EXHIBIT 4.34
PROMISSORY NOTE
$15,400,000.00 MONTGOMERY, ALABAMA
DECEMBER 31, 2001
FOR VALUE RECEIVED FIBERCORE USA, INC., a Delaware corporation, as
maker, having its principal place of business at _______________________
("Borrower"), hereby unconditionally promises to pay to the order of TEACHERS
RETIREMENT SYSTEM OF ALABAMA, having an address at 135 South Union Street,
Montgomery, Alabama, 36130 ("Lender"), or at such other place as the holder
hereof may from time to time designate in writing, the principal sum of
__________________ FIFTEEN MILLION FOUR HUNDRED THOUSAND AND NO/100 DOLLARS
($15,400,000.00), or so much thereof as may be advanced pursuant to that certain
Loan Agreement of even date herewith between Borrower and the Lender (the "Loan
Agreement") in lawful money of the United States of America with interest
thereon to be computed at the simple interest rate of eight (8%) percent per
annum, and to be paid in accordance with the terms of this Note and the Loan
Agreement. All capitalized terms not defined herein shall have the respective
meanings set forth in the Loan Agreement.
ARTICLE 1 . PAYMENT TERMS
Borrower agrees to pay the principal sum of this Note and interest
on the principal sum of this Note from time to time outstanding at the rates and
at the times specified in Article 5 of the Loan Agreement.
ARTICLE 2 . DEFAULT AND ACCELERATION
The Loan shall without notice become immediately due and payable at
the option of Lender if any payment required in this Note is not paid on or
prior to the date when due or if not paid on the Maturity Date or upon the
Change in Control of Borrower, or upon sale of the Project or, on the happening
of any other Event of Default. In the event the Loan becomes immediately due and
payable, Lender shall be entitled to receive interest on the entire unpaid
principal sum at the Default Rate pursuant to the terms of the Loan Agreement.
This Article 2, however, shall not be construed as an agreement or privilege to
extend the date of the payment of the Loan, nor as a waiver of any other right
or remedy accruing to Lender by reason of the occurrence of any Event of
Default.
ARTICLE 3 . LOAN DOCUMENTS
This Note is secured by the Security Documents. All of the terms,
covenants and conditions contained in the Loan Agreement, each Security Document
and the other Loan Documents are hereby made part of this Note to the same
extent and with the same force as if they were fully set forth herein. In the
event of a conflict or inconsistency between the terms of this Note and the Loan
Agreement, the terms and provisions of the Loan Agreement shall govern.
Page 1 of 4
ARTICLE 4 - SAVINGS CLAUSE
This Note and the Loan Agreement are subject to the express
condition that at no time shall Borrower be obligated or required to pay
interest on the principal balance of the Loan at a rate which could subject
Lender to either civil or criminal liability as a result of being in excess of
the Maximum Legal Rate. If, by the terms of this Note, the Loan Agreement or the
other Loan Documents, Borrower is at any time required or obligated to pay
interest on the principal balance due hereunder at a rate in excess of the
Maximum Legal Rate, the Simple Interest rate or the Default Rate, as the case
may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and
all previous payments in excess of the Maximum Legal Rate shall be deemed to
have been payments in reduction of principal and not on account of the interest
due hereunder. All sums paid or agreed to be paid to Lender for the use,
forbearance, or detention of the sums due under the Loan, shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and spread
throughout the full stated term of the Loan until payment in full so that the
rate or amount of interest on account of the Loan does not exceed the Maximum
Legal Rate of interest from time to time in effect and applicable to the Loan
for so long as the Loan is outstanding.
ARTICLE 5 - NO ORAL CHANGE
This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Borrower or Lender, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
ARTICLE 6 . WAIVERS
Borrower and all others who may become liable for the payment of all
or any part of the Loan do hereby severally waive presentment and demand for
payment, notice of dishonor, notice of intention to accelerate, notice of
acceleration, protest and notice of protest and nonpayment and all other notices
of any kind. No release of any security for the Loan or extension of time for
payment of this Note or any installment hereof, and no alteration, amendment or
waiver of any provision of this Note, the Loan Agreement or the other Loan
Documents made by agreement between Lender or any other Person not in writing
signed on behalf of Lender and Borrower shall release, modify, amend, waive,
extend, change, discharge, terminate or affect the liability of Borrower, and
any other Person who may become liable for the payment of all or any part of the
Loan, under this Note, the Loan Agreement or the other Loan Documents. No notice
to or demand on Borrower shall be deemed to be a waiver of the obligation of
Borrower or of the right of Lender to take further action without further notice
or demand as provided for in this Note, the Loan Agreement or the other Loan
Documents. If Borrower is a partnership, the agreements herein contained shall
remain in force and be applicable, notwithstanding any changes in the
individuals or entities comprising the partnership, and the term "Borrower," as
used herein, shall include any alternate or successor partnership, but any
predecessor partnership and their partners shall not thereby be released from
any liability. If Borrower is a corporation, the agreements contained herein
shall remain in full force and be applicable notwithstanding any changes in the
shareholders comprising, or the officers and directors relating to, the
corporation,
Page 2 of 4
and the term "Borrower" as used herein, shall include any alternative or
successor corporation, but any predecessor corporation shall not be relieved of
liability hereunder. If any Borrower is a limited liability company, the
agreements herein contained shall remain in force and be applicable,
notwithstanding any changes in the members comprising the limited liability
company, and the term "Borrower" as used herein, shall include any alternate or
successor limited liability company, but any predecessor limited liability
company and their members shall not thereby be released from any liability.
(Nothing in the foregoing sentence shall be construed as a consent to, or a
waiver of, any prohibition or restriction on transfers of interests in such
partnership, corporation or limited liability company which may be set forth in
the Loan Agreement, each Security Instrument or any other Loan Document.) If
Borrower consists of more than one person or party, the obligations and
liabilities of each such person or party shall be joint and several.
ARTICLE 7 . TRANSFER
Upon the transfer of this Note in accordance with Section 5.5(b) of
the Loan Agreement, Borrower hereby waiving notice of any such transfer, Lender
may deliver all the collateral mortgaged, granted, pledged or assigned pursuant
to the Loan Documents, or any part thereof, to the transferee who shall
thereupon become vested with all the rights herein or under applicable law given
to Lender with respect thereto, and Lender shall thereafter forever be relieved
and fully discharged from any liability or responsibility in the matter; but
Lender shall retain all rights hereby given to it with respect to any
liabilities and the collateral not so transferred. Notwithstanding the
foregoing, a Change in Control of Borrower or a sale of the Project shall cause
the Loan to become immediately due and payable at the election of Lender, under
Article 2 hereof.
ARTICLE 8 - GOVERNING LAW
This Note shall be governed in accordance with the choice of law
provisions of Section 1.4 of the Loan Agreement.
ARTICLE 9 - NOTICES
All notices or other written communications hereunder shall be
delivered in accordance with Section 9.6 of the Loan Agreement.
[NO FURTHER TEXT ON THIS PAGE]
Page 3 of 4
IN WITNESS WHEREOF, Borrower has duly executed this Note as of the
day and year first above written.
[BORROWER]
FIBERCORE USA, INC.
A DELAWARE CORPORATION
By: /s/ Robert Lobban
------------------------------------
Name: Robert Lobban
Title: Chief Financial Officer