Exhibit 10.51
ACKNOWLEDGMENT AND AGREEMENT
This ACKNOWLEDGEMENT AND AGREEMENT ("Agreement") is made September 22,
1999 from CVC PRODUCTS, INC. ("Borrower"), a Delaware corporation, with a place
of business of 000 Xxx Xxxx, Xxxxxxxxx, Xxx Xxxx, CVC, INC. ("Guarantor"), a
Delaware corporation, with a place of business of 000 Xxx Xxxx, Xxxxxxxxx, Xxx
Xxxx, to MANUFACTURERS AND TRADERS TRUST COMPANY ("Bank"), a New York banking
corporation, with its principal place of business located at Xxx X&X Xxxxx,
Xxxxxxx, Xxx Xxxx 00000.
R E C I T A L S:
WHEREAS, Bank and Borrower entered into a Loan Agreement dated as of March
31, 1998, which loan agreement was amended by letter amendments dated September
30, 1998 and February 19, 1999 (collectively the "Letter Amendments")
(collectively, and as amended, restated or replaced from time to time the "Loan
Agreement"); and
WHEREAS, pursuant to the Loan Agreement, the Borrower executed and
delivered to the Bank its Amended and Restated General Security Agreement dated
March 31, 1998 (the "Borrower Security Agreement") and its Amended and Restated
Continuing Guaranty dated March 31, 1998 (the "Borrower Guaranty"); and
WHEREAS, pursuant to the Loan Agreement, the Guarantor executed and
delivered to Bank its Amended and Restated General Security Agreement dated
March 31, 1998 (the "Guarantor Security Agreement") and its Amended and
Restated Continuing Guaranty dated Xxxxx 00, 0000 (xxx "Xxxxxxxxx Xxxxxxxx");
and
WHEREAS, the Borrower and the Bank have entered into an Amendment to Loan
Agreement dated the date hereof (the "Amendment"); and
WHEREAS, it is a requirement of the Amendment that Borrower and Guarantor
execute and deliver this Acknowledgement and Agreement.
P R 0 V I S I O N S:
NOW, THEREFORE, in consideration of any past, present or future extension
of credit by Bank to Borrower, and in order to induce the Bank to enter into the
Amendment, the parties hereto agree in favor of Bank as follows:
1. All capitalized terms herein shall have the meanings set forth in the
Loan Agreement and Amendment unless expressly defined herein.
2. Borrower acknowledges and represents and warrants to Bank that the Loan
Agreement, 1998 Term Note and the other Loan Documents to which it is a party
each are and constitute the valid and binding obligations of the Borrower,
enforceable by the Bank
against Borrower according to their respective terms, and as of the date hereof,
there are no offsets against or defenses to Borrower's liability to Bank
thereunder. Borrower further acknowledges that as of the date hereof, there is
$6,722,986.07 of outstanding unpaid principal on the 1998 Term Note.
3. Borrower represents and warrants to Bank that all of the
representations and warranties of Borrower in the Loan Agreement and other Loan
Documents are deemed repeated herein and are true and correct as of the date
hereof, and Borrower has not violated any obligation to Bank arising under any
of the Loan Documents, nor is Borrower in default thereunder, nor has any Event
of Default accrued thereunder, nor is Borrower aware of any condition, which,
with notice, lapse of time or both, would constitute a default or an Event of
Default thereunder, nor has Borrower violated any affirmative, negative or
financial covenant under any of the Loan Documents.
4. Borrower acknowledges that the defined term "Obligations" in the
Borrower Security Agreement shall include, without limitation, all liabilities
and obligations of the Borrower, now existing or hereafter arising, under the
Loan Agreement, as amended by the Amendment, including, without limitation,
under the 1999 Grid Note.
5. The Guarantor acknowledges, represents and warrants to Bank that the
Guaranty, the Guarantor Security Agreement and the other Loan Documents to which
it is a party are and constitute the valid and binding obligations of the
Guarantor, enforceable by Bank against the Guarantor according to their
respective terms, and that as of the date hereof, there are no offsets against
or defenses to the Guarantor's liability to Bank thereunder.
6. The Guarantor represents and warrants to Bank that all of the
representations and warranties of Guarantor in the Guaranty, the Guarantor
Security Agreement and the other Loan Documents to which it is a party are
deemed repeated herein and are true and correct as of the date hereof, and that
the Guarantor has not violated any obligation to Bank arising under the
Guaranty, the Guarantor Security Agreement or the other Loan Documents, nor is
the Guarantor in default thereunder, nor has any Event of Default occurred
thereunder, nor is the Guarantor aware of any condition, which, with notice,
lapse of time or both, would constitute a default or Event of Default
thereunder, nor has Guarantor violated any affirmative or negative covenant
under the Guaranty, the Guarantor Security Agreement or the other Loan
Documents.
7. Guarantor acknowledges that the term "Obligations" in the Guaranty and
Guarantor Security Agreement shall include, without limitation, all liabilities
and obligations of Borrower now existing or hereafter arising, under the Loan
Agreement, as amended by the Amendment, including, without limitation, under the
1999 Grid Note.
8. This Agreement is governed by New York law and may not be amended or
terminated orally. Any litigation involving this Agreement and/or any of the
Loan Documents shall, at Bank's sole option, be triable only in a court located
in Monroe County, New York. EACH OF THE PARTIES HERETO WAIVE THE RIGHT TO A JURY
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TRIAL IN ANY LITIGATION OF ANY NATURE OR KIND IN WHICH THEY OR ANY OF THEM AND
BANK ARE PARTIES. No other Entity is a third party beneficiary of this jury
trial waiver.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
first above written.
CVC PRODUCTS, INC.
By: /s/ Xxxxxx X. XxXxxxxxx
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Name: Xxxxxx 0. XxXxxxxxx
Title: Senior Vice President and CFO
CVC, INC.
By: /s/ Xxxxxx X. XxXxxxxxx
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Name: Xxxxxx 0. XxXxxxxxx
Title: Senior Vice President and CFO
STATE OF NEW YORK )
COUNTY OF MONROE ) ss:
On the 22nd day of September in the year 1999 before me, the undersigned,
a Notary Public in and for said state, personally appeared Xxxxxx 0. XxXxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxxx X. Reochia
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Notary Public
XXXXX X. REOCHIA
Notary Public, State of New York
No. 02RE5004858
Qualified in Monroe County
Certicate Filed in Monroe County
Commission Expires Nov. 23, 0000
XXXXX XX XXX XXXX )
COUNTY OF MONROE ) ss:
On the 22nd day of September in the year 1999 before me, the undersigned,
a Notary Public in and for said state, personally appeared Xxxxxx 0. XxXxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxxx X. Reochia
--------------------------------------
Notary Public
XXXXX X. REOCHIA
Notary Public, State of New York
No. 02RE5004858
Qualified in Monroe County
Certicate Filed in Monroe County
Commission Expires Nov. 23, 2000
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