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EXHIBIT 10.2
SIXTH MODIFICATION TO BUSINESS LOAN AND SECURITY AGREEMENT
THIS SIXTH MODIFICATION TO BUSINESS LOAN AND SECURITY AGREEMENT (this
"Modification") is made as of the 12 day of August, 1997, by and among (i)
NATIONSBANK, N.A., a national banking association ("NationsBank"), having
offices at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000; (ii)
FLEET CAPITAL CORPORATION, a Rhode Island corporation ("Fleet"), having offices
at 000 Xxxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000; (iii)
SIGNET BANK, a Virginia banking corporation ("Signet"), having offices at 0000
Xxxxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxxx 00000; and (iv) BTG, INC., a Virginia
corporation ("BTG"); ADVANCED COMPUTER TECHNOLOGY, INC., a Delaware corporation
("ACTECH"); BDS, INC., a Virginia corporation ("BDS"); DELTA RESEARCH
CORPORATION, a Virginia corporation ("DELTA"); BTG PRODUCTS, INC., a Virginia
corporation ("BTGPRO"); CONCEPT AUTOMATION, INC. OF AMERICA, a Virginia
corporation ("CAI"); CONCEPT AUTOMATION SERVICES, INC., a Virginia corporation
("CAS"); and NATIONS, INC., a New Jersey Corporation ("NI"); all having
principal offices at 0000 Xxxxxxx Xxxxx Xxxx, 0X, Xxxxxxx, Xxxxxxxx 00000-0000.
For purposes hereof, (a) NationsBank (acting in its capacity as agent for the
Lenders) is referred to herein as the "Agent"; (b) NationsBank (acting on its
own behalf as a Lender), Fleet and Signet and each other person or entity
hereafter becoming a "Lender" pursuant to the Loan Agreement (as defined in
Exhibit A hereto) are hereinafter referred to individually as a "Lender" and
collectively as the "Lenders"; and (c) BTG, ACTECH, BDS, DELTA, BTGPRO, CAI,
CAS, NI and each other person or entity hereafter executing a "Joinder
Agreement" pursuant to the Loan Agreement are hereinafter referred to
individually as a "Borrower" and collectively as the "Borrowers". Capitalized
terms used, but not defined, in this Modification shall have the meanings
attributed to such terms in the Loan Agreement.
W I T N E S S E T H T H A T:
WHEREAS, pursuant to the terms and conditions of the Loan Agreement,
the Borrowers obtained a loan (the "Loan") from the Lenders in the aggregate
maximum principal amount of Eight-five Million and No/100 Dollars
($85,000,000.00), currently evidenced by three (3) separate Revolving
Promissory Notes (as defined in Exhibit A), in the aggregate maximum principal
amount of Eight-five Million and No/100 Dollars ($85,000,000.00), and secured
by, among other things, certain collateral more fully described in Article III,
Section 1 of the Loan Agreement; and
WHEREAS, BTG is the owner of all of the issued and outstanding capital
stock of ACTECH, BDS, DELTA, BTGPRO, CAI and NI, and CAI is the owner of all of
the issued and outstanding capital stock of CAS; and
WHEREAS, BTG has requested the Lenders' approval of a proposed
corporate restructuring (the "Corporate Restructuring") pursuant to which (i)
BTG Technology
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Resources, Inc. ("Resources") will be formed as a Florida corporation and be a
wholly owned subsidiary of BTG; (ii) BTG will transfer to Resources all of its
right, title and interest in and to the capital stock of ACTECH, BDS and CAI,
and will transfer certain of its assets to DELTA, (iii) BTGPRO will be
dissolved; (iv) DELTA will adopt a trade name of "BTG Systems Engineering,
Inc."; (v) ACTECH will merge with BDS, and BDS, as the surviving entity of such
merger, will adopt a trade name of "BTG Technology Systems, Inc."; (vi) CAS
will merge with CAI, and CAI, as the surviving entity of such merger, will
adopt a trade name of "BTG Integration and Network Systems, Inc."; and (vii)
certain intangible assets of the Borrowers will be transferred to and
thereafter owned by Resources; and
WHEREAS, after giving effect to the Corporate Restructuring, Resources
will be the wholly owned subsidiary of BTG, and ACTECH, BDS and CAI will be the
only wholly owned subsidiaries of Resources; and
WHEREAS, BTG and CAI have requested that the Agent release its security
interest in and to certain stock pledged by BTG and CAI to the Agent as
collateral security for repayment of the Loan to enable the Borrowers to
effectuate the transactions contemplated by the Corporate Restructuring; and
WHEREAS, the Lenders have agreed to the foregoing, subject to the terms
and provisions of this Modification.
NOW THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. The foregoing recitals are hereby incorporated herein by this
reference and made a part hereof, with the same force and effect as if fully
set forth herein.
2. The Lenders hereby consent to the Corporate Restructuring for all
purposes for which such consent is required, and hereby waive all covenants and
conditions set forth in the Loan Agreement which would have been violated by
effectuating the Corporate Restructuring, but for this Modification, subject to
the other terms and conditions set forth in this Modification.
3. Concurrent with the execution of this Modification, BTG and the
Agent shall enter into an Amendment to BTG Stock Security Agreement and Partial
Release, pursuant to which (i) the Agent shall release its security interest in
all of BTG's right, title and interest in and to the stock of CAI (the "CAI
Stock"), and (ii) BTG shall pledge to the Agent all of BTG's right, title and
interest in and to the stock of Resources, and acknowledge and agree that such
pledged stock shall be subject to the terms and conditions of the BTG Stock
Security Agreement (as defined in Exhibit A hereto).
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4. Concurrent with the execution of this Modification, the Agent and
CAI shall execute a Release and Termination of CAI Stock Security Agreement,
pursuant to which the Agent shall release its security interest in all of CAI's
right, title and interest in and to the stock of CAS (the "CAS Stock").
5. Resources will not be required to become a Borrower under the
Loan Agreement or pledge its assets in connection therewith; provided that,
concurrent with the execution of this Modification, Resources executes and
delivers to the Agent (for the benefit of the Lenders, ratably) a Negative
Pledge and Covenant Not to Encumber in form and substance satisfactory to the
Agent, pursuant to which Resources agrees not to sell, assign, transfer, pledge
or otherwise encumber any of its assets to or for the benefit of any person or
entity (other than a Borrower) so long as the Obligations remain outstanding or
the Loan Agreement remains in effect.
6. The negative covenant set forth in Section 1 of Article VII of
the Loan Agreement (i.e., prohibiting any Borrower from selling, assigning,
leasing, transferring or otherwise disposing of a substantial part of its
property or assets) is hereby waived for the limited purpose of permitting each
Borrower to transfer the intangible assets listed in Exhibit B hereto (the
"Intangible Assets") to Resources and the transfer of other assets listed on
Exhibit C hereto (the "Other Assets") between the Borrowers solely for the
purpose of effectuating the Corporate Restructuring; it being understood and
agreed that (a) the Agent's security interest in and to the Intangible Assets
shall be automatically released upon the effective date of such transfer; (b)
the maximum amount secured by the Other Assets shall be limited to the
transferor Borrower's tax basis in such transferred assets as of the date such
assets are transferred; and (c) except for the release of the Agent's security
interest in the CAI Stock, CAS Stock and Intangible Assets described in this
Modification, no other lien of Agent or any Lender is being released, and all
other Collateral (which has not been previously released by the Agent or any
Lender), whether now existing or hereafter created, arising or acquired, shall
continue to secure the full amount of the Obligations.
7. The representation and warranty set forth in Section 15 of
Article V of the Loan Agreement (i.e, that no Borrower pays any royalty to
anyone in connection with the use of any intellectual property) shall not be
deemed violated by any Borrower's payment of a royalty for the use of
intellectual property owned by Resources; provided that the aggregate amount of
any and all consideration payable or paid by a Borrower in connection with such
Borrower's use of such intellectual property does not exceed commercially
reasonable amounts which would be payable in a comparable, arm's-length
transaction with an unaffiliated and unrelated entity or person. Each
Borrower hereby acknowledges, agrees and confirms that all of each Borrower's
right, title and interest in and to any and all documents, instruments and
agreements (including, without limitation licensing agreements) executed and/or
delivered in connection with each Borrower's use of the intellectual property
of Resources is subject to the security interest of the Agent and/or
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Lenders granted in and to such documents, instruments and agreements by each
Borrower pursuant to the Loan Agreement, securing the Obligations.
8. Each Borrower hereby acknowledges, agrees, represents and
warrants that (i) there are no set-offs or defenses against the Notes, the Loan
Agreement or any other Loan Document; (ii) except as specifically amended
hereby and by the modification documents expressly referenced herein, all of
the terms and conditions of the Notes, the Loan Agreement and the other Loan
Documents shall remain unmodified and in full force and effect; (iii) the
Notes, the Loan Agreement and the other Loan Documents (as modified hereby and
by the other documents expressly referenced herein) are hereby expressly
approved, ratified and confirmed; and (iv) the execution, delivery and
performance by each Borrower of this Modification (a) is within its corporate
powers, (b) has been duly authorized by all necessary corporate action, and (c)
does not require the consent or approval of any other person or entity.
9. Concurrent with the execution of this Modification, the Borrowers
shall pay all of the Agent's costs and expenses associated with this
Modification and the transactions referenced herein or contemplated hereby,
including, without limitation, the Agent's reasonable legal fees and expenses.
10. This Modification shall be governed by the laws of the
Commonwealth of Virginia and shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
11. This Modification may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together shall be
deemed one and the same instrument.
IN WITNESS WHEREOF, the undersigned have signed, sealed and delivered
this Modification on the day and year first above written.
BORROWERS:
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[Corporate Seal] BTG, INC.,
ATTEST: a Virginia corporation
/s/ XXXXXXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Secretary Title: President and CEO
[Signatures Continue on Following Page]
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[Corporate Seal] ADVANCED COMPUTER
ATTEST: TECHNOLOGY, INC., a Delaware
corporation
/s/ XXXXXXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Secretary Title: President
[Corporate Seal] BDS, INC.,
ATTEST: a Virginia corporation
/s/ XXXXXXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Secretary Title: CEO
[Corporate Seal] DELTA RESEARCH CORPORATION,
ATTEST: a Virginia corporation
/s/ XXXXXXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Secretary Title: CEO
[Corporate Seal] BTG PRODUCTS, INC.,
ATTEST: a Virginia corporation
/s/ XXXXXXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Secretary Title: CEO
[Corporate Seal] CONCEPT AUTOMATION, INC. OF
ATTEST: AMERICA, a Virginia corporation
/s/ XXXXXXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Secretary Title: CEO
[Corporate Seal] CONCEPT AUTOMATION SERVICES,
ATTEST: INC., a Virginia corporation
/s/ XXXXXXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Secretary Title: CEO
[Signatures Continue on Following Page]
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Corporate Seal] NATIONS, INC.,
ATTEST: a New Jersey corporation
/s/ XXXXXXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Secretary Title: President and CEO
AGENT:
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NATIONSBANK, N.A., a
national banking association, acting in its
capacity as Agent
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
LENDER(S):
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NATIONSBANK, N.A., a
national banking association
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
FLEET CAPITAL CORPORATION, a
Rhode Island corporation
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
SIGNET BANK, a Virginia banking
corporation
By: /s/ R. XXXX XXXXX
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Name: R. Xxxx Xxxxx
Title: Assistant Vice President
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