Exhibit 10.1
FIRST AMENDMENT
THIS FIRST AMENDMENT (this "Amendment") dated as of September 20, 2002
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;
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) The definition of "Required Lenders" in Section 1.01 of the Credit
Agreement is amended to read as follows:
"Required Lenders" means, at any time, (a) if at such time a
Lender holds more than twenty-five percent (25%) of the Credit
Exposure, a majority of the number of Lenders, and (b) if at such time
no Lender holds more than twenty-five percent (25%) of the Credit
Exposure, Lenders whose aggregate Credit Exposure constitutes more than
fifty percent (50%) of the Credit Exposure of all Lenders at such time;
provided, however, that if any Lender shall be a Defaulting Lender at
such time then there shall be excluded from the determination of
Required Lenders the Credit Exposure of such Lender at such time. As
used in the preceding sentence, the term "Credit Exposure" as applied
to each Lender means (a) at any time prior to the termination of the
Revolving Commitments, the sum of the amount of such Lender's Revolving
Commitment plus such Lender's outstanding Term Loans or (b) if the
Revolving Commitments have been terminated, the sum of such Lender's
outstanding Revolving Loans plus such Lender's outstanding Term Loans
plus such Lender's participation interests L/C Obligations and Swing
Line Loans.
(b) Clause (i) of the definition of "Outstanding Amount" in Section
1.01 of the Credit Agreement is amended to read as follows:
(i) with respect to any Revolving Loans or Swingline Loans on
any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of any
such Loans occurring on such date;
(c) In Section 2.05(b)(iv), the reference in the last line thereof to
"clause (vi) below" is amended to read "clause (v) below".
(d) Section 2.05(b)(v)(B) of the Credit Agreement is amended to read as
follows:
(B) with respect to all amounts prepaid pursuant to Section
2.05(b)(ii), (iii) and (iv), (1) if such prepayment occurs prior to or
on January 22, 2004, first to the Tranche B Term Loan (to the remaining
principal amortization payments in inverse order of maturity), then
(after the Tranche B Term Loan has been paid in full) to the Revolving
Loans and Swing Line Loans (but without any reduction in the Aggregate
Revolving Commitments) and then (after all Revolving Loans and all
Swing Line Loans have been repaid) to Cash Collateralize L/C
Obligations (but without any reduction in the Aggregate Revolving
Commitments) and (2) if such prepayment occurs after January 22, 2004,
first to the Tranche B Term Loan (to the remaining principal
amortization payments in inverse order of maturity), then (after the
Tranche B Term Loan has been paid in full) to the Tranche A Term Loan
(to the remaining principal amortization payments in inverse order of
maturity), then (after the Tranche A Term Loan has been paid in full)
to the Revolving Loans and Swing Line Loans (but without any reduction
in the Aggregate Revolving Commitments) and then (after all Revolving
Loans and all Swing Line Loans have been repaid) to Cash Collateralize
L/C Obligations (but without any reduction in the Aggregate Revolving
Commitments).
(e) Clauses "Second" and "Fourth" of Section 9.03 of the Credit
Agreement is amended to read as follows:
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and
interest) payable to the Lenders (including Attorney Costs and
amounts payable under Article III and including fees payable under
Swap Contracts between any Loan Party and any Lender or Affiliate
of a Lender), ratably among them in proportion to the amounts
described in this clause Second payable to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings and all amounts
due and payable under Swap Contracts between any Loan Party and any
Lender or Affiliate of a Lender and to Cash Collateralize that
portion of L/C Obligations comprised of the aggregate undrawn
amount of Letters of Credit, ratably among the Lenders in
proportion to the respective amounts described in this clause
Fourth held by them; and
(f) In the first sentence of Section 11.07(b) of the Credit Agreement,
clause (ii) thereof is deleted in its entirety and clauses (iii) and (iv)
thereof are renumbered as clause (ii) and (iii) thereof.
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
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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/ Xxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxx
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
XXXX CONSULTING, INC.,
a New York corporation
XXXXX, XXXX & XXXXX, INC.,
a Virginia corporation
L.W.G., INC.,
an Illinois corporation
XXXXXXXX & XXXXX, 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/ Xxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Treasurer of each of the Guarantors
[Signature Pages Follow]
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Agency Officer
LENDERS: BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
SUNTRUST BANK
By: /s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx XxXxxxx
-----------------------------------------
Name: Xxxxx XxXxxxx
Title: Managing Director
COMERICA BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Account Officer
NATIONAL CITY BANK
By: /s/ Xxxxxxx Gotwels
-----------------------------------------
Name: Xxxxxxx Gotwels
Title: Corporate Banking Officer
XXXXXXX BANK
By: /s/ Xxxxxxx Xxxx
-----------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
