EXHIBIT 99.1
EXECUTION
NEITHER THIS NOTE, NOR ANY COMMON STOCK ISSUABLE UPON EXERCISE OF
THE CONVERSION PRIVILEGE SET FORTH HEREIN HAS BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS NOTE AND, IF
ISSUED ANY SUCH STOCK MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (1) PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
FIBERCORE, INC .
PROMISSORY NOTE DUE JANUARY 30, 2004
$1,500,000 Dated as of December 20, 2002
FOR VALUE RECEIVED, FIBERCORE USA, INC., a Delaware corporation
("MAKER") and a wholly-owned subsidiary of Fibercore, Inc., unconditionally
promises to pay to the order of TYCO INTERNATIONAL FINANCE ALPHA GMBH, a Swiss
company ("PAYEE"), in the manner and at the place hereinafter provided, the
principal amount of ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000) on
January 30, 2004 (the "MATURITY DATE").
Maker also promises to pay interest on the unpaid principal amount
hereof from the date hereof until paid in full at a fluctuating interest rate
per annum that is at all times equal to the Reference Rate (capitalized terms
used herein and not otherwise defined herein shall have the meanings provided in
Section 9 below) plus 3.00%; provided, that any principal amount not paid when
due and, to the extent permitted by applicable law, any interest not paid when
due, in each case whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (both before as well as after
judgment), shall bear interest payable upon demand at a rate that is 2% per
annum in excess of the rate of interest otherwise payable under this Note.
Interest on this Note shall be payable quarterly in arrears, commencing on March
17, 2003, upon any voluntary or mandatory prepayment of this Note (to the extent
accrued on the amount being prepaid) and at maturity. All computations of
interest shall be made by Payee on the basis of a 365 day year, for the actual
number of days elapsed in the relevant period (including the first day but
excluding the last day), utilizing the Reference Rate in effect on the previous
Due Date plus the applicable spread. In no event shall the interest rate payable
on this Note exceed the maximum rate of interest permitted to be charged under
applicable law.
1. PAYMENTS. All payments of principal and interest in respect of
this Note shall be made in lawful money of the United States of America in same
day at the office of Payee located at Xxxxxxxxxxxxxx 0, XX Xxx 0000,
Xxxxxxxxxxxx, 0000, Xxxxxxxxxxx (Attention: Managing Director), or at such other
place as Payee may direct; provided, however, that, Payee may require that any
mandatory or voluntary payment of principal and/or interest (the amount of any
such payment, the "PAYMENT AMOUNT") be made by Maker in the Common Stock
Equivalent of such Payment Amount by delivering to Maker a Conversion Notice.
Whenever any payment on this Note is stated to be due on a day that is not a
Business Day, such payment shall instead be made on the next Business Day, and
such extension of time shall be included in the computation of interest payable
on this Note. Each payment made hereunder shall be credited first to interest
then due and the remainder of such payment shall be credited to principal, and
interest shall thereupon cease to accrue upon the principal so credited. Each of
Payee and any subsequent holder of this Note agrees, by its acceptance hereof,
that before disposing of this Note or any part hereof it will make a notation
hereon of all principal payments previously made hereunder and of the date to
which interest hereon has been paid; provided, however, that the failure to make
a notation of any payment made on this Note shall not limit or otherwise affect
the obligation of Maker hereunder with respect to payments of principal or
interest on this Note.
2. VOLUNTARY PREPAYMENTS. Maker shall have the right at any time and
from time to time to prepay the principal of this Note in whole or in part,
without premium or penalty, upon at least 10 Business Days' written notice (any
such notice, a "NOTICE OF VOLUNTARY PREPAYMENT"); provided that each such
prepayment shall be in a minimum amount of $25,000.00 and integral multiples of
$10,000.00 in excess of that amount. Any prepayment hereunder shall be
accompanied by interest on the principal amount of the Note being prepaid to the
date of prepayment.
3. MANDATORY PREPAYMENTS. Upon the sale of any Collateral, Maker
shall prepay the principal and/or interest outstanding hereunder in an amount
equal to the Net Cash Proceeds from such sale. Maker shall cause such Net Cash
Proceeds to be delivered directly to Payee. Such mandatory prepayment shall be
applied to the principal and interest outstanding hereunder in accordance with
Section 1. Notwithstanding the foregoing, if at the time of receipt of any Net
Cash Proceeds from the sale of either System, (i) Grantor has repaid in cash (x)
at least $750,000 of the principal under the Note and (y) all outstanding
accrued and unpaid interest and any other amounts then due and payable
hereunder, (ii) the other System is still part of the Collateral and (iii) no
Event of Default has occurred and is continuing, Maker shall not be required to
prepay the principal and/or interest outstanding hereunder in an amount equal to
such Net Cash Proceeds.
4. COVENANTS Maker covenants and agrees that until this Note is paid
in full it shall:
(a) promptly provide to Payee all financial and operational
information with respect to Maker as Payee may reasonably request;
(b) promptly after the occurrence of an Event of Default or an
event, act or condition that, with notice or lapse of time or both, would
constitute an Event of Default, provide Payee with a certificate of the
chief executive officer or chief financial officer of Maker specifying the
nature thereof and Maker's proposed response thereto;
(c) not, and shall not permit any of its Subsidiaries to, create,
assume, guaranty, incur or otherwise become or remain directly or
indirectly liable with respect to any indebtedness for borrowed money,
except in respect of the indebtedness described on section 4(c) of the
Disclosure Schedule;
(d) not, and shall not permit any of its Subsidiaries to, directly
or indirectly, create, incur, assume or permit to exist any Lien on or
with respect to any property or asset of any kind (including any document
or instrument in respect of goods or accounts receivable) of Maker or any
of its Subsidiaries, whether now owned or hereafter acquired, or any
income or profits therefrom, or file or permit the filing of, or permit to
remain in effect, any financing statement or other similar notice of any
Lien with respect to any such property, asset, income or profits under the
UCC or under any similar recording or notice statute, except for the Liens
described on section 4(d) of the Disclosure Schedule;
(e) not, and shall not permit any of its Subsidiaries to, enter into
any agreement prohibiting the creation or assumption of any Lien upon any
of its properties or assets, whether now owned or hereafter acquired;
(f) not merge or consolidate with any other Person, or sell, lease
or otherwise dispose of any Collateral or all or any substantial part of
its property or assets to any other Person
(g) on or before December 24, 2002, have caused to be delivered to
Payee originally executed copies of one or more favorable written opinions
of Cadwalader Xxxxxxxxxx & Xxxx, counsel for Maker and Guarantor (or such
other counsel satisfactory to Payee), in form and substance reasonably
satisfactory to Payee and its counsel and as to such matters as Payee may
reasonably request (this Note constituting a written request by Maker to
such counsel to deliver such opinions to Payee);
(h) on or before December 24, 2002, have delivered to Payee the
Disclosure Schedule;
(i) on or before January 10, 2003: (i) received title to the
Systems, (ii) entered into and delivered the Security Agreement to Payee;
(iii) taken or caused to be taken all such actions, executed and delivered
or caused to be executed and delivered all such other agreements,
documents and instruments, and made or caused to be made all such filings
and recordings that may be necessary or, in the opinion of Payee,
desirable in order to create in favor of Payee a valid and perfected First
Priority security interest in the Collateral; and
(j) on or before December 24, 2002, deliver to Payee the following
with respect to Company or such Loan Party, as the case may be, each,
unless otherwise noted, dated the date hereof:
(1) Copies of the Organizational Documents of such Person,
certified by the secretary or similar officer of such Person,
together with a good standing certificate from the Secretary of
State of its jurisdiction of organization;
(2) Resolutions of the Governing Body of such Person approving
and authorizing the execution, delivery and performance of this
Note, the Security Agreement and the Guaranty, as applicable,
certified as of the date hereof by the secretary or similar officer
of such Person as being in full force and effect without
modification or amendment;
(3) Signature and incumbency certificates of the officers of
such Person executing the Note, Security Agreement or Guaranty, as
applicable; and
(4) Such other documents as Payee may reasonably request.
5. REPRESENTATIONS AND WARRANTIES. Maker hereby represents and
warrants to Payee that:
(a) it is a duly organized and validly existing corporation in good
standing under the laws of the jurisdiction of its incorporation and has
the corporate power and authority to own and operate its properties, to
transact the business in which it is now engaged and to execute and
deliver this Note;
(b) this Note constitutes the duly authorized, legally valid and
binding obligation of Maker, enforceable against Maker in accordance with
its terms;
(c) all consents and grants of approval required to have been
granted by any Person in connection with the execution, delivery and
performance of this Note have been granted;
(d) the execution, delivery and performance by Maker of this Note do
not and will not (i) violate any law, governmental rule or regulation,
court order or agreement to which it is subject or by which its properties
are bound or the charter documents or bylaws of Maker or (ii) result in
the creation of any lien or other encumbrance with respect to the property
of Maker;
(e) except for the matters set forth in filings with the Securities
and Exchange Commission prior to the date hereof which or matters are
described on section 5(e) of the Disclosure Schedule, there is no action,
suit, proceeding or governmental investigation pending or, to the
knowledge of Maker, threatened against Maker, Guarantor or any of their
respective subsidiaries or any of their respective assets which, if
adversely determined, would have a material adverse effect on the
business, operations, properties, assets, condition (financial or
otherwise) or prospects of Maker, Guarantor and their respective
subsidiaries, taken as a whole, or the ability of Maker or Guarantor to
comply with its obligations hereunder, under the Security Agreement or the
Guaranty;
(f) the consolidated balance sheet of Guarantor and its subsidiaries
as at September 30, 2002 and the related consolidated statements of
income, retained earnings and cash flows for the nine-month period then
ended, true copies of which have been previously delivered to Payee, have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis and fairly present, in all material
respects, the consolidated financial condition of Guarantor and its
subsidiaries as at the date thereof and the consolidated results of
operations and cash flows for such period;
(g) except for the matters disclosed to the Payee prior to the date
hereof or which matters are described on section 5(g) of the Disclosure
Schedule, since September 30, 2002 there has been no material adverse
change in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Guarantor and its subsidiaries,
taken as a whole; and
(h) the proceeds of the loan evidenced by this Note shall be used by
Maker for first, payment of the $750,000 in principal and accrued but
unpaid interest due to Fleet National Bank ("Fleet") on December 20, 2002
under the Credit Facility Furnished by Fleet to Fibercore, Inc. (the
"CREDIT FACILITY") and then, for general corporate purposes; provided that
no part of such proceeds will be used by Maker to purchase or carry any
"margin stock" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time
hereafter in effect or to extend credit to others for the purpose of
purchasing or carrying any such "margin stock" or to reduce or retire any
indebtedness incurred for any such purpose, and neither Maker nor any of
its subsidiaries is engaged principally or as one of its important
activities in the business of extending credit for the purpose of
purchasing or carrying any such "margin stock".
6. EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute an "EVENT OF DEFAULT":
(a) failure of Maker to pay any principal due under this Note when
due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise or failure of Maker to pay any interest
or other amount due under this Note within three days after the date due;
or
(b) failure of Maker or Guarantor to pay, or the default in the
payment of, any amount due under or in respect of any promissory note,
indenture or other agreement or instrument relating to any indebtedness
owing by Maker or Guarantor, by FiberCore Jena A.G., or FiberCore
Machinery GmbH, to which Maker or Guarantor is a party or by which Maker
or Guarantor or any of its property is bound under which amounts
outstanding exceed $100,000.00 beyond any grace period provided; or the
occurrence of any other event or circumstance that, with notice or lapse
of time or both, would permit acceleration of such indebtedness;
(c) failure of Maker or Guarantor to perform or observe any other
term, covenant or agreement to be performed or observed by it pursuant to
this Note, the Security Agreement or the Guaranty; or
(d) any representation or warranty made by Maker or Guarantor to
Payee in connection with this Note or the Guaranty shall prove to have
been false in any material respect when made; or
(e) any order, judgment or decree shall be entered against Maker or
Guarantor decreeing the dissolution or split-up of Maker or Guarantor; or
(f) suspension of the usual business activities of Maker or
Guarantor or the complete or partial liquidation of Maker's or Guarantor's
business; or
(g) (i) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Maker or Guarantor or any of
their respective subsidiaries in an involuntary case under Title 11 of the
United States Code entitled "Bankruptcy" (as now and hereinafter in
effect, or any successor thereto, the "BANKRUPTCY CODE") or any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
which decree or order is not stayed; or any other similar relief shall be
granted under any applicable federal or state law; or (ii) an involuntary
case shall be commenced against Maker or Guarantor or any of their
respective subsidiaries under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect; or a decree or order of a
court having jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer
having similar powers over Maker or Guarantor or any of their respective
subsidiaries or over all or a substantial part of its property shall have
been entered; or the involuntary appointment of an interim receiver,
trustee or other custodian of Maker or Guarantor or any of their
respective subsidiaries for all or a substantial part of its property
shall have occurred; or a warrant of attachment, execution or similar
process shall have been issued against any substantial part of the
property of Maker or Guarantor or any of their respective subsidiaries,
and, in the case of any event described in this clause (ii), such event
shall have continued for 60 days unless dismissed, bonded or discharged;
or
(h) an order for relief shall be entered with respect to Maker or
Guarantor or any of their respective subsidiaries or Maker or Guarantor or
any of their respective subsidiaries shall commence a voluntary case under
the Bankruptcy Code or any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or shall consent to the entry of
an order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or shall consent
to the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or Maker or
Guarantor or any of their respective subsidiaries shall make an assignment
for the benefit of creditors; or Maker or Guarantor any of their
respective subsidiaries shall be unable or fail, or shall admit in writing
its inability, to pay its debts as such debts become due; or the Board of
Directors of Maker or Guarantor or any of their respective subsidiaries
(or any committee thereof) shall adopt any resolution or otherwise
authorize action to approve any of the foregoing; or
(i) Maker or Guarantor shall challenge, or institute any proceedings
to challenge, the validity, binding effect or enforceability of this Note,
the Security Agreement or the Guaranty or any endorsement of this Note or
any other obligation to Payee;
(j) any provision of this Note, the Guaranty or the Security
Agreement or any provision hereof or thereof shall cease to be in full
force or effect or shall be declared to be null or void or otherwise
unenforceable in whole or in part; or Payee shall not have or shall cease
to have a valid and perfected first priority security interest in the
collateral described in the Security Agreement; or Guarantor or any Person
acting by or on behalf of Guarantor shall deny or disaffirm Guarantor's
obligations under the Guaranty; or Guarantor shall default (beyond any
applicable grace period) in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to
the Guaranty; or
(k) An "Event of Default" shall occur and be continuing as defined
in and under the Credit Agreement.
7. REMEDIES. Upon the occurrence of any Event of Default specified
in Section 8(g), 8(h) or 8(k) above, the principal amount of this Note together
with accrued interest thereon shall become immediately due and payable, without
presentment, demand, notice, protest or other requirements of any kind (all of
which are hereby expressly waived by Maker). Upon the occurrence and during the
continuance of any other Event of Default Payee may, by written notice to Maker,
declare the principal amount of this Note together with accrued interest thereon
to be due and payable, and the principal amount of this Note together with such
interest shall thereupon immediately become due and payable without presentment,
further notice, protest or other requirements of any kind (all of which are
hereby expressly waived by Maker).
8. DEFINITIONS. The following terms used in this Note shall have the
following meanings (and any of such terms may, unless the context otherwise
requires, be used in the singular or the plural depending on the reference):
"ADJUSTED FAIR MARKET VALUE" means 80% of the Fair Market Value.
"AVERAGE MARKET PRICE" with respect to the Common Stock, on any
Payment Date, for the period commencing ten (10) Trading Days before such
Payment Date and ending on the Trading Day immediately preceding such
Payment Date the average of the Weighted Average Daily Trading Prices for
the Common Stock quoted in the NASDAQ small cap market, or if not listed
or admitted to unlisted trading privileges, the average for the period
commencing twenty (20) calendar days before such Payment Date and ending
on the Trading Day immediately preceding such Payment Date of the average
last reported bid and asked prices per share for the Common Stock as
reported by the National Quotation Bureau.
"BUSINESS DAY" means any day other than a Saturday, Sunday or legal
holiday under the laws of the State of New York or any other day on which
banking institutions located in such state are authorized or required by
law or other governmental action to close.
"COLLATERAL" means the Systems and all other collateral secured by
the Security Agreement.
"COMMON STOCK" means the common stock of the Guarantor, par value
$.001per share, which are validly issued, free and clear of all liens,
claims, encumbrances, preemptive rights and other restrictions, other than
restrictions imposed by applicable securities laws.
"COMMON STOCK EQUIVALENT" means for any Payment Amount a number of
shares of Common Stock with an Adjusted Fair Market Value equal to such
Payment Amount.
"CONVERSION NOTICE" means a written notice from Payee to Maker
requiring that a mandatory or voluntary payment of interest or principal
be paid in Common Shares delivered, at (i) least three Business Days after
receipt of a Notice of Voluntary Prepayment, in the case of a voluntary
prepayment by Maker, (ii) 10 Business Days prior to any Due Date or the
Maturity Date, in the case of the payment to be made on any Due Date or
the Maturity Date or (iii) any time, in the case of any payment required
to be made after the acceleration of the principal hereunder.
"DISCLOSURE SCHEDULE" means the disclosure schedule delivered by
Maker to Payee in accordance with Section 4(h) that shall include only
such items that are consented to by Payee in its sole discretion.
"DUE DATE" means March 17, 2003; June 16, 2003; September 15, 2003;
December 15, 2003 and January 30, 2004.
"EVENT OF DEFAULT" means any of the events set forth in Section 7.
"FAIR MARKET VALUE" means, on any Payment Date, (i) the Average
Market Price for such Payment Date or (ii) if an Average Market Price is
not available for such Payment Date, the fair market value of a share of
Common Stock as determined by an investment bank of recognized national
standing selected by Payee in its reasonable discretion.
"FIRST PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to the Security Agreement, that (i)
such Lien is perfected and has priority over any other Lien on such
Collateral and (ii) such Lien is the only Lien to which such Collateral is
subject.
"GUARANTOR" means Fibercore, Inc. and its permitted successors and
assigns under the Guaranty.
"GUARANTY" means the Guaranty dated as of December ___, 2002 by
Guarantor in favor of Payee, as the same may be amended, supplemented or
otherwise modified from time to time.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof,
and any agreement to give any security interest) and any option, trust or
other preferential arrangement having the practical effect of any of the
foregoing.
"NET CASH PROCEEDS" means cash payments (including any cash received
by way of deferred payment but only as and when so received) received from
a sale of any Collateral, net of any bona fide direct costs approved by
Payee that are incurred in connection with such sale, including income
taxes reasonably estimated to be actually payable within two years of the
date of such sale as a result of any gain recognized in connection with
such sale.
"PAYMENT DATE" means the date on which any mandatory or voluntary
payment of principal and/or interest is required to be paid under this
Note, including, without limitation, the Maturity Date.
"PERSON" means any individual, partnership, limited liability
company, joint venture, firm, corporation, association, bank, trust or
other enterprise, whether or not a legal entity, or any government or
political subdivision or any agency, department or instrumentality
thereof.
"REFERENCE RATE" means the Three-Month London Interbank Offered Rate
(LIBOR) for U.S. Dollar borrowings, as determined by the British Bankers'
Association on the Due Date, except that for the December 15, 2003 Due
Date, the Two-Month LIBOR rate shall apply; provided, that from the date
hereof until March 16, 2003 the "Reference Rate" shall be 1.45%.
"SECURITY AGREEMENT" means a security agreement pursuant to which
Maker grants to Payee a security interest in the Systems and certain other
assets, in form and substance satisfactory to Payee, as the same may be
amended, supplemented or otherwise modified from time to time.
"SYSTEMS" means, collectively, System #1 and Systems #2, a
Atmospherical Chemical Vapor Deposition System ACVD 18 and Sintering
System CVA 90 manufactured by ASI Silica Machinery, LLC, and "SYSTEM"
means each of System #1 and System #2.
"SYSTEM #1" means the Atmospherical Chemical Vapor Deposition System
ACVD 18 (Serial # A055A03B06D) and the Sintering System XXX 00 (Xxxxxx #
X000X00X00X), in each case manufactured by ASI Silica Machinery, LLC.
"SYSTEM #2" means the Atmospherical Chemical Vapor Deposition System
ACVD 18 (Serial # A055A04B07D) and the Sintering System XXX 00 (Xxxxxx #
X000X00X00X), in each case manufactured by ASI Silica Machinery, LLC.
"TRADING DAY" means if the Common Stock is quoted on the NASDAQ
small cap market, a day on which trades may be effected though such system
or (ii) if the Common Stock is not quoted on the NASDAQ small cap market,
a day on which the Common Stock is traded regular way in over-the-counter
market and for which a closing bid and a asking price for the Common Stock
is available.
"WEIGHTED AVERAGE DAILY TRADING PRICE" means the average (weighted
to take account of the number of shares traded) of the selling prices of
the Makers Common Stock for the appropriate ten Trading Day period.
9. MISCELLANEOUS.
(a) Except as otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including
telefacsimile communication) and mailed, telecopied, or delivered as
follows: if to Maker, at its address specified opposite its signature
below; with a copy to: Treasurer, Tyco International (US) Inc., 0 Xxxx
00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, and if to Payee, at
Xxxxxxxxxxxxxx 0, XX Xxx 0000, Xxxxxxxxxxxx, 0000, Xxxxxxxxxxx (Attention:
Managing Director), or in each case at such other address as shall be
designated by Payee or Maker. All such notices and communications shall,
when mailed, telecopied or sent by overnight courier, be effective when
deposited in the mails, delivered to the overnight courier, as the case
may be, or sent by telecopier with verification of successful
transmission.
(b) Maker agrees to indemnify Payee against any losses, claims,
damages and liabilities and related expenses, including counsel fees and
expenses, incurred by Payee arising out of or in connection with or as a
result of the transactions contemplated by this Note. In particular, Maker
promises to pay all costs and expenses, including reasonable attorneys'
fees, incurred in connection with the collection and enforcement of this
Note. In addition, Maker agrees to pay, and to save Payee harmless from
all liability for, any stamp or other documentary taxes which may be
payable in connection with Maker's execution or delivery of this Note.
(c) No failure or delay on the part of Payee or any other holder of
this Note to exercise any right, power or privilege under this Note and no
course of dealing between Maker and Payee shall impair such right, power
or privilege or operate as a waiver of any default or an acquiescence
therein, nor shall any single or partial exercise of any such right, power
or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
expressly provided in this Note are cumulative to, and not exclusive of,
any rights or remedies that Payee would otherwise have. No notice to or
demand on Maker in any case shall entitle Maker to any other or further
notice or demand in similar or other circumstances or constitute a waiver
of the right of Payee to any other or further action in any circumstances
without notice or demand.
(d) Maker and any endorser of this Note hereby consent to renewals
and extensions of time at or after the maturity hereof, without notice,
and hereby waive diligence, presentment, protest, demand and notice of
every kind and, to the full extent permitted by law, the right to plead
any statute of limitations as a defense to any demand hereunder.
(e) THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF MAKER AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
(f) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST MAKER ARISING OUT OF OR
RELATING TO THIS NOTE MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS NOTE MAKER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION
OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS NOTE. Maker hereby agrees that service of all process
in any such proceeding in any such court may be made by registered or
certified mail, return receipt requested, to Maker at its address set
forth below its signature hereto, such service being hereby acknowledged
by Maker to be sufficient for personal jurisdiction in any action against
Maker in any such court and to be otherwise effective and binding service
in every respect. Nothing herein shall affect the right to serve process
in any other manner permitted by law or shall limit the right of Payee to
bring proceedings against Maker in the courts of any other jurisdiction.
(g) MAKER AND, BY THEIR ACCEPTANCE OF THIS NOTE, PAYEE AND ANY
SUBSEQUENT HOLDER OF THIS NOTE, HEREBY IRREVOCABLY AGREE TO WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS NOTE OR ANY DEALINGS BETWEEN THEM RELATING TO
THE SUBJECT MATTER OF THIS NOTE AND THE LENDER/BORROWER RELATIONSHIP THAT
IS BEING ESTABLISHED. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court
and that relate to the subject matter of this transaction, including
without limitation contract claims, tort claims, breach of duty claims and
all other common law and statutory claims. Maker and, by their acceptance
of this Note, Payee and any subsequent holder of this Note, each (i)
acknowledges that this waiver is a material inducement to enter into a
business relationship, that each has already relied on this waiver in
entering into this relationship, and that each will continue to rely on
this waiver in their related future dealings and (ii) further warrants and
represents that each has reviewed this waiver with its legal counsel and
that each knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT
IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
OF THIS NOTE. In the event of litigation, this provision may be filed as a
written consent to a trial by the court.
(h) Maker hereby waives the benefit of any statute or rule of law or
judicial decision which would otherwise require that the provisions of
this Note be construed or interpreted most strongly against the party
responsible for the drafting thereof.
IN WITNESS WHEREOF, Maker has caused this Note to be executed and
delivered by its duly authorized officer as of the day and year and at the place
first above written.
FIBERCORE USA, INC.
By: ___________________________
Name:
Title:
Address:
000 Xxxxxxxxx Xxxx, X.X. Xxx 000
Xxxxxxxx, XX 00000
DISCLOSURE SCHEDULE
Section 4 (c)
$1,500,000 Promissory Note Due January 30, 2004 to Tyco International
Finance Alpha GmbH, dated as of December 20, 2002.
Other indebtedness in an aggregate amount not to exceed $5,000,000
outstanding at anytime.
Section 4 (d)
Lien created in connection with the $1,500,000 Promissory Note Due January
30, 2004 to Tyco International Finance Alpha GmbH, dated as of December
20, 2002.
Liens securing Indebtedness described in section 4(c) of this Disclosure
Schedule.
Section 5 (e)
In the Techman litigation, described in Guarantor's Annual Report on Form
10-K for 2000, the Guarantor and Techman are each seeking approximately
$500,000 from the other. Techman received a summary judgment with respect
to $400,000 in notes issued by the Guarantor. The Guarantor's $500,000
claim is in the discovery phase of the litigation.
Section 5 (g)
Relevant information has been previously disclosed to Payee.
