EXHIBIT 10.22
[LOGO]M&T BANK CONTINUING GUARANTY
(CORPORATION OR PARTNERSHIP)
GUARANTOR: CVC Holdings, Inc. 2073060000
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Name
000 Xxx Xxxx, Xxxxxxxxx, XX 00000
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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. 2073150009
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Name
000 Xxx Xxxx, Xxxxxxxxx, XX 00000
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Address
BANK: Manufacturers and Traders Trust Company, Xxx X& X Xxxxx, Xxxxxxx, Xxx Xxxx
00000 Attention: Office of General Counsel
1. Guaranty. (a) Guarantor guarantees to the Bank the full and immediate payment
and performance of all of Borrower's obligations to the Bank 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 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 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,
cancel ______ 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.
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 under this Guaranty, including without limitation: (A) any new
agreements or obligations of Borrower with or to the Bank, 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 Bank; (B) 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, any security for the Obligations, or the order in which
payments and proceeds of collateral are applied; or acceptance by the Bank 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 Bank 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 comission by the Bank or Borrower; (F) any
composition, extension, moratoria or other statutory relief granted to Borrower;
or (G) any interruption in the business relations between the Bank 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
Obligations, and of changes in Borrower's financial condition; (ii) presentment,
protest, notice of protect and demand for payment; and (iii) any other notice,
demand or condition in which Guarantor might otherwise be entitled prior to the
Bank's ____ 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 Bank against Borrower 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. Termination; Reinstatement. This Guaranty can be terminated (a) only with
respect to Obligations not yet incurred, and (b) only by actual receipt by the
Bank officer named above of written notice of Guarantor's intent to terminate
(or Guarantor's dissolution) plus (c) the lapse of a reasonable time for Bank 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 Bank 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 Bank 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 ant related security agreements
shall be reinstated and remain in effect until the Bank has actually received
payment in full of the Obligations.
5. Expenses. Guarantor agrees to reimburse the Bank on demand for all the
Bank's expenses, costs, damages and losses of any kind or nature, including
without limitation actual attorneys' fees and disbursements whether for internal
or external counsel incurred by the Bank 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 Bank.
6. Financial and Other Information. Guarantor shall promptly deliver to the
Bank copies of all annual reports, proxy statements and similar information
distributed to shareholders or partners and of all filings with the Securities
and Exchange Commission and the Pension Benefit Guaranty Corporation and shall
provide in form satisfactory to the Bank: (i) within sixty days after the end of
each of its first three fiscal quarters, consolidating and consolidated
statements of income and cash flows for the quarter, for the corresponding
quarter in the previous fiscal year and for the period from the end of the
previous fiscal year with a consolidating and consolidated balance sheet as of
the quarter end; and (ii) within ninety days after the end of each fiscal year,
consolidating and consolidated statements of Guarantor's income and cash flows
and its consolidating and consolidated balance sheet as of the end of such
fiscal year, setting forth comparative figures for the preceding fiscal year and
to be: /X/ audited / / reviewed / / compiled by an independent certified public
accountant acceptable to the Bank; all such statements shall be certified by
Guarantor's chief financial officer or partner to be correct, not misleading an
din accordance with Guarantor's records an to present fairly the results of
Guarantor's operations and cash flows and if annual its financial position at
year end in conformity with generally accepted accounting principles. IF no box
is checked, Guarantor shall deliver financial statements and information in the
form and at the times satisfactory to the bank. 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.
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's security interest in all money, securities
and other property of Guarantor in the actual or constructive possession or
control of the Bank including
without limitation all deposits and other accounts owing at any time by the Bank
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 of the Bank and shall have all
of the rights and remedies of a secured party under the Uniform Commercial Code
in addition to the 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 Bank; Miscellaneous. This is the entire agreement between
Guarantor and the Bank with respect to the Guaranty. 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 its successors and assigns.
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. 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. This Guaranty shall
be 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 the Guaranty.
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 Bank need not
seek payment from any source other than the undersigned Guarantor. This
Guaranty is a primary obligations. 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 the
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, 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 Bank's course of business may be admitted into evidence as an original, and
(ii) Guarantor will not interpose any counterclaim, setoff or defense of any
nature.
13. WAIVER OF JURY TRIAL. GUARANTOR AND THE BANK EACH WAIVE ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION WITH RESPECT TO THIS GUARANTY.
GUARANTOR:
DATE February 2, 1996 CVC Holdings, Inc.
TIN # 00-0000000 By: /s/ Xxxxxx X. XxXxxxxxx
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Xxxxxx X. XxXxxxxxx, Senior V.P. Finance
ACKNOWLEDGMENT
STATE OF NEW YORK)
:SS
COUNTY OF MONROE)
On the 2 day of February in the year 1996 before me personally came XXXXXX X.
XXXXXXXXX
/ /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
____________________________________________________________
that __ he is the Senior VP Finance of CVC Holdings, Inc.
the corporation described in an which executed the above
instrument, and that __ he signed his (her) name thereto by
order of the board of directors of said corporation.
/s/ Xxxx X. Xxxxxx
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Notary Public
FOR BANK USE ONLY XXXX X. XXXXXX
Authorization Confirmed: NOTARY PUBLIC in the State of New York
MONROE COUNTRY
/s/ Xxxxxxx X. Xxxxxxx My Commission Expires March 9, 1997
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Signature
