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EXHIBIT 4.05
COMMERCIAL REVOLVING NOTE (SECURED)
People's Bank
$650,000.00 Stamford, Connecticut
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City Date
For value received, the undersigned ("Borrower" whether one or more" jointly
and severally promises to pay to the order of PEOPLE'S BANK ("People's") at
any of its offices, or at such other address as the holder of this Note shall
specify in writing, the principal sum of the lesser of (i) Six hundred fifty
thousand ***************** 00/100 dollars or (ii) such other amount as is
indicated on People's books and records as the unpaid principal balance of
this Note together with interest in arrears at the RATE indicated below on
the unpaid principal balance. (All amounts which may be payable under this
Note, including the obligations described in Paragraph 5, are collectively
referred to in this Note as the "Entire Note Balance.) The amount of the
unpaid principal balance of this Note as is indicated on People's books and
records shall, in the absence of manifest error, be conclusive as to the
outstanding principal balance of this Note.
This Note shall remain a continuing agreement between Borrower and People's
notwithstanding the fact that the principal balance may from time to time be
zero. All covenants by Borrower in this Note shall apply to all advances
made by People's to Borrower under this Note. Each time an advance is made
under this Note, Borrower shall be deemed to have certified that the
representatives set forth in this Note are true and correct in all material
respects on and as of that date with the same effect as though those
representations and warranties had been made on and as of that date.
Nothing in this Note shall be construed to obligate People's to make advances
under this Note. It is not intended that this Note be a continuing
commitment on the part of People's to lend to Borrower. Borrower expressly
acknowledges that People's may withhold advances hereunder at any time in its
sole discretion for any reason.
1. Rate. Xxxxxxxx promises to pay interest on the unpaid principal balance
at the rate checked below. (Mark an "X" in the box that applies.)
|___| At a fixed rate of ________% per year.
|___| At a variable rate per year equal to People's "Prime Rate" plus
_________ percentage points.
|_X_| In accordance with the attached Rider which is a part of this Note.
If the interest rate is variable, each change in Borrower's rate of
interest shall take effect on the same day that People's "Prime Rate"
changes. People's "Prime Rate" is an index People's uses to set interest
rates on certain types of loans, and is not necessarily the lowest rate
People's charges its customers. People's Prime Rate is increased and
decreased by People's from time to time in response to changes in money
market conditions. Interest shall be calculated on the basis of a 360 day
counting the actual number of days elapsed.
2. Payment Schedule. Borrower will repay the amounts due under this Note in
the manner checked below.
A. REPAYMENT. (Mark an "X" in the box that applies.)
|_X_| The unpaid principal balance in full on June 30, 1999, with interest
payable as set forth in Paragraph B below.
|___| The unpaid principal balance on demand, with interest payable as set
forth in Paragraph B below.
|___| The consecutive __________________________________ payments of
principal of $__________________________ each, commencing on
______________________ 19____ and continuing on the same day of each
successive ________________ with interest payable as set forth in Paragraph B
Below. A final payment of the Entire Note Balance shall be due and payable
on
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___________________________, 19____.
|___| in accordance with the attached Rider which is a part of this Note.
B. INTEREST. (Mark an "X" in the box that applies.)
|_X_| In consecutive monthly payments commencing on December 5, 1997.
|___| In consecutive quarterly payments commencing on _________________,
19___ and continuing on the same day of each successive ______________,
________________________, _____________________ and _______________________.
|___| In accordance with the attached Rider which is a part of this Note.
3. Collateral. Borrower grants to People's a security interest in the
following property (the "Collateral") to secure the payment of the Entire
Note Balance and any renewals and extensions of this Note. (Mark an "X"
in the boxes that apply.)
A. |_X_| The following Collateral has been pledged and delivered to
People's as security for this Note: 2 People's Bank Certificates of
Deposit A/C #00-0000000 $625,000.00 and A/c #25-80056738 for $25,000.00
and a Pledge Agreement dated June 11, 1997 and has been signed and
delivered to People's
B. |_X_| This Note is secured by All business assets of the Borrower as
more particularly described in a signed Security Agreement dated June 11,
1997.
|___| This Note is secured by
____________________________________________________________________________
as more particularly described in a signed Open-End Mortgage Deed dated
______________, 19___ to be recorded on the land records of the
________________________ of ________________________.
|___| This Note is declared to be a commercial revolving loan agreement
within the meaning of the Connecticut General Statutes Section 49-2(c).
Borrower represents that it is a corporation, partnership or sole
proprietorship or association organized for profit and engaged primarily
in commercial, manufacturing or industrial pursuits.
|___| This Note is declared to be a consumer revolving loan agreement
within the meaning of Connecticut General Statutes Section 49-2(c).
|___| Other Security:______________________________________________________
Borrower agrees to promptly provide to People's such additional collateral
as People's in good faith may reasonably require from time to time.
Borrower will promptly deliver to People's any securities received
(through stock dividend, stock split or otherwise) with respect to any
security pledged as Collateral.
4. Special Provisions. (Mark an "X" in the box if applicable.)
|___| Special provisions of this Note appear in the attached Rider which
is a part of this Note.
Individual Borrower(s) Sole Proprietorship: Business Borrower(s)
Marine Management Systems, Inc.
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Print Name(s) of Individual Borrower(s) Print Name of Corporation,
Sole Proprietorship Partnership, Entity
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Signature of Borrower By:
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Print Name and Title Xxxxxx X. Xxxxx, EVP, CFO
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Address 000 Xxxx Xxxxxx, Xxxxxxxx, XX 00000
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Address
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Signature of Borrower
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Print Name of Corporation, Partnership, Entity
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Address By:
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Print Name and Title Xxxxxx X. Xxxxx, EVP, CFO
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Address
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I/We endorse this Note. I/We waive presentment for payment, notice of
dishonor and all other demands or notices regarding this Note. People's may
renew or extend this Note or require its payment in full without giving me/us
any notice. People's may release or substitute collateral for this Note
without giving me/us any notice. Each endorser consents and agrees to be
bound by the terms and provisions of this Note. Each endorser is jointly and
severally liable for the payment of the Entire Note Balance.
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Endorser Endorser
Additional Terms and Conditions
5. Other Obligations
X. Xxxxxxxx agrees to pay interest on the unpaid principal balance of
this Note at the rate set forth in Paragraph 1 both before and after
maturity, by acceleration or otherwise, and before and after any
judgement and until the entire indebtedness evidenced by this Note
is paid in full. Xxxxxxxx agrees to pay all taxes assessed upon this
Note against the holder of this Note, and to pay all costs,
expenses, attorneys' fees and their disbursements incurred by
People's in the collection of amounts due under this Note and in
protecting and maintaining People's security interest in the
Collateral. The principal sum plus all interest payable on this Note
plus all amounts payable under this Paragraph are referred to
collectively in this Note as the Entire Note Balance.
B. To the extent that the Entire Note Balance is reduced or paid in
full by reason of any payment to People's by any accommodation
maker, endorser or guarantor, and all or any part of such payment is
rescinded, avoided or recovered from People's for any reason
whatsoever, including without limitation, any proceedings in
connection with the insolvency, bankruptcy or reorganization of the
accommodation maker, endorser or guarantor, the amount of such
rescinded, avoided or returned payment shall be added to or, in the
event the Note has been previously paid in full, shall revive the
principal balance of this Note upon which interest may be charged at
the applicable rate set forth in this Note and shall be considered
part of the Entire Note Balance and all terms and provisions herein
shall thereafter apply to same.
6. Xxxxxxxx's Representations. Borrower is generally paying its debts as they
become due. Borrower knows of no act, event or occurrence that would
adversely affect the present financial condition of Borrower in any
material way.
7. Financial Statements. People's may from time to time require from
Borrower, any accommodation maker or endorser such financial information
including, without limitation, balance sheets, statements of income and
changes in financial position as People's shall deem necessary or
desirable.
8. Right of Set-Off. Upon the occurrence of an event of default (as defined
below), or upon demand if this Note is payable on demand, People's shall
have the right to set-off the Entire Note Balance against all of
Borrower's, any accommodation maker's or endorser's deposits, credit and
property now or hereafter in the possession or control of People's, its
agent or bailee or in transit to it. People's may apply the same, or any
part thereof, to the Entire Note Balance without prior notice or demand.
9. Prepayment. Notwithstanding the payment schedule set forth in Paragraph 2
or this Note, Borrower may prepay all or any part of the unpaid principal
balance of this Note at anytime. Prepayments shall not incur any penalty.
In the event that this Note is prepaid in full before $50 in interest as
accrued, there will be a minimum interest charge of $50.
10. Default.
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A. If any of the following events occur (which is a "default"),
People's may declare the Entire Note Balance, together with any
other amounts that Borrower owes to People's, to be immediately due
and payable:
i. Borrower fails to pay when due any installment of principal or
interest under this Note.
ii. Borrower or any accommodation maker, endorser or guarantor
fails to observe or perform any covenant or agreement set
forth in this Note, in any guaranty or in any instrument,
document or agreement concerning the Collateral;
iii. Borrower or any accommodation maker, endorser or guarantor
defaults in the payment of any other indebtedness to People's;
iv. Borrower or any accommodation maker, endorser or guarantor
becomes generally unable to pay its debts as they become due
or admits its inability to pay its debts as they become due;
v. Borrower or any accommodation maker, endorser or guarantor
makes a general assignment for the benefit of its creditors,
files or becomes the subject of a petition in bankruptcy, for
an arrangement with its creditors or for reorganization under
any federal or state bankruptcy or other insolvency law;
vi. Borrower or any accommodation maker, endorser or guarantor
files or becomes the subject of a petition for the appointment
of a receiver, custodian, trustee or liquidator of the part or
of all or substantially all of its assets under any federal or
state bankruptcy or other insolvency law;
vii. Borrower or any accommodation maker, endorser or guarantor
dies or is adjudicated incompetent, or if an entity, is
voluntarily or involuntarily terminated or dissolved;
viii. Any individual who is a 10% or more owner of, partner in or
joint venturer with Borrower or any accommodation maker,
endorser or guarantor dies or is adjudicated incompetent;
ix. Any change in beneficial ownership of 10% or more of Borrower
or any accommodation maker, endorser or guarantor;
x. Borrower or any accommodation maker, endorser or guarantor
enters into any merger or consolidation, or sale, lease,
liquidation or other disposition of all or substantially all
of its assets or any transaction outside the ordinary course
of its business or for less than fair consideration or
substantially equivalent value without People's prior written
consent;
xi. Any judgement is entered against Borrower or any accommodation
maker, endorser or guarantor or any attachment upon or
garnishment of any property of Borrower or any accommodation
maker, endorser or guarantor is issued;
xii. Any representation or statement made herein or any other
representation or statement made or furnished to People's by
Borrower or any accommodation maker, endorser or guarantor was
materially incorrect or misleading at the time it was made or
furnished;
xiii. People's determines that the value of the Collateral securing
this Note is not adequate to secure Borrower's indeptedness;
or
xiv. People's at any time in good faith for any commercially sound
reason deems itself insecure.
The defaults in this Subparagraph A shall not apply if this Note is
payable on demand because People's may declare the Entire Note
Balance immediately due and payable at any time for any reason.
B. As to any Collateral, People's shall have the rights of a secured
party under the Uniform Commercial Code as in effect in the State of
Connecticut. If People's should be required
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by law to give nay notice to Borrower or any accommodation maker or
endorser of the sale of any Collateral, Borrower and such parties
agree that notice at least 10 days before the sale shall be
commercially reasonable. Borrower and such parties waive notice of
the sale of any Collateral where the Collateral is perishable or
threatens to decline in value quickly or is of a type customarily
sold on a recognized market.
C. If any payment of principal or interest is not paid when due,
whether by acceleration or otherwise, and whether or not judgement
has yet been rendered on this Note, Borrower will thereafter pay, at
the option of People's, interest at a rate two percentage points
above the rate that would otherwise be payable under Paragraph 1
until the Entire Note Balance is paid in full.
D. If People's has not received the full amount of any payment of
principal or interest by the end of 10 calendar days after the date
it is due, Borrower will pay a late charge to People's. The amount
of the charge will be 5% of the overdue payment. Borrower will pay
this late charge promptly but only once on each late payment.
E. All payments made under this Note shall be applied first to costs
and expenses, if any, incurred in the collection of amounts due
under this Note or in protecting or maintaining People's security
interest in the Collateral, then to the payment of accrued interest
and the remainder to principal.
F. If the principal balance of this Note exceeds $10,000, and Borrower
will use the proceeds of the loan for a commercial, manufacturing,
industrial or non-consumer purpose, for any interest payment that is
not paid when due, the amount of such accrued and unpaid interest
may, at the option of People's, be added to the principal of the
debt upon which interest may be charged at the applicable rate set
forth in this Note.
11. Binding Effect. Each Borrower and accommodation maker signing this Note is
jointly and severally responsible for making all payments and performing
all other obligations specified in this Note. The provisions of this Note
are binding on the heirs, executors, administrators, assigns and
successors of each Borrower, accommodation maker and endorser under this
Note and shall inure to the benefit of People's, its successors and
assigns and to subsequent holders of this Note.
12. Prejudgment Remedy Waiver. Borrower and each accommodation maker and
endorser under this Note acknowledge that the loan evidenced by this Note
is a commercial transaction and waive their rights to notice or hearing
under Chapter 903a of the Connecticut General Statutes or as otherwise
required by any law with respect to any prejudgment remedy that People's
may use.
13. Waivers. The liability of Borrower and each accommodation maker and
endorser under this Note is unconditional and People's may, without notice
and without affecting the liability of any of them, grant extensions of
time or renewals of this Note, add or release any obligor on this Note,
acquire additional Collateral or release or exchange any Collateral.
Borrower and each accommodation maker and endorser under this Note waive
presentment, demand for payment, dishonor, protest and any other notices
or demands in connection with the delivery, acceptance, performance,
default and enforcement of this Note. Any delay, failure or waiver by
People's to exercise any right it may have under this Note is not a waiver
of People's right to exercise the same or any other right at any other
time.
14. Changes. No agreement to change or waive the terms of this Note shall be
valid unless it is in writing and signed by People's and Borrower.
15. Connecticut Law. The provisions of this Note shall be governed by the laws
of the State of Connecticut, but excluding such rules as govern conflict
of laws. Borrower and each accommodation maker and endorser under this
Note agree that any proceeding arising out of this Note or any document
executed herewith may be instituted in any federal or state court in the
State of Connecticut and Borrower irrevocably submits to the jurisdiction
of any such court.
16. Jury Trial Waiver. In the interest of a speedy resolution of any lawsuit
with may arise hereunder, Xxxxxxxx and each accommodation maker and
endorser under this Note waive a trial by jury in any action with respect
to this Note and as to any issues arising relating to this Note.
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17. Interpretation. Captions and headings used in this Note are for
convenience only. The term "Borrower" and any pronoun referring thereto as
used herein shall be construed in the masculine, feminine or neuter as the
context may require. The singular includes the plural and the plural
includes the singular. "Any" means any and all.
18. Invalidity. If any provision of this Note or the application of any
provision to any person or circumstance shall be invalid or unenforceable,
neither the balance of this Note nor the application of the provision to
other persons or circumstances shall be affected.
