ELEVENTH LOAN MODIFICATION AGREEMENT
Exhibit 10.55
This Eleventh Loan Modification Agreement (this “Loan Modification Agreement”) is entered into
as of the Eleventh Loan Modification Effective Date, 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”).
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 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.
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.
Modifications to Loan Agreement.
A. Clause (i) of Section 5.4 of the Loan Agreement entitled “Negative Covenants” is hereby
amended by deleting the following text therefrom:
“(i) merge or consolidate with another corporation or entity
other than the Reincorporation;”
and substituting the following in lieu thereof:
“(i) merge or consolidate with another corporation or entity other than the
Reincorporation or a Permitted Acquisition;”
B. Section 8 of the Loan Agreement is hereby amended by inserting the following
definitions in their proper alphabetical order thereof:
“Eleventh Loan Modification Agreement” is that certain Eleventh
Loan Modification Effective Date, dated as of the Eleventh Loan Modification
Effective Date, by and between borrower and Silicon.
“Eleventh Loan Modification Effective Date” is the date
indicated on the signature page to the Eleventh Loan Modification
Agreement.
“Permitted Acquisition” means, at any time after the Eleventh Loan
Modification Date, (a) the purchase of one hundred percent of the capital
stock or other equity interests of any other Person (b) the purchase or
other acquisition of all or substantially all of the assets or properties
of, another Person or of any business unit of another Person, (c) any merger
or consolidation of such Person with any other Person or other transaction
or
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series of transactions resulting in the acquisition of all or substantially
all of the assets, or one hundred percent of the capital stock or other
equity interests, of any Person in which all of the following conditions are
satisfied:
(i) immediately prior to and after giving effect to any such Permitted
Acquisition, no Default or Event of Default shall have occurred and remain
uncured;
(ii) after giving effect to such Permitted Acquisition, if such Permitted
Acquisition is an acquisition of capital stock or equity interests, the
Borrower shall acquire and own, directly or indirectly, one hundred percent
of the capital stock or other equity interests and shall otherwise control
the governance of the Person being acquired;
(iii) any assets acquired shall be utilized in, and if the Permitted
Acquisition involves a merger, consolidation or stock acquisition, the
Person which is the subject of such Permitted Acquisition shall be engaged
in, a business otherwise permitted to be engaged in by the Borrower under
this Agreement;
(iv) if the Person which is the subject of such Permitted Acquisition will
be maintained as a subsidiary of the Borrower, such subsidiary shall have
been joined as a “Borrower” hereunder or shall otherwise execute any and
all documents and instruments (pursuant to Section 5.7 hereof), as Silicon
shall deem necessary, and Silicon shall have received (A) a first priority
security interest in each such subsidiary’s assets and other property of
the same nature as constitutes Collateral pursuant to Section 2.1 and (ii)
a pledge by Borrower of all capital stock or other equity interests of each
such subsidiary; and
(v) the Borrower shall be either (a) the sole surviving legal entity, or
(b) the parent and owner of one hundred percent of the common stock or
other equity interests of any surviving entities that shall be subsidiaries
of the Borrower.”
C. Section 4 of the Schedule to the Loan Agreement is hereby amended by deleting
same in its entirety and substituting the following text therefor:
“4. Maturity Date
(Section 6.1) April 29, 2009.”
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 PERFECTION CERTIFICATE. Borrower hereby ratifies, confirms, and
reaffirms,
all and singular, the terms and disclosures contained in a certain Perfection Certificate delivered
to the Bank on or
about October 16, 2003, and acknowledges, confirms and agrees the disclosures and information
provided therein
has not changed, as of the date hereof.
6. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever necessary to
reflect the changes described above.
7. 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.
8. NO DEFENSES OF BORROWER. Borrower hereby acknowledges and agrees that Borrower has no
offsets, defenses, claims, or counterclaims against the Bank with respect to the Obligations, or
otherwise, and that if
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Borrower now has, or ever did have, any offsets, defenses, claims, or counterclaims against
the Bank, whether known or unknown, at law or in equity, all of them are hereby expressly
WAIVED and Borrower hereby RELEASES the Bank from any liability thereunder.
9, 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.
10. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective only when it
shall have been executed by Borrower and Bank.
[Remainder of page intentionally left blank]
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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 Eleventh Loan Modification Effective Date,
written below.
BORROWER:
| DOUBLE-TAKE SOFTWARE, f/k/a NSI SOFTWARE, INC., successor by merger with NETWORK SPECIALISTS, INCORPORATED |
||||
By: |
/s/ S. Xxxxx Xxxx | |||
Name: |
||||
Title: |
Chief Financial Officer | |||
| BANK: | ||||
| SILICON VALLEY BANK | ||||
By: |
/s/ Xxxxxxxx X. Xxxxxx | |||
Name: |
Xxxxxxxx X. Xxxxxx | |||
Title: |
Relationship Manager | |||
Eleventh Loan Modification Effective Date: May 1, 2008
[Eleventh Loan Modification Agreement Signature Page]
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