THEREOF (COLLECTIVELY, THE "TRANSFERRED ASSETS"), (II) ENTERING INTO A
PURCHASE AND RE-SALE AGREEMENT (THE "P&RS AGREEMENT") BETWEEN ASPEN I AND ASPEN
TECHNOLOGY RECEIVABLES II LLC ("ASPEN II"), WHEREBY THE ASPEN 1 WILL SELL,
TRANSFER AND ASSIGN TO ASPEN II THE TRANSFERRED ASSETS, AND (III) ENTERING INTO
A LOAN AGREEMENT, AND RELATED SECURITY AGREEMENT (THE "GUGGENHEIM FINANCING
AGREEMENT"), BETWEEN ASPEN II AND GUGGENHEIM, WHEREBY GUGGENHEIM SHALL ADVANCE
TO ASPEN II A TERM LOAN (ALL SUCH TRANSACTIONS AND RELATED TRANSACTIONS BEING
REFERRED TO AS THE "GUGGENHEIM TRANSACTIONS").
SILICON HAS BEEN PROVIDED WITH
COPIES OF THE P&S AGREEMENT, THE P&RS AGREEMENT AND THE GUGGENHEIM FINANCING
AGREEMENTS, AND HEREBY CONSENTS, NOTWITHSTANDING ANY PROHIBITIONS IN ANY OF THE
EXISTING LOAN DOCUMENTS, TO THE GUGGENHEIM TRANSACTIONS, INCLUDING, WITHOUT
LIMITATION, THE SALE, TRANSFER AND ASSIGNMENT OF THE TRANSFERRED ASSETS FROM THE
BORROWER TO ASPEN I AND THEN TO ASPEN II, FREE AND CLEAR OF ANY LIEN OR SECURITY
INTEREST OF SILICON, ON OR BEFORE JUNE 15, 2005, AND THE PLEDGE OF THE
TRANSFERRED ASSETS TO GUGGENHEIM IN CONNECTION WITH THE GUGGENHEIM FINANCING
AGREEMENTS (THE SUBSTANTIVE TERMS AND CONDITIONS OF WHICH ARE DETAILED ON
EXHIBIT A ANNEXED HERETO), PROVIDED (I) SUCH SALE OF THE TRANSFERRED ASSETS IS
MADE ON A
2
"TRUE SALE", NON-RECOURSE BASIS CONSISTENT WITH BORROWER'S PAST PRACTICES
(EXCEPT AS OTHERWISE SPECIFICALLY CONTEMPLATED BY THE GUGGENHEIM TRANSACTIONS,
(II) ON OR BEFORE THE DATE HEREOF, SILICON HAS BEEN FURNISHED WITH A SCHEDULE,
WITH REASONABLE DETAIL, IDENTIFYING THE SPECIFIC RECEIVABLES TO BE SOLD, AND
(III) NO SUCH RECEIVABLES ARE INCLUDED FOR BORROWING HEREUNDER AS AN ELIGIBLE
RECEIVABLE FROM AND AFTER THE DATE OF SUCH SALE.
SILICON SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT IT SHALL RETAIN NO INTEREST IN OR TO THE
TRANSFERRED ASSETS, OR THE PAYMENTS REMITTED IN CONNECTION THEREWITH, AND
SILICON WILL RELEASE ANY AND ALL SUCH INTEREST IN THE TRANSFERRED ASSETS AS
PROVIDED IN THAT CERTAIN PARTIAL RELEASE AND ACKNOWLEDGEMENT AGREEMENT
SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT B ANNEXED HERETO.
SILICON
HEREBY CONFIRMS THAT FROM AND AFTER THE DATE HEREOF, NONE OF THE TRANSFERRED
ASSETS SHALL BE "COLLATERAL" OR "RECEIVABLES" UNDER ANY OF THE EXISTING LOAN
DOCUMENTS, AND MORE SPECIFICALLY, BUT WITHOUT LIMITATION, NONE OF THE
TRANSFERRED ASSETS SHALL BE "INTELLECTUAL PROPERTY" UNDER THOSE CERTAIN NEGATIVE
PLEDGE AGREEMENTS BETWEEN THE BORROWER AND SILICON, DATED JANUARY 30, 2003, AS
AMENDED AND IN EFFECT FROM TIME TO TIME.
5.
REVOCATION OF CONSENT IN FIFTH
AMENDMENT; REVISED CONSENT TO PAYMENT OF SUBORDINATED DEBT.
(A)
PARAGRAPH NO 4 (B) OF THE FIFTH AMENDMENT
IS HEREBY DELETED IN ITS ENTIRETY.
(B)
NOTWITHSTANDING THE TERMS OF THE EXISTING
LOAN DOCUMENTS TO THE CONTRARY, INCLUDING, WITHOUT LIMITATION, SECTION 5.5 OF
THE LOAN AGREEMENT, BORROWER MAY NOT REDEEM, RETIRE, PURCHASE OR OTHERWISE
ACQUIRE, DIRECTLY OR INDIRECTLY, ANY OF BORROWER'S STOCK, AND/OR ANY OF
BORROWER'S 5 1/4% CONVERTIBLE SUBORDINATED DEBENTURES OR OTHER SUBORDINATED DEBT
INSTRUMENTS; PROVIDED, HOWEVER, BANK HEREBY CONSENTS TO BORROWER'S PROPOSED
REPAYMENT ON OR BEFORE JUNE 15, 2005 OF BORROWER'S 5 1/4% CONVERTIBLE
SUBORDINATED DEBENTURES, PROVIDED THAT, AT THE TIME OF