**Exhibit 10.53**

 

***Execution Version***

 

**AMENDED AND RESTATED LETTER OF CREDIT CASH**

**COLLATERAL AGREEMENT**

 

**THIS AMENDED ANDRESTATED LETTER OF CREDIT CASH COLLATERAL AGREEMENT**(this “Agreement”) is made and entered into as of July 19, 2005 by and among BEARINGPOINT, INC., a Delaware corporation (the “Borrower”), theAdministrative 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 associationorganized 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 occurrenceof the Facility Termination Date. 

 

**WITNESSETH:**

 

**WHEREAS,**the Borrower, Bank of America, N.A. asAdministrative Agent (the “Administrative Agent”) and the Lenders party thereto from time to time entered into a Credit Agreement dated as of December 17, 2004, as amended by that certain Amendment No. 1 to CreditAgreement 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 Agreementthe Letters of Credit listed on Schedule I hereto, having an aggregate undrawn Dollar Equivalent amount (as of the last Revaluation Date) of $81,341,869.99 (the “Letters of Credit”; the aggregate undrawn Dollar Equivalentamount of the Letters of Credit from time to time is referred to as the “Aggregate Available Amount”); and 

 

**WHEREAS,**in connection with the termination of the Aggregate Commitments and the occurrence of the Facility Termination Date under the CreditAgreement, the Borrower, the Administrative Agent, the Depositary and the Issuing Banks are parties to that certain Letter of Credit Cash Collateral Agreement dated as of April 26, 2005 (the “Existing LC Cash CollateralAgreement”) pursuant to which the Issuing Banks have required the Borrower to deliver immediately available funds to the Administrative Agent for deposit into a non-interest bearing cash collateral deposit account under the sole andexclusive 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 “LCCash Collateral”), as collateral security for (i) the payment of Letter of Credit Fees and certain other fees and charges as herein provided, and (ii) the payment and satisfaction of all other obligations and liabilities of theBorrower 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 occurrenceof) the Facility Termination Date; and 

**WHEREAS,** the Borrower, the Administrative Agent, the Depositary and the Issuing Banks desire toamend and restate the Existing LC Cash Collateral Agreement in its entirety on the terms and conditions set forth herein; 

 

**NOW, THEREFORE,** in consideration of the foregoing and the agreements, provisions and covenants contained herein, the parties hereto agree asfollows: 

 

1. **Amendment and Restatement.**TheBorrower, the Administrative Agent and the Issuing Banks hereby agree that upon the effectiveness of this Agreement, the terms and provisions of the Existing LC Cash Collateral Agreement shall be and hereby are amended and restated in their entiretyby the terms, conditions and provisions of this Agreement, and the terms and provisions of the Existing LC Cash Collateral Agreement, except as otherwise expressly provided herein, shall be superseded by this Agreement. 

 

2. **LC Account; Cash Collateralization of Letter of Credit.**

 

(a) *Account Creation and Control.*TheAdministrative 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 thesole 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), AccountNo.                         . Without limiting the foregoing, the parties hereto agree that the Depositary will comply withall 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 withrespect to the LC Account other than those of the Administrative Agent. The Borrower hereby grants to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security interest in all such cash, deposit accounts and allbalances therein and all proceeds of the foregoing. 

 

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: 

 
  
**Bank of America, N.A.**

**Concord,CA**

**ABA# 121000358**

**Account No.:                    **
  
 

(b)*Initial Deposit.*As of the date hereof, LC Cash Collateral in the initial amount equal $5,000,000 has been deposited into the LC Account in accordance with this Agreement, such LC Cash Collateral to be used for the payment of Letter of CreditFees and fronting and other fees and 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 theLetters of Credit. 

 

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(c) *Payment of Letter of Credit Fee and Fronting Fees.*Notwithstanding anythingcontained 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 Agreementand 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 be3.50% at all times, (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 AggregateAvailable 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 (3rd) 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 thepayment 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 underSection 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 CreditAgreement 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 becomputed in the manner provided in Section 2.10 of the Credit Agreement. In the event the Borrower incurs or agrees to pay in connection with other senior credit financing provided by a syndicate of lenders for which UBS AG, StamfordBranch is the administrative agent (the “UBS Credit Agreement”) 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 “UBSSpread”), or 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 EurocurrencyRate (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 ofcredit, shall be the greater of (i) such rate as determined in this Section l(c) above and (ii) the UBS Spread or New Spread, as applicable and in effect from time to time, plus 50 basis points. 

 

(d) *Drawings Under Letters of Credit.*Upon a drawingunder 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 ifpracticable no later than the Honor Date), the Administrative Agent shall draw on (to the extent sufficient funds are available thereunder) the letter of credit issued by UBS AG, Stamford Branch on behalf of the Borrower in an amount equal to 105%of the Aggregate Available Amount as of the date hereof (the “UBS Issued Letter of Credit”) for the reimbursement of the applicable 

 

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Issuing Bank and pay such funds to the applicable Issuing Bank in reimbursement for such drawing. 

 

3. **Fees and Expenses.**The Borrower agrees to pay (a) allfees and expenses pertaining to the creation, maintenance and administration of the LC Account, and (b) promptly to the Administrative Agent all the costs and expenses, including reasonable attorneys fees and expenses, which any Issuing Bankmay incur in connection with (i) the custody or preservation of the LC Cash Collateral, (ii) the exercise or enforcement of any of the rights of the Administrative Agent and any Issuing Bank hereunder, or (iii) the failure by theBorrower to perform or observe any of the provisions hereof. 

 

4. **Conditions to Effectiveness.**The effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent: 

 

(a) receipt by the Administrative Agent of original counterparts of this Agreement, duly executed by theBorrower, each Issuing Bank and the Administrative Agent; 

 

(b) the UBS Issued Letter of Credit shall have been received by the Administrative Agent; 

 

(c) receipt by the Administrative Agent of a certificate of a Responsible Officer of the Borrower certifying that, prior to the datehereof or substantially simultaneously with the consummation of this Agreement, the Borrower has consummated or is consummating the UBS Credit Agreement; and 

 

(d) such other documents, instruments and certificates as reasonably requested by the Administrative Agent. 

 

Upon satisfaction of the conditions set forth in this Section 4,this Agreement shall be effective as of the date hereof. 

 

5.**Entire Agreement.**This Agreement and the Payoff Letter dated as of July 19, 2005 (collectively, the “Relevant Documents”) set forth the entire understanding and agreement of BOA and JPMCB with the Borrower inrelation to the subject matter hereof and supersedes any and all prior negotiations and agreements relating to such subject matter. No promise, condition, representation or warranty, express or implied, not set forth in the Relevant Documents shallbind any party hereto, and no such party has relied on any such promise, condition, representation or warranty. Each of the parties hereto acknowledges that, except as otherwise expressly stated in the Relevant Documents, no representations,warranties or commitments, express or implied, have been made by any party to the other in relation to the subject matter hereof or thereof. 

 

6. **Counterparts.**This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of whichtogether shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery 

 

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7. **Governing Law.** This Agreement shall in all respects be governed by, and construed inaccordance with, the laws of the State of New York. 

 

[Signaturepage follows.] 

 

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**IN WITNESS WHEREOF,** the Borrower, the Administrative Agent, the Depositary and the Issuing Bankshave caused this Amended and Restated Letter of Credit Cash Collateral Agreement to be duly executed and delivered by their respective officers thereonto duly authorized as of the date first above written. 

 
**BEARINGPOINT, INC.,**
as Borrower

By:
 /s/ Patrick H. KinzlerName: Patrick H. KinzlerTitle: Treasurer
**BANK OF AMERICA, N.A.,**as Administrative AgentBy: /s/ Mollie S. CanupName: Mollie S. CanupTitle: Vice President**BANK OF AMERICA, N.A.,**as a Lender and an Issuing BankBy: /s/ John E. WilliamsName: John E. WilliamsTitle: Senior Vice President**BANK OF AMERICA, N.A.,**as DepositaryBy: /s/ John E. WilliamsName: John E. WilliamsTitle: Senior Vice President
**JPMORGAN CHASE BANK, N.A.,**as a Lender and an Issuing BankBy: /s/ D. Scott FarquharName: D. Scott FarquharTitle: Vice President