SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) December 31, 1998
Seer Technologies, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 0-26194 13-3556562
(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
8000 Regency Parkway
Cary, North Carolina 27511
(Address of Principal Executive Offices)
Registrant's telephone number, including area code (919) 380-5000
N/A
(Former Name or Former Address, if Changed Since Last Report)
Item 1. Changes in Control of Registrant
On December 31, 1998, Level 8 Systems, Inc. ("Level 8"), as the first
step in its pending acquisition of the entire equity interest in the
Registrant, acquired approximately 69% of the outstanding common stock of
the Registrant held by Welsh, Carson, Anderson and Stowe VI L.P. ("WCAS")
and certain other parties affiliated or associated with WCAS in
exchange for 1,000,000 shares of Level 8 common stock and warrants to
purchase an additional 250,000 shares of Level 8 common stock at an
exercise price of $12.00 per share. Level 8 acquired 7,130,894 shares of
the Registrant's common stock, 2,094,143 shares of the Registrant's Series
A Convertible Preferred Stock, and 1,762,115 shares of the Registrant's
Series B Convertible Preferred Stock from WCAS representing approximately
69% of the outstanding common stock of the Registrant and, as a
consequence, may be deemed to control the Registrant.
In connection with Level 8's purchase of the Registrant common stock
from WCAS, WCAS contributed approximately $17 million to the Registrant,
and Level 8 provided a $12 million subordinated loan to the Registrant to
pay down the Registrant's bank debt. In addition, Level 8 has guaranteed
any borrowings under the Registrant's revolving credit facility exceeding
$20 million through December 31, 1999 and has agreed to fund
the Registrant's operations, as appropriate, through January 15, 2000.
Level 8 also agreed to acquire all of the remaining shares of the
Registrant's common stock for $0.35 per share in cash as soon as
practicable upon completion of the required filings and approvals.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
Exhibit
2.1 Agreement dated November 23, 1998, among Level 8 Systems,
Inc. ("Level 8") and the WCAS parties named therein
relating to the acquisition of capital stock of the
Registrant by Level 8 (incorporated by reference to Exhibit
2.1 to the Registrant's Form 10-K for the year ended
September 30, 1998).
10.1 Level 8 Guaranty Agreement dated December 31, 1998 (filed
herewith).
10.2 Registrant Promissory Note dated December 31, 1998 in favor
of Level 8 in the principal amount of $12,000,000 (filed
herewith).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
SEER TECHNOLOGIES, INC.
Date: January 15, 1999 By: /s/Dennis McKinnie
Name: Dennis McKinnie
Title: Chief Legal & Administrative
Officer
[Greyrock Letterhead] Exhibit 10.1
Continuing Guaranty
Borrower: Seer Technologies, Inc.
Guarantor: Level 8 Systems, Inc., a New York corporation
Date: December 31, 1998
This Continuing Guaranty is executed by the above-named guarantor(s)
(jointly and severally, the Guarantor), as of the above date, in favor of
Greyrock Capital, a Division of NationsCredit Commercial Corporation
(formerly Greyrock Business Credit) (Greyrock), whose address is 10880
Wilshire Blvd. Suite 950, Los Angeles, CA 90024, with respect to the
Indebtedness of the above-named borrower (Borrower).
1. Continuing Guaranty. Guarantor hereby unconditionally guarantees
and promises to pay on demand to Greyrock, at the address indicated above,
or at such other address as Greyrock may direct, in lawful money of the
United States, all Indebtedness of Borrower now or hereafter owing to or
held by Greyrock. As used herein, the term Indebtedness is used in its
most comprehensive sense and shall mean and include without limitation:
(a) any and all debts, duties, obligations, liabilities, representations,
warranties and guaranties of Borrower or any one or more of them,
heretofore, now, or hereafter made, incurred, or created, whether voluntary
or involuntary, due or not due, absolute or contingent, liquidated or
unliquidated, certain or uncertain, determined or undetermined, monetary or
nonmonetary, written or oral, and whether Borrower may be liable
individually or jointly with others, and regardless of whether recovery
thereon may be or hereafter become barred by any statute of limitations,
discharged or uncollectible in any bankruptcy, insolvency or other
proceeding, or otherwise unenforceable; and (b) any and all amendments,
modifications, renewals and extensions of any or all of the foregoing,
including without limitation amendments, modifications, renewals and
extensions which are evidenced by any new or additional instrument,
document or agreement; and (c) any and all attorneys' fees, court costs,
and collection charges incurred in endeavoring to collect or enforce any of
the foregoing against Borrower, Guarantor, or any other person liable
thereon (whether or not suit be brought) and any other expenses of, for or
incidental to collection thereof. As used herein, the term Borrower shall
include any successor to the business and assets of Borrower, and shall
also include Borrower in its capacity as a debtor or debtor in possession
under the federal Bankruptcy Code, and any trustee, custodian or receiver
for Borrower or any of its assets, should Borrower hereafter become the subject
of any bankruptcy or insolvency proceeding, voluntary or
involuntary; and all indebtedness, liabilities and obligations incurred by
any such person shall be included in the Indebtedness guaranteed hereby.
This Guaranty is given in consideration for credit and other financial
accommodations which may, from time to time, be given by Greyrock to
Borrower in Greyrock's sole discretion, but Guarantor acknowledges and
agrees that acceptance by Greyrock of this Guaranty shall not constitute a
commitment of any kind by Greyrock to extend such credit or other financial
accommodation to Borrower or to permit Borrower to incur Indebtedness to
Greyrock. All sums due under this Guaranty shall bear interest from the
date due until the date paid at the highest rate charged with respect to
any of the Indebtedness. *
* 1A. Limitation of Liability. Notwithstanding anything to the contrary
herein, the total liability of Guarantor hereunder shall be limited to the
"Guaranty Limit" (as defined below). The "Guaranty Limit" shall be an
amount equal to the following (plus all interest thereon, plus all
reasonable costs and attorneys fees incurred in enforcing the obligations
of Guarantor under this Guaranty):
(a) During the period from the date hereof to December 31, 1999, the
Guaranty Limit shall be an amount equal to the amount of the
Indebtedness 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
Indebtedness at the Determination Date (as defined below) in excess of
$10,000,000.
(c) From and after January 1, 2001 the liability of Guarantor under
this Guaranty shall not be limited.
"Determination Date" shall mean, at any date, the date a written notice of
acceleration of the Indebtedness is given by Greyrock to Borrower or
Guarantor, which notice of acceleration is not subsequently waived in
writing or rescinded in writing by Greyrock. In the event of any such
waiver or rescission of a written notice of acceleration, this Guaranty
shall continue in full force and effect thereafter.
Guarantor's liability hereunder shall not be reduced or affected by the
fact that the Indebtedness may exceed the Guaranty Limit or the fact that
the Indebtedness may be reduced below said amount and subsequently
increased.
The Guaranty Limit shall be in effect, and the Guarantor shall remain
liable up to such Guaranty Limit, even if the amount of the Indebtedness is
subsequently reduced, so that, by way of example and not by way of
limitation, if written notice of acceleration of the Indebtedness was given
by Greyrock to Borrower or Guarantor on September 1, 1999, and if the
outstanding Indebtedness on that date was $23,000,000, then the Guarantor
would be liable hereunder for $3,000,000 (plus interest and reasonable
costs as set forth above), and such liability would not be reduced by any
subsequent payment by the Borrower, recovery from collateral or other
reduction in the Indebtedness.
2. Waivers. Guarantor hereby waives: (a) presentment for payment,
notice of dishonor, demand, protest, and notice thereof as to any
instrument, and all other notices and demands to which Guarantor might be
entitled, including without limitation notice of all of the following: the
acceptance hereof; the creation, existence, or acquisition of any
Indebtedness; the amount of the Indebtedness from time to time outstanding;
any foreclosure sale or other disposition of any property which secures any
or all of the Indebtedness or which secures the obligations of any other
guarantor of any or all of the Indebtedness; any adverse change in
Borrower's financial position; any other fact which might increase
Guarantor's risk; any default, partial payment or non-payment of all or any
part of the Indebtedness; the occurrence of any other Event of Default (as
hereinafter defined); any and all agreements and arrangements between
Greyrock and Borrower and any changes, modifications, or extensions
thereof, and any revocation, modification or release of any guaranty of any
or all of the Indebtedness by any person (including without limitation any
other person signing this Guaranty); (b) any right to require Greyrock to
institute suit against, or to exhaust its rights and remedies against,
Borrower or any other person, or to proceed against any property of any
kind which secures all or any part of the Indebtedness, or to exercise any
right of offset or other right with respect to any reserves, credits or
deposit accounts held by or maintained with Greyrock or any indebtedness of
Greyrock to Borrower, or to exercise any other right or power, or pursue
any other remedy Greyrock may have; (c) any defense arising by reason of
any disability or other defense of Borrower or any other guarantor or any
endorser, co-maker or other person, or by reason of the cessation from any
cause whatsoever of any liability of Borrower or any other guarantor or any
endorser, co-maker or other person, with respect to all or any part of the
Indebtedness, or by reason of any act or omission of Greyrock or others
which directly or indirectly results in the discharge or release of
Borrower or any other guarantor or any other person or any Indebtedness or
any security therefor, whether by operation of law or otherwise; (d) any
defense arising by reason of any failure of Greyrock to obtain, perfect,
maintain or keep in force any security interest in, or lien or encumbrance
upon, any property of Borrower or any other person; (e) any defense based
upon any failure of Greyrock to give Guarantor notice of any sale or other
disposition of any property securing any or all of the Indebtedness, or any
defects in any such notice that may be given, or any failure of Greyrock to
comply with any provision of applicable law in enforcing any security
interest in or lien upon any property securing any or all of the
Indebtedness including, but not limited to, any failure by Greyrock to
dispose of any property securing any or all of the Indebtedness in a
commercially reasonable manner; (f) any defense based upon or arising out
of any bankruptcy, insolvency, reorganization, arrangement, readjustment of
debt, liquidation or dissolution proceeding commenced by or against
Borrower or any other guarantor or any endorser, co-maker or other person,
including without limitation any discharge of, or bar against collecting,
any of the Indebtedness (including without limitation any interest
thereon), in or as a result of any such proceeding; and (g) the benefit of
any and all statutes of limitation with respect to any action based upon,
arising out of or related to this Guaranty. Until all of the Indebtedness
has been paid, performed, and discharged in full, nothing shall discharge
or satisfy the liability of Guarantor hereunder except the full performance
and payment of all of the Indebtedness. If any claim is ever made upon
Greyrock for repayment or recovery of any amount or amounts received by
Greyrock in payment of or on account of any of the Indebtedness, because of
any claim that any such payment constituted a preferential transfer or
fraudulent conveyance, or for any other reason whatsoever, and Greyrock
repays all or part of said amount by reason of any judgment, decree or
order of any court or administrative body having jurisdiction over Greyrock
or any of its property, or by reason of any settlement or compromise of any
such claim effected by Greyrock with any such claimant (including without
limitation the Borrower), then and in any such event, Guarantor agrees that
any such judgment, decree, order, settlement and compromise shall be
binding upon Guarantor, notwithstanding any revocation or release of this
Guaranty or the cancellation of any note or other instrument evidencing any
of the Indebtedness, or any release of any of the Indebtedness, and the
Guarantor shall be and remain liable to Greyrock under this Guaranty for
the amount so repaid or recovered, to the same extent as if such amount had
never originally been received by Greyrock, and the provisions of this
sentence shall survive, and continue in effect, notwithstanding any
revocation or release of this Guaranty. Until all of the Indebtedness has
been irrevocably paid and performed in full, Guarantor hereby expressly and
unconditionally waives all rights of subrogation, reimbursement and
indemnity of every kind against Borrower, and all rights of recourse to any
assets or property of Borrower, and all rights to any collateral or
security held for the payment and performance of any Indebtedness,
including (but not limited to) any of the foregoing rights which Guarantor
may have under any present or future document or agreement with any
Borrower or other person, and including (but not limited to) any of the
foregoing rights which Guarantor may have under any equitable doctrine of
subrogation, implied contract, or unjust enrichment, or any other equitable
or legal doctrine. Neither Greyrock, nor any of its directors, officers,
employees, agents, attorneys or any other person affiliated with or
representing Greyrock shall be liable for any claims, demands, losses or
damages, of any kind whatsoever, made, claimed, incurred or suffered by
Guarantor or any other party through the ordinary negligence of Greyrock,
or any of its directors, officers, employees, agents, attorneys or any
other person affiliated with or representing Greyrock.
3. Consents. Guarantor hereby consents and agrees that, without notice
to or by Guarantor and without affecting or impairing in any way the
obligations or liability of Guarantor hereunder, Greyrock may, from time
to time before or after revocation of this Guaranty, do any one or more
of the following in Greyrock's sole and absolute discretion: (a)
accelerate, accept partial payments of, compromise or settle, renew,
extend the time for the payment, discharge, or performance of, refuse to
enforce, and release all or any parties to, any or all of the
Indebtedness; (b) grant any other indulgence to Borrower or any other
person in respect of any or all of the Indebtedness or any other matter;
(c) accept, release, waive, surrender, enforce, exchange, modify,
impair, or extend the time for the performance, discharge, or payment
of, any and all property of any kind securing any or all of the
Indebtedness or any guaranty of any or all of the Indebtedness, or on
which Greyrock at any time may have a lien, or refuse to enforce its
rights or make any compromise or settlement or agreement therefor in
respect of any or all of such property; (d) substitute or add, or take
any action or omit to take any action which results in the release of,
any one or more endorsers or guarantors of all or any part of the
Indebtedness, including, without limitation one or more parties to this
Guaranty, regardless of any destruction or impairment of any right of
contribution or other right of Guarantor; (e) amend, alter or change in
any respect whatsoever any term or provision relating to any or all of
the Indebtedness, including the rate of interest thereon; (f) apply any
sums received from Borrower, any other guarantor, endorser, or co-
signer, or from the disposition of any collateral or security, to any
indebtedness whatsoever owing from such person or secured by such
collateral or security, in such manner and order as Greyrock determines
in its sole discretion, and regardless of whether such indebtedness is
part of the Indebtedness, is secured, or is due and payable; (g) apply
any sums received from Guarantor or from the disposition of any
collateral or security securing the obligations of Guarantor, to any of
the Indebtedness in such manner and order as Greyrock determines in its
sole discretion, regardless of whether or not such Indebtedness is
secured or is due and payable. Guarantor consents and agrees that
Greyrock shall be under no obligation to marshal any assets in favor of
Guarantor, or against or in payment of any or all of the Indebtedness.
Guarantor further consents and agrees that Greyrock shall have no duties
or responsibilities whatsoever with respect to any property securing any
or all of the Indebtedness. Without limiting the generality of the
foregoing, Greyrock shall have no obligation to monitor, verify, audit,
examine, or obtain or maintain any insurance with respect to, any
property securing any or all of the Indebtedness.
4. Exercise of Rights and Remedies; Foreclosure of Trust Deeds.
Guarantor hereby waives all rights of subrogation, reimbursement,
indemnification, and contribution and any other rights and defenses that
are or may become available to the Guarantor or other surety by reason of
California Civil Code Sections 2787 to 2855, inclusive. The Guarantor
waives all rights and defenses that the Guarantor may have because the
Borrower's Indebtedness is secured by real property. This means, among
other things: (1) Greyrock may collect from the Guarantor without first
foreclosing on any real or personal property collateral pledged by the
Borrower. (2) If Greyrock forecloses on any real property collateral
pledged by the Borrower: (A) The amount of the Indebtedness may be reduced
only by the price for which that collateral is sold at the foreclosure
sale, even if the collateral is worth more than the sale price. (B)
Greyrock may collect from the Guarantor even if Greyrock, by foreclosing on
the real property collateral, has destroyed any right the Guarantor may
have to collect from the Borrower. This is an unconditional and
irrevocable waiver of any rights and defenses the Guarantor may have
because the Borrower's Indebtedness is secured by real property. These
rights and defenses include, but are not limited to, any rights or defenses
based upon Section 580a, 580b, 580d, or 726 of the Code of Civil Procedure.
The Guarantor waives all rights and defenses arising out of an election of
remedies by Greyrock, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed the Guarantor's rights of subrogation and
reimbursement against the principal by the operation of Section 580d of the
Code of Civil Procedure or otherwise.
5. Acceleration. Notwithstanding the terms of all or any part of the
Indebtedness, the obligations of the Guarantor hereunder to pay and perform
all of the Indebtedness shall, at the option of Greyrock, immediately
become due and payable, without notice, and without regard to the expressed
maturity of any of the Indebtedness, in the event: (a) Borrower shall
fail to pay or perform when due all or any part of the Indebtedness; or (b)
there shall occur the dissolution, termination of existence, insolvency, or
business failure of Borrower or Guarantor, or the appointment of a
receiver, trustee or custodian for Borrower or Guarantor or all or any part
of the property of either of them, or the assignment for the benefit of
creditors by Borrower or Guarantor, or the commencement of any proceeding
by or against Borrower or Guarantor under any reorganization, bankruptcy,
insolvency, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, now or hereafter in effect; or (c) the
board of directors or shareholders of Borrower or Guarantor shall adopt any
resolution or plan for its dissolution or the liquidation of all or
substantially all of its assets; or (d) Guarantor shall revoke this
Guaranty or contest or deny liability under this Guaranty. All of the
foregoing are hereinafter referred to as Events of Default.
6. Revocation. This is a Continuing Guaranty relating to all of the
Indebtedness, including Indebtedness arising under successive transactions
which from time to time continue the Indebtedness or renew it after it has
been satisfied. Guarantor waives all benefits of California Civil Code
Section 2815, and agrees that the obligations of Guarantor hereunder may
not be terminated or revoked in any manner except by giving 90 days'
advance written notice of revocation to Greyrock at its address above by
registered first-class U.S. mail, postage prepaid, return receipt
requested, and only as to new loans made by Greyrock to Borrower more than
90 days after actual receipt of such written notice by Greyrock. No
termination or revocation of this Guaranty shall be effective until 90 days
following the date of actual receipt of said written notice of revocation
by Greyrock. Notwithstanding such written notice of revocation or any
other act of Guarantor or any other event or circumstance, Guarantor agrees
that this Guaranty and all consents, waivers and other provisions hereof
shall continue in full force and effect as to any and all Indebtedness
which is outstanding on or before the 90th day following actual receipt of
said written notice of revocation by Greyrock, and all extensions, renewals
and modifications of said Indebtedness (including without limitation
amendments, extensions, renewals and modifications which are evidenced by
new or additional instruments, documents or agreements executed before or
after expiration of said 90-day period), and all interest thereon, accruing
before or after expiration of said 90-day period, and all attorneys' fees,
court costs and collection charges, incurred before or after expiration of
said 90-day period, in endeavoring to collect or enforce any of the
foregoing against Borrower, Guarantor or any other person liable thereon
(whether or not suit be brought) and any other expenses of, for or
incidental to collection thereof.
7. Independent Liability. Guarantor hereby agrees that one or more
successive or concurrent actions may be brought hereon against Guarantor,
in the same action in which Borrower may be sued or in separate actions, as
often as deemed advisable by Greyrock. The liability of Guarantor
hereunder is exclusive and independent of any other guaranty of any or all
of the Indebtedness whether executed by Guarantor or by any other guarantor
(including without limitation any other persons signing this Guaranty).
The liability of Guarantor hereunder shall not be affected, revoked,
impaired, or reduced by any one or more of the following: (a) the fact
that the Indebtedness exceeds the maximum amount of Guarantor's liability,
if any, specified herein or elsewhere (and no agreement specifying a
maximum amount of Guarantor's liability shall be enforceable unless set
forth in a writing signed by Greyrock or set forth in this Guaranty); or
(b) any direction as to the application of payment by Borrower or by any
other party; or (c) any other continuing or restrictive guaranty or
undertaking or any limitation on the liability of any other guarantor
(whether under this Guaranty or under any other agreement); or (d) any
payment on or reduction of any such other guaranty or undertaking; or (e)
any revocation, amendment, modification or release of any such other
guaranty or undertaking; or (f) any dissolution or termination of, or
increase, decrease, or change in membership of any Guarantor which is a
partnership. Guarantor hereby expressly represents that he was not induced
to give this Guaranty by the fact that there are or may be other guarantors
either under this Guaranty or otherwise, and Guarantor agrees that any
release of any one or more of such other guarantors shall not release
Guarantor from his obligations hereunder either in full or to any lesser
extent.
8. Financial Condition of Borrower. Guarantor is fully aware of the
financial condition of Borrower and is executing and delivering this
Guaranty at Borrower's request and based solely upon his own independent
investigation of all matters pertinent hereto, and Guarantor is not relying
in any manner upon any representation or statement of Greyrock with respect
thereto. Guarantor represents and warrants that he is in a position to
obtain, and Guarantor hereby assumes full responsibility for obtaining, any
additional information concerning Borrower's financial condition and any
other matter pertinent hereto as Guarantor may desire, and Guarantor is not
relying upon or expecting Greyrock to furnish to him any information now or
hereafter in Greyrock's possession concerning the same or any other matter.
By executing this Guaranty, Guarantor knowingly accepts the full range of
risks encompassed within a contract of continuing guaranty, which risks
Guarantor acknowledges include without limitation the possibility that
Borrower will incur additional Indebtedness for which Guarantor will be
liable hereunder after Borrower's financial condition or ability to pay
such Indebtedness has deteriorated and/or after bankruptcy or insolvency
proceedings have been commenced by or against Borrower. Guarantor shall
have no right to require Greyrock to obtain or disclose any information
with respect to the Indebtedness, the financial condition or character of
Borrower, the existence of any collateral or security for any or all of the
Indebtedness, the filing by or against Borrower of any bankruptcy or
insolvency proceeding, the existence of any other guaranties of all or any
part of the Indebtedness, any action or non-action on the part of Greyrock,
Borrower, or any other person, or any other matter, fact, or occurrence.
9. Reports and Financial Statements of Guarantor. Guarantor shall, at
its sole cost and expense, at any time and from time to time, prepare or
cause to be prepared, and provide to Greyrock upon Greyrock's request (i)
such financial statements and reports concerning Guarantor for such periods
of time as Greyrock may designate, (ii) any other information concerning
Guarantor's business, financial condition or affairs as Greyrock may
request. Guarantor further agrees immediately to give written notice to
Greyrock of any adverse change in Guarantor's financial condition and of
any condition or event which constitutes an Event of Default under this
Guaranty. All reports and information furnished to Greyrock hereunder
shall be complete, accurate and correct in all material respects.
10. Representations and Warranties. Guarantor hereby represents and
warrants that (i) it is in Guarantor's direct interest to assist Borrower
in procuring credit, because Borrower is an affiliate of Guarantor,
furnishes goods or services to Guarantor, purchases or acquires goods or
services from Guarantor, and/or otherwise has a direct or indirect
corporate or business relationship with Guarantor, (ii) this Guaranty has
been duly and validly authorized, executed and delivered and constitutes
the valid and binding obligation of Guarantor, enforceable in accordance
with its terms, and (iii) the execution and delivery of this Guaranty does
not violate or constitute a default under (with or without the giving of
notice, the passage of time, or both) any order, judgment, decree,
instrument or agreement to which Guarantor is a party or by which it or its
assets are affected or bound.
11. Costs. Whether or not suit be instituted, Guarantor agrees to
reimburse Greyrock on demand for all reasonable attorneys' fees and all
other reasonable costs and expenses incurred by Greyrock in enforcing this
Guaranty, or arising out of or relating in any way to this Guaranty. In the
event either Greyrock or Guarantor files any lawsuit against the other
predicated on a breach of this Guaranty, the prevailing party in such
action shall be entitled to recover its attorneys' fees and costs of suit
from the non-prevailing party.
12. Notices. Any notice which a party shall be required or shall
desire to give to the other hereunder (except for notice of revocation,
which shall be governed by Section 6 of this Guaranty) shall be given by
personal delivery or by telecopier or by depositing the same in the United
States mail, first class postage pre-paid, addressed to Greyrock at its
address set forth in the heading of this Guaranty and to Guarantor at his
address set forth under his signature hereon, and such notices shall be
deemed duly given on the date of personal delivery or one day after the
date telecopied or 3 business days after the date of mailing as aforesaid.
Greyrock and Guarantor may change their address for purposes of receiving
notices hereunder by giving written notice thereof to the other party in
accordance herewith. Guarantor shall give Greyrock immediate written
notice of any change in his address.
13. Construction; Severability. If more than one person has executed
this Guaranty, the term Guarantor as used herein shall be deemed to refer
to all and any one or more such persons and their obligations hereunder
shall be joint and several. Without limiting the generality of the
foregoing, if more than one person has executed this Guaranty, this
Guaranty shall in all respects be interpreted as though each person signing
this Guaranty had signed a separate Guaranty, and references herein to
other guarantors or words of similar effect shall include without
limitation other persons signing this Guaranty. As used in this Guaranty,
the term property is used in its most comprehensive sense and shall mean
all property of every kind and nature whatsoever, including without
limitation real property, personal property, mixed property, tangible
property and intangible property. Words used herein in the masculine
gender shall include the neuter and feminine gender, words used herein in
the neuter gender shall include the masculine and feminine, words used
herein in the singular shall include the plural and words used in the
plural shall include the singular, wherever the context so reasonably
requires. If any provision of this Guaranty or the application thereof to
any party or circumstance is held invalid, void, inoperative or
unenforceable, the remainder of this Guaranty and the application of such
provision to other parties or circumstances shall not be affected thereby,
the provisions of this Guaranty being severable in any such instance.
14. General Provisions. Greyrock shall have the right to seek
recourse against Guarantor to the full extent provided for herein and in
any other instrument or agreement evidencing obligations of Guarantor to
Greyrock, and against Borrower to the full extent of the Indebtedness. No
election in one form of action or proceeding, or against any party, or on
any obligation, shall constitute a waiver of Greyrock's right to proceed in
any other form of action or proceeding or against any other party. The
failure of Greyrock to enforce any of the provisions of this Guaranty at
any time or for any period of time shall not be construed to be a waiver of
any such provision or the right thereafter to enforce the same. All
remedies hereunder shall be cumulative and shall be in addition to all
rights, powers and remedies given to Greyrock by law or under any other
instrument or agreement. Time is of the essence in the performance by
Guarantor of each and every obligation under this Guaranty. If Borrower is
a corporation, partnership or other entity, Guarantor hereby agrees that
Greyrock shall have no obligation to inquire into the power or authority of
Borrower or any of its officers, directors, partners, or agents acting or
purporting to act on its behalf, and any Indebtedness made or created in
reliance upon the professed exercise of any such power or authority shall
be included in the Indebtedness guaranteed hereby. This Guaranty is the
entire and only agreement between Guarantor and Greyrock with respect to
the guaranty of the Indebtedness of Borrower by Guarantor, and all
representations, warranties, agreements, or undertakings heretofore or
contemporaneously made, which are not set forth herein, are superseded
hereby. No course of dealings between the parties, no usage of the trade,
and no parol or extrinsic evidence of any nature shall be used or be relevant
to supplement or explain or modify any term or provision of this
Guaranty. There are no conditions to the full effectiveness of this
Guaranty. The terms and provisions hereof may not be waived, altered,
modified, or amended except in a writing executed by Guarantor and a duly
authorized officer of Greyrock. All rights, benefits and privileges
hereunder shall inure to the benefit of and be enforceable by Greyrock and
its successors and assigns and shall be binding upon Guarantor and his
heirs, executors, administrators, personal representatives, successors and
assigns. Neither the death of Guarantor nor notice thereof to Greyrock
shall terminate this Guaranty as to his estate, and, notwithstanding the
death of Guarantor or notice thereof to Greyrock, this Guaranty shall
continue in full force and effect with respect to all Indebtedness,
including without limitation Indebtedness incurred or created after the
death of Guarantor and notice thereof to Greyrock. Section headings are
used herein for convenience only. Guarantor acknowledges that the same may
not describe completely the subject matter of the applicable Section, and
the same shall not be used in any manner to construe, limit, define or
interpret any term or provision hereof.
15. Governing Law; Venue and Jurisdiction. This instrument and all
acts and transactions pursuant or relating hereto and all rights and
obligations of the parties hereto shall be governed, construed, and
interpreted in accordance with the internal laws of the State of
California. In order to induce Greyrock to accept this Guaranty, and as a
material part of the consideration therefor, Guarantor (i) agrees that all
actions or proceedings relating directly or indirectly hereto shall, at the
option of Greyrock, be litigated in courts located within Los Angeles
County, California, (ii) consents to the jurisdiction of any such court and
consents to the service of process in any such action or proceeding by
personal delivery or any other method permitted by law; and (iii) waives
any and all rights Guarantor may have to transfer or change the venue of
any such action or proceeding.
16. Mutual Waiver of Right to Jury Trial. GREYROCK AND GUARANTOR
HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, LAWSUIT OR
PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO: (i) THIS
GUARANTEE OR ANY SUPPLEMENT OR AMENDMENT THERETO; OR (ii) ANY OTHER PRESENT
OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN GREYROCK AND GUARANTOR ; OR (iii)
ANY BREACH, CONDUCT, ACTS OR OMISSIONS OF GREYROCK OR GUARANTOR OR ANY OF
THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY
OTHER PERSON AFFILIATED WITH OR REPRESENTING GREYROCK OR GUARANTOR; IN EACH
OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
17. Receipt of Copy. Guarantor acknowledges receipt of a copy of this
Guaranty.
Guarantor Signature:
LEVEL 8 SYSTEMS, INC.
By /s/ Yigal Baruch
Name Yigal Baruch
Title Chief Financial Officer
Address:1250 Broadway, 35th Floor
New York, New York 10001
<PAGE>
Certified Resolution - Guarantee
Guarantor: Level 8 Systems, Inc.,
a corporation organized under the
laws of the State of New York
Date: December 31, 1998
I, the undersigned, Secretary or Assistant Secretary of the above-
named corporation, a corporation organized under the laws of the state set
forth above, do hereby certify that the following is a full, true and
correct copy of resolutions duly and regularly adopted by the Board of
Directors of said corporation as required by law, and by the by-laws of
said corporation, and that said resolutions are still in full force and
effect and have not been in any way modified, repealed, rescinded, amended
or revoked.
WHEREAS, it is in the direct interest of this corporation to assist
the following person (the Borrower):
SEER TECHNOLOGIES, INC.
in procuring credit from Greyrock Capital, a Division of NationsCredit
Commercial Corporation (formerly Greyrock Business Credit) (Greyrock),
because Borrower is an affiliate of this corporation, furnishes goods or
services to this corporation, purchases or acquires goods or services from
this corporation, and/or otherwise has a direct or indirect corporate or
business relationship with this corporation;
RESOLVED, that any officer of this corporation is hereby authorized and
directed to: execute and deliver on behalf of this corporation a guarantee
with respect to all indebtedness, liabilities and obligations of Borrower
to Greyrock, whether now existing or hereafter arising or acquired; to
pledge or assign to Greyrock, and to grant to Greyrock a security interest
and lien in, any and all assets and property, real and personal, of this
corporation as security for all indebtedness, liabilities and obligations
of this corporation to Greyrock, now existing or hereafter arising,
including without limitation the obligations of this corporation under said
guarantee, and to execute and deliver in connection therewith, one or more
pledge agreements, assignments, security agreements Uniform Commercial Code
financing statements, deeds of trust and mortgages, in form and substance
satisfactory to Greyrock; to execute and deliver any and all amendments,
modifications, extensions, renewals, replacements and agreements,
documents, instruments relating to the foregoing or requested by Greyrock;
and to execute and deliver any and all instruments, papers and documents
and to do all other acts that said officers may deem convenient or proper
to effectuate the purpose and intent of these resolutions.
RESOLVED, all actions heretofore taken and all documentation heretofore
executed and delivered by any of said officers, or by any individual who
currently holds or has held any of said offices, in furtherance of the
foregoing is hereby ratified, adopted, approved and confirmed and declared
to be binding and enforceable obligations of this corporation in accordance
with the respective terms and provisions thereof; and that the
authorizations herein set forth shall remain in full force and effect until
written notice of any modification or discontinuance shall be given to and
actually received by Greyrock, but no such modification or discontinuance
shall effect the validity of the acts of any person, authorized to so act
with these resolutions, before the receipt of any such notice by Greyrock.
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary or
Assistant Secretary on the date set forth above.
___________________________________
Secretary or Assistant Secretary
Subordination Agreement
Borrower: Seer Technologies, Inc.
Creditor: Level 8 Systems, Inc., a New York corporation
Date: December 31, 1998
This Subordination Agreement is executed by the above-named Creditor
("Creditor") in favor of Greyrock Capital, a Division of NationsCredit
Commercial Corporation ("Greyrock"), whose address is 10880 Wilshire Blvd.,
Suite 950, Los Angeles, CA 90024, with respect to the above-named Borrower
("Borrower"). In order to induce Greyrock to extend or continue to extend
financing to the Borrower (but without obligation on Greyrock's part to do
so), the Creditor hereby agrees as follows:
1. Subordination of Debt. Creditor hereby subordinates payment by the
Borrower of any and all indebtedness, liabilities, guarantees and other
obligations of the Borrower to Creditor, now existing or hereafter arising
* (collectively, the "Subordinated Debt"), to the payment to Greyrock, in
full in cash, of all indebtedness, liabilities, guarantees and other
obligations of the Borrower to Greyrock, now existing or hereafter arising,
including without limitation any interest accruing after the commencement
of any bankruptcy, arrangement, or reorganization proceeding with respect
to Borrower (whether or not such interest is recoverable from the Borrower
or allowable or provable in any such proceeding) (collectively, the
"Greyrock Debt"). Creditor represents and warrants that the Subordinated
Debt ** the following:
*Under the Promissory Note referred to below and all extensions, renewals
and modifications thereof
**consists of
That certain Promissory Note dated December 31, 1998 in the original
principal amount of $12,000,000, which has a present unpaid principal
balance of $12,000,000.
Creditor agrees not to ask for, demand, sue for, take or receive all or any
part of the Subordinated Debt nor any security therefor, unless and until
all of the Greyrock Debt has been paid and performed in full, in cash.
Creditor further agrees that upon any distribution of the assets or
readjustment of the indebtedness of the Borrower whether by reason of
liquidation, composition, bankruptcy, arrangement, receivership, assignment
for the benefit of creditors or any other action or proceeding involving
the readjustment of all or any of the Subordinated Debt, or the application
of the assets of the Borrower to the payment or liquidation thereof,
Greyrock shall be entitled to receive payment in full in cash of all of the
Greyrock Debt prior to the payment of all or any part of the Subordinated
Debt, and in order to enable Greyrock to enforce its rights hereunder in
any such action or proceeding, Greyrock is hereby irrevocably authorized
and empowered in its sole discretion (but without any obligation on its
part) to make and present for and on behalf of Creditor such proofs of
claim against the Borrower on account of the Subordinated Debt as Greyrock
may deem expedient or proper and to vote such proofs of claim in any such
proceeding and to receive and collect any and all dividends or other
payments or disbursements made thereon in whatever form the same may be
paid or issued and to apply same on account of the Greyrock Debt. Creditor
further agrees to execute and deliver to Greyrock such assignments or other
instruments as may be required by Greyrock in order to enable Greyrock to
enforce any and all such claims and to collect any and all dividends or
other payments or disbursements which may be made at any time on account of
all and any of the Subordinated Debt. Creditor shall endorse all notes and
other written evidence of the Subordinated Debt with a statement that they
are subordinated to the Greyrock Debt pursuant to the terms of this
agreement, in such form as Greyrock shall require, and Creditor will
exhibit the originals of such notes and other written evidence of the
Subordinated Debt to Greyrock so that Greyrock can confirm that such
endorsement has been made, but this Subordination Agreement shall be fully
effective, even if no such endorsement is made. Any amounts received by
Creditor contrary to the provisions of this Section shall be held in trust
by Creditor for the benefit of Greyrock and shall forthwith be paid over to
Greyrock to be applied to the Greyrock debt in such order as Greyrock in
its sole discretion shall determine, without limiting any other right of
Greyrock hereunder or otherwise and without otherwise affecting the
liability of Creditor.
2. Modifications to Greyrock Debt; Waivers. Until Greyrock has
received payment in full of all Greyrock Debt, the Creditor agrees that, in
addition to any other rights that Greyrock may have at law or in equity,
Greyrock may at any time, and from time to time, without the Creditor's
consent and without notice to the Creditor, renew, extend or increase any
of the Greyrock Debt or that of any other person at any time directly or
indirectly liable for the payment of any Greyrock Debt, accept partial
payments of the Greyrock Debt, settle, release (by operation of law or
otherwise), compound, compromise, collect or liquidate any of the Greyrock
Debt, make loans or advances to the Borrower secured in whole or in part by
collateral or unsecured or refrain from making any loans or advances to the
Borrower, change, waive, alter or vary the interest charge on, or any other
terms or provisions of the Greyrock Debt or any present or future
instrument, document or agreement between Greyrock and the Borrower,
release, exchange, fail to perfect, delay the perfection of, fail to resort
to, or realize upon any collateral, and take any other action or omit to
take any other action with respect to the Greyrock Debt or any collateral
as Greyrock deems necessary or advisable in Greyrock's sole discretion.
The Creditor waives any right to require Greyrock to marshal any assets in
favor of the Creditor or against or in payment of any or all of the
Greyrock Debt. Creditor further waives any defense arising by reason of
any claim or defense based upon an election of remedies by Greyrock which
in any manner impairs, affects, reduces, releases, destroys and/or
extinguishes the Creditor's subrogation rights, rights to proceed against
the Borrower for reimbursement, and/or any other rights of the Creditor.
3. Default. The Creditor shall promptly give Greyrock written notice
of any default or event of default under any document, instrument or
agreement evidencing, securing or relating to any of the Subordinated Debt.
Until the Greyrock Debt has been paid and performed in full, the Creditor
shall not enforce, or exercise any rights or remedies with respect to, the
Subordinated Debt, judicially or non-judicially (including without
limitation the commencement of any bankruptcy or insolvency proceeding
against the Borrower), or attempt to do any of the foregoing.
4. No Commitment; Bankruptcy Financing. It is understood and agreed
that this Agreement shall in no way be construed as a commitment or
agreement by Greyrock to continue financing arrangements with the Borrower
and that Greyrock may terminate such arrangements at any time, in
accordance with Greyrock's agreements with the Borrower. In the event of
any financing of the Borrower by Greyrock during a bankruptcy, arrangement,
or reorganization of Borrower, the Creditor agrees that the term "Greyrock
Debt" shall include without limitation all indebtedness, liabilities and
obligations incurred in any such proceeding, and the Creditor agrees to
take such actions and execute such documents in such proceedings as may be
reasonably necessary in order to effectuate the foregoing.
5. No Contest. Creditor agrees not to contest the validity,
perfection, priority or enforceability of the Greyrock Debt or Greyrock's
security interest in any collateral.
6. Financial Condition of Borrower. The Creditor is presently informed
of the financial condition of the Borrower and of all other circumstances
which a diligent inquiry would reveal and which bear upon the risk of non-
payment of the Greyrock Debt and the Subordinated Debt. The Creditor
covenants that it will continue to keep itself informed as to the
Borrower's financial condition and all other circumstances which bear upon
the risk of non-payment of the Greyrock Debt and the Subordinated Debt.
The Creditor waives any right to require Greyrock to disclose to it any
information which Greyrock may now or hereafter acquire concerning the
Borrower.
7. Revivor. If, after payment of the Greyrock Debt, the Borrower
thereafter becomes liable to Greyrock on account of the Greyrock Debt, or
any payment made on the Greyrock Debt shall for any reason be returned by
Greyrock, this Agreement shall thereupon in all respects become effective
with respect to such subsequent or reinstated Greyrock Debt, without the
necessity of any further act or agreement between Greyrock and the
Creditor.
8. General. The Creditor agrees, upon Greyrock's request, to execute
all such documents and instruments and take all such actions as Greyrock
shall deem necessary or advisable in order to carry out the purposes of
this Agreement (but this Agreement shall remain fully effective
notwithstanding any failure to execute any additional documents or
instruments). The word "indebtedness" is used in this agreement in its
most comprehensive sense and includes without limitation any and all
present and future loans, advances, credit, debts, obligations,
liabilities, representations, warranties, and guarantees, of any kind and
nature, absolute or contingent, liquidated or unliquidated, and individual
or joint. Creditor represents and warrants that it has not heretofore
transferred or assigned the Subordinated Debt or given any other
subordination agreement in respect of any Subordinated Debt, and that it
will not do so without prior written notice to Greyrock and without making
such transfer, assignment or subordination expressly subject to this
Agreement. This Agreement is solely for the benefit of Greyrock and
Greyrock's successors and assigns, and neither the Borrower nor any other
person shall have any right, benefit, priority or interest under, or
because of the existence of, this Agreement. All of Greyrock's rights and
remedies hereunder and under applicable law are cumulative and not
exclusive. This Agreement sets forth in full the terms of agreement
between the parties with respect to the subject matter hereof, and may not
be modified or amended, nor may any rights hereunder be waived, except in a
writing signed by Greyrock and the Creditor. The Creditor agrees to
reimburse Greyrock, upon demand, for all costs and expenses (including
reasonable attorneys' fees) incurred by Greyrock in enforcing this
Agreement against Creditor, whether or not suit be brought. In the event
of any litigation between the parties based upon or arising out of this
Agreement, the prevailing party shall be entitled to recover all of its
costs and expenses (including without limitation attorneys fees) from the
non-prevailing party. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of California. As a material
part of the consideration to the parties for entering into this Agreement,
each party (i) agrees that all actions and proceedings based upon, arising
out of or relating in any way directly or indirectly to, this Agreement
shall be litigated exclusively in courts located within Los Angeles County,
California, (ii) consents to the jurisdiction of any such court and
consents to the service of process in any such action or proceeding by
personal delivery, first-class mail, or any other method permitted by law,
and (iii) waives any and all rights to transfer or change the venue of any
such action or proceeding to any court located outside Los Angeles County,
California. This Agreement shall be binding upon the Creditor and its
successors and assigns and shall inure to the benefit of Greyrock and
Greyrock's successors and assigns.
9. Mutual Waiver of Jury Trial. CREDITOR AND GREYROCK EACH HEREBY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON,
ARISING OUT OF, OR IN ANY WAY RELATING TO: (I) THIS AGREEMENT; OR (II) ANY
OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN CREDITOR AND
GREYROCK; OR (III) ANY CONDUCT, ACTS OR OMISSIONS OF CREDITOR OR GREYROCK
OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY
OTHER PERSONS AFFILIATED WITH CREDITOR OR GREYROCK; IN EACH OF THE
FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
"Creditor:"
LEVEL 8 SYSTEMS, INC.
By /s/ Arik Kilman
Name Arik Kilman
Title President
Address:1250 Broadway, 35th Floor
New York, New York 10001
CONSENT AND AGREEMENT OF BORROWER
The undersigned Borrower hereby approves of, agrees to and consents to all
of the terms and provisions of the foregoing Subordination Agreement and
agrees to be bound thereby and further agrees that any default or event of
default by the Borrower under any present or future instrument or agreement
between the Borrower and the Creditor shall constitute an immediate default
and event of default under all present and future instruments and
agreements between the Borrower and Greyrock. Borrower further agrees
that, at any time and from time to time, the foregoing Agreement may be
altered, modified or amended by Greyrock and the Creditor without notice to
or the consent of Borrower.
Borrower:
SEER TECHNOLOGIES, INC.
By /s/Steven Dmiszewicki
Name Steven Dmiszewicki
Title Co-President and
Chief Financial Officer
Accepted:
Greyrock:
GREYROCK CAPITAL, a Division of NationsCredit Commercial Corporation
By_______________________________
Title______________________________
Exhibit 10.3
PROMISSORY NOTE
$12,000,000.00 New York, New York
December 31, 1998
For value received, Seer Technologies, Inc., a Delaware corporation
(the "Company"), hereby promises to pay to the order of Level 8 Systems,
Inc., a New York corporation ("Level 8"), the aggregate principal amount of
$12,000,000 on June 30, 2002. The principal amount of this note shall bear
interest, compounded quarterly, at a rate per annum equal to the weighted
average interest rate from time to time on the Company's other indebtedness
for borrowed money. Interest shall be payable at maturity.
This note may be prepaid, in whole or in part, at any time or from
time to time, at the Company's option. If less than all the outstanding
principal and accrued interest are being prepaid, all such prepayments
shall be applied first to accrued interest and then to principal.
Payments shall be made in lawful money of the United States of America
at such place as the holder of this note may designate. Any payment
required to be made under this note on a Saturday, Sunday or a day on which
banks in the state of New York are authorized by law to be closed shall be
made on the following business day.
The holder of this note may declare the unpaid principal and accrued
interest on this note due and payable immediately, if any of the following
events of default shall have occurred and be continuing:
A. there shall have been entered any order, judgment or decree by
a court of competent jurisdiction for relief in respect of the
Company or any of its subsidiaries under Title 11 of the United
States Code, as now constituted or hereafter amended and in
effect, or any other applicable federal or state bankruptcy law
or other similar law, or appointing a receiver, liquidator,
assignee, trustee or sequestrator (or similar official) of the
Company or any of its subsidiaries, or of all or a substantial
part of its property, assets or revenues or ordering the
winding-up or liquidation of the Company's or any of its
subsidiaries' affairs, and that order, judgment or decree
remains unstayed, unbonded and in effect for a period of 90
consecutive days: or
B. the Company or any of its subsidiaries shall have filed a
petition or an answer or consent seeking relief under Title 11
of the United States Code, as now constituted or hereafter
amended and in effect, or any other applicable federal or state
bankruptcy, reorganization, insolvency, readjustment of debt,
dissolution, liquidation or other similar law, or the Company
or any of its subsidiaries shall have consented to the
institution of proceedings under any of those laws or to the
filing of any such petition or to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee,
custodian or sequestrator (or similar official) of the Company
or any of its subsidiaries, or of all or a substantial part of
its property, assets or revenues or the Company or any of its
subsidiaries shall have failed generally to pay its debts as
they become due, or the Company or any of its subsidiaries shall
have taken corporate action in furtherance of any such action.
If the holder of this note institutes any action to enforce collection
of this note, upon acceleration or otherwise, there shall become due and
payable from the Company, in addition to the unpaid principal of and
interest on this note, all reasonable costs and expenses of that action
(including, without limitation, reasonable attorneys' fees) and the holder
of this note shall be entitled to judgment for all such additional amounts.
No delay or failure on the part of the holder of this note to exercise
any right under his note, including, but not limited to, the right to
accelerate the amounts due, shall operate as a waiver of that or any other
right of the holder of this note, and no right or remedy of the holder of
this note shall be deemed abridged or modified by any course of conduct.
The Company waives presentment, demand for payment, notice of non-
payment and all other notices or demands in connection with the delivery,
acceptance, performance or default of this note, except as specifically
provided in this note.
The Company irrevocably consents to the non-exclusive jurisdiction of
the courts of the state of New York and of the United States District
Courts for the Southern District of New York in connection with any action
or proceeding arising out of or related to this note.
Notwithstanding anything to the contrary in this note, the rights of
Level 8 under this note are subordinated to the rights of Greyrock Capital,
a Division of NationsCredit Commercial Corporation (formerly Greyrock
Business Credit) ("Greyrock"), pursuant to the Loan and Security Agreement
between Greyrock and the Company, dated March 26, 1997, as amended, to the
extent set forth in the Subordination Agreement between Level 8 and
Greyrock, dated December 31, 1998.
This note shall be governed by and construed in accordance with the
law of the state of New York applicable to agreements made and to be
performed in New York and cannot be changed or terminated orally.
SEER TECHNOLOGIES, INC.
By: /s/Steven Dmiszewicki
Name: Steven Dmiszewicki
Title: Co-President and
Chief Financial Officer
