SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
EXHIBIT
10.36
SECOND
AMENDMENT
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This
Second Amendment to Amended and Restated Loan and Security Agreement (the
"Amendment")
is
executed as of March 28, 2006, by and among HURON CONSULTING GROUP INC., a
Delaware corporation (referred to herein as "Parent"
or
"Parent
Borrower"),
and
HURON CONSULTING SERVICES LLC, a Delaware limited liability company f/k/a Huron
Consulting Group LLC (referred to herein as "Original
Borrower"),
and
XXXXXX & XXXX LLC, a Delaware limited liability company ("Subsidiary")
(each
of the foregoing three entities shall collectively be referred to herein as
the
"Borrower")
and
LASALLE BANK NATIONAL ASSOCIATION, a national banking association whose address
is 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the “Bank”),
with
reference to the following facts:
RECITALS:
| A. |
Original
Borrower and Bank entered into that certain Loan and Security Agreement
(the “Original
Loan Agreement”)
dated January 31, 2003, whereby Bank agreed to provide Original Borrower
a
secured, revolving loan in the principal amount not to exceed
$5,000,000.00 (the "Revolving
Loan"),
with a maturity date of January 31,
2004.
|
| B. |
Pursuant
to a First Amendment to Loan and Security Agreement dated January
28, 2004
(the "First
Amendment"),
Original Borrower and Bank agreed to amend the Loan Agreement to,
among
other things, (i) increase the principal amount of the Revolving
Loan to
be $6,500,000.00, and (ii) extend the maturity date of the Revolving
Loan
to February 29, 2004.
|
| C. |
Pursuant
to a Second Amendment to Loan and Security Agreement dated February
11,
2004, Original Borrower and Bank agreed to further amend the Loan
Agreement to (i) increase the principal amount of the Revolving Loan
to be
$15,000,000.00, (ii) extend the maturity date of the Revolving Loan
to
February 10, 2005, and (iii) permit certain advances under the Revolving
Loan to be made on Eligible Work in Process (as defined
below).
|
| D. |
Pursuant
to a Third Amendment to Loan and Security Agreement dated May 7,
2004,
Original Borrower and Bank agreed to further amend the Loan Agreement
to
clarify the definition of the defined term used in the Subsidiary's
minimum equity covenant and to modify such
covenant.
|
| E. |
Pursuant
to a Fourth Amendment to Loan and Security Agreement dated May 7,
2004,
Original Borrower and Bank agreed to further amend the Loan Agreement
in
connection with a potential initial public offering of the Original
Borrower's parent company.
|
| F. |
Pursuant
to a Fifth Amendment to Loan and Security Agreement dated December
3,
2004, Original Borrower and Bank agreed to further amend the Loan
Agreement to waive the covenant requiring audited annual financial
statements for Original Borrower's 2004 fiscal
year.
|
| G. |
Pursuant
to an Amended and Restated Loan and Security Agreement (the "Loan
Agreement")
dated February 10, 2005, Parent, Original Borrower and Bank agreed
to
amend and restate the Original Loan Agreement to: (i) incorporate
the
amendments to the Loan Agreement referred to in the above Recitals;
(ii)
add the Parent as a co-borrower, (iii) increase the principal amount
of
the Revolving Loan to be $25,000,000.00 (iv) extend the maturity
date of
the Revolving Loan to be February 10, 2006, and (v) modify certain
financial covenants.
|
| H. |
Pursuant
to a Joinder Agreement dated as of May 17, 2005, the Subsidiary,
which was
acquired by the Parent, became a party to the Loan
Agreement.
|
| I. |
Pursuant
to a First Amendment to Amended and Restated Loan and Security Agreement
dated January 17, 2006, Borrower and Bank agreed to amend the Loan
Agreement to extend the maturity date of the Revolving Loan to be
May 10,
2006.
|
| J. |
Borrower
has requested, and Bank has agreed, to further amend the Loan Agreement
to: (i) increase the principal amount of the Revolving Loan to be
$35,000,000.00; (ii) extend the maturity date of the Revolving Loan
to be
July 10, 2006; (iii) eliminate the Borrowing Base, aged schedule,
and
field exam requirements; and (iv) reduce certain pricing, on the
terms and
conditions in this Amendment.
|
NOW,
THEREFORE,
for
valid consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
| 1. |
Recitals
and Certain Definitions.
The Recitals set forth above are true and correct and are incorporated
into this Amendment by this reference as if they were fully set forth
herein. Unless the context requires otherwise, terms defined in the
Loan
Agreement shall have the same meaning in this Amendment. The term
“Loan
Agreement” as defined therein and in the other Loan Documents shall mean
the Loan Agreement as amended, including by this
Amendment.
|
| 2. |
Increase
in Revolving Loan.
Bank
and Borrower hereby agree to increase the principal amount of the
Revolving Loan to be $35,000,000.00. Accordingly, the following definition
in Section 1.1 of the Loan Agreement is hereby amended to read as
follows:
|
"Revolving
Loan Amount"
shall
mean Thirty-Five Million and 00/100 Dollars ($35,000,000.00).
| 3. |
Extension
of Maturity Date.
Bank and Borrower hereby agree to extend the Maturity Date of the
Revolving Loan from May 10, 2006 to July 10, 2006. Accordingly, the
following definition in Section 1.1 of the Loan Agreement is hereby
amended to read as follows:
|
"Revolving
Loan Maturity Date"
shall
mean July 10, 2006, unless extended by the Bank pursuant to any modification,
extension or renewal note executed by the Borrower and accepted by the Bank
in
its sole and absolute discretion in substitution of the Revolving
Note.
| 4. |
Elimination
of Borrowing Base, Aging and Field Exam
Requirements.
Bank and Borrower hereby agree to eliminate the Borrowing Base, aged
schedule, and field exam requirements with respect to the Revolving
Loan.
Accordingly, the following definition in Section 1.1 of the hereby
amended
to read as follows;
|
"Revolving
Loan Availability"
shall
mean at any time, the Revolving Loan Amount less the Letter of Credit
Obligations.
The
following defined terms are hereby deleted from Section 1.1: "Borrowing
Base Amount,"
"Borrowing
Base Certificate",
"Eligible
Accounts,"
and
"Eligible
Work in Process."
The
following sections of the Loan Agreement are hereby deleted: Section 9.9
(entitled "Borrowing
Base Certificate";
Section 9.11 (entitled "Aged Accounts Schedule"); and Section 9.12 (entitled
"Field
Audits").
| 5. |
Reduction
in Certain Pricing.
The Bank and Borrower hereby agree to reduce the applicable Libor
Rate by
.50%. Accordingly, the following definition in Section 1.1 of the
Loan
Agreement is hereby amended to read as
follows:
|
"LIBOR
Rate"
shall
mean a per annum rate of interest equal to LIBOR for the relevant Interest
Period (rounded upward if necessary, to the nearest 1/100 of 1.00%) plus one
and
one-quarter percent (1.25%), which LIBOR Rate shall remain fixed during such
Interest Period.
Bank
and
Borrower hereby agree to reduce the Letter of Credit fee by 1.25%. Accordingly,
Section 5 of the Loan Agreement is hereby amended to reduce the annual fee
for
all standby Letters of Credit set forth in such Section 5 from two and one-half
percent (2.50%) to one and one-quarter percent (1.25%) of the undrawn amount
of
each such standby Letter of Credit.
| 6. |
Note.
Borrower shall, contemporaneous with the execution of this Amendment,
execute and deliver to Bank a Sixth Amended and Restated Secured
Revolving
Line of Credit Note, in form and substance satisfactory to Bank,
which
reflects the above amendments to the Loan
Agreement.
|
| 7. |
Scope
of Amendment.
This Amendment does not limit the rights of Bank with respect to
any other
loan documents or any other loan or other relationship to which the
Borrower or Bank may be parties determined, in each case, after giving
effect to any amendments in connection with this
Amendment.
|
| 8. |
Commitment
Fee.
As a condition to Bank entering into this Amendment, the Borrower
shall
contemporaneously herewith pay to the Bank a non-refundable commitment
fee
in the amount of Ten-Thousand Dollars
($10,000.00).
|
| 9. |
Reaffirmation
of Obligations.
Borrower (i) reaffirms all of its obligations under the Loan Documents
to
which it is a party, (ii) acknowledges that it has no claims, offsets,
or
defenses with respect to the payment of sums due under the Loan Agreement
or any other Loan Document, (iii) acknowledges and consents to the
modifications required pursuant to this Amendment, and (iv) acknowledges
that, except as otherwise provided herein, each of the other Loan
Documents is hereby ratified and confirmed and remains in full force
and
effect.
|
| 10. |
Reaffirmation
of Warranties and Representations.
Borrower hereby represents and warrants to Bank that after giving
effect
to this Amendment (a) all representations and warranties contained
in the
Loan Documents are true and correct as of the date hereof as if made
on
the date hereof except to the extent such representation or warranty
expressly relates to an earlier date, (b) as of the date hereof Borrower
is in full compliance with the covenants contained in each of the
Loan
Documents, except for the covenant violation which was waived by
Bank
under the First Amendment, and any other covenant violation heretofore
expressly waived by the Bank in writing or waived above, and (c)
as of the
date hereof there exists no Event of Default or any condition that,
with
the giving of notice or lapse of time or both, would constitute an
Event
of Default under any of the Loan Documents, except for the default
waived
in the First Amendment or any other defaults heretofore expressly
waived
by the Bank in writing or waived
above.
|
| 11. |
Borrower
Authorization.
Borrower hereby authorizes Bank to file such financing statements
and
extensions as Bank from time to time deems necessary or desirable
to
continue the perfection of its security interest in the
Collateral.
|
| 12. |
Conditions
to Effectiveness of Amendment.
The effectiveness of this Amendment is subject to Borrower's satisfaction
of the following conditions:
|
| (a) |
Amendment
and Note.
Borrower shall have delivered to Bank a duly executed counterpart
of this
Amendment and a duly executed Note.
|
| (b) |
Other
Documents; Fees.
Borrower shall have delivered to Bank all other documents, certificates
and agreements as Bank may request to accomplish the purposes of
this
Amendment, including without limitation certified corporate resolutions
and certificates and good standing certificates, and shall have paid
the
fee set forth in Section 7 above.
|
| (c) |
No
Defaults.
As of the date of this Amendment, no Event of Default under the Loan
Agreement or any of the Loan Documents shall have occurred or be
continuing, except for the default waived under the First Amendment
or any
other defaults heretofore expressly waived by the Bank in writing
or
waived above.
|
| 13. |
Counterparts.
This document may be executed in counterparts, which taken together
shall
be considered one and the same
instrument.
|
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF,
the
undersigned have executed this Amendment as of the date first above
written.
|
BORROWER:
|
|
|
HURON
CONSULTING GROUP INC.,
a
Delaware corporation
|
|
|
By:
|
/s/
Xxxx X. Xxxxxxx
|
|
Name:
|
Xxxx
X. Xxxxxxx
|
|
Title:
|
Chairman
and Chief Executive Officer
|
|
HURON
CONSULTING SERVICES LLC,
a
Delaware limited liability company f/k/a
|
|
|
Huron
Consulting Group LLC
|
|
|
By:
|
/s/
Xxxx X. Xxxxxxx
|
|
Name:
|
Xxxx
X. Xxxxxxx
|
|
Title:
|
Chairman
and Chief Executive Officer
|
|
XXXXXX
& XXXX LLC
|
|
|
By:
|
Huron
Consulting Group Inc., its manager
|
|
By:
|
/s/
Xxxx X. Xxxxxxx
|
|
Name:
|
Xxxx
X. Xxxxxxx
|
|
Title:
|
Chairman
and Chief Executive Officer
|
|
BANK:
|
|
|
LASALLE
BANK NATIONAL ASSOCIATION, a national banking
association
|
|
|
By:
|
/s/
Xxxxx Xxxxx
|
|
Name:
|
Xxxxx
Xxxxx
|
|
Title:
|
VP
|
