EXHIBIT 10.12


 


TWENTY-THIRD LOAN MODIFICATION
AGREEMENT


 


This
Twenty-third Loan Modification Agreement (this “Loan Modification Agreement”)
is entered into on the Twenty-third Loan Modification Effective Date, by and
between SILICON VALLEY BANK, a
California chartered bank, with its principal place of business at
3003 Tasman Drive, Santa Clara, California 95054 and with a loan
production office located at One Newton Executive Park, Suite 200, 2221
Washington Street, Newton, Massachusetts 02462 (“Bank”) and ASPEN TECHNOLOGY, INC., a Delaware
corporation with offices at 200 Wheeler Road, Burlington, Massachusetts 01803
for itself and as successor by merger with ASPENTECH,
INC., a Texas corporation with offices at 200 Wheeler Road,
Burlington, Massachusetts 01803 (“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 Loan and Security Agreement
dated as of January 30, 2003 between Borrower, Aspentech, Inc. and
Bank, as amended by a certain letter agreement dated February 14, 2003, a
certain First Loan Modification Agreement dated June 27, 2003, a certain
Second Loan Modification Agreement dated September 10, 2004, a certain
Third Loan Modification Agreement dated January 28, 2005, a certain Fourth
Loan Modification Agreement dated April 1, 2005, a certain Fifth Loan
Modification Agreement dated May 6, 2005, a certain Sixth Loan
Modification Agreement dated June 15, 2005, a certain Seventh Loan
Modification Agreement dated September, 2005, a certain Eighth Amendment to
Loan and Security Agreement dated November 22, 2005, a certain Ninth Loan
Modification Agreement dated July 17, 2006, a certain Tenth Loan
Modification Agreement dated September 15, 2006, a certain Eleventh Loan
Modification Agreement dated September 27, 2006, a certain Twelfth Loan
Modification Agreement dated January 12, 2007, a certain Thirteenth Loan
Modification Agreement dated April 13, 2007, a certain Fourteenth Loan
Modification Agreement dated June 28, 2007, a certain Waiver Agreement
dated June 28, 2007, a certain Fifteenth Loan Modification Agreement dated
August 30, 2007, a certain Sixteenth Loan Modification Agreement dated October 16,
2007, a certain Seventeenth Loan Modification Agreement dated December 28,
2007,  a certain Eighteenth Loan
Modification Agreement dated January 24, 2008, a certain Nineteenth Loan
Modification Agreement dated April 11, 2008, a certain Twentieth Loan
Modification Agreement dated May 15, 2008, a certain Twenty-first Loan
Modification Agreement dated June 13, 2008 and a certain Twenty-second
Loan Modification Agreement dated July 15, 2008 (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.


 


(i)                                     Section 6(5) of
the Schedule to the Loan Agreement shall be amended by adding the following
text at the end of the Section: 


 


“; provided, further, that beginning on the
Twenty-third Loan Modification Effective Date, Borrower may in lieu thereof
deliver its monthly Compliance Certificates for the monthly period coinciding
with each fiscal quarter end of the Borrower (each September 


 

















 


30, December 31, March 31, and June 30),
within five (5) days of filing the quarterly financials of the Borrower
pursuant to Section 6(6) for such fiscal quarter with the SEC.  Bank hereby waives delivery of all other
monthly Compliance Certificates.”


 


(ii)                                  Section 6(6) of
the Schedule to the Loan Agreement shall be amended by adding the following
text at the end of the Section:


 


“; provided, further, that beginning on the
Twenty-third Loan Modification Effective Date, Borrower may in lieu thereof
deliver its quarterly unaudited financial statements to Bank contemporaneously
with the filing of such quarterly financial statements with the SEC.”


 


(iii)                               Section 6(8) of
the Schedule to the Loan Agreement shall be amended by adding the following
text at the end of the Section:


 


“;provided, further, that beginning on the
Twenty-third Loan Modification Effective Date, Borrower may in lieu thereof
deliver its annual financial statements to Bank contemporaneously with the
filing of such annual financial statements with the SEC.”


 


(iv)                              Section 8
of the Loan Agreement shall be amended by adding the following definitions
thereto, each in the appropriate alphabetical order:


 


““Twenty-third Loan Modification Agreement”
means that certain Twenty-Third Loan Modification Agreement, executed on the Twenty-third
Loan Modification Effective Date.


 


“Twenty-third Loan Modification Effective Date”
means the date indicated on the signature page to the Twenty-third Loan
Modification Agreement.”


 


4.                                       FEES.  Borrower shall pay to Bank a modification fee
of Seven Thousand Five Hundred Dollars ($7,500), which fee shall be due on the
date hereof and shall be deemed fully earned as of the date hereof.  Borrower shall also 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 CERTIFICATES.  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, as amended and affected by Schedule 1 to the Fourth Amendment and Exhibit A
to the Fourth Amendment and acknowledges, confirms and agrees the disclosures
and information therein, in Schedule 3.10 to the Loan Agreement, in Schedule 1
annexed to the Tenth Loan Modification Agreement, and/or in connection with the
formation of subsidiaries as contemplated by the Guggenheim Transactions and
the Key Transactions (as defined in the Sixth Loan Modification Agreement and
the Eleventh Loan Modification Agreement, respectively), have not changed as of
the date hereof.


 


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.


 


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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, after giving effect to this Loan Modification
Agreement and the Waiver Agreement entered into between Borrower and Bank dated
as of the date hereof.  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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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 date first written above.


 


	
   

  	
   

  	
  BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ASPEN
  TECHNOLOGY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Bradley T. Miller

  
	
   

  	
  Name:

  	
  Bradley T. Miller

  
	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK:

  
	
   

  	
   

  	
   

  
	
   

  	
  SILICON VALLEY
  BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Michael Tramack

  
	
   

  	
  Name:

  	
    Michael Tramack

  
	
   

  	
  Title:

  	
    Senior
  Vice President

  
						



 


 


Twenty-third Loan Modification Effective Date: September 30,
2008


 


[Twenty-third Loan
Modification Agreement Signature Page]