EXHIBIT 4.3
MORTGAGE NOTE
$600,000.00 FEBRUARY 6, 2004
FOR VALUE RECEIVED, Metalico, Inc., a Delaware corporation ("Maker"), located at
000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx hereby promises to pay Xxxxxx X.
Xxxxxx ("Payee") or to an assignee of Payee approved by Maker which approval
shall not be unreasonably withheld, in the lawful money of the United States of
America, the principal sum of Six Hundred Thousand Dollars ($600,000) plus five
percent interest (5%) ("Mortgage Note"). The Mortgage Note will be payable in
monthly installments of $2,500 with a one year balloon terminating on February
5, 2005. This Mortgage Note is issued by Maker to Payee in accordance with
Makers' Board of Director resolution dated January 16, 2004 attached hereto as
EXHIBIT "A". Proceeds from the Mortgage Note were used for funding of a Bank of
America Note payoff and Warrant retirement in the amount of $637,284 and general
working capital needs of Maker.
1. SECURITY. This Mortgage Note is secured by the land owned by
Metalico-Xxxxx, Inc., a wholly owned subsidiary of Maker, that certain lot,
tract or parcel of real estate more particularly described on EXHIBIT "B"
("Land") attached hereto.
2. PAYMENT OF INTEREST. The Mortgage Note carries interest at five percent
(5%) per annum payable in monthly installments of $2,500 made every month,
commencing on the first day of the month immediately following the date of
closing of the Mortgage Note and the first day of the month thereafter.
3. REPAYMENT OF PRINCIPAL. The principal of this Mortgage Note is payable
on February 5, 2005. The principal of this Mortgage Note may be voluntarily
prepaid at any time without penalty.
4. MORTGAGE NOTE SUBORDINATE TO BANK INDEBTEDNESS. The indebtedness
represented by this Mortgage Note and the payment of principal and interest on
this Mortgage Note are hereby expressly understood to be subordinate to the
right of payment to Xxxxx Fargo Foothill Corporation (f/k/a Foothill Capital
Corporation) under the terms of that certain Loan and Security Agreement dated
May 31, 2001 and the related loan documents, except that, this Mortgage Note in
the Land shall be a first lien and not subordinate to any other loan and
security agreement.
5. COVENANTS. Maker hereby covenants and agrees with the Payee hereof, so
long as any amount due under this Mortgage Note is outstanding, upon request of
Payee, Maker will execute and deliver such further instruments and do such
further acts as may be reasonable necessary or proper to carry out more
effectively the purposes of this Mortgage Note.
6. EVENTS OF DEFAULT. If one or more of the following events occurs,
namely:
(a) If there is a failure in the interest payment, when the same becomes
due and payable, and such failure continues for 60 days after receipt by Maker
of written notice of such default; or
(b) Maker fails to comply with any of its covenant or agreements in this
Mortgage Note, and such failure continues for 60 days after receipt by Maker of
written notice of such default; or
(c) Maker (i) admits in writing its inability to pay its debts as they come
due, or will make a general assignment for the benefit of creditors; (ii)
commences any case, proceeding or other action seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or its
debts under any law relating to bankruptcy, insolvency, reorganization or relief
of debtors, or seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all of any substantial part of its property;
(e) Any case, proceeding or other action against Maker will be commenced
seeking to have an order for relief entered against Maker as debtor, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or composition
of Maker or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, or seeking appointment of a receiver,
trustee, custodian or other similar official for it or all or any substantial
part of its property, and such case, proceeding or other action remains
un-dismissed for a period of ninety (90) days;
(each, an "Event of Default") then upon the written notice of Xxxxx in case of
an Event of Default under subparagraphs 6 above, and without any action taken by
Payee in the case of an Event of Default under subparagraphs 7 below, the entire
principal amount of this Mortgage Note will become immediately due and payable,
together with all accrued and unpaid interest thereon. Maker will pay on demand
all costs and expenses, including reasonable attorney's fees, incurred or paid
by Xxxxx in enforcing or collecting any of the obligations of Maker hereunder.
As used herein, "Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
7. OTHER REMEDIES. In addition to any other remedies, Payee may foreclose
on this Mortgage Note. A delay or omission by Xxxxx in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of, or acquiescence in, the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
8. NOTICE REGISTERED FORM. Any notice or communication given under this
Mortgage Note will be in writing and be hand delivered, mailed by registered or
certified mail, postage prepaid, delivered by facsimile (with a telephonic
confirmation or answer-back) or by overnight courier as follows:
(a) If to Payee: Xxxxxx X Xxxxxx
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(b) If to Maker: Xxxx X. Xxxxxxxxx, Xx. Vice President & CFO
Metalico Inc.
000 Xxxxx Xxx. East
Cranford, NJ 07016
or at such other address as hereafter will be furnished in writing by the
addressed party to the other party. Delivery by hand will be deemed given when
personally delivered; delivery by registered or certified mail will be deemed
given three (3) business days after the same is posted; delivery by facsimile
will be deemed given when received; and delivery by overnight courier will be
deemed given the first business day following the date of timely deposit with
such courier.
9. REPLACEMENT OF NOTE. On receipt of evidence reasonably satisfactory to
Maker of the loss, theft, destruction or mutilation of this Mortgage Note on
delivery of an indemnity agreement and/or security satisfactory in form and
amount to Maker or, in the case of any such mutilation, on surrender and
cancellation of such Mortgage Note, maker at its expense will execute and
deliver, in lieu thereof, a new Mortgage Note of like tenor.
10. WAIVER: MODIFICATIONS IN WRITING. No failure or delay on the part of
Payee in exercising any right, power or remedy hereunder will operate as a
waiver thereof, nor will any single or partial exercise of any such right, power
or remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to Payee at law, in
equity.
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11. SEVERABILITY. If any provision in this Mortgage Note is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Mortgage Note will remain in full force and effect.
Any provision of this Mortgage Note held invalid or unenforceable only in part
or degree will remain in full force and effect to the extent not held invalid or
unenforceable.
12. GOVERNING LAW WAIVER OF JURY. This Mortgage Note will be governed by
the laws of the State of New Jersey without regard to conflicts of laws
principles.
THE PAYEE AND MAKER HEREBY VOLUNTARILY, IRREVOCABLY AND
UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, BETWEEN THE PAYEE AND MAKER ARISING OUT OF, IN
CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN MAKER AND THE PAYEE IN
CONNECTION WITH THIS MORTGAGE NOTE. THIS PROVISION SHALL NOT
IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY THE PAYEE'S
ABILITY TO PURSUE ITS REMEDIES CONTAINED HEREIN.
13. PARTIES IN INTEREST. This Mortgage Note shall bind Maker and its
successors and assigns. This Mortgage Note shall not be assigned or transferred
by Payee without the express prior written consent of Maker, except by Xxxx or,
in default thereof, by operation of law.
14. SECTION HEADINGS. CONSTRUCTION. The headings of Sections in this
Mortgage Note are provided for convenience only and will not affect its
construction or interpretation. All references to "Section" or "Sections" refer
to the corresponding Section or Sections of this Mortgage Note unless otherwise
specified.
All words used in this Mortgage Note will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
words "hereof' and "hereunder" and similar references refer to this Mortgage
Note in its entirety and not to any specific section or subsection hereof
IN WITNESS WHEREOF, Maker has executed and delivered this Mortgage Note as of
the date first stated above.
METALICO, INC.
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By: Xxxx X. Xxxxxxxxx
Title: Sr. Vice President & CFO
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