EXHIBIT 10.42
FINAL CONVERTED EQUIPMENT LOAN NOTE
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$250,000.00 July 1, 2001
For value received, the undersigned, MEMRY CORPORATION, a Delaware
corporation ("Maker"), promises to pay to XXXXXXX 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 TWO HUNDRED FIFTY
THOUSAND DOLLARS ($250,000.00), 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 6.7 of the
Commercial Revolving Loan, Term Loan, Line of Credit and Security Agreement
dated of even date herewith 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 Final Converted Equipment Loan 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
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principal and accrued and unpaid interest shall be due and payable in full on
June 30, 2004.
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 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 XXXXXX 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,
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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 XXXXXX HAS NOT AGREED WITH OR REPRESENTED TO MAKER THAT THE PROVISIONS OF
THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
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
/s/ Xxxxxx X. Xxxxxxx
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By: Xxxxxx X. Xxxxxxx
Its: Chief Financial Officer
