EXHIBIT 10.56
MASTER EQUIPMENT LEASE NO. 1
(True Lease)
This Master Equipment Lease dated as of April 7, 1998, together with all
Equipment Schedules annexed hereto, is between M&T Financial Corporation, a New
York corporation with its principal office at Xxx Xxxxxxxx Xxxxx, Xxxxxxx, XX
00000, Attention: Counsel's Office ("Lessor"), and CVC Products, Inc. a
corporation organized under the laws of the state of Delaware with its chief
executive office at 000 Xxx Xxxx, Xxxxxxxxx, XX 00000 ("Lessee").
Lease. Subject to the terms hereof, Lessor shall lease to Lessee, and Lessee
shall lease from Lessor, the units of personal property (collectively, the
"Equipment" and separately, a "Unit") described on each Equipment Schedule (each
an "Equipment Schedule" or "Schedule") now or hereafter attached hereto, each of
which shall incorporate all the terms and conditions of this Master Equipment
Lease. Each Equipment Schedule shall constitute a separate lease and the term
"Lease" as used below shall refer to an individual Equipment Schedule which
incorporates this Master Equipment Lease, together with the Certificate of
Acceptance for that Schedule. In case of inconsistency, the terms of the
Schedule shall control.
Term. The "Term" of this Lease shall consist of (i) the Interim Term (if any)
and (ii) the Base Term. The Interim Term will commence on the date the Lessor
disburses funds to pay for the Equipment and shall extend to but not include the
Rent Commencement Date (the "Interim Term"). The Initial Base Term shall
commence on the earlier of (a) the Rent Commencement Date stated on the
Equipment Schedule or (b) the date of the Lessee's Certificate of Acceptance for
the Equipment (the "Acceptance Date") and shall continue for the number of
periods specified on the Schedule (the "Base Term"). Lessor is authorized to
enter the commencement date and other ministerial information on the Schedule
upon receipt of the Certificate of Acceptance. The terms and conditions of this
Lease shall continue in effect during any renewal term.
Rent; Late Charge. Lessee agrees to pay directly to Lessor at the above address
or to Lessor's Assignee the rental payments plus any interim rent as specified
on the Equipment Schedule together with all other amounts which may become due
under this Lease (the "Rent"). All Rent shall be paid without notice or demand.
If any Rent is not received within 5 days of the date due, Lessor may charge and
Lessee shall be obligated to pay a late charge in the amount specified on the
Equipment Schedule, or, if none is so specified, 5% of the delinquent amount.
Net Lease; Lessee's Obligations Absolute. This Lease is a net lease. Lessee's
obligation to pay Rent shall be absolute and unconditional and shall not be
subject to any abatement, deferral, reduction, defense, counterclaim, setoff or
recoupment for any reason, including without limitation any claim against the
manufacturer or loss of possession or use of the Equipment.
Disclaimer of Warranties; Lessee's Obligations. LESSEE ACKNOWLEDGES THAT FOR THE
PURPOSES OF UCC ARTICLE 2A THIS IS A STATUTORY FINANCE LEASE AND LESSOR IS NOT
AN AGENT OF THE MANUFACTURER OR VENDOR OF THE EQUIPMENT. LESSEE SELECTED THE
EQUIPMENT AND VENDOR. LESSEE IS SATISFIED THAT THE EQUIPMENT IS SUITABLE AND FIT
FOR LESSEE'S PURPOSES. LESSOR MAKES NO WARRANTY EITHER EXPRESS OR IMPLIED, AS
TO, WITHOUT LIMITATION, QUALITY, CONDITION, MERCHANTABILITY, DESIGN, CAPACITY,
WORKMANSHIP OR PERFORMANCE OF THE EQUIPMENT, OR ITS FITNESS FOR ANY PARTICULAR
PURPOSE. No defect or unsuitability of the Equipment or delay in delivery shall
relieve Lessee of the obligation to pay Rent or any other obligation under this
Lease. Lessor hereby assigns to Lessee any interest it may have in
manufacturers' warranties which Lessee may enforce in Lessee's name and at
Lessee's sole
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expense. Lessee knows it may have rights under any vendor purchase documents and
can contact the vendor if any for a description of such rights.
Assignment. LESSEE MAY NOT ASSIGN, SUBLEASE, TRANSFER OR DISPOSE OF ANY OF ITS
RIGHTS UNDER THIS LEASE without Lessor's prior written consent. LESSEE SHALL
REMAIN PRIMARILY LIABLE ON THE LEASE. Lessor may assign this Lease without
Lessee's consent and Lessee admits that such assignment constitutes no material
increase in Lessee's duties or risk and Lessee would not object even if it did.
Lessee's obligations under the Lease shall constitute a direct, independent and
unconditional obligation of Lessee to any Assignee of Lessor. Lessee agrees that
Lessor's Assignee shall have the right to exercise all rights, privileges and
remedies (either in its own name or in the name of Lessor) which by the terms of
this Lease are permitted to be exercised by Lessor.
Title; True Lease. Lessor has and will retain good and marketable title to and a
residual interest in the Equipment and not merely a security interest in it.
Lessor and Lessee do not intend this agreement as a disguised installment sale
or disguised security agreement. Title to any replacement parts or integral
additions to the Equipment shall automatically vest in Lessor.
Risk of Loss. Lessee assumes the entire risk of loss to the Equipment. Lessee
shall advise Lessor in writing promptly of the circumstances and extent of any
damage. If the Equipment is irreparably damaged, lost, stolen or taken by
eminent domain or otherwise, Lessee shall, at Lessor's option, (a) replace it
with like equipment approved by Lessor and transfer title to such replacement
item to Lessor, or (b) pay to Lessor all Rent due and to become due, less the
net amount of any recovery actually received by Lessor from insurance or
otherwise. When, in Lessor's sole discretion, the Equipment can be repaired,
Lessee shall at its expense promptly effect such repairs as Lessor deems
necessary for compliance with this Lease. Any insurance proceeds received by
Lessor for repair of the Equipment shall, at Lessor's option, be paid either
directly to the party completing the repairs, or to reimburse Lessee for the
cost of such repairs; provided, however, that Lessor shall have no obligation to
make any payment until receipt of evidence satisfactory to Lessor that such
repairs have been completed; and further provided that Lessor may apply such
proceeds to the payment of Rent if there shall have occurred and be continuing
an Event of Default or any event which with lapse of time or notice, or both,
would become an Event of Default. Lessee shall, upon Lessor's request,
undertake, by litigation or otherwise, in Lessee's name, the collection of any
claim against any person for such loss or taking, but Lessor shall not be
obligated to undertake the collection of any such claim.
Representations and Warranties of Lessee. Lessee represents and warrants that:
it is duly organized and in good standing under the laws of the State in which
it was formed and duly authorized to do business in each jurisdiction where
failure to be so authorized might have a material adverse effect on its
financial condition or assets; it has the legal right and power and has taken
all necessary corporate or partnership action to authorize execution, delivery
and performance of its obligations under this Lease; this Lease constitutes a
valid obligation of Lessee enforceable in accordance with its terms; and
execution, delivery and performance of this Lease will not violate the terms or
constitute a breach of any other agreement to which Lessee is a party or by
which it is bound.
Maintenance and Repairs; Business Purpose Only. Lessee at its sole expense shall
cause the Equipment to be maintained and kept in good repair according to the
manufacturer's specifications. Lessee shall use the Equipment only in the manner
and for the BUSINESS PURPOSES for which it was designed and intended.
Insurance. Lessee shall maintain at all times property damage, fire, theft and
comprehensive insurance for the full replacement value of the Equipment with
loss payable provisions in favor of Lessor as its interests may appear and
maintain public liability insurance in the amounts required by Lessor for the
relevant Equipment Schedule, naming Lessor as additional insured, all under
policies in form, substance and amount and written by companies approved
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by Lessor.
Compliance; Inspection. Lessee shall comply with all governmental laws,
regulations, requirements and rules, including without limitation environmental
and licensing laws and all manufacturer's operating instructions and warranty
requirements for the Equipment, and with the conditions and requirements of all
policies of insurance with respect to the Equipment and this Lease. At any time
during business hours, Lessor may enter the premises where the Equipment is
located, to inspect the Equipment.
Taxes and Costs. Lessee shall pay all applicable sales and other taxes, license
and registration fees, assessments and other government charges, however
designated, based upon the Equipment or the Rent or upon the operation,
maintenance, repair, return or other disposition of the Equipment, or for
titling or registering the Equipment, including taxes measured by the net income
of Lessor to the extent that such taxes are assessed in lieu of other
governmental charges. If Lessee represents that Lessee is exempt from payment of
income taxes and sales taxes, Lessee will provide Lessor with evidence of such
exemptions. Lessee shall pay all shipping and delivery charges and other
expenses incurred in connection with the Equipment and pay all lawful claims
which might become a lien on the Equipment.
General Indemnity. Lessee shall indemnify and hold Lessor harmless from and
against all claims, losses, liabilities, damages, judgments, suits, and all
legal proceedings, and any and all costs and expenses (including without
limitation attorneys' fees and disbursements whether for internal or outside
counsel), arising in connection with the manufacture, purchase, ownership,
delivery, installation, possession, use, storage, operation, failure,
maintenance, repair, return, repossession or other disposition of the Equipment
or with this Lease including without limitation claims for injury to or death of
persons and for damage to property (collectively "Claims"). Lessee shall give
Lessor and any Assignee prompt notice of any Claim.
Tax Indemnity. Lessee represents, warrants and covenants that the entire
Equipment cost to Lessor qualifies as cost of "property" for purposes of
Internal Revenue Code ss.168, as amended; no person other than Lessor has
claimed or will claim any tax deduction or credit related to the Equipment;
Lessee will take all actions requested at any time to protect Lessor's tax
ownership of the Equipment; the Equipment is not "limited use property" for
purposes of Revenue Procedures 75-28 (1975-1 C.B. 752) and 76-30 (1976 C.B.
847); and the Equipment will be placed in service within the meaning of I.R.C.
ss.168 by no later than the date specified in the Tax Rider. Lessee agrees not
to do anything to impair or lessen the value of Lessor's anticipated tax
benefits related to the Equipment (as set forth on a Tax Rider to this Lease)
and expressly agrees that Claims under the indemnity provided in the preceding
paragraph shall include any disallowance, elimination, recapture, reduction or
disqualification, in whole or in part, of any tax benefits of Lessor incurred as
a result of any act or omission or misrepresentation of Lessee (a "Loss"). If
Lessor suffers a Loss, Lessee shall pay to Lessor as additional Rent on the next
succeeding rental payment date after Lessor delivers to Lessee written notice of
a Loss, or if there is no such date, within 30 days after such notice, the
amount which, after deduction of all taxes, interest, additions to tax and
penalties that have been or will be required to be paid by Lessor at the highest
marginal corporate income or franchise tax rates under all applicable federal,
state and local laws, regulations and ordinances, will preserve the Net Economic
Return that would have been realized by Lessor had such Loss not occurred. In
the case of a Loss resulting from Lessor's inability to offset, for federal or
local income or State franchise tax purposes, income taxable at a rate equal to
Lessor's highest marginal corporate tax rate, basic Rent, and the Table of
Stipulated Loss and Early Termination Values for the related Schedule shall be
adjusted to preserve the Net Economic Return. "Net Economic Return" means the
maintenance, at a minimum, of Lessor's (i) after-tax yield (ii) after-tax
aggregate cash flows, and (iii) return on assets as computed by Lessor as of the
date of the execution of the Schedule. All of Lessor's rights and privileges
arising from the indemnity in this paragraph shall survive the expiration or
other termination of this Lease. For purposes of this indemnity the term
"Lessor" shall include any affiliated group (within the meaning of I.R.C.
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ss.1504) of which Lessor is a member for any year in which a consolidated income
tax return is filed for such affiliated group.
Location. Lessee shall not remove the Equipment from its business location
specified on the respective Equipment Schedule without Lessor's prior written
consent. Upon the expiration or termination of this Lease, unless Lessee
purchases the Equipment Lessee shall, at its sole expense, store and continue to
insure the Equipment for up to 180 days and shall deliver the Equipment to
Lessor in good condition, ordinary wear and tear excepted, at a location within
the United States designated by the Lessor.
Financial Statements. Lessee shall maintain a system of accounts established and
administered in accordance with generally accepted accounting principles and
practices for its industry consistently applied, and, within thirty (30) days
after the end of each fiscal quarter, deliver to Lessor a balance sheet as of
the end of such quarter and statement of operations and cash flows for such
quarter, and within one hundred twenty (120) days after the end of each fiscal
year, deliver to Lessor a balance sheet as of the end of such year and year end
statement of operations and cash flows for such year in each case prepared in
accordance with generally accepted accounting principles for its industry
consistently applied and certified by Lessee's chief financial officer, or, in
the case of year end financial statements, audited by an independent public
accountant firm acceptable to Lessor, to be correct and complete in accord with
Lessee's records and to present fairly the results of Lessee's operations and
cash flows and its financial position at year end.
No Liens. Lessee shall not create or suffer to exist any lien or other
encumbrance of any kind upon the Equipment or this Lease and agrees that if
Lessee breaches this covenant Lessor may cancel this Lease.
Quiet Enjoyment; Equipment is Personality. Lessor covenants that so long as no
Event of Default shall have occurred, Lessee shall be entitled to quiet
possession and use of the Equipment in accordance with this Lease. Lessor and
Lessee agree that the Equipment shall remain personal property. Lessee will
obtain and deliver upon Lessor's request any landlord and mortgagee waivers in
recordable form, satisfactory to Lessor, from all persons claiming any interest
in the real property on or in which the Equipment is located.
Events of Default. An event of default ("Event of Default") will have occurred
if (a) Lessee fails to pay any Rent within 10 days of the date due whether by
acceleration or otherwise; (b) Lessee or any guarantor of this Lease (a
"Guarantor") fails to perform when due any obligation under this Lease or any
other agreement with the Lessor; (c) any of Lessee's debts is accelerated or an
event occurs which after notice or lapse of time would permit such acceleration;
(d) Lessee or a Guarantor 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, 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 not permitted
above or has entered against it or its Guarantor or assets any judgment, order
or award; (e) a receiver or similar trustee is appointed for Lessee or its
Guarantor or assets (with or without its consent), or Lessee or Guarantor makes
an assignment for the benefit of creditors or commences or has commenced against
it a proceeding pursuant to any bankruptcy law, and such appointment or
proceeding is not dismissed within 60 days; or (f) any representation or
warranty made in this Lease or related documents or other statements provided by
Lessee or Guarantor proves to have been incorrect or misleading in any material
respect when made.
Remedies. Immediately upon the occurrence of any Event of Default, Lessor may,
without notice or demand, take any or all of the following steps: (a)
immediately terminate the Lease and require Lessee, at its expense, promptly to
return all or any portion of the Equipment to the possession of Lessor at such
place as Lessor may designate; (b) without process of law, enter upon the
premises where the Equipment is located and take immediate possession of
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the Equipment, free from all claims for loss or damage caused by repossession;
(c) declare immediately due and payable an amount equal to the present value of
(1) all unpaid Rent due and to become due during the entire Term, plus (2) the
purchase price payable under Lessee's purchase option, if constructively
exercised, using a factor selected by Lessor in its sole discretion to determine
present value; (d) sell, release or otherwise dispose of the Equipment as is or
with any commercially reasonable preparation, at public or private sale, in one
or more parcels, upon any terms, at such place(s) and time(s) and to such
persons or firms as Lessor deems best, without demand or notice, although Lessee
agrees ten (10) business days' written notice if given shall be deemed
reasonable notice; or (e) exercise any other right or remedy in equity or under
applicable law, including without limitation remedies of a secured party under
the Uniform Commercial Code. Lessee shall be liable for all costs and expenses
incurred by Lessor for sale or re-lease, including reasonable brokers'
commissions and attorneys' fees and disbursements, whether for internal or
outside counsel. To the extent permitted by applicable law, Lessee hereby waives
any valuation, inquisition, stay, appraisal or redemption laws which, but for
this provision, might be applicable to any sale or re-lease of the Equipment.
Lessor's Right to Cure. Lessor may at its option perform any of Lessee's
obligations omitted by Lessee, at Lessee's expense payable upon demand.
Purchase Option. Lessee shall have only such option to purchase the Equipment
upon expiration of the Lease (if any) as specified in a separate Purchase Option
Rider to the Schedule. Any option shall be suspended during the existence of any
Event of Default. If no price is specified, the price shall be the fair market
value of the Equipment as determined by the Lessor at the end of the Term.
Further Assurances. Lessee will execute all documents and take all further
actions requested by Lessor to protect Lessor's interests under this Lease,
including without limitation Uniform Commercial Code financing statements.
Lessor is authorized to file this Lease as a security agreement in lieu of a
financing statement, to file financing statements without the signature of
Lessee and to execute finaning statements on behalf of Lessee. Lessee will pay
all costs of filing financing statements with respect to this Lease, including
without limitation documentary stamp taxes. Lessee will cause Lessor's interest
in the Equipment to be noted on any certificate of title relating to the
Equipment.
Power of Attorney. Lessee irrevocably and unconditionally appoints Lessor
Lessee's Attorney-in-Fact to, at any time, in Lessee's name or otherwise (a)
execute financing statements relating to the Equipment, (b) execute applications
for certificates of title or notices of lien relating to titled Equipment, (c)
endorse checks, drafts or other instruments drawn by the issuer of insurance
covering the Equipment or (d) execute and deliver any writing and take any other
actions that the Lessor deems necessary or desirable to perfect or protect
Lessor's interests under this Lease. This power is coupled with an interest and
if Lessee is a natural person shall not be affected by any subsequent disability
of the Lessee.
Enforceability. This Lease shall be binding upon Lessee's successors and assigns
and shall be enforceable by Lessor's successors and assigns.
Non-Waiver; Etc. No course of dealing nor any delay or omission in Lessor's
exercise of any right shall operate as a waiver of any of Lessor's rights. A
waiver on any one occasion shall not bar or waive any right or remedy of Lessor
on any future occasion. No waiver or consent shall be binding upon Lessor unless
it is in writing and signed by Lessor.
No Commitment; Lessor's Right to Terminate Commitments. This Master Equipment
Lease is not a legal commitment to lend and Lessor shall have no obligation to
enter into any Schedule unless (1) Lessor has issued a
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specific commitment for such Schedule, (2) no Event of Default exists with
respect to any agreement or other obligation of Lessee in any capacity to Lessor
or any of its affiliates in any capacity, and (3) none of the following has
occurred: (a) there has been a material adverse change in Lessee's financial
position or credit standing as determined by Lessor in its sole discretion; (b)
the Equipment fails to be delivered and accepted by Lessee before the commitment
expires; (c) Lessee or any Guarantor fails to cause its counsel to deliver on
its behalf any legal opinion requested by the Lessor; (d) Lessee fails to
deliver evidence satisfactory to Lessor that Lessee has obtained and will
maintain in force during the Lease Term all federal, state and local permits,
licenses and approvals necessary for the acquisition, transportation, operation
and maintenance of the Equipment, including without limitation disposal of all
associated wastes and by-products and protection of operators and other persons
in the vicinity of the Equipment; or (e) any other condition specified in the
Schedule has not been fulfilled. Immediately upon Lessor's termination or
rejection of a Schedule or commitment based on this section, Lessee will return,
and reimburse Lessor for all sums disbursed by Lessor with respect to, the
Equipment and proposed Schedule, including without limitation all Lessor's
attorneys' fees and disbursements, whereupon, if Lessee is not in default with
respect to any agreement with Lessor, Lessor will transfer to Lessee without
warranty or recourse any rights Lessor may have with respect to the Equipment.
Miscellaneous. This Lease constitutes the entire agreement between Lessor and
Lessee relating to the Equipment and supersedes all prior dealings. This Lease
may be amended only in a writing signed by both parties. THIS LEASE SHALL BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS PRINCIPLES OF
CONFLICTS OF LAW, AND SHALL BE DEEMED EXECUTED AND PERFORMED IN NEW YORK; and
shall be deemed amended to the extent necessary to comply with any inconsistent
law. If any provision is nevertheless determined to be invalid, the remaining
provisions shall remain in effect. The captions in this Lease are for
convenience only.
Lessee's Waivers. Lessor and Lessee each waive any right to trial by jury in
connection with this Lease. In any action or other legal proceeding relating to
this Lease, Lessee (a) consents to the personal jurisdiction of any state or
federal court located in the State of New York, (b) waives objection to the
laying of venue, (c) waives personal service of process and subpoenas, (d)
consents to the service of process and subpoenas by registered mail directed to
the Lessee's last known address, with such service deemed complete five days
after mailing, (e) waives any right to assert any counterclaim or setoff or any
defense based upon any statute of limitations or any claim of laches, (f) waives
its right to attack any final judgment that is obtained as a direct or indirect
result of any such action and (g) consents to each such final judgment being
sued upon in any court having jurisdiction. LESSEE WAIVES ANY AND ALL RIGHTS AND
REMEDIES CONFERRED BY UCC ARTICLE 2A SECTIONS 508-522, INCLUDING WITHOUT
LIMITATION ANY RIGHTS TO (a) CANCEL OR REPUDIATE THE LEASE, (b) REJECT OR REVOKE
ACCEPTANCE OF THE EQUIPMENT, (c) RECOVER DAMAGES FROM THE LESSOR FOR BREACH OF
WARRANTY OR FOR ANY OTHER REASON, (d) CLAIM A SECURITY INTEREST IN ANY REJECTED
EQUIPMENT IN LESSEE'S POSSESSION OR CONTROL, (e) DEDUCT FROM RENT ALL OR ANY
PART OF ANY CLAIMED DAMAGES RESULTING FROM THE LESSOR'S DEFAULT UNDER THE LEASE,
(f) ACCEPT PARTIAL DELIVERY OF THE EQUIPMENT, (g) RECOVER FROM LESSOR OR
ASSIGNEE ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR ANY
REASON WHATSOEVER, AND (h) SPECIFIC PERFORMANCE, REPLEVIN OR THE LIKE FOR ANY OF
THE EQUIPMENT. Lessee also waives any statutory right it may have now or in the
future to require the Lessor to sell or re-lease the Equipment or otherwise to
mitigate damages.
Early Termination; Interest on Accelerated Payment. Early Termination of any
Schedule by Lessee is permitted only upon payment in full of all amounts due
pursuant to the early termination and stipulated loss value table attached as a
rider to the Equipment Schedule. Interest shall accrue on payments due under
this paragraph from the date of
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termination until payment is actually received by Lessor at the rate of two
percent (2%) per month; provided, however, that Lessor and Lessee do not intend
for Lessee to pay interest in excess of the maximum rate permitted by law. No
partial prepayments are permitted.
Notices. Notices shall be deemed delivered upon deposit in the United States
mail postage prepaid directed to Lessor and Lessee at the addresses set forth
above or in any subsequent written notice to the other party. Lessee shall
immediately notify Lessor and any Assignee of any change in the location of the
Equipment or in Lessee's address, name, management, financial condition or form
of organization.
Application of Payments. Payment shall be applied first to Lessor's costs and
Expenses including without limitation attorney's fees, collection costs and
expenses incurred in performing Lessee's obligations under this Lease, next to
charges and fees such as late charges, and last to other Rent.
LESSEE ACKNOWLEDGES THAT ONLY LESSOR'S ORIGINAL OF EACH EQUIPMENT SCHEDULE
CONSTITUTES CHATTEL PAPER FOR PURPOSES OF THE UNIFORM COMMERCIAL CODE. No
security interest can be perfected by possession of any other counterpart.
Accepted on: April 7, 1998 Date: Xxxxx 0, 0000
XXXXXX: LESSOR:
CVC Products, Inc. M&T Financial Corporation
By /s/ Xxxxxx XxXxxxxxx By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------ ------------------------------
Xxxxxx XxXxxxxxx Xxxxxxx X. Xxxxxxxxx
Senior Vice President / Assistant Vice President
Chief Financial Officer
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EQUIPMENT SCHEDULE
UNDER MASTER EQUIPMENT LEASE AGREEMENT NO. 1
Equipment Schedule Date: April 7, 1998 Equipment Schedule No. 2
------------------------------------------------------------------------------------------------------------
Lessee's Name and Address: County: Monroe Lessor's Name and Address: County: Erie
CVC Products, Inc. M&T Financial Corporation
000 Xxx Xxxx Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Att: Xxxx Xxxxxx Phone: (000) 000-0000 x0000 Att: Counsel's Office Phone: (000) 000-0000
------------------------------------------------------------------------------------------------------------
LESSEE: X Corporation |_| General Partnership |_| Limited Partnership |_| dba
|_| Other ________________ X Org. in Delaware
------------------------------------------------------------------------------------------------------------
QTY. EQUIPMENT DESCRIPTION COST SERIAL NO.
(Manufacturer, Model No., Item)
------------------------------------------------------------------------------------------------------------
See Schedule A attached hereto and made a part hereof $1,210,390.00
------------------------------------------------------------------------------------------------------------
Initial Equipment Location: (if different from above)
000 Xxx Xxxx, Xxxxxxxxx, XX 00000 (Monroe County)
Vendor:
CVC Products, Inc., 000 Xxx Xxxx, Xxxxxxxxx, XX 00000
TERM AND RENTAL PAYMENTS
Term End Date: 1/1/02
Term: 44 months Beginning: 4/7/98 Security Deposit $0 Last Payment: 12/01/01 Rent Commencement Date: 5/1/98
-----------------------------------------------------------------------------------------------------------------------
Payment Number Sales Total Each Lease Advance Rent
Rent Payable and Amounts Tax Payment Rec'd by Lessor
-----------------------------------------------------------------------------------------------------------------------
X Monthly |_| Annually Periodic Rent 44 at $30,136.36 $ 0 $30,136.36 1 at $30,136.36
|_| Quarterly
|_| Semiannually Final Payment $30,136.36 $ 0 $30,136.36 to be applied to First
|_| See Schedule Payment
X Exempt
-----------------------------------------------------------------------------------------------------------------------
Interim Rent: $24,109.09 For period Covering: 4/7/98 To 4/30/98
INSURANCE: Lessee's insurance policy covering the Equipment shall contain
minimum liability limits of $2,000,000 for each person,
$2,000,000 for each occurrence and insure against claims for
property damage in an amount not less than $2,000,000 .
Lease. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the
personal property described above together with all substitutions, replacements,
repairs, upgrades, additions, accessories, products and proceeds (the
"Equipment"), under the terms and conditions set forth here and in the Master
Equipment Lease referenced above and incorporated herein in its entirety. LESSEE
ACKNOWLEDGES THAT ONLY LESSOR'S ORIGINAL OF THIS EQUIPMENT SCHEDULE CONSTITUTES
CHATTEL PAPER FOR PURPOSES OF THE UNIFORM COMMERCIAL CODE, that no security
interest can be created by possession of any other counterpart, and that this
Lease can only be amended in writing. ____ (Lessee initial). THIS IS A
NON-CANCELABLE LEASE.
LESSEE: LESSOR:
CVC Products, Inc. M&T Financial Corporation
By: /s/ Xxxxxx XxXxxxxxx By:
---------------------------- ----------------------------
Xxxxxx XxXxxxxxx Xxxxxxx X. Xxxxxxxxx
Senior Vice President / Banking Officer
Chief Financial Officer
Schedule A
Equipment Description
(1) CX-8 Cluster Tool -- CVC VE Number 68105, including:
2 physical vapor deposition (PVD) modules;
1 central wafer handler, including robotics, controls, etc.;
2 load locks
(1) Orbital Welding System, including:
M207A-HP power Supply Top Assy, serial number 23750;
M9-500 Weld Head Top Assy, serial number 24078
(1) Pick up Assembly Processing Board, including:
Model 109LS Hysteresis Loop Tracer;
Option 109-665 Pickup Assembly;
Option 109-11 Pickup Assembly;
Option 109-36-7/32 Pickup Assembly;
Option DSP-1 Signal Processing Board;
Option LCD-1 Liquid Crystal Display
(2) Pulsed DC Generator
serial numbers Xxxx-000, Xxxx-000
(1) Dry Mechanical Backing Pump
MTFCo
EARLY TERMINATION RIDER
to
EQUIPMENT SCHEDULE No. 2 ("SCHEDULE")
Dated April 7, 1998
to
MASTER EQUIPMENT LEASE AGREEMENT
Dated April 7, 1998 ("LEASE")
between
M&T Financial Corporation ("LESSOR")
and
CVC Products, Inc. ("LESSEE")
(I) During the term of the Lease the Lessee shall, provided there exists no
event(s) of default, have the right to purchase all but not less than all of the
scheduled equipment then under lease ("Early Termination Option") for a price
equal to the predetermined Fair Market Value as determined by the attached
Stipulated Loss Table ("Option Price"). Upon Lessee's exercise of the Early
Termination Option, Lessor shall convey to Lessee, all of Lessor's right, title
and interest in and to the Equipment on an "as-is, where-is" basis, without
recourse or warranty except against any liens placed on the Equipment by Lessor.
The Lessee may exercise the Early Termination Option upon written notice to
Lessor given not less than ninety (90) days nor more than one hundred eighty
(180) days prior to the Early Termination Date. Such notice shall be
irrevocable. Upon Lessee's exercise of the Early Termination Option, Lessee
shall pay to Lessor all due but unpaid rent under the Equipment Schedule
together with the Option Price.
In the event that the Early Termination Option is not exercised by the Lessee in
accordance with this Rider, all of Lessee's obligations under the Equipment
Schedule will continue unaffected.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS RIDER THIS 7th DAY OF APRIL
1998.
LESSEE: LESSOR:
CVC Products, Inc. M&T Financial Corporation
By: /s/ Xxxxxx XxXxxxxxx By:
---------------------------- ----------------------------
Xxxxxx XxXxxxxxx Xxxxxxx X. Xxxxxxxxx
Senior Vice President / CFO Assistant Vice President
Stipulated Loss Schedule
Lessee: CVC Products (Schedule #2)
Percent
Per Date Amount of Cost
--------------------------------------------------
1 5/1/98 1,222,279.40 100.98
2 6/1/98 1,202,434.98 99.34
3 7/1/98 1,182,378.32 97.69
4 8/1/98 1,162,129.01 96.01
5 9/1/98 1,141,665.33 94.32
6 10/1/98 1,120,986.15 92.61
7 11/1/98 1,100,111.07 90.89
8 12/1/98 1,079,018.32 89.15
9 1/1/99 1,057,706.77 87.39
10 2/1/99 1,036,195.99 85.61
11 3/1/99 1,014,464.21 83.81
12 4/1/99 992,510.27 82.00
13 5/1/99 970,309.99 80.17
14 6/1/99 947,885.08 78.31
15 7/1/99 925,234.38 76.44
16 8/1/99 902,333.67 74.55
17 9/1/99 879,204.66 72.64
18 10/1/99 855,846.16 70.71
19 11/1/99 832,233.93 68.76
20 12/1/99 808,389.66 66.79
21 1/1/00 784,312.15 64.80
22 2/1/00 759,977.13 62.79
23 3/1/00 735,406.29 60.76
24 4/1/00 710,598.38 58.71
25 5/1/00 685,667.98 56.65
26 6/1/00 660,498.63 54.57
27 7/1/00 635,089.07 52.47
28 8/1/00 609,553.87 50.36
29 9/1/00 583,776.53 48.23
30 10/1/00 557,755.79 46.08
31 11/1/00 531,606.20 43.92
32 12/1/00 505,211.25 41.74
33 1/1/01 478,569.66 39.54
34 2/1/01 451,795.95 37.33
35 3/1/01 424,773.61 35.09
36 4/1/01 397,501.33 32.84
37 5/1/01 370,176.93 30.58
38 6/1/01 342,601.01 28.31
39 7/1/01 314,772.23 26.01
40 8/1/01 286,888.43 23.70
41 9/1/01 258,750.16 21.38
42 10/1/01 230,356.08 19.03
43 11/1/01 201,904.01 16.68
44 12/1/01 173,194.48 14.31
45 1/1/02 144,226.15 11.92
MTFCo
PURCHASE OPTION RIDER
to
EQUIPMENT SCHEDULE NO. 2 ("SCHEDULE")
Dated April 7, 1998
to
MASTER EQUIPMENT LEASE AGREEMENT
Dated as of April 7, 1998 ("LEASE")
between
M&T Financial Corporation ("LESSOR")
and
CVC Products, Inc. ("LESSEE")
The paragraph in the Lease entitled Purchase Option is hereby amended as
follows:
Subject to the satisfaction of the conditions set forth below, the Lessee
shall, on the Initial Term Expiration Date, have the option to:
(1) Purchase all, but not less than all, of the Equipment under
lease for a price equal to its Fair Market Value as determined by
the Stipulated Loss Table (the "Purchase Price").
(a) Lessee's right to exercise the Purchase Option shall be
subject to the satisfaction of the following conditions
precedent: (1) No Default or Event of Default shall have
occurred and be continuing; (2) Lessee shall have given
written notice to Lessor of Lessee's desire to exercise the
Purchase Option not less than ninety (90) days nor more than
one hundred eighty (180) days prior to the Initial Term
Expiration Date; and (3) Lessor shall have received Lessee's
payment of the Purchase Price (plus any taxes) prior to the
Initial Term Expiration Date.
(b) If Lessee exercises the Purchase Option in accordance with
the terms and conditions hereof, then at the expiration of the
Initial Term, Lessee shall tender the Purchase Price in
immediately available funds and Lessor shall deliver a xxxx of
sale transferring to Lessee all Lessor's right, title and
interest in the Equipment: IT BEING EXPRESSLY UNDERSTOOD THAT
SUCH TRANSFER IS "AS IS, WHERE IS", WITHOUT ANY WARRANTIES,
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING
WITHOUT LIMITATION, THE CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, AND
LESSOR EXPRESSLY DISCLAIMS THE SAME.
(2) Return the equipment to the Lessor without further obligation to
a location of the Lessor's choosing in the United States.
(3) Renew the Lease at its fair market rental rate as determined by
Lessor.
Except as specifically amended hereby, all of the terms and conditions set forth
in the Schedule and Lease are unaffected and remain in full force and effect.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS RIDER THIS 7th DAY OF April,
1998.
LESSEE: LESSOR:
CVC Products, Inc. M&T Financial Corporation
s
By: /s/ Xxxxxx XxXxxxxxx By:
----------------------------- -----------------------------
Xxxxxx XxXxxxxxx Xxxxxxx X. Xxxxxxxxx
Senior Vice President / CFO Assistant Vice President
2
Stipulated Loss Schedule
Lessee: CVC Products (Schedule #2)
Percent
Per Date Amount of Cost
--------------------------------------------------
1 5/1/98 1,222,279.40 100.98
2 6/1/98 1,202,434.98 99.34
3 7/1/98 1,182,378.32 97.69
4 8/1/98 1,162,129.01 96.01
5 9/1/98 1,141,665.33 94.32
6 10/1/98 1,120,986.15 92.61
7 11/1/98 1,100,111.07 90.89
8 12/1/98 1,079,018.32 89.15
9 1/1/99 1,057,706.77 87.39
10 2/1/99 1,036,195.99 85.61
11 3/1/99 1,014,464.21 83.81
12 4/1/99 992,510.27 82.00
13 5/1/99 970,309.99 80.17
14 6/1/99 947,885.08 78.31
15 7/1/99 925,234.38 76.44
16 8/1/99 902,333.67 74.55
17 9/1/99 879,204.66 72.64
18 10/1/99 855,846.16 70.71
19 11/1/99 832,233.93 68.76
20 12/1/99 808,389.66 66.79
21 1/1/00 784,312.15 64.80
22 2/1/00 759,977.13 62.79
23 3/1/00 735,406.29 60.76
24 4/1/00 710,598.38 58.71
25 5/1/00 685,667.98 56.65
26 6/1/00 660,498.63 54.57
27 7/1/00 635,089.07 52.47
28 8/1/00 609,553.87 50.36
29 9/1/00 583,776.53 48.23
30 10/1/00 557,755.79 46.08
31 11/1/00 531,606.20 43.92
32 12/1/00 505,211.25 41.74
33 1/1/01 478,569.66 39.54
34 2/1/01 451,795.95 37.33
35 3/1/01 424,773.61 35.09
36 4/1/01 397,501.33 32.84
37 5/1/01 370,176.93 30.58
38 6/1/01 342,601.01 28.31
39 7/1/01 314,772.23 26.01
40 8/1/01 286,888.43 23.70
41 9/1/01 258,750.16 21.38
42 10/1/01 230,356.08 19.03
43 11/1/01 201,904.01 16.68
44 12/1/01 173,194.48 14.31
45 1/1/02 144,226.15 11.92
CERTIFICATE OF ACCEPTANCE
to
EQUIPMENT SCHEDULE NO. 2, Dated April 7, 1998,
to
MASTER EQUIPMENT LEASE AGREEMENT, Dated April 7, 1998
(the "Lease")
--------------------------------------------------------------------------------------------------------------------
Leesee's Name and Address: County: Monroe Lessor's Name and Address: County: Erie
CVC Products, Inc. M&T Financial Corporation
000 Xxx Xxxx Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx Phone: (000) 000-0000 x0000 Attn: Counsel's Office Phone: (000) 000-0000
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
QTY EQUIPMENT DESCRIPTION (Manufacturer, Model No., Serial No., Item)
--------------------------------------------------------------------------------
See Schedule A attached hereto and made a part hereof
--------------------------------------------------------------------------------
Initial Equipment Location (if different from Leesee's address above):
000 Xxx Xxxx, Xxxxxxxxx, XX 00000 (Monroe County)
Vendor:
CVC Products, 000 Xxx Xxxx, Xxxxxxxxx, XX 00000
Lessee hereby certifies that as of this date the Equipment described above has
been delivered to and accepted by Lessee after complete inspection and testing,
is correctly described in the Lease (with the exception of serial numbers which
if omitted now may be supplied by Lessee in the future by telephone and inserted
in the description by Lessor or Assignee), is in good working order, and is
satisfactory to Lessee in all respects. Lessee reaffirms that Lessee selected
the Equipment based upon its specifications and that Lessee's obligation to pay
all amounts due and to become due and perform all other obligations under the
Lease is absolute and that any recourse Lessee might have in case of any
nonperformance, unsuitability or other failure of the Equipment shall lie with
the manufacturer or vendor and in no case with Lessor or Assignee.
Date: Xxxxx 0, 0000
XXXXXX:
CVC Products, Inc.
By: /s/ Xxxxxx XxXxxxxxx
-----------------------------------------------
Xxxxxx XxXxxxxxx
Senior Vice President / Chief Financial Officer
(If Corporation, President or Vice President should
sign and give official title; if Partnership,
General Partner; if LLC, Manager)
Schedule A
Equipment Description
(1) CX-8 Cluster Tool -- CVC VE Number 68105, including:
2 physical vapor deposition (PVD) modules;
1 central wafer handler, including robotics, controls, etc.;
2 load locks
(1) Orbital Welding System, including:
M207A-HP power Supply Top Assy, serial number 23750;
M9-500 Weld Head Top Assy, serial number 24078
(1) Pick up Assembly Processing Board, including:
Model 109LS Hysteresis Loop Tracer;
Option 109-665 Pickup Assembly;
Option 109-11 Pickup Assembly;
Option 109-36-7/32 Pickup Assembly;
Option DSP-1 Signal Processing Board;
Option LCD-1 Liquid Crystal Display
(2) Pulsed DC Generator
serial numbers Xxxx-000, Xxxx-000
(1) Dry Mechanical Backing Pump
XXXX OF SALE
TO
M&T FINANCIAL CORPORATION
KNOW ALL MEN BY THESE PRESENTS THAT: CVC Products, Inc., a Delaware
corporation with its chief executive office at 000 Xxx Xxxx, Xxxxxxxxx, XX 00000
(herein called the "Seller"), for and in consideration of the sum of One Dollar
($1) and other good and valuable consideration, receipt of which is hereby
acknowledged, does hereby grant, bargain, sell, assign, transfer, and set over
unto M&T Financial Corporation, a New York corporation (herein called the
"Buyer"), its successors and assigns, all right, title, and interest of the
Seller in and to the personal property described below (and, if any additional
page is annexed hereby as Schedule A, listed and described in said Schedule A)
together with all parts and accessories attached hereto (all such personal
property, parts, and accessories being herein collectively called the
"Equipment"), TO HAVE AND TO HOLD for its and their own use and benefit forever.
QUANTITY MANUFACTURER/MODEL DESCRIPTION SERIAL NO.
-------- ------------------ ----------- ----------
See Schedule A attached hereto and made a part hereof.
The Seller hereby represents and warrants to the Buyer, its successors and
assigns: (I) that the Seller has full legal and beneficial title to the
Equipment and the good and lawful right to sell the same; and (ii) that good and
marketable title to the Equipment is hereby duly vested in the Buyer free and
clear of all claims, liens, encumbrances, and rights of others of any nature.
The Seller hereby covenants and agrees to defend such title forever against all
claims and demands whatsoever.
IN WITNESS WHEREOF, the Seller has caused this Xxxx of Sale to be executed
and delivered by its duly authorized officer this 7th day of April 1998.
SELLER:
CVC Products, Inc.
By: /s/ Xxxxxx XxXxxxxxx
-------------------------------------
Xxxxxx XxXxxxxxx
Senior Vice President / CFO
Schedule A
Equipment Description
(1) Orbital Welding System, including:
M207A-HP power Supply Top Assy, serial number 23750;
M9-500 Weld Head Top Assy, serial number 24078
(1) Pick up Assembly Processing Board, including:
Model 109LS Hysteresis Loop Tracer;
Option 109-665 Pickup Assembly;
Option 109-11 Pickup Assembly;
Option 109-36-7/32 Pickup Assembly;
Option DSP-1 Signal Processing Board;
Option LCD-1 Liquid Crystal Display
(2) Pulsed DC Generator
serial numbers Xxxx-000, Xxxx-000
(1) Dry Mechanical Backing Pump
MTFCo
CERTIFICATE OF SECRETARY
OF
LESSEE
I, Xxxxxxxxx Xxxxxxx, President of CVC Products, Inc. (the "Company"), a
Delaware corporation, do CERTIFY in connection with Equipment Schedule No. 2
dated as of April 7, 1998 to Master Equipment Lease Agreement dated as of April
7, 1998 between M&T Financial Corporation (the "Lessor") and the Company as
lessee (the "Lease") as follows:
1. The Company's execution, delivery and performance of the Lease, the
Equipment Schedule, the Delivery and Acceptance Certificate and all
other collateral instruments and documents related to this
transaction (collectively, the "Documents") have been duly
authorized by all necessary corporate action on the part of the
Company, as evidenced by the copies of the resolution attached
hereto, and the Documents will be duly and validly executed if
executed by one of the persons whose name appears in Section 2
below;
2. The following persons are the duly elected or appointed, qualified
and acting officers of the Company holding the offices set forth
opposite their respective names below, and the signatures appearing
opposite their respective names below are the genuine signatures of
such persons:
Name Office Signature
Xxxxxx XxXxxxxxx Xx Vice President / CFO /s/ Xxxxxx XxXxxxxxx
________________________ ________________________ ______________________
________________________ ________________________ ______________________
IN WITNESS WHEREOF, I have executed this Certificate this 7th day of April
1998.
By: /s/ Xxxxxxxxx Xxxxxxx
-------------------------------------
Xxxxxxxxx Xxxxxxx
President / CEO
MTFCo
EXHIBIT TO CERTIFICATE OF SECRETARY TO LESSEE
RESOLUTION
On motion of ____________________________________________, seconded by
_____________________________________________, the following Resolutions were
adopted by a duly constituted quorum of the Board of Directors [______________]
of CVC Products, Inc. (the "Company") present at a meeting duly called and held,
or by unanimous written consent, on _____________________, 199_.
WHEREAS, this Board has determined that in order for the Company to better
accomplish its corporate purposes, the Company needs to acquire the use of
the Equipment described on the Schedule attached hereto, and
WHEREAS, the Company has determined that the most economical and efficient
means of acquiring the use of said Equipment is pursuant to a lease
financing of the Equipment;
NOW, THEREFORE, be it
RESOLVED, that the Company is hereby authorized to enter into a Master
Equipment Lease Agreement between M&T Financial Corporation and/or M&T
Bank as Lessor and the Company as Lessee together with any appropriate
equipment schedules, all exhibits, tables, riders and amendments related
thereto, substantially in the form annexed hereto; and it is further
RESOLVED, that in furtherance of the accomplishment of the Lease, the Sr
Vice President / CFO, is hereby authorized to consult with and authorize
the appropriate officers of the Company to select and designate the
particular Equipment to be leased by the Company and the particular source
of financing the Equipment; and be it further
RESOLVED, that in furtherance of the Lease, the Sr Vice President / CFO,
is hereby authorized to execute and deliver on behalf of the Company such
agreements, indemnities, purchase orders, guarantees of performance or
payment or otherwise, leases, bills of sale, certificates or other
instruments or obligations as they or any one of them may deem necessary
or appropriate to the accomplishment of the Lease, and the execution and
delivery of any such agreement, instrument or obligation prior to the date
hereof by any such officer is in all respects hereby confirmed, ratified
and approved; and be it further
RESOLVED, that all officers of the Company are authorized and directed to
do or cause to be done all such other acts and things, to make all
payments, including rent payments, required pursuant to the Lease and
related documents, and to execute all such documents, certificates and
instruments as in his, her or their judgement may be necessary or
advisable in order to carry out the foregoing Resolutions and the
Company's obligations under the Lease, or any revised and supplemental
lease; and all actions heretofore taken by the officers of the Company in
connection with the subject of these Resolutions are hereby approved,
ratified and confirmed in all respects.
EXHIBIT D
RESOLUTIONS
OF THE
BOARD OF DIRECTORS
OF
CVC, INC.
RESOLVED, that the form, terms and provisions of the proposed term loan
and credit facility agreement (the "Credit Agreement"), between CVC, Inc. (the
"Corporation"), CVC Products, Inc. (the "Subsidiary") and Manufacturers and
Traders Trust Company (the "Lender) substantially on the terms that have been
submitted to the directors of the Corporation, pursuant to which, among other
things, the Lender will make to the Subsidiary and/or the Corporation term loans
in amounts up to an aggregate of $8,000,000 and revolving loans in amounts up to
an aggregate of $10,000,000 (based on borrowing base availability), will make
available a $2 million capital equipment term loan and lease line and will
provide other credit accommodations, all upon the terms set forth therein and in
the exhibits thereto, and all transactions referred to therein, be, and the same
hereby are, in all respects authorized and approved.
RESOLVED, that an Authorized Officer of the Corporation and/or the
Subsidiary be, and each hereby is, authorized and empowered, in the name and on
behalf of the Corporation and/or the Subsidiary, to execute and deliver to the
Lender the Credit Agreement and each exhibit thereto of which the Corporation
and/or the Subsidiary shall be a signatory, and any and all other agreements,
certificates, or other documents which may be described in the Credit Agreement
or necessary or required by the Lender, with such change or changes therein as
the Authorized Officer or Officers executing the same may approve, the execution
thereof, with such change or changes, to be conclusive evidence of such
approval.
RESOLVED, that, in connection with the loan and accommodations to be made
by the Lender to the Subsidiary, the form, terms and provisions of the Term and
Revolving Notes (the "Notes") and the equipment lease documents, be, and, the
same hereby are, in all respects authorized and approved.
RESOLVED, that an Authorized Officer or Officers of the Corporation and/or
the Subsidiary be, and each hereby is, authorized and empowered, in the name and
on behalf of the Corporation and/or the Subsidiary, to execute and deliver to
the Lender, upon receipt of funds evidenced thereby, the Notes and the lease
documents, with such change or changes therein as the Authorized Officer or
Officers executing the same may approve, the execution thereof, with such change
or changes, to be conclusive evidence of such approval.
RESOLVED, that the Corporation and/or the Subsidiary be, and hereby are,
authorized (i) to borrow such amounts and to sell and lease back from the Lender
such
D-2
equipment in such amounts as an Authorized Officer of the Corporation and/or the
Subsidiary may deem appropriate, to be evidenced by appropriate Notes and the
lease documents, (ii) to each guaranty the indebtedness of the other to the
Lender on terms acceptable to the Lender as evidenced by agreements and
guarantees requested by the Lender, (iii) to grant security interests to the
Lender in any and all assets of the Corporation and the Subsidiary, and (iv) to
pay any and all fees and associated expenses; and the same (including all
documents evidencing same) hereby are, authorized and approved.
RESOLVED, that the agreements, instruments, notes and documents heretofore
entered into by the Corporation and/or the Subsidiary with the Lender are hereby
ratified and affirmed;
RESOLVED, that, in connection with loans to be made by the Lender to the
Subsidiary, an Authorized Officer of the Corporation and/or the Subsidiary be,
and hereby is, authorized and empowered to open and maintain such bank accounts
at such bank or banks as the Lender may request, and that any resolutions
furnished by such banks for such purposes be deemed adopted as and for the
resolutions of the Board of Directors with the same force and effect as if fully
set forth herein.
RESOLVED, that the President and Senior Vice President of the Corporation
and the Subsidiary, and any person duly authorized to act in such capacity be,
and each of them hereby is, designated an "Authorized Officer" for purposes of
these resolutions, the Credit Agreement, the Notes, the lease documents and any
other documents and instruments necessary, proper or convenient to implement or
accomplish the transactions involved in, or related to, any thereof.
RESOLVED, that the Authorized Officers of the Corporation and/or the
Subsidiary be, and each of them hereby is, authorized and empowered, in the
name and on behalf of the Corporation and/or the Subsidiary, to execute and
deliver such certificates, documents, agreements and instruments containing in
each case such terms and conditions, and to take such other action, as any such
officer, in his or her sole discretion, shall deem necessary or appropriate
fully to effectuate and to carry out the purposes and intent of the foregoing
resolutions, the execution or delivery of any of same or the taking of any such
action to be conclusive evidence of the necessity or appropriateness thereof.
D-3
MTFCo
PAY PROCEEDS LETTER
Date: April 7, 1998
M&T Financial Corporation
Manufacturers and Traders Trust Company (M&T Bank)
Xxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Equipment Leasing
Re: Equipment Schedule No. 2 between CVC Products, Inc. (Lessee) and M&T
Financial Corporation as (Lessor) (the "Lease).
You are hereby authorized to disburse funds to purchase the Equipment for the
above Lease as directed below. We understand that under Uniform Commercial Code
Article 4A M&T Bank and all other banks handling funds transfers are entitled to
rely on the bank number and account number we provide without reference to names
or account titles, and that you have no duty to discover any discrepancies. We
have taken appropriate care to verify our instructions to you, and you will not
be liable for any loss that, may result from our error in these instructions. We
also agree to the provisions on the reverse.
================================================================================
1. Payee: M&T Financial Corporation Ein # _______________
Amount: $1,210,390.00
Ref: payoff of Schedule 1
|_| Deposit to M&T Bank
Account No. _________________________
|_| Check _________________________
|_| Funds Transfer to:
Account No. _________________________
Account Name: _________________________ Bank R/T No __________
Bank Name: _________________________ Telephone: ___________
================================================================================
2. Payee: _________________________ Ein # _______________
Amount: _________________________
Ref: _________________________
|_| Deposit to M&T Bank
Account No. _________________________
|_| Check _________________________
|_| Funds Transfer to:
Account No. _________________________
Account Name: _________________________ Bank R/T No __________
Bank Name: _________________________ Telephone: ___________
================================================================================
Agreed:
LESSEE:
CVC Products, Inc.
By: /s/ Xxxxxx XxXxxxxxx
--------------------------------------------
Xxxxxx XxXxxxxxx
Senior Vice President / Chief Financial Officer
MTFCo
FUNDS TRANSFER AGREEMENT
SINGLE PAYMENT ORDER
To induce Lessor to execute the funds transfer payment order on the front of
this form, Lessee makes the following waivers and agrees to the following terms
and conditions.
1. Waiver of Lessor's Security Procedures. Lessee hereby rejects and
waives the protection of the Lessor's customary funds transfer
security procedures, and agrees that a request for personal
identification in a procedure including signature comparison shall
be deemed a commercially reasonable security procedure for purposes
of Article 4A of the Uniform Commercial Code.
2. Authorization. Lessee shall supply Lessor with all information that
Lessor requests including, but not limited to, money amounts;
beneficiary's account number, name and Lessor; value date;
supplemental instructions; and further evidence of the authority of
any of Lessee's authorized representatives to issue Payment Orders
or to do any other act contemplated under this Agreement. For
Lessee's protection, Lessor may reject any Payment Order if Lessor
is unable to obtain satisfactory verification of the Order or its
due authorization. If Lessee is an entity, the person signing this
agreement certifies that he or she is duly authorized to execute
such transaction on behalf of Lessee; and acknowledges that any
false statement will render him or her personally liable for
monetary damages as well as criminal penalties including substantial
fines and imprisonment under federal and state law.
3. Account Number Controls. Lessee ACKNOWLEDGES RECEIPT OF NOTICE THAT
M&T Lessor, ALL INTERMEDIARY LessorS AND BENEFICIARY'S Lessor ARE
ENTITLED TO RELY ON THE BENEFICIARY'S ACCOUNT NUMBER AND ANY Lessor
IDENTIFYING NUMBER AS STATED IN THE PAYMENT ORDER AS RECEIVED EVEN
IF THE NUMBER AND NAME GIVEN FOR THE BENEFICIARY REFER TO DIFFERENT
PERSONS OR LessorS. Lessee IS WARNED TO VERIFY ALL ACCOUNT NUMBERS
AND Lessor NUMBERS WITH EXTRAORDINARY CARE.
4. Risk of Clear Text. Lessee understands that all Payment Orders are
transmitted in Clear Text and Lessee assumes full responsibility for
all such Payment Orders executed by Lessor at Lessee's request.
5. Standard of Care. Lessee agrees Lessor has no responsibility beyond
executing the transaction requested with ordinary care, subject to
this Agreement. Lessor shall be conclusively deemed to have
exercised ordinary care if Lessor has followed procedures customary
in the industry or if Lessee has not followed such procedures.
6. Cancellation. Lessee shall have no right to amend a Payment Order or
to cancel it after Lessor has begun processing it. In case of Lessee
error, Lessor has no obligation but reserves the right to attempt to
assist Lessee to recover its funds.
7. Limited to Available Funds. A Payment Order is debited to Lessee's
designated account when it is executed by Lessor. Lessee agrees that
its Payment Orders shall not exceed the available balance in
Lessee's account on the execution date. If Lessee's account does not
contain sufficient available funds on that date, Lessor may reject
any or all of Lessee's Payment Orders for that date, charge any of
Lessee's other accounts with Lessor, or execute any one or more
Payment Orders on that date; and Lessor shall not be liable for any
damages (including without limitation special or consequential
damages) Lessee suffers as a result of such rejections. If Lessor
does in its discretion execute a Payment Order which results in an
overdraft in Lessee's account, Lessor shall be entitled to charge
and Lessee shall be obligated to pay interest on such overdraft.
Lessee's account will be liable for statutory overdraft charges
whether or not the overdraft Payment Order is executed.
8. Expenses. Lessee agrees to pay Lessor's customary funds transfer
fees as in effect from time to time and to reimburse Lessor for any
out-of-pocket expenses incurred by Lessor. Such fees and expenses
shall be paid in cash immediately on demand or by Lessor's debiting
Lessee's account(s) at Lessor.
9. Notice of Errors. Lessee shall promptly review the transfer
confirmation or advice mailed to Lessee by Lessor after each
transfer and notify Lessor of any discrepancy in writing as soon as
possible and in any event within 60 calendar days of the transfer.
Lessee shall also promptly review and reconcile its periodic
statements of account provided by Lessor and report any
discrepancies to Lessor in writing within 60 calendar days after the
statement date. Lessee expressly agrees that its failure to so
report any such discrepancies shall relieve Lessor of any liability
for interest on any refund to which Lessee may be entitled with
respect to such unreported discrepancies. Statements and advices
shall be deemed received 5 days after mailing.
10. Disclosure of Information. Lessee acknowledges that Lessor may be or
become required by federal regulation to report or make information
available concerning all or some classes of funds transfers.
11. Force Majeure. Lessee agrees that Lessor is not liable for any
error, interruption, delay, or failure in transmission occasioned by
any circumstances beyond Lessor's control including but not limited
to discrepancies or ambiguity in any Payment Order, funds transfer
system unavailability, weather, failure of power, other utilities or
communication media, strikes, industrial sabotage, war, governmental
interference, and error, delay, insolvency or unavailability of
other receiving, intermediary or beneficiary Lessors.
12. Indemnity. Lessee agrees to hold Lessor harmless and indemnify
Lessor for any and all claims, liabilities, demands, costs, expenses
(including but not limited to attorneys' fees and disbursements),
losses or damages of any nature whatsoever arising directly or
indirectly from any Payment Order executed pursuant to this
Agreement except for liability to Lessee caused by gross negligence
or willful misconduct of Lessor. In no event shall Lessor be liable
for any consequential or special damages.
13. Governing Law. This Agreement shall be governed by the internal laws
of New York State (including without limitation Article 4A of the
Uniform Commercial Code) and by applicable federal law and
regulations.
All notices to Lessor shall be directed to the Manager, Commercial Loan
Operations, 3rd Floor, Manufacturers and Traders Trust Company, Xxx Xxxxxxxx
Xxxxx, Xxxxxxx, Xxx Xxxx 00000; all notices to Lessee shall be directed to
Lessee at the most recent address listed in the records of Lessor.
New York State Department of Taxation and Finance ST-121 (4/93)
--------------------------------
[LOGO] To Purchasers and Vendors:
Before issuing or accepting this
certificate read instructions on
the back carefully.
--------------------------------
New York State and Local Sales and Use Tax
Exempt Use Certificate
--------------------------------------------------------------------------------
Name of vendor Name of purchaser
M&T Financial Corporation CVC Products, Inc.
--------------------------------------------------------------------------------
Xxxxxx xxxxxxx Xxxxxx address
Xxx Xxxxxxxx Xxxxx 000 Xxx Xx.
--------------------------------------------------------------------------------
City State ZIP code City State ZIP code
Xxxxxxx XX 00000 Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
1 I have been issued a New York State Certificate of Authority,
# 00-0000000 to collect
---------------------------------------------------,
(Enter your sales tax vendor identification number)
New York State and local sales and compensating use tax, and this
certificate has not expired or been suspended or revoked.
2 The purchase I am making is exempt from the state or state and local sales
and use taxes because the property or the services will be used for the
exempt purpose indicated below.
================================================================================
Part I -- Promotional Materials Single purchase certificate only
of promotional materials that will be distributed to customers or
--- prospective customers located outside New York State for use outside the
% state. (The percentage must be filled in for this certificate to be
--- valid.) Only these promotional materials are exempt from all state and
local sales and use taxes.
================================================================================
================================================================================
Check one: |_| Single purchase certificate |_| Blanket certificate
This form cannot be used to purchase motor fuel or diesel motor fuel exempt from
sales tax or to relieve a vendor of the liability for the lubricating oil tax or
beverage container tax.
Part II -- Manufacturing Exemptions
|_| (a) Machinery and equipment, including parts with a useful life of more
than a year when purchased for use or consumption directly and
predominantly in the production of tangible personal property, gas,
electricity, refrigeration or steam for sale, or telephone central
office equipment or station apparatus or comparable telegraph
equipment used directly and predominantly to receive or initiate and
switch telephone or telegraph communication. Paragraph (a) purchases
are exempt from all state and local sales and use taxes.
|_| (b) Parts with a useful life of one year or less, tools or supplies used
directly and predominantly in production or used directly and
predominantly in or on the telephone or telegraph equipment or
apparatus described in paragraph (a) of this part, or:
Purchases of (check one or more boxes): |_| Fuel |_| Gas
|_| Electricity |_| Refrigeration |_| Steam
for use or consumption directly and exclusively in the production of
tangible personal property, gas, electricity, refrigeration or steam
for sale.
Paragraph (b) purchases are exempt from all state and local taxes
when delivered outside New York City and subject to New York City
local sales or use tax when delivered or used in New York City.
|_| (c) Installing, repairing, maintaining or servicing of the following are
exempt from state tax, but are subject to the New York City taxes
and all other local sales and use taxes:
-- machinery or equipment used directly and predominantly in
production;
-- telephone or telegraph central office equipment or station
apparatus used directly and predominantly to receive or
initiate and switch telephone or telegraph communication;
-- parts, tools or supplies described in paragraph (b) of this
part.
Part III -- Other exemptions -- exempt from all sales and use taxes
|_| (d) Tangible personal property for use or consumption directly and
predominantly in research and development in the experimental or
laboratory sense.
|_| (e) Cartons, containers, and other wrapping and packaging materials and
supplies, for use by a vendor to package tangible personal property
for sale and actually transferred to the purchaser of the property.
|_| (f) Purchases of (check one or more boxes): |_| Gas |_| Electricity
|_| Refrigeration |_| Steam
for use or consumption directly and exclusively in research and
development in the experimental or laboratory sense.
|_| (g) Other (describe exempt use and identify the section of the Tax Law
covering this exemption.)
____________________________________________________________________
____________________________________________________________________
================================================================================
Substantial penalties will result from misuse of this certificate
(see back of this form).
--------------------------------------------------------------------------------
Signature of owner,
partner, officer of
purchasing corporation, etc. Print name and give title Date
/s/ Xxxxxx X. XxXxxxxxx Xxxxxx X. XxXxxxxxx 5/28/98
--------------------------------------------------------------------------------
Uniform Commercial Code - FINANCING STATE - Form UCC-1
This FINANCING STATEMENT is presented to a Filing Officer for the filing
pursuant to the Uniform Commercial Code.
No. Of Additional Sheets Presented:
----------------------------------------------- ----------------------------
1. Debtor(s) (Last Name First) and Address(es): 4. For Filing Officer: Date,
Time, No. Filing Office
CVC Products, Inc.
000 Xxx Xxxx
Xxxxxxxxx, XX 00000 ----------------------------
----------------------------------------------
2. Secured Party(ies) Name(s) and Address(es)
M&T Financial Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
5. This Financing Statement covers the following types (or items) of property:
See Schedule A attached hereto and made a part hereof
--------------------------------------------------------------------------------
7. |_| The described crops are growing or to be grown on:*
|_| The described goods are or are to be affixed to:*
*(Describe Real Estate Below)
--------------------------------------------------------------------------------
8. Describe Real Estate Here: |_| This statement is to be indexed in the Real
Estate Records:
No. & Street Town or City County
--------------------------------------------------------------------------------
9. Name of a Record Owner
--------------------------------------------------------------------------------
10. |_| This statement is filed without the debtor's signature to perfect a
security interest in collateral under a security agreement signed by
debtor authorizing secured party to file this statement.
CVC Products, Inc. M&T Financial Corporation
---------------------------------- ----------------------------------
By /s/ Xxxxxx XxXxxxxxx By _______________________________
-------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies)
================================================================================
For Bank Use Only
Borrower:
Obligor #: _________________________
Filing Jurisdiction: New York State REF #:
================================================================================
UCC-1 (1-97) File Copy-Secured Party
PLEASE RETURN COPY TO:
M&T BANK
X.X. XXX 0000
XXXXXXX, XXX XXXX 00000
Schedule A
Equipment Description
(1) CX-8 Cluster Tool -- CVC VE Number 68105, including:
2 physical vapor deposition (PVD) modules;
1 central wafer handler, including robotics, controls, etc.;
2 load locks
(1) Orbital Welding System, including:
M207A-HP power Supply Top Assy, serial number 23750;
M9-500 Weld Head Top Assy, serial number 24078
(1) Pick up Assembly Processing Board, including:
Model 109LS Hysteresis Loop Tracer;
Option 109-665 Pickup Assembly;
Option 109-11 Pickup Assembly;
Option 109-36-7/32 Pickup Assembly;
Option DSP-1 Signal Processing Board;
Option LCD-1 Liquid Crystal Display
(2) Pulsed DC Generator
serial numbers Xxxx-000, Xxxx-000
(1) Dry Mechanical Backing Pump
Including all replacements, parts, substitutions, modifications, accessories,
additions, attachments, accessions and tools of Debtor now or hereafter
installed therein, affixed thereto or used or intended to be used in connection
therewith
EQUIPMENT SCHEDULE
UNDER MASTER EQUIPMENT LEASE AGREEMENT NO. 1
Equipment Schedule Date: April 7, 1998 Equipment Schedule No. 3
------------------------------------------------------------------------------------------------------------
Lessee's Name and Address: County: Monroe Lessor's Name and Address: County: Erie
CVC Products, Inc. M&T Financial Corporation
000 Xxx Xxxx Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Att: Xxxx Xxxxxx Phone: (000) 000-0000 x0000 Att: Counsel's Office Phone: (000) 000-0000
------------------------------------------------------------------------------------------------------------
LESSEE: X Corporation |_| General Partnership |_| Limited Partnership |_| dba
|_| Other ________________ X Org. in Delaware
------------------------------------------------------------------------------------------------------------
QTY. EQUIPMENT DESCRIPTION COST SERIAL NO.
(Manufacturer, Model No., Item)
------------------------------------------------------------------------------------------------------------
See Schedule A attached hereto and made a part hereof $833,256.00
------------------------------------------------------------------------------------------------------------
Initial Equipment Location: (if different from above)
0000 Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000 (Alameda County)
Vendor:
CVC Products, Inc., 000 Xxx Xxxx, Xxxxxxxxx, XX 00000
TERM AND RENTAL PAYMENTS
Term End Date: 1/1/02
Term: 44 months Beginning: 4/7/98 Security Deposit $0 Last Payment: 12/01/01 Rent Commencement Date: 5/1/98
-----------------------------------------------------------------------------------------------------------------------
Payment Number Sales Total Each Lease Advance Rent
Rent Payable and Amounts Tax Payment Rec'd by Lessor
-----------------------------------------------------------------------------------------------------------------------
X Monthly |_| Annually Periodic Rent 44 at $20,510.56 $1,692.12 $22,202.68 1 at $22,202.68
|_| Quarterly to be applied to First
|_| Semiannually Final Payment $20,510.56 $1,692.12 $22,202.68 Payment
|_| See Schedule
-----------------------------------------------------------------------------------------------------------------------
Interim Rent: $16,408.45 For period Covering: 4/7/98 To 4/30/98
INSURANCE: Lessee's insurance policy covering the Equipment shall contain
minimum liability limits of $2,000,000 for each person,
$2,000,000 for each occurrence and insure against claims for
property damage in an amount not less than $2,000,000.
Lease. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the
personal property described above together with all substitutions, replacements,
repairs, upgrades, additions, accessories, products and proceeds (the
"Equipment"), under the terms and conditions set forth here and in the Master
Equipment Lease referenced above and incorporated herein in its entirety. LESSEE
ACKNOWLEDGES THAT ONLY LESSOR'S ORIGINAL OF THIS EQUIPMENT SCHEDULE CONSTITUTES
CHATTEL PAPER FOR PURPOSES OF THE UNIFORM COMMERCIAL CODE, that no security
interest can be created by possession of any other counterpart, and that this
Lease can only be amended in writing. ____ (Lessee initial). THIS IS A
NON-CANCELABLE LEASE.
LESSEE: LESSOR:
CVC Products, Inc. M&T Financial Corporation
By: /s/ Xxxxxx XxXxxxxxx By:
---------------------------- ----------------------------
Xxxxxx XxXxxxxxx Xxxxxxx X. Xxxxxxxxx
Senior Vice President / Assistant Vice President
Chief Financial Officer
Schedule A
Equipment Description
(1) CX-8 Central Wafer Handler,
Including Robotics and Computer System
Serial number: 308527-500
(1) ICP Module Inductively Coupled Plasma Module
Serial number: 309260-100
Equipment Location: 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000 (Alameda County)
MTFCo
EARLY TERMINATION RIDER
to
EQUIPMENT SCHEDULE No. 3 ("SCHEDULE")
Dated April 7, 1998
to
MASTER EQUIPMENT LEASE AGREEMENT
Dated April 7, 1998 ("LEASE")
between
M&T Financial Corporation ("LESSOR")
and
CVC Products, Inc. ("LESSEE")
(I) During the term of the Lease the Lessee shall, provided there exists no
event(s) of default, have the right to purchase all but not less than all of the
scheduled equipment then under lease ("Early Termination Option") for a price
equal to the predetermined Fair Market Value as determined by the attached
Stipulated Loss Table ("Option Price"). Upon Lessee's exercise of the Early
Termination Option, Lessor shall convey to Lessee, all of Lessor's right, title
and interest in and to the Equipment on an "as-is, where-is" basis, without
recourse or warranty except against any liens placed on the Equipment by Lessor.
The Lessee may exercise the Early Termination Option upon written notice to
Lessor given not less than ninety (90) days nor more than one hundred eighty
(180) days prior to the Early Termination Date. Such notice shall be
irrevocable. Upon Lessee's exercise of the Early Termination Option, Lessee
shall pay to Lessor all due but unpaid rent under the Equipment Schedule
together with the Option Price.
In the event that the Early Termination Option is not exercised by the Lessee in
accordance with this Rider, all of Lessee's obligations under the Equipment
Schedule will continue unaffected.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS RIDER THIS 7th DAY OF APRIL
1998.
LESSEE: LESSOR:
CVC Products, Inc. M&T Financial Corporation
By: /s/ Xxxxxx XxXxxxxxx By:
---------------------------- ----------------------------
Xxxxxx XxXxxxxxx Xxxxxxx X. Xxxxxxxxx
Senior Vice President / CFO Assistant Vice President
Stipulated Loss Schedule
Lessee: CVC Products (Schedule #3)
Percent
Per Date Amount of Cost
---------------------------------------------------
1 5/1/98 841,252.96 100.96
2 6/1/98 828,002.02 99.37
3 7/1/98 814,604.49 97.76
4 8/1/98 801,072.30 96.14
5 9/1/98 787,392.02 94.50
6 10/1/98 773,562.85 92.84
7 11/1/98 759,596.69 91.16
8 12/1/98 745,480.11 89.47
9 1/1/99 731,212.29 87.75
10 2/1/99 716,805.12 86.02
11 3/1/99 702,245.16 84.28
12 4/1/99 687,531.58 82.51
13 5/1/99 672,644.71 80.72
14 6/1/99 657,602.47 78.92
15 7/1/99 642,404.02 77.10
16 8/1/99 627,029.67 75.25
17 9/1/99 611,497.33 73.39
18 10/1/99 595,806.13 71.50
19 11/1/99 579,936.40 69.60
20 12/1/99 563,906.01 67.68
21 1/1/00 547,714.08 65.73
22 2/1/00 531,340.92 63.77
23 3/1/00 514,804.39 61.78
24 4/1/00 498,103.61 59.78
25 5/1/00 481,316.76 57.76
26 6/1/00 464,364.32 55.73
27 7/1/00 447,245.39 53.67
28 8/1/00 430,038.14 51.61
29 9/1/00 412,663.04 49.52
30 10/1/00 395,119.17 47.42
31 11/1/00 377,484.71 45.30
32 12/1/00 359,680.09 43.17
33 1/1/01 341,704.39 41.01
34 2/1/01 323,635.78 38.84
35 3/1/01 305,394.67 36.65
36 4/1/01 286,980.15 34.44
37 5/1/01 268,529.08 32.23
38 6/1/01 249,903.47 29.99
39 7/1/01 231,102.37 27.73
40 8/1/01 212,262.65 25.47
41 9/1/01 193,246.29 23.19
42 10/1/01 174,052.34 20.89
43 11/1/01 154,817.67 18.58
44 12/1/01 135,404.22 16.25
45 1/1/02 115,811.06 13.90
MTFCo
PURCHASE OPTION RIDER
to
EQUIPMENT SCHEDULE NO. 3 ("SCHEDULE")
Dated April 7, 1998
to
MASTER EQUIPMENT LEASE AGREEMENT
Dated as of April 7, 1998 ("LEASE")
between
M&T Financial Corporation ("LESSOR")
and
CVC Products, Inc. ("LESSEE")
The paragraph in the Lease entitled Purchase Option is hereby amended as
follows:
Subject to the satisfaction of the conditions set forth below, the Lessee
shall, on the Initial Term Expiration Date, have the option to:
(1) Purchase all, but not less than all, of the Equipment under
lease for a price equal to its Fair Market Value as determined by
the Stipulated Loss Table (the "Purchase Price").
(a) Lessee's right to exercise the Purchase Option shall be
subject to the satisfaction of the following conditions
precedent: (1) No Default or Event of Default shall have
occurred and be continuing; (2) Lessee shall have given
written notice to Lessor of Lessee's desire to exercise the
Purchase Option not less than ninety (90) days nor more than
one hundred eighty (180) days prior to the Initial Term
Expiration Date; and (3) Lessor shall have received Lessee's
payment of the Purchase Price (plus any taxes) prior to the
Initial Term Expiration Date.
(b) If Lessee exercises the Purchase Option in accordance with
the terms and conditions hereof, then at the expiration of the
Initial Term, Lessee shall tender the Purchase Price in
immediately available funds and Lessor shall deliver a xxxx of
sale transferring to Lessee all Lessor's right, title and
interest in the Equipment: IT BEING EXPRESSLY UNDERSTOOD THAT
SUCH TRANSFER IS "AS IS, WHERE IS", WITHOUT ANY WARRANTIES,
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING
WITHOUT LIMITATION, THE CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, AND
LESSOR EXPRESSLY DISCLAIMS THE SAME.
(2) Return the equipment to the Lessor without further obligation to
a location of the Lessor's choosing in the United States.
(3) Renew the Lease at its fair market rental rate as determined by
Lessor.
Except as specifically amended hereby, all of the terms and conditions set forth
in the Schedule and Lease are unaffected and remain in full force and effect.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS RIDER THIS 7th DAY OF April,
1998.
LESSEE: LESSOR:
CVC Products, Inc. M&T Financial Corporation
By: /s/ Xxxxxx XxXxxxxxx By:
---------------------------- ----------------------------
Xxxxxx XxXxxxxxx Xxxxxxx X. Xxxxxxxxx
Senior Vice President / CFO Assistant Vice President
2
Stipulated Loss Schedule
Lessee: CVC Products (Schedule #3)
Percent
Per Date Amount of Cost
---------------------------------------------------
1 5/1/98 841,252.96 100.96
2 6/1/98 828,002.02 99.37
3 7/1/98 814,604.49 97.76
4 8/1/98 801,072.30 96.14
5 9/1/98 787,392.02 94.50
6 10/1/98 773,562.85 92.84
7 11/1/98 759,596.69 91.16
8 12/1/98 745,480.11 89.47
9 1/1/99 731,212.29 87.75
10 2/1/99 716,805.12 86.02
11 3/1/99 702,245.16 84.28
12 4/1/99 687,531.58 82.51
13 5/1/99 672,644.71 80.72
14 6/1/99 657,602.47 78.92
15 7/1/99 642,404.02 77.10
16 8/1/99 627,029.67 75.25
17 9/1/99 611,497.33 73.39
18 10/1/99 595,806.13 71.50
19 11/1/99 579,936.40 69.60
20 12/1/99 563,906.01 67.68
21 1/1/00 547,714.08 65.73
22 2/1/00 531,340.92 63.77
23 3/1/00 514,804.39 61.78
24 4/1/00 498,103.61 59.78
25 5/1/00 481,316.76 57.76
26 6/1/00 464,364.32 55.73
27 7/1/00 447,245.39 53.67
28 8/1/00 430,038.14 51.61
29 9/1/00 412,663.04 49.52
30 10/1/00 395,119.17 47.42
31 11/1/00 377,484.71 45.30
32 12/1/00 359,680.09 43.17
33 1/1/01 341,704.39 41.01
34 2/1/01 323,635.78 38.84
35 3/1/01 305,394.67 36.65
36 4/1/01 286,980.15 34.44
37 5/1/01 268,529.08 32.23
38 6/1/01 249,903.47 29.99
39 7/1/01 231,102.37 27.73
40 8/1/01 212,262.65 25.47
41 9/1/01 193,246.29 23.19
42 10/1/01 174,052.34 20.89
43 11/1/01 154,817.67 18.58
44 12/1/01 135,404.22 16.25
45 1/1/02 115,811.06 13.90
CERTIFICATE OF ACCEPTANCE
to
EQUIPMENT SCHEDULE NO. 3, Dated April 7, 1998,
to
MASTER EQUIPMENT LEASE AGREEMENT, Dated April 7, 1998
(the "Lease")
--------------------------------------------------------------------------------------------------------------------
Leesee's Name and Address: County: Monroe Lessor's Name and Address: County: Erie
CVC Products, Inc. M&T Financial Corporation
000 Xxx Xxxx Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx Phone: (000) 000-0000 x0000 Attn: Counsel's Office Phone: (000) 000-0000
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
QTY EQUIPMENT DESCRIPTION (Manufacturer, Model No., Serial No., Item)
--------------------------------------------------------------------------------
See Schedule A attached hereto and made a part hereof
--------------------------------------------------------------------------------
Initial Equipment Location (if different from Leesee's address above):
0000 Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000 (Alameda County)
Vendor:
CVC Products, 000 Xxx Xxxx, Xxxxxxxxx, XX 00000
Lessee hereby certifies that as of this date the Equipment described above has
been delivered to and accepted by Lessee after complete inspection and testing,
is correctly described in the Lease (with the exception of serial numbers which
if omitted now may be supplied by Lessee in the future by telephone and inserted
in the description by Lessor or Assignee), is in good working order, and is
satisfactory to Lessee in all respects. Lessee reaffirms that Lessee selected
the Equipment based upon its specifications and that Lessee's obligation to pay
all amounts due and to become due and perform all other obligations under the
Lease is absolute and that any recourse Lessee might have in case of any
nonperformance, unsuitability or other failure of the Equipment shall lie with
the manufacturer or vendor and in no case with Lessor or Assignee.
Date: Xxxxx 0, 0000
XXXXXX:
CVC Products, Inc.
By: /s/ Xxxxxx XxXxxxxxx
-----------------------------------------------
Xxxxxx XxXxxxxxx
Senior Vice President / Chief Financial Officer
(If Corporation, President or Vice President should
sign and give official title; if Partnership,
General Partner; if LLC, Manager)
Schedule A
Equipment Description
(1) CX-8 Central Wafer Handler,
Including Robotics and Computer System
Serial number: 308527-500
(1) ICP Module Inductively Coupled Plasma Module
Serial number: 309260-100
Equipment Location: 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000 (Alameda County)
MTFCo
CERTIFICATE OF SECRETARY
OF
LESSEE
I, Xxxxxxxxx Xxxxxxx, President of CVC Products, Inc. (the "Company"), a
Delaware corporation, do CERTIFY in connection with Equipment Schedule No. 3
dated as of April 7, 1998 to Master Equipment Lease Agreement dated as of April
7, 1998 between M&T Financial Corporation (the "Lessor") and the Company as
lessee (the "Lease") as follows:
1. The Company's execution, delivery and performance of the Lease, the
Equipment Schedule, the Delivery and Acceptance Certificate and all
other collateral instruments and documents related to this
transaction (collectively, the "Documents") have been duly
authorized by all necessary corporate action on the part of the
Company, as evidenced by the copies of the resolution attached
hereto, and the Documents will be duly and validly executed if
executed by one of the persons whose name appears in Section 2
below;
2. The following persons are the duly elected or appointed, qualified
and acting officers of the Company holding the offices set forth
opposite their respective names below, and the signatures appearing
opposite their respective names below are the genuine signatures of
such persons:
Name Office Signature
Xxxxxx XxXxxxxxx Xx Vice President / CFO /s/ Xxxxxx XxXxxxxxx
________________________ ________________________ ______________________
________________________ ________________________ ______________________
IN WITNESS WHEREOF, I have executed this Certificate this 7th day of April
1998.
By: /s/ Xxxxxxxxx Xxxxxxx
-------------------------------------
Xxxxxxxxx Xxxxxxx
President / CEO
MTFCo
EXHIBIT TO CERTIFICATE OF SECRETARY TO LESSEE
RESOLUTION
On motion of ____________________________________________, seconded by
_____________________________________________, the following Resolutions were
adopted by a duly constituted quorum of the Board of Directors [______________]
of CVC Products, Inc. (the "Company") present at a meeting duly called and held,
or by unanimous written consent, on _____________________, 199_.
WHEREAS, this Board has determined that in order for the Company to better
accomplish its corporate purposes, the Company needs to acquire the use of
the Equipment described on the Schedule attached hereto, and
WHEREAS, the Company has determined that the most economical and efficient
means of acquiring the use of said Equipment is pursuant to a lease
financing of the Equipment;
NOW, THEREFORE, be it
RESOLVED, that the Company is hereby authorized to enter into a Master
Equipment Lease Agreement between M&T Financial Corporation and/or M&T
Bank as Lessor and the Company as Lessee together with any appropriate
equipment schedules, all exhibits, tables, riders and amendments related
thereto, substantially in the form annexed hereto; and it is further
RESOLVED, that in furtherance of the accomplishment of the Lease, the Sr
Vice President / CFO, is hereby authorized to consult with and authorize
the appropriate officers of the Company to select and designate the
particular Equipment to be leased by the Company and the particular source
of financing the Equipment; and be it further
RESOLVED, that in furtherance of the Lease, the Sr Vice President / CFO,
is hereby authorized to execute and deliver on behalf of the Company such
agreements, indemnities, purchase orders, guarantees of performance or
payment or otherwise, leases, bills of sale, certificates or other
instruments or obligations as they or any one of them may deem necessary
or appropriate to the accomplishment of the Lease, and the execution and
delivery of any such agreement, instrument or obligation prior to the date
hereof by any such officer is in all respects hereby confirmed, ratified
and approved; and be it further
RESOLVED, that all officers of the Company are authorized and directed to
do or cause to be done all such other acts and things, to make all
payments, including rent payments, required pursuant to the Lease and
related documents, and to execute all such documents, certificates and
instruments as in his, her or their judgement may be necessary or
advisable in order to carry out the foregoing Resolutions and the
Company's obligations under the Lease, or any revised and supplemental
lease; and all actions heretofore taken by the officers of the Company in
connection with the subject of these Resolutions are hereby approved,
ratified and confirmed in all respects.
EXHIBIT D
RESOLUTIONS
OF THE
BOARD OF DIRECTORS
OF
CVC, INC.
RESOLVED, that the form, terms and provisions of the proposed term loan
and credit facility agreement (the "Credit Agreement"), between CVC, Inc. (the
"Corporation"), CVC Products, Inc. (the "Subsidiary") and Manufacturers and
Traders Trust Company (the "Lender") substantially on the terms that have been
submitted to the directors of the Corporation, pursuant to which, among other
things, the Lender will make to the Subsidiary and/or the Corporation term loans
in amounts up to an aggregate of $8,000,000 and revolving loans in amounts up to
an aggregate of $10,000,000 (based on borrowing base availability), will make
available a $2 million capital equipment term loan and lease line and will
provide other credit accommodations, all upon the terms set forth therein and in
the exhibits thereto, and all transactions referred to therein, be, and the same
hereby are, in all respects authorized and approved.
RESOLVED, that an Authorized Officer of the Corporation and/or the
Subsidiary be, and each hereby is, authorized and empowered, in the name and on
behalf of the Corporation and/or the Subsidiary, to execute and deliver to the
Lender the Credit Agreement and each exhibit thereto of which the Corporation
and/or the Subsidiary shall be a signatory, and any and all other agreements,
certificates, or other documents which may be described in the Credit Agreement
or necessary or required by the Lender, with such change or changes therein as
the Authorized Officer or Officers executing the same may approve, the execution
thereof, with such change or changes, to be conclusive evidence of such
approval.
RESOLVED, that, in connection with the loan and accommodations to be made
by the Lender to the Subsidiary, the form, terms and provisions of the Term and
Revolving Notes (the "Notes") and the equipment lease documents, be, and, the
same hereby are, in all respects authorized and approved.
RESOLVED, that an Authorized Officer or Officers of the Corporation and/or
the Subsidiary be, and each hereby is, authorized and empowered, in the name and
on behalf of the Corporation and/or the Subsidiary, to execute and deliver to
the Lender, upon receipt of funds evidenced thereby, the Notes and the lease
documents, with such change or changes therein as the Authorized Officer or
Officers executing the same may approve, the execution thereof, with such change
or changes, to be conclusive evidence of such approval.
RESOLVED, that the Corporation and/or the Subsidiary be, and hereby are,
authorized (i) to borrow such amounts and to sell and lease back from the Lender
such
D-2
equipment in such amounts as an Authorized Officer of the Corporation and/or the
Subsidiary may deem appropriate, to be evidenced by appropriate Notes and the
lease documents, (ii) to each guaranty the indebtedness of the other to the
Lender on terms acceptable to the Lender as evidenced by agreements and
guarantees requested by the Lender, (iii) to grant security interests to the
Lender in any and all assets of the Corporation and the Subsidiary, and (iv) to
pay any and all fees and associated expenses; and the same (including all
documents evidencing same) hereby are, authorized and approved.
RESOLVED, that the agreements, instruments, notes and documents heretofore
entered into by the Corporation and/or the Subsidiary with the Lender are hereby
ratified and affirmed;
RESOLVED, that, in connection with loans to be made by the Lender to the
Subsidiary, an Authorized Officer of the Corporation and/or the Subsidiary be,
and hereby is, authorized and empowered to open and maintain such bank accounts
at such bank or banks as the Lender may request, and that any resolutions
furnished by such banks for such purposes be deemed adopted as and for the
resolutions of the Board of Directors with the same force and effect as if fully
set forth herein.
RESOLVED, that the President and Senior Vice President of the Corporation
and the Subsidiary, and any person duly authorized to act in such capacity be,
and each of them hereby is, designated an "Authorized Officer" for purposes of
these resolutions, the Credit Agreement, the Notes, the lease documents and any
other documents and instruments necessary, proper or convenient to implement or
accomplish the transactions involved in, or related to, any thereof.
RESOLVED, that the Authorized Officers of the Corporation and/or the
Subsidiary be, and each of them hereby is, authorized and empowered, in the
name and on behalf of the Corporation and/or the Subsidiary, to execute and
deliver such certificates, documents, agreements and instruments containing in
each case such terms and conditions, and to take such other action, as any such
officer, in his or her sole discretion, shall deem necessary or appropriate
fully to effectuate and to carry out the purposes and intent of the foregoing
resolutions, the execution or delivery of any of same or the taking of any such
action to be conclusive evidence of the necessity or appropriateness thereof.
D-3
MTFCo
PAY PROCEEDS LETTER
Date: April 7, 1998
M&T Financial Corporation
Manufacturers and Traders Trust Company (M&T Bank)
Xxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Equipment Leasing
Re: Equipment Schedule No. 3 between CVC Products, Inc. (Lessee) and M&T
Financial Corporation as (Lessor) (the "Lease).
You are hereby authorized to disburse funds to purchase the Equipment for the
above Lease as directed below. We understand that under Uniform Commercial Code
Article 4A M&T Bank and all other banks handling funds transfers are entitled to
rely on the bank number and account number we provide without reference to names
or account titles, and that you have no duty to discover any discrepancies. We
have taken appropriate care to verify our instructions to you, and you will not
be liable for any loss that, may result from our error in these instructions. We
also agree to the provisions on the reverse.
================================================================================
1. Payee: M&T Financial Corporation Ein # _______________
Amount: $833,256.00
Ref: payoff of Schedule 1
|_| Deposit to M&T Bank
Account No. _________________________
|_| Check _________________________
|_| Funds Transfer to:
Account No. _________________________
Account Name: _________________________ Bank R/T No __________
Bank Name: _________________________ Telephone: ___________
================================================================================
2. Payee: _________________________ Ein # _______________
Amount: _________________________
Ref: _________________________
|_| Deposit to M&T Bank
Account No. _________________________
|_| Check _________________________
|_| Funds Transfer to:
Account No. _________________________
Account Name: _________________________ Bank R/T No __________
Bank Name: _________________________ Telephone: ___________
================================================================================
Agreed:
LESSEE:
CVC Products, Inc.
By: /s/ Xxxxxx XxXxxxxxx
--------------------------------------------
Xxxxxx XxXxxxxxx
Senior Vice President / Chief Financial Officer
MTFCo
FUNDS TRANSFER AGREEMENT
SINGLE PAYMENT ORDER
To induce Lessor to execute the funds transfer payment order on the front of
this form, Lessee makes the following waivers and agrees to the following terms
and conditions.
1. Waiver of Lessor's Security Procedures. Lessee hereby rejects and
waives the protection of the Lessor's customary funds transfer
security procedures, and agrees that a request for personal
identification in a procedure including signature comparison shall
be deemed a commercially reasonable security procedure for purposes
of Article 4A of the Uniform Commercial Code.
2. Authorization. Lessee shall supply Lessor with all information that
Lessor requests including, but not limited to, money amounts;
beneficiary's account number, name and Lessor; value date;
supplemental instructions; and further evidence of the authority of
any of Lessee's authorized representatives to issue Payment Orders
or to do any other act contemplated under this Agreement. For
Lessee's protection, Lessor may reject any Payment Order if Lessor
is unable to obtain satisfactory verification of the Order or its
due authorization. If Lessee is an entity, the person signing this
agreement certifies that he or she is duly authorized to execute
such transaction on behalf of Lessee; and acknowledges that any
false statement will render him or her personally liable for
monetary damages as well as criminal penalties including substantial
fines and imprisonment under federal and state law.
3. Account Number Controls. Lessee ACKNOWLEDGES RECEIPT OF NOTICE THAT
M&T Lessor, ALL INTERMEDIARY LessorS AND BENEFICIARY'S Lessor ARE
ENTITLED TO RELY ON THE BENEFICIARY'S ACCOUNT NUMBER AND ANY Lessor
IDENTIFYING NUMBER AS STATED IN THE PAYMENT ORDER AS RECEIVED EVEN
IF THE NUMBER AND NAME GIVEN FOR THE BENEFICIARY REFER TO DIFFERENT
PERSONS OR LessorS. Lessee IS WARNED TO VERIFY ALL ACCOUNT NUMBERS
AND Lessor NUMBERS WITH EXTRAORDINARY CARE.
4. Risk of Clear Text. Lessee understands that all Payment Orders are
transmitted in Clear Text and Lessee assumes full responsibility for
all such Payment Orders executed by Lessor at Lessee's request.
5. Standard of Care. Lessee agrees Lessor has no responsibility beyond
executing the transaction requested with ordinary care, subject to
this Agreement. Lessor shall be conclusively deemed to have
exercised ordinary care if Lessor has followed procedures customary
in the industry or if Lessee has not followed such procedures.
6. Cancellation. Lessee shall have no right to amend a Payment Order or
to cancel it after Lessor has begun processing it. In case of Lessee
error, Lessor has no obligation but reserves the right to attempt to
assist Lessee to recover its funds.
7. Limited to Available Funds. A Payment Order is debited to Lessee's
designated account when it is executed by Lessor. Lessee agrees that
its Payment Orders shall not exceed the available balance in
Lessee's account on the execution date. If Lessee's account does not
contain sufficient available funds on that date, Lessor may reject
any or all of Lessee's Payment Orders for that date, charge any of
Lessee's other accounts with Lessor, or execute any one or more
Payment Orders on that date; and Lessor shall not be liable for any
damages (including without limitation special or consequential
damages) Lessee suffers as a result of such rejections. If Lessor
does in its discretion execute a Payment Order which results in an
overdraft in Lessee's account, Lessor shall be entitled to charge
and Lessee shall be obligated to pay interest on such overdraft.
Lessee's account will be liable for statutory overdraft charges
whether or not the overdraft Payment Order is executed.
8. Expenses. Lessee agrees to pay Lessor's customary funds transfer
fees as in effect from time to time and to reimburse Lessor for any
out-of-pocket expenses incurred by Lessor. Such fees and expenses
shall be paid in cash immediately on demand or by Lessor's debiting
Lessee's account(s) at Lessor.
9. Notice of Errors. Lessee shall promptly review the transfer
confirmation or advice mailed to Lessee by Lessor after each
transfer and notify Lessor of any discrepancy in writing as soon as
possible and in any event within 60 calendar days of the transfer.
Lessee shall also promptly review and reconcile its periodic
statements of account provided by Lessor and report any
discrepancies to Lessor in writing within 60 calendar days after the
statement date. Lessee expressly agrees that its failure to so
report any such discrepancies shall relieve Lessor of any liability
for interest on any refund to which Lessee may be entitled with
respect to such unreported discrepancies. Statements and advices
shall be deemed received 5 days after mailing.
10. Disclosure of Information. Lessee acknowledges that Lessor may be or
become required by federal regulation to report or make information
available concerning all or some classes of funds transfers.
11. Force Majeure. Lessee agrees that Lessor is not liable for any
error, interruption, delay, or failure in transmission occasioned by
any circumstances beyond Lessor's control including but not limited
to discrepancies or ambiguity in any Payment Order, funds transfer
system unavailability, weather, failure of power, other utilities or
communication media, strikes, industrial sabotage, war, governmental
interference, and error, delay, insolvency or unavailability of
other receiving, intermediary or beneficiary Lessors.
12. Indemnity. Lessee agrees to hold Lessor harmless and indemnify
Lessor for any and all claims, liabilities, demands, costs, expenses
(including but not limited to attorneys' fees and disbursements),
losses or damages of any nature whatsoever arising directly or
indirectly from any Payment Order executed pursuant to this
Agreement except for liability to Lessee caused by gross negligence
or willful misconduct of Lessor. In no event shall Lessor be liable
for any consequential or special damages.
13. Governing Law. This Agreement shall be governed by the internal laws
of New York State (including without limitation Article 4A of the
Uniform Commercial Code) and by applicable federal law and
regulations.
All notices to Lessor shall be directed to the Manager, Commercial Loan
Operations, 3rd Floor, Manufacturers and Traders Trust Company, Xxx Xxxxxxxx
Xxxxx, Xxxxxxx, Xxx Xxxx 00000; all notices to Lessee shall be directed to
Lessee at the most recent address listed in the records of Lessor.
Uniform Commercial Code - FINANCING STATE - Form UCC-1
This FINANCING STATEMENT is presented to a Filing Officer for the filing
pursuant to the Uniform Commercial Code.
No. Of Additional Sheets Presented:
----------------------------------------------- ----------------------------
1. Debtor(s) (Last Name First) and Address(es): 4. For Filing Officer: Date,
Time, No. Filing Office
CVC Products, Inc.
000 Xxx Xxxx
Xxxxxxxxx, XX 00000 ----------------------------
----------------------------------------------
2. Secured Party(ies) Name(s) and Address(es)
M&T Financial Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
5. This Financing Statement covers the following types (or items) of property:
See Schedule A attached hereto and made a part hereof
--------------------------------------------------------------------------------
7. |_| The described crops are growing or to be grown on:*
|_| The described goods are or are to be affixed to:*
*(Describe Real Estate Below)
--------------------------------------------------------------------------------
8. Describe Real Estate Here: |_| This statement is to be indexed in the Real
Estate Records:
No. & Street Town or City County
--------------------------------------------------------------------------------
9. Name of a Record Owner
--------------------------------------------------------------------------------
10. |_| This statement is filed without the debtor's signature to perfect a
security interest in collateral under a security agreement signed by
debtor authorizing secured party to file this statement.
CVC Products, Inc. M&T Financial Corporation
---------------------------------- ----------------------------------
By /s/ Xxxxxx XxXxxxxxx By _______________________________
-------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies)
================================================================================
For Bank Use Only
Borrower:
Obligor #: _________________________
Filing Jurisdiction: New York State REF #:
================================================================================
UCC-1 (1-97) File Copy-Secured Party
PLEASE RETURN COPY TO:
M&T BANK
X.X. XXX 0000
XXXXXXX, XXX XXXX 00000
Schedule A
Equipment Description
(1) CX-8 Central Wafer Handler,
Including Robotics and Computer System
Serial number: 308527-500
(1) ICP Module Inductively Coupled Plasma Module
Serial number: 309260-100
Equipment Location: 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000 (Alameda County)
Including all replacements, parts, substitutions, modifications, accessories,
additions, attachments, accessions and tools of Debtor now or hereafter
installed therein, affixed thereto or used or intended to be used in connection
therewith
Uniform Commercial Code - FINANCING STATE - Form UCC-1
This FINANCING STATEMENT is presented to a Filing Officer for the filing
pursuant to the Uniform Commercial Code.
No. Of Additional Sheets Presented:
----------------------------------------------- ----------------------------
1. Debtor(s) (Last Name First) and Address(es): 4. For Filing Officer: Date,
Time, No. Filing Office
CVC Products, Inc.
000 Xxx Xxxx
Xxxxxxxxx, XX 00000 ----------------------------
----------------------------------------------
2. Secured Party(ies) Name(s) and Address(es)
M&T Financial Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
5. This Financing Statement covers the following types (or items) of property:
See Schedule A attached hereto and made a part hereof
--------------------------------------------------------------------------------
7. |_| The described crops are growing or to be grown on:*
|_| The described goods are or are to be affixed to:*
*(Describe Real Estate Below)
--------------------------------------------------------------------------------
8. Describe Real Estate Here: |_| This statement is to be indexed in the Real
Estate Records:
No. & Street Town or City County
--------------------------------------------------------------------------------
9. Name of a Record Owner
--------------------------------------------------------------------------------
10. |_| This statement is filed without the debtor's signature to perfect a
security interest in collateral under a security agreement signed by
debtor authorizing secured party to file this statement.
CVC Products, Inc. M&T Financial Corporation
---------------------------------- ----------------------------------
By /s/ Xxxxxx XxXxxxxxx By _______________________________
-------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies)
================================================================================
For Bank Use Only
Borrower:
Obligor #: _________________________
Filing Jurisdiction: Monroe County REF #:
================================================================================
UCC-1 (1-97) File Copy-Secured Party
PLEASE RETURN COPY TO:
M&T BANK
X.X. XXX 0000
XXXXXXX, XXX XXXX 00000
Schedule A
Equipment Description
(1) CX-8 Central Wafer Handler,
Including Robotics and Computer System
Serial number: 308527-500
(1) ICP Module Inductively Coupled Plasma Module
Serial number: 309260-100
Equipment Location: 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000 (Alameda County)
Including all replacements, parts, substitutions, modifications, accessories,
additions, attachments, accessions and tools of Debtor now or hereafter
installed therein, affixed thereto or used or intended to be used in connection
therewith
EQUIPMENT SCHEDULE
UNDER MASTER EQUIPMENT LEASE AGREEMENT NO. 1
Equipment Schedule Date: April 7, 1998 Equipment Schedule No. 4
------------------------------------------------------------------------------------------------------------
Lessee's Name and Address: County: Monroe Lessor's Name and Address: County: Erie
CVC Products, Inc. M&T Financial Corporation
000 Xxx Xxxx Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Att: Xxxx Xxxxxx Phone: (000) 000-0000 x0000 Att: Counsel's Office Phone: (000) 000-0000
------------------------------------------------------------------------------------------------------------
LESSEE: X Corporation |_| General Partnership |_| Limited Partnership |_| dba
|_| Other ________________ X Org. in Delaware
------------------------------------------------------------------------------------------------------------
QTY. EQUIPMENT DESCRIPTION COST SERIAL NO.
(Manufacturer, Model No., Item)
------------------------------------------------------------------------------------------------------------
See Schedule A attached hereto and made a part hereof $16,995.00
------------------------------------------------------------------------------------------------------------
Initial Equipment Location: (if different from above)
0000 Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000 (Alameda County)
Vendor:
CVC Products, Inc., 000 Xxx Xxxx, Xxxxxxxxx, XX 00000
TERM AND RENTAL PAYMENTS
Term End Date: 1/1/02
Term: 44 months Beginning: 4/7/98 Security Deposit $0 Last Payment: 12/01/01 Rent Commencement Date: 5/1/98
-----------------------------------------------------------------------------------------------------------------------
Payment Number Sales Total Each Lease Advance Rent
Rent Payable and Amounts Tax Payment Rec'd by Lessor
-----------------------------------------------------------------------------------------------------------------------
X Monthly |_| Annually Periodic Rent 44 at $439.23 $ 0 $439.23 1 at $439.23
|_| Quarterly
|_| Semiannually Final Payment $439.23 $ 0 $439.23 to be applied to First
|_| See Schedule Payment
X Exempt
-----------------------------------------------------------------------------------------------------------------------
Interim Rent: $351.38 For period Covering: 4/7/98 To 4/30/98
INSURANCE: Lessee's insurance policy covering the Equipment shall contain
minimum liability limits of $2,000,000 for each person,
$2,000,000 for each occurrence and insure against claims for
property damage in an amount not less than $2,000,000.
Lease. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the
personal property described above together with all substitutions, replacements,
repairs, upgrades, additions, accessories, products and proceeds (the
"Equipment"), under the terms and conditions set forth here and in the Master
Equipment Lease referenced above and incorporated herein in its entirety. LESSEE
ACKNOWLEDGES THAT ONLY LESSOR'S ORIGINAL OF THIS EQUIPMENT SCHEDULE CONSTITUTES
CHATTEL PAPER FOR PURPOSES OF THE UNIFORM COMMERCIAL CODE, that no security
interest can be created by possession of any other counterpart, and that this
Lease can only be amended in writing. ___ (Lessee initial). THIS IS A
NON-CANCELABLE LEASE.
LESSEE: LESSOR:
CVC Products, Inc. M&T Financial Corporation
By: /s/ Xxxxxx XxXxxxxxx By:
---------------------------- ----------------------------
Xxxxxx XxXxxxxxx Xxxxxxx X. Xxxxxxxxx
Senior Vice President / Assistant Vice President
Chief Financial Officer
Schedule A
Equipment Description
(1) Metallurgical Microscope including:
1 Reconditioned Nikon Optiphot 66 Metallurgical Microscope;
1 Nikon 200X Plan APO Brightfield Lens;
1 Nomarski D.E.C. Set comprising Nosepiece, Polarizer, Analyzer and
first order Compensator and Prisms
MTFCo
PURCHASE OPTION RIDER
to
EQUIPMENT SCHEDULE NO. 4 ("SCHEDULE")
Dated April 7, 1998
to
MASTER EQUIPMENT LEASE AGREEMENT
Dated as of April 7, 1998 ("LEASE")
between
M&T Financial Corporation ("LESSOR")
and
CVC Products, Inc. ("LESSEE")
The paragraph in the Lease entitled Purchase Option is hereby amended as
follows:
Subject to the satisfaction of the conditions set forth below, the Lessee
shall, on the Initial Term Expiration Date, have the option to:
(1) Purchase all, but not less than all, of the Equipment under
lease for a price equal to its Fair Market Value as determined by
the Stipulated Loss Table (the "Purchase Price").
(a) Lessee's right to exercise the Purchase Option shall be
subject to the satisfaction of the following conditions
precedent: (1) No Default or Event of Default shall have
occurred and be continuing; (2) Lessee shall have given
written notice to Lessor of Lessee's desire to exercise the
Purchase Option not less than ninety (90) days nor more than
one hundred eighty (180) days prior to the Initial Term
Expiration Date; and (3) Lessor shall have received Lessee's
payment of the Purchase Price (plus any taxes) prior to the
Initial Term Expiration Date.
(b) If Lessee exercises the Purchase Option in accordance with
the terms and conditions hereof, then at the expiration of the
Initial Term, Lessee shall tender the Purchase Price in
immediately available funds and Lessor shall deliver a xxxx of
sale transferring to Lessee all Lessor's right, title and
interest in the Equipment: IT BEING EXPRESSLY UNDERSTOOD THAT
SUCH TRANSFER IS "AS IS, WHERE IS", WITHOUT ANY WARRANTIES,
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING
WITHOUT LIMITATION, THE CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, AND
LESSOR EXPRESSLY DISCLAIMS THE SAME.
(2) Return the equipment to the Lessor without further obligation to
a location of the Lessor's choosing in the United States.
(3) Renew the Lease at its fair market rental rate as determined by
Lessor.
Except as specifically amended hereby, all of the terms and conditions set forth
in the Schedule and Lease are unaffected and remain in full force and effect.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS RIDER THIS 7th DAY OF April,
1998.
LESSEE: LESSOR:
CVC Products, Inc. M&T Financial Corporation
=== SIGN
HERE
By: /s/ Xxxxxx XxXxxxxxx By:
---------------------------- ----------------------------
Xxxxxx XxXxxxxxx Xxxxxxx X. Xxxxxxxxx
Senior Vice President / CFO Assistant Vice President
2
Stipulated Loss Schedule
Lessee: CVC Products (Schedule #4)
Percent
Per Date Amount of Cost
----------------------------------------------------------
1 5/1/98 17,289.23 101.73
2 6/1/98 16,992.53 99.99
3 7/1/98 16,692.75 98.22
4 8/1/98 16,390.26 96.44
5 9/1/98 16,084.66 94.64
6 10/1/98 15,775.91 92.83
7 11/1/98 15,464.43 90.99
8 12/1/98 15,149.77 89.14
9 1/1/99 14,831.92 87.27
10 2/1/99 14,511.29 85.39
11 3/1/99 14,187.44 83.48
12 4/1/99 13,860.36 81.56
13 5/1/99 13,529.87 79.61
14 6/1/99 13,196.12 77.65
15 7/1/99 12,859.08 75.66
16 8/1/99 12,518.60 73.66
17 9/1/99 12,174.79 71.64
18 10/1/99 11,827.65 69.59
19 11/1/99 11,477.00 67.53
20 12/1/99 11,122.98 65.45
21 1/1/00 10,765.57 63.35
22 2/1/00 10,404.61 61.22
23 3/1/00 10,040.22 59.08
24 4/1/00 9,672.38 56.91
25 5/1/00 9,302.86 54.74
26 6/1/00 8,929.87 52.54
27 7/1/00 8,553.39 50.33
28 8/1/00 8,175.18 48.10
29 9/1/00 7,793.46 45.86
30 10/1/00 7,408.20 43.59
31 11/1/00 7,021.17 41.31
32 12/1/00 6,630.57 39.01
33 1/1/01 6,236.40 36.70
34 2/1/01 5,840.40 34.37
35 3/1/01 5,440.79 32.01
36 4/1/01 5,037.56 29.64
37 5/1/01 4,633.62 27.26
38 6/1/01 4,226.03 24.87
39 7/1/01 3,814.76 22.45
40 8/1/01 3,402.75 20.02
41 9/1/01 2,987.04 17.58
42 10/1/01 2,567.62 15.11
43 11/1/01 2,147.41 12.64
44 12/1/01 1,723.46 10.14
45 1/1/02 1,295.76 7.62
MTFCo
EARLY TERMINATION RIDER
to
EQUIPMENT SCHEDULE No. 4 ("SCHEDULE")
Dated April 7, 1998
to
MASTER EQUIPMENT LEASE AGREEMENT
Dated April 7, 1998 ("LEASE")
between
M&T Financial Corporation ("LESSOR")
and
CVC Products, Inc. ("LESSEE")
(I) During the term of the Lease the Lessee shall, provided there exists no
event(s) of default, have the right to purchase all but not less than all of the
scheduled equipment then under lease ("Early Termination Option") for a price
equal to the predetermined Fair Market Value as determined by the attached
Stipulated Loss Table ("Option Price"). Upon Lessee's exercise of the Early
Termination Option, Lessor shall convey to Lessee, all of Lessor's right, title
and interest in and to the Equipment on an "as-is, where-is" basis, without
recourse or warranty except against any liens placed on the Equipment by Lessor.
The Lessee may exercise the Early Termination Option upon written notice to
Lessor given not less than ninety (90) days nor more than one hundred eighty
(180) days prior to the Early Termination Date. Such notice shall be
irrevocable. Upon Lessee's exercise of the Early Termination Option, Lessee
shall pay to Lessor all due but unpaid rent under the Equipment Schedule
together with the Option Price.
In the event that the Early Termination Option is not exercised by the Lessee in
accordance with this Rider, all of Lessee's obligations under the Equipment
Schedule will continue unaffected.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS RIDER THIS 7th DAY OF APRIL
1998.
LESSEE: LESSOR:
CVC Products, Inc. M&T Financial Corporation
By: /s/ Xxxxxx XxXxxxxxx By:
---------------------------- ----------------------------
Xxxxxx XxXxxxxxx Xxxxxxx X. Xxxxxxxxx
Senior Vice President / CFO Assistant Vice President
Stipulated Loss Schedule
Lessee: CVC Products (Schedule #4)
Percent
Per Date Amount of Cost
----------------------------------------------------------
1 5/1/98 17,289.23 101.73
2 6/1/98 16,992.53 99.99
3 7/1/98 16,692.75 98.22
4 8/1/98 16,390.26 96.44
5 9/1/98 16,084.66 94.64
6 10/1/98 15,775.91 92.83
7 11/1/98 15,464.43 90.99
8 12/1/98 15,149.77 89.14
9 1/1/99 14,831.92 87.27
10 2/1/99 14,511.29 85.39
11 3/1/99 14,187.44 83.48
12 4/1/99 13,860.36 81.56
13 5/1/99 13,529.87 79.61
14 6/1/99 13,196.12 77.65
15 7/1/99 12,859.08 75.66
16 8/1/99 12,518.60 73.66
17 9/1/99 12,174.79 71.64
18 10/1/99 11,827.65 69.59
19 11/1/99 11,477.00 67.53
20 12/1/99 11,122.98 65.45
21 1/1/00 10,765.57 63.35
22 2/1/00 10,404.61 61.22
23 3/1/00 10,040.22 59.08
24 4/1/00 9,672.38 56.91
25 5/1/00 9,302.86 54.74
26 6/1/00 8,929.87 52.54
27 7/1/00 8,553.39 50.33
28 8/1/00 8,175.18 48.10
29 9/1/00 7,793.46 45.86
30 10/1/00 7,408.20 43.59
31 11/1/00 7,021.17 41.31
32 12/1/00 6,630.57 39.01
33 1/1/01 6,236.40 36.70
34 2/1/01 5,840.40 34.37
35 3/1/01 5,440.79 32.01
36 4/1/01 5,037.56 29.64
37 5/1/01 4,633.62 27.26
38 6/1/01 4,226.03 24.87
39 7/1/01 3,814.76 22.45
40 8/1/01 3,402.75 20.02
41 9/1/01 2,987.04 17.58
42 10/1/01 2,567.62 15.11
43 11/1/01 2,147.41 12.64
44 12/1/01 1,723.46 10.14
45 1/1/02 1,295.76 7.62
CERTIFICATE OF ACCEPTANCE
to
EQUIPMENT SCHEDULE NO. 4, Dated April 7, 1998,
to
MASTER EQUIPMENT LEASE AGREEMENT, Dated April 7, 1998
(the "Lease")
--------------------------------------------------------------------------------------------------------------------
Leesee's Name and Address: County: Monroe Lessor's Name and Address: County: Erie
CVC Products, Inc. M&T Financial Corporation
000 Xxx Xxxx Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx Phone: (000) 000-0000 x0000 Attn: Counsel's Office Phone: (000) 000-0000
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
QTY EQUIPMENT DESCRIPTION (Manufacturer, Model No., Serial No., Item)
--------------------------------------------------------------------------------
See Schedule A attached hereto and made a part hereof
--------------------------------------------------------------------------------
Initial Equipment Location (if different from Leesee's address above):
0000 Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000 (Alameda County)
Vendor:
CVC Products, 000 Xxx Xxxx, Xxxxxxxxx, XX 00000
Lessee hereby certifies that as of this date the Equipment described above has
been delivered to and accepted by Lessee after complete inspection and testing,
is correctly described in the Lease (with the exception of serial numbers which
if omitted now may be supplied by Lessee in the future by telephone and inserted
in the description by Lessor or Assignee), is in good working order, and is
satisfactory to Lessee in all respects. Lessee reaffirms that Lessee selected
the Equipment based upon its specifications and that Lessee's obligation to pay
all amounts due and to become due and perform all other obligations under the
Lease is absolute and that any recourse Lessee might have in case of any
nonperformance, unsuitability or other failure of the Equipment shall lie with
the manufacturer or vendor and in no case with Lessor or Assignee.
Date: Xxxxx 0, 0000
XXXXXX:
CVC Products, Inc.
By: /s/ Xxxxxx XxXxxxxxx
-----------------------------------------------
Xxxxxx XxXxxxxxx
Senior Vice President / Chief Financial Officer
(If Corporation, President or Vice President should
sign and give official title; if Partnership,
General Partner; if LLC, Manager)
Schedule A
Equipment Description
(1) Metallurgical Microscope including:
1 Reconditioned Nikon Optiphot 66 Metallurgical Microscope;
1 Nikon 200X Plan APO Brightfield Lens;
1 Nomarski D.E.C. Set comprising Nosepiece, Polarizer, Analyzer and
first order Compensator and Prisms
MTFCo
CERTIFICATE OF SECRETARY
OF
LESSEE
I, Xxxxxxxxx Xxxxxxx, President of CVC Products, Inc. (the "Company"), a
Delaware corporation, do CERTIFY in connection with Equipment Schedule No. 4
dated as of April 7, 1998 to Master Equipment Lease Agreement dated as of April
7, 1998 between M&T Financial Corporation (the "Lessor") and the Company as
lessee (the "Lease") as follows:
1. The Company's execution, delivery and performance of the Lease, the
Equipment Schedule, the Delivery and Acceptance Certificate and all
other collateral instruments and documents related to this
transaction (collectively, the "Documents") have been duly
authorized by all necessary corporate action on the part of the
Company, as evidenced by the copies of the resolution attached
hereto, and the Documents will be duly and validly executed if
executed by one of the persons whose name appears in Section 2
below;
2. The following persons are the duly elected or appointed, qualified
and acting officers of the Company holding the offices set forth
opposite their respective names below, and the signatures appearing
opposite their respective names below are the genuine signatures of
such persons:
Name Office Signature
Xxxxxx XxXxxxxxx Xx Vice President / CFO /s/ Xxxxxx XxXxxxxxx
________________________ ________________________ ______________________
________________________ ________________________ ______________________
IN WITNESS WHEREOF, I have executed this Certificate this 7th day of April
1998.
By: /s/ Xxxxxxxxx Xxxxxxx
-------------------------------------
Xxxxxxxxx Xxxxxxx
President / CEO
MTFCo
EXHIBIT TO CERTIFICATE OF SECRETARY TO LESSEE
RESOLUTION
On motion of ____________________________________________, seconded by
_____________________________________________, the following Resolutions were
adopted by a duly constituted quorum of the Board of Directors [______________]
of CVC Products, Inc. (the "Company") present at a meeting duly called and held,
or by unanimous written consent, on _____________________, 199_.
WHEREAS, this Board has determined that in order for the Company to better
accomplish its corporate purposes, the Company needs to acquire the use of
the Equipment described on the Schedule attached hereto, and
WHEREAS, the Company has determined that the most economical and efficient
means of acquiring the use of said Equipment is pursuant to a lease
financing of the Equipment;
NOW, THEREFORE, be it
RESOLVED, that the Company is hereby authorized to enter into a Master
Equipment Lease Agreement between M&T Financial Corporation and/or M&T
Bank as Lessor and the Company as Lessee together with any appropriate
equipment schedules, all exhibits, tables, riders and amendments related
thereto, substantially in the form annexed hereto; and it is further
RESOLVED, that in furtherance of the accomplishment of the Lease, the Sr
Vice President / CFO, is hereby authorized to consult with and authorize
the appropriate officers of the Company to select and designate the
particular Equipment to be leased by the Company and the particular source
of financing the Equipment; and be it further
RESOLVED, that in furtherance of the Lease, the Sr Vice President / CFO,
is hereby authorized to execute and deliver on behalf of the Company such
agreements, indemnities, purchase orders, guarantees of performance or
payment or otherwise, leases, bills of sale, certificates or other
instruments or obligations as they or any one of them may deem necessary
or appropriate to the accomplishment of the Lease, and the execution and
delivery of any such agreement, instrument or obligation prior to the date
hereof by any such officer is in all respects hereby confirmed, ratified
and approved; and be it further
RESOLVED, that all officers of the Company are authorized and directed to
do or cause to be done all such other acts and things, to make all
payments, including rent payments, required pursuant to the Lease and
related documents, and to execute all such documents, certificates and
instruments as in his, her or their judgement may be necessary or
advisable in order to carry out the foregoing Resolutions and the
Company's obligations under the Lease, or any revised and supplemental
lease; and all actions heretofore taken by the officers of the Company in
connection with the subject of these Resolutions are hereby approved,
ratified and confirmed in all respects.
EXHIBIT D
RESOLUTIONS
OF THE
BOARD OF DIRECTORS
OF
CVC, INC.
RESOLVED, that the form, terms and provisions of the proposed term loan
and credit facility agreement (the "Credit Agreement"), between CVC, Inc. (the
"Corporation"), CVC Products, Inc. (the "Subsidiary") and Manufacturers and
Traders Trust Company (the "Lender") substantially on the terms that have been
submitted to the directors of the Corporation, pursuant to which, among other
things, the Lender will make to the Subsidiary and/or the Corporation term loans
in amounts up to an aggregate of $8,000,000 and revolving loans in amounts up to
an aggregate of $10,000,000 (based on borrowing base availability), will make
available a $2 million capital equipment term loan and lease line and will
provide other credit accommodations, all upon the terms set forth therein and in
the exhibits thereto, and all transactions referred to therein, be, and the same
hereby are, in all respects authorized and approved.
RESOLVED, that an Authorized Officer of the Corporation and/or the
Subsidiary be, and each hereby is, authorized and empowered, in the name and on
behalf of the Corporation and/or the Subsidiary, to execute and deliver to the
Lender the Credit Agreement and each exhibit thereto of which the Corporation
and/or the Subsidiary shall be a signatory, and any and all other agreements,
certificates, or other documents which may be described in the Credit Agreement
or necessary or required by the Lender, with such change or changes therein as
the Authorized Officer or Officers executing the same may approve, the execution
thereof, with such change or changes, to be conclusive evidence of such
approval.
RESOLVED, that, in connection with the loan and accommodations to be made
by the Lender to the Subsidiary, the form, terms and provisions of the Term and
Revolving Notes (the "Notes") and the equipment lease documents, be, and, the
same hereby are, in all respects authorized and approved.
RESOLVED, that an Authorized Officer or Officers of the Corporation and/or
the Subsidiary be, and each hereby is, authorized and empowered, in the name and
on behalf of the Corporation and/or the Subsidiary, to execute and deliver to
the Lender, upon receipt of funds evidenced thereby, the Notes and the lease
documents, with such change or changes therein as the Authorized Officer or
Officers executing the same may approve, the execution thereof, with such change
or changes, to be conclusive evidence of such approval.
RESOLVED, that the Corporation and/or the Subsidiary be, and hereby are,
authorized (i) to borrow such amounts and to sell and lease back from the Lender
such
D-2
equipment in such amounts as an Authorized Officer of the Corporation and/or the
Subsidiary may deem appropriate, to be evidenced by appropriate Notes and the
lease documents, (ii) to each guaranty the indebtedness of the other to the
Lender on terms acceptable to the Lender as evidenced by agreements and
guarantees requested by the Lender, (iii) to grant security interests to the
Lender in any and all assets of the Corporation and the Subsidiary, and (iv) to
pay any and all fees and associated expenses; and the same (including all
documents evidencing same) hereby are, authorized and approved.
RESOLVED, that the agreements, instruments, notes and documents heretofore
entered into by the Corporation and/or the Subsidiary with the Lender are hereby
ratified and affirmed;
RESOLVED, that, in connection with loans to be made by the Lender to the
Subsidiary, an Authorized Officer of the Corporation and/or the Subsidiary be,
and hereby is, authorized and empowered to open and maintain such bank accounts
at such bank or banks as the Lender may request, and that any resolutions
furnished by such banks for such purposes be deemed adopted as and for the
resolutions of the Board of Directors with the same force and effect as if fully
set forth herein.
RESOLVED, that the President and Senior Vice President of the Corporation
and the Subsidiary, and any person duly authorized to act in such capacity be,
and each of them hereby is, designated an "Authorized Officer" for purposes of
these resolutions, the Credit Agreement, the Notes, the lease documents and any
other documents and instruments necessary, proper or convenient to implement or
accomplish the transactions involved in, or related to, any thereof.
RESOLVED, that the Authorized Officers of the Corporation and/or the
Subsidiary be, and each of them hereby is, authorized and empowered, in the
name and on behalf of the Corporation and/or the Subsidiary, to execute and
deliver such certificates, documents, agreements and instruments containing in
each case such terms and conditions, and to take such other action, as any such
officer, in his or her sole discretion, shall deem necessary or appropriate
fully to effectuate and to carry out the purposes and intent of the foregoing
resolutions, the execution or delivery of any of same or the taking of any such
action to be conclusive evidence of the necessity or appropriateness thereof.
D-3
XXXX OF SALE
TO
M&T FINANCIAL CORPORATION
KNOW ALL MEN BY THESE PRESENTS THAT: CVC Products, Inc., a Delaware
corporation with its chief executive office at 000 Xxx Xxxx, Xxxxxxxxx, XX 00000
(herein called the "Seller"), for and in consideration of the sum of One Dollar
($1) and other good and valuable consideration, receipt of which is hereby
acknowledged, does hereby grant, bargain, sell, assign, transfer, and set over
unto M&T Financial Corporation, a New York corporation (herein called the
"Buyer"), its successors and assigns, all right, title, and interest of the
Seller in and to the personal property described below (and, if any additional
page is annexed hereby as Schedule A, listed and described in said Schedule A)
together with all parts and accessories attached hereto (all such personal
property, parts, and accessories being herein collectively called the
"Equipment"), TO HAVE AND TO HOLD for its and their own use and benefit forever.
QUANTITY MANUFACTURER/MODEL DESCRIPTION SERIAL NO.
-------- ------------------ ----------- ----------
See Schedule A attached hereto and made a part hereof.
The Seller hereby represents and warrants to the Buyer, its successors and
assigns: (I) that the Seller has full legal and beneficial title to the
Equipment and the good and lawful right to sell the same; and (ii) that good and
marketable title to the Equipment is hereby duly vested in the Buyer free and
clear of all claims, liens, encumbrances, and rights of others of any nature.
The Seller hereby covenants and agrees to defend such title forever against all
claims and demands whatsoever.
IN WITNESS WHEREOF, the Seller has caused this Xxxx of Sale to be executed
and delivered by its duly authorized officer this 7th day of April 1998.
SELLER:
CVC Products, Inc.
By: /s/ Xxxxxx XxXxxxxxx
-------------------------------------
Xxxxxx XxXxxxxxx
Senior Vice President / CFO
Schedule A
Equipment Description
(1) Metallurgical Microscope including:
1 Reconditioned Nikon Optiphot 66 Metallurgical Microscope;
1 Nikon 200X Plan APO Brightfield Lens;
1 Nomarski D.E.C. Set comprising Nosepiece, Polarizer, Analyzer and
first order Compensator and Prisms
MTFCo
PAY PROCEEDS LETTER
Date: April 7, 1998
M&T Financial Corporation
Manufacturers and Traders Trust Company (M&T Bank)
Xxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Equipment Leasing
Re: Equipment Schedule No. 4 between CVC Products, Inc. (Lessee) and M&T
Financial Corporation as (Lessor) (the "Lease).
You are hereby authorized to disburse funds to purchase the Equipment for the
above Lease as directed below. We understand that under Uniform Commercial Code
Article 4A M&T Bank and all other banks handling funds transfers are entitled to
rely on the bank number and account number we provide without reference to names
or account titles, and that you have no duty to discover any discrepancies. We
have taken appropriate care to verify our instructions to you, and you will not
be liable for any loss that, may result from our error in these instructions. We
also agree to the provisions on the reverse.
================================================================================
1. Payee: M&T Financial Corporation Ein # _______________
Amount: $16,995.00
Ref: payoff of Schedule 1
|_| Deposit to M&T Bank
Account No. _________________________
|_| Check _________________________
|_| Funds Transfer to:
Account No. _________________________
Account Name: _________________________ Bank R/T No __________
Bank Name: _________________________ Telephone: ___________
================================================================================
2. Payee: _________________________ Ein # _______________
Amount: _________________________
Ref: _________________________
|_| Deposit to M&T Bank
Account No. _________________________
|_| Check _________________________
|_| Funds Transfer to:
Account No. _________________________
Account Name: _________________________ Bank R/T No __________
Bank Name: _________________________ Telephone: ___________
================================================================================
Agreed:
LESSEE:
CVC Products, Inc.
By: /s/ Xxxxxx XxXxxxxxx
--------------------------------------------
Xxxxxx XxXxxxxxx
Senior Vice President / Chief Financial Officer
MTFCo
FUNDS TRANSFER AGREEMENT
SINGLE PAYMENT ORDER
To induce Lessor to execute the funds transfer payment order on the front of
this form, Lessee makes the following waivers and agrees to the following terms
and conditions.
1. Waiver of Lessor's Security Procedures. Lessee hereby rejects and
waives the protection of the Lessor's customary funds transfer
security procedures, and agrees that a request for personal
identification in a procedure including signature comparison shall
be deemed a commercially reasonable security procedure for purposes
of Article 4A of the Uniform Commercial Code.
2. Authorization. Lessee shall supply Lessor with all information that
Lessor requests including, but not limited to, money amounts;
beneficiary's account number, name and Lessor; value date;
supplemental instructions; and further evidence of the authority of
any of Lessee's authorized representatives to issue Payment Orders
or to do any other act contemplated under this Agreement. For
Lessees protection, Lessor may reject any Payment Order if Lessor is
unable to obtain satisfactory verification of the Order or its due
authorization. If Lessee is an entity, the person signing this
agreement certifies that he or she is duly authorized to execute
such transaction on behalf of Lessee; and acknowledges that any
false statement will render him or her personally liable for
monetary damages as well as criminal penalties including substantial
fines and imprisonment under federal and state law.
3. Account Number Controls. Lessee ACKNOWLEDGES RECEIPT OF NOTICE THAT
M&T Lessor, ALL INTERMEDIARY LessorS AND BENEFICIARY'S Lessor ARE
ENTITLED TO RELY ON THE BENEFICIARY'S ACCOUNT NUMBER AND ANY Lessor
IDENTIFYING NUMBER AS STATED IN THE PAYMENT ORDER AS RECEIVED EVEN
IF THE NUMBER AND NAME GIVEN FOR THE BENEFICIARY REFER TO DIFFERENT
PERSONS OR LessorS. Lessee IS WARNED TO VERIFY ALL ACCOUNT NUMBERS
AND Lessor NUMBERS WITH EXTRAORDINARY CARE.
4. Risk of Clear Text. Lessee understands that all Payment Orders are
transmitted in Clear Text and Lessee assumes full responsibility for
all such Payment Orders executed by Lessor at Lessee's request.
5. Standard of Care. Lessee agrees Lessor has no responsibility beyond
executing the transaction requested with ordinary care, subject to
this Agreement. Lessor shall be conclusively deemed to have
exercised ordinary care if Lessor has followed procedures customary
in the industry or if Lessee has not followed such procedures.
6. Cancellation. Lessee shall have no right to amend a Payment Order or
to cancel it after Lessor has begun processing it. In case of Lessee
error, Lessor has no obligation but reserves the right to attempt to
assist Lessee to recover its funds.
7. Limited to Available Funds. A Payment Order is debited to Lessee's
designated account when it is executed by Lessor. Lessee agrees that
its Payment Orders shall not exceed the available balance in
Lessee's account on the execution date. If Lessee's account does not
contain sufficient available funds on that date, Lessor may reject
any or all of Lessee's Payment Orders for that date, charge any of
Lessee's other accounts with Lessor, or execute any one or more
Payment Orders on that date; and Lessor shall not be liable for any
damages (including without limitation special or consequential
damages) Lessee suffers as a result of such rejections. If Lessor
does in its discretion execute a Payment Order which results in an
overdraft in Lessee's account, Lessor shall be entitled to charge
and Lessee shall be obligated to pay interest on such overdraft.
Lessee's account will be liable for statutory overdraft charges
whether or not the overdraft Payment Order is executed.
8. Expenses. Lessee agrees to pay Lessor's customary funds transfer
fees as in effect from time to time and to reimburse Lessor for any
out-of-pocket expenses incurred by Lessor. Such fees and expenses
shall be paid in cash immediately on demand or by Lessor's debiting
Lessee's account(s) at Lessor.
9. Notice of Errors. Lessee shall promptly review the transfer
confirmation or advice mailed to Lessee by Lessor after each
transfer and notify Lessor of any discrepancy in writing as soon as
possible and in any event within 60 calendar days of the transfer.
Lessee shall also promptly review and reconcile its periodic
statements of account provided by Lessor and report any
discrepancies to Lessor in writing within 60 calendar days after the
statement date. Lessee expressly agrees that its failure to so
report any such discrepancies shall relieve Lessor of any liability
for interest on any refund to which Lessee may be entitled with
respect to such unreported discrepancies. Statements and advices
shall be deemed received 5 days after mailing.
10. Disclosure of Information. Lessee acknowledges that Lessor may be or
become required by federal regulation to report or make information
available concerning all or some classes of funds transfers.
11. Force Majeure. Lessee agrees that Lessor is not liable for any
error, interruption, delay, or failure in transmission occasioned by
any circumstances beyond Lessor's control including but not limited
to discrepancies or ambiguity in any Payment Order, funds transfer
system unavailability, weather, failure of power, other utilities or
communication media, strikes, industrial sabotage, war, governmental
interference, and error, delay, insolvency or unavailability of
other receiving, intermediary or beneficiary Lessors.
12. Indemnity. Lessee agrees to hold Lessor harmless and indemnify
Lessor for any and all claims, liabilities, demands, costs, expenses
(including but not limited to attorneys' fees and disbursements),
losses or damages of any nature whatsoever arising directly or
indirectly from any Payment Order executed pursuant to this
Agreement except for liability to Lessee caused by gross negligence
or willful misconduct of Lessor. In no event shall Lessor be liable
for any consequential or special damages.
13. Governing Law. This Agreement shall be governed by the internal laws
of New York State (including without limitation Article 4A of the
Uniform Commercial Code) and by applicable federal law and
regulations.
All notices to Lessor shall be directed to the Manager, Commercial Loan
Operations, 3rd Floor, Manufacturers and Traders Trust Company, Xxx Xxxxxxxx
Xxxxx, Xxxxxxx, Xxx Xxxx 00000; all notices to Lessee shall be directed to
Lessee at the most recent address listed in the records of Lessor.
New York State Department of Taxation and Finance ST-121 (4/93)
--------------------------------
[LOGO] To Purchasers and Vendors:
Before issuing or accepting this
certificate read instructions on
the back carefully.
--------------------------------
New York State and Local Sales and Use Tax
Exempt Use Certificate
--------------------------------------------------------------------------------
Name of vendor Name of purchaser
M&T Financial Corporation CVC Products, Inc.
--------------------------------------------------------------------------------
Xxxxxx xxxxxxx Xxxxxx address
Xxx Xxxxxxxx Xxxxx 000 Xxx Xx.
--------------------------------------------------------------------------------
City State ZIP code City State ZIP code
Xxxxxxx XX 00000 Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
1 I have been issued a New York State Certificate of Authority,
# 00-0000000 to collect
---------------------------------------------------,
(Enter your sales tax vendor identification number)
New York State and local sales and compensating use tax, and this
certificate has not expired or been suspended or revoked.
2 The purchase I am making is exempt from the state or state and local sales
and use taxes because the property or the services will be used for the
exempt purpose indicated below.
================================================================================
Part I -- Promotional Materials Single purchase certificate only
of promotional materials that will be distributed to customers or
--- prospective customers located outside New York State for use outside the
% state. (The percentage must be filled in for this certificate to be
--- valid.) Only these promotional materials are exempt from all state and
local sales and use taxes.
================================================================================
================================================================================
Check one: |_| Single purchase certificate |_| Blanket certificate
This form cannot be used to purchase motor fuel or diesel motor fuel exempt from
sales tax or to relieve a vendor of the liability for the lubricating oil tax or
beverage container tax.
Part II -- Manufacturing Exemptions
|_| (a) Machinery and equipment, including parts with a useful life of more
than a year when purchased for use or consumption directly and
predominantly in the production of tangible personal property, gas,
electricity, refrigeration or steam for sale, or telephone central
office equipment or station apparatus or comparable telegraph
equipment used directly and predominantly to receive or initiate and
switch telephone or telegraph communication. Paragraph (a) purchases
are exempt from all state and local sales and use taxes.
|_| (b) Parts with a useful life of one year or less, tools or supplies used
directly and predominantly in production or used directly and
predominantly in or on the telephone or telegraph equipment or
apparatus described in paragraph (a) of this part, or:
Purchases of (check one or more boxes): |_| Fuel |_| Gas
|_| Electricity |_| Refrigeration |_| Steam
for use or consumption directly and exclusively in the production of
tangible personal property, gas, electricity, refrigeration or steam
for sale.
Paragraph (b) purchases are exempt from all state and local taxes
when delivered outside New York City and subject to New York City
local sales or use tax when delivered or used in New York City.
|_| (c) Installing, repairing, maintaining or servicing of the following are
exempt from state tax, but are subject to the New York City taxes
and all other local sales and use taxes:
-- machinery or equipment used directly and predominantly in
production;
-- telephone or telegraph central office equipment or station
apparatus used directly and predominantly to receive or
initiate and switch telephone or telegraph communication;
-- parts, tools or supplies described in paragraph (b) of this
part.
Part III -- Other exemptions -- exempt from all sales and use taxes
|_| (d) Tangible personal property for use or consumption directly and
predominantly in research and development in the experimental or
laboratory sense.
|_| (e) Cartons, containers, and other wrapping and packaging materials and
supplies, for use by a vendor to package tangible personal property
for sale and actually transferred to the purchaser of the property.
|_| (f) Purchases of (check one or more boxes): |_| Gas |_| Electricity
|_| Refrigeration |_| Steam
for use or consumption directly and exclusively in research and
development in the experimental or laboratory sense.
|_| (g) Other (describe exempt use and identify the section of the Tax Law
covering this exemption.)
____________________________________________________________________
____________________________________________________________________
================================================================================
Substantial penalties will result from misuse of this certificate
(see back of this form).
--------------------------------------------------------------------------------
Signature of owner,
partner, officer of
purchasing corporation, etc. Print name and give title Date
/s/ Xxxxxx X. XxXxxxxxx Xxxxxx X. XxXxxxxxx 5/28/98
--------------------------------------------------------------------------------
Uniform Commercial Code - FINANCING STATE - Form UCC-1
This FINANCING STATEMENT is presented to a Filing Officer for the filing
pursuant to the Uniform Commercial Code.
No. Of Additional Sheets Presented:
----------------------------------------------- ----------------------------
1. Debtor(s) (Last Name First) and Address(es): 4. For Filing Officer: Date,
Time, No. Filing Office
CVC Products, Inc.
000 Xxx Xxxx
Xxxxxxxxx, XX 00000 ----------------------------
----------------------------------------------
2. Secured Party(ies) Name(s) and Address(es)
M&T Financial Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
5. This Financing Statement covers the following types (or items) of property:
See Schedule A attached hereto and made a part hereof
--------------------------------------------------------------------------------
7. |_| The described crops are growing or to be grown on:*
|_| The described goods are or are to be affixed to:*
*(Describe Real Estate Below)
--------------------------------------------------------------------------------
8. Describe Real Estate Here: |_| This statement is to be indexed in the Real
Estate Records:
No. & Street Town or City County
--------------------------------------------------------------------------------
9. Name of a Record Owner
--------------------------------------------------------------------------------
10. |_| This statement is filed without the debtor's signature to perfect a
security interest in collateral under a security agreement signed by
debtor authorizing secured party to file this statement.
CVC Products, Inc. M&T Financial Corporation
---------------------------------- ----------------------------------
By /s/ Xxxxxx XxXxxxxxx By _______________________________
-------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies)
================================================================================
For Bank Use Only
Borrower:
Obligor #: _________________________
Filing Jurisdiction: New York State REF #:
================================================================================
UCC-1 (1-97) File Copy-Secured Party
PLEASE RETURN COPY TO:
M&T BANK
X.X. XXX 0000
XXXXXXX, XXX XXXX 00000
Schedule A
Equipment Description
(1) Metallurgical Microscope including:
1 Reconditioned Nikon Optiphot 66 Metallurgical Microscope;
1 Nikon 200X Plan APO Brightfield Lens;
1 Nomarski D.E.C. Set comprising Nosepiece, Polarizer, Analyzer and
first order Compensator and Prisms
Including all replacements, parts, substitutions, modifications, accessories,
additions, attachments, accessions and tools of Debtor now or hereafter
installed therein, affixed thereto or used or intended to be used in connection
therewith
Uniform Commercial Code - FINANCING STATE - Form UCC-1
This FINANCING STATEMENT is presented to a Filing Officer for the filing
pursuant to the Uniform Commercial Code.
No. Of Additional Sheets Presented:
----------------------------------------------- ----------------------------
1. Debtor(s) (Last Name First) and Address(es): 4. For Filing Officer: Date,
Time, No. Filing Office
CVC Products, Inc.
000 Xxx Xxxx
Xxxxxxxxx, XX 00000 ----------------------------
----------------------------------------------
2. Secured Party(ies) Name(s) and Address(es)
M&T Financial Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
5. This Financing Statement covers the following types (or items) of property:
See Schedule A attached hereto and made a part hereof
--------------------------------------------------------------------------------
7. |_| The described crops are growing or to be grown on:*
|_| The described goods are or are to be affixed to:*
*(Describe Real Estate Below)
--------------------------------------------------------------------------------
8. Describe Real Estate Here: |_| This statement is to be indexed in the Real
Estate Records:
No. & Street Town or City County
--------------------------------------------------------------------------------
9. Name of a Record Owner
--------------------------------------------------------------------------------
10. |_| This statement is filed without the debtors signature to perfect a
security interest in collateral under a security agreement signed by
debtor authorizing secured party to file this statement.
CVC Products, Inc. M&T Financial Corporation
---------------------------------- ----------------------------------
By /s/ Xxxxxx XxXxxxxxx By _______________________________
-------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies)
================================================================================
For Bank Use Only
Borrower:
Obligor #: _________________________
Filing Jurisdiction: New York State REF #:
================================================================================
UCC-1 (1-97) File Copy-Secured Party
PLEASE RETURN COPY TO:
M&T BANK
X.X. XXX 0000
XXXXXXX, XXX XXXX 00000
Schedule A
Equipment Description
(1) Metallurgical Microscope including:
1 Reconditioned Nikon Optiphot 66 Metallurgical Microscope;
1 Nikon 200X Plan APO Brightfield Lens;
1 Nomarski D.E.C. Set comprising Nosepiece, Polarizer, Analyzer and
first order Compensator and Prisms
Including all replacements, parts, substitutions, modifications, accessories,
additions, attachments, accessions and tools of Debtor now or hereafter
installed therein, affixed thereto or used or intended to be used in connection
therewith
