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EXHIBIT 10.1
SEVENTH MODIFICATION OF SECOND AMENDED
AND RESTATED LOAN AGREEMENT
This Seventh Modification of Second Amended and Restated Loan Agreement
("Seventh Modification") is made and entered into the 11th day of August, 2000,
by and among BANK OF AMERICA, N.A., successor to NATIONSBANK, N.A., a national
banking association ("Bank") and SCB COMPUTER TECHNOLOGY, INC., a Tennessee
corporation, DELTA SOFTWARE SYSTEMS, INC., a Tennessee corporation, TECHNOLOGY
MANAGEMENT RESOURCES, INC., F/K/A TMR ACQUISITION, INC., a Tennessee
corporation, PARTNERS CAPITAL GROUP, a California corporation, PARTNERS
RESOURCES, INC., an Arizona corporation, SCB COMPUTER TECHNOLOGY OF ALABAMA,
INC., an Alabama corporation, and PROVEN TECHNOLOGY, INC., a Tennessee
corporation ("collectively Borrower") and.
R E C I T A L S
A. Borrower has previously obtained from Bank a revolving term
loan facility (the "Revolving Loan") in the principal amount of $26,250,000.00
and a term loan facility (the "Term Loan") in the principal amount of
$15,000,000.00.
B. The terms and conditions of the Revolving Loan and the Term
Loan are set forth in that certain Second Amended and Restated Loan Agreement
dated July 31, 1998, as modified by that certain First Modification of Second
Amended and Restated Loan Agreement dated September 15, 1998, and that certain
Second Modification of Second Amended and Restated Loan Agreement dated May 20,
1999, and by that certain Third Modification of Second Amended and Restated Loan
Agreement dated June 21, 1999, and by that certain Fourth Modification of Second
Amended and Restated Loan Agreement dated February 17, 2000, and by that certain
Fifth Modification of Second Amended and Restated Loan Agreement dated May 1,
2000, and as further amended by that certain Sixth Modification Second Amended
and Restated Loan Agreement dated June 15, 2000 (hereinafter as hereafter
modified or amended collectively referred to as the "Agreement").
C. Borrower has asked Bank to extend an additional credit
facility pursuant to the terms and conditions set forth herein and in the
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the intending to be legally bound
hereby, Bank and Borrower agree as follows:
1. Capitalized terms not defined herein shall have the meaning
contained in the Agreement.
2. Section 1.K. is hereby deleted in its entirety and in lieu
thereof shall read as follows:
"K. LOANS: The Revolving Loan, the Term Loan and the Short
Term Loan and any subsequent loan which states that it is subject to
this Agreement."
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3. Section 1 of the Agreement is hereby amended by adding the
following term:
"HH. SHORT TERM NOTE: The promissory note evidencing the Short
Term Loan."
4. Section 2 of the Agreement is hereby amended to add the
following paragraph:
"C. SHORT TERM LOAN. Bank hereby agrees to make a short
term loan to Borrower in the principal amount of Two Million Five
Hundred Thousand and No/100 Dollars ($2,500,000.00). The obligation to
repay the short term loan is evidenced by a promissory note dated
August 11, 2000 (the promissory note together with any and all
renewals, extension or rearrangements thereof being hereinafter
collected referred to as the "Short Term Note"), having a maturity
date, repayment terms and interest rate as set forth in the Short Term
Note.
I. PURPOSE. The Short Term Loan shall be used by
Borrower for general corporate purposes.
II. COLLATERAL. The Short Term Loan shall be secured by
the Collateral described in the Security Agreements entered into by
Bank and Borrower dated February 17, 2000 (collectively the "Security
Agreement").
III. OBLIGATION. The Short Term Loan shall constitute an
Obligation of the Borrower as that term is defined in the Security
Agreement.
5. Section 4.B(v) of the Agreement is deleted in its
entirety and in lieu thereof shall read as follows:
"(v) Furnish to Bank monthly borrowing base certificates
in form and substance acceptable to Bank. The borrowing base
certificate for the end of each month shall be submitted by the 10th
business day of the following month. Borrower shall process its work in
process through the end of such month during the ten day period,
generate accounts receivable from such work in process and include
those accounts receivable as of the end of the prior month in the month
end borrowing base certificate. Borrower shall also furnish to Bank
accounts receivable agings, a consolidating summary report (showing
accounts receivable, ineligible accounts receivable by category, earned
but unbilled accounts receivable, ineligible unbilled accounts
receivable by category) and a reconciliation of the accounts receivable
aging to the general ledger, all as of the 15th of the month, with such
reports to be furnished to Bank by the 25th of the month. Any other
information that Bank may reasonably require will also be provided in a
timely manner."
6. Bank waives the following:
(a) The failure of the Borrower to provide the monthly
financial statements for May and June, 2000 and the updated 90-day
rolling cash flow within 20 days of the
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respective month ends; and
(b) The failure of the Borrower on July 15, 2000 to
reduce the maximum outstanding balance of the Revolving Loan to an
amount less than or equal to Borrowing Base.
7. Borrower acknowledges that the indebtedness comprising the
Short Term Loan is included as an Obligation secured by the Collateral subject
to the Security Agreement (as those terms are defined in the Security
Agreement).
8. Borrower shall pay all costs incidental to this Seventh
Modification including but not limited to the fees and expenses of Bank's
counsel.
9. In consideration for the waiver of certain defaults, the
modification of the Agreement and the extension of additional credit, Borrower
hereby agrees that Bank shall earn a fee of $100,000.00 upon the execution of
this Seventh Modification. $25,000.00 of this fee shall be paid concurrent with
the execution of the Seventh Modification. Bank agrees that it will waive and
forgive $25,000.00 of the fee if the Short Term Loan is repaid in full on or
prior to September 10, 2000. Bank further agrees that it will waive and forgive
$50,000.00 of this fee if the following conditions are met by August 21, 2000:
(a) Bank receives written confirmation executed by Targus
Group International, Inc. ("Targus") that the account receivable owed
by Targus to Borrower as of July 31, 2000 was at least $3,833,130.07
not subject to any offsets or reductions, accompanied by copies of all
outstanding invoices to Targus and a copy of the agreement (with any
amendments) between Borrower and Targus; and
(b) Bank receives either (i) an acceptable credit
reference from Targus' financial institution; or (ii) current financial
statements for Targus and a bona fide commitment letter from a third
party financial institution showing a commitment to provide funding to
Targus in the amount of at least $70,000,000.00.
10. Borrower warrants and represents that (a) the Loan Documents
are valid, binding and enforceable against the Borrower according to their
terms; (b) all warranties and representations made by Borrower in the Loan
Documents are hereby again warranted and represented to be true as of the date
hereof, except with regard to matters expressed only as of a specific time or
which have been supplemented or superseded by disclosures to Bank in writing and
(c) no default presently exists under the Loan Documents. Borrower further
acknowledges that Borrower's obligations evidenced by the Loan Documents are not
subject to any counterclaim, defense or right of set off and Borrower does
hereby release Bank from any claim, known or unknown, that Borrower may have
against Bank as of the execution. Borrower, on its own behalf and on behalf of
its predecessors, successors, heirs and assigns (collectively, the "Releasing
Parties"), hereby acknowledge and stipulate that as of the date of this Seventh
Modification, none of the Releasing Parties has any claims or causes of action
of any kind whatsoever against Bank or any of its officers, directors,
employees, agents, attorneys, or representatives, or against any of their
respective predecessors, successors, or assigns. Each of the Releasing Parties
hereby forever
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releases, remises, and discharges Bank and all of its officers, directors,
employees, agents, attorneys and representatives, and all of its respective
predecessors, successors, and assigns, from any and all claims, causes of
action, demands, and liabilities of any kind whatsoever, whether direct or
indirect, fixed or contingent, liquidated or nonliquidated, disputed or
undisputed, known or unknown, which any of the Releasing Parties has or may
acquire in the future relating in any way to any event, circumstance, action, or
failure to act from the beginning of time through the date of this Seventh
Modification.
11. As amended hereby, the Agreement remains in full effect, and
all agreements among the parties with respect to the subject hereof are
represented fully in this Seventh Modification and the other written documents
among the parties. The provisions of the Agreement regarding the arbitration of
disputes and other general matters also govern this Seventh Modification. The
validity, construction and enforcement hereof shall be determined according to
the substantive laws of the State of Tennessee.
IN WITNESS WHEREOF, the parties have executed this Seventh Modification
to be effective the day and year first above written.
BANK OF AMERICA, N.A., SUCCESSOR TO PARTNERS CAPITAL GROUP
NATIONSBANK, N.A.
By: /s/ T. Scott Cobb
--------------------------------
By: /s/ Sherrie K. Hollis Its: CEO
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Its: Vice President
By: /s/ Michael J. Boling
--------------------------------
Its: EVP
SCB COMPUTER TECHNOLOGY, INC. PARTNERS RESOURCES, INC.
By: /s/ T. Scott Cobb By: /s/ T. Scott Cobb
------------------------------- --------------------------------
Its: CEO Its: CEO
By: /s/ Michael J. Boling By: /s/ Michael J. Boling
------------------------------- --------------------------------
Its: EVP Its: EVP
DELTA SOFTWARE SYSTEMS, INC. PROVEN TECHNOLOGY, INC.
By: /s/ T. Scott Cobb By: /s/ T. Scott Cobb
------------------------------- --------------------------------
Its: CEO Its: CEO
By: /s/ Michael J. Boling By: /s/ Michael J. Boling
------------------------------- --------------------------------
Its: EVP Its: EVP
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TECHNOLOGY MANAGEMENT SCB COMPUTER TECHNOLOGY OF
RESOURCES, INC. ALABAMA, INC.
F/K/A TMR ACQUISITION, INC.
By: /s/ T. Scott Cobb By: /s/ T. Scott Cobb
--------------------------- ------------------------------
Its: CEO Its: CEO
By: /s/ Michael J. Boling By: /s/ Michael J. Boling
--------------------------- ------------------------------
Its: EVP Its: EVP
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