Exhibit 10.4
SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT is made as of this 1st day of July,
1999 (the "Amendment"), by and between STORAGE COMPUTER CORPORATION, a Delaware
corporation (the "Borrower") and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company (hereinafter referred to as the "Bank").
WHEREAS, the Borrower and the Bank are parties to a Second Amended and
Restated Loan Agreement dated as of November 16, 1998, as amended by the First
Amendment to Second Amended and Restated Loan Agreement (the "Loan Agreement").
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Loan Agreement.
NOW, THEREFORE, in consideration of these premises and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereby amend the Loan Agreement as follows:
Section 1. Amendment of Section 1.01. Section 1.01 is hereby amended as
follows:
(a) the definition of "Maximum Line Availability" is deleted in
its entirety and replaced with the following:
"Maximum Line Availability" shall mean the line of credit
made available to the Borrower under this Agreement (subject
to the proviso at the end of this definition) in the maximum
principal amounts during the following periods indicated:
Period Maximum Line Availability
July 1, 1999 through August 31, 1999 $8,000,000
September 1, 1999 through September 30, 1999 $7,700,000
October 1, 1999 through October 31, 1999 $7,400,000
November 1, 1999 through November 30, 1999 $7,100,000
December 1, 1999 through January 3, 2000 $6,800,000
Thereafter 0
provided, however, the Maximum Line Availability shall be
permanently reduced by any proceeds received by the Borrower or
Bank pursuant to Sections 2.01(g) or 5.16 hereof.
Section 2. Affirmative Covenants. The following Affirmative Covenant shall
be added to the end of Article V of the Loan Agreement.
Section 5.19. Post Closing Deliveries. The Borrower shall deliver and shall
cause each of its Subsidiaries to deliver to the Bank the items indicated on
Schedule 5.19 hereto in form and substance satisfactory to the Bank on or before
the dates indicated on such schedule.
Section 3. Effectiveness; Conditions to Effectiveness. This Amendment to
Loan Agreement shall become effective upon execution hereof by the Borrower and
the Bank and satisfaction of the following conditions:
(a) Copies of Resolutions of the Board of Directors of the Borrower
authorizing the execution, delivery and performance of the Borrower under
this Amendment to Loan Agreement certified by a Secretary or an Assistant
Secretary of the Borrower which certificate shall state that the
resolutions are in full force and effect.
(b) Certificate of the Secretary or Assistant Secretary of the
Borrower certifying the name and signatures of the officers of the Borrower
authorized to sign this Amendment and other documents to be delivered in
connection therewith.
(c) Delivery to the Bank of this Second Amendment fully executed.
(d) Such other documents or instruments as the Bank may request.
Section 4. Miscellaneous.
(a) The Borrower hereby confirms to the Bank that the representations
and warranties of the Borrower set forth in Article III of the Loan
Agreement (as amended and supplemented hereby) are true and correct as of
the date hereof, (except as the same may expressly relate to an earlier
date) as if set forth herein in full.
(b) The Borrower has reviewed the provisions of this Amendment and all
documents executed in connection therewith or pursuant thereto or incident
or collateral hereto or thereto from time to time and there is no Event of
Default thereunder, and no condition which, with the passage of time or
giving of notice or both, would constitute an Event of Default thereunder.
(c) The Borrower agrees that each of the Loan Documents shall remain
in full force and effect after giving effect to this Agreement. The
Security Documents continue to secure all the Obligations as may be amended
by this Amendment. The guarantees of the Borrower's Subsidiaries continue
to guarantee all of the Obligations as may be amended by this Amendment.
(d) This Amendment represents the entire agreement among the parties
hereto relating to this Amendment, and supersedes all prior understandings
and agreements among the parties relating to the subject matter of this
Amendment. The Borrower waives and releases any claims it may have against,
and forever discharges, the Bank and its officers, directors, agents,
attorneys, employees, successors and assigns (the "Releases") from any
claims and causes of action arising out of the transactions referred to or
contemplated in any way by the Loan Documents, and this Amendment or
otherwise, including without limitation, claims or defenses it may have to
the effect that the Releasees may have in any way acted or failed to act in
any manner as to cause injury to the Borrower or anyone claiming by or
through them.
(e) The Borrower represents and warrants that neither the execution,
delivery or performance by the Borrower of any of the obligations contained
in this Amendment or in any Bank Document requires the consent, approval or
authorization of any person or governmental authority or any action by or
on account of with respect to any person or governmental authority.
(f) The Borrower agrees to pay on demand all of the Bank's reasonable
expenses in preparing, executing and delivering this Amendment, and all
related instruments and documents, including, without limitation, the
reasonable fees and out-of-pocket expenses of the Bank's special counsel
and all travel related expenses of the Bank in connection with any field
exams or otherwise. This Amendment shall be a Loan Document and shall be
governed by and construed and enforced under the laws of the Commonwealth
of Massachusetts.
(g) The Bank agrees that upon satisfaction, in full, in cash of the
Obligations as determined by the Bank, the Bank shall return to the Borrower any
collateral or other property of the Borrower, at the Borrower's expense.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to Loan
Agreement under seal as of the date first written above.
STORAGE COMPUTER CORPORATION
By: /s/ Xxxxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxxxxxx
Title: President
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
