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EXHIBIT 4.6
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION UNLESS AN EXEMPTION OR EXCLUSION THEREFROM IS
AVAILABLE.
THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS OF THE
SUBORDINATION AGREEMENT.
THIS NOTE IS SUBJECT TO THE RIGHTS AND RESTRICTIONS, INCLUDING
CERTAIN RESTRICTIONS ON TRANSFER, CONTAINED IN A SUBORDINATED
NOTE AND WARRANT PURCHASE AGREEMENT DATED AS OF NOVEMBER 18,
1996 (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
ISSUER HEREOF).
AIR-CURE TECHNOLOGIES, INC.
SENIOR SUBORDINATED NOTE DUE NOVEMBER 18, 2003
No. RS-2
$2,000,000 November 18, 1996
FOR VALUE RECEIVED, the undersigned, AIR-CURE TECHNOLOGIES, INC. (the
"COMPANY"), a corporation organized and existing under the laws of the State of
Delaware, hereby promises to pay to First Commere Corporation or registered and
permitted assigns, the principal sum of TWO MILLION AND NO/ONE-HUNDREDTHS
DOLLARS ($2,000,000.00) on November 18, 2003, with interest (computed on the
basis of a 365-day year) (a) on the unpaid balance thereof at the rates of
interest per annum set forth in paragraph 1A of the Agreement, payable
quarterly on the last Business Day of December, March, June and September in
each year, commencing with the December next succeeding the date hereof, until
the principal hereof shall have become due and payable, and (b) on any overdue
payment (including any overdue prepayment) of principal and any overdue payment
of interest, payable quarterly as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time
equal to the lesser of (a) the maximum rate permitted by applicable law or (b)
2.00% per annum above the rate otherwise applicable.
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This Note is one of a series of Senior Subordinated Notes (the
"NOTES") issued pursuant to a Subordinated Note and Warrant Purchase Agreement,
dated as of November 18, 1996 (as amended from time to time, the "AGREEMENT"),
among the Company, International Mezzanine Capital, B.V. and First Commerce
Corporation and is entitled to the benefits thereof.
Payments of principal and interest on this Note are to be made as
indicated in the Purchaser Schedule to the Agreement or at such other place as
the holder hereof shall designate to the Company in writing, in lawful money of
the United States of America.
This Note is a registered Note and, as provided in, and subject to the
terms and conditions of, the Agreement, upon surrender of this Note for
registration of transfer, duly endorsed, or accompanied by a written instrument
of transfer duly executed, by the registered holder hereof or such holder's
attorney duly authorized in writing, a new Note of like tenor for a like
principal amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of transfer, the Company
may treat the person in whose name this Note is registered as the owner hereof
for the purpose of receiving payment and for all other purposes, and the
Company shall not be affected by any notice to the contrary.
This Note is subject to certain prepayments, as specified in the
Agreement.
THIS NOTE AND THE DEBT EVIDENCED HEREBY, INCLUDING THE PRINCIPAL AND
INTEREST SHALL AT ALL TIMES REMAIN JUNIOR AND SUBORDINATE TO ANY AND ALL SENIOR
DEBT (AS DEFINED IN THE AGREEMENT), ALL ON THE TERMS AND TO THE EXTENT MORE
FULLY SET FORTH IN THE AGREEMENT.
If an Event of Default, as defined in the Agreement, shall occur and
be continuing, the principal of this Note may be declared or otherwise become
due and payable in the manner and with the effect provided in the Agreement.
The Company, and the purchaser and the registered holder of this Note
specifically intend and agree to limit contractually the amount of interest
payable under this Note to the maximum amount of interest lawfully permitted to
be charged under applicable law. Therefore, none of the terms of this Note
shall ever be construed to create a contract to pay interest at a rate in
excess of the maximum rate permitted to be charged under applicable law, and
neither the Company nor any other party liable or to become liable hereunder
shall ever be liable for interest in excess of the amount determined at such
maximum rate, and the provisions of paragraph 12Q of the Agreement shall
control over any contrary provision of this Note.
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THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK. IN THE EVENT A FINAL JUDGMENT BY A COURT OF
COMPETENT JURISDICTION HOLDS THAT SUCH CHOICE OF NEW YORK LAW IS UNENFORCEABLE,
THEN THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF LOUISIANA.
AIR-CURE TECHNOLOGIES, INC.
By:
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Name:
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Title:
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