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