Exhibit 4
MODIFICATION TO REVOLVING PROMISSORY NOTE
AND LOAN AGREEMENT
Farrel Corporation
25 Main Street
Ansonia, Connecticut 06401
and
Farrel Limited
25 Main Street
Ansonia, Connecticut 06401
(Individually and collectively, "Borrower")
Wachovia Bank, National Association
300 Main Street
Stamford, Connecticut 06901
(Hereinafter referred to as "Bank")
THIS AGREEMENT is entered into as of August 2, 2002 by and among Bank and
Borrower.
RECITALS
Bank is the holder of a Revolving Promissory Note executed and delivered by
Borrower, dated June 18, 2001, in the original principal amount of
$10,000,000.00 (the "Note"), and certain other loan documents, including without
limitation, a Revolving and Term Loan Credit Agreement, dated June 18, 2001 (as
heretofore amended, modified and restated, the "Loan Agreement");
Borrower and Bank have agreed to modify the terms of the Loan Documents, as
defined in the Loan Agreement;
Wachovia Bank, National Association, formerly known as First Union National
Bank, is the owner and holder of the Note, the Loan Agreement and each of the
other Loan Documents;
In consideration of Bank's continued extension of credit and the agreements
contained herein, the parties agree as follows:
AGREEMENT
ACKNOWLEDGMENT OF BALANCE. Borrower and Bank each acknowledges that the most
recent Commercial Loan Invoice sent to Borrower with respect to the Obligations
under the Note is correct.
MODIFICATIONS.
1. The Note is hereby modified by deleting in its entirety the paragraph
entitled "Repayment Terms" and substituting the following therefor:
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REPAYMENT TERMS. This Note shall be due and payable in consecutive monthly
payments of accrued interest only, 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 15, 2004.
2. All other Loan Documents are hereby modified so that any reference to the
maturity date of the Note shall be deemed to refer to June 15, 2004.
3. Any paragraph in any Loan Document entitled "Arbitration" is hereby deleted
in its entirety, and any requirement in any Loan Document that any dispute or
controversy arising out of or relating to any Loan Document be resolved by
binding arbitration is hereby deleted. In each Loan Document, the following
paragraph shall instead be included as if originally set forth therein:
THE BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY COURT IN ANY SUIT,
ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH THIS
AGREEMENT OR IN ANY WAY RELATED TO THE FINANCING TRANSACTIONS OF
WHICH THIS AGREEMENT IS A PART AND/OR THE DEFENSE OR ENFORCEMENT OF
ANY OF BANK'S RIGHTS OR REMEDIES. THE BORROWER HEREBY REPRESENTS AND
WARRANTS TO BANK THAT THE WITHIN WAIVERS ARE ITS FREE ACT AND DEED
MADE FOLLOWING CONSULTATION WITH INDEPENDENT COUNSEL OF ITS CHOICE.
ACKNOWLEDGMENTS AND REPRESENTATIONS. Borrower acknowledges and represents that
the Note and other Loan Documents, as amended hereby, are in full force and
effect without any defense, counterclaim, right or claim of set-off; that, after
giving effect to this Agreement, no default or event that with the passage of
time or giving of notice would constitute a default under the Loan Documents has
occurred, all representations and warranties contained in the Loan Documents are
true and correct as of this date (except where such representations and
warranties relate specifically to a prior date), all necessary action to
authorize the execution and delivery of this Agreement has been taken; and this
Agreement is a modification of an existing obligation and is not a novation.
MISCELLANEOUS. This Agreement shall be construed in accordance with and governed
by the laws of the applicable state as originally provided in the Loan
Documents, without reference to that state's conflicts of law principles. This
Agreement and the other Loan Documents constitute the sole agreement of the
parties with respect to the subject matter thereof and supersede all oral
negotiations and prior writings with respect to the subject matter thereof. No
amendment of this Agreement, and no waiver of any one or more of the provisions
hereof shall be effective unless set forth in writing and signed by the parties
hereto. The illegality, unenforceability or inconsistency of any provision of
this Agreement shall not in any way affect or impair the legality,
enforceability or consistency of the remaining provisions of this Agreement or
the other Loan Documents. This Agreement and the other Loan Documents are
intended to be consistent. However, in the event of any inconsistencies among
this Agreement and any of the Loan Documents, the terms of this Agreement, and
then the Note, shall control. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts. Each such
counterpart shall be deemed an original, but all such counterparts shall
together constitute one and the same agreement. Terms used in this Agreement
which are capitalized and not otherwise defined herein shall have the meanings
ascribed to such terms in the Note and the Loan Agreement.
CONNECTICUT PREJUDGMENT REMEDY WAIVER. THE BORROWER ACKNOWLEDGES THAT THE
TRANSACTIONS REPRESENTED BY THIS AGREEMENT 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.
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WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE BANK HEREBY WAIVES TRIAL BY
JURY IN ANY COURT IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN
CONNECTION WITH THIS AGREEMENT OR IN ANY WAY RELATED TO THE FINANCING
TRANSACTIONS OF WHICH THIS AGREEMENT IS A PART AND/OR THE DEFENSE OR ENFORCEMENT
OF ANY OF BANK'S RIGHTS OR REMEDIES. THE BORROWER HEREBY REPRESENTS AND WARRANTS
TO BANK THAT THE WITHIN WAIVERS ARE ITS FREE ACT AND DEED MADE FOLLOWING
CONSULTATION WITH INDEPENDENT COUNSEL OF ITS CHOICE.
IN WITNESS WHEREOF, the undersigned have signed and sealed this Agreement the
day and year first above written.
PLACE OF EXECUTION AND DELIVERY. Borrower hereby certifies that this Agreement
and the Loan Documents were executed in the State of Connecticut and delivered
to Bank in the State of Connecticut.
WITNESSES:
/s/ James L Burns Farrel Corporation
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/s/ Marisela Esposito By: /s/ Rolf K Liebergesell
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Rolf K. Liebergesell, Director
/s/ James L Burns Farrel Limited
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/s/ Marisela Esposito By: /s/ Rolf K Liebergesell
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Rolf K. Liebergesell, Director
/s/ Richard Petrone Wachovia Bank, National Association
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/s/ Annette Herber By: /s/ Philip Galioto
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Philip Galioto
Vice President
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