EXHIBIT 10.32
AMENDED SCHEDULE TO
LOAN AND SECURITY AGREEMENT
BORROWERS: SEER TECHNOLOGIES, INC.
XXXXX 0 SYSTEMS, INC.
ADDRESS: 0000 XXXXXXX XXXXXXX
XXXX, XXXXX XXXXXXXX 00000
DATE: APRIL 21, 1999
This Amended Schedule to Loan and Security Agreement is an integral part of the
Loan and Security Agreement between GREYROCK CAPITAL, A DIVISION OF
NATIONSCREDIT COMMERCIAL CORPORATION ("Greyrock") and the above-borrower
("Borrower") dated MARCH 31, 1999.
1. CREDIT LIMIT
(Section 1.1): An amount not to exceed the lesser of: $25,000,000 (the
"Dollar Limit") at any one time outstanding; or the sum of the outstanding
Receivable Loans under subparagraph (a) below, minus the Reserve under
subparagraph (b) below, plus the outstanding Replacement Term Loan under
subparagraph (c) below.
(a) Receivable Loans. Loans ("Receivable Loans") up to the sum of
------------------
the following percentages of Borrower's Eligible Receivables (as defined in
Section 8 above):
(i) 80% of the amount of eligible U.S. accounts; plus
----
(ii) the lesser of 80% of Unbilled Receivables (as defined below) or
$7,000,000; plus
----
(iii) the lesser of 80% of the amount of eligible Australian Receivables or
$2,000,000; plus
----
(iv) 80% of the amount of eligible Irish Receivables; plus
----
(V) 80% of the amount of eligible Netherlands Receivables.
As used herein "Unbilled Receivables" shall mean Receivables with respect to
which the invoice and other necessary billing documentation have not been
submitted to the applicable Account Debtor in connection with a completed (or
contracted) sale of goods, rendition of services or licensing of software but
which otherwise qualify as Eligible Receivables for purposes of the Loan
Agreement.
Receivable Loans will be made separately to each Borrower based on the
Receivables of each Borrower. Loans with respect, but subject to the dollar
limits set forth above, which shall apply to the total Receivable Loans to all
Borrowers.
(b) Receivable Loans-Reserve. From the Receivable Loans available to
--------------------------
Borrower under subparagraph (a) above, Greyrock shall withhold a reserve (the
"Reserve") in an initial amount of $583,333, concurrently herewith. The Reserve
shall increase by $83,333 per month, commencing on May 31, 1999, and continuing
on the last day of each succeeding month. If, on a date on which the amount of
the Reserve is to be increased, the Borrower does not have Receivable Loans
available to it in an amount equal to the amount of the increase in the Reserve,
then Borrower shall immediately make a payment to Greyrock to be applied to the
outstanding Receivable Loans, so that, after giving effect to such payment,
Borrower will have Receivable Loans available to it in an amount equal to the
amount of the increase in the Reserve.
(c) Replacement Term Loan. A Loan (the "Replacement Term Loan") in
------------------------
the original principal amount of $10,000,000. The present unpaid balance of the
Term Loan and the Equipment Loan outstanding under the Schedule to Loan
Agreement dated March 31, 1999 between Borrower and Greyrock shall be converted
into the Replacement Term Loan, and any remaining balance of the Replacement
Term Loan will be disbursed to Seer concurrently herewith. The Replacement Term
Loan shall be subject to the following terms:
(1) The Replacement Term Loan shall be due and payable, in full, on the earlier
of (A) SEPTEMBER 1, 2000, or (B) any termination of this Agreement.
(2) Accrued interest on the Replacement Term Loan shall be paid monthly on the
last day of each month as provided in Section 1.2 above and Section 2 below.
(3) The Replacement Term Loan after being repaid in whole or in part may not be
reborrowed.
(d) Foreign Accounts. Notwithstanding the foregoing, Loans will not be made with
-----------------
respect to Australian, Irish or Netherlands Receivables unless and until the
following conditions are satisfied:
(i) Borrower or one of its subsidiaries has good title to the Receivables, free
and clear of all liens, security interests and encumbrances (other than in favor
of Greyrock);
(ii) if the Receivables are owned by a subsidiary of Borrower, such subsidiary
shall execute and deliver to Greyrock a continuing guaranty in form and
substance satisfactory to Greyrock with respect to all of the Obligations and a
security agreement or other documentation specified by Greyrock, granting to
Greyrock a first priority perfected security interest in all of such Receivables
and all such subsidiary's other assets, and Greyrock shall receive such
opinions, certificates and other documents in connection therewith as it shall
specify; and
(iii) if the Receivables are owned by Borrower, Borrower shall execute and
deliver to Greyrock a security agreement or other supplemental or additional
documentation specified by Greyrock, confirming the grant to Greyrock a first
priority perfected security interest in all of such Receivables and Greyrock
shall receive such opinions, certificates and other documents in connection
therewith as it shall specify.
Borrower shall cause all of the foregoing documents and agreements and security
interests to continue in full force and effect throughout the term of this
Agreement.
LETTER OF CREDIT SUBLIMIT Greyrock, in its reasonable business
discretion, will from time to time during the term of this Agreement issue
letters of credit for the account of the Borrower ("Letters of Credit"), in
accordance with a Letter of Credit Agreement of even date, in an aggregate
amount at any one time outstanding not to exceed $500,000, upon the request of
the Borrower, provided that, on the date the Letters of Credit are to be issued,
Borrower has available to it Loans in an amount equal to or greater than the
face amount of the Letters of Credit to be issued, and provided that no further
LCs will be issued after MAY 31, 2000. Fees for the Letters of Credit shall be
as provided in said Letter of Credit Agreement.
The Credit Limit set forth above and the Loans available under this Agreement at
any time shall be reduced by the face amount of Letters of Credit from time to
time outstanding.
2. INTEREST.
INTEREST RATE (Section 1.2):
The interest rate in effect throughout each calendar month during the term of
this Agreement shall be a rate equal to the Prime Rate plus 2% per annum. Said
interest rate shall be applicable to all Loans (including without limitation the
Receivable Loans and the Replacement Term Loan) and all other Obligations:
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.
"Prime Rate" shall mean 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. FEES (Section 1.3/Section 6.2):
Loan Fee: NOT APPLICABLE
Termination Fee: NOT APPLICABLE
NSF Check Charge: $15.00 per item.
Wire Transfers: $15.00 per transfer.
4. MATURITY DATE
(Section 6.1): SEPTEMBER 1, 2000, subject to automatic renewal as
provided in Section 6.1 above, and early termination as provided in Section 6.2
above.
5. REPORTING.
(Section 5.2):
Borrower shall provide Greyrock with the following:
1. Annual financial statements, as soon as available, and in any event
within 90 days following the end of Borrower's fiscal year, certified by
independent certified public accountants acceptable to Greyrock.
2. Quarterly unaudited financial statements, as soon as available, and in
any event within 45 days after the end of each fiscal quarter of Borrower.
3. Monthly unaudited financial statements, as soon as available, and in any
event within 30 days after the end of each month.
4. Monthly Receivable agings, aged by invoice date, within 10 Business Days
after the end of each month which is not a fiscal quarter end and 15 Business
Days after the end of each month which is a fiscal quarter end.
5. Monthly accounts payable agings, aged by invoice date, and outstanding or
held check registers within 10 Business Days after the end of each month which
is not a fiscal quarter end and 15 Business Days after the end of each month
which is a fiscal quarter end.
6. BORROWER INFORMATION:
PRIOR NAMES OF
BORROWER
(Section 3.2): None
PRIOR TRADE
NAMES OF BORROWER
(Section 3.2): None
EXISTING TRADE
NAMES OF BORROWER
(Section 3.2): None
OTHER LOCATIONS AND
ADDRESSES (Section 3.3): See Exhibit A hereto
MATERIAL ADVERSE
LITIGATION (Section 3.10): None
7. OTHER COVENANTS:
Borrower shall at all times comply with all of the following
additional covenants:
(1) SEER COPYRIGHT FILINGS. Seer has previously executed and delivered to
Greyrock a Security Agreement in Copyrighted Works (the "Seer Copyright
Agreement"), which shall continue in full force and effect. Borrower represents
and warrants to Greyrock that the Seer Copyright Agreement covers all of Seer's
computer software, the licensing of which results in Receivables and that all
such software has been registered with the United States Copyright Office.
Without limiting the generality of the foregoing, Borrower represents and
warrants that all of the software listed on Exhibit B to the Seer Copyright
Agreement is included in the software listed on Exhibit A to the Seer Copyright
Agreement, which is registered with the United States Copyright Office.
(2) LEVEL 8 COPYRIGHT FILINGS. Level 8 has previously executed and delivered
to Greyrock a Security Agreement in Copyrighted Works (the "Level 8 Copyright
Agreement"). On or before MAY 14, 1999, Borrower shall (i) cause all of Level
8's computer software, the licensing of which results in Receivables, to be
filed for registration with the United States Copyright Office, (ii) complete
the Exhibits to the Level 8 Copyright Agreement with all of the information
called for with respect to such software, (iii) cause the Level 8 Copyright
Agreement to be filed for recordation in the United States Copyright Office, and
(iv) provide evidence of such recordation to Greyrock.
(3) EQUITY. On or before MAY 31, 1999, Borrower shall raise not less than
$10,000,000 cash proceeds of the issuance by Borrower of equity or subordinated
debt securities (the "Private Placement Proceeds"), and on or before said date,
Borrower shall provide Greyrock with written evidence of the same satisfactory
to Greyrock in its discretion. Without limiting any of the other terms of this
Agreement, a breach of this Section 7(3) shall constitute an Event of Default
under this Agreement. Without limiting any of the other terms of this Agreement,
Borrower shall at all times maintain the Private Placement Proceeds in Borrower
for use in its business, and Borrower shall not in any manner transfer the
Private Placement Proceeds to any Person whether by loan, dividend, repayment of
any indebtedness or obligation, redemption, stock repurchase, distribution or
any other transaction of any kind whatsoever, other than payment of Borrower's
current normal expenses of operation in the ordinary course of business.
(4) GUARANTIES. Concurrently each Borrower shall execute an unlimited
Cross-Corporate Continuing Guaranty with respect to the other Borrower, and
Borrower shall cause the same to continue in full force and effect throughout
the term of this Agreement. Borrower represents and warrants that (i) each of
its subsidiaries is listed on Exhibit B hereto, (ii) the subsidiaries shown
thereon as foreign subsidiaries (other than the subsidiaries incorporated in
Ireland, Australia and the Netherlands) are and shall at all times continue to
be sales offices only without significant assets, and (iii) the subsidiaries
shown thereon as U.S. subsidiaries are and shall at all times continue to be
dormant corporations without assets. Each Borrower shall, on or before MAY 14,
1999, cause all of the subsidiaries listed on Exhibit B to execute and deliver
to Greyrock Continuing Guaranties with respect to Borrower and security
agreements and other documents as Greyrock shall specify in order to grant
Greyrock a first-priority security interest in all of the assets of said
subsidiaries.
(5) UCC FILINGS. Borrower represents and warrants that all indebtedness
secured by the following UCC-1 Financing Statements has been paid and performed
in full, and Borrower has caused the following UCC-1 Financing Statements to be
terminated of record and Borrower shall concurrently provide evidence of the
same to Greyrock:
Filing Office Filing Date File No. Secured Party
------------- ----------- -------- -------------
Florida Secy of State. 06/12/96 960000121248 Tech Data Corporation
------------------------ -------- ------------ ---------------------
New York Secy of State 09/14/94 188514 Xxxxxxx Xxxxx Business
-------- ------ ------------------------
Financial Services Inc.
-------------------
New York Secy of State 06/13/96 118047 Tech Data Corporation
-------------------------- -------- ------ -----------------------
(6) BANK ACCOUNTS. On or before APRIL 30, 1999, Borrower shall cause its
banks located in the United States, to execute and deliver such documentation as
Greyrock shall reasonably specify in order to provide Greyrock with a
first-priority perfected security interest in the same.
Borrower:
SEER TECHNOLOGIES, INC.
By /s/ Xxxxxx Xxxxxxxxxxx
---------------------------
President or Vice President
By Xxxxxx XxXxxxxx
------------------------------
Secretary or Ass't Secretary
Borrower:
LEVEL 8 SYSTEMS, INC.
By /s/ Xxxxxx Xxxxxxxxxxx
--------------------------
President or Vice President
By Xxxxxx XxXxxxxx
------------------------------
Secretary or Ass't Secretary
Greyrock:
GREYROCK CAPITAL,
a Division of NationsCredit Commercial Corporation
By Xxxx Xxxxxx
------------
Title Senior Vice President
EXHIBIT A
SEER TECHNOLOGIES, INC.-LOCATIONS
LEVEL 8 SYSTEMS, INC.-LOCATIONS
EXHIBIT B
U.S. SUBSIDIARIES
FOREIGN SUBSIDIARIES
