Exhibit 10.6
PARTIAL RELEASE AND
ACKNOWLEDGEMENT AGREEMENT
This Partial
Release and Acknowledgment Agreement (the “Agreement”)
is entered into as of September 27, 2006, 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, for itself and as
successor by merger to ASPENTECH, INC. , formerly a Texas
corporation with offices at Ten Canal Park, Cambridge,
Massachusetts 02141( “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 Funding
2006 - 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,
which assets shall be subsequently conveyed by Aspen Technology
Funding 2006 - I LLC to Aspen Technology Funding 2006 - II LLC
(“SPE II”), and which assets will then be pledged by
SPE II to Key Equipment Finance, Inc., as agent for certain lenders
extending loans to SPE II (the “Key
Transaction”).
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
Borrower’s 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 KEY or, at SVB’s option, SVB may depo
