Exhibit 10.58


 


FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT


 


This FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”), made and entered into as of July 28, 2005, is by and among
LECG, LLC, a California limited liability company (the “Borrower”), the banks
which are signatories hereto (each individually, a “Bank,” and collectively,
the “Banks”), and U.S. BANK NATIONAL ASSOCIATION, a national banking
association, as one of the Banks, and as administrative agent for the Banks (in
such capacity, the “Agent”)


 


RECITALS


 


1.                                       The Agent, the Banks and the
Borrower entered into an Amended and Restated Credit Agreement dated as of March 31,
2003, as amended by a First Amendment to Amended and Restated Credit Agreement
dated as of August 18, 2003, a Second Amendment to Amended and Restated
Credit Agreement dated as of November 12, 2003, a Third Amendment to
Amended and Restated Credit Agreement dated as of April 15, 2004, a Fourth
Amendment to Amended and Restated Credit Agreement dated as of August 12,
2004 and a letter agreement dated as of December 31, 2004 (as amended, the
“Credit Agreement”).


 


2.                                       The Borrower has requested that the
Banks agree to amend certain provisions of the Credit Agreement and the Banks
have agreed to such amendments, subject to the terms and conditions set forth
in this Amendment.


 


AGREEMENT


 


NOW, THEREFORE, for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby covenant and agree to be bound as follows:


 


Section 1.  Capitalized Terms. 
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement, unless the context
shall otherwise require.


 


Section 2.  Amendments.  The
Credit Agreement is hereby amended as follows:


 


2.1                               Definitions.  Section 1.1 of the Credit Agreement is
amended by deleting the definitions of “Applicable Revolving Loan Margin”,
“Distributions for Tax”, “Fixed Charge Coverage Ratio”, “Performance
Payments”, “Permitted Acquisitions” and “Sponsor” as they
appear therein and by inserting in such Section the following definitions
in the appropriate alphabetical order:


 





















 


“Applicable Revolving Loan Margin”:  With respect to (a) LIBOR Rate Advances,
2.0%, (b) Prime Rate Advances, 0.00% and (c) Revolving Commitment
Fees, 0.375%.


 


“Bates Acquisition”:  The purchase by the Borrower, either directly
or indirectly through one or more Subsidiaries, of certain assets of Bates
Private Capital Incorporated pursuant to an Asset Purchase Agreement in a form
acceptable to the Agent.


 


“Fixed Charge Coverage Ratio”: For any period
of determination, the ratio of


 


(a)                                  EBITDA
minus the sum of (i) Capital Expenditures to the extent not
financed with Indebtedness permitted hereunder, (ii) cash taxes, and (iii) cash
dividends and distributions,


 


to


 


(b)                                 the
sum of (i) Interest Expense plus (ii) all Performance Payments
actually paid during such period of determination plus (iii) the
greater of (a) all required principal payments with respect to
Indebtedness (including but not limited to all payments with respect to
Capitalized Lease Obligations of the Parent and its Subsidiaries) and (b) $5,000,000,


 


in
each case determined for said period on a consolidated basis for the Parent and
its Subsidiaries in accordance with GAAP.


 


“Performance Payments”:  Deferred payments, earn out payments or other
additional payments made to the seller as part of the purchase price in
connection with a Permitted Acquisition and that are based upon the performance
of the assets or business acquired in such Permitted Acquisition after the
consummation of such Permitted Acquisition, but in each case excluding cash
payments made upon the consummation of such Permitted Acquisition and any
performance bonuses which are treated for accounting purposes as compensation.


 


“Permitted Acquisitions”:  (a) The Bates Acquisition, and (b) any
other acquisition by the Borrower of all or substantially all (or such other
amounts that constitute a controlling interest) of the Equity Interests of, or
all or substantially all of the assets of, Persons conducting businesses
similar to those of the Borrower, as long as 
(i) the Agent is notified of such Acquisition not less than 15 days
in advance and is provided with such information as the Agent may request on
the acquired business, (ii) the Borrower has not less than $5,000,000 of
unused availability under the Revolving Note after making such acquisition, (iii) the
Borrower has cash or additional unused availability under the Revolving Note of
not less than $5,000,000 after making such acquisition, and (iv) the total
consideration paid by the Borrower in connection with such acquisitions does
not exceed (x) $20,000,000 in the aggregate for the period of August 1,


 


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2004
through December 31, 2004, and (y) commencing on January 1, 2005,
$20,000,000 in the aggregate in any fiscal year of the Borrower; provided that
any deferred payments shall be included in the determination of total consideration
for purposes of this clause (iv) at the time payments are actually
made.  For purposes of the foregoing, “total
consideration” shall mean, without duplication, cash or other consideration
paid, the fair market value of property or stock exchanged (or the face amount,
if preferred stock), the total amount of any deferred payments or purchase
money debt, all seller financing of Permitted Acquisitions, and the total
amount of any Indebtedness assumed or undertaken in such transactions.


 


2.2                               Term Loan. 
Section 2.1(b) of the Credit Agreement is amended by adding
the following new sentence at the end thereof:


 


Notwithstanding anything in this
Agreement to the contrary, the Borrower and the Banks acknowledge and agree
that (a) the Term Loans have been paid in full prior to the date of the
Fifth Amendment hereto and (b) no further Term Loans shall be made
available to the Borrower.


 


2.3                               Letter of Credit
Sublimit.   Section 2.8 of the Credit Agreement is
amended by deleting the clause “$2,000,000” as it appears therein and by
substituting in lieu thereof the clause “$10,000,000”.


 


2.4                               Revolving
Commitment Ending Date.  Section 2.19
of the Credit Agreement is amended to read in its entirety as follows:


 


Section 2.19                                Revolving Commitment Ending Date. 
The “Revolving Commitment Ending Date” is May 31, 2008.


 


2.5                               Monthly Financial
Statements and Compliance Certificate.  Sections 5.1(c) and
(d) of the Credit Agreement are each amended by deleting each appearance
of the clause “30 days” as it appears therein and by substituting in lieu
thereof the clause “45 days”.


 


2.6                               EBITDA. 
Section 6.15 of the Credit Agreement is amended to read in its
entirety as follows:


 


Section 6.15                                EBITDA. 
Neither the Parent nor the Borrower will permit the EBITDA, for each
period of four fiscal quarters indicated below, to be less than (a) $16,000,000
for the four fiscal quarters ending on or about June 30, 2005, (b) $18,000,000
for the four fiscal quarters ending on or about September 30, 2005 and (c) $25,000,000
for the four fiscal quarters ending on or about December 31, 2005 and each
period of four fiscal quarters thereafter.


 


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2.7                               Borrowing Base and
Borrowing Base Certificates.  Exhibits A
and B to the Credit Agreement are hereby amended and restated in their
entireties to read as set forth on Exhibits A and B attached to
this Amendment, respectively, which are made part of the Credit Agreement as Exhibits
A and B thereto.


 


2.8                               Schedule of
Commitment Amounts.  Schedule 1.1 of the Credit Agreement
is hereby amended and restated in its entirety to read as set forth on Exhibit C
hereto.


 


2.9                               New Form of
Revolving Note.  Exhibit D to the Credit Agreement
is hereby amended in its entirety to read as set forth on Exhibit D
attached to this Amendment, which is made a part of the Credit Agreement as Exhibit D
thereto.


 


2.10                        New Form of
Compliance Certificate.  Exhibit G
to the Credit Agreement is hereby amended in its entirety to read as set forth
on Exhibit E attached to this Amendment, which is made a part of
the Credit Agreement as Exhibit G thereto.


 


Section 3.  Effectiveness of Amendments.  The
amendments contained in this Amendment shall become effective upon delivery by
the Borrower of, and compliance by the Borrower with, the following:


 


3.1                               This Amendment, duly executed by the
Borrower.


 


3.2                               Each Bank shall have received a non-refundable
amendment fee in the amount of $200,000.


 


3.3                               A Reaffirmation of Guaranty and
Security Agreement, in the form of Exhibit F hereto, duly executed
by each of the Parent, LECG Canada Holding, Inc., and Silicon Valley
Expert Witness Group, Inc.


 


3.4                               A copy of the company resolutions of
the Borrower authorizing the execution, delivery and performance of this
Amendment certified as true and accurate by its Secretary or Assistant
Secretary, along with a certification by such Secretary or Assistant Secretary (i) certifying
that there has been no amendment to the organizational documents of the
Borrower since true and accurate copies of the same were delivered to the Agent
with a certificate of the Secretary of the Borrower dated April 15, 2004, (ii) certifying
as to true and accurate copies of the resolutions of the governing body of the
Borrower authorizing the execution and delivery of this Amendment and each
other document or instrument in connection with this Amendment (collectively,
the “Amendment Documents”) to be executed by the Borrower, and (iii) identifying
each officer of the Borrower authorized to execute the Amendment Documents,
and, if specimens of such officers’ signatures were not previously provided to
the Agent, certifying as to specimens of such officers’ signatures and such
officers’ incumbency in such offices as such officers hold.


 


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3.5                               The Borrower shall have satisfied
such other conditions as specified by the Agent, including payment of all
unpaid legal fees and expenses incurred by the Agent through the date of this
Amendment in connection with the Credit Agreement, the Security Documents and
the Amendment Documents.


 


Section 4.  Representations, Warranties,
Authority, No Adverse Claim.


 


4.1                               Reassertion of
Representations and Warranties, No Default. 
The
Borrower hereby represents that on and as of the date hereof and after giving
effect to this Amendment all of the representations and warranties contained in
the Credit Agreement are true, correct and complete in all respects as of the
date hereof as though made on and as of such date, except for changes permitted
by the terms of the Credit Agreement as amended by this Amendment and there
will exist no Default or Event of Default under the Credit Agreement as amended
by this Amendment on such date which has not been waived by the Banks.


 


4.2                               Authority, No
Conflict, No Consent Required. The Borrower represents and warrants that the Borrower
has the power and legal right and authority to enter into the Amendment
Documents and has duly authorized as appropriate the execution and delivery of
the Amendment Documents and other agreements and documents executed and
delivered by the Borrower in connection herewith or therewith by proper company
action, and none of the Amendment Documents nor the agreements contained herein
or therein contravenes or constitutes a default under any agreement, instrument
or indenture to which the Borrower is a party or a signatory or a provision of
the Borrower’s organizational documents or any other agreement or requirement
of law, or results in the imposition of any Lien on any of its property under
any agreement binding on or applicable to the Borrower or any of its property
except, if any, in favor of the Agent and the Banks.  The Borrower represents and warrants that no
consent, approval or authorization of or registration or declaration with any
Person, including but not limited to any governmental authority, is required in
connection with the execution and delivery by the Borrower of the Amendment
Documents or other agreements and documents executed and delivered by the
Borrower in connection therewith or the performance of obligations of the
Borrower therein described, except (a) for those which the Borrower has
made, obtained or provided and as to which the Borrower has delivered certified
copies of documents evidencing each such action to the Agent and the Banks and (b) for
those which the Borrower will make, obtain or provide upon the consummation of
this Amendment and as to which the Borrower will promptly deliver certified
copies of documents evidencing each such action to the Agent and the Banks.


 


4.3                               No Adverse Claim. The Borrower warrants, acknowledges
and agrees that no events have been taken place and no circumstances exist at
the date hereof which would give the Borrower a basis to assert a defense,
offset or counterclaim to any claim of the Agent or the Banks with respect to
the Obligations.


 


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Section 5.  Affirmation of Credit Agreement,
Further References, Affirmation of Security Interest.  The
Agent, each Bank and the Borrower each acknowledge and affirm that the Credit
Agreement, as hereby amended, is hereby ratified and confirmed in all respects
and all terms, conditions and provisions of the Credit Agreement, except as
amended by this Amendment, shall remain unmodified and in full force and
effect.  All references in any document
or instrument to the Credit Agreement are hereby amended and shall refer to the
Credit Agreement as amended by this Amendment. 
The Borrower confirms to the Agent and the Banks that the Obligations
are and continue to be secured by the security interest granted by the Borrower
in favor of the Agent and the Banks under the Security Agreement, and all of
the terms, conditions, provisions, agreements, requirements, promises,
obligations, duties, covenants and representations of the Borrower under such
documents and any and all other documents and agreements entered into with
respect to the obligations under the Credit Agreement are incorporated herein
by reference and are hereby ratified and affirmed in all respects by the
Borrower.


 


Section 6.  Merger and Integration,
Superseding Effect.  This Amendment, from and after the date
hereof, embodies the entire agreement and understanding between the parties
hereto and supersedes and has merged into this Amendment all prior oral and
written agreements on the same subjects by and between the parties hereto with
the effect that this Amendment, shall control with respect to the specific
subjects hereof and thereof.


 


Section 7.  Severability.  Whenever
possible, each provision of this Amendment and the other Amendment Documents
and any other statement, instrument or transaction contemplated hereby or
thereby or relating hereto or thereto shall be interpreted in such manner as to
be effective, valid and enforceable under the applicable law of any jurisdiction,
but, if any provision of this Amendment, the other Amendment Documents or any
other statement, instrument or transaction contemplated hereby or thereby or
relating hereto or thereto shall be held to be prohibited, invalid or
unenforceable under the applicable law, such provision shall be ineffective in
such jurisdiction only to the extent of such prohibition, invalidity or
unenforceability, without invalidating or rendering unenforceable the remainder
of such provision or the remaining provisions of this Amendment, the other
Amendment Documents or any other statement, instrument or transaction
contemplated hereby or thereby or relating hereto or thereto in such
jurisdiction, or affecting the effectiveness, validity or enforceability of
such provision in any other jurisdiction.


 


Section 8.  Successors. 
The Amendment Documents
shall be binding upon the Borrower, the Agent and the Banks and their
respective successors and assigns, and shall inure to the benefit of the
Borrower, the Agent and the Banks and the successors and assigns of the Agent
and the Banks.


 


Section 9.  Legal Expenses.  As
provided in Section 9.2 of the Credit Agreement, the Borrower agrees to
reimburse the Agent upon demand for all reasonable out-of-pocket expenses
(including filing and recording costs and fees, charges and disbursements of
outside


 


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counsel to the Agent (determined
on the basis of such counsel’s generally applicable rates, which may be higher
than the rates such counsel charges the Agent in certain matters) and/or the
allocated costs of in-house counsel incurred from time to time) incurred in
connection with the negotiation, preparation, enforcement and collection of
this Amendment and the Loan Documents and all other documents negotiated and
prepared in connection with this Amendment and the Loan Documents.


 


Section 10.  Headings.  The
headings of various sections of this Amendment have been inserted for reference
only and shall not be deemed to be a part of this Amendment.


 


Section 11.  Counterparts.  The
Amendment Documents may be executed in several counterparts as deemed necessary
or convenient, each of which, when so executed, shall be deemed an original,
provided that all such counterparts shall be regarded as one and the same
document, and either party to the Amendment Documents may execute any such
agreement by executing a counterpart of such agreement.


 


Section 12.  Governing
Law.  THE AMENDMENT DOCUMENTS SHALL
BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING
EFFECT TO CONFLICT OF LAW PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS, THEIR HOLDING COMPANIES AND THEIR AFFILIATES.


 


[Remainder of page is intentionally left blank.]


 


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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date and year first above written.


 


 


	
   

  	
  LECG,
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John
  C. Burke

  	
   

  
	
   

  	
   

  	
  John
  C. Burke

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION,

  In its individual corporate capacity and as Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert A. Rosati

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LASALLE
  BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Patrick J. O'Toole

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  First
  Vice President

  	
   

  
						



 


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EXHIBIT F
TO

FIFTH AMENDMENT TO

AMENDED AND RESTATED

CREDIT AGREEMENT


 


REAFFIRMATION
OF GUARANTY AND SECURITY AGREEMENT


 


This will confirm (a) that each of the
undersigned hereby consents to the terms of that Fifth Amendment to Amended and
Restated Credit Agreement dated concurrently herewith by and among LECG, LLC
(the “Borrower”), the banks party thereto (the “Banks”) and U.S. Bank National
Association, as agent for the Banks (the “Agent”) (the “Fifth Amendment”) and
to the execution, delivery and consummation of the Fifth Amendment and the
transactions contemplated thereby by the Borrower; and (b) that the
obligations of the Borrower to the Agent or any Bank under the Amended and
Restated Credit Agreement dated as of March 31, 2003 by and among the
Borrower, the Banks and the Agent (as previously amended the “Credit Agreement”)
as amended by the Fifth Amendment constitute “Obligations” of the Borrower to
the Banks within the meaning of those certain separate Guaranties and Security
Agreements and executed by the undersigned in favor of the Agent and the Banks
(as amended, restated or otherwise modified. 
Each of the undersigned further confirms that all of the terms,
conditions, provisions, agreements, requirements, promises, obligations,
duties, covenants and representations of the undersigned under its Guaranty or
its Security Agreement, and any and all other documents and agreements entered
into with respect to the obligations under its Guaranty or its Security
Agreement, are incorporated herein by reference and are hereby ratified and
affirmed in all respects by the undersigned.


 


[the Signature Page follows]


 


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  LECG
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  John C. Burke

  	
   

  
	
   

  	
  Its

  	
  Chief
  Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
  SILICON
  VALLEY EXPERT WITNESS GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  John C. Burke

  	
   

  
	
   

  	
  Its

  	
  Chief
  Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LECG
  CANADA HOLDING, INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  John C. Burke

  	
   

  
	
   

  	
  Its

  	
  Chief
  Financial Officer

  	
   

  
						



 


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