EXHIBIT 10.16
AMENDMENT NO. 1
TO GENERAL SECURITY AGREEMENT
WHEREAS:
A. CVC PRODUCTS, INC. ("CVC"), a Delaware corporation doing business in the State of New York, with offices located at 525 Lee Road, Rochester, New York 14603, executed and delivered to MAAUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation, with its principal office located at One M&T Plaza, Buffalo, New York 14240 ("M&T") a General Security Agreement ("Security Agreement") dated February 2, 1996, regarding the premises and obligations described in the Security Agreement and constituting additional security for repayment of the indebtedness of CVC to M&T, which includes, but is not limited to a $2,500,000.00 Demand Note and a $3,000,000.00 line of credit ("Prior Indebtedness"). A copy of the Security Agreement and the UCC-1 filings are attached hereto as Exhibit A.
B. CVC and COUNTY OF MONROE INDUSTRIAL DEVELOPMENT AGENCY ("COMIDA") wish to amend the Security Agreement so that the obligations of CVC shall be extended to M&T REAL ESTATE, INC., a New York corporation, with its principal office located at One Fountain Plaza, Buffalo, New York 14203 ("Lender"), as additional security for the repayment of the indebtedness of CVC to M&T Real Estate, Inc. in the amount of $2,000,000.00 ("Indebtedness") which is secured by a Mortgage executed by CVC and COMIDA covering property owned by COMIDA and leased to CVC.
C. M&T, CVC, COMIDA and Lender have agreed to modify the Security Agreement to extend to all parties.
THEREFORE, in consideration of One Dollar ($1.00) and other good and valuable consideration, the parties hereby agree to modify the following terms as set forth in the Security Agreement:
1. The Security Agreement shall be amended to include in the definition of "Secured Party" Lender and/or M&T.
2. CVC affirms that the Security Agreement secures both the Indebtedness and the Prior Indebtedness without demand, offset or setoff of any kind.
3. M&T consents to the extension of the Security Agreement to Lender as additional security for the Indebtedness.
4. The attached Rider is made a part of this Amendment.
CVC PRODUCTS, INC.
By /s/ Emilio O. DiCataldo
-------------------------------
Emilio O. DiCataldo, Senior
Vice President and Chief
Financial Officer
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ William E. Holston
------------------------------
William E. Holston
Vice President
M&T REAL ESTATE, INC.
BY: MANUFACTURERS AND TRADERS TRUST
COMPANY, ATTORNEY-IN FACT
By: /s/ William E. Holston
------------------------------
William E. Holston
Vice President
STATE OF NEW YORK) COUNTY OF MONROE ) SS:
On this 29th day of September, 1997, before me, the subscriber, personally appeared EMILIO O. DiCATALDO, 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/ Kevin V. Recchia
------------------------------
Notary Public
KEVIN V. RECCHIA
Notary Public, State of New York
No. 02RE5004856
Qualified in Monroe County
Certificate Filed in Monroe County
Commission Expires Nov. 23, 1998
STATE OF NEW YORK) COUNTY OF MONROE ) SS:
On this 29th day of September, 1992, before me, the subscriber, personally appeared WILLIAM E. HOLSTON, to me known, who, being by me duly sworn, did depose and say that he resides in Rochester, New York, that he is a Vice President of MANUFACTURERS AND TRADERS TRUST COMPANY, 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/ Kevin V. Recchia
------------------------------
Notary Public
KEVIN V. RECCHIA
Notary Public, State of New York
No. 02RE5004856
Qualified in Monroe County
Certificate Filed in Monroe County
Commission Expires Nov. 23, 1998
STATE OF NEW YORK) COUNTY OF MONROE ) SS:
On this 29th day of September, 1997, before me personally appeared WILLIAM E. HOLSTON, to me personally known, who, being by me duly sworn, did depose and say that he resides in Rochester, New York; that he is a Vice President of MANUFACTURERS AND TRADERS TRUST COMPANY, the corporation which executed the within instrument on behalf of M&T REAL ESTATE, INC., by virtue of a Power of Attorney recorded in the Monroe County Clerk's Office in Liber 8654 of Powers of Attorney, at page 207.
/s/ Kevin V. Recchia
------------------------------
Notary Public
KEVIN V. RECCHIA
Notary Public, State of New York
No. 02RE5004856
Qualified in Monroe County
Certificate Filed in Monroe County
Commission Expires Nov. 23, 1998
COUNTY OF MONROE INDUSTRIAL
DEVELOPMENT AGENCY
By: /s/ Robert E. Morgan
----------------------------
Robert E. Morgan, Chairman
STATE OF NEW YORK) COUNTY OF MONROE ) SS:
On this the 29 day of September, 1997, before me personally came ROBERT E MORGAN, to me known, who, being by me duly sworn, did depose and say that he resides at Mendon; that he is the Chairman of the COUNTY OF MONROE INDUSTRIAL DEVELOPMENT AGENCY, the public benefit corporation described in and which executed the within Mortgage; and that he signed his name thereto by order of the members of said public benefit corporation.
/s/ Michael J. Townsend
-------------------------------
Notary Public
MICHAEL J. TOWNSEND
Notary Public, State of New York
Qualified in Monroe County
Commission Expires May 31, 1999
RIDER TO AMENDMENT NO. ONE TO
GENERAL SECURITY AGREEMENT
DATED AS OF SEPTEMBER 29, 1997
BY CVC PRODUCTS, INC AND
COUNTY OF MONROE INDUSTRIAL DEVELOPMENT AGENCY
TO
M&T REAL ESTATE, INC.
Monroe County Industrial Development Agency Special Obligations
This Amendment No. One is executed by the County of Monroe Industrial Development Agency ("Agency") solely for the purpose of subjecting its ownership of the Collateral to the lien of the Security Agreement and for no other purpose. All representations, covenants and warranties of the Agency herein are hereby deemed to have been made by CVC PRODUCTS, INC. and not by the Agency.
All obligations of the Agency hereunder shall constitute a special obligation payable solely from the proceeds and other monies, if any, derived from the Collateral, and neither the members of the Agency nor any person executing this Security Agreement on its behalf shall be liable personally under this Security Agreement. No recourse shall be had for the payment of the principal of, or interest on the Note which this Security Agreement secures, or for any claim based hereon, or otherwise in respect hereof, or based upon or in respect of this Security Agreement, or any Security Agreement supplemental hereto, against any past, present or future member, officer, agent, servant or employee, as such, of the Agency or any successor Public Benefit Corporation or political subdivision, either directly or through the Agency or any such successor, all such liability of such members, officers, agents, servants and employees being, to the extent permitted by law, expressly waived and released by the acceptance hereof and as part of the consideration for the execution of this Security Agreement and the Note it secures. Any judgment or decree shall be enforceable against the Agency only to the extent of its interest in the Collateral and any such judgment shall not be subject to execution on or by a lien on assets of the Agency other than its interest in the Collateral.
This Section is for the benefit of the Agency only and does not in any way impair the obligations of CVC PRODUCTS, INC.
DOC GSA DATE 2-2-96
----- ---------
COM
------------------
[LOGO] GENERAL SECURITY AGREEMENT
MANUFACTURERS AND TRADERS TRUST COMPANY
Name(s) of Undersigned CVC Products, Inc. ("Borrower" or "undersigned")
--------------------------------------------------------- Address(es) of Undersigned 525 Lee Road, Rochester, NY 14606
-----------------------------------------------------
In consideration of Manufacturers and Traders Trust Company, a New York banking corporation having its chief executive office at One M&T Plaza, Buffalo, New York 14240, (the "Secured Party") heretofore or hereafter (1) granting any loan, credit or other financial accommodation to, or in reliance upon any guaranty, endorsement or other assurance of any of the undersigned or (2) permitting any extension, renewal, refinancing, modification or replacement of any indebtedness, liability or obligation arising as a direct or indirect result of any such loan, credit or other financial accommodation, (3) surrendering or releasing any guaranty, endorsement or other assurance, any collateral or other security, or any subordination, directly or indirectly securing the payment of, or otherwise directly or indirectly applicable to, any such indebtedness, liability or obligation or (4) granting any waiver of, or any forbearance or other indulgence relating to, any right or remedy relating to any such indebtedness, liability or obligation, to any such guaranty, endorsement or other assurance, to any such collateral or other security or to any such subordination, and for other valuable consideration, the receipt of which is acknowledged, each of the undersigned agrees with the Secured Party as follows:
1. Reference to Definitions.
a. For purposes of this Agreement, each of the following terms has the meaning given it in Section 16 of this Agreement: (i) Bankruptcy Law, (ii) Collateral, (iii) Debtor, (iv) Equipment, (v) Event of Default, (vi) General Intangible, (vii) Goods, (viii) Inventory, (ix) Obligations, (x) Other Collateral, (xi) Other Obligor, (xii) Permitted Lien, (xiii) Person, (xiv) Primary Obligor, (xv) Security Interest and (xvi) Successor.
b. For purposes of this Agreement, each of the following terms has the meaning given it for purposes of Article 9 of the Uniform Commercial Code of the State of New York as in effect on the date of this Agreement: (i) Account, (ii) Account Debtor, (iii) Chattel Paper, (iv) Consumer Goods, (v) Deposit Account, (vi) Document, (vii) Farm Product, (viii) Fixture, (ix) Instrument, (x) Proceeds and (xi) Products.
c. For purposes of this Agreement, "Uncertificated Security" has the meaning given it for purposes of Article 8 of the Uniform Commercial Code of the State of New York as in effect on the date of this Agreement.
2. Security Interest; Nature of Security Interest.
a. To secure the payment of the Obligations, each of the undersigned grants to the Secured Party a security interest in, and assigns, pledges and hypothecates to the Secured Party, the Collateral.
b. Each Security Interest (i) is unconditional, (ii) is independent of and in addition to all Other Collateral, (iii) is a continuing security interest, assignment, pledge or hypothecation, and (iv) shall continue in full force and effect except insofar as this Agreement is terminated as provided in Section 12g of this Agreement.
3. Reinstatement of Obligations. Each portion of the Obligations that is (a) paid by any money received or applied by the Secured Party (including, but not limited to, any such money constituting, or received or applied because of the existence of, any of the Collateral or any Other Collateral) and later returned by or otherwise recovered from the Secured Party as a direct or indirect result of any claim, regardless of the basis or outcome thereof, whether asserted affirmatively, as a counterclaim, setoff or defense or otherwise and whether now existing or hereafter arising, for the return or for any other recovery of such money (including, but not limited to, any such claim based, in whole or in part, upon any allegation that (i) such money constituted trust funds for purposes of the Lien Law of the State of New York or for purposes of any similar statute, regulation or other law, (ii) the receipt or application of such money constituted an impermissible setoff or (iii) the receipt or application of such money, or the grant or perfection of any security interest in, or of any other lien or encumbrance upon, any of the Collateral or any Other Collateral, constituted a preference, fraudulent transfer or fraudulent conveyance) or (b) satisfied by the Secured Party's retention of any portion of the Collateral, or by the Secured Party's retention of any Other Collateral, that is later returned by or otherwise recovered from the Secured Party as a direct or indirect result of any claim, regardless of the basis or outcome thereof, whether asserted affirmatively, as a counterclaim, setoff or defense or otherwise and whether now existing or hereafter arising, for the return or for any other recovery of such portion of the Collateral or Other Collateral (including, but not limited to, any such claim based, in whole or in part, upon any allegation that the grant or perfection of any security interest in, or of any other lien or encumbrance upon, such portion of the Collateral or Other Collateral constituted a preference, fraudulent transfer or fraudulent conveyance) shall be reinstated as part of the Obligations for purposes of this Agreement (including, but not limited to, Section 12g of this Agreement) as of the date it originally arose and for purposes of each statute of limitations with respect to any action or other legal proceeding by the Secured Party against any Debtor relating to this Agreement as of the date of such return or other recovery of such money, portion of the Collateral or Other Collateral.
4. Covenants.
a. Simultaneously with the execution and delivery to the Secured Party of this Agreement, each of the undersigned shall execute and deliver to the Secured Party each financing statement, notice of lien, instrument of assignment and other writing, and take each other action, that the Secured Party shall deem necessary or desirable at the sole option of the Secured Party to perfect or accomplish any Security Interest.
b. Simultaneously with the execution and delivery to the Secured Party of this Agreement, each of the undersigned shall deliver each presently existing instrument included in the Collateral (except for any check or other draft) and held by him, her or it to the Secured Party with each endorsement, instrument of assignment and other writing that the Secured Party shall deem necessary or desirable at the sole option of the Secured Party to accomplish the assignment or other transfer of such instrument to the Secured Party. Until such delivery, he, she or it shall hold such instrument in trust for the Secured Party.
c. Immediately upon receiving any instrument included in the Collateral (except for, until (i) the occurrence or existence of any Event of Default or (ii) any notice to the contrary shall be delivered, given or sent by the Secured Party to any Debtor, any check or other draft), each Debtor shall deliver such instrument to the Secured Party with each endorsement, instrument of assignment and other writing that the Secured Party shall deem necessary or desirable at the sole option of the Secured Party to accomplish the assignment or other transfer of such instrument to the Secured Party. Until such delivery, such Debtor shall hold such instrument in trust for the Secured Party.
1
d. Each Debtor shall provide to the Secured Party, in form satisfactory to the Secured Party, (i) if such Debtor is an individual, at least once during each period of twelve consecutive months, a personal financial statement of such Debtor for a year ending not more than sixty days earlier, in reasonable detail and certified by such Debtor to be complete and accurate, (ii) if such Debtor is not an individual, within sixty days after the end of each fiscal quarter of each fiscal year of such Debtor, statements of income and of changes in financial position of such Debtor for such fiscal quarter and for the period from the beginning of such fiscal year to the end of such fiscal quarter and a balance sheet of such Debtor as of the end of such fiscal quarter each in reasonable detail and certified by an officer or member of such Debtor to be complete and accurate, to be in accordance with the records of such Debtor and to present fairly, subject to normal and nonmaterial year-end adjustments, the results of the operations, and the changes in financial position, of such Debtor for such fiscal quarter and for the period from the beginning of such fiscal year to the end of such fiscal quarter, and the financial position of such Debtor as of the end of such fiscal quarter, in conformity with generally accepted accounting principles applied consistently with the application of such principles with respect to the preceding fiscal quarter of such Debtor, (iii) if such Debtor is not an individual, within ninety days after the end of each fiscal year of such Debtor, statements of income and of changes in financial position of such Debtor for such fiscal year and a balance sheet of such Debtor as of the end of such fiscal year, each in reasonable detail and certified by an independent certified public accountant acceptable to the Secured Party to present fairly the results of the operations, and the changes in financial position, of such Debtor for such fiscal year and the financial position of such Debtor as of the end of such fiscal year, in conformity with generally accepted accounting principles applied consistently with the application of such principles with respect to the preceding fiscal year of such Debtor and to have been based upon an audit by such accountant that was made in accordance with generally accepted auditing standards and accordingly included such tests of accounting records and such other auditing procedures as such accountant deemed necessary in the circumstances, and (iv) promptly upon the request of the Secured Party, all additional information relating to such Debtor or to such Debtor's business, operations, assets, affairs or condition (financial or other) that is so requested.
e. Each Debtor shall maintain accurate and complete records relating to the Collateral (including, but not limited to, upon the request of the Secured Party, a perpetual inventory record relating to inventory included in the Collateral) in conformity with generally accepted accounting principles consistently applied.
f. Before the end of any applicable grace period, each Debtor shall pay each tax, assessment, fee and charge imposed by any government or political subdivision upon any of the Collateral, upon the ownership, possession, use, operation, sale or lease of any of the Collateral, upon this Agreement or upon any instrument evidencing any of the Obligations.
g. Each Debtor shall obtain and maintain in full force and effect each authorization, approval, permit, consent, franchise and license from any Person necessary for the ownership, possession, use, operation, sale or lease of any of the Collateral.
h. Each Debtor shall defend the Collateral against each demand, claim, counterclaim, setoff and defense asserted by any Person other than the Secured Party (including, but not limited to, any Account Debtor).
i. Each Debtor shall indemnify the Secured Party on demand against each liability, cost and expense (including, but not limited to, if the Secured Party retains counsel for advice, for litigation or for any other purpose, each attorney's fee and disbursement) incurred by the Secured Party as a direct or indirect result of any claim, regardless of the basis or outcome thereof, whether asserted affirmatively, as a counterclaim, setoff or defense or otherwise and whether now existing or hereafter arising, arising out of the ownership, possession, use, operation, sale or lease of any of the Collateral.
j. Each Debtor shall (i) keep all Goods included in the Collateral insured against each risk to which any of such Goods may at any time be subject (including, but not limited to, fire, theft and risks covered by extended coverage) and (ii) maintain insurance against liability on account of damage to any Person or property arising out of the ownership, possession, use, operation, sale or lease of any of such Goods. Such insurance shall be provided in such amounts, for such periods, on such terms, with such special endorsements and by such companies as shall be satisfactory to the Secured Party. Each Debtor shall deliver to the Secured Party a copy of each policy pursuant to which any of such insurance is provided. Without limiting the generality of the first two sentences of this Section 4j, (i) each policy pursuant to which any of the insurance described in clause (i) of the first sentence of this Section 4j is provided shall contain a mortgagee clause, in form and substance satisfactory to the Secured Party, (A) naming the Secured Party as a mortgagee as the interest of the Secured Party may appear and (B) providing that (I) all money payable pursuant to any insurance provided pursuant to such policy shall be payable to the Secured Party, (II) no insurance provided pursuant to such policy shall be affected by any act or omission of any Debtor or of any owner of any real property referred to in such policy and (III) neither such policy nor such mortgagee clause may be canceled, terminated or adversely amended except upon thirty days' prior written notice to the Secured Party and (ii) each policy pursuant to which any of the insurance described in clause (ii) of the first sentence of this Section 4j is provided shall contain a clause, in form and substance satisfactory to the Secured Party, (A) naming the Secured Party as an additional insured as the interest of the Secured Party may appear and (B) providing that neither such policy nor such clause may be canceled, terminated or adversely amended except upon thirty days' prior written notice to the Secured Party.
k. Each Debtor shall immediately (i) cause all Goods included in the Collateral to be properly titled and registered to the extent required by any applicable statute, regulation or other law, (ii) cause the interest of the Secured Party to be properly noted on each certificate of title relating to any of such Goods and (iii) deliver each such certificate received by such Debtor to the Secured Party.
l. Each Debtor shall (i) keep each Fixture and piece of Equipment included in the Collateral in as good condition as when first delivered to any Debtor, ordinary wear and tear excepted, (ii) perform maintenance on each such Fixture and piece of Equipment strictly in accordance with each applicable specification of any manufacturer or seller thereof and (iii) use and operate each such Fixture and piece of Equipment, and permit each such Fixture and piece of Equipment to be used and operated, only in the manner in which it was designed to be used and operated so as to subject it only to ordinary wear and tear.
m. Each Debtor shall use his, her it its best efforts to cause any issuer of any General Intangible or Instrument included in the Collateral to make public, whether by filing reports with the Securities and Exchange Commission or otherwise, all information with respect to such issuer necessary or desirable to permit the sale or other disposition of such General Intangible or Instrument without registration pursuant to the Securities Act of 1933.
n. If any Account or General Intangible included in the Collateral represents money owing pursuant to any contract for the improvement of real property or for a public improvement for purposes of the Lien Law of the State of New York, each Debtor shall (i) immediately send or deliver notice of such fact to the Secured Party, (ii) receive and hold any money advanced by the Secured Party with respect to such Account or General Intangible as a trust fund to be first applied to the payment of trust claims as such term is defined in Section 71 of such Lien Law, (iii) until each such trust claim is paid, not use or permit the use of any of such money for any purpose other than the payment of such trust claims and (iv) promptly upon the request of the Secured Party, execute and deliver each writing, and take each other action, that the Secured Party shall deem necessary or desirable at the sole option of the Secured Party to give or file notice of the Secured Party's interest in such Account or General Intangible pursuant to whichever of Sections 15, 16 and 73 of such Lien Law is applicable.
o. If any Account or General Intangible included in the Collateral arises out of a contract with any government or political subdivision (including, but not limited to, the United States) or with any department, agency or instrumentality thereof, such Debtor shall (i) immediately send or deliver notice of such fact to the Secured Party and (ii) promptly upon the request of the Secured Party, execute and deliver each writing, and take each other action that the Secured Party shall deem necessary or desirable at the sole option of the Secured Party properly to perfect under any statute, regulation or other law (including, but not limited to, the Federal Assignments of Claims Act) the interest of the Secured Party in such Account or General Intangible.
p. Each Debtor shall promptly deliver or send to the Secured Party notice of any failure of any Account Debtor or other Person to perform any obligation relating to any Account, Chattel Paper, General Intangible, Instrument, Document or Deposit Account included in the Collateral. ...
*End of Preview*
Click the 'Add to Cart' button to download the complete and formatted agreement.