Exhibit 4.16(e)
FORM OF AMENDED SERIES C NOTE DUE 1999
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED
OR SOLD IN CONTRAVENTION OF SUCH ACT.
PECHINEY CORPORATION
SERIES C NOTE DUE 1999
No. 1 $____________
FOR VALUE RECEIVED, PECHINEY CORPORATION, a Delaware corporation (the
"Company"), HEREBY PROMISES TO PAY to the order of _____________ (the "Payee"),
the principal sum of __________________________________ ($___________________)
on January 2, 1999, and to pay interest thereon for each Interest Period in each
year (payable on the last day of such Interest Period), from the date hereof or
from the most recent such interest payment date to which interest has been paid
or duly provided for, at the Applicable Interest Rate (as hereinafter defined),
until such principal amount is paid in full and on the day when such principal
amount becomes due.
All payments of principal and interest in respect of this Note and
other amounts owed by the Company hereunder shall be made in immediately
available funds to the order of the holder ("Holder") by wire transfer to such
account as may be specified from time to time by the Holder in writing, or at
the option of the Holder, in such other manner as the Holder shall be designated
to the Company in writing. If any payment of principal, interest, and any other
amount owed by the Company under this Note shall become due and payable on any
day other than a Business Day (as defined below), the maturity hereof shall be
extended to the next succeeding Business Day and interest due on the unpaid
principal and any other amounts payable hereunder shall accrue during such
extension and shall be payable on such succeeding Business Day at the rate per
annum then in effect hereunder. All computations of interest under this Note
shall be made on the basis of a year of 365 or 366 days, as the case may be, for
the actual number of days (including the first but excluding the last day)
elapsed.
The principal amount of this Note may not be prepaid prior to the date
of maturity thereof.
This Note is entitled to the benefits of an irrevocable standby letter
of credit (the "LC") dated of even
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date herewith and issued by Banque National de Paris.
This Note shall become and be immediately due and payable upon written
demand of Holder if one or more of the following events, herein called "Events
of Default", shall have occurred and be continuing at the time of such demand:
(a) a default by the Company in the due and punctual payment of any
interest on this Note or of any principal of this Note when and as such
amount shall become due and payable, such default having continued for a
period of five Business Days after notice thereof by Xxxxxx; or
(b) the LC shall cease to be in full force and effect or the stated
amount thereof is not reinstated after a drawing thereunder for interest
payable hereunder within five Business Days after such drawing; or
(c) an involuntary case or other proceeding shall be commenced
against the Company seeking liquidation, reorganization, readjustment,
arrangement, composition or similar relief with respect to it or its debts
or other liabilities under the Federal bankruptcy, insolvency,
reorganization or rehabilitation laws, or any other similar applicable
Federal or state law, seeking the appointment of a receiver, liquidator,
custodian or trustee or assignee or similar official of the Company, or for
a substantial part of the property of the Company, or for the winding up or
liquidation of the affairs of the Company, and such involuntary case or
other proceeding shall have remained undismissed or unstayed for a period
of 60 days or more; or an order for relief against the Company shall be
entered in any such case under the Federal Bankruptcy Code; or any
substantial part of the property of the Company shall be sequestered or
attached and shall not be returned from such attachment within 60 days
thereafter; or
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(d) the Company shall institute proceedings, or shall consent to file
a petition or answer seeking, liquidation, reorganization, readjustment,
arrangement, composition or similar relief under the Federal bankruptcy,
insolvency, reorganization or rehabilitation laws, or any other similar
applicable Federal or state law, or shall consent to the filing of any such
petition, or shall consent to the appointment of a receiver, liquidator,
trustee, custodian or assignee or similar official of it or of a
substantial part of its property, or shall make an assignment for the
benefit of creditors, or shall fail generally, or shall admit in writing
its inability, to pay its debts generally as they become due, or shall
voluntarily suspend transaction of its usual business, or corporate action
shall be taken by the Company in furtherance of any of the aforesaid
purposes.
The occurrence of any of the Events of Default specified in paragraphs
(c) and (d) shall constitute an automatic Event of Default.
In the event that any of the Events of Default specified in paragraphs
(a) through (d) above shall have occurred and be continuing, or in the event of
a default in the due and punctual payment of any of the principal amount of this
Note when and as such principal amount shall become due and payable, Holder may
proceed to protect and enforce its rights either by suit in equity or by action
at law, or both, or by other appropriate proceedings. The Company hereby waives
presentment, demand, notice of protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note.
As used in this Note, the following terms shall have the following
meanings:
"Alternative LIBO Rate" means, for any Interest Period, an interest
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rate per annum equal to the arithmetic average of the rates at which United
States dollar deposits of $1,000,000 and for a maturity equal to such Interest
Period are offered by two major banks ("Reference Banks") in the London
interbank market (which Reference Banks shall be selected by the Calculation
Agent for such purpose) on the day that is two London Banking Days prior to the
commencement of such Interest Period, as determined by the Calculation Agent;
provided, however, that, if the Alternative LIBO Rate cannot for any reason be
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determined as aforesaid for an
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Interest Period, the Alternative LIBO Rate for such Interest Period shall be, if
available, the arithmetic average of the cost to the Reference Banks of
obtaining such deposits at such time from such other sources as such Reference
Banks shall select, as quoted to the Calculation Agent, or, if not available,
the Interest Rate for the preceding Interest Period.
"Applicable Interest Rate" means, with respect to the period from the
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date hereof until December 31, 1991, 10% per annum, and for each Interest Period
from January 1, 1992, until the principal amount of this Note is paid in full,
an interest rate equal to the sum of (i) 1/4% and (ii) the LIBO Rate for such
Interest Period.
"Business Day" means any day that is not a Saturday, a Sunday or a
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legal holiday in the State of New York on which banks are not authorized or
required to be closed in New York City.
"Calculation Agent" means Citibank, N.A. and, if Citibank, N.A. shall
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decline or be unable to continue to act as the Calculation Agent hereunder, such
successor Calculation Agent as shall be a United States bank of nationally
recognized standing selected by the Company.
"Interest Period" means the period commencing on and including the
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last day of the preceding Interest Period (or, in the case of the first Interest
Period, on the period ending March 31, 1989) and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, the last
day) in the calendar month that is three months thereafter. Interest for each
Interest Period shall be payable for the period from and including the first day
thereof to but excluding the last day thereof. The determination of Interest
Periods shall be subject to the following provisions: if any Interest Period
would otherwise expire on a day which is not a Business Day, such Interest
Period shall expire on the next succeeding Business Day; provided, however, that
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if any Interest Period would otherwise expire on a day which is not a Business
Day but is a day of the month, after which no further Business Day occurs in
such month, such Interest Period shall expire on the next preceding Business
Day.
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"LIBO Rate" means, for any Interest Period, the rate per annum equal
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to the arithmetic average of the offered rates for deposits in United States
dollars for a maturity equal to such Interest Period which appear on the Reuters
Screen LIBO Page as of 11:00 a.m., London time, on the day that is two London
Banking Days prior to the commencement of such Interest Period, as determined by
the Calculation Agent; provided, however, that, if no such rates so appear, the
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LIBO Rate for such Interest Period shall be the Alternative LIBO Rate.
"London Banking Day" means any day on which dealings in deposits in
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United States dollars are transacted in the London interbank market.
"Reuters Screen LIBO Page" means the display designated as Page "LIBO"
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on the Reuters Monitor Money Rates Service (or such other page as may replace
the LIBO page on that service for the purpose of displaying London interbank
offered rates of major banks).
"Xxxxx Agreement" means the Agreement and Plan of Merger dated as of
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November 20, 1988 among Pechiney, Pechiney Corporation and Triangle Industries,
Inc.
"NPM Stock Purchase Agreement" means the NPM Stock Purchase Agreement
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dated as of November 20, 1988 among Xxxxxx Xxxxx, Xxxxx X. Xxx, Pechiney and
Pechiney Corporation.
"P & M Stock Purchase Agreement" means the P & M Stock Purchase
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Agreement dated November 20, 1988 among Pechiney, Pechiney Corporation, Xxxxxx
Xxxxx and Xxxxx X. Xxx.
"Agreement" means the Agreement dated as of November 20, 1988, among
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Pechiney, Pechiney Corporation, Xxxxxx Xxxxx and Xxxxx X. Xxx.
Payments of principal of, or interest on, this Note are not subject to
the right of the Company to set off or deduct from such payments the amount of
any claims which the Company may have against Holder or any other person or
entity. The Company hereby waives diligence, presentment,
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demand, notice of protest, notice of dishonor and all other demands and notices
of any kind whatsoever in connection with the delivery, acceptance,
performance, default or enforcement of this Note.
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York.
All the covenants contained in this Note on behalf of the undersigned
shall bind its successors, whether so expressed or not.
This Note may be sold, transferred or otherwise disposed of by the
Holder; provided, however, that the Note may be sold in the United States or to
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any United States person only so long as such sale or transfer is made in
compliance with the federal securities laws and applicable state securities
laws; and provided further that the Note may be sold or transferred outside the
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United States and to any non-United States person only so long as such sale or
transfer is made to a reputable financial institution or to an entity that is
wholly owned by a reputable financial institution or institutions, and provided,
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further, that the Holder shall furnish the Company with the name, address and
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place of organization (if the transferee is an entity) or residence (if the
transferee is an individual) of the transferee who acquires beneficial ownership
of this Note as a result of such sale or transfer, within thirty days after the
date thereof.
The obligation of the Company to make payment under this Note shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms hereof under all circumstances, irrespective of the existence of any
claim, set-off, defense or other right which the Company or any of its
affiliates may have at any time against the Payee or any of its affiliates or
any other person or entity.
Any amount due and payable to the Payee hereunder shall be free and
clear of, and without reduction for, or on account of, any present or future
taxes, levies, imposts, deductions, charges or withholdings imposed by any
Covered Jurisdiction (as defined below), excluding present or future taxes,
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levies, imposts, deductions, charges or withholdings that would not be imposed
but for a connection between the Payee hereunder and the Covered Jurisdiction
imposing such tax, levy, impost, deduction, charge or withholding, other than a
connection arising by virtue of the activities of such Payee in respect of the
transactions contemplated by the NPM Agreement, the Merger Agreement, the P&M
Stock Purchase
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Agreement and the Agreement or the holding of this Note (all such non-excluded
taxes, levies, imposts, deductions, charges or withholdings being hereinafter
referred to as "Withholdings"). If any Withholdings shall be required by law to
be deducted from or in respect of any sum payable to the Payee, the sum so
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this paragraph) the Payee receives an amount equal to the sum the Payee would
have received had no such Withholdings been imposed. Covered Jurisdiction shall
mean any jurisdiction other than the United States, any State, territory or
political subdivision thereof. If any payment is made to or on behalf of the
Payee pursuant to this paragraph in respect of Withholding, the Payee shall
refund to the Company the amount of any tax benefit that the Payee would not
have realized if such Withholdings had not been imposed.
No failure on the part of Payee or Holder to exercise, and no delay in
exercising, any right under this Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right.
Dated: December 22, 1988
PECHINEY CORPORATION
By
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Title:
