Exhibit 4.4
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SIMPLEX TECHNOLOGIES INC.
as Issuer
AND
TYCO GROUP S.A.R.L.,
as Holder
Master Loan Agreement
Dated as of March 27, 2000
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TABLE OF CONTENTS
ARTICLE ONE: DEFINITIONS...................................................................................... 1
SECTION 1.1 Certain Terms Defined....................................................................... 1
ARTICLE TWO: NOTES........................................................................................... 6
SECTION 2.1 Issue Procedures Generally.................................................................. 6
SECTION 2.2 Delivery of Notes.......................................................................... 6
SECTION 2.3 Note Principal Limit; Series................................................................ 6
SECTION 2.4 Terms and Conditions of Notes............................................................... 7
SECTION 2.5 Form of Note; Registered.................................................................... 7
SECTION 2.6 Execution of Notes.......................................................................... 8
SECTION 2.7 Date of Notes; Payments of Interest......................................................... 8
SECTION 2.8 Documents Required.......................................................................... 8
SECTION 2.9 Mutilated, Defaced, Detroyed, Lost and Stolen Notes......................................... 8
SECTION 2.10 Cancellation of Notes, Destruction Thereof.................................................. 9
ARTICLE THREE: COVENANTS OF THE ISSUER....................................................................... 10
SECTION 3.1 Payment of Principal and Interest........................................................... 10
SECTION 3.2 Offices for Payments, etc................................................................... 10
SECTION 3.3 Certificate of the Issuer................................................................... 10
SECTION 3.4 Limitation on Indebtedness of Subsidiaries.................................................. 10
SECTION 3.5 Limitations on Liens........................................................................ 11
SECTION 3.6 Limitation on Sale and Lease-Back Transactions.............................................. 13
SECTION 3.7 Notice to Holder............................................................................ 13
ARTICLE FOUR: EVENTS OF DEFAULT; REMEDIES OF THE HOLDER ..................................................... 14
SECTION 4.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default....................... 14
SECTION 4.2 Collection of Indebtedness by Holder; Holder May Prove Debt................................. 15
SECTION 4.3 Suits for Enforcement....................................................................... 16
SECTION 4.4 Restoration of Rights on Abandonment of Proceedings......................................... 17
SECTION 4.5 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default..................... 17
SECTION 4.6 Waiver of Past Defaults..................................................................... 17
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ARTICLE FIVE: SUPPLEMENTAL MASTER LOAN AGREEMENTS............................................................. 18
SECTION 5.1 Supplemental Master Loan Agreements......................................................... 18
SECTION 5.2 Effect of Supplemental Master Loan Agreements............................................... 19
SECTION 5.3 Notation on Notes in Respect of Supplemental Master Loan Agreements......................... 19
ARTICLE SIX: CONSOLIDATION, MERGER, SALE OR CONVEYANCE........................................................ 19
SECTION 6.1 Issuer May Consolidate, etc., on Certain Terms.............................................. 19
SECTION 6.2 Successor Entity Substituted................................................................ 19
SECTION 6.3 Opinion of Counsel to Holder................................................................ 20
ARTICLE SEVEN: REGISTERED FORM AND TRANSFERS BY HOLDER........................................................ 20
SECTION 7.1 Registered Form............................................................................. 20
SECTION 7.2 Transfer of Notes........................................................................... 20
SECTION 7.3 Obligation to Issue New Note................................................................ 20
SECTION 7.4 Payments Under Notes........................................................................ 20
ARTICLE EIGHT: PRIORITY OF NOTES ............................................................................. 21
ARTICLE NINE: SATISFACTION AND DISCHARGE OF MASTER LOAN AGREEMENT............................................. 21
ARTICLE TEN: ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS....................................................... 21
SECTION 10.1 Redemption Upon Changes in Withholding Taxes................................................ 21
SECTION 10.2 Payment of Additional Amounts............................................................... 22
ARTICLE ELEVEN: REDEMPTION OF NOTES........................................................................... 24
SECTION 11.1 Applicability of Article.................................................................... 24
SECTION 11.2 Notice of Redemption; Partial Redemptions................................................... 24
SECTION 11.3 Payment of Notes Called for Redemption...................................................... 24
SECTION 11.4 Funding Loss................................................................................ 25
ARTICLE TWELVE: MISCELLANEOUS PROVISIONS...................................................................... 26
SECTION 12.1 Incorporators, Shareholders, Officers and Directors of Issuer Exempt from Individual
Liability................................................................................... 26
SECTION 12.2 Provisions of Master Loan Agreement for the Sole Benefit of Parties......................... 26
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SECTION 12.3 Successors and Assigns of Issuer Bound by Master Loan Agreement............................ 26
SECTION 12.4 Notices of Demands......................................................................... 26
SECTION 12.5 Officers' Certificates; Statements to Be Contained Therein................................. 27
SECTION 12.6 Payments Due on Saturdays, Sundays and Holidays............................................ 28
SECTION 12.7 New York Law to Govern..................................................................... 28
SECTION 12.8 Consent to Jurisdiction and Service of Process............................................. 28
SECTION 12.9 Judgment Currency.......................................................................... 28
SECTION 12.10 Counterparts............................................................................... 29
SECTION 12.11 Effect of Headings......................................................................... 29
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MASTER LOAN AGREEMENT
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THIS MASTER LOAN AGREEMENT, dated as of March 27, 2000, by and between
SIMPLEX TECHNOLOGIES INC., a Massachusetts corporation (the "Issuer") and TYCO
GROUP S.A.R.L., a company organized under the laws of the Grand Duchy of
Luxembourg (the "Holder").
WITNESSETH
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WHEREAS, the Issuer has (i) duly authorized the issue from time to
time of its unsecured notes or other evidences of indebtedness to be issued in
one or more series (the "Notes") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Master Loan
Agreement; (ii) provided for, among other things, the delivery and
administration thereof, and (iii) duly authorized the execution and delivery of
this Master Loan Agreement;
WHEREAS, all things necessary to make this Master Loan Agreement a
valid agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises, the Issuer and the Holder mutually
covenant and agree as follows:
ARTICLE ONE
DEFINITIONS
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SECTION 1.1 Certain Terms Defined. The following terms (except as
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otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Master Loan Agreement and of any supplemental
agreements hereto shall have the respective meanings specified in this Section.
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
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accounting principles as are generally accepted in the United States at the time
of any computation. The words "herein", "hereof" and "hereunder" and other
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words of similar import refer to this Master Loan Agreement as a whole and not
to any particular Article, Section or other subdivision. The terms defined in
this Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at
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the time such Person becomes a Restricted Subsidiary or (ii) assumed in
connection with the acquisition of assets by such Person, in each case, other
than Indebtedness incurred in connection with, or in
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contemplation of, such Person becoming a Restricted Subsidiary or such
acquisition, as the case may be.
"Affiliate" means, with respect to any specified Person: (i) any
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other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person; (ii) any other Person
that owns, directly or indirectly, 50% or more of such specified Person's
Capital Stock or any officer or director of any such specified Person or other
Person; (iii) any other Person 50% or more of the Voting Stock of which is
beneficially owned or held directly or indirectly by such specified Person. For
the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through ownership of voting Notes, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Attributable Debt" means in connection with a Sale and Lease-Back
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Transaction, as of any particular time, the aggregate of present values
(discounted at a rate per annum equal to the average interest borne by all
Outstanding Notes (or, if set forth in a resolution of the Board of Directors or
a supplemental Master Loan Agreement pursuant to Section 2.4 with respect to one
or more series, the Outstanding Notes of such series) determined on a weighted
average basis and compounded semi-annually) of the obligations of the Issuer or
any Restricted Subsidiary for net rental payments during the remaining term of
the applicable lease (including any period for which such lease has been
extended or may, at the option of the lessor, be extended). The term "net
rental payments" under any lease of any period shall mean the sum of the rental
and other payments required to be paid in such period by the lessee thereunder,
not including, however, any amounts required to be paid by such lessee (whether
or not designated as rental or additional rental) on account of maintenance and
repairs, reconstruction, insurance, taxes, assessments, water rates or similar
charges required to be paid by such lessee thereunder or any amounts required to
be paid by such lessee thereunder contingent upon the amount of sales,
maintenance and repairs, reconstruction, insurance, taxes, assessments, water
rates or similar charges.
"Board of Directors" means the Board of Directors of the Issuer.
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"Business Day" means, with respect to any Note, a day that in The City
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of New York and (if different) the city in which amounts are payable, as
specified in the form of such Note, is not a day on which banking institutions
are authorized by law or regulation to close.
"Capital Stock" of any Person means any and all shares, interests,
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participations, rights in or other equivalents (however designated) of such
Person's capital stock, other equity interests whether now outstanding or issued
after the date of this Master Loan Agreement, partnership interests (whether
general or limited), any other interest or participation that confers on a
Person that right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person and any rights (other than debt
securities convertible into Capital Stock), warrants or options exchangeable for
or convertible into such Capital Stock.
"Commission" means the Securities and Exchange Commission, as from
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time to time constituted, created under the Securities Exchange Act of 1934.
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"Consolidated Net Worth" means, at any date, the total assets less the
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total liabilities, in each case appearing on the most recently prepared
consolidated balance sheet of the Issuer and its subsidiaries as of the end of a
fiscal quarter of the Issuer, prepared in accordance with generally accepted
accounting principles as in effect on the date of calculation.
"Consolidated Tangible Assets" means, at any date, the total assets
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less all intangible assets appearing on the most recently prepared consolidated
balance sheet of the Issuer and its subsidiaries as of the end of the day of
issue or end of a subsequent fiscal quarter of the Issuer, prepared in
accordance with generally accepted accounting principles as in effect on the
date of calculation. "Intangible Assets" means the amount (if any) which would
be stated under the heading "Costs in Excess of Net Assets of Acquired
Companies" or under any other heading relating to intangible assets separately
listed, in each case on the face of the aforesaid consolidated balance sheet.
"Drawdown Period" means the thirty (30) day period commencing on the
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date hereof.
"Event of Default" means any event or condition specified as such in
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Section 4.1.
"Funded Indebtedness" means any Indebtedness maturing by its terms
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more than one year from the date of the determination thereof, including any
Indebtedness renewable or extendible at the option of the obligor to a date
later than one year from the date of the determination thereof.
"Holder" means the Person identified as "Holder" in the first
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paragraph hereof and any one or more successor Holders of any Note.
"Indebtedness" means, without duplication, the maximum amount of lines
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of committed credit available and the principal or face amount of (i) all
obligations for borrowed money, (ii) all obligations evidenced by debentures,
notes or other similar instruments, (iii) all obligations in respect of letters
of credit or bankers acceptances or similar instruments (or reimbursement
obligations with respect thereto), (iv) all obligations to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, (v) all obligations as lessee which are
capitalized in accordance with generally accepted accounting principles, (vi)
financings secured by accounts receivables, and (vii) all Indebtedness of others
guaranteed by the Issuer or any of its subsidiaries or for which the Issuer or
any of its subsidiaries is legally responsible or liable (whether by agreement
to purchase indebtedness of, or to supply funds or to invest in, others).
"Interest" means interest payable under a Note.
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"Interest Payment Date" means the date or dates specified in the Note
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on which Interest is payable by the issuer.
"Issuer" means the Person identified as "Issuer" in the first
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paragraph hereof and, subject to Article Six, its successors and assigns.
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"Issue Date" means the date specified in the Officers' Certificate
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pursuant to Section 2.1.
"Master Loan Agreement" means this instrument as originally executed
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and delivered or, if amended or supplemented as herein provided, as so amended
or supplemented or both, and shall include the forms and terms of particular
series of Notes established as contemplated hereunder.
"Note" or "Notes" has the meaning stated in the first recital of this
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Master Loan Agreement, or, as the case may be, Notes that have been delivered
under this Master Loan Agreement.
"Non-Recourse Indebtedness" means Indebtedness upon the enforcement of
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which recourse may be had by the holder(s) thereof only to identified assets of
the Issuer or any Subsidiary and not to the Issuer or any Subsidiary personally.
"Officers' Certificate" means a certificate signed by the chairman or
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any vice chairman of the Board of Directors or the president or any vice
president or the treasurer and either another of the preceding directors or
officers or any assistant treasurer or the secretary or any assistant secretary
of the Issuer, and delivered to the Holder. Each such certificate shall include
the statements provided for in Section 12.5.
"Outstanding", when used with reference to Notes shall mean, as of any
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particular time, all Notes delivered by the Issuer under this Master Loan
Agreement, except
(a) Notes theretofore canceled by the Holder;
(b) Notes, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been set aside, segregated
and held in trust by the Issuer for the Holder, provided that if such
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Notes, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Holder shall have been made for
giving such notice; and
(c) Notes in substitution for which other Notes shall have been
delivered, or which shall have been paid, pursuant to the terms of Section
2.9 (except with respect to any such Note as to which proof satisfactory to
the Holder is presented that such Note is held by a person in whose hands
such Note is a legal, valid and binding obligation of the Issuer).
"Permitted Subsidiary Indebtedness" means any of the following: (i)
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Indebtedness in an aggregate amount, without duplication, not to exceed, as of
the date of determination, Two Hundred Million United States dollars
($200,000,000) (which Indebtedness is exclusive of the Indebtedness described in
clauses (ii) through (viii) hereof), (ii) Indebtedness owed to the Holder,
Issuer or any Subsidiary, (iii) obligations under standby letters of credit,
guarantees or similar arrangements supporting the performance of a Person under
a contract or agreement in the ordinary course of business, (iv) obligations as
lessee in the ordinary course of
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business which are capitalized in accordance with United States generally
accepted accounting principles, (v) Indebtedness that was Permitted Subsidiary
Indebtedness at the time that it was first incurred, (vi) Acquired Indebtedness
that by its terms is not callable or redeemable prior to its stated maturity and
that remains outstanding following such time as the Subsidiary obligated under
such Acquired Indebtedness in good faith has made or caused to be made an offer
to acquire all such Indebtedness, including, without limitation, an offer to
exchange such Indebtedness for Notes of the Issuer, on terms which, in the
opinion of an independent investment banking firm of national reputation and
standing, are consistent with market practices in existence at the time for
offers of a similar nature, provided that the initial expiration date of any
such offer shall not be later than the expiration of the time period set forth
in Section 3.7, (vii) Indebtedness equal to seventy five percent (75%) of
Acquired Indebtedness, notwithstanding clause (vi), (viii) any renewals,
extensions, substitutions, refundings, refinancings or replacements
(collectively, a "refinancing") of any Indebtedness referred to in clause (vii)
of this definition of "Permitted Subsidiary Indebtedness" of a Subsidiary,
including any successive refinancings so long as the borrower under such
refinancing is such a Subsidiary and the aggregate principal amount of
Indebtedness represented thereby (or if such Indebtedness provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof, the original issue price of such
Indebtedness plus any accreted value attributable thereto since the original
issuance of such Indebtedness) is not increased by such refinancing plus the
lesser of (A) the stated amount of any premium or other payment required to be
paid in connection with such a refinancing pursuant to the terms of the
Indebtedness being refinanced or (B) the amount of premium or other payment
actually paid at such time to refinance the Indebtedness, plus, in either case,
the amount of expenses of such Subsidiary incurred in connection with such
refinancing.
"Person" means any individual, corporation, partnership, limited
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liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal" whenever used with reference to the Notes or any Note or
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any portion thereof, shall be deemed to include "and premium, if any".
"Principal Property" means any manufacturing, processing or assembly
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plant or facility or any warehouse or distribution facility which is used by any
Subsidiary after the date hereof, other than any such plants, facilities,
warehouses or portions thereof, which in the opinion of the Board of Directors
of the Issuer, are not collectively of material importance to the total business
conducted by the Issuer and its Restricted Subsidiaries as an entirety, or
which, in each case, has a book value, on the date of the acquisition or
completion of the initial construction thereof by the Issuer, of less than 1.5%
of Consolidated Tangible Assets.
"Responsible Officer" when used with respect to the Holder means any
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vice president, the treasurer, the general manager, any managing director, any
assistant vice president, any assistant treasurer, or any other officer or
assistant officer of the Holder customarily performing functions similar to
those performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
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"Restricted Subsidiary" means any Subsidiary which owns or leases a
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Principal Property.
"Sale and Lease-Back Transaction" means an arrangement with any Person
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providing for the leasing by the Issuer or a Restricted Subsidiary of any
Principal Property whereby such Principal Property has been or is to be sold or
transferred by the Issuer or a Restricted Subsidiary to such Person; provided,
however, that the foregoing shall not apply to any such arrangement involving a
lease for a term, including renewal rights, for not more than three years.
"Subsidiary" means any Person of which at least a majority of the
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outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Issuer or by one or more Subsidiaries or by the Issuer and one
or more Subsidiaries.
"Term" means the period of time between the issue date and the
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maturity date of a Note or a series of Notes, which period shall be mutually
agreed upon by the Issuer and Holder and specified on the Note, provided in no
event shall such period be less than 1 year or more than 20 years.
"Vice President" when used with respect to the Issuer or the Holder,
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means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
"Voting Stock" of a Person means Capital Stock of such Person of the
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class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or Holders of such Person (irrespective of whether or not at
the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
ARTICLE TWO
NOTES
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SECTION 2.1 Issue Procedures Generally. On or prior to the Issue
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Date of a Note or Notes of a series, the Issuer shall deliver to the Holder an
Officers' Certificate stating the terms and conditions of the Note or Notes of a
series to be issued as described in Section 2.4.
SECTION 2.2 Delivery of Notes. On the Issue Date, the Issuer shall
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deliver the applicable duly completed and executed Note or Notes of a series to
the Holder.
SECTION 2.3 Note Principal Limit; Series. The aggregate principal
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amount of Notes which may be delivered under this Master Loan Agreement is
limited to Five Hundred Million United States dollars ($500,000,000), or its
equivalent in any other currency as determined on the respective Issue Dates of
any Notes not denominated in United States dollars. The Notes may be issued in
one or more series.
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SECTION 2.4 Terms and Conditions of Notes. There shall be established
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by a resolution of the Board of Directors, or established in one or more Master
Loan Agreements supplemental hereto, and set forth in the Officers' Certificate
of the Issuer delivered to the Holder on or prior to the Issue Date and on the
face of the Note or Notes:
(1) the title or designation of the Note or Notes of the series
(which shall distinguish the Note or Notes of the series from all other
Notes);
(2) the aggregate principal amount of the Note or Notes of the series
to be delivered under the series, subject to the overall facility limit
specified in Section 2.3, and except for Notes delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Notes of the
series pursuant to Section 2.9 or Section 11.3;
(3) the Term of the Note or Notes of the series and the date or dates
on which the principal of such Note or Notes of the series is repayable;
(4) the rate or rates at which the Note or Notes of the series shall
bear interest, or the method by which such rate shall be determined, the
date or dates from which such interest shall accrue, and the Interest
Payment Dates on which Interest shall be payable;
(5) the place or places where the principal of and any Interest on
the Note or Notes of the series shall be payable (if other than as provided
in Section 3.2);
(6) the priority of the Note or Notes of the series and whether the
Notes of the series are to be subordinated with respect to the repayment of
principal and/or the payment of Interest to any other Notes or series of
Notes issued under this Master Loan Agreement;
(7) if not United States dollars, the currency in which the principal
amount of the Note or Notes of the series is stated and the currency in
which repayment of principal and payment of Interest shall be made by the
Issuer; and
(8) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Master Loan Agreement).
All Notes of any one series shall be substantially identical except as
to principal amount and except as may otherwise be provided in or pursuant to
such resolution of the Board of Directors, or in any such Master Loan Agreement
supplemental hereto, and as stated in the Officers' Certificate.
SECTION 2.5 Form of Note; Registered. The Notes of each series shall
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be substantially in the form of the Note attached as Exhibit A hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Master Loan Agreement and
applicable Officers' Certificate, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Master Loan Agreement, as may be required to comply with any laws or with any
rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to
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general usage, all as may be determined by the officers executing such Notes, as
evidenced by their execution of the Notes.
All Notes issued hereunder shall be in registered form and shall be
transferable by the Holders only in accordance with the procedures set forth in
Article Seven.
SECTION 2.6 Execution of Notes. The Notes shall be signed on behalf
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of the Issuer by the chairman of its Board of Directors or any vice chairman of
its Board of Directors or its president or any vice president or the treasurer
and either another one of the preceding directors and officers or any assistant
treasurer or its secretary or any assistant secretary, which signature may, but
need not, be attested. Any Note may be signed on behalf of the Issuer by such
Persons as, at the actual date of the execution of such Note, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Master Loan Agreement any such Person was not such an officer.
Such signatures may be the manual signatures of the present or any future such
officers. The seal of the Issuer may be impressed, affixed, imprinted or
otherwise reproduced on the Notes. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Note that has been duly delivered
by the Issuer.
SECTION 2.7 Date of Notes; Payments of Interest. The Notes shall be
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numbered, lettered, or otherwise distinguished in such manner or in accordance
with such plan as the officers of the Issuer executing the same may determine
with the approval of the Holder as evidenced by the execution thereof.
Each Note shall be dated the date of the Issue Date, shall bear
interest from the Issue Date and shall be payable on the dates, in each case,
which shall be specified as contemplated by Section 2.4.
SECTION 2.8 Documents Required. On or prior to the Issue Date with
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respect to a Note or Notes of any series, the Issuer shall provide to the Holder
the following:
(a) a copy of any resolution or resolutions of the Board of Directors
of the Issuer relating to the issuance of such Note or series of Notes, in
each case certified by a director or by the secretary or any assistant
secretary of the Issuer; and
(b) an Officers' Certificate of the Issuer setting forth the form and
terms of the Note or Notes as required pursuant to Sections 2.1 and 2.4.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Notes. In
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case any Note shall become mutilated, defaced or be destroyed, lost or stolen,
the Issuer at its discretion may execute and deliver a new Note of the same
series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Note, or in lieu of and substitution
for the Note so destroyed, lost or stolen. In case any Note that has matured or
is about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer at its
discretion may instead of issuing a substitute Note, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
or defaced Note).
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Upon the issuance of any substitute Note, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.
In addition, the Issuer may require as a condition for the issuance of any Note
issued in exchange and substitution for a mutilated or defaced Note, or in lieu
of and substitution for a Note destroyed, lost or stolen, that the Holder
provide such guarantees, certifications and indemnifications as the Issuer may
deem prudent in order to protect the Issuer against multiple claims with respect
to a single Note.
Every substitute Note of any series issued pursuant to the provisions
of this Section by virtue of the fact that any such Note is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Note shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Master Loan
Agreement equally and proportionately with any and all other Notes of such
series duly delivered hereunder. All Notes shall be held and owned upon the
express condition that, to the extent permitted by law, the foregoing provisions
are exclusive with respect to the replacement or payment of mutilated, defaced
or destroyed, lost or stolen Notes and shall preclude any and all other rights
or remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other Notes without their surrender.
SECTION 2.10 Cancellation of Notes; Destruction Thereof. All Notes
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surrendered for payment or redemption shall be canceled by the Issuer; and no
Notes shall be issued in lieu thereof except as expressly permitted by any of
the provisions of this Master Loan Agreement.
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ARTICLE THREE
COVENANTS OF THE ISSUER
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SECTION 3.1 Payment of Principal and Interest. The Issuer covenants
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and agrees for the benefit of each Note and each series of Notes that it will
duly and punctually pay or cause to be paid the principal of, and Interest on,
each Note and each of the Notes of a series at the place or places, at the
respective times and in the manner provided in such Note or Notes. The repayment
of the principal amount of any Note and each payment of Interest on any Note
shall be paid by wire transfer of same day funds to the bank accounts or
accounts advised from time to time by the Holder in accordance with Section 12.4
or, at the election of the Holder, by mailing checks for such amounts to or upon
the written order of the Holder.
SECTION 3.2 Offices for Payments, etc. So long as any of the Notes
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remain outstanding, the Issuer will maintain an office (a) where the Notes may
be presented for payment and (b) where notices and demands to or upon the Issuer
in respect of the Notes or of this Master Loan Agreement may be served. The
Issuer will give to the Holder written notice of the location of any such office
or agency and of any change of location thereof. Unless otherwise specified in
accordance with Section 2.4, the Issuer hereby initially designates its office
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. In case the Issuer shall
fail to so designate or maintain such office or shall fail to give such notice
of the location or of any change in the location thereof, presentations and
demands may be made and notices may be served at any corporate office of the
Issuer.
SECTION 3.3 Certificate of the Issuer. So long as any of the Notes
-------------------------
remain outstanding, the Issuer will furnish to the Holder on or before March 31
in each year (beginning with 2001) a certificate (which need not comply with
Section 12.5) executed by a principal executive, financial or accounting officer
of the Issuer, as to his or her knowledge of the Issuer's compliance with all
covenants and agreements under the Master Loan Agreement required to be complied
with by the Issuer (such compliance to be determined without regard to any
period of grace or requirement of notice provided under the Master Loan
Agreement). Such certificate need not include a reference to any non-compliance
that has been fully cured prior to the date as of which such certificate speaks.
SECTION 3.4 Limitation on Indebtedness of Subsidiaries. The Issuer
------------------------------------------
will not cause or permit any Subsidiary, directly or indirectly, to create,
incur, assume, guarantee or otherwise in any manner become liable for the
payment of or otherwise incur (collectively, "incur"), any Indebtedness
(including any Acquired Indebtedness but excluding any Permitted Subsidiary
Indebtedness). For purposes of this Section, any Acquired Indebtedness shall
not be deemed to have been incurred until 180 days from the date (a) the Person
obligated on such Acquired Indebtedness becomes a Subsidiary or (b) the
acquisition of assets in connection with which such Acquired Indebtedness was
assumed is consummated.
-10-
SECTION 3.5 Limitations on Liens. After the date hereof and so long
--------------------
as any Notes are Outstanding, the Issuer will not, and will not permit any
Restricted Subsidiary to, issue, assume or guarantee any Indebtedness which is
secured by a mortgage, pledge, security interest, lien or encumbrance (each a
"lien") upon any Principal Property, or any shares of stock of or Indebtedness
issued by any Restricted Subsidiary, whether now owned or hereafter acquired,
without effectively providing that, for so long as such lien shall continue in
existence with respect to such secured Indebtedness, the Notes (together with,
if the Issuer shall so determine, any other Indebtedness of the Issuer ranking
equally with the Notes, it being understood that for purposes hereof,
Indebtedness which is secured by a lien and Indebtedness which is not so secured
shall not, solely by reason of such lien, be deemed to be of different ranking)
shall be equally and ratably secured by a lien ranking ratably with or equal to
(or at the Issuer's option prior to) such secured Indebtedness; provided,
however, that the foregoing covenant shall not apply to:
(a) liens existing on the date the Note or Notes of the subject series
are issued;
(b) liens on the stock, assets or Indebtedness of a Person existing at
the same time such Person becomes a Restricted Subsidiary unless created in
contemplation of such Restricted Subsidiary becoming such;
(c) liens on any assets or Indebtedness of a Person existing at the
time such Person is merged into the Issuer or a Restricted Subsidiary or at the
time of a purchase, lease or other acquisition of the assets of a corporation or
firm as an entirety or substantially as an entirety by the Issuer or any
Restricted Subsidiary;
(d) liens on any Principal Property existing at the time of
acquisition thereof by the Issuer or any Restricted Subsidiary, or liens to
secure the payment of the purchase price of such Principal Property by the
Issuer or any Restricted Subsidiary, or to secure any Indebtedness incurred,
assumed or guaranteed by the Issuer or a Restricted Subsidiary for the purpose
of financing all or any part of the purchase price of such Principal Property or
improvements or construction thereon, which Indebtedness is incurred, assumed or
guaranteed prior to, at the time of, or within one year after such acquisition
(or in the case of real property, completion of such improvement or construction
or commencement of full operation of such property, whichever is later);
provided, however, that in the case of any such acquisition, construction or
improvement, the lien shall not apply to any Principal Property theretofore
owned by the Issuer or a Restricted Subsidiary, other than the Principal
Property so acquired, constructed or improved;
(e) liens securing Indebtedness owing by any Restricted Subsidiary to
the Issuer;
(f) liens in favor of the United States or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or other
payments pursuant to any contract, statute, rule or regulation or to secure any
Indebtedness incurred or guaranteed for the purpose of financing all or any part
of the purchase price (or, in the case of real property, the cost of
construction or improvement) of the
-11-
Principal Property subject to such liens (including but not limited to, liens
incurred in connection with pollution control, industrial revenue or similar
financings);
(g) pledges, liens or deposits under worker's compensation or similar
legislation, and liens thereunder which are not currently dischargeable, or in
connection with bids, tenders, contracts (other than for the payment of money)
or leases to which the Issuer or any Restricted Subsidiary is a party, or to
secure the public or statutory obligations of the Issuer or any Restricted
Subsidiary, or in connection with obtaining or maintaining self-insurance, or to
obtain the benefits of any law, regulation or arrangement pertaining to
unemployment insurance, old age pensions, social security or similar matters, or
to secure surety, performance, appeal or customs bonds to which the Issuer or
any Restricted Subsidiary is a party, or in litigation or other proceedings in
connection with the matters heretofore referred to in this clause, such as, but
not limited to, interpleader proceedings, and other similar pledges, liens or
deposits made or incurred in the ordinary course of business;
(h) liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate proceedings,
including liens arising out of judgments or awards against the Issuer or any
Restricted Subsidiary with respect to which the Issuer or such Restricted
Subsidiary is in good faith prosecuting an appeal or proceedings for review or
for which the time to make an appeal has not yet expired; or final unappealable
judgment liens which are satisfied within 15 days of the date of judgment; or
liens incurred by the Issuer or any Restricted Subsidiary for the purpose of
obtaining a stay or discharge in the course of any litigation or other
proceeding to which the Issuer or such Restricted Subsidiary is a party;
(i) liens for taxes or assessments or governmental charges or levies
not yet due or delinquent; or which can thereafter be paid without penalty, or
which are being contested in good faith by appropriate proceedings; landlord's
liens on property held under lease; and any other liens or charges incidental to
the conduct of the business of the Issuer or any Restricted Subsidiary, or the
ownership of their respective assets, which were not incurred in connection with
the borrowing of money or the obtaining of advances or credit and which do not,
in the opinion of the Board of Directors of the Issuer, materially impair the
use of such assets in the operation of the business of the Issuer or such
Restricted Subsidiary or the value of such Principal Property for the purposes
of such business;
(j) liens to secure the Issuer's or any Restricted Subsidiary's
obligations under agreements with respect to spot, forward, future and option
transactions, entered into in the ordinary course of business;
(k) liens not permitted by the foregoing clauses (a) to (j),
inclusive, if at the time of, and after giving effect to, the creation or
assumption of any such lien, the aggregate amount of all outstanding
Indebtedness of the Issuer and its Restricted Subsidiaries (without duplication)
secured by all such liens not so permitted by the foregoing clauses (a) through
(j), inclusive, together with the Attributable Debt in respect of Sale and
Lease-Back Transactions permitted by paragraph (a) under Section 3.6 do not
exceed $200,000,000; and
-12-
(l) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part, of any lien referred to in the
foregoing clauses (a) to (k), inclusive; provided, however, that the principal
amount of Indebtedness secured thereby unless otherwise excepted under clauses
(a) through (k) shall not exceed the principal amount of Indebtedness so secured
at the time of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the assets (or any
replacements therefor) which secured the lien so extended, renewed or replaced
(plus improvements and construction on real property).
SECTION 3.6 Limitation on Sale and Lease-Back Transactions. The
----------------------------------------------
Issuer will not, and will not permit any Restricted Subsidiary to, enter into
any Sale and Lease-Back Transaction unless:
(a) the Issuer or such Restricted Subsidiary would, at the time of
entering into a Sale and Lease-Back Transaction, be entitled to incur
Indebtedness secured by a lien on the Principal Property to be leased in an
amount at least equal to the Attributable Debt in respect of such Sale and
Lease-Back Transaction, without equally and ratably securing the Notes pursuant
to Section 3.5; or
(b) the direct or indirect proceeds of the sale of the Principal
Property to be leased are at least equal to the fair value of such Principal
Property (as determined by the Issuer's Board of Directors) and an amount equal
to the net proceeds from the sale of the property or assets so leased are
applied, within 180 days of the effective date of any such Sale and Lease-Back
Transaction, to the purchase or acquisition (or, in the case of real property,
commencement of the construction) of property or assets or to the retirement
(other than at maturity pursuant to mandatory redemption provision) of Notes, or
of Funded Indebtedness of the Issuer or a consolidated Subsidiary ranking on a
parity with or senior to the Notes; provided that there shall be credited to the
amount of net worth proceeds required to be applied pursuant to this clause (b)
an amount equal to the sum of (i) the principal amount of Notes delivered within
180 days of the effective date of such Sale and Lease-Back Transaction to the
Holder for retirement and cancellation and (ii) the principal amount of other
Funded Indebtedness voluntarily retired by the Issuer within such 180-day
period, excluding retirements of Notes and other Funded Indebtedness as a result
of conversions or pursuant to mandatory sinking fund or mandatory prepayment
provisions.
SECTION 3.7 Notice to Holder. The Issuer shall provide written
----------------
notice to the Holder within 30 days of the occurrence of any Event of Default
under Section 4.1.
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ARTICLE FOUR
EVENTS OF DEFAULT;
REMEDIES OF THE HOLDER
----------------------
SECTION 4.1 Event of Default Defined; Acceleration of Maturity;
---------------------------------------------------
Waiver of Default. An "Event of Default" with respect to Notes of any series
-----------------
wherever used herein, means each one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any installment of Interest upon or any
Additional Amounts in respect of any of the Notes as and when the same
shall become due and payable, and continuance of such default for a period
of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Notes as and when the same shall become due and payable either at
maturity, upon redemption, by declaration or otherwise; or
(c) default in the performance, or breach, of any covenant or
agreement of the Issuer in respect of any Notes (other than a covenant or
agreement in respect of a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such
default or breach for a period of 90 days after the date on which there has
been given, by registered or certified mail, to the Issuer by the Holder
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(d) an event of default, as defined in any loan agreement, including
this Master Loan Agreement, indenture or instrument evidencing or under
which the Issuer on the date any determination shall be made under this
clause (d), shall have outstanding at least $20,000,000 aggregate principal
amount of Indebtedness for borrowed money (other than Non-Recourse
Indebtedness), shall happen and be continuing and such event of default
shall involve the failure to pay the principal of or interest on such
Indebtedness (or any part thereof) on the final maturity date thereof after
the expiration of any applicable grace period with respect thereto, or such
Indebtedness shall have been accelerated so that the same shall be or
become due and payable prior to the date on which the same would otherwise
have become due and payable, and such acceleration shall not be rescinded
or annulled within ten Business Days after notice thereof shall have been
given to the Issuer by the Holder (if such event be known to it), provided
that, if such event of default under such loan agreement, indenture or
instrument shall be remedied or cured by the Issuer, or waived by the
Holder of such indebtedness, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of the Holder.
(e) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer, in an involuntary case under
any applicable bankruptcy,
-14-
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer, or for any substantial part of its
property or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or for any substantial part of its
property, or make any general assignment for the benefit of creditors; or
(g) any other Event of Default provided in any supplemental Master
Loan Agreement or resolution of the Board of Directors under which any
Notes are issued or in the form of Note for any such series.
If an Event of Default occurs and is continuing, then and in each and every such
case, unless the principal of all the Notes shall have already become due and
payable, the Holder by notice in writing to the Issuer may declare the entire
principal of all Outstanding Notes and Interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal of all the Notes shall have been so declared
due and payable, and before any judgment or decree for the payment of the moneys
due shall have been obtained or entered as hereinafter provided, the Issuer
shall pay a sum sufficient to pay all matured installments of Interest upon all
the Notes and the principal of any and all Notes which shall have become due
otherwise than by acceleration, with Interest upon such principal and, to the
extent that payment of such Interest is enforceable under applicable law, on
overdue installments of Interest, at the same rate as the rate of interest
specified in the Notes (or at the respective rates of interest to the date of
such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Holder, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Holder except as a result of negligence or bad faith, and if any and all Events
of Default under the Master Loan Agreement, other than the non-payment of the
principal of Notes which shall have become due by acceleration, shall have been
cured, waived or otherwise remedied as provided herein -- then and in every such
case the Holder by written notice to the Issuer may waive all defaults with
respect to all the Notes and rescind and annul such declaration and its
consequences, but no such waiver or recession and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
SECTION 4.2 Collection of Indebtedness by Holder; Holder May Prove
------------------------------------------------------
Debt. The Issuer covenants that (a) in case default shall be made in the
----
payment of any installment of Interest on any Note or Notes of any series when
such Interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any Note or Notes of any series
-15-
when the same shall have become due and payable, whether upon maturity of the
Note or Notes of such series or upon any redemption or by declaration or
otherwise, then upon demand of the Holder, the Issuer will pay to the Holder the
whole amount that then shall have become due and payable on all Notes for
principal or Interest, as the case may be (with Interest to the date of such
payment upon the overdue principal and to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
Interest at the same rate as the rate specified in the Notes).
Until such demand is made by the Holder, the Issuer may pay the
principal of and Interest on a Note or Notes of any series to the Holder,
whether or not the principal of and Interest on a Note or Notes of a series is
overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Holder shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Issuer
upon such Notes and collect in the manner provided by law out of the property of
the Issuer upon such Notes, wherever situated, the moneys adjudged or decreed to
be payable.
In case there shall be pending proceedings relative to the Issuer upon
a Note or Notes of any series under Title 11 of the United States Code or any
other applicable Federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer, its property or in case of any other comparable
judicial proceedings relative to the Issuer upon the Note or Notes of any
series, or to the creditors or property of the Issuer the Holder, irrespective
of whether the principal of any Note or Notes shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Holder shall have made any demand pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such proceedings or
otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and Interest owing and unpaid in respect of a Note or Notes of
any series, and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Holder (including any claim
for agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred) allowed in any judicial proceedings relative to
the Issuer upon a Note or Notes of any series, or to the creditors or
property of the Issuer;
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims.
SECTION 4.3 Suits for Enforcement. In case an Event of Default has
---------------------
occurred, has not been waived and is continuing, the Holder may in its
discretion proceed to protect and enforce the rights vested in it by this Master
Loan Agreement by such appropriate judicial proceedings as the Holder shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Master Loan Agreement or in aid of
the exercise of
-16-
any power granted in this Master Loan Agreement or to enforce any other legal or
equitable right vested in the Holder by this Master Loan Agreement or by law.
SECTION 4.4 Restoration of Rights on Abandonment of Proceedings. In
---------------------------------------------------
case the Holder shall have proceeded to enforce any right under this Master Loan
Agreement and such proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Holder, then and in every
such case the Issuer and the Holder shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of
the Issuer and the Holder shall continue as though no such proceedings had been
taken.
SECTION 4.5 Powers and Remedies Cumulative; Delay or Omission Not
-----------------------------------------------------
Waiver of Default. No right or remedy herein conferred upon or reserved to the
-----------------
Holder is intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Holder to exercise any right or power
accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a waiver of any such
Event of Default or an acquiescence therein; and every power and remedy given by
this Master Loan Agreement or by law to the Holder may be exercised from time to
time, and as often as shall be deemed expedient, by the Holder.
Nothing in this Master Loan Agreement shall impair the right of the
Holder in its discretion to take any action deemed proper by the Holder.
SECTION 4.6 Waiver of Past Defaults. Prior to a declaration of the
-----------------------
acceleration of the maturity of a Note or Notes of any series as provided in
Section 4.1, the Holder may waive any past default or Event of Default described
in clause (c) of Section 4.1 which relates to less than all series of Notes then
Outstanding. Prior to a declaration of acceleration of the maturity of a Note
or Notes of any series as provided in Section 4.1, the Holders may waive any
past default or Event of Default referred to in said clause (c) which relates to
all series of Notes then outstanding, or described in clause (d), (e) or (f) of
Section 4.1. In the case of any such waiver, the Issuer and the Holder of each
series affected shall be restored to their former positions and rights
hereunder, respectively.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Master Loan Agreement; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
-17-
ARTICLE FIVE
SUPPLEMENTAL MASTER LOAN AGREEMENTS
-----------------------------------
SECTION 5.1 Supplemental Master Loan Agreements. The Issuer, when
------------------------------------
authorized by resolutions of its Board of Directors, and the Holder may from
time to time and at any time enter into a Master Loan Agreement supplemental
hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Holder as
security for a Note or Notes of one or more series any property or assets;
(b) to evidence the succession of another corporation as Issuer, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Issuer pursuant to Article
Six;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as its Board of Directors and the
Holder shall consider to be for the protection of the Holder, and to make
the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Master Loan Agreement as herein set forth; provided, that
--------
in respect of any such additional covenant, restriction, condition or
provision such supplemental Master Loan Agreement may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Holder upon such an Event of Default or may limit
the right of the Holder to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental Master Loan Agreement which may be
defective or inconsistent with any other provision contained herein or in
any supplemental Master Loan Agreement; or to make such other provisions in
regard to matters or questions arising under this Master Loan Agreement or
under any supplemental Master Loan Agreement as the Board of Directors of
the Issuer may deem necessary or desirable and which shall not adversely
affect the interests of the Holder in any material respect; and
(e) to establish the form or terms of a Note or Notes of any series as
permitted by Sections 2.1 and 2.4.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors certified by a managing director or the secretary or
an assistant secretary of the Issuer authorizing the execution of any such
supplemental Master Loan Agreement and an officer's certificate, and upon the
consent of the Holder, the Holder shall join with the Issuer in the execution of
such supplemental Master Loan Agreement. Notwithstanding the foregoing,
-18-
nothing in this Section shall obligate the Holder to enter into any such
supplemental Master Loan Agreement.
SECTION 5.2 Effect of Supplemental Master Loan Agreements. Upon the
---------------------------------------------
execution of any supplemental Master Loan Agreement pursuant to the provisions
hereof, this Master Loan Agreement shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Master Loan Agreement of
the Holder and the Issuer shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental Master Loan Agreement shall be
and be deemed to be part of the terms and conditions of this Master Loan
Agreement for any and all purposes.
SECTION 5.3 Notation on Notes in Respect of Supplemental Master Loan
--------------------------------------------------------
Agreements. A Note or Notes of any series issued after the execution of any
----------
supplemental Master Loan Agreement pursuant to the provisions of this Article
may bear a notation in form approved by the Holder for such series as to any
matter provided for by such supplemental Master Loan Agreement or as to any
action taken at any such meeting. If the Issuer or the Holder shall so
determine, a new Note or Notes of any series so modified as to conform, in the
opinion of the Holder and the Board of Directors of the Issuer, to any
modification of this Master Loan Agreement contained in any such supplemental
Master Loan Agreement may be prepared by the Issuer and delivered in exchange
for such Note or Notes then outstanding.
ARTICLE SIX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
------------------------------------------
SECTION 6.1 Issuer May Consolidate, etc., on Certain Terms. The
-----------------------------------------------
Issuer covenants that it will not merge or consolidate with any other Person or
sell or convey all or substantially all of its assets to any Person, unless (a)
the Issuer shall be the continuing entity, or the successor entity or the Person
which acquires by sale or conveyance substantially all the assets of the Issuer
shall expressly assume the due and punctual payment of the principal of and
Interest on all the Notes according to their tenor, and the due and punctual
performance and observance of all of the covenants and agreements of this Master
Loan Agreement to be performed or observed by the Issuer as the case may be, by
supplemental Master Loan Agreement satisfactory to the Holder, executed and
delivered to the Holder by such corporation, and (b) the Issuer or such
successor corporation, as the case may be, shall not, immediately after such
merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or agreement.
SECTION 6.2 Successor Entity Substituted. In case of any such
----------------------------
consolidation, merger, sale or conveyance in which the Issuer is not the
continuing entity, and following such an assumption by the successor entity,
such successor entity shall succeed to and be substituted for the Issuer with
the same effect as if it had been originally named herein.
-19-
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Notes thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance
by way of lease) the Issuer or any successor entity which shall theretofore have
become such in the manner described in this Article shall be discharged from all
obligations and covenants under this Master Loan Agreement and the Notes, and
the Issuer or any such successor entity may be liquidated and dissolved.
SECTION 6.3 Opinion of Counsel to Holder. Upon the request of the
----------------------------
Holder, the Issuer shall obtain an opinion of counsel, who shall be satisfactory
to the Holder, as conclusive evidence that any such consolidation, merger, sale,
lease or conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Master Loan
Agreement.
ARTICLE SEVEN
REGISTERED FORM AND TRANSFERS BY HOLDER
---------------------------------------
SECTION 7.1 Registered Form. Each Note issued by the Issuer shall be
---------------
in registered form as to both principal and Interest with respect to the Note.
SECTION 7.2 Transfer of Notes. Subject to Section 7.3, a transfer of
-----------------
a Note by the Holder shall be effected by the surrender of such Note to the
Issuer and the issuance of a new Note or Notes to the new Holder or Holders.
The Issuer shall execute and deliver a new Note of the same series, with the
same terms and conditions, and bearing a number not contemporaneously
outstanding, in exchange and substitution for the transferred Note. For all
purposes of this Master Loan Agreement, the new Holder of a new Note issued
pursuant to the provisions of this Section shall succeed to and be substituted
for the transferring Holder with respect to such Note with the same effect as if
it had been originally named herein as the "Holder" of such Note.
SECTION 7.3 Obligation to Issue New Note. The Issuer shall be
----------------------------
obligated to issue new Notes in accordance with the terms of Section 7.2
provided (a) the transferring Holder and/or the new Holder pay to the Issuer a
sufficient amount to cover any tax or any other governmental charge that may be
imposed as a result of such transfer and issuance and (b) such transfer does not
impose an obligation on the Issuer to pay Additional Amounts in accordance with
Article Ten which the Issuer would not otherwise have been obligated to pay if
such Note or Notes had been retained by the Holder.
SECTION 7.4 Payments Under Notes. The Issuer shall pay all
--------------------
principal and Interest under a Note or a series of Notes only to the Person in
whose name the Note or Notes have been issued hereunder. Payments of principal
and Interest to such Person will relieve the Issuer of any and all legal
obligations (whether expressed or implied) with respect to such payments under
this Master Loan Agreement, regardless of whether such Person has transferred
-20-
or assigned, or has attempted to transfer or assign, such Note or Notes other
than in accordance with this Article Seven, with or without notice to the
Issuer.
ARTICLE EIGHT
PRIORITY OF NOTES
-----------------
All Notes issued under this Master Loan Agreement (except as otherwise
provided in Sections 3.5 and 5.1(a)) shall rank pari passu with all other
unsecured Indebtedness of the Issuer whether outstanding as of the date hereof
or incurred subsequent to the date hereof. Notwithstanding the foregoing, if so
provided in the Officers' Certificate and described in the applicable Note or
series of Notes (the "Subordinated Note or Notes"), the Holder's right to
repayment of principal of and to payment of Interest on a Subordinated Note or
Notes shall be subordinated to the right of repayment of principal of and/or of
payment of Interest on any other Note or series of Notes issued hereunder as may
be designated in such Subordinated Note or Notes.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF MASTER LOAN AGREEMENT
---------------------------------------------------
If at any time (a) the Issuer shall have paid or caused to be paid the
principal of and Interest on a Note or on all the Notes of any series
outstanding hereunder (other than a Note or any Notes of such series which have
been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.9) as and when the same shall have become due and payable, or (b)
the Issuer shall have canceled a Note or all Notes of any series (other than a
Note or any Notes of such series which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section 2.9), then
this Master Loan Agreement shall cease to be of further effect with respect to
such Note or Notes (except as to the rights, obligations and immunities of the
Holder hereunder), and the Holder, on demand of the Issuer accompanied by an
Officers' Certificate and at the cost and expense of the Issuer, shall execute
proper instruments acknowledging such satisfaction of and discharging this
Master Loan Agreement with respect to such Note or series of Notes.
ARTICLE TEN
ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS
------------------------------------------
SECTION 10.1 Redemption Upon Changes in Withholding Taxes. The Notes
--------------------------------------------
of any series may be redeemed, as a whole but not in part, at the election of
the Issuer, upon not less than 30 nor more than 60 days notice (which notice
shall be irrevocable), at a redemption price equal to 100% of the principal
amount thereof, together with accrued interest, if any, to the redemption date
and Additional Amounts (as defined in Section 10.2), if any, if as a result of
any amendment to, or change in, the laws or regulations of the United States or
any political subdivision or taxing authority thereof or therein having power to
tax (a "Taxing Authority"), or
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any change in the application or official interpretation of such laws or
regulations which amendment or change becomes effective after the date the Notes
of such series are issued, or the entry into, amendment or change to an income
tax treaty between the United States and the jurisdiction of residence of the
Holder which entry, amendment or change has become or will become effective
after the date the Notes of such series are issued, the Issuer has become or
will become obligated to pay Additional Amounts, on the next date on which any
amount would be payable with respect to the Notes of such series, and such
obligation cannot be avoided by the use of reasonable measures available to the
Issuer; provided, however, that (a) no such notice of redemption may be given
earlier than 60 days prior to the earliest date on which the Issuer would be
obligated to pay such Additional Amounts, and (b) at the time such notice of
redemption is given, such obligation to pay such Additional Amounts remains in
effect. Prior to the giving of any notice of redemption described in this
paragraph, the Issuer shall deliver to the Holder (i) an Officers' Certificate
of the Issuer stating that the obligation to pay Additional Amounts cannot be
avoided by the Issuer taking reasonable measures available to it and (ii) a
written opinion of independent legal counsel to the Issuer of recognized
standing to the effect that the Issuer has or will become obligated to pay
Additional Amounts as a result of a change, amendment, official interpretation
or application described above and that the Issuer cannot avoid the payment of
such Additional Amounts by taking reasonable measures available to it.
SECTION 10.2 Payment of Additional Amounts. All payments made by the
-----------------------------
Issuer under or with respect to a Note or Notes will be made free and clear of
and without withholding or deduction for or on account of any present or future
taxes, duties, levies, imposts, assessments or governmental charges of whatever
nature imposed or levied by or on behalf of any Taxing Authority ("Taxes"),
unless the Issuer is required to withhold or deduct Taxes by law or by the
interpretation or administration thereof. In the event that the Issuer is
required to so withhold or deduct any amount for or on account of any Taxes from
any payment made under or with respect to a Note or Notes, the Issuer will pay
such additional amounts ("Additional Amounts") as may be necessary so that the
net amount received by the Holder (including Additional Amounts) after such
withholding or deduction will equal the amount that the Holder would have
received if such Taxes had not been required to be withheld or deducted;
provided that no Additional Amounts will be payable with respect to a payment
made the Holder to the extent:
(a) that any such Taxes would not have been so imposed but for the
existence of any present or former connection between the Holder and the
Taxing Authority imposing such Taxes (other than the mere receipt of such
payment, acquisition, ownership or disposition of such Note or Notes or the
exercise or enforcement of rights under such Note or Notes or this Master
Loan Agreement);
(b) of any estate, inheritance, gift, sales, transfer, or personal
property Tax imposed with respect to such Notes, except as otherwise
provided herein;
(c) that any such Taxes would not have been so imposed but for the
presentation of such Notes (where presentation is required) for payment on
a date more than 30 days after the date on which such payment became due
and payable or the date on which payment thereof is duly provided for,
whichever is later, except to the extent that the
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Holder thereof would have been entitled to Additional Amounts had the Notes
been presented for payment on any date during such 30-day period; or
(d) that the Holder would not be liable or subject to such
withholding or deduction of Taxes but for the failure to make a valid
declaration of non-residence or other similar claim for exemption, if (x)
the making of such declaration or claim is required or imposed by statute,
treaty, regulation, ruling or administrative practice of the relevant
Taxing Authority as a precondition to an exemption from, or reduction in,
the relevant Taxes, and (y) at least 60 days prior to the first payment
date with respect to which this clause (d) shall apply, the Issuer shall
have notified the Holder in writing that the Holder shall be required to
provide such declaration or claim.
The Issuer will also (i) make such withholding or deduction of Taxes and
(ii) remit the full amount of Taxes so deducted or withheld to the relevant
Taxing Authority in accordance with all applicable laws. The Issuer will use
its reasonable best efforts to obtain certified copies of tax receipts
evidencing the payment of any Taxes so deducted or withheld from each Taxing
Authority imposing such Taxes. The Issuer will, upon request, make available to
the Holder, within 60 days after the date the payment of any Taxes so deducted
or withheld is due pursuant to applicable law, certified copies of tax receipts
evidencing such payment by the Issuer, or if, notwithstanding the Issuer's
efforts to obtain such receipts, the same are not obtainable, other evidence of
such payments by the Issuer.
At least 30 days prior to each date on which any payment under or with
respect to the Notes is due and payable, if the Issuer will be obligated to pay
Additional Amounts with respect to such payment, the Issuer will deliver to the
Holder an Officers' Certificate stating the fact that such Additional Amounts
will be payable and the amounts so payable.
The foregoing provisions shall survive any termination of the discharge of
this Master Loan Agreement and shall apply mutatis mutandis to any jurisdiction
in which any successor Person to the Issuer is organized or is engaged in
business for tax purposes or any political subdivisions or taxing authority or
agency thereof or therein.
In addition, the Issuer will pay any stamp, issue, registration,
documentary or other similar taxes and duties, including interest, penalties and
Additional Amounts with respect thereto, payable in the United States or any
political subdivision or taxing authority of or in the foregoing in respect of
the creation, issue, offering, enforcement, redemption or retirement of any
Note.
Whenever in this Master Loan Agreement or the Notes there is mentioned, in
any context, the payment of principal, redemption price, interest or any other
amount payable under or with respect to any Note, such mention shall be deemed
to include mention of the payment of Additional Amounts to the extent that, in
such context, Additional Amounts are, were or would be payable in respect
thereof.
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ARTICLE ELEVEN
REDEMPTION OF NOTES
-------------------
SECTION 11.1 Applicability of Article. The provisions of this
------------------------
Article Eleven shall be applicable to any redemption pursuant to Section 10.1
and to the Note or Notes of any series which are redeemable before their
maturity.
SECTION 11.2 Notice of Redemption; Partial Redemptions. Notice of
-----------------------------------------
redemption to the Holder of Notes of a series to be redeemed as a whole or in
part at the option of the Issuer shall be given by the Issuer by mailing notice
of such redemption by first class mail, postage prepaid, at least 30 days and
not more than 60 days prior to the date fixed for redemption to the Holder. Any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the notice.
Failure to give notice by mail, or any defect in the notice to the Holder of a
series of Notes designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Note of such
series.
The notice of redemption to the Holder shall specify the principal
amount of each Note of such series held by the Holder to be redeemed, the date
fixed for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Notes, that
interest accrued to the date fixed for redemption will be paid as specified in
such notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any Note of a series is to
be redeemed in part only the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Note, a new Note or Notes of
such series in principal amount equal to the unredeemed portion thereof will be
issued. Notes may be redeemed in part in multiples equal to the minimum
authorized denomination for Notes of such series or any multiple thereof.
For all purposes of this Master Loan Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Notes of any
series shall relate, in the case of any Note redeemed or to be redeemed only in
part, to the portion of the principal amount of such Note which has been or is
to be redeemed.
SECTION 11.3 Payment of Notes Called for Redemption. If notice of
--------------------------------------
redemption has been given as above provided, the Note, Notes or portions of
Notes specified in such notice shall become due and payable on the date and at
the place stated in such notice at the applicable redemption price, together
with Interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Notes at the
redemption price, together with interest accrued to said date) Interest on the
Notes or portions of Notes so called for redemption shall cease to accrue and
such Notes shall cease from and after the date fixed for redemption to be
entitled to any benefit or security under this Master Loan Agreement, and the
Holder shall have no right in respect of such Notes except the right to receive
the redemption price thereof and unpaid Interest to the date fixed for
redemption. On presentation and surrender of such Notes at a place of payment
specified in said notice, said Notes or the specified portions thereof shall be
paid and redeemed by the Issuer at the applicable redemption
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price, together with Interest accrued thereon to the date fixed for redemption
in accordance with the payment procedures for the repayment of principal and
payment of Interest on Notes of a series as set forth in Section 3.1.
For all purposes of this Article Eleven, the redemption price for any
redemption pursuant to Section 10.1 shall be an amount equal to the principal
amount of the Note or Notes to be redeemed. For any other redemption, the
redemption price of a Note or Notes to be redeemed shall be an amount equal to
the principal amount of the Note or Notes to be redeemed, unless a higher amount
is specified in such Note or Notes.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest borne
by the Note.
Upon presentation of any Note redeemed in part only, the Issuer shall
execute and deliver to or on the order of the Holder at the expense of the
Issuer, a new Note or Notes of such series, of authorized denominations, in a
principal amount equal to the unredeemed portion of the Note so presented.
SECTION 11.4 Funding Loss. In addition to the redemption price, the
------------
Issuer shall pay to the Holder on the date fixed for redemption an amount equal
to the funding loss incurred or to be incurred by the Holder with respect to the
Note or Notes to be redeemed. The "funding loss" means the incremental funding
and/or reinvestment cost incurred or to be incurred by the Holder as a result of
the prepayment of the principal amount of the Note or Notes to be redeemed in
accordance with this Article Eleven, but not including any opportunity loss or
cost deemed to have been incurred as a result of such redemption. Unless
otherwise established by the Holder, the "incremental funding cost" for a Note
or Notes denominated in United States dollars means (a) the excess of the
interest rate as of the Issue Date for an applicable United States Treasury
▇▇▇▇, note or bond with a term to maturity comparable to the original Term of
the Note or Notes to be redeemed over the interest rate as of the date of
calculation for an applicable United States Treasury ▇▇▇▇, note or bond with a
term to maturity comparable to the remaining portion of the Term of the Note or
Notes to be redeemed multiplied by (b) the number of days in the remaining
portion of the Term of the Note or Notes to be redeemed divided by 360 days
multiplied by (c) the principal amount of the Note or Notes to be redeemed.
The Holder shall determine the amount of its funding loss attributable
to a Note or Notes to be redeemed in good faith not more than five Business Days
prior to the date fixed for redemption of such Note or Notes, and shall advise
the Issuer in writing of the amount of the Holder's funding loss no less than
three Business Days prior to the date fixed for redemption of such Note or
Notes. The good faith determination of the amount of the funding loss by the
Holder shall be binding on the Issuer absent manifest error.
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ARTICLE TWELVE
MISCELLANEOUS PROVISIONS
------------------------
SECTION 12.1 Incorporators, Shareholders, Officers and Directors of
------------------------------------------------------
Issuer Exempt from Individual Liability. No recourse under or upon any
---------------------------------------
obligation, covenant or agreement contained in this Master Loan Agreement, or in
any Note, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future shareholder,
officer or director, as such, of the Issuer, either directly or through the
Issuer, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Notes by the Holder and as part of the consideration for, and
as a condition of, the issue of the Notes.
SECTION 12.2 Provisions of Master Loan Agreement for the Sole Benefit
--------------------------------------------------------
of Parties. Nothing in this Master Loan Agreement or in the Notes, expressed or
----------
implied, shall give or be construed to give to any person, firm or corporation,
other than the parties hereto and their successors and any legal or equitable
right, remedy or claim under this Master Loan Agreement or under any covenant or
provision herein contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors.
SECTION 12.3 Successors and Assigns of Issuer Bound by Master Loan
-----------------------------------------------------
Agreement. All the covenants, stipulations, promises and agreements in this
---------
Master Loan Agreement contained by or in behalf of the Issuer shall bind its
successors and assigns, whether so expressed or not. The Issuer shall not
assign or otherwise transfer any of its rights or obligations under this
agreement without the prior written consent of the Holder, which consent may be
withheld for any reason..
SECTION 12.4 Notices and Demands. Any notice or demand which must be
-------------------
made or is allowed to be made in accordance with this Master Loan Agreement must
be made in writing and may be delivered personally, sent by special messenger
service (courier) with a delivery voucher, sent by registered first class mail
with postage prepaid or transmitted by facsimile. The notice or demand may be
transmitted by facsimile provided that the original of such notice or demand is
sent by special messenger service or by registered first class mail in
accordance with the provisions in this Section. Any notice or demand which must
be made or is allowed to be made in accordance with this Master Loan Agreement
will be deemed made (i) on the date delivered, if delivered personally, (ii) on
the date the voucher is signed, if sent by special messenger service (courier)
or (iii) three Business Days after mailing if sent by registered first class
mail. For the purpose of this Master Loan Agreement, until such time as a
written notice of a change of address or of a change in contact information is
delivered to the other party, the address and contact information of each party
is as follows:
Issuer: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Contact: Secretary
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Holder: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Tel: (▇▇) ▇▇ ▇▇▇ ▇▇▇▇
Fax: (▇▇) ▇▇ ▇▇▇ ▇▇▇▇
Contact: Secretary
In case, by reason of the suspension of or irregularities in regular
mail or courier service, it shall be impracticable to mail or deliver notice to
the Issuer or the Holder when such notice or demand is required to be given
pursuant to any provision of this Master Loan Agreement, then any manner of
giving such notice or demand as shall be satisfactory to the Holder shall be
deemed to be a sufficient giving of such notice or demand.
SECTION 12.5 Officers' Certificates; Statements to Be Contained
--------------------------------------------------
Therein. Upon any application or demand by the Issuer to the Holder to take any
-------
action under any of the provisions of this Master Loan Agreement, the Issuer
shall furnish to the Holder an Officers' Certificate stating that all conditions
precedent provided for in this Master Loan Agreement relating to the proposed
action have been complied with, except that in the case of any such application
or demand as to which the furnishing of such documents is specifically required
by any provision of this Master Loan Agreement relating to such particular
application or demand, no additional certificate or opinion need be furnished.
Each certificate provided for in this Master Loan Agreement and
delivered to the Holder with respect to compliance with a condition or covenant
provided for in this Master Loan Agreement shall include (a) a statement that
the Person making such certificate has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate are based,
(c) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous. Any
certificate, statement or opinion of an officer of the Issuer or of counsel may
be based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant or firm of accountants in the
employ of the Issuer unless such officer or counsel, as the case may be, knows
that the certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or opinion may be based
as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Holder shall contain a statement that such firm is
independent.
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SECTION 12.6 Payments Due on Saturdays, Sundays and Holidays. If the
-----------------------------------------------
date of maturity of Interest on or principal of the Notes of any series or the
date fixed for redemption or repayment of any such Note shall not be a Business
Day, then payment of Interest or principal need not be made on such date, but
may be made on the next succeeding Business Day with the same force and affect
as if made on the date of maturity or the date fixed for redemption, and no
Interest shall accrue for the period after such date.
SECTION 12.7 New York Law to Govern. This Master Loan Agreement and
----------------------
each Note shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
such State, without regard to principles of the conflict of laws thereof.
SECTION 12.8 Consent to Jurisdiction and Service of Process. The
-----------------------------------------------
Issuer and Holder agree that any legal suit, action or proceeding brought by any
party to enforce any rights under or with respect to this Master Loan Agreement,
any Note or any other document or the transactions contemplated hereby or
thereby may be instituted in any state or federal court in ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, irrevocably waives to the fullest
extent permitted by law any objection which it may now or hereafter have to the
laying of venue of any such suit, action or proceeding, irrevocably waives to
the fullest extent permitted by law any claim that and agrees not to claim or
plead in any court that any such action, suit or proceeding brought in such
court has been brought in an inconvenient forum and irrevocably submits to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding or for recognition and enforcement of any judgment in respect
thereof.
To the extent that the Issuer has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property or
assets, this Master Loan Agreement, the Notes, or any other documents or actions
to enforce judgments in respect of any thereof, the Issuer hereby irrevocably
waives such immunity, and any defense based on such immunity, in respect of its
obligations under the above-referenced documents and the transactions
contemplated thereby, to the extent permitted by law.
SECTION 12.9 Judgment Currency. If pursuant to a judgment or order
------------------
being made or registered against the Issuer, any payment under or in connection
with this Master Loan Agreement, any Notes to the Holder is made or satisfied in
a currency (the "Judgment Currency") other than in United States dollars then,
to the extent that the payment (when converted into United States dollars at the
rate of exchange on the date of payment or, if it is not practicable for the
Holder to purchase United States dollars with the Judgment Currency on the date
of payment, at the rate of exchange as soon thereafter as it is practicable for
it to do so) actually received by the Holder falls short of the amount due under
the terms of this Master Loan Agreement or any Notes, the Issuer shall, to the
extent permitted by law, as a separate and independent obligation, indemnify and
hold harmless the Holder against the amount of such short fall and such
indemnity shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. For the purpose of this Section, "rate of
exchange" means the
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rate at which the Holder is able on the relevant date to purchase United States
dollars with the Judgment Currency and shall take into account any premium and
other costs of exchange.
SECTION 12.10 Counterparts. This Master Loan Agreement may be
------------
executed in any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
SECTION 12.11 Effect of Headings. The Article and Section headings
------------------
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Master Loan
Agreement to be duly executed as of March 27, 2000.
SIMPLEX TECHNOLOGIES INC., as Issuer
By:___________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
TYCO GROUP S.A.R.L., as Holder
By:___________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: General Manager
-29-
EXHIBIT A
NOTE
March 27, 2000
On March 27, 2000, for value received, SIMPLEX TECHNOLOGIES INC., a
MassachusettsDelaware corporation (hereinafter called the "Issuer"), hereby
promises to pay to the order of TYCO GROUP S.A.R.L., a company organized under
the laws of the Grand Duchy of Luxembourg (the "Holder"), the unpaid principal
amount of this Note issued by the Issuer to the Holder pursuant to Article Three
of the Master Loan Agreement (as defined below), and to pay Interest on the
unpaid principal amount of the Note in accordance with Master Loan Agreement on
the Interest Payment Dates in accordance with the terms and conditions of the
Master Loan Agreement and as specified as follows:
Note Series Designation:
Number of Notes in Series:
Note Certificate Number:
Issue Date:
Maturity Date:
Term of Note:
Currency of Note:
Principal Amount of Note:
Principal Repayable in Installments:
Number of Installments:
Principal Repayment Dates:
Amount of Principal Installment:
Interest Rate Per Annum: ______%
360 or 365 Day Year:
Interest Payment Dates per Year: March 15, June 15, September 15 and
December 15
Place of Payment of Interest and Principal:
Redeemable Prior to Maturity:
Redemption Price: Redemption Date Redemption Price as
During Period Percentage of Principal
---------------- -----------------------
Priority:
If Subordinated,
Designation of Notes Series Senior to this Note:
Subordinated as to Payment of Principal:
Subordinated as to Payment of Interest:
-1-
Payments of principal and Interest under this Note shall be made in United
States dollars by wire transfer of immediately available funds to the bank
account or accounts as advised from time to time by the Holder in accordance
with Section 12.4 of the Master Loan Agreement.
This Note is a Note evidencing an advance under the Master Loan Agreement
dated as of March 27 [DATE], 2000, between the Issuer and Holder, which
provides, among other things, for the issuance of Notes in one or more series by
the Issuer up to an aggregate principal amount of Five Hundred Million United
States dollars (US$500,000,000), or its equivalent in any other currency (as
determined on the respective Issue Dates of all such Notes), for the repayment
of such Notes, and for the acceleration of the maturity of said Notes following
an event of default, all on the terms set forth in said Master Loan Agreement
and in this Note.
Unless otherwise specified herein, all capitalized terms herein will be as
defined in the Master Loan Agreement.
For and on Behalf of
SIMPLEX TECHNOLOGIES INC.
By: ____________________________
Name:
Title:
By: ___________________________
Name:
Title:
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