FIRST LOAN MODIFICATION AGREEMENT—EXIM
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FIRST LOAN MODIFICATION AGREEMENT—EXIM
This First Loan Modification Agreement (this "Loan Modification Agreement') is entered into as of September , 2004, by and among (i) SILICON VALLEY BANK, a California chartered bank, with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and with a loan production office located at One Newton Executive Park, Suite 200, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, doing business under the name "Silicon Valley East" ("Bank") and (ii) ASPEN TECHNOLOGY, INC., a Delaware corporation with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ASPENTECH, INC., a Texas corporation with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (jointly and severally, individually and collectively, "Borrower")
- 1.
- DESCRIPTION
OF EXISTING INDEBTEDNESS AND OBLIGATIONS. Among other indebtedness and obligations which may be owing by Borrower to Bank, Borrower is indebted to Bank pursuant to a loan
arrangement dated as of January 30, 2003, evidenced by, among other documents, a certain Export-Import Bank Loan and Security Agreement dated as of January 30, 2003 between Borrower and
Bank (the "Loan Agreement"). Capitalized terms used but not otherwise defined herein shall have the same meaning as in the Loan Agreement.
- 2.
- DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by the Collateral as described in the Loan Agreement (together with any other collateral security granted to Bank, the "Security Documents").
Hereinafter, the Security Documents, together with all other documents evidencing or securing the Obligations shall be referred to as the "Existing Loan Documents".
- 3.
- DESCRIPTION OF CHANGE IN TERMS.
- (i)
- The Loan Agreement shall be amended by deleting the following text appearing in Section 2.5 of the Loan Agreement:
Modifications to Loan Agreement.
"2.5 L/C—FX Sublimit. Notwithstanding anything to the contrary contained herein, the face amount of outstanding Letters of Credit (including drawn but unreimbursed Letters of Credit and any Letter of Credit Reserve) issued under this Exim Agreement plus the amount of the FX Reserve may not exceed $7,000,000 in the aggregate (the "L/C—FX Sublimit"). In addition, the aggregate amount of FX Reserve hereunder and the FX Reserve (as defined in the Domestic Agreement) under the Domestic Agreement shall not exceed $2,000,000."
and inserting in lieu thereof the following:
"2.5 L/C—FX Sublimit. Notwithstanding anything to the contrary contained herein, the face amount of outstanding Letters of Credit (including drawn but unreimbursed Letters of Credit and any Letter of Credit Reserve) issued under this Exim Agreement plus the amount of the FX Reserve may not exceed $10,000,000 in the aggregate (the "L/C—FX Sublimit")."
- 4.
- FEES.
Borrower shall reimburse Bank for all legal fees and expenses incurred in connection with this amendment to the Existing Loan Documents.
- 5.
- RATIFICATION
OF NEGATIVE PLEDGE. Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Negative Pledge Agreements each dated as of
January 30, 2003 between Borrower and Bank, and acknowledges, confirms and agrees that said Negative Pledge Agreement shall remain in full force and effect.
- 6.
- RATIFICATION OF PERFECTION CERTIFICATE Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in certain Perfection Certificates each dated as of January 30, 2003 and acknowledges, confirms and agrees the disclosures and
information therein has not changed, as of the date hereof except as set forth on Schedule 1 annexed hereto.
- 7.
- CONSISTENT
CHANGES. The Existing Loan Documents are hereby amended wherever necessary to reflect the changes described above.
- 8.
- RATIFICATION
OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and reaffirms all terms and conditions of all security or other collateral granted to the Bank, and confirms that
the indebtedness secured thereby includes, without limitation, the Obligations.
- 9.
- NO
DEFENSES OF BORROWER. Borrower hereby acknowledges and agrees that Borrower has no offsets, defenses, claims, or counterclaims against Bank with respect to the Obligations, or
otherwise, and that if Borrower now has, or ever did have, any offsets, defenses, claims, or counterclaims against Bank, whether known or unknown, at law or in equity, all of them are hereby expressly
WAIVED and Borrower hereby RELEASES Bank from any liability thereunder.
- 10.
- CONTINUING
VALIDITY. Borrower understands and agrees that in modifying the existing Obligations, Bank is relying upon Borrower's representations, warranties, and agreements, as set
forth in the Existing Loan Documents. Except as expressly modified pursuant to this Loan Modification Agreement, the terms of the Existing Loan Documents remain unchanged and in full force and effect.
Bank's agreement to modifications to the existing Obligations pursuant to this Loan Modification Agreement in no way shall obligate Bank to make any future modifications to the Obligations. Nothing in
this Loan Modification Agreement shall constitute a satisfaction of the Obligations. It is the intention of Bank and Borrower to retain as liable parties all makers of Existing Loan Documents, unless
the party is expressly released by Bank in writing.
- 11.
- COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it shall have been executed by Borrower and Bank.
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This Loan Modification Agreement is executed as a sealed instrument under the laws of the Commonwealth of Massachusetts as of the date first written above.
BORROWER: |
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ASPEN TECHNOLOGY, INC. |
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By: Name: Title: |
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ASPENTECH, INC. |
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By: Name: Title: |
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BANK: |
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SILICON VALLEY BANK, d/b/a SILICON VALLEY EAST |
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By: Name: Title: |
The undersigned, ASPENTECH SECURITIES CORP., a Massachusetts corporation, ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Unlimited Guaranty dated January 30, 2003 (the "Guaranty") and a certain Security Agreement dated as of January 30, 2003 (the "Security Agreement") and acknowledges, confirms and agrees that the Guaranty and Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Loan Modification Agreement, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith.
ASPENTECH SECURITIES CORP |
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| By: Name: Title: |