EX-10.9 AMENDED AND RESTATED DIRECT FINANCE AND SERVICES ADDENDUM TO LETTER AGREEMENTAddendum or Modifications |
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Exhibit 10.9
AMENDED AND RESTATED
DIRECT FINANCE AND SERVICES ADDENDUM
TO LETTER AGREEMENT
This Amended and Restated Direct Finance and Services Addendum to Letter Agreement (“Addendum”) is entered into by and among Aspen Technology, Inc. (“AspenTech”), Fleet Business Credit, LLC, formerly known as Sanwa Business Credit Corporation (“FBC”), Fleet Business Credit (UK) Limited (“FBC-UK”) and Fleet Business Credit (Deutschland) GmbH (“FBC-Germany”) effective as of December 30, 2004. The terms of this Addendum are supplemental to the Letter Agreement (as defined below), and form a part of the Letter Agreement, which will remain in full force and effect except as provided in this Addendum. This Addendum amends, restates, and replaces and supercedes the existing Direct Finance and Services Addendum to Letter Agreement, dated as of March 29, 1999 (the “Existing Direct Finance Addendum”).
WHEREAS,
AspenTech and FBC are parties to that certain letter agreement dated as of
March 25, 1992, as amended by a First Amendment dated as of March 3,
1994, a Second Amendment dated as of January 1, 1997, the Existing Direct
Finance Addendum, a Third Amendment dated as of March 28, 2003 (the
“Letter Agreement”); and
WHEREAS, AspenTech, FBC, FBC-UK and FBC-Germany are parties to an Accession Agreement dated September 30, 2002 and a Side Agreement dated April 22, 2003; and
WHEREAS,
AspenTech and FBC wish to restate the provision of a method under which
AspenTech, subject to the terms of the Letter Agreement as supplemented by this
Addendum, may refer to FBC those customers which desire to finance their
acquisition of AspenTech software and services, with financing documentation to
be originated and compiled by AspenTech; and
WHEREAS,
AspenTech and FBC also wish to provide for purchase financing and direct
financing of services that are provided in conjunction with AspenTech software
products; and
WHEREAS, FBC-UK and FBC-Germany wish to consent to the terms of this Addendum,
NOW THEREFORE,
in consideration of the premises and for other good and valuable consideration
the receipt of which is hereby acknowledged, AspenTech and FBC hereby agree as
follows:
1.
Definitions.
(a)
Capitalized Terms. Capitalized terms used in this Addendum will
have the same meaning given under the Letter Agreement, as amended, except as
provided in Section 1(c) below.
(b)
Additional Definitions. The following terms will have the meanings
given to them in this Section:
“Acquisition Cost” for any Software financed for an Obligor by FBC and covered by a Direct Finance Contract, means an amount equal to the amount (net of rebates and credits) which AspenTech charges for such Software, less the amount of any down payments or credits, and/or unpaid refinancing or “take-out” liabilities associated with such Software.
“Closing Date” has the meaning given in Section 2(f).
“Direct Finance Contract” means a non-cancelable full pay-out financing agreement arising out of the licensing and provision of Software, which is a direct agreement between the Obligor and FBC. A Direct Finance Contract is a “Contract” under the Letter Agreement.
“Software Agreements” has the meaning given in Section 2(e).
(c)
Replacement Definitions. The definition of “Software”
provided under the Letter Agreement is replaced by the following definition:
“Software” means software products licensed by AspenTech under license agreements with Obligors and services, such as maintenance, support, consulting and special applications development, which are provided to by AspenTech to Obligors under the terms of such license agreements.
2.
Direct Finance Transactions.
(a)
Offers; Origination. AspenTech may advise its prospective Obligors
about direct financing opportunities under this Addendum. FBC may in its
sole discretion elect to finance or decline to finance an Obligor’s
acquisition of AspenTech Software.
(b)
Financed Amount. The amount to be financed for Software under
direct financings will not exceed the actual license fee, service fee for
and/or cost of such Software to the Obligor.
(c)
Limitations on Direct Finance
Contracts. Each Direct Finance
Contract shall be in the form attached hereto as Exhibit A, except as
specifically approved in writing by FBC.
(d)
Credit Acceptance. FBC will in its sole discretion determine the
acceptability of the Obligor’s credit under proposed transactions and
will advise AspenTech of FBC’s credit determination. If FBC does
not approve the creditworthiness of an Obligor under a proposed transaction
within thirty (30) business days, the proposed transaction will be deemed
rejected. Credit approvals by FBC shall be in writing and shall be valid
for a period of ninety (90) days from their issuance unless a different time is
specified in writing by FBC, and will be subject to
any terms specified by FBC in connection with the approval. Credit approval may be revoked if FBC determines, in its sole discretion, that (i) a change has occurred in the structure of the proposed transaction from that represented by AspenTech to FBC at the time of its approval, (ii) there has occurred a material adverse change (as determined by FBC) in the creditworthiness or business condition of the Obligor, or (iii) any of the materials, information, statements and/or representations provided to FBC in connection with its credit review or approval are false, misleading or incomplete to any material extent. FBC will promptly notify AspenTech, in writing, of any revocation.
(e)
Conditions to Financing. In the event FBC agrees to directly finance
any AspenTech Software, all of the following conditions must be satisfied at or
prior to the Closing Date with respect to such financing:
(1)
No material change shall have occurred to
AspenTech’s business or financial status since the date of this Addendum
which prevent AspenTech from meeting its obligations under the Letter
Agreement, this Addendum or any Assignment and its obligations (if any) with
respect to any Software covered by any Software Agreement;
(2)
This Addendum must be in full force and
effect and shall not have expired, or been terminated or revoked;
(3)
AspenTech must not be in breach of any of
its obligations under this Addendum.
(4)
FBC must have approved the credit of the
and such approval shall not have been revoked;
(5)
AspenTech must have originated and
compiled, and FBC must have received:
(i)
The original Direct Finance Contract, any
schedules, riders and attachments thereto, all fully executed by the Obligor;
(ii)
Evidence that the software components of
the Software covered or financed under the Direct Finance Contract have been
shipped to, and that such software components have been accepted in accordance
with and as defined by the terms and conditions of the Software Agreements;
(iii)
A copy of any license or other agreements
between AspenTech and the Obligor with respect to the Software, (“Software
Agreements”), certified as true, accurate and correct by AspenTech;
and
(iv)
Such other guaranties, documents,
instruments and agreements as required under FBC’s credit approval or as
FBC may otherwise reasonably require.
(f)
Closing. Except as otherwise mutually agreed to by
AspenTech and FBC, each closing shall occur on a mutually agreed upon business
day following the satisfaction of all of the conditions precedent to purchase
set forth in Section 2(e) (the “Closing Date”).
On each Closing Date, FBC shall pay to AspenTech the aggregate Acquisition Cost
for all Software being financed on such Closing Date.
(g)
No Assumption by FBC. FBC shall not be deemed to have assumed any of
AspenTech’s, any licensor’s, or any service provider’s
obligations with respect to any Software.
3.
Warranties as to the Direct Finance
Contracts. AspenTech warrants
that all of the following are true and correct with respect to all Software
financed under this Addendum and the Direct Finance Contract and related
agreements covering such Software. These warranties will, for Direct
Finance Contracts, supersede and replace the eligibility provisions of the
Letter Agreement:
(a)
Bona Fide Transaction; Acceptance. The Direct Finance Contract arises from a bona
fide financing of the Software described in the Direct Finance Contract; as of
the Closing Date, the software components of the Software have been shipped to,
and accepted in accordance with and as defined by the terms and conditions of
the Software Agreements, by the Obligor;
(b)
Software Complies With License and
Laws. The Software complies
with the requirements of any applicable license or other agreement and any
applicable laws and regulations and AspenTech has an unconditional,
non-terminable right to license, relicense or sublicense the software
components of the Software covered under the Direct Finance Contract for the
full term of the Direct Finance Contract;
