Exhibit 10.1
EXECUTION VERSION
FOURTH AMENDMENT
TO LOAN AND SECURITY AGREEMENT
Fourth Amendment, dated as of June 15, 2003 (this "Amendment"), to the
Loan and Security Agreement, dated as of July 23, 2001 (as previously amended,
the "Loan Agreement"), by and among (i) the lenders identified on the signature
pages hereof (such lenders, together with their respective successors and
assigns, are hereinafter referred to individually as a "Lender" and collectively
as the "Lenders"), (ii) ▇▇▇▇▇ FARGO FOOTHILL, INC., a California corporation
formerly known as Foothill Capital Corporation, as the arranger and
administrative agent for the Lenders ("Agent"), and (iii) SCB COMPUTER
TECHNOLOGY, INC., a Tennessee corporation ("Parent"), and each of Parent's
Subsidiaries identified on the signature pages hereof (such Subsidiaries,
together with Parent, are hereinafter referred to individually as a "Borrower",
and individually and collectively, jointly and severally, as the "Borrowers").
WHEREAS, the Parent and First Tennessee (as hereinafter defined) intend
to enter into the First Tennessee Loan Agreement (as hereinafter defined),
pursuant to which First Tennessee will make a term loan to the Parent in the
principal amount of $6,500,000, the proceeds of which will be used to purchase
certain equipment and software to be utilized in the Parent's performance of its
obligations under a service agreement with IBM Corporation;
WHEREAS, the Borrowers have requested that the Lenders (i) permit the
Parent to incur the Indebtedness under the First Tennessee Loan Agreement, (ii)
permit the Subsidiaries of the Parent to guarantee such Indebtedness, and (iii)
permit the Parent to ▇▇▇▇▇ ▇ ▇▇▇▇ on, and security interest in, certain
collateral in accordance with the First Tennessee Loan Documents (as hereinafter
defined), including, without limitation, the Equipment (as such term is defined
in the First Tennessee Intercreditor Agreement) acquired with the proceeds of
the term loan made by First Tennessee, together with the Servicing Fees and the
Termination Fee payable under the IBM Contracts; and
WHEREAS, the Agent and the Lenders are willing to enter into this
Amendment in order to (i) permit the Indebtedness incurred by the Parent in
accordance with the First Tennessee Loan Agreement, (ii) permit the Subsidiaries
of the Parent to guarantee such Indebtedness, (iii) permit the Parent to ▇▇▇▇▇ ▇
▇▇▇▇ on, and security interest in, certain collateral in accordance with the
First Tennessee Loan Documents (as hereinafter defined), including, without
limitation, the Equipment (as such term is defined in the First Tennessee
Intercreditor Agreement) acquired with the proceeds of the term loan made by
First Tennessee, together with the Servicing Fees and the Termination Fee
payable under the IBM Contracts, and (iv) amend certain other terms and
conditions of the Loan Agreement, in each case subject to the terms and
conditions set forth in this Amendment;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
1. Definitions in Amendment. Any capitalized term used herein and not
defined shall have the meaning assigned to it in the Loan Agreement.
2. Definitions in the Loan Agreement. Section 1.1 of the Loan Agreement
is hereby amended as follows:
(a) The definition of the term "Loan Documents" is hereby
amended to read in its entirety as follows:
"Loan Documents" means this Agreement, the Cash Management
Agreements, the Control Agreements, the Disbursement Letters, the Due
Diligence Letters, the Fee Letter, the Guaranty, the Letters of Credit,
the Letter of Credit Applications, L/C Undertakings, the Remtech
Post-Closing Agreement, the Contribution Agreement, the Officers'
Certificates, the Stock Pledge Agreement, the Trademark Security
Agreement, the Guarantor Security Agreement, the Intercompany
Subordination Agreement, the Remtech Subordination Agreement, the UCC
Filing Authorization Letters, the Warrants, the Registration Rights
Agreement, the First Tennessee Intercreditor Agreement, the
Intercreditor Agreement, any note or notes executed by a Borrower in
connection with this Agreement and payable to a member of the Lender
Group, and any other agreement entered into, now or in the future, by
any Borrower and the Lender Group in connection with this Agreement."
(b) The definition of the term "Material Contract" is hereby
amended to read in its entirety as follows:
"Material Contract" means each of (a) the Honeywell Contract,
(b) the State of Tennessee Contract, (c) the State of Kentucky
Contract, (d) the Federal Express Contract, (e) the Remtech Purchase
Agreement, (f) the First Tennessee Loan Documents and (g) the IBM
Contracts."
(c) The definition of the term "Permitted Liens" is hereby
amended to read in its entirety as follows:
"Permitted Liens" means (a) Liens held by Agent for the
benefit of Agent and the Lenders, (b) Liens for unpaid taxes that
either (i) are not yet delinquent, or (ii) do not constitute an Event
of Default hereunder and are the subject of Permitted Protests, (c)
Liens set forth on Schedule P-1, (d) the interests of lessors under
operating leases, (e) purchase money Liens or the interests of lessors
under Capital Leases to the extent that such Liens or interests secure
Permitted Purchase Money Indebtedness and so long as such Lien attaches
only to the asset purchased or acquired and the proceeds thereof, (f)
Liens arising by operation of law in favor of warehousemen, landlords,
carriers, mechanics, materialmen, laborers, or suppliers, incurred in
the ordinary course of Borrowers' business and not in connection with
the borrowing of money, and which
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Liens either (i) are for sums not yet delinquent, or (ii) are the
subject of Permitted Protests, (g) Liens arising from deposits made in
connection with obtaining worker's compensation or other unemployment
insurance, (h) Liens or deposits to secure performance of bids,
tenders, or leases incurred in the ordinary course of Borrowers'
business and not in connection with the borrowing of money, (i) Liens
granted as security for surety or appeal bonds in connection with
obtaining such bonds in the ordinary course of Borrowers' business, (j)
Liens resulting from any judgment or award that is not an Event of
Default hereunder, (k) with respect to any Real Property, easements,
rights of way, and zoning restrictions that do not materially interfere
with or impair the use or operation thereof by Borrowers, and (l) Liens
created pursuant to the First Tennessee Loan Documents (as in effect on
the date hereof) in favor of First Tennessee securing the Indebtedness
permitted under clause (h) of Section 7.1 and subject to the terms of
the First Tennessee Intercreditor Agreement, provided that any such
Lien of First Tennessee in the Servicing Fee shall be junior and
subordinate to the Lien of the Agent therein."
(d) The following definitions are hereby inserted, in
appropriate alphabetical order:
"Customer Solutions Agreement" means that certain agreement
dated December 24, 1999, as amended by the Statement of Work, entered
into by and between SCB and IBM.
"First Tennessee" means First Tennessee Bank National
Association, a national banking association having its principal place
of business in Memphis, Tennessee.
"First Tennessee Intercreditor Agreement" means the
Intercreditor Agreement, dated as of the date hereof, made by and
between First Tennessee, State Bank, the Loan Parties and the Agent.
"First Tennessee Loan Agreement" means the Loan Agreement,
dated as of the date hereof, made by and between First Tennessee and
the Parent.
"First Tennessee Loan Documents" means the First Tennessee
Loan Agreement and all other agreements, instruments and other
documents executed or delivered in connection with the First Tennessee
Loan Agreement.
"IBM" means International Business Machines Corporation.
"IBM Contracts" means the Customer Solutions Agreement and the
Statement of Work, as amended, restated or supplemented from time to
time.
"Servicing Fees" means all fees, payments or charges payable
by IBM under the IBM Contacts prior to the termination thereof.
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"Statement of Work" means that certain agreement effective
June 1, 2003, entered into by and between SCB and IBM amending the
Customer Solutions Agreement and providing for payment of the Servicing
Fees and the Termination Fee to SCB.
"Termination Fee" means that certain fee payable by IBM under
the Customer Solutions Agreement, as amended by the Statement of Work,
in the event of the termination of the Customer Solutions Agreement and
Statement of Work, with or without cause as provided therein.
3. Fourth Amendment Fee. Section 2.11 of the Loan Agreement is hereby
amended by (a) deleting the word "and" at the end of clause (b) thereof, (b)
deleting the period at the end of clause (c) thereof and substituting ", and"
therefor, and (c) inserting a new clause (d) therein, to read as follows:
"(d) FOURTH AMENDMENT FEE. On the Fourth Amendment Effective
Date and each anniversary of the Fourth Amendment Effective Date during
the term of this Agreement or until the payment in full of all
obligations of Parent under the First Tennessee Loan Documents, a
non-refundable amendment fee in an amount equal to $45,000 on each such
date."
4. Indebtedness. Section 7.1 of the Loan Agreement is hereby amended by
(a) deleting the word "and" at the end of clause (f) thereof, (b) deleting the
period at the end of clause (g) thereof and substituting "; and" therefor, and
(c) inserting a new clause (h) therein, to read as follows:
"(h) Indebtedness incurred by the Parent and the Guarantors
(as such term is defined in the First Tennessee Loan Agreement) in
accordance with the First Tennessee Loan Documents (as in effect on the
date hereof), provided that (i) the aggregate principal amount of such
Indebtedness outstanding at any time does not exceed $6,500,000, (ii)
any of such Indebtedness that is repaid may not be reborrowed, and
(iii) such Indebtedness and interest thereon shall only be repaid in
accordance with the terms and conditions set forth in the First
Tennessee Loan Documents (subject to the terms and conditions of the
First Tennessee Intercreditor Agreement)."
5. Additional Affirmative Covenant. Section 6.3 of the Loan Agreement
is hereby amended by (a) deleting the word "and" at the end of clause (f)
thereof, (b) redesignating existing clause (g) as new clause (h), and (c)
inserting a new clause (g) therein, to read as follows:
"(g) written notice promptly, and in any event within five (5)
Business Days upon any failure by IBM to make any payment of Servicing
Fees, the Termination Fee or other amounts as and when due and payable
pursuant to the any IBM Contract; and"
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6. Additional Negative Covenants. Article 7 of the Loan Agreement is
hereby amended by adding new Section 7.25:
"7.25 AMENDMENT TO FIRST TENNESSEE LOAN DOCUMENTS. Amend,
change, agree to any amendment or other change to, or waive any of its
rights under, any First Tennessee Loan Document, unless any such
change, amendment or waiver is otherwise permitted under the First
Tennessee Intercreditor Agreement."
7. Conditions Precedent. The effectiveness of this Amendment is subject
to the fulfillment, in a manner satisfactory to the Agent, of each of the
following conditions precedent (the first date upon which all such conditions
shall have been fulfilled or waived being herein called the "Fourth Amendment
Effective Date"):
(a) Representations and Warranties; No Event of Default. The
representations and warranties contained herein, in Section 5 of the Loan
Agreement and in each other Loan Document and certificate or other writing
delivered to the Agent or any Lender pursuant hereto on or prior to the Fourth
Amendment Effective Date shall be correct in all material respects on and as of
the Fourth Amendment Effective Date as though made on and as of such date,
except to the extent that such representations and warranties (or any schedules
related thereto) expressly relate solely to an earlier date (in which case such
representations and warranties shall be true and correct in all material
respects on and as of such date); and no Default or Event of Default shall have
occurred and be continuing on the Fourth Amendment Effective Date or would
result from this Amendment becoming effective in accordance with its terms.
(b) Delivery of Documents. The Agent shall have received on or
before the Fourth Amendment Effective Date the following, each in form and
substance satisfactory to the Agent and, unless indicated otherwise, dated the
Fourth Amendment Effective Date:
(i) counterparts of this Amendment which bear the
signatures of each Borrower, the Agent and each Lender;
(ii) a certificate of the chief executive officer or
the chief financial officer of the Parent, certifying that attached thereto are
true, complete and correct copies of the First Tennessee Loan Documents and the
IBM Contracts;
(iii) the First Tennessee Intercreditor Agreement,
duly executed by First Tennessee, State Bank, the Parent and the Agent; and
(iv) such other agreements, instruments, approvals,
opinions and other documents as Agent may reasonably request from the Borrowers.
(c) Proceedings. All proceedings in connection with the
transactions contemplated by this Amendment, and all documents incidental
thereto, shall be satisfactory to the Agent and its counsel, and the Agent and
such counsel shall have received from the Borrowers all such information and
such counterpart originals or certified copies of documents, and such other
agreements, instruments, approvals, opinions and other documents, as the Agent
or such counsel may reasonably request.
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(d) Lender Group Expenses. Borrowers shall have paid to Agent
and each Lender, in immediately available funds, an amount equal to all Lender
Group Expenses which were incurred by such Person in connection with the
preparation, execution and delivery of this Amendment and the other related
agreements, instruments and documents.
(e) Fourth Amendment Fee. The Borrowers shall have paid to the
Agent, for the benefit of the Lender Group, in immediately available funds, the
non-refundable amendment fee, fully earned and payable in accordance with
Section 3 of this Amendment, which fee may be charged to the Loan Account.
8. Representations and Warranties. Each Borrower hereby represents and
warrants to the Agent and the Lenders as follows:
(a) Each Borrower (i) is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation
and (ii) has all requisite corporate power, authority and legal right to
execute, deliver and perform this Amendment and the other agreements instruments
and documents required to be delivered by it pursuant to Section 7 hereof
(together with this Amendment, collectively the "Fourth Amendment Documents")
and the First Tennessee Loan Documents to which it is a party, and to perform
the Loan Agreement, as amended hereby.
(b) The execution, delivery and performance by the Borrowers
of this Amendment and the other Fourth Amendment Documents and First Tennessee
Loan Documents to which it is a party and the performance by the Borrowers of
the Loan Agreement as amended hereby (i) have been duly authorized by all
necessary corporate action, (ii) do not and will not violate or create a default
under any Borrower's charter or by-laws, any applicable law or any contractual
restriction binding on or otherwise affecting any Borrower or any Borrower's
properties, and (iii) except as provided in the Loan Documents, do not and will
not result in or require the creation of any lien, security interest or other
charge or encumbrance upon or with respect to any Borrower's property.
(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or other regulatory body is
required in connection with the due execution, delivery and performance by any
Borrower of this Amendment, any other Fourth Amendment Document or any First
Tennessee Loan Document or the performance by any Borrower of the Loan
Agreement, as amended hereby.
(d) Each of this Amendment, the other Fourth Amendment
Documents, the First Tennessee Loan Documents and the Loan Agreement, as amended
hereby, constitutes the legal, valid and binding obligations of each Borrower
that is a party thereto, enforceable against each Borrower in accordance with
their terms.
(e) The representations and warranties contained in Section 5
of the Loan Agreement are true and correct on and as of the Fourth Amendment
Effective Date as though made on and as of the Fourth Amendment Effective Date
(except to the extent such representations and warranties expressly relate to an
earlier date), and no Event of Default has occurred and is continuing on and as
of the Fourth Amendment Effective Date.
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(f) The Parent has delivered to Agent a true, complete and
correct copy of the First Tennessee Loan Agreement, including all schedules and
exhibits thereto, all other First Tennessee Loan Documents and the IBM
Contracts. The First Tennessee Loan Documents and the IBM Contracts set forth
the entire agreement and understanding of the parties thereto relating to the
subject matter thereof, and there are no other agreements, arrangements or
understandings, written or oral, relating to the matters covered thereby.
9. Miscellaneous.
(a) Continued Effectiveness of the Loan Agreement. Except as
otherwise expressly provided herein, the Loan Agreement and the other Loan
Documents are, and shall continue to be, in full force and effect and are hereby
ratified and confirmed in all respects, except that on and after the Fourth
Amendment Effective Date (i) all references in the Loan Agreement to "this
Agreement", "hereto", "hereof", "hereunder" or words of like import referring to
the Loan Agreement shall mean the Loan Agreement as amended by this Amendment,
and (ii) all references in the other Loan Documents to which any Borrower is a
party to the "Loan Agreement", "thereto", "thereof", "thereunder" or words of
like import referring to the Loan Agreement shall mean the Loan Agreement as
amended by this Amendment. Except as expressly provided herein, the execution,
delivery and effectiveness of this Amendment shall not operate as an amendment
of any right, power or remedy of Agent or any Lender under the Loan Agreement or
any other Loan Document, nor constitute an amendment of any provision of the
Loan Agreement or any other Loan Document.
(b) Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts,
including by facsimile, each of which shall be deemed to be an original, but all
of which taken together shall constitute one and the same agreement.
(c) Headings. Section headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(d) Governing Law. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.
(e) Costs and Expenses. The Borrowers jointly and severally
agree to pay on demand all reasonable fees, costs and expenses of Agent and each
Lender in connection with the preparation, execution and delivery of this
Amendment and the other related agreements, instruments and documents.
(f) Amendment as Loan Document. Each Borrower hereby
acknowledges and agrees that this Amendment constitutes a "Loan Document" under
the Loan Agreement. Accordingly, it shall be an Event of Default under the Loan
Agreement (i) if any representation or warranty made by a Borrower under or in
connection with this Amendment shall have been untrue, false or misleading in
any material respect when made or (ii) if Borrowers fail to perform, keep, or
observe any term, provision, condition, covenant, or agreement contained in this
Amendment.
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(g) Waiver of Jury Trial. EACH BORROWER, THE AGENT AND THE
LENDERS HEREBY IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AMENDMENT OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first above written.
BORROWERS:
SCB COMPUTER TECHNOLOGY, INC.,
a Tennessee corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Executive Vice President
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SCB COMPUTER TECHNOLOGY OF ALABAMA, INC.,
an Alabama corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Executive Vice President
-----------------------------------
PARTNERS RESOURCES INC.,
an Arizona corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Executive Vice President
-----------------------------------
REMTECH SERVICES, INC.,
a Virginia corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Executive Vice President
-----------------------------------
AGENT AND LENDER:
▇▇▇▇▇ FARGO FOOTHILL, INC.,
a California corporation, as Agent and
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President
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