PARTIAL RELEASE AND ACKNOWLEDGEMENT AGREEMENT SILICON VALLEY BANK ASPEN TECHNOLOGY, INC. ASPENTECH, INC.ASP Hosting Agreement |
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Exhibit 10.7
PARTIAL RELEASE AND ACKNOWLEDGEMENT AGREEMENT
This Partial Release and Acknowledgment Agreement (the “Agreement”) is entered into as of June 15, 2005, by and among (i) 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 (“SVB”), (ii) ASPEN TECHNOLOGY, INC., a Delaware corporation with offices at Ten Canal Park, Cambridge, Massachusetts 02141 and (iii) ASPENTECH, INC., a Texas corporation with offices at Ten Canal Park, Cambridge, Massachusetts 02141 (jointly and severally, individually and collectively, “Borrower”), and the parties who have executed this Agreement, as evidenced by their signature below (each a “Party”, and collectively, the “Parties”).
Whereas, Borrower is indebted to SVB pursuant to a loan arrangement dated as of January 30, 2003, as evidenced by a certain Loan and Security Agreement and a certain Export-Import Bank Loan and Security Agreement each dated as of January 30, 2003 (each as amended and in effect, collectively, the “SVB Loan Arrangement”) and SVB and Borrower have also entered into a certain Non-Recourse Receivables Purchase Agreement dated December 31, 2003 (as amended and in effect, the “SVB Purchase Facility”).
Whereas, SVB has agreed to release its security interest in certain assets of Borrower in accordance with the provisions hereof in order to permit Borrower to sell such assets to Aspen Technology Receivables I LLC, free and clear of the security interest granted to SVB under the SVB Loan Arrangement and SVB’s interest in the accounts receivable purchased under the SVB Purchase Facility.
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, SVB, the Borrower, and the Parties hereby agree as follows:
1.
Partial Release. SVB hereby irrevocably
releases any lien, claim, encumbrance or security interest (including, without
limitation, its security interests under the SVB Loan Arrangement and its
interest in accounts receivable purchased under the SVB Purchase Facility) it
may have, solely in those certain accounts receivable, contracts (or portion
thereof), related security, and collections which are listed on Exhibit A hereto (the “SPV Receivables”) and all
proceeds thereof.
2.
Treatment of
Proceeds of the SPV Receivables. SVB specifically acknowledges and agrees that it
shall retain no security interest or ownership interest in or to the SPV
Receivables or the proceeds thereof (the “Funds”). In the
event SVB receives, acquires or obtains any such Funds directly from the
Collection Account (as defined herein) as payment of any of the
Borrowers’ obligations under the SVB Loan Arrangement or the SVB Purchase
Facility, in connection with a disbursement request by the Borrower to SVB
directly from the Collection Account, or by set off or other action taken by
SVB against the Collection Account, SVB agrees to promptly turn over any such
Funds, or the
proceeds thereof, to Guggenheim Corporate Funding, LLC
(“Guggenheim”) or, at SVB’s option, SVB may deposit such
Funds into a court of competent jurisdiction in an interpleader action.
In the event that any Party receives, acquires or obtains any collateral
or property of SVB, such Party hereby agrees to promptly turn over such
collateral, property, or the proceeds thereof, to SVB, or, at
Guggenheim’s option, Guggenheim may deposit such Funds into a court of
competent jurisdiction in an interpleader action.
3.
Amendment to UCC
Financing Statement.
Upon receipt of this fully executed Agreement, SVB shall file the following UCC
financing statements on behalf of SVB, as Secured Party:
(a)
Amendment to Financing
Statement, releasing SVB’s security interest in the SPV Receivables and
the proceeds thereof, naming Aspen Technology, Inc., as Debtor, in the form of Exhibit B hereto, to be filed with the Delaware Secretary of State;
and
(b)
Amendment to Financing
Statement, releasing SVB’s security interest in the SPV Receivables and
the proceeds thereof, naming Aspentech, Inc., as Debtor, in the form of Exhibit C hereto, to be filed with the Texas Secretary of State.
SVB agrees to deliver any such UCC financing statement partial releases reasonably requested by Aspen or Guggenheim to effectuate the terms of paragraphs 1 and 3 hereof.
4.
Acknowledgement. The Borrower maintains a
lockbox with SVB identified as follows: “Aspen Technology Inc. Box 83048,
Woburn, MA 01813-3048” (the “Lockbox Account”). The
Lockbox Account proceeds are currently transferred directly to a collection
account maintained at SVB in the name of Aspen Technology, Inc. identified as
Account No. 3300388202 (the “ Domestic Collection Account”).
In addition, certain wires are transferred to a separate collection account
maintained at SVB in the name of Aspen Technology, Inc. identified as Account
No. 3300388217 (collectively with the Domestic Collection Account, the
“Collection Account”). SVB acknowledges that the Borrower and
Guggenheim have advised SVB that the Borrower has granted Guggenheim a security
interest in the SPV Receivables and the proceeds thereof, and that the Lockbox
Account and the Collection Account may contain certain or all of the Funds,
which are the proceeds of the SPV Receivables.
5.
Entire Agreement. This Agreement (including
Exhibits hereto) sets forth the entire agreement between the Parties with
respect to the subject matter hereof, and supersedes all prior negotiations,
understandings and agreements between the Parties concerning such subject
matter. No amendment or modification of this Agreement shall be effective
against a Party except by a writing signed by authorized representative of such
Party.
6.
No
Responsibility/Indemnification. (a) The Borrower and the Parties signing
below confirm and agree:
