Exhibit 4.16(a)
FORM OF AMENDED SERIES A 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 A 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
prinicipal 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
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
against 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 the property, or shall take an assignment for the benefit of
creditors, or shall fail generally, or shall admit in writing its
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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 rate
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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 from the
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date hereof until December 31, 1991, 10% per annum, and 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 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.
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"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 provision: 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.
"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, 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).
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"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
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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, 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.
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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 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 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
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political subdivision thereof. If 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 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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