EXHIBIT 10.21
LETTER OF CREDIT REIMBURSEMENT AGREEMENT
[LOGO] M & T BANK
LETTERS OF CREDIT Date 11-21-95
APPLICANT: CVC Holdings, Inc.
a(n) |_| individual(s) |_| partnership |X| corporation |_| _____________________
organized under the laws of N.Y. State
Address of residence/chief executive officer: ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ Phone:_______________ Fax:__________________________
ACCOUNT PARTY (If any):_________________________________________________________
a(n) |_| individuals |_| partnership |_| corporation |_| ______________organized
under the laws of ___________________________
Address of residence/chief executive office: ___________________________________
To induce the Bank to issue letters of credit (each a "Credit") from time
to time, Applicant hereby agrees that the following terms and conditions shall
apply to each Credit issued by the Bank at the request of Applicant.
1. Definitions. Capitalized terms not expressly defined below have the
meanings assigned in the UCP, or if not there defined, in the UCC.
(a) The "Bank" means Manufacturers and Traders Trust Company, a New York
banking organization with its chief executive ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇&▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(b) "Banking Day" means the hours between 8:30 am and 4:30 pm on a day
on which the Bank is open for business. Monday through Friday
excluding federal holidays; except that with respect to payment by
electronic funds transfer the Banking Day ends at 3:00 pm.
(c) A "Draft" means any draft, instrument, receipt, acceptance or
drawing certificate or cable, telexed, teletransmitted or other
written demand for payment purportedly drawn under the Credit.
(d) "Property" means goods and merchandise and any and all related
documents, securities, funds, choses in action, and any and all
other forms of property, whether real, personal or mixed, and any
right or interest therein which Applicant purchases or obtains in
connection with the issuance of a Credit.
(e) "UCC" means the Uniform Commercial Code in effect in the State of
New York from time to time.
(f) "UCP" means the Uniform Customs and Practice for Documentary Credits
(1993 revision), ICC Publication No. 500, and any subsequent
revisions thereof approved by a congress of the International
Chamber of Commerce and adhered to by the Bank.
2. Reimbursement for Drafts.
(a) Drafts in United States Currency. For each Draft which is payable in
United States currency, Applicant will reimburse the Bank at its
office on demand in immediately available funds:
(1) For each sight draft, demand or receipt, Applicant will
reimburse the Bank immediately on demand on the same day for
the entire amount paid by the Bank; or if so requested by the
Bank, Applicant will pay such amount in advance of payment by
the Bank.
(2) For each acceptance, Applicant will pay on demand the entire
amount to be paid by the Bank, not later than one Banking Day
prior to maturity. If the acceptance is not payable at One
Bank, then Applicant will pay such amount in time to reach the
place of payment by ordinary mail not later than one Banking
Day prior to maturity of the acceptance.
(b) Drafts in Foreign Currency. For each Draft payable in foreign
currency, Applicant will reimburse the Bank at its office on demand
in immediately available United States funds:
(1) For each sight draft, demand or receipt, Applicant will
reimburse the Bank in an amount equal to (A) the full amount
paid, computed at the Bank's selling rate of exchange in New
York two Banking Days prior to the date of payment of the
Draft for cable transfers to the place of payment in the
currency in which the Draft is payable, plus (B) interest at
the rate set forth below for each day from the date of payment
of the Draft until the day the Bank actually receives
reimbursement or is so requested by the Bank, Applicant will
pay the full amount in advance of payment of the Draft.
(2) In the case of each acceptance, Applicant will pay the Bank
the entire amount to be paid by the Bank pursuant to such
acceptance, computed at the Bank's selling ) rate of exchange
in New York two Banking Days prior to the date of payment,
sufficiently in advance of maturity to enable the Bank to
arrange for cover to reach the place of payment not later than
one Banking Day prior to maturity.
(3) If at the time for computing payment there exists no rate of
exchange generally current in New York for effecting such
cable transfers, Applicant agrees to pay the Bank on demand an
amount in United States currency equal to the actual cost to
the Bank of settlement of the Bank's obligation to the holder
of the Draft, however and whenever such settlement is made by
the Bank, plus interest at the rate set forth below payable
for each day from the date of settlement to but not including
the date the Bank receives reimbursement in full.
(c) Direct Debit. Applicant authorizes the Bank to obtain such
reimbursement and all Fees, Expenses and Costs (defined below) by
direct debit to Applicant's deposit or investment account at the
Bank on or before the day on which the Draft is honored.
3. Fees and Expenses. Applicant agrees to pay to the Bank on demand the
Bank's fees and commissions ("Fees") for each Credit at the rate
established by the Bank from time to time, plus all otherwise unreimbursed
charges, correspondent and transfer fees and similar expenses paid or
incurred by the Bank in connection with delivering, negotiating, advising,
confirming, transferring or otherwise processing a Credit or Draft under
a Credit ("Expenses"), Applicant shall pay interest at the rate set forth
below on any Fees, Expenses or Costs (defined below) not paid immediately
on demand. In addition, if the Bank's expenses for carrying a Credit
should be increased after the Issuance by an increase in a related
(illegible) weighted capital or similar receive requirement. Applicant
shall reimburse the Bank for the cost of maintaining such additional
reserves, computed daily at the federal funds rate.
4. Interest. Applicant agrees that if for any reason the Bank makes payment
under a Credit prior to the Bank's receipt of funds from Applicant or does
not receive payment for Fees or Costs immediately or demand, Applicant
will pay interest to the Bank on demand on the entire unpaid amount from
the date of Bank's payment to the date on which Bank receives actual
reimbursement, at that rate per year which is on each day 5% above the
effective rate announced by the Bank from time to time as its prime rate.
Interest shall be calculated on the basis of a 360-day year for the actual
number of days in each year (365 or 366) the indebtedness is outstanding.
It is the intent of the Bank and Applicant that interest not exceed the
maximum legal rate. Solely to the extent necessary to prevent interest
under this Agreement from exceeding the maximum legal rate, any amount
that would be treated as excessive under a final judicial determination of
applicable law shall be deemed to have been a mistake and be returned to
Applicant.
5. Security Interest in Transport Documents and Deposit Account. As further
security for the performance of all of Applicant's obligations now or
hereafter owing to the Bank, Applicant assigns to the Bank and grants the
Bank's continuing first security interest in all Documents and Property
Page 03
delivered to the Bank in connection with a Credit, whether or not released in
trust to Applicant in advance of reimbursement, and in any other property of
Applicant and Account Party in the Bank's (illegible) Applicant and Account
Party who acknowledge the Bank's right set off against their obligations under
this Agreement any other property of Applicant of Account Party in any capacity
held by the Bank in any (illegible). Applicant grants to the Bank a subordinate
security interest in all collateral paid by each respective Beneficiary of each
Credit and agrees that the Bank shall be subrogated to Applicant's rights with
respect to each Beneficiary and such collateral immediately upon payment of the
respective Credit.
6. Other Matters Pertaining to Credits.
(a) No Liability. No section or omission by the Bank or its
correspondents in connections with a Credit, taken in good faith and
in conformity with foreign or domestic laws, regulations or customs,
shall create any liability on the part of the Bank to Applicant. The
Bank shall not be responsible for any act, error, neglect or
default, omission, insolvency or failure in business of any of its
correspondents or of any immediate or beneficiary bank, nor for any
delay or omission in processing any Credit resulting from
interruption or failure of any payment system or communications,
medium, court order or any other causes beyond the Bank's control.
In no event shall the Bank be liable for consequential or special
damages
(b) Indemnity. All actions and omissions of the Bank and its
correspondents in connection with the Credit or refused Drafts,
bills of lading, warehouse receipts or other Documents of Property
taken in good faith and in conformity with such foreign or domestic
laws, regulations or customs as the Bank or its respective
correspondent may deem applicable shall be binding upon Applicant.
No such action or omission shall place the Bank or any of its
correspondents under any liability to Applicant. Applicant agrees to
indemnify and hold harmless the Bank and its correspondents against
all claims, demands, losses, liabilities, costs, expenses and
damages, including without limitations the Bank's actual attorneys'
fees and disbursements ("Costs") arising in connection with this
Agreement and each Credit, with any injunction against payment of a
Credit, or in preserving the Bank's rights or collecting
reimbursements or negotiating and documenting a workout of
Applicant's obligations under this Agreement.
(c) Payment of Drafts. Applicant understands that the Bank must accept
or pay any Draft preserved to it and dated on or before the
expiration date of the Credit, regardless of when drawn and whether
or not negotiated, if the Draft is accompanied by all other required
documents and appears on its face to be in substantial compliance
with the terms and conditions of the Credit, and in within the
maximum stated amount of the Credit; (1) even though individual or
aggregate shipments exceed the quantity called for in the Credit,
the Bank may honor related Drafts up to the maximum [ILLEGIBLE]
amount of the Credit, (2) insurance for Property under a commercial
Credit need not exceed the maximum stated amounts of the Credit; and
(3) the Bank may honor any Draft or other documents otherwise in
order signed or issued by an administrator, executor (illegible) in
bankruptcy, debtor in possession, assignee, liquidator, receiver or
other legal representative or other purported successor of the
Beneficiary of the Credit.
(d) Notice of Errors. Applicant will promptly examine the copy of the
Credit and of all amendments delivered to it from time to time by
the Bank and will notify the Bank of any apparent errors in writing
within one day of receipt of such documents. Absent such
(illegible), Applicant shall be conclusively deemed to have waived
all claims against the Bank and its correspondents with respect to
the form of the Credit.
(e) Waiver of Discrepancies. If the Bank determines that a draft or
accompanying documents appear on their face not be in compliance
with the terms and conditions of the Credit, the Bank may in its
sole judgment approach the Applicant for a waiver of the
discrepancies. Applicant will make its decision known to the Bank
within one business day of receipt of the Bank's Inquiry, or sooner
if necessary to enable the Bank to timely pay rather than reject the
Draft. If Applicant such waives discrepancies, Applicant will remain
bound by the terms of the Agreement.
(f) Amendments. If a Credit is amended, modified or changed in any
respect with Applicant's consent, or if a (illegible) is issued at
Applicant's direction, Applicant shall be bound by the terms of this
Agreement with respect to the respective Credit if the amendment
increases the liability of the Bank. Applicant shall be bound as of
the date of issuance of the amendment; if the amendment decreased
the liability of the Bank, Applicant's liability shall be decreased
only as of the date the Beneficiary consents to the amendment.
(g) Independence of Credit. Neither the Bank nor any of its
correspondents shall be responsible for: (1) any use which may be
made of the Credit or for any acts or omissions of any users of the
Credit; (2) the existence, character, quantity, quality, condition,
packing or value of any Property; (3) the time, place, manner,
order, delay, default or omission of notice in connection with the
shipment of any Property or Documents; (4) the validity, sufficiency
or genuineness of documents or endorsements; (5) the character,
adequacy or validity of any insurance concerning the Property; (6)
the solvency, responsibility or relationship to the Property of any
party issuing any Documents; (7) failure of any instrument to bear
adequate reference to the Credit, failure of Documents to accompany
any instrument of negotiation, or failure of any person to note the
amount of any instrument on the reverse of the Credit or to
surrender or take up the Credit or to forward Documents apart from
the instruments as required by the terms of the Credit, each of
which requirements may be waived by the Bank; or (8) errors,
omissions, interruptions or delays in delivery of any messages,
whether by mail, teletransmission, or otherwise, and whether or not
encrypted.
(h) Insurance. Applicant shall provide evidence that it maintains
insurance covering the Property in [ILLEGIBLE] against risks and
provided by companies satisfactory to the Bank and shall assign the
policies of insurance to the Bank or name the Bank as additional
insured and loss payee, as appropriate, at the Bank's option.
Absent such insurance, the Bank may obtain insurance at Applicant's
expense.
7. Additional Covenants. Applicant represents, warrants and agrees that so
long as this Agreement is in effect:
(a) Authorization. Applicant is and will remain duly organized and
existing in the jurisdiction of its organization and authorized to
do business in all jurisdictions material to the conduct of its
business. Applicant has the power and capacity and has taken all
corporate or partnership action necessary to authorize Applicant to
execute and deliver and perform the obligations under this
Agreement. Applicant will not change its ownership or form of
authorization without (i) obtaining the prior written consent of the
Bank and (ii) posting cash collateral equal to the aggregate amount
of all outstanding Credits plus increase of the Bank's announced
prime rate from the date of change to the expiration date of each
retroactive Credit.
(b) Financial Records. Applicant will furnish financial statements and
information satisfactory to the Bank upon request. Applicant will
keep accurate and complete books and records, expressly including
all records required pursuant to currency and trade regulations as
in effect from time to time.
(d) Legality. The transactions covered by such Credit are not prohibited
under the Foreign Assets Control Regulations of the United States
Treasury Department, the Internal Revenue Code of 1986, as amended
from time to time, the Export Administration Act of 1977, as
amended, or related laws and regulations thereunder. Any transfer of
monies or importation covered by Credit shall conform in every
respect with all applicable federal and state laws and foreign and
domestic government regulations. Applicant has procured all licenses
necessary for trading and shipment of the Property and shall furnish
all certificates as the Bank may at any time require. Applicant is
solely responsible for the structure, contents, form and legal
compliance and consequences of each Credit issued pursuant to
Applicant's instructions.
(e) Security Procedures. Applicant assumes all risks resulting from
facsimile and other teletransmission of applications and Credits,
whether or not encrypted, and undertakes to comply with all security
procedures implemented by Bank including without limitation those to
safeguard or authenticate facsimile and other teletransmission and
other electronic communication of applications and Credits and
electronic funds transfer payment orders with respect to proceeds of
Drafts. Applicant acknowledges receipt of notice, with respect to
payment of Drafts to the Beneficiary of a Credit via electronic
funds transfer that under UCC Article 4A the originating bank, all
intermediary banks and the Beneficiary's bank are entitled to rely
on the Beneficiary's bank number and account number alone in making
final payment and have no duty to discover any discrepency between
the number given and the name of the intended payee. APPLICANT
AGREES TO VERIFY ALL FUNDS TRANSFER INSTRUCTIONS WITH EXTRAORDINARY
CARE and expressly indemnify the Bank against any losses or
duplicate payments necessitated by or resulting from Bank's reliance
on erroneous funds transfer instructions in a Credit issued pursuant
to Applicant's instructions.
-2-
PAGE 04
8. Events of Default and Remedies.
(a) An event of default ("Event of Default") will have occurred if: (1)
Applicant fails to pay when due, whether by demand, acceleration or
otherwise, any indebtedness to Bank, or if there occurs any event
which after notice or lapse of time will permit such acceleration;
(2) Applicant breaches or is in default under any agreement between
Applicant and Bank; (3) Applicant or any guarantor or endorser of
its obligations to Bank (an "Account Party") dies or is determined
incompetent, is dissolved, suspends its present business, agrees to
a merger or other absorption or to transfer or otherwise dispose of
substantially all of its assets or makes or sends notice of a bulk
sale; becomes insolvent (however such insolvency is evidenced),
generally fails to pay its debts as they become due, fails to pay,
withhold, collect any tax as required by law, has served or filed
against it or its assets any lien, judgment, order or award; (4) a
receiver or similar trustee is appointed for Applicant or its assets
or any Account Party or general partner of either (with or without
the agreement), or Applicant or its Account Party or general partner
makes an assignment for the benefit of creditors or commences or has
commenced against it a proceeding pursuant to any bankruptcy law;
(5) any representation, warranty, statement or information made or
furnished by Applicant to Bank proves to have been false or
misleading in any material respect (including without limitation by
omission of any contingent or unliquidated liability or claim
against Applicant); (6) there occurs any change in the management or
ownership of Applicant or any Account Party which is, in the opinion
of the Bank, materially adverse to the Bank's interest and which
remains uncorrected for thirty days after the Bank notifies
Applicant of its opinion; (8) the Bank in good ▇▇▇▇▇ ▇▇▇▇▇ itself
insecure with respect to reimbursement under this Agreement for any
outstanding Credits whether or not Drafts thereunder have yet been
presented. As obligations hereunder whether or not mature and
whether direct or contingent shall become immediately due and
payable (A) automatically if Applicant or any Account Party
commences or has commenced against it any bankruptcy or insolvency
proceeding and (B) at the Bank's option upon the occurrence of any
other Event of Default. This paragraph shall not cause any
indebtedness not to be payable on demand.
(b) Cumulative Remedies. Bank's rights and remedies shall be cumulative
and include those of a secured party under the Uniform Commercial
Code and other applicable law. In addition to those granted in this
and any other agreement between Bank and Applicant or Account Party.
Upon an Event of Default
9. Miscellaneous.
(a) Non-Waiver by Bank. No single, partial or delayed exercise by the
Bank or any right of remedy shall preclude full and timely exercise
by the Bank at any time of any other right or remedy of the Bank
without notice or of the same right or remedy at any other time. No
course of dealing or other conduct, no oral agreement or
representation made by the Bank or usage of trade shall operate as a
waiver of any right or remedy of the Bank. No waiver shall be
effective unless made specifically in writing by the Bank.
(b) Binding Obligation. This Agreement is binding on Applicant and its
legal representatives, successors and assigns and shall inure to the
benefit of the Bank and its successors and assigns. If Applicant
includes more than one person, their obligations hereunder shall be
joint and several. If a third party executes an Authorization and
Agreement of Account Party substantially in form attached or other
guaranty accepted by the Bank, with respect to this Agreement or a
Credit, the obligations of Applicant and such Account Party shall be
joint and several. If Applicant is a partnership, its obligations
shall continue in force, notwithstanding any change in its
membership, whether arising from the death or retirement of one or
more partners or the accession of one or more new partners.
(c) Issuance Discretionary. The Bank may decline to issue any future
Credit under this agreement or to accept any Draft prior to
maturity, at the Bank's sole discretion.
(d) Termination. This Agreement will continue in full force and effect
until terminated. It may be terminated (1) by the Bank at any time
if the Bank in good ▇▇▇▇▇ ▇▇▇▇▇ itself insecure with respect to
reimbursement, or (2) by Applicant upon actual receipt of written
notice sent as provided below; provided, however, that Applicant's
obligations under this Agreement shall remain in full force and
effect until all amounts due and to become due with respect to
Credits issued or committed for prior to termination, and any
extensions or renewals, have been paid in full, together with
interest and all Costs and Expenses.
(e) Notices. Notices to Applicant by the Bank may be delivered by
telephone with subsequent written confirmation by mail or
teletransmission. Written notice shall be deemed delivered when
deposited in the United States mail or transmitted to Applicant at
the last address of Applicant shown on the Bank's records. Applicant
will notify Bank promptly of any change in address. Notice to the
Bank by Applicant must be in writing, or by telephone with
subsequent written confirmation, refer specifically to this
Agreement and the Credit, and shall be deemed delivered upon actual
receipt via courier or registered mail by the Manager, Letter of
Credit Department, at the address on page one of this Agreement.
(f) Construction. This Agreement shall be interpreted as consistent with
existing law and shall be deemed amended to the extent necessary
to comply with any conflicting law. If a court deems any provision
invalid, the remainder of this Agreement shall remain in effect.
This Agreement with the application for each Credit, the Credit and
all related security agreements, mortgages, guarantees and
collateral documents, is the entire agreement among the parties
concerning the Credit. The Bank can amend this Agreement at any time
as required for consistency with applicable law, by notice by mail
to Applicant. Credits can be amended only as provided by the UCR.
Otherwise, no modification or amendment can be made except in a
writing signed by the party against which enforcement is sought.
Headings in this Agreement are solely for convenience. Singular
number includes plural and neuter gender includes masculine and
feminine as appropriate.
(g) Governing Law. Each Credit shall be subject to the UCR. The
provisions herein are supplemental to and not in substitution of the
UCR. As to matters not governed by the UCR, this Agreement shall be
governed by the laws of the State of New York as in effect from time
to time.
(h) Jurisdiction. In any action or other legal proceeding relating to
this Note, Applicant (1) consent to the permanent jurisdiction of
any State or federal court located in the State of New York and (2)
agrees that a copy of this Agreement, any application, any Credit,
and Documents or any other relevant document kept in the Bank's
course of business may be admitted into evidence as an original.
(i) WAIVER OF JURY TRIAL. BANK AND APPLICANT EACH WAIVE ANY RIGHT TO
TRIAL BY JURY IN ANY ACTION IN CONNECTION WITH THIS AGREEMENT AND
ANY CREDIT OR APPLICATION HEREUNDER.
Date: 11/21/95 CVC HOLDINGS, INC.
--------------------------------------------
Name of Applicant (Signed)
Tax ID/SS#: ▇▇-▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Type Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Title
Senior V.P. Finance & CFO
By:
-------------------------------- -----------------------------------------
Signature of Witness Type Name:
------------------------ Title
--------------------------------
Typed Name of Witness
BANK USE ONLY:
Authorization Confirmed
--------------------------------
Bank Officer
PAGE 05
AUTHORIZATION AND AGREEMENT BY ACCOUNT PARTY
We join in the request to Bank to issue Credit on the terms and conditions
set forth above. In consideration thereof, irrevocably agree that: (1) the above
Applicant has the sole right to give instructions and execute agreements and
amendments with respect to the Credits and the disposition of documents; (2) we
shall be jointly and severally liable as a primary obligor for all obligations
owing to Bank in connection with the foregoing Agreement and the Credits and we
shall have no right, claim, setoff or defense against Bank or Bank's
correspondents respecting any matter arising in connection therewith; and (3) we
hereby waive any claim, right or remedy which we may now have or hereafter
acquire against Applicant that arises hereunder or from our performance
hereunder including without limitation, any claim, remedy or right of
subrogation, reimbursement, exoneration, indemnification, contribution or
participation in any claim, right or remedy of Bank against Applicant or any
security which Bank now has or hereafter acquires, whether or not such claim,
right or remedy arises in equity, under contract, by statute, under common law
or otherwise.
-4-
PAGE 06
[ILLEGIBLE]
Office/Position Name Signature
President & CEO ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
VP of Finance & CFO ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Secretary ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
[ILLEGIBLE], I have signed [ILLEGIBLE] this __________ day of _________, 19__.
|_| [ILLEGIBLE]
/s/ [ILLEGIBLE]
--------------------------------------------
Signature Title Secretary
--------------------------------------------
Signature Title
