Exhibit 10.54
[LOGO] M&T BANK
Manufacturers and Traders Trust Company
CONTINUING GUARANTY
(Business Organization)
GUARANTOR: Commonwealth Scientific Corporation
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Name
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Address of Chief Executive Office
a |X| corporation |_| general partnership |_| limited partnership
|_| limited liability company |_| __________________________________
organized under the laws of the State of____________________________
BORROWER: CVC Products, Inc.
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Name
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Address
BANK: Manufacturers and Traders Trust Company, One M&T Plaza, Buffalo, New
York 14240 Attention: Office of General Counsel
1. Guaranty.
(a) Guarantor hereby unconditionally guarantees the full and prompt
payment and performance of any and all of Borrower's Obligations (as defined
below) to the Bank when due, whether at stated maturity, by acceleration or
otherwise. As used in this Guaranty, the term "Obligations" shall mean any and
all obligations, indebtedness and other liabilities of Borrower to the Bank now
or hereafter existing, of every kind and nature and all accrued and unpaid
interest thereon and all Expenses (as defined below) including without
limitation, whether such obligations, indebtedness and other liabilities (i) are
direct, contingent, liquidated, unliquidated, secured, unsecured, matured or
unmatured; (ii) are pursuant to a guaranty or surety in favor of the Bank; (iii)
were originally contracted with the Bank or with another party (including
obligations under a guaranty or surety originally in favor of such other party);
(iv) are contracted by Borrower alone or jointly with one or more other parties;
(v) are or are not evidenced by a writing; (vi) are renewed, replaced, modified
or extended; and (vii) are periodically extinguished and subsequently reincurred
or reduced and thereafter increased. Guarantor will pay or perform its
obligations under this Guaranty upon demand. This Guaranty is and is intended to
be a continuing guaranty of payment (not collection) of the Obligations
(irrespective of the aggregate amount thereof and whether or not the Obligations
from time to time exceeds the amount of this Guaranty, if limited), independent
of, in addition and without modification to, and does not impair or in any way
affect, any other guaranty, indorsement, or other agreement in connection with
the Obligations, or in connection with any other indebtedness or liability to
the Bank or collateral held by the Bank therefor or with respect thereto,
whether or not furnished by Guarantor. Guarantor understands that the Bank can
bring an action under this Guaranty without being required to exhaust other
remedies or demand payment first from other parties.
(b) Guarantor acknowledges the receipt of valuable consideration for
this Guaranty and acknowledges that the Bank is relying on this 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, Absolute, Unconditional. This Guaranty is irrevocable,
absolute, continuing, unconditional and general without any limitation. This
Guaranty is unlimited in amount unless an amount is inserted in the following
blank.
3. Guarantor's Waivers & Authorizations.
(a) Guarantor's obligations shall not be released, impaired or
affected in any way including by any of the following, all of which Guarantor
hereby waives (i) any bankruptcy, reorganization or insolvency under any law of
Borrower or that of any other party, or by any action of a trustee in any such
proceeding; (ii) any new agreements or obligations of Borrower or any other
party with the Bank; (iii) any adjustment, compromise or release of any
Obligations of Borrower, by the Bank or any other party; the existence or
nonexistence or order of any filings, exchanges, releases, impairment or sale
of, or failure to perfect or continue the perfection of a security interest in
any collateral for the Obligations, (iv) any failure of Guarantor to receive
notice of any intended disposition of such collateral; (v) any fictitiousness,
incorrectness, invalidity or unenforceability, for any reason, of any instrument
or other agreement which may evidence any Obligation; (vi) any composition,
extension, stay or other statutory relief granted to Borrower including, without
limitation, the expiration of the period of any statute of limitations with
respect to any lawsuit or other legal proceeding against Borrower or any person
in any way related to the Obligations or a part thereof or any collateral
therefor; (vii) any change in form of organization, name, membership or
ownership of Borrower or Guarantor; (viii) any refusal or failure of the Bank or
any other person prior to the date hereof or hereafter to grant any additional
loan or other credit accommodation to Borrower or the Bank's or any other
party's receipt of notice of such refusal or failure; (ix) any setoff, defense
or counterclaim of Borrower with respect to the obligations or otherwise
arising, either directly or indirectly, in regard to the Obligations; or (x) any
other circumstance that might otherwise constitute a legal or equitable defense
to Guarantor's obligations under this Guaranty.
(b) 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; (iii) notice that any Obligations has been incurred or
of the reliance by the Bank upon this Guaranty; and (iv) any other notice,
demand or condition to which Guarantor might otherwise be entitled prior to the
Bank's reliance on or enforcement of this Guaranty. Guarantor further authorizes
the Bank, without notice, demand or additional reservation of rights against
Guarantor and without affecting Guarantor's obligations hereunder, from time to
time: (i) to renew, refinance, modify, subordinate, extend, increase,
accelerate, or otherwise change the time for payment of, the terms of or the
interest on the Obligations or any part thereof;(ii) to accept and hold
collateral from any party for the payment of the any or all of the Obligations,
and to exchange, enforce or refrain from enforcing, or release any or all of
such collateral; (iii) to accept any indorsement or guaranty of any or all of
the Obligations or any negotiable instrument or other writing intended to create
an accord and satisfaction with respect to any or all of the Obligations; (iv)
to release, replace or modify the obligation of any indorser or guarantor, or
any party who has given any collateral for any of all of the Obligations, or any
other party in any way obligated to pay any or all of the Obligations, and to
enforce or refrain from enforcing, or compromise or modify, the terms of any
obligation of any such endorser, guarantor or party; (v) to dispose of any and
all collateral
securing the Obligations in any manner as the Bank, in its sole discretion, may
deem appropriate, and to direct the order and the enforcement of any and all
indorsements and guaranties relating to the Obligations in the Bank's sole
discretion; and (vi) to determine the manner, amount and time of application of
payments and credits, if any, to be made on all or any part of the Obligations
including, without limitation, if this Guaranty is limited in amount, to make
any such application to Obligations, if any, in excess of the amount of this
Guaranty.
(c) Notwithstanding any other provision in this Guaranty, Guarantor
irrevocably waives, without notice, any right he or she may have at law or in
equity (including without limitation any law subrogating Guarantor to the rights
of the Bank) to seek contribution, indemnification or any other form of
reimbursement from Borrower or any other obligor or guarantor of the Obligations
for any disbursement made under this Guaranty or otherwise.
4. Termination. This Guaranty shall remain in full force and effect as to
each Guarantor until actual receipt by the Bank officer responsible for
Borrower's relationship with the Bank of written notice of Guarantor's intent to
terminate (or Guarantor's death or incapacity) plus the lapse of a reasonable
time for the Bank to act on such notice (the "Receipt of Notice"); provided,
however, this Guaranty shall remain in full force and effect thereafter until
all Obligations outstanding, or contracted or committed for (whether or not
outstanding), before such Receipt of Notice by the Bank, and any extensions,
renewals or replacements thereof (whether made before or after such Receipt of
Notice), together with interest accruing thereon after such Receipt of Notice,
shall be finally and irrevocably paid in full. Discontinuance of this Guaranty
as to one Guarantor shall not operate as a discontinuance hereof as to any other
guarantor. Payment of all of the Obligations from time to time shall not operate
as a discontinuance of this Guaranty, unless a Receipt of Notice as above
provided has been received by the Bank. Guarantor agrees that, to the extent
that Borrower makes a payment or payments to the Bank on the Obligations, or the
Bank receives any proceeds of collateral to be applied to the Obligations, which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside or otherwise are required to be
repaid to Borrower, its estate, trustee, receiver or any other party, including,
without limitation, under any bankruptcy law, state or federal law, common law
or equitable cause, then to the extent of such repayment, the obligation or part
thereof which has been paid, reduced or satisfied by such amount shall be
reinstated and continued in full force and effect as of the date such initial
payment, reduction or satisfaction occurred, notwithstanding any contrary action
which may have been taken by the Bank in reliance upon such payment or payments.
As of the date any payment or proceeds of collateral are returned, the statute
of limitations shall start anew with respect to any action or proceeding by the
Bank against Guarantor under this Guaranty.
5. Expenses. Guarantor agrees to reimburse the Bank on demand for all the
Bank's expenses, damages and losses of any kind or nature, including without
limitation costs of collection and actual attorneys' fees and disbursements
whether for internal or external counsel incurred by the Bank in attempting to
enforce this Guaranty, collect any of the Obligations including any workout or
bankruptcy proceedings or other legal proceedings or appeal, realize on any
collateral, defense of any action under the prior paragraph or for any other
purpose related to the Obligations (collectively, "Expenses"). Expenses will
accrue interest at the highest default rate in any instrument evidencing the
Obligations until payment is actually received by the Bank. Guarantor shall
provide Bank with the same financial statements and other information Borrower
is required to provide to Bank under the Loan Agreement between Bank and
Borrower dated March 31, 1998, as it may be amended, extended or replaced.
6. Financial and Other Information. Guarantor represents that its assets
are not subject to any liens, encumbrances or contingent liabilities except as
fully disclosed to the Bank in such statements. Guarantor authorizes the Bank
from time to time to obtain, verify and review all financial data deemed
appropriate by the Bank in connection with this Guaranty and the Obligations,
including without limitation credit reports from agencies. Guarantor understands
this Guaranty and has satisfied itself as to its meaning and consequences and
acknowledges that it has made its own arrangements for keeping informed of
changes or potential changes affecting the Borrower including the Borrower's
financial condition.
7. Security; Right of Setoff. As further security for payment of the
Obligations, Expenses and any other obligations of Guarantor to the Bank,
Guarantor hereby grants to the Bank a security interest in all money, securities
and other property of Guarantor in the actual or constructive possession or
control of the Bank or its affiliates including without limitation all deposits
and other accounts owing at any time by the Bank or any of its affiliates in any
capacity to Guarantor in any capacity (collectively, "Property"). The Bank shall
have the right to set off Guarantor's Property against any of Guarantor's
obligations to the Bank. Such set-off shall be deemed to have been exercised
immediately at the time the Bank or such affiliate elect to do so. The Bank
shall also have all of the rights and remedies of a secured party under the
Uniform Commercial Code in effect in the State of New York as of the date of
this Guaranty in addition to those under this Guaranty and other applicable law
and agreements.
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 Bank; Miscellaneous. This Guaranty is intended by
Guarantor to be the final, complete and exclusive expression of the agreement
between Guarantor and the Bank. This Guaranty may be assigned by the Bank, shall
inure to the benefit of the Bank and its successors and assigns, and shall be
binding upon Guarantor and his or her legal representative, successors and
assigns and any participation may be granted by the Bank herein in connection
with the assignment or granting of a participation by the Bank in the
Obligations or any part thereof. All rights and remedies of the Bank 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 Bank by Guarantor or others (except as to Guarantor's Waiver of
Subrogation rights above). No single, partial or delayed exercise by the Bank of
any right or remedy shall preclude exercise by the Bank at any time at its sole
option of the same or any other right or remedy of the Bank without notice.
Guarantor expressly disclaims any reliance on any course of dealing or usage of
trade or oral representation of the Bank including, without limitation,
representations to make loans to Borrower or enter into any other agreement with
Borrower or Guarantor. 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 or amendment of any right or
remedy of the Bank or release by the Bank shall be effective unless made
specifically in writing by the Bank. 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
nevertheless is held invalid, the other provisions shall remain in effect.
Guarantor agrees that in any legal proceeding, a copy of this Guaranty kept in
the Bank's course of business may be admitted into evidence as an original.
Captions are solely for convenience and not part of the substance of this
Guaranty. If this Guaranty is limited pursuant to Paragraph 2 hereof, until the
Obligations are indefeasibly paid in full, the Guaranteed Amount shall not be
reduced in any manner whatsoever by any amounts which the Bank may realize
before or after maturity of the Obligations (by acceleration, demand or
otherwise), as a result of payments made by or on behalf of Borrower or by or on
behalf of any other person or entity other than Guarantor primarily or
secondarily liable for the Obligations or any part thereof, or otherwise
credited to Borrower
or such person or entity, or as a result of the exercise of the Bank's rights
with respect to any collateral for the Obligations or any part thereof. Payments
made to the Bank by Guarantor (other than, directly or indirectly, from
collateral or other persons or entities liable for any portion of the
Obligations) after maturity of the Obligations, by acceleration or otherwise,
shall reduce the Guaranteed Amount.
10. Joint and Several. 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 the term "Guarantor" means each as well as
all of them. Guarantor also agrees that the Bank 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 shareholder consent or
(as appropriate) is authorized by its partnership agreement or governing
instrument. Guarantor's chief executive office is located at the above address.
12. Notices. Any demand or notice hereunder or under any applicable law
pertaining hereto shall be in writing and duly given if delivered to Guarantor
(at its address on the Bank's records) or to the Bank (at the address on page
one and separately to the Bank officer responsible for Borrower's relationship
with the Bank). Such notice or demand shall be deemed sufficiently given for all
purposes when delivered (i) by personal delivery and shall be deemed effective
when delivered, or (ii) by mail or courier and shall be deemed effective three
(3) business days after deposit in an official depository maintained by the
United States Post Office for the collection of mail or one (1) business day
after delivery to a nationally recognized overnight courier service (e.g.,
Federal Express). Notice by e-mail is not valid notice under this or any other
agreement between Guarantor and the Bank.
13. Governing Law and Jurisdiction. This Guaranty has been delivered to
and accepted by the Bank and will be deemed to be made in the State of New York.
Unless provided otherwise under federal law, this Guaranty will be interpreted
in accordance with the laws of the State of New York excluding its conflict of
laws rules. GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION
OF ANY STATE OR FEDERAL COURT IN ANY JUDICIAL DISTRICT OR COUNTY IN THE STATE OF
NEW YORK WHERE THE BANK MAINTAINS A BRANCH AND CONSENTS THAT THE BANK MAY EFFECT
ANY SERVICE OF PROCESS IN THE MANNER AND AT GUARANTOR'S ADDRESS SET FORTH ABOVE
FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED IN THIS GUARANTY
WILL PREVENT THE BANK FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR JUDGMENT
OR EXERCISING ANY RIGHTS AGAINST GUARANTOR INDIVIDUALLY, AGAINST ANY SECURITY OR
AGAINST ANY PROPERTY OF GUARANTOR WITHIN ANY OTHER COUNTY, STATE OR OTHER
FOREIGN OR DOMESTIC JURISDICTION. Guarantor acknowledges and agrees that the
venue provided above is the most convenient forum for both the Bank and
Guarantor. Guarantor hereby waives (i) any objection to venue and any objection
based on a more convenient forum in any action instituted under this Guaranty;
(ii) any right to assert any counterclaim or setoff or any defense based upon a
statute of limitations, a claim of laches or of any other legal theory; and
(iii) its right to attack a final judgment that is obtained as a direct or
indirect result of any action hereunder.
14. Waiver of Jury Trial. GUARANTOR AND THE BANK HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY GUARANTOR AND
THE BANK MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN
CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS RELATED HERETO. GUARANTOR
REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF THE BANK HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BANK WILL NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THIS JURY TRIAL WAIVER. GUARANTOR ACKNOWLEDGES THAT
THE BANK HAS BEEN INDUCED TO ENTER INTO THIS GUARANTY BY, AMONG OTHER THINGS,
THE PROVISIONS OF THIS SECTION.
GUARANTOR:
DATE 9-22-99 Commonwealth Scientific Corporation
TIN# ▇▇-▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
Title: Sr. V.P. and CFO
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ACKNOWLEDGMENT
STATE OF New York )
: SS.
COUNTY OF Monroe )
On the 22nd day of September in the year 1999/20___, before me personally came
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|_| Partnership to me known and known to me to be a general partner of the
partnership described in and which executed the above
instrument, and __he duly acknowledged to me that __he executed
the above instrument for and on the behalf of said partnership.
|X| Corporation to me known, who, being by me duly sworn, did depose and say
that _he resides in Fairport, New York; that _he is the Senior
Vice President of Commonwealth Scientific Corporation, 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.
|_| LLC to me known, who, being duly sworn did depose and say that __he
resides at _________________________; that __he is the
____________________ of the limited liability company described
in and which the above instrument; and that _he said his (her)
name thereto by order of the members/managers of said limited
liability company.
/s/ ▇▇▇▇▇ ▇. Reochia
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Notary Public
FOR BANK USE ONLY ▇▇▇▇▇ ▇. Reochia
Authorization Confirmed: Notary Public, State of New York
No. 02RE5004858
Qualified in Monroe County
Certicate Filed in Monroe County
Commission Expires Nov. 23, 2000
CONSENT OF SHAREHOLDERS TO GUARANTY
THE OBLIGATIONS OF ANOTHER CORPORATION OR PERSON
The shareholders of ______________________________________________ (the
"Corporation") hereby by unanimous written consent or at a meeting duly called
and held on ________________________,19 /20___, adopted the following
resolution:
WE HEREBY CONSENT that:
1. The Corporation execute and deliver to Manufacturers and Traders Trust
Company (the "Bank") at this time and from time to time guaranty
agreements for all of the obligations, liabilities and indebtedness of
_______________________________________________ to the Bank, whether such
debts, liabilities and obligations be absolute or contingent, secured or
unsecured, now existing or hereafter contracted or incurred, and any and
all renewals, modifications or extensions of such indebtedness, together
with all interest, expenses of collection and attorneys' fees (the
"Guaranty");
2. The Corporation shall deliver from time to time to the Bank, as security
for the Guaranty, such collateral as may be required by the Bank,
including without limitation a mortgage, pledge or assignment of and grant
of a security interest in any or all of the real and personal property of
the Corporation wherever located;
3. Each Guaranty shall be in such form and shall contain such provisions and
terms as shall be agreed upon by the officers of the Corporation and the
Bank; and
4. The Board of Directors and the officers of the Corporation hereby are
authorized to do all things necessary to effect the purposes of this
Consent.
FOR WRITTEN CONSENT: IN WITNESS WHEREOF, each shareholder of the Guarantor
Corporation has subscribed this Consent:
Number of
Name Shares Signature Date
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If consenting stock is held by a corporation:
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Name of Corporation Number of Authorized Signature Date
Shares & Title
Total outstanding shares entitled to vote: _______________
SECRETARY'S CERTIFICATE
I, ___________________________________ Secretary of the Corporation defined
above, do hereby certify that the above Consent of Shareholders is valid and was
adopted by at least 2/3 of the shares entitled to vote, at a shareholders'
meeting duly called and held on the date stated, or by unanimous written consent
of the holders of all the shares entitled to vote.
|_| I further certify that I am sole owner of all the issued and outstanding
shares of the Corporation.
IN WITNESS WHEREOF, I have executed this Certificate this _______ day of
______________________, 19___/20___.
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Secretary
DIRECTORS' RESOLUTION TO AUTHORIZE GUARANTY OF CORPORATION
I, __________________________________________,Secretary of
_________________________________ (the "Corporation"), a corporation duly
organized and existing under laws of the State of _____________________________,
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 ________ day of
_______________________, 19___/20___, and still in full force and effect.
RESOLVED, that the Corporation make, execute and deliver to Manufacturers
and Traders Trust Company (the "Bank"), at this time and from time to
time, a guaranty of all obligations, liabilities and indebtedness
whatsoever which may be now or hereafter incurred to the Bank by
__________________________________________________________________ (the
"Guaranty"); and be it further
RESOLVED, that the Corporation is hereby authorized to deliver from time
to time to the Bank, as security for the Guaranty, a mortgage, pledge and
assignment of and security interest in any or all of the real and personal
property of the Corporation, wherever located, as described in security
agreements required by the Bank, of even date or heretofore or hereafter;
and be it further
RESOLVED, that the _______________________________________________________
[title(s)]
of the Corporation hereby is (are) authorized and directed to make,
execute and deliver for and on behalf of this Corporation each such
Guaranty and such other instruments, documents and papers including
without limitation security agreements, mortgages, pledges, assignments
and other instruments for the transfer of title, in such forms, and
containing such terms, provisions and conditions as may be approved by the
officer of the Corporation executing the same, such execution to be
conclusive evidence of the officer's approval and the approval of this
Board of Directors, and to perform any and all other acts, including
without limitation the delivery of collateral, and other papers which may
be required to effect the intent of these resolutions; and be it further
RESOLVED, that any and all acts, instruments and other writings previously
performed or executed and delivered by any one or more of the
Corporation's officers on behalf of the Corporation, in connection with
the transactions guaranteed hereby, are in all respects ratified, affirmed
and approved; and be it further
RESOLVED, that the foregoing resolutions shall remain in full force and
effect and may be relied upon by the Bank until a copy of a subsequent
resolution revoking or amending them, duly certified by the proper
officers of the Corporation, shall be actually received by the account
officer of the Bank responsible for the obligations guaranteed by the
Guaranty, and the Bank shall have had a reasonable time to act thereon;
any action taken by the Bank prior to such actual receipt shall be binding
upon the Corporation, irrespective of when such resolution may have been
adopted.
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
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|_| 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 ________ day of
_______________________________, 19___/20___.
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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.