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EXHIBIT 10.5
FOURTH MODIFICATION OF SECOND AMENDED
AND RESTATED LOAN AGREEMENT
This Fourth Modification of Second Amended and Restated Loan Agreement
("Fourth Modification") is made and entered into the 17th day of February, 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. 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 $30,000,000 and a
term loan facility (the "Term Loan") in the principal amount of $15,000,000 and
a short-term loan (the "Short-Term Loan") in the principal amount of $7,000,000.
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 (hereinafter as hereafter modified or amended
collectively referred to as the "Agreement").
C. Borrower has asked Bank to modify certain provisions in the
Agreement pursuant to the terms and conditions set forth herein.
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.D of the Agreement is amended to provide that Borrower's
address will change to 0000 Xxxxxx Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxx 00000 on March 1, 2000.
3. Section 3.I of the Agreement is amended to provide that Borrower's
address will change to 0000 Xxxxxx Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxx 00000 on March 1, 2000.
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4. Section 4.A.i of the Agreement is deleted in its entirety and in
lieu thereof shall read as follows:
"(i) Maintain a ratio of Funded Debt to EBITDA of less than 2.5 to 1.0
as of the quarter ending October 31, 1999; 3.75 to 1.0 as of the
quarter ending January 31, 2000 and as of the month ending February 29,
2000; and 3.25 to 1.0 as of the end of each month thereafter beginning
with March 31, 2000. This will be measured quarterly through the
quarter ending January 31, 2000 and monthly commencing with the month
ending February 29, 2000."
5. Section 4.B.ii of the Agreement is amended by changing the
submission of financial statements and compliance certificate from quarterly to
monthly and from 45 days after the close of the quarter to ten days after the
end of the month.
6. Section 4.B.iv is amended by renumbering it as 4.B.v and inserting a
new subsection iv which shall read as follows:
"(iv) Furnish to Bank a monthly aging of the Accounts Receivable of
each Borrower which report shall be provided to Bank by the 10th day of
the following month. By March 1, 2000, Borrower shall furnish to Bank
an acceptable plan showing how Borrower will be able to furnish to Bank
a weekly aging of the Accounts Receivable of each Borrower for the
period from Saturday through Friday, which report shall be provided to
Bank by Wednesday of the following week. (Such weekly report will show
aging of billed Accounts Receivable from prior month end and will not
show unbilled work-in-process and will not serve as a basis for a
borrowing base calculation.) "
7. Section 4 is amended by adding a new subparagraph K which shall read
as follows:
"K. COLLATERAL LOCKBOX ACCOUNT. As soon as possible following
the execution of the Fourth Modification, Borrower shall establish a
Collateral Lockbox Account acceptable to Bank for Accounts Receivable
collections."
8. Section 4 is amended by adding a new subparagraph L which shall read
as follows:
"L. MANAGEMENT PLAN. On or before March 1, 2000, Borrower
shall provide information to Bank to allow Bank to assess its
collateral position and shall provide to Bank a management plan
including discussions of expense reductions and asset sales."
9. Section 5.A. of the Agreement is hereby deleted in its entirety and
in lieu thereof shall read as follows:
"A. CAPITAL EXPENDITURES. Make Capital Expenditures during the
fiscal year ending April 30, 2000 exceeding in the aggregate $6,000,000
and during any other four quarter period on a trailing four quarter
basis exceeding in the aggregate a number which is equal to 25% of the
Net Income from such four quarter period;
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provided, for the quarter ending 7/31/00 and the six-month period
ending 10/31/00, capital expenditures for each such period may not
exceed 25% of the Net Income for such period. Expenditures for computer
equipment which Borrower then leases to a third party under a true or
capital lease shall be excluded from capital expenditures but shall be
subject to the restriction on computer equipment expenditures contained
in Section 5.B. below."
10. Section 5.C. of the Agreement is deleted in its entirety and in
lieu thereof shall read as follows:
"C. LEASE EXPENDITURES. Incur new obligations for the
operating lease or hire of real or personal property requiring payments
in any fiscal year in excess of an aggregate of $500,000 provided,
however, that for the fiscal year ending April 30, 2000, the aggregate
shall be $600,000.
11. Section 5.G. of the Agreement is amended by adding the following
clause to the end thereof: "provided, however, this shall not apply to the
$5,000,000 loan from State Bank and the $1,148,000 lease guaranty for
International Gaming; further provided, however, that the guaranty liability
related to International Gaming shall be included in the Funded Debt to EBITDA
ratio."
12. Section 6.B. of the Agreement is modified by adding the following
clause to the beginning thereof: "Subject to a 15 day cure period, ..."
13. Section 8 of the Agreement is amended to provide that copies of any
notices to Borrower will also be provided to Baker, Donelson, Bearman &
Xxxxxxxx, 20th Floor, First Tennessee Building, 165 Madison, Xxxxxxx, Xxxxxxxxx
00000, Attention: Xxxxxx X. Xxxxxx, and copies of any notices to the Bank will
also be provided to Xxxx & Xxxxxxx, PLC, 2000 First Union Tower, 000 Xxxxxx
Xxxxxx, Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx.
14. Section 1.S. of the Agreement is amended by adding the following
clause to the end thereof: "; and each Security Agreement executed by each
Borrower on February 17, 2000."
15. Section 2 of the Agreement is hereby amended to add the following
paragraph:
"D. COLLATERAL. The Notes and all obligations of Borrower to
Bank shall be secured by the Collateral described in the Security
Agreement.
16. Upon execution of this Fourth Modification, Borrower shall pay to
Bank a modification fee of one-quarter of one percent of the committed loan
facilities as of October 31, 1999, an interest adjustment fee of one-quarter of
one percent on the committed loan facilities as of October 31, 1999 (both of
which one-quarter percent fees will be credited against fees payable on any
restructure signed before April 15, 2000) and the $52,500 extension fee payable
by Borrower when the Third Modification was executed. Borrower shall pay all
costs incidental to this Fourth Modification, including, but not limited to, the
fees and expenses of Lender's counsel and filing fees and taxes.
17. Borrower warrants and represents that (a) the Loan Documents are
valid, binding
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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 Lender 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
Lender from any claim, known or unknown, that Borrower may have against Lender
as of the execution of this Fourth Modification.
18. 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 Fourth Modification and the other written documents among the
parties. The provisions of the Loan Agreement regarding the arbitration of
disputes and other general matters also govern this Fourth 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 Fourth 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/ Xxxxx X. Xxxxxx By: /s/ Xxx X. Xxxxxx, Xx.
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Its: Vice President Its: Director
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By: /s/ Xxxxxx Xxxxxxx
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Its: Secretary
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SCB COMPUTER TECHNOLOGY, INC. PARTNERS RESOURCES, INC.
By: /s/ Xxx X. Xxxxxx, Xx. By: /s/ Xxx X. Xxxxxx, Xx.
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Its: President Its: Director
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By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
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Its: Secretary Its: Secretary
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DELTA SOFTWARE SYSTEMS, INC. PROVEN TECHNOLOGY, INC.
By: /s/ Xxx X. Xxxxxx, Xx. By: /s/ Xxx X. Xxxxxx, Xx.
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Its: President Its: President
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By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
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Its: Secretary Its: Secretary
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TECHNOLOGY MANAGEMENT SCB COMPUTER TECHNOLOGY OF
RESOURCES, INC. ALABAMA, INC.
F/K/A TMR ACQUISITION, INC.
By: /s/ Xxx X. Xxxxxx, Xx. By: /s/ Xxx X. Xxxxxx, Xx.
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Its: President Its: President
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By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
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Its: Secretary Its: Secretary
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