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EXHIBIT (d)(9)
[LOGO OF CHASE] Fixed Rate Promissory Note
(Multiple Loans)
New York, New York
December 21, 2000
For value received, the undersigned (the "Borrower") unconditionally promises
to pay to the order of THE CHASE MANHATTAN BANK (the "Bank"), at its principal
office located at 270 Park Avenue, New York, New York 10017, the principal
amount of each loan made by the Bank to the Borrower and outstanding under this
Note on the maturity date(s) as evidenced by the Bank's records as provided in
the fifth paragraph hereof.
The Borrower promises to pay interest on the unpaid balance of the principal
amount of each such loan for each day outstanding at a fixed rate per annum
equal to the rate as evidenced in the Bank's records as provided in the fifth
paragraph hereof; provided that principal and (to the extent permitted by law)
interest not paid when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest for each day overdue at a variable rate per annum
equal to: (a) the higher of: (i) the Federal Funds Rate plus 1/2 of 1% and (ii)
the Prime Rate; plus (b) 2%. "Federal Funds Rate" means, for any day, the rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions as published by the Federal Reserve Bank of New York for such day
(or for any day that is not a banking day in New York City, for the immediately
preceding banking day). "Prime Rate" means, for any day, that rate of interest
from time to time announced by the Bank at its principal office as its prime
rate, as in effect for such day in accordance with announcements by the Bank of
changes in such rate. Interest shall be calculated on the basis of a year of
360 days and paid for the actual number of days elapsed (including the first day
but excluding the last day). Interest on each loan shall be due and payable at
the maturity thereof (and quarterly, if requested by the Bank); provided,
however, that interest accruing on any amount not paid when due shall be payable
upon demand. In no case shall the interest on this Note exceed the maximum
amount which the Bank may charge or collect under applicable law.
Each loan hereunder may be prepaid in whole but not in part, provided that
accrued and unpaid interest is paid on the date of such prepayment, together
with any compensation payable in accordance with the following. If there is any
payment (whether by voluntary prepayment, acceleration or otherwise) of a loan
under this Note on a date other than the scheduled maturity date set forth in
the first paragraph hereof, then the Borrower will pay the Bank on demand such
amount as will be sufficient in the reasonable opinion of the Bank to compensate
it for any loss, cost or expense which the Bank determines is attributable
thereto. Without limiting the foregoing, such compensation shall include an
amount equal to the excess, if any, of: (a) the aggregate amount of interest
which otherwise would have accrued on the principal amount so paid for the
period from and including the date of payment to but excluding such maturity
date at the rate of interest provided herein over (b) the amount of interest the
Bank would pay (as determined by the Bank in good faith, such determination to
be conclusive) on a deposit placed with the Bank on the date of such payment in
an amount comparable to such principal amount and with a maturity comparable to
such period.
All payments under this Note shall be made in lawful money of the United
States of America and in immediately available funds at the Bank's principal
office specified above. If any loan evidenced by this Note becomes due and
payable on a day which is not a banking day in New York City, the maturity of
such loan shall be extended to the next succeeding banking day, and interest
shall be payable for such extension on such loan at the rate of interest
specified in this Note. The Bank may (but shall not be obligated to) debit the
amount of any payment which is not made when due to any deposit account of the
Borrower with the Bank.
The date, amount, rate of interest and maturity date of each loan under this
Note and each payment of principal, loan(s) to which such principal is applied
(which shall be at the discretion of the Bank) and the outstanding principal
balance of loans shall be recorded by the Bank on its books and prior to any
transfer and delivery of this Note, endorsed by the Bank on the schedule
attached or any continuation of such schedule. Any such endorsement shall be
conclusive in the absence of manifest error.
If any of the following events of default shall occur: (a) the Borrower
fails to pay any principal or interest to the Bank under this Note when due and
payable; (b) the Borrower shall fail to pay any indebtedness in an aggregate
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principal amount in excess of $10,000,000 when due and payable or if there shall
be any default by the Borrower thereunder; (c) the Borrower shall become
insolvent (however evidenced) or shall seek any relief under any bankruptcy or
similar law of any jurisdiction (or any person shall seek such relief against
the Borrower); or (d) any Facility Document shall at any time cease to be in
full force and effect or its validity or enforceability shall be disputed or
contested; THEN, if the Bank shall elect by notice to the Borrower, the unpaid
principal amount of this Note, together with interest and any other amounts due
hereunder shall become forthwith due and payable; provided that in the case of
an event of default under (c) above, such amounts shall automatically become due
and payable without any notice or other action by the Bank.
The Borrower waives presentment, notice of dishonor, protest and any other
formality with respect to this Note.
The Borrower shall reimburse the Bank on demand for all costs, expenses and
charges (including, without limitation, fees and charges of external legal
counsel for the Bank and costs allocated by its internal legal department) in
connection with the preparation, performance or enforcement of this Note.
This Note shall be binding on the Borrower and its successors and assigns and
shall inure to the benefit of the Bank and its successors and assigns; provided
that the Borrower may not delegate any obligations hereunder without the prior
written consent of the Bank. Without limiting any provision of this Note, the
obligations under this Note shall continue in full force and effect and shall be
binding on: (a) the estate of the Borrower if the Borrower is an individual; and
(b) any successor partnership and on previous partners and their respective
estates if the Borrower is a partnership, regardless of any change in the
partnership as a result of death, retirement or otherwise.
THIS NOTE SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. THE
BORROWER CONSENTS TO THE NONEXCLUSIVE JURISDICTION AND VENUE OF THE STATE OR
FEDERAL COURTS LOCATED IN THE CITY OF NEW YORK. SERVICE OF PROCESS BY THE BANK
IN CONNECTION WITH ANY SUCH DISPUTE SHALL BE BINDING ON THE BORROWER IF SENT TO
THE BORROWER BY REGISTERED MAIL AT THE ADDRESS SPECIFIED BELOW. THE BORROWER
WAIVES ANY RIGHT THE BORROWER MAY HAVE TO JURY TRIAL.
Address: AGILENT TECHNOLOGIES, INC.
395 Page Mill Road (M/S A1-14)
Palo Alto, CA 94306
Attention: Treasurer
By /S/ Didier Hirsch
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Name: Didier Hirsch
Title: Vice President & Treasurer
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<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Amount of
Date Payment and Principal
and Amount Loan Number Balance
Loan of Loan Maturity to Which Remaining Notation
Number and Rate Date Applied Unpaid Made By
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