EXHIBIT 10.41
SECOND AMENDMENT AGREEMENT
THIS SECOND AMENDMENT AGREEMENT (the "Agreement") dated as of June 30,
2001, is between MEMRY CORPORATION, a Delaware corporation with its chief
executive office and principal place of business at 0 Xxxxxxxxx Xxxx., Xxxxxx,
Xxxxxxxxxxx 00000 ("Borrower") and XXXXXXX BANK, a banking institution with an
office at 000 Xxxxxx Xxxxxx, Xxxx Place II, 5th Floor, HFD 605, Hartford,
Connecticut 06103-3494 ("Lender") amending a certain Commercial Revolving Loan,
Term Loan, Line of Credit and Security Agreement by and between the Borrower and
the Lender dated June 30, 1998, as amended by a Letter Agreement dated June 3,
1999, as further amended by a Letter Agreement dated September 22, 1999, and as
further amended by an Amendment Agreement dated November 30, 1999 (as amended,
the "Loan Agreement").
W I T N E S S E T H:
WHEREAS, pursuant to the Loan Agreement the Lender made a Revolving
Loan to the Borrower in an amount up to $5,000,000 of which the principal amount
of $900,000.00 remains outstanding as of June 30, 2001; and
WHEREAS, pursuant to the Loan Agreement the Lender made a Term Loan to
the Borrower in the original principal amount of $500,000 of which the principal
amount of $208,333.45 remains outstanding as of June 30, 2001; and
WHEREAS, pursuant to the Loan Agreement the Lender made an Additional
Term Loan to the Borrower in the original principal amount of $1,000,000 of
which the principal amount of $699,994.00 remains outstanding as of June 30,
2001; and
WHEREAS, pursuant to the Loan Agreement the Lender made an Equipment
Loan to the Borrower in an amount up to $1,250,000, (x) $667,993.00 of which was
converted to term indebtedness on July 1, 1999 in accordance with the terms of
the Loan Agreement of which the principal amount of $241,219.72 remains
outstanding as of June 30, 2001, and (y) $1,250,000.00 of which was converted to
term indebtedness on July 1, 2000 in accordance with the terms of the Loan
Agreement of which the principal amount of $833,333.36 remains outstanding as of
June 30, 2001;
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WHEREAS, the Borrower has requested that the Bank extend the term of
the Loans; and
WHEREAS, the Borrower has further requested that the Lender amend
certain other terms and conditions of the Loan Agreement; and
WHEREAS, the Lender is willing to extend the term of the Loans as
aforesaid and to amend certain other terms and conditions of the Loan Agreement
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:
(S)1. Definitions. Capitalized terms used herein without definition
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that are defined in the Loan Agreement shall have the same meanings herein as
therein.
(S)2. Ratification of Existing Agreements. All of the Borrower's
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obligations and liabilities to the Lender as evidenced by or otherwise arising
under the Loan Agreement, the Notes and each and every other document,
instrument or agreement executed in connection therewith (the "Loan Documents"),
are, by Borrower's execution of this Agreement, ratified and confirmed in all
respects. In addition, by Borrower's execution of this Agreement, Borrower
represents and warrants that no counterclaim, right of set-off, recoupment or
defense of any kind exists or is outstanding with respect to such obligations
and liabilities.
(S)3. Representations and Warranties. All of the representations and
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warranties made by the Borrower in the Loan Agreement, the Notes and the other
Loan Documents are true and correct on the date hereof as if made on and as of
the date hereof, except to the extent that any of such representations and
warranties expressly relate by their terms to a prior date.
(S)4. Conditions Precedent. The effectiveness of the amendments
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contemplated hereby shall be subject to the satisfaction on or before the date
hereof of each of the following conditions precedent:
(a) Representations and Warranties. All of the representations and
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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
(S)3 hereof.
(b) Performance; No Event of Default. The Borrower shall have
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performed and complied in all material respects with all terms and conditions
herein required to be performed or complied with by it prior to or at the time
hereof, and there shall exist no material adverse change in the financial
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condition of the Borrower, and there shall exist no default, Defaulting Event or
Event of Default.
(c) Corporate Action. All requisite corporate action necessary for
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the valid execution, delivery and performance by the Borrower of this Agreement
and all other instruments and documents delivered by the Borrower in connection
herewith shall have been duly and effectively taken.
(d) Delivery. The parties hereto shall have executed and delivered
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this Agreement. In addition, the Borrower shall have executed and delivered such
further instruments, and take such further action as the Lender may have
requested, in each case further to effect the purposes of this Agreement, the
Loan Agreement and the other Loan Documents.
(e) Fees and Expenses. The Borrower shall have paid to the Lender all
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fees and expenses incurred by the Lender in connection with this Agreement, the
Loan Agreement or the other Loan Documents.
(f) Commitment Fee. The Borrower shall have paid to the Lender at
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closing a non-refundable commitment fee of $37,500.
(S)5. Amendments to the Loan Agreement.
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(a) Amendment to the Definition of "Revolving Loan Borrowing Base" in
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the Loan Agreement. The definition of "Revolving Loan Borrowing Base" set forth
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in Section (cccc) of Article I of the Loan Agreement is hereby amended in its
entirety to read as follows:
"(cccc) "Revolving Loan Borrowing Base" shall mean: (I) if the
Availability Test is satisfied, an amount equal to the lesser of: (i)
Five Million Dollars ($5,000,000) or (ii) an amount equal to the
aggregate of (1) eighty percent (80%) of Eligible Accounts plus (2) the
lesser of (A) thirty-five percent (35%) of Eligible Inventory, or (B)
One Million Dollars ($1,000,000), or (II) if the Availability Test is
not satisfied, an amount equal to the lesser of: (i) Five Million
Dollars ($5,000,000) or (ii) an amount equal to the aggregate of (1)
eighty percent (80%) of Eligible Accounts plus (2) the lesser of (A)
thirty-five percent (35%) of Eligible Inventory, or (B) One Million
Dollars ($1,000,000), multiplied by (3) seventy-five percent (75%). As
used herein, the term "Availability Test" means that the Borrower has
raised additional equity and long term debt on terms satisfactory to
the Bank to fund the consolidation of its facility in California with
its facility in Connecticut."
(b) Amendment to Section 7.7 of the Loan Agreement. Section 7.7 of
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the Loan Agreement is hereby amended in its entirety to read as follows:
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"Section 7.7. Early Termination Fee. In the event that prior to
September 30, 2002 (a) the Revolving Loan is terminated by the
Borrower, or (b) the Revolving Loan is terminated as a result of the
occurrence of an Event of Default, Borrower shall pay to Lender on the
effective date of termination, in addition to any other payments
Borrower is required to make hereunder, a termination fee equal to one
percent (1%) of the maximum principal amount of the Loans (the
"Termination Fee"). It is understood that the determination of the
maximum principal amount of the Loans shall be made without regard to
the components of the Revolving Loan Borrowing Base based upon Eligible
Accounts and Eligible Inventory and the component of the Equipment Loan
Borrowing Base based upon Eligible Equipment. For example, for purposes
of this provision, on the date hereof the maximum principal amount of
the Revolving Loan is $5,000,000, the maximum principal amount of the
Equipment Loan is $1,250,000, the maximum principal amount of the Term
Loan is $500,000 and the maximum principal amount of the Additional
Term Loan is $1,000,000 and the Termination Fee would be $77,500."
(c) Amendment to Section 11.29 Tangible Net Worth. Section 11.29 of
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the Loan Agreement is hereby amended in its entirety to read as follows:
"Section 11.29 Tangible Net Worth. Permit its Tangible Net Worth
to be less than (a) $8,500,000 on June 30, 2001 and September 30, 2001,
and (b) $9,000,000 on December 31, 2001 and at the end of each and
every fiscal quarter thereafter."
(d) Amendment to Section 11.30 of the Loan Agreement. Section 11.30
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of the Loan Agreement is hereby amended in its entirety to read as follows:
"Section 11.30. Debt to Worth Ratio. Permit its Debt to Worth
Ratio to be greater than 1.75 to 1.0 on June 30, 2001 and at the end of
each and every fiscal quarter thereafter."
(e) Amendment to Section 11.31 of the Loan Agreement. Section 11.31
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of the Loan Agreement is hereby amended in its entirety to read as follows:
"Section 11.31. Debt Service Coverage Ratio. Permit its Debt
Service Coverage Ratio (a) to be less than 2.0 to 1.0 for the two (2)
consecutive fiscal quarters ending on June 30, 2001, (b) to be less
than 2.0 to 1.0 for the three (3) consecutive fiscal quarters ending on
September 30, 2001, and (c) to be less than 2.0 to 1.0 for each period
of four (4) consecutive fiscal quarters ending on
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December 31, 2001 and at the end of each and every fiscal quarter
thereafter."
(f) Amendment to Section 11.32 of the Loan Agreement. Section
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11.32 of the Loan Agreement is hereby amended in its entirety to read as
follows:
"Section 11.32. Leverage Ratio. Permit its Leverage Ratio (a) to
be greater than 3.0 to 1.0 for the two (2) consecutive fiscal quarters
ending on June 30, 2001, (b) to be greater than 2.5 to 1.0 for the
three (3) consecutive fiscal quarters ending on September 30, 2001,
and (c) to be greater than 2.3 to 1.0 for each period of four (4)
consecutive fiscal quarters ending on December 31, 2001 and at the end
of each and every fiscal quarter thereafter."
(g) Amendment to Section 17.1(a) of the Loan Agreement. The first
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sentence of Section 17.1(a) of the Loan Agreement is hereby amended in
its entirety to read as follows:
"Revolving Loan. Unless sooner terminated by Lender as a result
of the occurrence of an Event of Default, Borrower's eligibility to
request Revolving Loans shall commence on the date hereof and shall
continue for a period through and including September 30, 2002 (the
"Revolving Loan Term")."
(S)6. Final Equipment Loan. On July 1, 2001, a Final Equipment Loan in
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the principal amount of $250,000 shall be converted into term indebtedness
evidenced by a promissory note in form and content satisfactory to the Bank (the
"Final Converted Equipment Loan Note"). Contemporaneously herewith, the Borrower
shall execute and deliver to the Bank the Final Converted Equipment Loan Note,
and the Borrower shall not have the right to request, and the Bank shall not
have the obligation to make, any further Equipment Loans.
(S)7. Expenses. The Borrower agrees to pay to the Bank upon demand an
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amount equal to any and all out-of-pocket costs or expenses (including
reasonable legal fees and disbursements) incurred or sustained by the Bank in
connection with the preparation of this Agreement and related matters.
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(S)8. Miscellaneous Provisions.
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(a) Except as otherwise expressly provided by this Agreement, all of
the respective terms, conditions and provisions of the Loan Agreement, the Notes
and the other Loan Documents shall remain the same. It is declared and agreed by
each of the parties hereto that the Loan Agreement, as amended hereby, shall
continue in full force and effect, and that this Agreement and the Loan
Agreement shall be read and construed as one instrument.
(b) This Agreement is intended to take effect under, and shall be
construed according to and governed by, the laws of the State of Connecticut.
(c) This Agreement may be executed in any number of counterparts,
but all such counterparts shall together constitute but one instrument. In
making proof of this Agreement it shall not be necessary to produce or account
for more than one counterpart signed by each party hereto by and against which
enforcement hereof is sought.
(d) All references in the Notes and Loan Documents to "Loan
Agreement" shall mean and refer to the Loan Agreement as amended by this
Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
Witnesses: MEMRY CORPORATION
/s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Its Chief Financial Officer
/s/ Xxxxxx X. Xxxxxxxx
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Witnessed: XXXXXXX BANK
/s/ Xxxxx X. Xxxxxxx By /s/ X. Xxxxxxx
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Its VP
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STATE OF CONNECTICUT )
) ss. Bethel
COUNTY OF FAIRFIELD )
Before me, the undersigned, this 18th day of July, 2001, personally
appeared Xxxxxx X. Xxxxxxx, known to me to be the V.P. & C.F.O. of MEMRY
CORPORATION and that he as such officer, signer and sealer of the foregoing
instrument, acknowledged the execution of the same to be his free act and deed
individually and as such officer, and the free act and deed of said corporation.
In Witness Whereof; I hereunto set my hand
/s/ Xxxxxxx X. Xxxxxx
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Notary Public
My Commission Expires: 9-30-05
Commissioner of the Superior Court
