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Exhibit 10.1
FIFTH AMENDMENT AGREEMENT
FIFTH AMENDMENT AGREEMENT (this
“
Agreement ”)
dated as of August 31, 2007 by and between Memry Corporation (the
“
Borrower ”),
a Delaware corporation, and Webster Bank, National Association as
assignee and successor in interest to Webster 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 Webster
Business Credit Corporation, 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 and by a Third
Amendment Agreement dated December 5, 2006 and a Fourth Amendment
Agreement dated March 28, 2007(as amended and in effect from time
to time, the “
Credit Agreement ”).
WITNESSETH
WHEREAS ,
pursuant to the terms of the Credit Agreement, Webster Business
Credit Corporation has assigned all of its rights, title and
interest in and to the Credit Agreement, the Notes (as defined in
the Credit Agreement) and the Other Documents (as defined in the
Credit Agreement) to Webster Bank, National Association;
and
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)
Acknowledgment of Preamble .
All facts of the above-recited preamble are hereby acknowledged as
complete and accurate and shall be incorporated into this
Modification as if fully restated herein and the Borrower
represents that no Event of Default or event which with the giving
of a notice or the passage of time would constitute an Event of
Default has occurred under the Credit Agreement and/or the Other
Documents (as defined in the Credit Agreement). All capitalized
terms not otherwise defined herein shall have the meanings ascribed
to such terms in the Original Loan Documents.
(2)
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.
(3)
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.
(4)
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.
(5)
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 del
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