Exhibit 4-D
[GRAPHIC OMITTED]
TERM PROMISSORY NOTE
£1,400,000.00
June 18, 2001
Farrel Limited
25 Main Street
Ansonia, Connecticut 06401
(Individually and collectively "Borrower")
First Union National Bank
300 Main Street
Stamford, Connecticut 06904
(Hereinafter referred to as "Bank")
Borrower promises to pay to the order of Bank, at its office located at 3
Bishopsgate, London EC2N 3AB, United Kingdom, or wherever else Bank may specify,
the sum of £1,400,000.00 in lawful money of the United Kingdom and in
immediately available funds, or such lesser sum as may be advanced and
outstanding from time to time, with interest in like money on the unpaid
principal balance at the rate and on the terms provided in this Promissory Note
(including all renewals, extensions or modifications hereof, this "Note") and in
a certain Revolving and Term Loan Credit Agreement between Bank and Borrower
dated as of the date hereof, as the same may be modified and amended from time
to time (the "Loan Agreement").
INTEREST RATE. Interest shall accrue on the unpaid principal balance of this
Note from the date hereof at 1-month LIBOR plus the Margin and the Mandatory
Costs Rate ("Interest Rate"), as determined by Bank prior to the commencement of
each consecutive interest period of 1 month (each, an "Interest Period") during
the term of the Note; provided, the first Interest Period shall commence on the
date of this Note and end on the first date thereafter that interest is due.
Each Interest Rate shall remain in effect for the entire Interest Period until
redetermined for the next successive Interest Period. "LIBOR" is the rate for
U.S. dollar/Sterling deposits with a maturity equal to the number of months
specified above, as reported on Telerate page 3750 as of 11:00 a.m., London
time, on the second London business day before the relevant Interest Period
begins (or if not so reported, then as determined by the Bank from another
recognized source or interbank quotation).
MANDATORY COSTS RATE means in relation to any Interest Period or other period,
the cost to the Bank of complying with all reserve, special deposit, capital
adequacy, solvency, liquidity ratios, fees or other requirements of or imposed
by the Bank of England, the Financial Services Authority, the European Central
Bank or any other governmental or regulatory authority for the time being
attributable to each Advance or any unpaid sum (rounded up if necessary to 4
decimal places) as conclusively determined by the Bank.
MARGIN means 2.70% per annum.
DEFAULT RATE. In addition to all other rights contained in this Note, if a
Default (as defined herein) occurs and as long as a Default continues, all
outstanding Obligations shall bear interest at the Interest Rate plus 3%
("Default Rate"). The Default Rate shall also apply from acceleration until the
Obligations or any judgment thereon is paid in full.
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INTEREST AND FEE(S) COMPUTATION (ACTUAL/360/and in the case of Sterling 365).
Interest and fees, if any, shall be computed on the basis of a 360/and in the
case of Sterling 365-day year for the actual number of days in the applicable
period ("Actual/360/and in the case of Sterling 365 Computation"). The
Actual/360/and in the case of Sterling 365 Computation determines the annual
effective yield by taking the stated (nominal) rate for a year's period and then
dividing said rate by 360/and in the case of Sterling 365 to determine the daily
periodic rate to be applied for each day in the applicable period. Application
of the Actual/360/and in the case of Sterling 365 Computation produces an
annualized effective interest rate exceeding the nominal rate.
REPAYMENT TERMS. This Note shall be due and payable in thirty-six (36) equal
consecutive monthly payments of principal of £38,888.89, plus accrued
interest, commencing on July 18, 2001, and continuing on the same day of each
month thereafter until fully paid. In any event, all principal and accrued
interest shall be due and payable on June 18, 2004.
AUTOMATIC DEBIT OF CHECKING ACCOUNT FOR LOAN PAYMENT. Borrower authorizes Bank
to debit demand deposit account number 04635036 or any other account with Bank
designated in writing by Borrower, beginning July 18, 2001 for any payments due
under this Note. Borrower further certifies that Borrower holds legitimate
ownership of this account and preauthorizes this periodic debit as part of its
right under said ownership.
APPLICATION OF PAYMENTS. Monies received by Bank from any source for application
toward payment of the Obligations shall be applied to accrued interest and then
to principal. If a Default occurs, monies may be applied to the Obligations in
any manner or order deemed appropriate by Bank.
If any payment received by Bank under this Note or other Loan Documents is
rescinded, avoided or for any reason returned by Bank because of any adverse
claim or threatened action, the returned payment shall remain payable as an
obligation of all persons liable under this Note or other Loan Documents as
though such payment had not been made.
IF THE UNITED KINGDOM AT ANY TIME PARTICIPATES IN ECONOMIC AND MONETARY UNION
("EMU") IN ACCORDANCE WITH ARTICLE 109J OF THE TREATY, THEN:
any amount expressed to be payable under this Agreement in Sterling shall be
made in euros; and any amount so required to be paid in euros shall be converted
from Sterling at the rate stipulated pursuant to Article 109l(4) of the Treaty
and payment of the amount in euros derived from such conversion shall discharge
the obligation of the relevant party to pay such Sterling Amount in accordance
with, and subject to, the regulations made pursuant to Article 109l(4) of the
Treaty.
TREATY means the treaty establishing the European Community, being the Treaty of
Rome of 25th March 1957, as amended by the Single European Act 1986 and the
Maastricht Treaty (which was signed at Maastricht on 7th February 1992 and came
into force on 1st November 1993), as further amended from time to time.
STERLING AMOUNT means in relation to any Advance that is or is to be denominated
in Sterling the principal amount thereof and in relation to any Advance that is
or is to be denominated in any other currency the principal amount of Sterling
that would be required to purchase the amount of such Advance in such currency
at the Bank's spot rate for the purchase of such currency with Sterling in the
London Interbank Market at 11am on the third business day prior to the day on
which such Advance was or, as the case may be, is to be made.
"Sterling" or "£" means the lawful currency of the United Kingdom.
LOAN AGREEMENT; DEFINITIONS. This Note is subject to the terms and conditions of
the Loan Agreement. All capitalized terms not otherwise defined herein shall
have such meaning as assigned to them in the Loan Agreement. The term
"Obligations" used in this Note refers to any and all Indebtedness and other
obligations under this Note, the Revolving Note between Bank and Borrower and
defined in the Loan Agreement, all other indebtedness as defined in the
respective Loan Documents, and all obligations under any swap agreements as
defined in 11 U.S.C. §101 between Bank and Borrower whenever executed.
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LATE CHARGE. If any payments are not timely made, Borrower shall also pay to
Bank a late charge equal to 5% of each payment past due for 10 or more days.
Acceptance by Bank of any late payment without an accompanying late charge shall
not be deemed a waiver of Bank's right to collect such late charge or to collect
a late charge for any subsequent late payment received.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Bank's
reasonable expenses incurred to enforce or collect any of the Obligations
including, without limitation, reasonable arbitration, paralegals', attorneys'
and experts' fees and expenses, whether incurred without the commencement of a
suit, in any trial, arbitration, or administrative proceeding, or in any
appellate or bankruptcy proceeding.
USURY. If at any time the effective interest rate under this Note would, but for
this paragraph, exceed the maximum lawful rate, the effective interest rate
under this Note shall be the maximum lawful rate, and any amount received by
Bank in excess of such rate shall be applied to principal and then to fees and
expenses, or, if no such amounts are owing, returned to Borrower.
DEFAULT. If any Event of Default as defined in the Loan Agreement shall occur, a
default ("Default") under this Note shall exist.
REMEDIES UPON DEFAULT. If a Default occurs under this Note or any Loan
Documents, Bank may at any time thereafter, take the following actions:
Acceleration Upon Default. Accelerate the maturity of this Note and, at Bank's
option, any or all other Obligations, whereupon this Note and the accelerated
Obligations shall be immediately due and payable; provided, however, if the
Default is based upon a bankruptcy or insolvency proceeding commenced by or
against Borrower or any guarantor or endorser of this Note, all Obligations
shall automatically and immediately be due and payable. Cumulative. Exercise any
rights and remedies as provided under the Note and other Loan Documents, or as
provided by law or equity.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note and
other Loan Documents shall be valid unless in writing and signed by an officer
of Bank. No waiver by Bank of any Default shall operate as a waiver of any other
Default or the same Default on a future occasion. Neither the failure nor any
delay on the part of Bank in exercising any right, power, or remedy under this
Note and other Loan Documents shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.
Each Borrower or any person liable under this Note waives presentment, protest,
notice of dishonor, demand for payment, notice of intention to accelerate
maturity, notice of acceleration of maturity, notice of sale and all other
notices of any kind. Further, each agrees that Bank may extend, modify or renew
this Note or make a novation of the loan evidenced by this Note for any period,
and grant any releases, compromises or indulgences with respect to any
collateral securing this Note, or with respect to any other Borrower or any
other person liable under this Note or other Loan Documents, all without notice
to or consent of each Borrower or each person who may be liable under this Note
or any other Loan Document and without affecting the liability of Borrower or
any person who may be liable under this Note or any other Loan Document.
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MISCELLANEOUS PROVISIONS. Assignment. This Note and the other Loan Documents
shall inure to the benefit of and be binding upon the parties and their
respective heirs, legal representatives, successors and assigns. Bank's
interests in and rights under this Note and the other Loan Documents are freely
assignable, in whole or in part, by Bank. In addition, nothing in this Note or
any of the other Loan Documents shall prohibit Bank from pledging or assigning
this Note or any of the other Loan Documents or any interest therein to any
Federal Reserve Bank. Borrower shall not assign its rights and interest
hereunder without the prior written consent of Bank, and any attempt by Borrower
to assign without Bank's prior written consent is null and void. Any assignment
shall not release Borrower from the Obligations. Applicable Law; Conflict
Between Documents. This Note and, unless otherwise provided in any other Loan
Document, the other Loan Documents shall be governed by and construed under the
laws of the state named in Bank's address shown above without regard to that
state's conflict of laws principles. If the terms of this Note should conflict
with the terms of the Loan Agreement, the terms of the Loan Agreement shall
control. Jurisdiction. Borrower irrevocably agrees to non-exclusive personal
jurisdiction in the state named in Bank's address shown above. Severability. If
any provision of this Note or of the other Loan Documents shall be prohibited or
invalid under applicable law, such provision shall be ineffective but only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Note or other such
document. Notices. Any notice or other communication hereunder to any party
hereto shall be by hand delivery, overnight delivery, facsimile, or registered
or certified mail and unless otherwise provided herein shall be deemed to have
been given or made when delivered or faxed (and confirmed) or as shown on the
receipt for such registered or certified mail. Any notices to Borrower shall be
sufficiently given, if delivered, faxed or mailed, as aforesaid, to the
Borrower's address shown above or such other address as provided hereunder, and
to Bank, if delivered, faxed or mailed, as aforesaid, to Bank's office address
shown above or such other address as Bank may specify in writing from time to
time. In the event that Borrower changes Borrower's address at any time prior to
the date the Obligations are paid in full, Borrower agrees to promptly give
written notice of said change of address by registered or certified mail, return
receipt requested, all charges prepaid. Plural; Captions. All references in the
Loan Documents to Borrower, guarantor, person, document or other nouns of
reference mean both the singular and plural form, as the case may be, and the
term "person" shall mean any individual, person or entity. The captions
contained in the Loan Documents are inserted for convenience only and shall not
affect the meaning or interpretation of the Loan Documents. Use of Proceeds. The
proceeds of the loan(s) evidenced by this Note shall be used for the commercial
purposes of Borrower. Advances. Bank may, in its sole discretion, make other
advances which shall be deemed to be advances under this Note, even though the
stated principal amount of this Note may be exceeded as a result thereof.
Posting of Payments. All payments received during normal banking hours after
2:00 p.m. local time at the office of Bank first shown above shall be deemed
received at the opening of the next banking day. Fees and Taxes. Borrower shall
promptly pay all documentary, intangible recordation and/or similar taxes on
this transaction whether assessed at closing or arising from time to time.
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ARBITRATION. Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any claim or controversy arising out of
or relating to the Loan Documents between parties hereto (a "Dispute") shall be
resolved by binding arbitration conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and the Federal Arbitration Act. Disputes
may include, without limitation, tort claims, counterclaims, a dispute as to
whether a matter is subject to arbitration, claims brought as class actions, or
claims arising from documents executed in the future. A judgment upon the award
may be entered in any court having jurisdiction. Notwithstanding the foregoing,
this arbitration provision does not apply to disputes under or related to swap
agreements. Special Rules. All arbitration hearings shall be conducted in the
city named in the address of Bank first stated above. A hearing shall begin
within 90 days of demand for arbitration and all hearings shall conclude within
120 days of demand for arbitration. These time limitations may not be extended
unless a party shows cause for extension and then for no more than a total of 60
days. The expedited procedures set forth in Rule 51 et seq. of the Arbitration
Rules shall be applicable to claims of less than $1,000,000.00. Arbitrators
shall be licensed attorneys selected from the Commercial Financial Dispute
Arbitration Panel of the AAA. The parties do not waive applicable Federal or
state substantive law except as provided herein. Preservation and Limitation of
Remedies. Notwithstanding the preceding binding arbitration provisions, the
parties agree to preserve, without diminution, certain remedies that any party
may exercise before or after an arbitration proceeding is brought. The parties
shall have the right to proceed in any court of proper jurisdiction or by
self-help to exercise or prosecute the following remedies, as applicable: (i)
obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and filing an
involuntary bankruptcy proceeding; and (ii) when applicable, a judgment by
confession of judgment. Any claim or controversy with regard to any party's
entitlement to such remedies is a Dispute. Waiver of Exemplary Damages. The
parties agree that they shall not have a remedy of punitive or exemplary damages
against other parties in any Dispute and hereby waive any right or claim to
punitive or exemplary damages they have now or which may arise in the future in
connection with any Dispute whether the Dispute is resolved by arbitration or
judicially. Waiver of Jury Trial. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO
BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY
TRIAL WITH REGARD TO A DISPUTE.
CONNECTICUT PREJUDGMENT REMEDY WAIVER. EACH BORROWER ACKNOWLEDGES THAT THE
TRANSACTIONS REPRESENTED BY THIS NOTE ARE COMMERCIAL TRANSACTIONS AND HEREBY
VOLUNTARILY AND KNOWINGLY WAIVES ANY RIGHTS TO NOTICE OF AND HEARING ON
PREJUDGMENT REMEDIES UNDER CHAPTER 903A OF THE CONNECTICUT GENERAL STATUTES OR
OTHER STATUTES AFFECTING PREJUDGMENT REMEDIES, AND AUTHORIZES THE BANK'S
ATTORNEY TO ISSUE A WRIT FOR A PREJUDGMENT REMEDY WITHOUT COURT ORDER, PROVIDED
THE COMPLAINT SHALL SET FORTH A COPY OF THIS WAIVER.
IN WITNESS WHEREOF, Borrower, on the day and year first above written, has
caused this Note to be executed under seal.
PLACE OF EXECUTION AND DELIVERY. Borrower hereby certifies that this Note and
the Loan Documents were executed in the State of Connecticut and delivered to
Bank in the State of Connecticut.
Farrel Limited
Taxpayer Identification Number:
By: /s/ Rolf K Liebergesell (SEAL)
Rolf K. Liebergesell, Director
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