Exhibit 10.3
AMENDED AND RESTATED PLEDGE
AGREEMENT
THIS AMENDED AND RESTATED PLEDGE
AGREEMENT (this “ Pledge Agreement ”) dated as
of September 29, 2006 is by and among the parties identified
as “Pledgors” on the signature pages hereto and such
other parties as may become Pledgors hereunder after the date
hereof (individually a “ Pledgor ”, and
collectively the “ Pledgors ”) and BANK OF
AMERICA, N.A., as administrative agent (in such capacity, the
“ Administrative Agent ”) for the holders of the
Secured Obligations referenced below.
W I T N E S S E T H
WHEREAS, a $150 million credit
facility has been established in favor of FTI Consulting, Inc., a
Maryland corporation (the “ Borrower ”),
pursuant to the terms of that Credit Agreement (as amended,
modified, supplemented and extended from time to time, the “
Credit Agreement ”) among the Borrower, the Guarantors
identified therein, the Lenders identified therein and Bank of
America, N.A., as Administrative Agent;
WHEREAS, this Pledge Agreement is
required under the terms of the Credit Agreement; and
WHEREAS, this Pledge Agreement is
given in amendment to, restatement of and substitution for the
Amended and Restated Pledge Agreement dated as of November 28,
2003 among the Pledgors and Bank of America, N.A., as
administrative agent.
NOW, THEREFORE, in consideration of
these premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Definitions .
(a) Capitalized terms used and not
otherwise defined herein shall have the meanings provided in the
Credit Agreement.
(b) As used herein, the following
terms shall have the meanings assigned thereto in the Uniform
Commercial Code in effect in the State of North Carolina on the
date hereof: Accession, Financial Asset, Proceeds and
Security.
(c) As used herein, the following
terms shall have the meanings set forth below:
“ Event of Default
” has the meaning provided in Section 8
hereof.
“ Pledged Collateral
” has the meaning provided in Section 2
hereof.
“ Pledged Shares
” has the meaning provided in Section 2
hereof.
“ Secured Obligations
” means, without duplication, (a) all of the Obligations
and (b) all costs and expenses incurred in connection with
enforcement and collection of the Obligations, including Attorney
Costs.
“ UCC ” means the
Uniform Commercial Code.
2. Pledge and Grant of Security
Interest . To secure the prompt payment and performance in full
when due, whether by lapse of time, acceleration, mandatory
prepayment or otherwise, of the Secured Obligations, each Pledgor
hereby grants, pledges and assigns to the Administrative Agent, for
the benefit of the holders of the Secured Obligations, a continuing
security interest in, and a right to set-off against, any and all
right, title and interest of such Pledgor in and to the following,
whether now owned or existing or owned, acquired, or arising
hereafter (collectively, the “ Pledged Collateral
”):
(a) Pledged Shares .
(i) One hundred percent (100%) (or, if less, the full
amount owned by such Pledgor) of the issued and outstanding Capital
Stock owned by such Pledgor of each Domestic Subsidiary set forth
on Schedule 2(a) attached hereto and (ii) sixty-five
percent (65%) (or, if less, the full amount owned by such
Pledgor) of the issued and outstanding shares of Capital Stock
entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) (“ Voting Equity ”)
and one hundred percent (100%) (or, if less, the full amount
owned by such Pledgor) of the issued and outstanding Capital Stock
not entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) (“ Non-Voting Equity
”) owned by such Pledgor of each Foreign Subsidiary set forth
on Schedule 2(a) attached hereto, in each case together with
the certificates (or other agreements or instruments), if any,
representing such Capital Stock, and all options and other rights,
contractual or otherwise, with respect thereto (collectively,
together with the Capital Stock described in Section 2(b) and
2(c) below, the “ Pledged Shares ”), including,
but not limited to, the following:
(A) all shares, securities,
membership interests or other equity interests representing a
dividend on any of the Pledged Shares, or representing a
distribution or return of capital upon or in respect of the Pledged
Shares, or resulting from a stock split, revision, reclassification
or other exchange therefor, and any subscriptions, warrants, rights
or options issued to the holder of, or otherwise in respect of, the
Pledged Shares; and
(B) without affecting the
obligations of the Pledgors under any provision prohibiting such
action hereunder or under the Credit Agreement, in the event of any
consolidation or merger involving the issuer of any Pledged Shares
and in which such issuer is not the surviving entity, all Capital
Stock of the successor entity formed by or resulting from such
consolidation or merger.
(b) Additional Shares .
(i) One hundred percent (100%) (or, if less, the full
amount owned by such Pledgor) of the issued and outstanding Capital
Stock owned by such Pledgor of any Person that hereafter becomes a
Domestic Subsidiary and (ii) sixty-five percent
(65%) (or, if less, the full amount owned by such Pledgor) of
the Voting Equity and one hundred percent (100%) (or, if less,
the full amount owned by such Pledgor) of the Non-Voting Equity
owned by such Pledgor of any Person that hereafter becomes a
Foreign Subsidiary, including, without limitation, the certificates
(or other agreements or instruments) representing such Capital
Stock.
(c) Accessions and Proceeds .
All Accessions and all Proceeds of any and all of the
foregoing.
Without limiting the generality of
the foregoing, it is hereby specifically understood and agreed that
a Pledgor may from time to time hereafter deliver additional
Capital Stock to the Administrative Agent as collateral security
for the Secured Obligations. Upon delivery to the Administrative
Agent, such additional Capital Stock shall be deemed to be part of
the Pledged Collateral of such Pledgor and shall be subject to the
terms of this Pledge Agreement whether or not Schedule 2(a)
is amended to refer to such additional Capital Stock.
3. Security for Secured
Obligations . The security interest created hereby in the
Pledged Collateral of each Pledgor constitutes continuing
collateral security for all of the Secured Obligations.
4. Delivery of the Pledged
Collateral . Each Pledgor hereby agrees that:
(a) Each Pledgor shall deliver to
the Administrative Agent (i) simultaneously with or prior to
the execution and delivery of this Pledge Agreement, all
certificates representing the
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Pledged Shares of such Pledgor and
(ii) promptly upon the receipt thereof by or on behalf of a
Pledgor, all other certificates and instruments constituting
Pledged Collateral of a Pledgor. Prior to delivery to the
Administrative Agent, all such certificates and instruments
constituting Pledged Collateral of a Pledgor shall be held in trust
by such Pledgor for the benefit of the Administrative Agent
pursuant hereto. All such certificates shall be delivered in
suitable form for transfer by delivery or shall be accompanied by
duly executed instruments of transfer or assignment in blank,
substantially in the form provided in Schedule 4(a) attached
hereto.
(b) Additional Securities .
If such Pledgor shall receive by virtue of its being or having been
the owner of any Pledged Collateral, any (i) certificate,
including without limitation, any certificate representing a
dividend or distribution in connection with any increase or
reduction of capital, reclassification, merger, consolidation, sale
of assets, combination of shares or other equity interests, stock
splits, spin-off or split-off, promissory notes or other
instruments; (ii) option or right, whether as an addition to,
substitution for, or an exchange for, any Pledged Collateral or
otherwise; (iii) dividends payable in securities; or
(iv) distributions of securities in connection with a partial
or total liquidation, dissolution or reduction of capital, capital
surplus or paid-in surplus, then such Pledgor shall receive such
certificate, instrument, option, right or distribution in trust for
the benefit of the Administrative Agent, shall segregate it from
such Pledgor’s other property and shall deliver it forthwith
to the Administrative Agent in the exact form received together
with any necessary endorsement and/or appropriate stock power duly
executed in blank, substantially in the form provided in
Schedule 4(a) , to be held by the Administrative Agent as
Pledged Collateral and as further collateral security for the
Secured Obligations.
(c) Financing Statements .
Each Pledgor authorizes the Administrative Agent to file one or
more financing statements (with collateral descriptions broader
and/or less specific than the description of the Collateral
contained herein) disclosing the Administrative Agent’s
security interest in the Pledged Collateral. Each Pledgor agrees to
execute and deliver to the Administrative Agent such financing
statements and other filings as may be reasonably requested by the
Administrative Agent in order to perfect and protect the security
interest created hereby in the Pledged Collateral of such
Pledgor.
5. Representations and
Warranties . Each Pledgor hereby represents and warrants to the
Administrative Agent, for the benefit of the holders of the Secured
Obligations, that so long as any of the Secured Obligations remains
outstanding and until all of the commitments relating thereto have
been terminated:
(a) Authorization of Pledged
Shares . The Pledged Shares are duly authorized and validly
issued, are fully paid and nonassessable and are not subject to the
preemptive rights of any Person.
(b) Title . Each Pledgor has
good and indefeasible title to the Pledged Collateral of such
Pledgor and is the legal and beneficial owner of such Pledged
Collateral free and clear of any Lien, other than Permitted Liens.
There exists no “adverse claim” within the meaning of
Section 8-102 of the UCC with respect to the Pledged Shares of
such Pledgor.
(c) Exercising of Rights .
The exercise by the Administrative Agent of its rights and remedies
hereunder will not violate any law or governmental regulation or
any material contractual restriction binding on or affecting a
Pledgor or any of its property.
(d) Pledgor’s Authority
. No authorization, approval or action by, and no notice or filing
with any Governmental Authority or with the issuer of any Pledged
Stock is required either (i) for the pledge made by a Pledgor
or for the granting of the security interest by a
Pledgor
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pursuant to this Pledge Agreement
(except as have been already obtained) or (ii) for the
exercise by the Administrative Agent or the holders of the Secured
Obligations of their rights and remedies hereunder (except as may
be required by laws affecting the offering and sale of
securities).
(e) Security
Interest/Priority . This Pledge Agreement creates a valid
security interest in favor of the Administrative Agent for the
benefit of the holders of the Secured Obligations, in the Pledged
Collateral. The taking of possession by the Administrative Agent of
the certificates representing the Pledged Shares and all other
certificates and instruments constituting Pledged Collateral will
perfect and establish the first priority of the Administrative
Agent’s security interest in the Pledged Shares and, when
properly perfected by filing or registration, in all other Pledged
Collateral represented by such Pledged Shares and instruments
securing the Secured Obligations. Except as set forth in this
Section 5(e), no action is necessary to perfect or otherwise
protect such security interest.
(f) Partnership and Membership
Interests . Except as previously disclosed to the
Administrative Agent, none of the Pledged Shares consisting of
partnership or limited liability company interests (i) is
dealt in or traded on a securities exchange or in a securities
market, (ii) by its terms expressly provides that it is a
security governed by Article 8 of the UCC, (iii) is an
investment company security, (iv) is held in a securities
account or (v) constitutes a Security or a Financial
Asset.
6. Covenants . Each Pledgor
hereby covenants, that so long as any of the Secured Obligations
remains outstanding and until all of the commitments relating
thereto have been terminated, such Pledgor shall:
(a) Books and Records . Mark
its books and records (and shall cause the issuer of the Pledged
Shares of such Pledgor to mark its books and records) to reflect
the security interest granted to the Administrative Agent, for the
benefit of the holders of the Secured Obligations, pursuant to this
Pledge Agreement.
(b) Defense of Title .
Warrant and defend title to and ownership of the Pledged Collateral
of such Pledgor at its own expense against the claims and demands
of all other parties claiming an interest therein, keep the Pledged
Collateral free from all Liens, except for Permitted Liens, and not
sell, exchange, transfer, assign, lease or otherwise dispose of
Pledged Collateral of such Pledgor or any interest therein, except
as permitted under the Credit Agreement and the other Loan
Documents.
(c) Further Assurances .
Promptly execute and deliver at its expense all further instruments
and documents and take all further action that may be necessary and
desirable or that the Administrative Agent may reasonably request
in order to (i) perfect and protect the security interest
created hereby in the Pledged Collateral of such Pledgor
(including, without limitation, any and all action necessary to
satisfy the Administrative Agent that the Administrative Agent has
obtained a first priority perfected security interest in all
Pledged Collateral); (ii) enable the Administrative Agent to
exercise and enforce its rights and remedies hereunder in respect
of the Pledged Collateral of such Pledgor; and (iii) otherwise
effect the purposes of this Pledge Agreement, including, without
limitation and if requested by the Administrative Agent, delivering
to the Administrative Agent irrevocable proxies in respect of the
Pledged Collateral of such Pledgor.
(d) Amendments . Not make or
consent to any amendment or other modification or waiver with
respect to any of the Pledged Collateral of such Pledgor or enter
into any agreement or allow to exist any restriction with respect
to any of the Pledged Collateral of such Pledgor other than
pursuant hereto or as may be permitted under the Credit
Agreement.
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(e) Compliance with Securities
Laws . File all reports and other information now or hereafter
required to be filed by such Pledgor with the United States
Securities and Exchange Commission and any other state, federal or
foreign agency in connection with the ownership of the Pledged
Collateral of such Pledgor.
(f) Issuance or Acquisition of
Capital Stock . Not, without executing and delivering, or
causing to be executed and delivered, to the Administrative Agent
such agreements, documents and instruments as the Administrative
Agent may require, issue or acquire any Capital Stock consisting of
an interest in a partnership or a limited liability company that
(i) is dealt in or traded on a securities exchange or in a
securities market, (ii) by its terms expressly provides that
it is a security governed by Article 8 of the UCC, (iii) is an
investment company security, (iv) is held in a securities
account or (v) constitutes a Security or a Financial
Asset.
7. Advances by Holders of the
Secured Obligations . On failure of any Pledgor to perform any
of the covenants and agreements contained herein, the
Administrative Agent may, at its sole option and in its sole
discretion, perform the same and in so doing may expend such sums
as the Administrative Agent may reasonably deem advisable in the
performance thereof, including, without limitation, the payment of
any insurance premiums, the payment of any taxes, a payment to
obtain a release of a Lien or potential Lien, expenditures made in
defending against any adverse claim and all other expenditures that
the Administrative Agent or the holders of the Secured Obligations
may make for the protection of the security hereof or may be
compelled to make by operation of law. All such sums and amounts so
expended shall be repayable by the Pledgors on a joint and several
basis promptly upon timely notice thereof and demand therefor,
shall constitute additional Secured Obligations and shall bear
interest from the date said amounts are expended at the Default
Rate for Base Rate Loans. No such performance of any covenant or
agreement by the Administrative Agent or the holders of the Secured
Obligations on behalf of any Pledgor, and no such advance or
expenditure therefor, shall relieve the Pledgors of any default
under the terms of this Pledge Agreement, the other Loan Documents
or any other documents relating to the Secured Obligations. The
holders of the Secured Obligations may make any payment hereby
authorized in accordance with any bill, statement or estimate
procured from the appropriate public office or holder of the claim
to be discharged without inquiry into the accuracy of such bill,
statement or estimate or into the validity of any tax assessment,
sale, forfeiture, tax lien, title or claim except to the extent
such payment is being contested in good faith by a Pledgor in
appropriate proceedings and against which adequate reserves are
being maintained in accordance with GAAP.
8. Events of Default . The
occurrence of an event that would constitute an Event of Default
under the Credit Agreement shall be an Event of Default hereunder
(an “ Event of Defaul
