Exhibit 4.05(b)
SECOND MODIFICATION
COMMERCIAL REVOLVING LOAN, TERM LOAN
AND SECURITY AGREEMENT
WITH
MARINE MANAGEMENT SYSTEMS, INC.
The Commercial Revolving Loan, Term Loan and Security Agreement dated as of
June 4, 1993 ("CRLTLSA") by and between MARINE MANAGEMENT SYSTEMS, INC., an Ohio
corporation authorized to do business in the State of Connecticut, having an
address at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx, 00000 ("Company"), and
PEOPLE'S BANK, a Connecticut banking corporation with an office at 000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx, 00000 ("Bank"), as modified by a Modification of
Commercial Revolving Loan, Term Loan and Security Agreement with Marine
Management Systems, Inc. dated September 22, 1993 ("First Modification"), is
further modified as hereinafter set forth:
1. ARTICLE I, Section 1.01 shall be amended as follows:
(d) "Borrowing Base" means an amount equal to the lesser of: (i) FOUR
HUNDRED THOUSAND and 00/100 ($400,000.00) Dollars, or (ii) Seventy (70%)
percent the net balance due on Acceptable Receivables.
(y) "Letter of Credit" shall have the meaning assigned in Section IVa
hereof.
(z) "CDA" means Connecticut Development Authority.
(aa) "CDA Advance Commitment" means CDA's Commitment executed and
delivered contemporaneously herewith to Bank guarantying a 27.3 percent
first loss in an amount not to exceed One Hundred Fifty Thousand and 00/100
($150,000.00) Dollars.
(bb) "Loan Guarantee Certificate" means the contract of Guaranty
executed and delivered or to be executed and delivered by CDA to the Bank
with respect to the Amended and Restated Revolving Loan and Letter of
Credit under the provisions of Public Act 92-236, as amended.
2. ARTICLE II, Section 2.03 shall be amended as follows:
Procedure for Advances, Notices of Borrowing, Notes, Etc. Within the limits
of the Borrowing Base and subject to the terms and conditions contained in
Section 7.02, so long as demand has not been made by the Bank and the Company is
in compliance with all of the terms and conditions of this Agreement and no
Event of Default has occurred and no condition exists which would constitute an
Event of Default but for the giving of notice or passage of time, or both, the
Company may borrow, repay and re-borrow Revolving Loans. Requests for Revolving
Loan advances may be made in compliance with the Bank's existing cash management
procedures. The Revolving Loan shall be evidenced by a promissory note payable
to the Bank substantially in the form of, and in the amount of, FOUR HUNDRED
THOUSAND ($400,000.00) DOLLARS, as set forth in Exhibit A attached hereto
("Revolving Note"). Insofar as the Company may request and the Bank shall make
Revolving Loans hereunder, the Bank shall enter such advances as debits on a
revolving loan account maintained by the Company with the Bank ("Revolving Loan
Account"). The Bank shall also record in its Revolving Loan Account, in
accordance with customary accounting procedures, all other charges, expenses and
other liens properly chargeable to the Company; all payments made by the Company
on account of indebtedness evidenced by the Revolving Loan Account; all proceeds
of collateral which are finally paid to the Bank in its own office in cash or
solvent credits; and other appropriate debits and credits. The Revolving Loan
Account shall reflect the amount of the Company's indebtedness to the Bank from
time to time by reason of the Revolving Loans made by the Bank and other
appropriate charges hereunder. On a monthly basis, the Bank shall render a
statement for the Revolving Loan account, which statement shall be considered
correct and accepted by the Company and conclusively binding upon the Company.
The Bank shall have the right at its option, to debit the Revolving Loan Account
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for any principal due under the Term Note and, on the 4th day of each and every
month commencing January 4, 1996, for all interest charges on the Loans for the
previous month if not otherwise paid by the Company.
3. ARTICLE IVa, LETTER OF CREDIT shall be added to the document as follows:
ARTICLE IVa
4a.01 Issuance Letter of Credit. The Bank shall issue its Irrevocable
Letter of Credit in the maximum amount of One Hundred Fifty Thousand and 00/100
($150,000.00) Dollars in favor of Seaboard Stamford Investors Associates, LLC.
The sums evidenced by the Letter Credit shall decline at the rate of Seven
Thousand Five Hundred ($7,500.00) Dollars per month commencing on May 31, 1996
and continuing on the 31st day of each succeeding month thereafter until the
expiration date as hereinafter defined.
4a.02 Term. The Letter of Credit shall expire on December 31, 1997
("Expiration") and shall provide that it shall not be subject to any extension
thereof.
4a.03 Interest and Fees. (a) In the event the beneficiary draws upon the
Letter of Credit in accordance with its terms, the amounts so drawn will bear
interest, until repaid to Bank by Company, at a rate equal to Two and One Half
(2.5%) percent per annum in excess of People's Bank Prime Rate. (b) During the
term of the Letter of Credit, Company shall pay an annual fee equal to One and
One Half (1.5%) percent of the amount then available under the Letter of Credit
subject to a minimum annual payment of One Hundred Twenty Five and 00/100
($125.00) Dollars.
4. ARTICLE VI Section 6.01 shall be amended as follows:
(aa) CDA Requirements. The Company represents and warrants that it is
aware that the Bank is making the Revolving Loan and the Letter of Credit
on the condition, among others, that the Amended and Restated Revolving
Loan Note and Letter of Credit shall be guaranteed in part by the CDA and
that the requirements of the Contract of Guaranty and the CDA Advance
Commitment may require the Bank to act or not act if a default in either of
the aforesaid instruments occurs in order to preserve the Bank's rights and
benefits under the Loan Guaranty Certificate and the CDA Advance
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Commitment. The Company represents and warrants further that it has
reviewed, with its attorneys, all documents evidencing the Loan Guaranty
Certificate and the CDA Advance Commitment, all applicable statutes and
regulations governing the issuance of the Loan Guaranty Certificate and/or
the CDA Advance Commitment including without limitation Public Act 92-236
as amended (the "Act") and is aware of the requirements requisite both to
such issuance and keeping of the Contract of Guaranty and the CDA Advance
Commitment in force (the "Requirements"). The Company shall, at all times,
comply with the affirmative action requirements of the CDA. The Company
consents to the Bank's compliance with the Act and acknowledges that the
Bank's actions taken in compliance with the Act will be reasonable when
taken and will not subject the Bank to any claim or damages for being
unreasonable or for so called "Lender Liability" claims. The Company shall
not take any action which shall invalidate or limit the Contract of
Guaranty or the CDA Advance Commitment.
5. ARTICLE VII, Section 7.01 shall be amended as follows:
(a) Notes. The Bank shall have received a duly executed Term Note and
Amended and Restated Revolving Loan Note drawn to its Order;
(a1) Letter of Credit. The Bank shall received a duly executed
Application and Reimbursement Agreement for Irrevocable Standby Letter of
Credit;
(a2) Loan Guaranty Certificate. The CDA shall have executed and
delivered to the Bank a Loan Guaranty Certificate with respect to the
Revolving Loan and the Letter of Credit containing terms and conditions
acceptable to the Bank at its sole discretion;
(a3) CDA Commitment. The CDA has issued and delivered to the Bank the
CDA Advance Commitment containing terms of conditions acceptable to the
Bank in its sole discretion;
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(d) The Bank shall have received a duly executed Amended and Restated
Guaranty ("the Guaranty") from Xxxxxx X. Story, Xxxx X. Story, Xxxxxx X.
Xxxxx and Xxxxxx X. Xxxxx (the "Guarantors") pursuant to which they shall
have unconditionally guaranteed the payment and performance of all
liabilities and obligations of the Company to the Bank. The Amended and
Restated Guaranty shall be in form and scope and substance satisfactory to
Bank.
6. ARTICLE VIII, A Affirmative Covenants shall be amended as follows:
Section 8.03 (1) Guarantee Certificate. On the date of the issuance of each
Certificate of Guarantee, Company shall prepay to CDA one (1) year's premium on
the Loan Guarantee Certificate. At Bank's option, Company shall add to each
payment due in connection with the guaranteed loan and Letter of Credit an
amount sufficient to accumulate in the hands of the Bank, one (1) payment period
prior to its due date, the next actual premium on the Certificate of Guaranty.
Such payment shall be held by Bank for the purpose of paying such premiums for
the same become delinquent.
Section 8.03 (2) The CDA Advance Commitment. The Company shall take all
steps necessary to cause the CDA to issue a Guarantee Certificate guaranteeing
Twenty Seven and Three (27.3%) percent of the Letter of Credit and Revolving
Loan as amended and restated.
7. ARTICLE X, Section 10.01 shall be amended as follows:
(c) Any event of default under any document, instrument or agreement
with the CDA or relating to the Contracts of Guarantee for the CDA Advance
Commitment or any other Agreement for borrowed money;
8. ARTICLE XIV, Section 14.01 is amended as follows:
Term and Termination. (a) Amended and Restated Revolving Loan. Unless
sooner terminated by a demand by the Bank or as a result of the occurrence of an
Event of Default, the obligation of the Bank to make Revolving Loans shall
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terminate on December 31, 1997 (the "Term"). The Bank and the Company may extend
the Term for one or more renewal terms which shall consist of periods of time to
be determined by the Bank but in any way not to exceed one year each (each being
a "Renewal Term") by executing a written agreement to do so prior to the end of
the Term (or prior to the end of a Renewal Term, if applicable). At the end of
the Term hereof (or at the end of a Renewal Term, if applicable), and in the
event Company has not received notice from Bank confirming renewal of the term
then in that event, the Company shall pay the entire balance of the Revolving
Loans. Further, upon termination of the Revolving Loans, all of the rights,
interest and remedies of the Bank and Obligations of the Company shall survive
and the Company shall have no right to receive, and the Bank shall have no
obligation to make, any further Revolving Loans.
(c) Letter of Credit. Unless sooner drawn, the Letter of Credit shall
be reviewed, prior to June 1, 1996 and shall expire on December 31, 1997.
9. ARTICLE XV, Section 15.01 is amended as follows:
Section 15.02 Additional Costs and Fees. Company agrees to pay all
reasonable transactional costs related to any modification of this Agreement and
shall pay a closing fee. Letter of Credit fees will be paid in accordance with
the terms and conditions of the Application and Reimbursement Agreement for
Irrevocable Standby Letter of Credit. CDA fees will be paid in accordance with
the terms of the CDA Commitment.
10. Except as expressly modified by this Second Modification, Commercial
Revolving Loan, Term Loan and Security Agreement as modified shall remain in
full force and effect.
IN WITNESS WHEREOF I hereunto set my hand.
WITNESSED: MARINE MANAGEMENT SYSTEMS, INC.
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/s/ Xxxxx X'Xxxxxx By: /s/ Xxxxxx X. Story
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Xxxxxx Story
Its President,
/s/ Xxxx X. Xxxxxxxxxxx Duly Authorized
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WITNESSED: PEOPLE'S BANK
/s/ Xxxxx X'Xxxxxx By: /s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
Its Vice President,
/s/ Xxxx X. Xxxxxxxxxxx Duly Authorized
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STATE OF CONNECTICUT :
: ss. Stamford
COUNTY OF FAIRFIELD :
On this 21 day of December, 1995, before me, personally appeared Xxxxxx X.
Story, who acknowledged himself to be the President of Marine Management
Systems, Inc., a Connecticut Corporation, and that he, as such President, being
authorized so to do, executed the foregoing instrument, as his free act and
deed, and the free act and deed of said corporation, for the purposes therein
contained, by signing the name of Xxxxxx X. Story as said President.
/s/ Xxxxx X'Xxxxxx
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Xxxxx X. X'Xxxxxx
Commissioner of the Superior
Court
STATE OF CONNECTICUT :
: ss. Stamford
COUNTY OF FAIRFIELD :
On this 21 day of December, 1995, before me, personally appeared Xxxxxxxx
X. Xxxxx, who acknowledged himself to be the Vice President of Peoples Bank, a
Connecticut Banking Corporation, and that he, as such Vice President, being
authorized so to do, executed the foregoing instrument, as his free act and
deed, and the free act and deed of said banking corporation, for the purposes
therein contained, by signing the name of Xxxxxxxx X. Xxxxx as said Vice
President.
/s/ Xxxx X. Xxxxxxxxxxx
----------------------------
Xxxx X. Xxxxxxxxxxx
Commissioner of the Superior
Court
