TWELFTH LOAN MODIFICATION AGREEMENT
Exhibit 10.56
This Twelfth Loan Modification
Agreement (this “Loan Modification Agreement”) is entered into as of June 30,
2009 and is effective as of April 29, 2009, by and between SILICON VALLEY BANK, a
California corporation, with its principal place of business at 0000 Xxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office located
at 000 Xxxxxxxxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 (“Bank”) and
DOUBLE-TAKE SOFTWARE, INC.,
f/k/a NSI SOFTWARE, INC., successor by merger with NETWORK SPECIALISTS,
INCORPORATED, a Delaware corporation with offices at Two Xxxxxx Xxxxx, Xxxxx
000, Xxxxxxx, Xxx Xxxxxx 00000 (“Borrower”).
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1.
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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 October 16, 2003,
evidenced by , among other documents, a certain Loan and Security
Agreement dated as of October 16, 2003, between Borrower and Bank (as
amended, the “Loan Agreement”). Capitalized terms used but not
otherwise defined herein shall have the same meaning as in the Loan
Agreement.
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2.
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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”).
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Hereinafter,
the Security Documents, together with all other documents evidencing or securing
the Obligations shall be referred to as the “Existing Loan
Documents”.
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3.
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DESCRIPTION OF CHANGE
IN TERMS.
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A.
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Modification to Loan
Agreement. The Loan Agreement shall be amended by
deleting the following, appearing as Section 4 of the Schedule thereof, in
its entirety:
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“4. Maturity
Date
(Section
6.1) April
29, 2009.”
And
inserting in lieu thereof the following:
“4. Maturity
Date
(Section
6.1) April
28, 2010.”
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4.
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FEES. Borrower
shall reimburse Bank for all legal fees and expenses incurred in
connection with this amendment to the Existing Loan
Document.
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5.
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RATIFICATION OF
PERFECTION CERTIFICATE. Borrower hereby ratifies,
confirms and reaffirms, all and singular, the terms and disclosures
contained in a certain Perfection Certificate delivered to Bank on or
about October 16, 2003, and acknowledges, confirms and agrees the
disclosures and information provided therein have not changed, as of the
date hereof.
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6.
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CONSISTENT
CHANGES. The Existing Loan Documents are hereby amended
wherever necessary to reflect the changes described
above.
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7.
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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.
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8.
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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.
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9.
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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. No maker will be
released by virtue of this Loan Modification
Agreement.
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10.
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CONFIDENTIALITY. Bank
may use confidential information for the development of databases,
reporting purposes, and market analysis, so long as such confidential
information is aggregated and anonymized prior to distribution unless
otherwise expressly permitted by Borrower. The provisions of
the immediately preceding sentence shall survive the termination of the
Loan Agreement.
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11.
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COUNTERSIGNATURE. This
Loan Modification Agreement shall become effective only when it shall have
been executed by Borrower and bank.
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remainder of this page is intentionally left blank]
This Loan Modification Agreement is
executed as a sealed instrument under the laws of the Commonwealth of
Massachusetts as of the effective date first written above.
BORROWER:
By: /s/ S. Xxxxx
Xxxx
Name: S. Xxxxx
Xxxx
Title: Chief Financial
Officer
BANK:
SILICON
VALLEY BANK
By: /s/ Xxx
Xxxxx
Name: Xxx
Xxxxx
Title: Relationship
Manager
