EXHIBIT 10.60
AMENDMENT TO LOAN DOCUMENTS
BORROWER: SEER TECHNOLOGIES, INC.
ADDRESS: 0000 XXXXXXX XXXXXXX
XXXX, XXXXX XXXXXXXX 00000
DATE: DECEMBER 22, 1998
THIS AMENDMENT ("Amendment") is entered into as of the above date between
GREYROCK CAPITAL, a Division of NationsCredit Commercial Corporation (formerly
Greyrock Business Credit) ("GBC"), and the borrower named above ("Borrower")
with respect to the Loan and Security Agreement between GBC and Borrower, dated
Xxxxx 00, 0000 (xx amended from time to time, the "Loan Agreement"). (This
Amendment, the Loan Agreement, all other prior written amendments to the Loan
Agreement signed by GBC and the Borrower, and all other written documents and
agreements between GBC and the Borrower are referred to herein collectively as
the "Loan Documents". Capitalized terms used but not defined in this Amendment,
shall have the meanings set forth in the Loan Agreement.)
Subject to the conditions set forth below, the parties agree to amend the
Loan Agreement as follows, effective on ___________:
1. CREDIT LIMIT. Section 1 of the Schedule is amended in its entirety to
read as follows:
"1. Credit Limit (Section 1.1): Loans ("Receivable Loans") up to the sum
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of the following percentages of Borrower's Eligible Receivables (as defined
in Section 8 above), provided that the total outstanding balance of
Receivable Loans shall not at any time exceed $25,000,000:
"(i) 80% of the amount of eligible U.S. accounts; plus
----
"(ii) the lesser of 80% of Unbilled Receivables (as defined in
Section 8 above) or $3,000,000; plus
----
"(iii) the lesser of 80% of the amount of eligible Australian
accounts or $2,000,000; plus
----
"(iv) 80% of the amount of eligible Irish accounts; plus
----
"(v) 80% of the amount of eligible Netherlands accounts."
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2. INTEREST RATE. Section 2 of the Schedule is amended in its entirety
to read as follows:
"2. Interest Rate (Section 1.2): The interest rate in effect
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throughout each calendar month during the term of this Agreement shall be
the following:
Period Interest Rate
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Amendment Effective Date Prime Rate
through December 31, 1999
January 1, 2000 through Prime Rate plus 1% per annum
December 31, 2000
January 1, 2001 and thereafter Prime Rate plus 2% per annum
"Interest shall be calculated on the basis of a 360-day year for the actual
number of days elapsed. The interest rate applicable to all Loans shall be
adjusted monthly as of the first day of each month, and the interest to be
charged for each month shall be based on the highest "Prime Rate" in effect
during said month.
" `Amendment Effective Date' means the date the Amendment to Loan Documents
between Borrower and GBC dated December 22, 1998 is effective.
" `Prime Rate' means the actual `Reference Rate' or the substitute therefor
of the Bank of America NT & SA (or its successor) whether or not that rate
is the lowest interest rate charged by said bank. If the Prime Rate, as
defined, is unavailable, `Prime Rate' shall mean the highest of the prime
rates published in the Wall Street Journal on the first business day of the
month, as the base rate on corporate loans at large U.S. money center
commercial banks."
3. MATURITY DATE. Section 4 of the Schedule is amended in its entirety to
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read as follows:
"4. Maturity Date (Section 6.1): December 31, 2001, subject to
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automatic renewal as provided in Section 6.1 above, and early termination
as provided in Section 6.2 above."
4. ADDITIONAL PROVISIONS. The following new Section 8 is added to the
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Schedule:
"8. Additional Provisions.
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"(1) Guaranty. Borrower shall concurrently cause Level 8
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Systems, Inc., a New York corporation (`Level 8') to execute and deliver to
GBC a Continuing Guaranty with respect to the Obligations, on GBC's
standard form
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(the `Level 8 Guaranty'), provided that Level 8's liability under the Xxxxx
0 Xxxxxxxx xxxxx xx limited to the `Guaranty Limit' as defined below. The
Guaranty Limit shall be an amount equal to the following (plus all interest
on the obligations of Xxxxx 0 xxxxx xxx Xxxxx 0 Xxxxxxxx, plus all
reasonable costs incurred in enforcing the obligations of Xxxxx 0 xxxxx xxx
Xxxxx 0 Xxxxxxxx):
"(a) During the period from the date of the Level 8 Guaranty to
December 31, 1999, the Guaranty Limit shall be an amount equal to the
amount of the Obligations at the Determination Date (as defined below) in
excess of $20,000,000.
"(b) During the period from January 1, 2000 to December 31, 2000
the Guaranty Limit shall be an amount equal to the amount of the
Obligations at the Determination Date (as defined below) in excess of
$10,000,000.
"From and after January 1, 2001 the liability of Xxxxx 0 xxxxx xxx Xxxxx 0
Xxxxxxxx shall not be limited.
" `Determination Date' shall mean, at any date, the date a written notice
of acceleration of the Obligations is given by GBC to Borrower or Xxxxx 0,
which is not subsequently waived in writing or rescinded in writing. The
Level 8 Guaranty shall continue in full force and effect after any such
waiver or rescission of a written notice of acceleration.
"Borrower shall cause the Level 8 Guaranty to continue in effect until this
Loan Agreement has been terminated and all of the Obligations have been
paid and performed in full.
"(2) Level 8. Without GBC's prior written consent: (a) Borrower
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shall not, and shall not permit any of its subsidiaries to, engage in any
transactions with Level 8 or Level 8's other affiliates on terms less
favorable to Borrower or such subsidiaries than the terms on which an
unaffiliated third party would engage in such transaction; and (b) Borrower
shall not make any transfer of funds or other property to Level 8 or Level
8's other affiliates (other than Borrower's subsidiaries), other than
payments not in contravention of clause (a) above; and (c) Borrower shall
not pay or declare any distributions or dividends, or redeem or repurchase
any of its stock or other securities from Level 8 or any of Level 8's other
affiliates.
"(3) Streamlined Provisions. At such time as the total unpaid
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principal balance of all outstanding Loans is $13,000,000 or less, the
following provisions (the `Streamlined Provisions') shall apply:
"(a) Daily reporting of transactions and daily schedules and
assignments of Receivables and schedules of collections, called for by
Section 4.3 of this Loan Agreement, will not be required. Instead, the
Borrower shall provide GBC with a monthly Borrowing Base Certificate, in
such form as GBC shall from time to time specify, within 10 days after the
end of each month. In
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the event, as of the end of any month, the total of all Loans and all
other Obligations exceeds the Credit Limit, Borrower shall immediately pay
the amount of the excess to GBC.
"(b) Delivery of the proceeds of Receivables and other
Collateral within one business day after receipt, as called for by Sections
4.4 and 5.4 of this Loan Agreement will not be required.
"(c) The Streamlined Provisions shall immediately terminate if
any Event of Default or any event which, with notice or passage of time or
both, would constitute an Event of Default, occurs and is continuing.
"(d) While the Streamlined Provisions are in effect, the total
principal balance of the Loans may not, thereafter, exceed $13,000,000,
unless Borrower elects, by at least three Business Days' prior written
notice to GBC, to terminate the Streamlined Provisions. In the event
Borrower wishes to terminate the Streamlined Provisions, Borrower shall
provide GBC with such information relating to the Receivables and other
Collateral as GBC shall specify in order to enable GBC to complete its
normal Receivables and Collateral review, at least three Business Days
prior to the date the Streamlined Provisions are to terminate.
"(e) Upon termination of the Streamlined Provisions under clause
(c) or (d) above, the Borrower shall, then and thereafter, provide GBC with
the daily reporting of transactions and daily schedules and assignments of
Receivables and schedules of collections, as called for by Section 4.3 of
the Loan Agreement, and the Borrower shall deliver all proceeds of
Receivables and other Collateral to GBC, within one business day after
receipt, as called for by Sections 4.4 and 5.4 of the Loan Agreement."
5. DELETE TERMINATION FEE. The portion of Section 3 of the Schedule, which
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presently reads as follows: "Termination Fee: $20,000 per month for each month
(or portion thereof) from the effective date of termination to the Maturity
Date." is amended to read as follows:
"Termination Fee: None."
6. XXXXX XXXXXX--CONFORMING CHANGES.
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(a) The portion of Section 7.1(n) of the Loan Agreement, which
presently reads as follows: "Welsh Xxxxxx Xxxxxxxx & Xxxxx VI, L.P., a Delaware
limited partnership's equity ownership decreases to less than 51%" is amended to
read as follows:
"Level 8's equity ownership decreases to less than 51%".
(b) Section 7.1(r) of the Loan Agreement (which relates to a Guaranty
by Welsh Xxxxxx Xxxxxxxx & Xxxxx VI, L.P. of certain obligations of the Borrower
to NationsBank, N.A.) is hereby deleted from the Loan Agreement.
7. CONDITIONS. This Amendment is subject to the following conditions
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precedent,
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which the Borrower agrees to use its best efforts to satisfy on or before
December 31, 1998. If, for any reason, said conditions are not satisfied by said
date, the amendments to the Loan Documents set forth in Sections 1 through 6
above shall be of no further force or effect.
(a) Xxxxx 0 Xxxxxxxx. Xxxxx 0 shall have executed and delivered the
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Level 8 Guaranty (as defined above).
(b) Xxxxx 0 Xxxxxxxxx. Xxxxx 0 shall have executed and delivered a
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letter agreement to GBC agreeing to the provisions of Section 8(2) above which
is being added to the Schedule.
(c) Subordinated Debt. Level 8 shall have made a subordinated loan
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to Borrower in the amount of not less than $12,000,000, the proceeds of which
shall be paid to GBC to be applied to the existing Term Loan and next to the
Receivable Loans. Said subordinated loan shall be subject to a subordination
agreement in favor of GBC in form satisfactory to GBC in its discretion, and
shall not permit principal or interest payments thereon during the term of the
Loan Agreement or while any Obligations are outstanding.
(d) Stock Ownership. Level 8 shall have acquired a majority of the
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outstanding shares of voting stock of the Borrower.
(e) Outstanding NationsBank Loan. The presently outstanding loan from
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NationsBank N.A. to the Borrower shall be paid and performed in full.
8. REPRESENTATIONS TRUE. Borrower represents and warrants to GBC that all
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representations and warranties set forth in the Loan Agreement, as amended
hereby, are true and correct.
9. GENERAL PROVISIONS. This Amendment, the Loan Agreement, and the other
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Loan Documents set forth in full all of the representations and agreements of
the parties with respect to the subject matter hereof and supersede all prior
discussions, representations, agreements and understandings between the parties
with respect to the subject hereof. Except as herein expressly amended, all of
the terms and provisions of the Loan Agreement and the other Loan Documents
shall continue in full force and effect and the same are hereby ratified and
confirmed.
Borrower: GBC:
SEER TECHNOLOGIES, INC. GREYROCK CAPITAL,
A Division of NationsCredit Commercial
Corporation
By /s/ Xxxxxx Xxxxxxxxxxx
President or Vice-President By /s/ Xxxxxxx Xxxx
Title: President
By /s/ Xxxxxx Xxxxxxxx
Secretary or Ass't Secretary
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CONSENT
The undersigned, guarantors, acknowledge that their consent to the
foregoing Agreement is not required, but the undersigned nevertheless do hereby
consent to the foregoing Agreement and to the documents and agreements referred
to therein and to all future modifications and amendments thereto, and any
termination thereof, and to any and all other present and future documents and
agreements between or among the foregoing parties. Nothing herein shall in any
way limit any of the terms or provisions of the Continuing Guarantees of the
undersigned, all of which are hereby ratified and affirmed. This Consent may be
executed in counterparts. The signatures of the undersigned shall be fully
effective even if other persons named below fail to sign this Consent.
SEER TECHNOLOGIES IRELAND LIMITED SEER TECHNOLOGIES BENELUX B.V.
By /s/ Xxxxxx XxXxxxxx By /s/ Xxxxxx Xxxxxxxxxxx
Title Title
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By /s/ Xxxxxx Xxxxxxxxxxx By /s/ Xxxxxx XxXxxxxx
Title Title
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