EXHIBIT 10.47
AMENDMENT TO LOAN AGREEMENT
This AMENDMENT TO LOAN AGREEMENT ("Amendment"), dated as of September 22,
1999, between MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking
corporation, with a principal office located at One M&T Plaza, Buffalo, New York
14240 (the "Bank") and CVC PRODUCTS, INC., a Delaware corporation, with a
principal office located at 000 Xxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the
"Borrower").
WHEREAS, the Bank and the Borrower entered into a certain Loan Agreement,
dated as of March 31, 1998, which loan agreement was amended by letter
amendments September 30, 1998 and February 19, 1999 (collectively the "Letter
Amendments") (collectively, and as amended, restated or replaced from time to
time the "Loan Agreement"); and
WHEREAS, pursuant to the Loan Agreement, the Bank agreed to provide the
Borrower with an $8,000,000 term loan (the "Term Loan"), a $10,000,000
discretionary line of credit (the "Prior Line of Credit") and a $2,000,000 loan
limit (the "Prior Loan Limit"); and
WHEREAS, pursuant to the Loan Agreement, the Bank made the Term Loan to
the Borrower, and the Borrower has utilized the Prior Line of Credit; and
WHEREAS, the Prior Loan Limit was terminated by the Bank and the Borrower
and was replaced with equipment lease financing; and
WHEREAS, the Borrower has asked the Bank to increase the amount available
under the Prior Line of Credit, to provide letters of credit, to modify the
Borrowing Base (as defined in the Loan Agreement) and to establish a new loan
limit in the amount of $3,000,000, and to make additional modifications to the
Loan Agreement; and
WHEREAS, the Bank is willing to make the above-referenced modifications
pursuant to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants contained herein, the parties agree to amend the Loan Agreement as
follows:
1. All capitalized terms used in this Amendment shall have the definitions
provided in the Loan Agreement, except as otherwise defined herein.
2. The Schedules of Permitted Liens, Permitted Investments, Permitted
Indebtedness and Subsidiaries and Affiliates are hereby deleted in full and
replaced with the following:
Schedule of Permitted Liens
1. Landlord Liens that are not superior to the Bank's security interests.
2. Purchase money liens in an aggregate total amount not to exceed
$1,000,000 provided that such liens secure no more than 100% of the lesser of
the fair market value or cost of the property purchased.
Schedule of Permitted Investments
1. Corporate bonds in an aggregate of no more than $1 million per issuance
outstanding at any time issued by any corporation organized under the laws of
any state of the United States and rated at least "Prime-1" (or the then
equivalent grade) by Xxxxx'x Investor Service, Inc. or "A-1" (or the then
equivalent grade) by Standard & Poor's.
2. Publicly traded equities.
3. Investments in entities controlled, directly or indirectly, by Parent.
Schedule of Permitted Indebtedness
1. Debt to Bank.
2. Debt secured by Permitted Liens.
3. Debt to Real Lease, Inc. for equipment purchased or leased from NORESCO
in the principal amount of $25,000.
4. Additional indebtedness provided that no such single additional debt
exceeds $100,000.00 and the aggregate amount of such additional debt does not
exceed $250,000.00.
Schedule of Subsidiaries and Affiliates
1. Seagate Technology (Affiliate)
2. Nikko Tecno Co., Inc. (Affiliate)
3. CVC, Inc.
4. Commonwealth Scientific Corporation (Affiliate)
5. CVC Process Solutions, Inc. (Affiliate)
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3. Section b. in Insert 1 of the Rider to Loan Agreement, dated March 31,
1998, (as amended, restated or replaced from time to time the "Rider") between
Bank and Borrower is hereby deleted in full and replaced with the following:
b. $15,000,000.00 Line of Credit.
(i) Subject to the terms and conditions of this Agreement,
Bank shall establish on September 22, 1999 (the "Amended Effective Date") for
the benefit of Borrower a discretionary line of credit ("Line of Credit") in the
maximum principal amount equal to the lesser of Fifteen Million Dollars
($15,000,000.00) or the then existing Borrowing Base (the "Maximum Credit").
Borrowing Base is defined below. Loans under the Line of Credit are
discretionary with Bank and conditioned upon prior approval by Bank.
(ii) The fact that a particular loan request pursuant to the
Line of Credit is disapproved by Bank shall have no effect on the Line of
Credit, nor on Borrower's rights to make future requests for loans under the
Line of Credit, nor on Borrower's obligation to pay the 1999 Grid Note (defined
below) and any other indebtedness of Borrower to Bank in full. Provided that
Bank gives approval to the requested borrowing, Borrower may borrow, repay and
reborrow under the Line of Credit, so long as the unpaid principal balance of
the 1999 Grid Note does not exceed the Maximum Credit.
(iii) Requests for a loan under the Line of Credit may be oral
(in person or by telephone) or in writing from an authorized person named in the
1999 Grid Note ("Authorized Person"), shall be made at least two (2) business
days before any LIBOR Rate Loan, and shall specify a date on which funds are
requested to be made available, which date shall be a business day in New York
State, the amount to be borrowed, the type of loan and, if a LIBOR Rate Loan,
the applicable Interest Period. No more than eight (8) LIBOR Rate Loans may be
outstanding at one time. Borrower will be bound by such instructions. Borrower
hereby indemnifies and holds Bank harmless from any liability (including Bank's
reasonable attorneys' fees) which may arise as a result of Bank's reliance on
telephone requests for borrowing and/or prepayment instructions from any person
identifying himself as an Authorized Person. Each Prime Loan shall be in the
minimum principal amount of $100,000.00 or a $10,000 integral multiple thereof,
and each LIBOR Rate Loan shall be in the minimum principal amount of $500,000.00
or a $100,000 integral multiple thereof, except for a borrowing in a lesser
amount equal to the unused portion of the Maximum Credit, which must be a Prime
Loan.
(iv) Each loan made by the Bank to Borrower under the Line of
Credit ("Approved Loan") shall be processed by debiting the Line of Credit and
crediting Borrower's checking account with Bank for the amount of the Approved
Loan or by forwarding or applying the Approved Loan proceeds as otherwise agreed
by Bank and Borrower. The Approved Loan shall be deemed made immediately upon
the crediting of the Approved Loan proceeds to Borrower's checking account with
Bank or forwarding or applying the Approved Loan proceeds as otherwise agreed by
Bank and Borrower.
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(v) Each Approved Loan is payable on demand and shall be
evidenced by an Amended and Restated Standard LIBOR Grid Note (with blanks
appropriately completed) (the "1999 Grid Note"), which Borrower shall execute
and deliver to Bank on the Amended Effective Date. The 1999 Grid Note shall be
in the form of Exhibit A attached to the Amendment, with blanks appropriately
completed.
(vi) Conversions and Contributions -- The Borrower shall have
the right to convert Approved Loans of one type (i.e., Prime Loans or LIBOR Rate
Loans) into Approved Loans of another type, or continue Approved Loans of the
same type, pursuant to the terms of the 1999 Grid Note.
(vii) All outstanding amounts under the Line of Credit,
(except as specifically provided in the 1999 Grid Note), shall bear interest
until paid in full (A) for Prime Loans, at the Prime Rate and (B) for LIBOR Rate
Loans, at the LIBOR Rate. Interest shall be calculated based on actual days
elapsed divided by a year of three hundred sixty (360) days. Changes in the rate
of interest applicable to the 1999 Grid Note shall become effective
automatically and without notice at the time of changes in the Prime Rate.
(viii) Payments of all accrued interest under the 1999 Grid
Note shall be made, in the case of Prime Loans, on the first day of each month
commencing the first month after the Prime Loan is made and, in the case of
LIBOR Rate Loans, on the last day of the applicable Interest Period, except if a
LIBOR Rate Loan has a six (6) month Interest Period, interest shall be paid on
the three (3) month anniversary of such LIBOR Rate Loan and on the last day of
the Interest Period, unless payment of the 1999 Grid Note is sooner demanded by
Bank, in which case all accrued interest shall be immediately due and payable in
full. Principal outstanding pursuant to the 1999 Grid Note shall be due and
payable in full at any time upon demand by Bank. In the event Borrower becomes
aware, or receives notice (oral or written) from Bank, that principal amounts
outstanding under the Line of Credit exceed the Maximum Credit at any time,
Borrower promptly shall make a principal payment to Bank sufficient to reduce
outstanding principal amounts to the Maximum Credit without the necessity of a
demand by Bank.
(ix) LIBOR Rate Loans -- Additional provisions regarding LIBOR
Rate Loans are contained in the 1999 Grid Note.
(x) As used in this Agreement, the following definitions shall
apply:
"Accounts" means all accounts, contract rights, chattel
paper, instruments and documents, whether now owned or hereafter created or
acquired by Borrower or any Guarantor or in which Borrower or any Guarantor now
has or hereafter acquires any interest.
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"Amendment" means the Amendment to Loan Agreement dated
September 22, 1999 between Bank and Borrower.
"Borrowing Base" means, on any date, (a) the sum of (i)
eighty percent (80%) of Eligible Accounts and (ii) forty percent (40%) of
Eligible Inventory, plus (b) forty percent (40%) of the net depreciated value of
Borrower's demonstration inventory and equipment less (c) (i) the unpaid
principal amount outstanding under the 1998 Term Note, (ii) the outstanding
stated amount of all outstanding letters of credit which were issued by the Bank
(after approval by the Bank) for the account of Borrower or Parent and that are
outstanding and (iii) any deposits or advances from customers to the extent such
customers are account debtors with respect to any Eligible Accounts. For
purposes of this calculation, Eligible Accounts and Eligible Inventory shall be
as set forth in the most recent Borrowing Base Certificate delivered to Bank.
"Commonwealth" means Commonwealth Scientific
Corporation, a Virginia corporation with a principal office at 000 Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
"Cost of Funds" shall mean the most recent yield on
United States Treasury Obligations adjusted to a constant maturity of the number
of years equal to the term of the applicable Loan Limit Note in effect two (2)
business days prior to the date of the Loan Limit Note as published by the Board
of Governors of the Federal Reserve System in the Federal Reserve Statistical
Release H.15(519), or by such other quoting service, index or commonly available
source utilized by the Bank, plus the "ask" side of the number of years equal to
the term of the applicable Loan Limit Note swap spread in effect two (2)
business days prior to the date of the Loan Limit Note as set forth in
Bloomberg, L.P. or by such other quoting service, index or commonly available
data source utilized by the Bank.
"Eligible Accounts" means an Account arising in the
ordinary course of Borrower's or any Guarantor's business from the sale of goods
or rendition of services, provided that it meets the following requirements:
(a) The Account is an Account that has been in
existence for 90 days or less and is payable
by its terms in no more than 30 days from
the invoice date except that the portion of
the Account related to installation of tools
shall be in existence no more than 180 days
from the date of shipment,
(b) The Account arose (i) from the performance
of services by Borrower or any Guarantor
that have been fully and satisfactorily
performed or (ii) from the absolute sale of
goods by Borrower or any Guarantor in which
Borrower or
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Commonwealth had the sole and complete
ownership and that have been shipped or
delivered to and finally accepted without
dispute by the account debtor without
return, rejection, loss or damage and to
which Borrower or any Guarantor or the Bank
has possession of a shipping or delivery
receipt;
(c) The Account is a legal, valid and binding
obligation of the account debtor and is not
subject to any offset, counterclaim,
defense, credit, allowance or adjustment
except a discount for prompt payment, or to
any dispute, objection or complaint by the
Account Debtor concerning his, her or its
liability on the Account;
(d) The Account arose in the ordinary course of
Borrower's or any Guarantor's business and
no notice of bankruptcy, insolvency,
failure, suspension or termination of
business or financial embarrassment of the
Account Debtor has been received by Borrower
or any Guarantor or the Bank;
(e) The account debtor is not an affiliate
(defined below) of Borrower or any Guarantor
(other than Seagate Technology or Nikko
Tecno Co., Inc.) or a supplier (or an
affiliate of a supplier) of goods or
services to Borrower or any Guarantor;
(f) The Account is not an employee accounts
receivable, xxxx and hold accounts
receivable (i.e., accounts relating to goods
not yet shipped but invoiced), uncollectible
accounts receivable, accounts receivable
arising from progressive xxxxxxxx (i.e.,
accounts receivable from xxxxxxxx for work
performed on a partially completed
contract), accounts receivable arising from
guaranteed sales with buy back provisions
(i.e., sales in which the Borrower or any
Guarantor is obligated to repurchase
inventory or merchandise sold to customers),
accounts receivable from the United States
of America or agency or department thereof
(unless assignment
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and notice thereof is effected in accordance
with the Assignment of Claims Act);
(g) The full amount reflected on Borrower's or
any Guarantor's records and on any invoice
delivered to the Bank relating to the
Account is owing to Borrower or such
Guarantor and no partial prepayments thereon
have been made;
(h) Each representation and warranty with
respect to the Account made by Borrower or
any Guarantor to the Bank in any security
agreement executed by Borrower or any
Guarantor is true and complete;
(i) The Account is subject to the perfected
first priority security interest of the Bank
and to no other security interest, lien,
assignment or encumbrance of any kind; and
(j) The Bank has not notified Borrower that the
Account or the account debtor, in the Bank's
reasonable judgment, is unsatisfactory.
"Eligible Inventory" means all first quality inventories
of finished products, work-in-process inventory and raw materials owned by the
Borrower or Commonwealth, valued at the lower of cost (on a FIFO basis) or
market, minus all perishable or non-saleable inventories and such reserves as
Borrower or Commonwealth has historically established, including, but not
limited to, (a) shrinkage reserves, (b) markdown reserves, and (c) reserves
which restore standard costs to actual costs. Neither so-called mold inventories
or inventories on consignment, (except that with respect to consignments,
Eligible Inventory shall include inventory shipped to customers at sites located
in the United States for evaluation by the customer, provided that no more than
75 days elapse from the date of shipment and further provided that the aggregate
value of such Eligible Inventory on consignment does not exceed $2,500,000.00),
are Eligible Inventories and all such inventories shall be excluded from the
calculation thereof. Eligible Inventories must arise from the Borrower's or
Commonwealth's ordinary course of business as it exists on the date of this
Amendment, must at all times be subject to the perfected, first priority
security interest of Bank and no other lien, must be located on Borrower's or
Commonwealth's premises within the United States (which are covered by a
landlord/mortgagee waiver acceptable to the Bank), must conform in all respects
to warranties contained in this Amendment and all security or other related
agreements and documents, and must not be subject to a licensing agreement with
third parties unless Bank shall have received consents or acknowledgements or
other assurances satisfactory to the Bank from such third parties as may be
deemed necessary or desirable to facilitate Bank's realization
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upon such inventory. Any inventory subject to an Eligible Account shall also not
constitute Eligible Inventory. The calculation of Eligible Inventory must be
satisfactory to the Bank in its reasonable discretion.
"Eurocurrency Reserve Rate" means, for any LIBOR Rate
Loan for any Interest Period therefor, the daily average of the stated maximum
rate (expressed as a decimal) at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained during such
Interest Period (or any part thereof) under Regulation D by the Bank against
"Eurocurrency Liabilities" (as such term is used in Regulation D), but without
the benefit or credit of proration, exemptions or offsets that might otherwise
be available to the Bank from time to time under Regulation D. Without limiting
the effect of the foregoing, the Eurocurrency Reserve Rate shall reflect any
other reserves required to be maintained by the Bank against any category of
liabilities that includes deposits by reference to which the LIBOR Rate for
LIBOR Rate Loans is determined, or any category of extension or credit or other
assets that include LIBOR Rate Loans.
"Fixed Rate" shall mean 1.85% above the Cost of Funds.
"Fixed Rate Loan" means a loan bearing interest at the
Fixed Rate.
"Interest Period" means, with respect to any LIBOR Rate
Loan, each period commencing on the date such LIBOR Rate Loan is made or
converted from a Prime Loan and ending on the numerically corresponding day in
the first, second, third or sixth calendar month thereafter, as the Borrower
may select, except that each Interest Period which commences on the last
business day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last business day of the appropriate subsequent calendar month.
Notwithstanding the foregoing, (i) each Interest Period
that would otherwise end on a day which is not a business day, shall end on the
next succeeding business day (or, if such next succeeding business day falls in
the next succeeding calendar month, on the next preceding business day); and
(ii) notwithstanding clause (i) above, no Interest Period shall have a duration
of less than one month without Bank's consent and, if the Interest Period for
any LIBOR Rate Loan would otherwise be a shorter period, such LIBOR Rate Loan
shall not be available hereunder for such period.
"Letters of Credit" shall mean the Letters of Credit
described in Section b.(xiv) of Insert 1 of this Rider.
"Letters of Credit Obligations" means all obligations of
the Borrower to reimburse the Bank for all amounts drawn under the Letters of
Credit pursuant to the Reimbursement Agreement (as defined below).
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"LIBOR Base Rate" means, with respect to any Interest
Period for a LIBOR Rate Loan, the rate per annum equal to the quotient obtained
by dividing (and rounded upward to the nearest 1/100 of 1%) (i) LIBOR (as
determined below) on a date two Business Days prior to the beginning of an
Interest Period ("Interest Setting Date"), at which deposits in United States
Dollars for a period and in an amount, comparable to the Interest Period and the
principal amount of the LIBOR Rate Loan are offered to prime banks in the London
Interbank market at 11:00 a.m. (London time) on that day ("Reference Bank") by
(ii) a percentage equal to 100% minus the Eurocurrency Reserve Rate. LIBOR shall
be determined by the Bank on the Interest Setting Date from Telerate Page 3750
as of 11:00 a.m. (London time) on such date, or if such page or such service
ceases to display such information, from such other service or method as Bank
may select.
"LIBOR Rate" means for a loan under the Line of Credit,
the LIBOR Base Rate plus two and one quarter percent (2.25%), and for a loan
under the Loan Limit, the LIBOR Base Rate plus two and one-half percent (2.5%).
"LIBOR Rate Loan" means a loan bearing interest at the
LIBOR Rate.
"Prime Loan" means any loan under this Agreement bearing
interest at the Prime Rate.
"Prime Rate" shall mean the rate of interest designated
by the Bank as its prime rate from time to time as a guide for establishing
lending rates to customers, irrespective of the actual rate charged to any
specific customer with respect to any specific transaction.
(xi) Borrower also will submit to Bank within thirty (30) days
after the end of each calendar month a Borrowing Base Certificate reporting on
the Borrowing Base as of the end of the previous month together with all
supporting documentation requested by Bank and a monthly backlog report. Each
Borrowing Base Certificate shall be in form satisfactory to the Bank and
certified to Bank by Borrower's Chief Financial Officer. Borrower will also,
within forty-five (45) days of the end of each of its first three fiscal
quarters, provide Bank with a certificate executed by its Chief Financial
Officer, stating that he has read this Amendment, knows its contents and that to
his knowledge, Borrower is in compliance with all financial covenants contained
in this Amendment, and no Event of Default has occurred under this Amendment,
and no conditions exists, which, with notice, lapse of time or both, would
constitute an Event of Default under this Amendment. The certificate shall also
show the computations required to establish Borrower's compliance with each
financial covenant during the period covered by the certificate. Borrower shall
also provide Bank with such additional financial and other information as Bank
shall reasonably, from time to time, request.
(xii) Bank may perform full field audits of Borrower's
accounts receivable and inventories during normal business hours at Borrower's
expense once a
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year. Bank reserves the right, in its sole discretion and at its own expense, to
perform field audits of Borrower's accounts receivable and inventories more than
once per year. Notwithstanding the foregoing, during the continuance of an Event
of Default, the Bank may perform an unlimited amount of full field audits at
Borrower's expense.
(xiii) The Line of Credit will terminate on the demand by Bank
of amounts outstanding under the 1999 Grid Note. Bank may also terminate
Borrower's right to make requests for loans under the Line of Credit at any time
by giving Borrower written notice of termination without making a demand for
payment of the 1999 Grid Note. The giving of such notice by Bank shall not
effect Bank's rights under this Amendment or under the 1999 Grid Note or under
any other agreement, instrument or document made by Borrower with or in favor of
Bank, nor on Borrower's obligation to pay the 1999 Grid Note in full according
to its terms.
(xiv) Subject to the terms and conditions of this Agreement
and provided the Borrower complies with all application requirements of the Bank
for issuing letters of credit, the Borrower may request that the Bank make
standby letters of credit available for the account of the Borrower; provided
that (a) the Borrower shall not request that the Bank issue any Letter of
Credit, if, after giving effect to such issuance, the sum of the aggregate
Letter of Credit Obligations plus the aggregate outstanding principal amount of
the 1999 Grid Note would exceed the Maximum Credit; and (b) the Borrower shall
not request that the Bank issue any Letter of Credit, and the Bank will not
issue any letter of credit if after giving effect to such issuance, the
aggregate Letter of Credit Obligations would exceed $1,000,000.
The Borrower will pay to the Bank letter of credit fees
on the date of issuance of the Letters of Credit and on each anniversary date
thereafter if the Letters of Credit are renewed, equal to one and one-quarter
percent (1 1/4%) of the aggregate face amount of all outstanding Letter of
Credit, or such other amount as may be customarily charged by the Bank. In
addition, Borrower shall pay to the Bank all other fees customarily charged by
the Bank in connection with the issuance of the Letters of Credit.
Prior to issuance of any Letters of Credit hereunder,
the Borrower will execute a Letter of Credit Reimbursement Agreement (the
"Reimbursement Agreement") substantially in the form of Exhibit B attached to
the Amendment that is satisfactory to the Bank, documenting its Obligations with
respect to the Letters of Credit. To the extent of any conflict between the
terms of this Amendment and the Reimbursement Agreement or any letter of credit
application, the terms of this Amendment shall control.
4. Paragraph c. in Insert 1 of the Rider is hereby deleted in full and
replaced with the following:
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c. $3,000,000.00 Loan Limit.
(i) Subject to the terms and conditions of this Agreement, the
Bank hereby establishes for the benefit of the Borrower a discretionary offering
basis loan limit ("Loan Limit") in the maximum principal amount outstanding at
any one time of Three Million Dollars ($3,000,000.00). Loans under the Loan
Limit shall be either Prime Loans, LIBOR Rate Loans or Fixed Rate Loans. Prime
Loans shall be in the minimum principal amount of $100,000, or a $10,000
integral multiple thereof, and LIBOR Rate Loans and Fixed Rate Loans shall be in
the minimum principal amount of $500,000, or a $100,000 integral multiple
thereof. Under the Loan Limit, an authorized officer of the Bank, in his sole
discretion, may make advances to Borrower under the Loan Limit on the terms
specified below. Borrower acknowledges that such officer may refuse to make any
advances under the Loan Limit to Borrower for any reason, or for no reason
whatsoever.
(ii) Provided that all of the conditions for advances
contained herein are satisfied, including approval of a requested advance,
advances under the Loan Limit will be made from time to time at the request of
the Borrower by credits to the Borrower's accounts at the Bank.
(iii) Unless extended by the Bank in writing in its sole
discretion, the Loan Limit will be available until terminated by Bank upon
written notice to the Borrower. Borrower acknowledges that Bank may terminate
the Loan Limit at any time in its sole discretion.
(iv) With each advance under the Loan Limit, the Borrower
shall execute a term note evidencing such indebtedness to the Bank (each such
note, a "Loan Limit Note"). Each Loan Limit Note shall be in substantially the
form of Exhibit C-1 attached to the Amendment if a Fixed Rate Loan and Exhibit
C-2 attached to the Amendment if a Prime Loan or LIBOR Rate Loan. Each such note
shall be dated the date the Borrower executes the note, be payable to the order
of Bank, be in the principal amount of the advance and provide for interest
accruing, prior to an Event of Default, at a rate equal to (1) the Prime Rate,
(2) the Fixed Rate or (3) the LIBOR Rate. Each Loan Limit Note shall further
provide that, unless sooner accelerated, the original principal amount evidenced
thereby shall be repayable in such number of months as may be selected by Bank
which shall not be less than thirty-six (36) months nor more than sixty (60)
months. Accrued interest under each Loan Limit Note shall be due on the first
day of each calendar month for a Prime Loan or Fixed Rate Loan, and on the last
day of the Applicable Interest Period for a LIBOR Rate Loan, except if a LIBOR
Rate Loan has a six (6) month Interest Period, interest shall be paid on the
three (3) month anniversary of such LIBOR Rate Loan and on the last day of the
Interest Period, with the first interest payment due on the first day of the
first month following the date on which the note is executed and continuing
thereafter until the note is paid in full. All remaining principal and accrued
interest shall be due and payable in full on the Loan Limit Note's maturity
date. No more than five (5) LIBOR Rate Loans may be outstanding at any one time.
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(v) The Borrower shall have the right to convert approved
loans of one type (i.e., Prime Loans or LIBOR Rate Loans, but not Fixed Rate
Loans) into approved loans of another type (but not Fixed Rate Loans), or
continue approved loans of the same type, pursuant to the terms of the Loan
Limit Note.
5. (a) The proceeds of the Approved Loan under the Line of Credit made by
Bank to Borrower on the Closing Date $8,608,000 shall be used by Borrower only
for the purposes set forth in the Application of Proceeds executed by Borrower
on the Closing Date. The proceeds of all other Approved Loans made under the
Line of Credit shall be used only for Borrower's working capital purposes and
Letters of Credit.
(b) The proceeds of all advances under the Loan Limit shall only be
used for purchases of equipment. Borrower shall provide Bank with a copy of the
purchase orders and paid invoices for the equipment purchased. In no event shall
any advance under the Loan Limit (or any other borrowing by Borrower) fund more
than one hundred percent (100%) of the lesser of the cost or the fair market
value of the equipment for which an advance is requested.
6. The representations and warranties in a, b, c, f and k of Insert 5 of
the Rider are hereby deleted in full and replaced with the following:
a. Financial Statements. All financial statements furnished by
Borrower to Bank (including, without limitation, the consolidated balance sheets
as of June 30, 1999 and September 30, 1998 of Parent and the related
consolidated statements of operations, shareholders' equity and cash flows for
the nine (9) and twelve (12) months then ended, respectively, are complete and
correct, have been prepared in accordance with Generally Accepted Accounting
Principles consistently applied throughout the periods indicated and fairly
present the financial condition of the Borrower, as of the respective dates
thereof and the results of Borrower's operations and cash flow for the
respective periods covered thereby. Since June 30, 1999, there has been no
material adverse change in the condition, financial or otherwise, of the
Borrower.
b. Registration Statement. Borrower has provided Bank with a true
and complete copy of the Amendment No. 3 to Registration Statement (File No.
356-33821) filed by Parent with the Securities and Exchange Commission on
September 10, 1999, and such Registration Statement (including the prospectus
contained therein) does not, and in the future neither the Registration
Statement nor any supplement nor amendment thereto, will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated or incorporated by reference therein or necessary to make the statement
therein not misleading (and in the case of the prospectus, not misleading in
light of the circumstances under which they were made).
c. Subsidiaries and Affiliates. The Borrower is a wholly-owned
subsidiary of the Parent and neither Borrower nor Parent has any subsidiaries or
affiliates, except those listed in the attached "Schedule of Permitted
Subsidiaries and Affiliates".
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Parent's sole assets are the capital stock of Borrower, Commonwealth and CVC
Process Solutions, Inc. Borrower is not a party to any material transaction with
any affiliate except for transactions which are in the ordinary course of
business and upon fair and reasonable terms not materially less favorable than
Borrower could obtain or become entitled to in an arm's length transaction with
an entity that is not an affiliate.
As used herein, the following definitions apply:
"affiliates" means any entity which directly or indirectly, or
through one or more intermediaries, controls or is controlled by or is under
common control with Parent, Borrower or any subsidiary of Parent or Borrower.
"control", "controlled by" or "under common control" means,
but is not limited to, the beneficial ownership (as defined in Rule 13(d)
promulgated by the Securities Exchange Commission pursuant to Section 13(d) of
the Securities Exchange Act of 1934, as amended) of ten percent (10%) or more of
the outstanding shares of capital stock of any corporation having voting power
for the election of directors (whether or not at the same time stock of any
other class or classes has or might have voting power by reason of the happening
of any contingency) or ten percent (10%) or more of any equity interest in any
non-corporate entity, or any other interest through which the power to direct
the management or policies of a person may be exercised.
f. Existing Indebtedness. Except as disclosed in the attached
"Schedule of Permitted Indebtedness," neither Parent nor Borrower has any
outstanding indebtedness or contingent liabilities (including, without
limitation, "off-balance sheet" liabilities) other than those liabilities
disclosed in the Borrower's balance sheet, dated as of June 30, 1999, and wages,
salary, trade payables and operating leases incurred in the ordinary course of
business since such date. Without limiting the foregoing, neither Parent nor
Borrower is an account party with respect to any letters of credit other than
those issued by Bank. Borrower shall not, without Bank's prior written consent,
modify the terms of any of its existing long-term debt or make any principal
payments on any long-term debt (other than debt to Bank) at any time for any
reason (whether before or after maturity hereof).
k. Except as specified in Recordation Form Cover Sheet on Form PTO
1595, provided to Bank by Borrower on or about September 22, 1999, Borrower has
no patents issued by the U.S. Patents and Trademark Office ("PTO"), nor has
Borrower filed any other applications for patents with the PTO.
7. The definition of Existing Bank Documents in subparagraph (j) of Insert
5 of the Rider is hereby amended by adding to such definition the following:
(xvi) Master Lease Agreement, dated April 7, 1998, executed by
Borrower in favor of M&T Financial Corporation and Schedules Nos. 1, 2 and 3
thereto.
-13-
8. The Tangible Net Worth, Total Liabilities to Tangible Net Worth, Cash
Flow Ratio, Backlog and Maximum Negative Net Income financial covenants
contained in Insert No. 6 of the Rider are hereby deleted in full and replaced
with the following and the Capital Expenditure covenant contained in Insert No.
6 is deleted:
b. Tangible Net Worth. Borrower shall not at any time have a
Tangible Net Worth of less than $29,000,000, as of the end of any fiscal
quarter, or a Tangible Net Worth which is less than ninety-five percent 95% of
Borrower's Tangible Net Worth as of the end of the immediately preceding fiscal
year.
c. Total Liabilities to Tangible Net Worth. Borrower shall not at
any time have a ratio of Total Liabilities to Tangible Net Worth of more than
2.5:1.0 at any time; provided, however, if at any time Parent closes on a public
offering of its common or other capital stock, it shall not have at any time as
of and after such closing Total Liabilities to Tangible Net Worth of more than
1.5 to 1.0.
d. Cash Flow Ratio. Borrower shall not have a Cash Flow Ratio of
less than 3.0 to 1.0 as of the end of any fiscal quarter.
e. Backlog. Borrower shall not have confirmed orders from customers
which will result in aggregate net sales to Borrower during the succeeding
twelve (12) months following the measurement date of less than $10,000,000.00.
f. Maximum Negative Net Income. Borrower shall not (i) for any
fiscal quarter after the date hereof have Net Income of less than negative
$500,000.00 and (ii) have Net Income of less than zero ($0) for any two
consecutive fiscal quarters
The definition of Cash Flow Ratio in Insert 6 of the Rider is
deleted and replaced with the following:
"Cash Flow Ratio" means, as of the end of any fiscal quarter (a) the
sum (without duplication) for the four fiscal quarters then ended ("Measurement
Period") of (i) Net Income and (ii) depreciation and amortization (to the extent
deducted in determining Net Income) for such period, divided by (b) the sum of
(1) current maturities of Borrower's long-term debt due during the twelve (12)
months immediately following the Measurement Period and (2) distributions,
dividends and amounts paid or accrued for the repurchase of stock by the
Borrower during the Measurement Period.
In determining Cash Flow Ratio for the four fiscal quarters
commencing with September 30, 1999 through the fiscal quarter ending March 30,
2000, Net Income shall not include the in-process research and development
charge of $1,174,000 reflected in the June 30, 1999 financial statements.
Unless otherwise specified herein, all accounting terms used herein shall
be interpreted, all accounting determinations hereunder shall be made and all
financial
-14-
statements required to be delivered hereunder shall be prepared, in accordance
with GAAP as in effect from time to time, applied on a basis consistent with
Borrower's consolidated financial statements as of and for the twelve (12)
months period ended September 30, 1998.
9. The first paragraph and the last paragraph of Insert No. 9 of the Rider
are hereby deleted and replaced with the following:
As used in this Agreement, (i) any amount due under this Agreement
includes, without limitation, any principal, interest, fees or expenses due
under the 1998 Term Note, the 1999 Grid Note and/or the Loan Limit or any of the
Existing Bank Documents; (ii) "any agreement with the Bank" includes any
agreement, note or instrument with the Bank, M&T Real Estate or any Bank
affiliate (which includes, without limitation, this Amendment, the 1998 Term
Note, the 1999 Grid Note and the Existing Bank Documents); (iii) "accelerated"
or "acceleration" means indebtedness that becomes due at maturity, by notice
after the occurrence of an event of default or which becomes due as a result of
a demand.
Notwithstanding the foregoing, the Bank shall be entitled to demand
and receive payment in full at any time of all outstanding and unpaid principal
under the 1999 Grid Note and all accrued interest thereon as well as all fees
and expenses due hereunder and such right to demand payment shall not be
altered, modified or abridged in any way as a result of anything herein
(including any covenants or Events of Default) or anything in any related
documents, including the Existing Bank Documents.
10. The definition of Guarantor, Note and Loan Documents in Insert No. 10
of the Rider are hereby deleted and replaced with the following:
b. The term "Guarantor" means any Entity (including Parent and
Commonwealth Scientific Corporation and CVC Process Solutions, Inc.) which
guaranties to Bank payment of the Indebtedness of any part thereof.
d. The term "Loan Documents" means any and all Notes and other
agreements executed at any time by any Entity in connection with this Agreement
or the Amendment. The Existing Bank Documents shall also be deemed Loan
Documents under this Agreement.
e. The term "Note" means any promissory note, or other instrument,
executed by Borrower in favor of Bank at any time, whether under this Agreement
or otherwise, including, but not limited to, the 1998 Term Note, the 1999 Grid
Note, all Loan Limit Notes, and the $3,000,000.00 Term Note dated September 30,
1996, executed by Borrower in favor of Bank.
11. Paragraph 13 in Insert 11 of the Rider is hereby deleted in full.
-15-
12. The Bank's execution of this Amendment and its right to approve
advances under the Line of Credit and the Loan Limit are subject to the
fulfillment of each of the following conditions to Bank's satisfaction:
a. The representations and warranties in the Loan Agreement, the
Loan Documents, this Amendment and all other related documents shall be true and
correct;
b. No event shall have occurred that constitutes an Event of
Default, or which, with the giving of notice or the passage of time, or both,
would constitute an Event of Default;
c. Bank shall have received the following agreements, notes,
instruments, certificates and opinions, each of which shall be satisfactory to
Bank in form and substance:
(i) A complete Officers' Certificate from the Borrower and
each Guarantor containing the following;
1. Resolutions duly adopted by Borrower's and
Guarantor's Board of Directors authorizing the execution, delivery and
performance of this Amendment and each of the other documents to be executed by
such party in connection herewith and all of the transactions contemplated
thereunder and hereunder;
2. An Incumbency Certificate for each of Borrower's and
Guarantor's officers;
3. A copy of the Certificate of Incorporation and
By-Laws of Borrower and each Guarantor and any amendments to either to date; and
4. A Certificate of Good Standing or similar subsistence
certificate in the Borrower's and Guarantor's respective state of incorporation
and each state in which the Borrower and Guarantors are qualified to do
business.
(ii) A complete Perfection Certificate from the Borrower and
each Guarantor in the form provided by Bank executed by an officer of each such
entity;
(iii) The 1999 Grid Note duly executed by Borrower;
(iv) A Continuing Guaranty of all obligations, whenever
arising, of Borrower and Parent to Bank executed by Commonwealth ("Commonwealth
Guaranty") and by CVC Process Solutions, Inc. in the form of the New Guaranties.
In addition, Commonwealth and CVC Process Solutions, Inc. shall execute a
General Security Agreement in favor of Bank, which shall be in the form of the
New Security Agreements;
-16-
(v) Borrower and Parent shall reaffirm their obligations under
the Loan Agreement, 1998 Term Note, New Guaranties, New Security Agreements, the
Existing Bank Documents and other Loan Documents pursuant to an Acknowledgement
and Agreement in form and content acceptable to the Bank;
(vi) An Amended and Restated Patent Collateral Assignment and
Security Agreement in the form of Exhibit F attached to the Loan Agreement, duly
executed by Borrower and Parent;
(vii) A Patent Collateral Assignment and Security Agreement
and a Trademark Collateral Assignment and Security Agreement executed by
Commonwealth.
(viii) An opinion letter from Xxxxx Xxxxxxx, LLP, counsel for
Borrower and Guarantors in form and content acceptable to the Bank and its
counsel;
(ix) The Bank shall have received a Landlord/Mortgagee Waiver
Agreement in form acceptable to Bank from each landlord and each mortgagee of
any real property on which Borrower or Guarantors conduct any of their business;
(x) The Bank shall have received UCC, judgment, tax, franchise
tax and bankruptcy searches in the States of New York, Delaware, Virginia,
California, Minnesota and Texas and such counties and other filing offices as
may be identified by Bank with respect to the Borrower and Guarantors.
(xi) The Bank shall have received patent and trademark
searches against the Borrower and Commonwealth.
d. There shall have occurred no material adverse change in the
business condition (financial or otherwise), operations, performance, properties
or prospects of Borrower and Guarantors since June 30, 1999.
e. There shall exist no litigation pending or threatened in any
court or before any court or other governmental authority that (a) could
reasonably be expected to (i) have a material adverse effect on the business,
condition (financial or otherwise), operations, performance, properties or
prospects of Borrower or Guarantors or affect the ability of Borrower or
Guarantors to perform their obligations under this Amendment, the Loan Agreement
or any of the Loan Documents.
f. The Borrower shall have paid the Bank all fees and expenses due
hereunder, including all fees and expenses (including reasonable attorneys' fees
and disbursements) incurred by Bank in connection with the preparation,
negotiations and execution of this Amendment and all related agreements,
instruments and documents.
g. All of the information provided by or on behalf of Borrower and
Guarantors to Bank prior to its letter, dated September 2, 1999, to Borrower
(the "Pre-Letter
-17-
Information") shall be true and correct in all material aspects, and no
development or change shall have occurred, and no additional information shall
have come to the attention of the Bank that (i) has resulted in or could
reasonable be expected to result in a change in, or deviation from, the
Pre-Letter Information or (ii) has had or could reasonably be expected to result
in a material adverse effect on the business, condition (financial or
otherwise), operations, performance, properties or prospects of Borrower or
Guarantors.
In addition to the foregoing conditions precedent, all legal details
in connection with this Amendment and all documents executed in connection
herewith shall have met with the approval of Xxxxx, Oviatt, Gilman, Xxxxxxx &
Xxxxxx LLP, counsel for Bank.
13. Borrower represents and warrants to Bank and acknowledges to Bank as
follows:
(a) The Loan Agreement and Loan Documents executed at any time by
Borrower and/or by any other Person are and remain in full force and effect,
constitute the valid and binding obligation of the Person who executed it and
are enforceable by Bank against each Person who executed it without offset
against or defense thereto of any nature or kind.
(b) All representations and warranties made by Borrower to Bank in
the Loan Agreement and the Loan Documents are true and accurate in all respects.
(c) Borrower has fully complied with all affirmative, negative and
financial covenants contained in the Loan Agreement and the Loan Documents.
(d) No Event of Default has occurred under the Loan Agreement, and
no condition exists, which, with notice, lapse of time or both, would cause or
constitute an Event of Default under the Loan Agreement.
14. The Borrower further represents and warrants to the Bank that
statements concerning year 2000 remediation efforts being undertaken by the
Borrower set forth in Amendment No. 3 to the Registration Statement (file
#356-33821) filed by Parent with the Securities and Exchange Commission on
September 10, 1999 are true and accurate.
15. The Letter Amendments are hereby terminated and of no force and
effect.
16. This Amendment is governed by New York law and may not be amended or
terminated orally. Any litigation involving the Loan Agreement and/or any Loan
Document and/or this Amendment shall, at Bank's sole option, be tried only in a
court located in Monroe County, New York. BORROWER AND BANK WAIVE THE RIGHT TO A
JURY TRIAL IN ANY ACTIONS INVOLVING THE LOAN AGREEMENT AND/OR ANY LOAN DOCUMENT
AND/OR THIS AMENDMENT. No other person or entity is a third party beneficiary of
this jury trial waiver.
-18-
IN WITNESS WHEREOF, Borrower and Bank have executed this Amendment to Loan
Agreement effective as of September 22, 1999.
CVC PRODUCTS, INC.
By: /s/ Xxxxxx 0. XxXxxxxxx
------------------------------------
Name: Xxxxxx 0. XxXxxxxxx
Title: Senior Vice President and CFO
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
LIST OF EXHIBITS
Exhibit A - Amended and Restated Standard LIBOR Grid Note
Exhibit B - Reimbursement Agreement
Exhibit C-1 - Loan Limit Note (Fixed Rate Loan)
Exhibit C-2 - Loan Limit Note (Prime Loan or LIBOR Rate Loan)
-19-
"EXHIBIT A"
AMENDED AND RESTATED
STANDARD LIBOR GRID NOTE
Buffalo, New York September 22, 1999 $15,000,000.00
BORROWER: CVC PRODUCTS, INC.
a(n) |_| individual(s) |_| partnership |X| corporation |_| ___________ organized
under the laws of Delaware
Address of residence/chief executive office: 000 Xxx Xxxx, Xxxxxxxxx, Xxx Xxxx
BANK: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation
with its principal banking xxxxxx xx Xxx X & X Xxxxx, Xxxxxxx, XX 00000.
Attention: Office of General Counsel
1. DEFINITIONS. Each capitalized term shall have the meaning specified herein
and the following terms shall have the indicated meanings:
a. "Authorized Person" shall mean, each individually, Xxxxxxxxx Xxxxxxx
or Xxxxxx XxXxxxxxx. Mention of the Authorized Person's name is for
reference purposes only and the Bank may rely on a person's title to
ascertain whether someone is an Authorized Person.
b. "Automatic Adjustment Date" shall mean two (2) Business Days before
the last day of the Interest Period initially selected by the
Borrower for a LIBOR Rate Loan that is subject to the Automatic
Continuation Option.
c. "Automatic Continuation Option" shall mean the option to have the
Interest Period for a LIBOR Rate Loan to automatically continue at
the same Interest Period duration initially selected by the Borrower
for such LIBOR Rate Loan as of the last day such Interest Period.
d. "Base Rate" shall mean 0 percentage points above the rate of
interest announced by the Bank as its prime rate of interest
(Prime"). If the prior blank is not filled in, the Base Rate shall
be one (1) percentage point above Prime.
e. "Base Rate Loan" shall mean a Loan which bears interest at the Base
Rate.
f. "Business Day" shall mean any day of the year on which banking
institutions in New York, New York are not authorized or required by
law or other governmental action to close and, in connection with
the LIBOR Rate, on which dealings are carried on in the London
interbank market.
g. "Continuation Date" shall mean the date on which Borrower's election
to continue a LIBOR Rate Loan for another Interest Period becomes
effective in accordance with this Note.
h. "Conversion Date" shall mean the date on which Borrower's election
to convert a Base Rate Loan to a LIBOR Rate Loan or a LIBOR Rate
Loan to a Base Rate Loan becomes effective in accordance with this
Note.
i.
j. "Draw Date" shall mean, in relation to any Loan, the Business Day on
which such Loan is made, or to be made, to Borrower pursuant to the
Note.
k.
l.
m.
n. "Loan" means a loan made to Borrower by the Bank pursuant to this
Note.
o. "Maximum Principal Amount" shall mean Fifteen Million Dollars
($15,000,000.00) or the Borrowing Base, whichever is less.
p. "Minimum Borrowing Amount" shall mean (i) for Base Rate Loans,
$100,000 with increments of $10,000 and (ii) for LIBOR Rate Loans,
$500,000 with minimum increments thereafter of $100,000.
q. "Outstanding Principal Amount" shall mean the actual outstanding
principal amount under this Note at any time.
All capitalized terms not defined herein shall have the meaning set
forth in the Loan Agreement between Bank and Borrower dated March
31, 1998, which Loan Agreement was amended by letter amendments
dated September 30, 1998 and February 19, 1999, as amended by the
Amendment to Loan Agreement between Bank and Borrower dated
September 22, 1999 (the "Loan Agreement").
2. PAYMENT OF PRINCIPAL, INTEREST AND EXPENSES
a. Promise to Pay. For value received, Borrower promises to pay to the
order of the Bank on demand, the Maximum Principal Amount or the Outstanding
Principal Amount, if less; plus interest as set forth below and all reasonable
fees and costs (including without limitation attorneys' fees and disbursements,
whether for internal or outside counsel) the Bank incurs in order to collect any
amount due under this Note, to negotiate or document a workout or restructuring,
or to preserve its rights or realize upon any guaranty or other security for the
payment of this Note ("Expenses").
b. Interest. Each Loan shall earn interest on the Outstanding Principal
Amount thereof calculated on the basis of a 360-day year for the actual number
of days of each year (365 or 366) that on each day shall be:
i. LIBOR Rate Loans. Interest shall accrue on a LIBOR Rate Loan from
and including the first day of the Interest Period applicable
thereto until, but not including, the last day of such Interest
Period or the day the LIBOR Rate Loan is paid in full (if sooner) at
a rate per annum equal to the LIBOR Rate in effect on the following
dates (depending on the circumstance):
(i) for new LIBOR Rate Loans, the Business Day the Bank receives (or
is deemed to receive) a Request for a LIBOR Rate Loan; (ii) for
conversions and continuations of LIBOR Rate Loans pursuant to
Section 4, the Business Day the Bank receives (or is deemed to
receive) the Notice of Conversion or Notice of Continuation, as the
case may be, in accordance with Section 4(b); for LIBOR Rate Loans
where the Automatic Continuation Option is selected, the Automatic
Adjustment Date for such LIBOR Rate Loan.
ii. Base Rate Loans. Interest shall accrue on a Base Rate Loan from
and including the first date the Base Rate Loan was made (i.e., the
Draw Date or the Conversion Date, as the case may be) to, but not
including, the day such Base Rate Loan is paid in full or converted,
at the rate per annum equal to the Base Rate. Any change in the Base
Rate resulting from a change in the Bank's prime rate shall be
effective on the date of such change.
c. Maximum Legal Rate. It is the intent of the Bank and of Borrower that
in no event shall interest be payable at a rate in excess of the maximum rate
permitted by applicable law (the "Maximum Legal Rate"). Solely to the extent
necessary to prevent interest under this Note from exceeding the Maximum Legal
Rate, any amount that would be treated as excessive under a final judicial
interpretation of applicable law shall be deemed to have been a mistake and
automatically canceled, and, if received by the Bank, shall be refunded to
Borrower.
d. Payments; Late Charge; Default Rate. Payments shall be made in
immediately available United States funds at any banking office of the Bank.
Absent demand for payment in full, interest shall be due and payable as follows:
unless demanded sooner, (i) in respect to each Base Rate Loan, monthly when
invoiced and (ii) in respect to each LIBOR Rate Loan, on the last day of each
Interest Period applicable thereto except if a LIBOR Rate Loan has a six month
Interest Period, interest shall be paid on the three month anniversary of the
LIBOR Rate Loan and on the last day of the Interest Period. If payment is not
received within five days of its due date, Borrower shall pay a late charge
equal to the greatest of (a) 5% of the delinquent amount, (b) the Bank's then
current late charge as announced by the Bank from time to time, or (c) $50.00.
In addition, if the Bank has not actually received any payment under this Note
within thirty days after its due date, from and after such thirtieth day the
interest rate for all amounts outstanding under this Note shall automatically
increase to 5 percentage points above the higher of the Base Rate or the highest
LIBOR Rate, and any judgment entered hereon or otherwise in connection with any
suit to collect amounts due hereunder shall bear interest at such default rate.
Payments may be applied in any order in the sole discretion of the Bank but,
prior to demand, shall be applied first to past due interest, Expenses, late
charges, and principal payments, if any, which are past due, then to current
interest and Expenses and late charges, and last to remaining principal.
e. Prepayment of LIBOR Rate Loans. If (i) Borrower pays, in whole or in
part, any LIBOR Rate Loan, before the expiration of its respective Interest Rate
Period, (ii) fails to draw down, in whole or in part, a LIBOR Rate Loan after
giving a Request therefor, (iii) otherwise tries to revoke any LIBOR Rate Loan,
in whole or in part, or (iv) there occurs a Bankruptcy Event or the applicable
rate is converted from the LIBOR Rate to the Base Rate pursuant to Section 4(d),
then Borrower shall be liable for and shall pay the Bank, on demand, the higher
of $250.00 or the actual amount of the liabilities, expenses, costs or funding
losses that are a direct or indirect result of such prepayment, failure to draw,
early termination of an Interest Period, revocation, bankruptcy or otherwise,
whether such liability, expense, cost or loss is by reason of (a) any reduction
in yield, by reason of the liquidation or reemployment of any deposit or other
funds acquired by the Bank, (b) the fixing of the interest rate payable on any
LIBOR Rate Loans or (c) otherwise. The determination by the Bank of the amount
of foregoing amount shall, in the absence of manifest error, be conclusive and
binding upon Borrower.
3. LOANS.
a. General. Any Loan hereunder shall either be in the form of a Base Rate
Loan or a LIBOR Rate Loan. No Loan, or any portion thereof, shall be made to the
extent that the sum of the (i) principal amount of the requested Loan, or any
portion thereof and (ii) the Outstanding Principal Amount of all Loans under the
Note exceeds the Maximum Principal Amount under this Note. The Bank may make any
Loan in reliance upon any oral, telephonic, written, teletransmitted or other
request (the "Request(s)") that the Bank in good faith believes to be valid and
to have been made by Borrower or on behalf of Borrower by an Authorized Person.
The Bank may act on the Request of any Authorized Person until the Bank shall
have received from Borrower, and had a reasonable time to act on, written notice
revoking the authority of such Authorized Person. The Bank shall incur no
liability to Borrower or to any other person as a direct or indirect result of
making any Loan pursuant to this paragraph.
b. Request for LIBOR Rate Loans. Borrower shall give the Bank its
irrevocable Request for a LIBOR Rate Loan specifying:
i. the Draw Date for the LIBOR Rate Loan, which shall be a two
(2) Business Days from the date the Request: provided, however
if a Request is received by the Bank after 2:00 p.m. (Eastern
Standard Time), the Request for the LIBOR Rate Loan shall be
deemed to have been received on the next Business Day;
ii. the aggregate amount of such LIBOR Rate Loan, which amount
shall not be less than the Minimum Borrowing Amount; and
iii. the applicable Interest Period (i.e., 1, 2, 3 or 6 month
Interest Period).
iv. whether Borrower is electing to have the Automatic
Continuation Option for such LIBOR Rate Loan.
c. Requests for Base Rate Loans. Borrower may request any Base Rate Loan
not later than 2:00 p.m. (Eastern Standard Time) on any proposed Draw Date
specifying the aggregate amount of such Base Rate Loan.
d. Delivery of Requests Delivery of a Notice or Request for a LIBOR Rate
Loan or a Base Rate Loan shall be made to the Bank at the following as follows,
or such other address designated by the Bank from time to time:
Manufacturers and Traders Trust Company
Attn: Xxxxx Xxxx
Fax No. (000) 000-0000
Telephone No. (000) 000-0000
-2-
4. CONTINUATION and CONVERSION ELECTIONS.
a. Election. An Authorized Person of Borrower may, upon irrevocable
Request to the Bank,
i. elect to convert on any Business Day any Base Rate Loan into a
LIBOR Rate Loan provided the amount converted is not less than
the Minimum Borrowing Amount; or
ii. elect to convert any or a part of LIBOR Rate Loan as of the
last day of the applicable Interest Period into a Base Rate
Loan provided no partial conversion of a LIBOR Rate Loan shall
reduce the outstanding principal amount of such LIBOR Rate
Loan to less than the Minimum Borrowing Amount; or
iii. elect to continue all or a part (subject to the Minimum
Borrowing Amount limitation) of any LIBOR Rate Loan as of the
last day of the Interest Period applicable to such LIBOR Rate
Loan with the same or different Interest Period provided no
partial continuation of a LIBOR Rate Loan with a different
Interest Period shall reduce the outstanding principal amount
of the LIBOR Rate Loan with the same Interest Period to less
than the Minimum Borrowing Amount.
b. Notice of Conversion/Continuation.
i. For an election under Section 4(a)(i) or 4(a)(iii), an
Authorized Person must deliver to the Bank by 2:00 p.m.
(Eastern Standard Time) on a Business Day a Notice of
Conversion ("Notice of Conversion") for an election under
Section 4(a)(i) or a Notice of Continuation ("Notice of
Continuation") for an election under Section 4(a)(iii)
specifying:
(a) the aggregate amount of the Loans to be converted or
continued;
(b) the duration of the requested Interest Period (i.e., 1,
2, 3 or 6 month Interest Period); and
(c) whether the Automatic Continuation Option will be
activated for such LIBOR Rate Loan.
ii. The Continuation Date or Conversion Date (as the case may be)
shall be the later of (A) two (2) Business Days from the
Business Day the Bank receives the Notice of Conversion or
Notice of Continuation (either, a "Notice") in accordance with
the foregoing Section or (B) the last day of the relevant
Interest Period if a Notice is received by the Bank more than
two (2) Business Days before the last day of an Interest
Period. If a Notice is received after 2:00 p.m. (Eastern
Standard Time), the Notice will be deemed to have been
received on the next Business Day. Notice of Continuation
received more than two (2) Business Days before the end of an
Interest Period shall be deemed to have been received two (2)
Business Days before the end of such Interest Period for
purposes of determining the LIBOR Rate for the next Interest
Period per Section 2(b)(i). Accordingly, if, for example,
Borrower has a LIBOR Rate Loan with a one month Interest
Period ending on June 15 and wants to continue the LIBOR Rate
Loan with a two month Interest Period, Borrower must deliver
its Notice of Continuation identifying the new two month
Interest Period to the Bank by 2:00 p.m. (Eastern Standard
Time) on June 13 (provided that June 13 and June 14 are
Business Days).
iii. For LIBOR Rate Loans where Borrower has elected to activate
the Automatic Continuation Option, the Bank shall
automatically continue such LIBOR Rate Loan with an same
Interest Period initially selected by the Borrower. Once the
Automatic Continuation Option has been activated for a LIBOR
Rate Loan, the submission of a Notice of Conversion or a
Notice of Continuation with a different Interest Period shall
result in the cancellation of the Automatic Continuation
Option for such LIBOR Rate Loan.
iv. For an election under Section 4(a)(ii), an Authorized Person
may deliver to the Bank a Notice of Conversion at any time
during an Interest Period up to the last day of such Interest
Period or may have the LIBOR Rate Loan automatically convert
to a Base Rate Loan pursuant to Section 4(c). Any such Notice
of Conversion delivered during an Interest Period shall be
effective on the last day of the Interest Period.
v. The Bank may take action on any Notice in reliance upon any
oral, telephonic, written or teletransmitted Notice that the
Bank in good faith believes to be valid and to have been made
by Borrower or on behalf of Borrower by an Authorized Person.
No Notice may be delivered by e-mail. The Bank may act on the
Notice from any Authorized Person until the Bank shall have
received from Borrower, and had a reasonable time to act on,
written notice revoking the authority of such Authorized
Person, The Bank shall incur no liability Borrower or to any
other person as a direct or indirect result of acting on any
Notice under this Note. The Bank, in its reasonable
discretion, may reject any Notice that is incomplete.
c. Expiration of Interest Period. If Borrower does not submit a Notice of
Continuation in accordance with Section 4(b)(i) and 4(b)(ii) so that the Bank
receives the Notice of Continuation at least two (2) Business Days before the
end of an Interest Period, the LIBOR Rate Loan shall automatically be converted
into a Base Rate Loan and such Loan shall accrue interest at the Base Rate until
two (2) Business Days after the Bank receives a Notice of Conversion pursuant to
Section 4(b)(i) and 4(b)(ii) electing to convert the Loan from a Base Rate Loan
to a LIBOR Rate Loan pursuant to Section 4(a)(i). A Notice of Continuation
received one (1) Business Day before the end of an Interest Period will not
effect a continuation of such Loan as a LIBOR Rate Loan. Rather, such LIBOR Rate
Loan shall automatically convert to a Base Rate Loan on the last day of the
Interest Period. The late Notice of Continuation, however, will be deemed to be
a Notice of Conversion that will be effective two (2) Business Days from the
date received by the Bank.
d. Conversion upon Default Unless the Bank shall otherwise consent in
writing, if (i) Borrower has failed to pay when due, in whole or in part, the
indebtedness under the Note (whether by demand or otherwise), or (ii) there
exists a condition or event which with the passage of time, the giving of notice
or both shall constitute an event of default under any of Borrower's agreement
with the Bank, if any, Borrower may not elect to have a Loan converted or
continued as a LIBOR Rate Loan or have any Loan made as a LIBOR Rate Loan.
Further, the Bank, in its sole discretion, may (i) permit any outstanding LIBOR
Rate Loans to continue until the last day of the applicable Interest Period at
which time such Loan shall automatically be converted into a Base Rate Loan or
(ii) convert any outstanding LIBOR Rate Loans into a Base Rate Loan before the
end of the applicable Interest Period applicable to such LIBOR Rate Loan.
Notwithstanding the foregoing, if Borrower commences, or has commenced against
it, any proceeding or request for relief under any bankruptcy, insolvency or
similar laws now or hereafter in effect in the United States of America or any
state or territory thereof or any foreign jurisdiction or any formal or informal
proceeding for the dissolution or liquidation of, settlement of claims against
or winding up of affairs of Borrower (a "Bankruptcy Event"), any outstanding
LIBOR Rate Loans shall be automatically converted to Base Rate Loans without
further action by the Bank and Borrower's rights to have Base Rate Loans
converted under Section 4 shall be automatically terminated. Nothing herein
shall be construed to be a waiver by the Bank to have any Loan accrue interest
at the Default Rate of interest (which shall be calculated from the higher of
the LIBOR Rate or the Base Rate) or the right of the Bank to the amounts set
forth in Section 2(e) of this Note.
-3-
5 SETOFF. The Bank shall have the right to set off against the amounts owing
under this Note any property held in a deposit or other account with the Bank or
any of its affiliates or otherwise owing by the Bank or any of its affiliates in
any capacity to Borrower or any guarantor or endorser of this Note. Such set-off
shall be deemed to have been exercised immediately at the time the Bank or such
affiliate elect to do so.
6 DEMAND FACILITY. The Bank may modify, restrict, suspend or terminate the
credit under this Note at any time for any reason and without affecting
Borrower's then existing obligation under this Note. The Bank shall have the
sole and absolute discretion whether to make any Loan or any potion of any Loan
requested by Borrower, and the Bank may refuse to make any requested Loan even
though the sum of the requested Loan and the Outstanding Principal Amount would
not exceed the Maximum Principal Amount. This is a demand Note and all amounts
hereunder shall become immediately due and payable upon demand by the Bank;
provided, however, that the Outstanding Principal Amount of this Note and all
accrued and unpaid interest shall automatically become immediately due and
payable upon the occurrence of a Bankruptcy Event with regard to Borrower or any
guarantor or endorser of this Note. Borrower hereby waives protest, presentment
and notice of any kind in connection with this Note.
7 BANK RECORDS CONCLUSIVE. The Bank shall set forth on a schedule attached to
this Note or maintained on computer, the date and original principal amount of
each Loan and the date and amount of each payment to be applied to the
Outstanding Principal Amount of this Note. The Outstanding Principal Amount set
forth on any such schedule shall be presumptive evidence of the Outstanding
Principal Amount of this Note and of all Loans. No failure by the Bank to make,
and no error by the Bank in making, any annotation on any such schedule shall
affect the Borrower's obligation to pay the principal and interest of each Loan
or any other obligation of Borrower to the Bank pursuant to this Note.
8 PURPOSE. Borrower certifies (a) that no Loan will be used to purchase margin
stock except with the Bank's express prior written consent for each such
purchase and (b) that all Loans shall be used for a business purpose, and not
for any personal, family or household purpose.
9 AUTHORIZATION. Borrower, if a corporation, partnership, limited liability
company, trust or other entity, represents that it is duly organized and in good
standing or duly constituted in the state of its organization and is duly
authorized to do business in all jurisdictions material to the conduct of its
business; that the execution, delivery and performance of this Note have been
duly authorized by all necessary regulatory and corporate or partnership action
or by its governing instrument; that this Note has been duly executed by an
authorized officer, partner or trustee and constitutes a binding obligation
enforceable against Borrower and not in violation of any law, court order or
agreement by which Borrower is bound; and that Borrower's performance is not
threatened by any pending or threatened litigation.
10 INABILITY TO DETERMINE LIBOR RATES, INCREASED COSTS, ILLEGALITY.
a Increased Costs. If the Bank shall determine that, due to either (a) the
introduction of any change (other than any change by way of imposition of or
increase in reserve requirements included in the calculation of the LIBOR) in or
in the interpretation of any requirement of law or (b) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to the Bank of agreeing to make or making, funding or maintaining any LIBOR
Rate Loans, then Borrower shall be liable for, and shall from time to time, upon
demand therefor by the Bank and pay to the Bank such additional amounts as are
sufficient to compensate the Bank for such increased costs.
b Inability to Determine Rates. If the Bank shall determine that for any
reason adequate and reasonable means do not exist for ascertaining LIBOR for any
requested Interest Period with respect to a proposed LIBOR Rate Loan, the Bank
will give notice of such determination to Borrower. Thereafter, the Bank may not
make or maintain LIBOR Rate Loans, as the case may be, hereunder until the Bank
revokes such notice in writing. Upon receipt of such notice, Borrower may revoke
any request for a LIBOR Rate Loan or Notice then submitted by it. If Borrower
does not revoke such notice the Bank may make, or continue the Loans, as
proposed by Borrower, in the amount specified in the applicable request
submitted by Borrower, but such Loans shall be made or continued as Base Rate
Loans instead of LIBOR Rate Loans, as the case may be.
c Illegality. If the Bank shall determine that the introduction of any law
(statutory or common), treaty, rule, regulation, guideline or determination of
an arbitrator or of a governmental authority or in the interpretation or
administration thereof, has made it unlawful, or that any central bank or other
governmental authority has asserted that it is unlawful for the Bank to make
LIBOR Rate Loans, then, on notice thereof by the Bank to Borrower, the Bank may
suspend the making of LIBOR Rate Loans until the Bank shall have notified
Borrower that the circumstances giving rise to such determination shall no
longer exist. If the Bank shall determine that it is unlawful to maintain any
LIBOR Rate Loans, Borrower shall prepay in full all LIBOR Rate Loans then
outstanding, together with accrued interest, either on the last date of the
Interest Period thereof if the Bank may lawfully continue to maintain such LIBOR
Rate Loans to such day, or immediately, if the Bank may not lawfully continue to
maintain such LIBOR Rate Loans. If Borrower is required to prepay any LIBOR Rate
Loan immediately as set forth in this subsection, then concurrently with such
prepayment, Borrower may borrow from the Bank, in the amount of such repayment,
a Base Rate Loan.
11 MISCELLANEOUS. This Note, together with any related loan and security
agreements and guaranties, contains the entire agreement between the Bank and
Borrower with respect to the Note, and supersedes every course of dealing, other
conduct, oral agreement and representation previously made by the Bank. All
rights and remedies of the Bank under applicable law and this Note or amendment
of any provision of this Note are cumulative and not exclusive. No single,
partial or delayed exercise by the Bank of any right or remedy shall preclude
the subsequent exercise by the Bank at any time of any right or remedy of the
Bank without notice. No waiver or amendment of any provision of this Note shall
be effective unless made specifically in writing by the Bank. No course of
dealing or other conduct, no oral agreement or representation made by the Bank,
and no usage of trade, shall operate as a waiver of any right or remedy of the
Bank. No waiver of any right or remedy of the Bank shall be effective unless
made specifically in writing by the Bank. Borrower agrees that in any legal
proceeding, a copy of this Note kept in the Bank's course of business may be
admitted into evidence as an original. This Note is a binding obligation
enforceable against Borrower and its successors and assigns and shall inure to
the benefit of the Bank and its successors and assigns. If a court deems any
provision of this Note invalid, the remainder of the Note shall remain in
effect. Section headings are for convenience only. Singular number includes
plural and neuter gender includes masculine and feminine as appropriate.
12 NOTICES. Any demand or notice hereunder or under any applicable law
pertaining hereto shall be in writing and duly given if delivered to Borrower
(at its address on the Bank's records) or to the Bank (at the address on page
one and separately to the Bank officer responsible for Borrowers relationship
with the Bank). Such notice or demand shall be deemed sufficiently given for all
purposes when delivered (i) by personal delivery and shall be deemed effective
when delivered, or (ii) by mail or courier and shall be deemed effective three
(3) business days after deposit in an official depository maintained by the
United States Post Office for the collection of mail or one (1) business day
after delivery to a nationally recognized overnight courier service (e.g.,
Federal Express). Notice by e-mail is not valid notice under this or any other
agreement between Borrower and the Bank.
-4-
13 JOINT AND SEVERAL. If there is more than one Borrower, each of them shall be
jointly and severally liable for all amounts which become due under this Note
and the term "Borrower" shall include each as well as all of them.
14 GOVERNING LAW; JURISDICTION. This Note has been delivered to and accepted by
the Bank and will be deemed to be made in the State of New York. This Note will
be interpreted in accordance with the laws of the State of New York excluding
its conflict of laws rules. BORROWER HEREBY IRREVOCABLY CONSENTS TO THE
EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK STATE AND
CONSENTS THAT THE BANK MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT
BORROWER'S ADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT
NOTHING CONTAINED IN THIS NOTE WILL PREVENT THE BANK FROM BRINGING ANY ACTION,
ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST BORROWER
INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF BORROWER WITHIN
ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC JURISDICTION. Borrower
acknowledges and agrees that the venue provided above is the most convenient
forum for both the Bank and Borrower. Borrower waives (i) any objection to venue
and any objection based on a more convenient forum in any action instituted
under this Note; (ii) any right to assert any counterclaim or setoff or any
defense based upon a statute of limitations, upon a claim of laches or any other
legal theory; and (iii) its right to attack a final judgment that is obtained as
a direct or indirect result of any such action.
15 WAIVER OF JURY TRIAL. BORROWER AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY,
AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY BORROWER AND THE BANK MAY
HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS
NOTE OR THE TRANSACTIONS RELATED HERETO. BORROWER REPRESENTS AND WARRANTS THAT
NO REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE BANK WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY
TRIAL WAIVER. BORROWER ACKNOWLEDGES THAT THE BANK HAS BEEN INDUCED TO ENTER INTO
THIS NOTE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
|X| Replacement Note. This Note is given in replacement of and in substitution
for but not in payment of, a note dated on or about March 31, 1998 in the
original principal amount of $10,000,000 issued by Borrower (or
________________________________________________) to the Bank.
Preauthorized Transfers from Deposit Account. If a deposit account number is
provided in the following blank Borrower hereby authorizes the Bank to debit
available funds in Borrower's deposit account #00000000 with the Bank
automatically for any amount which becomes due under this Note or as directed by
an Authorized Person, by telephone.
TAX ID/SS# 00-0000000 CVC PRODUCTS, INC.
--------------------- ----------------------------------------
BORROWER
By: ____________________________________
Name: Xxxxxx 0. XxXxxxxxx
Title: Senior Vice President and CFO
____________________________________
Signature of Witness
Typed Name of Witness ____________________________________
ACKNOWLEDGMENT
STATE OF NEW YORK )
:SS.
COUNTY OF ________)
On the __ day of September, in the year 1999, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxxx 0. XxXxxxxxx,
personally know to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
_________________________________________
Notary Public
-5-
"EXHIBIT B"
LETTER OF CREDIT REIMBURSEMENT AGREEMENT
[LOGO] M&T Bank One Fountain Plaza
Manufacturers and Trust Company Xxxxxxx, Xxx Xxxx 00000-0000
(000) 000-0000
Fax: (000) 000-0000
LETTERS OF CREDIT Date ___________________________
APPLICANT: CVC Products, Inc.
a(n) |_| individual(s) |_| partnership |X| corporation |_|
___________________organized under the laws of Delaware
Address of residence/chief executive office: 000 Xxx Xxxx, Xxxxxxxxx, Xxx Xxxx
00000 Phone: __________________________ Fax: ______________________
ACCOUNT PARTY (if any): ________________________________________________________
a(n) |_| individual(s) |_| partnership |_| corporation |_|
___________________organized under the laws of
Address of residence/chief executive office: ___________________________________
To induce the Bank to issue letters of credit (each a "Credit") from time
to time. Applicant hereby agrees that the following terms and conditions shall
apply to each Credit issued by the Bank at the request of Applicant.
1. Definitions. Capitalized terms not expressly defined below have the
meanings assigned in the UCP, or if not there defined, in the UCC.
(a) The "Bank" means Manufacturers and Traders Trust Company, a New York
banking organization with its chief executive xxxxxx xx Xxx X&X
Xxxxx, Xxxxxxx, Xxx Xxxx 00000.
(b) "Banking Day" means the hours between 8:30 am and 4:30 pm on a day
on which the Bank is open for business, Monday through Friday
excluding federal holidays: except that with respect to payment by
electronic funds transfer the Banking Day ends at 3:00 pm.
(c) A "Draft" means any draft, instrument, receipt, acceptance or
drawing certificate or cable, telexed, teletransmitted or other
written demand for payment purportedly drawn under the Credit.
(d) "Property" means goods and merchandise and any and all related
documents, securities, funds, choses in action, and any and all
other forms of property, whether real, personal or mixed, and any
right or interest therein which Applicant purchases or obtains in
connection with the issuance of a Credit.
(e) "UCC" means the Uniform Commercial Code as in effect in the State
of New York from time to time.
(f) "UCP" means the Uniform Customs and Practice for Documentary Credits
(1933 Revision), ICC Publication No. 500, and any subsequent
revisions thereof approved by a congress of the International
Chamber of Commerce and adhered to by the Bank.
2. Reimbursement for Drafts.
(a) Drafts in United States Currency. For each Draft which is payable in
United States currency, Applicant will reimburse the Bank at its
office on demand in immediately available funds:
(1) For each sight draft, demand or receipt, Applicant will
reimburse the Bank immediately on demand on the same day for
the entire amount paid by the Bank; or if so requested by the
Bank, Applicant will pay such amount in advance of payment by
the Bank.
(2) For each acceptance, Applicant will pay on demand the entire
amount to be paid by the Bank, not later than one Banking Day
prior to maturity. If the acceptance is not payable at the
Bank, then Applicant will pay such amount in time to reach the
place of payment by ordinary mail not later than one Banking
Day prior to maturity of the acceptance.
(b) Drafts in Foreign Currency. For each Draft payable in foreign
currency, Applicant will reimburse the Bank at its office on demand
in immediately available United States funds:
(1) For each sight draft, demand or receipt, Applicant will
reimburse the Bank in an amount equal to (A) the full amount
paid, computed at the Bank's selling rate of exchange in New
York two Banking Days prior to the date of payment of the
Draft for cable transfers to the place of payment in the
currency in which the Draft is payable, plus (B) interest at
the rate set forth below for each day from the date of payment
of the Draft until the day the Bank actually receives
reimbursement; or if so requested by the Bank, Applicant will
pay the full amount in advance of payment of the Draft.
(2) In the case of each acceptance, Applicant will pay the Bank
the entire amount to be paid by the Bank pursuant to such
acceptance, computed at the Bank's selling rate of exchange in
New York two Banking Days prior to the date of payment,
sufficiently in advance of maturity to enable the Bank to
arrange for cover to reach the place of payment not later than
one Banking Day prior to maturity,
(3) If at the time for computing payment there exists no rate of
exchange generally current in New York for effecting such
cable transfers, Applicant agrees to pay the Bank on demand an
amount in United States currency equal to the actual cost to
the Bank of settlement of the Bank's obligation to the holder
of the Draft, however and whenever such settlement is made by
the Bank, plus interest at the rate set forth below payable
for each day from the date of settlement to but not including
the date the Bank receives reimbursement in full.
(c) Direct Debit. Applicant authorizes the Bank to obtain such
reimbursement and all Fees, Expenses and Cash (defined below) by
direct debit to Applicant's deposit or investment account at the
Bank on or before the day on which the Draft is honored.
3. Fees and Expenses. Applicant agrees to pay to the Bank on demand the
Bank's fees and commissions ("Fees") for each Credit at the rate
established by the Bank from time to time, plus all otherwise unreimbursed
charges, correspondent and transfer fees and similar expenses paid or
incurred by the Bank in connection with delivering, negotiating, advising,
confirming, transferring or otherwise processing a Credit or Drafts under
a Credit ("Expenses"). Applicant shall pay interest at the rate set forth
below on any Fees, Expenses or Costs (defined below) not paid immediately
on demand. In addition, if the Bank's expenses for carrying a Credit
should be increased after its issuance by an increase in a related
risk-weighted capital or similar reserve requirement. Applicant shall
reimburse the Bank for the cost of maintaining such additional reserves,
computed daily at the federal funds rate.
4. Interest. Applicant agrees that if for any reason the Bank makes payment
under a Credit prior to the Bank's receipt of funds from Applicant or does
not receive payment for Fees or Costs immediately on demand. Applicant
will pay interest to the Bank on demand on the entire unpaid amount from
the date of Bank's payment to the date on which Bank receives actual
reimbursement, at that rate per year which is on each day 5% above the
effective rate announced by the Bank from time to time as its prime rate.
Interest shall be calculated on the basis of a 360-day year for the actual
number of days in each year (365 or 366) the indebtedness is outstanding.
It is the intent of the Bank and Applicant that interest not exceed the
maximum legal rate. Solely to the extent necessary to prevent interest
under this Agreement from exceeding the maximum legal rate, any amount
that would be treated as excessive under a final judicial determination of
applicable law shall be deemed to have been a mistake and be refunded to
Applicant.
5. Security Interest in Transport Documents and Deposit Account. As further
security for the performance of all of Applicant's obligations now or
hereafter owing to the Bank, Applicant assigns to the Bank and grants the
Bank a continuing first security interest in all Documents and Property
delivered to the Bank in connection with a Credit, whether or not released
in trust to Applicant in advance of reimbursement, and in any other
property of Applicant and Account Party in the Bank's possession.
Applicant and Account Party also acknowledge the Bank's right to set off
against their obligations under this Agreement any other property of
Applicant or Account Party in any capacity held by the Bank in any
capacity. Applicant grants to the Bank a subordinate security interest in
all collateral held by each respective Beneficiary of each Credit and
agrees that the Bank shall be subrogated to Applicant's rights with
respect to each Beneficiary and such collateral immediately upon payment
of the respective Credit.
6. Other Matters Pertaining to Credits.
(a) No Liability. No action or omission by the Bank or its
correspondents in connection with a Credit, taken in good faith and
in conformity with foreign or domestic laws, regulations or customs,
shall create any liability on the part of the Bank to Applicant. The
Bank shall not be responsible for any act, error, neglect or
default, omission, insolvency or failure in business of any of its
correspondents or of any intermediate or beneficiary bank, nor for
any delay or omission in processing any Credit resulting from
interruption or failure of any payment system or communications
medium, court order, or any other cause beyond the Bank's control.
In no event shall the Bank be liable for consequential or special
damages.
(b) Indemnity. All actions and omissions of the Bank and its
correspondents in connection with the Credit or related Drafts,
bills of lading, warehouse receipts or other Documents or Property
taken in good faith and in conformity with such foreign or domestic
laws, regulations or customs as the Bank or its respective
correspondent may deem applicable shall be binding upon Applicant.
No such action or omission shall place the Bank or any of its
correspondents under any liability to Applicant. Applicant agrees to
indemnify and hold harmless the Bank and its correspondents against
all claims, demands, losses, liabilities, costs, expenses and
damages, including without limitation the Bank's actual attorneys'
fees and disbursements ("Costs"), arising in connection with this
Agreement and each Credit, with any injunction against payment of a
Credit, or in preserving the Bank's rights or collecting
reimbursement or negotiating and documenting a workout of
Applicant's obligations under this Agreement.
(c) Payment of Drafts. Applicant understands that the Bank must accept
or pay any Draft presented to it and dated on or before the
expiration date of the Credit, regardless of when drawn and whether
or not negotiated, if the Draft is accompanied by all other required
documents and appears on its face to be in substantial compliance
with the terms and conditions of the Credit, and is within the
maximum stated amount of the Credit. The following terms shall apply
unless Applicant gives instructions in writing expressly to the
contrary prior to the Bank's issuance of a specific Credit: (1) even
though individual or aggregate shipments exceed the quantity called
for in the Credit, the Bank may honor related Drafts up to the
maximum stated amount of the Credit; (2) Insurance for Property
under a commercial Credit need not exceed the maximum stated amount
of the Credit; and (3) the Bank may honor any Drafts or other
documents otherwise in order signed or issued by an administrator,
executor, trustee in bankruptcy, debtor in possession, assignee,
liquidator, receiver or other legal representative or other
purported successor of the Beneficiary of the Credit.
(d) Notice of Errors. Applicant will promptly examine its copy of the
Credit and of all amendments delivered to it from time to time by
the Bank and will notify the Bank of any apparent errors in writing
within one day of receipt of such documents. Absent such notice,
Applicant shall be conclusively deemed to have waived all claims
against the Bank and its correspondents with respect to the form of
the Credit.
(e) Waiver of Discrepancies. If the Bank determines that a Draft or
accompanying documents appear on their face not to be in compliance
with the terms and conditions of the Credit, the Bank may in its
sole judgment approach the Applicant for a waiver of the
discrepancies. Applicant will make its decision known to the Bank
within one business day of receipt of the Bank's inquiry, or sooner
if necessary to enable the Bank to timely pay rather than reject the
Draft. If Applicant such waived discrepancies Applicant will remain
bound by the terms of this Agreement.
(f) Amendments. If a Credit is amended, modified or changed in any
respect with Applicant's consent, or if a preadvice is issued at
Applicant's direction, Applicant shall be bound by the terms of this
Agreement with respect to the respective Credit: If the amendment
increases the liability of the Bank, Applicant shall be bound as of
the date of issuance of the amendment: if the amendment decreases
the liability of the Bank, Applicant's liability shall be decreased
only as of the date the Beneficiary consents to the amendment.
(g) Independence of Credit. Neither the Bank nor any of its
correspondents shall be responsible for: (1) any use which may be
made of the Credit or for any acts or omissions of any users of the
Credit; (2) the existence, character, quality, quantity, condition,
packing or value of any Property; (3) the time, place, manner,
order, delay, default or omission of notice in connection with the
shipment of any Property or Documents; (4) the validity, sufficiency
or genuineness of documents or endorsements; (5) the character,
adequacy or validity of any insurance concerning the Property; (6)
the solvency, responsibility or relationship to the Property of any
party issuing any Documents; (7) failure of any instrument to bear
adequate reference to the Credit, failure of Documents to accompany
any instrument at negotiation, or failure of any person to note the
amount of any instrument on the reverse of the Credit or to
surrender or take up the Credit or to forward Documents apart from
the instrument as required by the terms of the Credit, each of which
requirements may be waived by the Bank; or (8) errors, omissions,
interruptions or delays in delivery of any messages, whether by
mail, teletransmission or otherwise, and whether or not encrypted.
(h) Insurance. Applicant shall provide evidence that it maintains
insurance covering the Property in amounts, against risks and
provided by companies satisfactory to the Bank and shall assign the
policies of insurance to the Bank or name the Bank as additional
insured and loss payee, as appropriate, at the Bank's option. Absent
such insurance, the Bank may obtain insurance at Applicant's
expense.
7. Additional Covenants. Applicant represents, warrants and agrees that so
long as this Agreement is in effect:
(a) Authorization. Applicant is and will remain duly organized and
existing in the jurisdiction of its organization and authorized to
do business in all jurisdictions material to the conduct of its
business. Applicant has the power and capacity and has taken all
corporate or partnership action necessary to authorize Applicant to
execute and deliver and perform its obligations under this
Agreement. Applicant will not change its ownership or form of
authorization without (i) obtaining the prior written consent of the
Bank; and (ii) posting cash collateral equal to the aggregate amount
of all outstanding Credits plus interest at the Bank's announced
prime rate from the date of change to the expiration date of each
respective Credit.
(b) Financial Records. Applicant will furnish financial statements and
information satisfactory to the Bank upon request. Applicant will
keep accurate and complete books and records, expressly including
all records required pursuant to currency and trade regulations as
in effect from time to time.
(c) No Liens. Applicant will not enter into any security agreement or
permit to be filed in any public office any financing statement
naming Applicant as debtor which creates a security interest in or
blanket lien on any of Applicant's Documents or Property or
after-acquired Property without Bank's prior written consent unless
Bank is the secured party.
(d) Legality. The transactions covered by each Credit are not prohibited
under the Foreign Assets Control Regulations of the United States
Treasury Department, the Internal Revenue Code of 1986, as amended
from time to time, the Export Administration Act of 1977, as
amended, or related laws and regulations thereunder. Any transfer of
monies or importation covered by the Credit shall conform in every
respect with all applicable federal and State laws and foreign and
domestic government regulations. Applicant has procured all licenses
necessary for trading and shipment of the Property and shall furnish
all certificates as the Bank may at any time require. Applicant is
solely responsible for the structure, contents, from and legal
compliance and consequences of each Credit issued pursuant to
Applicant's Instructions.
(e) Security Procedures. Applicant assumes all risks resulting from
facsimile and other teletransmission of applications and Credits,
whether or not encrypted, and undertakes to comply with all security
procedures implemented by Bank including without limitation those to
safeguard or authenticate facsimile and other teletransmission and
other electronic communication of applications and Credits and
electronic funds transfer payment orders with respect to proceeds of
Drafts. Applicant acknowledges receipt of notice, with respect to
payment of Drafts to the Beneficiary of a Credit via electronic
funds transfer, that under UCC Article 4A the originating bank, all
intermediary banks and the Beneficiary's bank are entitled to rely
on the Beneficiary's bank number and account number alone in making
final payment and have no duty to discover any discrepancy between
the number given and the name of the intended payee. APPLICANT
AGREES TO VERIFY ALL FUNDS TRANSFER INSTRUCTIONS WITH EXTRAORDINARY
CARE and expressly indemnifies the Bank against any losses or
duplicate payments necessitated by or resulting from Bank's reliance
on erroneous funds transfer instructions in a Credit issued pursuant
to Applicant's instructions.
-2-
8. Events of Default and Remedies.
(a) An event of default ("Event of Default) will have occurred if: (1)
Applicant fails to pay when due, whether by demand, acceleration or
otherwise, any indebtedness to Bank, or if there occurs any event
which after notice or lapse of time will permit such acceleration;
(2) Applicant breaches or is in default under any agreement between
Applicant and Bank; (3) Applicant or any guarantor or endorser of
its obligations to Bank (an "Account Party") dies or is declared
incompetent, is dissolved, suspends its present business, agrees to
a merger or other absorption or to transfer or otherwise dispose of
substantially all of its assets or makes or sends notice of a bulk
sale; becomes insolvent (however such insolvency is evidenced),
generally fails to pay its debts as they become due, fails to pay,
withhold or collect any tax as required by law, has served or filed
against it or its assets any lien, judgment, order or award; (4) a
receiver or similar trustee is appointed for Applicant or its assets
or any Account Party or general partner of either (with or without
its consent), or Applicant or its Account Party or general partner
makes an assignment for the benefit of creditors or commences or has
commenced against it a proceeding pursuant to any bankruptcy law;
(5) any representation, warranty, statement or information made or
furnished by Applicant to Bank proves to have been false or
misleading in any material respect (including without limitation by
omission of any contingent or unliquidated liability or claim
against Applicant): (6) there occurs any change in the management or
ownership of Applicant or any Account Party which is, in the opinion
of the Bank, materially adverse to the Bank's interest and which
remains uncorrected for thirty days after the Bank notifies
Applicant of its opinion; (7) Applicant fails to supply new or
additional collateral within ten days of request by the Bank; or (8)
the Bank in good xxxxx xxxxx itself insecure with respect to
reimbursement under this Agreement for any outstanding Credits,
whether or not Drafts thereunder have yet been presented. All
obligations hereunder, whether or not mature and whether direct or
contingent shall become immediately due and payable (A)
automatically if Applicant or any Account Party commences or has
commenced against it any bankruptcy or insolvency proceeding and (B)
at the Bank's option upon the occurrence of any other Event of
Default. This paragraph shall not cause any indebtedness not to be
payable on demand.
(b) Cumulative Remedies. Bank's rights and remedies shall be cumulative
and include those of a secured party under the Uniform Commercial
Code and other applicable law, in addition to those granted in this
and any other agreement between Bank and Applicant or Account Party.
Upon an Event of Default, Bank may require Applicant to assemble any
collateral and make it available to Bank at a place or places
designated by Bank, and Bank may use and operate any collateral.
Applicant agrees that any notice by Bank of intended sale of
collateral or similar action shall constitute reasonable notice if
mailed by regular or certified mail, postage prepaid, at least five
days prior to such action, to Applicant's most recent address in the
Bank's records.
9. Miscellaneous.
(a) Non-Waiver by Bank. No single, partial or delayed exercise by the
Bank of any right or remedy shall preclude full and timely exercise
by the Bank at any time of any other right or remedy of the Bank
without notice or of the same right or remedy at any other time. No
course of dealing or other conduct, no oral agreement or
representation made by the Bank or usage of trade shall operate as a
waiver of any right or remedy of the Bank. No waiver shall be
effective unless made specifically in writing by the Bank.
(b) Binding Obligation. This Agreement is binding on Applicant and its
legal representatives, successors and assigns and shall inure to the
benefit of the Bank and its successors and assigns. If Applicant
includes more than one person, their obligations hereunder shall be
joint and several. If a third party executes an Authorization and
Agreement of Account Party substantially in the form attached or
other guaranty accepted by the Bank, with respect to this Agreement
or a Credit, the obligations of Applicant and such Account Party
shall be joint and several. If Applicant is a partnership, its
obligations shall continue in force, notwithstanding any change in
its membership, whether arising from the death or retirement of one
or more partners or the accession of one or more new partners.
(c) Issuance of Discretionary. The Bank may decline to issue any Credit,
or to accept any Draft prior to maturity, at the Bank's sole
discretion.
(d) Termination. This Agreement will continue in full force end effect
until terminated. It may be terminated (1) by the Bank at any time
if the Bank deems itself insecure with respect to reimbursement or
upon thirty days' notice to Applicant, or (2) by Applicant upon
actual receipt of written notice sent as provided below; provided,
however, that Applicant's obligations under this Agreement shall
remain in full force and effect until all amounts due and to become
due with respect to all Credits issued or committed for prior to
termination, and any extensions or renewals, have been paid in full,
together with interest and all Costs and Expenses.
(e) Notices. Notices to Applicant by this Bank may be delivered by
telephone with subsequent written confirmation by mail or facsimile
transmission. Written notice shall be deemed delivered when
deposited in the United States mail or transmitted to Applicant at
the last address of Applicant shown on the Bank's records. Applicant
will notify Bank promptly of any change in address. Notice to the
Bank by Applicant must be in writing, or by telephone with
subsequent written confirmation, refer specifically to this
Agreement and the Credit, and shall be deemed delivered upon actual
receipt via courier or registered mail by the Manager, Letter of
Credit Department, at the address on page one of this Agreement.
(f) Construction. This Agreement shall be interpreted as consistent with
existing law and shall be deemed amended to the extent necessary to
comply with any conflicting law. If a court deems any provision
invalid, the remainder of this Agreement shall remain in effect.
This Agreement with the application for each Credit, the Credit and
all related security agreements, mortgages. guarantees and
collateral documents, is the entire agreement among the parties
concerning the Credit. The Bank can amend this Agreement at any time
as required for consistency with applicable law, by notice by mail
to Applicant. Credits can be amended only as provided by the UCP.
Otherwise, no modification or amendment can be made except in a
writing signed by the party against which enforcement is sought.
Headings in this Agreement are solely for convenience. Singular
number includes plural and neuter gender includes masculine and
feminine as appropriate.
(g) Governing Law. Each Credit shall be subject to the UCP. The
provisions herein are supplemental to and not in substitution of the
UCP. As to matters not governed by the UCP, this Agreement shall be
governed by the laws of the State of New York as in effect from time
to time.
(f) Jurisdiction. In any action or other legal proceeding relating to
this Note, Applicant (1) consents to the personal jurisdiction of
any State or federal court located in the State of New York and (2)
agrees that a copy of this Agreement, any application, any Credit,
and Documents or any other relevant document kept in the Bank's
course of business may be admitted into evidence as in original.
(g) WAIVER OF JURY TRIAL. BANK AND APPLICANT EACH WAIVE ANY RIGHT TO
TRIAL BY JURY IN ANY ACTION IN CONNECTION WITH THIS AGREEMENT AND
ANY CREDIT OR APPLICATION HEREUNDER.
Date: September 22, 1999 CVC Products, Inc.
-------------------------- ----------------------------------------------
Name of Applicant (Typed)
Tax ID/SS#: By:
-------------------- -------------------------------------------
Typed Name: Xxxxxx X. XxXxxxxxx, CFO Title
By:
-------------------------------- -------------------------------------------
Signature of Witness Typed Name: Title
--------------------------------
Typed Name of Witness
BANK USE ONLY:
Authorization Confirmed:
--------------------------------
Bank Officer
-3-
AUTHORIZATION AND AGREEMENT BY ACCOUNT PARTY
We join in the request to Bank to issue Credits on the terms and
conditions set forth above. In consideration thereof, we irrevocably agree that:
(1) the above Applicant has the sole right to give instructions and make
agreements and amendments with respect to the Credits and the disposition of
documents; (2) we shall be jointly and severally liable as a primary obligor for
all obligations owing to Bank in connection with the foregoing Agreement and the
Credits and we shall have no right, claim, setoff or defense against Bank or
Bank's correspondents respecting any matter arising in connection therewith; and
(3) we hereby waive any claim, right, or remedy which we may now have or
hereafter acquire against Applicant that arises hereunder or from our
performance hereunder including without limitation any claim, remedy or right of
subrogation, reimbursement, exoneration, indemnification, contribution or
participation in any claim, right or remedy of Bank against Applicant or any
security which Bank now has or hereafter acquires, whether or not such claim,
right or remedy arises in equity, under contract, by statute, under common law
or otherwise.
Date:
-------------------------- ----------------------------------------------
Name of Account Party (Typed)
Tax ID/SS#: By:
-------------------- ------------------------------------------
Typed Name: Title
By:
-------------------------------- ------------------------------------------
Witness Signature Typed Name: Title
--------------------------------
Typed Name of Witness
BANK USE ONLY:
Authorization Confirmed:
--------------------------------
Bank Officer
STATE OF ________________ )
:SS.
COUNTY OF _______________ )
On the ________________ day of ______________, 199____, before me
personally came ________________________________________________________________
|_| Individual(s) to me known and known to me to be the person(s)
described in and who executed the above instrument, and
__he (they jointly and severally) acknowledged to me
that __he (they) executed the same.
|_| Partnership to me known and known to me to be a general partner of
the partnership described in and which executed the
above instrument, and __he duly acknowledged to me that
__he executed the above instrument for and on behalf of
said partnership.
|_| Corporation to me known, who, being by me duly sworn, did depose and
say that he resides in _________________________________
________________________________________________________
that __he is the ____________________________________ of
_______________________________________________________,
the corporation described in and which executed the
above instrument; and that he signed his (her) name
thereto by order of the board of directors of said
corporation.
----------------------------------------------
Notary Public
STATE OF ________________ )
:SS.
COUNTY OF _______________ )
On the ________________ day of ______________, 199____, before me
personally came ________________________________________________________________
|_| Individual(s) to me known and known to me to be the person(s)
described in and who executed the above instrument, and
__he (they jointly and severally) acknowledged to me
that __he (they) executed the same.
|_| Partnership to me known and known to me to be a general partner of
the partnership described in and which executed the
above instrument, and __he duly acknowledged to me that
__he executed the above instrument for and on behalf of
said partnership.
|_| Corporation to me known, who, being by me duly sworn, did depose and
say that he resides in _________________________________
________________________________________________________
that __he is the ____________________________________ of
_______________________________________________________,
the corporation described in and which executed the
above instrument; and that he signed his (her) name
thereto by order of the board of directors of said
corporation.
----------------------------------------------
Notary Public
-4-
"EXHIBIT C-1"
EXHIBIT C-1 TERM NOTE
[LOGO] M&T Bank
Manufacturers and Traders Trust Company
Buffalo, New York _________________________ 1999 $________________
BORROWER: CVC PRODUCTS, INC.____________________________________________________
a(n) |_| individual(s) |_| partnership |X| corporation |_| trust
|_| ____________________ organized under the laws of Delaware
Address of residence/chief executive office: 000 Xxx Xxxx, Xxxxxxxxx, Xxx Xxxx.
BANK: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation
with its principal banking xxxxxx xx Xxx X & X Xxxxx, Xxxxxxx, XX 00000.
Attention: Office of General Counsel
Promise to Pay. For value received, Borrower promises to pay to the order of the
Bank, on the dates set forth below, the principal sum of _______________________
Dollars ($______________) (the "Principal") plus interest as agreed below and
all reasonable fees and costs (including without limitation reasonable
attorneys' fees and disbursements whether for internal or outside counsel) the
Bank incurs in order to collect any amount due under this Note, to negotiate or
document a workout or restructuring, or to preserve its rights or realize upon
any guaranty or other security for the payment of this Note ("Expenses").
Interest. The unpaid Principal of this Note shall earn interest calculated on
the basis of a 360-day year for the actual number of days of each year (365 or
366) from and including the date the proceeds of this Note were disbursed to,
but not including, the date all amounts hereunder are paid in full, at a rate
per year which shall on each day be:
|_| ___________%.
|_| equal to the rate in effect on that day as the rate announced by the Bank
as its prime rate of interest.
|_| ___________ percentage points above the rate in effect on that day as the
rate announced by the Bank as its prime rate of interest.
If no rate is specified above, interest shall accrue at the Maximum Legal Rate
(defined below).
Maximum Legal Rate. It is the intent of the Bank and Borrower that in no event
shall interest be payable at a rate in excess of the maximum rate permitted by
applicable law (the "Maximum Legal Rate"). If this Note is for a personal loan
of less than $2,500,000 and is secured primarily by a one- to four-family
resident, the interest rate shall not exceed 16%. Solely to the extent necessary
to prevent interest under this Note from exceeding the Maximum Legal Rate, any
amount that would be treated as excessive under a final judicial interpretation
of applicable law shall be deemed to have been a mistake and automatically
canceled, and, if received by the Bank, shall be refunded to Borrower.
Default Rate. If an Event of Default (defined below) occurs, the interest rate
on the unpaid Principal shall immediately be automatically increased to 5
percentage points per year above the otherwise applicable rate per year, and any
judgment entered hereon or otherwise in connection with any suit to collect
amounts due hereunder shall bear interest at such default rate.
Repayment of Principal and Interest Late Charge. Payments shall be made in
immediately available United States funds at any banking office of the Bank.
Interest will continue to accrue until payment is actually received. If payment
is not received within five days of its due date, Borrower shall pay a late
charge equal to the greatest of (a) $50.00, (b) 5% of the delinquent amount or
(c) the Bank's then current late charge as announced from time to time. If this
Note is secured by a one- to six-family owner-occupied residence, the late
charge shall equal 2% of the delinquent amount and shall be payable if payment
is not received within fifteen days of its due date. Payments may be applied in
any order in the sole discretion of the Bank but, prior to default, shall be
applied first to past due interest, Expenses, late charges and principal, then
to current interest, Expenses, late charges and principal, and last to remaining
principal.
The Maturity Date of this Note is ________________________________,
199____/20____.
|_| Borrower shall pay the entire Principal on the Maturity Date. In addition,
until the outstanding Principal is paid in full, payments of all accrued
and unpaid interest in amounts which will vary will become due and payable
on the ___________ day of each:
|_| month |_| quarter |_| year commencing on ____________________________,
199____/20____.
|_| Borrower shall pay the Principal in _____________ consecutive |_| monthly
|_| quarterly |_| annual installments commencing on
_________________________________ 199____/20____ and on the __________ day
of each |_| month |_| quarter |_| year thereafter consisting of__________
equal installments each in the amount of $_________________________ and
ONE (1) FINAL INSTALLMENT on the Maturity Date in an amount equal to the
outstanding Principal together with all other amounts outstanding
hereunder including, without limitation, accrued interest, costs and
expenses. In addition, until the outstanding Principal is paid in full,
payments of all accrued and unpaid interest in amounts which will vary
will become due and payable on the __________ day of each: |_| month |_|
quarter |_| year commencing on _______________________________,
199____/20____.
|X| Borrower shall pay Principal and interest in __________ consecutive level
|X| monthly |_| quarterly |_| annual installments consisting of both
Principal and interest, amortized over a period of __________ years,
commencing on _______________________________________, 199____/20____ and
on the ____________ day of each |_| month |_| quarter |_| year thereafter
consisting of ___________ equal installments of Principal and interest
each in the amount of $_________________________ and ONE (1) FINAL
INSTALLMENT on the Maturity Date in an amount equal to the outstanding
Principal together with all other amounts outstanding hereunder including,
without limitation, accrued interest, costs and expenses. PLEASE NOTE THAT
THE FINAL INSTALLMENT OF PRINCIPAL SHALL BE HIGHER THAN EXPECTED IF (1) A
PAYMENT IS RECEIVED AFTER THE DUE DATE OR (2) THE INTEREST RATE UNDER THE
NOTE IS A VARIABLE RATE AND THERE IS AN INCREASE IN THE INTEREST RATE
DURING THE TERM OF THE NOTE IN THOSE SITUATIONS, MORE INTEREST WILL BE DUE
THAN PLANNED AND LESS OF THE INSTALLMENT WILL BE APPLIED TO PRINCIPAL.
Prepayment Premium. During the term of this Note. Borrower shall have the option
of paying the Principal to the Bank in advance of the Maturity Date, in whole or
in part, at any time and from time to time upon written notice received by the
Bank at least three (3) business days
1
prior to making such payment; provided, however, as consideration of the
privilege of making such payment, Borrower shall pay to the Bank a premium equal
to the greater of (a) one percent (1%) of the Principal prepaid, or (b) an
amount equal to the present value of the difference between (i) the amount of
interest that would have accrued on the Principal during the remaining term of
the Note, at the interest rate set forth herein in effect on the date of
prepayment and (ii) the amount of interest that would have accrued on the
Principal during the remaining term of this Note at the Current Market Rate.
"Current Market Rate" shall mean the most recent yield on United States Treasury
Obligations adjusted to a constant maturity having a term most nearly
corresponding to the term remaining from the date of prepayment to the Maturity
Date, in effect two (2) business days prior to the prepayment date as published
by the Board of Governors of the Federal Reserve System in the Federal Reserve
Statistical Release H.15 (519), or by such other quoting service, index or
commonly available source utilized by the Bank. The present value calculation
used herein shall use the Current Market Rate as the discount rate and shall be
calculated as if each installment of the Principal had been made during the
remaining term of this Note. Each partial prepayment of the Principal shall be
applied in inverse order of maturity. Upon making any prepayment of the
Principal in whole, Borrower shall pay to the Bank all interest and Expenses
owing pursuant to this Note and remaining unpaid.
In the event the Maturity Date of this Note is accelerated following an Event of
Default by Borrower, any tender of payment of the amount necessary to satisfy
the entire indebtedness made after such Event of Default shall be expressly
deemed a voluntary prepayment. In such a case, to the extent permitted by law,
the Bank shall be entitled to the amount necessary to satisfy the entire
indebtedness, plus the appropriate prepayment premium calculated in accordance
with the preceding paragraph.
Representations, Warranties and Covenants. See Addendum Insert No. 1
Events of Default; Acceleration. The following constitute an event of default
("Event of Default"): (i) failure by Borrower to make any payment when due
(whether at the stated maturity, by acceleration or otherwise) of the amounts
due under this Note, or any part thereof, or there occurs
2
any event or condition which after notice, lapse of time or both will permit
such acceleration. See Addendum Insert No. 2
Right of Setoff. The Bank shall have the right to set off against the amounts
owing under this Note any property held in a deposit or other account with the
Bank or any Affiliates or otherwise owing by the Bank or any Affiliates in any
capacity to Borrower or any Guarantor or endorser of this Note. Such set-off
shall be deemed to have been exercised immediately at the time the Bank or such
Affiliate elect to do so.
Miscellaneous. This Note, together with any related loan and security agreements
and guaranties contains the entire agreement between the Bank and Borrower with
respect to the Note, and supersedes every course of dealing, other conduct, oral
agreement and representation previously made by the Bank. All rights and
remedies of the Bank under applicable law and this Note or amendment of any
provision of this Note are cumulative and not exclusive. No single, partial or
delayed exercise by the Bank of any right or remedy shall preclude the
subsequent exercise by the Bank at any time of any right or remedy of the Bank
without notice. No waiver or amendment of any provision of this Note shall be
effective unless made specifically in writing by the Bank. No course of dealing
or other conduct, no oral agreement or representation made by the Bank. and no
usage of trade, shall operate as a waiver of any right or remedy of the Bank. No
waiver of any right or remedy of the Bank shall be effective unless made
specifically in writing by the Bank. Borrower agrees that in any legal
proceeding, a copy of this Note kept in the Bank's course of business may be
admitted into evidence as an original. This Note is a binding obligation
enforceable against Borrower and its successors and assigns and shall inure to
the benefit of the Bank and its successors and assigns. If a court deems any
provision of this Note invalid, the remainder of the Note shall remain in
effect. Section headings are for convenience only. Singular number includes
plural and neuter gender includes masculine and feminine as appropriate.
Notices. Any demand or notice hereunder or under any applicable law pertaining
hereto shall be in writing and duly given if delivered to Borrower (at its
address on the Bank's records) or to the Bank (at the address on page one and
separately to the Bank officer responsible for Borrower's relationship with the
Bank). Such notice or demand shall be deemed sufficiently given for all purposes
when delivered (i) by personal delivery and shall be deemed effective when
delivered or (ii) by mail or courier and shall be deemed effective three (3)
business days after deposit in an official depository maintained by the United
States Post Office for the collection of mail or one (1) business day after
delivery to a nationally recognized overnight courier service (e.g. Federal
Express). Notice by e-mail is not valid notice under this or any other agreement
between Borrower and the Bank.
Joint and Several. If there is more than one Borrower, each of them shall be
jointly and severally liable for all amounts and obligations which become due
under this Note and the term "Borrower" shall include each as well as all of
them.
Governing Law; Jurisdiction. This Note has been delivered to and accepted by the
Bank and will be deemed to be made in the State of New York. This Note will be
interpreted in accordance with the laws of the State of New York excluding its
conflict of laws rules. BORROWER HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK STATE IN A COUNTY OR
JUDICIAL DISTRICT WHERE THE BANK MAINTAINS A BRANCH AND CONSENTS THAT THE BANK
MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT BORROWER'S ADDRESS SET
FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED IN
THIS NOTE WILL PREVENT THE BANK FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR
JUDGMENT OR EXERCISING ANY RIGHTS AGAINST BORROWER INDIVIDUALLY, AGAINST ANY
SECURITY OR AGAINST ANY PROPERTY OF BORROWER WITHIN ANY OTHER COUNTY, STATE OR
OTHER FOREIGN OR DOMESTIC JURISDICTION. Borrower acknowledges and agrees that
the venue provided above is the most convenient forum for both the Bank and
Borrower. Borrower waives (i) any objection to venue and any objection based on
a more convenient forum in any action instituted under this Note; (ii) any right
to assert any counterclaim or setoff or any defense based upon a statute of
limitations, upon a claim of laches or any other legal theory; and (iii) its
right to attack a final judgment that is obtained as a direct or indirect result
of any such action.
Waiver of Jury Trial. BORROWER AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY BORROWER AND THE BANK MAY HAVE IN
ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS NOTE OR
THE TRANSACTIONS RELATED HERETO. BORROWER REPRESENTS AND WARRANTS THAT NO
REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE BANK WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY
TRIAL WAIVER. BORROWER ACKNOWLEDGES THAT THE BANK HAS BEEN INDUCED TO ENTER INTO
THIS NOTE BY, AMONG OTHER THINGS. THE PROVISIONS OF THIS SECTION.
|_| This Note is given in replacement of and in substitution for, but not in
payment of, a note dated ________________________________ 19____/20____,
in the original principal amount of $_________________________ issued by
Borrower (or _____________________) to the Bank (or its predecessor in
interest).
3
Preauthorized Transfers from Deposit Account. If a deposit account number is
provided in the following blank Borrower hereby authorizes the Bank to debit
Borrower's deposit account #__________________________________ with the Bank
automatically for any amount which becomes due under this Note.
TAX ID/SS # 00-0000000 CVC PRODUCTS, INC.
----------------------- ---------------------------------------------
BORROWER
By:
-----------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President and CFO
--------------------------------- ---------------------------------------------
Signature of Witness
--------------------------------- ---------------------------------------------
Typed Name of Witness
ACKNOWLEDGEMENT
STATE OF NEW YORK )
-------------------
: SS.
COUNTY OF )
------------------
On the ____ day of ________________, in the year 1999, before me, the
undersigned, a Notary Public in and for said State, personally appeared
_____________________________________, personally know to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
---------------------------------------------
Notary Public
FOR BANK USE ONLY
Authorization Confirmed: _______________________________________________________
Disbursement of Funds: Credit A/C #_________ Off Ck #_________ Payoff Obligation #________
$_________ $_________ $________
4
ADDENDUM TO TERM NOTE
DATED AS OF _____ EXECUTED
BY CVC PRODUCTS, INC.
IN FAVOR OF
MANUFACTURERS AND TRADERS TRUST COMPANY
This ADDENDUM to a certain Term Note, dated _________, is made by CVC
PRODUCTS, INC. ("Borrower") in favor of MANUFACTURERS AND TRADERS TRUST COMPANY
("Bank"). This Rider is an integral part of the Term Note.
Insert No. 1
Borrower represents and warrants to and agrees and covenants with the Bank
now and until this Note is paid in full that the representations and warranties
set forth in the Loan Agreement between Borrower and Bank dated March 31, 1998,
which Loan Agreement was amended by letter amendments dated September 30, 1998
and February 19, 1999, as amended by Amendment to Loan Agreement dated September
22, 1999 ("Loan Agreement"), are true and correct as of the date hereof, and are
reaffirmed as if fully set forth herein in full.
Insert No. 2
or (b) any Event of Default occurs under the Loan Agreement, as the Loan
Agreement is amended, extended or replaced from time to time.
As used in this Note (i) "any agreement with the Bank" includes any
agreement, note or instrument with the Bank (which includes, without limitation,
the Loan Agreement, the 1999 Term Note, the 1999 Grid Note, the Existing Bank
Documents and the Loan Documents); (ii) "accelerated" or "acceleration" means
indebtedness that becomes due at maturity, by notice after the occurrence of an
Event of Default or which becomes due as a result of a demand. All defined terms
in the Loan Agreement shall have the same meaning herein unless otherwise
defined herein.
Automatically upon the commencement of Borrower's or any Guarantor's
bankruptcy if voluntary and upon lapse of forty-five (45) days without dismissal
if involuntary, all amounts outstanding hereunder shall become immediately due
and payable. Upon the occurrence of any other Event of Default hereunder, at the
Bank's option, all amounts hereunder shall become immediately due and payable.
IN WITNESS WHEREOF, Borrower has executed and unconditionally delivered
this Addendum together with the preprinted form of this Note on the date
indicated in the acknowledgement, effective as of _______.
CVC PRODUCTS, INC.
By:
------------------------------------
Name:
Title:
STATE OF NEW YORK )
COUNTY OF MONROE ) ss:
On the ____ day of _________ in the year _____ before me, the undersigned,
a Notary Public in and for said state, personally appeared ___________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
--------------------------------------------
Notary Public
R-2
LIBOR TERM NOTE
EXHIBIT C-2
Manufacturers and Traders Trust Company
Buffalo New York _____________________, 1999/20____ $_____________________
BORROWER: CVC PRODUCTS, INC.
a(n) |_| individual(s) |_| partnership |X| corporation |_| trust
|_| ____________________ organized under the laws of Delaware
Address of residence/chief executive office: 000 Xxx Xxxx, Xxxxxxxxx, Xxx Xxxx
BANK: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation
with its principal banking office at Xxx X & X Xxxxx, Xxxxxxx, Xxx Xxxx
00000. Attention: Office of General Counsel
1. DEFINITIONS. As used in this Note, each capitalized term shall have the
meaning specified in the Note or as it appears in initial capitalization.
Additionally, the following terms shall have the indicated meanings:
a. "Applicable Interest Rate" shall mean either the LIBOR Rate or the
Base Rate as the case may be.
b. "Adjustment Date" shall mean two (2) Business Days before the last
day of the Interest Period selected below (see LIBOR Rate
definition).
c. "Base Rate" shall mean zero (0) percentage point above the rate of
interest announced by the Bank as its prime rate of interest.
d. "Business Day" shall mean any day of the year on which banking
institutions in New York, New York are not authorized or required by
law or other governmental action to close and, in connection with
the LIBOR Rate on which dealings are carried on in the London
interbank market.
e. "Continuation Date" shall mean the last day of each Interest Period.
f.
g.
h.
i. "Maturity Date" is the Payment Due Day in
________________________________, 1999/20____.
j. "Payment Due Day" shall mean the same day of the calendar month as
the date of this Note (or if there is no numerically corresponding
day in a month, on the last day of such month); provided however, if
that day is not a Business Day, the Payment Due Day shall be
extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in
which case such Payment Due Day shall end on the immediately
preceding Business Day.
k. "Principal Amount" shall mean ______________________________________
Dollars ($__________________).
All capitalized terms not defined herein shall have the meaning set
forth in the Loan Agreement between Borrower and Bank dated March
31, 1998, which Loan Agreement was amended by letter amendments
dated September 30, 1998 and February 19, 1999, as amended by
Amendment to Loan Agreement dated September 22, 1999 ("Loan
Agreement").
2. PAYMENT OF PRINCIPAL, INTEREST AND EXPENSES.
a. Promise to Pay. For value received Borrower promises to pay to the
order of the Bank on the dates set forth below, the Principal Amount, plus
interest as agreed below and all reasonable fees and costs (including without
limitation reasonable attorneys' fees and disbursements whether for internal or
outside counsel) the Bank incurs in order to collect any amount due under this
Note, to negotiate or document a workout or restructuring, or to preserve its
rights or realize upon any guaranty or other security for the payment of this
Note ("Expenses").
c. Interest. Interest shall accrue on the outstanding Principal Amount
calculated on the basis of a 360-day year for the actual number of days of each
year (365 or 366) that on each day shall be:
i. If the LIBOR Rate is the Applicable Rate. Interest shall
accrue on the Principal Amount from and including the first
day of the Interest Period (with the duration selected by
Borrower) until, but not including, the last day of such
Interest Period or the day the Principal Amount is paid in
full (if sooner) at a rate per annum equal to the LIBOR Rate
in effect on the each Adjustment Date.
ii. If the Base Rate is the Applicable Interest. Interest shall
accrue on the Principal Amount from and including the first
date the Base Rate is the Applicable Rate to but not
including, the day such Principal Amount is paid in full or
the Applicable Rate is converted to the LIBOR Rate, at the
rate per annum equal to the Base Rate. Any change in the Base
Rate resulting from a change in the Bank's prime rate shall be
effective on the date of such change.
d. Payment Schedule. (Check applicable box):
|_| Borrower shall pay the entire Outstanding Principal on the
Maturity Date. In addition, until the Outstanding Principal is
paid in full, Borrower shall pay all accrued and unpaid
interest, in amounts which may vary, as follows: (i) if the
LIBOR Rate is the Applicable Rate, on the last day of each
Interest Period, (ii) if the Base Rate is the Applicable Rate,
on the Payment Due Date for each month and (iii) at maturity
(whether by acceleration or otherwise) and, after such
maturity, on demand.
|_| Borrower shall pay the Outstanding Principal in __________
consecutive monthly, bi-monthly or quarterly installments
(depending on the duration of the Interest Period selected by
Borrower on page one) starting on the last day of the Interest
Period that commences on the date of this Note and on last day
of each Interest Period thereafter consisting of __________
equal installments of principal each in the amount of
$________________________ and ONE (1) FINAL INSTALLMENT on the
Maturity Date in an amount equal to the Outstanding Principal
at that time together with all other amounts outstanding
hereunder including, without limitation, accrued interest,
costs and Expense (the "Final Installment"); provided,
however, if the Applicable Rate is converted to the Base Rate,
Borrower shall pay the Outstanding Principal in consecutive
monthly installments commencing on the first Payment Due Day
after the date of such conversion and on the same Payment Due
Day thereafter until conversion back to the LIBOR Rate (at
which time Borrower shall resume the monthly, bi-monthly or
quarterly installments in the amount set forth above or as
otherwise agreed to by the Bank and Borrower in writing) or
the Maturity Date (at which time Borrower shall pay the Final
Installment) with each such installment being equal in an
amount to fully amortize the Outstanding Principal amount of
the Note in full by the Maturity Date or such other date
agreed to by the Bank and Borrower in writing. The
determination by the Bank of the foregoing amount shall, in
the absence of manifest error, be conclusive and binding upon
Borrower. In addition, until the Outstanding Principal is paid
in full, Borrower shall pay all accrued and unpaid interest,
in amounts which may vary, as follows: (i) if the LIBOR Rate
is the Applicable Rate, on the last day of each Interest
Period, (ii) if the Base Rate is the Applicable Rate, on the
Payment Due Date for each month and (iii) at maturity (whether
by acceleration or otherwise) and, after such maturity, on
demand.
e. Maximum Legal Rate. It is the intent of the Bank and Borrower that in
no event shall interest be payable at a rate in excess of the maximum rate
permitted by applicable law (the "Maximum Legal Rate"). If this Note is for a
personal loan of less than $2,500,000 and is secured primarily by a one- to
four-family resident, the interest rate shall not exceed 16%. Solely to the
extent necessary to prevent interest under this Note from exceeding the Maximum
Legal Rate, any amount that would be treated as excessive under a final judicial
interpretation of applicable law shall be deemed to have been a mistake and
automatically canceled, and, if received by the Bank, shall be refunded to
Borrower.
f. Default Rate. If an Event of Default (defined below) occurs, the
interest rate on the unpaid Principal Amount shall immediately be automatically
increased to 5 percentage points per year above the higher of the LIBOR Rate or
the Base Rate, and any judgment entered hereon or otherwise in connection with
any suit to collect amounts due hereunder shall bear interest at such default
rate.
g. Repayment of Principal and Interest; Late Charge. Payments shall be
made in immediately available United States funds at any banking office of the
Bank. Interest will continue to accrue until payment is actually received. If
payment is not received within five days of its due date. Borrower shall pay a
late charge equal to the greatest of (a) $50.00, (b) 5% of the delinquent amount
or (c) the Bank's then current late charge as announced from time to time. If
this Note is secured by a one- to six-family owner-occupied residence, the late
charge shall equal 2% of the delinquent amount and shall be payable if payment
is not received within fifteen days of its due date. Payments may be applied in
any order in the sole discretion of the Bank but, prior to default, shall be
applied first to past due interest, Expenses, late charges and principal, then
to current interest, Expenses, late charges and principal, and last to remaining
principal.
h. Prepayment.
i. Subject to the following, during the term of this Note,
Borrower shall have the option of paying the Principal Amount
to the Bank in advance of the Maturity Date, in whole or in
part, at any time and from time to time upon written notice
received by the Bank at least three (3) business days prior to
making such payment. If (i) Borrower prepays, in whole or in
part, any Principal Amount when the Applicable Rate is the
LIBOR Rate before the end of the Interest Period, (ii) there
occurs an Event of Default or the Applicable Rate is converted
from the LIBOR Rate to the Base Rate before the end of an
Interest Period pursuant to Section 3, then Borrower shall be
liable for and shall pay the Bank, on demand, the higher of
$250.00 or the actual amount of the liabilities, expenses,
costs or funding losses that are a direct or indirect result
of such prepayment (based on the entire Principal Amount
pre-paid), failure to draw, early termination of the Interest
Period, revocation, bankruptcy or otherwise. The determination
by the Bank of the foregoing amount shall, in the absence of
manifest error, be conclusive and binding upon Borrower.
ii. Upon making any prepayment of the Principal Amount in whole,
Borrower shall pay to the Bank all interest and Expenses owing
pursuant to the Note and remaining unpaid. Each partial
prepayment of the Principal Amount shall be applied in inverse
order of maturity to the principal included in the
installments provided herein.
iii. In the event the Maturity Date is accelerated following an
Event of Default by Borrower, any tender of payment of the
amount necessary to satisfy the entire indebtedness made after
such Event of Default shall be expressly deemed a voluntary
prepayment. In such a case, to the extent permitted by law,
the Bank shall be entitled to the amount necessary to satisfy
the entire indebtedness, plus the appropriate prepayment
premium calculated in accordance with this Section 2(h).
-2-
3. CONTINUATIONS AND CONVERSIONS. See Addendum Insert No. 1.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Borrower represents and warrants
to and agrees and covenants with the Bank that now and until this Note is paid
in full: The representations and warranties set forth in the Loan Agreement are
true and correct as of the date hereof, and are reaffirmed as if fully set forth
herein in full.
-3-
5. EVENTS OF DEFAULT; ACCELERATION. The following constitute an event of default
("Event of Default"): (i) failure by Borrower to make any payment when due
(whether at the stated maturity, by acceleration or otherwise) of the amounts
due under this Note, or any part thereof, or there occurs any event or condition
which after notice, lapse of time or both will permit such acceleration. See
Addendum Insert No. 2.
6. RIGHT OF SETOFF. The Bank shall have the right to set off against the amounts
owing under this Note any property held in a deposit or other account with the
Bank or any Affiliate or otherwise owing by the Bank or any Affiliate in any
capacity to Borrower or any guarantor or endorser of this Note. Such set-off
shall be deemed to have been exercised immediately at the time the Bank or such
Affiliate elect to do so.
7. INABILITY TO DETERMINE LIBOR RATES, INCREASED COSTS, ILLEGALITY.
a. Increased Costs. If the Bank shall determine that, due to either (a)
the introduction of any change (other than any change by way of imposition of or
increase in reserve requirements included in the calculation of the LIBOR) in or
in the interpretation of any requirement of law or (b) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to the Bank of agreeing to make or making, funding or maintaining any loans
based on LIBOR, then Borrower shall be liable for, and shall from time to time,
upon demand therefor by the Bank and pay to the Bank such additional amounts as
are sufficient to compensate the Bank for such increased costs.
b. Inability to Determine Rates. If the Bank shall determine that for any
reason adequate and reasonable means do not exist for ascertaining LIBOR for the
Interest Period specified above, the Bank will give notice of such determination
to Borrower. Thereafter, the Bank may not maintain the loan hereunder at the
LIBOR Rate until the Bank revokes such notice in writing and, until such
revocation, the Bank may convert the Applicable Rate from the LIBOR Rate to the
Base Rate.
c. Illegality. If the Bank shall determine that the introduction of any
law (statutory or common), treaty, rule, regulation, guideline or determination
of an arbitrator or of a governmental authority or in the interpretation or
administration thereof, has made it unlawful, or that any central bank or other
governmental authority has asserted that it is unlawful for the Bank to make
loans at based on LIBOR then, on notice thereof by the Bank to Borrower, the
Bank may suspend the maintaining of the loan hereunder at the LIBOR Rate until
the Bank shall have notified Borrower that the circumstances giving rise to such
determination shall no longer exist. If the Bank shall determine that it is
unlawful to maintain the loan hereunder based on LIBOR, the Bank may convert the
Applicable Rate from the LIBOR Rate to the Base Rate.
-4-
8. MISCELLANEOUS. This Note, together with any related loan and security
agreements and guaranties, contains the entire agreement between the Bank and
Borrower with respect to the Note, and supersedes every course of dealing, other
conduct, oral agreement and representation previously made by the Bank. All
rights and remedies of the Bank under applicable law and this Note or amendment
of any provision of this Note are cumulative and not exclusive. No single,
partial or delayed exercise by the Bank of any right or remedy shall preclude
the subsequent exercise by the Bank at any time of any right or remedy of the
Bank without notice. No waiver or amendment of any provision of this Note shall
be effective unless made specifically in writing by the Bank. No course of
dealing or other conduct, no oral agreement or representation made by the Bank,
and no usage of trade, shall operate as a waiver of any right or remedy of the
Bank. No waiver of any right or remedy of the Bank shall be effective unless
made specifically in writing by the Bank. Borrower agrees that in any legal
proceeding, a copy of this Note kept in the Bank's course of business may be
admitted into evidence as an original. This Note is a binding obligation
enforceable against Borrower and its successors and assigns and shall inure to
the benefit of the Bank and its successors and assigns. If a court deems any
provision of this Note invalid, the remainder of the Note shall remain in
effect. Section headings are for convenience only. Borrower hereby waives
protest, presentment and notice of any kind in connection with this Note.
Singular number includes plural and neuter gender includes masculine and
feminine as appropriate.
9. NOTICES. Any demand or notice hereunder or under any applicable law
pertaining hereto shall be in writing and duly given if delivered to Borrower
(at its address on the Bank's records) or to the Bank (at the address on page
one and separately to the Bank officer responsible for Borrower's relationship
with the Bank). Such notice or demand shall be deemed sufficiently given for all
purposes when delivered (i) by personal delivery and shall be deemed effective
when delivered, or (ii) by mail or courier and shall be deemed effective three
(3) business days after deposit in an official depository maintained by the
United States Post Office for the collection of mail or one (1) business day
after delivery to a nationally recognized overnight courier service (e.g.,
Federal Express). Notice by e-mail is not valid notice under this or any other
agreement between Borrower and the Bank.
10. JOINT AND SEVERAL. If there is more than one Borrower, each of them shall be
jointly and severally liable for all amounts which become due under this Note
and the term "Borrower" shall include each as well as all of them.
11. GOVERNING LAW; JURISDICTION. This Note has been delivered to and accepted by
the Bank and will be deemed to be made in the State of New York. This Note will
be interpreted in accordance with the laws of the State of New York excluding
its conflict of laws rules. BORROWER HEREBY IRREVOCABLY CONSENTS TO THE
EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK STATE WHERE THE
BANK MAINTAINS A BRANCH AND CONSENTS THAT THE BANK MAY EFFECT ANY SERVICE OF
PROCESS IN THE MANNER AND AT BORROWER'S ADDRESS SET FORTH ABOVE FOR PROVIDING
NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED IN THIS NOTE WILL PREVENT THE
BANK FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY
RIGHTS AGAINST BORROWER INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY
PROPERTY OF BORROWER WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC
JURISDICTION. Borrower acknowledges and agrees that the venue provided above is
the most convenient forum for both the Bank and Borrower. Borrower waives (i)
any objection to venue and any objection based on a more convenient forum in any
action instituted under this Note; (ii) any right to assert any counterclaim or
setoff or any defense based upon a statute of limitations, upon a claim of
laches or any other legal theory; and (iii) its right to attack a final judgment
that is obtained as a direct or indirect result of any such action.
12. WAIVER OF JURY TRIAL. BORROWER AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY,
AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY BORROWER AND THE BANK MAY
HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS
NOTE OR THE TRANSACTIONS RELATED HERETO. BORROWER REPRESENTS AND WARRANTS THAT
NO REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE BANK WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY
TRIAL WAIVER. BORROWER ACKNOWLEDGES THAT THE BANK HAS BEEN INDUCED TO ENTER INTO
THIS NOTE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
|_| Replacement Note. This Note is given in replacement of and in substitution
for, but not in payment of, a note dated _______________________________,
19____/20____ in the original principal amount of $_______________________
issued by Borrower (or _____________________) to the Bank (or its
predecessor in interest).
Preauthorized Transfers from Deposit Account. If a deposit account number is
provided in the following blank Borrower hereby authorizes the Bank to debit
Borrower's deposit account #______________________________ with the Bank
automatically for any amount which becomes due under this Note.
TAX ID/SS # 00-0000000 CVC PRODUCTS, INC.
----------------------- ---------------------------------------------
BORROWER
By:
-----------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President and CFO
---------------------------------------------
Signature of Witness
---------------------------------------------
Typed Name of Witness
-5-
ACKNOWLEDGEMENT
STATE OF NEW YORK )
:SS.
COUNTY OF _______________ )
On the ________________ day of ______________ in the year 1999, before me
personally came Xxxxxx X. XxXxxxxxx
|_| Individual(s) to me known and known to me to be the person(s)
described in and who executed the above instrument, and
__he (they jointly and severally) acknowledged to me
that __he (they) executed the same.
|_| Partnership to me known and known to me to be a general partner of
the partnership described in and which executed the
above instrument, and __he duly acknowledged to me that
__he executed the above instrument for and on behalf of
said partnership.
|X| Corporation to me known, who, being by me duly sworn, did depose and
say that he resides in _________________________________
_______________________________________________________;
that __he is the Sr. Vice President of CVC Products,
Inc., the corporation described in and which executed
the above instrument; and that __he signed his (her)
name thereto by order of the board of directors of said
corporation.
----------------------------------------------
Notary Public
FOR BANK USE ONLY
Authorization Confirmed: ____________________________________________________________________
Product Code 22660
Disbursement of Funds: Credit A/C #_________ Off Ck #_________ Payoff Obligation #________
$_________ $_________ $_________
-6-
ADDENDUM TO LIBOR TERM NOTE
DATED AS OF _____ EXECUTED
BY CVC PRODUCTS, INC.
IN FAVOR OF
MANUFACTURERS AND TRADERS TRUST COMPANY
This ADDENDUM to a certain LIBOR Term Note, dated ________, is made by CVC
PRODUCTS, INC. ("Borrower") in favor of MANUFACTURERS AND TRADERS TRUST COMPANY
("Bank"). This Rider is an integral part of the LIBOR Term Note.
Insert No. 1
a. Election. Borrower may, upon irrevocable request to the Bank,
i. elect to convert on any Business Day the interest rate from
the Base Rate into a LIBOR Rate provided the amount converted
is not less than the minimum borrowing amount required under
the Loan Agreement; or
ii. elect to convert the interest rate from a LIBOR Rate as of the
last day of the applicable Interest Period to a Base Rate; or
iii. elect to continue (subject to the minimum borrowing amount
limitation) any LIBOR Rate as of the last day of the Interest
Period applicable to such LIBOR Rate with the same or
different Interest Period.
b. Notice of Conversion/Continuation.
i. For an election under Section 3(a)(i) or 3(a)(iii), Borrower
must deliver to the Bank by 2:00 p.m. (Eastern Standard Time)
on a Business Day a Notice of Conversion ("Notice of
Conversion") for an election under Section 3(a)(i) or a
Notice of Continuation ("Notice of Continuation") for an
election under Section 3(a)(iii) specifying the duration of
the requested Interest Period (i.e., 1, 2, 3 or 6 month
Interest Period).
ii. The Continuation Date or Conversion Date (as the case may be)
shall be the later of (A) two (2) Business Days from the
Business Day the Bank receives the Notice of Conversion or
Notice of Continuation (either, a "Notice") in accordance with
the foregoing Section or (B) the last day of the relevant
Interest Period if a Notice is received by the Bank more than
two (2) Business Days before the last day of an Interest
Period. If a Notice is received after 2:00 p.m. (Eastern
Standard Time), the Notice will be deemed to have been
received on the next Business Day. Notice of Continuation
received more than two (2) Business Days before the end of an
Interest Period shall be deemed to have been received two (2)
Business Days before the end of such Interest Period for
purposes of determining the LIBOR Rate for the next Interest
Period. Accordingly, if, for example, Borrower has a LIBOR
Rate Loan with a one month Interest Period ending on June 15
and wants to continue the LIBOR Rate Loan with a two month
Interest Period, Borrower must deliver its Notice of
Continuation identifying the new two month Interest Period to
the Bank by 2:00 p.m. (Eastern Standard Time) on June 13
(provided that June 13 and June 14 are Business Days).
iii. For an election under Section 3(a)(ii), Borrower may deliver
to the Bank a Notice of Conversion at any time during an
Interest Period up to the last day of such Interest Period or
may have the LIBOR Rate automatically convert to a Base Rate
pursuant to Section 3(c). Any such Notice of Conversion
delivered during an Interest Period shall be effective on the
last day of the Interest Period.
iv. The Bank may take action on any Notice in reliance upon any
oral, telephonic, written or teletransmitted Notice that the
Bank in good faith believes to be valid and to have been made
by Borrower or on behalf of Borrower. No Notice may be
delivered by e-mail. The Bank shall incur no liability to
Borrower or to any other person as a direct or indirect result
of acting on any Notice under this Note. The Bank, in its sole
discretion, may reject any Notice that is incomplete.
c. Expiration of Interest Period. If Borrower does not submit a Notice of
Continuation in accordance with Section 3(b)(i) and 3(b)(ii) so that the Bank
receives the Notice of Continuation at least two (2) Business Days before the
end of an Interest Period, the LIBOR Rate shall automatically be converted into
a Base Rate and this Note shall accrue interest at the Base Rate until two (2)
Business Days after the Bank receives a Notice of Conversion pursuant to Section
3(b)(i) and 3(b)(ii) electing to convert the Note from a Base Rate to a LIBOR
Rate pursuant to Section 3(a)(i). A Notice of Continuation received one (1)
Business Day before the end of an Interest Period will not effect a continuation
of a LIBOR Rate. Rather, such LIBOR Rate shall automatically convert to a Base
Rate on the last day of the Interest Period. The late Notice of Continuation,
however, will be deemed to be a Notice of Conversion that will be effective two
(2) Business Days from the date received by the Bank.
d. Conversion upon Default. Unless the Bank shall otherwise consent in
writing, if (i) Borrower has failed to pay when due, in whole or in part, the
indebtedness under the Note (whether by demand or otherwise), or (ii) there
exists a condition or event which with the passage of time, the giving of notice
or both shall constitute an event of default under any of Borrower's agreement
with the Bank, if any, Borrower may not elect to convert or continue a LIBOR
Rate. Further, the Bank, in its sole discretion, may (i) permit any outstanding
LIBOR Rate to continue until the last day of the applicable Interest Period at
which time such LIBOR Rate shall automatically be converted into a Base Rate or
(ii) convert any outstanding LIBOR Rate into a Base Rate before the end of the
applicable Interest Period applicable to such LIBOR Rate. Notwithstanding the
foregoing, if Borrower commences, or has commenced against it, any proceeding or
request for relief under any bankruptcy, insolvency or similar laws now or
hereafter in effect in the United States of America or any state or territory
thereof or any foreign jurisdiction or any formal or informal proceeding for the
dissolution or liquidation of, settlement of claims against or winding up of
affairs of Borrower (a "Bankruptcy Event"), any outstanding LIBOR Rate shall be
automatically converted to Base Rate without further action by the Bank and
Borrower's rights to have Base Rate converted under Section 3 shall be
automatically terminated. Nothing herein shall be construed to be a waiver by
the Bank to have this Note accrue interest at the Default Rate of interest
(which shall be calculated from the higher of the LIBOR Rate or the Base Rate)
or the right of the Bank to the amounts set forth in Section 2(a) of this Note.
R-2
Insert No. 2
or (b) any Event of Default occurs under the Loan Agreement, as the Loan
Agreement is amended, extended or replaced from time to time.
As used in this Note (i) "any agreement with the Bank" includes any
agreement, note or instrument with the Bank (which includes, without limitation,
the Loan Agreement, the 1999 Term Note, the 1999 Grid Note, the Existing Bank
Documents and the Loan Documents); (ii) "accelerated" or "acceleration" means
indebtedness that becomes due at maturity, by notice after the occurrence of an
Event of Default or which becomes due as a result of a demand. All defined terms
in the Loan Agreement shall have the same meaning herein unless otherwise
defined herein.
Automatically upon the commencement of Borrower's or any Guarantor's
bankruptcy if voluntary and upon lapse of forty-five (45) days without dismissal
if involuntary, all amounts outstanding hereunder shall become immediately due
and payable. Upon the occurrence of any other Event of Default hereunder, at the
Bank's option, all amounts hereunder shall become immediately due and payable.
IN WITNESS WHEREOF, Borrower has executed and unconditionally delivered
this Addendum together with the preprinted form of this Note on the date
indicated in the acknowledgement, effective as of _______.
CVC PRODUCTS, INC.
By:
------------------------------------
Name:
Title:
STATE OF NEW YORK )
COUNTY OF MONROE ) ss:
On the ____ day of _________ in the year _____ before me, the undersigned,
a Notary Public in and for said state, personally appeared ___________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
--------------------------------------------
Notary Public
R-3
