EXHIBIT 10.12
[LOGO] M&T Real Estate, Inc. MORTGAGE NOTE
Rochester, New York September 29, 1997 $ 2,000,000.00
BORROWER: CVC Products, Inc. a(n) |_| individual(s) |_| partnership
|X| corporation |_| trust |_| limited liability company |_| organized under the
laws of the State of Delaware Address of residence/chief executive office:
▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LENDER: M&T REAL ESTATE, INC., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-2399,
Promises to Pay. For value received, the undersigned ▇▇▇▇▇▇▇▇ promises to pay to
the order of the Lender at its office identified above in lawful money of the
United States and in immediately available funds, the sum of Two Million and
00/100 DOLLARS ($2,000,000.00) (the "Principle Sum") plus interest on the unpaid
portion of the Principal Sum, all amounts if any required for an escrow against
taxes and other charges pursuant to the Mortgage defined below (the "Escrow"),
and all Expenses (defined below).
Interest. The Borrower shall pay to the Lender interest, calculated on the basis
of a 360-day year consisting of twelve (12) 30-day months, on the outstanding
Principal Sum from and including the date of this Note to, but not including,
the Maturity Date at a rate per year that on each day shall be
|_| _________% per annum.
|_| _________% above the rate in effect as the rate announced by
Manufacturers and Traders Trust Company, as its prime rate of
interest on the first day of the calendar month containing
such day.
|_| _________% above LIBOR for a |_| one month period, |_| two month
period, |_| three month period or |_| six month period. If no
period is specified, a one month period shall be used. LIBOR
is defined on Rider B attached hereto and made a part of this
Note by this reference.
|x| See Rider C attached hereto and made part of this Note by reference.
If no rate is specified, interest shall accrue at the Maximum Legal Rate defined
below, fixed as of the date of disbursement.
Maximum Legal Rate. It is the intent of the Lender and the Borrower that in no
event shall such interest be payable at a rate in excess of the maximum rate
permitted by applicable law (the "Maximum Legal Rate"). If this Note is for a
personal loan of less than $2,500,000 and is secured primarily by a one- to
four-family residence, the interest rate shall not exceed 16%. Solely to the
extent necessary to prevent interest under this Note from exceeding the Maximum
Legal Rate, any amount that would be treated as excessive under a final judicial
interpretation of applicable law shall be deemed to have been a mistake and
automatically cancelled and if received by the Lender shall be refunded to the
Borrower.
Default Rate. Upon and after the Maturity Date or the occurrence or existence of
an Event of Default under the Mortgage, the interest rate on the unpaid
Principal Sum shall be increased to 3% per year above the otherwise applicable
rate per year, effective as of the date of the default or maturity. No failure
to impose or delay in imposing this Default Rate shall be construed as a waiver
by the Lender of its right to collect interest at the Default Rate for the
period from the Maturity Date or the commencement of the default, as applicable,
to but not including the earlier of the date (a) the default is cured to the
satisfaction of the Lender in its sole discretion or (b) this Note is paid in
full.
Term. The term of this Note is 10 years from the date of issue. The Maturity
Date is October 1, 199__/2007.
Repayment of Principal and Interest The Borrower shall pay the Principal Sum and
interest owing pursuant to this Note to the Lender in installments as follows:
(1) one installment of interest payable on the date of this Note equal
in amount to the interest which will accrue during the period
beginning on the date of this Note and ending on the last calendar
day of the same month and year;
|_| (2) ______consecutive monthly installments of principal each in the
amount of $ _____________________ shall become due and payable on
the first day of each month commencing on ________________________ ,
199_; with an equal number of installments of interest in amounts
which may vary, which shall become due and payable on the first day
of each such month;
OR
|_| (2) ______consecutive level monthly installments consisting of both
principal and interest amortized over a period of ______ years, each
installment being in the amount of $ ________________ , shall become
due and payable on the first day of each month commencing on
__________________ , 199_. If the Borrower elects a variable
interest rate and there is a change in such interest rate, the
remaining consecutive level monthly installments consisting of both
principal and interest may be adjusted to reflect such change in the
interest rate.
OR
|X| (2) See Rider C attached hereto and made part of this Note by reference.
AND
(3) one final installment of principal, interest, premiums and Expenses
to become due on the Maturity Date and to be equal to the total of
the outstanding Principal Sum and all accrued and unpaid interest,
premiums and all other amounts owing pursuant to this Note and the
Mortgage and remaining unpaid.
Late Charge. If the Borrower fails to pay the whole or any installment of
principal or interest owing pursuant to this Note or Escrow payment owing
pursuant to the Mortgage within ten days of its due date, the Borrower shall
immediately pay to the Lender a late charge equal to six percent (6%) of the
delinquent amount.
Application of Payments. Each payment pursuant to this Note shall be applied
first to accrued and unpaid interest, next to Principal, next to the Escrow,
next to late charges, and finally to Expenses.
Prepayment. See Rider A attached to and made part of this Note by this
reference.
Events of Default; Acceleration. This Note is secured by a mortgage dated on or
about the date of this Note executed by the Borrower [and by the County of
Monroe Industrial Development Agency (if Mortgagor is not Borrower)] (the
"Mortgage") and is entitled to the benefits thereof. An Event of Default under
the Mortgage is an Event of Default under this Note. All amounts under this Note
shall become immediately due and payable without any notice, demand, presentment
or protest of any kind (each of which is waived by the Borrower) (a)
automatically, if the Borrower or Mortgagor or any guarantor commences any
bankruptcy or insolvency proceeding, if voluntary, and upon the lapse of 30 days
without dismissal if involuntary, (b) at the sole option of the Lender, upon and
during the continuance of any other event or condition specified in the Mortgage
as an Event of Default and the passage of any applicable grace period, and (c)
at the sole option of the Lender, upon or at any time after the Maturity Date,
regardless of whether the Lender has accepted any partial payments after the
Maturity Date.
Right of Setoff. If an Event of Default occurs, the Lender or its agents shall
have, in addition to its other rights, the right to set off against the amounts
owing under this Note any deposit account or other property held by the Lender,
its agents or affiliates in any capacity for the Borrower, Mortgagor or any
guarantor. Such right of setoff shall be deemed to have been exercised
immediately at the time of such election.
[LOGO] M&T Real Estate, Inc. RIDER A TO MORTGAGE NOTE
Rider A to Mortgage Note dated September 29, 1997
in the Original Principal Amount of $2,000,000.00
and Executed by CVC Products, Inc.
Prepayment Premium. During the term of this Note, the Borrower shall have the
option of paying the Principal Sum to the Lender in advance of the Maturity
Date, in whole or in part, at any time and from time to time upon written notice
received by the Lender at least thirty (30) days prior to making such
prepayment; provided, however, that together with such prepayment, the Borrower
shall pay to the Lender a premium equal to the greater of (a) one percent (1%)
of the Principal Sum prepaid, or (b) an amount equal to (i) the difference
between the Note rate and the most recent yield on United States Treasury
Obligations adjusted to a constant maturity having a term most nearly
corresponding to the term remaining from the date of prepayment to the Maturity
Date, in effect two (2) business days prior to the prepayment date as published
by the Board of Governors of the Federal Reserve System in the Federal Reserve
Statistical Release H.15 (519), or by such other quoting service, index or
ommonly available source utilized by Manufacturers and Traders Trust Company
multiplied by (ii) a fraction, the numerator of which is the number of days
remaining in the Term and the denominator of which is 365, multiplied by (iii)
the Principal Sum so prepaid. Upon making any prepayment of the Principal Sum in
whole, the Borrower shall pay to the Lender all interest and Expenses owing
pursuant to this Note and remaining unpaid. Each partial prepayment of the
Principal Sum shall be applied in inverse order of maturity to the principal
included in the installments provided for in the paragraph of the Note captioned
"Repayment of Principal and Interest."
In the event the Maturity Date of this Note is accelerated following an Event of
Default, any tender of payment of the amount necessary to satisfy the entire
indebtedness made after such Event of Default shall be expressly deemed a
voluntary prepayment. In such a case, to the extent permitted by law, the Lender
shall be entitled to the amount necessary to satisfy the entire indebtedness,
plus the appropriate prepayment premium calculated in accordance with the
preceding paragraph.
CVC PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice
President and Chief Financial Officer
Rider C to $2,000,000.00 Mortgage Note
From
CVC Products, Inc. ("Borrower")
to
M&T Real Estate, Inc. ("Lender")
Dated September 29, 1997
This Rider is intended to supplement the preprinted terms of the
above-referenced Note and Rider A, however, in the event of a conflict between
the terms of this Rider and the terms of the Note and Rider A, the terms of this
Rider shall prevail.
Interest Rate
I. From and including the date of this Note to the earlier of (a) October
1, 1999 or (b) the date the Lender's participation in the Excelsior Linked
Deposit Program sponsored by the New York State Department of Economic
Development (the "Excelsior Program") terminates with respect to this Note, the
Borrower shall pay to the Lender interest on a portion of the Principal Sum in
the amount of $500,000.00 at the fixed rate of 5.29% per annum. From and
including the date of this Note to the earlier of (a) October 1, 1999 or (b) the
date the Lender's Excelsior Program terminates with respect to this Note, the
Borrower shall pay to the Lender interest on the remaining $1,500,000.00 of the
Principal Sum at the fixed rate of 8.29% per annum.
II. From either (a) or (b) above to October 1, 2002 (the "Adjustment
Date"), the Borrower shall pay to the Lender interest on the Principal Sum at
the fixed rate of 8.29% per annum.
III. From and including the Adjustment Date to but not including October
1, 2007 (the "Maturity Date"), the Borrower shall pay interest on the Principal
Sum at a rate per year which shall be either:
Option A (Fixed Rate):
The rate per year of such interest shall be a fixed rate equal to 225
basis points above the yield on United States Treasury Obligations adjusted to a
constant maturity of five (5) years in effect two (2) business days prior to the
Adjustment Date as published by the Board of Governors of the Federal Reserve
System in the Federal Reserve Statistical Release H.15 (519), or by such other
quoting system index or commonly available source utilized by the Lender.
Option B (Variable Rate):
The rate per year of such interest shall be one-half percent (.50%) above
the rate announced by Manufacturers and Traders Trust Company as its prime rate
of interest on the first day of the calendar month containing such day (the
"Prime Rate").
Borrower shall select either Option A or Option B by written notice to
Lender not less than ten (10) days prior to the Adjustment Date. If no selection
is made, Option B shall be effective on the Adjustment Date.
Repayment of Principal and Interest
Commencing on November 1, 1997 and continuing monthly thereafter until the
Maturity Date, the Borrower shall pay the Principal Sum and interest owing
pursuant to this Note to the Lender in installments as follows:
A. For the two (2) year period beginning on November 1, 1997,
the Principal Sum shall be allocated to two (2) separate amounts for
purposes of repayment:
(1) Commencing on November 1, 1997, 24 installments of
principal and interest in the amount required to fully amortize
$500,000.00 of the Principal Sum at the rate of 5.29% over a twenty
(20) year period, each installment in the amount of $3,380.40, such
installments to become due on the first day of each succeeding
calendar month through and including October 1, 1999.
(2) Commencing on November 1, 1997, 24 installments of
principal and interest in the amount required to fully amortize the
remaining $1,500,000.00 of the Principal Sum at the rate of 8.29%
over a twenty (20) year period, each installment in the amount of
$12,818.67, such installments to become due on the first day of each
succeeding calendar month through and including October 1, 1999.
B. For the three (3) year period beginning on November 1,
1999:
(1) Commencing on November 1, 1999, 36 installments of
principal and interest in the amount required to fully amortize the
Principal Sum over an eighteen (18) year period, such installments
to become due on the first day of each succeeding calendar month
through and including October 1, 2002.
If the Excelsior Program terminates prior to October 1, 1999,
the monthly installments provided for in this Subsection B(1) shall
commence on the first day of the month following such termination
and payments shall be based upon the remaining amortization period.
C. For the five (5) year period beginning on the Adjustment
Date whether the Variable Rate or Fixed Rate is effective:
(1) fifty-nine (59) installments of principal and interest in
the amount required to fully amortize the Principal Sum over a
fifteen (15) year period, with the first of such installments to
become due on the first day of the month following the Adjustment
Rate and one of such installments to become due on the first day of
each succeeding calendar month to the Maturity Date.
(2) one final installment of principal and interest to become
due on the Maturity Date and to be equal to the total of the
outstanding Principal Sum, and all interest, premiums, Expenses and
all other sums owing pursuant to this Note and remaining unpaid.
In the event the Prime Rate is increased or decreased while the
Variable Rate is effective, the Variable Rate will be increased or
decreased as of the first day of the next succeeding month following such
change, so that the Variable Rate shall at all times be one-half percent
(.50%) per annum higher than the Prime Rate. In the event of such change
in the Variable Rate, the monthly payments provided for in this paragraph
shall be adjusted so as to reflect the change in the Variable Rate, and
the installment of principal and interest required to fully amortize the
Principal Sum over the remaining amortization term at the increased or
decreased Variable Rate shall be effective as of the first day of the
second month following a change in the Prime Rate, provided that in the
event the Prime Rate changes on the first day of a month, the installment
of principal and interest required to fully amortize the Principal Sum
over the remaining amortization term at the increased or decreased
Variable Rate shall be effective as of the first day of the next
succeeding month following such change.
Prepayment
Notwithstanding the provisions of Rider A to this Note:
A. In the event the Variable Rate is in effect, the Borrower shall have
the option of paying the Principal Sum to the Lender in advance in full or
in part at any time and from time
3
to time upon written notice received by the Lender at least 30 days prior
to making such payment, without premium.
B. In the event the Variable Rate is not in effect, the Borrower shall
have the option of paying the Principal Sum to the Lender in advance in
full or in part at any time and from time to time upon written notice
received by the Lender at least 30 days prior to making such payment in
accordance with Rider A attached, except that no prepayment premium shall
be due during the thirty (30) days immediately preceding the Adjustment
Date.
CVC PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Senior Vice President and Chief
Financial Officer
STATE OF NEW YORK )
COUNTY OF MONROE ) SS:
On this 29th day of September, 1997, before me, the subscriber,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, to me known, who, being by me duly
sworn, did depose and say that he resides in Rochester, New York, that he is a
Senior Vice President and Chief Financial Officer of CVC PRODUCTS, INC., the
corporation described in, and which executed the within Instrument, and that he
signed his name thereto by order of the Board of Directors.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Notary Public
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public, State of New York
No. 02RE5004856
Qualified in Monroe County
Certificate Filed in Monroe County
Commission Expires Nov. 23, 1998
4
