Schedule 13D Amendment No. 2

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TfPkkrS7IClJKfa+dqeZjitzxInWdvYOY3nlZfZ6Krz0oEAGhOBv9j5k0jS7e3d8 deqtSDYB8UOk74NrVyALAg== 0001193125-09-203601.txt : 20091005 0001193125-09-203601.hdr.sgml : 20091005 20091005172829 ACCESSION NUMBER: 0001193125-09-203601 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20091005 DATE AS OF CHANGE: 20091005 GROUP MEMBERS: DR. ROMESH WADHWANI GROUP MEMBERS: MAXIMUS HOLDINGS INC. GROUP MEMBERS: MAXIMUS INC. GROUP MEMBERS: STG III GP, L.P. GROUP MEMBERS: STG III, L.P. GROUP MEMBERS: STG III-A, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MSC SOFTWARE CORP CENTRAL INDEX KEY: 0000717238 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 952239450 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-34721 FILM NUMBER: 091106471 BUSINESS ADDRESS: STREET 1: 815 COLORADO BLVD CITY: LOS ANGELES STATE: CA ZIP: 90041 BUSINESS PHONE: 3232589111 MAIL ADDRESS: STREET 1: 815 COLORADO BOULEVARD CITY: LOS ANGELES STATE: CA ZIP: 90041 FORMER COMPANY: FORMER CONFORMED NAME: MACNEAL SCHWENDLER CORP DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: STG UGP, LLC CENTRAL INDEX KEY: 0001416748 IRS NUMBER: 208818310 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 2475 HANOVER STREET CITY: PALO ALTO STATE: CA ZIP: 94304 BUSINESS PHONE: (650) 935-9500 MAIL ADDRESS: STREET 1: 2475 HANOVER STREET CITY: PALO ALTO STATE: CA ZIP: 94304 FORMER COMPANY: FORMER CONFORMED NAME: STG UGP LTD DATE OF NAME CHANGE: 20071029 SC 13D/A 1 dsc13da.htm SCHEDULE 13D AMENDMENT NO. 2 Schedule 13D Amendment No. 2

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

[Rule 13d-101]

Under the Securities Exchange Act of 1934

(Amendment No. 2)*

MSC.Software Corporation

(Name of Issuer)

Common Stock, $0.01 par value per share

(Title of Class of Securities)

553531104

(CUSIP Number)

Symphony Technology Group, LLC

2475 Hanover Street

Palo Alto, CA 94304

Attn: Chief Financial Officer

Telephone: (650) 935-9500

with copies to:

Steve L. Camahort

Shearman & Sterling LLP

525 Market Street

San Francisco, CA 94105

Telephone: (415) 616-1100

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

October 2, 2009

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).


CUSIP No. 553531104
1.	Names of Reporting Persons. Maximus Holdings Inc.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) AF, BK, OO, SC
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
6.	Citizenship or Place of Organization Delaware
Number of Shares Beneficially Owned by Each Reporting Person With		7.	Sole Voting Power 0
		8.	Shared Voting Power 7,526,496 **
		9.	Sole Dispositive Power 0
		10.	Shared Dispositive Power
11.	Aggregate Amount Beneficially Owned by Each Reporting Person 7,526,496**
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
13.	Percent of Class Represented by Amount in Row (11) 16.1%**
14.	Type of Reporting Person (See Instructions) CO


CUSIP No. 553531104
1.	Names of Reporting Persons. Maximus Inc.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) AF, BK, OO, SC
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
6.	Citizenship or Place of Organization Delaware
Number of Shares Beneficially Owned by Each Reporting Person With		7.	Sole Voting Power 0
		8.	Shared Voting Power 7,526,496**
		9.	Sole Dispositive Power 0
		10.	Shared Dispositive Power 0
11.	Aggregate Amount Beneficially Owned by Each Reporting Person 7,526,496**
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
13.	Percent of Class Represented by Amount in Row (11) 16.1%**
14.	Type of Reporting Person (See Instructions) CO


CUSIP No. 553531104
1.	Names of Reporting Persons. STG UGP, LLC
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) AF, BK, OO, SC
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
6.	Citizenship or Place of Organization Delaware
Number of Shares Beneficially Owned by Each Reporting Person With		7.	Sole Voting Power 0
		8.	Shared Voting Power 7,526,496**
		9.	Sole Dispositive Power 0
		10.	Shared Dispositive Power 0
11.	Aggregate Amount Beneficially Owned by Each Reporting Person 7,526,496**
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
13.	Percent of Class Represented by Amount in Row (11) 16.1%**
14.	Type of Reporting Person (See Instructions) CO


CUSIP No. 553531104
1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) STG III GP, L.P.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) AF, BK, OO, SC
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
6.	Citizenship or Place of Organization Delaware
Number of Shares Beneficially Owned by Each Reporting Person With		7.	Sole Voting Power 0
		8.	Shared Voting Power 7,526,496**
		9.	Sole Dispositive Power 0
		10.	Shared Dispositive Power
11.	Aggregate Amount Beneficially Owned by Each Reporting Person 7,526,496**
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
13.	Percent of Class Represented by Amount in Row (11) 16.1%**
14.	Type of Reporting Person (See Instructions) PN


CUSIP No. 553531104
1.	Names of Reporting Persons. STG III, L.P.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) AF, BK, OO, SC
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
6.	Citizenship or Place of Organization Delaware
Number of Shares Beneficially Owned by Each Reporting Person With		7.	Sole Voting Power 0
		8.	Shared Voting Power 7,526,496**
		9.	Sole Dispositive Power 0
		10.	Shared Dispositive Power 0
11.	Aggregate Amount Beneficially Owned by Each Reporting Person 7,526,496**
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
13.	Percent of Class Represented by Amount in Row (11) 16.1%**
14.	Type of Reporting Person (See Instructions) PN


CUSIP No. 553531104
1.	Names of Reporting Persons. STG III-A, L.P.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) AF, BK, OO, SC
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
6.	Citizenship or Place of Organization Delaware
Number of Shares Beneficially Owned by Each Reporting Person With		7.	Sole Voting Power 0
		8.	Shared Voting Power 7,526,496**
		9.	Sole Dispositive Power 0
		10.	Shared Dispositive Power 0
11.	Aggregate Amount Beneficially Owned by Each Reporting Person 7,526,496**
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
13.	Percent of Class Represented by Amount in Row (11) 16.1%**
14.	Type of Reporting Person (See Instructions) PN


CUSIP No. 553531104
1.	Names of Reporting Persons. Dr. Romesh Wadhwani
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) AF, BK, OO, SC
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
6.	Citizenship or Place of Organization United States
Number of Shares Beneficially Owned by Each Reporting Person With		7.	Sole Voting Power 0
		8.	Shared Voting Power 7,526,496**
		9.	Sole Dispositive Power 0
		10.	Shared Dispositive Power 0
11.	Aggregate Amount Beneficially Owned by Each Reporting Person 7,526,496**
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
13.	Percent of Class Represented by Amount in Row (11) 16.1%**
14.	Type of Reporting Person (See Instructions) IN

**	See Item 5

This Amendment No. 2 to Schedule 13D is being filed jointly by the following (each a “Reporting Person” and collectively, the “Reporting Persons”): (1) Maximus Holdings Inc., a Delaware corporation (“Parent”), (2) Maximus Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), (3) STG UGP, LLC., a Delaware limited liability company (“STG UGP”), (4) STG III GP, L.P., a Delaware limited liability partnership (“STG III GP”), (5) STG III, L.P., a Delaware limited partnership (“STG III”), (6) STG III-A, L.P., a Delaware limited partnership (“STG III-A”) and (7) Dr. Romesh Wadhwani (“Dr. Wadhwani”), to supplement and amend the Schedule 13D filed on behalf of the Reporting Persons on July 17, 2009, as previously amended. Each item below amends and supplements the information disclosed under the corresponding item of Schedule 13D. Capitalized terms defined in the Schedule 13D are used herein with their defined meaning.

All information in this Amendment No. 2 to Schedule 13D is being supplied solely by the Reporting Persons and only the Reporting Persons shall be deemed responsible for the accuracy of such information.

Item 3.

Source Amount of Funds or Other Consideration

The response set forth in Item 3 of the Schedule 13D is hereby amended and supplemented by the following:

On October 2, 2009, Parent obtained a revised equity commitment letter from STG III and STG III-A dated October 2, 2009 (the “New STG Commitment Letter”), pursuant to which, STG III and STG III-A, severally and not jointly (based upon their respective Pro Rata Portions (as defined in the New STG Commitment Letter)), have agreed to contribute, or cause to be contributed, to Parent, at or prior to the consummation of the Merger, immediately available funds in the amount equal to $94,032,081 and $12,472,919, respectively, in exchange for the equity securities described therein, subject to such adjustments in aggregate amounts invested as are contemplated in Exhibit A thereto. The obligations of STG III and STG III-A to fund their respective commitments will expire on the terms and conditions set forth in the New STG Commitment Letter. The New STG Commitment Letter replaces and supersedes the prior commitment letters delivered by STG III and STG III-A, which have been terminated with no continuing liability thereunder.

On October 2, 2009, Parent also obtained a revised equity commitment letter from Elliott Associates and Elliott International dated October 2, 2009 (the “New Elliott Commitment Letter”), pursuant to which, Elliott Associates and Elliott International, severally and not jointly (based upon their respective Pro Rata Portions (as defined in the New Elliott Commitment Letter)), have agreed to transfer, or cause to be transferred to Parent, at or prior to the consummation of the Merger: (a) 6,060,058 shares of Common Stock in the aggregate (as appropriately adjusted to take into account any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization); and (b) immediately available funds in an amount not to exceed $11,838,205 and $17,757,308, respectively, in exchange for the equity securities described therein, subject to such adjustments in aggregate amounts invested as are contemplated in Exhibit A thereto. The obligations of Elliott Associates and Elliott International to fund their respective commitments will expire on the terms and conditions set forth in the New Elliott Commitment Letter. The New Elliott Commitment Letter replaces and supersedes the prior commitment letter delivered by Elliott Associates and Elliott International, which has been terminated with no continuing liability thereunder.

In addition, the Lenders have also provided an amended and restated Senior Secured Credit Facility Commitment Letter dated October 2, 2009 (the “New Debt Commitment Letter”) to Symphony Technology Group, pursuant to which the Lenders, subject to the terms and conditions therein, recommitted to provide an aggregate of $65,000,000 in debt financing, which financing will be used for the purpose of funding a portion of the consideration payable in connection with the Merger, to pay certain fees and expenses of the Merger, and for general corporate purposes for the operation of the Issuer following the closing of the Merger.

Additionally, Barclays Structured Principal Investing Fund, L.P. (the “Second Lien Lender”) has provided a Second Lien Term Loan Facility Commitment Letter dated October 2, 2009 (the “Second Lien Debt Commitment Letter”) to Symphony Technology Group, pursuant to which the Second Lien Lender, subject to the terms and conditions therein, committed to provide an aggregate of $50,000,000 in second lien debt financing, which financing will be used for the purpose of funding a portion of the consideration payable in connection with the Merger, to pay certain fees and expenses of the Merger, and for general corporate purposes for the operation of the Issuer following the closing of the Merger.

The proceeds from the New STG Commitment Letter, the New Elliott Commitment Letter, the New Debt Commitment Letter and the Second Lien Debt Commitment Letter, together with the Issuer’s available cash at the closing of the Merger, will be used to fund the aggregate merger consideration and to pay all related fees and expenses.

The foregoing descriptions of the New STG Commitment Letter, the New Elliott Commitment Letter, the New Debt Commitment Letter and the Second Lien Debt Commitment Letter do not purport to be complete and are qualified in their entirety by reference to such agreements, each of which is incorporated by reference in its entirety into this Item 3. Copies of the New STG Commitment Letter, the New Elliott Commitment Letter, the New Debt Commitment Letter and the Second Lien Debt Commitment Letter are filed as Exhibits 99.17, 99.18, 99.19 and 99.20, respectively, hereto.

Item 4.

Purpose of Transaction

The response set forth in Item 4 of the Schedule 13D is hereby amended and supplemented by the following:

Elliott Associates, Elliott International, Parent, STG III and STG III-A, entered into an amended and restated agreement dated as of October 2, 2009 (the “New Side Letter”), which amended and restated the Side Letter. Pursuant to the New Side Letter, in the event that any payment obligations of Parent under Section 11.04(c) and 11.04(d) of the Merger Agreement are paid by Parent (or by STG III or STG III-A under the Limited Guarantee), Elliott Associates and Elliott International each, severally and not jointly, agrees to pay its Pro Rata Portion (as defined in the Side Letter) of such fees and/or expenses to Parent (or to STG III or STG III-A, if applicable). In the event that the Issuer pays the Company Termination Fee (as defined in the Merger Agreement), pursuant to the terms of the Side Letter Parent shall pay Manchester Securities Corp., a New York corporation wholly-owned by Elliott Associates, an amount equal to certain expenses incurred by the Elliott Entities and the Elliott Entities’ Pro Rata Portion (as defined in the Side Letter) of the Company Termination Fee, subject to the prior reimbursement of certain expenses of STG III, STG III-A and their affiliates and the payment of a portion of the Company Termination Fee to the Lenders and the Second Lien Lender.

The foregoing description of the New Side Letter does not purport to be complete and is qualified in its entirety by reference to such agreement, which is incorporated by reference in its entirety into this Item 4. A Copy of the New Side Letter is filed as Exhibit 99.21 hereto.

Item 7.

Material to Be Filed as Exhibits.


Exhibit Number		Document

99.1		Joint Filing Agreement, dated July 16, 2009, by and among Maximus Holdings Inc., Maximus Inc., STG UGP, LLC, STG III GP, L.P., STG III, L.P., STG III-A, L.P. and Dr. Romesh Wadhwani.*

99.9		Power of Attorney granted by STG UGP, LLC.*

99.10		Power of Attorney granted by STG III GP, L.P.*

99.11		Power of Attorney granted by STG III, L.P.*

99.12		Power of Attorney granted by STG III-A, L.P.*

99.13		Power of Attorney granted by Dr. Romesh Wadhwani*

99.17		Equity and Debt Commitment letter among STG III, L.P., a Delaware limited partnership, STG III-A, L.P., a Delaware limited partnership, and Maximus Holdings Inc., a Delaware corporation, dated October 2, 2009.

99.18		Equity and Debt Commitment letter among Elliott Associates, L.P., a Delaware limited partnership, Elliott International, L.P., a Cayman Islands limited partnership, and Maximus Holdings Inc., a Delaware corporation, dated October 2, 2009.

99.19		Sixth Amended and Restated Debt Commitment Letter among Wells Fargo Foothill, LLC, CapitalSource Bank and Symphony Technology Group, dated October 2, 2009.

99.20		Second Lien Term Loan Facility Commitment Letter among Barclays Structured Principal Investing Fund, L.P. and Symphony Technology Group, dated October 2, 2009

99.21		Amended and Restated Agreement among Maximus Holdings Inc., STG III, L.P., STG III-A, L.P., Elliott Associates, L.P., and Elliott International, L.P., dated October 2, 2009.

*	Filed as an Exhibit to the Reporting Person’s joint Statement on Schedule 13D filed on July 17, 2009, and incorporated by reference herein.

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: October 5, 2009


MAXIMUS HOLDINGS INC.

By:		/s/ BRAD MACMILLIN
Name:		Brad MacMillin
Title:		Secretary

MAXIMUS INC.

By:		/s/ BRAD MACMILLIN
Name:		Brad MacMillin
Title:		Secretary

STG UGP, LLC

By:		/s/ BRAD MACMILLIN
Name:		Brad MacMillin
Title:		Authorized Person**

STG III GP, L.P. By: STG UGP, LLC, its general partner

By:		/s/ BRAD MACMILLIN
Name:		Brad MacMillin
Title:		Authorized Person**

STG III, L.P. By: STG III GP, L.P., its general partner By: STG UGP, LLC, its general partner

By:		/s/ BRAD MACMILLIN
Name:		Brad MacMillin
Title:		Authorized Person**

**	See Powers of Attorney


STG III-A, L.P. By: STG III GP, L.P., its general partner By: STG UGP, LLC, its general partner

By:		/s/ BRAD MACMILLIN
Name:		Brad MacMillin
Title:		Authorized Person**

DR. ROMESH WADHWANI

By:		/s/ BRAD MACMILLIN
Name:		Brad MacMillin
Title:		Authorized Person**

**	See Powers of Attorney

EX-99.17 2 dex9917.htm EQUITY AND DEBT COMMITMENT LETTER AMONG STG III, L.P. Equity and Debt Commitment letter among STG III, L.P.

Exhibit 99.17

EXECUTION COPY

October 2, 2009

CONFIDENTIAL

Maximus Holdings Inc.

c/o Symphony Technology Group

2475 Hanover Street

Palo Alto, CA 94304

Re: STG Equity Commitment

Ladies and Gentlemen:

Reference is made to that Agreement and Plan of Merger, dated as of July 7, 2009 (including any amendment thereto, the “Merger Agreement”), by and among Maximus Holdings Inc., a Delaware corporation (“Parent”), Maximus Inc., a Delaware corporation and wholly-owned subsidiary of Parent (“Merger Sub”) and MSC.Software Corporation, a Delaware corporation (the “Company”). Capitalized terms in this commitment letter (this “Commitment Letter”) used but not defined herein shall have the meanings ascribed to such terms under the Merger Agreement. As used herein, the terms “Parent” and “Merger Sub” shall include any entity to which Parent or Merger Sub, as applicable, shall assign their respective rights, interests and obligations under the Merger Agreement in accordance with Section 11.06 thereof.

Subject only to satisfaction or waiver, at or prior to the Closing Date, of each of the conditions to the obligation of Parent and Merger Sub to effect the Merger as set forth in Sections 9.01 and 9.02 of the Merger Agreement, the signatories to this Commitment Letter, each of STG III, L.P., a Delaware limited partnership (“STG III”), and STG III-A, L.P., a Delaware limited partnership (“STG III-A” and, together with STG III, “STG”, and each, individually, an “STG Party”), severally and not jointly (based on their respective Pro Rata Portions (as defined below)), hereby confirms that it will contribute, or cause to be contributed, to Parent, at or prior to Closing, immediately available funds in an amount equal to $94,032,081 and $12,472,919, respectively, each in exchange for the equity securities described in Exhibit A (collectively, the “Capital”), subject to such adjustments in the aggregate amounts invested contemplated by the section entitled “Additional Matters—Funding Changes” in Exhibit A. The “Pro Rata Portion” for STG III shall be 88.29%, and the “Pro Rata Portion” for STG III-A shall be 11.71%.

The obligation of each STG Party to effect the transfers contemplated herein shall be subject to the following conditions precedent: (a) the negotiation and execution at or prior to Closing of definitive documentation providing for the issuance of the securities described in Exhibit A, and the other arrangements described in Exhibit A, in each case on the terms and conditions set forth in Exhibit A, including the execution of the stockholder agreement contemplated thereby by each stockholder of Parent as of the Closing (the “Investment Documentation”), (b) the effective filing of a certificate of incorporation or certificate of designation establishing and authorizing the preferred stock contemplated by Exhibit A in accordance with the terms set forth in Exhibit A, (c) the absence of any prohibition against the

consummation of the transactions contemplated hereby by any applicable law, statute, rule, regulation, judgment or order of any governmental authority of competent jurisdiction and (d) the satisfaction or waiver, at or prior to the Closing Date, of each of the conditions to the obligation of Parent and Merger Sub to effect the Merger as set forth in Sections 9.01 and 9.02 of the Merger Agreement.

Each STG Party and Parent agree to negotiate in good faith the Investment Documentation.

Each STG Party hereby represents and warrants, severally and not jointly, that (a) as of the date hereof it has, and as of the Closing Date it will have, unexpired capital commitments from its partners at least equal to the Capital, and (b) this Commitment Letter has been duly executed and delivered and constitutes the legal, valid and binding commitment of such STG Party to provide such STG Party’s Pro Rata Potion of the Capital as set forth above, enforceable in accordance with its terms.

Each STG Party reserves the right, prior to or after execution of definitive documentation for the financing transactions contemplated hereby, to cause any portion of its obligation to provide such STG Party’s Pro Rata Portion of the Capital hereunder (such STG Party’s “Commitment”) to be fulfilled by causing one or more of its Affiliates or other investors to actually fund all or any portion of the investment in Parent required by this Commitment Letter, and upon the actual funding of such portion of such STG Party’s Commitment, such STG Party’s remaining Commitment hereunder shall be correspondingly reduced.

Each STG Party’s obligation to fund such STG Party’s Commitment will expire on the earlier to occur of (i) the consummation of the Merger and the satisfaction of Parent’s payment obligations under Article 2 of the Merger Agreement, (ii) the termination of the Merger Agreement in accordance with the terms thereof, (iii) the time at which the Company or any of its Affiliates asserts in any litigation or other proceeding any claim under the limited guarantee of even date herewith delivered by the STG Parties (the “Limited Guarantee”), or otherwise against either STG Party or any of their respective Affiliates in connection with the Merger Agreement or any of the transactions contemplated hereby or thereby, and (iv) the one-year anniversary of the date hereof. From and after the expiration of all of STG’s obligations under this Commitment Letter, neither STG nor any of its directors, officers, partners, employees, investors or Affiliates will have any further liability or obligation to any Person or entity as a result of this Commitment Letter.

This Commitment Letter shall be binding solely on, and inure solely to the benefit of, the undersigned and Parent and their respective successors and permitted assigns, and nothing set forth in this Commitment Letter shall be construed to confer upon or give to any Person other than the undersigned and Parent and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the obligation to fund the Commitment or any provisions of this letter.

Notwithstanding anything that may be expressed or implied in this Commitment Letter, Parent, by its acceptance of the benefits of this equity commitment, covenants, agrees and acknowledges that no Person other than STG and its successors and permitted assigns shall have any obligation hereunder and that, notwithstanding that STG or any of its successors or permitted assigns may be a partnership or limited liability company, no recourse hereunder or under any documents or instruments delivered in connection herewith shall be had against any former, current or future director, officer, agent, Affiliate, employee, general or limited partner, member, manager or stockholder of STG or any of its successors or permitted assigns or any former, current or future director, officer, agent, Affiliate, employee, general or limited partner, member, manager or stockholder of any of the foregoing, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other Applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any former, current or future director, officer, agent, Affiliate, employee, general or limited partner, member, manager or stockholder of STG or any former, current or future director, officer, agent, Affiliate, employee, general or limited partner, member, manager or stockholder of any of the foregoing, as such, for any obligations of STG or any of its successors or permitted assigns under this Commitment Letter or any documents or instrument delivered in connection herewith or for any claim based on, in respect of, or by reason of such obligation or their creation.

This Commitment Letter may only be enforced by Parent at the direction of STG in its sole discretion. Parent shall have no right to enforce this Commitment Letter unless directed to do so by STG in its sole discretion. Parent’s creditors shall have no right to enforce this Commitment Letter or to cause Parent to enforce this Commitment Letter.

On July 7, 2009, each STG Party executed and delivered to the Company a Limited Guarantee related to the obligations of Parent and Merger Sub under clauses 11.04(c) and 11.04(d) of the Merger Agreement. As and to the extent provided for in the Limited Guarantee, the Company’s remedies against STG under the Limited Guarantee shall, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company and its Affiliates against STG and any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or assignee of STG or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or assignee of any of the foregoing in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement and the transactions contemplated thereby, including in the event Parent or Merger Sub breaches its obligations under the Merger Agreement, whether or not Parent’s or Merger Sub’s breach is caused by STG’s breach of its obligations under this Commitment Letter. Nothing in this Commitment Letter, express or implied, is intended to or shall confer upon any Person, other than Parent and STG, any right, benefit or remedy of any nature whatsoever under or by reason of this Commitment Letter.

This Commitment Letter (together with the exhibits hereto) sets forth the entire agreement between the parties with respect to the matters addressed herein, supersedes all prior communications, written or oral, with respect hereto, and may not be amended, supplemented, or modified except in a writing signed by the parties hereto. The parties hereto acknowledge and agree that any previous STG Equity and Debt Commitment Letter Commitment Letter executed by the STG Parties and Parent has been superseded by the terms hereof.

This Commitment Letter shall be governed and construed in accordance with the laws of the State of New York without regard to its conflict of laws provisions. Under no circumstances shall STG or any of its directors, officers, partners, employees, investors or affiliates be liable to any Person for incidental, consequential, punitive, exemplary, or special damages.

EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS COMMITMENT LETTER OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

This Commitment Letter may be signed in two or more counterparts, any one of which need not contain the signature of more than one party, but all such counterparts taken together shall constitute one and the same agreement. The rights of Parent or the beneficiary under this Commitment Letter may not be assigned in any manner without STG’s prior written consent. The obligations of STG under this Commitment Letter may not be assigned in any manner except as expressly set forth herein.

[Signature page follows]


Sincerely,

STG III, L.P. and STG III-A, L.P.

each by STG III GP, L.P., its General Partner

by STG UGP, LLC, its General Partner

By:		/S/ WILLIAM F. CHISHOLM
Name:		William F. Chisholm
Title:		Managing Director


Accepted and Agreed to as of the date first above written.

MAXIMUS HOLDINGS INC.

By:		/S/ WILLIAM F. CHISHOLM
Name:		William F. Chisholm
Title:		President

[Signature Page to Equity Commitment Letter]

EXHIBIT A

INDICATIVE TERM SHEET


Terms of the Investment

The Transaction		Symphony Technology Group and/or its designated affiliates (collectively, “STG”) and Elliott Associates, L.P., Manchester Securities Corp (“Manchester”), a wholly-owned subsidiary of Elliott Associates, L.P. and/or their designated affiliates (collectively, “Elliott”) would jointly finance the acquisition of MSC.Software Corporation (“MSC”) for an acquisition price of $8.40 per share of MSC common stock. STG’s investment would be in the form of Convertible Participating Preferred Equity (the “Preferred Stock”) and vested penny warrants (the “Vested Warrants” or the “Warrants”), in each case issued by Maximus Holdings Inc. (the “Company”). Elliott’s investment would be in the same series of Preferred Stock issued to STG by the Company. STG’s investment will be made in the form of cash in the amount of $106.51 million. Elliott’s investment will be made in the form of (i) the contribution of 6,060,058 shares of MSC common stock valued at the MSC acquisition price of $8.40 and (ii) cash in the amount of $29.60 million. In exchange for such contribution, (a) STG will receive $106.51 million in initial liquidation preference of Preferred Stock, and (b) Elliott will receive $80.50 million in initial liquidation preference of Preferred Stock. The amounts to be invested by STG and Elliott (and associated initial liquidation preference of Preferred Stock received) are subject to adjustment as described in “Funding Changes” below. In any case, at closing, Elliott’s initial investment would constitute approximately 32.3% of the fully diluted equity of the Company, STG’s initial investment would constitute approximately 57.7% of the fully diluted equity of the Company, and the management option pool referred to below would constitute 10.0% of the fully-diluted equity of the Company (in each case determined after giving effect to the Warrants). It is contemplated that each component of the 57.7%/32.3%/10.0% split referenced above and throughout this term sheet may be diluted in STG’s discretion by up to 1.5% in connection with the issuance of at-market warrants to mezzanine debt providers. The Preferred Stock will be issued pursuant to a contribution and purchase agreement in customary form.

Closing		Concurrent with the closing of the acquisition of MSC by the Company.


Terms of the Preferred Stock

Dividends		The holders of Preferred Stock will be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available for payment of dividends, quarterly dividends in respect of each share of Preferred Stock equal to the greater of (x) a rate per annum of 8% of the Liquidation Preference (as defined below) and (y) the amount of dividends declared during such period on the number of shares of Common Stock into which such share of Preferred Stock is then convertible. Dividends on preferred shares will be cumulative and accrued and unpaid dividends will compound quarterly, on the basis of a 365-day year and the number of days elapsed. The Company may not declare, pay or set aside for payment, any dividend on the shares of Common Stock or other securities ranking junior to the Preferred Stock or securities convertible into, or exchangeable or exercisable for, any such securities (“Junior Securities”) unless all accrued and unpaid dividends on the Preferred Stock (including for the then-current interest period) have been paid in full.

Liquidation Preference		Upon a liquidation or similar event with respect to Company, the holders of Preferred Stock will be entitled to receive, in preference to payment on Junior Securities, an amount with respect to each share of Preferred Stock equal to the greater of (i) the sum of (A) the original purchase price per share of Preferred Stock (as appropriately adjusted for stock splits, recapitalizations and similar events, the “Original Issue Price”) plus (B) all accrued and unpaid dividends (as appropriately adjusted for stock splits, recapitalizations and similar events, the “Liquidation Preference”) and (ii) the amount distributable to holders of shares of Common Stock in such event (assuming the conversion of all Preferred Stock, at the then-applicable Conversion Price). In the case of any merger, reorganization, sale of a majority of the equity, or sale of all or substantially all of the assets, of the Company, or similar transaction, the proceeds of such transaction will be distributed in the same manner as in a liquidation.

Conversion		Each share of Preferred Stock will be convertible at any time, at the option of the holder, into the number of shares of common stock of the Company (“Common Stock”) obtained by dividing the Liquidation Preference by the then-applicable Conversion Price. The “Conversion Price” will initially be equal to the Original Issue Price and will be subject to adjustment as described below under “Anti-Dilution”.


Anti-Dilution		The Conversion Price will be subject to adjustment in the event that the Company issues additional equity securities or securities convertible into, or exchangeable or exercisable for, equity securities (“Equity Securities”) (other than pursuant to certain equity compensation arrangements approved by the Board and other customary carve-outs (“Excluded Transactions”)) at a per-share purchase price less than the then-applicable Conversion Price. The Conversion Price will be subject to adjustment on a broad-based (i.e., taking into account all issued and outstanding options) weighted average basis, which takes into account issuances of additional Equity Securities at prices less than the applicable Conversion Price. The Conversion Price will also be appropriately adjusted for stock splits, recapitalizations and similar events.

Mandatory Conversion		The Preferred Stock shall automatically convert into shares of Common Stock at the then-applicable Conversion Price upon the closing of a firmly underwritten public offering of shares of Common Stock with gross proceeds of at least $30 million and an initial per-share public offering price (after underwriting commissions and expenses) of no less than the Liquidation Preference (a “QPO”).

Redemption at the Option of the Holder		At any time following the fifth anniversary of the Closing, holders of at least a majority of the outstanding Preferred Stock will be entitled to cause the Company to redeem all of the outstanding Preferred Stock at a price per share equal to the greater of (i) the Liquidation Preference or (ii) the amount that would be distributable to holders of shares of Common Stock if the Company were to be liquidated immediately prior to such redemption (assuming the conversion of all Preferred Stock, at the then-applicable Conversion Price). To the extent the Company does not then have funds legally available for the redemption of all Preferred Stock to be redeemed, the Company will redeem the greatest number of shares of Preferred Stock then legally permitted and will redeem the remaining Preferred Stock as soon as legally permitted. Redeemed Preferred Stock will be cancelled and will cease to be outstanding. So long as the Preferred Stock is outstanding, the Company shall not redeem or repurchase any Junior Securities.

Voting Rights		Preferred Stock will vote together with the shares of Common Stock (on an as-converted basis) as a single class on all matters.


Terms of Warrants

Vested Warrants		The Warrants will entitle the holder thereof to purchase a number of shares of Common Stock equal to approximately 15% of the fully diluted equity of the Company (determined after giving effect to the management option pool but without giving effect to the Warrants and with the exact percentage to be determined so as to result in the initial 57.7%/32.3%/10.0% split between STG, Elliott and the management option pool referenced in “Terms of the Investment – The Transaction” above) as of immediately following the Closing. Except as provided under “Sale Transaction,” the Warrants may be exercised at any time from and after the Closing.

Exercise Price		$0.01 per share of Common Stock.

Sale Transaction		In the event of an acquisition of 100% of the equity of the Company by any person (whether by merger or sale of securities) (a “Sale Transaction”), including any Sale Transaction constituting a Triggering Event, the Company will be entitled to terminate the Warrants immediately following consummation of such Sale Transaction. Holders of Warrants shall be entitled to prior notice of any Sale Transaction and shall be permitted to exercise the Warrants effective immediately prior to, and subject to consummation of, such Sale Transaction.

Adjustments		The Exercise Price and number of shares issuable upon exercise of Warrants will be appropriately adjusted for stock splits, recapitalizations and similar events. In the case of any recapitalization, business combination or reorganization in which the Preferred Stock is converted into or exchanged for the right to receive other securities, cash or other assets (other than a Sale Transaction), the Warrants will be automatically converted into warrants to purchase such other securities, cash or other assets as may be issued or exchanged for the number of shares of Preferred Stock issuable upon exercise of the Warrants immediately prior to such recapitalization, business combination, reorganization or reclassification.

Stockholder and Registration Rights Agreement

Stockholders Agreement		All stockholders of the Company at Closing will enter into a Stockholders Agreement having customary terms and conditions for a transaction of this type, including the terms and conditions described below.

Board of Directors		At closing, the Board of Directors will consist of six members, including: • Four (4) individuals designated by STG; • One (1) individual designated by Elliott; and,


		• the Chief Executive Officer of the Company. Elliott will continue to be entitled to such designee so long as Elliott owns at least 20% of its initial equity position. In addition to, and without limiting in any way, Elliott’s right to designate one (1) member of the Board of Directors as provided above, for so long as Elliot owns at least 5% of its initial equity position, Elliot shall have the right to appoint one (1) observer to the Board of Directors, which observer shall be entitled to (x) attend all meetings of the Board of Directors and all committees thereof and (y) receive all materials in connection with such meetings at the same time as such materials are furnished to the members of the Board of Directors.

STG Voting Rights		Provision will be made so that STG will be entitled to the voting power associated with its fully diluted equity ownership.

Protective Provisions		Approval of Elliott (or its Permitted Transferee (as defined below)) will be required for the Company or any of its Subsidiaries to take any of the following actions: • engage in transactions between the Company and STG or any of STG’s affiliates, other than transactions on an arm’s-length basis (subject to the section below titled “Offshore Development and Services” below); • distribute securities, cash or other assets on a non pro rata basis; • issue Equity Securities (i) at a price below Fair Market Value or (ii) ranking senior to the Preferred Stock; • amend the Stockholders Agreement or the Registration Rights Agreement (as defined below); • so long as Elliott or its Permitted Transferee hold at least 5% of the outstanding shares of Common Stock (on a fully-diluted basis), amend its Certificate of Incorporation, Bylaws or similar governing documents, in each case, other than amendments that would not modify the terms of the Preferred Stock in an adverse manner. Elliott will be provided with written notice prior to the Company engaging in any transaction with STG or any of STG’s affiliates and will be provided promptly with any information that it reasonably requests regarding such transaction.


		“Fair Market Value” means fair market value, as determined in good faith by the Board of Directors; provided, that if any holder of at least 10% of the outstanding shares of Common Stock (on a fully-diluted basis) objects to a determination of Fair Market Value, such amount shall be determined by an expedited external review mechanism to be determined.

Offshore Development and Services		The Company will subcontract its offshore development and services work, including, without limitation, its CAD and simulation engineering services, to Symphony Services, subject to fair pricing consistent with what Symphony Services charges to other third party clients for similar services, subject to the approval of Elliott (which approval shall not be unreasonably withheld, delayed or conditioned). Elliott will be entitled to receive reasonable documentation as to Symphony Services’ standard pricing for such services, and as to prevailing market pricing for such services, before acting on any request for approval.

Information Rights		Until a QPO, each stockholder that holds at least 5% of the outstanding shares of Common Stock (on a fully-diluted basis) will be entitled to receive audited annual, and unaudited quarterly and monthly, financial statements, and such other financial information as such stockholder shall reasonably request.

Preemptive Rights		Until a QPO, each securityholder that holds at least 5% of the outstanding shares of Common Stock (on a fully-diluted basis) will have preemptive rights with respect to any issuance of Equity Securities (other than pursuant to Excluded Transactions) to maintain such person’s percentage of fully diluted equity.

Restrictions on Transfer		Prior to an initial public offering (“IPO”), no securityholder may sell, transfer, pledge or otherwise dispose of (“Transfer”) any Equity Securities other than (i) to a Permitted Transferee (to be defined) or (ii) following compliance with the Right of First Offer and Tag-Along Right described below.

Right of First Offer and Tag-Along Right		In the event any securityholder proposes to transfer Equity Securities prior to an IPO, other than to a Permitted Transferee, then first the Company and then Elliott (so long as it holds at least 5% of the outstanding shares of Common Stock (on a fully-diluted basis)) and STG (on a pro rata basis, together with their respective Permitted Transferees) will have: • a right of first offer to purchase all, but not less than all, of such Equity Securities proposed to be Transferred; and


		• if the Company and Elliott and STG (together with their respective Permitted Transferees) do not exercise the Right of First Offer with respect to all offered Equity Securities, a Tag-Along Right (together with the other stockholders) to participate in such Transfer on the same terms and conditions as the proposing stockholder.

Compelled Sale Rights		So long as STG (together with its Permitted Transferees) continues to hold at least 30% of the outstanding shares of Common Stock (on a fully-diluted basis), and so long as an IPO has not been completed, then, if STG shall receive an arm’s-length, bona fide offer from an unaffiliated third party to purchase 100% of the equity of the Company, then STG shall have the right to cause each other stockholder to sell all of such stockholder’s Equity Securities on the same terms and conditions applicable to STG (other than commercially reasonable arms-length transactions or arrangements entered into by STG or its affiliates in good faith with such third party or its affiliates in connection with such transaction); provided that each such stockholder shall be required to make only customary representations as to such stockholder (i.e., organization, authorization, conflicts, title and brokers) and liability of each such stockholder shall be pro rata in accordance with the securities sold and limited to such stockholder’s proceeds in the transaction. Elliott will be provided with written notice of any such offer and will be provided promptly with any information that it reasonably requests regarding such proposed transaction.

Transferability of Elliott’s Rights		Subject to applicable laws, Elliott shall be entitled to assign its governance, registration and other rights under the Stockholders Agreement, in whole or in part, as part of any Transfer of shares made in accordance with the transfer restrictions described above.

Registration Rights		Demand Registration. Beginning six months following an IPO, Elliott will have the right to three demand registrations, provided that each such demand registration shall be for no less than $10,000,000 worth of shares of Common Stock. Form S-3. Elliott will be entitled to unlimited registrations on Form S-3 (or any successor form then in effect), provided that each registration on Form S-3 shall be for no less than $3,000,000 worth of shares of Common Stock. An S-3 registration will not count as a demand registration. Piggy Back Registration. Following the IPO, Elliott will have unlimited pro rata piggy back registration rights, subject to standard underwriter cutbacks.


		Expenses. The Company will bear customary expenses in connection with each demand registration, S-3 registration and piggy back registration.

Additional Matters

Management Options		The available pool for the grant of Common Stock option to Company management shall total 10.0% of fully diluted (determined giving effect to the Warrants and the option pool) Common Stock (5 year vesting, 1 year cliff).

Sharing of Fees		Any closing or post-closing fees (e.g. management fees, transaction fees, advisory fees) to be split on a pro rata basis (based on aggregate investments by STG and Elliott) between STG and Manchester, respectively.

Expense Reimbursement		Upon Closing, the Company will reimburse STG for its expenses in connection with the Transaction and Elliott for its expenses incurred in connection with the Transaction after April 10, 2009.

Preferred Stock Structure		If so requested by Elliott, the Preferred Stock (and underlying Common Stock) will be issued in multiple classes or series such that the aggregate voting power of all shares issued to the Elliott investors may be exercised by a single entity.

Press Release		STG shall use reasonable efforts to provide Elliott with the opportunity to include a quote in the MSC press release issued upon announcement of the transaction; provided, that if MSC refuses to consent to such inclusion, Elliott and STG shall issue simultaneously with the MSC press release a joint press release in form and substance reasonably satisfactory to Elliott and STG.

Funding Changes		The Company shall be authorized to (i) decrease the amounts invested by STG and Elliott at closing (as a result of the use of up to $5 million, in the aggregate, of additional senior debt in the discretion of the Company), (ii) increase the aggregate amount invested by STG and Elliott at closing by up to $50,000,000, in the aggregate, to the extent that (A) less than the currently contemplated $65 million in senior debt is funded or made available at Closing (the “Senior Debt Funding”) and/or (B) less than the currently contemplated $50 million in mezzanine debt is funded at Closing (the “Mezzanine Debt Funding”), and/or (iii) increase, at its discretion, the aggregate amount invested by STG and Elliott at closing by up to $3.25 million, in the aggregate (as a result of increases in the transaction expenses to be paid by the Company beyond the currently contemplated amount of $12,750,000). Any such decreases and/or increases shall each be for additional initial liquidation preference of Preferred Stock and shall be made so as to preserve the approximate 57.7%/32.3%/10.0% fully diluted equity split (determined after giving effect to the Warrants) among STG, Elliott and the management option pool, respectively. For the avoidance of doubt, STG and Elliott will bear 57.0% and 43.0%, respectively, of any such decrease or increase, and the management option pool will remain at 10% of the initial fully diluted equity capital (determined after giving effect to the Warrants) of the Company regardless of any such increase or decrease. STG will cause the Company to use commercially reasonable efforts to obtain the Senior Debt Funding and the Mezzanine Debt Funding as of the Closing.

EX-99.18 3 dex9918.htm EQUITY AND DEBT COMMITMENT LETTER AMONG ELLIOTT ASSOCIATES, L.P. Equity and Debt Commitment letter among Elliott Associates, L.P.

Exhibit 99.18

EXECUTION COPY

October 02, 2009

CONFIDENTIAL

Maximus Holdings Inc.

c/o Symphony Technology Group

2475 Hanover Street

Palo Alto, CA 94304

Re:

Elliott Equity Commitment

Ladies and Gentlemen:

Reference is made to that Agreement and Plan of Merger, dated as of July 7, 2009 (as amended prior to the date hereof, the “Merger Agreement”), by and among Maximus Holdings Inc., a Delaware corporation (“Parent”), Maximus Inc., a Delaware corporation and wholly-owned subsidiary of Parent (“Merger Sub”) and MSC.Software Corporation, a Delaware corporation (the “Company”). Capitalized terms in this commitment letter (this “Commitment Letter”) used but not defined herein shall have the meanings ascribed to such terms under the Merger Agreement. As used herein, the terms “Parent” and “Merger Sub” shall include any entity to which Parent or Merger Sub, as applicable, shall assign their respective rights, interests and obligations under the Merger Agreement in accordance with Section 11.06 thereof.

Subject only to satisfaction or waiver, at or prior to the Closing Date, of each of the conditions set forth in the immediately following paragraph, the signatories to this Commitment Letter, each of Elliott Associates, L.P., a Delaware limited partnership (“Elliott Associates”), and Elliott International, L.P., a Cayman Islands limited partnership (“Elliott International”) and, together with Elliott Associates, “Elliott”, and each, individually, an “Elliott Party”), severally and not jointly (based on their respective Pro Rata Portions (as defined below)), hereby confirms that it will, in accordance with the terms set forth on Exhibit A attached hereto, transfer, or cause to be transferred, to Parent, at or prior to Closing: (a) 6,060,058 shares (the “Shares”) of common stock (“Common Stock”) of the Company (as appropriately adjusted to take into account any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization) (the “Stock Transfer”); and (b) immediately available funds in an amount not to exceed $11,838,205 and $17,757,308, respectively (collectively, the “Cash Transfer” and, together with the Stock Transfer, the “Capital”), each in exchange for the equity securities described in Exhibit A, subject to such adjustments in the aggregate amounts invested contemplated by the section entitled “Additional Matters—Funding Changes” in Exhibit A. The “Pro Rata Portion” for Elliott Associates shall be 40%, and the “Pro Rata Portion” for Elliott International shall be 60%. For the avoidance of doubt, Elliott is only obligated to transfer the Capital at the Closing subject to the terms and conditions set forth herein and at no other time and in no other circumstances.

The obligation of each Elliott Party to effect the transfers contemplated herein shall be subject to the following conditions precedent: (a) the negotiation and execution at or prior to Closing of definitive documentation providing for the issuance of the securities described in Exhibit A, and the other arrangements described in Exhibit A, in each case on the terms and conditions set forth in Exhibit A, including the execution of the stockholder agreement contemplated thereby by each stockholder of Parent as of the Closing (the “Investment Documentation”), (b) the effective filing of a certificate of incorporation or certificate of designation establishing and authorizing the preferred stock contemplated by Exhibit A in accordance with the terms set forth in Exhibit A, (c) the absence of any prohibition against the consummation of the transactions contemplated hereby by any applicable law, statute, rule, regulation, judgment or order of any governmental authority of competent jurisdiction and (d) the satisfaction or waiver, at or prior to the Closing Date, of each of the conditions to the obligation of Parent and Merger Sub to effect the Merger as set forth in Sections 9.01 and 9.02 of the Merger Agreement.

Each Elliott Party and Parent agree to negotiate in good faith the Investment Documentation.

Each Elliott Party hereby represents and warrants, severally and not jointly, that (a) as of the date hereof it has, and as of the Closing Date it will have, unexpired capital commitments from its partners, or otherwise available cash, at least equal to such Elliott Party’s Pro Rata Portion of the Cash Transfer, (b) as of the date hereof, and as of the Closing Date, an Elliott Party has good title to the Shares, free and clear of any Liens, and (c) this Commitment Letter has been duly executed and delivered and constitutes the legal, valid and binding commitment of such Elliott Party to provide such Elliott Party’s Pro Rata Potion of the Capital as set forth above, enforceable in accordance with its terms.

Each Elliott Party reserves the right, prior to or after execution of definitive documentation for the financing transactions contemplated hereby, to cause any portion of its obligation to provide such Elliott Party’s Pro Rata Portion of the Capital hereunder (such Elliott Party’s “Commitment”) to be fulfilled by causing one or more of its Affiliates or other investors to actually fund all or any portion of the investment in Parent required by this Commitment Letter, and upon the actual funding of such portion of such Elliott Party’s Commitment, such Elliott Party’s remaining Commitment hereunder shall be correspondingly reduced.

Each Elliott Party’s obligation to fund such Elliott Party’s Commitment will expire on the earlier to occur of (i) the consummation of the Merger and the satisfaction of Parent’s payment obligations under Article 2 of the Merger Agreement, (ii) the termination of the Merger Agreement in accordance with the terms thereof, (iii) the time at which the Company or any of its Affiliates asserts in any litigation or other proceeding any claim under the limited guarantee of even date herewith delivered by STG III L.P., a Delaware limited partnership, and STG III-A, L.P., a Delaware limited partnership (collectively, “STG”), or otherwise against STG or any of its respective Affiliates in connection with the Merger Agreement or any of the transactions contemplated hereby or thereby, (iv) the one-year anniversary of the date hereof and (v) the delivery of written notice of termination by Elliott to Parent following any amendment to the Merger Agreement effected without the prior written consent of Elliott which would reduce or change the form of consideration to be paid in the Merger, increase the amount of the Parent Termination Fee or change in a manner adverse to Parent the circumstances under which the

Parent Termination Fee is payable. From and after the expiration of all of Elliot’s obligations under this Commitment Letter, neither Elliott nor any of its directors, officers, partners, employees, investors or Affiliates will have any further liability or obligation to any Person or entity as a result of this Commitment Letter.

Notwithstanding anything that may be expressed or implied in this Commitment Letter, Parent, by its acceptance of the benefits of this equity commitment, covenants, agrees and acknowledges that no Person other than Elliott and its successors and permitted assigns shall have any obligation hereunder and that, notwithstanding that Elliott or any of its successors or permitted assigns may be a partnership or limited liability company, no recourse hereunder or under any documents or instruments delivered in connection herewith shall be had against any former, current or future director, officer, agent, Affiliate, employee, general or limited partner, member, manager or stockholder of Elliott or any of its successors or permitted assigns or any former, current or future director, officer, agent, Affiliate, employee, general or limited partner, member, manager or stockholder of any of the foregoing, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other Applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any former, current or future director, officer, agent, Affiliate, employee, general or limited partner, member, manager or stockholder of Elliott or any former, current or future director, officer, agent, Affiliate, employee, general or limited partner, member, manager or stockholder of any of the foregoing, as such, for any obligations of Elliott or any of its successors or permitted assigns under this Commitment Letter or any documents or instrument delivered in connection herewith or for any claim based on, in respect of, or by reason of such obligation or their creation.

This Commitment Letter may only be enforced by Parent at the direction of STG in its sole discretion, and then only to the extent that Parent is also enforcing Parent’s rights under the Equity Commitment Letter, dated as of October 02, 2009, by and between STG and Parent. Parent shall have no right to enforce this Commitment Letter unless directed to do so by STG in its sole discretion, and then only in accordance with the preceding sentence. Parent’s creditors shall have no right to enforce this Commitment Letter or to cause Parent to enforce this Commitment Letter.

Nothing in this Commitment Letter, express or implied, is intended to or shall confer upon any Person, other than Parent and Elliot, any right, benefit or remedy of any nature whatsoever under or by reason of this Commitment Letter.

This Commitment Letter (together with the exhibits hereto) sets forth the entire agreement between the parties with respect to the matters addressed herein, supersedes all prior communications, written or oral, with respect hereto, and may not be amended, supplemented, or modified except in a writing signed by the parties hereto. The parties hereto acknowledge and agree that the Elliott Equity and Debt Commitment Letter Commitment Letter, dated July 7, 2009, executed by the Elliott Parties and Parent has been superseded by the terms hereof and is hereby terminated with no continuing liability thereunder.

This Commitment Letter shall be governed and construed in accordance with the laws of the State of New York without regard to its conflict of laws provisions. Under no circumstances shall Elliott or any of its directors, officers, partners, employees, investors or affiliates be liable to any Person for incidental, consequential, punitive, exemplary, or special damages.

This Commitment Letter may be signed in two or more counterparts, any one of which need not contain the signature of more than one party, but all such counterparts taken together shall constitute one and the same agreement. The rights of Parent or the beneficiary under this Commitment Letter may not be assigned in any manner without Elliot’s prior written consent. The obligations of Elliott under this Commitment Letter may not be assigned in any manner except as expressly set forth herein.

[Signature page follows]


Sincerely,

Elliott Associates, L.P.

By:		Elliott Capital Advisors, L.P., its General Partner

By:		Braxton Associates, Inc., its General Partner

By:		/S/ ELLIOT GREENBERG
Name:		Elliot Greenberg
Title:		Vice President

Elliott International, L.P.

By:		Elliott International Capital Advisors Inc., as Attorney-in-Fact

By:		/S/ ELLIOT GREENBERG
Name:		Elliot Greenberg
Title:		President


Accepted and Agreed to as of the date first above written.

MAXIMUS HOLDINGS INC.

By:		/S/ WILLIAM F. CHISHOLM
Name:		William F. Chisholm
Title:		President

[Signature Page to Elliott Equity Commitment Letter]

EXHIBIT A

INDICATIVE TERM SHEET


Terms of the Investment

The Transaction		Symphony Technology Group and/or its designated affiliates (collectively, “STG”) and Elliott Associates, L.P., Manchester Securities Corp (“Manchester”), a wholly-owned subsidiary of Elliott Associates, L.P. and/or their designated affiliates (collectively, “Elliott”) would jointly finance the acquisition of MSC.Software Corporation (“MSC”) for an acquisition price of $8.40 per share of MSC common stock. STG’s investment would be in the form of Convertible Participating Preferred Equity (the “Preferred Stock”) and vested penny warrants (the “Vested Warrants” or the “Warrants”), in each case issued by Maximus Holdings Inc. (the “Company”). Elliott’s investment would be in the same series of Preferred Stock issued to STG by the Company. STG’s investment will be made in the form of cash in the amount of $106.51 million. Elliott’s investment will be made in the form of (i) the contribution of 6,060,058 shares of MSC common stock valued at the MSC acquisition price of $8.40 and (ii) cash in the amount of $29.60 million. In exchange for such contribution, (a) STG will receive $106.51 million in initial liquidation preference of Preferred Stock, and (b) Elliott will receive $80.50 million in initial liquidation preference of Preferred Stock. The amounts to be invested by STG and Elliott (and associated initial liquidation preference of Preferred Stock received) are subject to adjustment as described in “Funding Changes” below. In any case, at closing, Elliott’s initial investment would constitute approximately 32.3% of the fully diluted equity of the Company, STG’s initial investment would constitute approximately 57.7% of the fully diluted equity of the Company, and the management option pool referred to below would constitute 10.0% of the fully-diluted equity of the Company (in each case determined after giving effect to the Warrants). It is contemplated that each component of the 57.7%/32.3%/10.0% split referenced above and throughout this term sheet may be diluted in STG’s discretion by up to 1.5% in connection with the issuance of at-market warrants to mezzanine debt providers. The Preferred Stock will be issued pursuant to a contribution and purchase agreement in customary form.

Closing		Concurrent with the closing of the acquisition of MSC by the Company.


Terms of the Preferred Stock

Dividends		The holders of Preferred Stock will be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available for payment of dividends, quarterly dividends in respect of each share of Preferred Stock equal to the greater of (x) a rate per annum of 8% of the Liquidation Preference (as defined below) and (y) the amount of dividends declared during such period on the number of shares of Common Stock into which such share of Preferred Stock is then convertible. Dividends on preferred shares will be cumulative and accrued and unpaid dividends will compound quarterly, on the basis of a 365-day year and the number of days elapsed. The Company may not declare, pay or set aside for payment, any dividend on the shares of Common Stock or other securities ranking junior to the Preferred Stock or securities convertible into, or exchangeable or exercisable for, any such securities (“Junior Securities”) unless all accrued and unpaid dividends on the Preferred Stock (including for the then-current interest period) have been paid in full.

Liquidation Preference		Upon a liquidation or similar event with respect to Company, the holders of Preferred Stock will be entitled to receive, in preference to payment on Junior Securities, an amount with respect to each share of Preferred Stock equal to the greater of (i) the sum of (A) the original purchase price per share of Preferred Stock (as appropriately adjusted for stock splits, recapitalizations and similar events, the “Original Issue Price”) plus (B) all accrued and unpaid dividends (as appropriately adjusted for stock splits, recapitalizations and similar events, the “Liquidation Preference”) and (ii) the amount distributable to holders of shares of Common Stock in such event (assuming the conversion of all Preferred Stock, at the then-applicable Conversion Price). In the case of any merger, reorganization, sale of a majority of the equity, or sale of all or substantially all of the assets, of the Company, or similar transaction, the proceeds of such transaction will be distributed in the same manner as in a liquidation.

Conversion		Each share of Preferred Stock will be convertible at any time, at the option of the holder, into the number of shares of common stock of the Company (“Common Stock”) obtained by dividing the Liquidation Preference by the then-applicable Conversion Price. The “Conversion Price” will initially be equal to the Original Issue Price and will be subject to adjustment as described below under “Anti-Dilution”.


Anti-Dilution		The Conversion Price will be subject to adjustment in the event that the Company issues additional equity securities or securities convertible into, or exchangeable or exercisable for, equity securities (“Equity Securities”) (other than pursuant to certain equity compensation arrangements approved by the Board and other customary carve-outs (“Excluded Transactions”)) at a per-share purchase price less than the then-applicable Conversion Price. The Conversion Price will be subject to adjustment on a broad-based (i.e., taking into account all issued and outstanding options) weighted average basis, which takes into account issuances of additional Equity Securities at prices less than the applicable Conversion Price. The Conversion Price will also be appropriately adjusted for stock splits, recapitalizations and similar events.

Mandatory Conversion		The Preferred Stock shall automatically convert into shares of Common Stock at the then-applicable Conversion Price upon the closing of a firmly underwritten public offering of shares of Common Stock with gross proceeds of at least $30 million and an initial per-share public offering price (after underwriting commissions and expenses) of no less than the Liquidation Preference (a “QPO”).

Redemption at the Option of the Holder		At any time following the fifth anniversary of the Closing, holders of at least a majority of the outstanding Preferred Stock will be entitled to cause the Company to redeem all of the outstanding Preferred Stock at a price per share equal to the greater of (i) the Liquidation Preference or (ii) the amount that would be distributable to holders of shares of Common Stock if the Company were to be liquidated immediately prior to such redemption (assuming the conversion of all Preferred Stock, at the then-applicable Conversion Price). To the extent the Company does not then have funds legally available for the redemption of all Preferred Stock to be redeemed, the Company will redeem the greatest number of shares of Preferred Stock then legally permitted and will redeem the remaining Preferred Stock as soon as legally permitted. Redeemed Preferred Stock will be cancelled and will cease to be outstanding. So long as the Preferred Stock is outstanding, the Company shall not redeem or repurchase any Junior Securities.

Voting Rights		Preferred Stock will vote together with the shares of Common Stock (on an as-converted basis) as a single class on all matters.


Terms of Warrants

Vested Warrants		The Warrants will entitle the holder thereof to purchase a number of shares of Common Stock equal to approximately 15% of the fully diluted equity of the Company (determined after giving effect to the management option pool but without giving effect to the Warrants and with the exact percentage to be determined so as to result in the initial 57.7%/32.3%/10.0% split between STG, Elliott and the management option pool referenced in “Terms of the Investment – The Transaction” above) as of immediately following the Closing. Except as provided under “Sale Transaction,” the Warrants may be exercised at any time from and after the Closing.

Exercise Price		$0.01 per share of Common Stock.

Sale Transaction		In the event of an acquisition of 100% of the equity of the Company by any person (whether by merger or sale of securities) (a “Sale Transaction”), including any Sale Transaction constituting a Triggering Event, the Company will be entitled to terminate the Warrants immediately following consummation of such Sale Transaction. Holders of Warrants shall be entitled to prior notice of any Sale Transaction and shall be permitted to exercise the Warrants effective immediately prior to, and subject to consummation of, such Sale Transaction.

Adjustments		The Exercise Price and number of shares issuable upon exercise of Warrants will be appropriately adjusted for stock splits, recapitalizations and similar events. In the case of any recapitalization, business combination or reorganization in which the Preferred Stock is converted into or exchanged for the right to receive other securities, cash or other assets (other than a Sale Transaction), the Warrants will be automatically converted into warrants to purchase such other securities, cash or other assets as may be issued or exchanged for the number of shares of Preferred Stock issuable upon exercise of the Warrants immediately prior to such recapitalization, business combination, reorganization or reclassification.

Stockholder and Registration Rights Agreement

Stockholders Agreement		All stockholders of the Company at Closing will enter into a Stockholders Agreement having customary terms and conditions for a transaction of this type, including the terms and conditions described below.

Board of Directors		At closing, the Board of Directors will consist of six members, including: • Four (4) individuals designated by STG; • One (1) individual designated by Elliott; and,


		• the Chief Executive Officer of the Company. Elliott will continue to be entitled to such designee so long as Elliott owns at least 20% of its initial equity position. In addition to, and without limiting in any way, Elliott’s right to designate one (1) member of the Board of Directors as provided above, for so long as Elliot owns at least 5% of its initial equity position, Elliot shall have the right to appoint one (1) observer to the Board of Directors, which observer shall be entitled to (x) attend all meetings of the Board of Directors and all committees thereof and (y) receive all materials in connection with such meetings at the same time as such materials are furnished to the members of the Board of Directors.

STG Voting Rights		Provision will be made so that STG will be entitled to the voting power associated with its fully diluted equity ownership.

Protective Provisions		Approval of Elliott (or its Permitted Transferee (as defined below)) will be required for the Company or any of its Subsidiaries to take any of the following actions: • engage in transactions between the Company and STG or any of STG’s affiliates, other than transactions on an arm’s-length basis (subject to the section below titled “Offshore Development and Services” below); • distribute securities, cash or other assets on a non pro rata basis; • issue Equity Securities (i) at a price below Fair Market Value or (ii) ranking senior to the Preferred Stock; • amend the Stockholders Agreement or the Registration Rights Agreement (as defined below); • so long as Elliott or its Permitted Transferee hold at least 5% of the outstanding shares of Common Stock (on a fully-diluted basis), amend its Certificate of Incorporation, Bylaws or similar governing documents, in each case, other than amendments that would not modify the terms of the Preferred Stock in an adverse manner. Elliott will be provided with written notice prior to the Company engaging in any transaction with STG or any of STG’s affiliates and will be provided promptly with any information that it reasonably requests regarding such transaction.


		“Fair Market Value” means fair market value, as determined in good faith by the Board of Directors; provided, that if any holder of at least 10% of the outstanding shares of Common Stock (on a fully-diluted basis) objects to a determination of Fair Market Value, such amount shall be determined by an expedited external review mechanism to be determined.

Offshore Development and Services		The Company will subcontract its offshore development and services work, including, without limitation, its CAD and simulation engineering services, to Symphony Services, subject to fair pricing consistent with what Symphony Services charges to other third party clients for similar services, subject to the approval of Elliott (which approval shall not be unreasonably withheld, delayed or conditioned). Elliott will be entitled to receive reasonable documentation as to Symphony Services’ standard pricing for such services, and as to prevailing market pricing for such services, before acting on any request for approval.

Information Rights		Until a QPO, each stockholder that holds at least 5% of the outstanding shares of Common Stock (on a fully-diluted basis) will be entitled to receive audited annual, and unaudited quarterly and monthly, financial statements, and such other financial information as such stockholder shall reasonably request.

Preemptive Rights		Until a QPO, each securityholder that holds at least 5% of the outstanding shares of Common Stock (on a fully-diluted basis) will have preemptive rights with respect to any issuance of Equity Securities (other than pursuant to Excluded Transactions) to maintain such person’s percentage of fully diluted equity.

Restrictions on Transfer		Prior to an initial public offering (“IPO”), no securityholder may sell, transfer, pledge or otherwise dispose of (“Transfer”) any Equity Securities other than (i) to a Permitted Transferee (to be defined) or (ii) following compliance with the Right of First Offer and Tag-Along Right described below.

Right of First Offer and Tag-Along Right		In the event any securityholder proposes to transfer Equity Securities prior to an IPO, other than to a Permitted Transferee, then first the Company and then Elliott (so long as it holds at least 5% of the outstanding shares of Common Stock (on a fully-diluted basis)) and STG (on a pro rata basis, together with their respective Permitted Transferees) will have: • a right of first offer to purchase all, but not less than all, of such Equity Securities proposed to be Transferred; and


		• if the Company and Elliott and STG (together with their respective Permitted Transferees) do not exercise the Right of First Offer with respect to all offered Equity Securities, a Tag-Along Right (together with the other stockholders) to participate in such Transfer on the same terms and conditions as the proposing stockholder.

Compelled Sale Rights		So long as STG (together with its Permitted Transferees) continues to hold at least 30% of the outstanding shares of Common Stock (on a fully-diluted basis), and so long as an IPO has not been completed, then, if STG shall receive an arm’s-length, bona fide offer from an unaffiliated third party to purchase 100% of the equity of the Company, then STG shall have the right to cause each other stockholder to sell all of such stockholder’s Equity Securities on the same terms and conditions applicable to STG (other than commercially reasonable arms-length transactions or arrangements entered into by STG or its affiliates in good faith with such third party or its affiliates in connection with such transaction); provided that each such stockholder shall be required to make only customary representations as to such stockholder (i.e., organization, authorization, conflicts, title and brokers) and liability of each such stockholder shall be pro rata in accordance with the securities sold and limited to such stockholder’s proceeds in the transaction. Elliott will be provided with written notice of any such offer and will be provided promptly with any information that it reasonably requests regarding such proposed transaction.

Transferability of Elliott’s Rights		Subject to applicable laws, Elliott shall be entitled to assign its governance, registration and other rights under the Stockholders Agreement, in whole or in part, as part of any Transfer of shares made in accordance with the transfer restrictions described above.

Registration Rights		Demand Registration. Beginning six months following an IPO, Elliott will have the right to three demand registrations, provided that each such demand registration shall be for no less than $10,000,000 worth of shares of Common Stock. Form S-3. Elliott will be entitled to unlimited registrations on Form S-3 (or any successor form then in effect), provided that each registration on Form S-3 shall be for no less than $3,000,000 worth of shares of Common Stock. An S-3 registration will not count as a demand registration. Piggy Back Registration. Following the IPO, Elliott will have unlimited pro rata piggy back registration rights, subject to standard underwriter cutbacks.


		Expenses. The Company will bear customary expenses in connection with each demand registration, S-3 registration and piggy back registration.
Additional Matters

Management Options		The available pool for the grant of Common Stock option to Company management shall total 10.0% of fully diluted (determined giving effect to the Warrants and the option pool) Common Stock (5 year vesting, 1 year cliff).

Sharing of Fees		Any closing or post-closing fees (e.g. management fees, transaction fees, advisory fees) to be split on a pro rata basis (based on aggregate investments by STG and Elliott) between STG and Manchester, respectively.

Expense Reimbursement		Upon Closing, the Company will reimburse STG for its expenses in connection with the Transaction and Elliott for its expenses incurred in connection with the Transaction after April 10, 2009.

Preferred Stock Structure		If so requested by Elliott, the Preferred Stock (and underlying Common Stock) will be issued in multiple classes or series such that the aggregate voting power of all shares issued to the Elliott investors may be exercised by a single entity.

Press Release		STG shall use reasonable efforts to provide Elliott with the opportunity to include a quote in the MSC press release issued upon announcement of the transaction; provided, that if MSC refuses to consent to such inclusion, Elliott and STG shall issue simultaneously with the MSC press release a joint press release in form and substance reasonably satisfactory to Elliott and STG.

Funding Changes		The Company shall be authorized to (i) decrease the amounts invested by STG and Elliott at closing (as a result of the use of up to $5 million, in the aggregate, of additional senior debt in the discretion of the Company), (ii) increase the aggregate amount invested by STG and Elliott at closing by up to $50,000,000, in the aggregate, to the extent that (A) less than the currently contemplated $65 million in senior debt is funded or made available at Closing (the “Senior Debt Funding”) and/or (B) less than the currently contemplated $50 million in mezzanine debt is funded at Closing (the “Mezzanine Debt Funding”), and/or (iii) increase, at its discretion, the aggregate amount invested by STG and Elliott at closing by up to $3.25 million, in the aggregate (as a result of increases in the transaction expenses to be paid by the Company beyond the currently contemplated amount of $12,750,000). Any such decreases and/or increases shall each be for additional initial liquidation preference of Preferred Stock and shall be made so as to preserve the approximate 57.7%/32.3%/10.0% fully diluted equity split (determined after giving effect to the Warrants) among STG, Elliott and the management option pool, respectively. For the avoidance of doubt, STG and Elliott will bear 57.0% and 43.0%, respectively, of any such decrease or increase, and the management option pool will remain at 10% of the initial fully diluted equity capital (determined after giving effect to the Warrants) of the Company regardless of any such increase or decrease. STG will cause the Company to use commercially reasonable efforts to obtain the Senior Debt Funding and the Mezzanine Debt Funding as of the Closing.

EX-99.19 4 dex9919.htm SIXTH AMENDED AND RESTATED DEBT COMMITMENT LETTER Sixth Amended and Restated Debt Commitment Letter

Exhibit 99.19

LOGO

October 2, 2009

Symphony Technology Group

2475 Hanover Street

Palo Alto, CA 94304

Attn: William Chisholm

SIXTH AMENDED AND RESTATED COMMITMENT LETTER

$65 MILLION SENIOR SECURED CREDIT FACILITY

Ladies and Gentlemen:

As we, Wells Fargo Foothill, LLC (“WFF”) and CapitalSource Bank (“CapSource”; WFF and CapSource each a “Lender” and severally, the “Lenders” or “we” or “us”), understand, Symphony Technology Group (the “Sponsor” or “you”) has formed an acquisition entity (“Newco”) in order to acquire (the “Acquisition”) MSC.Software Corporation (the “Company”). The Acquisition is to be accomplished by means of the merger of a wholly-owned subsidiary of Newco with and into Company, with Company as the survivor of such merger. The Lenders further understand that Sponsor is desirous of obtaining financing for Company in order to (a) finance a portion of the consideration payable in connection with the consummation of the Acquisition, (b) refinance certain of Company’s existing indebtedness, (c) finance general corporate purposes of Company (including permitted acquisitions (“Permitted Acquisitions”; such term to be defined in a mutually agreeable manner in the final loan documentation for the Facility (as hereinafter defined)), and (d) pay fees and expenses associated with the transactions contemplated hereby (collectively, the “Transaction”). You have informed WFF and CapSource that the sources and uses (the “Sources and Uses”) for the debt and equity financing of the Transaction are as set forth on Annex A hereto.

Reference is hereby made to that certain commitment letter, dated July 7, 2009 (together with the exhibits and annexes thereto, the “Original Commitment Letter”), addressed to Sponsor by WFF and CapSource, and that certain term sheet attached thereto (together with the exhibits and annexes thereto, the “Original Term Sheet”).

Reference is hereby made to that certain amended and restated commitment letter, dated September 14, 2009 (together with the exhibits and annexes thereto, the “Amended and Restated Commitment Letter”), addressed to Sponsor by WFF and CapSource, and that certain amended and restated term sheet attached thereto (together with the exhibits and annexes thereto, the “Amended and Restated Term Sheet”).

Symphony Technology Group

October 2, 2009

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Reference is hereby made to that certain second amended and restated commitment letter, dated September 21, 2009 (together with the exhibits and annexes thereto, the “Second Amended and Restated Commitment Letter”), addressed to Sponsor by WFF and CapSource, and that certain amended and restated term sheet attached thereto (together with the exhibits and annexes thereto, the “Second Amended and Restated Term Sheet”).

Reference is hereby made to that certain third amended and restated commitment letter, dated September 23, 2009 (together with the exhibits and annexes thereto, the “Third Amended and Restated Commitment Letter”), addressed to Sponsor by WFF and CapSource, and that certain amended and restated term sheet attached thereto (together with the exhibits and annexes thereto, the “Third Amended and Restated Term Sheet”).

Reference is hereby made to that certain fourth amended and restated commitment letter, dated September 24, 2009 (together with the exhibits and annexes thereto, the “Fourth Amended and Restated Commitment Letter”), addressed to Sponsor by WFF and CapSource, and that certain amended and restated term sheet attached thereto (together with the exhibits and annexes thereto, the “Fourth Amended and Restated Term Sheet”).

Reference is hereby made to that certain fifth amended and restated commitment letter, dated September 28, 2009 (together with the exhibits and annexes thereto, the “Fifth Amended and Restated Commitment Letter”), addressed to Sponsor by WFF and CapSource, and that certain amended and restated term sheet attached thereto (together with the exhibits and annexes thereto, the “Fifth Amended and Restated Term Sheet”).

The Lenders are pleased to provide you with this sixth amended and restated commitment letter (the “Sixth Amended and Restated Commitment Letter”), and the sixth amended and restated term sheet attached hereto (the “Sixth Amended and Restated Term Sheet”), which establish the terms and conditions under which WFF (on a several basis) commits to provide to Company $45,000,000 and CapSource (on a several basis) commits to provide to Company $20,000,000 of a $65,000,000 senior secured credit facility (the “Facility”). The Sixth Amended and Restated Commitment Letter and the Sixth Amended and Restated Term Sheet supersede and amend and restate in their entirety the Fifth Amended and Restated Commitment Letter and the Fifth Amended and Restated Term Sheet, respectively. The parties acknowledge that the Sixth Amended and Restated Term Sheet and this Sixth Amended and Restated Commitment Letter (a) summarize all of the substantive conditions precedent to the Facility, and (b) summarize all of the substantive covenants, representations, and events of default but do not purport to summarize the other provisions that will be in the definitive legal documentation. The parties agree that such covenants, representations, warranties and other provisions (to the extent not already addressed in the Sixth Amended and Restated Term Sheet or this Sixth Amended and Restated Commitment Letter) will be customary for transactions of this type or otherwise acceptable to Sponsor, WFF, and CapSource. In addition, the parties acknowledge and agree that the commitments of WFF and CapSource are several obligations and are not joint or joint and several commitments.

Symphony Technology Group

October 2, 2009

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Expenses and Indemnification

You agree (a) to pay or reimburse, all reasonable, out-of-pocket fees, costs, and expenses (including, without limitation, reasonable fees and disbursements of counsel, reasonable consultant costs and expenses, filing and recording fees, and costs and expenses associated with due diligence, travel, appraisals, valuations, and audits) (the “Expenses”) incurred by or on behalf of WFF and/or CapSource in connection with (i) the preparation, negotiation, execution, and delivery of this Sixth Amended and Restated Commitment Letter, the Sixth Amended and Restated Term Sheet, the Fifth Amended and Restated Commitment Letter, the Fifth Amended and Restated Term Sheet, the Fourth Amended and Restated Commitment Letter, the Fourth Amended and Restated Term Sheet, the Third Amended and Restated Commitment Letter, the Third Amended and Restated Term Sheet, the Second Amended and Restated Commitment Letter, the Second Amended and Restated Term Sheet, the Amended and Restated Commitment Letter, the Amended and Restated Term Sheet, the Original Commitment Letter, the Original Term Sheet, and any and all documentation for the Facility, and (ii) the enforcement of any of WFF’s or CapSource’s rights and remedies under this Sixth Amended and Restated Commitment Letter in each case irrespective of whether the Transaction is consummated, and (b) to indemnify, defend, and hold harmless WFF, CapSource, each of their respective affiliates, and each of their officers, directors, employees, agents, advisors, attorneys, and representatives (each, an “Indemnified Person”) as set forth on Exhibit A hereto. WFF agrees to provide telephonic updates as to the estimated accrued amount of Expenses from time to time at the request of Sponsor.

WFF and Sponsor hereby agree that (a) the letter agreement, dated as of May 11, 2009, by and between WFF and Sponsor relating to expense reimbursement is hereby terminated; and (b) the reimbursement of all out-of-pocket fees, costs, and expenses (including, without limitation, reasonable fees and disbursements of counsel, reasonable consultant costs and expenses, filing and recording fees, and costs and expenses associated with due diligence, travel, appraisals, valuations, and audits) incurred by WFF prior to, or, or after the date hereof shall be governed by the terms of this Sixth Amended and Restated Commitment Letter.

Fees

You agree to pay or cause Company to pay the fees set forth on Annex A-I, in immediately available funds, as and when indicated therein.

Conditions

The several commitments of WFF and CapSource to provide their ratable share of the Facility shall be subject to (a) the negotiation, execution and delivery of definitive loan documentation customary for transactions of this type and consistent with the terms and conditions set forth herein and in the Sixth Amended and Restated Term Sheet, in form and substance reasonably satisfactory to WFF and CapSource (the “Loan Documents”), (b) since December 31, 2008, there has not been any Material Adverse Effect (as defined below), as determined by WFF and CapSource in their reasonable discretion, (c) the absence of any change, in any material respect,

Symphony Technology Group

October 2, 2009

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to the Sources and Uses, as determined by WFF and/or CapSource in their reasonable discretion (provided, however, that the Sources and Uses may change as contemplated by the conditions in Annex B), and (d) the performance of your obligations set forth herein and in the Sixth Amended and Restated Term Sheet, and the satisfaction of the conditions set forth herein and in the Sixth Amended and Restated Term Sheet.

For the purposes hereof, “Material Adverse Effect” means, with respect to the Company, any change, event, occurrence or state of facts that (a) is materially adverse to the financial condition, business, assets, or results of operations of the Company and its Subsidiaries (as defined in the Execution Copy of the Agreement and Plan of Merger, dated July 7, 2009, by and among MSC.Software Corporation, a Delaware corporation, Maximum Holdings Inc., a Delaware corporation, and Maximus Inc., a Delaware corporation, together with the Company Disclosure Schedule and Annexes A and B to the Disclosure Schedules, each of which was delivered by Shearman & Sterling LLP to Paul, Hastings, Janofsky & Walker LLP at 3:22 p.m. (Pacific time), 1:43 p.m. (Pacific time), and 2:53 p.m. (Pacific time), respectively, on July 7, 2009, as will be amended by that certain draft Amendment to Agreement and Plan of Merger, by and among MSC.Software Corporation, a Delaware corporation, Maximum Holdings Inc., a Delaware corporation, and Maximus Inc., a Delaware corporation, which was delivered by Shearman & Sterling LLP to Paul, Hastings, Janofsky & Walker LLP at 5:10 p.m. (Pacific time) on September 28, 2009 (the “Merger Agreement”)), taken as a whole, or (b) prevents the Company from consummating the Merger (as defined in the Merger Agreement) and the other transactions contemplated by the Merger Agreement, excluding, in the case of clause (a), any effect resulting from (A) changes in the financial or securities markets (including, but not limited to, changes in currency exchange rates and interest rates) or changes in general global, national or regional economic or political conditions, in either case not having a materially disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to other participants in the software industry, (B) changes (including changes of Applicable Law (as defined in the Merger Agreement) or in GAAP (as defined in the Merger Agreement) or regulatory accounting requirements) generally affecting the software industry and not specifically relating to or having a materially disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to other participants in the software industry, (C) acts of war, sabotage or terrorism or natural disasters not having a materially disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to other participants in the software industry, (D) the announcement, pendency or consummation of the transactions contemplated by the Merger Agreement (including any loss of, or adverse change in, the relationship of the Company and its Subsidiaries with their respective employees, customers, distributors, partners or suppliers resulting therefrom), (E) any failure by the Company and its Subsidiaries to meet any internal or published budgets, projections, forecasts or predictions of financial performance for any period (it being understood that the causes underlying such failure may be considered in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur) or (F) any action taken by the Company or its Subsidiaries at the written request of Parent (as defined in the Merger Agreement) or that is expressly required pursuant to the Merger Agreement in and of itself (it being understood that the manner in which any such action is taken, and the effects of any such action, may be considered in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur).

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October 2, 2009

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For the purposes hereof, “Projections” means the financial information and projections as WFF and CapSource may reasonably request, including a business plan for fiscal year 2009 through fiscal year 2012 on a quarterly basis and a written analysis of the business and prospects of Company and its subsidiaries for such period, all in form and substance reasonably satisfactory to WFF and CapSource; it being recognized by WFF and CapSource that projections of future events are not to be viewed as facts and actual results may vary significantly from projected results.

Notwithstanding anything in this Sixth Amended and Restated Commitment Letter, the Sixth Amended and Restated Term Sheet or any other letter agreement or other undertaking concerning the Facility to the contrary, (i) the only representations and warranties relating to the Company and its subsidiaries and their businesses, the accuracy of which shall be a condition to the availability of the Facility on the Closing Date shall be (A) such of the representations and warranties made by the Company in the Merger Agreement, to the extent that you or Parent have a right not to consummate the transactions contemplated by the Merger Agreement or to terminate your or its obligations under the Merger Agreement as a result of a breach of such representations and warranties, and (B) the Specified Representations (as hereinafter defined), and (ii) the terms of the Facility shall contain no condition precedent to the funding of the Facility on the Closing Date other than those set forth in this Sixth Amended and Restated Commitment Letter or in Annex B to the Sixth Amended and Restated Term Sheet, the satisfaction of which shall obligate the Lenders to provide the Facility on the terms set forth in this Sixth Amended and Restated Commitment Letter and the Sixth Amended and Restated Term Sheet (it being understood that, to the extent any collateral is not provided on the Closing Date after your use of commercially reasonable efforts to do so (other than (x) the filing of Uniform Commercial Code financing statements, (y) the filing of intellectual property security agreements for intellectual property that is registered as of the Closing Date, and (z) the delivery of stock certificates), the providing of such collateral shall not constitute a condition precedent to the availability of the Facility on the Closing Date but shall be required to be provided after the Closing Date pursuant to arrangements to be mutually agreed upon). For purposes hereof, “Specified Representations” means the representations and warranties set forth in the Loan Documents relating to organization, existence, power and authority, due authorization, execution, delivery, enforceability and non-contravention of the Loan Documents with the Loan Parties’ governing documents, applicable law, or any order, judgment, or decree of any court or other governmental authority binding on any Loan Party or its subsidiaries, receipt of governmental approvals in connection with the Facility, use of proceeds, solvency, debt, liens, Federal Reserve Bank margin regulations, the Investment Company Act and, subject to parenthetical in clause (ii) above, the perfection of the security interests granted in the collateral as of the Closing Date.

Symphony Technology Group

October 2, 2009

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Confidentiality

(a) You agree that this Sixth Amended and Restated Commitment Letter (including the Sixth Amended and Restated Term Sheet) is for your confidential use only and that neither its existence, nor the terms hereof, will be disclosed by you to any person other than your officers, directors, employees, accountants, attorneys, and other advisors, and then only on a “need-to-know” basis in connection with the Transaction contemplated hereby and on a confidential basis. This Sixth Amended and Restated Commitment Letter is provided solely for the benefit of the parties signatory hereto, and no other person shall acquire or have any right under or by virtue of this Sixth Amended and Restated Commitment Letter. The foregoing notwithstanding, you may (i) provide a copy hereof (including the Sixth Amended and Restated Term Sheet, but not including Annex A-I or Annex A-II) to Company so long as it agrees not to disclose this Sixth Amended and Restated Commitment Letter other than to its officers, directors, employees, accountants, attorneys, and other advisors, and then only on a “need-to-know” basis in connection with the Transaction contemplated hereby and on a confidential basis, (ii) provide a copy hereof (including the Sixth Amended and Restated Term Sheet) to Elliott Associates L.P. and Elliott Management Corporation and their respective affiliates that are investment firms so long as they agree not to disclose this Sixth Amended and Restated Commitment Letter other than to their respective officers, directors, employees, accountants, attorneys, and other advisors, and then only on a “need-to-know” basis in connection with the Transaction contemplated hereby and on a confidential basis, (iii) provide a copy hereof (including the Sixth Amended and Restated Term Sheet) to your officers, directors, employees, accountants, attorneys, and other advisors, and then only on a “need-to-know” basis in connection with the Transaction contemplated hereby and on a confidential basis, and (iv) after your acceptance hereof in accordance with the terms hereof, file or make such other public disclosures of the terms and conditions hereof (including the Sixth Amended and Restated Term Sheet, but not including Annex A-I or Annex A-II) (A) as you are required by law, in the opinion of your counsel, to make, (B) as may be required by regulatory authorities so long as such authorities are informed of the confidential nature of such information, (C) as may be required by statute, decision, or judicial or administrative order, rule, or regulation, provided that prior to any disclosure under this clause (C), the disclosing party agrees to provide WFF and CapSource with prior notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior notice to WFF and CapSource pursuant to the terms of the applicable statute, decision, or judicial or administrative order, rule, or regulation, (D) as may be agreed to in advance by WFF and CapSource, (E) as requested or required by any governmental authority pursuant to any subpoena or other legal process, provided that prior to any disclosure under this clause (E) the disclosing party agrees to provide WFF and CapSource with prior notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior notice to WFF and CapSource pursuant to the terms of the subpoena or other legal process, (F) as to any such information that is or becomes generally available to the public (other than as a result of prohibited disclosure by Sponsor), and (G) in connection with any litigation or other adverse proceeding involving parties to this Sixth Amended and Restated Commitment Letter; provided that prior to any disclosure to a party other than WFF and CapSource, their respective affiliates and their respective counsel under this clause (G) with respect to litigation involving a party other than WFF and CapSource, and their respective affiliates, the disclosing party agrees to provide WFF and CapSource with prior notice thereof.

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(b) Each of the Lenders agrees that material, non-public information regarding Company and its subsidiaries, their operations, assets, and existing and contemplated business plans shall be treated by such Lender in a confidential manner, and shall not be disclosed by such Lender to persons who are not parties to this Sixth Amended and Restated Commitment Letter, except: (i) to attorneys for and other advisors, accountants, auditors, and consultants to WFF or CapSource, as applicable, on a “need to know” basis in connection with Transaction contemplated hereby and on a confidential basis, (ii) to subsidiaries and affiliates of WFF or CapSource, as applicable, provided that any such subsidiary or affiliate shall have agreed to receive such information hereunder subject to the terms of this clause (b), (iii) as may be required by regulatory authorities so long as such authorities are informed of the confidential nature of such information, (iv) as may be required by statute, decision, or judicial or administrative order, rule, or regulation, provided that prior to any disclosure under this clause (iv), the disclosing party agrees to provide Sponsor with prior notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior notice to Sponsor pursuant to the terms of the applicable statute, decision, or judicial or administrative order, rule, or regulation, (v) as may be agreed to in advance by Sponsor, (vi) as requested or required by any governmental authority pursuant to any subpoena or other legal process, provided that prior to any disclosure under this clause (vi) the disclosing party agrees to provide Sponsor with prior notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior notice to Sponsor pursuant to the terms of the subpoena or other legal process, (vii) as to any such information that is or becomes generally available to the public (other than as a result of prohibited disclosure by a Lender), (viii) in connection with any proposed assignment or participation of WFF’s or CapSource’s, as applicable, interest in the Facility, provided that any such proposed assignee or participant shall have agreed in writing to receive such information subject to the terms of this clause (b), and (ix) in connection with any litigation or other adverse proceeding involving parties to this Sixth Amended and Restated Commitment Letter; provided that prior to any disclosure to a party other than Sponsor, Company, the Lenders (as defined in the Sixth Amended and Restated Term Sheet), their respective affiliates and their respective counsel under this clause (ix) with respect to litigation involving a party other than Sponsor, Company, the Lenders, and their respective affiliates, the disclosing party agrees to provide Sponsor with prior notice thereof.

Anything to the contrary in this Sixth Amended and Restated Commitment Letter notwithstanding, Sponsor agrees that WFF and CapSource shall have the right to provide information concerning the aggregate amount of the Facility and the names of Sponsor and Borrower to loan reporting services.

Exclusivity and Certain Fees

The parties agree that the exclusivity, Lender Break-Up Fee (as defined in Annex A-II), and Termination Fee (as defined in Annex A-II) provisions shall be as set forth on Annex A-II.

Symphony Technology Group

October 2, 2009

Page 8

Information

In issuing this Sixth Amended and Restated Commitment Letter, each Lender is relying on the accuracy of the information furnished to it by or on behalf of Sponsor and Company and their affiliates, without independent verification thereof. Sponsor acknowledges that it is a further condition precedent to the funding of the Facility that, to the best of Sponsor’s knowledge after diligent inquiry, (a) all written information (other than forward looking information and Projections) concerning Company and its subsidiaries (the “Information”) that has been, or is hereafter, made available by or on behalf of Sponsor or Company is, or when delivered shall be, when considered as a whole, complete and correct in all material respects and does not, or shall not when delivered, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in any material respect in light of the circumstances under which such statements have been made, and (b) all Projections that have or are hereafter made available by or on behalf of Sponsor or Company are, or when delivered shall be, prepared in good faith on the basis of information and assumptions that are believed by Sponsor or Company to be reasonable at the time such Projections were prepared; it being recognized by WFF and CapSource that projections of future events are not to be viewed as facts and actual results may vary significantly from projected results.

Sharing Information; Absence of Fiduciary Relationship; Affiliate Activities

You acknowledge that WFF and CapSource or one or more of their affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you may have conflicting interests regarding the transactions described herein or otherwise. You also acknowledge that we do not have any obligation to use in connection with the transactions contemplated by this Sixth Amended and Restated Commitment Letter, or to furnish to you, confidential information obtained by us from other companies.

You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between you, on the one hand, and WFF or CapSource, on the other hand, is intended to be or has been created in respect of any of the transactions contemplated by this Sixth Amended and Restated Commitment Letter, irrespective of whether WFF, CapSource, or one or more of their affiliates has advised or is advising you on other matters, (b) WFF or CapSource, on the one hand, and you, on the other hand, have an arms-length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of WFF or CapSource, (c) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of the transactions contemplated by this Sixth Amended and Restated Commitment Letter, (d) you have been advised that WFF, CapSource, or one or more of their affiliates is engaged in a broad range of transactions that may involve interests that differ from your interests and that WFF and CapSource do not have any obligation to disclose such interests and transactions to you by virtue of any fiduciary, advisory or agency relationship, and (e) you waive, to the fullest extent permitted by law, any claims you may have against WFF or CapSource for breach of fiduciary duty or alleged breach of fiduciary duty and agree that WFF and CapSource shall not have any liability (whether direct or indirect) to you in respect of such a

Symphony Technology Group

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fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of you, including your stockholders, employees or creditors. For the avoidance of doubt, the provisions of this paragraph apply only to the transactions contemplated by this Sixth Amended and Restated Commitment Letter and the relationships and duties created in connection with the transactions contemplated by this Sixth Amended and Restated Commitment Letter.

You further acknowledge that one or more of the Lenders’ affiliates are a full service securities firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, the Lenders or one or more of the Lenders’ affiliates may provide investment banking and other financial services to, and/or acquire, hold or sell, for their respective own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, you, and Company and other companies with which you or Company may have commercial or other relationships. With respect to any debt or other securities and/or financial instruments so held by any Lender or one or more of its affiliates or any of their respective customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.

Governing Law, Etc.

This Sixth Amended and Restated Commitment Letter shall be governed by, and construed in accordance with, the law of the State of California. Each of the parties hereto consents to the exclusive jurisdiction and venue of the federal and/or state courts located in Los Angeles, California.

This Sixth Amended and Restated Commitment Letter (together with the exhibits and annexes hereto, the Sixth Amended and Restated Term Sheet, and the Sixth Amended and Restated WFF Fee Letter (as defined in the Sixth Amended and Restated Term Sheet)) sets forth the entire agreement between the parties with respect to the matters addressed herein, supersedes all prior communications, written or oral, with respect hereto, and may not be amended, supplemented, or modified except in a writing signed by the parties hereto. The parties hereto acknowledge and agree that (a) the Fifth Amended and Restated Commitment Letter and the Fifth Amended and Restated Term Sheet are superseded and amended and restated in their entirety by this Sixth Amended and Restated Commitment Letter (together with the exhibits and annexes hereto, and the Sixth Amended and Restated Term Sheet), and (b) the Fifth Amended and Restated WFF Fee Letter (as defined in the Sixth Amended and Restated Term Sheet) is superseded and amended and restated in its entirety by the Sixth Amended and Restated WFF Fee Letter (as defined in the Sixth Amended and Restated Term Sheet).

This Sixth Amended and Restated Commitment Letter may be executed in any number of counterparts, each of which, when so executed, shall be deemed to be an original and all of which, taken together, shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Sixth Amended and Restated Commitment Letter by telecopier or other electronic transmission shall be equally effective as delivery of a manually executed counterpart of this Sixth Amended and Restated Commitment Letter.

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October 2, 2009

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In the event that this Sixth Amended and Restated Commitment Letter is terminated or expires, the Expenses and Indemnification, Fees, Confidentiality, Exclusivity and Certain Fees (including Annex A-II), Governing Law, and Waiver of Jury Trial provisions hereof shall survive such termination or expiration. Anything contained herein to the contrary notwithstanding, the obligations of Sponsor under this Sixth Amended and Restated Commitment Letter shall terminate at the time of the execution and delivery of the Loan Documents relative to the Facility.

Waiver of Jury Trial

To the maximum extent permitted by applicable law, each party hereto irrevocably waives any and all rights to a trial by jury in any action or proceeding (whether based on contract, tort, or otherwise) arising out of or relating to this Sixth Amended and Restated Commitment Letter or the Transaction contemplated hereby or the actions of WFF or CapSource or any of their affiliates in the negotiation, performance, or enforcement of this Sixth Amended and Restated Commitment Letter.

Patriot Act

WFF and CapSource hereby notify you that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “PATRIOT Act”), WFF and/or CapSource may be required to obtain, verify and record information that identifies the Loan Parties (as defined in the Sixth Amended and Restated Term Sheet), which information includes the name, address, tax identification number and other information regarding the Loan Parties that will allow WFF and/or CapSource to identify the Loan Parties in accordance with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act.

* * * * *

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October 2, 2009

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This Sixth Amended and Restated Commitment Letter shall expire, unless otherwise agreed to in writing by WFF and CapSource, at 12:00 a.m. (Eastern time) on October 7, 2009 (9:00 p.m. (Pacific time) on October 6, 2009), unless prior thereto (i) WFF and CapSource have received a copy of this Sixth Amended and Restated Commitment Letter signed by Sponsor, and (ii) WFF has received a copy of the Sixth Amended and Restated WFF Fee Letter (as defined in the Sixth Amended and Restated Term Sheet) signed by Sponsor. In the event the Loan Documents for the Facility are not executed and delivered by the parties thereto on or prior to November 7, 2009 or the Acquisition is not consummated on or prior to November 7, 2009, then the Lenders’ commitment to provide the Facility shall automatically expire on such date. If you elect to deliver your signed counterpart of this Sixth Amended and Restated Commitment Letter by telecopier or other electronic transmission, please arrange for the executed original to follow by next-day courier. The “Closing Date” shall mean the date of the initial funding under the Facility.


Very truly yours,

WELLS FARGO FOOTHILL, LLC

By:		/S/ JEE HOON PARK
Name:		Jee Hoon Park
Title:		Vice President


CAPITALSOURCE BANK

By:		/S/ STEVE MOSELES
Name:		Steve Moseles
Title:		Executive Vice President


ACCEPTED AND AGREED TO
this 2^nd day of October, 2009

SYMPHONY TECHNOLOGY GROUP

By:		/S/ WILLIAM CHISHOLM
Name:		William Chisholm
Title:		Managing Director

cc:	Thomas E. Lane, Senior Vice President, National Underwriting Manager, Wells Fargo Foothill, LLC

Ryan Chin, Director, Loan Syndications, Wells Fargo Foothill, LLC

James Oh, Associate, Loan Syndications, Wells Fargo Foothill, LLC

ANNEX A

[Redacted]

EXHIBIT A

Indemnification Provisions

Capitalized terms used herein shall have the meanings set forth in the sixth amended and restated commitment letter, dated October 2, 2009 (the “Sixth Amended and Restated Commitment Letter”) addressed to Symphony Technology Group (the “Indemnifying Party”) from Wells Fargo Foothill, LLC (“WFF”) and CapitalSource Bank (“CapSource”).

To the fullest extent permitted by applicable law, Indemnifying Party agrees that it will indemnify, defend, and hold harmless each of the Indemnified Persons from and against (i) any and all losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses and disbursements, (ii) any and all actions, suits, proceedings and investigations in respect thereof, and (iii) any and all legal or other costs, expenses or disbursements in giving testimony or furnishing documents in response to a subpoena or otherwise (including, without limitation, the costs, expenses and disbursements, as and when incurred, of investigating, preparing or defending any such action, proceeding or investigation (whether or not in connection with litigation in which any of the Indemnified Persons is a party) and including, without limitation, any and all losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses and disbursements, resulting from any negligent act or omission of any of the Indemnified Persons), directly or indirectly, caused by, relating to, based upon, arising out of or in connection with (a) the Transaction, (b) the Original Commitment Letter, the Amended and Restated Commitment Letter, the Second Amended and Restated Commitment Letter, the Third Amended and Restated Commitment Letter, the Fourth Amended and Restated Commitment Letter, the Fifth Amended and Restated Commitment Letter, the Sixth Amended and Restated Commitment Letter or the Facility, or (c) any untrue statement or alleged untrue statement of a material fact contained in, or omissions or alleged omissions in, information furnished by Indemnifying Party or Company, or any of their subsidiaries or affiliates, or any other person in connection with the Transaction, the Original Commitment Letter, the Amended and Restated Commitment Letter, the Second Amended and Restated Commitment Letter, the Third Amended and Restated Commitment Letter, the Fourth Amended and Restated Commitment Letter, the Fifth Amended and Restated Commitment Letter, or the Sixth Amended and Restated Commitment Letter, provided, however, such indemnity agreement shall not apply to any portion of any such loss, claim, damage, obligation, penalty, judgment, award, liability, cost, expense or disbursement to the extent it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) to have resulted primarily and directly from the gross negligence or willful misconduct of the Indemnified Persons.

These Indemnification Provisions shall be in addition to any liability which any Indemnifying Party may have to the Indemnified Persons.

If any action, suit, proceeding or investigation is commenced, as to which any of the Indemnified Persons proposes to demand indemnification, it shall notify the Indemnifying Parties with reasonable promptness, provided, however, that any failure by any of the Indemnified Persons to so notify any Indemnifying Party shall not relieve any Indemnifying Party from its obligations hereunder. WFF, on behalf of WFF and its Indemnified Persons, shall have the right to retain

counsel of its choice to represent WFF and its Indemnified Persons. CapSource, on behalf of CapSource and its Indemnified Persons, shall have the right to retain counsel of its choice to represent CapSource and its Indemnified Persons. Each Indemnifying Party shall pay the fees, expenses and disbursements of such counsel, and such counsel shall, to the extent consistent with its professional responsibilities, cooperate with the Indemnifying Party and any counsel designated by the Indemnifying Parties. Each Indemnifying Party shall be liable for any settlement of any claim against any of the Indemnified Persons made with its written consent, which consent shall not be unreasonably withheld. Without the prior written consent of WFF, none of WFF’s Indemnifying Parties shall settle or compromise any claim, permit a default or consent to the entry of any judgment in respect thereof. Without the prior written consent of CapSource, none of CapSource’s Indemnifying Parties shall settle or compromise any claim, permit a default or consent to the entry of any judgment in respect thereof.

In order to provide for just and equitable contribution, if a claim for indemnification pursuant to these Indemnification Provisions is made but is found by a judgment of a court of competent jurisdiction (not subject to further appeal) that such indemnification may not be enforced in such case, even though the express provisions hereof provided for indemnification in such case, then each Indemnifying Party, on the one hand, and the Indemnified Persons, on the other hand, shall contribute to the losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses and disbursements to which the Indemnified Persons may be subject in accordance with the relative benefits received by each Indemnifying Party, on the one hand, and the Indemnified Persons, on the other hand, and also the relative fault of the Indemnifying Party, on the one hand, and the Indemnified Persons collectively and in the aggregate, on the other hand, in connection with the statements, acts or omissions which resulted in such losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses and disbursements and the relevant equitable considerations shall also be considered. No person found liable for a fraudulent misrepresentation shall be entitled to contribution from any other person who is not also found liable for such fraudulent misrepresentation. Notwithstanding the foregoing, none of the Indemnified Persons shall be obligated to contribute any amount hereunder that exceeds the amount of fees previously received by such Indemnified Person pursuant to the Sixth Amended and Restated Commitment Letter.

Neither expiration or termination of either or both of the Lenders’ commitments under the Sixth Amended and Restated Commitment Letter nor funding or repayment of the loans under the Facilities shall affect these Indemnification Provisions which shall remain operative and in full force and effect.

All obligations and liabilities of the Indemnifying Parties under these Indemnification Provisions shall be in all respects joint and several.

SIXTH AMENDED AND RESTATED TERM SHEET

This Sixth Amended and Restated Term Sheet is part of the sixth amended and restated commitment letter, dated October 2, 2009 (the “Sixth Amended and Restated Commitment Letter”), addressed to Symphony Technology Group (“Sponsor”) by Wells Fargo Foothill, LLC (“WFF”) and CapitalSource Bank (“CapSource”) and is subject to the terms and conditions of the Sixth Amended and Restated Commitment Letter. Capitalized terms used herein and the accompanying Annexes shall have the meanings set forth in the Sixth Amended and Restated Commitment Letter unless otherwise defined herein.


*Borrower:*		MSC.Software Corporation (the “Company”) and each of its domestic subsidiaries (together with the Company, individually and collectively, jointly and severally, the “Borrower”).

*Guarantors:*		The direct parent company of the Company (the “*Parent”) and all of Parent’s present and future direct and indirect subsidiaries (other than Borrower); provided, that, subject to the section hereof entitled “Collateral” and in particular the provision therein regarding intellectual property, subsidiaries that are controlled foreign corporations (each a “CFC”) will not be required to be Guarantors if to do so could reasonably be expected to (i) result in adverse tax consequences to Parent and its subsidiaries, (ii) result in costs to Parent and its subsidiaries that are disproportionately large in relation to the benefit to Lenders, as determined by the Lenders in their reasonable discretion, or (iii) be prevented or significantly impaired by foreign laws or regulations (such Guarantors, together with Borrower, each a “Loan Party” and collectively, the “Loan Parties*”).

		Anything to the contrary contained in the Sixth Amended and Restated Commitment Letter or this Sixth Amended and Restated Term Sheet notwithstanding, the Lenders reserve the right to amend the structure of the Facility to obtain first priority perfected security interests on assets (including, without limitation, accounts receivable, cash, deposit accounts, and intellectual property) of subsidiaries organized under laws other than the laws of the United States.

*Lenders and Agent:*		WFF, CapSource and such other lenders designated by WFF and/or CapSource with the written consent of Agent (such consent not to be (i) unreasonably withheld or delayed, (ii) required in connection with an assignment by a Lender to one of its affiliates or an approved fund under common control with a Lender, and (iii) required in connection with an assignment for collateral purposes) (the “*Lenders”). WFF shall be the administrative agent for the Lenders (in such capacity, the “Agent*”).


*Co-Lead Arranger:*		CapSource shall be the co-lead arranger for the Lenders.

*Facility:*		A senior secured credit facility (the “*Facility”) in a maximum credit amount of $65,000,000 (the “Maximum Credit Amount”). Under the Facility, Lenders will severally (up to the limits described below) provide Borrower with a revolving credit facility (the “Revolver”) and a term loan (the “Term Loan”; together with amounts outstanding under the Revolver, the “Loans*”).

*Revolver:*		Advances under the Revolver (“*Advances”) will be available up to a maximum amount outstanding at any one time of $15,000,000 (the “Maximum Revolver Amount*”), of which (a) WFF commits to provide up to a maximum amount of $10,500,000 and (b) CapSource commits to provide up to a maximum amount of $4,500,000. At least $7,500,000 of the Revolver will be unfunded on the Closing Date.

*Letter of Credit Subfacility*:		Under the Revolver, Borrower will be entitled to request that Agent issue guarantees of payment (“*Letters of Credit*”) with respect to letters of credit issued by Wells Fargo Bank, N.A. in an aggregate amount not to exceed $5,000,000 at any one time outstanding. The aggregate amount of outstanding Letters of Credit will be reserved against the Maximum Revolver Amount.

*Term Loan*:		On the Closing Date, Lenders will provide Borrower the Term Loan in an amount equal to $50,000,000 (of which WFF commits to provide up to a maximum amount of $34,500,000, and CapSource commits to provide up to a maximum amount of $15,500,000), but in no event will the aggregate amount of (x) the Term Loan to be made on the Closing Date and (y) the Advances made under the Revolver on the Closing Date be greater than 2.00 times the Company’s trailing twelve months pro forma EBITDA (“*TTM Pro Forma EBITDA*”) for the 12 month period ended June 30, 2009.

		The parties hereto agree that (x) the pro forma adjustments that are to be added to calculate TTM Pro Forma EBITDA shall be (1) with respect to any reporting period ended on or before the Closing Date (other than the 12 month period ending March 31, 2009, which shall be as set forth in clause (y) below), substantially consistent with the categories of adjustments set forth in the Deloitte consulting report dated as of May 17, 2009


		(the “*Deloitte Report*”) (but including negative adjustments for any capitalized software costs) in amounts reasonably acceptable to the Lenders, and (2) with respect to any reporting period ending after the Closing Date, as reasonably agreed upon by the parties hereto (but including negative adjustments for capitalized software costs), and (y) the TTM Pro Forma EBITDA for the 12 month period ended March 31, 2009 for the Company and its subsidiaries shall be deemed to be $40,825,000.

		In addition, for purposes of calculating TTM Pro Forma EBITDA through the period ending December 31, 2010, the following item shall be added back to EBITDA: any restructuring expenses of Company in an amount not to exceed $18,000,000 and only if incurred during the period from the Closing Date through December 31, 2010.

		Commencing on March 31, 2010 (the “*First Payment Date*”) and thereafter through and including December 31, 2010, the Term Loan will be repayable, on a quarterly basis, by an aggregate amount equal to 10% per annum of the original principal amount of the Term Loan.

		Commencing on the first anniversary of the First Payment Date and thereafter through and including December 31, 2011, the Term Loan will be repayable, on a quarterly basis, by an aggregate amount equal to 15% per annum of the original principal amount of the Term Loan.

		Commencing on the second anniversary of the First Payment Date and thereafter through and including December 31, 2012, the Term Loan will be repayable, on a quarterly basis, by an aggregate amount equal to 15% per annum of the original principal amount of the Term Loan.

		Commencing on the third anniversary of the First Payment Date and thereafter through and including the Maturity Date, the Term Loan will be repayable, on a quarterly basis, by an aggregate amount equal to 20% per annum of the original principal amount of the Term Loan.

		Any amount remaining unpaid shall be due and payable in full on the Maturity Date.


*Optional Prepayment:*		The Advances may be prepaid in whole or in part from time to time without penalty or premium (unless in connection with the prepayment in full of the Facility). The Revolver commitments may be permanently reduced from time to time so long as Borrower pays to Agent (for the benefit of the Lenders) the Prepayment Premium set forth on Annex A-I hereto.

		The Term Loan may be prepaid, upon 10 business days prior written notice and in minimum amounts (to be mutually agreed upon), in Borrower’s sole discretion so long as Borrower pays to Agent (for the benefit of the Lenders) the applicable Prepayment Premium set forth herein. All optional prepayments of the Term Loan shall be applied to the installments due in respect thereof on a pro rata basis.

		The Facility may be prepaid and the commitments terminated in whole at any time upon 10 business days prior written notice so long as Borrower pays to Agent (for the benefit of the Lenders) the applicable Prepayment Premium set forth on Annex A-I hereto.

*Mandatory Prepayments*:		The Facility will be required to be prepaid as follows:

		(a) commencing with the fiscal year ending December 31, 2010, in an amount equal to the result of (i) 50% of the consolidated excess cash flow of Parent and its Subsidiaries for each fiscal year, minus (ii) the aggregate amount of all voluntary prepayments of the Term Loan and the Advances during such fiscal year, to the extent the latter are accompanied by an equivalent reduction in the Maximum Revolver Amount; provided that the foregoing percentage shall be reduced to 25% with respect to any fiscal year of the Company (other than the fiscal year of the Company ending December 31, 2010) in which the Company’s total leverage ratio for such fiscal year is less than 1.00:1.00. (The definition of “excess cash flow” will be defined in a manner mutually reasonably acceptable to the Company and the Lenders), but it will be based on EBITDA (the definition of which shall be mutually reasonably acceptable to the Company and the Lenders) and changes in Working Capital (the definition of which


		shall be mutually reasonably acceptable to the Company and the Lenders) minus cash interest expense, principal payments and loan servicing fees, restructuring costs in an amount not to exceed $18,000,000 and only if incurred during the period from the Closing Date through December 31, 2010, taxes, net capital expenditures, and management fees (as and to the extent permitted)). (The definition of “leverage ratio” shall be defined in a manner mutually and reasonably acceptable to the Company and the Lenders, but it will be based on the result of (x) funded senior indebtedness, which shall be measured as of the date of determination, to (y) EBITDA for the relevant fiscal year);

		(b) in an amount equal to 100% of the net cash proceeds of asset dispositions (except for dispositions resulting from casualty losses or condemnations and subject to exceptions to the extent mutually agreed upon), provided, however, that such proceeds may be reinvested within a 180 day period or within a 270 day period if Borrower has entered into a binding contract for reinvestment within 180 days), subject to customary reinvestment provisions;

		(c) in an amount equal to 100% of the net cash proceeds of any debt issued by Parent or its subsidiaries (other than permitted debt);

		(d) in an amount equal to 50% of the net cash proceeds of any equity issuance by Parent or its subsidiaries (other than equity issuances (the “*Subject Stock”) by Parent (i) to Sponsor or Elliott or any of their respective affiliate funds, (ii) to management and other employees pursuant to employee stock or option plans approved by the board of directors of Parent, (iii) to the extent the proceeds are used to finance Permitted Acquisitions and capital expenditures, and (iv) to any other person that is a shareholder of Parent prior to such issuance of Stock (the “Subject Holder*”) so long as the Subject Holder did not acquire any Stock of Parent so as to become a Subject Holder concurrently with, or in contemplation of, the issuance of the Subject Stock to such Subject Holder and so long as no change of control results therefrom); and


		(e) in an amount equal to (i) 50% of the net cash proceeds of tax refunds, and (ii) 100% of the net cash proceeds of insurance and casualty receipts (subject to exceptions for (A) customary reinvestment rights in assets used or useful in the business of the Borrower and its subsidiaries, and (B) such other exceptions and reinvestment rights to be mutually agreed upon) and other proceeds from extraordinary events (subject to exceptions for payments of indemnification claims and for proceeds of business interruption insurance) received by the Parent or its subsidiaries; provided, however, that such proceeds may be reinvested within a 180 day period (or within a 270 day period if Borrower has entered into a binding contract for reinvestment within 180 days), subject to customary reinvestment provisions.

		All mandatory prepayments shall be applied first to the installments due under the Term Loan on a pro rata basis and second to Advances outstanding under the Revolver (with a corresponding permanent reduction in the Maximum Revolver Amount), and third to cash collateralize the Letters of Credit (with a corresponding permanent reduction in the Maximum Revolver Amount).

		Any mandatory prepayment pursuant to clause (b), (c), or (d) above shall be accompanied by the applicable Prepayment Premium set forth on Annex A-I hereto.

*Use of Proceeds:*		To (i) fund certain fees and expenses associated with the Facility and the Transaction, and (ii) finance the ongoing general corporate needs of Borrower, including Permitted Acquisitions. In addition, a portion of the proceeds will be used to finance a portion of the consideration payable in connection with the consummation of the Acquisition.


*Fees and Interest Rates:*		As set forth on Annex A-I and in that certain sixth amended and restated fee letter (the “*Sixth Amended and Restated WFF Fee Letter”), dated as of even date herewith, executed by WFF and accepted and agreed to by Sponsor. The Sixth Amended and Restated WFF Fee Letter supersedes and amends and restates in its entirety that certain fee letter, dated September 28, 2009, executed by WFF and accepted and agreed to by Sponsor (the “Fifth Amended and Restated WFF Fee Letter*”).

*Term:*		4 years from the Closing Date (“*Maturity Date*”).

*Collateral:*		A first priority perfected security interest (a) in substantially all of the Loan Parties’ now owned and hereafter acquired property and assets (other than leasehold interests in real property) and all proceeds and products thereof, subject to permitted liens (to be mutually agreeable to the Lenders and Company), including, notwithstanding anything in the Sixth Amended and Restated Commitment Letter or this Sixth Amended and Restated Term Sheet to the contrary and without limitation and without regard to whether the owner thereof is a Loan Party, substantially all of the intellectual property that is material to the business of Parent and/or its subsidiaries, and (b) in 100% of the capital stock of (or other ownership interests in) each Loan Party (other than Parent) and all proceeds and products thereof; provided that only 65% of the stock of (or other ownership interests in) CFCs will be required to be pledged if the pledge of a greater percentage could reasonably be expected to (i) result in adverse tax consequences to Parent and its subsidiaries, (ii) result in costs to Parent and its subsidiaries that are disproportionately large in relation to the benefit to Lenders, as determined by the Lenders in their reasonable discretion, or (iii) be prevented or significantly impaired by foreign laws or regulations.

*Representations and Warranties:*		The credit agreement governing the Facility will be limited to the following representations and warranties with respect to the Loan Parties and their subsidiaries as are usual and customary for financings of this type (certain of which will be subject to materiality thresholds, baskets and customary exceptions and qualifications to be mutually agreed upon): due organization and qualification; subsidiaries; due authorization; no conflict; governmental consents; binding obligations; perfected


		liens; title to assets; no encumbrances; jurisdiction of organization; location of chief executive office; organizational identification number; commercial tort claims; litigation; compliance with laws; no material adverse change; fraudulent transfer; employee benefits; environmental condition; intellectual property; leases; deposit accounts and securities accounts; complete disclosure; material contracts; Patriot Act and OFAC; indebtedness; payment of taxes; margin stock; governmental regulation; Parent as holding company; government receivables (assignment of claims), and acquisition documents.

*Affirmative Covenants:*		The credit agreement governing the Facility will be limited to the following affirmative covenants (certain of which will be subject to materiality thresholds, baskets and customary exceptions and qualifications to be mutually agreed upon) applicable to the Loan Parties and their subsidiaries as are usual and customary for financings of this type: financial statements (including monthly financial statements, annual audited financial statements, and projections), reports, and certificates; collateral reporting; existence; maintenance of properties; taxes; insurance; inspection (by WFF, CapSource, or their respective representatives or agents); compliance with laws; environmental; disclosure updates; formation of subsidiaries; further assurances; lender meetings; material contracts; registration of intellectual property; protection of intellectual property; preservation and maintenance of intellectual property; source code escrow (on a post-close basis); employee benefits; government receivables (assignment of claims); the filing or registration of any documents as required to perfect the Agent’s security interest in the Collateral; amendments to overly broad financing statements in favor of Solarcom LLC and IBM Credit LLC (on a post-close basis) in respect of leased equipment to clarify that any software that is subject to an equipment lien is limited to imbedded software (rather than the Company’s licensed software), which amendments shall be in form and substance satisfactory to Agent and the Lenders.

*Negative Covenants:*		The credit agreement governing the Facility will be limited to the following negative covenants (certain of which will be subject to materiality thresholds, baskets and customary exceptions and qualifications to be mutually agreed upon) applicable to the Loan Parties and


		their subsidiaries as are usual and customary for financings of this type: indebtedness; liens; fundamental changes (including organizational changes); disposal of assets; change of name; nature of business; prepayments and amendments; change of control; distributions (other than annual distributions of management fees to Sponsor and Elliott in an aggregate amount not to exceed $1,000,000 so long as (a) no event of default has occurred and is continuing, (b) excess availability plus qualified cash is at least $10,000,000 after taking into account all such payments to be made on any date, and (c) the payment of such management fees is subordinated to the obligations under the Facility pursuant to a subordination agreement, which shall be in form and substance reasonably satisfactory to the Lenders); accounting methods; investments (other than Permitted Acquisitions); transactions with affiliates; use of proceeds; Parent as holding company; limitations on cash in foreign jurisdictions acceptable to the Lenders; and restrictions on transferring cash from domestic to foreign Loan Parties and their subsidiaries.

*Financial Covenants:*		Parent, on a consolidated basis, shall be required to maintain a minimum fixed charge coverage ratio, a maximum leverage ratio, a minimum level of recurring maintenance revenue, and will be subject to a limitation on annual capital expenditures. The levels for the financial covenants will be as set forth on Annex C attached hereto.

*Banking Relationship:*		The Loan Parties shall be required to establish and maintain their primary domestic, operating and investment accounts with Wells Fargo Bank.

*Events of Default:*		The credit agreement governing the Facility will include such events of default (certain of which will be subject to materiality thresholds, exceptions and grace periods to be mutually agreed upon) applicable to the Loan Parties and their subsidiaries as are usual and customary for the Lenders’ financings of this type, including: non-payment of obligations; non-performance of covenants and obligations; material judgments; bankruptcy or insolvency; any restrainment against the conduct of all or a material portion of business affairs; default on other material debt (including hedging agreements); breach of any representation or warranty; limitation or termination


		of any guarantee with respect to the Facility; impairment of security; employee benefits; and actual or asserted invalidity or unenforceability of any Facility documentation or liens securing obligations under the Facility documentation.

*Conditions Precedent to Closing:*		Customary for the Lenders’ loans of this type and those additional deemed appropriate by the Lenders for this transaction, including those conditions set forth on Annex B.

*Assignments:*		Each Lender shall be permitted to assign its rights and obligations under the Loan Documents, or any part thereof, to any person or entity with the consent of Agent and Borrower (each such consent not to be unreasonably withheld, delayed, or conditioned); provided that (a) no consent by Agent or Borrower shall be required for assignments to another Lender, an affiliate of a Lender, or an approved fund under common control with a Lender, or assignments for collateral purposes; (b) no consent of Borrower shall be required (i) during the occurrence and continuation of an event of default, or (ii) in connection with the primary syndication of the commitments and the obligations by WFF (provided that WFF shall consult with Borrower in connection with such primary syndication (it being understood that in no event shall WFF be required to obtain Borrower’s consent with respect to any assignment made in connection with such primary syndication)); and (c) during the occurrence and continuation of an event of default, no consent by WFF as Agent shall be required for assignments by CapSource to a prospective Lender so long as (i) WFF’s share of the Revolver plus the Term Loan is less than $20,000,000 (or if the Revolver has been terminated, WFF’s pro rata share of the outstanding principal balance of the obligations under the Facility is less than 30%), and (ii) the prospective Lender is an Eligible Transferee (such definition to be agreed upon by WFF and CapSource).

		Each Lender shall be permitted to sell participations in such rights and obligations, or any part thereof to any person or entity without the consent of Borrower or Agent.

*Required Lenders:*		(a) So long as CapSource and its affiliates hold in the aggregate at least $10,000,000 of the Revolver commitment (or if the Revolver commitment has been


		terminated or reduced to zero, the Advances) and the outstanding principal amount of the Term Loan, the Lenders who hold at least 66% of the sum of (i) the Revolver commitment, or if the Revolver commitment has been terminated or reduced to zero, the then extant Revolver Usage (as hereinafter defined), and (ii) the outstanding principal amount of the Term Loan; and

		(b) at all other times, the Lenders who hold at least 51% of the sum of (i) the Revolver commitment, or if the Revolver commitment has been terminated or reduced to zero, the then extant Revolver Usage (as hereinafter defined), and (ii) the outstanding principal amount of the Term Loan; provided, however, that at any time there are 2 or more Lenders, “*Required Lenders*” must include at least 2 Lenders which are not affiliates.

		“*Revolver Usage*” means, as of any date of determination, the sum of (1) the amount of outstanding Advances, plus (2) the aggregate undrawn amount of all outstanding Letters of Credit.

*Governing Law and Forum:*		State of New York

*Counsel to Agent:*		Paul, Hastings, Janofsky & Walker LLP

Annex B

The availability of the Facility is subject to the satisfaction of each of the following conditions precedent:

(a) Completion of the following: an assignment agreement, in form and substance satisfactory to Agent and the Lenders, in which each subsidiary of the Company that owns any intellectual property relating to any software products of the Company assigns all of its right, title, and interest in all intellectual property relating to any software products of the Company to the Company;

(b) Delivery of Loan Documents customary for transactions of this type duly executed by the Loan Parties (or applicable third parties as the case may be) including a credit agreement, security agreements, control agreements, landlord waivers for headquarters location only; provided, however, that the Loan Parties shall only be required to use their best efforts (other than any requirement under law that a fee must be paid to meet the “best efforts” standard) to deliver such landlord waivers, mortgages, pledge agreements, intercreditor agreements and subordination agreements, and complete schedules to each of the foregoing documents, and receipt of other documentation customary for transactions of this type including legal opinions, officers’ certificates, instruments necessary to perfect Agent’s first priority security interest in the Collateral, and certificates of insurance policies and/or endorsements naming Agent as additional insured or loss payee, as the case may be, all in form and substance reasonably satisfactory to Agent and the Lenders; and no default or event of default under such Loan Documents shall have occurred or be continuing or would result therefrom;

(c) Receipt of evidence of corporate authority and certificates of status (including certified copies of the governing documents and material agreements) with respect to each Loan Party issued by the jurisdictions of organization of each Loan Party, all in form and substance reasonably satisfactory to Agent and the Lenders;

(d) Completion of (i) confirmatory Patriot Act searches, OFAC/PEP searches, and customary individual background checks for (A) the Loan Parties’ senior management and key principals and (B) majority controlling Sponsor, in each case, the results of which are satisfactory to Agent and the Lenders and (ii) Patriot Act searches, OFAC/PEP searches, and customary individual background checks for individuals that become a member of the senior management or a key principal after the date that the initial searches and background checks were performed, the results of which are satisfactory to Agent and the Lenders;

(e)(i) Not less than $7,500,000 of the Revolver is unfunded at close, and (ii) cash of the Loan Parties at closing, after giving effect to the initial use of proceeds (including the payment of all fees and expenses) is not less than $26,000,000 (of which $10,000,000 must be cash maintained in deposit accounts of the Company located in the United States);

(f) Receipt of evidence satisfactory to Agent and the Lenders that the Loan Parties have EBITDA of at least $34,000,000 for the 12 month period ending on June 30, 2009;

(g) The following transactions shall have occurred prior to or concurrently with the initial extension of credit under the Facility:

(i) Evidence of a cash equity investment of an amount sufficient for Newco to pay the purchase price for the Acquisition, after giving effect to the aggregate amount of (y) the Facility plus (z) the amount of the Company’s cash that will be used to pay the purchase price, and the amount of such cash equity investment shall, in any event, be at least $187,010,000 (assuming a price per share of

the Company’s common stock of at least $8.40) by parties reasonably satisfactory to the Lenders and on terms reasonably satisfactory to the Lenders, of which $106,510,000 (assuming a price per share of the Company’s common stock of at least $8.40) must be contributed in cash by Sponsor on terms reasonably satisfactory to the Lenders; provided, however, that if the conditions precedent to the Subordinated Loan Debt (as defined below) have not been satisfied or waived on the Closing Date, evidence of a cash equity investment of an amount sufficient for Newco to pay the purchase price for the Acquisition, after giving effect to the aggregate amount of (y) the Facility plus (z) the amount of the Company’s cash that will be used to pay the purchase price, and the amount of such cash equity investment shall, in any event, be at least $235,510,000 (assuming a price per share of the Company’s common stock of at least $8.40) by parties reasonably satisfactory to the Lenders and on terms reasonably satisfactory to the Lenders, of which $134,130,000 (assuming a price per share of the Company’s common stock of at least $8.40) must be contributed in cash by Sponsor on terms reasonably satisfactory to the Lenders;

(ii) The Acquisition shall be consummated in accordance with all applicable requirements of law and shall have been approved by the Company’s board of directors and (if necessary) shareholders;

(iii) The definitive agreement relative to the Acquisition shall be substantially in the form of the Merger Agreement and all other all documentation associated with the Acquisition (collectively, the “Acquisition Documentation”) shall be in form and substance reasonably satisfactory to the Lenders or subject to subsequent amendments or modifications approved by or consented to by the Lenders in their reasonable discretion;

(iv) the Acquisition shall be completed on the Closing Date in accordance with the terms and conditions of the Acquisition Documentation, and no such terms or conditions (other than any immaterial terms or conditions) shall have been waived other than with the consent of the Lenders; and Agent and the Lenders shall have received a certificate of Borrower executed by an authorized officer of Borrower certifying on behalf of Borrower as to the solvency of Borrower on a consolidated basis after giving effect to the Acquisition;

(v) If the conditions precedent thereto have been satisfied or waived on the Closing Date, (A) evidence of receipt by Borrower of $50,000,000 (the “Subordinated Loan Debt”) from a subordinated debt facility provided by Barclays Structured Principal Investing Fund, L.P. that will be secured by a security interest that is junior in priority to the security of interest of Agent in respect of the Facility on the Collateral, the terms and conditions of such subordinated debt facility (including but not limited to terms and conditions relating to the interest rate, fees, maturity, payment subordination, covenants, lien subordination, events of default and remedies) shall be reasonably satisfactory to the Lenders (it being understood and agreed that a maturity date of 5 years or longer and interest that is paid in kind are satisfactory to the Lenders) and (B) delivery of an intercreditor agreement duly executed by Barclays Structured Principal Investing LLC with respect to such subordinated debt facility, which shall include debt subordination terms and lien subordination terms that are reasonably satisfactory to the Lenders and shall otherwise be in form and substance reasonably satisfactory to the Lenders; and

(h) Receipt of all governmental and third party approvals (including shareholder approvals, Hart-Scott-Rodino clearance and other consents) necessary or, in the reasonable opinion of the Lenders, advisable in connection with the Transaction, which shall all be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the Transaction.

Annex C

[Redacted]

EX-99.20 5 dex9920.htm SECOND LIEN TERM LOAN FACILITY COMMITMENT LETTER Second Lien Term Loan Facility Commitment Letter

Exhibit 99.20

October 1, 2009

Symphony Technology Group

2475 Hanover Street

Palo Alto, CA 94304

COMMITMENT LETTER

$50 MILLION SECOND LIEN TERM LOAN FACILITY

Ladies and Gentlemen:

As we, Barclays Structured Principal Investing Fund, L.P. (together with its affiliates “BSPI”; each such entity referred to as a “Lender” and severally, the “Lenders” or “we” or “us”), understand, Symphony Technology Group (the “Sponsor” or “you”) has formed an acquisition entity (“Newco”) in order to acquire (the “Acquisition”) MSC.Software Corporation (the “Company”). The Acquisition is to be accomplished by means of the merger of a wholly-owned subsidiary of Newco with and into Company, with Company as the survivor of such merger. The Lenders further understand that Sponsor is desirous of obtaining financing for Company in order to (a) finance a portion of the consideration payable in connection with the consummation of the Acquisition, (b) refinance certain of Company’s existing indebtedness, (c) finance general corporate purposes of Company (including permitted acquisitions (“Permitted Acquisitions”; such term to be defined in a mutually agreeable manner in the final loan documentation for the Facility (as hereinafter defined)), and (d) pay fees and expenses associated with the transactions contemplated hereby (collectively, the “Transaction”). You have informed us that the sources and uses (the “Sources and Uses”) for the debt and equity financing of the Transaction are as set forth on Annex A hereto.

The Lenders are pleased to provide you with this commitment letter (together with Exhibit A, the “Commitment Letter”), and the term sheet attached hereto (together with the annexes thereto, the “Term Sheet”), which establish the terms and conditions under which we commit to provide to Company a $50,000,000 second lien term loan facility (together with the warrants described in the Term Sheet, the “Facility”). The parties acknowledge that the Term Sheet and this Commitment Letter (a) summarize all of the substantive conditions precedent to the Facility, and (b) summarize all of the substantive covenants, representations, and events of default but do not purport to summarize the other provisions that will be in the definitive legal documentation. The parties agree that such covenants, representations, warranties and other provisions (to the extent not already addressed in the Term Sheet or this Commitment Letter) will be customary for transactions of this type or otherwise acceptable to Sponsor and BSPI.

Symphony Technology Group

October 1, 2009

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Expenses and Indemnification

BSPI and Sponsor hereby agree that (a) the letter agreements, dated as of September 12, 2009 and September 15, 2009, by and between Barclays Structured Principal Investing LLC and Sponsor relating to expense reimbursement are each hereby terminated; and (b) the reimbursement of all out-of-pocket fees, costs, and expenses (including, without limitation, reasonable fees and disbursements of counsel, reasonable consultant costs and expenses, filing and recording fees, and costs and expenses associated with due diligence, travel, appraisals, valuations, and audits) incurred by, or on behalf BSPI, prior to, or, or after the date hereof shall be governed by the terms of this Commitment Letter.

Fees

You agree to pay or cause Company to pay the fees set forth on Annex A-I, in immediately available funds, as and when indicated therein. BSPI’s commitment to provide the Facility is conditioned upon payment of such fees and the fees set forth on Annex A-II.

All fees payable hereunder will be payable in U.S. dollars in immediately available funds to BSPI for its own account, or as directed by it, free and clear of and without deduction for any and all present or future applicable taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto (with appropriate gross-up for withholding taxes) and will not be subject to reduction by way of setoff or counterclaim. Once paid, no fee will be refundable under any circumstances. Your obligation to pay any fee set forth herein or to cause any such fee to be paid shall be joint and several with any other party having such an obligation.

Conditions

The commitment of BSPI to provide the Facility shall be subject to (a) the negotiation, execution and delivery of definitive loan documentation customary for transactions of this type and consistent with the terms and conditions set forth herein and in the Term Sheet, in form and substance reasonably satisfactory to BSPI (the “Loan Documents”), (b) since December 31, 2008, there has not been any Material Adverse Effect (as defined below), as determined by BSPI

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in its reasonable discretion, (c) the absence of any change, in any material respect, to the Sources and Uses, as determined by BSPI in its reasonable discretion (provided, however, that the Sources and Uses may change as contemplated by the conditions in Annex B), and (d) the performance of your obligations set forth herein and in the Term Sheet, and the satisfaction of the conditions set forth herein and in the Term Sheet.

For the purposes hereof, “Material Adverse Effect” means, with respect to the Company, any change, event, occurrence or state of facts that (a) is materially adverse to the financial condition, business, assets, or results of operations of the Company and its Subsidiaries (as defined in (i) the Execution Copy of the Agreement and Plan of Merger, dated July 7, 2009, by and among MSC.Software Corporation, a Delaware corporation, Maximum Holdings Inc., a Delaware corporation, and Maximus Inc., a Delaware corporation, together with (ii) the Company Disclosure Schedule and Annexes A and B to the Disclosure Schedules, each of which was delivered by Shearman & Sterling LLP to Proskauer Rose LLP at 5:00 p.m. (EST) and 6:24 p.m. (EST), respectively, on September 12, 2009, as such Agreement and Plan of Merger was amended by the parties pursuant to that certain Amendment to Agreement and Plan of Merger dated September 28, 2009 and delivered by Shearman & Sterling LLP to Proskauer Rose LLP at 9:03 p.m. (EST) on September 30, 2009 (the “Merger Agreement”)), taken as a whole, or (b) prevents the Company from consummating the Merger (as defined in the Merger Agreement) and the other transactions contemplated by the Merger Agreement, excluding, in the case of clause (a), any effect resulting from (A) changes in the financial or securities markets (including, but not limited to, changes in currency exchange rates and interest rates) or changes in general global, national or regional economic or political conditions, in either case not having a materially disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to other participants in the software industry, (B) changes (including changes of Applicable Law (as defined in the Merger Agreement) or in GAAP (as defined in the Merger Agreement) or regulatory accounting requirements) generally affecting the software industry and not specifically relating to or having a materially disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to other participants in the software industry, (C) acts of war, sabotage or terrorism or natural disasters not having a materially disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to other participants in the software industry, (D) the announcement, pendency or consummation of the transactions contemplated by the Merger Agreement (including any loss of, or adverse change in, the relationship of the Company and its Subsidiaries with their respective employees, customers, distributors, partners or suppliers resulting therefrom), (E) any failure by the Company and its Subsidiaries to meet any internal or published budgets, projections, forecasts or predictions of financial performance for any period (it being understood that the causes underlying such failure may be considered in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur) or (F) any action taken by the Company or its Subsidiaries at the written request of Parent (as defined in the Merger Agreement) or that is expressly required pursuant to the Merger Agreement in and of itself (it being understood that the manner in which any such action is taken, and the effects of any such action, may be considered in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur).

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For the purposes hereof, “Projections” means the financial information and projections as BSPI may reasonably request, including a business plan for fiscal year 2009 through fiscal year 2012 on a quarterly basis and a written analysis of the business and prospects of Company and its subsidiaries for such period, all in form and substance reasonably satisfactory to BSPI; it being recognized by BSPI that projections of future events are not to be viewed as facts and actual results may vary significantly from projected results.

Notwithstanding anything in this Commitment Letter, the Term Sheet or any other letter agreement or other undertaking concerning the Facility to the contrary, (i) the only representations and warranties relating to the Company and its subsidiaries and their businesses, the accuracy of which shall be a condition to the availability of the Facility on the Closing Date shall be (A) such of the representations and warranties made by the Company in the Merger Agreement, to the extent that you or Parent have a right not to consummate the transactions contemplated by the Merger Agreement or to terminate your or its obligations under the Merger Agreement as a result of a breach of such representations and warranties, and (B) the Specified Representations (as hereinafter defined), and (ii) the terms of the Facility shall contain no condition precedent to the funding of the Facility on the Closing Date other than those set forth in this Commitment Letter or in Annex B to the Term Sheet, the satisfaction of which shall obligate the Lenders to provide the Facility on the terms set forth in this Commitment Letter and the Term Sheet (it being understood that, to the extent the security interest in any collateral is not perfected on the Closing Date after your use of commercially reasonable efforts to do so (other than any collateral the security interest in which may be perfected by (x) the filing of Uniform Commercial Code financing statements, (y) the filing of intellectual property security agreements for intellectual property that is registered as of the Closing Date, or (z) the delivery of stock certificates), the perfection of such security interest shall not constitute a condition precedent to the availability of the Facility on the Closing Date but shall be required to be provided after the Closing Date pursuant to arrangements to be mutually agreed upon). For purposes hereof, “Specified Representations” means the representations and warranties set forth in the Loan Documents relating to organization, existence, power and authority, due authorization, execution, delivery, enforceability and non-contravention of the Loan Documents with the Loan Parties’ governing documents, applicable law, or any order, judgment, or decree of any court or other governmental authority binding on any Loan Party or its subsidiaries, receipt of governmental approvals in connection with the Facility, use of proceeds, solvency, debt, liens, Federal Reserve Bank margin regulations, the Investment Company Act and, subject to parenthetical in clause (ii) above, the perfection of the security interests granted in the collateral as of the Closing Date.

Confidentiality

(a) You agree that this Commitment Letter (including the Term Sheet) is for your confidential use only and that neither its existence, nor the terms hereof, will be disclosed by you to any person other than your officers, directors, employees, accountants, attorneys, and other advisors, and then only on a “need-to-know” basis in connection with the Transaction contemplated hereby and on a confidential basis. This Commitment Letter is provided solely for the benefit of the parties signatory hereto, and no other person shall acquire or have any right

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under or by virtue of this Commitment Letter. The foregoing notwithstanding, you may (i) provide a copy hereof (including the Term Sheet, but not including Annex A-I or Annex A-II) to Company so long as it agrees not to disclose this Commitment Letter other than to its officers, directors, employees, accountants, attorneys, and other advisors, and then only on a “need-to-know” basis in connection with the Transaction contemplated hereby and on a confidential basis, (ii) provide a copy hereof (including the Term Sheet) to Elliott Associates L.P. and Elliott Management Corporation and their respective affiliates that are investment firms so long as they agree not to disclose this Commitment Letter other than to their respective officers, directors, employees, accountants, attorneys, and other advisors, and then only on a “need-to-know” basis in connection with the Transaction contemplated hereby and on a confidential basis, (iii) provide a copy hereof (including the Term Sheet) to your officers, directors, employees, accountants, attorneys, and other advisors, and then only on a “need-to-know” basis in connection with the Transaction contemplated hereby and on a confidential basis, and (iv) after your acceptance hereof in accordance with the terms hereof, file or make such other public disclosures of the terms and conditions hereof (including the Term Sheet, but not including Annex A-I or Annex A-II) (A) as you are required by law, in the opinion of your counsel, to make, (B) as may be required by regulatory authorities so long as such authorities are informed of the confidential nature of such information, (C) as may be required by statute, decision, or judicial or administrative order, rule, or regulation, provided that prior to any disclosure under this clause (C), the disclosing party agrees to provide BSPI with prior notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior notice to BSPI pursuant to the terms of the applicable statute, decision, or judicial or administrative order, rule, or regulation, (D) as may be agreed to in advance by BSPI, (E) as requested or required by any governmental authority pursuant to any subpoena or other legal process, provided that prior to any disclosure under this clause (E) the disclosing party agrees to provide BSPI with prior notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior notice to BSPI pursuant to the terms of the subpoena or other legal process, (F) as to any such information that is or becomes generally available to the public (other than as a result of prohibited disclosure by Sponsor), and (G) in connection with any litigation or other adverse proceeding involving parties to this Commitment Letter; provided that prior to any disclosure to a party other than BSPI, their respective affiliates and their respective counsel under this clause (G) with respect to litigation involving a party other than BSPI, and their respective affiliates, the disclosing party agrees to provide BSPI with prior notice thereof.

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affiliate shall have agreed to receive such information hereunder subject to the terms of this clause (b), (iii) as may be required by regulatory authorities so long as such authorities are informed of the confidential nature of such information (other than with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority), (iv) as may be required by statute, decision, or judicial or administrative order, rule, or regulation, provided that prior to any disclosure under this clause (iv), the disclosing party agrees to provide Sponsor with prior notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior notice to Sponsor pursuant to the terms of the applicable statute, decision, or judicial or administrative order, rule, or regulation, (v) as may be agreed to in advance by Sponsor, (vi) as requested or required by any governmental authority pursuant to any subpoena or other legal process, provided that prior to any disclosure under this clause (vi) the disclosing party agrees to provide Sponsor with prior notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such prior notice to Sponsor pursuant to the terms of the subpoena or other legal process, (vii) as to any such information that is or becomes generally available to the public (other than as a result of prohibited disclosure by a Lender), (viii) in connection with any proposed assignment or participation of BSPI’s interest in the Facility, provided that any such proposed assignee or participant shall have agreed in writing to receive such information subject to the terms of this clause (b), and (ix) in connection with any litigation or other adverse proceeding involving parties to this Commitment Letter; provided that prior to any disclosure to a party other than Sponsor, Company, the Lenders (as defined in the Term Sheet), their respective affiliates and their respective counsel under this clause (ix) with respect to litigation involving a party other than Sponsor, Company, the Lenders, and their respective affiliates, the disclosing party agrees to provide Sponsor with prior notice thereof.

Anything to the contrary in this Commitment Letter notwithstanding, Sponsor agrees that BSPI shall have the right to provide information concerning the aggregate amount of the Facility and the names of Sponsor and Borrower to loan reporting services.

Exclusivity and Certain Fees

The parties agree that the exclusivity, Lender Break-Up Fee (as defined in Annex A-II), and Termination Fee (as defined in Annex A-II) provisions shall be as set forth on Annex A-II.

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Access; Due Diligence; Interim Financial Statements

The Sponsor shall allow BSPI and its respective representatives all reasonably requested access to it employees, officers, consultants, advisors and other relevant third parties involved in the Transaction in support of the Sponsor, as well as information and records regarding the Company that the Sponsor is privy to regarding the Company’s facilities, assets, personnel, historical financial and operating results and business prospects for the purpose of completing all due diligence investigations deemed by BSPI as necessary or advisable.

Furthermore, the Sponsor will use its good faith and commercially reasonable efforts to allow BSPI and its respective representatives all reasonably requested access to the Company and its executive officers as well as any information regarding the Company that has not been previously provided to the Sponsor but which can be made reasonably available by the Company.

Following the acceptance of this Commitment Letter and until the earlier of (a) November 7, 2009 or (b) the closing, the Sponsor will furnish to BSPI as soon as reasonably possible, financial statements for the Company for the months ending July 31, 2009 and August 31, 2009 and an estimate prepared in consultation with management for the month ending September 30, 2009 (provided that actual financial statements for such month shall be furnished as soon as reasonably possible pursuant to any such commitment), each prepared in accordance with GAAP consistent with past practice, as well as a bridge of adjustments from GAAP Operating Income to Adjusted EBITDA (as each such term is defined in the D&T Report (as defined below)), if any, that are prepared by the Sponsor or the Company on a basis that is reasonably consistent with materials previously provided to BSPI pursuant to the quality of earnings report prepared by Deloitte & Touche LLP dated May 17, 2009 (the “D&T Report”).

Information

In issuing this Commitment Letter, each Lender is relying on the accuracy of the information furnished to it by or on behalf of Sponsor and Company and their affiliates, without independent verification thereof. Sponsor acknowledges that it is a further condition precedent to the funding of the Facility that, to the best of Sponsor’s knowledge after diligent inquiry, (a) all written information (other than forward looking information and Projections) concerning Company and its subsidiaries (the “Information”) that has been, or is hereafter, made available by or on behalf of Sponsor or Company is, or when delivered shall be, when considered as a whole, complete and correct in all material respects and does not, or shall not when delivered, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in any material respect in light of the circumstances under which such statements have been made, and (b) all Projections that have or are hereafter made available by or on behalf of Sponsor or Company are, or when delivered shall be, prepared in good faith on the basis of information and assumptions that are believed by Sponsor or Company to be reasonable at the time such Projections were prepared; it being recognized by BSPI that projections of future events are not to be viewed as facts and actual results may vary significantly from projected results. You agree that if at any time prior to the Closing Date any

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of the representations in the preceding sentence would be incorrect in any material respect if the Information and Projections were being furnished, and such representations were being made, at such time, then you will promptly supplement, or cause to be supplemented, the Information and Projections so that such representations will be correct in all material respects under those circumstances.

Sharing Information; Absence of Fiduciary Relationship; Affiliate Activities

You acknowledge that BSPI or one or more of its affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you may have conflicting interests regarding the transactions described herein or otherwise. You also acknowledge that we do not have any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by us from other companies.

You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between you, on the one hand, and BSPI, on the other hand, is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter, irrespective of whether BSPI or one or more of its affiliates has advised or is advising you on other matters, (b) BSPI, on the one hand, and you, on the other hand, have an arms-length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of BSPI, (c) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter, (d) you have been advised that BSPI or one or more of its affiliates is engaged in a broad range of transactions that may involve interests that differ from your interests and that BSPI does not have any obligation to disclose such interests and transactions to you by virtue of any fiduciary, advisory or agency relationship, and (e) you waive, to the fullest extent permitted by law, any claims you may have against BSPI for breach of fiduciary duty or alleged breach of fiduciary duty and agree that BSPI shall not have any liability (whether direct or indirect) to you in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of you, including your stockholders, employees or creditors. For the avoidance of doubt, the provisions of this paragraph apply only to the transactions contemplated by this Commitment Letter and the relationships and duties created in connection with the transactions contemplated by this Commitment Letter.

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Please note that BSPI and its affiliates do not provide tax, accounting or legal advice.

Governing Law, Etc.

This Commitment Letter shall be governed by, and construed in accordance with, the law of the State of New York without regard to conflict of law principles that would result in application of any law other than the law of the State of New York. Each of the parties hereto consents to the exclusive jurisdiction and venue of the federal and/or state courts located in New York, New York.

Each party hereto (i) waives, to the fullest extent that it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any action, suit, proceeding or claim arising out of or relating to this Commitment Letter, the Transaction or the performance of services hereunder in any such New York State or Federal court and (ii) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of any such action, suit, proceeding or claim in any such court.

This Commitment Letter (together with the exhibits and annexes hereto and the Term Sheet) sets forth the entire agreement between the parties with respect to the matters addressed herein, supersedes all prior communications, written or oral, with respect hereto, and may not be amended, supplemented, or modified except in a writing signed by the parties hereto.

This Commitment Letter may be executed in any number of counterparts, each of which, when so executed, shall be deemed to be an original and all of which, taken together, shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Commitment Letter by telecopier or other electronic transmission shall be equally effective as delivery of a manually executed counterpart of this Commitment Letter.

In the event that this Commitment Letter is terminated or expires, the Expenses and Indemnification, Fees, Confidentiality, Exclusivity and Certain Fees (including Annex A-II), Governing Law, and Waiver of Jury Trial provisions hereof shall survive such termination or expiration. Anything contained herein to the contrary notwithstanding, the obligations of Sponsor under this Commitment Letter shall terminate at the time of the execution and delivery of the Loan Documents relative to the Facility.

This Commitment Letter may not be assigned by you without the prior written consent of BSPI (and any purported assignment without such consent will be null and void), is intended to be solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person (including equity holders, employees or creditors of Newco) other than the parties hereto (and any Indemnified Person). BSPI may assign its commitments and agreements hereunder, in whole or in part, to any other Lender and upon such assignment, BSPI will be released from that portion of its commitments and agreements

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hereunder that has been assigned. This Commitment Letter (including the Term Sheet) may not be amended or any term or provision hereof waived or modified except by an instrument in writing signed by each of the parties hereto.

Waiver of Jury Trial

To the maximum extent permitted by applicable law, each party hereto irrevocably waives any and all rights to a trial by jury in any action or proceeding (whether based on contract, tort, or otherwise) arising out of or relating to this Commitment Letter or the Transaction contemplated hereby or the actions of BSPI or any of its affiliates in the negotiation, performance, or enforcement of this Commitment Letter.

Patriot Act

BSPI hereby notifies you that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “PATRIOT Act”), BSPI may be required to obtain, verify and record information that identifies the Loan Parties (as defined in the Term Sheet), which information includes the name, address, tax identification number and other information regarding the Loan Parties that will allow BSPI to identify the Loan Parties in accordance with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act.

* * * * *

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This Commitment Letter shall expire, unless otherwise agreed to in writing by BSPI, at 12:00 p.m. (Eastern time) on October 2, 2009, unless prior thereto BSPI has received a copy of this Commitment Letter signed by Sponsor. In the event the Loan Documents for the Facility are not executed and delivered by the parties thereto on or prior to November 7, 2009 or the Acquisition is not consummated on or prior to November 7, 2009, then the Lenders’ commitment to provide the Facility shall automatically expire on such date. If you elect to deliver your signed counterpart of this Commitment Letter by telecopier or other electronic transmission, please arrange for the executed original to follow by next-day courier. The “Closing Date” shall mean the date of the initial funding under the Facility.

Our commitments hereunder will terminate upon the first to occur of (i) immediately following consummation of the Acquisition upon funding of the Facility, (ii) the abandonment or termination of the definitive documentation for the Acquisition, including the Merger Agreement, (iii) a material breach by you, or a failure of a condition, under this Commitment Letter and (iv) November 7, 2009, unless the closing of the Facility has been consummated on or before such date on the terms and subject to the conditions set forth herein.


Very truly yours,

BARCLAYS STRUCTURED PRINCIPAL INVESTING FUND L.P.

By:		Barclays Structured Principal Investing GP, as its general partner

By:		/s/ SEAN FLYNN
Name:		Sean Flynn
Title:		Director

[Signature Page to Commitment Letter]


ACCEPTED AND AGREED TO
this 2^nd day of October, 2009

SYMPHONY TECHNOLOGY GROUP

By:		/s/ BRAD MACMILLIN
Name:		Brad MacMillin
Title:		CFO

[Signature Page to Commitment Letter]

ANNEX A

[Redacted.]

EXHIBIT A

Indemnification Provisions

Capitalized terms used herein shall have the meanings set forth in the commitment letter, dated October 1, 2009 (the “Commitment Letter”) addressed to Symphony Technology Group (the “Indemnifying Party”) from Barclays Structured Principal Investing Fund L.P. (together with its affiliates, “BSPI”).

To the fullest extent permitted by applicable law, Indemnifying Party agrees that it will indemnify, defend, and hold harmless each of the Indemnified Persons from and against (i) any and all losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses and disbursements, (ii) any and all actions, suits, proceedings and investigations in respect thereof, and (iii) any and all legal or other costs, expenses or disbursements in giving testimony or furnishing documents in response to a subpoena or otherwise (including, without limitation, the costs, expenses and disbursements, as and when incurred, of investigating, preparing or defending any such action, proceeding or investigation (whether or not in connection with litigation in which any of the Indemnified Persons is a party) and including, without limitation, any and all losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses and disbursements, resulting from any negligent act or omission of any of the Indemnified Persons), directly or indirectly, that may be brought by the Indemnifying Party, Newco, the Company, the Guarantors (as defined in the Term Sheet), any of their respective affiliates or any other person or entity and caused by, relating to, based upon, arising out of or in connection with (a) the Transaction, (b) the Commitment Letter or the Facility or any use or intended use of the proceeds of the Facility, or (c) any untrue statement or alleged untrue statement of a material fact contained in, or omissions or alleged omissions in, information furnished by Indemnifying Party or Company, or any of their subsidiaries or affiliates, or any other person in connection with the Transaction or the Commitment Letter, provided, however, such indemnity agreement shall not apply to any portion of any such loss, claim, damage, obligation, penalty, judgment, award, liability, cost, expense or disbursement to the extent it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) to have resulted primarily and directly from the gross negligence or willful misconduct of the Indemnified Persons.

These Indemnification Provisions shall be in addition to any liability which any Indemnifying Party may have to the Indemnified Persons and will be binding upon and inure to the benefit of any successors or assigns of the Indemnifying Party and the Indemnified Persons.

Neither we nor any other Indemnified Person will be responsible or liable to you or any other person or entity for any indirect, special, punitive or consequential damages which may be alleged as a result of this Commitment Letter, the Term Sheet or the Transaction.

If any action, suit, proceeding or investigation is commenced, as to which any of the Indemnified Persons proposes to demand indemnification, it shall notify the Indemnifying Parties with reasonable promptness, provided, however, that any failure by any of the Indemnified Persons to so notify any Indemnifying Party shall not relieve any Indemnifying Party from its obligations hereunder. BSPI, on behalf of BSPI and its Indemnified Persons, shall have the right to retain

counsel of its choice to represent BSPI and its Indemnified Persons. Each Indemnifying Party shall pay the fees, expenses and disbursements of such counsel, and such counsel shall, to the extent consistent with its professional responsibilities, cooperate with the Indemnifying Party and any counsel designated by the Indemnifying Parties. Each Indemnifying Party shall be liable for any settlement of any claim against any of the Indemnified Persons made with its written consent as to the amount of settlement, which consent shall not be unreasonably withheld. Without the prior written consent of BSPI, none of BSPI’s Indemnifying Parties shall settle or compromise any claim, permit a default or consent to the entry of any judgment in respect thereof.

Neither expiration or termination of either or both of the Lenders’ commitments under the Commitment Letter nor funding or repayment of the loans under the Facilities shall affect these Indemnification Provisions which shall remain operative and in full force and effect.

All obligations and liabilities of the Indemnifying Parties under these Indemnification Provisions shall be in all respects joint and several.

TERM SHEET

This Term Sheet is part of the commitment letter, dated October 1, 2009 (the “Commitment Letter”), addressed to Symphony Technology Group (“Sponsor”) by Barclays Structured Principal Investing Fund L.P. (collectively, with its affiliates, “BSPI”) and is subject to the terms and conditions of the Commitment Letter. Capitalized terms used herein and the accompanying Annexes shall have the meanings set forth in the Commitment Letter unless otherwise defined herein or therein.


*Borrower:*		MSC.Software Corporation (the “*Company”) and each of its domestic subsidiaries (together with the Company, individually and collectively, jointly and severally, the “Borrower*”).

*Guarantors:*		The direct parent company of the Company (the “*Parent”) and all of Parent’s present and future direct and indirect subsidiaries (other than Borrower); provided, that, subject to the section hereof entitled “Collateral” and in particular the provision therein regarding intellectual property, subsidiaries that are controlled foreign corporations (each a “CFC”) will not be required to be Guarantors if to do so could reasonably be expected to (i) result in adverse tax consequences to Parent and its subsidiaries, (ii) result in costs to Parent and its subsidiaries that are disproportionately large in relation to the benefit to Lenders, as determined by the Agent in its reasonable discretion, or (iii) be prevented or significantly impaired by foreign laws or regulations (such Guarantors, together with Borrower, each a “Loan Party” and collectively, the “Loan Parties*”).

*Lenders and Agent:*		BSPI and such other lenders designated by Agent (the “*Lenders”). Barclays Structured Principal Investing LLC shall act as the sole agent for the Lenders (in such capacity, the “Agent*”).

*Facility:*		Term Loan and Warrants (as provided below) (collectively, the “*Facility*”).

*Term Loan:*		A second lien term loan (the “*Term Loan*”) to the Borrower in the amount equal to $50,000,000 (subject to the terms of Annex A-I hereto). Any amounts outstanding under the Term Loan shall be due and payable in full on the Maturity Date.


*Warrants:*		Detachable warrants equal to 1.5% of fully-diluted equity interests of the Parent, at a strike price equal to fair market value on the closing date (such fair market value as evidenced by the price per share paid by the Sponsor and Elliot on the closing date) (the “*Warrants”, and collectively with the Term Loan, the “Facility*”). The Warrants may be exercised at any time prior to the date that is ten years from the closing date. The terms and structure of the Warrants, including the put rights, to be mutually acceptable. The Warrants shall include customary minority equity holder rights including, but not limited to, the following: tag-along registration rights, weighted average anti-dilution protection, preemptive rights, co-sale rights, information and board observer rights, restrictions on affiliate transactions and changes to organizational and equity holder documents that would disproportionally adversely affect Investor or its rights and obligations.

*Intercreditor:*		Intercreditor Agreement with the Senior Lenders to be on terms and conditions mutually acceptable (the “*Intercreditor Agreement*”).

*Optional Prepayment:*		Subject to the terms of the Intercreditor Agreement, the Term Loan may be prepaid, upon 7 business days prior written notice, in Borrower’s sole discretion so long as (including after an Event of Default) Borrower pays to Agent (for the benefit of Lenders) the applicable prepayment premium set forth on Annex A-I hereto.

*Mandatory Prepayments:*		At the option of the Agent the Term Loan shall be required to be prepaid as follows, (in each case, (a) less any such amounts used to prepay and permanently reduce the Senior Debt while the Senior Debt is outstanding and required under the Senior Debt documents at closing and (b) subject to certain minimum thresholds, baskets, exceptions, and reinvestment rights that are consistent with those set forth in the Senior Debt documentation and subject to, in certain circumstances to be agreed, a cushion to the minimum thresholds, baskets, exceptions, and reinvestment rights set forth in the Senior Debt documentation, and (c) otherwise on terms and conditions that are consistent with the mandatory prepayment provisions of the Senior Debt documentation) (for purposes hereof “*Senior Debt*” shall be defined as the $50,000,000 term loan and

$15,000,000 revolver commitment provided by Wells Fargo Foothill, LLC, CapitalSource Bank and certain other lenders party thereto (the “Senior Lenders”), the terms and conditions of which (including but not limited to terms and conditions relating to the interest rate, fees, maturity, subordination, covenants, events of default and remedies) shall be reasonably satisfactory to the Agent):

(a) commencing with the fiscal year ending December 31, 2010, in an amount equal to the result of (i) 50% of the consolidated excess cash flow of Parent and its Subsidiaries for each fiscal year, minus (ii) the aggregate amount of all voluntary prepayments of (x) the Senior Debt (to the extent there is a corresponding permanent reduction thereof) and (y) the Term Loan during such fiscal year; provided, that the foregoing percentage shall be reduced to 25% with respect to any fiscal year of the Company (other than the fiscal year of the Company ending December 31, 2010) in which the Company’s senior leverage ratio for such fiscal year is less than 1.00:1.00. (The definition of “excess cash flow” will be defined in a manner mutually reasonably acceptable to the Company and the Agent, but it will be based on EBITDA (the definition of which shall be mutually reasonably acceptable to the Company and the Agent) and changes in Working Capital (the definition of which shall be mutually reasonably acceptable to the Company and the Agent) minus cash interest expense, principal payments and loan servicing fees, restructuring costs in an amount not to exceed $18,000,000 and only if incurred during the period from the closing date through December 31, 2010, taxes, net capital expenditures, and management fees (as and to the extent permitted)). (The definition of “senior leverage ratio” shall be defined in a manner mutually and reasonably acceptable to the Company and the Agent and consistent with the definition used in the Senior Debt, but it will be based on the result of (x) funded senior indebtedness (which will not include the obligations in respect of the Facility), which shall be measured as of the date of determination, to (y) EBITDA for the relevant fiscal year);

(b) in an amount equal to 100% of the net cash proceeds of asset dispositions (except for dispositions resulting from casualty losses or condemnations and subject to exceptions to the extent mutually agreed upon), provided, however, that such proceeds may be reinvested within a 180 day period (or within a 270 day period if Borrower has entered into a binding contract for reinvestment within 180 days), subject to customary reinvestment provisions;

(c) in an amount equal to 100% of the net cash proceeds of any debt issued by Parent or its subsidiaries (other than permitted debt);

(d) in an amount equal to 50% of the net cash proceeds of any equity issuance by Parent or its subsidiaries (other than equity issuances (the “Subject Stock”) by Parent (i) to Sponsor or Elliott or any of their respective affiliate funds, (ii) to management and other employees pursuant to employee stock or option plans approved by the board of directors of Parent, (iii) to the extent the proceeds are used to finance permitted acquisitions and capital expenditures, and (iv) to any other person that is a shareholder of Parent prior to such issuance of Stock (the “Subject Holder”) so long as the Subject Holder did not acquire any Stock of Parent so as to become a Subject Holder concurrently with, or in contemplation of, the issuance of the Subject Stock to such Subject Holder and so long as no change of control results therefrom); and

(e) in an amount equal to (i) 50% of the net cash proceeds of tax refunds, and (ii) 100% of the net cash proceeds of insurance and casualty receipts (subject to exceptions for (A) customary reinvestment rights in assets used or useful in the business of the Borrower and its subsidiaries, and (B) such other exceptions and reinvestment rights to be mutually agreed upon) and other proceeds from extraordinary events (subject to exceptions for payments of indemnification claims and for proceeds of business interruption insurance)


		received by the Parent or its subsidiaries; provided, however, that such proceeds may be reinvested within a 180 day period (or within a 270 day period if Borrower has entered into a binding contract for reinvestment within 180 days), subject to customary reinvestment provisions. Any mandatory prepayment pursuant to clause (b), (c), or (d) above shall be accompanied by the applicable prepayment premium set forth on Annex A-I hereto.

*Use of Proceeds:*		To (i) fund certain fees and expenses associated with the Facility and the Transaction, and (ii) finance the ongoing general corporate needs of Borrower. In addition, a portion of the proceeds will be used to finance a portion of the consideration payable in connection with the consummation of the Acquisition.

*Interest Rates and Fees:*		As set forth on Annex A-I and Annex A-II.

*Term:*		Six months following the maturity date of the Senior Debt and, in any event, not to exceed 5.0 years from the closing date (“*Maturity Date*”).

*Collateral:*		A second priority perfected security interest (a) in substantially all of the Loan Parties’ now owned or hereafter acquired property and assets (other than leasehold interests in real property) and all proceeds and products thereof, subject to permitted liens (to be mutually agreeable to the Agent and Company), including, notwithstanding anything in the Commitment Letter or this Term Sheet to the contrary and without limitation and without regard to whether the owner thereof is a Loan Party, substantially all of the intellectual property that is material to the business of Parent and/or its subsidiaries, and (b) in 100% of the capital stock of (or other ownership interests in) each Loan Party (other than Parent) and all proceeds and products thereof; provided that only 65% of the stock of (or other ownership interests in) CFCs will be required to be pledged if the pledge of a greater percentage could reasonably be expected to (i) result in adverse tax consequences to Parent and its subsidiaries, (ii) result in costs to Parent and its subsidiaries that are disproportionately large in relation to the benefit to Lenders, as determined by the Agent in its reasonable discretion, or (iii) be prevented or significantly impaired by foreign laws or regulations.


*Representations and Warranties:*		The credit agreement governing the Facility will be limited to the following representations and warranties (provided additional representations and warranties may be required at the reasonable judgment of the Agent as a result of Agent’s legal and business due diligence) with respect to the Loan Parties and their subsidiaries as are usual and customary for financings of this type (certain of which will be subject to materiality thresholds, baskets and customary exceptions and qualifications to be mutually agreed upon, and which will provide, in certain circumstances to be agreed, a cushion to the baskets governing the Senior Debt): due organization and qualification; subsidiaries; due authorization; no conflict; governmental consents; binding obligations; perfected liens; title to assets; no encumbrances; jurisdiction of organization; location of chief executive office; organizational identification number; commercial tort claims; litigation; compliance with laws; no material adverse change; fraudulent transfer; employee benefits; environmental condition; intellectual property; leases; deposit accounts and securities accounts; complete disclosure; material contracts; Patriot Act and OFAC; indebtedness; payment of taxes; margin stock; governmental regulation; Parent as holding company; government receivables (assignment of claims), and acquisition documents.

*Affirmative Covenants:*		The credit agreement governing the Facility will be limited to the following affirmative covenants (certain of which will be subject to materiality thresholds, baskets and customary exceptions and qualifications to be mutually agreed upon, and which will provide, in certain circumstances to be agreed, a cushion to the baskets governing the Senior Debt) applicable to the Loan Parties and their subsidiaries as are usual and customary for financings of this type (provided additional affirmative covenants may be required at the reasonable judgment of the Agent as a result of Agent’s legal and business due diligence) financial statements (including monthly and quarterly financial statements, annual audited financial statements, and projections), reports, and certificates; collateral reporting; existence;


		maintenance of properties; taxes; insurance; inspection (by Agent or its representatives or agents); compliance with laws; environmental; disclosure updates; formation of subsidiaries; further assurances; lender meetings; material contracts; registration of intellectual property; protection of intellectual property; preservation and maintenance of intellectual property; source code escrow (on a post close basis); employee benefits; government receivables (assignment of claims); the filing or registration of any documents as required to perfect the Agent’s security interest in the Collateral.

*Negative Covenants:*		The credit agreement governing the Facility will be limited to the following negative covenants (certain of which will be subject to materiality thresholds, baskets and customary exceptions and qualifications to be mutually agreed upon, and which will provide, in certain circumstances to be agreed, a cushion to the baskets governing the Senior Debt) applicable to the Loan Parties and their subsidiaries as are usual and customary for financings of this type provided additional negative covenants may be required at the reasonable judgment of the Agent as a result of Agent’s legal and business due diligence) indebtedness; liens; fundamental changes (including organizational changes); disposal of assets; change of name; nature of business; prepayments and amendments; change of control; distributions (other than annual distributions of management fees to Sponsor and Elliott in an aggregate amount not to exceed $1,000,000 so long as (a) no event of default has occurred and is continuing, (b) excess availability plus qualified cash is at least an amount to be mutually agreed upon after taking into account all such payments to be made on any date, provided that such amount shall be at an agreed upon cushion to any such limitation contained in the Senior Debt, and (c) the payment of such management fees is subordinated to the obligations under the Facility pursuant to a subordination agreement, which shall be in form and substance reasonably satisfactory to the Agent); accounting methods; investments (other than permitted acquisitions); transactions with affiliates; use of proceeds; Parent as holding company; limitations on cash in foreign jurisdictions acceptable to the Agent; restrictions on transferring cash from domestic to foreign Loan Parties and their subsidiaries; anti-layering provisions; and no acquisition of Senior Debt by Borrower, Sponsor, Elliot, nor their affiliates.


*Financial Covenants:*		Parent, on a consolidated basis, shall be required to maintain a minimum fixed charge coverage ratio, a maximum senior leverage ratio, a maximum total leverage ratio, and a minimum level of recurring maintenance revenue, and will be subject to a limitation on annual capital expenditures. The financial covenants will be set at levels which include cushions of 10 - 15% off of the covenants governing the Senior Debt at closing.

*Events of Default:*		The credit agreement governing the Facility will include such events of default (certain of which will be subject to materiality thresholds, exceptions and grace periods to be mutually agreed upon and which will provide, in certain circumstances to be agreed, a cushion to the baskets governing the Senior Debt) applicable to the Loan Parties and their subsidiaries as are usual and customary for the Agent’s financings of this type, including: non-payment of obligations (other than the Senior Debt except as provided below); non-performance of covenants and obligations; material judgments; bankruptcy or insolvency; any restrainment against the conduct of all or a material portion of business affairs; payment default (following the passage of a cure period to be agreed upon beyond what is provided in the Senior Debt documents without waiver or cure of such payment default) with respect to required principal or interest payments under the Senior Debt, or acceleration of the Senior Debt; default on other material debt (including hedging agreements but not including the Senior Debt except as provided above); breach of any representation or warranty; limitation or termination of any guarantee with respect to the Facility; impairment of security; employee benefits; and actual or asserted invalidity or unenforceability of any Facility documentation or liens securing obligations under the Facility documentation.

*Conditions Precedent to Closing:*		Customary for the Lenders’ loans of this type and those additional deemed appropriate by the Lenders for this transaction, including those conditions set forth on Annex B.


*Assignments; Right of First Offer:*		Each Lender shall be permitted to assign its rights and obligations under the Facility Documents and sell participations in such rights and obligations, or any part thereof in each case, to any person or entity with the consent of Agent (such consent not to be unreasonably withheld, delayed, or conditioned). The Company has a “right of first offer” on the assignment of any Lenders’ rights and obligations under the Facility Documents to any non-BSPI entity, except during an event of default, with the “right of first offer” providing that if a Lender proposes to sell all or a portion of such rights and obligations at a certain price to a non-BSPI entity, it shall first offer such rights and obligations (or portion thereof) to the Company and if the Company does not purchase such rights and obligations (or portion thereof) within three (3) Business Days, such Lender then can sell such rights and obligations (or such portion thereof) to anyone else at that price or a higher price. Notwithstanding the foregoing, if the Company or any of its affiliates purchases any Lenders’ rights and obligations under the Facility, it will not retain any voting rights under the Facility unless it purchases the Facility in cash, in full; provided that if it does purchase the Facility in cash in full it shall enter into a replacement intercreditor agreement acceptable to the Senior Lenders.

*Funding Protection, Taxes, Indemnity and Expenses:*		The Facility will provide customary and appropriate provisions relating to funding protection, taxes, indemnity and expenses and related matters in a form acceptable to the Agent.

*Governing Law and Forum:*		State of New York

*Counsel to Agent:*		Proskauer Rose LLP

Annex B

The availability of the Facility is subject to the satisfaction of each of the following conditions precedent:

(a) Completion of the following: an assignment agreement, in form and substance satisfactory to Agent, in which each subsidiary of the Company that owns any intellectual property relating to any software products of the Company assigns all of its right, title, and interest in all intellectual property relating to any software products of the Subsidiary to the Company (b) Satisfactory negotiation, execution and delivery of Facility Documents customary for transactions of this type duly executed by the Loan Parties (or applicable third parties as the case may be) including a credit agreement, security agreements, control agreements, landlord waivers for headquarters location only; provided, however, that the Loan Parties shall only be required to use their best efforts (other than any requirement under law that a fee must be paid to meet the “best efforts” standard) to deliver such landlord waivers, mortgages, pledge agreements, intercreditor agreements and subordination agreements, and complete schedules to each of the foregoing documents, and receipt of other documentation customary for transactions of this type including legal opinions, officers’ certificates, instruments necessary to perfect Agent’s second-priority security interest in the Collateral, and certificates of insurance policies and/or endorsements naming Agent as additional insured or loss payee, as the case may be, all in form and substance reasonably satisfactory to Agent; and no default or event of default under such Facility Documents shall have occurred or be continuing or would result therefrom;

(b) Receipt of evidence of corporate authority and certificates of status (including certified copies of the’ governing documents and material agreements) with respect to each Loan Party issued by the jurisdictions of organization of each Loan Party, all in form and substance reasonably satisfactory to Agent;

(c) Completion of (i) confirmatory Patriot Act searches, OFAC/PEP searches, and customary individual background checks for (A) the Loan Parties’ senior management and key principals and (B) majority controlling Sponsor, in each case, the results which are satisfactory to Agent and (ii) Patriot Act searches, OFAC/PEP searches, and customary individual background checks for individuals that become a member of the senior management or a key principal after the date that the initial searches and background checks were performed, the results of which are satisfactory to the Agent;

(d) The Loan Parties shall have not less than $34,000,000 of total liquidity at closing calculated as the total of (i) the amount of the Revolver (as defined in, and pursuant to, the loan documents governing the Senior Debt) which is unfunded at close; provided that such unfunded amount shall be not less than $7,500,000 plus (ii) cash of the Loan Parties at closing, after giving effect to the initial use of proceeds (including the payment of all fees and expenses); provided that such cash shall be in an amount not less than $26,500,000 (of which $10,000,000 must be cash maintained in deposit accounts of the Company located in the United States);

(e) Receipt of evidence satisfactory to Agent that the Loan Parties have EBITDA of at least $34,000,000 for the 12 month period ending on June 30, 2009;

(f) The following transactions shall have occurred prior to or concurrently with the initial extension of credit under the Facility:

(i) Evidence of a cash equity investment of an amount sufficient for Newco to pay the purchase price for the Acquisition, after giving effect to the aggregate amount of (x) the Facility plus (y) the Senior Debt plus (z) the amount of the Company’s cash that will be used to pay the purchase price, and the amount of such cash equity investment shall, in any event, be at least $186,000,000 (assuming a price per share of the Company’s common stock of at least $8.40) by parties reasonably satisfactory to the Agent and on terms reasonably satisfactory to the Agent, of which $106,000,000 (assuming a price per share of the Company’s common stock of at least $8.40) must be contributed in cash by Sponsor on terms reasonably satisfactory to the Agent;

(ii) The Acquisition shall be consummated in accordance with all applicable requirements of law and shall have been approved by the Company’s board of directors and (if necessary) shareholders;

(iii) The definitive agreement relative to the Acquisition shall be substantially in the form of the Merger Agreement and all other all documentation associated with the Acquisition collectively, the “Acquisition Documentation”) shall be in form and substance reasonably satisfactory to the Agent or subject to subsequent amendments or modifications approved by or consented to by the Agent in its reasonable discretion;

(iv) The Acquisition shall be completed on the closing date in accordance with the terms and conditions of the Acquisition Documentation and no such terms or conditions (other than any immaterial terms or conditions) shall have been waived other than with the consent of the Agent; and Agent shall have received a certificate of Borrower executed by an authorized officer of Borrower certifying on behalf of Borrower as to the solvency of Borrower on a consolidated basis after giving effect to the Acquisition;

(v) (A) Evidence of receipt by Borrower of the proceeds of the Senior Debt (consisting of the $50,000,000 cash proceeds of the term loan plus the funded and unfunded amounts of the $15,000,000 revolver commitment as provided in clause (d) of this Annex B above), the terms and conditions of which (including but not limited to terms and conditions relating to the interest rate, fees, maturity, subordination, covenants, events of default and remedies) shall be reasonably satisfactory to the Agent and (B) delivery of the Intercreditor Agreement duly executed by the Senior Lenders (or the agent under such facility) with respect to the Senior Debt, which shall be in form and substance satisfactory to the Agent;

(g) Receipt of all governmental and third party approvals (including shareholder approvals, Hart-Scott-Rodino clearance and other consents) necessary or, in the reasonable opinion of the Agent, advisable in connection with the Transaction, which shall all be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the Transaction.

(h) Completion of (i) UCC, tax, judgment and intellectual property searches against each of the Loan Parties, the results of which are satisfactory to the Agent (provided if Agent fails

to notify the Sponsor in writing on or before October 5, 2009 at 5:00 p.m. (PST) that it is satisfied with such searches, the Lenders shall no longer be entitled to Lender Exclusivity, the Lender Break-Up Fee and the BSPI Termination Fee (as each is defined in Annex A-II)) and (ii) any related payoff letters and termination statements and releases in connection with the foregoing;

(i) Completion of Agent’s business and legal due diligence, the results of which are satisfactory to Agent (provided if Agent fails to notify the Sponsor in writing on or before October 5, 2009 at 5:00 p.m. (PST) that it is satisfied with its business and legal due diligence, the Lenders shall no longer be entitled to Lender Exclusivity, the Lender Break-Up Fee and the BSPI Termination Fee (as each is defined in Annex A-II)); and

(j) Payment of Agent’s and Lenders’ fees and expenses (including legal fees and expenses).

EX-99.21 6 dex9921.htm AMENDED AND RESTATED AGREEMENT Amended and Restated Agreement

Exhibit 99.21

EXECUTION COPY

AMENDED AND RESTATED AGREEMENT

AMENDED AND RESTATED AGREEMENT dated as of October 2, 2009 (this “Agreement”) between Maximus Holdings Inc., a Delaware corporation (“Parent”), STG III, L.P., a Delaware limited partnership (“STG III”), STG III-A, L.P., a Delaware limited partnership (“STG III-A” and, together with STG III, the “STG Parties”), Elliott Associates, L.P., a Delaware limited partnership (“Elliott”), and Elliott International, L.P., a Cayman Islands limited partnership (“Elliott International” and, together with Elliott, the “Elliott Parties”).

RECITALS

WHEREAS, this Agreement is meant to supersede and replace the Agreement by and between Parent, the STG Parties and the Elliott Parties dated as of July 7, 2009 relating to the subject matter hereof (“Prior Termination Fee Agreement”).

WHEREAS, reference is hereby made to that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”) among MSC.Software Corporation (the “Company”), Parent, and Maximus Inc.

WHEREAS, capitalized terms used herein and not defined have the meanings specified in the Merger Agreement.

WHEREAS, pursuant to (a) Section 11.04(c) of the Merger Agreement, Parent may pay Company $40,000,000 (the “Parent Termination Fee”) and (b) Section 11.04(d) of the Merger Agreement, Parent may pay certain costs and expenses incurred by Company and interest thereon (such costs and expenses, together with any accrued interest thereon, the “Company Fees and Expenses”).

WHEREAS, pursuant to that certain Limited Guarantee dated as of the date hereof (the “Limited Guarantee”) by STG III and STG III-A in favor of Company, STG III and STG III-A have, severally and not jointly, guaranteed their ratable portion of Parent’s obligation to pay the Parent Termination Fee to Company under Section 11.04(c) of the Merger Agreement and the Company Fees and Expenses to Company under Section 11.04(d) of the Merger Agreement.

WHEREAS, Elliott and Elliott International have agreed, severally and not jointly, that they will pay an aggregate amount equal to their respective Pro Rata Portions (as defined below) of the Parent Termination Fee and the Company Fees and Expenses to (a) Parent in the event Parent elects to pay such amounts pursuant to the Merger Agreement and (b) STG III and STG III-A in the event STG III and STG III-A elect to pay such amounts pursuant to the Limited Guarantee.

WHEREAS, the “Pro Rata Portion” for Elliott shall be 14.4%, and the “Pro Rata Portion” for Elliott International shall be 21.5%.

WHEREAS, pursuant to Section 11.04(b) of the Merger Agreement, the Company may pay Parent $13,000,000 (the “Termination Fee”).

WHEREAS, in the event the Company elects to pay the Termination Fee pursuant to the Merger Agreement, Parent has agreed that it will pay to Manchester Securities Corp., a New York corporation and a wholly-owned subsidiary of Elliott (“Manchester”), a portion of such amount as set forth in Section 1(c) below.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Prior Termination Fee Agreement is amended and restated to read as follows:

1. Agreement. (a) Elliott and Elliott International each, severally and not jointly, agrees to pay to Parent (or, if STG III and STG III-A pay the Parent Termination Fee and/or Company Fees and Expenses under the Limited Guarantee, to STG III and STG III-A), promptly following receipt of notice from Parent (or, if applicable, by STG III and STG III-A) that Parent (or, if applicable, STG III and STG III-A), in its (or their) sole discretion, has elected to pay Company the Parent Termination Fee and/or the Company Fees and Expenses under the Merger Agreement (together with reasonable documentation of such election to make such payments), (i) $5,742,222 and $8,613,333 with respect to Parent’s (or, if applicable, STG III’s and STG III-A’s) payment of the Parent Termination Fee, respectively, such amounts representing Elliott’s and Elliott International’s respective Pro Rata Portions of the Parent Termination Fee and (ii) its Pro Rata Portion of the Company Fees and Expenses with respect to the payment of same by Company (or, if applicable, STG III and STG III-A), in the case of each of clauses (i) and (ii) above, to the account (or accounts) designated by written notice of Parent (or, if applicable, STG III and STG III-A). If the Elliott Parties pay any amounts to Parent (or, if applicable, STG III and/or STG III-A) pursuant to this Section 1, then (i) Parent (or, if applicable, of STG III and STG III-A) shall promptly pay such amounts in respect of the Parent Termination Fee and/or Company Fees and Expenses, as applicable and (ii) Parent (or, if applicable, STG III and STG III-A) shall concurrently pay its or their respective portions of the Parent Termination Fee and/or Company Fees and Expenses and, if the requirements of clause (i) or (ii) are not so satisfied, such amounts so paid by the Elliott Parties shall be promptly refunded to the Elliott Parties. Notwithstanding the foregoing, the Elliott Parties shall have no obligation to reimburse Parent, STG III or STG III-A with respect to any Company Fees and Expenses resulting from a Willful Breach of Section 11.04 of the Merger Agreement by Parent. There shall be deemed to be a “Willful Breach” by Parent of Section 11.04 of the Merger Agreement if (i) Parent shall have materially and willfully breached Section 11.04 and (ii) Parent shall have had knowledge (as such term is used in the Merger Agreement), at the time of Parent’s breach of Section 11.04, that Parent was breaching Section 11.04; provided, however, a Willful Breach shall not have occurred to the extent Parent’s breach of Section 11.04 resulted from the Elliott Parties breach of its obligations hereunder.

(b) In the event Company reimburses any of Parent, STG III or STG III-A for any amounts paid by such parties pursuant to any of Sections 11.04(c) or 11.04(d) of the Merger Agreement or the Limited Guarantee (such amount received by each such party being, the “Reimbursed Amount”), as applicable, each of Parent, STG III and STG III-A shall, promptly following receipt of such payment, pay to each of Elliott and Elliott International its respective Pro Rata Portion of the Reimbursed Amount so received.

(c) Parent agrees to pay to Manchester, promptly following the payment by the Company of the Termination Fee, an amount equal to: (i) any expenses (the “Elliot Expenses”) incurred by Elliott and its Affiliates (other than the Company) after April 10, 2009 in connection with the acquisition of the Company as contemplated by the Merger Agreement and the related arrangements among the Elliott Parties and the STG Parties (the “Transaction”) plus (ii) the Elliott Termination Payment Remainder. For the purposes herein, the “Elliott Termination Payment Remainder” shall mean: (x) .359 multiplied by (y) (i) $13,000,000 minus (ii) any expenses incurred by the Parent and its Affiliates (other than the Company) in connection with the Transaction (the “Parent Expenses,” and together with the Elliot Expenses, the “Transaction Expenses”) minus (iii) the Elliot Expenses minus (iv) to the extent payable, the portion of the Termination Fee payable by Parent to Wells Fargo Foothill, LLC and CapitalSource Bank (which for the avoidance of doubt shall equal (A) 0.10 multiplied by (B) (1) the Termination Fee minus (2) the Transaction Expenses) minus (v) to the extent payable, the portion of the Termination Fee payable by Parent to Barclays Structured Principal Investing Fund, L.P.(which for the avoidance of doubt shall equal (A) 0.075 multiplied by (B) (1) the Termination Fee minus (2) the Transaction Expenses).

2. Third Party Beneficiaries. Manchester shall be deemed to be a third-party beneficiary of this Agreement. Nothing set forth in this Agreement shall affect or be construed to confer or give any Person other than Manchester, the Elliott Parties and the STG Parties (including any Person acting in a representative capacity) any rights or remedies against any Person.

3. Entire Agreement; Amendments. This Agreement sets forth the entire agreement between the parties with respect to the matters addressed herein, supersedes all prior communications, written or oral, with respect hereto, and may be amended only by a writing signed by each party hereto. The parties hereto acknowledge and agree that the Prior Termination Fee Agreement has been superseded by the terms hereof.

4. Notices. All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed given if delivered personally, facsimiled (which is confirmed) or sent by overnight courier (providing proof of delivery) to the parties at the following addresses:

if to each of Elliott and Elliott International, to it at:

712 Fifth Avenue, 36th Floor

New York, New York 10019

Attention: Jesse Cohn

Facsimile No.: (212) 478-2871

With a copy to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, New York 10019-6064

Attention: Robert B. Schumer

Steven J. Williams

Facsimile No.: (212) 757-3990

If to Parent, to it at:

Maximus Holdings Inc.

c/o Symphony Technology Group

2475 Hanover Street

Palo Alto, CA 94304

Attention: Chief Financial Officer

Facsimile No.: (415) 358-8835

With a copy to:

Shearman & Sterling LLP

525 Market Street

San Francisco, California 94105

Attention: Steve L. Camahort

Facsimile No.: (415) 616-1199

If to each of STG III and STG III-A, to it at:

STG III, L.P. and STG III-A, L.P.

c/o Symphony Technology Group

2475 Hanover Street

Palo Alto, CA 94304

Attention: Chief Financial Officer

Facsimile No.: (415) 358-8835

With a copy to:

Shearman & Sterling LLP

525 Market Street

San Francisco, California 94105

Attention: Steve L. Camahort

Facsimile No.: (415) 616-1199

or such other address or facsimile number as such party may hereafter specify by like notice to the other party hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 P.M. in the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt.

5. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts executed in and to be performed entirely within that State.

6. Consent to Jurisdiction. All actions and proceedings arising out of or relating to this Agreement or any of the transactions contemplated hereby shall be heard and determined in the Delaware Court of Chancery or, if subject matter jurisdiction in the such court is not available, in the United States District Court for the District of Delaware, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding. The consent to jurisdiction set forth in this paragraph shall not constitute general consent to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto. The parties hereto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

7. Waiver of Jury Trial. Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby (each, a “Proceeding”). Each party to this Agreement certifies and acknowledges that (a) no Representative of any other party has represented, expressly or otherwise, that such other party would not seek to enforce the foregoing waiver in the event of a Proceeding, (b) such party has considered the implications of this waiver, (c) such party makes this waiver voluntarily, and (d) such party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 7.

8. Termination. The obligations of the Elliott Parties under this Agreement shall terminate upon the earliest to occur of (i) the Elliott Parties’ payment in full of the amount set forth in Section 1 hereto, (ii) the Effective Time, (iii) the termination of the Merger Agreement in accordance with its terms (other than a termination on or after the End Date by the Company pursuant to Section 10.01(b)(i) or Section 10.01(d)(ii) of the Merger Agreement (a “Potential Payment Termination”), (iv) in the event of a Potential Payment Termination, the earliest to occur of (A) if a claim for payment of any Obligation (as defined in the Limited Guarantee) has been made to Parent and Merger Sub or the STG Parties by a Guaranteed Party (as defined in the Limited Guarantee), then the issuance of a final non-appealable judicial order, settlement tantamount thereto, to the effect that none of Parent, Merger Sub or the STG Parties are obligated to make any payment with respect to the Obligations, and (B) the 181st day following a Potential Payment Termination if the Guaranteed Party has not presented a claim for payment of any Obligation to Parent and Merger Sub or the STG Parties during the 180-day period immediately following such Potential Payment Termination; and (v) the delivery of written notice of termination by the Elliott Parties to the STG Parties, following any amendment to the Merger Agreement effected without the prior written consent of the Elliott Parties which would reduce or change the form of consideration to be paid in the Merger, increase the amount of the Parent Termination Fee or change in a manner adverse to Parent or the Elliott Parties the circumstances under which the Parent Termination Fee is payable.

9. Execution. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be

deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.

[The remainder of this page is intentionally left blank.]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.


MAXIMUS HOLDINGS INC.

By:		/S/ WILLIAM F. CHISHOLM
Name:		William F. Chisholm
Title:		President

STG III, L.P.
STG III-A, L.P.

By:		STG III GP, L.P., their General Partner

By:		STG UGP, LLC, its General Partners

By:		/S/ WILLIAM F. CHISHOLM
Name:		William F. Chisholm
Title:		Managing Director

[Signature Page to Amended and Restated Termination Fee Agreement]


ELLIOTT ASSOCIATES, L.P.

By:		Elliott Capital Advisors, L.P., its General Partner

By:		Braxton Associates, Inc., its General Partner

By:		/S/ ELLIOT GREENBERG
Name:		Elliot Greenberg
Title:		Vice President

ELLIOTT INTERNATIONAL, L.P.

By:		Elliott international Capital Advisors Inc., as Attorney-in-Fact

By:		/S/ ELLIOT GREENBERG
Name:		Elliot Greenberg
Title:		Vice President

[Signature Page to Amended and Restated Termination Fee Agreement]

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