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:
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Bank of
America, N.A
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Concord,
CA
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ABA#
121000358
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Account No.:
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(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