TERM LOAN NOTE
Exhibit
10.14.7
TERM
LOAN NOTE
| $8,000,000 |
Loan Number
10004868054
|
November 12, 2008
FOR VALUE RECEIVED, and
intending to be legally bound hereby, XXXXX ECOLOGY OIL SALVAGE, INC.,
a New Jersey corporation with a principal office at 0000 Xxxxx Xxxx Xx.,
Xxxxxxxx, XX 00000, MIDATLANTIC
RECYCLING TECHNOLOGIES, INC., a New Jersey corporation with a principal
office at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, XX 00000, and REZULTZ,
INCORPORATED, a New Jersey corporation with a principal office
at 0000 Xxxxx Xxxx Xx., Xxxxxxxx, XX 00000 (collectively hereinafter
“Borrower”), do hereby jointly, severally and unconditionally promise to pay,
without set-off or deduction except as may be permitted under any Hedging
Contract, to the order SUSQUEHANNA BANK, with an
office at Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxx Xxxxxx 00000 (hereinafter
“Bank”), at the times, at the place and in the manner provided in the Term Loan
Agreement the principal sum of EIGHT MILLION DOLLARS
($8,000,000.00) (the “Loan” or “Term Loan”) together with interest
thereon as provided herein and in the Term Loan Agreement. Reference
is made to the Term Loan Agreement for a statement of terms and conditions under
which the Loan is evidenced hereby and has been made.
This Term
Loan Note (“Note”) is the Term Loan Note referred to in, and is entitled to the
benefits of and subject to the terms and conditions of, the Term Loan Agreement
dated on or about the date hereof (as amended, restated or otherwise modified,
the “Loan Agreement”) by and among the Obligors party thereto and the
Bank. Terms capitalized but not defined herein shall have the
meanings given to them respectively in the Loan Agreement. The Loan
Agreement contains, among other things, provisions for the time, place and
manner of payment of this Note, the determination of the interest rate borne by
and fees payable in respect of this Note, acceleration of the payment of this
Note upon the happening of certain stated events and the mandatory repayment of
this Note under certain circumstances. The terms of the Loan
Agreement are incorporated herein by reference.
Principal and Interest
Repayment Terms. Commencing
on the fifteenth (15th)
calendar day of the month beginning December 15, 2008, subject to
adjustment in accordance with the Following Business Day Convention (as defined
below), and continuing
on the payment days provided in the Principal Payment Schedule (the “Schedule”) to be
delivered by Lender after the Closing Date and
attached by Lender to this Note as Schedule A, Borrower shall
make consecutive monthly installments of principal plus accrued interest at the
rate provided below in the amounts set forth in the Schedule. Unless
sooner paid, the entire amount of the unpaid Principal Amount as well as all
accrued and unpaid interest and all other sums due under this Note that remain
unpaid shall be repaid in full on the Maturity Date. Xxxxxx agrees to
provide Borrower with the Schedule upon Xxxxxxxx’s request but any failure by
Xxxxxx to do so prior to the first payment being due during the Repayment Period
shall not relieve Borrower of its obligations to make such payment due hereunder
or create any liability of Lender to Borrower. Unless otherwise
defined in a Hedging Confirmation (as defined below), (a) “Following Business
Day Convention” means the convention for adjusting any relevant date that would
otherwise fall on a day that is not a Business Day so that the date will be the
first following day that is a Business Day and (b) “Business Day” means a day on
which commercial banks and foreign exchange markets settle payments and are open
for general business (including dealings in foreign exchange and foreign
currency deposits) in New York and New Jersey.
Term Loan Maturity
Date. The
Loan shall mature on November
15, 2015, subject to adjustment in accordance with the Following Business
Day Convention (the "Maturity Date"), whereupon all Obligations under the Term
Loan shall be immediately due and payable in full.
Interest. The
interest rate will be a rate per annum equal to two hundred fifty (250) basis
points in excess of the Index, as hereinafter defined. For the
purposes hereof, the Index shall mean the one month London interbank offered
rate (LIBOR), unrounded, as published in the “Money Rates” section of The Wall
Street Journal (the “Index”). If The Wall Street Journal listing of
"Money Rates" is discontinued or substantially altered or the Index is no longer
published in The Wall Street Journal, Lender may, in its sole discretion, choose
another publication reporting the One Month LIBOR or may choose another index of
annual interest rates for non-consumer loans which is readily available and
verifiable beyond the control of Lender; in this event, the substitute index
will be considered the Index, although it may be necessary for Lender, in its
sole discretion, to adjust the margin to the substituted index in order to make
the interest rate comparable to the interest rate under the prior
Index. The rate of interest shall change on each Adjustment Date, as
hereinafter provided, and based on the Index published in The Wall Street
Journal on each Adjustment Date. For the purposes hereof, the
Adjustment Date shall mean the fifteenth day of each month beginning December
15, 2008. Interest shall be calculated on the basis of a year of
three hundred sixty (360) days applied to the actual days on which there exists
an unpaid balance under this Note (the “Contract Rate”); provided, however, that
(a) Borrower may enter into a Hedging Contract (as defined in the Loan
Agreement) with the Bank to provide a fixed rate of interest per annum to be
payable by Borrower for the duration of the Hedging Contract, (b) interest rates
derived from the Hedging Contracts are subject to market conditions at the time
the rate is locked and (c) notwithstanding anything in this Note or the Loan
Agreement to the contrary, if a Transaction (as defined in the Hedging Contract)
is entered into by one or more Borrowers to hedge all or a portion of the Term
Loan, then for so long as such Transaction is outstanding under the Hedging
Contract: (i) “Index” shall mean the “Floating Rate Option” set forth in the
Confirmation (as defined in the Hedging Contract) evidencing such Transaction
(the “Hedging Confirmation”) and the manner which such Index is calculated and
determined for purposes of this Note shall be in accordance with the provisions
applicable to such Transaction under the Hedging Contract, (ii) Adjustment Date
shall have the meaning given to “Reset Date” in the Hedging Confirmation and
(iii) for the sake of clarity, it is understood by the parties hereto that the
forgoing clauses (i) and (ii) are simply intended to match the floating rate
payable by the Borrower hereunder to the floating rate payable by the Bank under
the Hedging Confirmation, and should not be construed as providing a result
inconsistent with such intent of the parties, except in the case of the Default
Rate specified below.
Loan
Prepayments. The Borrower may prepay all or a portion of the
principal amount outstanding without penalty; provided, however, that the
Borrower may be required to pay to the Bank a settlement payment in respect of
any Hedging Obligations that may be required pursuant to the provisions of the
Hedging Contract to terminate an outstanding Transaction under the Hedging
Contract. No prepayment shall affect the Borrower's obligation to
continue to pay monthly installments required hereunder until the entire
indebtedness evidenced by the Note has been paid in full.
Default Rate of Interest:
Late Charges. Upon
an Event of Default and during the continuance thereof, interest shall accrue on
the Obligations, as defined in the Loan Agreement at an annual rate at all times
equal to the Contract Rate in this Note plus three percent (3.0%) but not more
than the maximum rate allowed by law (the "Default Rate") and shall continue to
accrue until such time the Obligations are paid in full, including, but not
limited to, the period of time after the entry of any judgment against the
Borrower. The Default Rate shall continue to apply whether or not
judgment shall be entered on this Note. Accrued interest shall be
payable in accordance with the terms of the Loan Agreement.
If any
payment (including without limitation any regularly scheduled payment or any
payment following demand) is not paid within ten (10) days after it is due, the
Borrower will pay a late charge (the “Late Charge”) as specified below,
regardless of whether the payment due consists of principal and interest,
principal only or interest only: the greater of (a) 5.0% of the unpaid portion
of the payment due, or (b) $25. The Late Charge shall be in addition
to any increase made to the Default Rate applicable to the outstanding balance
hereof as a result of the failure to pay following failure to make payments of
Obligations when due and payable, as well as in addition to any other applicable
fees, charges and costs.
The
Borrower agrees to pay on demand (i) all costs of collection, including
reasonable attorneys’ fees and expenses, if any part of this Note, principal or
interest, is collected with the aid of an attorney and (ii) interest on any
overdue principal of and, to the extent permitted by law, overdue interest on
the Loan from its due dates at a rate or rates determined as set forth in the
Loan Agreement.
All
amounts payable by the Borrower to the Bank hereunder shall be paid directly to
the Bank at its address set forth in the Loan Agreement in lawful money of the
United States of America and in same day immediately available
funds.
If this
Note is executed by more than one Borrower, the obligations of such persons or
entities hereunder will be joint and several. This Note shall bind
the Borrower and its heirs, executors, administrators, successors and assigns,
and the benefits hereof shall inure to the benefit of the Bank and its
successors and assigns; provided, however, that the Borrower may not assign this
Note in whole or in part without the Bank’s prior written consent and the Bank
at any time may assign this Note in whole or in part.
Upon the
occurrence and during the continuance of any Event Of Default, the Bank may and
is hereby authorized at any time and from time-to-time, subject at all times to
the provisions of Sections 2.5 and 6.14 of the Loan Agreement with respect to
the Bank’s waiver of its rights and remedies in all Revolver Collateral, without
notice to the Borrower (any such notice being expressly waived by the Borrower)
and to the fullest extent permitted by law, to set-off and apply any and all
deposit accounts (general or special, time or demand, provisional or final)
constituting Collateral and the Borrower hereby grants to the Bank a security
in, lien upon and rights at any time held and other indebtedness at any time
owing by the Bank to or for the credit or the account of the Borrower, credits,
securities, moneys or other property of the Borrower constituting Collateral
which may at any time be in the possession of, delivered to, or moved by the
Bank, including any proceeds of or returned or unearned premium of insurance and
all of the proceeds of the foregoing property constituting Collateral against
any and all Obligations of the Borrower now or hereafter existing under this
Note, irrespective of whether or not the Bank shall have made any demand under
this Note, and although such Obligations may be contingent or
unmatured. The rights of the Bank under this section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) in the Collateral which the Bank may have. Nothwithstanding
anything to the contrary contained herein, the Bank specifically waives and
disclaims all liens and rights of setoff under the Loan Documents (including the
Hedging Contracts) or given to the Bank by law or otherwise, in the Revolver
Collateral.
THIS NOTE
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW JERSEY, WITHOUT REFERENCE TO CONFLICTS OR CHOICE OF LAW
PRINCIPLES THEREOF.
THE
BORROWER VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ANY AND ALL RIGHTS
THE BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, LAWSUIT, PROCEEDING OR
CLAIM OF ANY NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION
WITH THIS NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY SUCH
DOCUMENTS. THE BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVER IS
KNOWING AND VOLUNTARY.
THE
BORROWER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS
NOTE, INCLUDING WITHOUT LIMITATION THE WAIVER OF JURY TRIAL CLAUSE, AND HAS BEEN
ADVISED BY COUNSEL AS NECESSARY OR APPROPRIATE.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the
undersigned hereto, intending to create an instrument under seal, has duly
executed this Note the day and year aforesaid and has affixed his/her/its
respective seal or has adopted as his/her/its own the seal typed next to
his/her/its own respective signature with the intent to be legally bound hereby
as of the day and year first above written.
|
BORROWER:
|
|||
|
Attest:
|
XXXXX ECOLOGY OIL SALVAGE, INC.,
a New Jersey corporation
|
||
|
By:/s/ Xxxxx Xxxxxxxxxx
|
By:
/s/ Xxxxxxx Xxxx
|
||
|
Xxxxx
Xxxxxxxxxx, Treasurer
|
Xxxxxxx
Xxxx, President
|
||
|
Attest:
|
MIDATLANTIC RECYCLING
TECHNOLOGIES, INC., a Delaware corporation
|
||
|
By:/s/ Xxxxx Xxxxxxxxxx
|
By:
/s/ Xxxxxxx Xxxx
|
||
|
Xxxxx
Xxxxxxxxxx, Treasurer
|
Xxxxxxx
Xxxx, President
|
||
|
Attest:
|
REZULTZ, INCORPORATED, a
New Jersey corporation
|
||
|
By:/s/ Xxxxx Xxxxxxxxxx
|
By:
/s/ Xxxxxxx Xxxx
|
||
|
Xxxxx
Xxxxxxxxxx, Treasurer
|
Xxxxxxx
Xxxx, President
|
Schedule
A – Principal Payments
|
Payment
Due Date
|
Begin
Balance
|
Principal
Payment
|
End
Balance
|
|
15-Dec-08
|
8,000,000.00
|
76,585.66
|
7,923,414.34
|
|
15-Jan-09
|
7,923,414.34
|
76,974.97
|
7,846,439.37
|
|
15-Feb-09
|
7,846,439.37
|
77,366.26
|
7,769,073.11
|
|
15-Mar-09
|
7,769,073.11
|
77,759.54
|
7,691,313.57
|
|
15-Apr-09
|
7,691,313.57
|
78,154.82
|
7,613,158.75
|
|
15-May-09
|
7,613,158.75
|
78,552.11
|
7,534,606.64
|
|
15-Jun-09
|
7,534,606.64
|
78,951.41
|
7,455,655.23
|
|
15-Jul-09
|
7,455,655.23
|
79,352.75
|
7,376,302.48
|
|
15-Aug-09
|
7,376,302.48
|
79,756.13
|
7,296,546.35
|
|
15-Sep-09
|
7,296,546.35
|
80,161.55
|
7,216,384.80
|
|
15-Oct-09
|
7,216,384.80
|
80,569.04
|
7,135,815.76
|
|
15-Nov-09
|
7,135,815.76
|
80,978.60
|
7,054,837.16
|
|
15-Dec-09
|
7,054,837.16
|
81,390.24
|
6,973,446.92
|
|
15-Jan-10
|
6,973,446.92
|
81,803.97
|
6,891,642.95
|
|
15-Feb-10
|
6,891,642.95
|
82,219.81
|
6,809,423.14
|
|
15-Mar-10
|
6,809,423.14
|
82,637.76
|
6,726,785.38
|
|
15-Apr-10
|
6,726,785.38
|
83,057.84
|
6,643,727.54
|
|
15-May-10
|
6,643,727.54
|
83,480.05
|
6,560,247.49
|
|
15-Jun-10
|
6,560,247.49
|
83,904.41
|
6,476,343.08
|
|
15-Jul-10
|
6,476,343.08
|
84,330.92
|
6,392,012.16
|
|
15-Aug-10
|
6,392,012.16
|
84,759.60
|
6,307,252.56
|
|
15-Sep-10
|
6,307,252.56
|
85,190.46
|
6,222,062.10
|
|
15-Oct-10
|
6,222,062.10
|
85,623.51
|
6,136,438.59
|
|
15-Nov-10
|
6,136,438.59
|
86,058.77
|
6,050,379.82
|
|
15-Dec-10
|
6,050,379.82
|
86,496.23
|
5,963,883.59
|
|
15-Jan-11
|
5,963,883.59
|
86,935.92
|
5,876,947.67
|
|
15-Feb-11
|
5,876,947.67
|
86,935.92
|
5,789,569.82
|
|
15-Mar-11
|
5,789,569.82
|
87,377.85
|
5,701,747.80
|
|
15-Apr-11
|
5,701,747.80
|
87,822.02
|
5,613,479.35
|
|
15-May-11
|
5,613,479.35
|
88,268.45
|
5,524,762.21
|
|
15-Jun-11
|
5,524,762.21
|
88,717.14
|
5,435,594.09
|
|
15-Jul-11
|
5,435,594.09
|
89,168.12
|
5,345,972.70
|
|
15-Aug-11
|
5,345,972.70
|
89,621.39
|
5,255,895.73
|
|
15-Sep-11
|
5,255,895.73
|
90,076.97
|
5,165,360.87
|
|
15-Oct-11
|
5,165,360.87
|
90,534.86
|
5,074,365.79
|
|
15-Nov-11
|
5,074,365.79
|
90,995.08
|
4,982,908.15
|
|
15-Dec-11
|
4,982,908.15
|
91,457.64
|
4,890,985.60
|
|
15-Jan-12
|
4,890,985.60
|
92,389.82
|
4,798,595.78
|
|
15-Feb-12
|
4,798,595.78
|
92,859.47
|
4,705,736.31
|
|
15-Mar-12
|
4,705,736.31
|
93,331.50
|
4,612,404.81
|
|
15-Apr-12
|
4,612,404.81
|
93,805.94
|
4,518,598.87
|
|
15-May-12
|
4,518,598.87
|
94,282.79
|
4,424,316.08
|
|
15-Jun-12
|
4,424,316.08
|
94,762.06
|
4,329,554.02
|
|
15-Jul-12
|
4,329,554.02
|
95,243.76
|
4,234,310.26
|
|
15-Aug-12
|
4,234,310.26
|
95,727.92
|
4,138,582.34
|
|
15-Sep-12
|
4,138,582.34
|
96,214.54
|
4,042,367.80
|
|
15-Oct-12
|
4,042,367.80
|
96,703.63
|
3,945,664.17
|
|
15-Nov-12
|
3,945,664.17
|
97,195.20
|
3,848,468.97
|
|
15-Dec-12
|
3,848,468.97
|
97,689.28
|
3,750,779.69
|
|
15-Jan-13
|
3,750,779.69
|
98,185.87
|
3,652,593.82
|
|
15-Feb-13
|
3,652,593.82
|
98,684.98
|
3,553,908.84
|
|
15-Mar-13
|
3,553,908.84
|
99,186.63
|
3,454,722.21
|
|
15-Apr-13
|
3,454,722.21
|
99,690.83
|
3,355,031.38
|
|
15-May-13
|
3,355,031.38
|
100,197.59
|
3,254,833.79
|
|
15-Jun-13
|
3,254,833.79
|
100,706.92
|
3,154,126.87
|
|
15-Jul-13
|
3,154,126.87
|
101,218.85
|
3,052,908.02
|
|
15-Aug-13
|
3,052,908.02
|
101,733.38
|
2,951,174.64
|
|
15-Sep-13
|
2,951,174.64
|
102,250.53
|
2,848,924.11
|
|
15-Oct-13
|
2,848,924.11
|
102,770.30
|
2,746,153.81
|
|
15-Nov-13
|
2,746,153.81
|
103,292.71
|
2,642,861.10
|
|
15-Dec-13
|
2,642,861.10
|
103,817.79
|
2,539,043.31
|
|
15-Jan-14
|
2,539,043.31
|
104,345.53
|
2,434,697.78
|
|
15-Feb-14
|
2,434,697.78
|
104,875.95
|
2,329,821.83
|
|
15-Mar-14
|
2,329,821.83
|
105,409.07
|
2,224,412.76
|
|
15-Apr-14
|
2,224,412.76
|
105,944.90
|
2,118,467.86
|
|
15-May-14
|
2,118,467.86
|
106,483.45
|
2,011,984.41
|
|
15-Jun-14
|
2,011,984.41
|
107,024.74
|
1,904,959.67
|
|
15-Jul-14
|
1,904,959.67
|
107,568.79
|
1,797,390.88
|
|
15-Aug-14
|
1,797,390.88
|
108,115.59
|
1,689,275.29
|
|
15-Sep-14
|
1,689,275.29
|
108,665.18
|
1,580,610.11
|
|
15-Oct-14
|
1,580,610.11
|
109,217.56
|
1,471,392.55
|
|
15-Nov-14
|
1,471,392.55
|
109,772.75
|
1,361,619.80
|
|
15-Dec-14
|
1,361,619.80
|
110,330.76
|
1,251,289.04
|
|
15-Jan-15
|
1,251,289.04
|
110,891.61
|
1,140,397.43
|
|
15-Feb-15
|
1,140,397.43
|
111,455.31
|
1,028,942.12
|
|
15-Mar-15
|
1,028,942.12
|
112,021.87
|
916,920.25
|
|
15-Apr-15
|
916,920.25
|
112,591.32
|
804,328.93
|
|
15-May-15
|
804,328.93
|
113,163.66
|
691,165.27
|
|
15-Jun-15
|
691,165.27
|
113,738.91
|
577,426.36
|
|
15-Jul-15
|
577,426.36
|
114,317.08
|
463,109.28
|
|
15-Aug-15
|
463,109.28
|
114,898.19
|
348,211.09
|
|
15-Sep-15
|
348,211.09
|
115,482.26
|
232,728.83
|
|
15-Oct-15
|
232,728.83
|
116,069.29
|
116,659.54
|
|
15-Nov-15
|
116,659.54
|
116,659.54
|
0.00
|
