EXHIBIT 10.14
[LOGO] M&T Real Estate, Inc. CONTINUING GUARANTY
(Corporation or Partnership)
GUARANTOR: CVC Holdings, Inc.
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Name
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Address of Chief Executive Office
a |x| corporation |_| general partnership |_| limited partnership,
|_| _______ organized under the laws of the State of Delaware
BORROWER: CVC Products, Inc.
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Name
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Address
LENDER: M&T Real Estate, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
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1. Guaranty. (a) Guarantor guarantees to the Lender the full and immediate
payment and performance of all of Borrower's obligations to the Lender from time
to time of every kind and nature, now existing and hereafter incurred, direct
and contingent, liquidated and unliquidated, secured and unsecured, matured and
unmatured, including all accrued and unpaid interest and all Expenses (defined
below) even if such obligations were originally contracted with another lender
or jointly with other borrowers, even if not evidenced by a writing, and even if
periodically reduced and thereafter increased or extinguished and reincurred
(the "Obligations"). Guarantor will pay or perform its obligations under this
Guaranty upon demand. This is a guaranty of payment, not collection.
(b) Guarantor acknowledges the receipt of valuable consideration for this
Guaranty and acknowledges that the Lender is relying on the Guaranty in making a
financial accommodation to Borrower, whether a commitment to lend, extension,
modification or replacement of, or forbearance with respect to, any Obligation,
cancellation of another guaranty, purchase of Borrower's assets, or other
valuable consideration.
2. Continuing, Unconditional and Unlimited Guaranty. This Guaranty is
irrevocable, continuing, unconditional and general without any limitation unless
specified in the following blank: Guarantor's obligation under this Guaranty
shall be limited in amount to (1) $__________________ of the principal amount of
the Obligations plus (2) a proportionate share (i.e., in the same proportion as
the amount in (1) above bears to the total principal amount of the obligations)
of all accrued and unpaid interest, premiums and Expenses (as defined below).
3. Guarantor's Waivers. (a) Guarantor's obligations shall not be released,
impaired or affected in any way by (i) Borrower's bankruptcy, reorganization or
insolvency under any law or that of any other party, or by any action of a
trustee in any such proceeding; (ii) failure of any other party to perform its
obligations to the Lender; or (iii) any other circumstance that might constitute
a legal or equitable defense to Guarantor's obligations under this Guaranty,
including without limitation: (A) any new agreements or obligations of Borrower
with or to the Lender, amendments, changes in rate of interest, extensions of
time for payments, modifications, renewals or the existence of or waivers of
default as to any existing or future agreements of Borrower or any other party
with the Lender; (B) any adjustment, compromise or release of any Obligations of
Borrower, by the Lender or any other party; the existence or nonexistence or
order of any filings, exchanges, releases, impairment or sale of, any security
for the Obligations, or the order in which payments and proceeds of collateral
are applied; or acceptance by the Lender of any writing intended by any other
party to create an accord and satisfaction with respect to any of the
Obligations; (C) any delay in or failure to call for, take, hold, continue,
collect, preserve or protect, replace, assign, sell, lease, exchange, convert or
otherwise transfer or dispose of, perfect a security interest in, realize upon
or enforce any security interest in any security for the Obligations, regardless
of its value; (D) any exercise, delay in the exercise or waiver of, any failure
to exercise, or any forbearance or other indulgence relating to, any right or
remedy of the Lender against any Guarantor, Borrower or other person or relating
to the Obligations, to any portion thereof or to any security for the
Obligations; (E) any fictitiousness, incorrectness, invalidity or
unenforceability, for any reason, of any instrument or other agreement, or act
of commission or omission by the Lender or Borrower; (F) any composition,
extension, moratoria or other statutory relief granted to Borrower; or (G) any
interruption in the business relations between the Lender and Borrower, or any
dissolution or change in form of organization, name or ownership of Borrower or
Guarantor.
(b) Waivers of Notice, etc. The Guarantor waives acceptance, assent and
all rights of notice or demand including without limitation (i) notice of
acceptance of this Guaranty, of Borrower's default or nonpayment of any
Obligation, and of changes in Borrower's financial condition; (ii) presentment,
protest, notice of protest and demand for payment; and (iii) any other notice,
demand or condition to which Guarantor might otherwise be entitled prior to the
Lender's reliance on or enforcement of this Guaranty.
(c) Waiver of Subrogation. Guarantor hereby waives any claim, right or
remedy which Guarantor may now have or hereafter acquire against Borrower that
arises hereunder or from the performance by Guarantor hereunder including,
without limitation, any claim, remedy or right of subrogation, reimbursement,
exoneration, indemnification, contribution or participation in any claim, right
or remedy of Lender against Borrower or any security which Lender 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. Termination; Reinstatement. This Guaranty can be terminated (a) only
with respect to Obligations not yet incurred, and (b) only by actual receipt by
the account officer responsible for the Obligations of written notice of
Guarantor's intent to terminate (or Guarantor's dissolution) plus (c) the lapse
of a reasonable time for Lender to act on such notice. This Guaranty cannot be
terminated with respect to any Obligations committed or contracted for or
outstanding at the time the Lender acts on such notice, or any prior or
subsequent modifications, renewals, extensions or replacements of or interest on
such Obligations, or related expenses. If any payment the Lender has received
prior to termination subsequently is declared fraudulent or preferential or for
any other reason required to be surrendered, Guarantor's obligations under this
Guaranty and any related security agreements shall be reinstated and remain in
effect until the Lender has actually received payment in full of the
Obligations.
5. Expenses. Guarantor agrees to reimburse the Lender on demand for all
the Lender's or its agents' expenses, costs, damages and losses of any kind or
nature, including without limitation actual attorney's fees and disbursements
whether for internal or external counsel incurred by the Lender or its agent in
attempting to enforce this Guaranty, collect or restructure any of the
Obligations, realize on any collateral, or for any other purpose related to the
Obligations including but not limited to costs of workout, negotiations,
redocumentation or bankruptcy or other legal proceedings or appeal
(collectively, "Expenses"). Expenses will accrue interest at the highest legal
rate until payment is actually received by the Lender.
6. Financial and Other Information. SEE RIDER A ATTACHED HERETO AND
INCORPORATED HEREIN.
7. Security; Right of Setoff. As further security for payment of the
Obligations, Expenses and any other obligations of Guarantor to the Lender,
Guarantor hereby grants to the Lender a security interest in all money,
securities and other property of Guarantor in the actual or constructive
possession or control of the Lender or its agents including without limitation
all deposits and other accounts owing at any time by the Lender in any capacity
to Guarantor in any capacity (collectively, "Property"). The Lender shall have
the right to set off Guarantor's Property against any of Guarantor's
obligations to the Lenders and shall have all of the rights and remedies of a
secured party under the Uniform Commercial Code in addition to those under this
Guaranty and other agreements and applicable law.
8. No Transfer of Assets. Guarantor shall not transfer, reinvest or
otherwise dispose of its assets in a manner or to an extent that would or might
impair Guarantor's ability to perform its obligations under this Guaranty.
9. Nonwaiver by the Lender; Miscellaneous. This is the entire agreement
between Guarantor and the Lender with respect to the Guaranty. This Guaranty may
be assigned by the Lender, shall inure to the benefit of the Lender and its
successors and assigns, and shall be binding upon Guarantor and its successors
and assigns. All rights and remedies of the Lender are cumulative and no such
right or remedy shall be exclusive of any other right or remedy. This Guaranty
does not supersede any other guaranty or security granted to the Lender by
Guarantor or others (except as to Guarantor's Waiver of Subrogation rights
above). No single, partial or delayed exercise by the Lender of any right or
remedy shall preclude exercise by the Lender at any time at its sole option of
the same or any other right or remedy of the Lender without notice. No course of
dealing or other conduct, no oral agreement or representation made by the Lender
or usage of trade shall operate as a waiver of any right or remedy of the
Lender. No waiver or amendment of any right or remedy of the Lender or release
by the Lender shall be effective unless made specifically in writing by the
Lender. This Guaranty shall by governed by the laws of the State of New York,
without regard to its principles of conflict of laws. Each provision of this
Guaranty shall be interpreted as consistent with existing law and shall be
deemed amended to the extent necessary to comply with any conflicting law. If
any provision is nevertheless held invalid the other provisions shall remain in
effect. Captions are solely for convenience and are not part of the substance of
this Guaranty. Without limiting the generality of any reference hereunder to an
agent of the Lender, any right or remedy granted to the Lender under this
Guaranty, including, without limitation, the right to be reimbursed for expenses
under Section 5, shall inure to the benefit of and be enforcable by both the
Lender and its agents.
10. Joint and Several; Primary Obligation. If there is more than one
Guarantor, each Guarantor jointly and severally guarantees the payment and
performance in full of all obligations under this Guaranty and agrees that the
Lender need not seek payment from any source other than the undersigned
Guarantor. This Guaranty is a primary obligation. Guarantor's obligations
hereunder are separate and independent of Borrower's, and a separate action may
be brought against Guarantor whether or not action is brought or joined against
or with Borrower or any other party.
11. Authorization. Guarantor certifies that it is an entity in the form
described above duly organized and in good standing under the laws of the State
of its organization and duly authorized to do business in each State material to
the conduct of its business. Guarantor has determined that the execution of this
Guaranty will be in its best interests, to its direct benefit, incidental to its
powers, and in furtherance of its duly acknowledged purposes and objectives.
Execution of this Guaranty by the persons signing below has been authorized by
all necessary corporate action, including directors' and shareholders consent,
as evidenced by the attached certificates, or (as appropriate) is authorized by
its partnership agreement or governing instrument, a certified copy of which is
attached. Guarantor's chief executive office is located at the above address.
12. Guarantor's Consents. In any action or other legal proceeding relating
to this Guaranty, Guarantor (a) consents to the personal jurisdiction of any
State or federal court located in the State of New York and (b) agrees that in
any legal proceeding concerning this Guaranty, (i) a copy of this Guaranty kept
in the Lender's course of business may be admitted into evidence as an original,
and (ii) Guarantor will not interpose any counterclaims, setoff or defense of
any nature.
13. WAIVER OF JURY TRIAL. GUARANTOR AND THE LENDER EACH WAIVE ANY RIGHT TO
TRIAL BY JURY IN ANY ACTION WITH RESPECT TO THIS GUARANTY.
GUARANTOR:
DATE September 29, 1997 CVC HOLDINGS, INC
TIN # ▇▇-▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice
President and Chief Financial Officer
ACKNOWLEDGMENT
STATE OF New York)
:SS.
COUNTY OF Monroe )
On the 29 day of September in the year 1997 before me personally came ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|_| Partnership to me known and known to me to be a general partner of the
partnership described in which executed the above instrument,
and _ he duly acknowledged to me that __ he executed the above
instrument for and on the behalf of said partnership.
|x| Corporation to me known, who, being by me duly sworn, did dispose and say
that __ he resided in_ ▇▇ ▇ [▇▇▇▇▇▇▇▇▇] ▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇; that __ he is the Senior V.P. and CFO of CVC Holdings,
Inc., the corporation described in and which executed the
above instrument; and that__ he signed his (her) name thereto
by order of the board of directors of said corporation.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Notary Public
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public, State of New York
NO.02RE5004856
Qualified in Monroe County
Certificate Filed in Monroe County
Commission Expires Nov. 23, 1998
FOR BANK USE ONLY
Authorization Confirmed:
/s/ [ILLEGIBLE]
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Signature
I, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Secretary of CVC Holdings, Inc. ( the "Corporation"), a
corporation duly organized and existing under laws of the State of Delaware, do
hereby certify that the following is a true, accurate and complete copy of
certain resolutions duly adopted by the Board of Directors of the corporation by
unanimous consent or at a meeting duly held on the 19th day of February 1997,
and still in full force and effect. The Resolution is attached hereto to Exhibit
A.
INCUMBENCY CERTIFICATE
I do further certify that the following are duly elected and acting officers of
the Corporation, and their respective signatures are as follows:
TITLE NAME SIGNATURE
Senior vice President and CFO ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Secretary ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
|_| I further certify that I am sole owner of all the issued and outstanding
shares of the Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 29th day of September,
1997.
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Secretary
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NOTE: If the Secretary is authorized to sign the Guaranty by the above
resolutions, this certificate should be attested by a second officer or director
of the Corporation, unless the Corporation is owned by a sole shareholder and
has no other officer or director.
RIDER A
6. FINANCIAL AND OTHER INFORMATION
Section 6 of the Guaranty is deleted in its entirety and replaced with the
following:
Within one hundred twenty (120) days after the end of Guarantor's fiscal
year, Guarantor will provide Lender with a consolidated fiscal year-end
financial statement of CVC Holdings, Inc. (which includes Borrower) audited by
an independent certified public accountant approved by Lender. Guarantor will
also furnish consolidated quarterly financial Statements of CVC Holdings, Inc.
(including Borrower) certified by an officer of CVC Holdings, Inc. within
forty-five (45) days after the end of each fiscal quarter of CVC Holdings, Inc.
Where applicable, such financial statements shall include a profit and loss
statement, balance sheet and rent roll for the Premises. All statements shall
have been prepared in accordance with generally accepted accounting principles
to present fairly the results of Guarantor's operations and cash flows and its
financial position in conformity with such principles, and to be correct,
complete and in accordance with Guarantor's records. Promptly upon the request
of the Lender from time to time, Guarantor shall supply all additional
information requested and permit Lender's officers, employees, accountants,
attorneys and other agents to (a) visit and inspect the Premises; (b) examine,
audit, copy and extract from Guarantor's records; and (c) discuss Guarantor's or
affiliates' business operations, assets, affairs, or condition (financial or
other) with its responsible officers and independent accountants.
EXHIBIT A
Meeting of the Board of Directors
of CVC Holdings, Inc..
February 19, 1997
The Meeting was called to order at 9:00 A.M. by ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Chairman of the Board, in the Company's Fremont, California offices. ▇▇. ▇▇▇▇▇▇▇
served as Chairman of the Meeting and requested that ▇▇▇▇▇▇ ▇▇▇▇▇▇ serve as
Secretary. All of the Directors of Board were in attendance, including ▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, Seiya Miyanishi, ▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ was also in attendance at the request of
the Board.
The Chairman asked that the minutes for the prior meeting be
approved and they were unanimously adopted without revision. The Chairman then
confirmed the upcoming meeting schedule:
Wednesday, May 28, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (with
Compensation Committee Meeting)
Tuesday, August 26, 1997 Rochester, New York (with Audit
Committee Meeting)
Friday, December 12, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (with Audit
Committee Meeting)
Tentative Dates for 1998 Meetings
Wednesday, March 4, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (with Audit
Committee Meeting)
Tuesday, May 21, 1998 (Location to be determined) (with
Compensation Committee Meeting)
Thursday, August 20, 1998 Rochester, New York (with Audit
Committee Meeting)
Thursday, December 11, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (with Compensation
Committee Meeting)
The Board approved the grants of qualified options to ▇▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as set forth on Exhibit A at the current applicable fair
market value exercise price provided by the Empire Valuation Consultants.
▇▇. ▇▇▇▇▇ reviewed the proceedings of the Audit Committee. The Board
discussed at length the dispute with SUNY Albany regarding process technology
ownership.
▇▇. ▇▇▇▇▇▇▇ presented organizational developments, including the
formation of program cross-functional teams for two key products: GMR
Productization and Interconnect/MOCVD Productization. The Chairman updated the
Board on system engineering
improvements, ISO audit progress, key new hires and year-to-date progress
against fiscal year goals.
▇▇. ▇▇▇▇▇▇▇▇▇ presented first quarter performance and cash flow
(against plan and fiscal year 1996 Q1), expense analyses, capital expense
summary and December 31, 1996 balance sheet (against operating plan). After
presentation of an inventory report, the Board approved the adjustment of
performance-incentive-plan targets for fiscal 1997 to utilize the corrected
months-on-hand target. ▇▇. ▇▇▇▇▇▇▇▇▇ then outlined performance against term loan
covenants, the proposed second mortgage on the Rochester facility and the
proposed increase in the current line of credit. The Board discussed at length
the proposed mortgage financing, and unanimously adopted the resolutions on
Exhibit B in connection therewith.
▇▇. ▇▇▇▇▇▇▇▇▇ also presented projected cash flow for the next four
quarters and an analysis of APD expenses incurred against plan.
▇▇. ▇▇▇▇▇▇ summarized for the Board the discussion at the February
15, 1997 Executive Committee meeting, and the Chairman updated the Board on the
status of discussions with Veeco, MRC and ▇▇▇ Research.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇ joined the meeting. ▇▇. ▇. ▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇▇▇
presented the Companies' MR and GMR strategy. ▇▇. ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇ presented
the Interconnect Strategy. ▇▇. ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇. ▇. ▇▇▇▇, ▇▇. ▇▇▇▇ and
▇▇. ▇▇▇▇▇▇▇ departed.
Representatives from UBS Securities LLC joined the meeting (▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and, by telephone, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇) and
set out their recommendations for corporate financing transactions. The Board
discussed these recommendations and then the UBS representatives departed, ▇▇.
▇▇▇▇▇▇ disconnected and ▇▇. ▇▇▇▇▇ departed.
▇▇▇▇▇ ▇▇▇ summarized his conclusions to the Board based on his
evaluation of Company strategies and market opportunities. The Board discussed
his conclusions.
There being no further business to come before the Meeting, on
motion duly made and seconded, the meeting was adjourned at 4:15 P.M.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Secretary of the Meeting
Exhibit B
RESOLUTIONS OF
THE
BOARD OF DIRECTORS
OF
CVC HOLDINGS, INC.
RESOLVED, that the Corporation and its subsidiary CVC Products, Inc.
("Products", and together with the Corporation, the "Companies") shall be
authorized to increase the Companies' borrowings by an aggregate of not more
than $3 million, specifically to (i) increase the Companies' credit line with
M&T Bank ("M&T") by up to $2.5 million (to a total line of $5 million), and (ii)
enter into a mortgage credit facility with M&T Bank, State Street Bank & Trust,
Chase Manhattan Bank and/or such other lender or lenders which the President
shall select and approve (such lender or lenders being referred to herein as the
"Mortgage Lender" and together with M&T, the "Lenders") pursuant to which the
Companies would be authorized to borrow up to $2.0 million and to pledge,
mortgage, hypothecate and grant security interests in any and all of the
Companies' assets to secure such indebtedness to the Lenders, including granting
a second mortgage on the Companies' Rochester, New York facility, and in
connection with which the Companies shall execute and deliver such credit,
mortgage, loan, security and other agreements and such instruments as the
Lenders shall require, in such form and containing such terms as the officer
executing the same, in his or her sole discretion, may approve, his or her
execution thereof to be conclusive evidence of his or her approval thereof.
RESOLVED, that in connection with the credit facilities and
arrangements established by the Lenders in favor of any of the Companies, each
of the officers of the Companies hereby is authorized, in the name and on behalf
of the Companies:
(a) to borrow from the Lenders and/or to request that the Lenders
issue letters of credit for any of the Companies account at any time or from
time to time and to obtain from the Lenders other financial accommodations, in
such amounts and upon such terms as the Lenders may make available, and to
execute and deliver to the Lenders one or more promissory notes, in such form
and substance and with such changes thereto as the officer executing the same
shall approve, in each case to evidence such borrowings and financial
accommodations, such execution by any such officer to be deemed conclusive
evidence of the approval by the Companies of the terms, provisions and
conditions thereof and of such form, substance and changes;
(b) to pledge with, and/or assign and mortgage to, the Lenders
and/or to grant to the Lenders a security interest in, all accounts, contract
rights, general intangibles, securities, chattel paper, inventory, machinery,
equipment, fixtures, personal property, rights, real estate and improvements and
insurance policies and proceeds, whether now or hereafter existing or now owned
or hereafter acquired and all additions and accessions thereto, substitutions
and replacements therefor and products and proceeds thereof, and such other
assets and property of the Companies, as may now or hereafter be required or
requested by the Lenders as security for all indebtedness and obligations of the
Companies to the Lenders now existing or hereafter arising, and to execute and
deliver in connection therewith, such pledge agreements, assignments, mortgages
and/or security agreements as the Lenders shall
require or request in order to effectuate such pledge, assignment or mortgage
(all such agreements, assignments and mortgages being referred to herein
together as "Security Documents"), in form and substance satisfactory to the
Lenders, and in such form and substance and with such changes thereto as the
officer executing the same shall approve, such execution of each Security
Document by any such officer or officers of the Companies to be deemed
conclusive evidence of the approval by the Companies of the terms, provisions
and conditions thereof and of such form, substance and changes;
(c) to make, execute and deliver to the Lenders any and all
financing statements, consents, certificates, documents, applications,
instruments, amendments, papers and writings as may be required or requested by
the Lenders in connection with or in furtherance of any of the transactions
heretofore described and/or contemplated thereby, including, without limitation,
letters of credit applications, the same to be in form and substance
satisfactory to the Lender, and in such form and substance and with such
changes thereto as the officer executing the same shall approve, and to do any
and all other acts deemed by any such officer to be necessary or appropriate or
convenient or desirable to effectuate the purposes and intent of these
resolutions, such execution and such acts by any officer or officers of the
Companies to be deemed conclusive evidence of the approval by the Companies of
the terms, provisions and conditions thereof and of such form, substance and
changes;
(d) to procure such insurance (naming the Lenders as beneficiary
thereof) as any such officer shall deem appropriate and as the Lenders shall
require or approve, the procurement of any such insurance policy by any such
officer of the Companies to be deemed conclusive evidence of the appropriateness
thereof and the approval by the Companies of the terms, provisions and
conditions thereof and to deliver to the Lenders such written instruments or
documents or assignments as the Lenders shall require or request in connection
with the foregoing; and further
(e) to cause any current or future, direct or indirect subsidiaries
of the Corporation as the Lenders shall require or request to execute the
guaranties, mortgages, security agreements, in such form and substance as shall
be required or requested by the Lenders, and with such changes thereto as the
officer, director or authorized signatory of the subsidiary executing the same
shall approve, such execution by such officer, director or authorized signatory
to be deemed conclusive evidence of the approval by the Companies of the terms,
provisions and conditions thereof, and of such form, substance and changes, and
such other documents, agreements and instruments in connection therewith, and of
affirmations with respect thereto, all as shall be required or requested, and in
such form and substance as shall be required or requested, by the Lender.
RESOLVED, that the Companies seek such consents of parties to any
and all loan agreements, mortgages and indentures of trust, leases, subleases,
and guaranty agreements and other agreements and instruments to which either
Company is a party or by which either Company is bound or affected, and enter
into such amendments, supplements and modifications, and take such actions, as
any of the officers of the Companies shall deem necessary or appropriate or
convenient or desirable in order to approve any of the other agreements and
instruments previously referred to in these resolutions and/or the transactions
contemplated thereby, and otherwise to carry out and effectuate the purposes and
intent of
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these resolutions; and that each of the officers of the Companies hereby is
authorized to execute and deliver, in the name and on behalf of the Companies,
any such amendment, supplement or modification in such form and substance, and
with such changes, as the officer executing the same shall approve, such
execution and the taking of any such action to be conclusive evidence of such
approval and of the necessity, appropriateness, convenience or desirability
thereof.
RESOLVED, that each of the officers of the Companies, hereby is
authorized to make, execute and deliver, or cause to be made, executed and
delivered, any notice, direction, instruction, authorization, order,
certificate, financing statement, mortgage, instrument, and other agreement or
document, and to do, or cause to be done, all such acts and things, in the name
and on behalf of the Companies and under the corporate seal of either or
otherwise, as any of the officers of the Companies may deem necessary or
appropriate or convenient or desirable to effect the complete consummation of
the transactions contemplated by the aforementioned agreements, certificate,
instruments and documents and to carry out the purposes and intent of each of
the foregoing resolutions; and, further, that the authority of any such officer
to execute and deliver any such document or to take any such action shall be
conclusively evidenced by his execution thereof or his taking thereof.
RESOLVED, that the form resolutions appended hereto as Annex 1 are
hereby adopted and approved as resolutions of Products.
RESOLVED, that the Secretary or any Assistant Secretary of either of
the Companies be and hereby is authorized to certify and deliver to the Lender,
under corporate seal, copies of these resolutions or of any portion thereof.
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Annex 1
RESOLUTIONS
OF THE
BOARD OF DIRECTORS
OF
CVC PRODUCTS, INC. (the "Corporation")
RESOLVED, that the Corporation be, and hereby is, authorized to
borrow from Manufacturers and Traders Trust Company (the "Lender") such amounts
as an Authorized Officer of the Corporation may deem appropriate, up to an
aggregate amount equal to $5,000,000, to be evidenced by, and bearing interest
and payable upon the terms contained in, the demand Grid Note, substantially in
the form previously submitted to the directors of the Corporation (the "Grid
Note") (which shall replace a $2,500,000 Grid Note previously executed in favor
of Lender on September 30, 1996) and that such Grid Note be, and the same hereby
is, in all respects, authorized and approved; and it is further
RESOLVED, that the form, terms and provisions of the proposed
Acknowledgement and Agreement, substantially in the form previously submitted to
the directors of the Corporation, pursuant to which the Corporation shall make
certain acknowledgements, representations and warranties to the Lender be, and
the same hereby is, in all respects, authorized and approved; and it is further
RESOLVED, that the form, terms and provisions of the Letter of
Credit Reimbursement Agreement to the Lender (the "Reimbursement Agreement"),
substantially in the form previously submitted to the directors of the
Corporation, pursuant to which the Corporation shall, among other things, agree
in favor of the Lender to reimburse the Lender for all draws on letters of
credit issued by Bank for the account of the Corporation, be, and the same
hereby is, in all respect authorized and approved; and it is further
RESOLVED, that any Authorized Officer be, and each of them is,
authorized on behalf of the Corporation to waive (via telephone or in writing)
discrepancies in documents submitted in connection with drawings under letters
of credit issued by Lender for the Corporation's account; and it is further
RESOLVED, that any Authorized Officer of the Corporation be, and
each hereby is, authorized and empowered, in the name and on behalf of the
Corporation, to execute and deliver to the Lender, the Grid Note, the
Reimbursement Agreement and the Acknowledgement Agreement, in each case with
such change or changes therein as the Authorized Officer or Officers executing
the same may approve and that the execution thereof, with such change or
changes, to be conclusive evidence of such approval; and it is further
RESOLVED, that the President and Senior Vice President of the
Corporation, and any person duly authorized to act in such capacity be, and each
of them hereby is, designated an "Authorized Officer" (also sometimes referred
to as an Authorized Person) for purposes of
these resolutions, the Grid Note, the Reimbursement Agreement, the
Acknowledgement Agreement and any other documents and instruments necessary,
proper or convenient to implement or accomplish the transactions involved in, or
related to, any thereof; and it is further
RESOLVED. that the Authorized Officers of the Corporation be, and
each of them hereby is. authorized and empowered, in the name and on behalf of
the Corporation, to execute and deliver such certificates, documents,
agreements, 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 necessary or appropriateness thereof; and it is further
RESOLVED, that the Lender may rely on these resolutions.
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