FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First
Amendment"), dated as of March 27, 1997, is entered into between SEER
TECHNOLOGIES, INC., a Delaware corporation (the "Borrower"), and
NATIONSBANK, N.A. (the "Bank").
BACKGROUND
A. The Borrower and the Bank heretofore entered into that
certain Credit Agreement, dated as of July 15, 1996 (the "Credit Agreement";
the terms defined in the Credit Agreement and not otherwise defined herein
shall be used herein as defined in the Credit Agreement).
B. The Borrower and the Bank desire to amend the Credit
Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions
and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are all hereby acknowledged,
the Borrower and the Bank covenant and agree as follows:
1. AMENDMENTS.
(a) The definition of "Existing Credit Agreement" set forth
in Article 1 of the Credit Agreement is hereby deleted and the following is
substituted in lieu thereof:
"'Existing Loan Agreement' means that certain Loan
Agreement, dated as of February 24, 1995, between the Borrower and
NationsBank, N.A. (formerly known as NationsBank, N.A. (Carolinas)), as
amended by that certain First Consolidated Amendment Agreement, dated as of
February 22, 1996, between the Borrower and the Bank and that certain Second
Consolidated Amendment Agreement, dated as of July 19, 1996, and all
references herein to the Existing Loan Agreement shall continue not
withstanding the termination of the Existing Loan Agreement."
(b) The defined term "Incorporated Covenants" is hereby
added to Article 1 of the Credit Agreement to read as follows:
"'Incorporated Covenants' means, collectively,
(a) Paragraphs 3(a), 3(b), 3(c), 3(e), 3(f), 3(g), 3(h) and 3(k) of
the Existing Loan Agreement and
(b) Paragraphs 4(a), 4(c), 4(d), 4(e), and
4(j)(iii) of the Existing Loan Agreement."
(c) The definition of "Maturity Date" set forth in Article
1 of the Credit Agreement is hereby deleted and the following is substituted
in lieu thereof:
"'Maturity Date' means (a) June 30, 1998 or (b) the earlier
date of termination in whole of the Commitment pursuant to Section 2.6 of 6.2
hereof."
(d) Section 5.1 of the Credit Agreement is hereby deleted
and the following is substituted in lieu thereof:
"Section 5.1 Existing Loan Agreement Covenants. Until the
Release Date, the Borrower will comply with all of the Incorporated Covenants.
For purposes hereof, all of the Incorporated Covenants and all definitions
related thereto are hereby reaffirmed and adopted by the Borrower and are
incorporated herein, mutatis mutandis. In the event of termination of the
Existing Loan Agreement prior to the Release Date, the Borrower covenants and
agrees that the Incorporated Covenants shall nevertheless remain in full force
and effect and be binding upon the Borrower, and the Borrower shall continue
to perform and comply with all of the Incorporated Covenants until the Release
Date."
(e) Section 6.1(d) of the Credit Agreement is hereby
deleted and the following is substituted in lieu thereof:
"(d) INTENTIONALLY OMITTED"
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By
its execution and delivery hereof, the Borrower represents and warrants that,
as of the date hereof and after giving effect to the amendments contemplated
by the foregoing Section 1:
(a) the representations and warranties contained in the
Credit Agreement are true and correct on and as of the date hereof as made on
and as of such date;
(b) no event has occurred and is continuing which
constitutes a Default or an Event of Default;
(c) the Borrower has full power and authority to execute
and deliver this First Amendment, and this First Amendment and the Credit
Agreement, as amended hereby, constitute the legal, valid and binding
obligations of the Borrower, enforceable in accordance with their respective
terms, except as enforceability may be limited by applicable debtor relief
laws and by general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and except as rights to indemnity
may be limited by federal or state securities laws; and
(d) no authorization, approval, consent, or other action
by, notice to, or filing with, any governmental authority or other Person
(including the Board of Directors of the Borrower or any partner of the
Guarantor) is required for the execution, delivery or performance by the
Borrower of this First Amendment or the acknowledgement by the Guarantor of
this First Amendment.
3. CONDITIONS OF EFFECTIVENESS. This First Amendment shall be
effective as of the date first above written, subject to the following:
(a) the Bank shall have received counterparts of this First
Amendment executed by the Borrower and acknowledged by the Guarantor;
(b) the Bank shall have received an amendment fee from the
Borrower in the amount of $25,000, paid in immediately available funds; and
(c) the Bank shall have received, in form and substance
satisfactory to the Bank and its counsel, such other documents, certificates
and instruments as the Bank shall require.
4. GUARANTOR'S ACKNOWLEDGEMENT. By signing below, the Guarantor
(a) acknowledges this First Amendment,
(b) agrees that its obligations in respect of its Guaranty
Agreement (i) are not released, modified, impaired or affected in any manner
by this First Amendment or any of the provisions contemplated herein
and (ii) cover the Commitment as extended by this First Amendment,
(c) ratifies and confirms its obligations under its Guaranty
Agreement,
(d) acknowledges and agrees that it has no claims or offsets
against, or defenses or counterclaims to its obligations under, its Guaranty
Agreement, and
(e) represents and warrants that no consent or approval of
any partner of the Guarantor or any other Person is required for the
acknowledgement by the Guarantor of this First Amendment.
5. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this First Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", or words
of like import shall mean and be a reference to the Credit Agreement, as
affected and amended hereby.
(b) The Credit Agreement, as amended by the amendments
referred to above, shall remain in full force and effect and is hereby
ratified and confirmed.
6. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on
demand all costs and expenses of the Bank in connection with the preparation,
reproduction, execution and delivery of this First Amendment and the other
instruments and documents to be delivered hereunder (including the reasonable
fees and out-of-pocket expenses of counsel for the Bank with respect thereto
and with respect to advising the Bank as to its rights and responsibilities
under the Credit Agreement, as hereby amended).
7. EXECUTION IN COUNTERPARTS. This First Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall constitute
but one and the same instrument.
8. GOVERNING LAW: BINDING EFFECT. This First Amendment shall be
governed by and construed in accordance with the laws of the State of North
Carolina and shall be binding upon the Borrower and each Bank and their
respective successors and assigns.
9. HEADINGS. Section headings in this First Amendment are
included herein for convenience of reference only and shall not constitute a
part of this First Amendment for any other purpose.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS
FIRST AMENDMENT, AND THE OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE
NO ORAL UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
11. BANK ACKNOWLEDGEMENT. The Bank acknowledges and consents to
the Borrower's execution, delivery and performance of its obligations under
that Loan and Security Agreement, Security Agreement in Copyrighted Works and
Patent and Trademark Security Agreement, each dated March 28, 1997, with
Greyrock Business Credit, a division of NationsCredit Commercial Corporation,
and waives any Default or Event of Default under the Credit Agreement or other
Loan Documents that might otherwise be occasioned thereby.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as the date first above written.
SEER TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxxx
Title: Senior VP and CFO
NATIONSBANK, N.A.
By: /s/Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Senior VP
ACKNOWLEDGED AND AGREED:
WELSH, CARSON, XXXXXXXX & XXXXX VI, L.P.,
a Delaware limited partnership
By: WCAS VI PARTNERS, a Delaware
limited partnership, General Partner
By:/s/ Xxxxxxx xx Xxxxxx
General Partner
Name: Xxxxxxx xx Xxxxxx
