Exhibit 10.8
AMENDMENT NO. 1 TO SECURITY AGREEMENT
This Amendment No. 1, dated as of January 30, 2003 ("Amendment No. 1"),
to the Security Agreement, dated August 16, 2002 (the "Agreement"), by and
between Accenture LLP, an Illinois general partnership registered as a limited
liability partnership with an office at 1000 Peachtree Street, N.E., Suite 1300,
Atlanta, Georgia 30303 ("Accenture") and Aspen Technology, Inc., a Delaware
corporation with an office at Ten Canal Park, Cambridge, Massachusetts 02141
("AspenTech"), is entered into by and between Accenture and AspenTech. Terms
used and not otherwise defined herein shall have the meanings given them in the
Agreement.
WHEREAS, the Parties previously entered into the Agreement, pursuant to
which AspenTech granted to Accenture a lien on and security interest in the
Initial Collateral to secure repayment of the Outstanding Debt;
WHEREAS, pursuant to the Agreement, AspenTech agreed that if it had not
established a Lender's Line of Credit by December 31, 2002, it would grant to
Accenture a lien and security interest in its accounts receivable as specified
in the Agreement and that such accounts receivable would thereafter replace the
Initial Collateral in securing the Outstanding Debt; and
WHEREAS, the Parties desire to amend the Security Agreement to provide
that Accenture shall have a first priority security interest in certain
installment receivables of AspenTech to secure repayment of the Outstanding
Debt, and that such collateral shall replace the Initial Collateral and any
other security interest to which Accenture otherwise would have been entitled
pursuant to the Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged; the each of the Parties hereby agrees as follows:
1. Sections 1 through 5 of the Agreement are hereby deleted in their
entirety and replace with the following sections:
"1. To secure the prompt payment of the Outstanding Debt, AspenTech
hereby grants to Accenture a lien and first priority security
interest in AspenTech's right, title and interest in and to the
installment receivables or other rights to receive payment listed
on SCHEDULE 1 attached hereto together with the proceeds
therefrom (the "Installment Collateral"). The Parties agree that
the security interest in the Installment Collateral granted
hereby replaces and supercedes Accenture's security interest in
the collateral set forth on EXHIBIT A of the original Agreement
(the "Original Collateral") and any other security interest to
which Accenture otherwise would have been entitled pursuant to
the terms of the original Agreement.
2. AspenTech represents and warrants to Accenture that (i) AspenTech
is the legal and beneficial owner of the Installment Collateral
free and clear of all liens, security interests or other
encumbrances, (ii) there is no dispute, right of setoff,
counterclaim or defense exists with respect to all or any part of
the Installment Collateral, and (iii) this Agreement creates a
valid security interest in the Installment Collateral, securing
the payment of the Outstanding Debt.
3. AspenTech will collect, in the ordinary course of business, at
its own expense, all amounts due or to become due under each of
the Installment Collateral. In the event that AspenTech fails to
repay the Outstanding Debt in accordance with the schedule set
forth in the License Fee Agreement, as amended, then all proceeds
collected with respect to the Installment Collateral shall be
paid to Accenture to satisfy the portion of the Outstanding Debt
then due.
4. After February 1, 2003, in the event that the aggregate amounts
outstanding and owed to AspenTech pursuant to the Installment
Collateral is less than an amount equal to twice the amount of
the Outstanding Debt, AspenTech shall grant to Accenture, on a
first priority basis, a lien and security interest in additional
installment receivables (the "Additional Collateral") in such
amounts so that the aggregate amounts outstanding and owed to
AspenTech pursuant to the Installment Collateral and such
Additional Collateral are equal to an amount equal to twice the
Outstanding Debt. AspenTech and Accenture shall mutually agree on
those certain installment receivables that shall constitute
Additional Collateral upon which AspenTech will grant a lien and
security interest to Accenture.
5. Notwithstanding anything in this Agreement to the contrary,
AspenTech expressly agrees that it shall remain liable under each
of the contracts and agreements in the Installment Collateral and
that it shall perform, in all material respects, all of its
duties and obligations thereunder, all in accordance with and
pursuant to the terms and provisions of each such contract or
agreement. Accenture shall not have any obligation or liability
under any contract or agreement in the Installment Collateral by
reason of or arising out of this Agreement or the granting to
Accenture of a lien therein or the receipt by Accenture of any
payment relating to the Installment Collateral.
6. Accenture hereby releases its security interest in the Original
Collateral and authorizes AspenTech's filing of Uniform
Commercial Code ("UCC") termination statements to evidence such
termination and release of its security interest in the Original
Collateral.
7. Accenture agrees that it shall from time to time, upon reasonable
request by AspenTech, (a) release its security interest in that
portion of
the Installment Collateral and Additional Collateral that is in
excess of twice the amount of the Outstanding Debt and (b)
authorize AspenTech to file UCC termination statements to
evidence such termination and release of Accenture's security
interest in such excess portion of the Installment Collateral and
Additional Collateral.
8. For so long as the Outstanding Debt remains outstanding,
Accenture shall have the right, upon default by AspenTech of any
of the material provisions of the Amended Agreements and the
continuance of such default, to enforce the provisions of this
Agreement and exercise remedies hereunder in such a manner as it
may determine reasonable, including, without limitation, the
rights to take possession, sell or otherwise dispose of the
Installment Collateral or Additional Collateral, to incur other
expenses with respect to such possession, sale or disposition and
to exercise all rights and remedies as a secured lender under the
Uniform Commercial Code of any applicable jurisdiction.
9. From time to time, upon the reasonable request of Accenture,
AspenTech shall promptly execute and deliver any and all such
further instruments and documents and take such further action as
Accenture may reasonably deem necessary or desirable to obtain
the full benefits of this Agreement, including, without
limitation, facilitating the filing of UCC-1 Financing Statements
in all applicable jurisdictions.
10. This Agreement shall terminate upon the full and final payment of
the Outstanding Debt in accordance with the terms set forth in
the License Fee Agreement, as amended.
11. No failure on the part of any of Accenture to exercise, and no
delay in exercising any right hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the
exercise of any other right. The wavier by Accenture of any
breach of any provision of this Agreement or warranty or
representation herein set forth will not be construed as a waiver
of any subsequent breach. The failure to exercise any right
hereunder by Accenture will not operate as a waiver of such
right. All rights and remedies herein provided are cumulative.
This Agreement may not be altered or amended except by a writing
signed by all the parties hereto. This Agreement binds AspenTech,
its successors and assigns, and inures to the benefit of
Accenture, its successors and assigns."
2. AspenTech acknowledges and confirms that it shall pay to Accenture on
February 1, 2003 the amounts which would otherwise be due to Accenture
on February 28, 2003 pursuant to the terms of the License Fee
Agreement, as amended. AspenTech further acknowledges and confirms
that, prior to April 1, 2003, it shall pay to Accenture all amounts
due on or before March 31, 2003 pursuant to the Amended Agreements.
3. This Amendment No.1 may be executed in counterparts, each of which so
executed shall be deemed an original and both of which taken together
shall constitute one and the same Agreement. In the event that a
signature is executed and delivered by facsimile transmission, such
signature shall create a binding obligation of the party on whose
behalf such signature is executed with the same force and effect as if
such facsimile signature were the original thereof.
IN WITNESS WHEREOF, the undersigned have each executed this Amendment No. 1 as
of the date first set forth above.
ACCENTURE LLP ASPEN TECHNOLOGY, INC.
By: /s/ David A. Crow By: /s/ Lisa W. Zappala
----------------------------- -------------------------
Name: David A. Crow Lisa W. Zappala
Title: Partner Senior Vice President and
---------------------- Chief Financial Officer
SCHEDULE A
DEBTOR: ASPEN TECHNOLOGY, INC.
SECURED PARTY: ACCENTURE LLP
CUSTOMER# COUNTRY INVOICE TYPE DUE DATE
3852 China 124286 License 05/31/03
3852 China 124286 License 09/30/03
3852 China 124286 License 05/31/04
3852 China 124286 License 09/30/04
3852 China 124286 License 05/31/05
1211 Japan 122005 License 10/31/03
1211 Japan 122005 License 10/31/04
1211 Japan 122005 License 10/31/05
1211 Japan 123647 License 04/30/03
1211 Japan 123647 License 07/31/03
1211 Japan 123647 License 04/30/04
1211 Japan 123647 License 07/31/04
1211 Japan 123647 License 04/30/05
1211 Japan 123647 License 07/31/05
1211 Japan 123647 License 04/30/06
1211 Japan 123647 License 07/31/06
1211 Japan 123647 License 04/30/07
1045 United Kingdom 112488 License 07/01/03
1045 United Kingdom 112488 License 07/01/04
1045 United Kingdom 113626 License 10/01/03
1045 United Kingdom 113626 License 10/01/04
1095 United States 115683 License 04/01/03
1095 United States 115683 License 04/01/04
1095 United States 115683 License 04/01/05
3928 United States 124220 License 04/15/03
3928 United States 124220 License 06/15/03
6365 France 122549 License 04/01/03
6365 France 122549 License 04/01/04
6365 France 122549 License 04/01/05
6365 France 122549 License 04/01/06
6365 France 122549 License 04/01/07
7710 Germany 122618 License 01/01/04
7710 Germany 122618 License 01/01/05
7710 Germany 122618 License 01/01/06
7710 Germany 122618 License 01/01/07
SCHEDULE A
DEBTOR: ASPEN TECHNOLOGY, INC.
SECURED PARTY: ACCENTURE LLP
CUSTOMER# COUNTRY INVOICE TYPE DUE DATE
9677 Germany 122653 License 01/01/04
9677 Germany 122653 License 01/01/05
9677 Germany 122653 License 01/01/06
9677 Germany 122653 License 01/01/07
10851 Belgium 124278 License 10/01/03
10851 Belgium 124278 License 10/01/04
10851 Belgium 124278 License 10/01/05
10851 Belgium 124278 License 10/01/06
10851 Belgium 124278 License 10/01/07
2587 Netherlands 124277 License 10/01/03
2587 Netherlands 124277 License 10/01/04
2587 Netherlands 124277 License 10/01/05
2587 Netherlands 124277 License 10/01/06
2587 Netherlands 124277 License 10/01/07