THIRD AMENDMENT AGREEMENT
Exhibit
10.44
THIRD
AMENDMENT AGREEMENT
(this
“Agreement”)
dated
as of December 5, 2006 by and between Memry Corporation (the “Borrower”),
a
Delaware corporation, and Xxxxxxx Business Credit Corporation (the “Lender”),
amending a certain Credit and Security Agreement dated as of November 9, 2004
by
and between the Borrower and the Lender as amended by that certain First
Amendment Agreement dated as of November 9, 2005 and by a Second Amendment
Agreement dated as of December 21, 2005 (as amended and in effect from time
to
time, the “Credit
Agreement”).
W
I T N E S S E T H
WHEREAS,
pursuant to the terms of the Credit Agreement, the Lender has made and continues
to make revolving loans to the Borrower; and
WHEREAS,
the
Borrower have requested, among other things, that the Lender amend certain
terms
of the Credit Agreement; and
WHEREAS,
the
Lender is willing to, among other things, amend certain terms and conditions
of
the Credit Agreement, all on the terms and conditions set forth
herein.
NOW,
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
§1. Definitions.
Capitalized
terms used herein without definition that are defined in the Credit Agreement
(as amended hereby) shall have the same meanings herein as therein.
§2. Ratification of Existing Agreements.
All
of
the Borrower’s obligations and liabilities to the Lender as evidenced by or
otherwise arising under the Credit Agreement, the Notes and the Other Documents,
except as otherwise expressly modified in this Agreement upon the terms set
forth herein, are, by the Borrower’s execution of this Agreement, ratified and
confirmed in all respects. In addition, by the Borrower’s execution of this
Agreement, the Borrower represents and warrants that no counterclaim, right
of
set-off or defense of any kind exists or is outstanding with respect to such
obligations and liabilities.
§3. Representations and Warranties.
All
of
the representations and warranties made by the Borrower in the Credit Agreement,
the Notes and the Other Documents are true and correct on the date hereof as
if
made on and as of the date hereof, except (i) to the extent that any of such
representations and warranties relate by their terms to a prior date, (ii)
for
matters previously disclosed to the Lender in writing or in form 10-k, 10-Q
or
8-k filed with the Securities and Exchange Commission, and (iii) for deviations
not, in the aggregate, having or reasonably likely to have a material adverse
effect on the Borrower and its assets.
-2-
§4. Conditions Precedent.
Except
as
set forth below, the effectiveness of the amendments contemplated hereby shall
be subject to the satisfaction on or before the date hereof of each of the
following conditions precedent (which conditions the Lender acknowledges have
been satisfied on the date hereof):
(a) Representations
and Warranties.
All of
the representations and warranties made by the Borrower herein, whether directly
or incorporated by reference, shall be true and correct on the date hereof,
except as provided in §3 hereof.
(b) Performance;
No Event of Default.
The
Borrower shall have performed and complied in all material respects with all
terms and conditions herein required to be performed or complied with by them
prior to or at the time hereof, and there shall exist no Event of Default or
condition which, with either or both the giving of notice of the lapse of time,
would result in an Event of Default upon the execution and delivery of this
Agreement.
(c) Corporate
Action.
All
requisite corporate action necessary for the valid execution, delivery and
performance by the Borrower of this Agreement and all other instruments and
documents delivered by the Borrower in connection therewith shall have been
duly
and effectively taken.
(d) Delivery.
Except
as set forth below, the parties hereto shall have executed and delivered (i)
this Agreement, (ii) that certain Second Capital Expenditure Loan Note dated
as
of even date herewith in the original principal amount of $1,000,000, and (iii)
such further instruments and taken such further action as the Lender may have
reasonably requested, in each case further to effect the purposes of this
Agreement, the Credit Agreement and the Other Documents.
(e) Proceedings
and Documents.
All
proceedings in connection with the transactions contemplated by this Agreement
shall be satisfactory in substance and form to the Lender, and the Lender shall
have received all information and such counterpart originals or certified or
other copies of such documents as it may request.
(f) Fees
and Expenses.
The
Borrower shall have paid to the Lender all fees and expenses incurred by the
Lender (including attorney’s fees and expenses) in connection with this
Amendment, the Credit Agreement and the Other Documents on or prior to the
date
hereof.
§5. Amendments,
Consents with respect to the Credit
Agreement.
5.1. Amendments.
The
following definitions set forth on Annex I attached to the Credit Agreement
are
hereby amended to read in full as set forth below:
“Capital
Expenditure Loan Rate”
shall
mean an interest rate per annum equal to: (i) the Alternate Base Rate, with
respect to Domestic Rate Loans, and (ii) the sum of the Eurodollar Rate
plus
two and
one half (2.50) percentage points, with respect to Eurodollar Rate
Loans.”
-3-
“Revolving
Interest Rate”
shall
mean an interest rate per annum equal to: (a) the sum of the Alternate Base
Rate
less
one-quarter (.25) of one percentage point, with respect to Domestic Rate Loans,
and (b) the sum of the Eurodollar Rate plus
two and
one-quarter (2.25) percentage points, with respect to Eurodollar Rate
Loans.”
“Second
Capital Expenditure Loan Rate
- shall
mean an interest rate per annum equal to: (i) the Alternate Base Rate, with
respect to Domestic Rate Loans, and (ii) the sum of the Eurodollar Rate plus
two
and one-half (2.50) percentage points, with respect to Eurodollar Rate
Loans.”
“Term
Loan A Rate”
shall
mean an interest rate per annum equal to: (i) the Alternate Base Rate, with
respect to Domestic Rate Loans, and (ii) the sum of the Eurodollar Rate
plus
two and
one-half (2.50) percentage points, with respect to Eurodollar Rate
Loans.”
“Term
Loan B Rate”
shall
mean an interest rate per annum equal to: (i) the sum of the Alternate Base
Rate
plus
one
(1.0) percentage point, with respect to Domestic Rate Loans, and (ii) the sum
of
the Eurodollar Rate plus
three
and one-half (3.50) percentage points, with respect to Eurodollar Rate
Loans.”
5.2. Consent.
Notwithstanding the provisions of Section 7.18 of the Credit Agreement or under
the Subordination and Intercreditor Agreement dated November 9, 2004 by and
among the Lender, the Borrower, BROOKSIDE PECKS CAPITAL PARTNERS, L.P., a
Delaware limited partnership, for itself as a lender and as the agent on behalf
of all lenders and IRONBRIDGE MEZZANINE FUND, L.P., a Delaware limited
partnership (herein BROOKSIDE PECKS CAPITAL PARTNERS, L.P. and IRONBRIDGE
MEZZANINE FUND, L.P. collectively referred to as the “Subordinated Lenders”),
the Borrower may make payments to the Subordinated Lenders, effecting full
or
partial payments of the outstanding principal amount together with accrued
and
unpaid interest thereon, of the Subordinated Notes (as defined and described
in
said Subordination and Intercreditor Agreement), which Subordinated Notes were
initially in the aggregate original principal amount $7,000,000.
§6. Additional Covenants. Without
any prejudice or impairment whatsoever to any of the Lender’s rights and
remedies contained in the Credit Agreement and the covenants contained therein,
the Notes or in any of the Other Documents, the Borrower additionally covenants
and agrees with the Lender as follows:
(a) The
Borrower shall comply and continue to comply with all of the terms, covenants
and provisions contained in the Credit Agreement, the Notes and the Other
Documents, except as such terms, covenants and provisions are expressly
modified by this Agreement upon the terms set forth herein, including, without
limitation, the delivery and procurement of the mortgage modification
agreements, title insurance endorsements within the time periods set forth
herein.
-4-
(b) The
Borrower shall at any time or from time to time execute and deliver such further
instruments, and take such further action as the Lender may reasonably request,
in each case further to effect the purposes of this Agreement, the Credit
Agreement, the Notes and the Other Documents.
The
Borrower expressly acknowledges and agrees that any failure by the Borrower
to
comply with the terms and conditions of this §6 or any other provisions
contained in this Agreement shall constitute an Event of Default under the
Credit Agreement.
§7. Expenses. The
Borrower agrees to pay to the Lender upon demand an amount equal to any and
all
out-of-pocket costs or expenses (including reasonable legal fees and
disbursements) incurred or sustained by the Lender in connection with the
preparation of this Agreement.
§8. Miscellaneous.
(a) This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York (excluding the laws applicable to conflicts or choice of
law).
(b) The
indebtedness evidenced by said Original Loan Documents continues outstanding,
and the execution and delivery to the Bank of this Modification Agreement does
not constitute the creation of a new debt or the extinguishment of the debt
evidenced by the Original Loan Documents but constitutes only an amendment
of
certain of the terms with respect thereto. Except
as
otherwise expressly provided by this Agreement, all of the respective terms,
conditions and provisions of the Credit Agreement shall remain the same. It
is
declared and agreed by each of the parties hereto that the Credit Agreement,
as
amended hereby, shall continue in full force and effect, and that this Agreement
and the Credit Agreement be read and construed as one instrument, and all
references in the Loan Documents to the Credit Agreement shall hereafter refer
to the Credit Agreement, as amended by this Agreement.
(c) Nothing
contained herein shall operate to release the Borrower or any other obligor
from
its liability to pay the Note and to keep and perform the terms, conditions,
obligations and agreements contained in the Loan Agreement and in all other
documents relating to and securing repayment of the Note as amended
hereby.
(d) The
Borrower hereby acknowledges and agrees that it has no defense, offset,
recoupment or counterclaim with respect to the indebtedness evidenced by the
Note (as amended hereby) or any of the Original Loan Documents and the Borrower
hereby releases the Bank from any and all liability arising directly or
indirectly with respect to the Note as amended hereby, the Original Loan
Documents, the debt evidenced or governed by any of the Original Loan Documents
and any and all actions taken by the Bank with respect to the transactions
contemplated therein.
-5-
IN
WITNESS WHEREOF,
each of
the parties hereto have caused this Agreement to be executed in its name and
behalf by its duly authorized officer as of the date first written
above.
| XXXXXXX BUSINESS CREDIT CORPORATION | ||
| |
|
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| By: | /s/ Xxxxxx Xxxxxx | |
|
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||
| Its: Vice President | ||
| MEMRY CORPORATION | ||
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|
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |
|
Name: Xxxxxxx X. Xxxxxxx |
||
| Title: CFO | ||
The
undersigned Guarantor consents to the terms contained herein and further
acknowledge and affirm that its Guarantee remains unmodified and in full force
and effect:
| XXXXXX PLASTICS COMPANY LLC | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
|
Name: Xxxxxxx X. Xxxxxxx |
||||
| Title: CFO | ||||
| STATE OF CONNECTICUT | ) | |
| ) | ss. Bethel, CT | |
| COUNTY OF FAIRFIELD | ) |
On
December
5,
2006,
before me personally came Xxxxxxx
X. Xxxxxxx,
to me
known, who, being by me duly sworn, did depose and say that he
is the
Chief
Financial Officer
of each
entity described in and which executed the foregoing instrument as “Borrower”;
and that he signed his name thereto by order of the board of directors (or
other
governing body) of said entity.
| |
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| Xxxxxxxx Xxxxxx | ||
|
NOTARY PUBLIC |
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XXXXXXXX
XXXXXX
NOTARY
PUBLIC, STATE OF CONNECTICUT
NO.65478.
QUALIFIED IN FAIRFIELD COUNTY
COMMISSION
EXPIRES DECEMBER 31, 2007
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