EXHIBIT 10.4
EQUIPMENT LOAN NOTE
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$1,000,000 As of January 1, 2002
For value received, the undersigned, MEMRY CORPORATION, a Delaware
corporation ("Maker"), promises to pay to ▇▇▇▇▇▇▇ BANK, or order ("Lender"), at
its office at CityPlace II, 5th Floor, HFD 605, Hartford, Connecticut
06103-3439, or at such other place as the holder hereof (including Lender,
hereinafter referred to as "Holder") may designate, the sum of up to ONE MILLION
DOLLARS ($1,000,000), together with interest on the unpaid balance of this Note,
beginning as of the date hereof, before or after maturity or judgment, as
provided for in the Loan Agreement (as defined below), together with all taxes
levied (excluding income taxes) or assessed on this Note or the debt evidenced
hereby against the Holder, and together with all reasonable costs, expenses and
reasonable attorneys' and other reasonable professional fees incurred in any
action to collect this Note or to enforce or foreclose any mortgage, security
agreement or other agreement securing this Note or to protect or sustain the
lien of said mortgage, security agreement or other agreement or in any
litigation or controversy arising from or connected with said mortgage, security
agreement or other agreement or this Note.
This Note is made and delivered by Maker pursuant to Section 4.2 of the
Amended and Restated Commercial Revolving Loan, Term Loan, Line of Credit and
Security Agreement dated as of December 27, 2001 by and between Maker and Lender
(as amended and in effect from time to time, the "Loan Agreement"), and is
entitled to the benefits and is subject to the provisions of the Loan Agreement.
All capitalized terms used herein which are defined in the Loan Agreement that
are not defined herein shall have the same meanings herein as are ascribed to
them in the Loan Agreement.
The Maker also promises to pay interest on the aggregate unpaid principal
amount of the Equipment Loans until all amounts payable under the Loan Agreement
are paid in full, at the rates per annum set forth in or established pursuant to
the Loan Agreement. Such interest shall be payable on such dates as are
determined from time to time pursuant to the Loan Agreement and shall be
calculated as therein provided. Notwithstanding anything to the contrary, the
entire indebtedness under this Note, including but not limited to, all
outstanding principal and accrued and unpaid interest shall be due and payable
in full on December 31, 2006.
The Maker has the right in certain circumstances to prepay the principal of
this Note on the terms and conditions specified in the Loan Agreement.
If an Event of Default shall occur, the entire unpaid principal amount of
this Note, all of the unpaid interest accrued thereon and any other sum due
hereunder may become or be declared due and payable in the manner and with the
effect provided in the Loan Agreement.
THE MAKER HEREBY WAIVES TRIAL BY JURY IN ANY COURT AND IN ANY SUIT, ACTION
OR PROCEEDING ON ANY MATTER ARISING IN
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CONNECTION WITH OR IN ANY WAY RELATED TO THE FINANCING TRANSACTIONS OF WHICH
THIS NOTE IS A PART AND/OR THE ENFORCEMENT OF ANY OF HOLDER'S RIGHTS AND
REMEDIES, INCLUDING WITHOUT LIMITATION, TORT CLAIMS. THE MAKER ACKNOWLEDGES THAT
IT MAKES THIS WAIVER KNOWINGLY, VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER
CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS. THE MAKER
FURTHER ACKNOWLEDGES THAT LENDER HAS NOT AGREED WITH OR REPRESENTED TO MAKER
THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
THE MAKER ACKNOWLEDGES THAT THE LOAN EVIDENCED BY THIS NOTE IS A COMMERCIAL
TRANSACTION AND WAIVES ITS RIGHTS TO NOTICE AND HEARING UNDER CHAPTER 903a OF
THE CONNECTICUT GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY ANY STATE OR
FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH HOLDER MAY DESIRE TO
USE, AND FURTHER WAIVES ITS RIGHT TO REQUEST THAT HOLDER POST A BOND, WITH OR
WITHOUT SURETY, TO PROTECT SAID MAKER AGAINST DAMAGES THAT MAY BE CAUSED BY ANY
PREJUDGMENT REMEDY SOUGHT OR OBTAINED BY HOLDER. The Maker further waives
diligence, demand, presentment for payment, notice of nonpayment, protest and
notice of protest, and notice of any renewals or extensions of this Note, and
all rights under any statute of limitations, and further consents to the release
of all or any part of the security for the payment hereof, at the discretion of
Holder, or the release of any party liable for this obligation without affecting
the liability of the other parties hereto. The Maker further (i) consents to any
and all delays, extensions, renewals or other modifications of this Note, any
other Financing Agreements or the debts or collateral evidenced hereby or
thereby or any waivers of any term hereof or thereof, any release, surrender,
taking of additional, substitution, exchange, failure to perfect or record any
interest in, failure to preserve or realize upon, failure to lawfully dispose
of, or any other impairment of, any collateral or other security, or any other
failure to act by the Lender or any other forbearance or indulgence shown by the
Lender, from time to time and in one or more instances (without notice to or
assent from the Maker) and agrees that none of the foregoing shall release,
discharge or otherwise impair any of their liabilities; and (ii) waives any
defenses based on suretyship or impairment of collateral. THE MAKER ACKNOWLEDGES
THAT IT MAKES THIS WAIVER KNOWINGLY, VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER
CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS. THE MAKER
FURTHER ACKNOWLEDGES THAT LENDER HAS NOT AGREED WITH OR REPRESENTED TO MAKER
THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
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This Note shall be governed by and construed in accordance with the laws of
the State of Connecticut (but not its conflicts of law provisions).
MEMRY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its SVP & CFO
