Exhibit 10.11
SECOND AMENDMENT
THIS SECOND AMENDMENT (this "Amendment") dated as of January 24, 2003
to the Credit Agreement referenced below is by and among FTI Consulting, Inc., a
Maryland corporation (the "Borrower"), the Guarantors identified on the
signature pages hereto, the Lenders identified on the signature pages hereto and
Bank of America, N.A., as administrative agent (the "Administrative Agent").
W I T N E S S E T H
WHEREAS, $200 million in credit facilities have been established in
favor of the Borrower pursuant to the terms of that Credit Agreement (as
amended, modified and supplemented from time to time, the "Credit Agreement")
dated as of August 30, 2002 among the Borrower, the Guarantors identified
therein, the Lenders identified therein and the Administrative Agent; and
WHEREAS, the Borrower and the Lenders have agreed to modify the Credit
Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein but not otherwise
defined herein shall have the meanings provided to such terms in the Credit
Agreement.
2. Amendments.
(a) In clause (c) of the definition of "Cash Equivalents" in Section
1.1 of the Credit Agreement, the phrase "or having an auction date" is added
immediately following "maturing".
(b) In the definition of "Cash Equivalents" in Section 1.1 of the
Credit Agreement, the "and" before clause (e) is deleted, clause (e) is amended
to read as set forth below and a new clause (f) is added to read as set forth
below:
(e) Investments, classified in accordance with GAAP as current
assets, in money market mutual funds (as defined by Rule 2(a)-7
of the Investment Company Act of 1940) registered under the
Investment Company Act of 1940, as amended, which are
administered by reputable financial institutions having capital
of at least $500,000,000 and which have the highest credit rating
by any two of S&P, Moody's and Fitch Ratings Services, and
(f) Investments in private placements which (i) seek to
preserve principal, (ii) maintain a high degree of liquidity,
(iii) invest in a diversified group of money market instruments
and other short-term obligations, in each case which have the
highest credit rating by any two of S&P, Moody's and Fitch
Ratings Services, and (iv) generally maintain a dollar-weighted
average portfolio maturity of 90 days or less, although the
average portfolio maturity may extend to 120 days in the event of
material redemption activity.
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(c) The following definition is added to Section 1.1 of the Credit
Agreement to read as follows:
"LWG Disposition" means the sale or other disposition of the
Capital Stock or Property of L.W.G., Inc. and Restortek, Inc.
(d) The parenthetical in clause (a) of Section 8.5(a) of the Credit
Agreement is amended to read as follows:
(except up to 20% of the consideration of the Permitted
Disposition may be deferred purchase price payment obligations of
the purchasers, provided that (i) if the LWG Disposition is
consummated prior to March 31, 2003, then up to 50% of the
consideration for the LWG Disposition may be deferred purchase
price payment obligations of the purchasers and (ii) if any other
Permitted Disposition is consummated prior to March 31, 2003,
then up to 30% of the consideration for such other Permitted
Disposition may be deferred purchase price payment obligations of
the purchasers)
3. Conditions Precedent. This Amendment shall be effective as of the
date hereof upon receipt by the Administrative Agent of counterparts of this
Amendment duly executed by the Borrower, the Guarantors and the Lenders.
4. Representations and Warranties. The Borrower hereby represents
and warrants that (a) it has the requisite corporate power and authority to
execute, deliver and perform this Amendment, (b) it is duly authorized to, and
has been authorized by all necessary corporate action to, execute, deliver and
perform this Amendment and (c) the representations and warranties contained in
Article VI of the Credit Agreement are true and correct in all material respects
on and as of the date hereof as though made on and as of such date (except for
those which expressly relate to an earlier date)
5. No Other Changes. Except as expressly modified hereby, all of the
terms and provisions of the Credit Agreement (including schedules and exhibits
thereto) shall remain in full force and effect.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and it shall not be necessary in making proof of this Amendment to
produce or account for more than one such counterpart.
7. Governing Law. This Amendment shall be deemed to be a contract
made under, and for all purposes shall be construed in accordance with, the laws
of the State of North Carolina.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
BORROWER: FTI CONSULTING, INC.,
a Maryland corporation
By: /s/ Theodore I. Pincus
-----------------------------------------
Name: Theodore I. Pincus
Title: Chief Financial Officer and Executive
Vice President
GUARANTORS: FTI APPLIED SCIENCES (ANNAPOLIS), LLC,
a Maryland limited liability company
FTI CORPORATE RECOVERY, INC.,
a Maryland corporation
FTI LITIGATION CONSULTING, LLC,
a Maryland limited liability company
KAHN CONSULTING, INC.,
a New York corporation
KLICK, KENT & ALLEN, INC.,
a Virginia corporation
L.W.G., INC.,
an Illinois corporation
POLICANO & MANZO, L.L.C.,
a New Jersey limited liability company
RESTORTEK, INC.,
an Illinois corporation
S.E.A., INC.,
an Ohio corporation
TECHNOLOGY & FINANCIAL CONSULTING, INC.,
a Texas corporation
TEKLICON, INC.,
a California corporation
By: /s/ Theodore I. Pincus
-----------------------------------------
Name: Theodore I. Pincus
Title: Treasurer of each of the Guarantors
[Signature Pages Follow]
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ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Michael Brashler
-----------------------------------------
Name: Michael Brashler
Title: Senior Agency Officer
LENDERS: BANK OF AMERICA, N.A.
By: /s/ Michael J. Landini
-----------------------------------------
Name: Michael J. Landini
Title: Senior Vice President
SUNTRUST BANK
By: /s/ Katherine A. Boozer
-----------------------------------------
Name: Katherine A. Boozer
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ William R. Goley
-----------------------------------------
Name: William R. Goley
Title: Director
COMERICA BANK
By: /s/ Jeffrey M. Lafferty
-----------------------------------------
Name: Jeffrey M. Lafferty
Title: Account Officer
NATIONAL CITY BANK
By: /s/ Heather M. McIntyre
-----------------------------------------
Name: Heather M. McIntyre
Title: Corporate Banking Officer
WEBSTER BANK
By: /s/ Matthew Daly
-----------------------------------------
Name: Matthew Daly
Title: Vice President
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