Exhibit 10.2
EXECUTION COPY
SUBSIDIARY GUARANTEE
AGREEMENT
This SUBSIDIARY GUARANTEE AGREEMENT
(this “ Agreement ”), dated as of July 31,
2008, is among ANSYS, INC., a Delaware corporation (the “
Borrower ”), each of the Subsidiary Guarantors party
hereto, any other Person (as defined in the Credit Agreement
referred to below) which may become a Subsidiary Guarantor
hereunder pursuant to a duly executed joinder agreement in the form
attached as Exhibit A hereto (each a “ Subsidiary
Guarantor ” and, collectively, the “ Subsidiary
Guarantors ”) and Bank of America, N.A., as
administrative agent (in such capacity, the “
Administrative Agent ”) for the Lenders (as defined in
the Credit Agreement referred to below).
Reference is made to that certain
Credit Agreement, dated as of July 31, 2008 (as in effect from
time to time, the “ Credit Agreement ”), among
the Borrower, each Lender from time to time party thereto and Bank
of America, N.A., as Administrative Agent. Capitalized terms used
and not defined herein (including, without limitation, the term
“ Obligations ”) are used with the meanings
assigned to such terms in the Credit Agreement.
The Lenders have agreed to make
Loans to the Borrower pursuant to, and upon the terms and subject
to the conditions specified in, the Credit Agreement. Each
Subsidiary Guarantor is a Subsidiary of the Borrower and
acknowledges that it has derived and will derive substantial
benefit from the making of the Loans by the Lenders to the
Borrower. As consideration therefor, and in order to induce the
Lenders to make Loans, each Subsidiary Guarantor is willing to
execute this Agreement.
Accordingly, the parties hereto
agree as follows:
Section 1. Guarantee
. Each Subsidiary Guarantor unconditionally guarantees,
jointly with the other Loan Parties and any other guarantors of the
Obligations under the Credit Agreement and other Loan Documents,
and severally, as a primary obligor and not merely as a surety, the
due and punctual payment and performance of the Obligations. To the
fullest extent permitted by applicable Law, each Subsidiary
Guarantor waives notice of, or any requirement for further assent
to, any agreements or arrangements whatsoever by the Administrative
Agent, the Lenders, and each other Indemnitee or other Persons to
whom any part of the Obligations may be owed (collectively, the
“ Guaranteed Parties ”), with any other Person
pertaining to the Obligations, including agreements and
arrangements for payment, extension, renewal, subordination,
composition, arrangement, discharge or release of the whole or any
part of the Obligations, or for the discharge or surrender of any
or all security, or for the compromise, whether by way of
acceptance of part payment or otherwise, and, to the fullest extent
permitted by applicable law, the same shall in no way impair each
Subsidiary Guarantor’s liability hereunder.
Section 2. Obligations Not
Waived. To the fullest extent permitted by applicable Law, each
Subsidiary Guarantor waives presentment to, demand of payment from
and protest to the Borrower or any other Person of any of the
Obligations, and also waives
notice of acceptance of its guarantee, notice of
protest for nonpayment and all other formalities. To the fullest
extent permitted by applicable law, the guarantee of each
Subsidiary Guarantor hereunder shall not be affected by
(a) the failure of any Person to assert any claim or demand or
to enforce or exercise any right or remedy against the Borrower,
any Subsidiary Guarantor or any other Person under the provisions
of the Credit Agreement, any other Loan Document or otherwise in
connection therewith; (b) any extension, renewal or increase
of or in any of the Obligations; (c) any rescission, waiver,
amendment or modification of, or any release from, any of the terms
or provisions of this Agreement, the Credit Agreement, any other
Loan Document, any guarantee or any other agreement or instrument,
including with respect to any guarantor under the Loan Documents;
(d) the failure or delay of any Guaranteed Party to assert any
claim or demand, or exercise any right or remedy against any Loan
Party, any other guarantor of the Obligations or any other Person;
or (e) any default, failure or delay, willful or otherwise, in
the performance of the Obligations, or by any other act, omission
or delay to do any other act that may or might in any manner or to
any extent vary the risk of any guarantor or that would otherwise
operate as a discharge of any Subsidiary Guarantor as a matter of
law or equity (other than the payment in full in cash of all the
Obligations (other than contingent indemnification obligations for
which no claim has been asserted) and the termination of all
Commitments) or which would impair or eliminate any right of any
Subsidiary Guarantor to subrogation.
Section 3. Guarantee of
Payment. Each Subsidiary Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of
collection, and, to the fullest extent permitted by applicable Law,
waives any right to require that any resort be had by the
Administrative Agent or any other Guaranteed Party to any security
held for payment of the Obligations or to any balance of any
deposit account or credit on the books of the Administrative Agent
or any other Guaranteed Party in favor of the Borrower, any
Subsidiary Guarantor or any other Person.
Section 4. No Discharge or
Diminishment of Guarantee; Payments. (a) To the fullest
extent permitted by applicable law and except as otherwise
expressly provided in this Agreement, the obligations of each
Subsidiary Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason
(other than the indefeasible payment in full in cash of the
Obligations (other than contingent indemnification obligations for
which no claim has been asserted) and the termination of all
Commitments), and shall not be subject to any defense (other than a
defense of payment or performance) or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Obligations or
otherwise.
(b) All payments hereunder shall be
made without setoff or counterclaim and free and clear of and
without deduction for any taxes, levies, imposts, duties, charges,
fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any
jurisdiction or any political subdivision thereof or taxing or
other authority therein, except to the extent expressly provided
otherwise in Article III of the Credit Agreement. If any
Subsidiary Guarantor is compelled by law to make any such deduction
or withholding, it will make such deduction or withholding and
comply with Article III of the Credit Agreement as if the
provisions of such article applicable to the Borrower applied to
such Subsidiary Guarantor. The obligations of the Subsidiary
Guarantor under this Section 4(b) shall survive the
payment in full of the Obligations and termination
hereof.
- 2 -
Section 5. Defenses
Waived. To the fullest extent permitted by applicable Law, each
Subsidiary Guarantor waives any defense based on or arising out of
the unenforceability of the Obligations or any part thereof from
any cause or the cessation from any cause of the liability (other
than the final and indefeasible payment in full in cash of the
Obligations (other than contingent indemnification obligations for
which no claim has been asserted) and the termination of all
Commitments) of the Borrower or any other Person. Subject to the
terms of the other Loan Documents, the Administrative Agent and the
other Indemnified Parties may, at their election, foreclose on any
security held by one or more of them by one or more judicial or
nonjudicial sales, accept an assignment of any such security in
lieu of foreclosure, compromise or adjust any part of the
Obligations, make any other accommodation with any other Loan Party
or any other guarantor or exercise any other right or remedy
available to them against any other Loan Party or any other
guarantor, without affecting or impairing in any way the liability
of each Subsidiary Guarantor hereunder except to the extent the
Obligations (other than contingent indemnification obligations for
which no claim has been asserted) have been fully, finally and
indefeasibly paid in cash. Pursuant to and to the fullest extent
permitted by applicable Law, each Subsidiary Guarantor waives any
defense arising out of any such election even though such election
operates, pursuant to applicable Law, to impair or to extinguish
any right of reimbursement or subrogation or other right or remedy
of each Subsidiary Guarantor against any other Loan Party, any
other guarantor or any security.
Section 6. Agreement to Pay;
Subordination; Waiver of Subrogation; Stay of Acceleration.
(a) In furtherance of the foregoing and not in limitation of
any other right that the Administrative Agent or any other
Indemnified Party has at law or in equity against each Subsidiary
Guarantor by virtue hereof, upon the failure of the Borrower or any
other Loan Party to pay any Obligation when and as the same shall
become due, whether at maturity, by acceleration, or otherwise,
each Subsidiary Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to the Administrative Agent or such other
Indemnified Party as designated thereby in cash an amount equal to
the unpaid principal amount of such Obligations then due, together
with any accrued and unpaid interest on such
Obligations.
(b) Upon payment by each Subsidiary
Guarantor of any sums to the Administrative Agent or any
Indemnified Party as provided above, all rights of each Subsidiary
Guarantor against the Borrower arising as a result thereof by way
of right of subrogation, contribution, reimbursement, indemnity or
otherwise shall in all respects be subordinate and junior in right
of payment to the prior indefeasible payment in full in cash of all
the Obligations and no Subsidiary Guarantor shall exercise any such
rights with respect to any payments it makes hereunder until all of
the Obligations have been paid in full in cash and all Commitments
have been terminated. In addition, any indebtedness or other
obligations of the Borrower or any Subsidiary now or hereafter held
by each Subsidiary Guarantor is hereby subordinated in right of
payment to the prior payment in full of the Obligations. If any
amount shall be paid to any Subsidiary Guarantor on account of
(i) such subrogation, contribution, reimbursement, indemnity
or similar right or (ii) any such indebtedness or other
obligations at any time when any Obligation then due and owing has
not been paid in full in cash, such
- 3 -
amount shall be held in trust for the benefit
of
