1
EXHIBIT 10.16
2
NOTE
US $16,012.50 April 15, 1997
Subject to the terms and conditions of this Note (this "Note"), Xxxxx X.
Xxxxxxxx ("Borrower"), for value received, the receipt and sufficiency of which
is hereby acknowledged, hereby promises to pay to the order of Metallurg, Inc.,
a Delaware corporation, or its successors or assigns ("MI"), in lawful money of
the United States of America in immediately available funds, the principal sum
of Sixteen Thousand Twelve Dollars and Fifty Cents ($16,012.50) payable together
with accrued interest thereon on the business day prior to the third anniversary
of the date hereof (the "Maturity Date").
1. Interest. From the date hereof through the Maturity Date and until the
Note is paid in full, this Note shall accrue interest on the unpaid principal
amount of this Note at a rate equal to 5.91% per annum compounded annually. All
interest shall be calculated on the basis of a three hundred sixty five or six
(365/6) day year and the actual number of days elapsed (including the first day
but excluding the last day) in the period for which interest is payable and
shall be payable in cash.
2. Events of Default. This Note and all accrued and unpaid interest hereon
shall become immediately due and payable if any one or more of the following
events, hereinafter called "Events of Default," shall occur and be continuing:
(a) there is a default in the payment of the principal of, or interest on,
this Note when the same becomes due and payable, at maturity or otherwise;
(b) Borrower shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its assets, (ii) make a general assignment
for the benefit of creditors, (iv) file a voluntary petition in bankruptcy or
(v) be adjudicated a bankrupt or insolvent, or (y) an order for relief under any
relevant bankruptcy code shall have been entered in respect of Borrower; or
(c) without the application, approval or consent of Borrower, a case or
proceeding shall be instituted, in any court of competent jurisdiction, seeking
in respect of Borrower reorganization, dissolution, winding up or liquidation, a
composition or arrangement with creditors, the appointment of a trustee,
receiver, custodian, liquidator or the like of Borrower or of all or a
substantial part of the assets of Borrower, the issuance or levying of any writ,
judgment, warrant of attachment, execution or similar process against all or a
substantial part of the assets or business of Borrower; and, the same shall
continue undismissed, or unstayed and in effect, for any period of sixty (60)
consecutive days.
If there shall occur and be continuing an Event of Default, MI may, by
notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph (b) or (c) above, the principal under this Note and
all such interest shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower. In addition to the remedies set forth above, MI
may exercise any remedies provided by applicable law.
3. Prepayment. Borrower may prepay, without premium or penalty, all or any
portion of the outstanding principal amount of this Note together with accrued
and unpaid interest to such date of prepayment on such amount so prepaid.
4. Waiver. No failure or delay on the part of MI or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, MI or any holder shall operate as a
3
waiver thereof nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other exercise thereof or the exercise of any
other right, power, or privilege. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies which a
holder would otherwise have.
5. Amendment. This Note may not be amended except by an agreement in
writing signed by Xxxxxxxx and MI or the holder hereof.
6. Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally or
mailed by certified mail, return receipt requested, to the parties (and shall
also be transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to MI, to:
Metallurg, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Attention: Xxxxx X. Xxxx
If to Borrower, to:
Xxxxx X. Xxxxxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
7. Submission to Jurisdiction. Borrower hereby irrevocably submits to the
jurisdiction of any New York State or federal court sitting in New York City,
and the undersigned hereby irrevocably agrees that any action may be heard and
determined in such New York State court or in such federal court. Borrower
hereby irrevocably waives, to the fullest extent he may effectively do so, the
defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 6. Borrower may also be
served in any other manner permitted by law, in which event Xxxxxxxx's time to
respond shall be the time provided by law.
8. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
2
4
IN WITNESS WHEREOF, Xxxxxxxx has caused this Promissory Note to be duly
executed as of the date first above written.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
3
5
NOTE
US $29,737.50 April 15, 1997
Subject to the terms and conditions of this Note (this "Note"), Xxxxx X.
Xxxx ("Borrower"), for value received, the receipt and sufficiency of which is
hereby acknowledged, hereby promises to pay to the order of Metallurg, Inc., a
Delaware corporation, or its successors or assigns ("MI"), in lawful money of
the United States of America in immediately available funds, the principal sum
of Twenty Nine Thousand Seven Hundred Thirty Seven Dollars and Fifty Cents
($29,737.50) payable together with accrued interest thereon on the business day
prior to the third anniversary of the date hereof (the "Maturity Date").
1. Interest. From the date hereof through the Maturity Date and until the
Note is paid in full, this Note shall accrue interest on the unpaid principal
amount of this Note at a rate equal to 5.91% per annum compounded annually. All
interest shall be calculated on the basis of a three hundred sixty five or six
(365/6) day year and the actual number of days elapsed (including the first day
but excluding the last day) in the period for which interest is payable and
shall be payable in cash.
2. Events of Default. This Note and all accrued and unpaid interest hereon
shall become immediately due and payable if any one or more of the following
events, hereinafter called "Events of Default," shall occur and be continuing:
(a) there is a default in the payment of the principal of, or interest on,
this Note when the same becomes due and payable, at maturity or otherwise;
(b) Borrower shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its assets, (ii) make a general assignment
for the benefit of creditors, (iv) file a voluntary petition in bankruptcy or
(v) be adjudicated a bankrupt or insolvent, or (y) an order for relief under any
relevant bankruptcy code shall have been entered in respect of Borrower; or
(c) without the application, approval or consent of Borrower, a case or
proceeding shall be instituted, in any court of competent jurisdiction, seeking
in respect of Borrower reorganization, dissolution, winding up or liquidation, a
composition or arrangement with creditors, the appointment of a trustee,
receiver, custodian, liquidator or the like of Borrower or of all or a
substantial part of the assets of Borrower, the issuance or levying of any writ,
judgment, warrant of attachment, execution or similar process against all or a
substantial part of the assets or business of Borrower; and, the same shall
continue undismissed, or unstayed and in effect, for any period of sixty (60)
consecutive days.
If there shall occur and be continuing an Event of Default, MI may, by
notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph (b) or (c) above, the principal under this Note and
all such interest shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower. In addition to the remedies set forth above, MI
may exercise any remedies provided by applicable law.
3. Prepayment. Borrower may prepay, without premium or penalty, all or any
portion of the outstanding principal amount of this Note together with accrued
and unpaid interest to such date of prepayment on such amount so prepaid.
4. Waiver. No failure or delay on the part of MI or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, MI or any holder shall operate as a
6
waiver thereof nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other exercise thereof or the exercise of any
other right, power, or privilege. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies which a
holder would otherwise have.
5. Amendment. This Note may not be amended except by an agreement in
writing signed by Xxxxxxxx and MI or the holder hereof.
6. Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally or
mailed by certified mail, return receipt requested, to the parties (and shall
also be transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to MI, to:
Metallurg, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Attention: Xxxxx X. Xxxx
If to Borrower, to:
Xxxxx X. Xxxx
0 Xxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
7. Submission to Jurisdiction. Borrower hereby irrevocably submits to the
jurisdiction of any New York State or federal court sitting in New York City,
and the undersigned hereby irrevocably agrees that any action may be heard and
determined in such New York State court or in such federal court. Borrower
hereby irrevocably waives, to the fullest extent he may effectively do so, the
defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 6. Borrower may also be
served in any other manner permitted by law, in which event Xxxxxxxx's time to
respond shall be the time provided by law.
8. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
2
7
IN WITNESS WHEREOF, Xxxxxxxx has caused this Promissory Note to be duly
executed as of the date first above written.
By: /s/ Xxxxx X. Xxxx
-------------------------------
Xxxxx X. Xxxx
3
8
NOTE
US $22,875.00 April 15, 1997
Subject to the terms and conditions of this Note (this "Note"), X. Xxxxxxx
Xxxx ("Borrower"), for value received, the receipt and sufficiency of which is
hereby acknowledged, hereby promises to pay to the order of Metallurg, Inc., a
Delaware corporation, or its successors or assigns ("MI"), in lawful money of
the United States of America in immediately available funds, the principal sum
of Twenty Two Thousand Eight Hundred Seventy Five Dollars ($22,875.00) payable
together with accrued interest thereon on the business day prior to the third
anniversary of the date hereof (the "Maturity Date").
1. Interest. From the date hereof through the Maturity Date and until the
Note is paid in full, this Note shall accrue interest on the unpaid principal
amount of this Note at a rate equal to 5.91% per annum compounded annually. All
interest shall be calculated on the basis of a three hundred sixty five or six
(365/6) day year and the actual number of days elapsed (including the first day
but excluding the last day) in the period for which interest is payable and
shall be payable in cash.
2. Events of Default. This Note and all accrued and unpaid interest hereon
shall become immediately due and payable if any one or more of the following
events, hereinafter called "Events of Default," shall occur and be continuing:
(a) there is a default in the payment of the principal of, or interest on,
this Note when the same becomes due and payable, at maturity or otherwise;
(b) Borrower shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its assets, (ii) make a general assignment
for the benefit of creditors, (iv) file a voluntary petition in bankruptcy or
(v) be adjudicated a bankrupt or insolvent, or (y) an order for relief under any
relevant bankruptcy code shall have been entered in respect of Borrower; or
(c) without the application, approval or consent of Borrower, a case or
proceeding shall be instituted, in any court of competent jurisdiction, seeking
in respect of Borrower reorganization, dissolution, winding up or liquidation, a
composition or arrangement with creditors, the appointment of a trustee,
receiver, custodian, liquidator or the like of Borrower or of all or a
substantial part of the assets of Borrower, the issuance or levying of any writ,
judgment, warrant of attachment, execution or similar process against all or a
substantial part of the assets or business of Borrower; and, the same shall
continue undismissed, or unstayed and in effect, for any period of sixty (60)
consecutive days.
If there shall occur and be continuing an Event of Default, MI may, by
notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph (b) or (c) above, the principal under this Note and
all such interest shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower. In addition to the remedies set forth above, MI
may exercise any remedies provided by applicable law.
3. Prepayment. Borrower may prepay, without premium or penalty, all or any
portion of the outstanding principal amount of this Note together with accrued
and unpaid interest to such date of prepayment on such amount so prepaid.
4. Waiver. No failure or delay on the part of MI or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, MI or any holder shall operate as a
9
waiver thereof nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other exercise thereof or the exercise of any
other right, power, or privilege. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies which a
holder would otherwise have.
5. Amendment. This Note may not be amended except by an agreement in
writing signed by Xxxxxxxx and MI or the holder hereof.
6. Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally or
mailed by certified mail, return receipt requested, to the parties (and shall
also be transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to MI, to:
Metallurg, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Attention: Xxxxx X. Xxxx
If to Borrower, to:
X. Xxxxxxx Xxxx
000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
7. Submission to Jurisdiction. Borrower hereby irrevocably submits to the
jurisdiction of any New York State or federal court sitting in New York City,
and the undersigned hereby irrevocably agrees that any action may be heard and
determined in such New York State court or in such federal court. Borrower
hereby irrevocably waives, to the fullest extent he may effectively do so, the
defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 6. Borrower may also be
served in any other manner permitted by law, in which event Xxxxxxxx's time to
respond shall be the time provided by law.
8. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
2
10
IN WITNESS WHEREOF, Xxxxxxxx has caused this Promissory Note to be duly
executed as of the date first above written.
By: /s/ X. Xxxxxxx Xxxx
--------------------------
X. Xxxxxxx Xxxx
3
11
NOTE
US $25,162.50 April 15, 1997
Subject to the terms and conditions of this Note (this "Note"), Xxxxxxx X.
Xxxxx ("Borrower"), for value received, the receipt and sufficiency of which is
hereby acknowledged, hereby promises to pay to the order of Metallurg, Inc., a
Delaware corporation, or its successors or assigns ("MI"), in lawful money of
the United States of America in immediately available funds, the principal sum
of Twenty Five Thousand One Hundred Sixty Two Dollars and Fifty Cents
($25,162.50) payable together with accrued interest thereon on the business day
prior to the third anniversary of the date hereof (the "Maturity Date").
1. Interest. From the date hereof through the Maturity Date and until the
Note is paid in full, this Note shall accrue interest on the unpaid principal
amount of this Note at a rate equal to 5.91% per annum compounded annually. All
interest shall be calculated on the basis of a three hundred sixty five or six
(365/6) day year and the actual number of days elapsed (including the first day
but excluding the last day) in the period for which interest is payable and
shall be payable in cash.
2. Events of Default. This Note and all accrued and unpaid interest hereon
shall become immediately due and payable if any one or more of the following
events, hereinafter called "Events of Default," shall occur and be continuing:
(a) there is a default in the payment of the principal of, or interest on,
this Note when the same becomes due and payable, at maturity or otherwise;
(b) Borrower shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its assets, (ii) make a general assignment
for the benefit of creditors, (iv) file a voluntary petition in bankruptcy or
(v) be adjudicated a bankrupt or insolvent, or (y) an order for relief under any
relevant bankruptcy code shall have been entered in respect of Borrower; or
(c) without the application, approval or consent of Borrower, a case or
proceeding shall be instituted, in any court of competent jurisdiction, seeking
in respect of Borrower reorganization, dissolution, winding up or liquidation, a
composition or arrangement with creditors, the appointment of a trustee,
receiver, custodian, liquidator or the like of Borrower or of all or a
substantial part of the assets of Borrower, the issuance or levying of any writ,
judgment, warrant of attachment, execution or similar process against all or a
substantial part of the assets or business of Borrower; and, the same shall
continue undismissed, or unstayed and in effect, for any period of sixty (60)
consecutive days.
If there shall occur and be continuing an Event of Default, MI may, by
notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph (b) or (c) above, the principal under this Note and
all such interest shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower. In addition to the remedies set forth above, MI
may exercise any remedies provided by applicable law.
3. Prepayment. Borrower may prepay, without premium or penalty, all or any
portion of the outstanding principal amount of this Note together with accrued
and unpaid interest to such date of prepayment on such amount so prepaid.
4. Waiver. No failure or delay on the part of MI or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, MI or any holder shall operate as a
12
waiver thereof nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other exercise thereof or the exercise of any
other right, power, or privilege. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies which a
holder would otherwise have.
5. Amendment. This Note may not be amended except by an agreement in
writing signed by Xxxxxxxx and MI or the holder hereof. 6. Notice. All notices
and other communications under this Agreement shall
be in writing and shall be deemed given when delivered personally or
mailed by certified mail, return receipt requested, to the parties (and shall
also be transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to MI, to:
Metallurg, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Attention: Xxxxx X. Xxxx
If to Borrower, to:
Xxxxxxx X. Xxxxx
000 Xxxxx Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
7. Submission to Jurisdiction. Borrower hereby irrevocably submits to the
jurisdiction of any New York State or federal court sitting in New York City,
and the undersigned hereby irrevocably agrees that any action may be heard and
determined in such New York State court or in such federal court. Borrower
hereby irrevocably waives, to the fullest extent he may effectively do so, the
defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 6. Borrower may also be
served in any other manner permitted by law, in which event Xxxxxxxx's time to
respond shall be the time provided by law.
8. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
2
13
IN WITNESS WHEREOF, Xxxxxxxx has caused this Promissory Note to be duly
executed as of the date first above written.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxx
3
14
NOTE
US $26,997.08 April 15, 1998
Subject to the terms and conditions of this Note (this "Note"), Xxxxx X.
Xxxxxxxx ("Borrower"), for value received, the receipt and sufficiency of which
is hereby acknowledged, hereby promises to pay to the order of Metallurg, Inc.,
a Delaware corporation, or its successors or assigns ("MI"), in lawful money of
the United States of America in immediately available funds, the principal sum
of Twenty Six Thousand Nine Hundred Ninety Seven Dollars and eight cents
($26,997.08) payable together with accrued interest thereon on April 14, 2001
(the "Maturity Date").
1. Interest. From the date hereof through the Maturity Date and until the
Note is paid in full, this Note shall accrue interest on the unpaid principal
amount of this Note at a rate equal to 5.7% per annum compounded annually. All
interest shall be calculated on the basis of a three hundred sixty five or six
(365/6) day year and the actual number of days elapsed (including the first day
but excluding the last day) in the period for which interest is payable and
shall be payable in cash.
2. Events of Default. This Note and all accrued and unpaid interest hereon
shall become immediately due and payable if any one or more of the following
events, hereinafter called "Events of Default," shall occur and be continuing:
(a) there is a default in the payment of the principal of, or interest on,
this Note when the same becomes due and payable, at maturity or otherwise;
(b) Borrower shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its assets, (ii) make a general assignment
for the benefit of creditors, (iv) file a voluntary petition in bankruptcy or
(v) be adjudicated a bankrupt or insolvent, or (y) an order for relief under any
relevant bankruptcy code shall have been entered in respect of Borrower; or
(c) without the application, approval or consent of Borrower, a case or
proceeding shall be instituted, in any court of competent jurisdiction, seeking
in respect of Borrower reorganization, dissolution, winding up or liquidation, a
composition or arrangement with creditors, the appointment of a trustee,
receiver, custodian, liquidator or the like of Borrower or of all or a
substantial part of the assets of Borrower, the issuance or levying of any writ,
judgment, warrant of attachment, execution or similar process against all or a
substantial part of the assets or business of Borrower; and, the same shall
continue undismissed, or unstayed and in effect, for any period of sixty (60)
consecutive days.
If there shall occur and be continuing an Event of Default, MI may, by
notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph (b) or (c) above, the principal under this Note and
all such interest shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower. In addition to the remedies set forth above, MI
may exercise any remedies provided by applicable law.
3. Prepayment. Borrower may prepay, without premium or penalty, all or any
portion of the outstanding principal amount of this Note together with accrued
and unpaid interest to such date of prepayment on such amount so prepaid.
15
4. Waiver. No failure or delay on the part of MI or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, MI or any holder shall operate as a waiver thereof nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which a holder would otherwise have.
5. Amendment. This Note may not be amended except by an agreement in
writing signed by Xxxxxxxx and MI or the holder hereof.
6. Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally or
mailed by certified mail, return receipt requested, to the parties (and shall
also be transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to MI, to:
Metallurg, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Attention: Xxxxx X. Xxxx
If to Borrower, to:
Xxxxx X. Xxxxxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
7. Submission to Jurisdiction. Borrower hereby irrevocably submits to the
jurisdiction of any New York State or federal court sitting in New York City,
and the undersigned hereby irrevocably agrees that any action may be heard and
determined in such New York State court or in such federal court. Borrower
hereby irrevocably waives, to the fullest extent he may effectively do so, the
defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 6. Borrower may also be
served in any other manner permitted by law, in which event Xxxxxxxx's time to
respond shall be the time provided by law.
8. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
2
16
IN WITNESS WHEREOF, Xxxxxxxx has caused this Promissory Note to be duly
executed as of the date first above written.
/s/ Xxxxx X. Xxxxxxxx
---------------------------
Xxxxx X. Xxxxxxxx
3
17
NOTE
US $50,137.43 April 15, 1998
Subject to the terms and conditions of this Note (this "Note"), Xxxxx X.
Xxxx ("Borrower"), for value received, the receipt and sufficiency of which is
hereby acknowledged, hereby promises to pay to the order of Metallurg, Inc., a
Delaware corporation, or its successors or assigns ("MI"), in lawful money of
the United States of America in immediately available funds, the principal sum
of Fifty Thousand One Hundred Thirty Seven Dollars and forty three cents
($50,137.43) payable together with accrued interest thereon on April 14, 2001
(the "Maturity Date").
1. Interest. From the date hereof through the Maturity Date and until the
Note is paid in full, this Note shall accrue interest on the unpaid principal
amount of this Note at a rate equal to 5.7% per annum compounded annually. All
interest shall be calculated on the basis of a three hundred sixty five or six
(365/6) day year and the actual number of days elapsed (including the first day
but excluding the last day) in the period for which interest is payable and
shall be payable in cash.
2. Events of Default. This Note and all accrued and unpaid interest hereon
shall become immediately due and payable if any one or more of the following
events, hereinafter called "Events of Default," shall occur and be continuing:
(a) there is a default in the payment of the principal of, or interest on,
this Note when the same becomes due and payable, at maturity or otherwise;
(b) Borrower shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its assets, (ii) make a general assignment
for the benefit of creditors, (iv) file a voluntary petition in bankruptcy or
(v) be adjudicated a bankrupt or insolvent, or (y) an order for relief under any
relevant bankruptcy code shall have been entered in respect of Borrower; or
(c) without the application, approval or consent of Borrower, a case or
proceeding shall be instituted, in any court of competent jurisdiction, seeking
in respect of Borrower reorganization, dissolution, winding up or liquidation, a
composition or arrangement with creditors, the appointment of a trustee,
receiver, custodian, liquidator or the like of Borrower or of all or a
substantial part of the assets of Borrower, the issuance or levying of any writ,
judgment, warrant of attachment, execution or similar process against all or a
substantial part of the assets or business of Borrower; and, the same shall
continue undismissed, or unstayed and in effect, for any period of sixty (60)
consecutive days.
If there shall occur and be continuing an Event of Default, MI may, by
notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph (b) or (c) above, the principal under this Note and
all such interest shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower. In addition to the remedies set forth above, MI
may exercise any remedies provided by applicable law.
3. Prepayment. Borrower may prepay, without premium or penalty, all or any
portion of the outstanding principal amount of this Note together with accrued
and unpaid interest to such date of prepayment on such amount so prepaid.
18
4. Waiver. No failure or delay on the part of MI or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, MI or any holder shall operate as a waiver thereof nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which a holder would otherwise have.
5. Amendment. This Note may not be amended except by an agreement in
writing signed by Xxxxxxxx and MI or the holder hereof.
6. Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally or
mailed by certified mail, return receipt requested, to the parties (and shall
also be transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to MI, to:
Metallurg, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Attention: Xxxxx X. Xxxx
If to Borrower, to:
Xxxxx X. Xxxx
0 Xxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
7. Submission to Jurisdiction. Borrower hereby irrevocably submits to the
jurisdiction of any New York State or federal court sitting in New York City,
and the undersigned hereby irrevocably agrees that any action may be heard and
determined in such New York State court or in such federal court. Borrower
hereby irrevocably waives, to the fullest extent he may effectively do so, the
defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 6. Borrower may also be
served in any other manner permitted by law, in which event Xxxxxxxx's time to
respond shall be the time provided by law.
8. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
2
19
IN WITNESS WHEREOF, Xxxxxxxx has caused this Promissory Note to be duly
executed as of the date first above written.
/s/ Xxxxx X. Xxxx
-----------------------------
Xxxxx X. Xxxx
3
20
NOTE
US $38,567.25 April 15, 1998
Subject to the terms and conditions of this Note (this "Note"), X. Xxxxxxx
Xxxx ("Borrower"), for value received, the receipt and sufficiency of which is
hereby acknowledged, hereby promises to pay to the order of Metallurg, Inc., a
Delaware corporation, or its successors or assigns ("MI"), in lawful money of
the United States of America in immediately available funds, the principal sum
of Thirty Eight Thousand Five Hundred Sixty Seven Dollars and twenty five cents
($38,567.25) payable together with accrued interest thereon on April 14, 2001
(the "Maturity Date").
1. Interest. From the date hereof through the Maturity Date and until the
Note is paid in full, this Note shall accrue interest on the unpaid principal
amount of this Note at a rate equal to 5.7% per annum compounded annually. All
interest shall be calculated on the basis of a three hundred sixty five or six
(365/6) day year and the actual number of days elapsed (including the first day
but excluding the last day) in the period for which interest is payable and
shall be payable in cash.
2. Events of Default. This Note and all accrued and unpaid interest hereon
shall become immediately due and payable if any one or more of the following
events, hereinafter called "Events of Default," shall occur and be continuing:
(a) there is a default in the payment of the principal of, or interest on,
this Note when the same becomes due and payable, at maturity or otherwise;
(b) Borrower shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its assets, (ii) make a general assignment
for the benefit of creditors, (iv) file a voluntary petition in bankruptcy or
(v) be adjudicated a bankrupt or insolvent, or (y) an order for relief under any
relevant bankruptcy code shall have been entered in respect of Borrower; or
(c) without the application, approval or consent of Borrower, a case or
proceeding shall be instituted, in any court of competent jurisdiction, seeking
in respect of Borrower reorganization, dissolution, winding up or liquidation, a
composition or arrangement with creditors, the appointment of a trustee,
receiver, custodian, liquidator or the like of Borrower or of all or a
substantial part of the assets of Borrower, the issuance or levying of any writ,
judgment, warrant of attachment, execution or similar process against all or a
substantial part of the assets or business of Borrower; and, the same shall
continue undismissed, or unstayed and in effect, for any period of sixty (60)
consecutive days.
If there shall occur and be continuing an Event of Default, MI may, by
notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph (b) or (c) above, the principal under this Note and
all such interest shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower. In addition to the remedies set forth above, MI
may exercise any remedies provided by applicable law.
3. Prepayment. Borrower may prepay, without premium or penalty, all or any
portion of the outstanding principal amount of this Note together with accrued
and unpaid interest to such date of prepayment on such amount so prepaid.
21
4. Waiver. No failure or delay on the part of MI or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, MI or any holder shall operate as a waiver thereof nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which a holder would otherwise have.
5. Amendment. This Note may not be amended except by an agreement in
writing signed by Xxxxxxxx and MI or the holder hereof.
6. Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally or
mailed by certified mail, return receipt requested, to the parties (and shall
also be transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to MI, to:
Metallurg, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Attention: Xxxxx X. Xxxx
If to Borrower, to:
X. Xxxxxxx Xxxx
00 Xxxxxx Xxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
7. Submission to Jurisdiction. Borrower hereby irrevocably submits to the
jurisdiction of any New York State or federal court sitting in New York City,
and the undersigned hereby irrevocably agrees that any action may be heard and
determined in such New York State court or in such federal court. Borrower
hereby irrevocably waives, to the fullest extent he may effectively do so, the
defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 6. Borrower may also be
served in any other manner permitted by law, in which event Xxxxxxxx's time to
respond shall be the time provided by law.
8. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
2
22
IN WITNESS WHEREOF, Xxxxxxxx has caused this Promissory Note to be duly
executed as of the date first above written.
/s/ X. Xxxxxxx Xxxx
-------------------------
X. Xxxxxxx Xxxx
3
23
NOTE
US $42,423.98 April 15, 1998
Subject to the terms and conditions of this Note (this "Note"), Xxxxxxx X.
Xxxxx ("Borrower"), for value received, the receipt and sufficiency of which is
hereby acknowledged, hereby promises to pay to the order of Metallurg, Inc., a
Delaware corporation, or its successors or assigns ("MI"), in lawful money of
the United States of America in immediately available funds, the principal sum
of Forty Two Thousand Four Hundred Twenty Three Dollars and ninety eight cents
($42,423.98) payable together with accrued interest thereon on April 14, 2001
(the "Maturity Date").
1. Interest. From the date hereof through the Maturity Date and until the
Note is paid in full, this Note shall accrue interest on the unpaid principal
amount of this Note at a rate equal to 5.7% per annum compounded annually. All
interest shall be calculated on the basis of a three hundred sixty five or six
(365/6) day year and the actual number of days elapsed (including the first day
but excluding the last day) in the period for which interest is payable and
shall be payable in cash.
2. Events of Default. This Note and all accrued and unpaid interest hereon
shall become immediately due and payable if any one or more of the following
events, hereinafter called "Events of Default," shall occur and be continuing:
(a) there is a default in the payment of the principal of, or interest on,
this Note when the same becomes due and payable, at maturity or otherwise;
(b) Borrower shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its assets, (ii) make a general assignment
for the benefit of creditors, (iv) file a voluntary petition in bankruptcy or
(v) be adjudicated a bankrupt or insolvent, or (y) an order for relief under any
relevant bankruptcy code shall have been entered in respect of Borrower; or
(c) without the application, approval or consent of Borrower, a case or
proceeding shall be instituted, in any court of competent jurisdiction, seeking
in respect of Borrower reorganization, dissolution, winding up or liquidation, a
composition or arrangement with creditors, the appointment of a trustee,
receiver, custodian, liquidator or the like of Borrower or of all or a
substantial part of the assets of Borrower, the issuance or levying of any writ,
judgment, warrant of attachment, execution or similar process against all or a
substantial part of the assets or business of Borrower; and, the same shall
continue undismissed, or unstayed and in effect, for any period of sixty (60)
consecutive days.
If there shall occur and be continuing an Event of Default, MI may, by
notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph (b) or (c) above, the principal under this Note and
all such interest shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower. In addition to the remedies set forth above, MI
may exercise any remedies provided by applicable law.
3. Prepayment. Borrower may prepay, without premium or penalty, all or any
portion of the outstanding principal amount of this Note together with accrued
and unpaid interest to such date of prepayment on such amount so prepaid.
24
4. Waiver. No failure or delay on the part of MI or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, MI or any holder shall operate as a waiver thereof nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which a holder would otherwise have.
5. Amendment. This Note may not be amended except by an agreement in
writing signed by Xxxxxxxx and MI or the holder hereof.
6. Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally or
mailed by certified mail, return receipt requested, to the parties (and shall
also be transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to MI, to:
Metallurg, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Attention: Xxxxx X. Xxxx
If to Borrower, to:
Xxxxxxx X. Xxxxx
000 Xxxxx Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
7. Submission to Jurisdiction. Borrower hereby irrevocably submits to the
jurisdiction of any New York State or federal court sitting in New York City,
and the undersigned hereby irrevocably agrees that any action may be heard and
determined in such New York State court or in such federal court. Borrower
hereby irrevocably waives, to the fullest extent he may effectively do so, the
defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 6. Borrower may also be
served in any other manner permitted by law, in which event Xxxxxxxx's time to
respond shall be the time provided by law.
8. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
2
25
IN WITNESS WHEREOF, Xxxxxxxx has caused this Promissory Note to be duly
executed as of the date first above written.
/s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx
3
26
NOTE
US $96,075.00 July 13, 1998
Subject to the terms and conditions of this Note (this "Note"), Xxxxx X.
Xxxxxxxx ("Borrower"), for value received, the receipt and sufficiency of which
is hereby acknowledged, hereby promises to pay to the order of Metallurg, Inc.,
a Delaware corporation, or its successors or assigns ("MI") in lawful money of
the United States of America in immediately available funds, the principal sum
of Ninety Six Thousand Seventy Five dollars ($96,075.00) payable together with
accrued interest thereon on July 12, 2001 (the "Maturity Date").
1. Interest. From the date hereof through the Maturity Date and until the
Note is paid in full, this Note shall accrue interest on the unpaid principal
amount of this Note at a rate equal to 5.68% per annum compounded annually. All
interest shall be calculated on the basis of a three hundred sixty five or six
(365/6) day year and the actual number of days elapsed (including the first day
but excluding the last day) in the period for which interest is payable and
shall be payable in cash.
2. Events of Default. This Note and all accrued and unpaid interest hereon
shall become immediately due and payable if any one or more of the following
events, hereinafter called "Events of Default", shall occur and be continuing:
(a) there is a default in the payment of the principal of, or
interest on, this Note when the same becomes due and payable, at maturity or
otherwise;
(b) Borrower shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its assets, (ii) make a general
assignment for the benefit of creditors, (iv) file a voluntary petition in
bankruptcy or (v) be adjudicated a bankrupt or insolvent, or (y) an order for
relief under any relevant bankruptcy code shall have been entered in respect of
Borrower; or
(c) without the application, approval or consent of Borrower, a case
or proceeding shall be instituted, in any court of competent jurisdiction,
seeking in respect of Borrower reorganization, dissolution, winding up or
liquidation, a composition or arrangement with creditors, the appointment of a
trustee, receiver, custodian, liquidator or the like of Borrower or of all or a
substantial part of the assets of Borrower, the issuance or levying of any writ,
judgment, warrant of attachment, execution or similar process against all or a
substantial part of the assets or business of Borrower; and, the same shall
continue undismissed, or unstayed and in effect, for any period of sixty (60)
consecutive days.
If there shall occur and be continuing an Event of Default, MI may, by
notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph (b) or (c) above, the principal under this Note and
all such interest shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower. In addition to the remedies set forth above, MI
may exercise any remedies provided by applicable law.
27
3. Prepayment. Borrower may prepay, without premium or penalty, all or any
portion of the outstanding principal amount of this Note together with accrued
and unpaid interest to such date of prepayment on such amount so prepaid.
4. Waiver. No failure or delay on the part of MI or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, MI or any holder shall operate as a waiver thereof nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which a holder would otherwise have.
5. Amendment. This Note may not be amended except by an agreement in
writing signed by Xxxxxxxx and MI or the holder hereof.
6. Notice. All notices and other communications under this Agreement shall
be in writing and shall be deemed given when delivered personally or mailed by
certified mail, return receipt requested, to the parties (and shall also be
transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to MI, to:
Metallurg, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Attention: Xxxxx X. Xxxx
If to Borrower, to:
Xxxxx X. Xxxxxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
7. Submission to Jurisdiction. Borrower hereby irrevocably submits to the
jurisdiction of any New York State or federal court sitting in New York City,
and the undersigned hereby irrevocably agrees that any action may be heard and
determined in such New York State court or in such federal court. Borrower
hereby irrevocably waives, to the fullest extent he may effectively do so, the
defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 6. Borrower may also be
served in any other manner permitted by law, in which event Xxxxxxxx's time to
respond shall be the time provided by law.
8. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
2
28
IN WITNESS WHEREOF, Xxxxxxxx has caused this Promissory Note to be duly
executed as of the date first above written.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx
3
29
NOTE
US $178,425.00 July 13, 1998
Subject to the terms and conditions of this Note (this "Note"), Xxxxx X.
Xxxx ("Borrower"), for value received, the receipt and sufficiency of which is
hereby acknowledged, hereby promises to pay to the order of Metallurg, Inc., a
Delaware corporation, or its successors or assigns ("MI") in lawful money of the
United States of America in immediately available funds, the principal sum of
One Hundred Seventy Eight Thousand Four Hundred Twenty Five dollars
($178,425.00) payable together with accrued interest thereon on July 12, 2001
(the "Maturity Date").
1. Interest. From the date hereof through the Maturity Date and until the
Note is paid in full, this Note shall accrue interest on the unpaid principal
amount of this Note at a rate equal to 5.68% per annum compounded annually. All
interest shall be calculated on the basis of a three hundred sixty five or six
(365/6) day year and the actual number of days elapsed (including the first day
but excluding the last day) in the period for which interest is payable and
shall be payable in cash.
2. Events of Default. This Note and all accrued and unpaid interest hereon
shall become immediately due and payable if any one or more of the following
events, hereinafter called "Events of Default", shall occur and be continuing:
(a) there is a default in the payment of the principal of, or
interest on, this Note when the same becomes due and payable, at maturity or
otherwise;
(b) Borrower shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its assets, (ii) make a general
assignment for the benefit of creditors, (iv) file a voluntary petition in
bankruptcy or (v) be adjudicated a bankrupt or insolvent, or (y) an order for
relief under any relevant bankruptcy code shall have been entered in respect of
Borrower; or
(c) without the application, approval or consent of Borrower, a case
or proceeding shall be instituted, in any court of competent jurisdiction,
seeking in respect of Borrower reorganization, dissolution, winding up or
liquidation, a composition or arrangement with creditors, the appointment of a
trustee, receiver, custodian, liquidator or the like of Borrower or of all or a
substantial part of the assets of Borrower, the issuance or levying of any writ,
judgment, warrant of attachment, execution or similar process against all or a
substantial part of the assets or business of Borrower; and, the same shall
continue undismissed, or unstayed and in effect, for any period of sixty (60)
consecutive days.
If there shall occur and be continuing an Event of Default, MI may, by
notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph (b) or (c) above, the principal under this Note and
all such interest shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower. In addition to the remedies set forth above, MI
may exercise any remedies provided by applicable law.
30
3. Prepayment. Borrower may prepay, without premium or penalty, all or any
portion of the outstanding principal amount of this Note together with accrued
and unpaid interest to such date of prepayment on such amount so prepaid.
4. Waiver. No failure or delay on the part of MI or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, MI or any holder shall operate as a waiver thereof nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which a holder would otherwise have.
5. Amendment. This Note may not be amended except by an agreement in
writing signed by Xxxxxxxx and MI or the holder hereof.
6. Notice. All notices and other communications under this Agreement shall
be in writing and shall be deemed given when delivered personally or mailed by
certified mail, return receipt requested, to the parties (and shall also be
transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to MI, to:
Metallurg, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Attention: Xxxxx X. Xxxx
If to Borrower, to:
Xxxxx X. Xxxx
0 Xxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
7. Submission to Jurisdiction. Borrower hereby irrevocably submits to the
jurisdiction of any New York State or federal court sitting in New York City,
and the undersigned hereby irrevocably agrees that any action may be heard and
determined in such New York State court or in such federal court. Borrower
hereby irrevocably waives, to the fullest extent he may effectively do so, the
defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 6. Borrower may also be
served in any other manner permitted by law, in which event Xxxxxxxx's time to
respond shall be the time provided by law.
8. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
2
31
IN WITNESS WHEREOF, Xxxxxxxx has caused this Promissory Note to be duly
executed as of the date first above written.
By: /s/ Xxxxx X. Xxxx
---------------------------
Xxxxx X. Xxxx
3
32
NOTE
US $137,250.00 July 13, 1998
Subject to the terms and conditions of this Note (this "Note"), X. Xxxxxxx
Xxxx ("Borrower"), for value received, the receipt and sufficiency of which is
hereby acknowledged, hereby promises to pay to the order of Metallurg, Inc., a
Delaware corporation, or its successors or assigns ("MI"), in lawful money of
the United States of America in immediately available funds, the principal sum
of One Hundred Thirty Seven Thousand Two Hundred Fifty dollars ($137,250.00)
payable together with accrued interest thereon on July 12, 2001 (the "Maturity
Date").
1. Interest. From the date hereof through the Maturity Date and until the
Note is paid in full, this Note shall accrue interest on the unpaid principal
amount of this Note at a rate equal to 5.68% per annum compounded annually. All
interest shall be calculated on the basis of a three hundred sixty five or six
(365/6) day year and the actual number of days elapsed (including the first day
but excluding the last day) in the period for which interest is payable and
shall be payable in cash.
2. Events of Default. This Note and all accrued and unpaid interest hereon
shall become immediately due and payable if any one or more of the following
events, hereinafter called "Events of Default", shall occur and be continuing:
(a) there is a default in the payment of the principal of, or
interest on, this Note when the same becomes due and payable, at maturity or
otherwise;
(b) Borrower shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its assets, (ii) make a general
assignment for the benefit of creditors, (iv) file a voluntary petition in
bankruptcy or (v) be adjudicated a bankrupt or insolvent, or (y) an order for
relief under any relevant bankruptcy code shall have been entered in respect of
Borrower; or
(c) without the application, approval or consent of Borrower, a case
or proceeding shall be instituted, in any court of competent jurisdiction,
seeking in respect of Borrower reorganization, dissolution, winding up or
liquidation, a composition or arrangement with creditors, the appointment of a
trustee, receiver, custodian, liquidator or the like of Borrower or of all or a
substantial part of the assets of Borrower, the issuance or levying of any writ,
judgment, warrant of attachment, execution or similar process against all or a
substantial part of the assets or business of Borrower; and, the same shall
continue undismissed, or unstayed and in effect, for any period of sixty (60)
consecutive days.
If there shall occur and be continuing an Event of Default, MI may, by
notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph (b) or (c) above, the principal under this Note and
all such interest shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower. In addition to the remedies set forth above, MI
may exercise any remedies provided by applicable law.
33
3. Prepayment. Borrower may prepay, without premium or penalty, all or any
portion of the outstanding principal amount of this Note together with accrued
and unpaid interest to such date of prepayment on such amount so prepaid.
4. Waiver. No failure or delay on the part of MI or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, MI or any holder shall operate as a waiver thereof nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which a holder would otherwise have.
5. Amendment. This Note may not be amended except by an agreement in
writing signed by Xxxxxxxx and MI or the holder hereof.
6. Notice. All notices and other communications under this Agreement shall
be in writing and shall be deemed given when delivered personally or mailed by
certified mail, return receipt requested, to the parties (and shall also be
transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to MI, to:
Metallurg, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Attention: Xxxxx X. Xxxx
If to Borrower, to:
X. Xxxxxxx Xxxx
00 Xxxxxx Xxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
7. Submission to Jurisdiction. Borrower hereby irrevocably submits to the
jurisdiction of any New York State or federal court sitting in New York City,
and the undersigned hereby irrevocably agrees that any action may be heard and
determined in such New York State court or in such federal court. Borrower
hereby irrevocably waives, to the fullest extent he may effectively do so, the
defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 6. Borrower may also be
served in any other manner permitted by law, in which event Xxxxxxxx's time to
respond shall be the time provided by law.
8. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
2
34
IN WITNESS WHEREOF, Xxxxxxxx has caused this Promissory Note to be duly
executed as of the date first above written.
By: /s/ X. Xxxxxxx Xxxx
---------------------------
X. Xxxxxxx Xxxx
3
35
NOTE
US $150,975.00 July 13, 1998
Subject to the terms and conditions of this Note (this "Note"), Xxxxxxx X.
Xxxxx ("Borrower"), for value received, the receipt and sufficiency of which is
hereby acknowledged, hereby promises to pay to the order of Metallurg, Inc., a
Delaware corporation, or its successors or assigns ("MI") in lawful money of the
United States of America in immediately available funds, the principal sum of
One Hundred Fifty Thousand Nine Hundred Seventy Five dollars ($150,975.00)
payable together with accrued interest thereon on July 12, 2001 (the "Maturity
Date").
1. Interest. From the date hereof through the Maturity Date and until the
Note is paid in full, this Note shall accrue interest on the unpaid principal
amount of this Note at a rate equal to 5.68% per annum compounded annually. All
interest shall be calculated on the basis of a three hundred sixty five or six
(365/6) day year and the actual number of days elapsed (including the first day
but excluding the last day) in the period for which interest is payable and
shall be payable in cash.
2. Events of Default. This Note and all accrued and unpaid interest hereon
shall become immediately due and payable if any one or more of the following
events, hereinafter called "Events of Default", shall occur and be continuing:
(a) there is a default in the payment of the principal of, or
interest on, this Note when the same becomes due and payable, at maturity or
otherwise;
(b) Borrower shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its assets, (ii) make a general
assignment for the benefit of creditors, (iv) file a voluntary petition in
bankruptcy or (v) be adjudicated a bankrupt or insolvent, or (y) an order for
relief under any relevant bankruptcy code shall have been entered in respect of
Borrower; or
(c) without the application, approval or consent of Borrower, a case
or proceeding shall be instituted, in any court of competent jurisdiction,
seeking in respect of Borrower reorganization, dissolution, winding up or
liquidation, a composition or arrangement with creditors, the appointment of a
trustee, receiver, custodian, liquidator or the like of Borrower or of all or a
substantial part of the assets of Borrower, the issuance or levying of any writ,
judgment, warrant of attachment, execution or similar process against all or a
substantial part of the assets or business of Borrower; and, the same shall
continue undismissed, or unstayed and in effect, for any period of sixty (60)
consecutive days.
If there shall occur and be continuing an Event of Default, MI may, by
notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph (b) or (c) above, the principal under this Note and
all such interest shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower. In addition to the remedies set forth above, MI
may exercise any remedies provided by applicable law.
36
3. Prepayment. Borrower may prepay, without premium or penalty, all or any
portion of the outstanding principal amount of this Note together with accrued
and unpaid interest to such date of prepayment on such amount so prepaid.
4. Waiver. No failure or delay on the part of MI or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, MI or any holder shall operate as a waiver thereof nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which a holder would otherwise have.
5. Amendment. This Note may not be amended except by an agreement in
writing signed by Xxxxxxxx and MI or the holder hereof.
6. Notice. All notices and other communications under this Agreement shall
be in writing and shall be deemed given when delivered personally or mailed by
certified mail, return receipt requested, to the parties (and shall also be
transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to MI, to:
Metallurg, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Attention: Xxxxx X. Xxxx
If to Borrower, to:
Xxxxxxx X. Xxxxx
000 Xxxxx Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
7. Submission to Jurisdiction. Borrower hereby irrevocably submits to the
jurisdiction of any New York State or federal court sitting in New York City,
and the undersigned hereby irrevocably agrees that any action may be heard and
determined in such New York State court or in such federal court. Borrower
hereby irrevocably waives, to the fullest extent he may effectively do so, the
defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 6. Borrower may also be
served in any other manner permitted by law, in which event Xxxxxxxx's time to
respond shall be the time provided by law.
8. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
2
37
IN WITNESS WHEREOF, Xxxxxxxx has caused this Promissory Note to be duly
executed as of the date first above written.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
3
38
NOTE
US $320,250.00 April 15, 1997
Subject to the terms and conditions of this Note (this "Note"), Xxxxxxx X.
Xxxxxxx ("Borrower"), for value received, the receipt and sufficiency of which
is hereby acknowledged, hereby promises to pay to the order of Metallurg, Inc.,
a Delaware corporation, or its successors or assigns ("MI"), in lawful money of
the United States of America in immediately available funds, the principal sum
of Three Hundred Twenty Thousand Two Hundred Fifty Dollars ($320,250.00) payable
with accrued interest thereon on the business day prior to the third anniversary
of the date hereof (the "Maturity Date").
1. Interest. From the date hereof through the Maturity Date and until the
Note is paid in full, this Note shall accrue interest on the unpaid principal
amount of this Note at a rate equal to 5.91% per annum compounded annually. All
interest shall be calculated on the basis of a three hundred sixty five or six
(365/6) day year and the actual number of days elapsed (including the first day
but excluding the last day) in the period for which interest is payable and
shall be payable in cash.
2. Events of Default. This Note and all accrued and unpaid interest hereon
shall become immediately due and payable if any one or more of the following
events, hereinafter called "Events of Default," shall occur and be continuing:
(a) there is a default in the payment of the principal of, or interest on,
this Note when the same becomes due and payable, at maturity or otherwise;
(b) Borrower shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its assets, (ii) make a general assignment
for the benefit of creditors, (iv) file a voluntary petition in bankruptcy or
(v) be adjudicated a bankrupt or insolvent, or (y) an order for relief under any
relevant bankruptcy code shall have been entered in respect of Borrower; or
(c) without the application, approval or consent of Borrower, a case or
proceeding shall be instituted, in any court of competent jurisdiction, seeking
in respect of Borrower reorganization, dissolution, winding up or liquidation, a
composition or arrangement with creditors, the appointment of a trustee,
receiver, custodian, liquidator or the like of Borrower or of all or a
substantial part of the assets of Borrower, the issuance or levying of any writ,
judgment, warrant of attachment, execution or similar process against all or a
substantial part of the assets or business of Borrower; and, the same shall
continue undismissed, or unstayed and in effect, for any period of sixty (60)
consecutive days.
If there shall occur and be continuing an Event of Default, MI may, by
notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph (b) or (c) above, the principal under this Note and
all such interest shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by Borrower. In addition to the remedies set forth above, MI
may exercise any remedies provided by applicable law.
3. Prepayment. Borrower may prepay, without premium or penalty, all or any
portion of the outstanding principal amount of this Note together with accrued
and unpaid interest to such date of prepayment on such amount so prepaid.
4. Waiver. No failure or delay on the part of MI or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, MI or any holder shall operate as a
39
waiver thereof nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other exercise thereof or the exercise of any
other right, power, or privilege. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies which a
holder would otherwise have.
5. Amendment. This Note may not be amended except by an agreement in
writing signed by Xxxxxxxx and MI or the holder hereof.
6. Notice. All notices and other communications under this Agreement shall
be in writing and shall be deemed given when delivered personally or mailed by
certified mail, return receipt requested, to the parties (and shall also be
transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to MI, to:
Metallurg, Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A.
Attention: Xxxxx X. Xxxx
If to Borrower, to:
Xxxxxxx X. Xxxxxxx
00 Xxxxxxx Xxxxx Xxxxxx
Xxx, Xxx Xxxx 00000-0000
7. Submission to Jurisdiction. Borrower hereby irrevocably submits to the
jurisdiction of any New York State or federal court sitting in New York City,
and the undersigned hereby irrevocably agrees that any action may be heard and
determined in such New York State court or in such federal court. Borrower
hereby irrevocably waives, to the fullest extent he may effectively do so, the
defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 6. Borrower may also be
served in any other manner permitted by law, in which event Xxxxxxxx's time to
respond shall be the time provided by law.
8. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
2
40
IN WITNESS WHEREOF, Xxxxxxxx has caused this Promissory Note to be duly
executed as of the date first above written.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx
3
