EXHIBIT 10.16(d)
TERM NOTE
$25,000,000 New York, New York
October 24, 2003
FOR VALUE RECEIVED, the undersigned, STANADYNE CORPORATION
("Stanadyne") and PRECISION ENGINE PRODUCTS CORP. ("Precision"; and together
with Stanadyne, each individually, a "Debtor" and collectively, the "Debtors"),
HEREBY PROMISE TO PAY, jointly and severally, to the order of GMAC COMMERCIAL
FINANCE LLC, a Delaware limited liability company, as collateral agent and
administrative agent ("Agent") for the Lenders (as defined below), at its
address at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as Agent may designate from time to time in writing, in lawful money
of the United States of America and in immediately available funds, the amount
of TWENTY-FIVE MILLION DOLLARS ($25,000,000). All capitalized terms used but not
otherwise defined herein have the meanings given to them in the Loan Agreement
(as hereinafter defined).
This Term Note is the Term Note issued pursuant to that certain Loan
and Security Agreement dated the date hereof (including all exhibits and
schedules thereto and as from time to time may be amended, restated, renewed,
replaced, substituted, supplemented, extended, or otherwise modified, the "Loan
Agreement"), and is entitled to the benefit and security of the Loan Agreement
and all of the Other Documents referred to therein by and among Debtors,
Stanadyne Automotive Holding Corp., Agent, and the other financial institutions
signatory thereto from time to time as lenders ("Lenders"). Reference is hereby
made to the Credit Agreement for a statement of all of the terms and conditions
under which the loans evidenced hereby are made and are to be repaid.
The principal amount of the indebtedness evidenced hereby shall be
payable in the amounts and on the dates specified in the Loan Agreement.
Interest thereon shall be paid until such principal amount is paid in full at
such interest rates and at such times, and pursuant to such calculations, as are
specified in the Loan Agreement. The terms of the Loan Agreement are hereby
incorporated herein by reference.
This Term Note is secured by the Collateral and is entitled to all of
the benefits and rights as set forth in the Loan Agreement and the Other
Documents. At the time any payment is due hereunder, at its option, Agent may
charge the amount thereof to any account of any Debtor maintained by Agent.
If any payment of principal or interest is not made when due hereunder,
of if any other Default or Event of Default shall occur for any reason, or if
the Loan Agreement shall be terminated for any reason whatsoever, then and in
any such event, in addition to all rights and remedies of Agent and Lenders,
under the Loan Agreement and the Other Documents, applicable law or otherwise,
all such rights and remedies being cumulative, not exclusive and enforceable
alternatively, successively and concurrently, any or all of the Obligations,
including, without limitation, all amounts owing under this Term Note, may, as
provided in the Loan Agreement, be
declared or shall forthwith become due and payable, together with all interest
accrued thereon and with interest accruing thereafter at the then applicable
interest rate under the Loan Agreement until the indebtedness evidenced by this
Term Note is paid in full, plus the costs and expenses of collection hereof,
including, but not limited to, reasonable attorneys' fees and legal expenses.
Each Debtor hereby (i) waives diligence, demand, presentment, protest
and notice of any kind, (ii) agrees that it will not be necessary to first
institute suit in order to enforce payment of this Term Note and (iii) consents
to any one or more extensions or postponements of time of payment, release,
surrender or substitution of collateral security, or forbearance or other
indulgence, without notice or consent. The pleading of any statute of
limitations as a defense to any demand against Debtor is expressly hereby waived
by each Debtor. Upon or after maturity of this Term Note, or any Event of
Default or termination of the Loan Agreement, Agent and each Lender, shall have
the right, subject to the terms of the Loan Agreement, but not the obligation,
to set off against this Term Note all money owed by Agent or any Lender to any
Debtor.
No resort to any Collateral for payment shall be required prior to the
enforcement hereof against any Debtor and any guarantors or endorsers hereof.
None of the rights of Agent or any Lender shall be waived or diminished by any
failure or delay in the exercise thereof.
In the event of any conflict of any of the terms or provisions of this
Term Note with any of the terms or provisions of the Loan Agreement, the terms
and provisions of the Loan Agreement shall control.
The execution and delivery of this Term Note has been authorized by the
Board of Directors of each Debtor and by any necessary vote or consent of the
stockholders of each Debtor. Each Debtor hereby authorizes Agent to complete
this Note in any particulars according to the terms of the loan evidenced
hereby.
This Note shall be binding upon the successors and assigns of each
Debtor and, subject to the terms of the Loan Agreement, shall inure to the
benefit of Agent and its successors, endorsees and assigns. Whenever used
herein, the term "Debtor" or "Debtors" shall be deemed to include each of the
undersigned and its respective successors and assigns and the term "Agent" and
"Lender" shall be deemed to include their respective successors, endorsees and
assigns.
If any term or provision of this Term Note shall be held invalid,
illegal or unenforceable, the validity of all other terms and provisions hereof
shall in no way be affected thereby.
This Term Note shall be governed by and construed in accordance with
the laws of the State of New York applied to contracts to be performed wholly
within the State of New York. Any judicial proceeding brought by or against any
Debtor with respect to any of the Obligations, this Term Note or any related
agreement may be brought in any court of competent jurisdiction in the State of
New York, United States of America, and, by execution and delivery of this Term
Note, each Debtor accepts for itself and in connection with its properties,
generally and unconditionally, the non-exclusive jurisdiction of the aforesaid
courts, and irrevocably agrees to be bound by any judgment rendered thereby in
connection with this Term Note. Each Debtor
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hereby waives personal service of any and all process upon it and consents that
all such service of process may be made by registered mail (return receipt
requested) directed to such Debtor, and service so made shall be deemed
completed five (5) days after the same shall have been so deposited in the mails
of the United States of America. Nothing herein shall affect the right to serve
process in any manner permitted by law or shall limit the right of Agent to
bring proceedings against any Debtor in the courts of any other jurisdiction.
Each Debtor waives any objection to jurisdiction and venue of any action
instituted hereunder and shall not assert any defense based on lack of
jurisdiction or venue or based upon forum non conveniens. Any judicial
proceeding by any Debtor against Agent or any Lender involving, directly or
indirectly, any matter or claim in any way arising out of, related to or
connected with this Term Note or any related agreement, shall be brought only in
a federal or state court located in the City of New York, State of New York.
EACH DEBTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS TERM NOTE OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF EACH SUCH DEBTOR AND AGENT OR ANY OF THEM WITH RESPECT TO THIS TERM NOTE OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE, AND EACH DEBTOR HEREBY CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT EACH
DEBTOR, AND AGENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS PARAGRAPH
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENTS OF THE PARTIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
STANADYNE CORPORATION
By: \s\ Xxxxxxx X. Xxxxxx
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Title: Vice President & Chief Financial Officer
PRECISION ENGINE PRODUCTS CORP.
By: \s\ Xxxxxxx X. Xxxxxx
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Title: Vice President & Chief Financial Officer
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