A.
The Purchase Agreement shall be amended by
deleting Section 2.1 thereof and inserting in lieu thereof the following
Section 2.1:
"2.1
SALE AND PURCHASE.
SUBJECT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, WITH RESPECT TO EACH PURCHASE, EFFECTIVE ON EACH APPLICABLE PURCHASE
DATE, SELLER AGREES TO SELL TO BUYER AND BUYER AGREES TO BUY FROM SELLER ALL
RIGHT, TITLE, AND INTEREST (BUT NONE OF THE OBLIGATIONS WITH RESPECT TO) OF THE
SELLER TO THE PAYMENT OF ALL SUMS OWING OR TO BE OWING FROM THE ACCOUNT DEBTORS
UNDER EACH PURCHASED RECEIVABLE TO THE EXTENT OF THE PURCHASED RECEIVABLE AMOUNT
FOR SUCH PURCHASED RECEIVABLE.
Each purchase and sale hereunder shall be in the sole discretion of
Buyer and Seller.
In any event, Buyer will not (i) purchase any Receivables in
excess of an aggregate outstanding amount exceeding Eighty-Five Million Dollars
($85,000,000.00), or (ii) purchase any Receivables under this Agreement after
May 15, 2010.
The purchase of each Purchased Receivable may be evidenced by an
assignment or bill of sale in a form acceptable to Buyer."
FEES.
SELLER SHALL PAY TO BUYER A MODIFICATION FEE OF $25,000.00, WHICH FEE
SHALL BE DUE ON THE DATE HEREOF AND SHALL BE DEEMED FULLY EARNED AS OF THE DATE
HEREOF.
SELLER SHALL ALSO REIMBURSE BUYER FOR ALL LEGAL FEES AND EXPENSES
INCURRED IN CONNECTION WITH THIS AMENDMENT.
CONSISTENT CHANGES.
THE PURCHASE AGREEMENT IS HEREBY AMENDED WHEREVER NECESSARY
TO REFLECT THE CHANGES DESCRIBED ABOVE.
RATIFICATION OF DOCUMENTS.
SELLER HEREBY RATIFIES, CONFIRMS, AND REAFFIRMS ALL
TERMS AND CONDITIONS OF THE PURCHASE AGREEMENT.
CONTINUING VALIDITY.
SELLER UNDERSTANDS AND AGREES THAT IN MODIFYING THE
PURCHASE AGREEMENT, BUYER IS RELYING UPON SELLER'S REPRESENTATIONS, WARRANTIES,
AND AGREEMENTS, AS SET FORTH IN THE PURCHASE AGREEMENT.
EXCEPT AS EXPRESSLY
MODIFIED PURSUANT TO THIS AMENDMENT, THE TERMS OF THE PURCHASE AGREEMENT REMAIN
UNCHANGED AND IN FULL FORCE AND EFFECT.
BUYER'S AGREEMENT TO MODIFICATIONS TO
THE PURCHASE AGREEMENT PURSUANT TO THIS AMENDMENT IN NO WAY SHALL OBLIGATE BUYER
TO MAKE ANY FUTURE MODIFICATIONS TO THE PURCHASE AGREEMENT.
NO DEFENSES OF SELLER.
SELLER HEREBY ACKNOWLEDGES AND AGREES THAT SELLER HAS NO
OFFSETS, DEFENSES, CLAIMS, OR COUNTERCLAIMS AGAINST BUYER WITH RESPECT TO THE
PURCHASE AGREEMENT OR OTHERWISE, AND THAT IF SELLER NOW HAS, OR EVER DID HAVE,
ANY OFFSETS, DEFENSES, CLAIMS, OR COUNTERCLAIMS AGAINST BUYER, WHETHER KNOWN OR
UNKNOWN, AT LAW OR IN EQUITY, ALL OF THEM ARE HEREBY EXPRESSLY WAIVED AND SELLER
HEREBY RELEASES BUYER FROM ANY LIABILITY THEREUNDER.
COUNTERSIGNATURE.
THIS AMENDMENT SHALL BECOME EFFECTIVE ONLY WHEN IT SHALL HAVE
BEEN EXECUTED BY SELLER AND BUYER.
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This Amendment is executed as a sealed instrument under the laws of the
Commonwealth of Massachusetts as of the date first written above.
SELLER:
BUYER:
ASPEN TECHNOLOGY, INC.
SILICON VALLEY BANK
By:
/s/ Mark P. Sullivan
By:
/s/ Ryan Ravenscroft
Name:
Mark P. Sullivan
Name:
Ryan Ravenscroft
Title:
Senior Vice President and CFO
Title:
Vice President
By:
/s/ Roger Kuebel
Name:
Roger Kuebel
Title:
Treasurer
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