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EXHIBIT 10.52 LETTER OF CREDIT CASH COLLATERAL AGREEMENT

Cash Collateral Agreement

EXHIBIT 10.52 LETTER OF CREDIT CASH COLLATERAL AGREEMENT | Document Parties: BEARINGPOINT INC | BANK OF AMERICA, N.A.,  |  JPMORGAN CHASE BANK, N.A., You are currently viewing:
This Cash Collateral Agreement involves

BEARINGPOINT INC | BANK OF AMERICA, N.A., | JPMORGAN CHASE BANK, N.A.,

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Title: EXHIBIT 10.52 LETTER OF CREDIT CASH COLLATERAL AGREEMENT
Governing Law: New York     Date: 1/31/2006
Industry: Business Services    

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Exhibit 10.52

 

Execution Version

 

LETTER OF CREDIT CASH COLLATERAL AGREEMENT

 

THIS LETTER OF CREDIT CASH COLLATERAL AGREEMENT (the “ Agreement ”) is made and entered into as of April 26, 2005 by and among BEARINGPOINT, INC., a Delaware corporation (the “ Borrower ”), the Administrative Agent (defined below), and each of BANK OF AMERICA, N.A., a national banking association organized and existing under the laws of the United States (“ BOA ”), JPMORGAN CHASE BANK, N.A., a national banking association organized and existing under the laws of the United States (“ JPMCB ” and, together with BOA the “ Issuing Banks ” and individually an “ Issuing Bank ”), and BOA as Depositary (the “ Depositary ”) of the LC Account (defined below). All capitalized terms used but not otherwise defined herein shall have the respective meanings assigned thereto in the Credit Agreement, defined below, notwithstanding the occurrence of the Facility Termination Date.

 

W I T N E S S E T H:

 

WHEREAS , the Borrower, Bank of America, N.A. as Administrative Agent (the “ Administrative Agent ”) and the Lenders party thereto from time to time have entered into a Credit Agreement dated as of December 17, 2004, as amended by that certain Amendment No. 1 to Credit Agreement dated as of March 17, 2005, as further amended by that certain Amendment No. 2 to Credit Agreement dated as of March 24, 2005 (the “ Credit Agreement ”); and

 

WHEREAS , there are currently outstanding under the Credit Agreement the Letters of Credit listed on Schedule I hereto, having an aggregate undrawn Dollar Equivalent amount (as of the last Revaluation Date) of $87,697,828.54 (the “ Letters of Credit ”; the aggregate undrawn Dollar Equivalent amount of the Letters of Credit from time to time is referred to as the “ Aggregate Available Amount ”); and

 

WHEREAS , the Borrower has indicated its intention to terminate the Aggregate Commitments and to cause the Facility Termination Date to occur on April 26, 2005, and has requested in connection therewith that the Administrative Agent and the Issuing Banks provide for the continuing effectiveness and collateralization of the Letters of Credit, and the continuation and modification of certain of the other terms of the Credit Agreement, the Security Agreement dated as of December 23, 2004 (as amended on the date hereof and as from time to time amended, amended and restated, supplemented, modified or replaced, the “ Security Agreement ”), and the Guaranty Agreement dated as of December 23, 2004 (as amended on the date hereof and as from time to time amended, amended and restated, supplemented, modified or replaced, the “ Guaranty ”) in connection therewith notwithstanding the occurrence of the Facility Termination Date, and the Administrative Agent and the Issuing Banks are willing to provide for the same in consideration of and on the terms and conditions contained herein and in the Security Agreement and the Guaranty, as the same is or may hereafter be amended; and

 

WHEREAS , in connection with the termination of the Aggregate Commitments and the occurrence of the Facility Termination Date, the Issuing Banks have required the Borrower to


deliver immediately available funds, and agree to make certain future such deliveries, all as herein provided, to the Administrative Agent for deposit into a non-interest bearing cash collateral deposit account under the sole and exclusive control of, and in the name of, the Administrative Agent on behalf of itself and the Issuing Banks (the “ LC Account ”; fully collected funds on deposit from time to time in the LC Account are referred to as the “ LC Cash Collateral ”), as collateral security for (x) the repayment of any future drawings under the Letters of Credit, (y) the payment of Letter of Credit Fees and certain other fees and charges as herein provided, and (z) the payment and satisfaction of all other obligations and liabilities of the Borrower now owing or hereafter arising in favor of the Administrative Agent or either of the Issuing Banks in connection with the Letters of Credit or other provisions of the Loan Documents that survive (or continue notwithstanding the occurrence of) the Facility Termination Date;

 

NOW, THEREFORE , in consideration of the foregoing and the agreements, provisions and covenants contained herein, the parties hereto agree as follows:

 

1. LC Account; Cash Collateralization of Letter of Credit .

 

(a) Account Creation and Control. The Administrative Agent has established with the Depositary, and the Depositary shall maintain until instructed to the contrary by the Administrative Agent, the LC Account for the benefit of the Administrative Agent and the Issuing Banks and under the sole dominion and control of the Administrative Agent. The LC Account shall be a non-interest bearing cash collateral deposit account designated as BearingPoint, Inc. (Cash Collateral Account), Account No.                         . Without limiting the foregoing, the parties hereto agree that the Depositary will comply with all instructions originated by the Administrative Agent directing the disposition of funds now or hereafter in the LC Account without further consent of the Borrower or any other Person, and that the Depositary will not honor any instructions with respect to the LC Account other than those of the Administrative Agent.

 

Payment into the LC Account hereunder should be made to Bank of America, N.A. by a wire transfer of immediately available funds directed as follows:

 

 

 

 

 

 

Bank of America, N.A

 

 

Concord, CA

 

 

ABA# 121000358

 

 

Account No.:                     

 

(b) Initial Deposit and Additional Funding. As of the date hereof, LC Cash Collateral in the initial amount of 107.5% of the Aggregate Available Amount as of the date hereof has been deposited into the LC Account in accordance with this Agreement. Not later than the tenth (10 th ) Business Day of each month, the Administrative Agent shall select a Revaluation Date and thereupon determine whether the amount of LC Cash Collateral is less than 107.5% of the then Aggregate Available Amount, giving effect, inter alia, to any changes in the Dollar Equivalent determination thereof resulting from such Revaluation Date (the “ LC Cash Collateral Threshold ”), and in the event any such shortfall shall occur, the Administrative Agent shall give prompt written notice thereof

 

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(in accordance with the notice provisions contained in the Credit Agreement, which provisions are incorporated by reference herein as provided below) and the Borrower, within one (1) Business Day of receipt of such notice, shall deliver to the Administrative Agent immediately available funds in an amount not less than such shortfall, which the Administrative Agent shall cause to be deposited into the LC Account as additional LC Cash Collateral.

 

(c) Payment of Letter of Credit Fee and Fronting Fees. Notwithstanding anything contained in the Credit Agreement to the contrary, and notwithstanding the occurrence of the Facility Termination Date, the Letter of Credit Fee in respect of each Letter of Credit provided for in Section 2.03(i) of the Credit Agreement and all the fees and charges payable under Section 2.03(j) of the Credit Agreement shall each be and remain payable hereunder in respect of the outstanding Letters of Credit, except that (i) the “Applicable Rate” shall (subject to the last sentence of this subsection (c) ) be (w) from and including the date hereof through May 25, 2005, 1.75%, (x) 2.50% from and including May 26, 2005 through July 25, 2005, (y) 3.50% from and including July 26, 2005 through October 25, 2005, and (z) 4.50% at all times thereafter, (ii) the Letter of Credit Fees and fronting and other fees and charges shall be due and payable in full in arrears (x) on the last Business Day of each calendar month and (y) on the date when the Aggregate Available Amount shall have been reduced to $0 and no unpaid reimbursement obligations in respect of Letters of Credit shall exist, and (iii) not later than the third (3 rd ) Business Day after each date that Letter of Credit Fees and fronting and other fees and charges are due and payable hereunder, the Administrative Agent, prior to making any demand on the Borrower for payment of the same, and whether or not advance notice thereof shall have been given to the Borrower, shall withdraw from the LC Account sufficient funds (to the extent then available therein) for the payment of the same and shall promptly distribute such (x) Letter of Credit Fee amounts to the Lenders in accordance with their Applicable Percentages and (y) amount of fronting and other fees and charges as appropriate under Section 2.03(j) of the Credit Agreement; provided that the Administrative Agent shall be under no obligation to withdraw or disburse funds in respect of fees and charges payable under Section 2.03(j) of the Credit Agreement unless the applicable Issuing Bank shall have provided the Administrative Agent with timely notice of the applicable amounts due and owing to it. Such Letter of Credit Fees and fronting and other fees and charges shall continue to be computed in the manner provided in Section 2.10 of the Credit Agreement. In the event the Borrower enters into any other senior credit financing, or is issued a letter of credit, after the date hereof, and incurs or agrees to pay in connection therewith either a drawn spread over the Eurocurrency Rate (or similar LIBOR-based rate) or a fee substantially similar to the Letter of Credit Fee (the “ New Spread ”), then the Applicable Rate, commencing with the effective date of such financing or the issue date of such letter of credit, shall be the greater of (i) such rate as determined in this Section l(c) above and (ii) the New Spread plus 50 basis points.

 

(d) Drawings Under Letters of Credit. Upon a drawing under a Letter of Credit, the Issuing Bank shall give notice thereof (and of the date on which it intends to honor such drawing (the “ Honor Date ”)) to the Administrative Agent and, promptly upon receipt of such notice (and if practicable no later than the Honor Date), the

 

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Administ


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