Exhibit 10.4


 


NOTE MODIFICATION
AGREEMENT


 


This Note Modification Agreement (the “Agreement”) is dated as of December 9,
2008 and is made by and between BRAD FOOTE GEAR WORKS, INC., f/k/a BFG
Acquisition Corp., an Illinois corporation (“Borrower”) and BANK OF AMERICA,
N.A., a national banking association, as successor by merger to LaSalle Bank
National Association f/k/a LaSalle National Bank f/k/a LaSalle Bank NI (the “Bank”).


 


R E C I T A
L S


 


A.                                   Borrower has previously delivered to the Bank
its Amended and Restated Equipment Line Note dated November 10, 2006 in
the principal amount of $11,000,000.00 (the “Note”), evidencing a non-revolving
line of credit loan with term conversion feature extended by the Bank to the
Borrower; and


 


B.                                     The Note previously converted to a Term Note
in accordance with its terms and is currently bearing interest at a variable
rate equal to the Variable Interest Rate (as defined in the Note); and


 


C.                                     The Borrower and Bank have agreed to modify
the interest rate charged on the Note;


 


NOW, THEREFORE, in consideration of the foregoing, and for
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:


 


1.                                       Effective December 9, 2008 and for the
balance of the term of this Note, the interest rate charged on this Note shall
be Adjusted LIBOR (as hereinafter defined). 
To effect such change, the Note is hereby amended to add the following
additional provisions thereto:


 


“The term “LIBOR Loan” as used herein shall
mean the outstanding principal balance of this Note at the beginning of each
Interest Period (as hereinafter defined) or any other applicable time.  “Adjusted LIBOR” means a rate of interest
equal to two and one-half percent (2.5%) per annum in excess of the per annum
rate of interest at which U.S. dollar deposits in an amount comparable to the
amount of the relevant LIBOR Loan and for a period equal to the relevant “Interest
Period” (as hereinafter defined) are offered generally to the Bank in the
London Interbank Eurodollar market at 11.00 a.m. (London time) two Banking
Days prior to the commencement of each Interest Period, as displayed in the
Bloomberg Financial Markets system, or other authoritative source selected by
the Bank in its sole discretion, divided by a number determined by subtracting
from 1.00 the maximum reserve percentage for determining reserves to be
maintained by member banks of the Federal Reserve System for Eurocurrency
liabilities, such rate to remain fixed for such Interest Period.  “Interest Period” shall mean successive 30
day periods commencing on December 9, 2008; provided that: (i) each
such 30 day period occurring after such initial period shall commence on the
day on which the next preceding period expires; (ii) the final Interest
Period shall be such that its expiration occurs on or before the Maturity Date;
(iii) any Interest Period which commences on the last Banking Day of a
calendar month (or on any day for which there is no numerically corresponding
day in the appropriate subsequent 


 


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calendar
month) shall end on the last Banking Day of the appropriate subsequent calendar
month; (iv) if the final Interest Period before the Maturity Date is less
then 30 days, this Note shall continue to bear interest at Adjusted LIBOR for
such final Interest Period; and (v)  each Interest Period which would
otherwise end on a day which is not a Banking Day shall end on the next
succeeding Banking Day, or, if such next succeeding Banking Day falls in the
next succeeding calendar month, on the next preceding Banking Day.  Interest on each LIBOR Loan shall be payable
on the last Banking Day of each Interest Period, at maturity, after maturity on
demand, and on the date of any payment hereon on the amount paid.  The Borrower hereby further promises to pay
to the order of the Bank, on demand, interest on the unpaid principal amount of
each LIBOR Loan after maturity (whether by acceleration or otherwise) at the
Default Rate (as defined in this Note). 
As used herein, “Banking Day(s)” shall mean each and all days other than
a Saturday, Sunday or a legal holiday on which national banks are authorized or
required to be closed for the conduct of commercial banking business in
Chicago, Illinois.


 


The Bank’s determination of Adjusted LIBOR as
provided above shall be conclusive, absent manifest error.  Furthermore, if the Bank determines, in good
faith (which determination shall be conclusive, absent manifest error) prior to
the commencement of any Interest Period that: (a) U.S. dollar deposits of
sufficient amount and maturity for funding any LIBOR Loan are not available to
the Bank in the London Interbank Eurodollar market in the ordinary course of
business, or (b) by reason of circumstances affecting the London Interbank
Eurodollar market, adequate and fair means do not exist for ascertaining the
rate of interest to be applicable to the relevant LIBOR Loan, the Bank shall
promptly notify the Borrower and such LIBOR Loan shall automatically convert on
the last day of its then-current Interest Period to a loan bearing interest at
the Prime Rate plus two and one-half percent (2.5%) per annum.


 


If, after the date hereof, the introduction
of, or any change in, any applicable law, treaty, rule, regulation, or
guideline, or in the interpretation or administration thereof by any
governmental authority or any central bank or other fiscal, monetary or other
authority having jurisdiction over the Bank or its lending office (a “Regulatory
Change”) shall, in the opinion of counsel to the Bank, make it unlawful or
impossible for the Bank to make or maintain any LIBOR Loan evidenced hereby,
then the Bank shall promptly notify the Borrower and such LIBOR Loan shall
automatically convert on the last day of its then-current Interest Period (or
earlier if required by such Regulatory Change) to a loan bearing interest at
the Prime Rate plus two and one-half percent (2.5%) per annum.


 


If, for any reason, any LIBOR Loan is paid
prior to the last Banking Day of its then-current Interest Period, the Borrower
agrees to indemnify the Bank against any loss (including any loss on
redeployment of the funds repaid), cost or expense incurred by the Bank as a
result of such prepayment.


 


If any Regulatory Change (whether or not
having the force of law) shall (a)  impose, modify or deem applicable any
assessment, reserve, special deposit or similar requirement against assets held
by, or deposits in or for the account of, or loans by, or any other acquisition
of funds or disbursements by, the Bank; (b) subject the Bank or any LIBOR
Loan to any tax, duty, charge, stamp tax or fee or change in the basis of
taxation of payments to the Bank of principal or interest due from the Borrower
to the Bank hereunder (other than a change in the taxation of the overall net
income of the Bank); or (c) impose on the Bank any other condition
regarding such 


 


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LIBOR
Loan or the Bank’s funding thereof, and the Bank shall determine (which
determination shall be conclusive, absent manifest error) that the result of
the foregoing is to increase the cost to the Bank of making or maintaining such
LIBOR Loan or to reduce the amount of principal or interest received by the
Bank hereunder, then the Borrower shall pay to the Bank, on demand, such additional
amounts as the Bank shall, from time to time, determine are sufficient to
compensate and indemnify the Bank for such increased cost or reduced amount.


 


The outstanding principal balance of this
Note, the applicable interest rate for each Interest Period, each applicable Interest
Period, and the amount and date of any repayment shall be noted on Bank’s
records, which records shall be conclusive evidence thereof, absent manifest
error; provided, however, any failure by Bank to make any such notation, or any
error in any such notation, shall not relieve Borrower of its obligations to
repay Bank the outstanding principal balance of this Note, all accrued and
unpaid interest thereon, and all other amounts payable by Borrower to Bank
under or pursuant to this Note.”


 


2.                                       In the event of any conflict between the
terms of this Agreement and the Note, the terms of this Agreement shall govern.


 


3.                                       Borrower acknowledges and irrevocably agrees
that the payment and performance of the Note, as modified hereby, shall
continue to be secured by Collateral Documents (as such term is defined in the
Loan and Security Agreement dated January 17, 1997 between the Borrower
and the Bank, as amended from time to time).


 


4.                                       Except as expressly modified by this
Agreement, all terms and provisions of the Note shall stand and remain in full
force and effect.


 


(The
signature page follows.)


 


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IN WITNESS
WHEREOF, the
undersigned have executed this Agreement as of the day and year first above
written.


 


BORROWER:


 


	
  BRAD FOOTE GEAR WORKS, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Ralph Placzek

  	
   

  
	
   

  	
  Ralph Placzek

  	
   

  
	
  Title:

  	
  Vice President of Finance

  	
   

  
	
   

  	
   

  
	
  BANK:

  	
   

  
	
   

  	
   

  
	
  BANK OF AMERICA, N.A.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Katherine Novey

  	
   

  
	
   

  	
  Katherine Novey

  	
   

  
	
  Title:

  	
  Senior Vice President

  	
   

  



 


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