|
$150,000,000 | $10,695.00 | ||||
(1) | Includes offering price of shares issuable upon exercise of the underwriters over-allotment option. | |
(2) | Estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rule 457(o) of the Securities Act of 1933. |
The
information in this prospectus is not complete and may be
changed. Neither we nor the selling stockholders may sell these
securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities, and neither we nor the
selling stockholders are soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
|
Underwriting
|
||||||||
Price to
|
Discounts and
|
Proceeds to
|
Proceeds to
|
|||||
Public | Commissions | RealPage | Selling Stockholders | |||||
Per share
|
$ | $ | $ | $ | ||||
Total
|
$ | $ | $ | $ |
Credit Suisse | Deutsche Bank Securities |
William Blair & Company | RBC Capital Markets |
JMP Securities | Pacific Crest Securities |
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Year Ended December 31,
2007
2008
2009
(in thousands)
$
(3,143
)
$
(3,209
)
$
28,429
4,854
9,847
9,231
2,273
2,095
5,784
1,510
2,152
4,528
703
(26,028
)
490
1,476
2,805
844
$
5,984
$
13,064
$
25,593
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Increased revenues.
Our solutions help our
customers improve sales and marketing effectiveness, optimize
pricing and occupancy and improve collection of rental payments,
utility expenses, late fees and other charges.
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Reduced operating costs.
Our solutions help
our customers streamline and automate many ongoing property
management functions, centralize certain property operations,
control purchasing by on-site personnel and eliminate the need
to own and support property management applications and
associated hardware infrastructure.
Improved quality of service for residents and
prospects.
Our solutions expedite the processing
of a variety of recurring transactions and increase the
frequency and quality of communication with residents and
prospects, providing higher resident satisfaction and increased
differentiation from competing properties that do not use our
solutions.
Streamlined and simplified property management business
processes.
Our solutions share data and automate
the workflow of certain business processes, thereby eliminating
redundant data entry and simplifying many recurring tasks.
Ability to integrate third-party products and
services.
Our open architecture and application
framework facilitate the integration of third-party applications
and services into our solutions.
Increased visibility into property
performance.
Our integrated platform and common
data repository enable owners and managers to gain a
comprehensive view of the operational and financial performance
of each of their properties.
Simple implementation and support.
Our
solutions include pre-configured extensions that meet the
specific needs of a variety of property types and can be easily
tailored by our customers to meet the specific needs of their
properties or business processes.
Improved scalability.
Our application
infrastructure is designed to evolve with our customers
needs.
Integrated on demand software platform based on a common data
repository.
Our solutions are delivered through
an integrated on demand software platform that provides a single
point of access via the Internet to all of our products and a
common repository of prospect, resident and property data.
Large and growing ecosystem of property owners, managers,
prospects, residents and service providers.
Our
solutions automate and streamline many of the recurring
transactions and interactions among a large and expanding rental
housing ecosystem of property owners and managers, prospects,
residents and service providers.
Comprehensive platform of on demand software solutions for
property management.
We provide what we believe
to be the broadest range of on demand capabilities for managing
the resident lifecycle and core operational processes for
residential property management.
Deep rental housing industry expertise.
We
design our solutions based on our extensive rental housing
industry expertise, insight into industry trends and
developments and best practices.
Open cloud computing architecture.
Our cloud
computing architecture enables our solutions to interface with
many of our customers existing systems and allows our
customers to outsource the management of third-party business
applications.
acquire new customers;
increase the adoption of additional solutions within our
existing customer base;
3
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add new solutions to our platform; and
pursue acquisitions of complementary businesses, products and
technologies.
our quarterly operating results have fluctuated in the past and
may fluctuate in the future, which could cause our stock price
to decline;
we have a history of operating losses and may not maintain
profitability in the future;
if we are unable to manage the growth of our diverse and complex
operations, our financial performance may suffer;
our business depends substantially on customers renewing and
expanding their subscriptions for our solutions and any increase
in customer cancellations or decline in customer renewals and
expansions would harm our future operating results;
we face intense competitive pressures and our failure to compete
successfully could harm our operating results;
we may not be able to continue to add new customers, which could
adversely affect our operating results; and
if we are not able to integrate past or future acquisitions
successfully, our operating results and prospects could be
harmed.
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Common stock offered by us
shares
Common stock offered by the selling stockholders
shares
Total common stock offered
shares
Common stock to be outstanding after this offering
shares
Use of proceeds
We intend to use the net proceeds from this offering to pay
accumulated and unpaid dividends on our outstanding shares of
Series A, Series A1 and Series B convertible
preferred stock that have accrued at a rate of 8% per annum of
the original issue price of each such share of preferred stock,
compounded quarterly, which amounted to
$ million as
of ,
2010, to repay approximately $18.2 million of our
indebtedness outstanding as of December 31, 2009 and for
general corporate purposes, including working capital. We also
may use a portion of the net proceeds to acquire complementary
businesses or technologies. We will not receive any proceeds
from the sale of shares by the selling stockholders. See
Use of Proceeds.
Risk factors
You should read the Risk Factors section of this
prospectus for a discussion of factors that you should consider
carefully before deciding to invest in shares of our common
stock.
Proposed NASDAQ Global Market symbol
15,707,456 shares of common stock issuable upon the
exercise of options outstanding as of December 31, 2009
under our 1998 Stock Incentive Plan, with a weighted average
exercise price of $2.16 per share;
150,000 shares of common stock issuable upon exercise of
options outstanding as of December 31, 2009 issued to
directors pursuant to stock option agreements outside of our
1998 Stock Incentive Plan, with a weighted average exercise
price of $3.00 per share;
1,721,000 shares of common stock issuable upon exercise of
options granted in the quarter ended March 31, 2010 under
our 1998 Stock Incentive Plan, with a weighted average exercise
price of $3.75 per share;
120,000 shares of common stock issuable upon exercise of
options granted in the quarter ended March 31, 2010 to
directors pursuant to stock option agreements outside of our
1998 Stock Incentive Plan, with a weighted average exercise
price of $3.75 per share;
shares
of common stock reserved for future issuance under our 2010
Equity Incentive Plan, which will become effective in connection
with this offering (including 732,285 shares of common
stock reserved, as of December 31, 2009, for future
issuance under our 1998 Stock Incentive Plan, which shares will
be added to the shares reserved under our 2010 Equity Incentive
Plan, upon its effectiveness); and
25,000 shares of common stock issuable upon the exercise of
warrants outstanding as of December 31, 2009, with a
weighted average exercise price of $1.00 per share.
5
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8
Year Ended December 31,
2007
2008
2009
(in thousands, except per share data)
$
62,592
$
95,192
$
128,377
11,560
7,582
3,860
9,429
9,794
8,665
83,581
112,568
140,902
35,703
46,058
58,513
47,878
66,510
82,389
21,708
28,806
27,446
18,047
23,923
27,804
9,756
14,135
20,210
49,511
66,864
75,460
(1,633
)
(354
)
6,929
(1,510
)
(2,152
)
(4,528
)
(3,143
)
(2,506
)
2,401
703
(26,028
)
$
(3,143
)
$
(3,209
)
$
28,429
$
(9,143
)
$
(10,658
)
$
10,757
$
(9,143
)
$
(10,658
)
$
10,757
$
(0.45
)
$
(0.38
)
$
0.22
$
(0.45
)
$
(0.38
)
$
0.21
20,446
27,773
47,869
20,446
27,773
51,025
$
0.27
$
0.26
105,957
109,113
7
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As of December 31,
2007
(unaudited)
2008
2009
(in thousands)
$
2,731
$
4,248
$
4,427
9,224
12,126
12,929
59,518
102,340
142,113
23,809
48,943
53,990
87,954
129,622
136,757
78,534
71,675
71,832
(106,970
)
(98,957
)
(66,476
)
$
5,984
$
13,064
$
25,593
4,441
7,962
24,758
7,122
10,263
9,509
As of December 31,
2007
2008
2009
2,199
2,669
5,032
2,800
3,833
4,551
654
922
1,141
(1)
Pro forma net income per share represents net income divided by
the pro forma weighted average shares outstanding as though the
conversion of our redeemable convertible preferred stock into
common stock occurred on the original issuance dates.
(2)
Pro forma weighted average shares outstanding reflects the
conversion of our redeemable convertible preferred stock (using
the if-converted method) into common stock as though the
conversion had occurred on the original dates of issuance.
(3)
Excludes restricted cash.
(4)
Includes capital lease obligations.
(5)
We define Adjusted EBITDA as net (loss) income plus depreciation
and asset impairment, amortization of intangible assets,
interest expense, net, income tax expense (benefit), stock-based
compensation expense and acquisition-related expense.
We believe that the use of Adjusted EBITDA is useful to
investors and other users of our financial statements in
evaluating our operating performance because it provides them
with an additional tool to compare business performance across
companies and across periods. We believe that:
Adjusted EBITDA provides investors and other users of our
financial information consistency and comparability with our
past financial performance, facilitates period-to-period
comparisons of operations and facilitates comparisons with our
peer companies, many of which use similar non-GAAP financial
measures to supplement their GAAP results; and
it is useful to exclude certain non-cash charges, such as
depreciation and asset impairment, amortization of intangible
assets and stock-based compensation and non-core operational
charges, such as acquisition-related expense, from Adjusted
EBITDA because the amount of such expenses in any specific
period may not directly correlate to the underlying performance
of our business operations and these expenses can vary
significantly between periods as a result of new acquisitions,
full amortization of previously acquired tangible and intangible
assets or the timing of new stock-based awards, as the case may
be.
We use Adjusted EBITDA in conjunction with traditional GAAP
operating performance measures as part of our overall assessment
of our performance, for planning purposes, including the
preparation of our
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annual operating budget, to evaluate the effectiveness of our
business strategies and to communicate with our board of
directors concerning our financial performance.
We do not place undue reliance on Adjusted EBITDA as our only
measure of operating performance. Adjusted EBITDA should not be
considered as a substitute for other measures of liquidity or
financial performance reported in accordance with GAAP. There
are limitations to using non-GAAP financial measures, including
that other companies may calculate these measures differently
than we do, that they do not reflect our capital expenditures or
future requirements for capital expenditures and that they do
not reflect changes in, or cash requirements for, our working
capital. We compensate for the inherent limitations associated
with using Adjusted EBITDA measures through disclosure of these
limitations, presentation of our financial statements in
accordance with GAAP and reconciliation of Adjusted EBITDA to
the most directly comparable GAAP measure, net (loss) income.
Year Ended December 31,
2007
2008
2009
(in thousands)
$
(3,143
)
$
(3,209
)
$
28,429
4,854
9,847
9,231
2,273
2,095
5,784
1,510
2,152
4,528
703
(26,028
)
490
1,476
2,805
844
$
5,984
$
13,064
$
25,593
Year Ended December 31,
2007
2008
2009
(in thousands)
$
48
$
104
$
367
251
727
1,175
110
277
498
81
368
765
$
490
$
1,476
$
2,805
9
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the extent to which on demand software solutions maintain
current and achieve broader market acceptance;
our ability to timely introduce enhancements to our existing
solutions and new solutions;
our ability to increase sales to existing customers and attract
new customers;
changes in our pricing policies or those of our competitors;
the variable nature of our sales and implementation cycles;
general economic, industry and market conditions in the rental
housing industry that impact the financial condition of our
current and potential customers;
the amount and timing of our investment in research and
development activities;
technical difficulties, service interruptions or security
breaches;
our ability to hire and retain qualified key personnel,
including the rate of expansion of our sales force;
changes in the legal, regulatory or compliance environment
related to the rental housing industry, fair credit reporting,
payment processing, privacy, utility billing, the Internet and
e-commerce;
the amount and timing of operating expenses and capital
expenditures related to the expansion of our operations and
infrastructure;
the timing of revenue and expenses related to recent and
potential acquisitions or dispositions of businesses or
technologies;
our ability to integrate acquisitions in a cost-effective and
timely manner;
litigation and settlement costs, including unforeseen
costs; and
new accounting pronouncements and changes in accounting
standards or practices, particularly any affecting the
recognition of subscription revenue or accounting for mergers
and acquisitions.
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successfully supporting and maintaining a broad range of
solutions;
maintaining continuity in our senior management and key
personnel;
attracting, retaining, training and motivating our employees,
particularly technical, customer service and sales personnel;
enhancing our financial and accounting systems and controls;
enhancing our information technology infrastructure; and
managing expanded operations in geographically dispersed
locations.
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our inability to market our solutions in a cost-effective manner
to new customers or in new vertical or geographic markets;
our inability to expand our sales to existing customers;
our inability to build and promote our brand; and
perceived security, reliability, quality or compatibility
problems with our solutions.
difficulties in integrating and managing the operations and
technologies of the companies we acquire;
diversion of our managements attention from normal daily
operations of our business;
our inability to maintain the key employees, the key business
relationships and the reputations of the businesses we acquire;
insufficient revenue to offset our increased expenses associated
with acquisitions;
our responsibility for the liabilities of the businesses we
acquire, including, without limitation, liabilities arising out
of their failure to maintain effective data security and privacy
controls prior to the acquisition;
difficulties in complying with new regulatory standards to which
we were not previously subject;
delays in our ability to implement internal standards, controls,
procedures and policies in the businesses we acquire; and
adverse effects of acquisition activity on the key performance
indicators we use to monitor our performance as a business.
13
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extended power loss;
telecommunications failures from multiple telecommunication
providers;
natural disaster or an act of terrorism;
software and hardware errors, or failures in our own systems or
in other systems;
14
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network environment disruptions such as computer viruses,
hacking and similar problems in our own systems and in other
systems;
theft and vandalism of equipment; and
actions or events caused by or related to third parties.
15
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develop superior products or services, gain greater market
acceptance and expand their offerings more efficiently or more
rapidly;
adapt to new or emerging technologies and changes in customer
requirements more quickly;
take advantage of acquisition and other opportunities more
readily;
adopt more aggressive pricing policies and devote greater
resources to the promotion of their brand and marketing and
sales of their products and services; and
devote greater resources to the research and development of
their products and services.
17
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a reduction in new sales or subscription renewal rates;
unexpected sales credits or refunds to our customers, loss of
customers and other potential liabilities;
delays in customer payments, increasing our collection reserve
and collection cycle;
diversion of development resources and associated costs;
harm to our reputation and brand; and
unanticipated litigation costs.
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liability for customer costs related to disputed or fraudulent
merchant transactions if those amounts exceed the amount of the
customer reserves we have established to make such payments;
limits on the amount of custodial balances that any single ODFI
will underwrite;
reliance on bank sponsors and card payment processors and other
service providers to process bank card transactions;
failure by us or our bank sponsors to adhere to applicable laws
and regulatory requirements or the standards of the Visa and
MasterCard credit card associations;
incidences of fraud or a security breach or our failure to
comply with required external audit standards; and
our inability to increase our fees at times when Visa and
MasterCard increase their merchant transaction processing fees.
20
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21
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reducing the number of occupied sites and units on which we earn
revenue;
preventing our customers from expanding their businesses and
managing new properties;
causing our customers to reduce spending on our solutions;
subjecting us to increased pricing pressure in order to add new
customers and retain existing customers;
causing our customers to switch to lower-priced solutions
provided by our competitors or internally-developed solutions;
delaying or preventing our collection of outstanding accounts
receivable; and
causing payment processing losses related to an increase in
customer insolvency.
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incur additional indebtedness or guarantee indebtedness of
others;
create liens on our assets;
enter into mergers or consolidations;
dispose of assets;
prepay indebtedness or make changes to our governing documents
and certain of our agreements;
pay dividends and make other distributions on our capital stock,
and redeem and repurchase our capital stock;
make investments, including acquisitions;
enter into transactions with affiliates; and
make capital expenditures.
23
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variations in our operating results or in expectations regarding
our operating results;
variations in operating results of similar companies;
announcements of technological innovations, new solutions or
enhancements, strategic alliances or agreements by us or by our
competitors;
announcements by competitors regarding their entry into new
markets, and new product, service and pricing strategies;
marketing and advertising initiatives by us or our competitors;
the gain or loss of customers;
threatened or actual litigation;
major changes in our board of directors or management;
recruitment or departure of key personnel;
changes in the estimates of our operating results or changes in
recommendations by any research analysts that elect to follow
our common stock;
market conditions in our industry and the economy as a whole;
the overall performance of the equity markets;
sales of our shares of common stock by existing stockholders;
volatility in our stock price, which may lead to higher
stock-based compensation expense under applicable accounting
standards; and
adoption or modification of regulations, policies, procedures or
programs applicable to our business.
31
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shares
will be eligible for sale immediately upon completion of this
offering;
shares
will be eligible for sale beginning 90 days after the date
of this prospectus; and
shares
will be eligible for sale upon the expiration of
lock-up
agreements, subject in some cases to volume and other
restrictions of Rule 144 and Rule 701 under the
Securities Act of 1933, as amended, or the Securities Act.
32
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not providing for cumulative voting in the election of directors;
authorizing our board of directors to issue, without stockholder
approval, preferred stock with rights senior to those of our
common stock;
prohibiting stockholder action by written consent; and
requiring advance notification of stockholder nominations and
proposals.
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36
37
39
an actual basis;
a pro forma basis to reflect (i)
the -for-
reverse stock split of our common stock and convertible
preferred stock to be effected prior to the completion of this
offering and (ii) the conversion of all outstanding shares of
our convertible preferred stock into 58,087,500 shares of
our common stock upon the closing of this offering; and
a pro forma as adjusted basis to reflect (i) our receipt of
the net proceeds from our sale of shares of common stock in this
offering at an assumed initial public offering price of
$ per share, the midpoint of the range set
forth on the front cover of this prospectus, after deducting
estimated underwriting discounts and commissions and estimated
offering expenses and (ii) the application of the net
proceeds from this offering as described under Use of
Proceeds.
As of December 31, 2009
Pro Forma
Actual
Pro Forma
As Adjusted
(unaudited)
(unaudited)
(in thousands)
$
4,427
$
$
$
53,990
51,786
6,491
13,555
$
71,832
$
$
(1)
Includes capital lease obligations.
38
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As of December 31, 2009
Pro Forma
Actual
Pro Forma
As Adjusted
(unaudited)
(unaudited)
(in thousands)
$
53
24,206
(938
)
(89,797
)
(66,476
)
$
59,346
$
$
15,707,456 shares of common stock issuable upon the
exercise of options outstanding as of December 31, 2009
under our 1998 Stock Incentive Plan, with a weighted average
exercise price of $2.16 per share;
150,000 shares of common stock issuable upon exercise of
options outstanding as of December 31, 2009 issued to
directors pursuant to stock option agreements outside of our
1998 Stock Incentive Plan, with a weighted average exercise
price of $3.00 per share;
1,721,000 shares of common stock issuable upon exercise of
options granted in the quarter ended March 31, 2010 under
our 1998 Stock Incentive Plan, with a weighted average exercise
price of $3.75 per share;
120,000 shares of common stock issuable upon exercise of
options granted in the quarter ended March 31, 2010 to
directors pursuant to stock option agreements outside of our
1998 Stock Incentive Plan, with a weighted average exercise
price of $3.75 per share.
shares
of common stock reserved for future issuance under our 2010
Equity Incentive Plan, which will become effective in connection
with this offering (including 732,285 shares of common
stock reserved, as of December 31, 2009, for future
issuance under our 1998 Stock Incentive Plan, which shares will
be added to the shares reserved under our 2010 Equity Incentive
Plan, upon its effectiveness); and
25,000 shares of common stock issuable upon the exercise of
warrants outstanding as of December 31, 2009, with a
weighted average exercise price of $1.00 per share.
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$
$
(
)
$
Shares Purchased
Total
Average Price Per
Number
Percent
Amount
Percent
Share
111,009,108
%
$
%
$
100.0
%
$
$
100.0
%
40
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15,707,456 shares of common stock issuable upon the
exercise of options outstanding as of December 31, 2009
under our 1998 Stock Incentive Plan, with a weighted average
exercise price of $2.16 per share;
150,000 shares of common stock issuable upon exercise of
options outstanding as of December 31, 2009 issued to
directors pursuant to stock option agreements outside of our
1998 Stock Incentive Plan, with a weighted average exercise
price of $3.00 per share;
1,721,000 shares of common stock issuable upon exercise of
options granted in the quarter ended March 31, 2010 under
our 1998 Stock Incentive Plan, with a weighted average exercise
price of $3.75 per share;
120,000 shares of common stock issuable upon exercise of
options granted in the quarter ended March 31, 2010 to
directors pursuant to stock option agreements outside of our
1998 Stock Incentive Plan, with a weighted average exercise
price of $3.75 per share.
shares
of common stock reserved for future issuance under our 2010
Equity Incentive Plan, which will become effective in connection
with this offering (including 732,285 shares of common
stock reserved, as of December 31, 2009, for future
issuance under our 1998 Stock Incentive Plan, which shares will
be added to the shares reserved under our 2010 Equity Incentive
Plan, upon its effectiveness); and
25,000 shares of common stock issuable upon the exercise of
warrants outstanding as of December 31, 2009, with a
weighted average exercise price of $1.00 per share.
41
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43
Year Ended December 31,
2005
2006
(unaudited)
(unaudited)
2007
2008
2009
(in thousands, except per share data)
$
21,049
$
36,525
$
62,592
$
95,192
$
128,377
17,277
15,183
11,560
7,582
3,860
4,801
6,937
9,429
9,794
8,665
43,127
58,645
83,581
112,568
140,902
29,168
29,596
35,703
46,058
58,513
13,959
29,049
47,878
66,510
82,389
15,075
16,959
21,708
28,806
27,446
7,142
10,487
18,047
23,923
27,804
5,782
6,267
9,756
14,135
20,210
27,999
33,713
49,511
66,864
75,460
(14,040
)
(4,664
)
(1,633
)
(354
)
6,929
(381
)
(508
)
(1,510
)
(2,152
)
(4,528
)
(14,421
)
(5,172
)
(3,143
)
(2,506
)
2,401
703
(26,028
)
$
(14,421
)
$
(5,172
)
$
(3,143
)
$
(3,209
)
$
28,429
$
(19,426
)
$
(10,590
)
$
(9,143
)
$
(10,658
)
$
10,757
$
(19,426
)
$
(10,590
)
$
(9,143
)
$
(10,658
)
$
10,757
42
Table of Contents
Year Ended December 31,
2005
2006
(unaudited)
(unaudited)
2007
2008
2009
(in thousands, except per share data)
$
(1.02
)
$
(0.53
)
$
(0.45
)
$
(0.38
)
$
0.22
$
(1.02
)
$
(0.53
)
$
(0.45
)
$
(0.38
)
$
0.21
19,087
20,021
20,446
27,773
47,869
19,087
20,021
20,446
27,773
51,025
$
0.27
$
0.26
105,957
109,113
As of December 31,
2005
2006
2007
(unaudited)
(unaudited)
(unaudited)
2008
2009
(in thousands)
$
5,341
$
2,493
$
2,731
$
4,248
$
4,427
9,505
4,636
9,224
12,126
12,929
27,292
32,511
59,518
102,340
142,113
3,849
6,682
23,809
48,943
53,990
49,275
59,485
87,954
129,622
136,757
66,514
72,300
78,534
71,675
71,832
(88,497
)
(99,274
)
(106,970
)
(98,957
)
(66,476
)
$
(8,162
)
$
(692
)
$
5,984
$
13,064
$
25,593
(2,614
)
969
4,441
7,962
24,758
3,970
5,597
7,122
10,263
9,509
As of December 31,
2005
2006
2007
2008
2009
1,025
1,469
2,199
2,669
5,032
1,181
1,708
2,800
3,833
4,551
478
532
654
922
1,141
(1)
Pro forma net income per share represents net income divided by
the pro forma weighted average shares outstanding as though the
conversion of our redeemable convertible preferred stock into
common stock occurred on the original issuance dates.
Table of Contents
(2)
Pro forma weighted average shares outstanding reflects the
conversion of our redeemable convertible preferred stock (using
the if-converted method) into common stock as though the
conversion had occurred on the original dates of issuance.
(3)
Excludes restricted cash.
(4)
Includes capital lease obligations.
(5)
We define Adjusted EBITDA as net (loss) income plus depreciation
and asset impairment, amortization of intangible assets,
interest expense, net, income tax expense (benefit), stock-based
compensation expense and acquisition-related expense.
We believe that the use of Adjusted EBITDA is useful to
investors and other users of our financial statements in
evaluating our operating performance because it provides them
with an additional tool to compare business performance across
companies and across periods. We believe that:
Adjusted EBITDA provides investors and other users of our
financial information consistency and comparability with our
past financial performance, facilitates period-to-period
comparisons of operations and facilitates comparisons with our
peer companies, many of which use similar non-GAAP financial
measures to supplement their GAAP results; and
it is useful to exclude certain non-cash charges, such as
depreciation and asset impairment, amortization of intangible
assets and stock-based compensation and non-core operational
charges, such as acquisition-related expense, from Adjusted
EBITDA because the amount of such expenses in any specific
period may not directly correlate to the underlying performance
of our business operations and these expenses can vary
significantly between periods as a result of new acquisitions,
full amortization of previously acquired tangible and intangible
assets or the timing of new stock-based awards, as the case may
be.
We use Adjusted EBITDA in conjunction with traditional GAAP
operating performance measures as part of our overall assessment
of our performance, for planning purposes, including the
preparation of our annual operating budget, to evaluate the
effectiveness of our business strategies and to communicate with
our board of directors concerning our financial performance.
We do not place undue reliance on Adjusted EBITDA as our only
measure of operating performance. Adjusted EBITDA should not be
considered as a substitute for other measures of liquidity or
financial performance reported in accordance with GAAP. There
are limitations to using non-GAAP financial measures, including
that other companies may calculate these measures differently
than we do, that they do not reflect our capital expenditures or
future requirements for capital expenditures and that they do
not reflect changes in, or cash requirements for, our working
capital. We compensate for the inherent limitations associated
with using Adjusted EBITDA measures through disclosure of these
limitations, presentation of our financial statements in
accordance with GAAP and reconciliation of Adjusted EBITDA to
the most directly comparable GAAP measure, net (loss) income.
Year Ended December 31,
2005
2006
2007
2008
2009
(in thousands)
$
(14,421
)
$
(5,172
)
$
(3,143
)
$
(3,209
)
$
28,429
2,010
3,269
4,854
9,847
9,231
3,868
670
2,273
2,095
5,784
381
508
1,510
2,152
4,528
703
(26,028
)
33
490
1,476
2,805
844
$
(8,162
)
$
(692
)
$
5,984
$
13,064
$
25,593
44
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Year Ended December 31,
2005
2006
2007
2008
2009
(in thousands)
$
48
$
104
$
367
251
727
1,175
110
277
498
$
33
81
368
765
$
33
$
490
$
1,476
$
2,805
45
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CONDITION AND RESULTS OF OPERATIONS
46
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61
81
Year Ended December 31,
2007
2008
2009
(in thousands, except dollar per unit data)
$
83,581
$
112,568
$
140,902
$
62,592
$
95,192
$
128,377
74.9%
84.6%
91.1%
2,800
3,833
4,551
2,293
3,138
4,128
$
27.30
$
30.34
$
31.10
$
5,984
$
13,064
$
25,593
7.2%
11.6%
18.2%
47
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Year Ended December 31,
2007
2008
2009
(in thousands)
$
(3,143
)
$
(3,209
)
$
28,429
4,854
9,847
9,231
2,273
2,095
5,784
1,510
2,152
4,528
703
(26,028
)
490
1,476
2,805
844
$
5,984
$
13,064
$
25,593
48
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49
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Year Ended December 31,
2007
2008
2009
(in thousands)
$
9,583
$
12,650
$
33,688
8,584
10,000
10,000
10,000
11,064
8,173
5,642
5,229
2,129
3,455
2,966
2,470
50
Table of Contents
there is persuasive evidence of an arrangement;
the solution and/or service has been provided to the customer;
the collection of the fees is probable; and
the amount of fees to be paid by the customer is fixed or
determinable.
Vendor specific objective evidence (VSOE), if
available.
The price at which we sell the element
in a separate stand-alone transaction;
Third-party evidence of selling price (TPE), if VSOE of
selling price is not available.
Evidence from us
or other companies of the value of a largely interchangeable
element in a transaction; and
Estimated selling price, if neither VSOE nor TPE of selling
price is available.
Our best estimate of the
stand-alone selling price of an element in a transaction.
51
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52
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53
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1.5-4.8
%
6
0
%
50-60
%
Exercise Price
Fair Value
Options Granted
Per Share
Per Share
1,437,500
$
3.00
$
2.72
571,000
3.00
2.88
1,763,000
3.00
2.52
225,000
3.00
2.52
472,500
3.00
2.52
100,000
3.00
2.83
1,721,000
3.75
3.37
54
Table of Contents
our current and historical operating performance;
our expected future operating performance;
our financial condition at the grant date;
the liquidation rights and other preferences of our preferred
stock;
any recent privately negotiated sales of our securities to
independent third parties;
input from management;
the lack of marketability of our common stock;
the potential future marketability of our common stock;
the business risks inherent in our business and in technology
companies, generally;
the market performance of comparable publicly traded
companies; and
the U.S. and global capital market conditions.
55
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56
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57
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Year Ended December 31,
2007
2008
2009
(in thousands)
$
62,592
$
95,192
$
128,377
11,560
7,582
3,860
9,429
9,794
8,665
83,581
112,568
140,902
35,703
46,058
58,513
47,878
66,510
82,389
21,708
28,806
27,446
18,047
23,923
27,804
9,756
14,135
20,210
49,511
66,864
75,460
(1,633
)
(354
)
6,929
(1,510
)
(2,152
)
(4,528
)
(3,143
)
(2,506
)
2,401
703
(26,028
)
$
(3,143
)
$
(3,209
)
$
28,429
(1)
Includes stock-based compensation expense as follows:
Year Ended December 31,
2007
2008
2009
(in thousands)
$
48
$
104
$
367
251
727
1,175
110
277
498
81
368
765
$
490
$
1,476
$
2,805
58
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Year Ended December 31,
2007
2008
2009
(as a percentage of total revenue)
74.9
%
84.6
%
91.1
%
13.8
6.7
2.7
11.3
8.7
6.2
100.0
100.0
100.0
42.7
40.9
41.5
57.3
59.1
58.5
26.0
25.6
19.5
21.6
21.3
19.7
11.7
12.6
14.3
59.3
59.5
53.5
(2.0
)
(0.4
)
5.0
(1.8
)
(1.9
)
(3.2
)
(3.8
)
(2.3
)
1.8
0.6
(18.5
)
(3.8
)
(2.9
)
20.3
Year Ended December 31,
2008
2009
Change
% Change
(in thousands, except dollar per unit data)
$
95,192
$
128,377
$
33,185
34.9
%
7,582
3,860
(3,722
)
(49.1
)
9,794
8,665
(1,129
)
(11.5
)
$
112,568
$
140,902
$
28,334
25.2
%
3,833
4,551
718
18.7
%
3,138
4,128
990
31.5
$
30.34
$
31.10
$
0.76
2.5
%
59
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Year Ended December 31,
2008
2009
Change
% Change
(in thousands)
$
40,783
$
51,260
$
10,477
25.7
%
5,275
7,253
1,978
37.5
$
46,058
$
58,513
$
12,455
27.0
%
Year Ended December 31,
2008
2009
Change
% Change
(in thousands)
$
26,514
$
25,277
$
(1,237
)
(4.7
)%
2,292
2,169
(123
)
(5.4
)
$
28,806
$
27,446
$
(1,360
)
(4.7
)%
60
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Year Ended December 31,
2008
2009
Change
% Change
(in thousands)
$
21,649
$
23,744
$
2,095
9.7
%
2,274
4,060
1,786
78.5
$
23,923
$
27,804
$
3,881
16.2
%
Year Ended December 31,
2008
2009
Change
% Change
(in thousands)
$
12,979
$
18,923
$
5,944
45.8
%
1,156
1,287
131
11.3
$
14,135
$
20,210
$
6,075
43.0
%
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Year Ended December 31,
2007
2008
Change
% Change
(in thousands, except dollar per unit data)
$
62,592
$
95,192
$
32,600
52.1
%
11,560
7,582
(3,978
)
(34.4
)
9,429
9,794
365
3.9
$
83,581
$
112,568
$
28,987
34.7
%
2,800
3,833
1,033
36.9
%
2,293
3,138
845
36.9
$
27.30
$
30.34
$
3.04
11.1
Year Ended December 31,
2007
2008
Change
% Change
(in thousands)
$
32,056
$
40,783
$
8,727
27.2
%
3,647
5,275
1,628
44.6
$
35,703
$
46,058
$
10,355
29.0
%
62
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Year Ended December 31,
2007
2008
Change
% Change
(in thousands)
$
20,459
$
26,514
$
6,055
29.6
%
1,249
2,292
1,043
83.5
$
21,708
$
28,806
$
7,098
32.7
%
Year Ended December 31,
2007
2008
Change
% Change
(in thousands)
$
16,215
$
21,649
$
5,434
33.5
%
1,832
2,274
442
24.1
$
18,047
$
23,923
$
5,876
32.6
%
Year Ended December 31,
2007
2008
Change
% Change
(in thousands)
$
9,357
$
12,979
$
3,622
38.7
%
399
1,156
757
189.7
$
9,756
$
14,135
$
4,379
44.9
%
63
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Three Months Ended,
March 31,
June 30,
September 30,
December 31,
March 31,
June 30,
September 30,
December 31,
2008
2008
2008
2008
2009
2009
2009
2009
(in thousands)
$
20,724
$
22,486
$
24,520
$
27,462
$
29,264
$
30,852
$
33,069
$
35,192
2,140
1,902
1,766
1,774
1,437
1,441
468
514
1,936
2,351
2,982
2,525
1,942
2,175
2,117
2,431
24,800
26,739
29,268
31,761
32,643
34,468
35,654
38,137
10,060
10,811
12,074
13,113
13,035
14,568
15,201
15,709
14,740
15,928
17,194
18,648
19,608
19,900
20,453
22,428
6,668
7,074
6,932
8,132
6,711
6,887
6,675
7,173
5,308
5,600
6,325
6,690
6,180
6,833
7,363
7,428
3,173
3,456
3,648
3,858
4,536
4,187
4,552
6,935
15,149
16,130
16,905
18,680
17,427
17,907
18,590
21,536
(409
)
(202
)
289
(32
)
2,181
1,993
1,863
892
(460
)
(418
)
(493
)
(781
)
(985
)
(998
)
(1,123
)
(1,422
)
(869
)
(620
)
(204
)
(813
)
1,196
995
740
(530
)
65
638
69
85
64
(26,246
)
$
(869
)
$
(685
)
$
(204
)
$
(1,451
)
$
1,127
$
910
$
676
$
25,716
(1)
Includes stock-based compensation expense as follows:
Three Months Ended,
March 31,
June 30,
September 30,
December 31,
March 31,
June 30,
September 30,
December 31,
2008
2008
2008
2008
2009
2009
2009
2009
(in thousands)
$
19
$
23
$
21
$
41
$
67
$
85
$
103
$
112
181
158
170
218
246
252
277
400
39
76
76
86
98
117
135
148
57
98
101
112
154
159
211
241
$
296
$
355
$
368
$
457
$
565
$
613
$
726
$
901
64
Table of Contents
Three Months Ended,
March 31,
June 30,
September 30,
December 31,
March 31,
June 30,
September 30,
December 31,
2008
2008
2008
2008
2009
2009
2009
2009
(as a percentage of total revenue)
83.6
%
84.1
%
83.8
%
86.5
%
89.6
%
89.5
%
92.7
%
92.3
%
8.6
7.1
6.0
5.5
4.5
4.2
1.4
1.3
7.8
8.8
10.2
8.0
5.9
6.3
5.9
6.4
100.0
100.0
100.0
100.0
100.0
100.0
100.0
100.0
40.6
40.4
41.3
41.3
39.9
42.3
42.6
41.2
59.4
59.6
58.7
58.7
60.1
57.7
57.4
58.8
26.9
26.5
23.7
25.6
20.6
20.0
18.7
18.8
21.4
20.9
21.6
21.1
18.9
19.8
20.7
19.5
12.8
12.9
12.5
12.1
13.9
12.1
12.8
18.2
61.1
60.3
57.8
58.8
53.4
51.9
52.2
56.5
(1.6
)
(0.8
)
1.0
(0.1
)
6.7
5.8
5.2
2.3
(1.9
)
(1.6
)
(1.7
)
(2.5
)
(3.0
)
(2.9
)
(3.1
)
(3.7
)
(3.5
)
(2.4
)
(0.7
)
(2.6
)
3.7
2.9
2.1
(1.4
)
0.2
2.0
0.2
0.2
0.2
(68.8
)
(3.5
)
(2.6
)
(0.7
)
(4.6
)
3.5
2.7
1.9
67.4
65
Table of Contents
Adjusted EBITDA provides investors and other users of our
financial information consistency and comparability with our
past financial performance, facilitates period-to-period
comparisons of operations and facilitates comparisons with our
peer companies, many of which use similar non-GAAP financial
measures to supplement their GAAP results; and
it is useful to exclude certain non-cash charges, such as
depreciation and asset impairment, amortization of intangible
assets and stock-based compensation and non-core operational
charges, such as acquisition-related expense, from Adjusted
EBITDA because the amount of such expenses in any specific
period may not directly correlate to the underlying performance
of our business operations and these expenses can vary
significantly between periods as a result of new acquisitions,
full amortization of previously acquired tangible and intangible
assets or the timing of new stock-based awards, as the case may
be.
Three Months Ended,
March 31,
June 30,
September 30,
December 31,
March 31,
June 30,
September 30,
December 31,
2008
2008
2008
2008
2009
2009
2009
2009
(in thousands)
$
(869
)
$
(685
)
$
(204
)
$
(1,451
)
$
1,127
$
910
$
676
$
25,716
1,835
2,018
2,244
3,750
2,043
2,470
2,419
2,299
657
333
331
774
1,362
1,322
1,279
1,821
460
418
493
781
985
998
1,123
1,422
65
638
69
85
64
(26,246
)
296
355
368
457
565
613
726
901
20
824
$
2,379
$
2,504
$
3,232
$
4,949
$
6,151
$
6,398
$
6,307
$
6,737
66
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Year Ended December 31,
2007
2008
2009
(in thousands)
$
4,441
$
7,962
$
24,758
(16,155
)
(32,320
)
(24,676
)
11,952
25,875
97
67
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68
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Payments Due by Period
Less Than
More Than
Total
1 year
1-3 years
3-5 years
5 years
(in thousands)
$
61,861
$
11,093
$
23,443
$
27,325
$
2,273
1,670
603
27,051
4,922
8,197
7,591
6,341
4,359
1,653
1,842
864
$
95,544
$
19,338
$
34,085
$
35,780
$
6,341
(1)
The amount of long-term debt obligations shown in the table
above does not include any interest payments.
(2)
We have made several acquisitions in which a portion of the cash
purchase price is payable at various times through 2014.
69
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70
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71
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Number of
Estimated Units
(in millions)
13.8
8.1
5.3
8.6
3.5
39.3
72
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73
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Legacy
information technology solutions designed to manage the rental
housing property management process are
inadequate.
require significant customization to implement, which frequently
inhibits upgrading to new versions or platforms in a timely
manner;
require information technology, or IT, resources to support
integration points between property management systems and
disparate value-added services;
require IT resources to implement and maintain data security,
data integrity, performance and business continuity solutions;
lack scalability and flexibility to account for the expansion or
contraction of a property portfolio;
lack robust marketing and tracking capabilities for converting
prospects to residents;
lack effective spend management capabilities for controlling
property management costs;
lack comprehensive analytics for pricing and yield optimization;
lack workflow level integration;
do not provide owners and managers with visibility into overall
property performance; and
cannot be easily updated to meet new regulations and compliance
requirements.
74
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75
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76
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77
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conventional single-family properties (four units or less);
conventional multi-family properties (five or more units);
affordable Housing and Urban Development, or HUD, properties;
affordable tax credit properties;
privatized military housing;
student housing; and
senior living.
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Prospects, generates, presents and records price quotations,
generates lease documents, schedules move-ins and posts
financial transactions to the resident ledger for both new
residents and renewal of existing resident leases. Seven
versions support the unique needs of our target residential
rental markets.
Manages asset warranties, service requests and unit turnovers so
that when a resident moves out, the resident ledger is
automatically updated with any damages to be incorporated into
the residents final account statement.
Manages work orders and procurement activities and calculates
operating budget variances.
Provides back-office general ledger, accounts payable and cash
management functions. We license OneSite Accounting from a
third-party accounting software provider and have modified it to
meet the needs of the rental housing industry.
Enables owners and managers to budget property performance and
transfer budgets into the general ledger.
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Provides a central repository of property marketing and listing
content, including descriptions, photos, video or animated
tours, floor plans and site plans.
Provides call and email routing technology and agent staffing on
a permanent or overflow basis to answer phone calls and emails
from prospects or residents.
Enables owners and managers to create customized property
websites with rich content and search capabilities and list them
on various Internet listing services and search engines.
Provides a portal that enables residents to view community
events, enter or check the status of service requests, review
statements, pay rent online and renew leases.
Provides advertising and marketing planning services through a
talented team of multi-family marketing experts including
advertising placement and performance evaluation, leasing and
renewal campaign design and marketing consulting services.
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Uses current customer and market data and statistically derived
supply/demand forecasts and price elasticity models to calculate
and present optimal prices for each rental unit.
Offers outsourced pricing management advisory services for
owners and managers who want to utilize Price Optimizer without
incurring the costs to staff and support it in-house.
Provides multi-family housing market research through a
well-established and trusted name in multi-family market
intelligence. The M/PF Research database includes monthly and
quarterly information on occupancy and rents for more than
36,000 rental housing properties in the United States
representing 284 defined metropolitan statistical areas as of
February 2010.
Evaluates an applicants credit using a scoring model
calibrated to predict resident default and payment behavior by
leveraging our proprietary database of resident rental payment
history generated from our property management systems.
Ascertains if a prospective resident has committed a crime or
been evicted from a previous apartment by accessing databases
that are aggregated from third-party data providers.
Allows owners and managers to optimize credit thresholds based
on occupancy levels and adjust deposit and rent amounts based on
the default risk of the resident in a yield neutral manner.
Credit Optimizer is expected to remain in beta testing
throughout 2010.
Offers liability and renters insurance. Liability policies
protect owners and managers against financial loss due to
resident-caused damage, while renters insurance provides
additional coverage for resident personal belongings in the
event of loss.
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Provides automated monthly invoicing services enabling owners
and managers to increase collections by sending each resident a
monthly invoice that combines rent, small balances and utility
charges onto a single invoice.
Provides automated utility billing services to enable owners and
managers to detect and collect utility costs that are the
residents responsibility.
Provides contractor services to install electric, gas and water
meters in apartment communities through three individual product
centers. Velocity also provides consulting services to assist
owners and managers in implementing and managing energy, media,
data and telecom services at their communities.
Integrates purchase orders, onsite accounts payable, automated
workflow approval (including mobile approvals), budget and spend
limit control, centralized expense reporting tools and document
management through our on demand spend management tool.
Enables owners and managers to create private marketplaces to
manage the transactions between their properties and their
preferred suppliers and service providers through our on demand
eProcurement solution.
Provides an on demand invoice management solution that
centralizes the processing of both electronic and paper invoices
across the owners or managers portfolio.
Offers a catalog of negotiated discounts for selected vendors
across several major purchasing categories for owners and
managers that are too small to negotiate volume discounts.
Provides an on demand procurement system used primarily for
larger capital and rehab related purchases that are not ordered
regularly.
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Aggregates the data from our other solutions and third-party
applications and gives owners and managers access to business
critical reports and actionable analytical information about the
performance of their properties.
Provides storage, retrieval, security, and archiving of all
documents and forms associated with a property management
companys business processes and procedures.
Enables owners and managers to collect rent and other payments
electronically from residents through check, money order,
automated clearing house, or ACH, or credit/debit card.
Allows owners and managers to train geographically dispersed
employees in a cost-effective and timely fashion, and allows
employees to complete their coursework at their convenience.
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field marketing events for customers and prospects;
participation in, and sponsorship of, user conferences, trade
shows and industry events;
customer programs, including user meetings and our online
customer community;
online marketing activities, including email campaigns, online
advertising, web campaigns, webinars and use of social media,
including blogging, Facebook, and Twitter;
public relations; and
use of our website to provide product and company information,
as well as learning opportunities for potential customers.
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in the multi-family ERP market, AMSI Property Management (owned
by Infor Global Solutions, Inc.), MRI Software LLC and Yardi
Systems, Inc. and, in the single-family ERP market, AppFolio,
Inc.;
in the applicant screening market, ChoicePoint Inc. (a
subsidiary of Reed Elsevier Group plc), First Advantage
Corporation (a subsidiary of The First American Corporation),
TransUnion Rental Screening Solutions, Inc. (a subsidiary of
TransUnion LLC) and Yardi Systems, Inc. (following its
recent acquisition of RentGrow Inc., an applicant screening
provider);
in the insurance market, Assurant, Inc. and a number of national
insurance underwriters (including GEICO Corporation) that market
renters insurance;
in the CRM market, contact center and call tracking service
providers Call Source Inc., Level One, Inc., Yardi Systems,
Inc. (which recently announced its intention to build a call
center) and numerous regional and local call centers, lead
tracking solution providers eReal Estate Integration, Inc., Lead
Tracking Solutions (a division of O.C. Concepts, Inc.) and
Whos Calling, Inc., content syndications and reservations
systems providers eReal Estate Integration, Inc. and Realty
DataTrust Corporation and companies providing web portal
services, including Apartments24-7.com, Inc., Ellipse
Communications, Inc., Property Solutions International, Inc.,
Spherexx.com and Yardi Systems, Inc.;
in the utility billing market, American Utility Management,
Inc., Conservice, LLC, ista North America, Inc., NWP Services
Corporation and Yardi Systems, Inc. (following its recent
acquisition of Energy Billing Systems, Inc.);
in the revenue management market, PROS Holdings, Inc., The
Rainmaker Group, Inc. and Yardi Systems, Inc.; and
in the payment processing space, Chase Paymentech Solutions, LLC
(a subsidiary of JPMorgan Chase & Co.), First Data
Corporation, Fiserv, Inc., MoneyGram International, Inc., NWP
Services Corporation, Property Solutions International, Inc.,
RentPayment.com (a subsidiary of Yapstone, Inc.), Yardi Systems,
Inc. and a number of national banking institutions.
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124
II-4
II-5
Age
63
Chairman of the Board, Chief Executive Officer and Director
47
Chief Financial Officer and Treasurer
44
President
38
Executive Vice President, Multifamily Solutions
39
Chief Operations Officer
63
Chief Legal Officer and Secretary
65
Director
57
Director
64
Director
54
Director
38
Director
(1)
Member of our audit committee.
(2)
Member of our compensation committee.
(3)
Member of our nominating and governance committee
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selecting and hiring our independent auditors;
approving the audit and non-audit services to be performed by
our independent auditors;
evaluating the qualifications, performance and independence of
our independent auditors;
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monitoring the integrity of our financial statements and our
compliance with legal and regulatory requirements as they relate
to financial statements or accounting matters;
reviewing the adequacy and effectiveness of our internal control
policies and procedures;
discussing the scope and results of the audit with the
independent auditors and reviewing with management and the
independent auditors our interim and year-end operating results;
preparing the audit committee report required in this prospectus
and in our annual proxy statement; and
reviewing and evaluating, at least annually, its own performance
and that of its members, including compliance with the committee
charter.
reviewing and approving corporate goals and objectives relevant
to compensation of our Chief Executive Officer and other
executive officers;
reviewing and approving the following for our Chief Executive
Officer and our other executive officers: annual base salaries,
annual incentive bonuses, including the specific goals and
amounts, equity compensation, employment agreements, severance
arrangements and change in control arrangements and any other
benefits, compensation or arrangements;
reviewing the succession planning for our executive officers;
reviewing and recommending compensation goals and bonus and
stock compensation criteria for our employees;
reviewing and recommending compensation programs for outside
directors;
preparing the compensation discussion and analysis and
compensation committee report that the SEC requires in our
annual proxy statement;
administering, reviewing and making recommendations with respect
to our equity compensation plans; and
reviewing and evaluating, at least annually, its own performance
and that of its members, including compliance with the committee
charter.
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assisting our board of directors in identifying prospective
director nominees and recommending nominees for each annual
meeting of stockholders to the board of directors;
reviewing developments in corporate governance practices and
developing and recommending governance principles applicable to
our board of directors;
overseeing the evaluation of our board of directors and
management;
recommending members for each board committee to our board of
directors; reviewing and monitoring our code of business conduct
and ethics and actual and potential conflicts of interest of
members of our board of directors and officers; and
reviewing and evaluating, at least annually, its own performance
and that of its members, including compliance with the committee
charter.
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$6,000 per quarter
$4,500 per quarter
$3,000 per quarter
$3,000 per quarter
$1,500 per quarter
$50,000 restricted stock
value
(1)
(1)
The forfeiture provision of each annual restricted stock grant
will lapse with respect to 5% of the restricted shares subject
to the grant each quarter commencing on the first day of the
calendar quarter immediately following the grant date for 15
consecutive quarters and the forfeiture provision will lapse
with respect to the remaining 25% of the restricted shares
subject to the grant on the first day of the next following
calendar quarter, subject to the continuous service of the
director through each applicable date.
Fees Earned or
Option
Paid in Cash ($)
Awards
($)
(1)
Total ($)
$
158,257
(2)
$
158,257
(1)
Represents the aggregate grant date fair value computed in
accordance with FASB ASC Topic 718. See Note 8 of Notes to
Consolidated Financial Statements for the year ended
December 31, 2009 for a discussion of assumptions made in
determining the grant date fair value of our stock option awards.
(2)
Reflects contingent grant to Mr. Gyenes of options to
purchase 100,000 shares of our common stock at an exercise
price of $3.00 per share on December 18, 2009. The
contingencies of the grant were satisfied and the grant became
effective on December 29, 2009. This grant was subsequently
cancelled and terminated and replaced by a grant to
Mr. Gyenes of options to purchase 120,000 shares of
our common stock at an exercise price of $3.75 on
February 25, 2010. The aggregate grant date fair value of
this subsequent grant computed in accordance with FASB ASC Topic
718 is $222,414.
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attract, retain and motivate skilled and knowledgeable executive
talent;
ensure that executive compensation is aligned with our corporate
strategies and business objectives; and
align the incentives of the named executive officers with the
creation of value for stockholders.
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Publicly Held Companies Surveys.
Two private
surveys regarding executive compensation in the technology
industry, the Watson Wyatt Executive Compensation Survey and the
Towers Perrin Executive Compensation Survey; and
Select Peer Group.
Publicly available data for
a competitive peer group of publicly traded on demand software
and services companies of similar size experiencing rapid
revenue growth comparable to ours with total employees in the
range of 500 to 1,000, or the Select Peer Group.
RightNow Technologies
NetSuite Inc.
Unica Corporation
Callidus Software Inc.
athenahealth, Inc
SuccessFactors, Inc.
Constant Contact, Inc.
DemandTec, Inc.
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2008 Base
2009 Base
Salary
(1)
Salary
(2)
% Increase
Chief Executive Officer, Chairman of the Board
$
400,000
$
400,000
Chief Financial Officer and Treasurer
285,000
315,000
10.5
%
President
(3)
250,000
260,000
(4)
4.0
Executive Vice President, Multifamily
Solutions
(5)
220,000
260,000
(6)
18.2
Chief Legal Officer and Secretary
300,000
(1)
Reflects base salary at end of 2008.
(2)
Reflects base salary at beginning of 2009.
(3)
Mr. Wakeham assumed the title and responsibilities of
President in January 2010. He served as our Executive Vice
President, Property Solutions, from April 2009 to January 2010
and as our Senior Vice President, President, LeasingDesk Risk
Mitigation Systems, for prior periods in 2009.
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(4)
Mr. Wakehams salary was increased from $260,000 to
$300,000 effective April 1, 2009 in connection with his
promotion to Executive Vice President, Property Solutions.
(5)
Ms. Chaffin Glover assumed the title and responsibilities
of Executive Vice President, Multifamily Solutions in January
2010. She served as our Executive Vice President, Resident
Solutions from April 2009 to January 2010 and as our Senior Vice
President, President, Velocity Utility and Billing Services, for
prior periods in 2009.
(6)
Ms. Chaffin Glovers salary was increased from
$260,000 to $300,000 effective April 1, 2009 in connection
with her promotion to Executive Vice President, Resident
Solutions.
(7)
Mr. Van Valkenberg commenced his employment with us in
September 2009 after providing consulting services to us from
June 2009 to September 2009.
2009 Base
2010 Base
Salary
(1)
Salary
(2)
% Increase
Chief Executive Officer, Chairman of the Board
$
400,000
$
400,000
Chief Financial Officer and Treasurer
315,000
350,000
11.1
%
President
(3)
300,000
(4)
330,000
10.0
Executive Vice President, Multifamily
Solutions
(5)
300,000
(6)
320,000
6.7
Chief Legal Officer and Secretary
300,000
300,000
(1)
Reflects base salary at the end of 2009.
(2)
Reflects base salary at beginning of 2010.
(3)
Mr. Wakeham assumed the title and responsibilities of
President in January 2010. He served as our Executive Vice
President, Property Solutions, from April 2009 to January 2010
and as our Senior Vice President, President, LeasingDesk Risk
Mitigation Systems, for prior periods in 2009.
(4)
Mr. Wakehams salary was increased from $260,000 to
$300,000 effective April 1, 2009 in connection with his
promotion to Executive Vice President, Property Solutions.
(5)
Ms. Chaffin Glover assumed the title and responsibilities
of Executive Vice President, Multifamily Solutions in January
2010. She served as our Executive Vice President, Resident
Solutions from April 2009 to January 2010 and as our Senior Vice
President, President, Velocity Utility and Billing Services, for
prior periods in 2009.
(6)
Ms. Chaffin Glovers salary was increased from
$260,000 to $300,000 effective April 1, 2009 in connection
with her promotion to Executive Vice President, Resident
Solutions.
(7)
Mr. Van Valkenberg commenced his employment with us in
September 2009 after providing consulting services to us from
June 2009 to September 2009.
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2009
Actual Bonus as
Target
Actual
a Percent of
Bonus ($)
Bonus ($)
Target Bonus
$
300,000
$
246,765
82.3
%
157,500
149,240
94.8
150,000
131,585
87.7
150,000
120,335
80.2
40,685
34,878
85.7
(1)
Mr. Van Valkenberg commenced his employment with us in
September 2009. Mr. Van Valkenbergs annual bonus
opportunity under the 2009 Management Incentive Plan was subject
to proration based on the actual number of days he was employed
by us during 2009.
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The stock option vests in equal quarterly installments over
16 consecutive quarters commencing on the first day of the
calendar quarter immediately following the grant date; or
The stock option vests with respect to 5% of the shares subject
to the stock option each quarter commencing on the first day of
the calendar quarter immediately following the grant date for 15
consecutive quarters and, with respect to the remaining 25% of
the shares subject to the stock option, on the first day of the
next following calendar quarter, subject to continued service
through each applicable date.
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Non-Equity
Incentive
Option
Plan
All Other
Awards
Compensation
Compensation
Year
Salary ($)
Bonus ($)
($)
(1)
($)
(2)
($)
(3)
Total ($)
2009
$
400,000
$
246,765
$
3,675
$
650,440
2009
315,000
$
320,631
149,240
3,675
788,546
2009
290,000
(5)
256,505
131,585
51,853
(6)
729,943
2009
290,000
(8)
256,505
120,335
3,675
670,515
2009
79,615
372,726
34,878
96,338
(10)
583,557
(1)
Represents the aggregate grant date fair value computed in
accordance with FASB ASC Topic 718. See Note 8 of Notes to
Consolidated Financial Statements for the year ended
December 31, 2009 for a discussion of assumptions made in
determining the grant date fair value of our stock option awards.
(2)
Represents awards under our 2009 Management Incentive Plan. The
material terms of these annual incentive awards are described in
this section under Compensation Discussion and
Analysis Compensation Components
Performance-Based Bonuses.
(3)
Represents the amount of our matching contributions under our
401(k) savings plan unless additional forms of other
compensation are also indicated in relevant footnotes to this
table.
(4)
Mr. Wakeham assumed the title and responsibilities of
President in January 2010. He served as our Executive Vice
President, Property Solutions, from April 2009 to January 2010
and as our Senior Vice President, President, LeasingDesk Point
of Lease Systems, for prior periods in 2009.
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(5)
Mr. Wakehams salary was increased from $260,000 to
$300,000 in April 2009 in conjunction with his promotion to
Executive Vice President, Property Solutions.
(6)
Consists of (i) $1,304 of matching contributions under our
401(k) savings plan, (ii) $43,510 of relocation related
expense reimbursements and (iii) tax gross-up of $7,039
associated with taxable relocation related expenses.
(7)
Ms. Chaffin Glover assumed the title and responsibilities
of Executive Vice President, Multifamily Solutions in January
2010. She served as our Executive Vice President, Resident
Solutions from April 2009 to January 2010 and as our Senior Vice
President, President, Velocity Utility and Billing Services, for
prior periods in 2009.
(8)
Ms. Chaffin Glovers salary was increased from
$260,000 to $300,000 in April 2009 in conjunction with her
promotion to Executive Vice President, Resident Solutions.
(9)
Mr. Van Valkenberg commenced his employment with us in
September 2009 and provided consulting services to us from June
2009 to September 2009. His 2009 compensation represents the
amounts paid to him as an employee from September 24, 2009
to December 31, 2009 and as a consultant for prior periods
in 2009.
(10)
Consists of (i) $125 of matching contributions under our
401(k) savings plan, (ii) $7,742 of relocation related
expense reimbursements, (iii) tax gross-up of $3,753
associated with taxable relocation related expenses,
(iv) $65,000 in consulting payments paid to
Mr. Van Valkenberg in accordance with the terms of his
consulting agreement prior to commencement of his full-time
employment with us and (v) $19,717 in expense
reimbursements paid to Mr. Van Valkenberg in
accordance with the terms of his consulting agreement prior to
commencement of his full-time employment with us.
All Other Option
Awards:
Number of
Grant Date
Estimated Future Payouts Under
Securities
Exercise or Base
Fair Value of
Non-Equity Incentive Plan Awards
($)
(1)
Underlying
Price of Option
Option
Grant Date
Minimum
Target
Maximum
Options (#)
Awards
($/Sh)
(2)
Awards
($)
(3)
2/26/2009
$
300,000
$
600,000
2/26/2009
250,000
(4)
$
3.00
$
320,631
2/26/2009
157,500
315,000
2/26/2009
200,000
(4)
3.00
256,505
2/26/2009
150,000
300,000
2/26/2009
200,000
(4)
3.00
256,505
2/26/2009
150,000
300,000
9/28/2009
300,000
(5)
3.00
372,726
9/24/2009
40,685
81,370
(1)
Represents awards under our Management Incentive Plan for fiscal
2009. The material terms of these annual incentive awards are
discussed in this section under Compensation Discussion
and Analysis Compensation Components
Performance-Based Bonuses.
(2)
In determining the exercise price of options granted in 2009,
our compensation committee retained an independent valuation
firm to complete a contemporaneous common stock valuation using
the probability-weighted expected return method, which involved
analyzing future values under two possible outcomes and then
probability-weighting those values.
(3)
Reflects the aggregate grant date fair value computed in
accordance with FASB ASC Topic 718. See Note 8 of Notes to
Consolidated Financial Statements for the year ended
December 31, 2009 for a discussion of assumptions made in
determining the grant date fair value of our stock option awards.
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(4)
Stock options vest in equal quarterly installments over 16
consecutive quarters commencing on the first day of the calendar
quarter immediately following the grant date, subject to
continued service through each applicable date.
(5)
Stock option vests with respect to 5% of the shares subject to
the stock option each quarter commencing on the first day of the
calendar quarter immediately following the grant date for 15
consecutive quarters and, with respect to the remaining 25% of
the shares subject to the stock option, on the first day of the
next following calendar quarter, subject to continued service
through each applicable date.
Option Awards
Number of
Number of
Securities
Securities
Underlying
Underlying
Unexercised
Exercised Options
Option
Options
That Have Not
Exercise
Option
Exercisable (#)
(1)
Executive Officer
250,000
$1.00
10/27/2015
75,000
25,000
$1.25
12/15/2016
65,625
84,375
$3.50
2/29/2018
46,875
203,125
$3.00
2/26/2019
156,250
93,750
$1.50
4/12/2017
65,625
84,375
$3.50
2/29/2018
37,500
162,500
$3.00
2/26/2019
200,000
$1.00
3/3/2015
50,000
$1.00
12/13/2015
37,500
12,500
$1.25
12/15/2016
43,750
56,250
$3.50
2/29/2018
37,500
162,500
$3.00
2/26/2019
15,000
285,000
$3.00
9/28/2019
(1)
The listed stock options were granted under our 1998 Stock
Incentive Plan. Stock options granted to Ms. Chaffin Glover
and Messrs. Barker and Wakeham vest ratably over 16
quarters commencing on the first day of the calendar quarter
immediately following the grant date, subject to continued
service through each applicable vesting date, and the stock
option granted to Mr. Van Valkenberg vests with respect to
5% of the shares subject to the stock option each quarter
commencing on the first day of the calendar quarter immediately
following the grant date for 15 consecutive quarters and the
remaining 25% of the on the first day of the next following
calendar quarter, subject to continued service through each
applicable date.
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conviction for criminal acts;
making a materially false statement to our auditors or legal
counsel;
falsification of any corporate document or form;
any material breach by the named executive officer of his or her
material obligations to us or of any published company policy;
any material breach by the named executive officer of the
provisions of his or her employment agreement;
making a material misrepresentation of fact or omission to
disclose material facts in relation to transactions occurring in
our business and financial matters; and
continued performance of his or her duties in an incompetent,
unprofessional, unsuccessful, insubordinate or negligent manner.
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Termination on
Death or
Disability or
Without Cause
or Good Reason
Termination
Within 12 Months of a
Termination on
without
Business
Business
Death or
Death or
Cause or for
Combination
Combination
Disability
Disability
Good Reason
Transaction
Transaction
Severance Payment
$600,000
(1)
Salary Continuation
$200,000
Bonus
300,000
(1),(2)
Total
$200,000
$900,000
Salary Continuation
$157,500
(3)
$157,500
(3)
$315,000
(6)
Option Acceleration
$39,500
(4)
$39,500
(5),(6)
Total
$39,500
$157,500
$157,500
$39,500
$315,000
Salary Continuation
$150,000
$150,000
Option Acceleration
$124,688
(4)
Total
$124,688
$150,000
$150,000
Salary Continuation
$150,000
$150,000
Option Acceleration
$19,750
(4)
Total
$19,750
$150,000
$150,000
Salary Continuation
$150,000
$150,000
Option Acceleration
Total
$150,000
$150,000
(1)
Amount would not be paid in the event of Mr. Winns
termination in connection with our liquidation, dissolution or
winding up, whether voluntary or involuntary, or cessation of
our business in the ordinary course for any reason.
(2)
Value represents target bonus for Mr. Winn for 2009.
Subject to achievement of any criteria or conditions to the
payment of Mr. Winns target bonus which are
contingent on our earnings or other financial performance for
the year.
(3)
Amount of salary continuation payment if termination is not
within twelve months following the consummation of a business
combination transaction.
(4)
Value represents the gain our named executive officers would
receive, calculated as the positive difference between our stock
price on December 31, 2009 and the exercise price of the
named executive officers unvested options subject to
acceleration upon the named executive officers death or
disability pursuant to our 1998 Stock Incentive Plan. On
December 31, 2009, our stock price was $2.83.
(5)
Value represents the gain Mr. Barker would receive,
calculated as the positive difference between our stock price on
December 31, 2009 and the exercise price of
Mr. Barkers unvested options subject to acceleration
upon a business combination transaction pursuant to the terms of
certain of his stock option agreements with us. On
December 31, 2009, our stock price was $2.83.
(6)
Amount reflects payments that would have been made pursuant to
Mr. Barkers employment agreement, as amended on
January 1, 2010, if the amended employment agreement had
been in effect on December 31, 2009 in order to provide
meaningful, current information.
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shares
of our common stock;
of
our outstanding shares on the last day of the immediately
preceding fiscal year; or
such other amount as our board of directors may determine.
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117
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any breach of the directors duty of loyalty to us or our
stockholders;
any act or omission not in good faith or that involves
intentional misconduct or a knowing violation of law;
unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware
General Corporation Law; or
any transaction from which the director derived an improper
personal benefit.
118
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119
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provides for the voting of shares with respect to the
constituency of our board of directors and our compensation
committee and audit committee;
provides for the redemption, on certain terms and conditions, of
all or any portion of the Series A Convertible Preferred
Stock held by Advance Capital and its affiliates;
grants our preferred stockholders certain rights of first
refusal and co-sale with respect to proposed transfers of our
securities by certain stockholders;
grants our preferred stockholders a right of first offer with
respect to sales of our shares by us, subject to specified
exclusions (which exclusions are expected to include the sale of
the shares pursuant to this prospectus); and
obligates us to deliver periodic financial statements to our
major investors.
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121
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122
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each person or group of affiliated persons known by us to be the
beneficial owner of more than 5% of our common stock;
each of our named executive officers;
each of our directors;
all executive officers and directors as a group; and
each of our selling stockholders.
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Shares Beneficially
Number of
Owned After the
Shares
Offering if Over-
Shares Beneficially
Subject
Allotment Option
Shares Beneficially Owned
Number of
Owned After the
to Over-
is Exercised
Prior to the Offering
Shares
Offering
Allotment
in Full
Shares
Percentage
Offered
Shares
Percentage
Option
Shares
Percentage
7,623,300
6.9
%
29,327,292
26.4
59,996,783
54.0
59,996,783
54.0
945,265
*
349,375
*
398,750
*
45,000
*
298,333
*
5,487,412
4.9
19,333
*
7,740,190
7.0
29,327,292
26.4
104,695,233
92.9
5,257,412
4.7
(1)
Represents 1,820,015 shares held by Advance Capital
Offshore Partners, L.P. and 5,803,285 shares held by
Advance Capital Partners, L.P. Advance Capital Management, LLC,
or Advance Capital Management, is the general partner of Advance
Capital Associates, L.P., or Advance Capital Associates, which
is the general partner of Advance Capital Partners, L.P. and
Advance Capital Offshore Associates, LDC, which is the general
partner of Advance Capital Offshore Partners, L.P. Because
Jeffrey T. Leeds and Robert A. Bernstein are the members of
Advance Capital Management, which is the general partner of
Advance Capital Associates, which is the general partner of
Advance Capital Partners, L.P. and Advance Capital Offshore
Associates, LDC, which is the general partner of Advance Capital
Offshore Partners, L.P., Messrs. Leeds and Bernstein may be
deemed to have sole voting and dispositive power of the shares
held by Advance Capital Offshore Partners, L.P. and Advance
Capital Partners, L.P., or the Advance Capital Funds. The
address of the Advance Capital Funds and their affiliated
entities and individuals is 350 Park Avenue, 23rd Floor,
New York, New York 10022. For a discussion of our material
relationships with the Advance Capital Funds and affiliated
entities, see Certain Relationships and Related Party
Transactions.
(2)
Represents 25,060,173 shares held by Apax Excelsior VI,
L.P., 2,047,044 shares held by Apax Excelsior VI-A C.V.,
1,363,718 shares held by Apax Excelsior VI-B C.V. and
856,357 shares held by Patricof Private Investment Club
III, L.P. Apax Managers, Inc., or Apax Managers, is the general
partner of Apax Excelsior VI Partners, L.P., or Apax Excelsior
VI Partners, which is the general partner of each of Apax
Excelsior VI, L.P., Apax Excelsior VI-A C.V., Apax Excelsior
VI-B C.V. and Patricof Private Investment Club III, or the Apax
Funds. Each of the directors of Apax Managers, Inc. may be
deemed to share voting and dispositive power over the shares
held by the Apax Funds. The address of the Apax Funds and their
affiliated entities and individuals is 601 Lexington
Avenue, New York, New York 10022. For a
Table of Contents
discussion of our material relationships with the Apax Funds and
affiliated entities, see Certain Relationships and Related
Party Transactions.
(3)
Represents 44,784,925 shares held by Seren Capital, Ltd.,
250,000 shares held by Seren Catalyst, L.P.,
1,231,250 shares held by Stephen T. Winn 1996 Family LPA,
and 13,730,608 shares held by Stephen T. Winn. Stephen T.
Winn is the sole manager and president of Seren Capital
Management, L.L.C., which is the general partner of Seren
Capital, Ltd. and Seren Catalyst, L.P., or the Seren
Partnerships and, by virtue of this relationship, has sole
voting and dispositive power over the shares held by the Seren
Partnerships. Mr. Winn is the general partner of the
Stephen T. Winn 1996 Family LPA and has voting and dispositive
power over the shares held by the Stephen T. Winn 1996 Family
LPA. For a discussion of our material relationships with
Mr. Winn and his affiliated entities, see Certain
Relationships and Related Party Transactions.
(4)
Represents 427,765 shares held by Timothy J. Barker and
517,500 shares issuable upon the exercise of options to
purchase shares of our common stock held by Mr. Barker that
are fully vested and exercisable within 60 days of
April 1, 2010. For a discussion of our material
relationships with Mr. Barker, see Certain
Relationships and Related Party Transactions.
(5)
Represents 349,375 shares issuable upon the exercise of
options to purchase shares of our common stock held by
Mr. Wakeham that are fully vested and exercisable within
60 days of April 1, 2010.
(6)
Represents 398,750 shares issuable upon the exercise of
options to purchase shares of our common stock held by
Ms. Chaffin Glover that are fully vested and exercisable
within 60 days of April 1, 2010.
(7)
Represents 45,000 shares issuable upon the exercise of
options to purchase shares of our common stock held by
Mr. Van Valkenberg that are fully vested and exercisable
within 60 days of April 1, 2010.
(8)
Represents 183,333 shares held by Alfred R.
Berkeley, III, of which 32,292 are subject to a repurchase
right held by us which lapses with respect to an additional
1,041 shares on the last day of each calendar month
provided that Mr. Berkeley remains a director on each such
applicable date and 13,333 are subject to forfeiture to us,
which forfeiture restriction lapses as to 666.65 shares on
the first day of each calendar quarter beginning July 1,
2010 and as to the remaining 3,333.25 shares on
April 1, 2014, provided that Mr. Berkeley remains a
director on each such applicable date, and 115,000 held by
Muriel Van Dusen Berkeley and Richard M. Berkeley, as Trustees
of the 2009 Berkeley Family Resource Trust dated 12/11/2009, or
the Berkeley Family Trust. Muriel Van Dusen Berkeley and Richard
M. Berkeley are the trustees of the Berkeley Family Trust and
share voting and dispositive power over the shares held by the
Berkeley Family Trust. By virtue of his relationship with his
spouse, Muriel Van Dusen Berkeley, Alfred R. Berkeley may be
deemed to share voting and dispositive power over the shares
held by the Berkeley Family Trust. Mr. Berkeley is an
affiliate of a broker-dealer, purchased the securities in the
ordinary course of business and, at the time of the purchase of
the securities to be resold, had no agreements or
understandings, directly or indirectly, with any person to
distribute the securities.
(9)
Represents 5,047,562 shares held by Camden Partners
Strategic Fund III, L.P., 209,850 shares held by
Camden Partners Strategic
Fund III-A,
L.P., 115,000 held by Muriel Van Dusen Berkeley and Richard M.
Berkeley, as Trustees of the 2009 Berkeley Family Resource Trust
dated
12/11/2009
and 115,000 held by Richard M. Berkeley, as Trustee of the
Alfred and Muriel Berkeley Survivorship Trust dated
12/1/2005.
Camden Partners Strategic Manager, LLC, or Camden Partners
Strategic Manager, is the managing member of Camden Partners
Strategic III, LLC, or Camden Partners Strategic III, which is
the general partner of each of Camden Partners Strategic
Fund III, L.P. and Camden Partners Strategic Fund III-A,
L.P., or the Camden Funds. Because Richard M. Berkeley is the
managing member of Camden Partners Strategic Manager, Camden
Partners Strategic Manager is the managing member of Camden
Partners Strategic III and Camden Partners
Strategic III is the general partner of each of the Camden
Funds, Mr. Berkeley may be deemed to have voting and
dispositive power over the shares held by the Camden Funds.
Mr. Berkeley and Muriel Van Dusen Berkeley are the trustees
of the 2009 Berkeley Family Resource Trust dated
12/11/2009,
or the Berkeley Family Trust, and share voting and dispositive
power over the shares held by the Berkeley Family Trust.
Mr. Berkeley is the trustee of the Alfred and Muriel
Berkeley Survivorship Trust dated
12/1/2005,
or the Berkeley Survivorship Trust, and has voting and
dispositive power over the shares held by the Berkeley
Survivorship Trust. Mr. Berkeley disclaims beneficial
ownership of shares
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held by the Berkeley Family Trust and the Berkeley Survivorship
Trust, except to the extent of any pecuniary interest therein.
Mr. Berkeley is an affiliate of a broker-dealer, purchased
the securities in the ordinary course of business and, at the
time of the purchase of the securities to be resold, had no
agreements or understandings, directly or indirectly, with any
person to distribute the securities. The address of the Camden
Funds and their affiliated entities and individuals is
500 E. Pratt Street, Suite 1200, Baltimore,
Maryland 21202. For a discussion of our material relationships
with Camden Partners and its affiliated entities, see
Certain Relationships and Related Party
Transactions. The Camden Funds are not affiliated with
Camden Property Trust.
(10)
Represents 6,000 shares issuable upon the exercise of
options to purchase shares of our common stock held by
Mr. Gyenes that are fully vested and exercisable within
60 days of April 1, 2010 and 13,333 restricted shares
of our common stock that are subject to forfeiture to us, which
forfeiture restriction lapses as to 666.65 shares on the
first day of each calendar quarter beginning July 1, 2010
and as to the remaining 3,333.25 shares on April 1,
2014, provided that Mr. Gyenes remains a director on each
such applicable date.
(11)
Represents 116,890 shares held by Jeffrey T. Leeds,
1,820,015 shares held by Advance Capital Offshore Partners,
L.P. and 5,803,285 shares held by Advance Capital Partners,
L.P. Because Mr. Leeds is a member of Advance Capital
Management, LLC, which is the general partner of Advance Capital
Associates, L.P., which is the general partner of Advance
Capital Partners, L.P. and Advance Capital Offshore Associates,
LDC, which is the general partner of Advance Capital Offshore
Partners, L.P., Mr. Leeds may be deemed to have voting and
dispositive power of the shares held by Advance Capital Offshore
Partners, L.P. and Advance Capital Partners, L.P. For a
discussion of our material relationships with Mr. Leeds,
see Certain Relationships and Related Party
Transactions.
(12)
Consists of 14,471,929 shares held of record by our
directors and executive officers, of which 32,292 shares
are subject to a repurchase right held by us that lapses with
respect to an additional 1,041 shares on the last day of
each calendar month provided that Mr. A. Berkeley remains
one of our directors on each such applicable date, 26,666 are
subject to forfeiture to us, which forfeiture restriction lapses
as to 666.65 shares on the first day of each calendar quarter
beginning July 1, 2010 and 3,333.25 shares on
April 1, 2014, provided that Mr. A. Berkeley
remains one of our directors on each such applicable date, and
as to 666.65 shares on the first day of each calendar
quarter beginning July 1, 2010 and 3,333.25 shares on
April 1, 2014, provided that Mr. Gyenes remains one of
our directors on each such applicable date,
1,519,125 shares issuable upon the exercise of options held
by our directors and executive officers that are fully vested
and exercisable within 60 days of April 1, 2010 and
88,704,179 shares held by entities over which our directors
and executive officers may be deemed to have voting or
dispositive power.
(13)
Represents 5,047,562 shares held by Camden Partners
Strategic Fund III, L.P. and 209,850 shares held by
Camden Partners Strategic
Fund III-A,
L.P. Camden Partners Strategic Manager, LLC, or Camden Partners
Strategic Manager, is the managing member of Camden Partners
Strategic III, LLC, or Camden Partners Strategic III, which is
the general partner of Camden Partners Strategic Fund III,
L.P. and Camden Partners Strategic
Fund III-A,
L.P., or the Camden Funds. Because Richard M. Berkeley, Don
Hughes, Dick Johnston and David Warnock are the managing members
of Camden Partners Strategic Manager, Camden Partners Strategic
Manager is managing member of Camden Partners Strategic III
and Camden Partners Strategic III is the general partner of
the Camden Funds, Messrs. Berkeley, Hughes, Johnston and
Warnock may be deemed to have voting and dispositive power over
the shares held by the Camden Funds. The address of the Camden
Funds and their affiliated entities and individuals is
500 E. Pratt Street, Suite 1200, Baltimore,
Maryland 21202. For a discussion of our material relationships
with the Camden Funds and affiliated entities, see Certain
Relationships and Related Party Transactions. The Camden
Funds are not affiliated with Camden Property Trust.
126
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shares
are designated as common stock; and
shares
are designated as preferred stock.
127
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128
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129
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130
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Prior to the date of the transaction, the board of directors of
the corporation approved either the business combination or the
transaction which resulted in the stockholder becoming an
interested stockholder;
Upon completion of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the voting stock
outstanding, but not the outstanding voting stock owned by the
interested stockholder, (1) shares owned by persons who are
directors and also officers and (2) shares owned by
employee stock plans in which employee participants do not have
the right to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange
offer; or
At or subsequent to the date of the transaction, the business
combination is approved by the board of directors of the
corporation and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative
vote of at least
66
2
/
3
%
of the outstanding voting stock that is not owned by the
interested stockholder.
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Number of Shares
1% of the number of shares of common stock then outstanding,
which will equal
approximately shares
immediately after the offering; or
the average weekly trading volume of the common stock during the
four calendar weeks preceding the filing of a notice on
Form 144 with respect to such sale.
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offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any shares of our common stock or
securities convertible into or exchangeable or exercisable for
any shares of our common stock, enter into a transaction that
would have the same effect, or
enter into any swap, hedge or other arrangement that transfers,
in whole or in part, any of the economic consequences of
ownership of our common stock,
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CONSEQUENCES TO
NON-U.S.
HOLDERS
banks, insurance companies or other financial institutions;
persons subject to the alternative minimum tax;
tax-exempt organizations;
controlled foreign corporations, passive foreign investment
companies and corporations that accumulate earnings to avoid
U.S. federal income tax;
dealers in securities or currencies;
traders in securities that elect to use a mark-to-market method
of accounting for their securities holdings;
persons that own, or are deemed to own, more than five percent
of our capital stock (except to the extent specifically set
forth below);
certain former citizens or long-term residents of the United
States;
persons who hold our common stock as a position in a hedging
transaction, straddle, conversion
transaction or other risk reduction transaction;
persons who do not hold our common stock as a capital asset
(within the meaning of Section 1221 of the Internal Revenue
Code; and
persons deemed to sell our common stock under the constructive
sale provisions of the Internal Revenue Code.
an individual citizen or resident of the United States;
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a corporation or other entity taxable as a corporation created
or organized in the United States or under the laws of the
United States or any political subdivision thereof;
an estate whose income is subject to U.S. federal income
tax regardless of its source; or
a trust (x) whose administration is subject to the primary
supervision of a U.S. court and which has one or more
U.S. persons who have the authority to control all
substantial decisions of the trust or (y) which has made an
election to be treated as a U.S. person.
the gain is effectively connected with your conduct of a
U.S. trade or business (and, if an income tax treaty
applies, the gain is attributable to a permanent establishment
maintained by you in the United States);
you are an individual who is present in the United States for a
period or periods aggregating 183 days or more during the
calendar year in which the sale or disposition occurs and
certain other conditions are met; or
our common stock constitutes a U.S. real property interest
by reason of our status as a U.S. real property holding
corporation, or a USRPHC, for U.S. federal income tax
purposes at any time within
135
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the shorter of the five-year period preceding the disposition or
your holding period for our common stock.
136
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137
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Number of Shares
Per Share
Total
Without
With
Without
With
Over-allotment
Over-allotment
Over-allotment
Over-allotment
138
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Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a
specified maximum.
Over-allotment transactions involve sales by the underwriters of
shares in excess of the number of shares the underwriters are
obligated to purchase, which creates a syndicate short position.
The short position may be either a covered short position or a
naked short position. In a covered short position, the number of
shares over-allotted by the underwriters is not greater than the
number of shares that they may purchase in the over-allotment
option. In a naked short position, the number of shares involved
is greater than the number of shares in the over-allotment
option. The underwriters may close out any covered short
position by either exercising their over-allotment option
and/or
purchasing shares in the open market.
Syndicate covering transactions involve purchases of the common
stock in the open market after the distribution has been
completed in order to cover syndicate short positions. In
determining the source of shares to close out the short
position, the underwriters will consider, among other things,
the price of
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shares available for purchase in the open market as compared to
the price at which they may purchase shares through the
over-allotment option. If the underwriters sell more shares than
could be covered by the over-allotment option, a naked short
position, the position can only be closed out by buying shares
in the open market. A naked short position is more likely to be
created if the underwriters are concerned that there could be
downward pressure on the price of the shares in the open market
after pricing that could adversely affect investors who purchase
in the offering.
Penalty bids permit the representatives to reclaim a selling
concession from a syndicate member when the common stock
originally sold by the syndicate member is purchased in a
stabilizing or syndicate covering transaction to cover syndicate
short positions.
140
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141
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142
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143
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the purchaser is entitled under applicable provincial securities
laws to purchase the common stock without the benefit of a
prospectus qualified under those securities laws,
where required by law, that the purchaser is purchasing as
principal and not as agent,
the purchaser has reviewed the text above under Resale
Restrictions, and
the purchaser acknowledges and consents to the provision of
specified information concerning its purchase of the common
stock to the regulatory authority that by law is entitled to
collect the information.
144
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145
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Table of Contents
F-2
Table of Contents
(in thousands, except share and per share amounts)
Pro Forma
December 31,
December 31,
2008
2009
2009
(unaudited)
$
4,248
$
4,427
14,131
14,886
27,459
25,841
3,110
3,281
2,739
49,119
51,003
19,137
20,749
17,849
27,366
15,125
22,891
17,803
1,110
2,301
$
102,340
$
142,113
$
3,405
$
3,705
13,255
10,830
42,213
43,994
6,216
8,412
14,117
15,127
79,206
82,068
5,019
5,434
1,132
10,000
27,498
43,449
6,767
5,806
129,622
136,757
51,724
51,786
6,478
6,491
13,473
13,555
48
53
111
19,670
24,206
95,980
(449
)
(938
)
(938
)
(118,226
)
(89,797
)
(89,797
)
(98,957
)
(66,476
)
5,356
$
102,340
$
142,113
F-3
Table of Contents
(in thousands, except per share amounts)
Year Ended December 31,
2007
2008
2009
$
62,592
$
95,192
$
128,377
11,560
7,582
3,860
9,429
9,794
8,665
83,581
112,568
140,902
35,703
46,058
58,513
47,878
66,510
82,389
21,708
28,806
27,446
18,047
23,923
27,804
9,756
14,135
20,210
49,511
66,864
75,460
(1,633
)
(354
)
6,929
(1,510
)
(2,152
)
(4,528
)
(3,143
)
(2,506
)
2,401
703
(26,028
)
$
(3,143
)
$
(3,209
)
$
28,429
$
(9,143
)
$
(10,658
)
$
10,757
$
(9,143
)
$
(10,658
)
$
10,757
$
(0.45
)
$
(0.38
)
$
0.22
$
(0.45
)
$
(0.38
)
$
0.21
20,446
27,773
47,869
20,446
27,773
51,025
$
0.27
$
0.26
105,957
109,113
Year Ended December 31,
2007
2008
2009
$
48
$
104
$
367
251
727
1,175
110
277
498
81
368
765
$
490
$
1,476
$
2,805
(2)
Pro forma net income per share
represents net income divided by the pro forma weighted average
shares outstanding as though the conversion of our redeemable
convertible preferred stock into common stock occurred on the
initial issuance dates.
(3)
Pro forma weighted average shares
outstanding reflects the conversion of our redeemable
convertible preferred stock (using the if-converted method) into
common stock as though the conversion had occurred on the
original dates of issuance.
F-4
Table of Contents
(in thousands)
Redeemable Convertible
Additional
Total
Preferred Stock
Common Stock
Paid-in
Accumulated
Treasury Shares
Stockholders
Shares
Amount
Shares
Amount
Capital
Deficit
Shares
Amount
Deficit
55,063
$
72,300
20,133
$
20
$
12,581
$
(111,874
)
$
(99,273
)
6,234
(6,234
)
(6,234
)
969
1
968
969
175
175
175
490
490
47
47
(3,143
)
(3,143
)
55,063
78,534
21,277
21
8,027
(115,017
)
(106,969
)
3,025
13,357
7,698
(7,698
)
(7,698
)
665
1
770
771
9,306
9
262
271
(27,914
)
16,295
17
16,833
16,850
(139
)
$
(449
)
(449
)
1,476
1,476
(3,209
)
(3,209
)
58,088
71,675
47,543
48
19,670
(118,226
)
(139
)
(449
)
(98,957
)
5,678
(5,678
)
(5,678
)
356
543
543
400
4
4
32
(5,521
)
2,837
3
3,002
3,005
2,167
2
3,860
3,862
(274
)
(489
)
(489
)
2,805
2,805
28,429
28,429
58,088
$
71,832
53,335
$
53
$
24,206
$
(89,797
)
(413
)
$
(938
)
$
(66,476
)
F-5
Table of Contents
(in thousands)
Year Ended December 31,
2007
2008
2009
$
(3,143
)
$
(3,209
)
$
28,429
7,127
10,997
14,769
489
(26,308
)
490
1,476
2,805
115
127
830
119
(5,168
)
(7,622
)
2,407
(105
)
255
(330
)
(203
)
559
(375
)
(290
)
(1,140
)
939
(579
)
645
210
934
(461
)
4,382
5,561
1,094
309
(432
)
1,458
4,441
7,962
24,758
(7,122
)
(10,263
)
(9,509
)
(9,033
)
(22,057
)
(15,167
)
(16,155
)
(32,320
)
(24,676
)
10,917
15,521
35,000
(7,015
)
(2,454
)
(16,853
)
7,584
1,416
(10,000
)
(678
)
(2,558
)
(5,592
)
13,357
(2,516
)
1,144
1,042
547
(449
)
(489
)
11,952
25,875
97
238
1,517
179
2,493
2,731
4,248
$
2,731
$
4,248
$
4,427
$
1,212
$
2,651
$
3,833
$
39
$
117
$
228
$
6,320
$
2,077
$
2,462
$
6,234
$
7,698
$
5,678
$
$
16,850
$
3,005
F-6
Table of Contents
1.
The
Company
2.
Summary
of Significant Accounting Policies
F-7
Table of Contents
F-8
Table of Contents
3-10 years
3-10 years
3-5 years
3 years
F-9
Table of Contents
F-10
Table of Contents
there is persuasive evidence of an arrangement;
the solution and/or service has been provided to the customer;
the collection of the fees is probable; and
the amount of fees to be paid by the customer is fixed or
determinable.
Vendor specific objective evidence (VSOE), if
available.
The price at which we sell the element
in a separate stand-alone transaction;
Third-party evidence of selling price (TPE), if VSOE of
selling price is not available.
Evidence from us
or other companies of the value of a largely interchangeable
element in a transaction; and
Estimated selling price, if neither VSOE nor TPE of selling
price is available.
Our best estimate of the
stand-alone selling price of an element in a transaction.
F-11
Table of Contents
F-12
Table of Contents
December 31,
2008
2009
(in thousands)
$
5,264
$
5,034
2,852
1,540
3,358
1,903
1,781
2,353
$
13,255
$
10,830
December 31,
2008
2009
(in thousands)
$
2,377
$
589
2,470
2,455
1,920
2,762
$
6,767
$
5,806
F-13
Table of Contents
3.
Acquisitions
F-14
Table of Contents
LeasingDesk
(in thousands)
$
116
2,020
120
420
5,241
(434
)
(135
)
$
7,348
Webroomz
Ops
(in thousands)
$
228
$
2,457
4,884
5,650
1,840
953
7,253
(619
)
(644
)
809
$
1,181
$
21,630
F-15
Table of Contents
F-16
Table of Contents
Evergreen
ALW
Propertyware
(in thousands)
$
$
1,192
$
7,427
154
964
1,050
34
373
1,080
472
1,222
6,144
(520
)
(451
)
(863
)
(3,407
)
225
415
78
$
885
$
2,783
$
11,921
Year Ended December 31,
2007
2008
2009
Pro Forma
Pro Forma
Pro Forma
(unaudited)
(unaudited)
(unaudited)
(in thousands)
$
73,012
$
108,295
$
134,896
17,605
16,673
13,035
13,723
15,041
12,080
$
104,340
$
140,009
$
160,011
(6,261
)
(16,667
)
28,486
(12,261
)
(24,116
)
10,814
$
(0.60
)
$
(0.87
)
$
0.23
$
(0.60
)
$
(0.87
)
$
0.21
F-17
Table of Contents
December 31,
2008
2009
(in thousands)
$
5,069
$
6,039
20,078
26,969
5,233
6,251
19,005
21,807
49,385
61,066
(30,248
)
(40,317
)
$
19,137
$
20,749
5.
Goodwill
and Other Intangible Assets
(in thousands)
$
9,194
449
8,206
17,849
1,679
7,838
$
27,366
F-18
Table of Contents
December 31, 2009
December 31, 2008
Amortization
Carrying
Accumulated
Carrying
Accumulated
Period
Amount
Amortization
Net
Amount
Amortization
Net
(in thousands)
3 years
$
2,801
$
(412
)
$
2,389
$
11,421
$
(1,870
)
$
9,551
1-10 years
7,539
(2,469
)
5,070
9,707
(4,301
)
5,406
7 years
5,650
(311
)
5,339
5,650
(1,500
)
4,150
4-5 years
120
(53
)
67
120
(83
)
37
16,110
(3,245
)
12,865
26,898
(7,754
)
19,144
2,260
2,260
3,747
3,747
$
18,370
$
(3,245
)
$
15,125
$
30,645
$
(7,754
)
$
22,891
(in thousands)
$
6,486
5,630
3,967
1,278
1,028
6.
Debt
December 31,
2008
2009
(in thousands)
$
10,000
12,650
$
33,688
11,064
8,173
10,000
10,000
$
43,714
$
51,861
F-19
Table of Contents
(in thousands)
$
11,093
11,837
11,606
27,325
7.
Redeemable
Convertible Preferred Stock
F-20
Table of Contents
8.
Share
Options and Warrants
F-21
Table of Contents
Weighted
Range of
Average
Number of
Exercise
Exercise
Shares
Prices
Price
9,467,719
$
1.00 - $1.25
$
1.20
2,233,500
1.50 - 2.75
1.84
(968,782
)
1.00
1.00
(708,592
)
1.00 - 1.75
1.05
10,023,845
1.00 - 2.75
1.21
3,974,000
3.00 - 3.50
3.27
(664,908
)
1.00 - 3.50
1.16
(863,811
)
1.00 - 3.50
1.75
12,469,127
1.00 - 3.50
1.83
4,568,000
3.00
3.00
(355,783
)
1.00 - 3.00
1.52
(823,888
)
1.00 - 3.50
2.09
15,857,456
1.00 - 3.50
2.16
Options Outstanding
Fully Vested
and
Expected to
Vest
Non-Vested
Exercisable
15,294,275
7,155,839
8,701,617
7.20
9.02
5.83
$
2.13
$
2.94
$
1.52
F-22
Table of Contents
1.5-4.8
%
6
0
%
50-60
%
F-23
Table of Contents
9.
Commitments
and Contingencies
December 31,
2009
(in thousands)
$
5,679
5,903
11,582
(6,411
)
$
5,171
Operating
Capital Leases
Leases
(in thousands)
$
1,670
$
4,922
538
4,372
65
3,825
3,809
3,782
6,341
$
2,273
$
27,051
(144
)
2,129
(1,540
)
$
589
F-24
Table of Contents
10.
Funds
Held for Others
11.
Net
Income (Loss) Per Share
F-25
Table of Contents
F-26
Table of Contents
Year Ended December 31,
2007
2008
2009
(in thousands, except per share amounts)
$
(3,143
)
$
(3,209
)
$
28,429
(6,000
)
(7,449
)
(5,521
)
(12,151
)
$
(9,143
)
$
(10,658
)
$
10,757
20,446
27,773
47,869
20,446
27,773
47,869
3,063
93
20,446
27,773
51,025
$
(0.45
)
$
(0.38
)
$
0.22
$
(0.45
)
$
(0.38
)
$
0.21
47,869
58,088
105,957
51,025
58,088
109,113
$
0.27
$
0.26
12.
Related
Party Transactions
F-27
Table of Contents
13.
Income
Taxes
Year Ended December 31,
2007
2008
2009
(in thousands)
$
197
$
231
17
49
214
280
489
(25,147
)
(1,161
)
489
(26,308
)
$
703
$
(26,028
)
Year Ended December 31,
2007
2008
2009
(in thousands)
$
(1,068
)
$
(872
)
$
837
197
152
17
(50
)
(27,036
)
143
185
166
1,046
567
(121
)
609
(97
)
$
703
$
(26,028
)
December 31,
2008
2009
(in thousands)
$
597
6,101
$
8,228
25,579
24,270
32,277
32,498
(1,868
)
(235
)
(476
)
(1,611
)
(4,714
)
$
30,431
$
25,440
(31,563
)
(4,527
)
$
(1,132
)
$
20,913
F-28
Table of Contents
14.
Employee
Benefit Plans
F-29
Table of Contents
Table of Contents
Item 13.
Other
Expenses of Issuance and Distribution
$
10,695.00
15,500.00
*
*
*
*
*
*
*
$
*
*
To be filed by amendment.
Item 14.
Indemnification
of Directors and Officers
The registrant shall indemnify its directors and officers for
serving the registrant in those capacities or for serving other
business enterprises at the registrants request, to the
fullest extent permitted by Delaware law. Delaware law provides
that a corporation may indemnify such person if such person
acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
registrant and, with respect to any criminal proceeding, had no
reasonable cause to believe such persons conduct was
unlawful.
The registrant may, in its discretion, indemnify employees and
agents in those circumstances in which indemnification is not
required by law.
The registrant will be required to advance expenses, as
incurred, to its directors and officers in connection with
defending a proceeding, except that such director or officer
shall undertake to repay such advances if it is ultimately
determined that such person is not entitled to indemnification.
The registrant will not be obligated pursuant to the bylaws to
indemnify a person with respect to proceedings initiated by that
person, except with respect to proceedings authorized by the
registrants board of directors. The rights conferred in
the bylaws are not exclusive, and the registrant is authorized
to enter into indemnification agreements with its directors,
officers, employees and agents and to obtain insurance to
indemnify such persons.
II-1
Table of Contents
The registrant may not retroactively amend the bylaw provisions
to reduce its indemnification obligations to directors,
officers, employees and agents.
Item 15.
Recent
Sales of Unregistered Securities
II-2
Table of Contents
Item 16.
Exhibits
and Financial Statement Schedules
(a)
Exhibits
II-3
Table of Contents
Exhibit
10
.2+
Amended and Restated 1998 Stock Incentive Plan
10
.2A+
Form of Notice of Stock Option Grant
10
.2B+
Form of Notice of Grant of Restricted Shares
10
.2C+
Form of Non-Qualified Stock Option Agreement (Second Series)
10
.2D+
Form of Non-Qualified Stock Option Agreement
10
.3+
Form of Directors Nonqualified Stock Option Agreement
10
.4+
2010 Equity Incentive Plan
10
.5+
Form of 2009 Management Incentive Plan
10
.6+
Form of 2010 Management Incentive Plan
10
.7+
Stand-Alone Stock Option Agreement between the Registrant and
Peter Gyenes, dated February 25, 2010
10
.8+
Non-Qualified Stock Option Agreement (Second Series) under the
Amended and Restated 1998 Stock Incentive Plan between the
Registrant and Timothy J. Barker dated October 27, 2005
10
.9+
Non-Qualified Stock Option Agreement (Second Series) under the
Amended and Restated 1998 Stock Incentive Plan between the
Registrant and Timothy J. Barker dated February 26, 2009
10
.10+
Notice of Stock Option Grant under the Amended and Restated 1998
Stock Incentive Plan between the Registrant and Timothy J.
Barker dated February 25, 2010
10
.11+
Employment Agreement between the Registrant and Stephen T. Winn,
dated December 30, 2003
10
.12+
Employment Agreement between the Registrant and Timothy J.
Barker, dated October 31, 2005
10
.13+
Amendment to Employment Agreement between the Registrant and
Timothy J. Barker, dated January 1, 2010
10
.14+
Employment Agreement between the Registrant and William E.
Van Valkenberg, dated September 24, 2009
10
.15+
Master Agreement for Consulting Services between the Registrant
and William E. Van Valkenberg, dated June 28, 2009
10
.16+
Employment Agreement between the Registrant and Ashley Chaffin
Glover, dated March 3, 2005
10
.17+
Employment Agreement between Multifamily Internet Ventures, LLC
and Dirk D. Wakeham, dated April 12, 2007 and amended
April 12, 2007
10
.18
Credit Agreement among the Registrant, Wells Fargo Foothill, LLC
and Comerica Bank dated, September 3, 2009
10
.19
Security Agreement among the Registrant, OpsTechnology, Inc.,
Multifamily Internet Ventures, LLC, Starfire Media, Inc.,
RealPage India Holdings, Inc. and Wells Fargo Foothill, LLC,
dated September 3, 2009
10
.20
General Continuing Guaranty among OpsTechnology, Inc.,
Multifamily Internet Ventures, LLC, Starfire Media, Inc.,
RealPage India Holdings, Inc. and Wells Fargo Foothill, LLC,
dated September 3, 2009
10
.21
Waiver and First Amendment to Credit Agreement among the
Registrant, Wells Fargo Foothill, LLC and Comerica Bank, dated
September 16, 2009
10
.22
General Continuing Guaranty between A.L. Wizard, Inc. and Wells
Fargo Foothill, LLC, dated September 25, 2009
10
.23
Waiver and Second Amendment to Credit Agreement among the
Registrant, Wells Fargo Foothill, LLC and Comerica bank, dated
October 15, 2009
10
.24
General Continuing Guarantee between Propertyware, Inc. and
Wells Fargo Foothill, LLC, dated November 6, 2009
10
.25
Supplement No. 2 to Security Agreement between
Propertyware, Inc. and Wells Fargo Foothill, LLC, dated
November 6, 2009
10
.26
Consent and Third Amendment to Credit Agreement among the
Registrant, Wells Fargo Foothill, LLC, and Comerica Bank dated
December 23, 2009
10
.27
Waiver, Consent and Fourth Amendment to Credit Agreement among
the Registrant, Wells Fargo Capital Finance, LLC (f/k/a Wells
Fargo Foothill, LLC) and Comerica Bank dated February 10,
2010
10
.28
General Security Agreement between 43642 Yukon, Inc. and
Wells Fargo Capital Finance, LLC (f/k/a Wells Fargo Foothill,
LLC), dated February 10, 2010
Table of Contents
Exhibit
10
.29
Guarantee between 43642 Yukon, Inc. and Wells Fargo Capital
Finance, LLC (f/k/a Wells Fargo Foothill, LLC), dated
February 10, 2010
10
.30
Share Pledge between the Registrant and Wells Fargo Capital
Finance, LLC (f/k/a Wells Fargo Foothill, LLC), dated
February 10, 2010
10
.31
Note Purchase Agreement between the Registrant and HV Capital
Investors, L.L.C., dated August 1, 2008
10
.32
Security Agreement between the Registrant and HV Capital
Investors, L.L.C., dated August 1, 2008
10
.33
Form of Secured Promissory Note issued by the Registrant to HV
Capital Investors, L.L.C. on August 1, 2008 and
September 19, 2008
10
.34
First Amendment to Note Purchase Agreement between the
Registrant and HV Capital Investors, L.L.C., dated
January 20, 2009 and effective as of December 31, 2008
10
.35
Form of Unsecured Subordinated Promissory Note (Series A and
Series A1)
10
.35A
Schedule of Holders of Unsecured Subordinated Promissory Notes
(Series A and Series A1)
10
.36
Form of Unsecured Subordinated Promissory Note (Series B and
Series C)
10
.36A
Schedule of Holders of Unsecured Subordinated Promissory Notes
(Series B and Series C)
10
.37
Form of Unsecured Subordinated Promissory Note (April 2010)
10
.37A
Schedule of Holders of Unsecured Subordinated Promissory Notes
(April 2010)
10
.38
Amendment No. 1 to Unsecured Subordinated Promissory Notes among
the Registrant and certain holders of its Unsecured Subordinated
Promissory Notes
10
.39
Lease Agreement between the Registrant and CB Parkway Business
Center V, Ltd., dated July 23, 1999
10
.40
First Amendment to Lease Agreement between the Registrant and CB
Parkway Business Center V, Ltd., dated November 29,
1999
10
.41
Second Amendment to Lease Agreement between the Registrant and
CB Parkway Business Center V, Ltd., dated January 30,
2006
10
.42
Third Amendment to Lease Agreement between the Registrant and CB
Parkway Business Center V, Ltd., dated August 28, 2006
10
.43
Fourth Amendment to Lease Agreement between the Registrant and
ARI-Commercial Properties, Inc., dated November 2007
10
.44
Fifth Amendment to Lease Agreement between the Registrant and
ARI-Commercial Properties, Inc., dated February 4, 2009
10
.45
Sixth Amendment to Lease Agreement between the Registrant and
ARI-Commercial Properties, Inc., dated March 30, 2009
10
.46
Lease Agreement between the Registrant and Savoy IBP 8,
Ltd., dated August 28, 2006
10
.47
First Amendment to Lease Agreement among the Registrant,
ARI-International Business Park, LLC, ARI -IBP 1, LLC, ARI
- IBP 2, LLC, ARI - IBP 3, LLC, ARI - IBP 4, LLC,
ARI - IBP 5, LLC, ARI - IBP 6, LLC, ARI - IBP 7,
LLC, ARI - IBP 8, LLC, ARI - IBP 9, LLC, ARI -
IBP 11, LLC and ARI - IBP 12, LLC, dated
December 28, 2009
10
.48
Master Services Agreement between the Registrant and DataBank
Holdings Ltd., dated May 31, 2007
21
.1
Subsidiaries of the Registrant
23
.1
Consent of Ernst & Young LLP, Independent Registered Public
Accounting Firm
23
.2*
Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1)
24
.1
Power of Attorney (contained in the signature page to this
registration statement)
+
Indicates management contract or compensatory plan or
arrangement.
*
To be filed by amendment.
Confidential treatment has been requested for portions of this
exhibit. These portions have been omitted from the Registration
Statement and submitted separately to the Securities and
Exchange Commission.
Table of Contents
(b)
Financial
Statement Schedules
REALPAGE, INC.
December 31, 2009
(in thousands)
Allowance for Doubtful Accounts
Additions
Balance at
Charged to
Additions
Balance at
Beginning
Costs and
Due to
End of
of Year
Expenses
Acquisitions
Deduction(1)
Year
$
923
$
1,490
$
2,413
2,413
301
$
181
2,895
2,895
441
175
$
(1,289
)
2,222
(1)
Uncollectible accounts written off, net of recoveries.
Item 17.
Undertakings
II-6
Table of Contents
By:
Chairman of the Board, Chief Executive Officer, and Director
(Principal
Executive Officer)
April 29, 2010
Chief Financial Officer and Treasurer (Principal Financial and
Accounting Officer)
April 29, 2010
Director
April 29, 2010
Director
April 29, 2010
Director
April 29, 2010
Director
April 29, 2010
Director
April 29, 2010
II-7
Table of Contents
Exhibit
1
.1*
Form of Underwriting Agreement
3
.1
Amended and Restated Certificate of Incorporation of the
Registrant currently in effect
3
.2*
Form of Amended and Restated Certificate of Incorporation of the
Registrant to be effective upon the completion of this offering
3
.3
Bylaws of the Registrant in effect before the completion of this
offering
3
.4*
Form of Amended and Restated Bylaws of the Registrant to be
effective upon the completion of this offering
4
.1*
Form of Common Stock certificate of the Registrant
4
.2
Shareholders Agreement among the Registrant and certain
stockholders, dated December 1, 1998, as amended July 16,
1999 and November 3, 2000
4
.3
Second Amended and Restated Registration Rights Agreement among
the Registrant and certain stockholders, dated February 22,
2008
4
.4
Fourth Amended and Restated Shareholders Agreement among the
Registrant and certain stockholders, dated March 17, 2010
4
.5
Letter Agreement between the Registrant and Camden Partners
Strategic Fund III, L.P. regarding management rights, dated
December 14, 2005
4
.6
Letter Agreement between the Registrant and Camden Partners
Strategic Fund III-A, L.P. regarding management rights, dated
December 14, 2005
5
.1*
Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
10
.1
Form of Indemnification Agreement to be entered into between the
Registrant and each of its directors and officers
10
.2+
Amended and Restated 1998 Stock Incentive Plan
10
.2A+
Form of Notice of Stock Option Grant
10
.2B+
Form of Notice of Grant of Restricted Shares
10
.2C+
Form of Non-Qualified Stock Option Agreement (Second Series)
10
.2D+
Form of Non-Qualified Stock Option Agreement
10
.3+
Form of Directors Nonqualified Stock Option Agreement
10
.4+
2010 Equity Incentive Plan
10
.5+
Form of 2009 Management Incentive Plan
10
.6+
Form of 2010 Management Incentive Plan
10
.7+
Stand-Alone Stock Option Agreement between the Registrant and
Peter Gyenes, dated February 25, 2010
10
.8+
Non-Qualified Stock Option Agreement (Second Series) under the
Amended and Restated 1998 Stock Incentive Plan between the
Registrant and Timothy J. Barker dated October 27, 2005
10
.9+
Non-Qualified Stock Option Agreement (Second Series) under the
Amended and Restated 1998 Stock Incentive Plan between the
Registrant and Timothy J. Barker dated February 26, 2009
10
.10+
Notice of Stock Option Grant under the Amended and Restated 1998
Stock Incentive Plan between the Registrant and Timothy J.
Barker dated February 25, 2010
10
.11+
Employment Agreement between the Registrant and Stephen T. Winn,
dated December 30, 2003
10
.12+
Employment Agreement between the Registrant and Timothy J.
Barker, dated October 31, 2005
10
.13+
Amendment to Employment Agreement between the Registrant and
Timothy J. Barker, dated January 1, 2010
10
.14+
Employment Agreement between the Registrant and William E.
Van Valkenberg, dated September 24, 2009
10
.15+
Master Agreement for Consulting Services between the Registrant
and William E. Van Valkenberg, dated June 28, 2009
10
.16+
Employment Agreement between the Registrant and Ashley Chaffin
Glover, dated March 3, 2005
10
.17+
Employment Agreement between Multifamily Internet Ventures, LLC
and Dirk D. Wakeham, dated April 12, 2007 and amended
April 12, 2007
10
.18
Credit Agreement among the Registrant, Wells Fargo Foothill, LLC
and Comerica Bank dated, September 3, 2009
Table of Contents
Exhibit
10
.19
Security Agreement among the Registrant, OpsTechnology, Inc.,
Multifamily Internet Ventures, LLC, Starfire Media, Inc.,
RealPage India Holdings, Inc. and Wells Fargo Foothill, LLC,
dated September 3, 2009
10
.20
General Continuing Guaranty among OpsTechnology, Inc.,
Multifamily Internet Ventures, LLC, Starfire Media, Inc.,
RealPage India Holdings, Inc. and Wells Fargo Foothill, LLC,
dated September 3, 2009
10
.21
Waiver and First Amendment to Credit Agreement among the
Registrant, Wells Fargo Foothill, LLC and Comerica Bank, dated
September 16, 2009
10
.22
General Continuing Guaranty between A.L. Wizard, Inc. and Wells
Fargo Foothill, LLC, dated September 25, 2009
10
.23
Waiver and Second Amendment to Credit Agreement among the
Registrant, Wells Fargo Foothill, LLC and Comerica bank, dated
October 15, 2009
10
.24
General Continuing Guarantee between Propertyware, Inc. and
Wells Fargo Foothill, LLC, dated November 6, 2009
10
.25
Supplement No. 2 to Security Agreement between Propertyware,
Inc. and Wells Fargo Foothill, LLC, dated November 6, 2009
10
.26
Consent and Third Amendment to Credit Agreement among the
Registrant, Wells Fargo Foothill, LLC, and Comerica Bank dated
December 23, 2009
10
.27
Waiver, Consent and Fourth Amendment to Credit Agreement among
the Registrant, Wells Fargo Capital Finance, LLC (f/k/a Wells
Fargo Foothill, LLC) and Comerica Bank dated February 10,
2010
10
.28
General Security Agreement between 43642 Yukon, Inc. and Wells
Fargo Capital Finance, LLC (f/k/a Wells Fargo Foothill, LLC),
dated February 10, 2010
10
.29
Guarantee between 43642 Yukon, Inc. and Wells Fargo Capital
Finance, LLC (f/k/a Wells Fargo Foothill, LLC), dated
February 10, 2010
10
.30
Share Pledge between the Registrant and Wells Fargo Capital
Finance, LLC (f/k/a Wells Fargo Foothill, LLC), dated
February 10, 2010
10
.31
Note Purchase Agreement between the Registrant and HV Capital
Investors, L.L.C., dated August 1, 2008
10
.32
Security Agreement between the Registrant and HV Capital
Investors, L.L.C., dated August 1, 2008
10
.33
Form of Secured Promissory Note issued by the Registrant to HV
Capital Investors, L.L.C. on August 1, 2008 and
September 19, 2008
10
.34
First Amendment to Note Purchase Agreement between the
Registrant and HV Capital Investors, L.L.C., dated
January 20, 2009 and effective as of December 31, 2008
10
.35
Form of Unsecured Subordinated Promissory Note (Series A and
Series A1)
10
.35A
Schedule of Holders of Unsecured Subordinated Promissory Notes
(Series A and Series A1)
10
.36
Form of Unsecured Subordinated Promissory Note (Series B and
Series C)
10
.36A
Schedule of Holders of Unsecured Subordinated Promissory Notes
(Series B and Series C)
10
.37
Form of Unsecured Subordinated Promissory Note (April 2010)
10
.37A
Schedule of Holders of Unsecured Subordinated Promissory Notes
(April 2010)
10
.38
Amendment No. 1 to Unsecured Subordinated Promissory Notes
among the Registrant and certain holders of its Unsecured
Subordinated Promissory Notes
10
.39
Lease Agreement between the Registrant and CB Parkway Business
Center V, Ltd., dated July 23, 1999
10
.40
First Amendment to Lease Agreement between the Registrant and CB
Parkway Business Center V, Ltd., dated November 29,
1999
10
.41
Second Amendment to Lease Agreement between the Registrant and
CB Parkway Business Center V, Ltd., dated January 30,
2006
10
.42
Third Amendment to Lease Agreement between the Registrant and CB
Parkway Business Center V, Ltd., dated August 28, 2006
10
.43
Fourth Amendment to Lease Agreement between the Registrant and
ARI-Commercial Properties, Inc., dated November 2007
10
.44
Fifth Amendment to Lease Agreement between the Registrant and
ARI-Commercial Properties, Inc., dated February 4, 2009
Table of Contents
Exhibit
10
.45
Sixth Amendment to Lease Agreement between the Registrant and
ARI-Commercial Properties, Inc., dated March 30, 2009
10
.46
Lease Agreement between the Registrant and Savoy IBP 8,
Ltd., dated August 28, 2006
10
.47
First Amendment to Lease Agreement among the Registrant,
ARI-International Business Park, LLC, ARI -IBP 1, LLC, ARI
- IBP 2, LLC, ARI - IBP 3, LLC, ARI - IBP 4, LLC,
ARI - IBP 5, LLC, ARI - IBP 6, LLC, ARI - IBP 7,
LLC, ARI - IBP 8, LLC, ARI - IBP 9, LLC, ARI -
IBP 11, LLC and ARI - IBP 12, LLC, dated
December 28, 2009
10
.48
Master Services Agreement between the Registrant and DataBank
Holdings Ltd., dated May 31, 2007
21
.1
Subsidiaries of the Registrant
23
.1
Consent of Ernst & Young LLP, Independent Registered Public
Accounting Firm
23
.2*
Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1)
24
.1
Power of Attorney (contained in the signature page to this
registration statement)
+
Indicates management contract or compensatory plan or
arrangement.
*
To be filed by amendment.
Confidential treatment has been requested for portions of this
exhibit. These portions have been omitted from the Registration
Statement and submitted separately to the Securities and
Exchange Commission.
2
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/s/ Stephen T. Winn | ||||
Stephen T. Winn | ||||
Chief Executive Officer | ||||
33
Page | ||||||||
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ARTICLE I. OFFICES | 1 | |||||||
|
||||||||
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Section 1 | Registered Office and Agent | 1 | |||||
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Section 2 | Other Offices | 1 | |||||
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ARTICLE II. MEETINGS OF STOCKHOLDERS | 1 | |||||||
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Section 1 | Time and Place of Meetings | 1 | |||||
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Section 2 | Annual Meetings | 2 | |||||
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Section 3 | Special Meetings | 2 | |||||
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Section 4 | Quorum | 3 | |||||
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Section 5 | Voting | 3 | |||||
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Section 6 | Consent of Stockholders in Lieu of Meeting | 3 | |||||
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Section 7 | List of Stockholders Entitled to Vote | 4 | |||||
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Section 8 | Stock Ledger | 4 | |||||
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Section 9 | Meeting by Remote Communication | 4 | |||||
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ARTICLE III. DIRECTORS | 4 | |||||||
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Section 1 | Number and Election of Directors | 4 | |||||
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Section 2 | Vacancies | 5 | |||||
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Section 3 | Duties and Powers | 5 | |||||
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Section 4 | Meetings | 5 | |||||
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Section 5 | Quorum | 5 | |||||
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Section 6 | Actions of Board | 5 | |||||
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Section 7 | Meetings by Means of Conference Telephone | 6 | |||||
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Section 8 | Committees | 6 | |||||
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Section 9 | Compensation | 6 | |||||
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Section 10 | Interested Directors | 6 | |||||
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ARTICLE IV. OFFICERS | 7 | |||||||
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Section 1 | General | 7 | |||||
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Section 2 | Election | 7 | |||||
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Section 3 | Voting Securities Owned by the Corporation | 7 | |||||
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Section 4 | Chairman of the Board of Directors | 8 | |||||
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Section 5 | President | 8 | |||||
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Section 6 | Vice Presidents | 8 |
-i-
Page | ||||||||
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Section 7 | Secretary | 8 | |||||
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Section 8 | Treasurer | 9 | |||||
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Section 9 | Assistant Secretaries | 9 | |||||
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Section 10 | Assistant Treasurers | 9 | |||||
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Section 11 | Other Officers | 9 | |||||
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ARTICLE V. STOCK | 10 | |||||||
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Section 1 | Form of Certificates | 10 | |||||
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Section 2 | Signatures | 10 | |||||
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Section 3 | Lost Certificates | 10 | |||||
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Section 4 | Transfers | 10 | |||||
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Section 5 | Record Date | 10 | |||||
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Section 6 | Beneficial Owners | 11 | |||||
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Section 7 | Legends | 11 | |||||
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ARTICLE VI. NOTICES | 11 | |||||||
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Section 1 | Notices | 11 | |||||
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Section 2 | Waivers of Notice | 11 | |||||
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ARTICLE VII. GENERAL PROVISIONS | 11 | |||||||
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Section 1 | Dividends | 11 | |||||
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Section 2 | Disbursements | 12 | |||||
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Section 3 | Fiscal Year | 12 | |||||
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Section 4 | Corporate Seal | 12 | |||||
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Section 5 | Books and Records | 12 | |||||
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ARTICLE VIII. INDEMNIFICATION | 12 | |||||||
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Section 1 | Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in the Right of the Corporation | 12 | |||||
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Section 2 | Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation | 13 | |||||
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Section 3 | Authorization of Indemnification | 13 | |||||
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Section 4 | Good Faith Defined | 13 | |||||
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Section 5 | Indemnification by a Court | 14 | |||||
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Section 6 | Expenses Payable in Advance | 14 | |||||
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Section 7 | Nonexclusivity of Indemnification and Advancement of Expenses | 14 | |||||
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Section 8 | Insurance | 15 | |||||
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Section 9 | Certain Definitions | 15 | |||||
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Section 10 | Survival of Indemnification and Advancement of Expenses | 15 | |||||
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Section 11 | Limitation on Indemnification | 15 | |||||
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Section 12 | Indemnification of Employees and Agents | 15 |
-ii-
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|
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ARTICLE IX. AMENDMENTS | 16 | |||||||
|
||||||||
|
Section 1 | Amendments | 16 |
-iii-
/s/ Jim Harrison | ||||
Secretary | ||||
If to the Shareholders, to:
|
At their addresses appearing | |
|
from time to time on the books | |
|
of the Company | |
|
||
If to Seren, to:
|
Seren Capital Ltd. | |
|
2395 Midway Road | |
|
Carrollton, Texas 75006 | |
|
Attn: Stephen T. Winn |
REALPAGE COMMUNICATIONS, INC.
|
||||
By: | /s/ Stephen T. Winn | |||
Name: | Stephen T. Winn | |||
Title: | Chairman of the Board | |||
SEREN CAPITAL LTD.
By: Seren Capital Management, L.L.C. General Partner |
||||
By: | /s/ Stephen T. Winn | |||
Name: |
Stephen T. Winn, sole Manager and
President |
|||
SEREN CATALYST, L.P.
By: Seren Capital Management, L.L.C. General Partner |
||||
By: | /s/ Stephen T. Winn | |||
Name: |
Stephen T. Winn, sole Manager and
President |
|||
/s/ James Melson, Jr. | ||||
James Melson, Jr. | ||||
/s/ Michael W. Munoz | ||||
Michael W. Munoz | ||||
/s/ Richard M. Finks | ||||
Richard M. Finks | ||||
/s/ Matthew W. Upton | ||||
Matthew W. Upton | ||||
/s/ Ann Howard Smith | ||||
Ann Howard Smith |
/s/ Leslie L. Melson | ||||
Name Leslie L. Nelson | ||||
Spouse of James E. Melson, Jr. | ||||
Name
Spouse of N/A |
||||
/s/ Gwendolyn Finks | ||||
Name Gwendolyn Finks | ||||
Spouse of Richard M. Finks | ||||
Name N/A | ||||
Spouse of | ||||
/s/ Debra Jean Upton | ||||
Name Debra Jean Upton | ||||
Spouse of Matthew W. Upton | ||||
/s/ Wendell Montgomery Smith | ||||
Name Wendell Montgomery Smith | ||||
Spouse of Ann Howard Smith | ||||
SHARES BENEFICIALLY
SHAREHOLDERS
OWNED
550,000
50,000
50,000
50,000
50,000
750,000
RealPage, Inc. (successor to RealPage Communications, Inc.) | ||||
|
||||
/s/ Stephen T. Winn | ||||
By:
|
Stephen T. Winn | |||
Its:
|
Chairman of the Board | |||
|
||||
Seren Capital Ltd. | ||||
|
||||
/s/ Stephen T. Winn | ||||
By:
|
Seran Capital Management, L.L.C., General Partner | |||
|
Stephen T. Winn | |||
|
Sole Manager and President | |||
|
||||
Seren Catalyst, L.P. | ||||
|
||||
/s/ Stephen T. Winn | ||||
By:
|
Seren Capital Management, L.L.C., General Partner | |||
|
Stephen T. Winn | |||
|
Sole Manager and President | |||
|
||||
James E. Melson, Jr. | ||||
|
||||
/s/ James E. Melson, Jr. | ||||
|
||||
Michael W. Munoz | ||||
|
||||
/s/ Michael W. Munoz | ||||
Richard M. Finks | ||||
|
||||
/s/ Richard M. Finks | ||||
|
||||
Matthew W. Upton | ||||
|
||||
/s/ Matthew W. Upton | ||||
|
||||
Ann Howard Smith | ||||
|
||||
/s/ Ann Howard Smith | ||||
|
||||
G. Ronald Witten | ||||
|
||||
/s/ G. Ronald Witten | ||||
/s/ Tish Witten | ||||
Tish Witten | ||||
Spouse of G. Ronald Witten |
Company
|
||||||||
|
||||||||
MOBILENEER, LTD.
|
||||||||
|
||||||||
By: | Schmidt Interests, L.L.C., | |||||||
as General Partner of Mobileneer, Ltd. | ||||||||
|
||||||||
/s/ Dean Schmidt | ||||||||
|
By: | Dean Schmidt | ||||||
|
Its: | President |
Buyer
|
||
|
||
REALPAGE, INC.
|
||
|
||
/s/ Stephen T. Winn
|
||
Its: Chairman of the Board
|
1 | Defined Terms not defined in this Agreement shall be defined as in that certain Asset Purchase Agreement of even date herewith by and between Company and Buyer (the Asset Purchase Agreement). |
COMPANY:
REALPAGE, INC. |
||||
By: | /s/ Stephen T. Winn | |||
Name: | Stephen T. Winn | |||
Title: | Chief Executive Officer | |||
INVESTORS.
|
||||
/s/ Stephen T. Winn | ||||
STEPHEN T. WINN | ||||
SEREN CAPITAL LTD.
|
||||
By: | Seren Capital Management, L.L.C., | |||
Its General Partner | ||||
By: | /s/ Stephen T. Winn | |||
Name: | Stephen T. Winn | |||
Title: | Sole Manager and President | |||
STEPHEN T. WINN 1996 FAMILY LP A
|
||||
By: | /s/ Stephen T. Winn | |||
Name: | ||||
Title: |
APAX EXCELSIOR VI, L.P.
|
||||
By: | Apax Excelsior VI Partners, L.P., | |||
Its General Partner | ||||
By: | Apax Managers, Inc. | |||
Its General Partner | ||||
By: | /s/ Peter Jeton | |||
Name: | Peter Jeton | |||
Title: | Chief Operating Officer | |||
APAX EXCELSIOR VI-A C.V.
|
||||
By: | Apax Excelsior VI Partners, L.P., | |||
Its General Partner | ||||
By: | Apax Managers, Inc. | |||
Its General Partner | ||||
By: | /s/ Peter Jeton | |||
Name: | Peter Jeton | |||
Title: | Chief Operating Officer | |||
APAX EXCELSIOR VI-B C.V.
|
||||
By: | Apax Excelsior VI Partners, L.P., | |||
Its General Partner | ||||
By: | Apax Managers, Inc. | |||
Its General Partner | ||||
By: | /s/ Peter Jeton | |||
Name: | Peter Jeton | |||
Title: | Chief Operating Officer | |||
PATRICOF PRIVATE INVESTMENT CLUB III, L.P.
|
||||
By: | Apax Excelsior VI Partners, L.P., | |||
Its General Partner | ||||
By: | Apax Managers, Inc. | |||
Its General Partner | ||||
By: | /s/ Peter Jeton | |||
Name: | Peter Jeton | |||
Title: | Chief Operating Officer |
ADVANCE CAPITAL-PARTNERS, L.P.
|
||||
By: | Advance Capital Associates, L.P., | |||
Its General Partner | ||||
By: | Advance Capital Management, LLC, | |||
Its General Partner | ||||
By: | /s/ Jeffrey T. Leeds | |||
Name: | Jeffrey T. Leeds | |||
Title: | Principal | |||
ADVANCE CAPITAL OFFSHORE PARTNERS, L.P.
|
||||
By: | Advance Capital Offshore Associates, LDC, | |||
Its General Partner | ||||
By: | Advance Capital Associates, L.P., | |||
Its Member | ||||
By: | Advance Capital Management, LLC, | |||
Its General Partner | ||||
By: | /s/ Jeffrey T. Leeds | |||
Name: | Jeffrey T. Leeds | |||
Title: | Principal | |||
/s/ Jeffrey T. Leeds | ||||
JEFFREY T. LEEDS | ||||
/s/ Ethan A Budin | ||||
ETHAN A BUDIN | ||||
/s/ Mark H. Sherman | ||||
MARK H. SHERMAN | ||||
/s/ Donald J. Edwards | ||||
DONALD J. EDWARDS | ||||
/s/ Joshua A. Sorensen | ||||
JOSHUA A. SORENSEN | ||||
/s/ Robert T. Puopolo | ||||
ROBERT T. PUOPOLO | ||||
MICHAEL E. MEULLER | ||||
/s/ Robert H. Dilworth | ||||
ROBERT H. DILWORTH | ||||
MELVIN R. WOOLF | ||||
DOUGLAS H. GROSS | ||||
FABIAN R. GORDON | ||||
CAMDEN PARTNERS STRATEGIC FUND III, L.P.
|
||||
By: | Camden Partners Strategic III, LLC | |||
Its General Partner | ||||
By | Camden Partners Strategic Manager, LLC | |||
Its Managing Member | ||||
By: | /s/ Richard M. Berkeley | |||
Name: | Richard M. Berkeley | |||
Title: | Managing Member | |||
CAMDEN PARTNERS STRATEGIC FUND III-A, LLC
|
||||
By: | Camden Partners Strategic III, LLC | |||
Its General Partner | ||||
By: | Camden Partners Strategic Manager, LLC | |||
Its Managing Member | ||||
By: | /s/ Richard M. Berkeley | |||
Name: | Richard M. Berkeley | |||
Title: | Managing Member |
/s/ James K. Malernee | ||||
JAMES K. MALERNEE | ||||
/s/ Timothy J. Barker | ||||
TIMOTHY J. BARKER | ||||
Investors
Apax Excelsior VI, L.P,
Apax Excelsior VI-A C.V.
Apax Excelsior VI-B C.V.
Patricof Private Investment Club III, L.P.
Seren Capital Ltd.
Advance Capital Partners, L.P.
Advance Capital Offshore Partners, L.P.
Jeffrey T. Leeds
Ethan A Budin
Mark H. Sherman
Donald J. Edwards
Joshua A. Sorensen
Robert T. Puopolo
Seren Capital Ltd.
Stephen T. Winn
Camden Partners Strategic Fund III, L.P.
Camden Partners Strategic Fund III-A, L.P.
Camden Partners Strategic Fund III, L.P.
Camden Partners Strategic Fund III-A, L.P.
James K. Malernee
Timothy J. Barker
Apax Excelsior VI, L.P.
Apax Excelsior VI-A C.V.
Apax Excelsior VI-B C.V.
Camden Partners Strategic Fund III, L.P.
Camden Partners Strategic Fund III-A, L.P.
Timothy J. Barker
Stephen T. Winn
Michael E. Meuller
Robert H. Dilworth
Melvin R. Woolf
Douglas H. Gross
Fabian R. Gordon
Stephen T. Winn 1996 Family LP A
2
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6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
COMPANY:
REALPAGE, INC |
||||
By: | /s/ Stephen T. Winn | |||
Name: | Stephen T. Winn | |||
Title: | Chief Executive Officer | |||
SHAREHOLDERS:
|
||||
/s/ Stephen T. Winn | ||||
STEPHEN T. WINN | ||||
STEPHEN T. WINN 1996 FAMILY LP A
|
||||
By: | /s/ Stephen T. Winn | |||
Name: | ||||
Title: | ||||
SEREN CAPITAL LTD.
By: Seren Capital Management, L.L.C., Its General Partner |
||||
By: | /s/ Stephen T. Winn | |||
Name: | Stephen T. Winn | |||
Title: | Sole Manager and President | |||
SEREN CATALYST LP
By: Seren Capital Management, L.L.C., Its General Partner |
||||
By: | /s/ Stephen T. Winn | |||
Name: | Stephen T. Winn | |||
Title: | Sole Manager and President | |||
APAX EXCELSIOR VI, L.P.
By: Apax Excelsior VI Partners, L.P., Its General Partner By: Apax Managers, Inc. Its General Partner |
||||
By: | /s/ Robert Marsden | |||
Name: | Robert Marsden | |||
Title: | CFO | |||
APAX EXCELSIOR VI-A C.V.
By: Apax Excelsior VI Partners, L.P., Its General Partner By: Apax Managers, Inc. Its General Partner |
||||
By: | /s/ Robert Marsden | |||
Name: | Robert Marsden | |||
Title: | CFO | |||
APAX EXCELSIOR VI-B C.V.
By: Apax Excelsior VI Partners, L.P., Its General Partner By: Apax Managers, Inc. Its General Partner |
||||
By: | /s/ Robert Marsden | |||
Name: | Robert Marsden | |||
Title: | CFO | |||
PATRICOF PRIVATE INVESTMENT CLUB III, L.P.
By: Apax Excelsior VI Partners, L.P., Its General Partner By: Apax Managers, Inc. Its General Partner |
||||
By: | /s/ Robert Marsden | |||
Name: | Robert Marsden | |||
Title: | CFO | |||
ADVANCE CAPITAL PARTNERS, L.P.
By: Advance Capital Associates, L.P., Its General Partner By: Advance Capital Management, LLC, Its General Partner |
||||
By: | /s/ Jeffrey T. Leeds | |||
Name: | Jeffrey T. Leeds | |||
Title: | Principal | |||
ADVANCE CAPITAL OFFSHORE PARTNERS, L.P.
By: Advance Capital Offshore Associates, LDC, Its General Partner By: Advance Capital Associates, L.P., Its Member By: Advance Capital Management, LLC, Its General Partner |
||||
By: | /s/ Jeffrey T. Leeds | |||
Name: | Jeffrey T. Leeds | |||
Title: | Principal | |||
/s/ Jeffrey T. Leeds | ||||
JEFFREY T. LEEDS | ||||
CAMDEN PARTNERS STRATEGIC FUND III, L.P.
By: Camden Partners Strategic III, LLC Its: General Partner By: Camden Partners Strategic Manager, LLC Its: Managing Member |
||||
By: | /s/ Richard M. Berkeley | |||
Richard M. Berkeley | ||||
Managing Member | ||||
CAMDEN PARTNERS STRATEGIC FUND III-A, L.P.
By: Camden Partners Strategic III, LLC Its: General Partner By: Camden Partners Strategic Manager, LLC Its: Managing Member |
||||
By: | /s/ Richard M. Berkeley | |||
Richard M. Berkeley | ||||
Managing Member | ||||
Series A Shareholders
|
Apax Excelsior VI, L.P. | |
|
Apax Excelsior VI-A C.V. | |
|
Apax Excelsior VI-B C.V. | |
|
Patricof Private Investment Club III, L.P. | |
|
Seren Capital Ltd. | |
|
Advance Capital Partners, L.P. | |
|
Advance Capital Offshore Partners, L.P. | |
|
Jeffrey T. Leeds | |
|
Ethan A Budin | |
|
Mark H. Sherman | |
|
Donald J. Edwards | |
|
Joshua A. Sorensen | |
|
Robert T. Puopolo | |
Series A1 Shareholders
|
Seren Capital Ltd. | |
|
Stephen T. Winn | |
|
Camden Partners Strategic Fund III, L.P. | |
|
Camden Partners Strategic Fund III-A, L.P | |
Series B Shareholders
|
Camden Partners Strategic Fund III, L.P. | |
|
Camden Partners Strategic Fund III-A, L.P. | |
|
James K. Malernee | |
|
Timothy J. Barker | |
Series C Shareholders
|
Apax Excelsior VI, L.P. | |
|
Apax Excelsior VI-A C.V. | |
|
Apax Excelsior VI-B C.V. | |
|
Patricof Private Investment Club III, L.P. | |
|
Camden Partners Strategic Fund III, L.P. | |
|
Camden Partners Strategic Fund III-A, L.P. | |
|
Timothy J. Barker | |
Major Shareholders and
|
Stephen T. Winn | |
Warrantholders
|
Stephen T. Winn 1996 Family LPA | |
|
Seren Capital Ltd. | |
|
Seren Catalyst LP | |
|
Stephen T. Winn, separate property | |
|
Michael E. Mueller | |
|
Robert H. Dilworth | |
|
Melvin R. Woolf | |
|
Fabian R. Gordon | |
|
Bryan Vincent | |
|
Michael Polly | |
|
Jason Russell | |
|
Camden Technology, Inc. | |
|
RE3, Inc. | |
|
United Dominion Realty Trust | |
|
Jeffrey Roper | |
|
Patricia Roper | |
|
Comerica Ventures Incorporated | |
Re: | Management Rights |
Very truly yours,
REALPAGE, INC. |
||||
By: | /s/ Stephen T. Winn | |||
Name: | ||||
Title: | ||||
Accepted and agreed to
as of the date first above written CAMDEN PARTNERS STRATEGIC FUND III, L.P. |
||||
By: | Camden Partners Strategic III, LLC, | |||
Its General Partner | ||||
By: | /s/ Richard M. Berkeley | |||
Name: | Richard M. Berkeley | |||
Title: | Managing Partner | |||
Very truly yours,
REALPAGE, INC. |
||||
By: | /s/ Stephen T. Winn | |||
Name: | ||||
Title: | ||||
Accepted and agreed to
as of the date first above written CAMDEN PARTNERS STRATEGIC FUND III-A, L.P. |
||||
By: | Camden Partners Strategic III, LLC, | |||
Its General Partner | ||||
By: | /s/ Richard M. Berkeley | |||
Name: | Richard M. Berkeley | |||
Title: | Managing Partner | |||
1
2
3
4
5
6
7
8
9
REALPAGE INC.,
a Delaware corporation |
||||
By: | ||||
Stephen T. Winn | ||||
Chief Executive Officer | ||||
INDEMNITEE
|
||||
Address:
|
||||
10
Article I. Introduction and Purpose of the 1998 Plan | i | |||||||
Article II. Types of Awards Pursuant to the Plan | i | |||||||
Article III. Number of Shares Subject to the Plan | i | |||||||
|
Section 3.01 | Aggregate Maximum. | i | |||||
|
Section 3.02 | Individual Maximum. | ii | |||||
Article IV. Common Stock Subject to Plan
|
ii | |||||||
Article V. Definitions
|
ii | |||||||
|
Section 5.01 | "Acts Harmful to the Interest of the Corporation" | ii | |||||
|
Section 5.02 | "Affiliate" | ii | |||||
|
Section 5.03 | "Award" | ii | |||||
|
Section 5.04 | "Beneficiary" | ii | |||||
|
Section 5.05 | "Cause" | ii | |||||
|
Section 5.06 | "Code" | iii | |||||
|
Section 5.07 | "Committee" | iii | |||||
|
Section 5.08 | "Common Stock" | iii | |||||
|
Section 5.09 | "Consultant" | iii | |||||
|
Section 5.10 | "Corporation" | iii | |||||
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Section 5.11 | "Disability" | iii | |||||
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Section 5.12 | "Effective Date" | iii | |||||
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Section 5.13 | "Employees" | iii | |||||
|
Section 5.14 | "Exchange Program" | iii | |||||
|
Section 5.15 | "Excluded Persons" | iii | |||||
|
Section 5.16 | "Fair Market Value Per Share" | iii | |||||
|
Section 5.17 | "Incentive Period" | iv | |||||
|
Section 5.18 | "Incentive Stock Options" | iv | |||||
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Section 5.19 | "Options" | iv | |||||
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Section 5.20 | "1934 Act" | iv | |||||
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Section 5.21 | "Non-Qualified Stock Option" | iv | |||||
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Section 5.22 | "Parent Corporation" | iv | |||||
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Section 5.23 | "Performance Units" | iv | |||||
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Section 5.24 | "Permitted Transferee" | iv | |||||
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Section 5.25 | "Restricted Period" | iv | |||||
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Section 5.26 | "Restricted Shares" | iv | |||||
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Section 5.27 | "Retirement Age" | iv | |||||
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Section 5.28 | "Right" | iv | |||||
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Section 5.29 | "Subsidiary" | iv | |||||
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Section 5.30 | "Valuation Date" | iv | |||||
|
Section 5.31 | "Voluntary Termination" | v | |||||
Article VI. Administration | v | |||||||
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Section 6.01 | Administration and Interpretation. | v | |||||
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Section 6.02 | Persons Subject to Section 16 of the 1934 Act. | v | |||||
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Section 6.03 | Powers and Authority of the Committee. | v | |||||
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Section 6.04 | Delegations by the Committee. | vi | |||||
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Section 6.05 | Adoption of Rules by the Committee. | vi | |||||
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Section 6.06 | Expenses. | vi | |||||
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Section 6.07 | Outside Advisors. | vi | |||||
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Section 6.08 | Finality of Decisions. | vi | |||||
|
Section 6.09 | Liability of Committee Members and Delegates. | vi | |||||
Article VII. Eligibility; Factors To Be Considered in Granting Awards
|
vii |
i
Article VIII. Exercise Price of Options and Rights
|
vii | |||||||
Article IX. Date of Grant of Options and Rights
|
vii | |||||||
Article X. Term of Options and Rights
|
vii | |||||||
Article XI. Exercise of Options
|
vii | |||||||
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Section 11.01 | Timing of Exercise. | vii | |||||
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Section 11.02 | Forfeiture. | vii | |||||
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Section 11.03 | Accelerated Vesting. | viii | |||||
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Section 11.04 | Requirements Regarding Exercise. | viii | |||||
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Section 11.05 | Mechanics of Exercising an Option. | viii | |||||
Article XII. Exercise of Rights
|
ix | |||||||
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Section 12.01 | Grant of Rights. | ix | |||||
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Section 12.02 | Exercise of Rights. | ix | |||||
Article XIII. Incentive Stock Options | x | |||||||
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Section 13.01 | Grant of Incentive Stock Options. | x | |||||
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Section 13.02 | Exercise Price of Incentive Stock Options. | x | |||||
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Section 13.03 | Limitation upon Exercise. | x | |||||
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Section 13.04 | Amendment of Incentive Stock Options Following Legal Changes. | x | |||||
Article XIV. Restricted Shares | x | |||||||
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Section 14.01 | Establishment of the Restricted Period. | x | |||||
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Section 14.02 | Lapse of Restrictions Upon Certain Events. | x | |||||
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Section 14.03 | Grant of Restricted Shares. | xi | |||||
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Section 14.04 | Rights and Privileges Associated with Restricted Shares. | xi | |||||
|
Section 14.05 | General Restrictions Imposed upon Restricted Shares. | xi | |||||
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Section 14.06 | Dividends. | xi | |||||
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Section 14.07 | Forfeiture. | xii | |||||
|
Section 14.08 | Vesting. | xii | |||||
Article XV. Award of Performance Units
|
xii | |||||||
|
Section 15.01 | Grant of Performance Units. | xii | |||||
Article XVI. Termination of Employment; Cessation of Services
|
xiii | |||||||
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Section 16.01 | Options and Rights. | xiii | |||||
|
Section 16.02 | Performance Units. | xiv | |||||
|
Section 16.03 | Determination of Termination of Employment or Cessation of Services. | xv | |||||
|
Section 16.04 | No Employment Agreement or Guarantee of a Continued Relationship. | xv | |||||
|
Section 16.05 | Termination for Cause . | xv | |||||
Article XVII. Transferability of Options and Rights
|
xvi | |||||||
Article XVIII. Death or Disability
|
xvi | |||||||
Article XIX. Adjustments upon Changes in Capitalization, etc.
|
xvi | |||||||
Article XX. Business Combinations.
|
xvii | |||||||
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Section 20.01 | Exceptions to Events Described in Section 20.03. | xvii | |||||
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Section 20.02 | Business Combination Transactions. | xvii | |||||
|
Section 20.03 | Impact on Awards Following a Business Combination. | xvii | |||||
Article XXI. Termination and Amendment
|
xviii | |||||||
|
Section 21.01 | Rights of the Board of Directors. | xviii | |||||
|
Section 21.02 | Delegation of Authority by the Board of Directors. | xviii | |||||
Article XXII. Withholding Tax
|
xviii | |||||||
|
Section 22.01 | Withholding Generally. | xviii | |||||
|
Section 22.02 | Section 83(b) Elections. | xix | |||||
Article XXIII. Written Agreements; Stock Legends
|
xix |
ii
(a) | Incentive Stock Options, | ||
(b) | Non-Qualified Stock Options (unless otherwise indicated, references in the Plan to Options include Incentive Stock Options and Non-Qualified Stock Options ), | ||
(c) | Restricted Shares of the Common Stock, $.001 par value per share, of the Corporation, as provided in Article XIV below, | ||
(d) | Rights granted without accompanying Options, or | ||
(e) | Performance Units valued based upon the long-term performance of the Corporation as determined pursuant to Article XV below. |
i
(a) | authorized and unissued shares, | ||
(b) | authorized and issued shares held in the treasury of the Corporation, or | ||
(c) | issued shares reacquired by the Corporation, as the Board of Directors of the Corporation shall from time to time determine. |
(a) | accepting employment with or serving in any other capacity for any business entity that is in competition with the Corporation, | ||
(b) | soliciting, recruiting, or employing any employee of the Corporation for the benefit of another business entity that is not an Affiliate of the Corporation, | ||
(c) | disclosing any trade secret or confidential information of the Corporation under circumstances that are injurious to the Corporation, or | ||
(d) | disparagement of the Corporation or any Affiliate or their business, products, directors, officers or employees. |
(a) | an Option (whether an Incentive Stock Option or a Non-Qualified Stock Option), | ||
(b) | a Right, | ||
(c) | Restricted Shares, or | ||
(d) | Performance Units. |
ii
(a) | the unauthorized disclosure of any trade secret or confidential information of the Corporation, | ||
(b) | the commission of an act of dishonesty, embezzlement or fraud, | ||
(c) | the commission of an act of insubordination or willful violation of law or any policy of the Company, or | ||
(d) | conviction of a felony which, in the determination of the Committee, causes substantial injury and discredit to the Corporation. |
(a) | Seren Capital L.P. and Stephen T. Winn or any Affiliate of Stephen T. Winn, and | ||
(b) | a trustee or other fiduciary holding securities under an employee benefit plan of the Corporation. |
iii
iv
(a) | an Employee, a termination of employment with the Corporation, a Subsidiary, or any Parent Corporation, which is initiated voluntarily by the Employee, as determined in the sole discretion of the Committee; provided, however, that a Voluntary Termination shall not include a termination of employment by reason of death, Disability, retirement from active employment at or after Retirement Age or a breach of any material obligation by the Corporation, and | ||
(b) | a Consultant, a cessation of services for the Corporation, a Subsidiary, or any Parent Corporation, which is initiated voluntarily by the Consultant, as determined in the sole discretion of the Committee. |
(a) | grant Awards; | ||
(b) | determine: |
(i) | the number of shares of Common Stock to be covered by each Award, | ||
(ii) | the purchase price (if any) of the Common Stock covered by each Award, | ||
(iii) | the time or times at which Awards shall be granted, | ||
(iv) | the term of or each Award, or any Restricted Period related thereto, | ||
(v) | the Employees or Consultants to whom the Awards may be granted, and |
(c) | modify the terms of an outstanding Award; | ||
(d) | determine the terms and conditions of and to institute any Exchange Program; | ||
(e) | designate a grant of an Option as an Incentive Stock Option or a Non-Qualified Stock Option; | ||
(f) | interpret the terms of: |
v
(g) | prescribe, amend and rescind rules and regulations relating to the Plan; | ||
(h) | prepare and distribute in such manner as the Committee determines to be appropriate information concerning the Plan; and | ||
(i) | make all other determinations deemed necessary or advisable for the administration of the Plan. |
vi
(a) | agreement, the unvested portion of any Option or Right granted under the Plan to: |
(i) | an Employee, shall be forfeited on the date the Employee ceases to be an Employee of the Corporation, a Parent Corporation or a Subsidiary, and |
vii
(ii) | a Consultant, shall be forfeited on the date the Consultant ceases providing services to the Corporation, a Subsidiary or a Parent Corporation. |
(b) | For purposes of Section 11.02(a) above, services provided by a former Consultant with no gap in service before his or her employment as an Employee shall be treated as a continuation of services, and services provided by a former Employee with no gap in service between his or her termination of employment and his or her commencement of services as a Consultant shall be treated as a continuation of services. |
(a) | Subject to the provisions of this Plan and unless otherwise provided in the option agreement, an Option granted to an Employee under the Plan shall become one hundred percent (100%) vested upon the Employees: |
(i) | death, or | ||
(ii) | Disability. |
(b) | In addition to the acceleration provisions described in Section 11.03(a) above, the Committee may also, in its sole discretion, accelerate the exercisability of any Option or installment thereof at any time. |
(a) | At the time of exercise of any Option, the per share exercise price of such Option shall be paid in full for each share of Common Stock with respect to which such Option is exercised. The holder of an Option may, upon exercise of such Option, pay for both the option price of the shares and any Federal, state, local, foreign, FlCA and FUTA taxes attributable to such exercise: |
(i) | in cash or by means of a bank draft or national brokerage check; | ||
(ii) | through the delivery of shares of Common Stock with a current aggregate fair market value equal to the option price and applicable taxes; | ||
(iii) | through the surrender to the Corporation of such portion of vested Options as shall have an aggregate fair market value equal to the option price and applicable taxes (such surrender shall be treated as an exercise of the Option followed by an immediate sale of the shares, subject to ordinary income tax); or | ||
(iv) | through any combination of (i), (ii) and (iii). |
(b) | Prior to the date an option holder is required to pay the Corporation any amount with respect to tax obligations in connection with the exercise of any Option, the option holder may make an irrevocable election to have the Corporation withhold from those shares that would otherwise be |
viii
received upon the exercise of any Option, a number of shares having a fair market value equal to the amount necessary to satisfy the Corporations Federal, state, local and foreign tax withholding obligations and FlCA and FUTA obligations with respect to the exercise of such Option by the option holder. | |||
(c) | If the Corporations Common Stock is registered pursuant to Section 12 of the 1934 Act, an option holder may also make payment at the time of exercise of an Option (other than an Incentive Stock Option) by delivering to the Corporation a properly executed exercise notice together with irrevocable instructions to a broker approved in advance by the Corporation that upon such brokers sale of shares with respect to which such Option is exercised, it is to deliver promptly to the Corporation the amount of sale proceeds necessary to satisfy the Option exercise price and any required withholding taxes (subject to the provisions of Article XXII below). |
(a) | The terms and conditions of a Right shall include all terms and conditions that at the time of grant are required, and, in the discretion of the Committee, may include any additional terms and conditions that at such time are permitted, to be included in Rights granted under this Plan. A Right shall entitle the Employee or Consultant to exercise the Right, to the extent vested and in accordance with the terms set forth in the Award, and to receive in exchange, subject to the provisions of the Plan and such rules and regulations as from time to time may be established by the Committee, a payment having an aggregate value equal to: |
(i) | the excess of: |
(A) | the Fair Market Value Per Share on the exercise date over | ||
(B) | the per share exercise price of the Right, |
(ii) | multiplied by: |
(A) | the number of shares of Common Stock subject to the Right or the portion thereof that is surrendered. |
(b) | Upon exercise of a Right, payment shall be made in the form of cash, shares of Common Stock, or a combination thereof, in the sole discretion of the Committee. Shares of Common Stock paid upon exercise of a Right will be valued at the Fair Market Value Per Share on the exercise date. Cash will be paid in lieu of any fractional share of Common Stock based upon the Fair Market Value Per Share on the exercise date. Subject to Article XXII below, no payment will be required from any Employee or Consultant upon exercise of a Right. |
ix
x
(a) | the Employee or Consultant shall not be entitled to receive a stock certificate evidencing Restricted Shares until the expiration or termination of the Restricted Period applicable to such shares and the satisfaction of any other conditions prescribed by the Committee; | ||
(b) | none of the shares then subject to a Restricted Period shall be sold, transferred, assigned, pledged, or otherwise encumbered or disposed of during the Restricted Period applicable to such shares and until the satisfaction of any other conditions prescribed by the Committee; and | ||
(c) | subject to Section 14.02 above and except as otherwise determined by the Committee, all of the shares then subject to a Restricted Period shall be forfeited and the rights of the Employee or Consultant to such Restricted Shares shall terminate without further obligation on the part of the Corporation if: |
(A) | in the case of an Employee, the Employee ceases to be an Employee of the Corporation, a Parent Corporation or any of its Subsidiaries before the expiration or termination of such Restricted Period and the satisfaction of any other conditions prescribed by the Committee applicable to such Restricted Shares, and | ||
(B) | in the case of a Consultant, the Consultant ceases to perform services for the Corporation, its Parent Corporation or any of its Subsidiaries before the expiration or termination of such Restricted Period and the satisfaction of any other conditions prescribed by the Committee applicable to such Restricted Shares, and |
xi
(a) | the Fair Market Value Per Share (determined as of the date the restrictions expire or terminate) and | ||
(b) | the fraction of a share to which such Employee would otherwise be entitled, subject to Article XXII below. |
(a) | At the time a grant of Performance Units is made, the Committee shall prescribe a range of long-term financial or other performance objectives, including minimum, maximum and target objectives during the Incentive Period applicable to such Performance Units, and shall determine a range of dollar values of each Performance Unit associated with such range of long-term objectives. If the minimum long-term objective prescribed by the Committee for any Performance Unit is not achieved or exceeded, then such Performance Unit shall have no value and no amount shall be payable with respect thereto. If such minimum long-term objective is achieved or exceeded, then the dollar value of all Performance Units to be paid with respect thereto shall be based upon the level of long-term objective achieved, subject to any maximum Performance Unit value imposed by the Committee. If during the course of an Incentive Period there shall occur significant events that were not foreseen in establishing the minimum long-term objective for such Incentive Period and which the Committee expects to have (or believes did have) a substantial effect on such objective during such Incentive Period, in its discretion, the Committee may revise such objective. | ||
(b) | Any Employee who is an Employee of the Corporation, a Parent Corporation or a Subsidiary as of the Valuation Date with respect to Performance Units that have been previously granted to him or her, shall, if the minimum long-term objective referenced in Section 15.01(a) above is met, be eligible to receive a cash award equal to the value of such |
xii
Performance Units determined pursuant to such Section 15.02(a) as of the Valuation Date applicable thereto. Payment of such cash award shall be made as soon as practicable following the Valuation Date of such Performance Units, but not later than 2 1 / 2 months after the end of the calendar year in which the Valuation Date occurs. Except as otherwise provided in Article XVI, any Performance Units granted to an Employee during his or her employment period for which the Incentive Period has not ended shall be forfeited upon the date such employment terminates, and he or she shall not be entitled to any payment in respect thereof. | |||
(c) | Any Consultant who is providing services for the Corporation, a Parent Corporation or a Subsidiary as of the Valuation Date with respect to Performance Units that have been previously granted to him or her, shall, if the minimum long-term objective referenced in Section 15.01(a) above is met, be eligible to receive a cash award equal to the value of such Performance Units determined pursuant to such Section 15.01(a) as of the Valuation Date applicable thereto. Payment of such cash award shall be made as soon as practicable following the Valuation Date of such Performance Units, but not later than 2 1 / 2 months after the end of the calendar year in which the Valuation Date occurs. Except as otherwise provided in Article XVI, any Performance Units granted to a Consultant who ceases to provide services for the Corporation, a Parent Corporation or a Subsidiary prior to the end of an Incentive Period shall be forfeited upon the date such Consultant ceases to perform such services, and he or she shall not be entitled to any payment in respect thereof. |
Section 16.01 Options and Rights. The following rules contained in this Section 16.01, to the extent inconsistent with the terms of the Plan, as they existed prior to the amendment and restatement on October 22, 2005, shall apply solely to Awards granted on or after October 22, 2005. |
(a) | Rules Applicable to Employees . In the event that the employment of an Employee to whom an Option or Right has been granted under the Plan terminates for any reason (except pursuant to an authorized leave of absence for military or government service as determined by the Committee or as set forth in Article XVIII below), except as otherwise provided in the Employees option or right agreement, such Employee shall have a period of (i) in the case of Options and Rights granted before February 22, 2008, thirty (30) days, and (ii) in the case of Options and Rights granted on or after February 22, 2008, ninety (90) days following termination of employment in which to exercise any Options or Rights under the Plan that are vested at the date of termination of employment, and at the end of the 30-day and 90-day periods, as applicable, all rights of such Employee under any then outstanding Options or Rights shall terminate and shall be forfeited immediately as to any unexercised portion thereof. Notwithstanding the foregoing, an Employee who terminates his or her employment with the Corporation, a Parent Corporation or a Subsidiary after having reached Retirement Age shall have a period of one year following termination of employment in which to exercise any such Options or Rights under the Plan that are vested at the |
xiii
date of termination of employment, and at the end of such one-year period, all rights of such Employee under any such then outstanding Options or Rights shall terminate and shall be forfeited immediately as to any unexercised portion thereof. | |||
(b) | Rules Applicable to Consultants . In the event that a Consultant has been granted an Option or Right under the Plan and ceases to perform services for the Corporation, a Parent Corporation or a Subsidiary for any reason (except a cessation of services due to service in the military or government as determined by the Committee or as set forth in Article XVIII below), except as otherwise provided in the Consultants option or right agreement, such Consultant shall have a period of thirty (30) days following the cessation of services for the Corporation, a Parent Corporation or a Subsidiary in which to exercise any Options or Rights under the Plan that are vested at the date of cessation of such services, and at the end of the thirty (30) day period, all rights of such Consultant under any then outstanding Options or Rights shall terminate and shall be forfeited immediately as to any unexercised portion thereof. |
(a) | Rules Applicable to Employees . Unless otherwise provided in the Employees Performance Unit agreement, if an Employee to whom Performance Units have been granted ceases to be an Employee of the Corporation, a Parent Corporation or a Subsidiary prior to the end of the Incentive Period with respect to such Performance Units for any reason other than death, Disability or retirement from active employment at or after the Retirement Age, the Employee shall immediately forfeit all such Performance Units. If an Employee to whom Performance Units have been granted terminates employment by reason of retirement on or after the Retirement Age, Disability or death, he or she shall, if the minimum long-term objectives referenced in Section 15.01(a) are met, be eligible to receive a cash award equal to the value of such Performance Units, determined pursuant to such Section 15.01(a) and payable as soon as practicable following the Valuation Date of such Performance Units, but not later than 2 1 / 2 months after the end of the calendar year in which the Valuation Date occurs. If the Employee terminates employment due to his or her death or if an Employee who retires from active employment on or after his or her Retirement Age or terminated employment due to Disability dies prior to receipt of any such payment, then his or her designated Beneficiary shall, if the minimum long-term objectives referenced in Section 15.01(a) are met, be entitled to receive a cash award equal to the value of such Performance Units, determined pursuant to Section 15.01(a), and payable as soon as practicable following the Valuation Date of such Performance Units, but not later than 2 1 / 2 months after the end of the calendar year in which the Valuation Date occurs. In the event that the person designated by the Employee as his or her beneficiary shall not be living at the time, or if no designation has been made, then the payment of such cash award shall be made to the estate of the Employee. | ||
(b) | Rules Applicable to Consultants . Unless otherwise provided in the Consultants Performance Unit agreement, if a Consultant to whom |
xiv
Performance Units have been granted ceases to provide services for the Corporation, a Parent Corporation or a Subsidiary prior to the end of the Incentive Period with respect to such Performance Units for any reason, the Consultant shall immediately forfeit all such Performance Units. |
(a) | Termination of Employment by an Employee . Any agreement reflecting the grant of an Award to an Employee, and any rules and regulations relating thereto, may contain such provisions as the Committee shall approve with reference to the determination of the date employment terminates and the effect of leaves of absence. Any such rules and regulations with reference to any option agreement shall be consistent with the provisions of the Code and any applicable rules and regulations thereunder. Awards granted under the Plan shall not be affected by any change of duties or position so long as the holder continues to be an Employee of the Corporation, a Parent Corporation or any Subsidiary thereof. | ||
(b) | Cessation of Services by a Consultant . Any agreement reflecting the grant of an Award to a Consultant, and any rules and regulations relating thereto, may contain such provisions as the Committee shall approve with reference to the determination of the date on which services will cease to be provided and the effect of any short term interruptions in the provision of services. Any such rules and regulations with reference to any option agreement shall be consistent with the provisions of the Code and any applicable rules and regulations thereunder. Awards granted under the Plan shall not be affected by any change of duties or position so long as the holder continues to be a Consultant (or, if subsequently hired after the grant of an Award, an Employee) of the Corporation, a Parent Corporation or any Subsidiary thereof. |
(a) | for Cause, or | ||
(b) | by reason of a Voluntary Termination, and such Employee or Consultant engages in any Acts Harmful to the Interest of the Corporation within one (1) year after the Voluntary Termination. |
xv
xvi
(a) | an Employees or Consultants written agreement evidencing a grant of an Award under the Plan provides otherwise, or | ||
(b) | specific provision for the substitution of securities of another corporation, which arises automatically without the necessity of any action by the Board of Directors, is otherwise made in writing in connection with any of the transactions described in Section 20.02 below. |
(a) | a merger or consolidation of the Corporation with or into another corporation in which the Corporation shall not be the surviving corporation, | ||
(b) | a dissolution of the Corporation, | ||
(c) | a transfer of all or substantially all of the assets of the Corporation in one transaction or a series of related transactions to one or more other persons or entities, or | ||
(d) | any person or group (as those terms are used in Sections 13(d) and 14(d) of the 1934 Act), other than Excluded Persons, becoming the beneficial owner (as defined in Rule 13d-3 of the 1934 Act), directly or indirectly, of securities of the Corporation representing 40% or more of the combined voting power of the Corporations then outstanding securities. |
(a) | each Option shall terminate, but the holder of any outstanding Option shall be entitled, immediately prior to the effective date of such |
xvii
transaction, to purchase that number of shares of Common Stock subject to the Option that are then vested and exercisable; | |||
(b) | each Right shall terminate, but the holder of a Right shall be entitled, immediately prior to the effective date of such transaction, to receive the amount of cash he would have been entitled to receive upon exercise of that portion of such Right that was vested and exercisable at such time; | ||
(c) | all restrictions on any Restricted Shares that are outstanding but not vested immediately prior to the consummation of such transaction shall continue in full force and effect; and | ||
(d) | each Performance Unit shall terminate, but the recipient of any Performance Unit shall be entitled, immediately prior to the effective date of such transaction, to receive the prorated value of such Unit as if all of the applicable performance objectives had been met on the date of payment, with such proration to be based on that portion of the applicable Incentive Period that has elapsed. |
(a) | increase the maximum number of shares of Common Stock which may be issued in the form of Incentive Stock Options under the Plan; or | ||
(b) | change the designation of the employees or class of employees eligible to receive Incentive Stock Options under the Plan. |
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Date |
-12-
Dated:
,___
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Signature: |
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PARTICIPANT
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REALPAGE, INC. | |
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Signature
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By | |
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Print Name
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Print Name | |
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Title | |
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ESCROW AGENT
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Dated:
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-3-
1. | The name, address, taxpayer identification number and taxable year of the undersigned are as follows: |
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NAME: | SPOUSE: | ||||||||
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ADDRESS: | |||||||||
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2. | The property with respect to which the election is made is described as follows: shares (the Shares) of the Common Stock of RealPage, Inc. (the Corporation). | |
3. | The date on which the property was transferred is: , . | |
4. | The property is subject to the following restrictions: |
5. | The Fair Market Value at the time of transfer, determined without regard to any restriction other than a restriction which by its terms shall never lapse, of such property is: $ . | |
6. | The amount (if any) paid for such property is: $ . |
Dated:
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, ___ | |||||
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||||||
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Taxpayer |
Dated:
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, ___ | |||||
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||||||
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Spouse of Taxpayer |
Grant Number:
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Second Series No. 0xx-6-03 | |
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Date of Grant
:
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, 200 | |
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Name of Optionee
:
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xxx (the Optionee) | |
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Number of Shares
:
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xx,xxx | |
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Exercise Price Per Share
:
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$x.xx (the Option Exercise Price) |
REALPAGE, INC. | ||||
By:
|
Stephen T. Winn | |||
|
Chairman of the Board |
Grant Number:
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xx-xx-xxxx | |
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Date of Grant
:
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xxxxxx xx, xxxx | |
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Name of Optionee
:
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xxxxxxxxxxxxxx (the Optionee) | |
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Number of Shares
:
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xxxx | |
|
||
Exercise Price Per Share
:
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$x.xx (the Option Exercise Price) |
REALPAGE, INC. | ||||
|
||||
By:
|
Stephen T. Winn | |||
|
Chairman of the Board |
1 | Other than passive ownership of less than 5% of the outstanding shares of stock of a corporation, so long as such shares are traded on a national securities exchange or quoted on an interdealer quotation system. |
2 | Thus, where 250,000 Optioned Shares were granted and 20 months remained in the Option Period when a Termination of Services occurs, 104,167 purchased shares would be subject to the Corporations right of repurchase (2.0833% x 20 = 41.667%; 250,000 x .41667 = 104,167). |
RealPage, Inc. | ||||
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||||
|
||||
By:
|
Stephen T. Winn | |||
Title:
|
Chairman of the Board |
Optionee: | ||||
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||||
|
||||
Name:
|
||||
|
||||
Address:
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|
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||||
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||||
|
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Social Security Number: |
| to attract and retain the best available personnel to ensure the Companys success and accomplish the Companys goals, | ||
| to incentivize Employees, Directors and Consultants with long-term equity-based compensation to align their interests with the Companys stockholders, and | ||
| to promote the success of the Companys business. |
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Participant
|
EMPLOYEE NAME | Division | DIVISION | |||
Target Award % (1)
|
PERCENTAGE | Eligibility Date: | DATE |
Criteria
|
Weight | Target | ||
Corporate Revenue
|
XX% | Each criterion has a target, a minimum, and a | ||
Corporate EBITDA
|
XX% | maximum. The target pays out at 100%. The | ||
Divisional Revenue
|
XX% | minimum is 0% and the maximum is 200%. | ||
Divisional Profit
|
XX% | |||
Individual Performance Rating (4)
|
XX% | See Below |
(1) | Target Award % represents the percentage of base salary earned during the eligible portion of the year which is achieved at target. | |
(2) | Corporate Revenue & EBITDA objectives are confidential and will not be disclosed until year end results are released. Divisional revenue & profit objectives may be disclosed, but should be kept strictly confidential. | |
(3) | Targets (including minimums and maximums) and awards may be adjusted at the sole discretion of the compensation committee for significant non-controllable circumstances that were not included in the budget; e.g., acquisitions. | |
(4) | Individual performance ratings and rankings will be used in the calculation of the individual rating. |
i. | be a regular, full-time employee for at least 3 months during 2009; | ||
ii. | be a regular, full-time employee on the date of payment of each award; | ||
iii. | be a senior manager grade E13 or above; | ||
iv. | not be on another incentive plan; and |
v. | achieve an individual performance rating above 3.0. |
Corporate Revenue
|
15 | % | ||
Corporate EBITDA
|
10 | % | ||
Divisional Revenue
|
30 | % | ||
Divisional Profit
|
20 | % | ||
Individual Performance
|
25 | % |
(1) Bonus based on corporate revenue achievement
|
= | $ | 100,000 * .2 * .15 * 1.50 | = | $ | 4,500 | ||||||||||
(2) Bonus based on corporate EBITDA achievement
|
= | $ | 100,000 * .2 * .10 * 1.50 | = | $ | 3,000 | ||||||||||
(3) Bonus based on divisional revenue achievement
|
= | $ | 100,000 * .2 * .30 * 1.00 | = | $ | 6,000 | ||||||||||
(4) Bonus based on divisional profit achievement
|
= | $ | 100,000 * .2 * .20 * 1.00 | = | $ | 4,000 | ||||||||||
(5) Bonus based on individual goals & initiatives
|
= | $ | 100,000 * .2 * .25 * 1.25 | = | $ | 6,250 | ||||||||||
|
||||||||||||||||
Total Award
|
$ | 23,750 |
Employee Name |
DATE | ||||
Participant
|
EMPLOYEE NAME | Division | DIVISION | |||
Target Award % (1)
|
PERCENTAGE | Eligibility Date: | DATE |
Criteria
|
Weight | Target | ||
Corporate Revenue
|
XX% | Each criterion has a target, a minimum, and a | ||
Corporate EBITDA
|
XX% | maximum. The target pays out at 100%. The | ||
Divisional Revenue
|
XX% | minimum is 0% and the maximum is 200%. | ||
Divisional Profit
|
XX% | |||
Individual Performance
|
XX% | See Below |
(1) | Target Award % represents the percentage of base salary earned during the eligible portion of the year which is achieved at target. | |
(2) | Corporate Revenue & EBITDA objectives are confidential and will not be disclosed until year end results are released. Divisional revenue & profit objectives may be disclosed, but should be kept strictly confidential. | |
(3) | Targets (including minimums and maximums) and awards may be adjusted at the sole discretion of the compensation committee for significant non-controllable circumstances that were not included in the budget; e.g., acquisitions. |
i. | be a regular, full-time employee for at least 3 months during 2010; | ||
ii. | be a regular, full-time employee on the date of payment of each award; | ||
iii. | be a senior manager grade E13 or above; | ||
iv. | not be on another incentive plan; and | ||
v. | achieve an individual performance rating above 3.0. |
Corporate Revenue
|
15 | % | ||
Corporate EBITDA
|
10 | % | ||
Divisional Revenue
|
30 | % | ||
Divisional Profit
|
20 | % | ||
Individual Performance
|
25 | % |
(1)
|
Bonus based on corporate revenue achievement | = | $100,000 * .2 * .15 * 1.50 | = | $ | 4,500 | |||||
(2)
|
Bonus based on corporate EBITDA achievement | = | $100,000 * .2 * .10 * 1.50 | = | $ | 3,000 | |||||
(3)
|
Bonus based on divisional revenue achievement | = | $100,000 * .2 * .30 * 1.00 | = | $ | 6,000 | |||||
(4)
|
Bonus based on divisional profit achievement | = | $100,000 * .2 * .20 * 1.00 | = | $ | 4,000 | |||||
(5)
|
Bonus based on individual goals & initiatives | = | $100,000 * .2 * .25 * 1.25 | = | $ | 6,250 | |||||
|
|||||||||||
|
Total Award | $ | 23,750 |
|
||
|
||
Employee Name
|
||
|
||
|
||
|
||
DATE
|
I. | NOTICE OF STOCK OPTION GRANT | |
Name: Peter Gyenes | ||
Address: [***] |
Date of Grant:
|
February 25, 2010 | |
|
||
Vesting Commencement Date:
|
February 25, 2010 | |
|
||
Exercise Price per Share:
|
$3.75 | |
|
||
Total Number of Shares Granted:
|
120,000 | |
|
||
Total Exercise Price:
|
$450,000 | |
|
||
Term/Expiration Date:
|
Ten years from Date of Grant |
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PARTICIPANT
|
REALPAGE, INC. | |
/s/
Peter Gyenes
|
/s/ Stephen T. Winn | |
|
||
Signature
|
By | |
Peter
Gyenes
|
Stephen T. Winn | |
|
||
Print Name
|
Print Name | |
[***]
|
CEO | |
|
||
|
Title | |
[***]
|
||
Residence Address
|
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Submitted by:
|
Accepted by: | |
|
||
PARTICIPANT
|
REALPAGE, INC. | |
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||
|
||
Signature
|
By | |
|
||
|
||
Print Name
|
Print Name | |
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||
|
||
|
Title | |
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|
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Address:
|
Address: | |
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||
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||
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|
Date Received |
-4-
PARTICIPANT
|
: | PETER GYENES | ||
COMPANY
|
: | REALPAGE, INC. | ||
SECURITY
|
: | COMMON STOCK | ||
AMOUNT
|
: | |||
DATE
|
: |
|
PARTICIPANT | |
|
||
|
||
|
Signature | |
|
||
|
||
|
Print Name | |
|
||
|
||
|
Date |
-2-
Grant Number:
|
Second Series No. 496-10-05 | |||
|
||||
Date of Grant:
|
October 27, 2005 | |||
|
||||
Name of Optionee:
|
Timothy J. Barker (the Optionee) | |||
|
||||
Number of Shares:
|
500,000 | |||
|
||||
Exercise Price Per Share:
|
$1.00 (the Option Exercise Price) |
REALPAGE, INC.
|
||||
/s/ Stephen T. Winn | ||||
By: Stephen T. Winn | ||||
Chairman of the Board | ||||
OPTIONEE:
|
||||
Signature: | /s/ Timothy J. Barker | |||
Address: | ||||
Grant Number:
|
Second Series No. 890-02-09 | |||
|
||||
Date of Grant:
|
February 26, 2009 | |||
|
||||
Name of Optionee:
|
Barker, Timothy J. (the Optionee) | |||
|
||||
Number of Shares:
|
250,000 | |||
|
||||
Exercise Price Per Share:
|
$3.00 (the Option Exercise Price) |
/s/ Stephen T. Winn | ||||
By:
|
Stephen T. Winn | |||
|
Chairman of the Board |
Name:
|
Barker, Timothy J. | ||
|
|||
Grant Number:
|
1240-02-10 |
PARTICIPANT
|
REALPAGE, INC. | |
|
||
/s/ Timothy J. Barker
|
/s/ Stephen T. Winn | |
|
||
Signature
|
By | |
|
||
Timothy J. Barker
|
Stephen T. Winn | |
|
||
Print Name
|
Print Name | |
|
||
[***]
|
CFO | |
|
||
|
Title | |
|
||
[***]
|
||
|
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Submitted by:
|
Accepted by: | |
PARTICIPANT
|
REALPAGE, INC. | |
|
||
|
||
|
||
|
||
Signature
|
By | |
|
||
|
||
|
||
Print Name
|
Print Name | |
|
||
|
||
|
||
|
Title | |
|
||
|
||
Address:
|
Address: | |
|
||
|
||
|
||
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||
|
||
|
||
|
||
|
||
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||
|
||
|
Date Received |
-4-
PARTICIPANT
|
: | |||
|
||||
CORPORATION
|
: | REALPAGE, INC. | ||
|
||||
SECURITY
|
: | COMMON STOCK | ||
|
||||
AMOUNT
|
: | |||
|
||||
DATE
|
: |
|
PARTICIPANT | |
|
||
|
||
|
||
|
Signature | |
|
||
|
||
|
||
|
Print Name | |
|
||
|
||
|
||
|
Date |
-2-
/s/ Jim Harrison | ||||
By:
|
Jim Harrison | |||
Its:
|
Secretary | |||
|
||||
/s/ Stephen T. Winn | ||||
Stephen T. Winn, an individual |
REALPAGE, INC.
|
||
|
||
/s/ Stephen T. Winn
|
||
Its: Chief Executive Officer
|
||
|
||
/s/ Timothy J. Barker
|
Grant Number:
|
Second Series No. xx-xx-xx | |
|
||
Date of Grant:
|
October 31, 2005 | |
|
||
Name of Optionee:
|
Timothy J. Barker (the Optionee) | |
|
||
Number of Shares:
|
500,000 | |
|
||
Exercise Price Per Share:
|
$1.00 (the Option Exercise Price) |
REALPAGE, INC. | ||||
|
||||
By:
|
Stephen T. Winn | |||
|
Chairman of the Board |
Signature:
|
||
|
||
Address:
|
||
|
Social Security Number:
|
||
|
1. | Amend the first sentence of Section 4(a) , Office; Reporting; Duties , to read as follows: | |
During the Employment Period, Executive shall serve as Executive Vice President and Chief Financial Officer and shall report directly to Employers Chief Executive Officer ( Supervisor ). | ||
2. | Amend Section 6(a) , Base Salary , in its entirety to read as follows: | |
As compensation for the performance by Executive of his obligations hereunder, during the Employment Period, Employer shall pay Executive a base salary at a rate not less than Three Hundred Fifty Thousand Dollars ($350,000) per year effective January 1, 2010 (the base salary, at the rate in effect from time to time, is hereinafter referred to as the Base Salary ). Base Salary shall be paid in approximately equal installments in accordance with Employers customary payroll practices and legal requirements regarding withholding and deductions. During the Employment Period, the Base Salary shall be reviewed no less frequently than annually (commencing the first pay period in 2011) to determine whether or not the same should be adjusted in light of the duties, responsibilities and performance of Executive and other relevant factors. | ||
3. | Amend Section 6(d) , Grant of Options to Purchase Common Stock , by adding the following paragraph: | |
The Supervisor also shall recommend to the Compensation Committee of Employers Board of Directors that it grant to Executive, an option (the Option ) to purchase Three Hundred Fifty Thousand (350,000) shares of common stock of Employer ( Common Stock ) with a grant date as of the Committees action and an exercise price of $3.75 per share. The Option shall be subject to the RealPage, Inc., 1998 Stock Incentive Plan (the Plan ) and the Non-Qualified Stock Option Agreement issued pursuant to the Plan, a copy of which Non-Qualified Stock Option Agreement is attached as Exhibit A hereto. |
4. | Amend Section 7(c) , Cause , in its entirety to read as follows: | |
Employer may terminate Executives employment hereunder for Cause. In the event of a termination under this Section 7(c), the Date of Termination shall be the date set forth in the Notice of Termination. For purposes of this Agreement, Cause means the occurrence of any of the following events: (i) Executives conviction of a felony; (ii) Executives making a materially false statement to Employers auditors or legal counsel; (iii) Executives falsification of any corporate document or form; (iv) any material breach by Executive of Executives material obligations to Employer or of any published policy of Employer, which breach is not cured within ten (10) days after receipt of written notice of breach; (v) any material breach by Executive of the provisions of this Agreement, which breach is not cured within ten (10) days after receipt of written notice of breach; (vi) Executives making a material misrepresentation of fact or omission to disclose material facts in relation to transactions occurring in the business and financial matters of Employer; (vii) Executives continued performance of Executives duties in an incompetent, unprofessional, unsuccessful, insubordinate or negligent manner subsequent to written notice thereof by Employer which notice specifies with reasonable clarity the failure to perform alleged to give rise to Cause, and upon Executives receipt of such notice, Executives failure to cure any nonconforming performance (in no case, however, shall Employer be required to give more than one notice as to a particular type of failure). | ||
5. | Amend Section 9(a) , Death; Disability; Termination By Employer without Cause or By Executive for Good Reason , in its entirety to read as follows: | |
" If Executives employment is terminated by reason of his death or Disability or by Employer without Cause or by Executive for Good Reason, Employer shall pay to Executive (or his legal representatives or estate or as may be directed by the legal representatives of his estate, as the case may be) (i) either (x) six (6) equal monthly installments of an amount per installment equal to one-twelfth of Executives Base Salary (determined as of the Date of Termination) or (y) where Employer has been party to a Business Combination Transaction, and such termination occurs within twelve (12) months following consummation of the Business Combination Transaction, twelve (12) equal monthly installments of an amount per installment equal to one-twelfth of Executives Base Salary (determined as of the Date of Termination) and (ii) a lump sum cash payment, within five days following such Date of Termination, of an amount equal to any earned but unpaid Base Salary or bonus due to Executive in respect of periods through the Date of Termination plus accrued vacation in accordance with Employers vacation policy subject to all required deductions and withholdings (the Accrued Amounts ). The amounts set forth in Sections 9(a)(i) and 9(a)(ii) shall be payable if and only if the Executive shall have executed on or before the 30 th day following the Date of Termination a full Release and Covenant not to sue the Employer and its employees, officers, directors and stockholders. | ||
For purposes of this Agreement, a Business Combination Transaction shall be deemed to mean a transaction that results in: |
A. | a merger or consolidation of the Employer with or into another entity in which the Employer shall not be the surviving entity, | ||
B. | a dissolution of the Employer, | ||
C. | a transfer of all or substantially all of the assets of the Employer in one transaction or a series of related transactions to one or more other persons or entities, or |
2
D. | any person or group (as those terms are used in Sections 13(d) and 14(d) of the 1934 Act), other than Seren Capital L.P. and Stephen T. Winn or any Affiliate of Stephen T. Winn, or a trustee or other fiduciary holding securities under an employee benefit plan of the Employer, becoming the beneficial owner (as defined in Rule 13d-3 of the 1934 Act), directly or indirectly, of securities of the Corporation representing 40% or more of the combined voting power of the Corporations then outstanding securities. |
6. | Except as set forth herein, the Employment Agreement is hereby ratified and confirmed. |
REALPAGE, INC.
|
||||
/s/ Stephen T. Winn | ||||
By: Stephen T. Winn | ||||
Its: President and Chief Executive Officer | ||||
Effective Date: 1/1/10 | ||||
/s/ Timothy J. Barker | ||||
Timothy J. Barker, an individual | ||||
3
Name:
|
||
|
||
Address:
|
Date of Grant:
|
||
|
||
|
||
Vesting Commencement Date:
|
||
|
||
|
||
Exercise Price per Share:
|
$ | |
|
||
|
||
Total Number of Shares Granted:
|
||
|
||
|
||
Total Exercise Price:
|
$ | |
|
||
|
||
Type of Option:
|
Incentive Stock Option | |
|
||
|
Non-Qualified Stock Option | |
|
||
Term/Expiration Date:
|
||
|
PARTICIPANT
|
REALPAGE, INC. | |||
|
||||
Signature
|
By | |||
|
||||
Print Name
|
Print Name | |||
|
||||
|
Title | |||
|
||||
Residence Address
|
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Submitted by:
|
Accepted by: | |||
PARTICIPANT
|
REALPAGE, INC. | |||
|
||||
|
||||
Signature
|
By | |||
|
||||
Print Name
|
Print Name | |||
|
||||
|
Title | |||
|
||||
Address:
|
Address: | |||
|
||||
|
||||
|
||||
|
||||
|
Date Received |
-4-
PARTICIPANT
|
: | |||
|
||||
CORPORATION
|
: | REALPAGE, INC. | ||
|
||||
SECURITY
|
: | COMMON STOCK | ||
|
||||
AMOUNT
|
: | |||
|
||||
DATE
|
: |
|
PARTICIPANT | |
|
||
|
||
|
Signature | |
|
||
|
||
|
Print Name | |
|
||
|
||
|
Date |
-2-
By:
|
/s/ Stephen T. Winn
|
|||
By:
|
Stephen T. Winn | |||
Its:
|
President and Chief Executive Officer |
/s/ William Van Valkenberg
|
||
William Van Valkenberg, an individual
|
Date of Grant:
|
||||
|
||||
|
||||
Vesting Commencement Date:
|
||||
|
||||
|
||||
Exercise Price per Share:
|
$ | |||
|
||||
|
||||
Total Number of Shares Granted:
|
||||
|
||||
|
||||
Total Exercise Price :
|
$ | |||
|
||||
|
||||
Type of Option:
|
Incentive Stock Option | |||
|
||||
|
||||
|
Non-Qualified Stock Option | |||
|
||||
|
||||
Term/Expiration Date:
|
||||
|
Submitted by:
|
Accepted by: | |
|
||
PARTICIPANT
|
REALPAGE, INC. | |
|
||
|
||
|
||
Signature
|
By | |
|
||
|
||
Print Name
|
Print Name | |
|
||
|
||
|
Title | |
|
||
Address:
|
Address: | |
|
||
|
||
|
||
|
||
|
||
|
||
|
Date Received |
PARTICIPANT
|
: | |||
|
||||
CORPORATION
|
: | REALPAGE, INC. | ||
|
||||
SECURITY
|
: | COMMON STOCK | ||
|
||||
AMOUNT
|
: | |||
|
||||
DATE
|
: |
|
PARTICIPANT | |
|
||
|
||
|
Signature | |
|
||
|
||
|
Print Name | |
|
||
|
||
|
Date |
CONSULTANT: WILLIAM VAN VALKENBERG
|
||||
/s/ William Van Valkenberg | ||||
REALPAGE, INC.
|
||||
/s/ Stephen T. Winn | ||||
By: Stephen T. Winn | ||||
Its: President and CEO |
Consultant
|
||||
/s/ William Van Valkenberg | ||||
By: William Van Valkenberg | ||||
Individual | ||||
RealPage, Inc.
|
||||
/s/ Stephen T. Winn | ||||
By: Stephen T. Winn | ||||
Its: President and CEO | ||||
| RealPages loan transaction for a credit facility with Wells Fargo Foothill and Comerica. | ||
| RealPages equity raise, and issuance of a new class of preferred shares; | ||
| RealPages Price Optimizer and limitations on the use or display of software products produced by other companies on RealPages web site; | ||
| Formation of a new company to provide open technology services, including Yardi hosting; | ||
| Such other matters as the RealPages Chief Executive Officer may require from time to time during the Project Period. |
Consultant
|
||||
/s/ William Van Valkenberg | ||||
By: William Van Valkenberg | ||||
Individual | ||||
RealPage, Inc.
|
||||
/s/ Stephen T. Winn | ||||
By: Stephen T. Winn | ||||
Its: President and CEO | ||||
1 | Subject to renewal upon the mutual written agreement of the parties. |
|
| for the first 15 calendar days of such Maternity Leave: |
100% applicable
Base Salary |
|||
|
||||||
|
| next four weeks of such Maternity Leave: |
60% applicable
Base Salary |
/s/ Stephen T. Winn | ||||
By: Stephen T. Winn | ||||
Its: Chief Executive Officer | ||||
/s/ Ashley Chaffin | ||||
Ashley Chaffin, an individual | ||||
Executive expressly waives the protection of Section 1542 of the Civil Code of the State of California, which states that: | |||
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. |
MULTIFAMILY INTERNET VENTURES, LLC
RealPage, Inc., Sole Member |
||||
/s/ Stephen T. Winn | ||||
By: | ||||
Its: | ||||
DIRK D. WAKEHAM
|
||||
/s/ Dirk D. Wakeham | ||||
an individual | ||||
Grant Number:
|
Second Series No. xx-xx-xx | |||
|
||||
Date of Grant:
|
, 200___ | |||
|
||||
Name of Optionee:
|
xxx (the Optionee) | |||
|
||||
Number of Shares:
|
250,000 | |||
|
||||
Exercise Price Per Share:
|
$x.xx (the Option Exercise Price) |
REALPAGE, INC. | ||||
By:
|
Stephen T. Winn | |||
|
Chairman of the Board |
OPTIONEE: | ||||||
|
||||||
|
||||||
Signature:
|
||||||
Address:
|
||||||
|
||||||
|
||||||
Social Security Number: | ||||||
|
|
1. | Amend the first sentence of Section 5(a) , Base Salary , to read as follows: |
As compensation for the performance by Executive of his obligations hereunder, during the Employment Period, Employer shall pay Executive a base salary at a rate not less than Eighteen Thousand Seven Hundred Fifty and no/100 Dollars per month, or Two Hundred Twenty-Five Thousand Dollars (US$225,000) on an annualized basis (the base salary, at the rate in effect from time to time, is hereinafter referred to as the Base Salary). |
2. | Except to the extent set forth herein, the terms and conditions of the Employment Agreement are hereby ratified and confirmed. |
/s/ Stephen T. Winn | ||||
By: | ||||
Its: | ||||
/s/ Dirk D. Wakeham | ||||
an individual | ||||
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 |
-i-
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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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 |
-iii-
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 Groups 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 |
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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-
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
|
Agents 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 Borrowers 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-
-2-
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 |
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7. | FINANCIAL COVENANTS . |
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 |
-36-
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 |
Fiscal Year 2009 | Fiscal Year 2010 | Fiscal Year 2011 | Fiscal Year 2012 | |||||||||
$10,000,000
|
$ | 12,000,000 | $ | 13,200,000 | $ | 14,400,000 |
-37-
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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
|
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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 | ||||
Schedule A-1 Page 1
Schedule A-2 Page 1
Schedule C-1 Page 1
Schedule D-1 Page 1
Schedule 1.1 Page 1
Schedule 1.1 Page 2
Schedule 1.1 Page 3
Schedule 1.1 Page 4
Schedule 1.1 Page 5
Schedule 1.1 Page 6
Schedule 3.1 Page 1
Schedule 3.1 Page 2
Schedule 3.1 Page 3
Schedule 5.1 - Page 1
Schedule 5.1 Page 2
Lender
Revolver Commitment
Term Loan
Total Commitment
$
6,250,000
$
23,750,000
$
30,000,000
$
3,750,000
$
11,250,000
$
15,000,000
$
10,000,000
$
35,000,000
$
45,000,000
Level II:
Level
Senior Leverage Ratio Calculation
Base Rate Margin
If the Senior Leverage Ratio is less than 1.0:1.0
4.50 percentage points
If the Senior Leverage Ratio is greater than or
equal to 1.0:1.0
5.00 percentage points
(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 Borrowers and its Subsidiaries consolidated net
earnings,
Level
Senior Leverage Ratio Calculation
LIBOR Rate Margin
If the Senior Leverage Ratio is less 1.0:1.0
4.50 percentage points
If the Senior Leverage Ratio is greater than or equal to 1.0:1.0
5.00 percentage points
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;
audited financial statements for Borrowers fiscal year ended December 31, 2008) and
verification of Borrowers representations and warranties to Lender Group, the results of which
shall be satisfactory to Agent, and (ii) a review of Material Contracts;
(a) an unaudited consolidated balance sheet, income
statement, statement of cash flow, and statement of
shareholders equity covering Borrowers 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.
(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
shareholders 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.
(f) a detailed calculation of Excess Cash Flow.
(g) copies of Borrowers 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
officers good faith estimate of the financial
performance of Borrower during the period covered
thereby.
(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.
(j) notice of such event or condition and a
statement of the curative action that the Borrower
proposes to take with respect thereto.
(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.
(l) any other information reasonably requested
relating to the financial condition of Borrower or
its Subsidiaries.
(a) a Credit Amount Certificate
,
(b) a Borrowing Base Certificate,
(c) a summary aging report of Borrowers 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 Borrowers and its Subsidiaries cash
and Cash Equivalents, including an indication of which accounts
constitute Qualified Cash.
(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.
(l) a list of Borrowers shareholders and the percentage ownership of
Borrowers Stock owned by each such shareholder.
(m) any notice of redemption received by Borrower from the requisite
number of shareholders required to effect a mandatory redemption
under Borrowers Governing Documents.
(n) Such other reports, including but not limited to a summary aging
of the Borrowers Accounts, and a summary aging, by vendor, of
Borrowers 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.
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GRANTORS: |
REALPAGE, INC.
|
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By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Executive Vice President and Chief Financial Officer | |||
OPSTECHNOLOGY, INC.
|
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By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Vice President and Treasurer | |||
MULTIFAMILY INTERNET VENTURES, LLC
|
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By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Vice President and Treasurer | |||
STARFIRE MEDIA, INC.
|
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By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Treasurer | |||
REALPAGE INDIA HOLDINGS, INC.
|
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By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Treasurer | |||
AGENT: |
WELLS FARGO FOOTHILL, LLC,
a Delaware limited liability company, as Agent |
|||
By: | /s/ Terri Wesolik | |||
Name: | Terri Wesolik | |||
Title: | Vice President | |||
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3
4
(1) | The amount of the Guarantied Obligations or any obligations of any guarantor in respect thereof may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price. |
(2) | Agent may collect from such Guarantor even if any member of the Lender Group or any Bank Product Provider, by foreclosing on the real property collateral, has destroyed any right such Guarantor may have to collect from Borrower or any other guarantor. |
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OPSTECHNOLOGY, INC.
,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Vice President and Treasurer | |||
MULTIFAMILY INTERNET VENTURES, LLC
,
a California limited liability company |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Vice President and Treasurer | |||
STARFIRE MEDIA, INC.
,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Treasurer | |||
REALPAGE INDIA HOLDINGS, INC.
,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Treasurer | |||
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REALPAGE, INC.
,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | 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/ Troy V. Erickson | |||
Name: | Troy V. Erickson | |||
Title: | Vice President | |||
COMERICA BANK
,
a Texas Banking Association, as a Lender |
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By: | /s/ David Whiting | |||
Name: | David Whiting | |||
Title: | Senior Vice President | |||
OPSTECHNOLOGY, INC.,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Vice President and Treasurer | |||
MULTIFAMILY INTERNET VENTURES, LLC,
a California limited liability company |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Vice President and Treasurer | |||
STARFIRE MEDIA, INC.,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Treasurer | |||
REALPAGE INDIA HOLDINGS, INC.,
a Delaware corporation |
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By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Treasurer | |||
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(1) | The amount of the Guarantied Obligations or any obligations of any guarantor in respect thereof may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price. | ||
(2) | Agent may collect from Guarantor even if any member of the Lender Group or any Bank Product Provider, by foreclosing on the real property collateral, has destroyed any right Guarantor may have to collect from Borrower or any other guarantor. |
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A.L. WIZARD, INC.
,
a Delaware corporation |
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By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Vice President and Treasurer | |||
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 | |
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2.00:1.00
|
The last day of each month ending during the period from and including January 31, 2010 and through and including June 30, 2010 | |
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1.85:1.00
|
The last day of each month ending during the period from and including July 31, 2010 and through and including December 31, 2010 | |
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1.60:1.00
|
The last day of each month ending during the period from and including January 31, 2011 and through and including June 30, 2011 | |
|
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1.35:1.00
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July 31, 2011 and the last day of each month ending thereafter |
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REALPAGE, INC.
,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | 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/ Troy V. Erickson | |||
Name: | Troy V. Erickson | |||
Title: | Vice President | |||
COMERICA BANK
,
a Texas Banking Association, as a Lender |
||||
By: | /s/ David Whiting | |||
Name: | David Whiting | |||
Title: | Senior Vice President |
OPSTECHNOLOGY, INC.,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Vice President and Treasurer | |||
MULTIFAMILY INTERNET VENTURES, LLC,
a California limited liability company |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Vice President and Treasurer | |||
STARFIRE MEDIA, INC.,
a Delaware corporation |
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By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Vice President | |||
REALPAGE INDIA HOLDINGS, INC.,
a Delaware corporation |
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By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Vice President | |||
A.L. WIZARD, INC.,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | Vice President and Treasurer | |||
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(1) | The amount of the Guarantied Obligations or any obligations of any guarantor in respect thereof may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price. | ||
(2) | Agent may collect from Guarantor even if any member of the Lender Group or any Bank Product Provider, by foreclosing on the real property collateral, has destroyed any right Guarantor may have to collect from Borrower or any other guarantor. |
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PROPERTYWARE, INC.
,
a California corporation |
||||
By: | /s/ Stephen T. Winn | |||
Name: | Stephen T. Winn | |||
Title: | President and Chief Executive Officer | |||
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NEW GRANTORS: |
PROPERTYWARE, INC.
, a California corporation
|
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By: | /s/ Stephen T. Winn | |||
Name: | Stephen T. Winn | |||
Title: | President and Chief Executive Officer | |||
AGENT: |
WELLS FARGO FOOTHILL, LLC
, a Delaware limited
liability company, as Agent |
|||
By: | /s/ Troy V. Erickson | |||
Name: | Troy V. Erickson | |||
Title: | Vice President | |||
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 Borrowers
Governing Documents,
|
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(n) any notice of default under any
Payment Processing Cash Management
Agreement received by any Loan
Party, and
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(o) any demand for payment under a
Payment Processing Guaranty received
by any Loan Party.
|
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Upon request by Agent |
(p) Such other reports, including
but not limited to a summary aging
of the Borrowers Accounts, and a
summary aging, by vendor, of
Borrowers 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.
|
REALPAGE, INC.
,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | EVP and CFO | |||
WELLS FARGO FOOTHILL, LLC
,
a Delaware limited liability company, as Agent and as a Lender |
||||
By: | /s/ Troy V. Erickson | |||
Name: | Troy V. Erickson | |||
Title: | Vice President | |||
COMERICA BANK
,
a Texas Banking Association, as a Lender |
||||
By: | /s/ Charles Fell | |||
Name: | Charles Fell | |||
Title: | Vice President |
OPSTECHTNOLOGY, INC.
,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | VP & Treasurer | |||
MULTIFAMILY INTERNET VENTURES, LLC
,
a California limited liability company |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | VP & Treasurer | |||
STARFIRE MEDIA, INC.
,
a Delaware corporation |
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By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | VP & Treasurer | |||
REALPAGE INDIA HOLDINGS, INC.
,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | VP & Treasurer |
A.L. WIZARD, INC.
,
|
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By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | VP & Treasurer | |||
PROPERTYWARE, INC.
,
a California corporation |
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By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | VP & Treasurer | |||
Date | Installment Amount | |||
March 31, 2010, June 30, 2010 and September 30,
2010
|
$ | 1,812,500 | ||
|
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December 31, 2010, March 31, 2011, June 30, 2011
and September 30, 2011
|
$ | 2,250,000 | ||
|
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December 31, 2011, March 31, 2012, June 30, 2012
and September 30, 2012
|
$ | 2,362,500 | ||
|
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December 31, 2012 and March 31, 2013
|
$ | 2,475,000 | ||
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Maturity Date
|
Unpaid Principal Balance |
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REALPAGE, INC.
,
a Delaware corporation |
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By: | /s/ Timothy J. Barker | |||
Name: | ||||
Title: | ||||
WELLS FARGO CAPITAL FINANCE, LLC
,
a Delaware limited liability company, as Agent and as a Lender |
||||
By: | /s/ Troy V. Erickson | |||
Name: | Troy V. Erickson | |||
Title: | Vice President | |||
COMERICA BANK
,
a Texas Banking Association, as a Lender |
||||
By: | /s/ Charles Fell | |||
Name: | Charles Fell | |||
Title: | Vice President | |||
OPSTECHNOLOGY, INC.,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | ||||
Title: | ||||
MULTIFAMILY INTERNET VENTURES, LLC,
a California limited liability company |
||||
By: | /s/ Timothy J. Barker | |||
Name: | ||||
Title: | ||||
STARFIRE MEDIA, INC.,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | ||||
Title: | ||||
REALPAGE INDIA HOLDINGS, INC.,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | ||||
Title: | ||||
A.L. WIZARD, INC.,
a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | ||||
Title: | ||||
PROPERTYWARE, INC.
,
a California corporation |
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By: | /s/ Timothy J. Barker | |||
Name: | ||||
Title: | ||||
Lender | Revolver Commitment | Term Loan 1 | Total Commitment | |||||||||
Wells Fargo Capital
Finance, LLC
|
$ | 6,250,000 | $ | 27,859,375 | $ | 34,109,375 | ||||||
Comerica Bank
|
$ | 3,750,000 | $ | 15,828,125 | $ | 19,578,125 | ||||||
All Lenders
|
$ | 10,000,000 | $ | 43,687,500 | $ | 53,687,500 |
1 | A portion of the Term Loan in the amount of $35,000,000 was advanced on the Closing Date. As of the Fourth Amendment Effective Date, the outstanding principal balance of the Term Loan was $33,687,500. On the Fourth Amendment Effective Date, additional term loans in the aggregate amount of $10,000,000 will be advanced so that after giving effect to such additional term loans, the outstanding principal balance of the Term Loan on the Fourth Amendment Effective Date is $43,687,500. Upon the funding of such additional term loans, the Term Loan Commitments shall be reduced to zero. |
Lender
Share of Additional Term Loan Amount
$
5,000,000
$
5,000,000
$
10,000,000
DEBTOR
:
|
43642 YUKON INC. , a Yukon company | |
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SECURED PARTY
:
|
WELLS FARGO CAPITAL FINANCE, LLC (formerly, Wells Fargo Foothill, LLC), a Delaware limited liability company as agent for and on behalf of the Lender Group and the Bank Product Providers |
|
Name: | 43642 YUKON INC., a Yukon company | ||||
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Address: | |||||
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Attention: | |||||
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Fax No.: | |||||
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(the Debtor ) |
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Name: | WELLS FARGO CAPITAL FINANCE, LLC , a Delaware limited liability company as arranger and administrative agent for and on behalf of the Lender Group and the Bank Product Providers | ||||
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Address: | 2450 Colorado Avenue, Suite 3000 West Santa Monica, CA 90404 | ||||
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Attention: | Technology Finance Division Manager | ||||
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Fax No.: | (310) 453-7413 | ||||
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(in such capacity, together with its successors and assigns in such capacity, the
Secured Party ) |
(a) | grants to the Secured Party, for the benefit of the Lender Group and the Bank Product Providers (collectively, the Beneficiaries ), a security interest in; and | ||
(b) | grants, mortgages and charges as and by way of a fixed and specific mortgage and charge to and in favour of the Secured Party, for the benefit of the Beneficiaries, |
(a) | all goods now or hereafter comprising part of the inventory of the Debtor and all interests, rights and benefits, both present and future of the Debtor in or to inventory including, without limitation, goods now or hereafter held for sale or lease or furnished or to be furnished under a contract of service or that are raw materials, work in process or materials used or consumed in a business or profession or finished goods; | ||
(b) | all goods which are not inventory or consumer goods now or hereafter owned by the Debtor and all interests, rights and benefits, both present and future, of the Debtor in or to such goods including, without limitation, all equipment, office, warehouse and other furniture, fixtures, machinery, tools, rolling stock, motor vehicles, accessories, spare parts, supplies and other tangible personal property; | ||
(c) | all fixtures now or hereafter owned by the Debtor and all interests, rights and benefits, both present and future, of the Debtor in or to fixtures; | ||
(d) | all chattel paper now or hereafter owned or held by the Debtor and all interests, rights and benefits, both present and future, of the Debtor in, under or to chattel paper; | ||
(e) | each and every document of title now or hereafter owned by the Debtor or of which the Debtor is or becomes a holder, whether negotiable or non-negotiable, including, without limitation, each and every warehouse receipt and bill of lading, and all interests, rights and benefits, both present and future, of the Debtor in, under or to each and every document of title; | ||
(f) | each and every instrument now or hereafter owned by the Debtor or of which the Debtor is or becomes a holder, and all interests, rights and benefits, both present and future, of the Debtor in, under or to each and every instrument; | ||
(g) | each and every security now or hereafter owned by the Debtor or of which the Debtor is or becomes a holder including, without limitation, all shares, stocks, warrants, bonds, debentures, debenture stock, investment property, security entitlements or the like issued by a corporation or other Person, or a partnership, association or |
government, and all interests, rights and benefits, both present and future, of the Debtor in, under or to each and every security; |
(h) | all money of the Debtor and all money hereafter acquired by the Debtor and each and every account, debt, claim and demand of every nature and kind which is now due, owing or accruing due or which may hereafter become due, owing or accruing due to the Debtor, or which the Debtor now has or may hereafter have and all interests, rights and benefits, both present and future of the Debtor in or to each and every account, debt, claim and demand including, without limitation, claims against the Crown and claims under insurance policies; | ||
(i) | all patents, industrial designs, trademarks, trade secrets and know-how in which the Debtor now or hereafter has an interest including without limitation, confidential information, trade-names, goodwill, copyrights, personalty rights, software and all other forms of intellectual and industrial property, and any registrations and applications for registration of any of the foregoing (collectively, the Intellectual Property ); | ||
(j) | each and every lease, agreement to lease and leasehold interest of the Debtor and all interests, rights and benefits, both present and future, of the Debtor in, under or to the same; | ||
(k) | each and every intangible now or hereafter owned by the Debtor or of which the Debtor is or becomes a holder, and all interests, rights and benefits, both present and future, of the Debtor in, under or to each and every intangible; | ||
(l) | with respect to the property described in each of subparagraphs 2(a) to 2(k) inclusive, all substitutions and replacements thereof, improvements, increases, additions and accessions thereto and all interests, rights and benefits, both present and future, of the Debtor in, under or to the same; | ||
(m) | with respect to the property described in each of subparagraphs 2(a) to 2(1) inclusive, identifiable or traceable personal property in any form derived directly or indirectly from any dealing with such property or the proceeds therefrom and includes any payment representing indemnity or compensation for loss of or damage to such property or proceeds therefrom; and | ||
(n) | with respect to the property described in each of subparagraphs 2(a) to 2(m) inclusive, all books, accounts, invoices, letters, deeds, contracts, security, securities, instruments, bills, notes, writings, papers, documents and records in any form evidencing or relating thereto, and all other rights and benefits to which the Debtor is now or may hereafter become entitled in respect thereof. |
(a) | forthwith upon the Effective Date with respect to each and every property included in the Collateral and in which the Debtor then has rights; and | ||
(b) | forthwith upon the Debtor acquiring rights in each and every property included in the Collateral subsequent to the Effective Date. |
(a) | Motor Vehicles : A description of all motor vehicles and other serial number goods (i.e. trailers, mobile homes, aircraft, aircraft engines and vessels) (including vehicle identification numbers) presently owned by the Debtor is set out in Schedule A to this Agreement. |
(b) | Locations of Collateral : Any Collateral that is tangible personal property is located at the locations identified in Schedule B (as amended from time to time) to this Agreement (or is otherwise in transit). | ||
(c) | No Consumer Goods : The Debtor does not own any consumer goods which are material in value or which are material to the business, operations, property, condition or prospects (financial or otherwise) of the Debtor. | ||
(d) | Intellectual Property : The particulars of: (i) all registrations and applications for registration of any Intellectual Property owned by the Debtor; and (ii) any licensed Intellectual Property material to the Debtors business; is listed in Schedule C (as amended from time to time by delivering an updated schedule to the Secured Party) to this Agreement. Each such Intellectual Property is valid, subsisting, unexpired, enforceable and has not been abandoned without prior written consent of the Secured Party except to the extent the same is no longer necessary or economically desirable in the operations of the Debtors business. Except as set out in such Schedule (as amended from time to time), none of such Intellectual Property has been licensed or franchised by the Debtor to any Person. To the extent deemed necessary in the Debtors reasonable business judgment, the Debtor has made in good faith and in accordance with the procedures and regulations of the Canadian Intellectual Property Office, all payments, filings, and recordations necessary to protect and maintain their interest in the Intellectual Property identified on Schedule C. |
(a) | The Debtor shall pay, perform, satisfy, fulfil and discharge the Secured Obligations when due. | ||
(b) | The Debtor shall, if requested by the Secured Party, deliver forthwith to the Secured Party such further details respecting the Collateral as may reasonably be requested from time to time by the Secured Party. Such further details so delivered shall be deemed to be contained in and form part of this Agreement. | ||
(c) | The Debtor shall not permit any material Collateral to be affixed to real or personal property now owned by the Debtor so as to become a fixture or accession, without prior written notice to the Secured Party and a collateral access agreement. |
(d) | Except as permitted by the Credit Agreement, the Debtor shall not convey, sell, lease, license, assign, transfer or otherwise dispose of any of the Collateral, | ||
(e) | In the event that any Collateral, including, without limitation, proceeds thereof, is evidenced by or consists of chattel paper, instruments, securities or negotiable documents of title (collectively, the Negotiable Collateral ), and if and to the extent that the Secured Party determines that perfection or priority of the Secured Partys security interest is dependent on or enhanced by possession, the Debtor, immediately upon the request of the Secured Party, shall endorse and deliver physical possession of such Negotiable Collateral to the Secured Party. | ||
(f) | The Secured Party may, at any time after the occurrence and during the continuation of an Event of Default, (i) notify any Person obligated to the Debtor on any debt, account or chattel paper or any obligor to the Debtor on an instrument to make payment thereunder to the Secured Party, whether or not the Debtor was theretofore making collections thereon, and (ii) assume control of any proceeds arising from such Collateral. The Debtor agrees that, subject to the terms of any cash management agreement entered into by the Debtor, after the occurrence and during the continuance of an Event of Default, they will hold in trust for, the Secured Party, as the Secured Partys trustee, any of its collections that they receive and immediately will deliver such collections to the Secured Party or a cash management bank in their original form as received by the Debtor. | ||
(g) | The Debtor will not create, incur or permit to exist, and will defend the Collateral against, and will take such other action as is necessary to remove, any and all security interests in and other claims affecting the Collateral, other than the Security Interest created by this Agreement, Permitted Liens, or such security interests or other claims as permitted in writing by the Secured Party, and subject to the foregoing, the Debtor will defend the right, title and interest of the Secured Party in and to the Collateral against the claims and demands of all Persons. | ||
(h) | Except as otherwise permitted under the Loan Documents, the Debtor shall not cause or permit any Person other than the Secured Party to have control (as defined in The Securities Transfer Act (Manitoba) (the STA )) of any financial asset or investment property constituting part of the Collateral, other than control in favour of any depositary bank or securities intermediary which has subordinated its lien to the lien of the Secured Party pursuant to documentation in form and substance satisfactory to the Secured Party. | ||
(i) | The Debtor will promptly, following demand from time to time by the Secured Party, authorize, execute and deliver any and all agreements, instruments, documents and papers that the Secured Party may reasonably request to evidence the Secured Partys Security Interest in any Intellectual Property. | ||
(j) | The Debtor shall execute, deliver, file, record, authorize or obtain all such financing statements, continuation statements, notices, instruments, documents, agreements, |
consents, or other papers or amendments thereto, and such other instruments or notices, as may be necessary or desirable, or as the Secured Party may request, in order to create, preserve, perfect, maintain the perfection of, or validate the security interest granted or purported to be granted hereby, or to enable the Secured Party to exercise and enforce its rights hereunder with respect to such security interest and, without limiting the foregoing, shall: |
(i) | deliver to the Secured Party any and all certificates representing Collateral that is a certificated security (the Pledged Certificated Securities ) and other materials as may be required from time to time to provide the Secured Party with control over all Pledged Certificated Securities in the manner provided under Section 23 of the STA, and at the request of the Secured Party, will cause all Pledged Certificated Securities to be registered in the name of the Secured Party or its nominee; | ||
(ii) | deliver to the Secured Party any and all such documents, agreements and other materials as may be required from time to time to provide the Secured Party with control over all Collateral that is an uncertificated security in the manner provided under Section 24 of the STA; | ||
(iii) | deliver to the Secured Party any and all such documents, agreements and other materials as may be required from time to time to provide the Secured Party with control over all Collateral that is a security entitlement in the manner provided under Section 25 or 26 of the STA; | ||
(iv) | deliver to the Secured Party any and all such documents, agreements and other materials as may be required from time to time to provide the Secured Party with control over all Collateral that is a futures contract in the manner provided under subsection 1.1 of the PPSA; | ||
(v) | promptly from time to time upon request by the Secured Party enter into such control agreements, each in form and substance reasonably acceptable to the Secured Party, as may be required to perfect the security interest created hereby in any and all investment property, and will promptly furnish to the Secured Party true and complete copies thereof; | ||
(vi) | promptly from time to time upon the request of the Secured Party, execute and deliver such short-form security agreements as the Secured Party may reasonably deem necessary or desirable to protect the interests of the Secured Party in respect of that portion of the Collateral consisting of intellectual property; and |
(vii) | promptly upon request of the Secured Party, with respect to any securities issued by an issuer that is organized outside of Canada, cause to be delivered to the Secured Party a securities pledge agreement covering such securities. |
(a) | Collateral may be disposed of in whole or in part; | ||
(b) | Collateral may be disposed of by public auction, public tender or private contract, with or without advertising and without any other formality; | ||
(c) | any purchaser or lessee of Collateral may be a customer of any member of the Beneficiaries; | ||
(d) | a disposition of Collateral may be on such terms and conditions as to credit or otherwise as the Secured Party or a receiver, in its sole discretion, may deem advantageous; and | ||
(e) | the Secured Party or a receiver may establish an upset or reserve bid or price in respect of Collateral. |
(a) | Discharge : The Debtor shall not be discharged from the Secured Obligations by any extension of time, additional advances, renewals, amendments or extensions to this Agreement, any waiver by or failure of the Secured Party or the Beneficiaries to enforce any provision of this Agreement or any other Loan Document, the taking of further security, releasing security, extinguishment of the Security Interest, mortgages and charges as to all or any part of the Collateral, or any other act except an express written release or discharge by the Secured Party of the Security Interest granted hereby or upon the full payment and performance of the Secured Obligations, at which time the Secured Party shall, at the Debtors expense, deliver to the Debtor all necessary discharges, releases, financing statements and other documents or instrument as the Debtor may reasonably require and the Secured Party will redeliver to the Debtor any Collateral in its possession. |
(b) | Accounts and Contractual Rights : Notwithstanding any provision of this Agreement, the Debtor will remain liable under each of the documents giving rise to the accounts and under each of the Contractual Rights to observe and perform all the conditions and obligations to be observed and performed by the Debtor thereunder, all in accordance with the terms of each such document and Contractual Rights. The Secured Party or the Beneficiaries will have no obligation or liability under any account (or any document giving rise thereto) or Contractual Rights by reason of or arising out of this Agreement or the receipt by the Secured Party or the Beneficiaries of any payment relating to such account or Contractual Rights pursuant hereto, and in particular (but without limitation), the Secured Party or the Beneficiaries will not be obligated in any manner to perform any of the obligations of the Debtor under or pursuant to any account (or any document giving rise thereto) or under or pursuant to any Contractual Rights, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party under any account (or any document giving rise thereto) or under any Contractual Rights, to present or file any claim, to take any action to |
enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time. |
(c) | Other Security: The security constituted by this Agreement is in addition to and not in substitution for any other security, or right from time to time held by the Secured Party or the Beneficiaries and: |
(i) | the Secured Party may realize upon or enforce all or part of any security, or right from time to time held by it in any order it desires and any realization by any means upon any security, or right shall not bar realization upon any other security, or right; and | ||
(ii) | the taking of any action or proceeding or refraining from so doing or any other dealings with or in respect of any other security, or right from time to time held by the Secured Party shall not release or affect the security provided for in this Agreement and the taking of the security hereby granted or any proceedings hereunder for the realization of the security hereby granted shall not release or affect any other security, or right from time to time held by the Secured Party. |
(d) | Waiver, etc. : No failure or delay on the part of the Secured Party or the Beneficiaries to exercise any right provided for in or contemplated by this Agreement and no waiver as to any Event of Default in the Credit Agreement shall operate as a waiver of any other Event of Default unless made in writing and signed by the Secured Party and, in that event, such waiver shall operate only as a waiver of the right or Event of Default expressly referred to therein. Nothing in this Agreement and nothing referred to in the Secured Obligations shall preclude any other remedy by action or otherwise for the enforcement of this Agreement or the payment and performance in full of the Secured Obligations. | ||
(e) | Assignment : All rights and obligations of the Secured Party hereunder shall be assignable in whole or in part in accordance with the Credit Agreement. The rights and obligations of the Debtor shall not be assignable except in accordance with the terms of the Credit Agreement. | ||
(f) | Entire Agreement : This Agreement and the other Loan Documents to which the parties are party set forth the entire intent and understanding of the parties relating to the subject matter hereof and supersedes and replaces all prior agreements and commitments, whether written or oral, made between the parties and all earlier discussions and negotiations between them. The parties are not relying upon and there are no collateral or other representations, warranties, agreements or covenants made by any of the parties hereto which are not contained herein or in the other Loan Documents. | ||
(g) | Further Assurances : Each of the parties hereto shall and will, from time to time and at all times hereafter upon every reasonable written request so to do, make, do, |
execute and deliver, or cause to be made, done, executed and delivered, all such further papers, acts, deeds, assurances and things as may be necessary in the opinion of any party or counsel for any party, acting reasonably, for implementing and carrying out more effectually the true intent and meaning of this Agreement including, without limitation, to perfect or better perfect the Security Interest of the Secured Party in the Collateral or any part thereof. | |||
(h) | Severability : In the event that any provision or part of a provision contained in this Agreement is held to be invalid, illegal or unenforceable in whole or in part, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby and all such remaining provisions or the remainder of such provision shall continue in full force and effect. All provisions hereof are declared to be separate and distinct provisions, as the case may be. | ||
(i) | Headings : All headings and titles in this Agreement are for convenience of reference only and shall not affect the interpretation of the terms hereof. | ||
(j) | Gender, etc. : In construing this Agreement, all words and personal pronouns relating thereto shall be read and construed as the number and gender of the party or parties referred to in each case require. Words such as hereunder, hereto, hereof, herein and other words commencing with here shall, unless the context clearly indicates the contrary, refer to the whole of this Agreement and not to any particular paragraph or part thereof. | ||
(k) | Binding Effect : All rights of the Secured Party hereunder shall enure to the benefit of its successors and assigns and all obligations of the Debtor hereunder shall bind the Debtor, its successors and permitted assigns. | ||
(l) | Governing Law : This Agreement shall be governed by, and interpreted and enforced in accordance with, the laws in force in the Province of Manitoba and the laws of Canada applicable therein and shall be treated in all respects as a Manitoba contract. | ||
(m) | Notice : Any demand, notice, request, consent, approval or other communication required or permitted to be made by any party hereto to any other party hereto in connection with this Agreement shall be made or given to such party at the address set out on the first page of this Agreement or as otherwise provided to the other party, in writing, and otherwise in accordance with the notice procedures set out in Section 11 of the Credit Agreement. | ||
(n) | Failure to Perfect : The Secured Party shall not be liable or accountable for any negligence or failure to perfect the Security Interest granted herein or to seize, collect, realize, sell or obtain possession or payment of or for the Collateral or any part thereof and shall not be bound to institute proceedings for the purpose of seizing, collecting, realizing, selling or obtaining possession or payment of the same or, for the purpose of preserving the rights of the Debtor or any other Person, firm or corporation in respect of same. |
(o) | No Amendment : This Agreement may not be amended, altered or qualified except by a written agreement executed by the parties hereto. | ||
(p) | Power of Attorney : The Secured Party, or any receiver or agent appointed hereunder, is hereby irrevocably constituted as the duly appointed lawful attorney of the Debtor, with full power (including full power of substitution), following the occurrence and during the continuance of an Event of Default, to make, do, execute and deliver all such documents, assignments, acts, matters or things on behalf of the Debtor with the right to use the name of the Debtor whenever and wherever it may be deemed necessary or expedient. The power of attorney hereby granted is a power coupled with an interest and shall survive the dissolution, liquidation, winding-up or other termination of existence of the Debtor. The Debtor agrees to and does hereby ratify all acts done and all documents executed and delivered by the Secured Party following the occurrence and during the continuance of an Event of Default, pursuant to the power of attorney hereby granted and the Debtor hereby confirms that the Secured Party and all third parties are entitled to rely upon such ratification. | ||
(q) | Time of Essence : Time shall be strictly of the essence of this Agreement and of every part hereof and no extension or variation of this Agreement shall operate as a waiver of this provision. | ||
(r) | Debtors Receipt : The Debtor hereby acknowledges receipt of a fully signed copy of this Agreement. | ||
(s) | Financing Statement : To the extent permitted by applicable law, the Debtor hereby waives its entitlement to receive a copy of any financing statements registered by the Secured Party or statements confirming registration of a financing statement by the Secured Party with respect to this Agreement. | ||
(t) | Conflict : In the event of a conflict or inconsistency between the provisions of this Agreement and the provisions of the Credit Agreement, then the provisions of the Credit Agreement shall have priority over and shall govern to the extent of such conflict or inconsistency; provided, however, that the existence of a particular representation, warranty, covenant or other provision in this Agreement which is not contained in the Credit Agreement shall not be deemed to be a conflict or inconsistency, and that particular representation, warranty, covenant or other provision shall continue to apply. | ||
(u) | Secured Party as Agent : Each reference herein to any right granted to, benefit conferred upon, or power exercisable, exercised, or action taken by, the Secured Party shall be deemed to be a reference to the right granted to, benefit conferred upon, and power exercisable, exercised, and action taken by, the Secured Party in its capacity as agent for the benefit of the Beneficiaries all as more fully set forth in the Credit Agreement. |
43642 YUKON INC. |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | V.P |
1 | In addition to certain remote locations at which certain employees working out of their homes have certain telecommuting equipment, for example, cell phones, laptops, printers, facsimile machines, etc. |
43642
Yukon, Inc. |
US | PROPERTY MASTER* |
Serial No. 1,005,335
Reg. Number TMA541,572 |
Registration Date: 2/26/2001 | ||||
43642
Yukon, Inc. |
US |
PROPERTY MASTER and
Design* |
Serial No. 504,362
Reg. Number TMA294,111 |
Registration Date: 5/30/03
|
*- | Acquired through acquisition of substantially all of the assets of Domin-8 Enterprise Solutions, LLC, and subsidiaries. Assignments of trademarks to be filed with Canadian Intellectual Property Office . |
| MS Access 2003 (current development platform) | ||
| MS Office Communicator | ||
| MS Office 2007 all components including Project and Visio | ||
| MS Visual Foxpro 9.0 used for PMEdge data migrations | ||
| MS Visual Studio 6.0 (Visual Basic 6.0) | ||
| MS XML Notepad 2007 | ||
| Cisco IP Communicator | ||
| MS SQL Server full version plus express version | ||
| InstallShield DevStudio 9 for building product deployment CD images | ||
| Nero Suite for burning CDs | ||
| Snagit screen capture program | ||
| Winzip | ||
| Adobe Acrobat (creating and modifying PDF input forms) | ||
| AntiVirus software (currently McAfee) | ||
| Veritas Backup software for network backup | ||
| VMWare for virtual server setup to test product installations | ||
| Acronis True Image for creating baseline operating system images for testing product installation on different platforms | ||
| Amyuni PDF Suite | ||
| DBI-Tech Component Toolbox 6.0 | ||
| DBI-Tech ctListbar 6.0 | ||
| DBI-Tech Studio Controls for COM |
| Windows XP Professional 32 and 64 bit | ||
| Windows Vista Business 32 and 64 bit | ||
| Windows 7 32 and 64 bit | ||
| Windows Server 2003 32 and 64 bit | ||
| Windows Server 2008 32 and 64 bit | ||
| MS Office including Outlook, Word, Excel, Access 2003, Internet Explorer, Power Point, etc | ||
| Phones today Cisco | ||
| SIT homegrown CRM still needed for Spectra licensing and customer portal access | ||
| MeetingPlace | ||
| NetSuite | ||
| MS Office Communicator | ||
| MSDN | ||
| Terminal Services | ||
| TeamViewer | ||
| Adobe Reader | ||
| Adobe Writer | ||
| PDF995 | ||
| Spectra (old and new releases) | ||
| Robodemo, RoboHelp | ||
| Snagit |
TO
:
|
Name: | WELLS FARGO CAPITAL FINANCE, LLC, as agent | ||
|
Address: | 2450 Colorado Avenue, Suite 3000 West, Santa Monica, California 90404 | ||
|
Attention: | Technology Finance Division Manager | ||
|
Facsimile: | (310) 453-7413 |
(a) | the applicable rate based on a year of 360 days or 365 days, as the case may be; | ||
(b) | multiplied by the actual number of days in a calendar year in which the period for such interest is payable (or compounded); and | ||
(c) | divided by 360 days or 365 days, as the case may be. |
(a) | first, by reducing the amount or rate of interest required to be paid to the affected Secured Party; and | ||
(b) | thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid to the affected Lender which would constitute interest for purposes of Section 347 of the Criminal Code (Canada). |
(a) | any lack of genuineness, validity or enforceability of any of the Guaranteed Liabilities or of any agreement or arrangement between the Debtor, the Guarantor, or any other Person, and any one or more of the Secured Parties, or any failure by the Debtor, or any other Person, to carry out any of its obligations under any such agreement or arrangement; | ||
(b) | any change in the name, objects, powers, organization, share capital, Organizational Documents, business, shareholders, directors or management of the Debtor, the Guarantor or any Surety, the reorganization of the Debtor, the Guarantor or any Surety, any amalgamation or merger by the Debtor, the Guarantor or any Surety with any other Person or Persons, or any continuation of the Debtor, the Guarantor, or any Surety under the laws of any jurisdiction; | ||
(c) | any lack or limitation of power, incapacity or disability of the Debtor, the Guarantor or any Surety or of the directors, officers, managers, employees or agents of the Debtor, the Guarantor or any Surety or any other irregularity, defect or informality, or any fraud, by the Debtor, the Guarantor or any Surety or any of their respective directors, officers, managers, employees or agents, with respect to any or all of the Guaranteed Liabilities, any or all of its Secured Liabilities or any or all of the liabilities and obligations of any Surety; | ||
(d) | any non-compliance with or contravention by the Guarantor of any provision of any corporate statute applicable to the Guarantor relative to guarantees or other financial assistance given by the Guarantor; | ||
(e) | any impossibility, impracticability, frustration of purpose, illegality, invalidity, force majeure or act of Governmental Authority; | ||
(f) | any Insolvency Proceeding affecting, or the financial condition of, the Debtor, the Guarantor, any Surety, any Secured Party or any other Person at any time; | ||
(g) | any law, regulation, limitation or prescription period or other circumstance that might otherwise be a defence available to, or a discharge of, the Debtor, the Guarantor or any Surety in respect of any or all of the Guaranteed Liabilities, any or all of its Secured Liabilities or any or all of the liabilities and obligations of any Surety; | ||
(h) | any loss of, or in respect of, any Security by or on behalf of any Secured Party from the Debtor, the Guarantor, any Surety or any other Person, whether occasioned through the fault of any Secured Party or otherwise; | ||
(i) | any loss or impairment of any right of the Guarantor for subrogation, reimbursement or contribution, whether or not as a result of any action taken or omitted to be taken by any Secured Party; or |
(j) | any other matter, act, omission, circumstance, development or thing of any and every nature, kind and description whatsoever (other than the due payment and performance in full of the Guaranteed Liabilities and its Secured Liabilities) that might in any manner (but for the operation of this Section) operate (whether by statute, at law, in equity or otherwise) to release, discharge, diminish, limit, restrict or in any way affect the liability of, or otherwise provide a defence to, a guarantor, a surety, or a principal debtor, even if known by the Agent or any one or more of the other Secured Parties. |
(a) | amend, alter or vary in any manner and to any extent (and irrespective of the effect of the same on the Guarantor) any of the Guaranteed Liabilities, any of the liabilities and obligations of any Surety, any Security or any one or more of the Secured Parties arrangements or agreements with the Debtor, the Guarantor, any Surety or any other Person; | ||
(b) | compromise, subordinate, postpone or abandon any of the Guaranteed Liabilities, any of the Secured Liabilities of the Guarantor, any of the liabilities and obligations of any Surety, any Security or any one or more of the Secured Parties arrangements or agreements with the Debtor, the Guarantor, any Surety or any other Person; | ||
(c) | grant time, renewals, extensions, indulgences, releases or discharges to the Debtor, the Guarantor, any Surety or any other Person; | ||
(d) | create new or additional Guaranteed Liabilities, increase or reduce the rate of interest on any or all of the Guaranteed Liabilities or any other rates or fees payable under or in respect of any or all of the Guaranteed Liabilities; | ||
(e) | alter, compromise, accelerate, extend or change the time or manner for payment or performance by the Debtor of, or by the Guarantor or any other Person or Persons liable to any one or more of the Secured Parties with respect to, any or all of the Guaranteed Liabilities; | ||
(f) | take or abstain from taking Security from the Debtor, the Guarantor, any Surety or any other Person or abstain from completing, perfecting or maintaining the perfection of any Security; | ||
(g) | release or add one or more Guarantors, Sureties or endorsers, accept additional or substituted Security, or release, subordinate or postpone any Security; | ||
(h) | accept compromises from the Debtor, the Guarantor, any Surety or any other Person; |
(i) | create or add any new Loan Documents, or add any new Secured Parties pursuant to the provisions of any Loan Documents; | ||
(j) | do, or omit to do, anything to enforce the payment or performance of any or all of the Guaranteed Liabilities, any or all of the Secured Liabilities of the Guarantor, any or all of the liabilities and obligations of any Surety or any Security; | ||
(k) | give or refuse to give or continue giving any credit or any financial accommodation to the Debtor or to any other Person; | ||
(l) | prove any claim in any Insolvency Proceeding affecting the Debtor, the Guarantor, any Surety or any other Person as it sees fit or refrain from proving any claim or permit or suffer the impairment of any of the Guaranteed Liabilities in any such Insolvency Proceeding; make any election in any such Insolvency Proceeding; permit or suffer the creation of secured or unsecured credit or debt in any such Insolvency Proceeding; or permit or suffer the disallowance, avoidance, or subordination of any of the Guaranteed Liabilities or the obligations of any other debtor with respect to the Guaranteed Liabilities in any such Insolvency Proceeding; | ||
(m) | apply any money received from the Debtor, the Guarantor, any Surety, any other Person or any Security upon such part of the Guaranteed Liabilities as the Secured Parties may see fit or change any such application in whole or in part from time to time as the Secured Parties may see fit; or | ||
(n) | otherwise deal with the Debtor, the Guarantor, any Surety, any other Person, the Guaranteed Liabilities, the Secured Liabilities of the Guarantor, the liabilities and obligations of any Surety, and all Security as the Secured Parties may see fit. |
(a) | Any and all payments to the Agent shall be made free and clear of and without deduction or withholding for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and liabilities with respect thereto (as such taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as Taxes ) imposed by the government of Canada (or any political subdivision or taxing authority thereof or therein), unless such Taxes are required by law or the administration thereof to be deducted or withheld. If the Guarantor shall be required by law or the administration thereof to deduct or withhold any such Taxes from or in respect of any amount payable hereunder, then: |
(i) | the amount payable shall be increased as may be necessary so that after making all required deductions or withholdings (including deductions or withholdings applicable to additional amounts paid under this paragraph), the Agent shall receive an amount equal to the sum it would have received if no such deduction or withholding had been made, and | ||
(ii) | the Guarantor forthwith shall pay the full amount deducted or withheld to the relevant taxation or other authority in accordance with applicable law. |
(b) | The Guarantor agrees to pay forthwith any present or future stamp, registrations or documentary fees and taxes or any other excise or property taxes, charges or similar levies (all such fees, taxes, charges and levies being herein referred to as Other Taxes ) imposed by the government of Canada or any Province or territory thereof (or any political subdivision or taxing authority thereof or therein) which arise from any payment made by the Guarantor hereunder or from the execution, delivery or registration of or otherwise with respect to this Agreement. |
(c) | The Guarantor agrees to indemnify the Secured Parties for the full amount of Taxes or Other Taxes not deducted or withheld and paid by the Guarantor in accordance with subparagraph 21(a) or (b) hereof to the relevant taxation or other authority and any Taxes or Other Taxes imposed by any jurisdiction on the amounts payable by the Guarantors under this paragraph 21 paid by the Agent and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or |
not any such Taxes or Other Taxes were correctly or legally asserted. Payment under this indemnification shall be made within 15 days from the date the Agent makes written demand therefor. A certificate as to the amount of such Taxes or Other Taxes and evidence of payment thereof submitted to the Guarantor by the Agent shall be prima facie evidence of the amount due from the Guarantor to the Secured Parties. | |||
(d) | The Guarantor shall furnish to the Agent the original or a certified copy of a receipt evidencing any payment of Taxes or Other Taxes made by the Guarantor as soon as the receipt becomes available, together with a certificate of an officer of the Guarantor, which certificate indicates the amount of Taxes or Other Taxes, as the case may be, withheld by the Guarantor in respect of payments made hereunder. | ||
(e) | Without prejudice to the survival of any other agreement or obligation of the Guarantor hereunder, the obligations of the Guarantor under this paragraph 21 shall survive the termination of this Agreement and the payment of the Guaranteed Obligations. |
(a) | The Guarantor shall pay (i) all reasonable out-of-pocket expenses incurred by the Secured Parties, including the reasonable fees, charges and disbursements of counsel for the Secured Parties and all applicable taxes, in connection with the preparation and administration of this Agreement, (ii) all reasonable out-of-pocket expenses incurred by the Secured Parties, including the reasonable fees, charges and disbursements of counsel for the Secured Parties and applicable taxes, in connection with any amendments, modifications or waivers of the provisions hereof, and (iii) all out-of-pocket expenses incurred by the Secured Parties, including the fees, charges and disbursements of any counsel for the Secured Parties and all applicable taxes, in |
connection with the assessment, enforcement or protection of their rights in connection with this Agreement, including their rights under this Section, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the Secured Liabilities of the Guarantor. | |||
(b) | The Guarantor shall indemnify the Secured Parties against, and hold the Secured Parties harmless from, any and all losses, claims, cost recovery actions, damages, expenses and liabilities of whatsoever nature or kind and all reasonable out-of- pocket expenses and all applicable taxes to which any Secured Party may become subject arising out of or in connection with (i) the execution or delivery of this Agreement and the performance by the Guarantor of its obligations hereunder, (ii) any actual or prospective claim, litigation, investigation or proceeding relating to this Agreement or the Secured Liabilities of the Guarantor, whether based on contract, tort, delict or any other theory and regardless of whether any Secured Party is a party thereto, (iii) any other aspect of this Agreement, or (iv) the enforcement of the Secured Parties rights hereunder and any related investigation, defence, preparation of defence, litigation and enquiries; provided that such indemnity shall not, as to any Secured Party, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence (it being acknowledged that ordinary negligence does not necessarily constitute gross negligence), or wilful misconduct of or material breach of this Agreement by such Secured Party. | ||
(c) | The Guarantor shall not assert, and the Guarantor hereby waives, any claim against any Secured Party (or any director, officer or employee thereof), on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement. | ||
(d) | All amounts due under this Section shall be payable to the Agent for the benefit of the applicable Secured Parties not later than three Business Days after written demand therefor. | ||
(e) | The indemnifications set out in this Agreement shall survive the payout of the Secured Liabilities of the Guarantor. |
43462 YUKON INC.
|
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | V.P. |
TO
:
|
Name: | WELLS FARGO CAPITAL FINANCE, LLC, as agent | ||
|
Address: | 2450 Colorado Avenue, Suite 3000 West, Santa Monica, California 90404 | ||
|
Attention: | Technology Finance Division Manager | ||
|
Facsimile: | (310) 453-7413 |
[FULL LEGAL NAME OF NEW GUARANTOR]
|
||||
By: | ||||
Name: | ||||
Title: | ||||
(a) | Schedule A correctly sets forth all of the issued and outstanding shares of each class of the equity interests of the Pledged Company represented by such Initial Shares; | ||
(b) | the Initial Shares have been duly and validly authorized and issued by the Pledged Company and are fully paid and nonassessable; | ||
(c) | except for the security interests granted hereunder, the Pledgor (i) is and, subject to any transfers made in compliance with the Credit Agreement, will continue to be the direct owner, beneficially and of record, of the Initial Shares indicated on Schedule A, (ii) holds the same free and clear of all Liens other than Liens that are created by the Loan Documents or Permitted Liens that are non-consensual Liens to the extent arising by operation of law, (iii) will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Pledged Collateral, other than Liens created by this Agreement, and transfers made in compliance with the Credit Agreement, and (iv) will cause any and all Pledged Collateral, whether for value paid by the Pledgor or otherwise, to be forthwith deposited with the Agent and pledged or assigned hereunder; |
(d) | except for restrictions and limitations imposed by the Loan Documents, the articles of incorporation of the Pledged Company, or securities laws generally, the Pledged Collateral is and will continue to be freely transferable and assignable, and none of the Pledged Collateral is or will be subject to any option, right of first refusal, shareholders agreement or contractual restriction of any nature that might prohibit, impair, delay or otherwise affect the pledge of such Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Agent of rights and remedies hereunder; | ||
(e) | the Pledgor (i) has the power and authority to pledge the Pledged Collateral pledged by it hereunder in the manner hereby done or contemplated and (ii) will defend its title or interest thereto or therein against any and all Liens (other than the Lien created by the Loan Documents and Permitted Liens that are non-consensual Liens to the extent arising by operation of law), however arising, of all Persons whomsoever; | ||
(f) | no consent or approval of any Governmental Authority, any securities exchange or any other Person was or is necessary to the validity of the pledge effected hereby (other than such as have been obtained and are in full force and effect); | ||
(g) | by virtue of the execution and delivery by the Pledgor of this Agreement, when any Pledged Collateral is delivered to the Agent in accordance with this Agreement, the Agent will obtain a legal, valid and perfected first-priority lien upon and security interest in the Shares as security for the payment and performance of the Secured Obligations; and | ||
(h) | the pledge effected hereby is effective to vest in the Agent, for the benefit of the Beneficiaries, the rights of the Agent in the Pledged Collateral as set forth herein. |
(a) | Exercise all of the rights and remedies granted to secured parties under The Personal Property Security Act (Manitoba) and any other applicable statute, or otherwise available to the Agent at law or in equity. | ||
(b) | Realize on any or all of the Pledged Collateral and sell, lease, assign, give options to purchase, or otherwise dispose of and deliver any or all of the Pledged Collateral (or contract to do any of the above), in one or more parcels at any public or private sale, at any exchange, brokers board or office of the Agent or elsewhere, on such terms and conditions as the Agent may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery. | ||
(c) | Apply to a court of competent jurisdiction for the sale or foreclosure of any or all of the Pledged Collateral. | ||
(d) | At any public sale, and to the extent permitted by law on any private sale, bid for and purchase any or all of the Pledged Collateral offered for sale and, upon compliance with the terms of such sale, hold, retain and dispose of such Pledged Collateral without any further accountability to the Pledger or any other Person with respect to such holding, retention or disposition, except as required by law. In any such sale to the Agent, the Agent may, for the purpose of making payment for all or any part of the Pledged Collateral so purchased, use any claim for Secured Obligations then due and payable to it as a credit against the purchase price in which case the amount of such claim shall be reduced by the amount of such credit. | ||
(e) | Transfer all or part of the Pledged Collateral into the name of the Agent or its nominee, with or without disclosing that the Pledged Collateral is subject to the security interests arising under this Agreement. | ||
(f) | Vote any or all of the Pledged Collateral (whether or not transferred to the Agent or its nominee) and give or withhold all consents, waivers and ratifications in respect thereof and otherwise act with respect thereto as though it were the absolute owner thereof | ||
(g) | Exercise any and all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining to any of the Pledged Collateral as if it were the absolute owner thereof, including the right to exchange at its discretion any and all of the Pledged Collateral upon the amalgamation, merger, consolidation, reorganization, recapitalization or other readjustment of any issuer or upon the exercise by any issuer or the Agent of any right, privilege or option pertaining to any of the Pledged Collateral, and in connection therewith, to deposit and deliver any and all of the Pledged Collateral with any committee, depositary, transfer agent, registrar or other |
designated agency upon such terms and conditions as it may determine, all without liability except to account for property actually received by the Agent. |
(i) | Pledged Collateral may be disposed of in whole or in part; | ||
(ii) | Pledged Collateral may be disposed of by public auction, public tender or private contract, with or without advertising and without any other formality; | ||
(iii) | any purchaser of Pledged Collateral may be a customer of the Agent; | ||
(iv) | a disposition of Pledged Collateral may be on such terms and conditions as to credit or otherwise as the Agent, in is sole discretion, may deem advantageous; and | ||
(v) | the Agent may establish an upset or reserve bid or price in respect of Pledged Collateral. |
(a) | Until such time, if ever, as this Agreement shall be discharged and the Shares and Certificates released to the Pledger, the Agent shall be entitled to receive and enjoy all dividends or other distributions made on or in respect of the Pledged Collateral and to exercise all option, conversion, voting or other like rights attaching thereto. Notwithstanding the foregoing, so long as an Event of Default has not occurred and is not continuing, the Pledgor shall be entitled to receive and enjoy all dividends or other distributions made on or in respect of the Pledged Collateral provided that any noncash dividends, interest, principal or other distributions that would constitute Pledged Collateral, whether resulting from a subdivision, combination or reclassification of the outstanding equity interests of the issuer of the Pledged Collateral or received in exchange for Pledged Collateral or any part thereof, or in redemption thereof, or as a result of any amalgamation, merger, consolidation, acquisition or other exchange of assets to which the issuer may be a party or |
otherwise, shall be and become part of the Pledged Collateral, and, if received by the Pledgor, shall not be commingled by the Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Agent and shall be forthwith delivered to the Agent in the same form as so received (with any necessary endorsement) and to vote or refrain from voting the Pledged Collateral at any meeting, whether special or general, at which the holder of the Pledged Collateral is entitled to vote and will be entitled to take part in or consent to or refrain from taking part in or consenting to any corporate or shareholders action which the holder of the Pledged Collateral is entitled to take part in or consent; provided that the exercise of such right to vote or to take part in or consent to any such corporate or shareholders action would not adversely affect the rights of the Agent or any Beneficiary or result in a contravention of any covenant or agreement of the Pledgor to the Agent hereunder or to the Agent or any Beneficiary under the Credit Agreement or any other Loan Documents, or under any other agreement evidencing or securing any of the Secured Obligations. If the Pledged Collateral have been transferred to the Agent or its nominee, the Agent shall, upon request, provide to the Pledgor a revocable proxy and direction in respect of the payment of dividends or other distributions entitling the Pledgor to vote the Pledged Collateral and receive such distributions subject to the foregoing conditions. | |||
(b) | Upon the occurrence and during the continuance of an Event of Default, all rights of the Pledgor to dividends, interest, principal or other distributions that the Pledgor is authorized to receive pursuant to paragraph (a) of this Section 13 shall cease, and all such rights shall thereupon become vested in the Agent, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions. All dividends, interest, principal or other distributions received by the Pledgor contrary to the provisions of this Section 13 shall be held in trust for the benefit of the Agent, shall be segregated from other property or funds of the Pledgor and shall be forthwith delivered to the Agent upon demand in the same form as so received (with any necessary endorsement). Any and all money and other property paid over to or received by the Agent pursuant to the provisions of this paragraph (b) shall be retained by the Agent in an account to be established by the Agent upon receipt of such money or other property and shall be applied to the Secured Obligations. | ||
(c) | Upon the occurrence and during the continuance of an Event of Default, all rights of the Pledgor to exercise the voting and consensual rights and powers it is entitled to exercise pursuant to paragraph (a) of this Section 13, and the obligations of the Agent under paragraph (a) of this Section 13, shall cease, and all such rights shall thereupon become vested in the Agent, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, unless otherwise directed by the required lenders, the Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgor to exercise such rights. |
REALPAGE INC.
|
||||
By: | /s/ Timothy J. Barker | |||
Authorized Signatory
V.P. |
||||
Pledged Company | Description | Certificate No. | Number of Shares | |||||
43642 Yukon Inc.
|
Common Shares | C-1 | 1,000 |
Page | ||||
1. Purpose
|
1 | |||
|
||||
2. Definitions
|
1 | |||
|
||||
3. The Notes
|
6 | |||
|
||||
3.1 Issuance of Notes
|
6 | |||
3.2 Terms of the Notes
|
6 | |||
3.3 Delivery
|
6 | |||
|
||||
4. Closings
|
6 | |||
|
||||
4.1 Closing
|
6 | |||
4.2 Facility Fee
|
6 | |||
4.3 Investor Expenses
|
6 | |||
4.4 Use of Proceeds
|
7 | |||
4.5 Senior Debt
|
7 | |||
|
||||
5. Conditions of Investors Obligations at each Closing
|
7 | |||
|
||||
5.1 Documentation
|
7 | |||
5.2 Representations and Warranties
|
7 | |||
5.3 Performance
|
7 | |||
5.4 Qualifications
|
7 | |||
5.5 No Prohibition
|
7 | |||
5.6 Compliance Certificate
|
7 | |||
5.7 Company Certificate
|
8 | |||
|
||||
6. Representations and Warranties of the Company
|
8 | |||
|
||||
6.1 Incorporation; Authorization; Etc
|
8 | |||
6.2 No Conflict
|
8 | |||
6.3 Capitalization
|
9 | |||
6.4 Joint Ventures
|
9 | |||
6.5 Financial Statements
|
9 | |||
6.6 Undisclosed Liabilities
|
9 | |||
6.7 Absence of Certain Changes
|
10 | |||
6.8 Real Property
|
10 | |||
6.9 Litigation; Orders
|
10 | |||
6.10 Intellectual Property
|
11 | |||
6.11 Employment and Labor Matters
|
11 | |||
6.12 Compliance with Laws
|
12 | |||
6.13 Contracts
|
12 | |||
6.14 Licenses, Approvals, Other Authorizations
|
12 | |||
6.15 Environmental Matters
|
12 | |||
6.16 Taxes
|
12 |
-i-
Page | ||||
6.17 Accounts Receivable
|
13 | |||
6.18 Insurance
|
13 | |||
6.19 Accuracy of Information; Full Disclosure
|
13 | |||
|
||||
7. Representations and Warranties by Investor
|
14 | |||
|
||||
7.1 Authorization; Investors Representation; Investors Acknowledgement
|
14 | |||
|
||||
8. Covenants of the Company
|
15 | |||
|
||||
8.1 Financial Covenants
|
15 | |||
8.2 Financial Statements, Reports and Certificates
|
15 | |||
8.3 Liability Insurance
|
16 | |||
8.4 Taxes and Assessments
|
16 | |||
8.5 Maintenance of Corporate Existence
|
16 | |||
8.6 Governmental Consents
|
16 | |||
8.7 Further Assurances
|
17 | |||
8.8 Negative Covenants
|
17 | |||
8.9 Waiver
|
18 | |||
|
||||
9. Miscellaneous
|
18 | |||
|
||||
9.1 Indemnification
|
18 | |||
9.2 Waivers and Amendments
|
18 | |||
9.3 Governing Law
|
18 | |||
9.4 Entire Agreement
|
18 | |||
9.5 Notices, etc
|
18 | |||
9.6 Validity
|
19 | |||
9.7 Counterparts
|
19 | |||
9.8 Confidentiality
|
19 | |||
9.9 Assignment
|
19 | |||
9.10 JURY TRIAL WAIVER
|
19 | |||
9.11 Consequential Damages
|
19 | |||
|
||||
Exhibits
|
||||
|
(i) | control (including, with correlative meanings, controlled by and under common control with ) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise). | ||
(ii) | the Family of an individual includes (i) the individual, (ii) the individuals spouse, and (iii) any other natural person who is related to the individual or the individuals spouse within the second degree; and | ||
(iii) | " Material Interest means direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of voting securities or other voting interests representing at least ten percent (10%) of the outstanding voting power of a |
Person or equity securities or other equity interests representing at least ten percent (10%) of the outstanding equity securities or equity interests in a Person. |
COMPANY | ||||||||
|
||||||||
RealPage, Inc., a Delaware corporation | ||||||||
|
||||||||
By: | /s/ Timothy J. Barker | |||||||
Timothy J. Barker | ||||||||
Its: Executive Vice President, Chief | ||||||||
Financial Officer and Treasurer | ||||||||
|
||||||||
INVESTOR | ||||||||
|
||||||||
HV Capital Investors. L.L.C., a Michigan | ||||||||
limited liability company | ||||||||
|
||||||||
By: GWH Management, LLC | ||||||||
Its: Manager | ||||||||
|
||||||||
|
By: |
/s/ Glennon W. Healey
|
||||||
|
Glermon W. Healey | |||||||
|
Its: Manager |
COMPANY: | INVESTOR: | ||||||
|
|||||||
RealPage, Inc., a Delaware corporation |
HV Capital Investors. L.L.C., a Michigan
limited liability company |
||||||
|
|||||||
By:
|
/s/ Timothy J. Barker | By: | GWH Management, LLC | ||||
|
|
Its: | Manager | ||||
|
Its: Executive Vice President | ||||||
|
Chief Financial Officer and Treasurer | ||||||
|
|||||||
|
By: | /s/ Glennon Healey | |||||
|
|||||||
|
Glennon W. Healey | ||||||
|
Its: Manager |
1.
|
600 Blair Park Road, Suite #270 | |
|
Williston, VT 05495 | |
|
||
2.
|
4000 International Parkway | |
|
Carrollton, TX 75007 | |
|
||
3.
|
4120 International Parkway, Suite 1000 | |
|
Carrollton, Texas 75007 | |
|
||
4.
|
36 Discovery, Irvine, CA | |
|
Irvine, CA 92618 | |
|
||
5.
|
Laxmi Cyber City, 2nd Floor | |
|
Hi-tech City, Kondapur | |
|
Hyderabad, India | |
|
||
6.
|
Two Live Oak Center | |
|
3445 Peachtree Rd NE, Suite 1400 | |
|
Atlanta, GA 30326 | |
|
||
7.
|
In addition, certain computers and telecommunications equipment will be in the possession of certain employees at sites in states other than those listed above. |
SECURED PROMISSORY NOTE | ||
US $5,000,000 | Date as of , 2008 |
Prepayment Date | Multiplier | |||
On or prior to July 31, 2009
|
4 | % | ||
After July 31, 2009,
but on or prior to July 31, 2010
|
3 | % | ||
After July 31, 2010,
but on or prior to July 31, 2011
|
2 | % | ||
After July 31, 2011,
but on or prior to July 31, 2012
|
1 | % | ||
Thereafter
|
0 | % |
By: | ||||
Timothy J. Barker | ||||
Its: Executive Vice President,
Chief Financial Officer and Treasurer |
2.1 | Negative Covenants . |
2.1.1 | The following shall be added as Section 8.8.12 of the Note Purchase Agreement: | ||
8.8.12 So long as any Subordinated Promissory Notes of the Company dated December 31, 2008 (the Subordinated Notes ) remain outstanding, the Company may make any Quarterly Payments or Additional Payments (each as defined in the Subordinated Notes) or any other payments otherwise permitted thereunder ( Subordinated Note Payments ) only if, both before and after giving pro forma effect to any such Subordinated Note Payment, the Company: (i) is not in default under this Agreement or any Ancillary Agreement; (ii) maintains (measured as of the end of the most recent month) a ratio of Funded Debt minus Excess Cash to EBITDA of not more than 3.0 to 1.0. For purposes of this Section 8.8.12(ii), EBITDA shall mean net income, plus interest expense, plus Income Taxes (hereinafter defined), plus depreciation, plus amortization, plus stock based compensation, plus non cash non recurring expenses for purchase accounting adjustment for deferred revenue, plus non cash non recurring expenses for an impairment charge on an asset, measured on an annualized trailing twelve (12) month basis; (iii) is in compliance with the terms of the loan agreement, as may be amended, with the Senior Lender; and (iv) the Average Cash Balance must be at least Three Million Dollars ($3,000,000) prior to making any payment under the Subordinated Notes. Average Cash Balance means the three (3) month average of cash as shown on the monthly balance |
sheet required to be delivered to Investor. For purposes of this Subsection 8.8.12 only, Funded Debt shall not include the outstanding amount due by the Company under the Subordinated Notes. | |||
2.1.2 | The following shall be added as Section 8.8.13 of the Note Purchase Agreement: | ||
8.8.13 Subordinated Debt Payment may only be made if the amount of such Subordinated Debt Payment, plus the sum of all other Subordinated Debt Payments made on or after October 1, 2008, would not exceed Cumulative Net Cash Flow plus One Million Dollars ($1,000,000). Cumulative Net Cash Flow means EBITDA, less interest expense, less Capital Expenditures, less payment under any Funded Debt, less payments under Purchase Obligations, less Income Taxes paid, measured on a cumulative basis for the period beginning on October 1, 2008 and ending on the last day of the month before the date of any proposed Subordinated Note Payment. Capital Expenditures shall mean any amounts paid in respect of any purchase or other acquisition for value of fixed or capital assets; provided that in no event shall Capital Expenditures include amounts expended in respect of normal repair and maintenance of plant facilities, machinery, fixtures and other like capital assets utilized in the ordinary conduct of business (to the extent such amounts would not be capitalized in preparing a balance sheet determined in accordance with GAAP). Purchase Obligations means any future payments that are due to previous owners of companies acquired by the Company, including but not limited to, escrow payments and earn-out payments. Income Taxes shall mean for any period the aggregate amount of taxes based on the income or profits of the Company for such period, determined in accordance with GAAP. |
RealPage, Inc.
|
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | CFO | |||
HV Capital Investors, L.L.C.
By: GWH Management, LLC Its: Manager |
||||
By: | /s/ Glennon Healey | |||
Glennon W. Healey | ||||
Its: Manager | ||||
$ | Carrollton, Texas | |
December 31, 2008 |
REALPAGE, INC.
|
||||
By: | ||||
Stephen T. Winn | ||||
Chief Executive Officer | ||||
Holder | Principal Amount | Additional Amount | ||||||
|
||||||||
Advance Capital Partners, L.P.
|
$ | 780,322.89 | $ | 72,795.12 | ||||
|
||||||||
Advance Capital Offshore Partners, L.P.
|
$ | 244,724.71 | $ | 22,829.88 | ||||
|
||||||||
Apax Excelsior VI, L.P.
|
$ | 3,114,312.75 | $ | 290,530.00 | ||||
|
||||||||
Apax Excelsior VI-A, C.V.
|
$ | 254,395.03 | $ | 23,732.00 | ||||
|
||||||||
Apax Excelsior VI-B, C.V.
|
$ | 169,475.67 | $ | 15,810.00 | ||||
|
||||||||
Patricof Private Investment Club III, L.P.
|
$ | 106,423.97 | $ | 9,928.00 | ||||
|
||||||||
Camden Partners Strategic Fund III, L.P.
|
$ | 105,035.28 | $ | 9,792.00 | ||||
|
||||||||
Camden Partners Strategic Fund III-A, L.P.
|
$ | 4,376.67 | $ | 408.00 | ||||
|
||||||||
Seren Capital, Ltd.
|
$ | 3,501,165.28 | $ | 326,400.00 | ||||
|
||||||||
Seren Capital, Ltd.
|
$ | 1,056,936.62 | $ | 98,600.00 | ||||
|
$ |
Carrollton, Texas
December 31, 2008 |
REALPAGE, INC.
|
||||
By: | ||||
Stephen T. Winn | ||||
Chief Executive Officer | ||||
Holder | Principal Amount | |||
Apax Excelsior VI, L.P.
|
$ | 599,320.75 | ||
Apax Excelsior VI-A, C.V.
|
$ | 48,955.62 | ||
Apax Excelsior VI-B, C.V.
|
$ | 32,613.62 | ||
Patricof Private Investment Club III, L.P.
|
$ | 20,480.37 | ||
Camden Partners Strategic Fund III, L.P.
|
$ | 589,672.59 | ||
Camden Partners Strategic Fund III, L.P.
|
$ | 235,685.19 | ||
Camden Partners Strategic Fund III-A, L.P.
|
$ | 24,506.48 | ||
Camden Partners Strategic Fund III-A, L.P.
|
$ | 9,794.53 |
$ | Carrollton, Texas | |
April 23, 2010 |
2
3
REALPAGE, INC.
|
||||
By: | ||||
Stephen T. Winn | ||||
Chief Executive Officer | ||||
4
Holder | Principal Amount | |||
|
||||
Advance Capital Partners, L.P.
|
$ | 32,198.76 | ||
|
||||
Advance Capital Offshore Partners, L.P.
|
$ | 10,098.12 | ||
|
||||
Apax Excelsior VI, L.P.
|
$ | 128,506.80 | ||
|
||||
Apax Excelsior VI-A, C.V.
|
$ | 10,497.19 | ||
|
||||
Apax Excelsior VI-B, C.V.
|
$ | 6,993.09 | ||
|
||||
Patricof Private Investment Club III, L.P.
|
$ | 4,392.20 | ||
|
||||
Camden Partners Strategic Fund III, L.P.
|
$ | 42,613.75 | ||
|
||||
Camden Partners Strategic Fund III, L.P.
|
$ | 4,261.19 | ||
|
||||
Camden Partners Strategic Fund III-A, L.P.
|
$ | 1,772.41 | ||
|
||||
Camden Partners Strategic Fund III-A, L.P.
|
$ | 178.42 | ||
|
||||
Seren Capital, Ltd.
|
$ | 142,027.72 | ||
|
||||
Seren Capital, Ltd.
|
$ | 43,612.94 | ||
|
||||
Stephen T. Winn
|
$ | 2,959.41 | ||
|
||||
Timothy J. Barker
|
$ | 1,849.50 | ||
|
||||
Jeffrey T. Leeds
|
$ | 649.46 |
1. | Amendment. |
a. | The legend in the first paragraph of each Note is hereby amended and restated in its entirety as follows: | ||
RIGHTS OF THE HOLDER TO RECEIVE PAYMENT ARE SUBJECT AND SUBORDINATE TO THE PRIOR PAYMENT OF ALL OBLIGATIONS OF THE CORPORATION TO THE SENIOR SECURED PARTIES, AS DEFINED IN AND PURSUANT TO THE TERMS OF A SUBORDINATION AGREEMENT OF EVEN DATE HEREWITH, AMONG THE CORPORATION, THE HOLDER AND THE OTHER CREDITORS (AS DEFINED THEREIN) AND WELLS FARGO FOOTHILL, LLC, AS AGENT FOR THE SENIOR SECURED PARTIES, AS WELL AS BEING SUBORDINATE TO THE PRIOR PAYMENT OF |
ALL OBLIGATIONS OF THE CORPORATION TO HV CAPITAL INVESTORS, L.L.C., PURSUANT TO THE TERMS HEREOF. THIS SUBORDINATED PROMISSORY NOTE SHALL AT ALL TIMES BE UNSECURED. | |||
b. | Clause (iii) of the definition of Maturity Date in the third paragraph of each Note is hereby amended and restated in its entirety as follows: | ||
"(iii) October 1, 2013. |
REALPAGE, INC.
|
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | EVP and CFO | |||
NOTEHOLDERS: | ||||||
|
||||||
|
||||||
|
||||||
Apax Excelsior VI, L.P. | ||||||
|
||||||
|
By: | /s/ Christian Stahl | , its General Partner | |||
|
||||||
By: | Christian Stahl | |||||
Title: | Partner | |||||
|
||||||
|
||||||
|
Attention: | |||||
|
Telecopy: | |||||
Apax Excelsior VI-A. C.V. | ||||||
|
||||||
|
By: | /s/ Christian Stahl | , its General Partner | |||
|
||||||
By: | Christian Stahl | |||||
Title: | Partner | |||||
|
||||||
|
||||||
|
Attention: | |||||
|
Telecopy: | |||||
Apax Excelsior VI-B C.V. | ||||||
|
||||||
|
By: | /s/ Christian Stahl | , its General Partner | |||
|
||||||
By: | Christian Stahl | |||||
Title: | Partner | |||||
|
||||||
|
||||||
|
Attention: | |||||
|
Telecopy: | |||||
NOTEHOLDERS: | ||||||
|
||||||
|
||||||
|
||||||
Patricof Private Investment Club III, L.P. | ||||||
|
||||||
|
By: | /s/ Christian Stahl | , its General Partner | |||
|
||||||
By: | Christian Stahl | |||||
Title: | Partner | |||||
|
||||||
|
||||||
|
Attention: | |||||
|
Telecopy: | |||||
NOTEHOLDERS: | ||||||
|
||||||
|
||||||
|
||||||
Seren Capital Ltd. | ||||||
|
||||||
|
By: | /s/ Stephen T. Winn | , its General Partner | |||
|
||||||
By: | Stephen T. Winn | |||||
Title: | Sole Manager and President | |||||
|
||||||
|
||||||
|
Attention: | |||||
|
Telecopy: | |||||
NOTEHOLDERS: | ||||||
|
||||||
|
||||||
|
||||||
Camden Partners Strategic Fund III, L.P. | ||||||
|
||||||
By: Camden Partners Strategic III, LLC | ||||||
Its: General Partner | ||||||
|
||||||
By: Camden Partners Strategic Manager, LLC | ||||||
Its: Managing Member | ||||||
|
||||||
By: | /s/ Richard M. Berkeley | |||||
Richard M. Berkeley | ||||||
Managing Member | 9/1/09 | |||||
|
||||||
|
||||||
Camden Partners Strategic Fund III-A, L.P. | ||||||
|
||||||
By: Camden Partners Strategic III, LLC | ||||||
Its: General Partner | ||||||
|
||||||
By: Camden Partners Strategic Manager, LLC | ||||||
Its: Managing Member | ||||||
|
||||||
|
By: | /s/ Richard M. Berkeley | ||||
|
||||||
Richard M. Berkeley | ||||||
Managing Member | 9/1/09 |
Schedule of Notes
Noteholder
Original Principal Amount of Note
$
244,724.71
$
780,322.89
$
3,114,312.75
$
599,320.75
$
254,395.03
$
48,955.62
$
169,475.67
$
32,613.62
$
105,035.28
$
589,672.59
$
235,685.19
$
4,376.67
$
9,794.53
$
24,506.48
$
20,480.37
$
106,423.97
$
1,056,936.62
$
3,501,165.28
$
10,898,198.02
July 23, 1999
RealPage, Inc., a Texas corporation
4000 International Parkway, Suite 1000
Carrollton, Texas 75007
Stephen T. Winn Telephone: 972-250-8202
CB Parkway Business Center V, LTD., a Texas limited partnership
2200 Ross Avenue, Suite 4800 West
Dallas, Texas 75201
Becky Rowland Telephone: (214) 754-1751
Suite No. 1000, in the office building (the
Building
) located or to be
located on the land described as International Business Park (the
Park
)
located in the cities of Plano and Carrollton, Collin and Denton Counties,
Texas (as delineated on the masterplan attached to the Lease as
Exhibit
A-1
), and whose street address is 4000 International Parkway, Carrollton,
Texas 75007, as particularly described in
Exhibit A-2
(the
Land
). The
Building, Land and those rights which will be evidenced by a Reciprocal
Easement and Maintenance Agreement in the form attached as
Exhibit F-1
,
together comprise the
Project
. The Premises are outlined on the plan
attached to the Lease as
Exhibit A
and shall contain approximately 98,223
square feet of rentable area (
Rentable Square Feet
or singularly
Rentable Square Foot
). The Building contains approximately 154,298 of
total square feet of rentable area (
Total Rentable Square Feet
or
singularly
Total Rentable Square Foot
). As soon as reasonably
practicable after the work described in
Exhibit D
has been Substantially
Completed, the rentable area shall be calculated and confirmed by
Landlords architect utilizing the American National Standard Method for
Measuring Floor Area in Office Buildings, ANSI Z65.1 1996, as adopted by
the Building Owners and Managers Association International (
BOMA
) and
the actual Rentable Square Feet, Total Rentable Square Feet and Tenants
Proportionate Share shall be adjusted as necessary based upon such
calculations. Landlord will provide Tenant a copy of all measurements of
the Premises, and the
Annual Rate | ||||||||||||
per Rentable | Chargeable | Basic Monthly | ||||||||||
Months | Square Foot | Square Feet | Rental | |||||||||
1
|
$ | 16.50 | 50,000 | $ | 68,750.00 | |||||||
2 7
|
$ | 16.50 | 70,000 | $ | 96,250.00 | |||||||
8 24
|
$ | 16.50 | 98,223 | $ | 135,056.63 | |||||||
25 60
|
$ | 21.00 | 98,223 | $ | 171,890.25 | |||||||
61 120
|
$ | 24.00 | 98,223 | $ | 196,446.00 |
Security Deposit:
|
$96,250.00 due upon execution of the Lease as referenced in Section 5 of the Lease | |
|
||
Rent:
|
Rent is defined as Basic Rental, Tenants share of Electrical Costs, Excess (if any), and all other sums that Tenant may owe to Landlord under the Lease. | |
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Permitted Use:
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General office use. | |
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Tenants Proportionate
Share:
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Tenants Proportionate Share is 45.36676% (which is the percentage obtained by dividing the Rentable Square Feet by the Total Rentable Square Feet). Tenants Proportionate Share is subject to adjustment upon confirmation of the Rentable Square Feet and Total Rentable Square Feet as provided above. Tenants Proportionate Share shall increase to 63.65799% upon the eighth month of the Term. | |
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Construction Allowances:
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$25.00 per Rentable Square Foot within the Premises. | |
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Comparable Buildings:
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As used herein or in the Lease, the term Comparable Buildings shall mean those low-rise garden style, multi-tenant, commercial office buildings completed on or after January 1, 1997, which are comparable to the Building in size, design, quality, use, and tenant mix, and which are located in the same market area (i.e., Plano area North of Frankford, East of 1-35E, West of Preston Road and South |
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of State Hwy. 121). | |
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Guaranty:
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Stephen T. Winn shall execute and deliver to Landlord, contemporaneously with the execution of this Lease, the Guaranty attached hereto as Exhibit K . |
LANDLORD:
CB PARKWAY BUSINESS CENTER V, LTD., a Texas limited partnership |
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By: 15BCO, Inc., a Texas corporation, its general partner | ||||||
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By: | /s/ Barbara A. Erhart | ||||
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Name: | Barbara A. Erhart | ||||
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Title: | Vice President | ||||
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TENANT:
REALPAGE, INC., a Texas corporation |
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By: | /s/ Stephen T. Winn | ||||
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Name: | Stephen T. Winn | ||||
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Title: | Chairman of the Board |
DEFINITIONS AND
BASIC PROVISIONS |
1. The definitions and basic provisions set forth in the Basic Lease Information (the Basic Lease Information ) executed by Landlord and Tenant contemporaneously herewith are incorporated herein by reference for all purposes. To the extent of any direct conflict between the Basic Lease Information and any provision contained in this Lease, this Lease shall control. | |
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LEASE GRANT
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2. Subject to the terms of this Lease, Landlord leases to Tenant, and Tenant leases from Landlord, the Premises. | |
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TERM
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3. The Term shall commence September 1, 1999, subject to adjustment as provided in Exhibit D , and end at 11:59 p.m. one hundred twenty (120) months after the Commencement Date as so adjusted, subject to renewal options as provided in Exhibit E . The targeted date for Substantial Completion ( Target Completion Date ) is now October 15, 1999. Landlord shall deliver possession of the entire Premises to Tenant upon Substantial Completion of the Initial Improvements. Landlord shall provide Tenant access to the Premises prior to Substantial Completion for the purpose of installing Tenants communication and data cables, furniture and other equipment, and otherwise preparing for Tenants occupancy of the Premises. Tenant shall not interfere with Landlords contractor in its performance of the Work described in Exhibit D and shall obtain any and all governmental permits and approvals as required prior to such installation. Tenants access to the Premises prior to Substantial Completion shall be subject to the terms and conditions in this Lease other than the payment of Rent. The Basic Monthly Rental shall be as specified in the Basic Lease Information regardless of the amount of Rentable Square Feet occupied and used by Tenant. By occupying the Premises, Tenant shall be deemed to have accepted the Premises in their condition as of the date of such occupancy, subject to Landlords completion of any work required by Exhibit D hereto or related punch list items. Tenant shall execute and deliver to Landlord, within ten (10) days after Landlord has requested same, a letter confirming (1) the Commencement Date, (2) that Tenant has occupied the Premises, and (3) if true, that as of the date of such letter Landlord has performed all of its obligations with respect to the Premises that are due to be performed through such date. | |
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RENT
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4. (a) Payment . Tenant shall timely pay to Landlord the |
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Rent without deduction or set off (except as otherwise expressly provided herein), at Landlords Address (or such other address as Landlord may from time to time designate in writing to Tenant). Basic Rental, adjusted as herein provided, shall be payable monthly in advance. The first full monthly installment of Basic Rental shall be payable contemporaneously with the execution of this Lease; thereafter, monthly installments of Basic Rental shall be due on the first day of each succeeding calendar month during the Term. Basic Rental for any partial month at the beginning or end of the Term shall be prorated based upon the number of days within the Term during the partial month multiplied by 1/365 of the then current annual Basic Rental and shall be due on or before the Commencement Date, or first day of the last calendar month of the Term, as applicable. | |
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(b) Electrical Costs . Tenant shall pay to Landlord an amount equal to the product of (1) the cost of all electricity used by the Project ( Electrical Costs ), multiplied by (2) Tenants Proportionate Share. Such amount shall be payable monthly based on Landlords reasonable estimate of the amount due for each month, and shall be due on the Commencement Date and on the first day of each calendar month thereafter. | |
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(c) Annual Electrical Cost Statement . By April 1 of each calendar year, or as soon thereafter as practicable, Landlord shall furnish to Tenant a statement of Landlords actual Electrical Costs (the Annual Electrical Cost Statement ) for the previous year adjusted as provided in Section 4.(d), which shall include a reconciliation of the actual amount Tenant owes for its share of Electrical Costs against the estimated amount collected from Tenant. If such reconciliation shows that Tenant paid more than owed, then Landlord shall reimburse Tenant by check or cash for such excess within thirty (30) days after delivery of the Annual Electrical Cost Statement; conversely, if Tenant paid less than it owed, then Tenant shall pay Landlord such deficiency within thirty (30) days after delivery of the Annual Electrical Cost Statement. | |
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(d) Adjustments to Electrical Costs . With respect to any calendar year or partial calendar year in which the Building is not occupied to the extent of 95% of the rentable area thereof, the Electrical Costs for such period shall, for the purposes hereof, be increased to the amount which would have been incurred had the Building been occupied to the extent of 95% of the rentable area thereof . | |
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(e) Delinquent Payment . Subject to the one-time |
exception provided below,
if any payment required by Tenant under this Lease is not paid when due,
Landlord may charge Tenant a fee equal to 5% of the delinquent payment to
reimburse Landlord for its cost and inconvenience incurred as a consequence
of Tenants delinquency. Said late charge shall be waived one time during
any consecutive twelve (12) month period (i.e., upon waiver of a late
charge, it shall not again be waived until at least twelve (12) months has
passed since the late charge was waived) provided full payment is received
by Landlord within ten (10) business days of notice as provided within
15(a) written below. In no event shall the charges permitted under this
Section 4.(e) or elsewhere in this Lease, to the extent the same are
considered to be interest under applicable law, exceed the maximum lawful
rate of interest.
(f)
Taxes
. Tenant shall be liable for all taxes levied or assessed against
personal property, furniture, or fixtures placed by Tenant in the Premises.
If any taxes for which Tenant is liable are levied or assessed against
Landlord or Landlords property and Landlord elects to pay the same, or if
the assessed value of Landlords property is increased by inclusion of such
personal property, furniture or fixtures and Landlord elects to pay the
taxes based on such increase, then Tenant shall pay to Landlord, within ten
(10) days of demand, that part of such taxes for which Tenant is primarily
liable.
(g)
Excess
. Tenant shall pay the Excess in the Basic Cost over the Expense
Stop as such terms are defined in
Exhibit C
.
5. Contemporaneously with the execution of this Lease, Tenant shall pay to
Landlord, in immediately available funds, the Security Deposit, which shall
be held by Landlord without liability for interest and as security for
performance by Tenant of its obligations under this Lease. The Security
Deposit is not an advance payment of Rent or a measure or limit of
Landlords damages upon an Event of Default (defined below). Landlord may,
from time to time, upon written notice to Tenant and without prejudice to
any other remedy, use, all or a part of the Security Deposit to perform any
obligation which Tenant was obligated, but failed to perform hereunder.
Following any such application of the Security Deposit, Tenant shall pay to
Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount. Within thirty (30) days after the
expiration of the Term, as may have been extended, provided Tenant has
performed all of its obligations hereunder, Landlord shall return to Tenant
the balance of the Security Deposit not applied to satisfy Tenants
obligations. If Landlord transfers its interest in the Premises,
then
Landlord shall assign the Security Deposit to the transferee and Landlord
thereafter shall have no further liability for the return of the Security
Deposit to Tenant.
6. (a)
Services; Maintenance
. Landlord shall furnish to Tenant (1) potable
water (hot and cold) at those points of supply provided for general use of
tenants of the Building; (2) heated and refrigerated air conditioning from
7 a.m. to 7 p.m. Monday through Friday and 7 a.m. to 1 p.m. on Saturday
(except for New Years Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving, and the Friday following Thanksgiving Day and Christmas Day
[which days shall be collectively referred to herein as
Holidays
])
sufficient to maintain temperatures during these hours as follows: (a) in
the winter a minimum of 70 degrees Fahrenheit dry bulb when the outside
temperatures is not less than 10 degrees Fahrenheit dry bulb and (b) in the
summer a maximum of 78 degrees Fahrenheit dry bulb when the outside
temperature is not more than 100 degrees Fahrenheit dry bulb, in each case
for those portions of the Premises in which temperature is not affected by
computer and other heat generating equipment (other than desk top laser
printers, personal computers and other machines of similar low electrical
consumption except in areas where more than two (2) such machines operate
per employee desk); (3) janitorial service to the Premises on weekdays
other than Holidays (Landlord reserves the right to bill Tenant separately
for extra janitorial service required for any special improvements
installed by or at the request of Tenant) and such window washing as may
from time to time in Landlords judgment be reasonably required, such
janitorial services to be generally in accordance with those services
described on
Exhibit G
; (4) non-exclusive elevator for ingress and egress
to the floors on which the Premises are located; (5) replacement of
Building-standard light bulbs and fluorescent tubes, provided that
Landlords standard charge for such bulbs and tubes shall be paid by
Tenant; and (6) electrical current (subject to Tenants obligation to pay
its share of Electrical Costs as provided herein). If Tenant desires heat
and air conditioning at any time other than times herein designated, such
services shall be supplied to Tenant upon reasonable advance notice and
Tenant shall pay to Landlord $20.00 per hour per floor (minimum two hours)
for each additional hour (prorated and rounded up to the nearest quarter
hour) such services are provided, such amount being payable within ten (10)
days of receipt of an invoice therefor. Landlords obligation to furnish
services under this Section shall be subject to the rules, regulations and
other conditions or requirements of the supplier of such services and any
applicable governmental entity or agency.
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(b) Maintenance . Landlord shall maintain all Shell Construction (as defined on Exhibit D-1 to the Lease) items, Building Systems (defined below), and Building common areas including all parking areas and landscaping, in good order and condition as customary for Comparable Buildings. Building Systems shall include all electrical, plumbing, and air conditioning systems within the Building which either were included in the Shell Construction or which were installed by Tenant pursuant to this Lease and which meet the following requirements: (i) properly approved by Landlord; (ii) installed in conformance with all plans and specifications as approved by Landlord; (iii) Tenant shall have informed Landlord in writing of the name, address, phone number and contact person of the contractor responsible for the installation of such system; (iv) Tenant shall have assigned in writing all contractors and manufacturers warranties received by Tenant in connection with such system; and (v) in connection with Tenants contracting for the installation thereof, Landlord shall have been expressly named as a third party beneficiary to, and shall have been provided copies of, such contract and any related warranties. Notwithstanding the foregoing, Building Systems shall not include any improvements made to or within the Premises which differ from the base building systems; are otherwise specialized to Tenants use and occupancy of the Premises and not customary for office tenants in Comparable Buildings, and the supplemental HVAC units installed pursuant to Section 23(s). Any such improvement shall be maintained and repaired by Tenant, at its sole cost and expense, with contractors and subcontractors approved by Landlord in writing and otherwise in accordance with the provisions of Subsections 7(b) and 7(d) below. Landlord agrees to provide services and to maintain the Building in a manner consistent with the services and maintenance provided to office tenants in Comparable Buildings; provided, however, all costs and expenses associated with the maintenance, repair and/or replacement of any item, element or component of Building Systems which was installed by or at the request of Tenant (except as approved above) shall be borne solely by Tenant, and Tenant agrees to reimburse Landlord for all such costs and expenses within fifteen (15) days after receipt of an invoice therefor. | |
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(c) Excess Electrical Use . Landlord shall use reasonable efforts to furnish electrical current for computers, electronic data processing equipment, special lighting, or other equipment that requires more than 120 volts, or other equipment whose electrical energy consumption exceeds normal office usage, through any existing feeders and risers serving the Building and the Premises. Tenant shall |
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not install any electrical equipment requiring special wiring or requiring voltage in excess of 120 volts or otherwise exceeding Building capacity unless approved in advance by Landlord, which approval will not be unreasonably delayed, withheld or conditioned. To the extent Tenants use of such items, as reasonably determined by Landlord and Tenants representative, exceeds the normal and customary electrical use and consumption of any other tenants or occupants within the Building, Landlord may reasonably allocate to and charge Tenant, in addition to Tenants Proportionate Share of Electrical Costs, for such additional electrical use and consumption on any fair and equitable basis and may require that separate metering or sub-metering be installed, at Tenants expense, for such purpose. In a like fashion, Landlord shall allocate to and charge other tenants of the Building for their respective excess electrical use. The use of electricity in the Premises shall not exceed the capacity of existing feeders and risers to or wiring in the Premises. Any risers or wiring required to meet Tenants excess electrical requirements shall, upon Tenants request, be installed by Landlord (unless otherwise agreed by Landlord) at Tenants expense, if, in Landlords sole and absolute judgment, the same are necessary and shall not cause permanent damage or injury to the Building or the Premises, cause or create a dangerous or hazardous condition, entail excessive or unreasonable alterations, repairs, or expenses, or unreasonably interfere with or disturb other tenants of the Building. If Tenant uses machines or equipment (other thin general office machines, excluding computers and electronic data processing equipment) in the Premises which affect the temperature otherwise maintained by the air conditioning system or otherwise overload any utility, after thirty (30) days written notice to Tenant, during which time Tenant shall have the opportunity to cease such overload activities or agree to provide the supplement necessary, and if Tenant fails to do either then, Landlord may install supplemental air conditioning units or other supplemental equipment in the Premises, and the cost thereof, including the cost of installation, operation, use, and maintenance, shall be paid by Tenant to Landlord within ten (10) days after Landlord has delivered to Tenant an invoice therefor. Supplemental Equipment (as defined in section 23(s)) shall be separately metered and the electrical cost associated therewith borne solely by Tenant. At the time of Tenants submission of plans and specifications for Landlords approval pursuant to Section 7 herein and/or Exhibit D to this Lease, Landlord and Tenant shall cooperate in good faith to identify any fixtures, equipment and/or appliances to be installed or placed in the Premises which fixtures, equipment or appliances would exceed the normal and customary electrical use and consumption of typical office tenants in Comparable Buildings, would affect the temperature otherwise maintained by the air conditioning |
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system, or would require electric capacity in excess of any planned or existing feeders, risers, or wiring to the Premises. If it is determined such fixtures, equipment or appliances exceed normal office usage, then Tenant shall at its cost and at Landlords request, provide reports detailing such excess use and or install separate meters as reasonably required. | |
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(d) Restoration of Services; Abatement . Landlord shall use reasonable efforts to restore any service that becomes unavailable; however, such unavailability shall not render Landlord liable for any damages caused thereby, be a constructive eviction of Tenant, constitute a breach of any implied warranty, or, except as provided in the next sentence, entitle Tenant to any abatement of Tenants obligations hereunder. However, if Tenant is prevented from making reasonable use of all or a portion of the Premises for more than five (5) consecutive business days because of the unavailability of any such service, Tenant shall, as its exclusive remedy therefor, be entitled to abatement of Rent, or the pro rata portion thereof equivalent to the portion of the Premises rendered unusable to the entire Premises, for each consecutive day (after such five (5) business day period) that Tenant is so prevented from making reasonable use of the Premises or the applicable portion thereof. | |
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(e) Access . Subject to any Building rules and regulations, necessary repairs and maintenance, and any events beyond Landlords reasonable control which would prevent access, Tenant shall have access to the Premises twenty-four (24) hours a day, seven (7) days a week. The Building shall include twenty-four (24) hour access by security card which cards shall be provided to Tenant upon payment of a $10 refundable deposit per card. Tenant may install its own, independent security card system for controlling access to, from and within the Premises, and Landlord shall, to the extent reasonably practicable, work with Tenant to integrate Tenants card access system with the Building card access system so that the access control system at the main entrance to the Building could be operated by Tenants access cards as well as Landlords access cards. Tenant shall provide Landlord, at no cost to Landlord, not less than two (2) master access cards to Tenants security card system which will permit Landlord access to all portions of the Premises at all times. An on-site security patrol (within and for the benefit of the entire International Business Park of which the Building is a part and not solely within or for the sole benefit of the Building) will be provided for approximately ten (10) hours per night, seven (7) nights per week. Such patrol will provide escort service to Tenants employees to and from the Building and the Parking Area |
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relate, for any use, purpose, or condition, but such approval shall merely be the consent of Landlord as required hereunder. Landlord warrants and agrees that it shall complete the Building Shell Construction in compliance with all then applicable governmental laws, rules and regulations, including not by limitation the Americans with Disabilities Act of 1990 ( ADA ) and Texas Accessibility Standards adopted by the Texas Commission on Licensing and Regulation ( TAS ) Thereafter, notwithstanding anything in this Lease to the contrary, Tenant shall be responsible for all costs incurred (as provided in Section 2.(c) of Exhibit C) to cause the Premises to comply with any such laws, rules or regulations, including not by limitation the retrofit requirements of ADA and TAS, as the same may be hereafter amended. | |
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(b) Tenant Repairs; Maintenance . Except for those janitorial services to be provided by Landlord as expressly provided in this Lease, Tenant shall, at Tenants cost, maintain its personal property (inclusive of supplemental air conditioning units and all improvements or alterations to the Premises other than those items included in Shell Construction (including all heating, ventilation and air conditioning systems ( HVAC ) as described in Exhibit D-1 from the point of supply to the point of entry into the Premises) which shall be maintained by Landlord in a clean, safe, operable, attractive condition, and shall not permit or allow to remain any waste or damage to any portion of the Premises. Subject to the provisions of Sections 10(b) and 14, and normal wear and tear. Tenant shall repair or replace, subject to Landlords direction and supervision, any damage to the Project caused by Tenant or Tenants agents, contractors, or invitees. If Tenant fails to commence such repairs or replacements within fifteen (15) days after the occurrence of such damage and diligently continue to repair such damage, then Landlord, upon written notice to Tenant, may make the same at Tenants expense, which shall be payable to Landlord within ten (10) days after Landlord has delivered to Tenant an invoice therefor. | |
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(c) Performance of Work . All work described in this Section 7 shall be performed only by Landlord or by contractors and subcontractors approved in writing by Landlord. Tenant shall cause all contractors and subcontractors to procure and maintain insurance coverage against such risks, in such amounts, and with such companies as Landlord may reasonably require. All such work shall be performed in accordance with all legal requirements and in a good and workmanlike manner so as not to damage the Premises, the structure of the Building, or plumbing, electrical lines, or other utility transmission facilities or Building mechanical systems. All such work which may affect the Buildings electrical, mechanical, plumbing or other systems |
must be approved by the Buildings engineer of record.
(d)
Mechanics Liens
. Tenant shall not permit any mechanics liens to be
filed against the Project for any work performed, materials furnished, or
obligation incurred by or at the request of Tenant. If such a lien is
filed, then Tenant shall, within thirty (30) days after Landlord has
delivered notice of the filing to Tenant, either pay the amount of the lien
or diligently contest such lien and deliver to Landlord a bond or other
security reasonably satisfactory to Landlord. If Tenant fails to timely
take either such action, then Landlord may pay the lien claim without
inquiry as to the validity thereof, and any amounts so paid, including
expenses and interest, shall be paid by Tenant to Landlord within ten (10)
days after Landlord has delivered to Tenant an invoice therefor.
8. Tenant shall occupy and use the Premises only for the Permitted Use and
shall comply with all laws, orders, rules, and regulations relating to the
use, condition, and occupancy of the Premises. General Office use includes
but is not limited to operation of a data center, computer room, customer
training center and software reproduction, packaging and shipping center;
software development; web page design and hosting; product support; sales
and administration; with some functions operational 24 hours per day, 7
days per week. The Premises shall not be used for (i) any use which is
disreputable, (ii) creates extraordinary fire hazards, (iii) results in an
increased rate of insurance on the Building or its contents, or (iv) the
storage of any hazardous materials or substances in violation of
environmental laws. If, because of Tenants acts, unless Tenant pays such
increased rate as provided below, the rate of insurance on the Building or
its contents increases, Tenant shall pay to Landlord the amount of such
increase on demand, and acceptance of such payment shall not constitute a
waiver of any of Landlords other rights. Tenant shall conduct its
business and control its agents, employees, and invitees in such a manner
as not to create any nuisance or interfere with other tenants or Landlord
in its management of the Project. Landlord agrees not to lease space in
the Project to a competitor of Tenant (as described in Section 23(u))
during the term of this Lease, including any renewals or extensions.
SUBLETTING
9. (a)(i)
Transfers: Consent
. Other than Permitted Transfers as described
below, Tenant shall not, without the prior written consent of Landlord
which shall not be unreasonably withheld or delayed, (1) advertise that any
portion of the Premises is available for lease (excluding the engagement of
a real estate broker(s) to market sublease space), (2) assign, transfer, or
encumber this Lease or any
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estate or interest herein whether directly or by operation of law, (3) if Tenant is an entity other than a corporation whose stock is publicly traded, permit the transfer of an ownership interest in Tenant so as to result in a change in the current control of Tenant, (4) sublet any portion of the Premises, (5) grant any license, concession, or other right of occupancy of any portion of the Premises, or (6) permit the use of the Premises by any parties other than Tenant (any of the events listed in Sections 9.(a)(2) through 9.(a)(6) being a Transfer ). If Tenant requests Landlords consent to a Transfer, then Tenant shall provide Landlord with a written description of all terms and conditions of the proposed Transfer, copies of the proposed documentation, and the following information about the proposed transferee: name and address; reasonably satisfactory information about its business and business history; its proposed use of the Premises; and general references sufficient to enable Landlord to determine the proposed transferees reputation and character. Landlord shall respond in writing to Tenants request for a Transfer within ten (10) business days of receipt of written request therefor. Tenant shall reimburse Landlord for its attorneys fees and other expenses incurred in connection with considering any request for its consent to a Transfer (not to exceed $500 per request). Landlord shall not unreasonably withhold, delay or condition its consent except that Landlord may withhold or condition its consent if it reasonably determines that the proposed transferee or its use (including not by limitation the number of employees, hours of operation, parking requirements, electrical or other Building System requirements, conflicts or competition with existing tenants) is unacceptable, would burden the Building, or are incompatible with the Building or its occupants. If Landlord consents to a proposed Transfer, then the proposed transferee shall deliver to Landlord a written agreement whereby it expressly assumes the Tenants obligations hereunder; however, any transferee of less than all of the space in the Premises shall be liable only for obligations under this Lease that are properly allocable to the space subject to the Transfer, and only to the extent of the rent it has agreed to pay Tenant therefor. Landlords consent to a Transfer shall not release Tenant from performing its obligations under this Lease, but rather Tenant and its transferee shall be jointly and severally liable therefor. Landlords consent to any Transfer shall not waive Landlords rights as to any subsequent Transfers. If an Event of Default occurs while the Premises or any part thereof are subject to a Transfer, then Landlord, in addition to its other remedies, may collect directly from such transferee all rents becoming due to Tenant and apply such rents against Rent. Tenant authorizes its transferees to make payments of rent directly to Landlord upon Tenants receipt of notice from Landlord to do so; however, Landlord shall not be obligated to |
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accept separate Rent payments from any transferees and may require that all Rent be paid directly by Tenant. | |
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(ii) Permitted Transfers . Tenant shall be permitted without the consent of Landlord, to periodically sublet portions of the Premises or to assign this Lease to any Affiliate of Tenant so long as the Premises continue to be used solely for the Permitted Use and the parking requirements of the subtenant or assignee are no greater than those of Tenant (such transfer being deemed a Permitted Transfer ). As used herein, Affiliate shall mean any person or entity, directly or indirectly, through one or more intermediaries, controlling, controlled by or under common control with Tenant, or any person or entity merging with Tenant, or acquiring the majority of the voting stock of Tenant, or acquiring all or substantially all of the assets of Tenant. As used herein control shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management of and policies of such controlled person or entity. Following any such assignment or subletting, Tenant shall remain primarily liable for all present and future obligations under this Lease, or if Tenant no longer exists because of a merger or acquisition, the surviving or acquiring entity shall expressly assume the obligations of Tenant hereunder. Tenant shall promptly notify Landlord in writing within ten (10) days after such assignment or subletting. | |
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(b) Additional Compensation . Tenant shall pay to Landlord, immediately upon receipt thereof, one-half ( 1 / 2 ) of all rent received by Tenant for a Transfer (other than a Permitted Transfer) that exceeds the Rent allocable to the portion of the Premises covered thereby after Tenant has recovered from any such excess all costs associated with such assignment or subletting, (i.e. marketing, advertising and promotional costs, real estate commissions, legal fees and construction costs). Tenant shall hold amounts due to Landlord hereunder in trust for Landlord and pay them to Landlord within ten (10) days after receipt. | |
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(c) Cancellation . Notwithstanding anything to the contrary herein, Landlord shall have the option, upon any request by Tenant for Landlords approval of a Transfer (i) of more than thirty percent (30%) (in the aggregate including those Transfers, then in effect and as then, requested) of the Premises and (ii) where the Basic Rental payable under the terms of all such Transfers (including the proposed Transfer) exceeds the total Basic Rental provided by the Lease, to terminate this Lease as to, and retake possession of, that portion of the Premises as would be subject to such requested Transfer. Such |
termination shall be effective as of the
date on which such Transfer was to be effective. If Landlord terminates
this Lease as to any portion of the Premises, then this Lease shall cease
for such portion of the Premises; and Tenant shall pay to Landlord all Rent
accrued through the termination date relating to the portion of the
Premises covered by the proposed Transfer and unamortized brokerage
commissions (amortized on a straight-line basis over the initial Term of
the Lease) paid or payable by Landlord in connection with this Lease to the
brokerage firms listed in Section 23. (d) that are allocable to such
portion of the Premises. Thereafter, Landlord may lease such portion of
the Premises to the prospective transferee (or to any other person) without
liability to Tenant. In such event, prior to the effective date of such
termination, and subject to Landlords direction and supervision, Tenant
shall be solely responsible for the cost and construction of a wall
demising the remaining Premises from the portion of the Premises as to
which the Lease is terminated.
10. (a)
Insurance
. Tenant shall, at its expense, procure and maintain
throughout the Term, the following insurance policies: (1) comprehensive
general liability insurance in amounts of not less than a combined single
limit of $3,000,000 (the
Initial Liability Insurance Amount
) or such
other amounts as Landlord may from time to time reasonably require,
insuring Tenant, Landlord, Landlords agents, and their respective
affiliates against all liability for injury to or death of a person or
persons or damage to property arising from the use and occupancy of the
Premises, and (2) insurance covering the full value of Tenants property
and improvements, and other property (including property of others), in the
Premises. Tenants insurance shall provide primary coverage to Landlord
when any policy issued to Landlord provides duplicate or similar coverage,
and in such circumstance Landlords policy will be excess over Tenants
policy. Tenant shall furnish certificates of such insurance and such other
evidence satisfactory to Landlord of the maintenance of all insurance
coverage required hereunder, and Tenant shall obtain a written obligation
on the part of each insurance company to notify Landlord at least thirty
(30) days before cancellation or a material change of any such insurance.
All such insurance policies shall be in form, and be issued by companies,
reasonably satisfactory to Landlord. Landlord shall maintain comprehensive
general liability insurance covering the Land and Building in amounts not
less than a combined single limit of $3,000,000 or such other amounts as
Landlord may reasonably determine.
(b)
Waiver of Claims; No Subrogation
. Neither
Landlord nor Tenant shall
have any liability to the other for any damage or injury to the property of
Landlord or Tenant, including the Building and tenant improvements in the
Premises, arising from or caused by any cause customarily insured against
under a standard fire and extended casualty insurance policy, even if
caused by the negligence of Landlord, Tenant, or their shareholders,
partners, officers and employees, and no insurer shall have any rights of
subrogation with respect to the foregoing. Landlord shall not be liable or
responsible to Tenant for any loss or damage to any property or person
occasioned by theft, fire, casualty, vandalism, acts of God, public enemy,
injunction, riot, strike, inability to procure materials, insurrection,
war, court order, requisition or order of governmental body or authority,
or for any other causes beyond Landlords control. All goods, property or
personal effects stored or placed by Tenant in or about the Building shall
be at the sole risk of Tenant.
(c)
Indemnity
. Each party shall indemnify and hold harmless the other from
and against any and all claims, demands, liabilities, causes of action,
suits, judgments and expenses (including attorneys fees) arising from or
for injury to third persons or damage to property owned by third persons
and caused by the negligence or intentional torts of the indemnifying
party.
11. (a)
Subordination
. Subject to the condition set forth in the following
sentence, this Lease shall be subordinate to any deed of trust, mortgage,
or other security instrument (a
Mortgage
), or any ground lease, master
lease, or primary lease (a
Primary Lease
/
Primary Lessor
), that now or
hereafter covers all or any part of the Premises (the mortgagee under any
Mortgage or the lessor under any Primary Lease is referred to herein as
Landlords Mortgagee
). Attached as Exhibit M is the Subordination,
Non-Disturbance and Attornment Agreement used by Landlords current
mortgages. As a condition to such subordination, Landlord shall obtain
from Landlords Mortgagee, both existing and future, and deliver to Tenant
a non-disturbance agreement for the benefit of Tenant in a form reasonably
acceptable to Landlord, Landlords Mortgagee, and Tenant.
(b)
Attornment
. Tenant shall attorn to any party succeeding to Landlords
interest in the Premises, whether by purchase, foreclosure, deed in lieu of
foreclosure, power of sale, termination of lease, or otherwise, upon such
partys request, and shall execute such agreements confirming such
attornment as such party may reasonably request.
(c)
Notice to Landlords Mortgagee
. Tenant shall not seek to enforce any
remedy it may have for any default on the part of the Landlord without
first giving written notice by certified mail, return receipt requested,
specifying the default in reasonable detail, to any Landlords Mortgagee
whose address has been given to Tenant, and affording such Landlords
Mortgagee a period to perform Landlords obligations hereunder, which
period shall equal the cure period applicable to Landlord hereunder.
REGULATIONS
12. Tenant shall comply with the rules and regulations of the Building
which are attached hereto as
Exhibit B
. Landlord may, from time to time,
change such rules and regulations for the safety, care, or cleanliness of
the Building and related facilities, provided that such changes are
applicable to all tenants of the Building and will not unreasonably
interfere with Tenants use of the Premises or add any unusual economic
burden or lessen Tenants rights under this Lease. Tenant shall be
responsible for compliance with such rules and regulations by its
employees, agents, and invitees.
13. (a)
Taking Tenants Rights
. If any part of the Project (including
parking) is taken by right of eminent domain for a period exceeding ninety
(90) days or conveyed in lieu thereof (a
Taking
), and such Taking
prevents Tenant from conducting its business from the Premises in a manner
reasonably comparable to that conducted immediately before such Taking,
then Tenant may terminate this Lease by giving written notice to Landlord
within thirty (30) days after such Taking. Upon the occurrence of a
Taking, Rent shall be abated on a reasonable basis as to that portion of
the Premises rendered untenantable by the Taking from the first day of the
Taking until such termination. If Tenant does not terminate this Lease,
then Rent shall be abated on a reasonable basis as to that portion of the
Premises rendered untenantable by the Taking. If a portion of the Premises
or Building are subject to a Taking and such Taking does not prevent Tenant
from conducting its business in a manner reasonably comparable to that
conducted immediately before such Taking, the Lease shall remain in full
force and effect and Rent shall be adjusted on a reasonable basis from the
first day of the Taking.
(b)
Taking Landlords Rights
. If any material portion, but less than
all, of the Project or related parking becomes subject to a Taking, or if
Landlord is required to pay any of the proceeds received for a Taking to
Landlords Mortgagee, then this Lease, at the option of Landlord, exercised
by written notice to Tenant within thirty
(30) days after such Taking,
shall terminate and Rent shall be adjusted on a reasonable basis from the
first day of the Taking until such termination. If a partial Taking occurs
and the Lease does not terminate, Rent shall be adjusted on a reasonable
basis from the first day of the Taking.
(c)
Award
. If any Taking occurs, all proceeds shall belong to and be paid
to Landlord, and Tenant shall not be entitled to any portion thereof except
that Tenant shall have all rights permitted under the laws of the State of
Texas to appear, claim and prove in proceedings relative to such taking (i)
the value of any fixtures, furnishings, and other personal property which
are taken but which under the terms of this Lease Tenant is permitted to
remove at the end of the Term, (ii) the unamortized cost (such costs having
been amortized on a straight-line basis over the Term excluding any renewal
terms) of Tenants leasehold improvements which are taken that Tenant is
not permitted to remove at the end of the Term and which were installed
solely at Tenants expense (i.e., not made or paid for by Landlord from the
Construction Allowance or otherwise), and (iii) relocation and moving
expenses, but not the value of Tenants leasehold estate created by this
Lease and only so long as such claims in no way diminish the award Landlord
is entitled to from the condemning authority as provided hereunder.
CASUALTY
14. (a)
Repair Estimate
. If the Premises or the Building are damaged by
fire or other casualty (a
Casualty
), Landlord shall, within sixty (60)
days after such Casualty, deliver to Tenant a good faith estimate (the
Damage Notice
) of the time needed to repair or replace the damage caused
by such Casualty.
(b)
Casualty-Tenants Rights
. If a material portion of the Premises or the
Building is damaged by Casualty such that Tenant is prevented from
conducting its business in the Premises in a manner reasonably comparable
to that conducted immediately before such Casualty and Landlord estimates
that the damage caused thereby cannot be repaired within one hundred eighty
(180) days after the date of casualty, then Tenant may terminate this
Lease. Rent for the portion of the Premises rendered untenantable by the
damage shall be abated on a reasonable basis from the date of damage until
termination. Tenant may terminate this Lease by delivering written notice
to Landlord of its election to terminate within thirty (30) days after the
Damage Notice has been delivered to Tenant. If Tenant does not terminate
this Lease, then (subject to Landlords rights under Section 14.(c))
Landlord shall repair the Building or the Premises, as the case may be, as
provided below.
Tenants share of Excess, Tenants Proportionate
Share of Electrical Costs, and similar Rent payments), then Landlords
obligation to give written notice with respect to regularly scheduled
installments of Rent shall not apply until twelve months has passed since
the last such notice was given, and in the interim, failure to pay any
regularly scheduled installments of Rent on the date due shall be an Event
of Default without Landlord having first given such notice;
(b) Tenants failure to perform, comply with, or observe any other
agreement or obligation of Tenant under this Lease (or any other lease
executed by Tenant for space in the Building), and such failure continues
for thirty (30) days after written notice thereof is received by Tenant
from Landlord; provided, that if the failure is reasonably capable of cure
but cannot reasonably be cured within said thirty (30) days, Tenant shall
have an additional period of sixty (60) days in which to effect the cure
provided Tenant commences the cure within the initial thirty days and is
diligently pursuing same;
(c) The filing of a petition by or against Tenant (the term Tenant shall
include, for the purpose of this Section 15.(c), any guarantor of the
Tenants obligations hereunder) (i) in any bankruptcy or other insolvency
proceeding; (ii) seeking any relief under any state or federal debtor
relief law; (iii) for the appointment of a liquidator or receiver for all
or substantially all of Tenants property or for Tenants interest in this
Lease; or (iv) for the reorganization or modification of Tenants capital
structure; and provided that in the case of any of the foregoing which is
filed against Tenant, the same is not dismissed within ninety (90) days
after it is filed; and,
(d) The admission by Tenant that it cannot meet its obligations as they
become due or the making by Tenant of an assignment for the benefit of its
creditors.
16. (a)
Landlords Remedies
. Upon any Event of Default by Tenant, Landlord
may, subject to any judicial process and notice to the extent required by
Title 4, Chapter 24 of the Texas Property Code, as may be amended, in
addition to all other rights and remedies afforded Landlord hereunder or by
law or equity, take any of the following actions:
(i) Terminate this Lease by giving Tenant written notice thereof, in which
event, Tenant shall pay to Landlord the sum of (1) all Rent accrued
hereunder through the date of termination, (2) all amounts due under
Section 17.(a), and (3) an amount equal to
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(A) the total Rent that Tenant would have been required to pay for the remainder of the Term discounted to present value at a per annum rate equal to the Prime Rate as published on the date this Lease is terminated by The Wall Street Journal, Southwest Edition, in its listing of Money Rates, minus (B) the then present fair rental value of the Premises for such period, similarly discounted; or | |
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(ii) Terminate Tenants right to possession of the Premises without terminating this Lease by giving written notice thereof to Tenant, in which event Tenant shall pay to Landlord (1) all Rent and other amounts accrued hereunder to the date of termination of possession, (2) all amounts due from time to time under Section 17.(a), and (3) on the applicable due date all Rent and other sums required hereunder to be paid by Tenant during the remainder of the Term, diminished by any net sums thereafter received by Landlord through reletting the Premises during such period. Landlord shall use reasonable efforts to relet the Premises on such terms and conditions as Landlord in its sole discretion may determine (including a term different from the Term, rental concessions, and alterations to, and improvement of the Premises); however, Landlord shall not be obligated to relet the Premises before leasing other portions of the Building. Landlord shall not be liable for, nor shall Tenants obligations hereunder be diminished because of, Landlords failure to relet the Premises or to collect rent due for such reletting. Tenant shall not be entitled to the excess of any consideration obtained by reletting over the Rent due hereunder. Re-entry by Landlord in the Premises shall not affect Tenants obligations hereunder for the unexpired Term; rather, Landlord may, from time to time, bring action against Tenant to collect amounts due by Tenant, without the necessity of Landlords waiting until the expiration of the Term. Unless Landlord delivers written notice to Tenant expressly stating that it has elected to terminate this Lease, all actions taken by Landlord to exclude or dispossess Tenant of the Premises shall be deemed to be taken under this Section 16.(a)(ii). If Landlord elects to proceed under this Section 16.(a)(ii), it may at any time elect to terminate this Lease under Section 16.(a)(i). | |
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(iii) Notwithstanding anything to the contrary herein, Tenant shall not be deemed to have waived any requirements of Landlord to mitigate damages upon an Event of Default as required by law. | |
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(b) Tenants Remedies . | |
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(i) Notice and Cure . If Landlord should fail |
to perform or observe any
covenant, term, provision or condition of this Lease and such default
should continue beyond a period of ten (10) days as to a monetary default
or thirty (30) days (or such longer period as is reasonably necessary to
remedy such default, provided Landlord shall diligently pursue such remedy
until such default is cured) as to a non-monetary default, after in each
instance written notice thereof is given by Tenant to Landlord and
Landlords Mortgagee, then, in any such event Tenant shall have the right
(but no obligation) to cure the default, and Landlord shall reimburse
Tenant for all reasonable sums expended in so curing said default. Tenant
specifically agrees that Landlords Mortgagee may enter the Premises upon
reasonable notice to Tenant to cure any such default and that the cure of
any default by Landlords Mortgagee shall be deemed a cure by Landlord
under this Lease.
(ii)
Set-off
. If Tenant obtains a judgment against Landlord or any
assignee for any default by Landlord under this Lease and (i) Tenant
provided Landlords Mortgagee notice and opportunity to cure as described
in Sections 11(c) and 16(b)(i) above, (ii) said judgment is final and all
rights of appeal have been exercised or have expired, and (iii) such
judgment remains unsatisfied upon thirty (30) days written notice thereof
to Landlords Mortgagee, Tenant may set off such judgment against Rent.
17. (a)
Payment
. Upon any Event of Default by Tenant, Tenant shall pay to
Landlord all costs incurred by Landlord (including court costs and
reasonable attorneys fees and expenses) in (1) obtaining possession of the
Premises, (2) removing and storing Tenants or any other occupants
property, (3) reasonably repairing, restoring, altering, remodeling, or
otherwise putting the Premises into a reasonably marketable condition, (4)
if Tenant is dispossessed of the Premises and this Lease is not terminated,
reletting all or any part of the Premises (including brokerage commissions,
cost of tenant finish work, and other costs incidental to such reletting),
(5) performing Tenants obligations which Tenant failed to perform, and (6)
enforcing, or advising Landlord of, its rights, remedies, and recourses
arising out of the Event of Default.
(b)
No Waiver
. Acceptance or payment of Rent following any Event of
Default shall not waive any rights regarding such Event of Default. No
waiver by any party of any violation or breach of any of the terms
contained herein shall waive any rights regarding any future violation of
such term or violation of any other term.
18. In addition to the statutory landlords lien, Tenant grants to
Landlord, to secure performance of Tenants obligations hereunder, a
security interest in all fixtures, furniture, and leasehold improvements
only (and does not include any tangible or intangible personal property of
Tenant not named specifically) owned by Tenant and now or hereafter
situated on the Premises, and all proceeds therefrom (the
Collateral
),
and the Collateral shall not be removed from the Premises without the
consent of Landlord until all obligations of Tenant have been fully
performed. Upon the occurrence of an Event of Default, Landlord may, in
addition to all other remedies, without notice or demand except as provided
below, exercise the rights afforded a secured party under the Uniform
Commercial Code of the State in which the Building is located (the
UCC
).
In connection with any public or private sale under the UCC, Landlord shall
give Tenant five (5) days prior written notice of the time and place of any
public sale of the Collateral or of the time after which any private sale
or other intended disposition thereof is to be made, which is agreed to be
a reasonable notice of such sale or other disposition. Tenant grants to
Landlord a power of attorney to execute and file any financing statement or
other instrument necessary to perfect Landlords security interest under
this Section 18, which power is coupled with an interest and shall be
irrevocable during the Term. Landlord may also file a copy of this Lease as
a financing statement to perfect its security interest in the Collateral.
Notwithstanding the foregoing, Landlord shall subordinate its landlords
lien, upon such terms as are reasonably acceptable to Landlord and Tenants
Financier, to any bona fide third party financing existing or obtained by
Tenant.
PREMISES
19. No act by Landlord shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept a surrender of the Premises shall be
valid unless the same is made in writing and signed by Landlord. At the
expiration or termination of this Lease, subject to Landlords obligation
to maintain the Building, Tenant shall deliver to Landlord the Premises
with all improvements located thereon in good repair and condition,
reasonable wear and tear (and condemnation and fire or other casualty
damage, as to which Sections 13 and 14 shall control) excepted, and shall
deliver to Landlord all keys and/or access cards to the Premises. Provided
that Tenant has performed all of its obligations hereunder, Tenant may
remove all unattached trade fixtures, furniture, and personal property
placed in the Premises by Tenant (but Tenant shall not remove any such item
which was paid for, in whole or in part, by Landlord). Additionally,
Tenant may remove such additional items as Landlord may have agreed.
Tenant shall repair all damage
caused by removal of any items. All items
not so removed within thirty (30) days of expiration or early termination
shall be deemed to have been abandoned by Tenant and may be appropriated,
sold, stored, destroyed, or otherwise disposed of by Landlord without
notice to Tenant and without any obligation to account for such items. The
provisions of this Section 19 shall survive the end of the Term.
20. If Tenant fails to vacate the Premises at the end of the Term, then
Tenant shall be a tenant at will and, in addition to all other damages and
remedies to which Landlord may be entitled for such holding over, Tenant
shall pay, in addition to the other Rent, a daily Basic Rental equal to
150% of the daily Basic Rental payable during the last month of the Term.
RESERVED BY
LANDLORD
21. Subject to Tenants security procedures, below, and provided that the
exercise of such rights does not unreasonably interfere with Tenants
occupancy of the Premises, and upon reasonable advance notice provided by
Landlord to Tenant (except in case of emergency), Landlord shall have the
following rights:
(a) to decorate and to make inspections, repairs, alterations, additions,
changes, or improvements, whether structural or otherwise, in and about the
Building, or any part thereof; for such purposes, to enter upon the
Premises and, during the continuance of any such work, to temporarily close
doors, entryways, public space, and corridors in the Building; to interrupt
or temporarily suspend Building services and facilities (Landlord shall use
reasonable efforts to complete any work requiring the suspension of
Building services and facilities during off-business hours when reasonably
and commercially practicable to do so); and to change the arrangement and
location of entrances or passageways, doors, and doorways, corridors,
elevators, stairs, restrooms, or other public parts of the Building;
(b) to take such reasonable measures as in extreme circumstances Landlord
deems advisable for the security of the Building and its occupants,
including without limitation searching all items entering or leaving the
Building; evacuating the Building for cause, suspected cause, or for drill
purposes; temporarily denying access to the Building; and closing the
Building after normal business hours and on Saturdays, Sundays, and
Holidays, subject, however, to Tenants right to enter when the Building is
closed after normal business hours under such reasonable regulations as
Landlord may prescribe from time to time which may include by way of
example, but not of limitation, that persons entering or leaving the
Building, whether or not during normal
business hours, identify themselves
to a security officer by registration or otherwise and that such persons
establish their right to enter or leave the Building;
(c) after giving Tenant not less than thirty (30) days notice, to change
the name by which the Building is designated; and
(d) subject to Tenants security procedures, below, upon reasonable advance
notice, to enter the Premises during Tenants regular business hours (at
all times accompanied by a duly authorized representative of Tenant) to
show the Premises to prospective purchasers or lenders, and within the last
six months of the Term to show the Premises to prospective tenants.
Notwithstanding anything hereinabove to the contrary, except in the event
of an emergency,
Tenants Security Procedures
, described below, shall be
honored by Landlord, its employees, invitees, contractors, agent and
guests:
1) Landlord shall give Tenant 24 hours written notice delivered by
facsimile;
2) which notice shall state the names of the visitors and the purpose and
proposed duration of the visit;
3) except in cases of imminent danger to persons or property, Landlord
shall not have access to the software development area or the data center
or computer room; and
4) in all events (except emergencies) Landlord and its visitors must and
shall be escorted by a duly authorized representative of Tenant.
23. (a)
Landlord Transfer
. Landlord may transfer, in whole or in part, the
Project and any of its rights under this Lease. If Landlord assigns its
rights under this Lease and such assignee assumes Landlords obligations
hereunder, then Landlord shall thereby be released from any further
obligations hereunder, other than those obligations accruing prior to the
assignment.
(b)
Landlords Liability
. The liability of Landlord to Tenant for any
default by Landlord under the terms of this Lease shall be limited to
Tenants actual direct, but not consequential, damages therefor and shall
be recoverable from the interest of Landlord in the Project (including any
rents, profits, or other proceeds therefrom), and
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Landlord shall not be personally liable for any deficiency. This section shall not be deemed to limit or deny any remedies which Tenant may have in the event of default by Landlord hereunder which do not involve the personal liability of Landlord. | |
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(c) Force Majeure . Other than for Tenants monetary obligations under this Lease and obligations which can be cured by the payment of money (e.g., maintaining insurance), whenever a period of time is herein prescribed for action to be taken by either party hereto, such party shall not be liable or responsible for, and there shall be excluded from the computation for any such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, governmental laws, regulations, or restrictions, or any other causes of any kind whatsoever which are beyond the control of such party. | |
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(d) Brokerage . Landlord and Tenant each warrant to the other that it has not dealt with any broker or agent in connection with the negotiation or execution of this Lease, other than Trammell Crow D/FW and Joe Foster Company, whose commissions shall be paid by Landlord. Tenant and Landlord shall each indemnify the other against all costs, expenses, attorneys fees, and other liability for commissions or other compensation claimed by any broker or agent claiming the same by, through, or under the indemnifying party. The commission agreement between Landlord and Joe Foster Company shall be attached hereto as Exhibit L and made a part of Landlords obligation hereunder. | |
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(e) Estoppel Certificate . From time to time, either Landlord or Tenant shall furnish, within ten (10) business days after request therefor, a signed certificate confirming and containing such factual certifications and representations as to this Lease as the requesting party may reasonably request. | |
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(f) Notices . All notices and other communications given pursuant to this Lease shall be in writing and shall be (1) mailed by first class, United States Mail, postage prepaid, certified, with return receipt requested, and addressed to the parties hereto at the address specified in the Basic Lease Information, (2) hand delivered to the intended address, or (3) sent by prepaid telegram, cable, facsimile transmission, or telex followed by a confirmatory letter. Notice sent by certified mail, postage prepaid, shall be effective three (3) business days after being deposited in the United States Mail; all other notices shall be effective upon delivery to the address of the addressee. The parties hereto may change their addresses by giving notice thereof to the other in conformity with this provision. |
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(g) Separability . If any clause or provision of this Lease is illegal, invalid, or unenforceable under present or future laws, then the remainder of this Lease shall not be affected thereby and in lieu of such clause or provision, there shall be added as a part of this Lease a clause or provision as similar in terms to such illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable. | |
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(h) Amendments; and Binding Effect . This Lease may not be amended except by instrument in writing signed by Landlord and Tenant. No provision of this Lease shall be deemed to have been waived by Landlord or Tenant unless such waiver is in writing signed by Landlord or Tenant, and no custom or practice which may evolve between the parties in the administration of the terms hereof shall waive or diminish the right of Landlord or Tenant to insist upon the performance by Landlord or Tenant in strict accordance with the terms hereof. The terms and conditions contained in this Lease shall inure to the benefit of and be binding upon the parties hereto, and upon their respective successors in interest and legal representatives, except as otherwise herein expressly provided. This Lease is for the sole benefit of Landlord and Tenant, and, other than Landlords Mortgagee, no third party shall be deemed a third party beneficiary hereof | |
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(i) Quiet Environment . Provided Tenant has performed all of the terms and conditions of this Lease to be performed by Tenant, Tenant shall peaceably and quietly hold and enjoy the Premises for the Term, without hindrance from Landlord or any party claiming by, through, or under Landlord, subject to the terms and conditions of this Lease. | |
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(j) Joint and Several Liability . If there is more than one Tenant, then the obligations hereunder imposed upon Tenant shall be joint and several. If there is a guarantor of Tenants obligations hereunder, then the obligations hereunder imposed upon Tenant shall be the joint and several obligations of Tenant and such guarantor, and Landlord need not first proceed against Tenant before proceeding against such guarantor nor shall any such guarantor be released from its guaranty for any reason whatsoever. | |
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(k) Use of Lobby and/or Common Areas . During the term, and only on weekends, Holidays, and between the hours of 6:00 p.m. and 7:00 a.m. on weekdays (other than holidays), Tenant shall have the right to use the Building lobby and/or common areas, without charge, |
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for any Tenant-sponsored special event, provided (a) Tenant gives Landlord reasonable prior written notice of the date, time and nature of the event, (b) the date and time of the event do not conflict with another previously scheduled event, (c) Tenant reimburses Landlord for all out-of-pocket expenses Landlord incurs in connection with the event, (d) Tenant indemnifies and holds Landlord harmless from and against any and all claims, actions, damages, or liens resulting from Tenants use of the lobby and/or common areas, including any reasonable attorneys fees incurred by Landlord, (e) Tenant complies in all respects with applicable law, (f) Landlord approves, in its sole discretion, all aspects of Tenants intended use of the Building lobby and/or common areas, and (g) Tenant shall not use the Building lobby and/or common areas for such events for more than twelve (12) days in any calendar year. | |
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(1) Captions . The captions contained in this Lease are for convenience of reference only, and do not limit or enlarge the terms and conditions of this Lease. | |
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(m) No Merger . There shall be no merger of the leasehold estate hereby created with the fee estate in the Premises or any part thereof if the same person acquires or holds, directly or indirectly, this Lease or any interest in this Lease and the fee estate in the leasehold Premises or any interest in such fee estate. | |
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(n) No Offer . The submission of this Lease to Tenant shall not be construed as an offer, nor shall Tenant have any rights under this Lease unless Landlord executes a copy of this Lease and delivers it to Tenant. | |
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(o) Exhibits . The following exhibits hereto are incorporated herein by this reference: |
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Exhibit A Outline of Premises | |
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Exhibit A-1 International Business Park Masterplan | |
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Exhibit A-2 Legal Description of Land | |
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Exhibit A-3 Site Plan | |
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Exhibit B Building Rules and Regulations | |
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Exhibit C Operating Expenses | |
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Exhibit D Tenant Finish-Work: Allowance | |
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Exhibit D-1 Shell Construction | |
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Exhibit E Renewal Option | |
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Exhibit F Parking | |
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Exhibit F-1 Reciprocal Easement Grant and Maintenance Agreement |
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Exhibit G Janitorial Specifications | |
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Exhibit H Signage | |
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Exhibit H-1 Signage Criteria | |
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Exhibit I Preferential Right to Lease | |
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Exhibit J Right to Use Roof | |
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Exhibit K Guaranty | |
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Exhibit L Joe Foster Company Commission Agreement | |
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Exhibit M Subordination, Non-Disturbance and Attornment Agreement | |
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(p) Entire Agreement . This Lease constitutes the entire agreement between Landlord and Tenant regarding the lease of the Premises hereunder and supersedes all oral statements and prior writings relating thereto. Except for those set forth in this Lease, no representations, warranties, or agreements have been made by Landlord or Tenant to the other with respect to this Lease or the obligations of Landlord or Tenant in connection therewith. | |
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(q) Representations and Warranties . Landlord and Tenant each represent and warrant that the person executing this Lease on its behalf is acting in his or her capacity as an officer or partner, as applicable, with due authorization and authority to bind Landlord or Tenant, as applicable, to this Lease. Landlord represents and warrants that it has good title to the Project so to fully and properly lease the Premises to Tenant as provided herein. Landlord further represents and warrants to Tenant that (i) the Building is zoned in conformity with applicable laws in a manner permitting the use of the Premises as contemplated under this Lease, (ii) that all entrances, driveways and access roads upon the Land afford legal access to public rights-of-way and streets and permit (and shall throughout the Term of this Lease continue to permit) ingress to and egress from the Building by way of such rights-of-way and streets, (iii) that the Project contains sufficient parking and otherwise fully complies with all applicable governmental requirements, (iv) that Landlord is not required to obtain any consent to execute or perform this Lease, and (v) that the Building is not subject to any restrictive covenants or other encumbrances that would restrict the use of the Premises as contemplated under this Lease in any manner as of the Commencement Date. Landlord represents and warrants that the Project conforms currently and shall, as of the Commencement Date, conform in all material respects to all applicable laws, ordinances, rules and regulations generally applicable to commercial office buildings in Carrollton, Texas, and specifically applicable to the Project and |
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Building. Further, Landlord represents and warrants that there are no lawsuits pending, or to the knowledge of Landlord threatened, against Landlord which if adversely decided against Landlord would affect Tenants use and occupancy of the Premises or Landlords ability to carry out its obligations under this Lease, there is no proceeding pending, or to the knowledge of Landlord contemplated or threatened, that would affect the amount of the real estate taxes assessed against the Project (except for routine real estate valuation protests) and that, to the knowledge of Landlord, the Project is free from material physical defects. Other than any express warranties contained herein, neither Landlord nor Tenant make any implied warranties of any kind or nature, and the parties hereby waive any claims upon any such implied warranties. | |
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(r) Electrical and Telephone . Landlord agrees, at Landlords sole cost and expense, to provide dual feed power supply to the Premises from independent substations. Landlord warrants and represents to Tenant that the Project has access to (in International Parkway right of way) DS-3 fiber optic service with Sonet ring, and Landlord agrees, at Landlords sole cost and expense, to provide single feed fiber optic supplied by Southwestern Bell to the main telephone room on the first floor of the Building. Landlord further agrees that Tenant may add, at its expense, additional sources of fiber optic supply. | |
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(s) Supplemental Equipment . Landlord agrees to provide supplemental equipment to include an emergency back-up generator, UPS and battery room (including batteries specified by Tenant) and additional air-conditioning capacity (the Supplemental Equipment ). Landlord and Tenant will mutually agree upon the selection, specifications, design, location and maintenance of such Supplemental Equipment according to the specifications of Tenants technical consultants. The supplemental air-conditioning units shall be separately metered and Tenant shall be solely responsible for the electrical cost associated with such units. If the cost of such Supplemental Equipment exceeds $120,000 (including the cost of all consulting fees relating to the design and specification of such Supplemental Equipment), Tenant shall bear the cost for such overage to be paid to Landlord within ten (10) days of receipt of an invoice therefor. Such overage may be paid from the Hard Construction Cost portion of the Construction Allowance. The Supplemental Equipment shall be Landlords property at the end of the Term and shall remain on the Premises without compensation to Tenant. | |
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(t) Subsequent Payment by Tenant . If Tenant in its sole |
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and absolute discretion, with no obligation to do so, elects to (i) become a publicly-traded company, (ii) acquire a publicly-traded company, (iii) be acquired by a publicly-traded company or (iv) merge or consolidate with a public-traded company, Tenant shall, within thirty (30) days of such event, pay Landlord $150,000 in cash. | |
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(u) Building Name . Landlord agrees not to name the Building or Project after a competitor of Tenant or to provide Building signage to a competitor of Tenants. A Competitor of Tenant for this purpose is any person or entity that offers to consumers or other users real estate management and/or analysis software (excluding general accounting or analysis software routinely used by companies not engaged in the management of real estate) and/or web page design services, or services similar to those offered by Tenant or whose services or products are reviewed by trade publications against those of Tenant. | |
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(v) Refurbishment Allowance . In the event Tenant exercises its right to renew the Lease for an additional Term of three (3) or five (5) years, then Landlord shall provide Tenant a Refurbishment Allowance equal to a total of $5.00 per Rentable Square Foot of which $2.00 per Rentable Square Foot may be a reimbursement for improvements previously made to the Premises by Tenant and $3.00 per Rentable Square Foot for additional improvements as needed by Tenant. The Refurbishment Allowance shall be subject to the conditions set forth in Exhibit D of this Lease. In the event Tenant renews for a second five (5) year term, Landlord will agree to an additional $5.00 per Rentable Square Foot Refurbishment Allowance. The Refurbishment Allowances provided for in this section shall be considered when determining the prevailing market rate for any renewal option. | |
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(w) Lobby Use . Subject to written approval from existing and future tenants of the Building, Tenant shall have the right to locate a receptionist desk in the common area lobby. All aspects of the desk must be approved by both Landlord and third party tenants including location, materials used, directional signage and various security issues which may arise. Tenant shall be responsible for all costs in restoring the lobby to its original condition upon removal of the receptionist desk. |
DATED as of the date first above written.
LANDLORD:
TENANT:
CB PARKWAY BUSINESS CENTER V,
LTD., a Texas limited partnership
REALPAGE, INC., a Texas corporation
By: 15BCO, Inc., a Texas corporation,
its general partner
/s/ Barbara A. Erhart
By:
/s/ Stephen T. Winn
Barbara A. Erhart
Name:
Stephen T. Winn
Vice President
Title:
Chairman of the Board
Commercial
9.672 Acres
158,844 sf
530 spaces
615 spaces
1 space / 258 sf
Monument sign, 80 sf sign area (maximum allowable per City of Carrollton)
Space provided for tenant names to be added to monument sign
Maximum of one building mounted sign allowed per tenant. Not provided.
Sign criteria to be agreed upon with Landlord
Concrete columns, beams & joists
5 Concrete slab
on grade over 36 select rill; 3000 PSI concrete
4 5/8 concrete
slab supported by 20 5/8 pan joists
3-ply built up asphalt, over R-20 insulation on concrete deck
100 lb/sf live load
50 lb/sf live load + 20 lb/sf partitions
30 x 30
coated concrete, glass & aluminum curtainwall,
limestone accents, painted steel accents
Clear extrusions, exterior glazed
1 insulating
glass, reflective stainless steel coating
Limestone
15
10
3,000 lb passenger, 4,500 lb. service
2 x 4 Lay-in, beveled tegular edge, USG Eclipse tile, white, stacked *
Stained Concrete
Painted Drywall, acrylic wall finish
Painted Steel, with wood treads
Carpet
Vinyl Wall Covering & Cove Base @ corridor side only
2 x 4 Lay-in, including light fixtures, HVAC & life safety devices
Toilet Room Floors
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Stained Concrete | |||
Toilet Room Walls
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Ceramic Tile on wet walls; Acrylic wall finish elsewhere | |||
Toilet Room Countertops
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Granite | |||
Toilet Partitions
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Plastic Laminate | |||
Exit Stair Floors
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Carpet | |||
Exit Stair Walls & Ceilings
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Painted Drywall | |||
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Mechanical System:
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HVAC
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4 - 130 ton Packaged Rooftop Units supplying Variable Air Volume | |||
Ductwork
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Medium pressure and low pressure serving core areas only | |||
Control System
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Electronic Controls | |||
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Plumbing System:
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Toilet Rooms (Per Floor
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2 Mens, each with 2 toilets (1 HC), 2 urinals, 2 lavatories | |||
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2 Womens, each with 4 toilets, (1 HC), 3 lavatories | |||
Janitors Closets
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5 | |||
Drinking Fountains
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12 (6 HC) | |||
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Fire Protection/Life Safety:
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Sprinklers
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Fully Sprinklered Throughout | |||
Head Spacing
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Complies with NFPA 13 | |||
Fire Alarm System
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Intelligent Addressable, w/capacity for tenant connections @ ea. Floor | |||
Alarm Devices
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Visual / Audible Strobes in all common areas | |||
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Electrical System:
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Electrical Service
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TU Pad Mount transformer, 277/480 Volt 3-phase, 3000A | |||
Electrical Design (Total)
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14 Watts/sf | |||
Electrical Design (Lighting & Power)
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8 Watts/sf | |||
Panels Provided (High Voltage)
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1 400A @ 277/480V panel for each half floor | |||
Panels Provided (Low Voltage)
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1 400A @ 120/208V panel for each half floor | |||
Building Standard Lighting
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3-Lamp 18-Cell Parabolic Fluorescent, for lay-in ceiling; stacked | |||
Fixture Ratio
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1 Fixture / 100 sf (useable) | |||
Accent Lighting at Lobby
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Incandescent Downlights | |||
Parking Area Lighting
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Metal Halide pole-mount |
* | Ceiling materials furnished stacked on floor. Quantity based on no interior demising walls, one continuous ceiling plane. Ceiling tile quantity based on useable square footage less building standard light fixtures (1:100 SF.). |
TRACT I OWNER:
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TRACT II OWNER: | |
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CB Parkway Business Center V, Ltd.
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CB Midway/Parkway Investors, Ltd. | |
c/o Billingsley Company
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c/o Billingsley Company | |
2200 Ross Avenue
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2200 Ross Avenue | |
Suite 4800 West
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Suite 4800 West | |
Dallas, Texas 75201
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Dallas, Texas 75201 | |
Attn: Barbara A. Erhart
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Attn: Barbara A. Erhart | |
Telephone: (214) 754-1707
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Telephone: (214) 754-1707 | |
Telecopy: (214) 754-1754
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Telecopy: (214) 754-1754 | |
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with copy to:
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with copy to: | |
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Baker & Botts, L.L.P.
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Baker & Botts, L.L.P. | |
2001 Ross Avenue
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2001 Ross Avenue | |
Dallas, Texas 75201-2980
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Dallas, Texas 75201-2980 | |
Attn: Joel Overton, Jr.
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Attn: Joel Overton, Jr. | |
Telephone: (214) 953-6938
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Telephone: (214) 953-6938 | |
Telecopy: (214) 953-6503
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Telecopy: (214) 953-6503 |
STATE OF TEXAS
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COUNTY OF DALLAS
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Notary Public, State of Texas | |||
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My Commission Expires: |
STATE OF TEXAS
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COUNTY OF DALLAS
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Notary Public, State of Texas | |||
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My Commission Expires: |
MORTGAGEE | ||||||
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GUARANTY FEDERAL BANK, F.S.B., a
Federal savings bank |
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By: | |||||
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STATE OF TEXAS
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COUNTY OF DALLAS
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Notary Public, State of Texas | |||
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I. | JANITORIAL SERVICE SPECIFICATIONS FOR TENANT SUITES, COMMON AREAS ON TENANT-OCCUPIED FLOORS AND TENANT COMPUTER ROOMS. |
a. | Nightly Services |
i. | All surface areas, desks, file cabinets, counter tops, book shelves, credenzas, computer screens and other equipment will be dusted. Desk tops will be wiped down but no papers will be moved. All ashtrays and urns will be emptied and wiped. | ||
ii. | All carpeted areas will be vacuumed. Carpets will be spot cleaned where needed. All hard surface floors will be swept with a dust mop then damp mopped. | ||
iii. | All trash receptacles will be emptied and wiped down. Liners will be changed whenever necessary. Garbage will be taken to the designated areas for trash removal. | ||
iv. | All magazines will be straightened. Glass top desks, glass doors, partitions, light switches and walls will be cleaned to remove smudges and fingerprints. | ||
v. | All stairwells will be vacuumed and swept as well as dusted. | ||
vi. | The elevator will be vacuumed and fingerprints removed from wall surfaces. | ||
vii. | All kitchen countertops, tables and cupboard doors in break rooms will be cleaned and disinfected. Hand prints and smudges will be removed from the exterior of the refrigerator as well as any other appliances. Microwaves will be cleaned inside and out. Sinks and other chrome areas will be cleaned and polished. | ||
viii. | Mugs, plates and glasses will be placed in the dishwasher and washed only if they are placed in the break room sink by company employees. Dishes will not be removed from the dishwasher. | ||
ix. | All fixtures and appliances in the restrooms will be cleaned and sanitized. All chrome and mirrors will be cleaned and polished. Toilet paper and paper towels will be replenished as needed in restrooms. | ||
x. | All commodes and urinals will be cleaned with a germicidal disinfectant. The use of an emulsion bowl cleaner will be used whenever necessary. | ||
xi. | Restroom floors will be cleaned using a germicidal disinfectant. | ||
xii. | Light bulbs will be replaced as needed. |
b. | Weekly Services |
i. | All pictures and door frames will be dusted. | ||
ii. | Partitions and walls in the restrooms will be completely wiped down with a germicidal disinfectant. |
iii. | All VCT floors will be buffed. |
c. | Monthly Services |
i. | All mini-blinds and A/C vents will be dusted. | ||
ii. | All interior windows will be cleaned. | ||
iii. | All VCT floors will be waxed (more often as necessary) |
d. | Quarterly Services |
i. | All exterior windows will be cleaned. |
A. | REQUIRED SIGNS |
1. | Tenant shall be requested to identify its premises by erecting two (2) signs which shall be attached directly to the building parapet as described hereinafter. |
B. | TYPE OF SIGN |
1. | Internally illuminated acrylic faced, individual letters raceway mounted on building face. Letters shall appear black when not illuminated, white when illuminated. |
C. | SIZE OF SIGN |
1. | Placement: All signs shall be designed to fit entirely within a horizontal band 48 inches high, from 12 inches below the top of parapet to 60 inches below the top of parapet, ascending and descending characters included. | ||
2. | Sign locations for individual tenants are to be as agreed with Owner. Maximum allowable areas per building elevation: |
North elevation, north wing (aggregate):
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67.5 | maximum length, 180 sf. area | ||
North elevation, south wing (aggregate):
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67.5 | maximum length, 180 sf. area | ||
East elevation, north wing (aggregate):
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135.0 | maximum length, 360 sf. area |
East elevation, south wing (aggregate):
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225.0 | maximum length, 600 sf. area | ||
West elevation, north wing (aggregate):
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225.0 | maximum length, 600 sf. area |
3. | Depth 6 minimum, or as required to diffuse neon stroke for uniform appearance. | ||
4. |
Height not to exceed 40 . Multiple Rows not to exceed 40 in total height
including spaces between rows: Minimum Letter
Size 10. |
D. | TYPE OF SIGN |
1. | Any style (block or script) may be used. Upper and lower case letters are allowed. Lessor will have final review over height increases for script letters. | ||
2. | Logos in addition to signage must be approved. They must be proportionate to height of parapet and sign and in same color as signage. | ||
3. | Box type signs will not be permitted. |
E. | COLOR OR SIGN |
1. | Signs are to appear black when not illuminated, and white when illuminated. | ||
2. | Face is to be Rohm & Haas Plexiglass. Color permitted: as required to provide day black/night white effect. | ||
3. | Returns: Flat Black. | ||
4. | Trim Cap: 1 Flat Black Jewel Lite. |
F. | CONSTRUCTION OF LETTERS |
1. | Individual channel letters up to 40 high to have 1/8 plexiglass faces. | ||
2. | Returns: .063 aluminum gauge (minimum). | ||
3. | Backs: .080 aluminum gauge (minimum). | ||
4. | No armor plate or wood in the manufactured returns may be used. | ||
5. | Letter fabrication to be welded. Riveted construction not acceptable. |
G. | ILLUMINATION AND WIRING |
1. | All signs must be UL labeled. |
2. | Illumination shall be with 15 mm and 30mm 6500 degree white neon tubing, and shall be uniform. Provide number of neon strokes adequate to provide uniform lighting across width and length of letter stroke. | ||
3. | Secondary Wiring -All transformers and secondary wiring are to be concealed behind parapets or within ceiling plenum. | ||
4. | Electrical power shall be brought to required location at Tenants expense. Routing and location of conduit and other required items shall not be visible on front of parapet. | ||
5. | Final electrical connection of sign to transformer box will be performed by a licensed electrician approved by Landlord. Sign timer controls for all tenants to be set per Landlord requirements. |
H. | PLACEMENT AND INSTALLATION |
1. | General Notes |
a. | Letters are to be located on signage area of building as determined by Landlord. | ||
b. | Attachment of signage to meet U.L. Standards. No exposed wiring is permitted. | ||
c. | All fasteners used are to be non-corrosive. | ||
d. | Tenant will be responsible for all damage to the building incurred during sign installation or removal. | ||
e. | Tenant submittals for lighting approval shall indicate methods of attachment to building face. Tenants should be aware that building face is 8 concrete tilt wall. |
I. | SUBMITTAL FOR APPROVAL |
1. | Prior to awarding a contract for fabrication and installation, Tenant shall submit three (3) sealed drawings for final review and approval to: | ||
Billingsley Property Services
Texas Commerce Tower 2200 Ross Avenue, Suite 4800 West Dallas, Texas 75201 Attention: Becky Rowland, Property Manager |
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2. | Elevation of building fascia and sign shall be drawn using a minimum 1/4 = 1 0 scale. |
3. | Drawing shall indicate the following specifications: Type, color and thickness of plexiglass, type of materials, finish used on return, type of illumination and mounting method. Tenants sign contractor shall first visit the site to verify existing conditions prior to preparation of shop drawings, information needed to prepare submittals shall also be obtained during the visit. | ||
4. | Drawings must include fascia cross section showing electrical connections. |
J. | PERMITS |
1. | All City permits and approvals from the landlord are required prior to sign fabrication. |
K. | WINDOW SIGNS |
1. | No window signs are permitted. |
L. | MONUMENT SIGNS |
1. | Tenants shall provide identification signs per Owners criteria for mounting on monument sign. | ||
2. | All single-tenant buildings, signs shall be 10 high metal letters with black baked-on gloss finish, in Universe 67 letter style. | ||
3. | At multi-tenant buildings, signs shall be 6 high metal letters with black baked-on gloss finish, in Universe 67 letter style. |
M. | SECONDARY ENTRY SIGNS |
1. | Not allowed. |
N. | THE FOLLOWING ARE NOT PERMITTED: |
1. | Roof signs or box signs | ||
2. | Cloth signs hanging in front of business | ||
3. | Exposed seam tubing | ||
4. | Animated or moving components | ||
5. | Intermittent or flashing illumination | ||
6. | Iridescent painted signs |
7. | Letters mounted or painted directly on illuminated panels | ||
8. | Signs or letters painted directly on any surface except as herein provided | ||
9. | The names, stamps or decals of manufacturers or installers shall not be visible except for technical data (if any) required by governing authorities. |
A. | Interior signs identifying fixed building elements, and two building directions identifying Tenant Names and Suite Numbers, will be provided by Landlord. |
1. | Signs Included: | ||
a. | Building Directory (Lobby) | ||
b. | Building Directory (South Vestibule) | ||
c. | Suite Number Identification | ||
d. | Stair Identification | ||
e. | Toilet Room Identification | ||
f. | Identification of Mechanical Spaces | ||
g. | Emergency Egress Directions |
B. | Tenant Identification signs for suite entries are to be provided by each tenant. These are to be wall mounted adjacent to entrance doors. Sign size and location shall comply with all local codes and ordinances, as well as ADA/TAS. |
1. | Size: 24 inches high maximum; 48 inches wide maximum; 4 sf. maximum overall, as defined by a rectangle surrounding a regularly shaped sign, or as defined in the case of an irregularly shaped sign by a rectilinear perimeter of not more than eight (8) straight lines enclosing the extreme limits of any figure or character. | ||
2. | Color: At tenants option subject to approval by Landlord. | ||
3. | Illumination: Not Allowed. | ||
4. | Content: Text and logos acceptable, subject to size limitations. |
C. | Tenant signs within tenant space provided by tenant if desired. Size, color, configuration, illumination and content at Tenants option subject to approval by Landlord. |
1. | Tenant shall have a continuing right of first refusal to lease any space on the third floor of the Building (hereinafter referred to as the Expansion Space ) during the term of this Lease and any renewal or extension thereof. If, at any time following the date of this Lease, Landlord receives a bona fide offer from a third party, other than the existing tenant or its Affiliates, to lease all or any portion of the Expansion Space or if Landlord extends to a third party a bona fide offer to lease all or any portion of the Expansion Space which such third party is willing to accept, then in either such event Landlord shall give written notice to Tenant of such bona fide offer and shall include in such notice the rental rate and all other economic terms of such offer. Tenant shall have ten (10) business days following the receipt of such notice to determine whether or not it desires to lease such Expansion Space on the same terms and conditions contained in such offer. The failure of Tenant to exercise its right of first refusal as to any space covered by the notice delivered pursuant to this Exhibit shall not terminate the obligation of Landlord to again offer that space to Tenant pursuant to the terms and conditions of this Exhibit should the space again become available. Moreover, if Landlord does not lease the Expansion Space to the third party that is the subject of the bona fide offer within one hundred-eighty (180) days after the end of the ten (10) business day period on substantially the same terms and conditions as set forth in the bona fide offer, then Tenant shall again be entitled to the right of first refusal before Landlord can lease the Expansion Space to another tenant, including such third party. Tenant may not exercise its rights under this Exhibit if an Event of Default exists at the time of the delivery of the notice from Landlord to Tenant. Landlord warrants that there are no outstanding rights to lease all or any portion of the Expansion Space (other than the lease with the existing tenant in such space.) |
2. | Tenants rights under this Exhibit shall terminate if (a) this Lease or Tenants right to possession of the Premises is terminated or (b) Tenant assigns any of its interest in this Lease or sublets any portion of the Premises (excluding Permitted Transfers). |
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By:
Name: |
/s/ Stephen T. Winn
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PROJECT: INTERNATIONAL BUSINESS PARK
PROSPECTIVE TENANT: REALPAGE, INC.
OWNER
:
BROKER
:
CB Parkway Business Center V, Ltd.
Joe Foster Company
/s/ Barbara A. Erhart
By:
/s/ James J. Struble
Barbara A. Erhart
Name:
James J. Struble
Vice President
Title:
Sr. V.P.
INITIALED FOR IDENTIFICATION
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/s/ BAE | ||||
OWNER | ||||
/s/JJS | ||||
BROKER | ||||
Sincerely, | AGREED TO ON THIS 23 rd DAY OF FEBRUARY, 1999 | |||||||||
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By
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/s/ Robert H. Dilworth | By | /s/ James J. Struble | |||||||
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Name:
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Robert H. Dilworth | Name: | James J. Struble, SIOR | |||||||
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By: | /s/ Myra Maher-Martin | ||||||||
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Name: | Myra Maher-Martin |
* | This agency is extended until December 31, 1999 or until all occupancy requirements of the new lease are met, whichever comes later. Approved /s/ Signature Illegible |
To Lender: |
Guaranty Federal Bank, F.S.B.
8333 Douglas Avenue Dallas, Texas 75225 Attention: Commercial Real Estate |
To Tenant: |
RealPage, Inc.
4000 International Parkway, Suite 1000 Carrollton, Texas 75006 Attention: Steve Winn |
THE STATE OF TEXAS
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COUNTY OF DALLAS
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THE STATE OF TEXAS
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1. | The second paragraph of Exhibit F Parking shall be modified to read that In addition to the parking spaces in the Parking Area, Landlord shall provide on or before April 1, 2000 and Tenant shall be permitted the exclusive use of 111 parking spaces (the Offsite Spaces ) in the areas depicted on Exhibit F-1 attached hereto (the Offsite Parking Area ) throughout the Term or any renewal or extension thereof. Landlord (or one of its affiliates shall, at its sole cost and expense (and not as part of Basic Cost), grade, pave, landscape, install lighting and stripe the Offsite Parking Area needed to provide the Offsite Spaces. In accordance with the terms of the Parking Easement Grant and Maintenance Agreement, Landlords Affiliate (or successor in interest) shall maintain the Offsite Spaces in good order, condition and repair, and shall be responsible for sweeping, striping and lighting the Offsite Spaces, with the cost of such services to be charged to Tenant. | ||
2. | Exhibit F-1 Reciprocal Easement Grant and Maintenance Agreement to the Lease shall be replaced with the attached Exhibit F-1 Parking Easement Grant and Maintenance Agreement . | ||
3. | As amended herein, the Lease is affirmed, ratified and remains in full force and effect. | ||
DATED: November 29, 1999 |
LANDLORD : | TENANT : | |||||||||
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CB PARKWAY BUSINESS CENTER V,
LTD.,
a Texas limited partnership |
REALPAGE, INC., a Texas corporation | |||||||||
By: 15BCO, Inc., a Texas corporation, its General Partner | ||||||||||
By:
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/s/ Barbara Erhart
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By: |
/s/ Stephen T. Winn
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Title: Vice President | Title: Chairman of the Board |
TRACT I OWNER:
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TRACT II OWNER: | |
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CB Parkway Business Center V, Ltd.
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CB Midway/Parkway Investors, Ltd. | |
c/o Billingsley Company
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c/o Billingsley Company | |
2200 Ross Avenue
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2200 Ross Avenue | |
Suite 4800 West
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Suite 4800 West | |
Dallas, Texas 75201
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Dallas, Texas 75201 | |
Attn: Jill M. Wilbanks
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Attn: Jill M. Wilbanks | |
Telephone: (214) 754-1728
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Telephone: (214)-7541728 | |
Telecopy: (214) 754-1754
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Telecopy: (214) 754-1754 | |
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with copy to:
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with copy to: | |
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Baker & Botts, L.L.P.
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Baker & Botts, L.L.P. | |
2001 Ross Avenue
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2001 Ross Avenue | |
Dallas, Texas 75201-2980
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Dallas, Texas 75201-2980 | |
Attn: Joel Overton, Jr.
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Attn: Joel Overton, Jr. | |
Telephone: (214) 953-6938
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Telephone: (214) 953-6938 | |
Telecopy: (214) 953-6503
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Telecopy: (214) 953-6503 |
TRACT I OWNER
CB PARKWAY BUSINESS CENTER V, LTD., a Texas limited partnership |
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By: | 15BCO, INC., General Partner | |||
By: | /s/ Barbara A. Erhart | |||
Name: | Barbara A. Erhart | |||
Title: | Vice President | |||
TRACT II OWNER
CB MIDWAY/PARKWAY INVESTORS, LTD., a Texas limited partnership |
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By: | 2BCO, INC., General Partner | |||
By: | /s/ Barbara A. Erhart | |||
Name: | Barbara A. Erhart | |||
Title: | Vice President | |||
STATE OF TEXAS
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COUNTY OF DALLAS
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Notary Public, State of Texas
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/s/ Christopher L. Matthews | ||||
Christopher L. Matthews | ||||
Printed Name | ||||
My Commission Expires: 7-28-03
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STATE OF TEXAS
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COUNTY OF DALLAS
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Notary Public, State of Texas
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/s/ Christopher L. Matthews | ||||
Christopher L. Matthews | ||||
Printed Name | ||||
My Commission Expires: 7-28-03
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LANDLORD : | TENANT : | |||||||||||||
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CB PARKWAY BUSINESS CENTER V,
LTD., a Texas limited partnership |
REALPAGE, INC.,
a Texas corporation |
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By: |
15BCO, Inc., a Texas corporation
its General Partner |
|||||||||||||
|
||||||||||||||
By: | /s/ Mack W. Dennis | By: | /s/ Tim Barker | |||||||||||
|
Name: | Mack W. Dennis | Name: | Tim Barker | ||||||||||
|
Title: | Senior Vice President | Title: | CFO |
1. | Defined Terms . All capitalized terms utilized herein and not defined herein shall have the meanings ascribed thereto in the Lease. | ||
2. | Term . Landlord and Tenant hereby agree that the Term of the Lease as to that certain 98,223 Rentable Square Feet of space, shall be extended from August 31, 2009 to August 31, 2016. | ||
3. | Rent . | ||
Basic Rental . Commencing on September 1, 2006 through the expiration date or August 31, 2016, the Basic Rental shall be as follows: |
Annual Rate per | ||||||||||||
Rentable Square | ||||||||||||
Square Feet | Footage | Months | Monthly Amount | |||||||||
98,223
|
$20.00/rsf | 09/01/2006-09/30/2006 | $ | 163,705.00 | ||||||||
98,223
|
$20.00/rsf | 10/01/2006-01/31/2007 | $ | 163,705.00 | */** | |||||||
98,223
|
$20.00/rsf | 02/01/2007-08/31/2016 | $ | 163,705.00 |
* | Provided no uncured Event of Default exists on the date payment is due. Basic Rental shall be abated for the months of October 2006, November 2006, December 2006 and January 2007. | |
** | Tenant shall pay its Proportionate Share of electrical costs during the free rent period. |
4. | Change In Operating Base Year Expense Stop . The parties acknowledge that as of September 1, 2006, a 2006 Base Year Expense Stop shall be used for the purposes of calculating Tenants liability for Excess under Exhibit C of the Lease, meaning that the first year for calculation of any Excess shall be calendar year 2007. The change in Operating Expense Base shall go into effect commencing September 1, 2006. Tenant shall remain liable for the Excess using a $5.50 per square foot Operating Expense Base through August 31, 2006. |
5. | Tenant Improvement Allowance . Landlord shall provide to Tenant a Tenant Improvement Allowance (the Tenant Improvement Allowance ) equal to $3.33 per square foot of Rentable Square Feet (98,223rsf) or $327,410.00 to be paid by Landlord to Tenant within thirty (30) days upon receipt of invoice(s) and proper documentation, including but not limited to lien waivers from contractors and subcontractors. Tenant shall bear the entire cost of performing the Work (including, without limitation, design of the Work and preparation of the Working Drawings, costs of construction labor and materials (the Construction Hard Costs ), electrical usage during construction (allocated to Tenant as reasonably agreed by Landlord and Tenant), janitorial services. signage, fees, and related non-ad valorem taxes and insurance costs, all of which costs are herein collectively called the Total Construction Costs ) in excess of the Tenant Improvement Allowance. Landlord or its designee shall coordinate the relationship between the Work, the Building, and the Building Systems. In consideration for Landlords services, Tenant shall pay to Landlord a construction supervision fee equal to three and one half percent (3.5%) of the Total Construction Hard Costs for all improvements and alterations made to the Premises other than the Shell Construction, which fee shall be paid from the Tenant Improvement Allowance. Tenant must use such allowance before the end of June 30, 2007 or Tenant shall have deemed to forfeit all rights to any unused portion of the Tenant Improvement Allowance. The entire $3.33 per Rentable Square Feet of the Tenant Improvement Allowance must be used for Construction Hard Costs. Any provision herein to the contrary notwithstanding including the preceding sentence, Tenant may use the Tenant Improvement Allowance for the purpose of purchasing among other things, workstations and furniture ( Premises Personal Property ) for the Premises, the ownership of which shall vest in Tenant, provided however , in the event Tenant elects not to renew the Lease at the end of the initial Term Tenant shall not remove the Premises Personal Property purchased through use of the Tenant Improvement Allowance, but rather shall assign to Landlord title to the Premises Personal Property through execution of a Bill of Sale. | ||
6. | Delete Section 23(t), Subsequent Payment by Tenant , in its entirety. | ||
7. | Add the following as a new Section 23(y), Vestibule , to read as follows: | ||
Landlord shall use commercially reasonable efforts, but in no event later than March 31, 2007, at Landlords sole expense replace the North front entrance to the Building with any of the following (i) a vestibule including two stages of doors into the Building, with one stage incorporating the Building security system, (ii) a revolving door or (iii) any other Building system reasonably acceptable to Landlord to replace the current Building North entrance system. | |||
8. | Brokerage Commissions . Tenant hereby represents and warrants to Landlord that, other than commissions, if any, due and payable to Billingsley Property Services, Inc. and Peloton Real Estate Partners ( Landlords Broker ), no commission is due and payable to any broker or other leasing agent in connection with this Amendment based on any commitment undertaken by Tenant, and Tenant hereby agrees to |
indemnify, defend and hold Landlord harmless from and against all loss, damage, cost and expense (including reasonable attorneys fees) suffered by Landlord as a result of a breach of the foregoing representation and warranty. Landlord shall be solely liable for payment of any commissions due Landlords Broker by reason of this Amendment. |
9. | Guaranty . Notwithstanding any other provision in Exhibit K, Guaranty, the Guaranty described therein, unless sooner expiring or terminating, shall terminate and be of no further force or effect at 11:59 p.m. on August 31, 2009. Furthermore, add the following sentence after the end of the third sentence of Exhibit K to read as follows: Tangible net worth shall be defined as total assets minus intangible assets minus total liabilities. The term total liabilities shall specifically include deferred revenue. | ||
10. | Add Section 23(w) Lobby Use , shall be restated in its entirety to read as follows: | ||
Subject to the written approval from existing and future tenants of the Building, Tenant shall have the right to locate a receptionist desk and guest seating area ( Seating Area ) in the common area lobby on the first floor (such Seating Area not to exceed 150 square feet and total area, and not to include more than one (1) standard size commercial sofa, two (2) standard sized commercial chairs, one (1) standard sized commercial coffee table and one (1) area rug no larger than 150 square feet). All aspects of the desk and seating area must be approved by both Landlord and third party tenants, including location, materials used, directional signage and various security issues which may arise. Tenant shall be responsible for all costs in restoring the lobby to its original condition upon removal of the reception desk and/or seating area. In the event an existing or future tenant of at least 50,000 square feet of the Building requests to locate a receptionist desk in the common area of the lobby, and Landlord wishes to utilize the Seating Area to satisfy such tenants requests, then Tenant shall be responsible for restoring the lobby to its original condition upon removal of the seating area within thirty (30) days of Landlords written notice of the existing or future tenants request. The existing or future tenants receptionist desk will match Tenants receptionist desk and signage in such area if applicable, and shall be subject to Tenants prior written approval, which shall not be unreasonably delayed, withheld or conditioned. | |||
11. | With regard to calculating any Excess Operating Expenses pursuant to Exhibit C hereto, upon receipt of an Annual Operating Expense Statement, Tenant, at its expense, shall have the right, upon thirty (30) days written notice to Landlord, to audit or cause to be audited the financial records for the Project for the period reflected in such Annual Operating Expense Statement. Such audit shall be performed by a certified independent accounting firm which shall be of national standing and which is not compensated on a contingency basis. Should the Tenants audit demonstrate that the Basic Cost for such period are miscalculated by more than five percent (5%), Landlord shall reimburse Tenant for the actual cost of the audit. In any event, Landlord shall reimburse Tenant for any charges found to be in error and |
likewise, Tenant shall pay to Landlord any net undercharges discovered as a result of the audit. Such audit must be completed during normal business hours in the property managers office or other location designated by Landlord and within one hundred eighty (180) days of Tenants receipt of the applicable Annual Operating Expense Statement. |
12. | Add Section 23(z) Waiver of Rights Under Section 93.012 of the Texas Property Code . Landlord and Tenant are knowledgeable and experienced in commercial transactions and hereby agree that the provisions of this Lease for determining charges, amounts and additional Rent payable by Tenant are commercially reasonable and valid even though such methods may not state a precise mathematical formula for determining such charges, amounts or additional Rent. ACCORDINGLY, TENANT VOLUNTARILY AND KNOWINGLY WAIVES ALL RIGHTS AND BENEFITS OF TENANT UNDER SECTION 93.012, ENTITLED ASSESSMENT OF CHARGES, OF THE TEXAS PROPERTY CODE, AS ENACTED BY HOUSE BILL 2186, 77TH LEGISLATURE, AS SUCH SECTION NOW EXISTS OR AS MAY BE HEREAFTER AMENDED OR SUCCEEDED . | ||
13. | Counterpart Execution . This Amendment may be executed in any number of counterparts, each of which shall be an original, but such counterparts together shall constitute one and the same instrument. Additionally, this Amendment may be executed by facsimile signatures and any such facsimile signature shall be deemed an original signature for all purposes. | ||
14. | Full Force and Effect . In the event any of the terms of the Lease conflict with the terms of this Amendment, the terms of this Amendment shall control. The Lease remains in full force and effect without any further amendments, alterations, or modifications thereto, except as expressly set forth herein, and Landlord and Tenant expressly ratify and confirm the Lease as amended hereby. The Lease, as amended by this Amendment, constitutes the entire agreement between the parties hereto and no further modification of the Lease shall be binding unless evidenced by an agreement in writing signed by Landlord and Tenant. |
LANDLORD
:
CB PARKWAY BUSINESS CENTER V, LTD., a Texas limited partnership |
||||
By: | 15BCO, Inc., a Texas corporation, | |||
its General Partner | ||||
By: | /s/ Mack W. Dennis | |||
Name: | Mack W. Dennis | |||
Title: | Senior Vice President |
TENANT
:
REALPAGE, INC., a Delaware corporation |
||||
By: | /s/ Stephen T. Winn | |||
Name: | Stephen T. Winn | |||
Title: | Chairman, CEO & President |
GUARANTOR
:
|
||||
By: | /s/ Stephen T. Winn | |||
Name: | Stephen T. Winn | |||
Rental Schedule A | Termination Right not Exercised | Actual SF Occupied | ||||||||||||||||||||||||||||||
Pro-Rata | ||||||||||||||||||||||||||||||||
Rate/SF/ | Monthly | Share of | ||||||||||||||||||||||||||||||
Start | End | Months | SF | Year | Rent | Annual Rent | SF | Building | ||||||||||||||||||||||||
12/15/2007 | 12/31/2007 | .5 | 56,075 | $ | 0.00 | $ | 0.00 | 0.00 | 13,935 | 9.03 | % | |||||||||||||||||||||
1/1/2008 | 6/30/2008 | 6 | 56,075 | $ | 3.73 | $ | 17,418.75 | $ | 104,512.50 | 13,935 | 9.03 | % | ||||||||||||||||||||
7/1/2008 | 12/31/2008 | 6 | 56,075 | $ | 7.46 | $ | 34,837.50 | $ | 209,025 | 27,870 | 18.06 | % | ||||||||||||||||||||
1/1/2009 | 12/31/2009 | 12 | 56,075 | $ | 20.00 | $ | 93,458.33 | $ | 1,121,500 | 56,075 | 36.34 | % | ||||||||||||||||||||
1/1/2010 | 12/31/2010 | 12 | 56,075 | $ | 20.00 | $ | 93,458.33 | $ | 1,121,500 | 56,075 | 36.34 | % | ||||||||||||||||||||
1/1/2011 | 12/31/2011 | 12 | 56,075 | $ | 20.00 | $ | 93,458.33 | $ | 1,121,500 | 56,075 | 36.34 | % | ||||||||||||||||||||
1/1/2012 | 12/31/2012 | 12 | 56,075 | $ | 20.00 | $ | 93,458.33 | $ | 1,121,500 | 56,075 | 36.34 | % | ||||||||||||||||||||
1/1/2013 | 12/31/2013 | 12 | 56,075 | $ | 22.00 | $ | 102,804.17 | $ | 1,233,650 | 56,075 | 36.34 | % | ||||||||||||||||||||
1/1/2014 | 12/31/2014 | 12 | 56,075 | $ | 22.00 | $ | 102,804.17 | $ | 1,233,650 | 56,075 | 36.34 | % | ||||||||||||||||||||
1/1/2015 | 12/31/2015 | 12 | 56,075 | $ | 22.00 | $ | 102,804.17 | $ | 1,233,650 | 56,075 | 36.34 | % | ||||||||||||||||||||
1/1/2016 | 8/31/2016 | 8 | 56,075 | $ | 23.00 | $ | 107,477.08 | $ | 1,289,725 | 56,075 | 36.34 | % | ||||||||||||||||||||
Total | 104 |
Rental Schedule B | Termination Right Exercised | Actual SF Occupied | ||||||||||||||||||||||||||||||
Pro-Rata | ||||||||||||||||||||||||||||||||
Rate/SF / | Monthly | Share of | ||||||||||||||||||||||||||||||
Start | End | Months | SF | Year | Rent | Annual Rent | SF | Building | ||||||||||||||||||||||||
12/15/2007 | 12/31/2007 | .5 | 56,075 | $ | 0.00 | $ | 0.00 | 0.00 | 13,935 | 9.03 | % | |||||||||||||||||||||
1/1/2008 | 6/30/2008 | 6 | 56,075 | $ | 3.73 | $ | 17,418.75 | $ | 104,512.50 | 13,935 | 9.03 | % | ||||||||||||||||||||
7/1/2008 | 12/31/2008 | 6 | 56,075 | $ | 7.46 | $ | 34,837.50 | $ | 209,025. | 27,870 | 18.06 | % | ||||||||||||||||||||
1/1/2009 | 12/31/2009 | 12 | 27,870 | $ | 20.00 | $ | 46,450.00 | $ | 557,400.00 | 27,870 | 18.06 | % | ||||||||||||||||||||
1/1/2010 | 12/31/2010 | 12 | 27,870 | $ | 20.00 | $ | 46,450.00 | $ | 557,400.00 | 27,870 | 18.06 | % | ||||||||||||||||||||
1/1/2011 | 12/31/2011 | 12 | 27,870 | $ | 20.00 | $ | 46,450.00 | $ | 557,400.00 | 27,870 | 18.06 | % | ||||||||||||||||||||
1/1/2012 | 12/31/2012 | 12 | 27,870 | $ | 20.00 | $ | 46,450.00 | $ | 557,400.00 | 27,870 | 18.06 | % | ||||||||||||||||||||
1/1/2013 | 12/31/2013 | 12 | 27,870 | $ | 22.00 | $ | 51,095.00 | $ | 613,140.00 | 27,870 | 18.06 | % | ||||||||||||||||||||
1/1/2014 | 12/31/2014 | 12 | 27,870 | $ | 22.00 | $ | 51,095.00 | $ | 613,140.00 | 27,870 | 18.06 | % | ||||||||||||||||||||
1/1/2015 | 12/31/2015 | 12 | 27,870 | $ | 22.00 | $ | 51,095.00 | $ | 613,140.00 | 27,870 | 18.06 | % | ||||||||||||||||||||
1/1/2016 | 8/31/2016 | 8 | 27,870 | $ | 23.00 | $ | 53,417.50 | $ | 641,010.00 | 27,870 | 18.06 | % | ||||||||||||||||||||
Total | 104 |
LANDLORD: | TENANT: | |||||||||
|
||||||||||
ARI-Commercial Properties, Inc. |
RealPage, Inc., a Delaware
corporation |
|||||||||
|
||||||||||
By:
|
By: /s/ Stephen T. Winn | |||||||||
|
|
|
||||||||
Name:
|
Name: | |||||||||
|
|
|
||||||||
Title:
|
Title: CEO | |||||||||
|
|
|
1 | Office and work space configuration is draft. For rending purposes only |
Construction | ||||||||||||||||||||||||
Expansion | Construction | Construction | Allowance - | Net | ||||||||||||||||||||
Premises - | SF | Date of | Allowance Per | Allowance | (Holdback) / | Construction | ||||||||||||||||||
Phases | Occupied | Allowance | SF | Dollars | Credit | Allowance | ||||||||||||||||||
Phase I and II
|
27,870 |
Upon
Execution |
$ | 18.00 | $ | 501,660 | ($150,000 | ) | $ | 351,660 | ||||||||||||||
|
of 4th
Amendment |
|||||||||||||||||||||||
Phase III
|
28,205 | 8/1/2008 | $ | 18.00 | $ | 507,690 | $ | 150,000 | $ | 657,690 |
THE STATE OF TEXAS
|
§
§ |
KNOW ALL MEN BY THESE PRESENTS: | ||
COUNTY OF DENTON
|
§ |
Period: | Annual Base Rent per R.S.F.: | Monthly Base Rent: | ||||||
Effective Date - 6/30/10
|
$ | 00.00 | $ | 00,000.00 | ||||
7/1/10 - 12/31/10
|
$ | 20.00 | $ | 23,505.00 | ||||
1/1/11 - 12/31/11
|
$ | 20.00 | $ | 23,505.00 | ||||
1/1/12 - 12/31/12
|
$ | 20.00 | $ | 23,505.00 | ||||
1/1/13 - 12/31/13
|
$ | 22.00 | $ | 25,855.50 | ||||
1/1/14 - 12/31/14
|
$ | 22.00 | $ | 25,855.50 | ||||
1/1/15 - 12/31/15
|
$ | 22.00 | $ | 25,855.50 | ||||
1/1/16 - 08/31/16
|
$ | 23.00 | $ | 27,030.75 |
Period: | Annual Base Rent per R.S.F.: | Monthly Base Rent: | ||||||
Effective Date 12/31/09
|
$ | 00.00 | $ | 00,000.00 | ||||
1/1/10 12/31/10
|
$ | 20.00 | $ | 23,503.33 | ||||
1/1/11 12/31/11
|
$ | 20.00 | $ | 23,503.33 | ||||
1/1/12 12/31/12
|
$ | 20.00 | $ | 23,503.33 | ||||
1/1/13 12/31/13
|
$ | 22.00 | $ | 25,853.67 | ||||
1/1/14 12/31/14
|
$ | 22.00 | $ | 25,853.67 | ||||
1/1/15 12/31/15
|
$ | 22.00 | $ | 25,853.67 | ||||
1/1/16 08/31/16
|
$ | 23.00 | $ | 27,028.83 |
LANDLORD
:
ARI-COMMERCIAL PROPERTIES, INC., a California corporation, in its capacity as agent for the tenants in common owners of the Property |
||||
By: | /s/ Signature Illegible | |||
Name: | Name Illegible | |||
Title: | VP Asset Mgmt | |||
TENANT
:
REALPAGE, INC., a Delaware corporation |
||||
By: | /s/ Tim Barker | |||
Name: | Tim Barker | |||
Title: | CFO |
| $400,000 on the earlier to occur of: (a) sixty (60) days following the date of full execution and delivery of this Amendment or (b) within ten (10) business days following Landlords receipt of a joint check payable to Landlord and Tenant, said check to be endorsed over to Tenant, such endorsement to be made without any representation or warranty to the collectibility; and | ||
| $285,894 on the earlier to occur of: (a) July 1, 2009, or (b) within ten (10) business days following Landlords receipt of a joint check payable to Landlord and Tenant, said check to be endorsed over to Tenant, such endorsement to be made without any representation or warranty to the collectibility. |
Re: | 4000 International Parkway | |
Carrollton, Texas |
THE STATE OF TEXAS
|
§
§ |
KNOW ALL MEN BY THESE PRESENTS: | ||
COUNTY OF DENTON
|
§ |
LANDLORD
:
ARI-COMMERCIAL PROPERTIES, INC., a California corporation, in its capacity as agent for the tenants in common owners of the Property |
||||
By: | /s/ Signature Illegible | |||
Name: | Name Illegible | |||
Title: | VP ASSET MGMT | |||
TENANT
:
REALPAGE, INC., a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | CFO | |||
Page | ||||
Lease Date
|
iv | |||
Tenant
|
iv | |||
Tenants Address
|
iv | |||
Tenants Contact
|
iv | |||
Landlord
|
iv | |||
Landlords Address
|
iv | |||
Landlords Contact
|
iv | |||
Premises
|
iv | |||
Term
|
iv | |||
Basic Rental
|
iv | |||
Security Deposit
|
iv | |||
Rent
|
iv | |||
Permitted Use
|
iv | |||
Tenants Proportionate Share
|
v | |||
Tenant Allowance
|
v | |||
Comparable Buildings
|
v | |||
|
||||
Lease Agreement
|
||||
Definitions and Basic Provisions
|
1 | |||
Lease Grant
|
1 | |||
Term
|
1 | |||
Rent
|
1 | |||
Security Deposit
|
3 | |||
Landlords Obligations
|
4 | |||
Improvements; Alterations; Repairs; Maintenance
|
8 | |||
Use
|
10 | |||
Assignment and Subletting
|
10 | |||
Insurance; Waivers; Subrogation; Indemnity
|
13 | |||
Subordination; Attornment; Notice to Landlords Mortgagee
|
14 | |||
Rules and Regulations
|
15 | |||
Condemnation
|
15 | |||
Fire or Other Casualty
|
16 | |||
Events of Default
|
17 | |||
Remedies
|
18 | |||
Payment; Non-Waiver
|
20 | |||
Landlords Lien
|
20 | |||
Surrender of Premises
|
21 | |||
Holding Over
|
22 | |||
Certain Rights Reserved by Landlord
|
22 | |||
Substitution Space
|
23 | |||
Miscellaneous
|
23 |
Outline of the Premises
Legal Description of the Land
Building Rules and Regulations
Operating Expenses
Tenant Finish Work: Allowance
Shell Construction
Space Plan
Renewal Option
Parking
Janitorial Specifications
Signage Criteria
Furniture
Conduit
Conduit Diagram
Page
8
13
1
Exh. C
Exh. C
1
iii
iv
5
16
21
iv, 1
i
Exh. D
v, Exh. D
Exh. C
16
2
17
Exh. C
Exh. C
Exh. D
13
iv
iv, 1
14
Page
v, 1
7
14
Exh. F
12
iv
14
iv
iv
iv
iv 2
Exh. D
Exh. D
Exh. D
15
Exh. C
iii, 1
Exh. D
iii
iii
11
21
Exh. C
Exh. D
Exh. D
Lease Date:
|
August 28, 2006 | |
|
||
Tenant:
|
RealPage, Inc., a Delaware corporation | |
|
||
Tenants Address
|
4000 International Parkway, Suite 1000 Carrollton, Texas 75007 | |
|
||
Contact:
|
Timothy J. Barker Telephone: 972.820.3919 | |
|
||
Landlord:
|
Savoy IBP 8, Ltd., a Texas limited partnership | |
|
||
Landlords Address:
|
4100 International Parkway | |
|
Suite 1100 | |
|
Carrollton, Texas 75007 | |
|
||
Contact:
|
Mack Dennis Telephone: (972) 820 2215 | |
|
||
Premises:
|
Suite No. 1000, in the office building (the Building ) located or to be located on the land described as International Business Park, Carrollton, Denton County, Texas, and whose street address is 4120 International Parkway, Carrollton, Texas 75007, as particularly described in Exhibit A-1 (the Land ). The Building and Land together comprise the Project . The Premises are outlined on the plan attached to the Lease as Exhibit A and shall contain 29,211 square feet of rentable area ( Total Rentable Square Feet of the Premises or singularly Total Premises Rentable Square Foot ). The Building contains 99,804 of total square feet of rentable area ( Total Rentable Square Feet of the Building or singularly Total Building Rentable Square Foot ). | |
|
||
Term:
|
Commencing September 1, 2006 (the Commencement Date ), and ending at 5:00 p.m. August 31, 2016, subject to earlier termination and extension as provided in the Lease. |
Annual Rate per | ||||||||||||
Rentable Square | Basic Monthly | |||||||||||
Basic Rental: | Period | Foot | Rental | |||||||||
|
September 1, 2006- | $ | 20.00 | $ | 48,685.00 | |||||||
|
August 31, 2016 |
Security Deposit:
|
$48,685.00 due upon execution of the Lease as referenced in Section 5 of the Lease. |
Rent:
|
Basic Rental, Tenants share of Electrical Costs, Excess (if any), and all other sums that Tenant may owe to Landlord under the Lease. | |
|
||
Permitted Use:
|
General office use, as more fully defined herein. | |
|
||
Tenants
Proportionate Share:
|
29.268% (which is the percentage obtained by dividing the Total Rentable Square Feet of the Premises by the Total Rentable Square Feet of the Building). | |
|
||
Tenant Allowance:
|
$10.00 per Rentable Square Foot within the Premises. | |
|
||
Comparable Buildings:
|
As used herein or in the Lease, the term Comparable Buildings shall mean those low-rise garden style, multi-tenant, commercial office buildings completed on or after January 1, 1997, which are comparable to the Building in size, design, quality, use, and tenant mix, and which are located in the same market area (i.e., Plano area North of Frankford, East of I-35E, West of Preston Road and South of State Hwy. 121). |
By:
Name: |
/s/ Mack W. Dennis
|
|||
Title:
|
Senior Vice President |
By:
Name: |
/s/ Stephen T. Winn
|
|||
Title:
|
Chairman, CEO & President |
DEFINITIONS AND
BASIC PROVISIONS |
1. The definitions and basic provisions set forth in the Basic Lease Information (the Basic Lease Information ) executed by Landlord and Tenant contemporaneously herewith are incorporated herein by reference for all purposes. To the extent of any conflict between the Basic Lease Information and any provision contained in this Lease, this Lease shall control. | |
|
||
LEASE GRANT
|
2. Subject to the terms of this Lease, Landlord leases to Tenant, and Tenant leases from Landlord, the Premises. | |
|
||
TERM
|
3. The Term shall commence September 1, 2006 (the Commencement Date ), and end at 5:00 p.m. August 31, 2016, subject to renewal options as provided in Exhibit E. Landlord shall deliver possession of the Premises to Tenant upon execution hereof. By occupying the Premises, Tenant shall be deemed to have accepted the Premises in their condition as of the date of such occupancy, subject to Landlords completion of any related punch-list items. Tenant shall execute and deliver to Landlord, within ten (10) days after Landlord has requested same, a letter confirming (1) the Commencement Date, (2) that Tenant has accepted the Premises, and (3) that Landlord has performed all of its obligations with respect to the Premises. | |
|
||
RENT
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4. (a) Payment . Tenant shall timely pay to Landlord the Rent without deduction or set off (except as otherwise expressly provided herein), at Landlords Address (or such other address as Landlord may from time to time designate in writing to Tenant). Basic Rental shall be payable monthly in advance. The first full monthly installment of Basic Rental shall be payable contemporaneously with the execution of this Lease; thereafter, monthly installments of Basic Rental shall be due on the first day of each succeeding calendar month during the Term. Basic Rental for any partial month at the beginning or end of the Term shall be prorated based upon the number of days within the Term during the partial month multiplied by 1/365 of the then current annual Basic Rental and shall be due on or before the fifth day immediately preceding the Commencement Date, or first day of the last calendar month of the Term, as applicable. | |
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(b) Electrical Costs . Tenant shall pay to Landlord an amount equal to the product of (1) the cost of all electricity used by the Project ( Electrical Costs ), multiplied by (2) Tenants |
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Proportionate Share plus (3) the actual cost of any submetered electrical usage in the Premises. Such amount shall be payable monthly based on Landlords reasonable estimate of the amount due for each month, and shall be due on the Commencement Date and on the first day of each calendar month thereafter. | |
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At Tenants election, and subject to Landlords prior approval, Tenant may install a wattage-based electrical submetering system ( Submetering System ) for the Premises to capture Tenants actual use of electricity, including the 24/7 RTU (roof top unit(s)) in the Premises. Where Tenant installs the Submetering System, the preceding paragraph shall no longer apply, and Tenant then shall pay to Landlord an amount equal to the product of (1) the actual cost of all electricity used by the Project for the Projects common areas ( Electrical Costs ), multiplied by Tenants Proportionate Share plus (2) the actual cost of any submetered electrical usage in the Premises. Such amount shall be payable monthly based on Landlords reasonable estimate of the amount due for each month, and shall be due on the Commencement Date and on the first day of each calendar month thereafter. Provided Tenant implements the Submetering System on or before March 31, 2007, Tenant may include the Submetering Systems as part of the Tenant Allowance hereunder. | |
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(c) Annual Electrical Cost Statement . By April 1 of each calendar year, or as soon thereafter as practicable, Landlord shall furnish to Tenant a statement of Landlords actual Electrical Costs (the Annual Electrical Cost Statement ) for the previous year adjusted as provided in Section 4.(d), which shall include a reconciliation of the actual amount Tenant owes for its share of Electrical Costs against any estimated amount collected from Tenant. If such reconciliation shows that Tenant paid more than owed, then Landlord shall reimburse Tenant by check or cash for such excess within thirty (30) days after delivery of the Annual Electrical Cost Statement; conversely, if Tenant paid less than it owed, then Tenant shall pay Landlord such deficiency within thirty (30) days after delivery of the Annual Electrical Cost Statement. | |
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(d) Adjustments to Electrical Costs . With respect to any calendar year or partial calendar year in which the Building is not occupied to the extent of 95% of the rentable area thereof, the Electrical Costs for such period shall, for the purposes hereof, be increased to the amount which would have been incurred had the Building been occupied to the extent of 95% of the rentable area thereof. |
(e)
Delinquent Payment
. Subject to the one-time
exception provided below, if any payment required by
Tenant under this Lease is not paid when due, Landlord
may charge Tenant a fee equal to 5% of the delinquent
payment to reimburse Landlord for its cost and
inconvenience incurred as a consequence of Tenants
delinquency. Said late charge shall be waived one
time during any consecutive twelve (12) month period
(i.e., upon waiver of a late charge, it shall not
again be waived until at least twelve (12) months has
passed since the late charge has been waived) provided
full payment is received by Landlord within ten (10)
business days of notice as provided within Section
15.(a) written below. In no event shall the charges
permitted under Section 4.(e) or elsewhere in this
Lease, to the extent the same are considered to be
interest under applicable law, exceed the maximum
lawful rate of interest.
(f)
Taxes
. Tenant shall be liable for all taxes
levied or assessed against personal property,
furniture, or fixtures placed by Tenant in the
Premises. If any taxes for which Tenant is liable are
levied or assessed against Landlord or Landlords
property and Landlord elects to pay the same, or if
the assessed value of Landlords property is increased
by inclusion of such personal property, furniture or
fixtures and Landlord elects to pay the taxes based on
such increase, then Tenant shall pay to Landlord,
within ten (10) days of demand, that part of such
taxes for which Tenant is primarily liable.
(g)
Excess
. Tenant shall pay the Excess in the Basic
Cost over the Expense Stop as such terms are defined
in Exhibit C.
5. Contemporaneously with the execution of this Lease,
Tenant shall pay to Landlord, in immediately available
funds, the Security Deposit, which shall be held by
Landlord without liability for interest and as
security for performance by Tenant of its obligations
under this Lease. The Security Deposit is not an
advance payment of Rent or a measure or limit of
Landlords damages upon an Event of Default (defined
below). Landlord may, from time to time upon written
notice to Tenant and without prejudice to any other
remedy, use all or a part of the Security Deposit to
perform any obligation which Tenant was obligated, but
failed to perform hereunder. Following any such
application of the Security Deposit, Tenant shall pay
to Landlord on demand the amount so applied in order
to restore the Security Deposit to its original
amount. Within thirty (30) days after the expiration
of the Term, as may have been extended, provided
Tenant has performed all of its obligations hereunder,
Landlord shall return
to Tenant the balance of the
Security Deposit not applied to satisfy Tenants
obligations. If Landlord transfers its interest in
the Premises, then Landlord may assign the Security
Deposit to the transferee and Landlord thereafter
shall have no further liability for the return of the
Security Deposit to Tenant.
6. (a)
Services; Maintenance
. Landlord shall furnish
to Tenant (1) potable water (hot and cold) at those
points of supply provided for general use of tenants
of the Building; (2) heated and refrigerated air
conditioning from 7 a.m. to 7 p.m. Monday through
Friday and 7 a.m. to 2 p.m. on Saturday, except for
New Years Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day, and the Friday following
Thanksgiving Day, and Christmas Day (which days shall
be collectively referred to herein as
Holidays
)
sufficient to maintain temperatures during these hours
as follows: (a) in the winter a minimum of 70 degrees
Fahrenheit dry bulb when the outside temperature is
not less than 10 degrees Fahrenheit dry bulb and (b)
in the summer a maximum of 78 degrees Fahrenheit dry
bulb when the outside temperature is not more than 105
degrees Fahrenheit dry bulb, in each case for those
portions of the Premises in which temperature is not
affected by computer and other heat generating
equipment (other than desk top laser printers,
personal computers and other machines of similar low
electrical consumption except in areas where more than
two (2) such machines operation per employee desk; (3)
janitorial service to the Premises on weekdays other
than Holidays (Landlord reserves the right to bill
Tenant separately for extra janitorial service
required for any special improvements installed by or
at the request a Tenant) and such window washing as
may from time to time in Landlords judgment be
reasonably required, such janitorial services to be
generally in accordance with those services described
in Exhibit G; (4) non-exclusive elevator for ingress
and egress to the floors on which the Premises are
located; (5) replacement of Building-standard light
bulbs and fluorescent tubes; provided that Landlords
standard charge for such bulbs and tubes shall be paid
by Tenant; and (6) electrical current (subject to
Tenants obligation to pay its share of Electrical
Costs as provided herein). If Tenant desires heat and
air conditioning at any time other than times herein
designated, such services shall be supplied to Tenant
upon reasonable advance notice and Tenant shall pay to
Landlord $40.00 per hour (minimum two hours) for each
additional hour (prorated and rounded up to the
nearest quarter hour) such services are provided,
Landlord shall generate a monthly invoice for such
usage, and such amount shall being payable in arrears
in the month next following the month in which such
service was
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provided. Landlords obligation to furnish services under this Section shall be subject to the rules, regulations and other conditions or requirements of the supplier of such services and any applicable government entity or agency therefore. | |
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(b) Maintenance . Landlord shall maintain all Shell Construction items, Building Systems (defined below), and Building common areas including all parking areas and landscaping, in good order and condition as customary for Comparable Buildings. Building Systems shall include all electrical, plumbing, and air conditioning systems within the Building which either were included in the Shell Construction or which were installed by Tenant pursuant to this Lease and which meet the following requirements: (i) properly approved by Landlord; (ii) installed in conformance with all plans and specifications as approved by Landlord; (iii) Tenant shall have informed Landlord in writing of the name, address, phone number and contact person of the contractor responsible for the installation of such system; (iv) Tenant shall have assigned in writing all contractors and manufacturers warranties received by Tenant in connection with such system; and (v) in connection with Tenants contracting for the installation thereof, Landlord shall have been expressly named as a third party beneficiary to, and shall have been provided copies of, such contract and any related warranties. Notwithstanding the foregoing, Building Systems shall not include any improvements made to or within the Premises which differ from the base building systems or are otherwise specialized to Tenants use and occupancy of the Premises and not customary for office tenants in Comparable Buildings. Any such improvement shall be maintained and repaired by Tenant, at its sole cost and expense, with contractors and subcontractors approved by Landlord in writing and otherwise in accordance with the provisions of Subsections 7(b) and 7(d) below. Landlord agrees to provide services and to maintain the Building in a manner consistent with the services and maintenance provided to office tenants in Comparable Buildings; provided, however, all costs and expenses associated with the maintenance, repair and/or replacement of any item, element or component of Building Systems which was installed by or at the request of Tenant (except as approved above) shall be borne solely by Tenant, and Tenant agrees to reimburse Landlord for all such costs and expenses within fifteen (15) days after receipt of an invoice therefor. | |
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(c) Excess Electrical Use . Landlord shall use reasonable efforts to furnish electrical current for computers, electronic data processing equipment, special lighting, or other |
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equipment that requires more than 120 volts, or other equipment whose electrical energy consumption exceeds normal office usage, through any existing feeders and risers serving the Building and the Premises. Tenant shall not install any electrical equipment requiring special wiring or requiring voltage in excess of 120 volts or otherwise exceeding Building capacity unless approved in advance by Landlord, which approval shall not be unreasonably delayed, withheld or conditioned. The use of electricity in the Premises shall not exceed the capacity of existing feeders and risers to or wiring in the Premises. Any risers or wiring required to meet Tenants excess electrical requirements shall, upon Tenants request, be installed by Landlord (unless otherwise agreed by Landlord) at Tenants expense, if in Landlords sole and absolute judgment, the same are necessary and shall not cause permanent damage or injury to the Building or the Premises, cause or create a dangerous or hazardous condition, entail excessive or unreasonable alterations, repairs, or expenses, or interfere with or disturb other tenants of the Building. If Tenant uses machines or equipment (other than general office machines, excluding computers and electronic data processing equipment) in the Premises which affect the temperature otherwise maintained by the air conditioning system or otherwise overload any utility, after thirty (30) days written notice to Tenant, during which time Tenant shall have the opportunity to cease such overload activities or agree to provide supplemental air conditioning units, and if Tenant fails to do either, then Landlord may install supplemental air conditioning units or other supplemental equipment in the Premises, and the cost thereof, including the cost of installation, operation, use, and maintenance, shall be paid by Tenant to Landlord within ten (10) days after Landlord has delivered to Tenant an invoice therefor. At the time of Tenants submission of plans and specifications for Landlords approval pursuant to Section 7 herein or Exhibit D to this Lease, Landlord and Tenant shall cooperate in good faith to identify any fixtures, equipment and/or appliances to be installed or placed in the Premises which fixtures, equipment or appliances would exceed the normal and customary electrical use and consumption of typical office tenants in Comparable Buildings, would affect the temperature otherwise maintained by the air conditioning system, or would require electric capacity in excess of any planned or existing feeders, risers, or wiring to the Premises. | |
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(d) Restoration of Services; Abatement . Landlord shall use reasonable efforts to restore any service that becomes unavailable; however, such unavailability shall not render |
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Landlord liable for any damages caused thereby, be a constructive eviction of Tenant, constitute a breach of any implied warranty, or except as provided in the next sentence, entitle Tenant to any abatement of Tenants obligations hereunder. However, if Tenant is prevented from making reasonable use of all or a portion of the Premises for more than five (5) consecutive business days because of the unavailability of any such service, Tenant shall, as its exclusive remedy therefor, be entitled to abatement of Rent, or the pro rata portion thereof equivalent to the portion of the Premises rendered unusable to the entire Premises, for each consecutive day (after such five (5) business day period) that Tenant is so prevented from making reasonable use of the Premises or the applicable portion thereof. | |
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(e) Access . Subject to any Building rules and regulations, necessary repairs and maintenance, and any events beyond Landlords reasonable control which would prevent access, Tenant shall have access to the Premises twenty-four (24) hours a day, seven (7) days a week. The Building shall include twenty-four (24) hour access by security card which cards shall be provided to Tenant upon payment of a $10 refundable deposit per card. Tenant may install its own, independent security card system for controlling access to, from and within the Premises, and Landlord shall, to the extent reasonably practicable, work with Tenant to integrate Tenants card access system with the Building card access system so that the access control system at the main entrance to the Building could be operated by Tenants access cards as well as Landlords access cards. Tenant shall provide Landlord, at no cost to Landlord, not less than two (2) master access cards to Tenants security card system which will permit Landlord access to all portions of the Premises at all times. An on-site security patrol (within and for the benefit of the entire International Business Park of which the Building is a part and not solely within or for the sole benefit of the Building) will be provided for approximately ten (10) hours per night, seven (7) nights per week. Such patrol will provide escort service to Tenants employees to and from the Building and the Parking Area during those hours which such patrol is provided and upon such notice as may be reasonably required by such patrol. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, LANDLORD SHALL HAVE NO RESPONSIBILITY TO PREVENT, AND SHALL NOT BE LIABLE TO TENANT, ITS EMPLOYEES; AGENTS, NOR ANY OTHER PERSON FOR LOSSES DUE TO THEFT OR BURGLARY, OR FOR DAMAGES OR INJURY TO PERSONS OR PROPERTY DONE BY PERSONS GAINING ACCESS TO THE PROJECT |
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Rules of the Texas Department of Licensing and Regulation. Thereafter, notwithstanding anything in this Lease to the contrary, Tenant shall be responsible for all costs incurred to cause the Premises to comply with any such laws, rules or regulations, including not by limitation the retrofit requirements of the ADA and TAS, as may be amended. | |
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(b) Tenant Repairs; Maintenance . Except for those janitorial services to be provided by Landlord as expressly provided in this Lease, Tenant shall maintain its personal property and all improvements or alterations to the Premises other than those items included in Shell Construction (including all heating, ventilation and air conditioning systems ( HVAC ) as described in Exhibit D-1 from the point of supply to the point of entry into the Premises),which shall be maintained by Landlord, in a clean, safe, operable, attractive condition, and shall not permit or allow to remain any waste or damage to any portion of the Premises. Subject to the provisions of Section 10.(b) and 14, and normal wear and tear, Tenant shall repair or replace, subject to Landlords direction and supervision, any damage to the Project caused by Tenant or Tenants agents, contractors, or invitees. If Tenant fails to commence and diligently pursue such repairs or replacements within fifteen (15) days after the occurrence of such damage, then Landlord, upon written notice to Tenant, may make the same at Tenants expense, which shall be payable to Landlord within ten (10) days after Landlord has delivered to Tenant an invoice therefor. | |
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(c) Performance of Work . All work described in this Section 7 shall be performed only by Landlord or by contractors and subcontractors approved in writing by Landlord. Tenant shall cause all contractors and subcontractors to procure and maintain insurance coverage against such risks, in such amounts, and with such companies as Landlord may reasonably require. All such work shall be performed in accordance with all legal requirements and in a good and workmanlike manner so as not to damage the Premises, the structure of the Building, or plumbing, electrical lines, or other utility transmission facilities or Building mechanical systems. All such work which may affect the Buildings electrical, mechanical, plumbing or other systems must be approved by the Buildings engineer of record. | |
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(d) Mechanics Liens . Tenant shall not permit any mechanics liens to be filed against the Project for any work performed, materials furnished, or obligation incurred by or at the request of Tenant. If such a lien is filed, then Tenant shall, within thirty (30) days after Landlord has delivered notice of the filing to |
Tenant, either pay the amount of the lien or
diligently contest such lien and deliver to Landlord a
bond or other security reasonably satisfactory to
Landlord. If Tenant fails to timely take either such
action, then Landlord may pay the lien claim without
inquiry as to the validity thereof, and any amounts so
paid, including expenses and interest, shall be paid
by Tenant to Landlord within ten (10) days after
Landlord has delivered to Tenant an invoice therefore.
8. Tenant shall occupy and use the Premises only for
the Permitted Use and shall comply with all laws,
orders, rules, and regulations relating to the use,
condition, and occupancy of the Premises. General
Office use includes but is not limited to operation of
a data center, call center, computer room, customer
training center and software reproduction, packaging
and shipping center; software development; web page
design and hosting; product support; sales and
administration; with some functions operational 24
hours per day, 7 days per week. The Premises shall
not be used for (i) any use which is disreputable,
(ii) creates extraordinary fire hazards, (iii) results
in an increased rate of insurance on the Building or
its contents, or (iv) the storage of any hazardous
materials or substances in violation of environmental
laws. If, because of Tenants acts, the rate of
insurance on the Building or its contents increases,
Tenant shall pay to Landlord the amount of such
increase on demand, and acceptance of such payment
shall not constitute a waiver of any of Landlords
other rights. Tenant shall conduct its business and
control its agents, employees, and invitees in such a
manner as not to create any nuisance or interfere with
other tenants or Landlord in its management of the
Project. Landlord agrees not to lease space in the
Project to a competitor of Tenant (as described in
Section 23.(s)) during the term of this Lease,
including any renewals or extensions.
SUBLETTING
9. (a)
Transfers; Consent
. Other than permitted
transfers as described below, Tenant shall not,
without the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed,
(1) advertise that any portion of the Premises is
available for lease (excluding the engagement of a
real estate broker to market sublease space), (2)
assign, transfer, or encumber this Lease or any estate
or interest herein whether directly or by operation of
law, (3) if Tenant is an entity other than a
corporation whose stock is publicly traded, permit the
transfer of an ownership interest in Tenant so as to
result in a change in the current control of Tenant,
(4) sublet any portion of the Premises, (5) grant any
license, concession, or other right of occupancy of
any portion of the Premises, or (6) permit the use of
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the Premises by any parties other than Tenant (any of the events listed in Sections 9.(a)(2) through 9.(a)(6) being a Transfer ). If Tenant requests Landlords consent to a Transfer, then Tenant shall provide Landlord with a written description of all terms and conditions of the proposed Transfer, copies of the proposed documentation, and the following information about the proposed transferee: name and address; reasonably satisfactory information about its business and business history; its proposed use of the Premises; and general references sufficient to enable Landlord to determine the proposed transferees reputation and character. Landlord shall respond in writing to Tenants request for a Transfer within ten (10) business days of receipt of written request therefor. Tenant shall reimburse Landlord for its attorneys fees and other expenses incurred in connection with considering any request for its consent to a Transfer (not to exceed $500 per request). Landlord shall not unreasonably withhold, delay or condition its consent except that Landlord may withhold or condition its consent if it reasonably determines that the proposed transferee or its use (including not by limitation the number of employees, hours of operation, parking requirements, electrical or other Building system requirements, conflicts or competition with existing tenants) is unacceptable, would burden the Building, or are incompatible with the Building or its occupants. If Landlord consents to a proposed Transfer, then the proposed transferee shall deliver to Landlord a written agreement whereby it expressly assumes the Tenants obligations hereunder; however, any transferee of less than all of the space in the Premises shall be liable only for obligations under this Lease that are properly allocable to the space subject to the Transfer, and only to the extent of the rent it has agreed to pay Tenant therefor. Landlords consent to a Transfer shall not release Tenant from performing its obligations under this Lease, but rather Tenant and its transferee shall be jointly and severally liable therefor. Landlords consent to any Transfer shall not waive Landlords rights as to any subsequent Transfers. If an Event of Default occurs while the Premises or any part thereof are subject to a Transfer, then Landlord, in addition to its other remedies, may collect directly from such transferee all rents becoming due to Tenant and apply such rents against Rent. Tenant authorizes its transferees to make payments of rent directly to Landlord upon Tenants receipt of notice from Landlord to do so; however, Landlord shall not be obligated to accept separate Rent payments from any transferees and may require that all Rent be paid directly by Tenant. |
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(i) Permitted Transfers . Tenant shall be permitted without the consent of Landlord, to periodically sublet portions of the Premises or to assign this Lease to any Affiliate of Tenant so long as the Premises continue to be used solely for the Permitted Use and the parking requirements of the subtenant or assignee are no greater than those of Tenant (such transfer being deemed a Permitted Transfer ). As used herein, Affiliate shall mean any person or entity, directly or indirectly, through one or more intermediaries, controlling, controlled by or under common control with Tenant, or any person or entity merging with Tenant, or acquiring the majority of the voting stock of Tenant, or acquiring all or substantially all of the assets of Tenant. As used herein control shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management of and policies of such controlled person or entity. Following any such assignment or subletting, Tenant shall remain primarily liable for all present and future obligations under this Lease, or if Tenant no longer exists because of a merger or acquisition, the surviving or acquiring entity shall expressly assume the obligations of Tenant hereunder. Tenant shall promptly notify Landlord in writing within ten (10) days after such assignment or subletting. | |
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(b) Additional Compensation . Tenant shall pay to Landlord, immediately upon receipt thereof, one-half (1/2) of all rent received by Tenant for a Transfer (other than a Permitted Transfer) that exceeds the Rent allocable to the portion of the Premises covered thereby after Tenant has recovered from any such excess all costs associated with such assignment or subletting, (i.e. marketing, advertising and promotional costs, real estate commissions, legal fees and construction costs). Tenant shall hold such amounts in trust for Landlord and pay them to Landlord within ten (10) days after receipt. | |
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(c) Cancellation . Notwithstanding anything to the contrary herein, Landlord shall have the option, upon any request by Tenant for Landlords approval of a Transfer (i) of more than thirty percent (30%) (in the aggregate including those Transfers, then in effect and as then requested) of the Premises and (ii) where the Basic Rental payable under the terms of all such Transfers (including the proposed Transfer) exceeds the total Basic Rental provided by the Lease, to terminate this Lease as to, and retake possession of, that portion of the Premises as would be subject to such requested Transfer. Such termination shall be effective as of the date on which such transfer was to be effective. If Landlord terminates this Lease as to any portion of the |
Premises, then this Lease shall
cease for such portion of the Premises; and Tenant
shall pay to Landlord all Rent accrued through the
termination date relating to the portion of the
Premises covered by the proposed Transfer and
unamortized brokerage commissions (amortized on a
straight-line basis over the initial Term of the
Lease) paid or payable by Landlord in connection with
this Lease to the brokerage firms listed in Section
23.(d) that are allocable to such portion of the
Premises. Thereafter, Landlord may lease such portion
of the Premises to the prospective transferee (or to
any other person) without liability to Tenant. In
such event, prior to the effective date of such
termination, and subject to Landlords direction and
supervision, Tenant shall be solely responsible for
the cost and construction of a wall demising the
remaining Premises from the portion of the Premises as
to which the Lease is terminated.
10. (a)
Insurance
. Tenant shall at its expense
procure and maintain; throughout the Term the
following insurance policies: (1) commercial general
liability insurance in amounts of not less than a
combined single limit of $5,000,000 (the
Initial
Liability Insurance Amount
) or such other amounts as
Landlord may from time to time reasonably require,
insuring Tenant, Landlord, Landlords agents, and
their respective affiliates against all liability for
injury to of death of a person or persons or damage to
property arising from the use and occupancy of the
Premises, and (2) insurance covering the full value of
Tenants property and improvements, and other property
(including property of others), in the Premises.
Tenants insurance shall provide primary coverage to
Landlord when any policy issued to Landlord provides
duplicate or similar coverage, and in such
circumstance Landlords policy will be excess over
Tenants policy. Tenant shall furnish certificates of
such insurance and such other evidence satisfactory to
Landlord of the maintenance of all insurance coverage
required hereunder, and Tenant shall obtain a written
obligation on the part of each insurance company to
notify Landlord at least thirty (30) days before
cancellation or a material change of any such
insurance. All such insurance policies shall be in
form, and be issued by companies, reasonably
satisfactory to Landlord. The term
affiliate
shall
mean any person or entity which, directly or
indirectly, controls, is controlled by, or is under
common control with the party in question. Landlord
shall maintain commercial general liability insurance
covering the Land and Building in amounts not less
than a combined single limit of $5,000,000 or such
other amounts as Landlord may reasonably determine.
(b)
Waiver of Claims; No Subrogation
. Neither
Landlord nor Tenant shall have any liability to the
other for any damage or injury to the property of
Landlord or Tenant, including the Building and tenant
improvements in the Premises, arising from or caused
by any cause customarily insured against under a
standard fire and extended casualty insurance policy,
even if caused by the negligence of Landlord, Tenant,
or their shareholders, partners, officers and
employees, and no insurer shall have any rights of
subrogation with respect to the foregoing. Landlord
shall not be liable or responsible to Tenant for any
loss or damage to any property or person occasioned by
theft, fire, casualty, vandalism, acts of God, public
enemy, injunction, riot, strike, inability to procure
materials, insurrection, war, court order, requisition
or order of governmental body or authority, or for any
other causes beyond Landlords control. All goods,
property or personal effects stored or placed by
Tenant in or about the Building shall be at the sole
risk of Tenant.
(c)
Indemnity
. Subject to Section 10.(b), each party
shall indemnify and hold harmless the other from and
against any and all claims, demands, liabilities,
causes of action, suits, judgments and expenses
(including attorneys fees) arising from or for injury
to third persons or damage to property owned by third
persons and caused by the negligence or intentional
torts of the indemnifying party.
11. (a)
Subordination
. Subject to the condition set
forth in the following sentence, this Lease shall be
subordinate to any deed of trust, mortgage, or other
security instrument (a
Mortgage
), or any ground
lease, master lease; or primary lease (a
Primary
Lease
), that now or hereafter covers all or any part
of the Premises (the mortgagee under any Mortgage or
the lessor under any Primary Lease is referred to
herein as
Landlords Mortgagee
). As a condition to
such subordination, Landlord shall obtain from
Landlords Mortgagee, both existing and future, and
deliver to Tenant a non-disturbance agreement for the
benefit of Tenant in a form reasonably acceptable to
Landlord, Landlords Mortgagee, and Tenant.
(b)
Attornment
. Tenant shall attorn to any party
succeeding to Landlords interest in the Premises,
whether by purchase, foreclosure, deed in lieu of
foreclosure, power of sale, termination of lease, or
otherwise, upon such partys request, and shall
execute such agreements confirming such attornment as
such party may reasonably request.
(c)
Notice to Landlords Mortgagee
. Tenant shall not
seek to enforce any remedy it may have for any default
on the part of the Landlord without first giving
written notice by certified mail, return receipt
requested, specifying the default in reasonable
detail, to any Landlords Mortgagee whose address has
been given to Tenant, and affording such Landlords
Mortgagee a period to perform Landlords obligations
hereunder, which period shall equal the cure period
applicable to Landlord hereunder.
12. Tenant shall comply with the rules and regulations
of the Building which are attached hereto as
Exhibit B
. Landlord may, from time to time, change such rules
and regulations for the safety, care, or cleanliness
of the Building and related facilities, provided that
such changes are applicable to all tenants of the
Building, and will not unreasonably interfere with
Tenants use of the Premises or add any unusual
economic burden or lessen Tenants rights under this
Lease. Tenant shall be responsible for the compliance
with such rules and regulations by its employees,
agents, and invitees.
13.
Taking Tenants Rights
. If any part of the
Project (including parking) is taken by right of
eminent domain for a period exceeding ninety (90) days
or conveyed in lieu thereof (a
Taking
), and such
Taking prevents Tenant from conducting its business
from the Premises in a manner reasonably comparable to
that conducted immediately before such Taking, then
Tenant may terminate this Lease by giving written
notice to Landlord within thirty (30) days after such
Taking. Upon the occurrence of a Taking, Rent shall
be abated on a reasonable basis as to that portion of
the Premises rendered untenantable by the Taking from
the first day of the Taking until such termination.
If Tenant does not terminate this Lease, then Rent
shall be abated on a reasonable basis as to that
portion of the Premises rendered untenantable by the
Taking. If a portion of the Premises or Building are
subject to a Taking and such Taking does not prevent
Tenant from conducting its business in a manner
reasonably comparable to that conducted immediately
before such Taking, the Lease shall remain in full
force and effect and Rent shall be adjusted on a
reasonable basis from the first day of the Taking.
(b)
Taking Landlords Rights
. If any material
portion, but less than all, of the Project or related
parking becomes subject to a Taking, or if Landlord is
required to pay any of the proceeds received for a
Taking to Landlords Mortgagee, then this Lease, at
the option of Landlord, exercised by written notice to
Tenant within thirty (30) days after such Taking,
shall
terminate and Rent shall be adjusted on a
reasonable basis from the first day of the Taking
until such termination. If a partial Taking occurs
and the Lease does not terminate, Rent shall be
adjusted on a reasonable basis from the first day of
the taking.
(c)
Award
. If any Taking occurs, all proceeds shall
belong to and be paid to Landlord, and Tenant shall
not be entitled to any portion thereof except that
Tenant shall have all rights permitted under the laws
of the State of Texas to appear, claim and prove in
proceedings relative to such taking (i) the value of
any fixtures, furnishings, and other personal property
which are taken but which under the terms of this
Lease Tenant is permitted to remove at the end of the
Term, (ii) the unamortized cost (such costs having
been amortized on a straight-line basis over the Term
excluding any renewal terms) of Tenants leasehold
improvements which are taken that Tenant is not
permitted to remove at the end of the Term and which
were installed solely at Tenants expense (i.e., not
made or paid for by Landlord from the Construction
Allowance or otherwise), and (iii) relocation and
moving expenses, but not the value of Tenants
leasehold estate created by this Lease and only so
long as such claims in no way diminish the award
Landlord is entitled to from the condemning authority
as provided hereunder.
14. (a)
Repair Estimate
. If the Premises or the
Building are damaged by fire or other casualty (a
Casualty
), Landlord shall, within sixty (60) days
after such Casualty, deliver to Tenant a good faith
estimate (the
Damage Notice
) of the time needed to
repair or replace the damage caused by such Casualty.
(b)
Casualty Tenants Rights
. If a material portion
of the Premises or the Building is damaged by Casualty
such that Tenant is prevented from conducting its
business in the Premises in a manner reasonably
comparable to that conducted immediately before such
Casualty and Landlord estimates that the damage caused
thereby cannot be repaired within one hundred eighty
(180) days after the date of casualty, then Tenant may
terminate this Lease. Rent for the portion of the
Premises rendered untenantable by the damage shall be
abated on a reasonable basis from the date of damage
until termination. Tenant may terminate this Lease by
delivering written notice to Landlord of its election
to terminate within thirty (30) days after the Damage
Notice has been delivered to Tenant. If Tenant does
not elect to terminate this Lease, then (subject to
Landlords rights under Section 14.(c)), Landlord
shall repair the Building or the Premises, as the case
may be, as provided below. Upon the occurrence of a
Casualty, Rent for the portion of the Premises
rendered untenantable by the damage shall be abated on
a reasonable basis from the date of damage until the
completion of the repair or until such termination.
(c)
Landlords Rights
. If a Casualty damages a
material portion of the Building, and Landlord makes a
good faith determination that restoring the Premises
would be uneconomical, or if Landlord is required to
pay any insurance proceeds arising out of the Casualty
to Landlords Mortgagee, then Landlord may terminate
this Lease by giving written notice of its election to
terminate within thirty (30) days after the Damage
Notice has been delivered to Tenant, and Rent
hereunder shall be abated as of the date of the
Casualty.
(d)
Repair Obligation
. If neither party elects to
terminate this Lease following a Casualty, then
Landlord shall, within a reasonable time after such
Casualty, commence to repair the Building and the
Premises and shall proceed with reasonable diligence
to restore the Building and Premises to substantially
the same condition as they existed immediately before
such Casualty; however, Landlord shall not be required
to repair or replace any part of the furniture,
equipment, fixtures, and other improvements which may
have been placed by, or at the request of, Tenant or
other occupants in the Building or the Premises, and
Landlords obligation to repair or restore the
Building or Premises shall be limited to the extent of
Landlords deductible amount, plus the insurance
proceeds actually received by Landlord for the
Casualty in question.
15.
Events of Default
. Each of the following
occurrences shall constitute an
Event of Default
by
Tenant:
(a) Tenants failure to pay Rent, or any other sums
due from Tenant to Landlord under the Lease (or any
other lease executed by Tenant for space in the
Building), when due, and such failure continues for
ten (10) days after written notice thereof is received
by Tenant from Landlord; however, if Landlord has
given Tenant such notice during the preceding twelve
(12) month period for failure to timely pay any
regularly scheduled installments of Rent (e.g., Basic
Rental, Tenants share of Excess, Tenants
Proportionate Share of Electrical Costs, and similar
Rent payments), then Landlords obligation to give
written notice with respect to regularly scheduled
installments of Rent shall not apply until twelve (12)
months has passed since the last such notice was
given, and in the interim, failure to pay any
regularly scheduled installments of Rent on the date
due shall be an Event of Default without Landlord
having first given such notice;
(b) Tenants failure to perform, comply with, or
observe any other agreement or obligation of Tenant
under this Lease (or any other lease executed by
Tenant for space in the Building), and such failure
continues for thirty (30) days after written notice
thereof is received by Tenant from Landlord; provided,
that if the failure is reasonably capable of cure but
cannot be reasonably be cured within said thirty (30)
days, Tenant shall have an additional period of sixty
(60) days in which to effect the cure provided Tenant
commences the cure within the initial thirty (30) days
and is diligently pursuing same;
(c) The filing of a petition by or against Tenant (the
term
Tenant
shall include, for the purpose of this
Section 15.(c), any guarantor of the Tenants
obligations hereunder) (i) in any bankruptcy or other
insolvency proceeding; (ii) seeking any relief under
any state or federal debtor relief law; (iii) for the
appointment of a liquidator or receiver for all or
substantially all of Tenants property or for Tenants
interest in this Lease; or (iv) for the reorganization
or modification of Tenants capital structure; and
provided that in the case of any of the foregoing
which is filed against Tenant, the same is not
dismissed within ninety (90) days after it is filed;
(d) The admission by Tenant that it cannot meet its
obligations as they become due or the making by Tenant
of an assignment for the benefit of its creditors.
16. (a)
Landlords Remedies
. Upon any Event of
Default by Tenant, Landlord may, subject to any
judicial process and notice to the extent required by
Title 4, Chapter 24 of the Texas Property Code, as may
be amended, in addition to all other rights and
remedies afforded Landlord hereunder or by law or
equity, take any of the following actions:
(i) Terminate this Lease by giving Tenant written
notice thereof, in which event, Tenant shall pay to
Landlord the sum of (1) all Rent accrued hereunder
through the date of termination, (2) all amounts due
under Section 15.(a), and (3) an amount equal to (A)
the total Rent that Tenant would have been required to
pay for the remainder of the Term discounted to
present value at a per annum rate equal to the Prime
Rate as published on the date this Lease is
terminated by The Wall Street Journal, Southwest
Edition, in its listing of Money Rates; minus (B)
the then present fair rental value of the Premises for
such period, similarly discounted; or
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(ii) Terminate Tenants right to possession of the Premises without terminating this Lease by giving written notice thereof to Tenant, in which event Tenant shall pay to Landlord (1) all Rent and other amounts accrued hereunder to the date of termination of possession, (2) all amounts due from time to time under Section 15.(a), and (3) all Rent and other sums required hereunder to be paid by Tenant during the remainder of the Term, diminished by any net sums thereafter received by Landlord through reletting the Premises during such period. Landlord shall use reasonable efforts to relet the Premises on such terms and conditions as Landlord in its sole discretion may determine (including a term different from the Term, rental concessions, and alterations to, and improvement of , the Premises); however, Landlord shall not be obligated to relet the Premises before leasing other portions of the Building. Landlord shall not be liable for, nor shall Tenants obligations hereunder be diminished because of, Landlords failure to relet the Premises or to collect rent due for such reletting. Tenant shall not be entitled to the excess of any consideration obtained by reletting over the Rent due hereunder. Re-entry by Landlord in the Premises shall not affect Tenants obligations hereunder for the unexpired Term; rather, Landlord may, from time to time, bring action against Tenant to collect amounts due by Tenant, without the necessity of Landlords waiting until the expiration of the Term. Unless Landlord delivers written notice to Tenant expressly stating that it has elected to terminate this Lease, all actions taken by Landlord to exclude or dispossess Tenant of the Premises shall be deemed to be taken under this Section 16.(a)(ii). If Landlord elects to proceed under this Section 16.(a)(ii), it may at any time elect to terminate this Lease under Section 16.(a)(i). | |
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(iii) Notwithstanding anything to the contrary herein, Tenant shall not be deemed to have waived any requirements of Landlord to mitigate damages upon an Event of Default as required by law. | |
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(b) Tenants Remedies . | |
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(i) Notice and Cure . If Landlord should fail to perform or observe any covenant, term, provision or condition of this Lease and such default should continue beyond a period of ten (10) days as to a monetary default or thirty (30) days (or such longer period as is reasonably necessary to remedy such default, provided Landlord shall diligently pursue such remedy until such default is cured) as to a non-monetary is default, after in each |
instance
written notice thereof is given by Tenant to Landlord
and Landlords Mortgagee, then, in any such event
Tenant shall have the right (but no obligation) to
cure the default, and Landlord shall reimburse Tenant
for all reasonable sums expended in so curing said
default. Tenant specifically agrees that Landlords
Mortgagee may enter the Premises upon reasonable
notice to Tenant to cure any such default and that the
cure of any default by Landlords Mortgagee shall be
deemed a cure by Landlord under this Lease.
(ii)
Set-off
. If Tenant obtains a judgment against
Landlord or any assignee for any default by Landlord
under this Lease and (i) Tenant provided Landlords
Mortgagee notice and opportunity to cure as described
in Section 11.(c) and Section 16.(b)(i) above, (ii)
said judgment is final and all rights of appeal have
been exercised or have expired, and (iii) such
judgment remains unsatisfied upon thirty (30) days
written notice thereof to Landlords Mortgagee, Tenant
may set off such judgment against Rent.
17. (a)
Payment
. Upon any Event of Default by Tenant,
Tenant shall pay to Landlord all costs incurred by
Landlord (including court costs and reasonable
attorneys fees and expenses) in (1) obtaining
possession of the Premises, (2) removing and storing
Tenants or any other occupants property, (3)
reasonably repairing, restoring, altering, remodeling,
or otherwise putting the Premises into a reasonably
marketable condition, (4) if Tenant is dispossessed of
the Premises and this Lease is not terminated,
reletting all or any part of the Premises (including
brokerage commissions, cost of tenant finish work, and
other costs incidental to such reletting), (5)
performing Tenants obligations which Tenant failed to
perform, and (6) enforcing, or advising Landlord of,
its rights, remedies, and recourses arising out of the
Event of Default.
(b)
No Waiver
. Acceptance or payment of Rent
following any Event of Default shall not waive any
rights regarding such Event of Default. No waiver by
any party of any violation or breach of any of the
terms contained herein shall waive any rights
regarding any future violation of such term or
violation of any other term.
18. In addition to the statutory landlords lien,
Tenant grants to Landlord, to secure performance of
Tenants obligations hereunder, a security interest in
all equipment fixtures, furniture, improvements (and
does not include any tangible or intangible personal
property of Tenant not named specifically) owned by
Tenant and now or hereafter situated on the Premises,
and all proceeds therefrom (the
Collateral
), and the
Collateral shall not be removed from the Premises
without the consent of Landlord until all obligations
of Tenant have been fully performed. Upon the
occurrence of an Event of Default, Landlord may, in
addition to all other remedies, without notice or
demand except as provided below, exercise the rights
afforded a secured party under the Uniform Commercial
Code of the State in which the Building is located
(the
UCC
). In connection with any public or private
sale under the UCC, Landlord shall give Tenant five
(5) days prior written notice of the time and place
of any public sale of the Collateral or of the time
after which any private sale or other intended
disposition thereof is to be made, which is agreed to
be a reasonable notice of such sale or other
disposition. Tenant grants to Landlord a power of
attorney to execute and file any financing statement
or other instrument necessary to perfect Landlords
security interest under this Section 18, which power
is coupled with an interest and shall be irrevocable
during the Term. Landlord may also file a copy of
this Lease as a financing statement to perfect its
security interest in the Collateral. Notwithstanding
the foregoing, Landlord shall subordinate its
landlords lien, upon such terms as are reasonably
acceptable to Landlord and Tenants financier, to any
bona fide third party financing existing or obtained
by Tenant.
19. No act by Landlord shall be deemed an acceptance
of a surrender of the Premises, and no agreement to
accept a surrender of the Premises shall be valid
unless the same is made in writing and signed by
Landlord. At the expiration or termination of this
Lease, subject to Landlords obligation to maintain
the Building, Tenant shall deliver to Landlord the
Premises with all improvements located thereon in good
repair and condition, reasonable wear and tear (and
condemnation and fire or other casualty damage not
caused by Tenant, as to which Sections 13 and 14 shall
control) excepted, and shall deliver to Landlord all
keys and/or access cards to the Premises. Provided
that Tenant has performed all of its obligations
hereunder, Tenant may remove all unattached trade
fixtures, furniture, and personal property placed in
the Premises by Tenant (but Tenant shall not remove
any such item which was paid for, in whole or in part,
by Landlord). Additionally, Tenant may remove such
additional items as Landlord may have agreed. Tenant
shall repair all damage caused by removal of any
items. All items not so removed within thirty (30)
days of expiration or early termination of this Lease
shall be deemed to have been abandoned by Tenant and
may be appropriated, sold, stored, destroyed, or
otherwise
disposed of by Landlord without notice to
Tenant and without any obligation to account for such
items. Tenant upon surrender of the Premises shall be
required to remove any above-ceiling telecommunication
wiring installed for Tenants use in the Premises at
Tenants expense. The provisions of this Section 19
shall survive the end of the Term.
20. If Tenant fails to vacate the Premises at the end
of the Term, then Tenant shall be a tenant at will
and, in addition to all other damages and remedies to
which Landlord may be entitled for such holding over,
Tenant shall pay, in addition to the other Rent, a
daily Basic Rental equal to 150% of the daily Basic
Rental payable during the last month of the Term.
RESERVED BY LANDLORD
21. Subject to Tenants reasonable security
procedures, and provided that the exercise of such
rights does not unreasonably interfere with Tenants
occupancy of the Premises, and upon reasonable advance
notice provided by Landlord to Tenant (except in case
of emergency), Landlord shall have the following
rights:
(a) to decorate and to make inspections, repairs,
alterations, additions, changes, or improvements,
whether structural or otherwise, in and about the
Building, or any part thereof; for such purposes, to
enter upon the Premises and, during the continuance of
any such work, to temporarily close doors, entryways,
public space, and corridors in the Building; to
interrupt or temporarily suspend Building services and
facilities (Landlord shall use reasonable efforts to
complete any work requiring the suspension of Building
services and facilities during off-business hours when
reasonably and commercially practicable to do so); and
to change the arrangement and location of entrances or
passageways, doors, and doorways, corridors,
elevators; stairs, restrooms, or other public parts of
the Building;
(b) to take such reasonable measures as Landlord deems
advisable for the security of the Building and its
occupants, including without limitation searching all
items entering or leaving the Building; evacuating the
Building for cause, suspected cause, or for drill
purposes; temporarily denying access to the Building;
and closing the Building after normal business hours
and on Saturdays, Sundays, and Holidays, subject,
however, to Tenants right to enter when the Building
is closed after normal business hours under such
reasonable regulations as Landlord may prescribe from
time to time which may include by way of example, but
not of limitation, that persons entering or leaving
the Building, whether or not during normal business
hours, identify themselves to a security officer by
registration or otherwise and that such persons
establish their right to enter or leave the Building;
(c) after giving Tenant not less than thirty (30)
days prior written notice, to change the name by
which the Building is designated; and
(d) subject to Tenants security procedures, upon
reasonable advance notice, to enter the Premises
during Tenants regular business hours (or at any time
when accompanied by a representative of Tenant) to
show the Premises to prospective purchasers, lenders,
or, during the last six (6) months of the term of the
Lease, prospective tenants.
Notwithstanding anything hereinabove to the contrary,
except in the event of an emergency,
Tenants
Security Procedures
, described below, shall be
honored by Landlord, its employees, invitees,
contractors, agent and guests:
1)
Landlord shall give Tenant 2 hours written notice
delivered by facsimile;
2)
which notice shall state the names of the visitors
and the purpose and proposed duration of the visit;
3)
except in cases of imminent danger to persons or
property, Landlord shall not have access to the
software development area or the data center or
computer room; and
4)
in all events (except emergencies) Landlord and its
visitors must and shall be escorted by a duly
authorized representative of Tenant.
22. Intentionally Omitted
23. (a)
Landlord Transfer
. Landlord may transfer, in
whole or in part, the Project and any of its rights
under this Lease. If Landlord assigns its rights
under this Lease and such assignee assumes Landlords
obligations hereunder, then Landlord shall thereby be
released from any further obligations hereunder, other
than those obligations accruing prior to the transfer
or assignment.
(b)
Landlords Liability
. The liability of Landlord
to Tenant for any default by Landlord under the terms
of this Lease shall be limited to Tenants actual
direct, but not consequential, damages therefor and
shall be recoverable from the interest of Landlord in
the Project (including any rents, profits, or other
proceeds therefrom), and Landlord shall not be
personally liable
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for any deficiency. This section shall not be deemed to limit or deny any remedies which Tenant may have in the event of default by Landlord hereunder which do not involve the personal liability of Landlord. The liability of Tenant to Landlord for any default by Tenant under the terms of this Lease shall be limited to Landlords actual direct, but not consequential, damages therefor. | |
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(c) Force Majeure . Other than for Tenants monetary obligations under this Lease and obligations which can be cured by the payment of money (e.g., maintaining insurance), whenever a period of time is herein prescribed for action to be taken by either party hereto, such party shall not be liable or responsible for, and there shall be excluded from the computation for any such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, governmental laws, regulations, or restrictions, or any other causes of any kind whatsoever which are beyond the control of such party. | |
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(d) Brokerage . Landlord and Tenant each warrant to the other that it has not dealt with any broker or agent in connection with the negotiation or execution of this Lease, other than Billingsley Property Services, Inc. and Peloton Real Estate Partners , whose commissions shall be paid by Landlord. Tenant and Landlord shall each indemnify the other against all costs, expenses, attorneys fees, and other liability for commissions or other compensation claimed by any broker or agent claiming the same by, through, or under the indemnifying party. | |
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(e) Estoppel Certificates . From time to time, either Landlord or Tenant shall furnish, within ten (10) business days after request therefor, a signed certificate confirming and containing such factual certifications and representations as to this Lease as the requesting party may reasonably request. | |
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(f) Notices . All notices and other communications given pursuant to this Lease shall be in writing and shall be (1) mailed by first class, United States Mail, postage prepaid, certified, with return receipt requested, and addressed to the parties hereto at the address specified in the Basic Lease Information, (2) hand delivered to the intended address, or (3) sent by prepaid telegram, cable, facsimile transmission, or telex followed by a confirmatory letter. Notice sent by certified mail, postage prepaid, shall be effective three business days after being deposited in the United States Mail; all other notices shall be effective upon delivery to the address of the addressee. The parties hereto may change their addresses by giving notice thereof |
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to the other in conformity with this provision. | |
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(g) Courtesy Copy of Notice . Landlord shall send a copy of any notice or other communication given pursuant to this Lease as follows: | |
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RealPage, Inc. | |
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4000 International Parkway | |
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Carrollton, TX 75007 | |
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Attn: General Counsel | |
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Any copy so delivered pursuant to this Section 23.(g) shall not constitute notice hereunder. | |
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(h) Separability . If any clause or provision of this Lease is illegal, invalid, or unenforceable under present or future laws, then the remainder of this Lease shall not be affected thereby and in lieu of such clause or provision, there shall be added as a part of this Lease a clause or provision as similar in terms to such illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable. | |
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(i) Amendments; and Binding Effect . This Lease may not be amended except by instrument in writing signed by Landlord and Tenant. No provision of this Lease shall be deemed to have been waived by Landlord or Tenant unless such waiver is in writing signed by Landlord or Tenant, and no custom or practice which may evolve between the parties in the administration of the terms hereof shall waive or diminish the right of Landlord or Tenant to insist upon the performance by Landlord or Tenant in strict accordance with the terms hereof. The terms and conditions contained in this Lease shall inure to the benefit of and be binding upon the parties hereto, and upon their respective successors in interest and legal representatives, except as otherwise herein expressly provided. This Lease is for the sole benefit of Landlord and Tenant, and, other than Landlords Mortgagee, no third party shall be deemed a third party beneficiary hereof. | |
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(j) Quiet Enjoyment . Provided Tenant has performed all of the terms and conditions of this Lease to be performed by Tenant, Tenant shall peaceably and quietly hold and enjoy the Premises for the Term, without hindrance from Landlord or any party claiming by, through, or under Landlord, subject to the terms and conditions of this Lease. |
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(k) Joint and Several Liability . If there is more than one Tenant, then the obligations hereunder imposed upon Tenant shall be joint and several. If there is a guarantor of Tenants obligations hereunder, then the obligations hereunder imposed upon Tenant shall be the joint and several obligations of Tenant and such guarantor, and Landlord need not first proceed against Tenant before proceeding against such guarantor nor shall any such guarantor be released from its guaranty for any reason whatsoever. | |
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(l) Use of Lobby and/or Common Areas . During the term, and only on weekends, Holidays, and between the hours of 6:00 p.m. and 7:00 p.m. on weekdays (other than Holidays), Tenant shall have the right to use the Building lobby and/or common areas, without charge for any Tenant-sponsored event, provided (a) Tenant gives Landlord reasonable prior written notice of the date, time and nature of the event, (b) the date and time for the event do not conflict with another previously scheduled event, (c) Tenant reimburses Landlord for all out-of-pocket expenses Landlord incurs in connection with the event, (d) Tenant indemnifies and holds Landlord harmless from and against any and all claims, actions, damages, or liens resulting from Tenants use of the lobby and/or common areas, including any reasonable attorneys fees incurred by Landlord, (e) Tenant complies in all respects with applicable law, (f) Landlord approves, in its sole discretion, in all aspects of Tenants intended use of the Building lobby and/or common areas, and (g) Tenant shall not use the Building lobby and/or common areas for such events for more than twelve (12) days in any calendar year. | |
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(m) Captions . The captions contained in tins Lease are for convenience of reference only, and do not limit or enlarge the terms and conditions of this Lease. | |
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(n) No Merger . There shall be no merger of the leasehold estate hereby created with the fee estate in the Premises or any part thereof if the same person acquires or holds, directly or indirectly, this Lease or any interest in this Lease and the fee estate in the leasehold Premises or any interest in such fee estate. | |
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(o) No Offer . The submission of this Lease to Tenant shall not be construed as an offer, nor shall Tenant have any rights under this Lease unless Landlord executes a copy of this Lease and delivers it to Tenant. |
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(p) Exhibits . The following exhibits hereto are incorporated herein by this reference: | |
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Exhibit A Outline of Premises | |
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Exhibit A-1 Legal Description of the Land | |
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Exhibit B Building Rules and Regulations | |
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Exhibit C Operating Expenses | |
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Exhibit D Tenant Finish Work: Allowance | |
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Exhibit D-1 Shell Construction | |
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Exhibit D-2 Space Plan | |
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Exhibit E Renewal Option | |
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Exhibit F Parking | |
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Exhibit G Janitorial Specifications | |
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Exhibit H Signage Criteria | |
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Exhibit I Furniture | |
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Exhibit J Conduit | |
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Exhibit J-1 Conduit Diagram | |
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(q) Entire Agreement . This Lease constitutes the entire agreement between Landlord and Tenant regarding the subject matter hereof and supersedes all oral statements and prior writings relating thereto. Except for those set forth in this Lease, no representations, warranties, or agreements have been made by Landlord or Tenant to the other with respect to this Lease or the obligations of Landlord or Tenant in connection therewith. | |
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(r) INTENTIONALLY DELETED | |
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(s) Representations and Warranties . Landlord and Tenant each represent and warrant that the person executing this Lease on its behalf is acting in his or her capacity as an officer or partner, as applicable, with due authorization and authority to bind Landlord or Tenant, as applicable, to this Lease. Landlord represents and warrants that it has good title to the Project so to fully and properly lease the Premises to Tenant as provided herein. Landlord further represents and warrants to Tenant that (i) the Building is zoned in conformity with applicable laws in a manner permitting the use of the Premises as contemplated under this Lease, (ii) that all entrances, driveways and access roads upon the Land afford legal access to public rights-of-way and streets and permit (and shall throughout the Term of this Lease continue to permit) ingress to and egress from the Building by way of such rights-of-way and streets, (iii) that the Project contains sufficient parking and otherwise fully complies with all applicable governmental requirements, (iv) that Landlord is not required to |
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obtain any consent to execute or perform this Lease, and (v) that the Building is not subject to any restrictive covenants or other encumbrances that would restrict the use of the Premises as contemplated under this Lease in any manner as of the Commencement Date. Landlord represents and warrants that the Project conforms currently and shall, as of the Commencement Date, conform in all material respects to all applicable laws, ordinances, rules and regulations generally applicable to commercial office buildings in Carrollton, Texas, and specifically applicable to the Project and Building. Further, Landlord represents and warrants that there are no lawsuits pending, or to the knowledge of Landlord threatened, against Landlord which if adversely decided against Landlord would affect Tenants use and occupancy of the Premises or Landlords ability to carry out its obligations under this Lease, there is no proceeding pending, or to the knowledge of Landlord contemplated or threatened, that would affect the amount of the real estate taxes assessed against the Project (except for routine real estate valuation protests) and that, to the knowledge of Landlord, the Project is free from material physical defects. Other than any express warranties contained herein, neither Landlord nor Tenant make any implied warranties of any kind or nature, and the parties hereby waive any claims upon any such implied warranties. | |
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(t) Building Name . Landlord agrees not to name the Building or Project after a competitor of Tenant or to provide Building signage to a competitor of Tenants. A Competitor of Tenant for this purpose is any person or entity that offers to consumers or other users real estate management and/or analysis software (excluding general accounting or analysis software routinely used by companies not engaged in the management of real estate), tenant applicant screening, utility billing and submetering services for the multifamily industry and/or web page design services or products are reviewed by trade publications against those of Tenant. | |
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(u) Refurbishment Allowance . In the event Tenant exercises its right to renew the Lease for an additional Term of three (3) or five (5) years, then Landlord shall provide Tenant a Refurbishment Allowance equal to $5.00 per Rentable Square Foot of which $2.00 per Rentable Square Foot may be a reimbursement for improvements previously made to the Premises by Tenant and $3.00 per Rentable Square Foot for additional improvements as needed by Tenant. The Refurbishment Allowance shall be subject to the conditions set forth in Exhibit D of this Lease. In the event Tenant renews for a |
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second five (5) year term, Landlord will agree to add an additional $5.00 per Rentable Square Foot Refurbishment Allowance. The Refurbishment Allowances provided for in this section shall be considered when determining the prevailing market rate for any renewal option. | |
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(v) Counterpart Execution . This Lease may be executed in any number of counterparts, each of which shall be an original, but such counterparts together shall constitute one and the same instrument. Additionally, this Lease may be executed by facsimile signatures and any such facsimile signature shall be deemed an original signature for all purposes. | |
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(w) Waiver of Rights Under Section 93.012 of the Texas Property Code . Landlord and Tenant are knowledgeable and experienced in commercial transactions and hereby agree that the provisions of this Lease for determining charges, amounts and additional Rent payable by Tenant are commercially reasonable and valid even though such methods may not state a precise mathematical formula for determining such charges, amounts or additional Rent. ACCORDINGLY, TENANT VOLUNTARILY AND KNOWINGLY WAIVES ALL RIGHTS AND BENEFITS OF TENANT UNDER SECTION 93.012, ENTITLED ASSESSMENT OF CHARGES, OF THE TEXAS PROPERTY CODE, AS ENACTED BY HOUSE BILL 2186, 77TH LEGISLATURE, AS SUCH SECTION NOW EXISTS OR AS MAY BE HEREAFTER AMENDED OR SUCCEEDED. |
By:
Name: |
/s/ Mack W. Dennis
|
|||
Title:
|
Senior Vice President |
By:
Name: |
/s/ Stephen T. Winn
|
|||
Title:
|
Chairman, CEO & President |
Steel columns, beams & joists
4 slab on grade over 2 select fill; 3,000 psi
3 concrete on metal deck over bar joists
3-ply built up asphalt, over R-19 insulation on metal
deck over bar joists
100 lb/sf live load
50 lb/sf live load + 20 lb/sf partitions
30x30
8 thick concrete tilt-wall panels; 5/8 drywall taped;
3-5/8 studs & R-13 bait insulation
10x10 typical openings, vision glass from 30 AFF to
10 AFF/spandrel above
4-1/2 deep frames, flush front glazed, Kynar finished
1 Horizontal Blinds
8 deep frames, front glazed, Kynar finished
1 insulating glass, evergreen, w/16% reflective
stainless steel coating
15
10
Hydraulic, 58x 85, 5,000 lb. capacity
Carpet
Painted Drywall
Beveled regular edge grid stacked on floor, USG Eclipse
tile, white, stacked
Stone Tile
Painted Drywall, panelized with reveals
Painted Steel, with maple and cherry veneer screen panels
Carpet Runner
Carpet
Vinyl Wall Covering & Cove Base @ corridor side only
2x4 Lay-in, including light fixtures, HVAC & life safety
devices
2; each with 2 toilets (1 HC), 2 urinals, 2 lavatories
2; each with 2 toilets (1 HC), 2 urinals, 2 lavatories
2; each with 4 toilets (1 HC), 3 lavatories
2; each with 5 toilets (1 HC), 3 lavatories
Stone Tile
Ceramic Tile on wet walls; Vinyl Wall Covering elsewhere
Granite at lavatories, Plastic Laminate elsewhere
Plastic Laminate
4
8 (4 HC)
Electrical Service
|
TU Pad Mount transformer, 277/480 Volt 3-phase, 2000A | |
Electrical Design (Total)
|
14 Watts/sf | |
Electrical Design (Lighting & Power
|
8 Watts/sf | |
Panels Provided (High Voltage)
|
1 @ 277/480 Volt energized panel for each building quadrant | |
Panels Provided (Low Voltage)
|
1 @ 120 Volt energized panel for each building quadrant | |
Panel Sizes Provided
|
High Voltage 400A, Low Voltage 225 A fed by a 45KVA
transformer (each panel) |
|
Building Standard Lighting
|
3-Lamp 18-Cell Parabolic Fluorescent, stacked on floor for lay-in ceiling (initial lamps included) | |
Fixture Ratio
|
1 Fixture 100 rsf | |
Accent Lighting at Lobby
|
Compact Fluorescent Downlights | |
Parking Area Lighting
|
Metal Halide pole-mount, with Architectural enclosures | |
Entry Plaza Lighting
|
Metal Halide Bollards, at both main entrances |
Year | Basic Rental Rate PSF | Year | Basic Rental Rate PSF | |||||||||
2007
|
$ | 20.60 | 2017 | $ | 27.68 | |||||||
2008
|
$ | 21.22 | 2018 | $ | 28.52 | |||||||
2009
|
$ | 21.85 | 2019 | $ | 29.37 | |||||||
2010
|
$ | 22.51 | 2020 | $ | 30.25 | |||||||
2011
|
$ | 23.19 | 2021 | $ | 31.16 | |||||||
2012
|
$ | 23.88 | 2022 | $ | 32.09 | |||||||
2013
|
$ | 24.60 | 2023 | $ | 33.06 | |||||||
2014
|
$ | 25.34 | 2024 | $ | 34.05 | |||||||
2015
|
$ | 26.10 | 2025 | $ | 35.07 | |||||||
2016
|
$ | 26.88 | 2026 | $ | 36.12 |
i. | All surface areas, desks, file cabinets, counter tops, book shelves, credenzas, computer screens and other equipment will be dusted. Desk tops will be wiped down but no papers will be moved. All ashtrays and urns will be emptied and wiped. | ||
ii. | All carpeted areas will be vacuumed. Carpets will be spot cleaned where needed. All hard surface floors will be swept with a dust mop then damp mopped. | ||
iii. | All trash receptacles will be emptied and wiped down. Liners will be changed whenever necessary. Garbage will be taken to the designated areas for trash removal. | ||
iv. | All magazines will be straightened. Glass top desks, glass doors, partitions, light switches and walls will be cleaned to remove smudges and fingerprints. | ||
v. | All stairwells will be vacuumed and swept as well as dusted. | ||
vi. | The elevator will be vacuumed and fingerprints removed from wall surfaces. | ||
vii. | All kitchen countertops, tables and cupboard doors in break rooms will be cleaned and disinfected. Hand prints and smudges will be removed from the exterior of the refrigerator as well as any other appliances. Microwaves will be cleaned inside and out. Sinks and other chrome areas will be cleaned and polished. | ||
viii. | Mugs, plates and glasses will be placed in the dishwasher and washed only if they are placed in the break room sink by company employees. Dishes will not be removed from the dishwasher. | ||
ix. | All fixtures and appliances in the restrooms will be cleaned and sanitized. All chrome and minors will be cleaned and polished. | ||
x. | All commodes and urinals will be cleaned with a germicidal disinfectant. The use of an emulsion bowl cleaner will be used whenever necessary. | ||
xi. | Restroom floors will be cleaned using a germicidal disinfectant. | ||
xii. | Light bulbs will be replaced as needed. |
i. | All pictures and door frames will be dusted. |
ii. | Partitions and walls in the restrooms will be completely wiped down with a germicidal disinfectant. | ||
iii. | All VCT floors will be buffed. |
i. | All mini-blinds and A/C vents will be dusted. | ||
ii. | All interior windows will be cleaned. | ||
iii. | All VCT floors will be waxed (more often as necessary). |
i. | All exterior windows will be cleaned. |
1 | Secondary entry signs. | ||
2 | Roof signs or box signs. | ||
3 | Cloth signs. | ||
4 | Exposed seam tubing. | ||
5 | Animated or moving components. | ||
6 | Intermittent or flashing illumination. | ||
7 | Iridescent painted signs. | ||
8 | Letters mounted or painted on illuminated panels. | ||
9 | Signs or letters painted directly on any surface except as herein provided. | ||
10 | Temporary Signage. |
B Sign Type Specifications |
1 | Building directory (lobby) | ||
2 | Tenant suite number identification | ||
3 | Stair identification |
4 | Restroom identification | ||
5 | Mechanical spaces | ||
6 | Emergency egress directions |
1. | Glass on tenant door (all tenant doors are to be glass) | ||
2. | Glass on tenant entry sidelight (all tenant entries are to include glass sidelight space permitting |
Quantity
Description
Location
1
sofa
Reception area
1
love seat
Reception area
1
Chair cloth
Reception area
1
coffee table
Reception area
1
reception desk
Reception area
1
credenza
Reception area
1
4 x 12 conference table
Board Room
14
leather highback grey chairs
3
4 x 10 laminate conference table
Conference rooms
2
2 x 4 buffet
Conference rooms
2
dry erase boards
Conference rooms
30
beige conference room chairs
throughout
60
8 x 8 workstations
throughout
30
6 x 6 workstations
throughout
12
8 x 6 workstations
throughout
70
beige checkered cloth rolling chairs
throughout
63
low back purple guest chairs
throughout
1
10 x 8 administrative cube
6
2 piece desk
offices
2
3 piece desk
offices
3
curved desk
smaller offices
8
credenza
offices
9
2 drawer file cabinet
offices
11
wardrobe cabinets
offices
17
wooden guest chairs
throughout
10
highback black leather chairs
throughout
8
4 X 6 dry erase boards
conf rooms/offices/rm 145
1
dark wooden desk
office
1
dark wooden book shelf
office
1
dark wooden 2 drawer file cabinet
office
1
wooden dry erase board w/ doors
office
2
highback royal colored guest theirs
office
Quantity
Description
Location
1
ice maker
breakroom
1
dishwasher
breakroom
5
36 inch tables
breakroom
10
plastic chairs location
breakroom
11
highback dk green rolling chairs
workstations
11
low back black task chairs
workstations
low back purple rolling chairs
workstations
highback black chairs
throughout
wooden chair
throughout
low back beige chair
throughout
beige rolling chairs
throughout
grey guest chair
throughout
larger purple rolling chair
throughout
barrel chairs
meeting room
1
36 inch table
throughout
1
portable workstation
breakroom
2
2 x 5 rectangular tables
throughout
2
Bookshelves
hallway
4
2 x 3 rectangular desk/tables
throughout
1
4 x 8 wooden conference table (damaged)
data room
7
2 x 4 shelves with storage above
conference room & office
2 x 4 shelves
conference room
2 door vertical file cabinet
rm 148
4 drawer lateral file cabinets
throughout
corkboard
throughout
framed artwork
throughout
trash cans
throughout
ANNUAL RATE PER | BASIC MONTHLY | |||||||
DATES | RENTABLE SQUARE FOOT | RENTAL | ||||||
Expansion Commencement Date 12/31/10
|
$ | 17.50 | $ | 4,926.25 | ||||
1/1/11 12/31/11
|
$ | 18.00 | $ | 5,067.00 | ||||
1/1/12 12/31/12
|
$ | 18.50 | $ | 5,207.75 | ||||
1/1/13 12/31/13
|
$ | 19.00 | $ | 5,348.50 | ||||
1/1/14 12/31/14
|
$ | 19.50 | $ | 5,489.25 | ||||
1/1/15 12/31/15
|
$ | 20.00 | $ | 5,630.00 | ||||
1/1/16 8/31/16
|
$ | 20.50 | $ | 5,770.75 |
LANDLORD:
ARI INTERNATIONAL BUSINESS PARK, LLC, ARI IBP 1, LLC, ARI IBP 2, LLC, ARI IBP 3, LLC, ARI IBP 4, LLC, ARI IBP 5, LLC, ARI IBP 6, LLC, ARI IBP 7, LLC, ARI IBP 8, LLC, ARI IBP 9, LLC, ARI IBP 11, LLC, ARI IBP 12, LLC , each a Delaware limited liability company |
||||
By: | Billingsley Property Services, Inc., | |||
a Texas corporation | ||||
as Agent | ||||
By: | /s/ Joel M. Overton, Jr. | |||
Name: | Joel M. Overton, Jr. | |||
Title: | Senior Vice President | |||
TENANT:
REALPAGE, INC., a Delaware corporation |
||||
By: | /s/ Timothy J. Barker | |||
Name: | Timothy J. Barker | |||
Title: | CFO | |||
CUSTOMER: | DATABANK: | |||||||||
|
||||||||||
Signature:
Print Name: |
/s/ Kevin Plemons
|
Signature:
Print Name: |
/s/ Patrick Guadalajara
|
|||||||
Title:
|
Director of IT | Title: | President | |||||||
Date:
|
6/29/07 | Date: | 6/6/07 |
| Service Orders | |
| Addendums | |
| Service Level Agreements | |
| Statements of Work | |
| Acceptable Use Policy | |
| Schedules |
Length of outage: | Credit (% of MRC) | |||
1 to 5 minutes
|
0 | % | ||
6 minutes to 59 minutes
|
5 | % | ||
1 hour to 2 hours 59 minutes
|
10 | % | ||
3 hours to 4 hours 59 minutes
|
20 | % | ||
5 hours to 7 hours 59 minutes
|
30 | % | ||
8 hours to 11 hours 59 minutes
|
40 | % | ||
12 hours to 14 hours 59 minutes
|
50 | % | ||
15 hours or more
|
75 | % |
2626 Cole Ave. Suite 950
Service Order
Customer:
Real Page
5/31/2007
Contact:
Jerry Wacaster
Tel:
972 820-3359
Service
Description
Qty
MRC
NRC
Total MRC
Total NRC
Data Center Space
500
$
[***]
$
[***]
$
[***]
$
[***]
Power Limitations
AC Amps 20 amp 115/120V 1PH
2
$
[***]
$
[***]
$
[***]
$
[***]
AC Amps 20 amp 115/120V 1PH
2
$
[***]
$
[***]
$
[***]
$
[***]
AC Amps 20 amp 208/220V 1PH
9
$
[***]
$
[***]
$
[***]
$
[***]
AC Amps 20 amp 208/220V 1PH
9
$
[***]
$
[***]
$
[***]
$
[***]
AC Amps 30 amp 208/220V 1PH
8
$
[***]
$
[***]
$
[***]
$
[***]
AC Amps 30 amp 208/220V 1PH
4
$
[***]
$
[***]
$
[***]
$
[***]
Internet Access
0
$
[***]
$
[***]
$
[***]
$
[***]
CAT5e Cross Connect
0
$
[***]
$
[***]
$
[***]
$
[***]
Fiber X-Con
0
$
[***]
$
[***]
$
[***]
$
[***]
Customer: | DATABANK | |||||||||
|
||||||||||
Signature:
Print Name: |
/s/ Kevin Plemons
|
Signature:
Print Name: |
/s/ Patrick Guadalajara
|
|||||||
Title:
|
Director of IT | Title: | President | |||||||
Date:
|
5/31/07 | Date: | 5/31/07 |
Subsidiary | Jurisdiction | |
|
||
43642 Yukon Inc. (registered name: Spectra Computer Services)
|
Yukon Territory, Canada | |
A.L. Wizard, Inc.
|
Delaware | |
Credit Interfaces, Inc.
|
California | |
Multifamily Internet Ventures, LLC
|
California | |
OpsTechnology, Inc.
|
Delaware | |
Propertyware, Inc.
|
California | |
RealPage India Holdings, Inc.
|
Delaware | |
RealPage India Private Limited
|
India | |
RealPage Payment Processing Services, Inc.
|
Nevada | |
StarFire Media, Inc.
|
Delaware |