EXHIBIT 4.16(b)
FORM OF SERIES B 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 B 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 have 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 date herewith and issued by Banque Nationale
de Paris.
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This Note, together with accrued interest and (so long as the Holder is
the Payee) the Tax Indemnity Amount (as defined below), 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 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
(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,
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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
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interest 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 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
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from the 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.
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"Business Day" means any day that is not a Saturday, a Sunday or a legal
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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 last
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day of the preceding Interest Period (or, in the case of the first Interest
Period, the period ending on 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,
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that 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.
"LIBO Rate" means, for any Interest Period, the rate per annum equal to
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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,
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the 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.
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"Reuters Screen LIBO Page" means the display designated as Page "LIBO" on
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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).
"Tax Indemnity Amount" means an amount equal to the excess of (i) the
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Federal, state and local income tax liability of the Holder in respect of his
gain that had not yet been recognized on the sale of the Payee's shares pursuant
to the NPM Stock Purchase Agreement (such tax liability to be determined based
upon the Holder's effective Federal, state and local income tax rate on
long-term capital gains in effect as of the date of payment under this Note)
over (ii) the present value, as of the date of payment, of such tax liability
assuming the principal amount of this Note were paid on the maturity date set
forth herein using a discount rate that would apply to obligations of
substantially the same creditworthiness as this Note and using the tax rate used
in clause (i) above (such excess to be determined by a nationally recognized
independent certified public accounting firm appointed by the Holder and
Company); provided that if the Holder and the Company cannot agree upon the
selection of such a firm, such firm shall be selected by three individuals
unaffiliated with either the Holder or the Company, one each of such
individuals to be selected by the Holder and the Company, and the third such
individual to be selected by the first two individuals.
"Merger 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 dated
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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 Agreement
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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.
The obligation of the Company to make payments of principal hereon is
subject to certain rights of setoff and recoupment referred to in (i) the NPM
Stock Purchase Agreement, (ii) the P&M Stock Purchase Agreement and (iii) the
Agreement.
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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.
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
(as defined below) imposing such tax, levy, impost, deduction, charge or
withholding, other than a connection arising by virtue of the activities of such
Holder in respect of the transactions contemplated by the NPM Agreement, the
Merger Agreement, the P & M Stock Purchase 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 hereunder, 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 deductions
been made. Covered Jurisdiction shall mean any jurisdiction other than the
United States, any State, territory or political subdivision thereof. Of any
payment of tax is made on behalf of the Payee pursuant to this paragraph, the
Payee shall refund to the Company the amount of any tax benefit that the Payee
would not have realized if such payment had not been made.
No failure on the part of Payee or Holder to exercise, and no delay in
exercising, any right under this
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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:
